Citation Codes

Equivalent Citations

citation codes

Case Number

L.P.A No. 364 of 1952.

Attorney(S)

Mr. N. Sundara Ayyar for Appt.
Mr. C.S Swaminathan for Respts.

Judges

Rajamannar, C.J
Ramaswami, J.

Acts

Section 3, Sub-section (1) of the Hindu Women's Rights to Property Act.
provisions of the Hindu Women's Rights to Property Act.
provisions of Sub-section (3),
Sub-s. (2) of Section 3

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Smart Summary

Concise Analytical Summary of the Opinion (A.S. No. 484 of 1949)

Factual and Procedural Background

This appeal arises from a partition suit (O. S. No. 55 of 1946) instituted in the Court of the Subordinate Judge of Ottapalam. The appellant is the son of Narayana Ayyar. Narayana Ayyar and the first defendant, Kalyanarama Aiyar, were sons of Subramania Aiyar, who died in 1945 leaving his widow (the second defendant) and his two sons. By a deed of partition dated 4 February 1935 (Exhibit B-1), the father and his two sons effected a partition and separate properties were allotted to each coparcener.

The central dispute on this appeal concerns the rights of the widow (second defendant) in the non-agricultural properties left by Subramania Aiyar, under the provisions of the Hindu Women's Rights to Property Act. The trial judge awarded the widow a share; Krishnaswami Nayudu J., on first appeal, confirmed that decision. The present appeal challenges aspects of that confirmation and certain specific property allocations (items 29 and 30 in Schedule A to the plaint).

Legal Issues Presented

Whether the widow (the second defendant) is entitled to a share in the non-agricultural properties of Subramania Aiyar by virtue of Section 3(1) of the Hindu Women's Rights to Property Act — specifically, whether property obtained by a coparcener at a family partition amounts to "separate property" within Section 3(1).
If not entitled under Section 3(1), whether the widow is entitled to relief under Section 3(2) of the Act as having the same interest in the property as the deceased husband had (i.e., whether property obtained at partition should be treated as an interest in Hindu joint family property for the purposes of Section 3(2)).
What is the quantum of the widow's share in such property — whether she is entitled to the entire interest to the exclusion of the divided sons or only to some proportion (the trial judge awarded one-third).
How Clause 11 of the partition deed affects specific items: (a) item 29 (a kudiyiruppu with an existing house described in the partition schedule) — whether, on the death of Subramania Aiyar, the first defendant became exclusively entitled to the entire property subject only to the widow's right of residence; and (b) item 30 (a house built after the partition with the deceased's separate funds) — whether that house is the separate property of Subramania Aiyar and how it should be distributed.

Arguments of the Parties

Appellant's (Mr. N. Sundara Aiyar) Arguments

Challenged the trial judge's and Krishnaswami Nayudu J.'s view that the widow was entitled under Section 3(1), arguing that property allotted to a coparcener at partition is not "separate property" within the meaning of Section 3(1).
Relied on the Federal Court decision in Umayal Achi v. Lakshmi Achi (1945) to support the proposition that property held by a sole surviving coparcener or property obtained at partition cannot be treated as separate property for the purpose of Section 3(1).
Contended that Clause 11 of the partition deed (dealing with item 29) creates a devolution only on the death of both Lakshmi Ammal and Subramania Aiyar; that this creates a temporary "vacuum" between the deaths; and that such a clause is legally impermissible, so that the property should be treated as partible among the divided sons (and, given recognition of the widow's rights, she should also share).

Trial Judge / Respondent Position (as described in the opinion)

The trial judge held that the widow was entitled to a share in the property that Subramania Aiyar obtained at the partition and died possessed of, treating that allotment as "separate property" under Section 3(1) of the Hindu Women's Rights to Property Act.
Krishnaswami Nayudu J., on appeal, confirmed this view but sought to distinguish the Federal Court decision in Umayal Achi by treating property obtained as a share at a partition differently from property held by a sole surviving coparcener.
On Clause 11 regarding item 29, Krishnaswami Nayudu J. construed the clause to make the first defendant exclusively entitled to the property on the death of Subramania Aiyar, subject only to the widow's right of residence.
On item 30 (house built after partition), Krishnaswami Nayudu J. treated it in the same way as item 29, but the appellate bench disagreed and treated item 30 as separate property built post-partition.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Umayal Achi v. Lakshmi Achi, 1945-1 Mad LJ 108 (AIR 1945 FC 25)	Held that property held by a person as the last surviving coparcener of a joint family could not be regarded as "separate property" within the meaning of Section 3(1) of the Hindu Women's Rights to Property Act.	The court applied the principle and held that the reasoning of the Federal Court extends equally to property taken by a coparcener at a family partition; consequently such property is not "separate property" under Section 3(1), and the widow cannot claim under Section 3(1) on that basis.
Anant Bhikkappa v. Shankar Ramchandra, AIR 1943 PC 196	The Privy Council observed that a coparcenary subsists so long as a widow of a coparcener exists who is capable of bringing a son into existence by adoption, and referred to property held by a surviving coparcener as joint family property in his hands.	The court relied on this reasoning to support its view that property allotted at partition should be deemed an interest in joint family property for the purposes of Section 3(2) of the Act (i.e., not separate property under Section 3(1)).
Visalamma v. Jagannadharao (Orissa High Court)	Construed Section 3(2) of the Hindu Women's Rights to Property Act to the effect that properties which fall to the share of the father on partition are not his separate properties for the purpose of Section 3(1) but are joint family properties within the meaning of Section 3(2), where parties are governed by the Madras school of Hindu law.	The court cited this decision as consistent with and supportive of its construction that partition allotments are within the scope of Section 3(2) rather than Section 3(1).

Court's Reasoning and Analysis

The court analyzed the competing constructions of Sections 3(1) and 3(2) of the Hindu Women's Rights to Property Act as applied to property allotted to a coparcener on family partition.

First, it addressed the view taken by Krishnaswami Nayudu J. that a widow was entitled under Section 3(1) because the property a coparcener obtained at partition constituted "separate property." The appellant relied on the Federal Court decision in Umayal Achi v. Lakshmi Achi, which held that property held by a sole surviving coparcener was not "separate property" within Section 3(1). Krishnaswami Nayudu J. had tried to distinguish that authority on the ground that it dealt with a sole surviving coparcener, whereas the present case concerned property allotted at a partition.

The appellate court rejected that distinction. It held that the principle articulated in the Federal Court judgment — that a coparcener's power of disposition and the character of that property is qualified by the possibility of the birth (or adoption) of a son who would immediately acquire a right — applies equally to property allotted at partition. The court relied on the leading observations of Varadachariar J. (in the Federal Court judgment) explaining why property obtained at partition and property held as a surviving coparcener cannot be equated with self-acquired property for the purposes of a permanent and unfettered power of disposition.

Because the court concluded that property allotted at partition is not "separate property" within Section 3(1), it turned to Section 3(2). Section 3(2) provides that when a Hindu (other than Dayabhag) dies having at his death an interest in a Hindu joint family property, his widow shall have, subject to subsection (3), the same interest in the property as he himself had. The court reasoned that if a partition allotment is not separate property for Section 3(1) purposes, it must be deemed an interest in joint family property for the purposes of Section 3(2). It relied on the Privy Council's statement in Anant Bhikkappa v. Shankar Ramchandra that a coparcenary subsists so long as a widow of a coparcener is capable of bringing a son into existence by adoption, and on the Orissa High Court decision in Visalamma v. Jagannadharao construing Section 3(2) similarly.

On the question of quantum (what share the widow should receive), the court acknowledged a difficult unresolved issue: whether the widow takes the entire interest to the exclusion of divided sons (as held in the Orissa case) or must share with them. The bench refrained from deciding this broader point because the trial judge had awarded the widow one-third and she did not appeal to claim the entire property; consequently the appellate court left that specific resolution undisturbed and treated the question as largely academic in the present appeal (particularly as the widow died after the decree, making the finding mainly relevant to mesne profits).

The court then addressed the specific property items:

Item 29 (Madham kudiyiruppu): Clause 11 of the partition deed was construed reasonably to mean that Subramania Aiyar's share would devolve on the first defendant on Subramania Aiyar's death, subject to the widow's right of residence. The court rejected the appellant's contention that clause 11 created an impermissible vesting "vacuum" (i.e., that exclusive devolution would only arise after the death of both Subramania and his wife). The widow's right was characterized as a mere right of residence, not a proprietary right that defeated the first defendant's vesting of title to the share.
Item 30 (house built after partition): The court held that clause 11 could not affect a house that did not exist at the date of the partition. The new house (item 30) was found to have been built with the separate funds of Subramania Aiyar and therefore must be treated as his separate property, to be distributed in accordance with Hindu law read with the provisions of the Hindu Women's Rights to Property Act. The appellate court set aside Krishnaswami Nayudu J.'s decree insofar as it treated item 30 the same as item 29 and directed that the value of item 30 be included among the partible properties (with the plaintiff entitled to a one-third share; since the widow had died, the plaintiff and first defendant each become entitled to a moiety in item 30).

Holding and Implications

Holding: The court made several interrelated rulings. The core determinations are summarized below.

The widow (second defendant) cannot claim a share under Section 3(1) of the Hindu Women's Rights to Property Act by treating property allotted to Subramania Aiyar at partition as "separate property" within the meaning of that subsection.
The widow is entitled to relief under Section 3(2) of the Act: the partition allotment must be deemed an interest in Hindu joint family property for the purposes of Section 3(2), and accordingly the widow has the same interest in that property as the deceased husband had (subject to subsection (3)).
The decree of the trial court confirming that the widow was entitled to a one-third share in the non-agricultural properties was confirmed (the appellate court left the trial judge's award of one-third undisturbed because the widow did not appeal claiming a larger share). The court observed that this determination is mainly academic as the widow died after the trial court's decree; its practical effect will mainly concern mesne profits.
Item 29: Clause 11 was construed to vest Subramania Aiyar's share in the first defendant on the death of Subramania Aiyar, subject only to the widow's right of residence; therefore on Subramania Aiyar's death the first defendant became entitled to his half share in item 29 (the widow's right being non-proprietary).
Item 30: The house built after the partition with Subramania Aiyar's separate funds (item 30) is to be treated as his separate property. The appellate court set aside the earlier judgment insofar as it treated item 30 as covered by Clause 11, directed that the value of item 30 be included among the partible properties, and directed that the plaintiff have a one-third share; because the widow had died, the plaintiff and the first defendant each are now entitled to a moiety in item 30.
Final Disposition: The appeal is allowed in part and dismissed otherwise. There is no order as to costs either in the appeal or before Krishnaswami Nayudu J.

Implications: The decision directly affects the parties' rights in the specific properties in dispute: it rejects the characterization of partition allotments as "separate property" under Section 3(1) and treats them as interests in joint family property under Section 3(2) for the purposes of the widow's entitlement. The court did not announce any broad, novel rule beyond applying and extending existing authorities (notably the Federal Court and Privy Council decisions) to partition allotments; in particular, the bench declined to determine the wider question of whether a widow takes the entire interest to the exclusion of divided sons in all such cases, because that issue was not pressed to a final contest in this case.

End of summary — based exclusively on the text of the provided opinion.

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A.N Subramanian, Late Minor By G.S Lakshmi Ammal v. A.S Kalyanarama Iyer And Others

1. This appeal against the judgment or Krishna-swami Nayudu J. in A. S. No. 484 of 1949 arises out of a suit for partition filed by the appellant herein in the Court of the Subordinate Judge of Otta-palam, O. S. No. 55 of 1946. The plaintiff is the son of one Narayana Ayyar. Narayana Ayyar and the first defendant herein. Kalyanarama Aiyar, were the sons of one Subramania Aiyar who died in 1945 leaving behind him his widow, the second defendant in the case, and his two sons. It is common ground that under a deed of partition dated 4th February 1935, Ex. B-1, there was a partition between the father Subramania Ayyar and his two sons.

Separate properties were allotted to the shares of each of the three coparceners. The first question which arises in this appeal relates to the rights of the second defendant, the widow of Subramania Aiyar, in the non-agricultural properties left by him. She claimed a share relying on the provisions of the Hindu Women's Rights to Property Act and her claim was accepted by the trial Judge. On appeal by the plaintiff, Krishnaswami Nayudu J. confirmed the decision of the trial Judge on this point. Before us Mr. N. Sundara Aiyar has challenged the view taken by the trial Judge and Krishnaswami. Nayudu J. It is sufficient to deal with the reasoning of Krishnaswami Nayudu J. for the purpose of this appeal.

2. The learned Judge held that the second defendant as the widow of Subramania Aiyar was entitled to a share in the property which he got at the partition and which he died possessed of under Section 3, Sub-section (1) of the Hindu Women's Rights to Property Act. That sub-section in so far as it is material runs thus:

"When a Hindu governed by the Dayabhag School of Hindu Law dies intestate leaving any property and when a Hindu governed by any other school of Hindu law or by customary law dies intestate leaving separate property his widow, or if there is more than one widow all his widows together shall subject to the provisions of Sub-section (3), be entitled in respect of property in respect of which he dies intestate to the same share as a son."

Krishnaswaini Nayudu J. held that the property which Subramania Ayyar got for his share at the partition with his sons would be separate property within the meaning of that expression in the above section and therefore the widow would be-entitled to the benefit of that provision. Mr. Sundara Aiyar contended that this view is opposed to the principle of the decision of the Federal Court in Umayal Achi v. Lakshmi Achi 1945-1 Mad LJ 108: (AIR 1945 FC 25) (A). In that case the last owner of the suit properties, one Arunacha-lam Chettiar died leaving his two widows and the widow of a predeceased son, who claimed a share basing her right on the first proviso to Section 3(1) of the Act which runs thus: :

"Provided that the widow of a predeceased son shall Inherit in like manner as a son if there is no son surviving of such predeceased son, and shall inherit in like manner as a son's son if there is surviving a son or son's son of such predeceased son."

When he died, Arunaphalam Chettiar was the sole surviving coparcener in the joint family which owned the suit properties. It was held by the learned Judge of the Federal Court that the pro-perty held by a person as the last surviving coparcener of a joint family could not be regarded as "separate property" within the meaning of Section 3(1). Krishnaswami Nayudu J. thought that the decision in that case must be held to be confined to the case of a sole surviving coparcener and as in the present case the property was obtained by the last male holder as his share at a partition of family property, the decision would have no direct application.

He felt himself therefore free to take the view that property obtained by a member of a joint family at a partition would be separate property within the meaning of Section 3(1) of the Act. We cannot agree with him. The principle of the Federal Court decision would, in our opinion, equally apply to the case of property taken by a member of the joint family at a partition of family properties. Indeed, throughout the judgment of Vara-dachariar J. who delivered the leading Judgment, property held by a sole surviving coparcener and property which a coparcener is allotted at a family partition are mentioned together as standing on the same footing (vide pages 115, 116 and 117 (of Mad LJ): (at pp. 31, 32, 33 of AIR)). The reasoning is to be found in the following observations of varadachariar J.:

".....judged by the teat of power of disposition, two other Kinds of property held by a Hindu governed by that law, viz., property obtained as his share at a partition and property held by him as a sole surviving coparcener may, in some measure, resemble self-acquired properly. There is, however, this difference between them, viz., that in the case of self-acquired property, the owner's power of disposition will continue to remain undiminished throughout his lifetime unless he chooses voluntarily to throw it in the joint family stock, whereas in the case of the other two kinds of property his power of disposition will be-come qualified and his interest reduced the moment a son is born to him or the widow of a predeceased coparcener takes a boy in adoption. It would not therefore be right to place these three kinds of property on the same footing merely on the ground that at a particular point of time, the owner may enjoy unrestricted powers of disposition over them."

3. We therefore cannot accept as correct the distinction which Krishnaswami Nayudu J. draws between the present case and the case decided by the Federal Court on the ground that in one case it was property held by a sole surviving coparcener and in another case it was property obtained by a coparcener at a family partition. Differing from him we hold that the widow, the second defendant cannot obtain any right under Section 3(1) of the Act.

4. We, however, think that as a consequence of the reasoning of the Federal Court in the above case, the second defendant would be entitled to the benefit of Sub-s. (2) of Section 3 which is as follows:

"When a Hindu governed by any school of Hindu law other than the Dayabhag school or by customary law dies having at the time of his death an interest in a Hindu joint family property his widow shall subject to the provisions of Sub-section (3), have in the property the same interest as he himself had."

5. If the property which a coparcener obtains at a family partition is not separate property within the meaning of Section 3(1) of the Act, it must be deemed to be an interest in Hindu joint family property within the meaning of sub-section (2) of section 3. If the fact that on the birth of a son, such son would have a right by birth in the property obtained by a coparcener at a partition prevents us from holding that such property is separate property; it follows from the very fact that it should be deemed to be joint family property. As point-ed out by the Privy Council in Anant Bhikkappa v. Shankar Ramchandra, AIR 1943 PC 196 (B), a coparcenary must be held to subsist so long as there was in existence a widow of a coparcener capable of bringing a son into existence by adoption.

In that very case, their Lordships of the Judi cial Committee refer to the property held by a surviving coparcener as joint family property in his hands. Likewise it should be held that the property which a coparcener obtains at a parti-

tion is joint family property though the copar cener may, after the partition have absolute powers of alienation so long of course there is no son born to him after the partition, who would on birth be entitled to a share in such property. We find that the Orissa High Court has construed Section 3(2). of the Act in the same manner as we have indicated above in the case of Visalamma v. Ja-

gannadharao, (S) (C). In that case the learned Judges held that where a Hindu has effected a partition with his only son and the parties are governed by the Madras school of Hindu law the properties which fell to the share of the father are not his separate proper ties for the purpose of Section 3(1) but are joint fa mily properties within the meaning of Section 3(2) of the Act.

6. The more difficult point which however does not fall for decision in this case is what is the share to which the widow would be entitled in a case like the present? Will she be entitled exclusively to the property left by her husband or should she share them with the two divided sons? In the Orissa case (C), the learned Judges held that the widow would be entitled to the entire interest to the exclusion of the divided son. It may be a matter of argument that if the property held by the divided member of the family is deemed to be joint family property, the other members of the erstwhile copar-cenary must also be deemed to have an interest-in them.

We refrain from expressing our final opinion on this matter because the trial Judge awarded to the second defendant only a third share along with the plaintiff and the first defendant and there has been no appeal by the second defendant claiming the entire property. In the result we confirm the decree of the trial judge declaring that the second defendant was entitled to a third share in the non-agricultural properties left by Subramania Aiyar. Actually this finding becomes in the main academic, because the second defendant died after the decree of the trial court. The finding will be material only for. deciding the question of mesne profits.

7. The next question relates to the rights of the plaintiff in two items items 29 and 30 of Schedule A to the plaint. Item 29 is a kudiyiruppu on which there was a house at the time of the family partition. In the partition deed, item 29 was set out in schedule B. It was described as Madham Kudiyiruppu in tiled house etc., existing therein. The scheme of the partition in respect of this property was that an undivided half was allotted to the father and the other half to the first defendant. Clause 6 of the partition deed makes this clear. What has given rise to the controversy between the parties is as part of clause 11 which runs as follows:

"It has been agreed and settled that though-the madham kudiyiruppu mentioned in the D schedule belonged equally to individuals Nos. 1 and 3 (Subramania Aiyar and defendant 1) as described in paragraph 6 above, No, 1 and his wife Lakshmi Ammal mother of Nos. 2 and 3 have full right and liberty to reside in that madham Kudiyiruppu and that on the death of the aforesaid persons the said madham Kudiyiruppu will devolve upon No. 2 exclusively and that No. 3 has no right in it."

8. No. 3 is the father of the plaintiff in the suit. By virtue of this provision, the learned Judge Krishnaswami Nayudu J. held that on the death of Subramania Aiyar, the first defendant became exclusively entitled to the entire property subject only to the right of residence of his mother. Mr, Sundara Aiyar's contention was that the clause expressly provides for the devolution of Subramania Aiyar's share on the first defendant only on the death of both Lakshmi Ammal and Subramania Aiyar and till the death of both there is no vesting of Subramania Aiyar's share in the first defendant and thus there is a vacuum as it were during the period between the death of Subramania Aiyar and the death of Lakshmi Ammal.

Legally such a vacuum is not permissible and therefore the provision is not valid and the property should be divided between the two sons, plaintiff's father and the first defendant, as divided sons of the father; and now that we have held that Subramania Aiyar's widow is also entitled she will also be entitled to a share likewise. Though there is force in this contention, we think that on a reasonable construction of this clause, the intention pf the parties is clear, viz, that Subramania Aiyar's share should devolve on the first defendant subject only to the reservation of the right of residence in favour of the widow of Subramania Aiyar.

The widow had no proprietary right in her husband's share of the property and all that she was entitled was only to a right of residence. The clause only provides for the continuance of the right of residence conferred on the widow even after the death of Subramania Aiyar. Till her death the first defendant may not be said to be exclusively entitled to the property because there would be this burden of his mother's right of residence. We agree with Krishnaswami Nayudu J. in his construction of this clause and hold that on the death of Subramania Aiyar, the first defendant became entitled to his half share in item 29.

9. Item 30 is a house admittedly built subsequent to the partition and it has been now found that the house was built with the separate funds of Subramania Aiyar, Obviously clause 11 of the partition deed did not, and could not, relate to the house which came into existence after the partition. But Krishnaswami Nayudu J. constru-ed that no distinction could be made between the old house in item 29 and the new house built subsequent to the partition. But we think otherwise. Clause 11 cannot possibly affect the rights of the parties under the general law, to the house which admittedly was not in existence at the date of the partition. Take for example, the right of residence. It cannot be said that Subramania Aiyar and his wife would have a right of residence in the new house built by him only because of the provision in clause 11. Subramania Aiyar and his wife would be entitled to reside in the new house built by the former in his own right.

Item 30 must, therefore, be treated as the separate property of Subramania Aiyar which devolved on his heirs in accordance with Hindu law read with the provisions of the Hindu Women's Rights to Property Act. We set aside the decree and judgment of Krishnaswami Nayudu J. so far as item 30 is concerned and direct that the value of the building, which is item 30, be included among the partible properties in which the plaintiff will have a third share. How exactly the division should be made between the parties must be left to the final decree proceedings. As the widow has died, the plaintiff and the first defendant would now be entitled each to a moiety in item 30. The preliminary decree will be drafted accordingly. (10) The appeal is allowed in part and dismissed otherwise in accordance with the above findings. There will be no order as to costs either in this appeal or before Krishnaswami Nayudu J.

A.N Subramanian, Late Minor By G.S Lakshmi Ammal v. A.S Kalyanarama Iyer And Others

Concise Analytical Summary of the Opinion (A.S. No. 484 of 1949)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's (Mr. N. Sundara Aiyar) Arguments

Trial Judge / Respondent Position (as described in the opinion)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

A.N Subramanian, Late Minor By G.S Lakshmi Ammal v. A.S Kalyanarama Iyer And Others

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