PERAMATHA Vs. RAMASWAMI

JUDGEMENT

(1.) THIS appeal arises under the Letters Patent from the judgement Alagiriswami, J., who, concurring with the first appellate court, dismissed the second appeal by the appellant who was the plaintiff. Her husband died intestate on 14 -7 -1952. She was the second wife and had two sons by him. Years back, as a result of misunderstandings between her and her husband, the appellant instituted maintenance proceedings under the Criminal P. C. and obtained a maintenance order. A suit brought by the husband to have that order cancelled, ended in a compromise which resulted in what we regard as a family settlement dated 24 -12 -1930. The substance of this document was that the husband and his son by his first wife should take certain properties and live as joint Hindu family and the second wife and the two sons by her represented by their mother as guardian should take certain properties mentioned in the schedule to the document and live as a separate family. Basing her claim on the Hindu Women's Rights to Property Act, 1937, she brought the suit out of which the second appeal arose for partition and separate possession of the share of her husband in the joint family consisting of himself and his son by the first wife. The trial court granted a preliminary decree which was however, reversed in appeal with which Alagriswami, J. agreed.

(2.) THE question for decision is somewhat not free from doubt, but on the whole we have come to the conclusion that the present appeal should be dismissed. Counsel for the appellant presses upon us a literal reading of sub -section (2) of Section 3 of the Act. He says that the appellant's husband having died intestate, and as a member of Hindu joint family, she would be entitled, as his widow, to the same share as her husband had. On the first flush the argument appeared to be attractive and even received support from Ranganayakamma v. Rajeswaramma, AIR 1964 Andh Pra 380. Chandra Reddy, C. J. speaking for the Division Bench, referred to the observations of the Supreme Court in Chinnathayi v. Pandiya Naicker, AIR 1952 SC 29 "general words of a release do not mean release of rights other than those then put up and have to be limited to the circumstances which were in the contemplation of the parties when it was executed" and was of the view that if, on the date of release of maintenance right, the right under the provisions of the Hindu Women's Rights to Property Act was not in contemplation, the earlier release would not be a bar to a claim under the Act. No exception can be taken, as we consider, to that approach.

(3.) THE second ground is that, if the appellant by a literal reading and application of sub -section (2) of Section 3 is allotted a share of her husband in the Hindu joint family properties which belonged to the joint family consisting of the husband and his son by the first wife, the result would be to leave the division of the original joint family properties and allotment to the second unit completely undisturbed and deprive the son by the first wife of the benefit of a share in the entirety of the properties belonging to the family, as it existed before 24 -12 -30. It seems to us that that result was not under the contemplation of the Hindu Women's Rights to Property Act, 1937. In fact, the second ground we have mentioned derives validity from the first ground, namely, that the widow in order to enable her to claim her husband's interest should continue to be a member of such family.