S. Mohan, J.
1. The defendants are the appellants before me. The respondent filed O.S. No. 24 of 1971 for partition of her 1/6th share in the non-agricultural properties described as items 12-A, 18-A, and 22 to 31 in the plaint-schedule and also for mesne profits both past and future with a charge over A schedule properties. According to her, her husband and defendants 1 to 3 were members of a joint Hindu family and the fourth defendant was their mother. The plaintiff's husband died undivided on 3rd March, 1940. Since her husband had died prior to the coming into force of the Hindu Women's Rights to Property Amendment Act (Madras Act XXVI of 1947) she would be entitled to a share in the non-agricultural properties and also a right of maintenance with a charge over the agricultural properties.
2. In defence it was contended that immediately after the death of the husband of the plaintiff there was a panchayat whereunder the plaintiff was given Rs. 2,000 in lieu of her claim for maintenance and it was also undertaken that the first defendant would be responsible for the wedding of the plaintiff's daughter. In any event, the claim for maintenance was exorbitant.
3. The learned Subordinate Judge of Tiruvannamalai, on a consideration of the oral and documentary evidence, passed a preliminary decree with regard to certain items and fixed the rate of maintenance at Rs. 250 per month for which a charge was also created. The enquiry relating to mesne profits was relegated to a separate application under Order 20, Rule 12, C.P.C.
4. On appeal in A.S. No. 206 of 1971 before the District Judge, North Arcot, only two points were raised that the two pump-sets shown as items 12 A and 18-A were not agricultural properties and that the quantum of maintenance of Rs. 250 per month was very high. As regards the first point, the learned District Judge held that the pump-sets were not agricultural properties and, therefore, the share of the plaintiff' in these properties was confirmed. However, the maintenance was reduced to a sum of Rs. 150 per month. Aggrieved by this the present second appeal has been preferred.
5. Mr. M. Srinivasan, learned Counsel for the appellants, makes the following 3 submissions: (1) It is incorrect to hold that the pump-sets which are essential for agricultural operation could not form part of agricultural properties; (2) even if they are held as non-agricultural properties inasmuch as they have been purchased from out of the income from the agricultural propeties, they must be deemed to be agricultural properties. In support of this contention the learned Counsel relies on Parappagari Parappa alias Hanumanthappa v. Parappagari Nagamma : AIR1954Mad576 . Lastly it is not open to the plaintiff to claim a share in the non-agricultural properties and also maintenance. In other words, she can choose to have either of them, but not both.
6. Mr. T. Vadivel, the learned Counsel for the respondent, in meeting these submissions states that the pump-sets cannot be held to be agricultural properties because they are not essential for agricultural operation and in support of this statement the learned Counsel relies upon a decision of Ramaprasada Rao, J., in The Secretary, Santhur Co-operative Agricultural Bank v. District Judge, Co-operative Tribunal, Dharmapuri 1972 T.N.L.J. 276. Secondly there is no evidence that the pumpsets were purchased from out of the agricultural income. Even assuming it to be so, they cannot form part of the agricultural properties. Lastly, it is contended that the husband of the plaintiff having died before the amendment Act XXVI of 1947, viz., on 3rd March, 1940, it will be open to the plaintiff to claim a partition in respect of non-agricultural properties and claim a charge for maintenance over the agricultural properties.
7. I will take up these contentions seriatim. The learned Counsel for the respondent is right in his submission that the pumpsets, items 12-A and 18-A are not agricultural properties and all that I need to do is to refer to the judgment of Ramaprasada Rao, J., rendered in W.P. Nos. 3155 and 3156 of 1971 dated 14th April 1972, wherein the learned Judge held for the purpose of Section 60 (1), C.P.C., that the pumpsets used for agricultural purposes could not be held to be tools of agriculturists or implements of husbandry. Though that decision as seen above arose out of Section 60, C.P.C., I am in respectful agreement with the reasoning ef the learned Judge and, therefore, I hold that the finding of the District Judge on this aspect is correct.
8. I am unable to see as to how the decision in Parappagari Parappa alias Hanumanthappa v. Parappagari Nagamma : AIR1954Mad576 could be pressed into service by the learned Counsel for the appellants. That case does not lay down that whatever has been purchased from out of the agricultural lands would form part of agricultural property. Even that apart, there is no evidence in this case to hold that the pumpsets were purchased from out of the income from the agricultural properties. Hence, this submission of the appellants fails.
9. In support of the last of the submission that the plaintiff cannot have both a share in the non-agricultural properties and a right to maintenance, the learned Counsel for the appellants referred to two decisions in Ratnasabapathi Pillai v. Saraswathiammal : AIR1954Mad307 . and Gajavalliammul v. Narayanasami Mudaliar : AIR1962Mad187 . and those cases are fully distinguishable because, in those cases both the Division Benches held that the right of the widow available under the general law to claim maintenance remained unaffected even after the passing of the Hindu Women's Rights to Property Act, 1937, as amended by Madras Act XXVI of 1947. In the first of the rulings at page 466, the learned Judges, posed the question thus:
By reason of the amendment of 1947 whereby the widow had become entitled to claim a share in all the properties of the joint family including agricultural lands could it now be contended that a suit for maintenance by the widow after the enactment would not be maintainable;
In answering this, the ultimate conclusion was laid down by holding that there being no provision expressly taking away her right to maintenance such a right to maintenance is not abolished and will still be available and the option would rest with her to claim maintenance or a share, but not both.
10. It may be noted that in this ruling Kunchithapatham Pillai, whose widow sought maintenance, died on 27th February, 1947, by which time the Central Act XVIII of 1937 was amended by Madras Act XXVI of 1947. In Gajavalliammal v. Narayanasawmi Mudaliar : AIR1962Mad187 . the Division Bench held at page 188 as follows:
We therefore hold that the Act of 1937 did not deprive the widow of her general right of maintenance under the ordinary Hindu law and she is free to choose either the general right of maintenance or the specific right conferred upon her by the Act of 1937 whichever was more favourable to her.
Here again, the claimant's husband Govindaswami Mudaliar died on 21st November, 1953.
11. These cases have no application, because as would be seen from the above narration of the facts the husband died undivided on 3rd March, 1940. We are here confronted with the case where the husband died before the amendment Act XXVI of 1947. An identical situation arose in Sarojini Devi v. Subramanian : AIR1944Mad401 . where a widow claimed maintenance in addition to a share in non-agricultural properties and Patanjali Sastri. J. (as he then was), in delivering the judgment of the Bench, held at page 69 as follows:
The question accordingly arises whether, notwithstanding the right to a share in the non-agricultural properties of the family allowed to her under the Hindu Women's Rights to Property Act, 1937, the widow of a deceased coparcener is still entitled to any right of maintenance as under the ordinary Hindu law. It seems to us that the question must be answered in the affirmative. It may well be that, if the Act conferred upon the widow a right of succession in respect of all her husband's property, the right of maintenance allowed to her under the ordinary Hindu law as compensation for her exclusion from inheritance would no longer be available, although nothing is said in the Act about rights of maintenance. But that is not the position according to the decision of the Federal Court already referred to. (In rets : the Hindu Women's Rights to Property Act) . The widow still stands excluded from succession to agricultural land in the absence of provincial Legislation on parallel lines in respect of such land. It cannot, therefore, be said that the reason of the right has ceased to exist and the right is gone. It would be strange and anomalous if, as a result of an enactment designed to give better rights' to the widow, she were to be placed in a worse position by being deprived of her preexisting right of maintenance, with consequence which may well prove disastrous where the bulk of the husband's joint or separate property consists of agriculural land.
It may be of interest to note that this decision was also referred to in Rathansabapati Pillai v. Saraswathiammal (1953)2 M.L.J. 459. Thus the decision in Sarojini Devi v. Subramniam : AIR1944Mad401 is a complete answer to the submission of the learned Counsel for the appellants.
12. The result is, I find no merits in the second appeal, and the same is dismissed with costs. No leave.