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Soliappa Mudaliar and anr. Vs. Meenakshi Ammal and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtChennai High Court
Decided On
Reported in(1970)1MLJ383
AppellantSoliappa Mudaliar and anr.
RespondentMeenakshi Ammal and ors.
Cases ReferredSukh Ram v. Gauri Shankar
Excerpt:
- - further, if there was such an arrangement, the best witness, is the first defendant. it is unnecessary to elaborate the point further because i am satisfied that the finding arrived at by the lower appellate court is correct and does not call for interference in second appeal. a series of recent decisions of the supreme court had to deal with the scope of section 14 of the hindu succession act and it is now well settled that for section 14 to apply, it is not necessary for a hindu female either to make a demand upon the other members of the family for partition or to follow up that demand by partition and separate possession of her husband's share. sabujpari [1967]1scr7 ,as well as in sukh ram v......death, his widow pachayammal became entitled to a half share, that under section 14 of the hindu succession act of 1956 she became an absolute owner, and on her death on 19th december, 1956 that share devolved upon her son ramaswami and her daughters, plaintiffs 1 to 4 in the suits. in other words, the plaintiffs filed the suit to work out their rights as the heirs of pachayammal under the hindu succession act in respect of her husband's share; which devolved upon pachayammal and became absolute after the hindu succession act came into force. the suit was resisted by the defendants on the ground that at the time of the partition in the year 1950, pachayammal waived her right to a share and was content and agreed to take maintenance from her son ramaswami in view of the fact that.....
Judgment:

K.S. Ramamurthi, J.

1. Defendants 3 and 4 are the appellants in this second appeal. The brief facts of the case are as follows. One Pongali and Nanjappa were members of a joint family. Pongali died on 14th September, 1950, leaving behind him his widow Pachai Ammal, son Ramaswami and four daughters,--the plaintiffs in the present action. Pachayammal died on 19th December, 1956 and Ramaswami died in 1959. The first defendant is Ramaswami's widow and the second defendant is her daughter. On nth December, 1950, Nanjappa and Ramaswami effected a partition of the joint family properties at which for Ramaswami's share about 9 acres were allotted, which included the suit properties of an extent of 7 acres 70 cent. It will be noticed that at that time the Hindu Women's Rights to Property Act of 1937 was in force and Panchayammal would be entitled to a half share in the right of her husband under Section 3 (2) of the said Act. But at that partition no provision was made for her and the entire half share belonging to Pongali's branch was allotted to Ramaswami. After Ramaswami's death on October, 1959, his widow and daughter (defendants 1 and 2) sold the suit properties in April, 1962 to defendants 3 and 4 for Rs. 7,900. In May, 1963, the daughters of Pongali filed the suit for partition claiming 4/10th share in the suit properties. Their contention is that on Pongali's death, his widow Pachayammal became entitled to a half share, that under Section 14 of the Hindu Succession Act of 1956 she became an absolute owner, and on her death on 19th December, 1956 that share devolved upon her son Ramaswami and her daughters, plaintiffs 1 to 4 in the suits. In other words, the plaintiffs filed the suit to work out their rights as the heirs of Pachayammal under the Hindu Succession Act in respect of her husband's share; which devolved upon Pachayammal and became absolute after the Hindu Succession Act came into force. The suit was resisted by the defendants on the ground that at the time of the partition in the year 1950, Pachayammal waived her right to a share and was content and agreed to take maintenance from her son Ramaswami in view of the fact that the income from the properties was very negligible. The further contention of the defendants was that as Pachayammal had not worked out her rights by demanding her share, on her death, the entire properties passed on to Ramaswami by survivorship and there was nothing to which the plaintiffs could make a claim as the heirs of Pachayammal.

2. The trial Court accepted the case of the defendants that at the time of the partition in 1950 Pachayammal had agreed not to take any share in the properties, but was content to receive maintenance from her son. The trial Court also upheld the defendants' plea that as Pachayammal did not work out her right by demanding a partition, the entire properties passed on to Ramaswami, the son, by survivorship and that the plaintiffs had no right whatsoever. But, on appeal, the lower appellate Court came to a contrary conclusion on both the points. Hence the appeal by defendants 3 and 4.

3. The conclusion arrived at by the lower appellate Court that Pachayammal did not agree to receive maintenance waiving her right to a share is correct and supported by adequate and satisfactory evidence. I see no ground for interference in second appeal.

4. The main point to mention is that prior to the suit a notice was issued on behalf of the plaintiffs demanding partition to which the defendants sent a reply. (Exhibits A-4 and A-5 are the notice and the reply). In that reply no reference whatsoever was made to the mother agreeing to take maintenance giving up her right to a share in the property. On the other hand, a totally inconsistent and extreme case was put forward that the mother was not entitled to any right in the properties at all and that they belonged to Nanjappa and Ramaswami. It is obvious that if there was such an agreement in pursuance of which the mother agreed to take maintenance and gave up her right to a share in the properties, that would have been mentioned in the forefront in the reply notice. Even in the written statement which was filed in the first instance, there was no such plea. It was only in the supplemental written statement filed that this point was raised in a vague form. This itself shows that it is an after-thought. Further, if there was such an arrangement, the best witness, is the first defendant. She has not been examined and the necessary adverse inference has to be drawn. It is unnecessary to elaborate the point further because I am satisfied that the finding arrived at by the lower appellate Court is correct and does not call for interference in second appeal.

5. It only remains to deal with the point of law whether the husband's share in the joint family properties to which Pachayammal became entitled under the Hindu Women's Rights to Property Act of 1937 survived to her son Ramaswami since Pachayammal did not work out her right by claiming partition. There is absolutely no substance in this contention and in my view the matter is simply unarguable. A series of recent decisions of the Supreme Court had to deal with the scope of Section 14 of the Hindu Succession Act and it is now well settled that for Section 14 to apply, it is not necessary for a Hindu female either to make a demand upon the other members of the family for partition or to follow up that demand by partition and separate possession of her husband's share. The Hindu Women's Right to Property Act of 1937 had invested the widow of a member of a coparcenery with the interest which the member had at the time of his death and this interest of the widow arises not by inheritance nor by survivorship, but by statutory substitution. She is introduced into the coparcenery and between the surviving coparceners of her husband and the widow there arises community of interest and unity of possession. On that account, the widow does not become a coparcener and because of this statutory substitution of her interest in the coparcenery property in the place of her husband, the right which the other coparceners have under Hindu Law of taking her husband's interest by the rule of survivorship, remains suspended so long as that estate enures. It is open to the widow not to demand partition or she can be demanding partition make her interest definite. If she does not seek partition, her interest will merge into the coparcenary property on her death. But if she claims partition she is severed from the other members, her interest becomes definite interest in the coparcenery property and the right of the other members of the coparcenery to take the interest by survivorship becomes extinguished. The result is that when the widow dies after having severed her interest by making a demand for partition, the interest in the coparcenery property pertaining to the husband's share which became vested in her, will devolve upon the heirs of her husband. It is sufficient to refer to the latest decision of the Supreme Court in Satraghan v. Sabujpari : [1967]1SCR7 . Before this decision, there was divergence of judicial opinion. Some Courts took the view that the property obtained by a widow of a deceased coparcener even after a suit for partition would on the death of the widow revert to the coparcener and would not devolve upon the heirs of the husband on the reasoning that the demand for partition does not make the share of the deceased husband his separate property so as to let in his heirs after the widow's death. The other view was that there will be no reverter to the other coparceners if the widow had divided herself from the other members of the coparcenery after making a demand for partition and that on her death, the succession would be traced to her husband on the basis that the property was his separate property. In the decision cited above, the Supreme Court after referring to the divergence of judicial opinion approved the following statement of the law of Subba Rao, J., as he then was, in the Full Bench decision in Parappagari Parappa v. Parappagari Nagamma : AIR1954Mad576 :

The following observation made by Subba Rao, J., in delivering the judgment of the Full Bench in Parappagari Parappa v. Parappagari Nagamma : AIR1954Mad576 , in our judgment correctly set out the effect of the Act on the question under review:She could ask for partition and separate possession of her husband's share. In case she asked for partition, her husband's interest should be worked out having regard to the circumstances obtaining in the family on the date of partition. If she divided herself from the other members of the family during her life time, on her demise the succession would be traced to her husband on the basis that the property was his separate property. If there was no severance, it would devolve by survivorship to the other members of the joint Hindu family'.

The dispute in the case before the Supreme Court arose before the Hindu Succession Act of 1956 came into operation. One Babuji died in 1934 and on his death in October, 1937, his widow Chando Kuer filed a suit for partition and separate possession of her husband's share, her case being that her husband got separated and divided even during his life time but that plea of partition was found against. Even so, the widow would be entitled to her husband's share under the Hindu Women's Right to Property Act of 1937. During the pendency of the suit, the widow died in 1951 and the suit was prosecuted by her daughters. The surviving coparceners resisted the suit and contended that the suit came to an end the moment the widow died and that the right of survivorship which was suspended during the life time of the widow became revived on her death and reverted back to the surviving coparceners. The Supreme Court negatived the claim of the surviving coparceners and approved the view expressed by Subba Rao, J., as he then was, in Parappagari Parappa v. Parappagari Nagamma : AIR1954Mad576 . Learned Counsel for the appellant relied upon this decision of the Supreme Court as supporting his contention that as the widow Pachayammal died without a demand for partition, her share had reverted to the son. I am unable to accept this contention as in the instant case, the widow died after the Hindu Succession Act of 1956 came into force. As observed already, the moment the Hindu Succession Act came into force, the widow became the absolute owner of her husband's share whether or not she had already made a demand for partition upon the other coparceners. For Section 14 to come into operation, it is enough if she had a mere right to take the husband's share. The right conferred upon her under the statute of 1937 is by its own force sufficient to make her the absolute owner; she need not even have made a demand for partition nor was it necessary for her to follow the demand for partition by securing separate possession of her husband's share. The recent decisions of the Supreme Court have held that her mere ownership of the husband's share by reason of the statute without anything more is sufficient to attract Section 14 of the Hindu Succession Act. That ownership of the share is regarded as ' property possessed by the widow ' at the time of the commencement of the Succession Act. Physical possession of the husband's share is not necessary. Her right to obtain possession is sufficient within the meaning of Section 14. In Mangal Singh v. Rattno : [1967]3SCR454 , the Supreme Court has observed as follows at page 1790:

It appears to us that the expression used in Section 14 (1) of the Act was intended to cover cases of possession in law also, where lands may have descended to a female Hindu and she has not actually entered into them. It would, of course, cover the other cases of actual or constructive possession. On the language of Section 14 (1), therefore, we hold that this provision will become applicable to any property which is owned by a female Hindu, even though she is not in actual, physical or constructive possession of that property.

It is implicit in Section 14 that after the Hindu Succession Act came into force the widow becomes a fresh stock of descent and inheritance will have to be traced to her and only to her. This Act applies notwithstanding any other rule or interpretation of the Hindu Law in view of the overriding effect of the Act as specified in Section 4. Section 15 contains a special provision which lays down the rules of succession to property belonging to a female Hindu and that contains specific provision enumerating the heirs and the mode of devolution in the case of property inherited from the parent's side and in the case of property inherited from the husband's side. Section 16 is the supplementary provision as to how the distribution should take place. In the face of these specific provisions, I am not able to conceive how any claim for survivorship could be advanced under the Hindu Law especially when Section 4 emphasises the overriding effect of the provisions of the Hindu Succession Act. The idea of survivorship cannot be fitted into the scheme of the Act. For instance Section 19 provides that when 2 or more heirs succeed they take only as tenants in common and not as joint tenants. Section 6 of the Act provides for succession of the interest of coparcener when he dies as a member of a coparcener.

6. Language of Section 14 is very wide and general. It applies to any property possessed by a Hindu female and contains no limitation about the character of the property or the manner in which the Hindu female acquired the property. The only question is that when Pachayammal died in December 1956 did she not die leaving behind property answering the description of ' property of a Hindu female dying intestate within the meaning of Section 15 '. The matter does not admit of any argument contra. The argument that Pachayammal had only the same interest as that of her husband that even though the husband was the absolute owner on his death, the property survived to the coparceners and that the same consequences should ensue even when the widow died after Succession Act came into force has no substance as it fails to take note of the impact of the provisions of the Succession Act. In the case of survivorship arising on the death of a coparcener, the law applicable is ordinary Hindu law, but after the Hindu Succession Act, the law of succession to the female's property is to be found in Section 15 of the Succession Act which rules out any theory of survivorship.

7. At this stage, I may refer to the decision of the Supreme Court in Sukh Ram v. Gauri Shankar : [1968]1SCR476 . That decision dealt with property acquired by a widow of a Hindu joint family governed by the Benares School of Hindu Law under which a Hindu can alienate his interest in the joint family property subject to certain restrictions. The argument was that in the case of a widow of such a Hindu governed by the Benares School of Hindu Law, she will not become an absolute and full owner under Section 14 of the Act. This argument was not accepted and the Supreme Court held that the interest to which the widow became entitled to on the death of her husband under the Hindu Women's Rights to Property Act, 1937, was indisputably her property within the meaning of Section 14 of the Hindu Succession Act of 1956 and when she became full owner of that property, she acquired a right unlimited in point of user and duration and uninhibited in point of disposition.

8. My attention was also drawn to a recent decision of Natesan, J., in S.A. No. 796 of 1965. There an identical argument was advanced that if the widow (though after the Hindu Succession Act came into force) died without demanding a partition from the coparceners, the property would pass by survivorship to the coparceners and the heirs of the widow would not be entitled to the same. The learned Judge rejected this argument and held that the interest of the female Hindu became absolute under Section 14 of the Hindu succession Act for all purposes, that inheritance would have to be traced only to her and that there was no right of survivorship. This decision contains a discussion of the scope of the Supreme Court judgments in Satrughan v. Sabujpari : [1967]1SCR7 , as well as in Sukh Ram v. Gauri Shankar : [1968]1SCR476 . With respect, this decision lays down correct law.

9. For all these reasons, I have no hesitation in holding that the plaintiffs are entitled to 4/10th share in the suit properties. The Second Appeal fails and is dismissed. No costs. No leave.


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