NAVANEETHAMMAL Vs. AMMAKANNAMMAL

JUDGEMENT

(1.) This appeal arises out of a suit instituted by the appellant for partition and recovery of a share of the property left by her deceased husband Thangavelu Pillai by virtue of the provisions of the Hindu Women's Rights to Property Act, 1937. This. Act became law on 14 April 1937, when it received the assent of the Governor-General. Before the Act, a widow had no right to a share in any part of her husband's property, if the husband died as a member of a coparcenary or had left a son or sons surviving. For the first time the Act gave her such a right. Thangavelu Pillai who died on 28 June 1939, had married three wives in succession. The appellant is the second of his wives. Her two co-widows are Ammakannu Ammal and Dhanabagiammal, impleaded as defendants 1 and 2 in the suit. His only son, Kanakasabapathi still a minor, by his third wife Dhanabagiammal was joined as defendant 3. It is common ground that the estate left by Thangavelu Pillai comprised amongst others, agricultural lands. Under the Act, the appellant is entitled to a one-sixth share in the divisible properties. No question arises about the quantum of the share; the only question is, what are the properties liable for division in the suit?

(2.) The suit was instituted on 5 July 1939, more than two years after the enactment of the Hindu Women's Rights to Property Act, 1937. In her plaint the appellant claimed a share in all the assets left by Thangavelu Pillai, including the agricultural lands. Neither in the written statements filed by the defendants nor in the issues framed for trial was objection taken to the demand for a share in such lands on the ground that the Act did not apply to agricultural lands. It was not pleaded that so far as such lands are concerned her claim should be determined by the ordinary Hindu law and not by the Act. The result was that when the Subordinate Judge came to pass the preliminary decree on 31 July 1940, he declared the right of the appellant to a share in all the properties in suit including the agricultural lands and directed the appointment of a commissioner for effecting a division by metes and bounds. In pursuance of the preliminary decree the plaintiff applied on 2 October, 1940, for the appointment of a commissioner for effecting the division, and for the passing of the final decree. Accordingly on 30th October 1940, the Court appointed a commissioner for effecting the division of the properties, and he made his report on 14 April 1941, submitting a scheme for the division of the immovable properties which consisted of house property of the value of Rupees 22,000 and agricultural lands of the value of Rs. 14,280. It is obvious that up to this point of time, the parties, as well as the Court and the commissioner all proceeded on the assumption that the Act applied to every species of property in a Governor's province, without exception and that the plaintiff was entitled to a share in the entirety of her husband's estate. It would seem that just at this time, the question whether the Hindu Women's Rights to Property Act, 1937 (Central Act 18 of 1937), and the Hindu Women's Rights to Property (Amendment) Act, 1938 (Central Act 11 of 1938), operated to regulate succession to agricultural land, a subject which fell within the exclusive jurisdiction of the Provincial Legislature by reason of Entry No. 21, Part II of Schedule 7, Government of India Act, 1935, was pending decision in the Federal Court. On 22 April, 1941, that Court pronounced its judgment declaring that the Acts in question do not operate to regulate succession to agricultural land in the Governor's provinces. It was after the publication of this decision that the contesting defendants, namely, defendants 2 and 3, woke up to discover that the appellant was not entitled under the provisions of the Hindu Women's Rights to Property Act, 1937, to claim a share in agricultural lands and they accordingly took the point in their objections to the report of the commissioner filed on 23 June 1941. The matter came up before the Court on 13 September 1941 when the Subordinate Judge framed the following questions for decision: (1) Whether the plaintiff and defendants l and 2 are entitled to have a final decree passed also in respect of the agricultural lands of their husband; and (2) Whether the commissioner's report should be accepted.

(3.) After hearing arguments, the Subordinate Judge pronounced his order on 15th September 1941. He held that notwithstanding the fact that the preliminary decree which had not been appealed against had become final, it was open to him to rectify that decree, by giving effect to the decision of the Federal Court and accordingly ruled that the agricultural lands should be excluded from division in the final decree to be passed. The reasons he gave for the view he took may be stated in his own words: It follows that the decision of the Federal Court that the Imperial Legislature had no power to pass legislation affecting agricultural lands and that the provisions of the Hindu Women's Bights to Property Act cannot affect the agricultural lands. But it is only in pursuance of such illegal legislation that a preliminary decree has been passed. Now when it is clear that the legislation itself is bad, a decree of Court giving effect to the said legislation must also be bad and must be held to be illegal on the face of it and as such I think no Court can give effect to an illegal decree. In fact the decree must be construed to be one passed without jurisdiction, since the Court gets jurisdiction to pass such a decree only by virtue of the said Act which has now turned out to be an illegal one in so far as the agricultural lands are concerned. It is obvious that by the expression "illegal legislation" here used, the Subordinate Judge only meant to convey the idea that the Indian Legislature had exceeded its powers in enacting a law regarding succession to agricultural land situate in a Governor's province and, that to the extent to which it purported to do so, the enactment must be held to be null and void. Therefore he regarded the preliminary decree which had not taken note of this illegality as also illegal on the face of it, so much so he thought it his duty to bring it into conformity with the law by excluding the agricultural lands.