M. Natesan, J.
1. Defendants 3 and 4 have preferred this second appeal from the concurrent decision of the Courts below giving the plaintiff a decree for partition and separate possession of a 5/8th share in the suit properties.
2. The suit properties originally belonged to one Chitrasenan Naicker, who died in May 1953, leaving behind him three widows, defendants 1 and 2 in the suit, and another Pappammal, who died in 1959 after the Hindu Succession Act of 1956. The plaintiff is the adopted son of the said Chitrasenan Naicker and in that right claimed partition and possession of his share in the properties. In the Courts below, the adoption was disputed. But it has been established by unimpeachable evidence and corroborated by a registered deed of adoption Exhibit A-14, dated 19th July, 1945. The plaint alleged that in collusion with the two surviving widows defendants 1 and 2, who had become absolute owners of their respective shares in the. suit properties under the Hindu Succession Act of 1956, hereinafter referred to as the Act, defendants 3 and 4 were in enjoyment of the whole of items 1 to 3. With reference to the possession of other items of properties certain other persons defendants 5 to 7, were impleaded as parties. They have remained ex parte and no-question arises with reference to those items. In answer to the plaintiff's claim, it was contended by defendants 3 and 4 that items 1 to 3 were jungle lands in Sirumalai Hills and were sold to them by Chitrasenan Naicker himself orally for a consideration of Rs. 90 in May, 1953 and that ever since, they were in enjoyment of the lands. They pleaded that the sale was for family benefit and necessity and that they had effected improvements for considerable amount to the properties. Defendants 1 and 2 by their written statement supported the claim of defendants 3 and 4, besides disputing the adoption. But at the trial defendants 1 and 2 also remained ex parte. The first defendant died pending suit and the plaintiff as heir claimed her interest in the suit properties also, and he has been given a decree in all for 5/8th share. There has been no discussion before me as to the quantum of share which the plaintiff is entitled, in the properties. The suit has been instituted on 30th July, 1960 and so, no question as to adverse possession can arise by virtue of the possession of items 1 to 3 by defendants 3 and 4. The contest in the case was as to the truth and validity of the oral sale of items 1 to 3 claimed by defendants 3 and 4. The Courts below, on a careful consideration of the evidence, have come to the conclusion that the oral sale is not true. They have found that defendants 3 and 4. did not enter on the possession of the disputed items before 1955, and that they must have entered on the properties long after the death of Chitrasenan Naicker by some collusive arrangements with the widows, defendants 1 and 2. It has also been found that the properties must have been worth about Rs. 1,500 at the time of the alleged sale for Rs. 90. The finding against the oral sale on ample and. substantial evidence is not amenable to reconsideration in second appeal.
3. In second appeal as a question of law the learned Counsel for the appellants contends that the plaintiff cannot claim more than half share in the suit properties as Act XXX of 1956, according to Counsel does not affect the law of survivorship under which co-widows of a Hindu took his property. It is submitted, that the Act does not specifically abrogate or extinguish the rule of joint tenancy and survivorship under which the co-widows of a Hindu took his properties. The argument is that as long as the second defendant, the surviving co-widow, is alive and is not claiming the properties in the possession of defendants 3 and 4, the plaintiff cannot claim shares in the properties by inheritance on the death of the other two widows and his share must be limited to his half share in the properties. This point was not argued in the Courts below. However, it could be considered here being a pure question of law. But there is an obstacle to the appellants claiming any relief in the second appeal as framed relying on the second defendant's title, assuming that the contention could be maintained. The second defendant has not been made a party-respondent to the appeal. The plaintiff has been given a decree against her. Admittedly even, the title to the property is in her. It may be that the appellants are in possession, but they could maintain that possession only on her having title and right to. possession of the whole. But the decree against the second defendant for partition and possession has become final, and in her absence, the appellants cannot question the validity of the decree against her. They do not have any right of their own or even as transferees pendente lite from her, to fight out her case an have the benefit of it. The plea is only in the nature of jus tertia and it falls with the decree against her which has become final. However, I shall consider; the point raised. It has been made a ground of second appeal. The question is an interesting one, though not difficult and deserves examination. But the matter, I find is not res Integra.
4. On this question, we have first the decision in Sundarammal v. Sadasiva Reddiar : AIR1959Mad349 no doubt a decision of a single Judge, but of weighty authority, of Ramachandra Ayyar, J., as he then was. A point was raised in that case that as the co-widow took a joint estate, a suit in ejectment by one only of the co-widows could not be maintained. Dealing with the contention, the learned Judge observed at page 350:
Under the Hindu Succession Act a joint estate is not recognised as Section 19. of the Act would show. I am therefore, of opinion, that after coming into force of Act XXX of 1956 the position of co-widows is that of co-tenants in respect of absolute right to which they are entitled under the Act. If so much is conceded the rest becomes easy. The plaintiff will be in the position of a co-tenant in regard to her husband's estate which was vested in her absolutely by the passing of Act XXX of 1956. It is well settled that a co-tenant can in her own right institute a suit for the ejectment of a trespasser.
Again, in Rathinasamy v. Nagammal I.L.R. (1963) Mad. 133, the learned Judge, Anantanarayanan, J., the present Chief Justice, a he then was, applied Section 14 (1) of the Hindu Succession Act to co-widows. In that case two widows of the last male-holder, who died in 1931, entered into an arrangement inter se between themselves, one of the widows a certain Poornathachi, taking the property concerned in the suit for her life time. The property had to go to the co-widow and her daughter after her. The widow,. Poornathachi who took the property for her life, died after the Hindu Succession Act came into force, settling the property she got under the arrangement, in favour of a third person. It is the validity of this settlement after the lifetime of Poornathachi that was canvassed. Of course the question mooted was not whether Section 14 of the Act would at all apply, but whether Section 14 (1) or Section 14 (2) applied on the facts of the case. The Courts below had negatived the application of Section 14 (1) of the Act in the view that the widow had by her own volition entered into an arrangement restricting her interest in the property for her life.. The learned Judge upholding the settlement referred to Section 14 (1) and observed thus (at page 134):
In this view, it is clear that though the two widows entered into some kind of arrangement for the convenient enjoyment of the estate of the late Singara Konar, Poornathachi was in legal possession of at least her half share or interest in the suit property absolutely at the time of her death...In this view, Poornathachi would become the absolute owner of her undivided half interest in the suit property at the time Act XXX of 1956 came into force.
5. The contention of Mr. K. N. Balasubramaniam, the learned Advocate for the appellants, is that there is no indication in the Act whether the right of survivorship as between the co-widows should continue or not after the Act. My attention was drawn by the learned Counsel to Section 4 of the Hindu Succession Act, which enunciates the overriding effect of the Act and it was submitted that it does not affect the operation of survivorship between co-widows. Learned Counsel argued that the rule of survivorship as between co-widows was not a rule of statutory law, for Section 4 (1) (b) to apply. Only under Section 4 (7) (b) laws inconsistent with the provisions of the Act ceased to apply. Under Section 4 (1) (a) except as otherwise expressly provided in the Act, any text, rule or interpretation of Hindu Law or any custom or usage as part of that law in force immediately before the commencement of the Act shall cease to have effect, with reference to any matter for which a provision is made in the Act. Learned Counsel submitted that no provision has been made in the Act for cessation of the rule of survivorship amongst co-widows for Section 4 (1) (a) to apply. Section 19, which deals with the mode of succession of two or more heirs and provides for co-heirs taking as tenants-in-common and not as joint tenants, it is contented, is only prospective. But the argument, in my view, ignores the nature of the interest which a co-widow took in her husband's property prior to the Act and the impact of Section 14 of the Act on that interest. Section 14 to the extent it operated provided for no implied exceptions. The overriding effect and full operation of Section 14 (1) which enlarged the limited estate conferred by Hindu Law on a woman to full ownership was restricted only by Sub-clause (a) of the section. Secondly, Sections 15 and 16, which lay down rules, of succession to the property of a female Hindu dying intestate and to the order of succession and the manner of distribution among heirs of a female Hindu has overriding effect notwithstanding any text, rule, or interpretation of Hindu Law or any custom or usage of Hindu Law.
6. Now let me examine the characteristics of the estate taken by co-widows, the property they had therein, to fix the impact of the Act thereon. The nature of the estate taken by the co-widows in thus denned in the recent decision of the Supreme Court, in Karpagathachi v. Nagarathinathachi : 3SCR335 .
Under the Hindu Law as it stood, in 1924, two widows inheriting their husband's properties took together one estate as joint tenants with rights of survivorship and equal beneficial enjoyment. They were entitled to enforce a partition of those properties so that each could separately possess and enjoy the portion allotted to her....Neither could without the consent of the other enforce an absolute partition of the estate so as to destroy the right of survivorship. But by mutual consent they could enter into any arrangement regarding their respective rights in the properties during continuance of the widows estate,....The interest of each widow in the properties inherited by her was property and this property together with the incidental right of survivorship could be lawfully transferred............ The widows were competent to partition the properties and allot separate portions to each, and incidental to such allotment, each could agree to relinquish her right of survivorship in the portion allotted to the other.
Prior to the Hindu Succession Act, where a Hindu died leaving two or more widows, they took the estate jointly and even when in joint possession any of them could alienate her undivided interest in her husband's property. But she had Only a limited interest, her interest did not enure beyond her life. Each of the widows could deal as she pleased with her own life interest. But she cannot alienate any part of the corpus of the estate by gift or will so as to prejudice the rights of the surviving widow or a future reversioner. Together acting, the co-widows could burden the reversioner with debts incurred for legal necessity. A close examination would show that the joint estate with rights of survivorship assigned to co-widows inheriting their husband's estate is just a consequence of the limited estate which a Hindu woman took in her husband's property prior to the Act. The co-widows took the property of their husband as a single heir, in a sense the husband's persona was said to continue in his widows and naturally all the widows together took his property as one estate. As long as the last of the widows survived, the husband's brothers or reversionary heirs had no interest in the estate. Their was a spes successonis. Succession opened only on the death of the last of the widows. In Bhugwandeen Doobey v. Myna Baee (1866) 11 M.I.A. 487, in the head-note the following passage occurs:
Where a childless Hindu dies, leaving two widows surviving, they succeed by inheritance to their Husband's property as one estate in co-parcenary, with a right of survivorship; and there can be no alienation or testamentary gift by one widow without the concurrence of the other.
Therein in the course of a detailed judgment Sir James William Colvile, J., observed at 515 and 516:
For the estate of two widows who took their husband's property by inheritance is one estate. The right of survivorship is so strong when the survivor takes the whole property to the exclusion even of, daughters of the deceased widow....They are, therefore, in the strict sense, coparceners, and between undivided coparceners, there can be no alienations by one without the consent of the other.
But manifestly the interest of the co-widows in their husband's estate is proprietory, though limited. Joint tenancy comes in when there is a vesting of lands on two or more persons in such a manner as to impart to the property with respect to all other persons than the persons in whom they vest the properties of single owner. As between themselves, the persons, who takes as joint tenants, have separate rights, but as against every-one else, they are in the position of a single holder. While the widow or widows, if there is more than one, represented the entire estate, still under the Hindu Law as it prevailed, succession had to be traced only from the last male holder. The rule of survivorship which existed between co-widows really follows from or is the practical result of the fact that on the coming to the end of the life estate of one widow succession will once again have to be traced to the husband, when the surviving widow or widows take the property.
7. In Jijoyiamba Bayi Saiba v. Kamakshi Bayi Saiba (1868) 3 M.H.C.R. 424, it is stated:
A partition converting the joint estate into an estate in severality, whenever either of the widows choose to insist upon it, quite incompatible with the right of survivorship to the whole property arising out of the joint estate for life and the surviving widow or widows being the nearest heir or heirs of the husband.
8. In Sarkar, Hindu Law, 8th Edition, at page 579, the principle of survivorship is thus explained:
It is no doubt true, that when the male heirs, take the Hindu widows' estate, the share which may on partition, be allotted to any one of them, will, on her death, during the life time of the others pass to the latter as being the then next taker or reversionary heir of the last male owner.
But this devolution is mistaken for passing by survivorship and consequently the tenancy of the female heirs is deemed to be an inseparable joint-tenancy in those cases in which they take the widow's estate-according to the Dayabhaga.
Whatever the incidents may be with reference to the property inherited by co-widows, whatever may be the limitation placed on it, clearly the interest of a co-widow in the property which she takes on the death of her husband, is certainly proprietory in character--see--Karpagathachi v. Nagarathinathachi : 3SCR335 . The property Held by a co-widow is indubitably property falling under Section 14 (1) of the Hindu Succession Act, even as the property taken by a single widow on inheritance to her husband. As each wife is equally entitled to succeed to her husband, all the wives take together as a single heir with survivorship.
The singular number ' wife ' in the text of Yagnavalkya, signifies the kind ; hence if there are several wives belonging to the same or different classes they divide the property according to the shares prescribed to them and take it.
9. The Explanation defining property for purposes of Section 14 (1) is very comprehensive in its scope and includes property acquired by a female Hindu by inheritance, devise, partition, etc. The Explanation includes property acquired in any other manner whatsoever. It cannot, in the face of the wide definition of property, be contended that the property held by co-widows, considered from the stand point of each one of the co-widows, is not property falling under Section 14 (1) of the Act. If they are possessed of the properties as the word possessed has been interpreted in several decision recently, that possession will certainly attract the operation of Section 14 (1) of the Act. Section 14 (1) predicates two requirements for the enlargement of the estate held by a female Hindu; (i) the property must have been acquired by her before or after the commencement of the Act and (it) it must be possessed by her. Where the acquisition confers on her only a limited estate, the Act enlarges it and confers on her full ownership in the property. The limited ownership given to a female owner under Hindu law is converted into an absolute estate with all powers of disposition. The widow's estate becomes an absolute estate in her hands inheritable by her own heirs, and not reverting to the heris of the last male holder.
10. The estate, thus, englarged in her hands if it has been undisposed of by her devolves on her heirs according to Sections 15 and 16. Succession to property of the female dying intestate has, therefore, to be traced under Sections 15 and 16. The rule of survivorship among co-widows though not expressly provided against, cannot operate as it is incompatible with the absolute heritable estate conferred. As provision for succession to the widow has been made, the over-riding effect of section. 4 (1) comes into operation. As pointed out earlier, survivorship among co-widows comes in as an incident of the limited ownership of the Hindu widow. Prior to the Act on the death of the co-widow whatever interest she had, survived, to the co-widow, as the co-widow was the husband's next heir. The Act has not only enlarged of the estate of the Hindu widow, but also provided for succession to the estate of the widow making her a stock of descent for property inherited by her. So, any text ,rule or interpretation of Hindu law in force before the Act has to yield before the Act operating in the manner provided therein. Section 4 (1) (a) has to be applied so as to make the express provisions of the Act effective. Provisions have been made against survivorship by Section 15 and the operation of Section 15 has been facilitated by conferring an absolute heritable estate on the widow and making her the full owner by Section 14 (1) of the Act.
11. It follows that on the coming into force of the Hindu Succession Act (XXX of 1956) two or more female heirs taking jointly with rights of survivorship become full owners; their joint tenancy becomes converted into a tenancy in common in equal shares to conform to the full rights of ownership and the rules of succession contained in Sections 15 and 16 of the Act. On the death of a co-widow after coming into force of the Act, her heirs under the provisions of the Act succeed to her share in the property.
12. In the circumstances, the three widows of Chitrasenan Naicker became full owners of the properties they inherited on the death of their husband, and became tenants-in-common. When Pappammal died in 1959, there was no survivorship to her interest by the other co-widows. The plaintiff inherited as her heir. Even so, the plaintiff inherited the share of Kuppammal, who died pending suit. It follows that defendants 3 and 4 cannot rely upon the existence of any outstanding interest in the properties in the second defendant in excess of her own share by her surviving her co-widows.
13. The only other question that calls for; consideration is the claim for improvements put forward by defendants 3 and 4. The trial Court has estimated the improvements that could be related to the plaintiff's share at Rs. 750. The plaintiff became a major only in 1958 and it is pointed out that any improvements made must have been earlier. They were trespassers and the finding is that they had no good faith as they were fully aware of the fact that the plaintiff was the adopted son of Chitrasenan Naicker. They were trespassers on the property with the acquiescence of defendants 1 and 2, who the learned Subordinate Judge observes were more interested in seeing that the plaintiff got nothing. They had been on the property from 1955 and the plaintiff had claimed no mesne profits prior to suit. He has been content with the profits pendente lite. Having regard also to this aspect of the matter, the Courts below rightly negatived the claim of defendants 3 and 4 for improvements.
14. In the circumstances, the second appeal fails and it is dismissed with costs. No leave.