SIVALINGA PATHAR Vs. NARAYANI AMMAL

JUDGEMENT

(1.) There were three brothers, Sivalinga, Ekambara and Chocka-linga. The last died about 12 years ago. Ekambara died on the 16 July, 1940, issueless leaving him surviving his widow. Sivalinga was the survivor. After the death of her husband, Ekambara's widow filed O.S. No. 8 of 1944 in the Court of the Subordinate Judge of Kumbakonam against Sivalinga as the first defendant and Chockalinga's widow as the second defendant. She claimed inter alia a share in the properties other than agricultural lands by virtue of the provisions of the Hindu Women's Rights to Property Act, 1937. In his written statement, me first defendant while contesting the suit on other matters stated with reference to her claim to the division of houses and moveable properties that he had no objection to the partition of the divisible items comprised under those schedules and to the separate possession and enjoyment of a moiety of the said items by the plaintiff until her death. On the basis of this admission the plaintiff applied under Order XII, Rule 6 for a decree being passed in respect of A schedule properties and notice of the application was given. The first defendant's advocate appeared and stated that the first defendant had no objection to an interim decree for partition as prayed for, provided it was made on the understanding that it did not debar any re-allotment of the properties at the final decree stage if such a re-allotment was considered necessary or desirable in order to make provisions for discharge of family debts or payment of maintenance dues if such debts or maintenance claim are found to be really payable from the family properties. The Court passed, on the basis of the admissions contained in the written statement as well as on the representation made by the first defendant's advocate, an interim decree as prayed for on the application under Order XII, Rule 6. A commissioner was appointed in due course for the division of the items and ultimately an order was passed on the 14 October, 1944, in the following terms-- It is agreed that subject to re-allotment when the final decree is being passed, the properties (houses and shops) may be divided as follows: Plaintiff to take items 2 and 5 to 9 and first defendant to take items 1, 4 and 10 and to give to second defendant the portion suggested by commissioner in item 1 for her residence. Item 3 is not at present available for division as it is in the possession of an alienee.

(2.) A decree was also drawn up on the same date in accordance with this order.

(3.) In the meantime the question as to the intra vires of the Hindu Women's Rights to Property Act of 1937 was being considered by the Courts. On a reference made by the Governor-General to the Federal Court, that Court held in In the matter of The Hindu Women's Rights to Property Act1, that the Act was intra vires. The matter came up before this Court in Umayal Achi. V/s. Lakshmi Achi (1941) 2 M.L.J. 12 : I.L.R. 1941 Kar. (F.C.) I48:4 F.L.J. 1. Following the ruling of the Federal Court it was held that the Act was intra vires the powers of the Central Legislature except with regard to the provisions affecting agricultural lands. This decision went up in appeal to the Federal Court and that Court by a majority in Umayal Achi v. Lakshmi Achi (1945) 1 M.L.J. 108: 1945 F.L.J. 8 (F.C.) upheld the decree of this Court. One of the three Judges of the Federal Court however took a contrary view. Apparently in view of the circumstance, the first defendant felt it necessary to amend his written statement so as to have the benefit of the opposite contention in case, on a further appeal to the Judicial Committee, the view should prevail that the said Act was not within the law making authority of the Central Legislature. The lower Court refused to permit the first defendant to amend his written statement and the first defendant seeks by this petition to revise the said order.