NAGENDRA PRASAD Vs. KEMPANANJAMMA

JUDGEMENT

(1.) We have had the benefit of reading the judgment proposed to be delivered by our brother Shelat, J., but regret that we are unable to agree with him. The facts of this case have already been given in his judgment and need not be reproduced.

(2.) As held by him, it is correct that until the Hindu Law Women's Rights Act, 1933 (Mysore Act X of 1933) (hereinafter referred to as "the Act") was passed, no female in Mysore had a right to share in joint Hindu family property under the Mitakshara Law as applied in that area. The right of Hindu woman in a joint Hindu family was confined to maintenance, residence and marriage expenses. The Act for the first time enlarged her rights. The Mysore High Court in Venkatachaliah v. Ramalingiah, (1944) 49 Mys HCR 456 stated this principle and, in our opinion, correctly. It was also correctly held by that Court that the object of Section 8 of the Act is to confer larger rights on females by giving them a share in the joint family property.

(3.) It is, however, to be noticed that S. 8, in conferring rights on females, envisages two different circumstances in which that right is to accrue to them. The first circumstance is when there is a partition of the joint family property between any coparceners, and the other is when, though there is no partition, the entire joint Hindu family property passes to a single male owner. It is in both these cases that the Act envisages that the property may lose its character of coparcenary property, because the coparcenary body may cease to exist on partition or on survival of a single male member of the family. It seems that the purpose of S. 8 was to safe-guard the interests of females in such contingencies where the coparcenary property is to disappear either by partition or by survival of a sole male member. The legislature seems to have felt that, in such circumstances, it was not safe to leave the females entitled to maintenance, etc. at the mercy of the individuals who may receive property on partition or at the mercy of the individual in whom absolute rights in the property might vest as a result of sole survivorship. For the first contingency, when there is a partition, provision was made in clauses (a), (b) and (c) of sub-section (1) of S. 8 under which a right was granted to the females to ask for separation of their shares if the male members decided to have a partition. Unless the male members themselves sought a partition, it was not considered necessary to grant any right to the females themselves to ask for partition, because the property could not lose its character as coparcenary property until the male members of the family sought partition. The right of the females under clauses (a), (b) and (c) of Section 8 (1), therefore, only arises as a partition between the male coparceners forming the joint Hindu family.