JUDGMENT

The appellant is the plaintiff in a suit for partition and separate possession in respect of the properties of his grandfather, one Subramania Iyer. Subramania Iyer had two sons, the first defendant and Narayana Iyer, father of the plaintiff. Subramania Iyer died in 1945 leaving his widow the 2nd defendant. The plaintiff's claim is in respect of the properties left by Subramania Iyer which consists of properties which were allotted to the share of Subramania Iyer in a partition between Subramania Iyer, Kalyanarama Iyer and Narayana Iyer entered into under Ex. B.1 dated 4-2-1935. The second defendant is the widow of Subramania Iyer and the lower Court conceded to her a share under the Hindu Women's Rights to Property Act. The present appeal is confined to the finding as to the widow being entitled to a share in the partition under the Hindu Women's Rights to Property Act and as to the rejection of the plaintiff's claim to items 29 and 30 of the A schedule to the plaint. The preliminary decree was passed on 17-9-1948. The second defendant died on 28-11-1948. The question as to her being entitled to a right to a share need not really be decided in appeal. But it is pointed out by Mr. Sundara Iyer appearing for the appellant that even though by reason of her death no share need be set apart for her and the property may be divided as between the surviving parties, in any event as a question of mesne profits arises, it should be necessary to consider whether she would be entitled to any share after the lifetime of her husband until her death on 28-11-1948.

The properties in respect of which the 2nd defendant was allotted a share comprised of properties allotted to her husband Subramania Iyer at the family partition evidenced by Ex. B.1 That was a partition between the father and his two sons and each had separate possession of their respective shares. But in respect of one of the items, i.e, item 29 which is one of the properties referred to in schedule D to the partition deed it was provided that the exact half of the properties in D schedule had been separately allotted to Subramania Iyer and similarly the remaining half of the properties mentioned in the said D schedule are allotted separately to the first defendant. Paragraph 11 of that document proceeds as follows:

“It has been settled and agreed that even though executants Nos. 1 and 2 have equal rights in respect of the Madam Kudiyiruppu (item 29) mentioned in the D schedule, as described in paragraph 6 supra, executant No. 1 and his wife Lakshmiammal, the mother of executants Nos. 2 and 3 shall have full authority and liberty to reside therein, that subsequent to the death of the aforesaid two persons the said Madam Kudiyiruppu shall devolve upon executant No. 2 exclusively and that executant No. 3 shall have no right in respect of the same.”

This item of property continued to be in the possession of Subramania Iyer and the first defendant and during the period it was in their possession improvements were made by putting up a building which is described as item 30 in schedule A to the plaint. The contention of the learned Counsel for the appellant is that this item 29 is also the property of Subramania Iyer in which the plaintiff would be entitled to a share and that in any event item 30, being a building put up by Subramania Iyer on the house site in item 29, whatever rights the first defendant may have to item 29 by virtue of the recitals in Cl. (11) of Ex. D-1, item 30 should be treated as a property in which the plaintiff would be entitled to a share.

As regards the first of these contentions, viz., the widow's right to a share reliance is placed on the decision of the Federal Court reported in Umayal Achi v. Lakshmi Achi(1) and it is urged that property obtained by a coparcener at a partition would not be “separate property” as contemplated in S. 3(1) of the Hindu Women's Rights to Property Act of 1937. The contention is that the decision has laid down this proposition. The question before the Federal Court was as to whether the property of a sole surviving coparcener who left his widow could be treated as separate property within the meaning of the Act and the learned Judges of the Federal Court were not considering a case of the present nature, viz., of property obtained by coparcener at a family partition where there were no sons, in the sense undivided sons, as by the partition the sons had become divided. The decision of the Federal Court is binding on this High Court, but it is binding only to the extent it purports to decide and nothing more. I consider that decision is a statement of the proposition of law applicable to the facts arising in that case, viz., that the property of a sole surviving coparcener who leaves a widow cannot be treated as “separate property” for the purpose of Hindu Women's Rights to Property Act. But there are certain observations in the judgment which are relied upon to support the contentions of the appellant. The learned Judge refers to Mulla's Hindu law, 9th Edn. paragraph 230 and to the classification of what “separate property” is and observes that the expression “separate property” has been used in a limited sense and some times in a general sense. Mulla in paragraph 230 classifies the various properties which he considers to be separate properties and among them, 6 and 7 relate to properties obtained as a share at a partition, and property held by sole surviving coparcener. With reference to 6 and 7 it is not merely the share at a partition or property held by sole surviving coparcener that is treated as “separate property”, but property subject to certain qualifications, the qualifications being that in the case of property obtained as a share at a partition the property so obtained must be by a coparcener who has no male issue, whereas in the other case of property held by sole surviving coparcener, where there is no widow in existence. The obvious reason for this qualification is that in the case of a person who obtains a share at a partition and who has a son or a grandson, the son or the grandson acquires right by birth and once the son or grandson comes into existence, it could not be treated as separate property, since it becomes coparcenary property on such birth. As regards the other category of the property held by sole surviving coparcener, the widow's existence who has a power to adopt a boy so long as she lives which power she may exercise at any time, would be a bar to treating it as “separate property”, since such power could be exercised by her and the adopted son may come into existence when on such adoption the property could not be considered to be a separate property but the coparcenary property of the adopted son. Mulla in his Treatise, carefully prescribed the qualifications and it is only when such qualifications are present, a property could be said “separate property” and these qualifications are prescribed in respect of only classes 6 and 7 out of the 7 classes enumerated by the author in the categories of separate property. The reasoning in the judgment of the Federal Court is based on the qualifications referred to by Mulla in his Treatise and if in a case where a pro-property is obtained at a partition by a coparcener, who thereafter becomes divided and that coparcener has no son, there is no question of any one acquiring a right by birth in the property so divided and allotted to the dividing coparcener and there is nothing to prevent to call it “separate property” as undoubtedly the dividing coparcener who acquires title to it under the partition would be entitled to deal with it absolutely, since there is no other to question his actions regarding the property. In the present case it may be pointed out that Subramania Iyer at the time of the partition had sons. But that is immaterial because the sons had become divided and ceased to have any interest in the property and it was always open to Subramania Iyer to have disposed of the property in the manner he liked, subject however to whatever rights the widow or the wife had in the property which however does not arise in the present case. This decision of the Federal Court is referred to in Mayne's Hindu Law and Usage, 11th Edn. at page 705 as follows:

“The Federal Court has held in Umayal Achi v. Lakshmi Achi that the expression ‘separate property’ may be the antithesis of three other expressions, viz, ‘ancestral property’, ‘coparcenary property’ and ‘joint family property’ that having regard to the contingency requiring legislative interference, the property held by a person as the last surviving coparcener of a joint family cannot be regarded as ‘separate property’ within the meaning of S. 3(1), wherein the term refers to property in respect of which the son of the surviving coparcener would not be entitled to coparcenary rights but only to a right of inheritance on the father's death if he survived him.”

What was really laid down by the Federal Court in the decision is expressed in the passage extracted above and that does not cover a case where the property is not the property held by a sole surviving coparcener, but property allotted in a family partition. In Bhaoorao v. Chandra Bhagabai(2) the question arose as to whether the share received by the father at a partition between him and his son is “separate property” and on his death it passes to his son in preference to his widow and it was held, following the decision of the Federal Court in Umayal Achi v. Lakshmi Achi, that it is not “separate property” since “separate property”, means only self-acquired property in the narrow sense. The learned Judges of the Nagpur High Court considered that they were bound by the decision of the Federal Court and followed it and held that the widows are entitled to a share under the Hindu Women's Rights to Property Act in the self-acquired property in the narrow sense. With reference to a contention that the decision of the Patna High Court in Nandhkumari Devi v. Bulkan Devi, which came to a different conclusion, the learned Judges of the Nagpur High Court observed that decision must now be taken to be impliedly overruled by their Lordships of the Federal Court and that the view expressed in the Patna Case is no longer good law. The Patna Case was decided earlier to the Federal Court decision and it does not appear that that decision came in for consideration at the hands of the learned Judges of the Federal Court.

In the view I have taken that the decision of the Federal Court was with reference to a case which arose before, them, viz., the case of the nature of the property held by a sole surviving coparcener, it does not prevent me from holding the opinion which I have expressed that in the case of a property obtained as a share at a partition, it is separate property and I would prefer to follow the classification made by Mulla in his valuable Treatise and find that the 2nd defendant will be entitled to a share. It must be observed that if the contention of the learned Counsel for the appellant has to be given full effect to, the Act which obviously was intended to give better rights to women in respect of property, as the preamble makes it clear, would not place the Hindu women in any better position excepting to ask for a partition in respect of property acquired out of the self-acquisitions of her husband, and that in regard to any property which is in any way tainted in the sense that it comprises ancestral or coparcenary property the Hindu widow would be in the same position as she was prior to the enactment of Act XI of 1938, I do not consider that was the object or intention of the framers of the Act nor was it understood like that at any rate until the decision of the Federal Court in Umayal Achi v. Lakshmi Achi, though with respect to one kind of property I agree with the lower Court's view as to the widow's rights to a share in the property.

The other question as to whether the plaintiff would be entitled to a share in item 29 would depend upon the construction of Ex. B.1 The learned Counsel argued that the recitals in Cl. 11 of Ex. B.1 would show that in so far as the half share of Subramania Iyer in item 29 was concerned after Subramania Iyer's death, the 1st defendant did not become entitled to it until after the lifetime of this Subramania Iyer's wife and mother of the 1st defendant who was 2nd defendant in the suit. In short, his contention is that after Subramania Iyer's death the estate was kept in abeyance and the direction is, to vest it in the 1st defendant after the lifetime of the 2nd defendant. Such a devise is invalid and soon after the death of Subramania Iyer, the heirs of Subramania Iyer including the plaintiff had become entitled to a share.

In considering this argument, it must be stated that one is not examining the recitals in either a will or a deed of settlement or gift but the terms of a partition deed to which the plaintiff's father was a party. In paragraph 6 of the partition there is an allotment of an exact half of the properties in the D schedule which comprises item 29 to each of the 1st defendant and father Subramania Iyer. Though there is an allotment there is no division. There are other properties separately alloted to each and the valution of the properties are fixed. Properties are also separately allotted to the father of the plaintiff. There is no division of item 29, paragraph 6 declaring the rights of the 1st defendant and his father to a moiety in that item of property. In respect of this item the parties to the document, viz., Subramania Iyer, the 1st defendant and the plaintiff's father agreed that the rights of the respective parties to it should be governed by what is contained in paragraph 11 and that is the reason why it is stated that even though Subramania Iyer and the 1st defendant have equal rights in respect of the Madham Kudiyiruppu i.e, item 29 still the property is to be enjoyed in a certain manner and it provided that Subramania Iyer and his wife, the second defendant, will have full authority and liberty to reside therein and that subsequent to their death the property would go to or devolve upon the first defendant exclusively and that the plaintiff's father shall have no right in respect of the same.

Taking the language of the document and intent of the parties, it appears to me that item 29 being a family residential house and site, it was intended that neither the father's nor the mother's occupation of the property should in any way be disturbed. But the property having been declared to belong equally to Subramania Iyer, and the first defendant and to the extent first defendant's rights to it are subject to the right of residence of the second defendant even after the lifetime of Subramania Iyer, it was provided that the first defendant would be solely entitled to it to the exclusion of the plaintiff's father. The plaintiff's father was a party to it and must have agreed to that arrangement for the simple reason that he wanted to provide, out of regard and affection, for his mother's right to reside in the family house and not to be disturbed in any manner by the second defendant even after the lifetime of Subramania Iyer. There is no question of any estate being kept in abeyance, but what was intended to be held separately in the earlier part of the document was conveyed in the latter part to the first defendant subject to the right of residence of Subramania Iyer and his wife the second defendant. Whatever rights were provided for in paragraph 6 as to their respective shares that must be deemed to have been varied and modified by the subsequent clause in paragraph 11 whereby the property became vested in the first defendant subject to the rights of residence referred to. It is, therefore, a case where it could not be said that after the death of Subramania Iyer the estate was in abeyance.

Further fact that the plaintiff's father agreed not to claim any rights to it shows that in so far as this item is concerned, the members of the family entered into a kind of arrangement as to the best manner of disposing of this item. Nothing could be said against the bona fide nature of this arrangement and the plaintiff's father must have been imbued with feelings of affection and love to the mother and also the fact that in case Subramania Iyer died, to the extent that her residence is provided for, the third defendant is absolved from liability, moral or legal, from making any provision for the residence of his mother. I also consider that this portion of the document which is far from being a partition as such, is a bona fide family arrangement entered into between the parties as to the disposal of a particular item belonging to the family. In that view also giving up of the property even if he had any right by the plaintiff's father was certainly binding on the plaintiff.

The only other contention is as to whether the building put up in item 29 could be separated and be treated as the property of Subramania Iyer in which the plaintiff would be entitled to a share. Though a contention was raised on behalf of the first respondent that the building was constructed at the cost of both himself and his father, it is pointed out by the lower Court that no evidence has been let in on the point and for the purpose of this case it may be assumed that the property has been improved by putting up a house item 30 solely at the expenses of Subramania Iyer. It was never intended by Subramania Iyer that he should have any separate rights to that property, he himself having reserved a right of residence there for himself as well as his wife. He only improved the property to afford suitable accommodation for himself and his wife. The building naturally will go with the property. It is not separable nor is it intended to be severed from that item and it will acquire the character of the property to which it was attached, i.e, item 29. In this item as well, the plaintiff will not be entitled to a share.

In the result, the appeal is dismissed with costs.

V.C.S