NAGARATHINATHACHI Vs. KARPAGATHACHI

JUDGEMENT

(1.) This is an appeal by the defendant in O. S. No. 26 of 1954 on the file of the District Court, Nagapattinam, against the decree and judgment; therein. The appellant's father Sivasubramania Pillai, who was possessed of substantial properties, died in the year 1924 leaving behind him two widows Thalai Achi and Karpagathachi (the respondent), and a daughter Nagaratnam (appellant) born through the former, Sivasubramania Pillai's mother was also alive at the time of his death. About three years after his death, his mother and his two widows went on a pilgrimage to Banares. The expenses incurred during the trip created friction between the widows. Thialai Achi who was in possession of the properties accused her co-widow of extravagance. The other could not perhaps tolerate the criticism and as a consequence misunderstandings arose. The respondent, the junior widow, thereupon approached D.W. 1, Manickam Pillai, a trusted friend of her deceased husband, for effecting a division of the properties left by her husband. It is the appellant's case, and this is spoken to by Manickam Pillai whose evidence on this has not been the subject of any cross- examination, that Thaialai Achi was agreeable to effect a partition if she were allowed to take what was allotted to her absolutely: so that in the event of her death, her daughter might obtain the same. The respondent in her evidence has, however, denied that Thailai Achi made any such stipulation. We shall have to advert to this matter later. Manickam Pillai and two others brought about a settlement between the widows as a result of which a partition arrangement came into existence. Admittedly the arrangement was oral. In pursuance of it lots were cast in regard to the items of properties that were to be divided. Two lists of properties were prepared in accordance with the, result of such casting of lots, and they were signed by both the widows; each was given the list recording what fell to her share. Ex. A. 1 and Ex. B. 45 are respectively the lists of properties that fell to the share of Karpagathachi and Thialai Achi. The terms of the agreement recorded therein are identical and it will he useful at this stage to set out the relevant portion of Ex. B. 45 as a typical one: "Partition deed entered into on 14th July, 1927, between us two persons, namely, (1) Thialai Achi and (2) Karpagathachi, wives of R. Sivasubramania Pillai, residing at Karappur Manthaivatta Mayuram taluk...... (properties listed and set out)...... In accordance with the chit cast, Thialai Achi wife of Sibasubramania residing at Karuppur shall take the nanja, house and ground cattle shed, cattle, pathway for men, cattle and cart and shed where dried dung cakes are stored mentioned in the list and she shall pay the government kist for the aforesaid properties from the current fasli 1337 and enjoy them. (sd. in Tamil) Khaiyalai Achi (sd. in Tamil) Karpakathachi." Thailai Achi and Karpagathachi took possession of the properties that respectively fell to their share and began enjoying the same. Patta was not, however, transferred; not much significance can be attached to such omission as the partition itself has been admitted. It is clear from the evidence of Manickam Pillai consistent, as it is with probability, that legal advice was taken at the time of partition; the widows must have been made aware that their estate could not enure beyond the lifetime of the survivor of the two. This is also clear from the three wills subsequently executed by Thaialai Achi (Ex. B. 1, B. 2 and A. 5), who besides what she obtained at the partition, had other properties of her own. She describes herself therein as the absolute owner of the latter set of properties; there is no such description regarding the former. Thaialai Achi died on 26-8-1954. Karpagathachi then instituted the suit out of which this appeal arises for a declaration of her title and for recovery of possession of the proper-ties covered by Ex. B. 45, from the appellant.. The suit was resisted by the appellant, on the ground that under the partition, Thaialai. Achi had obtained an interest in the properties which would enure for the lifetime of Karpagathachi and that interest, an estate pur autre vie, would devolve on her own heir, the appellant, for the duration of the life of the other widow. The learned District judge appears to have been under a misapprehension that a partition between two Hindu women who inherited a joint estate by which each relinquished her right of survivorship to the other in the event of the latter dying earlier, could only exist where they purported to divide the property conferring absolute powers on each other. He held that there being no proof of any absolute estate having been given under the partition, the widows could not be held to have divided the properties so as to preclude the surviving widow from obtaining what fell to the share of the other on the latter's death. The suit was, therefore, decreed. Thialai Achi's daughter, the defendant, has appealed.

(2.) As Thaialai Achi died before the Hindu Succession Act 1956, came into operation, the controversy has to be decided on the law as it existed prior to the enactment., The rules which govern the case of a partition between cowidows are well settled and but for the fact that Mr. Kuppuswami Iyer, learned counsel appearing for the respondent disputed the correctness of the decided cases which recognised a power in joint female heirs to give up at partition the right of survivorship inter se it would have been unnecessary to restate them.

(3.) The law on the point can be stated thus. Where a sonless Hindu dies leaving a plurality of widows, the latter succeed to his estate as joint heirs with a right of survivorship inter se. Although the widows represent the estate completely in the sense, that no other persons has any pre-sent interest therein along with them, they Would only have a limited right to the property--an estate which is compendiously known as a "woman's estate" under the Hindu Law. Broadly stated such an estate can be said to consist of two parts (1) a right to enjoy the usufruct till the last surviving widow dies, (2) a power in the widows to alienate their husband's property for necessity or benefit of the estate. As the right of the widows is limited, succession to the estate of the last male holder will take place after the death of the last survivor among them. But till then no reversioner has got any interest in the property left by the last maleholder. Therefore, the duration of the period of the widows' estate will be till the last of them dies. So far as the reversioner is concerned, the estate can be represented only by all the widows acting together, and no alienation of the estate even for necessity would bind him unless all the widows act jointly. But in regard to the enjoyment of the usufruct, there is and can be no such limitation.