L BAPPU AYYAR Vs. RENGANAYAKI

JUDGEMENT

(1.) This is an appeal against the decree and judgment of the Subordinate Judge of Tiruchirapalli in a suit for partition and separate possession of a half share in the properties comprised in schedules A, A1, B, C, F, F1 and F2 of the plaint and for possession of the properties comprised in Schdules D and E or for Rs. 1,996 being their value and for future mesne profits at Rs. 4,000 per annum and decreed in part. The appellants in this appeal arc defendants 1 and 5, The plaintiff is the widow of one Subbaraya Iyer who was the son of defendant 1, L. Bapu Iyer. Defendant 2 is the daughter of Bapu Iyer while defendants 3 and 4 are the minor sons of defendant 2. Defendant 5 Seethalakshmi Animal is another daughter of defendant 1. At the time of death of Subbaraya Iyer on 24-8-1947, Bapu Iyer and his son Subbaraya Iyer were the sole undivided members of a joint Hindu family, defendant 2 and defendant 5 having been married out of their family sometime prior to that. The plaintiff was married to Subbaraya Iyer as his third wife in 1940. She, on the strength of the Hindu Women's Rights to Property (Extension to Agricultural Lands) Act, Madras Act 26 of 1947, has filed the present suit for recovery of possession of a half share in the entire joint family properties. As a result of the passing of the Hindu Women's Rights to Property Act, Central Act 18 of 1937, as amended by Act 11 of 1938, it was provided by Section 3, Sub-section (2) that when a Hindu governed by any school of Hindu Law other than the Dayabhaga School or by customary law dies having at the time of his death an interest in a Hindu joint family property his widow shall, subject to the provisions of Subsection (3), have, in the property, the same interest as he himself had. Subsection (3) stated that any interest devolving on a Hindu widow under the provisions of Section 3 shall be a limited interest known as a Hindu Woman's Estate, provided, however, that she shall have the same right of claiming partition as a male owner.

(2.) The Federal Court of India in 'Hindu Women's Rights to Property Act, 1937, In the matter of ATR 1941 FC 72 at p. 74 (A), held that in view of the provisions of the Government of India Act of 1935, by the time the Central Legislature came to pass Act 18 of 1937, devolution of agricultural lands had become a provincial subject and consequently the scope of Act 18 of 1937, as amended by the Act 11 of 1938 did not extend to succes-sion to agricultural lands. Various Provinces took up this matter and passed necessary Acts by which the operation of the Hindu Women's Rights to Property Act was extended to agricultural lands as well, in their respective Provinces. Thus, for example, the Bombay Act 17 of 1942, the Bihar Act, 6 of 1942, and the United Provinces Act 11 of 1944 came to be passed. The Madras Legislature also finding that it was not expedient to have two rules of succession one with regard to agricultural lands and the other for other species of property, passed the Madras Act 26 of 1947 to remedy the decision of the Federal Court. The Bill which ultimately became the Act, namely, the Madras Act 26 of 1947, was published in the Fort St. George Gazette on 26-11-1947 and it became law on 18-12-1947 having received the assent of the Governor on that date. By Section 2 of this Act the term "Properly" in the Hindu Women's Rights to Property Act, 1937 and the Hindu Women's Rights to Properly Act (Amendment Act) 1938 was made to include "agricultural land" as well. Section 3 stated that "nothing contained in this Act shall apply to the property of any Hindu dying inleslate before the 26th day of November 1946" and there was an explanation added to Section 3 which was to the effect that a person shall be deemed to die intestate within the meaning of the section in respect of all property of which he has not made a testamentary disposition which is capable of taking effect. It is, therefore, clear that by the Madras Act 26 of 1947 the Central Acts, namely, the Hindu Women's Rights to Property Act, 1937, and the Amending Act, the Hindu Women's Rights to Property Act (Act 11 of 1938) were extended in their operation to all kinds of property, whether agricultural or otherwise, in which the deceased male member had a right. The learned Subordinate Judge, therefore, held that in view of Section 3 of the Madras Act 26 of 1947, the plaintiff is entitled to the right of partition and to recover possession of her husband's half share in the joint family properties. There were also disputes with respect to what the divisible properties were, and the points that arose in those disputes were decided partly in favour of defendants 1, 2 and 5 who claimed rights in them. As stated already, App. No. 556 of 1950 is by defendants 1 and 5, and App. No. 576 of 1950 is by the defendants 2 to 4 against the conclusion by which certain properties in F-2 schedule of the plaint were field to be partible. Appeal No. 204 of 1951 is by the plaintiff regarding properties mentioned in F, F-1 schedules and Rs. 40,000 cash. As my learned brother has exhaustively considered the correctness of the decision of the learned Subordinate Judge on the questions of fact raised before him and as I am in complete agreement with the conclusions arrived at by him, I do not wish to discuss those points argued in the appeal. I would content myself with expressing my opinion on two questions of law which have been exhaustively argued by Mr. K. V. Venkatasubramania Iyer on behalf of the appellants in App. No. 556 of 1950, and by Mr. S. Hamachandra Aiyar on behalf of the plaintiff, appellant in App. No. 204 of 1951.

(3.) The argument of Mr. K. V. Venkatasubramania Iyer is that despite Section 3 of Act 26 of 1947, the Act has no retrospective application and therefore, the plaintiff cannot have any rights to partition in the joint family properties of her husband as he died on 24-7-1947 nearly four months before the Act came into force. It would be advantageous to compare Section 3 of the Madras Act 26 of 1947 which corresponds to Section 4 of the Central Act 18 of 1937. While in Section 4 of the Central Act it was stated that nothing in the said Act would apply to the property of any Hindu dying intestate before the commencement of the Act, Section 3 of the Madras Act fixed the date 26-11-1946, and provided that nothing contained in the Act shall apply to the property of any liindu dying intestate before 26-11-1946, though the Act came into force only on 18-12-1947. In both the Acts the section is put in the negative form. That is, the declaration is that the provisions of the Act shall not apply if the death took place before a particular date and not that the provisions of the Act shall apply if the death took place after a particular date. 1 am mentioning this because the learned counsel for the appellants has laid great stress that a positive provision cannot be inferred from a negative statement in an enactment. The other argument is that both sections, Section 4 of Act 18 of 1937 and Section 3 of Act 26 of 1947, shall apply only to separate properties which the deceased person could have disposed of by a will and not to his interest in joint family properties which under the customary law, he cannot bequeath by means of a will. I shall express my opinion on this aspect of the matter later on.