CHELIKANI VENKATA RAO Vs. KAMAVARAPU RAJA RAO

JUDGEMENT

(1.) Chandra Reddi, C.J., and one of us (Chandrasekhara Sastry, J.) referred to a full bench the decision in Seshamma v. Ramakoteswara Rao, (1957)2 An.W.R.287, interpreting section 3 (2) of the Hindu Women's Rights to Property Act, for reconsideration in view of the decisions of the Madras, Bombay and Patna High Courts. In Seshamma v. Ramakoteswara Rao, Bhimasankaram, J., and Satyanarayana Raju. J., (as he then was) construed the words " an interest in the Hindu joint family property," used in sub-section (2) of section 3 of the Hindu Woman's Rights to Property Act (XVIII of 1937), amended by Act XI of 1938 (hereinafter called ' the Act') as positing (1) the existence of a Hindu joint family and (2) the person dying having an interest in property belonging to that family. In this view, the Bench held that it would be straining the language beyond all reason, to say that what a person obtains as a share on partition or what he holds as the sole surviving coparcener is an interest in a Hindu joint family property within the meaning of sub-section (2) of section 3 of the Act. Before we examine the legal position it is necessary briefly to set out the facts which nave given rise to this rclerence. The plaintiff who was the adopted son of one Ramaswamy, obtained a share on partition in a suit O.S. No. 91 of 1950, on the file of the Subordinate Judge's Court, Srikakulam, under a compromise decree, in which the present suit properties were allotted to the lather. The iather, who was in possession of the property allotted to him, died on 14th January, 1954, leaving his widow who sold the property to the 1st defendant under Exhibit B-1 on 25th February, 1957. The plaintiff, the adopted son, filed O.S. No. 271 ol 1957 in the District Muusif's Court, Parvatipuram on 4th September, 1957, for a declaration that he is entitled to the property lelt by the deceased adoptive father and that his adoptive mother had no manner of right or title to it and that, therelore, he is entitled to possession of the property from the vendee under Exhibit B-1. He also set up a will purported to have been made by his adoptive father, devising the suit property to him. The defence was that under section 3 (2) of the Act, the vendor under Exhibit B-l, as the widow of her deceased husband, obtained a Hindu woman's estate in respect of the suit property and that subsequently on the coming into force of the Hindu Succession Act, her limited right was enlarged into absolute ownership by virtue of section 14 of that Act. The genuineness and validity of the will set up in the plaint was also denied. The trial Court decreed the suit, solely on the basis of the decision in Seshamma's case, On appeal, the subordinate Judge confirmed the trial Court's decree on the same ground. In the Second Appeal, before Gopalakrishnan Nair, J., it was urged that Seshamma's case, (1957)2 An.W.R.287, is at variance with two Division Bench rulings of the Madras High Court in Subramanian v. Kalyanarama Iyer, (1957)1 M.L.J. 250 : I.L.R. (1957)Mad.565, and Onnamalai Ammal v. Seethapathi. Gopalakrishnan Nair, J. held that the decision in Onnamalai Ammal v. Seethapathi, (1961)1 M.L.J. 33 : A.I.R. (1961)Mad. 90 was based upon the reasoning in Subramanian v. Kalyanarama Ayyar, which later case was not taken note of in Seshammas' case, As such which it was observed by Gopalakrishnan Nair, J., that Onnamalai Animal's case, made an advance on the earlier decision by declaring unequivocally that when a Hindu dies possessed of property obtained by him as hi Appeal alloweds share of the joint family property and without leaving undivided sons, his widow will become entitled to the entirety of that share, he held that this decision runs counter to the decision of the Division Bench of this Court in Seshamma's case, which was binding on him, and in this view, dismissed the appeal.

(2.) In these circumstances it becomes necessary to re-examine the decision in Seshamma's case, and to consider whether it was rightly decided. Prior to the Act, the widow of coparcener of a Hindu joint family was only entitled to maintenance from her son or sons or from those who take her husband's, share by survivorship. She was also entitled to maintenance from her son even if he was not in possession of any ancestral property, in her status as mother, or from her male issue, where her husband's separate property has been taken by them. Where a husband left separate property and no male issue, according to all texts and commentaries except perhaps Narada, she is an heir to the property of her husband. The widow would inherit even where her husband died undivided, but left separate or self-acquired property though the undivided property passes by survivorship to the other coperceners. (See Katama Natehiar v. Raja of Sivaganga, (1963)9 M.I.A.543). The position under Dayabhaga, however, was that the widow succeeds to her husband's share when he was undivided, just as she would to the entire property of one who was separated, because under that law, her right to offer funeral oblations to her deceased husband entitled her to succeed to his property. The object of the Act, though according to its author, Dr, Deshmukh, was originally intended to confer certain rights on women generally had in fact to be confined to the rights of the widows, not only in respect of the separate property of a deceased Hindu but also in respect of his interest in a Hindu joint family property. Even though the Act was repealed by section 31 of the Hindu Succession Act, 1956, the provisions if the Act will continue to apply to rights acquired before the Hindu Succession Act came into force and consequently those rights have to be still ascertained and determined. It is convenient to set out the Act in entirety;

(3.) From the provisions of the Act it will be seen that in respect of separate property of a Hindu, the widow will be entitled to the same share as a son. Further the widow of a predeceased son will inherit in like manner as a son if there is no son surviving of such predeceased son, and will inherit it in like manner as a son's son if there is surviving a son or son's son of such predeceased son will also succeed. In so far as joint family property is concerned, the widow takes the place of her husband. We are, however, not concerned here with sub-section (1) of section 3 dealing with "separate property" of a deceased Hindu which has been construed as property of a Hindu acquired by self-exertion and not joint family property obtained on partition of property of joint family, or of which he is the sole surviving coparcener. This was so held in Umayal Achi v. Lakskmi Achi, (1945)1 M.L.J.108 : (1945)F.C.R.1 : (1945) F.L.J.8 :A.I.R.1945 F.C.25, by the Federal Court. It is, however, clear that under sub-section (2) of section 3 a widow inherits the interest of her husband in a Hindu undivided family along with her son and has a right to ask for partition and obtain possession of a separated share. The only question that has given rise to differences of opinion is, where there is a partition between the father and the sons, after the father's death leaving his widow and his divided sons, whether the widow would be entitled to inherit that property as an interest in the Hindu joint family property. ' 'In other words, was it the intention of the Legislature in enacting sub-section (2) ot section 3 to treat separated share of joint family property as an interest in Hindu joint family property". It was contended in Seshamma's case, (1957)2 An.W.R.287, that the Legislature had not so intended; firstly because a separated property could be disposed of by the erstwhile copercener absolutely or by the testamentary diposition, and the significant omission of the word ' dies intestate' in sub-section (2) of section 3 (which are used in sub-section (1) by the Amending Act of 1938, clearly indicated that such property was sought to be excluded from that class; and secondly, the words 'interest in a Hindu joint family' are applicable only to undivided property. In support of this contention, reliance has been placed on certain observations of Varadachariar, J., in Umayal Achi v. Lakshmi Achi, (1945)1 M.L.J.108 : (1945)F.C.R.1 : (1945) F.L.J.8 :A.I.R.1945 F.C.25. where the learned judge described the property held by a Hindu which was obtained on a partition of the Hindu joint family or property of a joint Hindu family of which he is the sole coparcener as ' in some measure resembling self-acquired ' property, because of the powers of disposition which such person would have, though in fact, it was not separate property in the same sense dealt with by the Legislature in sub-section (1) of section 3. At any rate, it is contended that the Legislature omitted to bring within sub-section (2) of section 3 property of this description but only dealt with undivided interest in a joint Hindu family property in which the widow's right of maintenance was enlarged to a lite interest with a further right to obtain partition and separate possession of her husband's interest therein.