SHIVAPPA LAXMAN Vs. YELLAWA SHIVAPPA SHIVAGANNAVAR

JUDGEMENT

(1.) THIS appeal raises a short and interesting question as to the nature of the rights which a Hindu widow acquires under Sub-section (2) of Section 3, Hindu Women's Right to Property Act, No. 18 of 1937. The property in suit consists of lands situated at Vadral in the taluka of Chikodi. These properties originally belonged to the undivided family of Shivappa and his son Laxman. Lax-man died on 13-3-1945, leaving behind him his widow Yelawwa. She is plaintiff 2 in this suit. On 8-3-1946, Shivappa executed a deed of gift in respect of the properties in suit in favour of his daughter Laxmawwa. She is defendant 4 in the suit. On 9-3-1946, Shivappa adopted Lax-man belonging to the branch of his separated brother also known by the name of Laxman. On 19-4-1946, Yelawwa adopted Shivappa, who is plaintiff 1. On 11-8-1946, Shivappa died leaving surviving behind him his widow Yelawwa. Yelawwa is defendant 1 in the present suit. The daughter-in-law of Shivappa and her adopted son have brought the present suit challenging the validity of the deed of gift executed by the deceased Shivappa in favour of Laxmawwa; and the point which the Courts below had to decide was whether it was competent to Shivappa to make a valid deed of gift in respect of the suit properties when his widowed daughter-in-law was alive. The contention of the plaintiffs' was that, on the death of Laxman, his widow Yelawwa was entitled to the same interest in the property as the deceased Laxman had at the time of his death and in view of this interest which had devolved upon Yelawwa. it was not open to Shivappa to make a valid deed of gift in favour of his daughter. That is how; the question as to the nature of the rights which devolve upon Yelawwa under Sub-section (2) of Section 3 of Act No. 18 of 1937 has to be considered in the present rase. The learned 'trial Judge took the view that the deed of gift was invalid whereas the lower appellate Court has taken a contrary view. Since the plaintiffs' suit has been dismissed by the lower appellate Court, they have come to this Court in the present second appeal.

(2.) IT was urged on behalf of the donee in the Courts below that the properties which are the subject-matter of the gift were the separate properties of Shivappa and so he was entitled to deal with them in any manner he liked. This contention has been rejected by both the Courts and it has been found that the suit properties originally belonged to the undivided family of Shivappa and his son Lax-man. It is on this footing that we have to decide the point of law raised before us in this appeal.

(3.) THE Hindu Women's Right to Property Act was passed with a view to amend the Hindu law to give better rights to women in respect of property. In regard to the undivided families governed by the Mitakshara school of Hindu law, Sub-section (2) of Section 3 provides that when a Hindu governed by the Mitakshara school dies having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of Sub-Section (3), have in the property the same interest as he himself had. In other words by this subsection the widow of an undivided Hindu is given the same interest in the family property which her deceased husband had during his lifetime. This provision is subject to the proviso mentioned in Sub-section (3) and the effect of this subsection is that the interest which devolves upon a Hindu widow under Sub-section (2) will be the limited interest known as a Hindu women's estate. This sub-section however clearly provides that, though the interest of the Hindu widow is a Hindu woman's estate, the Hindu widow would have the same right of claiming partition in respect of the said interest as a male owner. Prior to the passing of this Act, the interest of her deceased husband would not have devolved upon his widow and it would not have been open to any Hindu female belonging to an undivided Hindu family to claim a partition even if she had a share in the property as for instance a mother. This Act, therefore, confers upon the Hindu widows a new right, qualifies the right by making it a Hindu woman's estate and no more; and makes it clear that the Hindu widow can enforce this right by claiming a partition in the same way as a male member can do. As a result of these provisions, the rule of survivorship has received a serious blow. It is no longer possible to apply this rule of survivorship to the interest of a deceased coparcener if he leaves surviving him his widow. Formerly, the interest of the deceased coparcener in the undivided properties passed on to the other surviving coparceners by survivorship. Devolution of such an interest by survivorship is now no longer possible because the interest-of the deceased coparcener must now devolve upon his widow. Even before this Act was passed, females who by marriage entered the undivided family were regarded as members of an undivided family. They were, however, never given the status of coparceners and it may be that, even after the passing of this Act, the Hindu widow on whom the interest of her deceased husband devolves would not be a coparcener properly so called. She is, however, a member of an undivided family who is entitled to the same interest in the properties of the family as her deceased husband had.