SEETHAI ACHI Vs. LAKSHMANAN CHETTIAR

JUDGEMENT

(1.) This is an appeal against the judgment of the learned Subordinate Judge of Devakottai, in C.M.A. No. 23 of 1966 dismissing the appellant's appeal against the order of the learned District Munsif of Devakottai in E.A. No. 493 of 1966 in E.P. No. 369 of 1965 in O.S. No. 148 of 1962. The appellant was the second defendant in O.S. No. 148 of 1962 and her son was the first defendant. The suit was decreed ex parte. Thereafter the son filed an application under Madras Act IV of 1938 for scaling down the decree debt. That was dismissed and thereafter the appellant filed an application out of which the second appeal arises for scaling down the decree debt. Both the courts below have held that the application for scaling down filed by the appellant's son, the first defendant having been dismissed, the appellant is not entitled to maintain this application for scaling down. The learned Subordinate Judge has pointed out that it is the admitted ease that the first defendant is the son of the second defendant who is the widow of one Veerappa Chettiar and that the defendants continue to be members of a Hindu joint family of which the first defendant is the manager. In the suit itself it had been mentioned that the first defendant was the manager. The decree directed that the decree debt was to be paid by both the defendants from and out of the joint family assets. It has, however, been urged on behalf of the appellant that the effect of the Hindu Women's Right to Property Act (Act XVIII of 1937) read with S. 14 of the Hindu Succession Act of 1956 is that the petitioner has become the absolute owner of a half share in her husband's properties and, therefore, she is entitled to Maintain this application for scaling down, even though the application filed by her son might have been dismissed. For this purpose the appellant has relied on the statement of the law made in Mullah's Hindu Law, 13th Edn page 827, where it is stated that the effect of the present S. 14 of the Hindu Succession Act is to transform the right conferred on the widow by S. 3 of the Hindu Women's Rights to Property Act 1937 into that of a full owner and the fact that she had not sought any partition before the Hindu Succession Act came into force in 1956 makes no difference. This statement of the law by the learned author is based upon the decisions ii Sankara Rao v/s. Bagyalakshmamma : A.I.R. 1961 A.P. 241, Sukhram v/s. Gori Shankar : A.I.R. 1962 All. 18, Billabasani v/s. Dulal : A.I.R. 1958 Cal. 472.

(2.) In Sankara Rao v/s. Bagyalkshmmma : A.I.R. 1961 A.P. 241 a learned Judge of the Andhra Pradesh High Court has held that it is not correct to say that the widow does not acquire an interest in the husband's property within the meaning of S. 14(1) of the Hindu Succession Act till she effects a partition. In Sukhram v/s. Gori Sankar : A.I.R. 1962 All. 18 a learned Judge of the Allahabad High Court has held that where upon the death of her husband the widow has inherited the interest of her husband in the Property under S. 3(2) of the Hindu Women's Right to Property Act, her interest in the joint property cannot be deemed to materialise, only when she exercises the right of partition under S. 3(3)of the said Act and a Hindu widow therefore, who acquired the property from her husband before the commencement of the Hindu Succession Act in a joint Hindu family must be deemed to possess the property within the meaning of S. 14of the Hindu Succession Act. In Billabasani v/s. Dulal Chandra : A.I.R. 1958 Cal. 472, a learned Judge of the Calcutta High Court has held that on the death of the husband, the widow became entitled in respect of all his properties to the same share as a son in view of Sec. 3 of the Hindu Women's Right to Property Act, 1937 and she acquired a share in the properties by inheritance immediately on the death of her husband and the properties were sot acquired by and under a preliminary decree and sub -sec. (2) of S. 14 of the Act, has no application and, therefore, after the passing of the Act, the share must be held by her as a full owner and not as a limited owner in view of S. 14(1) As against this, a Judge of the Patna High Court in Jiwandan Sing v/s. Siaramprasad Sing : A.I.R. 1961 Pat 347, has held that the argument that the widow mother of the karta of a joint family would have got the interest which her husband (father of karta) would have got on partition and of which she would be an absolute owner by virtue of S. 14 of the Hindu Succession Act 1956 and, therefore, the alienation of the joint family properly made by the karta is not binding on her involves a fallacy, for, without partition the widow mother cannot be taken to be possessed of the property without which the absolute ownership as provided in S. 14 will not come to her benefit. In the circumstances of this case, I do not think it necessary to decide this question one way or the there especially in view of the decision of a Bench of this court in Seethamma v/s. Veeranna : A.I.R. 1950 Mad. 785. There it was held thus:

(3.) Therefore, in this case the first defendant, the appellant's son being a karta of the family, he was entitled to represent the family and to be in management of its affairs. He had also been sued specifically as the manager of the joint family property. Therefore the dismissal of the application for sealing down filled by the first defendant must be held to bar a similar application by the present appellant. It is not necessary therefore to go into the order question as to whether the application would not lie because the debt was not payable when Act IV of 1938 came into force. The second appeal is dismissed with costs. No leave.