MUTHU RAMAKRISHNA NAICKEN Vs. MARIMUTHU GOUNDAN

JUDGEMENT

(1.) The plaintiffs sue as the legal representatives of one Mottaya Goundan to recover possession of the plaint lands from the 1st Defendant, who held them as his lessee. The lease is admitted but the main contention is that the lands belonged to Mottaya Goundan s wife, Ayyammal, from whose alleged heir, the 2nd defendant has purchased them and is now in possession. It is found by both the Courts that the properties were acquired with the profits earned by Mottaya Goundan and his wife, Ayyammal, in a trade which was carried on by both of them. Both the husband and wife were "equally working together". It is also stated that among the Padayachi community, to which Ayyammal and Mottaya Goundan belonged, the wife worked along with the husband "for the purpose of the maintenance of the family and development of the family properties." The District Munsif decided, however, that, according to the strict theory of the Hindu Smrithis even the separate property of a woman earned by her by mechanical arts is subject to her husband s control, and that, therefore, the money with which the plaint lands were acquired, was not Ayyammal s peculium. He held that, though the properties were acquired in the name of Ayyammal, that is due to the fact that Mottaya Goundan wanted to shield his properties from the claims of his brothers and possibly also to the fact that Ayyammal was more intelligent than her husband. He further held that, assuming that Ayyammal and Mottaya Goundan must be deemed to have jointly acquired the plaint lands, on the death of Ayyammal, it became the sole property of Mottaya Goundan and as the plaintiffs are admittedly entitled to claim as the representatives of Mottaya Goundan, he passed a decree directing the defendants to surrender them to the plaintiffs. In Appeal the Subordinate Judge confirmed the District Munsif s decision. His decision was confirmed by Mr, Justice Miller. This is an appeal from his Judgment.

(2.) In the Lower Courts the main question that was argued appears to have been that the properties belonged solely to Ayyammal. In Second Appeal before us the main contention was that, on the facts proved, it cannot be held that the property belongs only to the husband.

(3.) If properties are acquired jointly by two persons, both of them males, the two would be joint owners. The question then is whether the fact that the properties in suit were acquired jointly by husband and wife makes any difference. If it was open to the wife to acquire property for herself by her own exertions during coverture, it would seem to follow that, if she acquired the property along with her husband, then they must be deemed to be joint owners. According to the Mitakshara, which is the leading authority in this Presidency, property however acquired by a woman is her Stridhanam and on her death her heirs take it. This view is no doubt, directly opposed to the view maintained by the Daya Bhaga and certain other authorities, according to which that alone is Stridhanam which the wife has power " to give, sell or use independently of her husband s control." See Mayne s Hindu Law (7th Edition), paragraph 610. Gifts to a woman in her capacity of bride or wife or given by her husband or by her relations or by her husband s relations are admittedly her exclusive property with the doubtful exception of gifts of immoveable property by the husband in certain circum stances. It is now also settled law in Bengal and Madras that the property inherited by a woman is not her exclusive property. Her right with reference to the property otherwise acquired, according to the Mitakshara, " by inheritance, purchase, partition seizure, or finding" has been the subject of much discussion. It has now been settled that she may acquire property by gift from strangers during coverture and that it would devolve on her heirs. See Ramasami Padayachi v. Virasanti Padayachi (1867) 3 M.H.C.R. 272. It has also been held that property may be given to a husband and wife jointly and that property may also be purchased by them jointly. Her husband s interest in such property would devolve on his heirs and her interest in the property would devolve on her heirs. See Madavaraya v. Tirtha Sami (1877) I.L.R. 1 M.307. Property may also be devised to them jointly. See Muthumeenakshi Ammal v. Chandrasekhara Aiyar (1902) I.L.R. 27 M. 498. This is also the conclusion arrived at in Salemma v. Latchmana Reddy (1897) I.L.R. 21 M. 100. There an inam land was enfranchised in favour of a woman, and the question was whether it was her stridhanam property descendible to her heirs or not. The texts were reviewed and it was held that the Mitakshara should be followed, unless there is such a consensus of opinion among the commentators prevalent in Southern India as to suggest that the Mitakshara has been departed from, or in other words, that it is open to a female to acquire ownership in any of the modes in which it is open to males, and all such property, with the exception of that acquired by inheritance, is her stridhanam, devolving on her own heirs. The learned judges accordingly held that a wife s earnings and gifts to her by strangers are her stridhanam property descendible to her heirs. This is a direct decision on the point and is in favour of the appellant. But as our learned colleague has apparently taken a different view, we propose to review the Hindu Law texts on this point, though neither the texts nor the cases above referred to, we are informed, were cited before the learned Judge.