CHINNAPPA GOUNDER Vs. VALLIAMMAL

JUDGEMENT

(1.) THE two defendants in O. S. No. 357 of 1961 on the file of the Court of the district Munsif of Erode are the appellants before this Court and the plaintiff in the suit is the sole respondent. The respondent's husband Perianna Gounder and the first appellant were brothers and the second appellant is their sister. Perianna gounder died in 1944. Subsequent to his death on August 16, 1944, Periathambi gounder, father-in-law of the respondent and the father of the deceased Perianna gounder and the appellants, executed a document described as a maintenance deed in favour of the respondent in respect of two items of property. That document recited that when the respondent requested her father-in-law to give her maintenance, at the instance of mediators, he executed the said document. The document also stated that she should reside in one of the items which was a house and should cultivate at her pleasure the other item which was a piece of land and enjoy the income therefrom for her life towards her maintenance without any power of alienation by way of mortgage, othi or sale and on her death, the two items of property should belong to her father-in-law and his heirs. It is stated that the father-in-law himself died in 1960. Thereafter, the respondent instituted the suit out of which the second appeal arises for partition of her one-fourth share in the suit properties and for separate possession of the same. I must straightway mention that the suit properties are one-half of the properties belonging to the joint family. It is conceded before me that the respondent is entitled to one-fourth share of the suit properties by virtue of the proviso to section 6 read with Section 8 of the Hindu Succession Act of 1956. The reason is that though the father-in-law of the respondent and the first appellant constituted an Hindu undivided family, by virtue of the provision contained in the proviso to section 6 of the Hindu Succession Act, 1956, his undivided interest in the Joint family properties would devolve by way of succession and will not go by way of survivorship. If that be the case, his interest in the property was divisible as between the respondent, daugher-in-law, the two appellants, son and the daughter and his own widow. However, the appellants herein contended that she cannot ask for a partition of her one-fourth share of the properties and at the same time retain the properties covered by the maintenance deed of August 16, 1944, and she must make the properties got by the said document available for partition in the suit, since the appellants also have a share in the said properties. The Courts below rejected this contention and decreed the suit of the respondent. Hence the present second appeal by defendants 1 and 2 in the suit.

(2.) MR. N. Sivamani, learned Counsel, for the appellants, contended that the respondent herein cannot retain the properties covered by the maintenance deed and also ask for partition of her one-fourth share in the suit properties and if she wants partition of one-fourth share, she must surrender those properties and make the same available for partition in the suit itself. Mr. Sivamani frankly concedes that there is no direct authority with reference to the position after the coming into force of the Hindu Succession Act of 1956; nor is there any specific provision in the said Act which will have the effect he contends for. At the same time, the learned Counsel submits that on the analogy of the position prevailing under the Hindu Women's Rights to Property Act, 1937, under the Hindu succession Act also, the respondent can have either the properties given to her for maintenance or have a share in the properties granted to her by the provisions contained in the Act of 1956 and she cannot have both. I may point out here that the position as it stood prior to the Hindu Succession Act of 1956 is clear and does not admit of any doubt. A Bench of this Court in rathinasabapathy v. Saraswathi Ammal, pointed out that there is nothing in the Hindu Women's Rights to Property Act, 1937, which has the effect of compelling the three widows for whom provision was made under that Act to sue for a partition at the risk of losing the right to maintenance which they had under the Hindu Law and stated that the option was with the widows either to claim maintenance to which they were entitled under the Hindu Law or to ask for partition under the provisions of the Hindu Women's Rights to Property Act, 1937, but not to have both. The principles enunciated by that decision were approved by another Bench of this court in Gajavalli Ammal v. Narayanaswami, The appellants in that case were the widow and daughter of one Govindaswami Mudaliar who had left a son by his first wife who was the respondent to the appeal. The said govindaswami Mudaliar died on November 21, 1953 and at the time of his death he and his son Narayanaswami (respondent) were members of a joint Hindu family. The suit was brought for partition and possession of a half-share in the family properties as the share due to the first appellant who claimed her husband's share under the Hindu Women's Rights to Property Act, 1937. On behalf of the second appellant a maintenance provision was claimed and marriage expenses also were asked for. The claim of the appellants was resisted on the strength of a settlement deed dated December 17, 1953. It was pleaded by the respondent that the said settlement was esected in full settlement of all the claims against her husband's joint family properties and consequently she could not sue for partition. The learned Judges of this Court came to the conclusion, on the basis of the evidence and the circumstances of the case, that by arrangement embodied in the settlement deed and by the acceptance of the properties given in the settlement deed, the widow had given up her right to claim half-share in the joint family properties under the Act of 1937. In this view, they accepted the case of the respondent and rejected the claim of the appellants for partition of a half-share in the properties. In dealing with this question the learned Judges observed as follows:-- at page 189.

(3.) IN my opinion, the sentence relied on by the learned counsel for the appellants does not lend support to any such contention. On the other hand, the said sentence may lead to a contrary inference. As far as the provisions of the Hindu succession Act are concerned, there is no provision either express or implied which will have the effect ot terminating or putting an end to an interest created in an immovable property in favour of a person like the respondent herein in discharge of an obligation resting on the father-in-law of the respondent. A reading of Ex. B-1, namely, the document styled as maintenance deed of August 16, 1944, makes it clear that a life interest was created in favour of the respondent. Under the Hindu Law, prior to the enactment of the statutory provisions, a manager of a joint Mitakshara family is under a legal obligation to maintain all male members of the family, their wives and their children; on the death of any one of the male members, he is bound to maintain his widow and his children, the obligation to maintain these persons arises from the fact that the manager is in possession of the family property. The maintenance deed of August 16, 1944, was executed by the father-in-law of the respondent in discharge of this obligation imposed upon him under the Hindu Law. It may be that if the Hindu Succession act had not been passed, the respondent might not have any right to file a suit for partition of a share in the properties retaining at the same time the properties obtained by her by virtue of this maintenance deed. However, the position is not the same with reference to the provisions contained under the Hindu Succession Act, 1956. The said enactment effects a basic and fundamental change in the Hindu Law of Succession and the right to succession conferred on the various persons mentioned in the schedule to the Act are not subject to any qualification such as the one contended for before me. As a matter of fact, in relation to an Act like the Hindu Succession Act of 1956, which is both an amending and codifying statute, regard should be had only to the clear language contained in the Act. Mr. Sivamani himself frankly conceded that he is not able to lay his hands on any particular provision contained in the statute in support of his contention. In the absence of any express provision contained in the Act providing for the termination of the interest created in favour of a person like the respondent by way of maintenance due to her under the law then in force, I am unable to accept the contention of the learned Counsel that the necessary consequence of the respondent filing a suit for partition to claim her right under the provisions of the hindu Succession Act, 1956, is to bring about a termination of the life interest created in her favour under the document dated August 16, 1944. If such an interest has not been created by the time when the Hindu Succession Act, 1956, came into force and the respondent was merely receiving maintenance from her father-in-law out of the joint family properties, the position may be different. But, when the right to receive maintenance which the respondent undoubtedly had, has crystallised in the form of creation of a life interest in her favour, I am unable to find any principle or authority for holding that that interest automatically comes to an end as soon as she files a suit for partition for recovering her Share of the properties under the provisions of the Hindu Succession Act, 1956. I must also point out that it is not the case of the learned Counsel that the Act itself has got the effect of terminating the interest created in favour of the respondent and it is only her conduct in filing the suit for recovering her share which has got such an effect. The learned Counsel bases this contention on the analogy of the position that resulted from the provisions contained in the Hindu women's Rights to Property Act, 1937. In my opinion, there is no comparison whatever and there can be no analogy between the rights which the three widows had under the Hindu Women's Rights to Property Act, 1937, and the right which the various heirs get under the Hindu Succession Act 1956 and therefore there is no justification whatever for importing the position under the earlier Act by way of analogy into the position under the 1956 Act.