1. In a suit for partition tried before the learned subordinate Judge of Erode (U. S. No. 87 of 1956), the following were the relationships between the parties, which will also explain the array of the parties before us in the respective appeals. There was a certain Marimuthu Pillai who had, two wives, the junior wife being the second defendant in the suit. By the senior wife, he had two sons, the first defendant and one Rajagopala Pillai, who is dead, the husband of the third defendant. The plaintiff is the son by the junior wife, and defendants 4 and 5 are the daughters of the third defendant and Rajagopala Pillai aforesaid. The sixth defendant, who is a party with significant claims relative only to certain properties ct. D schedule, is alleged to be the permanently Kept mistress of the first defendant. Defendants 7 to 116 were Impleaded as tenants of B schedule properties, and with most of those parties we are not now concerned. But we might briefly note that defendants 102 and 115 are the sons of the first defendant.

2. App. No. 322 of 1959 has been preferred by defendants 102 and 115, the sons of the first defendant earlier referred to, App. Mo. 280 of 1959 has been preferred by the father (first defendant), and App. No. 440 of 1959 has been preferred by the second defendant (Parmayee Ammal alias Thangammai) the junior wife, the memorandum of cross objections in App. NO. 322 of 1959 has been instituted by the plaintiff, and is confined to certain restricted pleas that we shall later take note of.

In this context itself, it will be necessary to note that the deceased Marimuthu Pillai left considerable moveable and immoveable properties, at the time of his death, inciting substantial cash, and securities such as fixed deposits in two locked iron safes. Several of the areas of controversy in this suit, such as the truth of a prior alleged partition, or the actual shares of the parties, are' no longer in dispute. It is not in dispute that the disruption or the family was on 15-12-1953, with the notice given by the plaintiff of his severance in status, and that the death of the father occurred on 104-1953. it is not now in dispute that the plaintiff is entitled to a fourth share of the assets, second defendant similarly to a fourth snare, defendants 1 and 3 each to a fourth. The parties agree that the properties were divided after the suit by mutual co-operation between them, and that there was an interim final decree on 19-11-1954, at which the immoveable properties were apportioned.

3. In view of the above facts, and as we indicated earlier, it is with regard to certain restricted areas of the controversy alone that the appeals have been, argued before us. As far as the two ladies in the suit were concerned, namely, the second defendant and the third defendant, the interim final decree specified and declared the items allotted to them, in terms of a consent between the parties, this is a consent decree, which has become final. Nevertheless, subsequent to the suit, a contention arose whether the limited' interest obtained by these ladies under that decree, became enlarged to an absolute interest by virtue of Section 14(1) of Act XXX of 1956, and the extent to which Section 14(2) of that Act affected such enlargement. it will be immediately noticed that at the time of the interim final decree, the nature of the interest obtained by these ladies had necessarily to be defined in terms of Section 3(2) of Act XVII of 1937. The only parties who could raise this controversy were the first defendant and his sons, defendants 102 and 115; even with regard to them, the point was highly academic. They are not the immediate reversioners to the ladies, assuming that the court had to anticipate rights to the properties after the; respective lives of the ladies who have also made alienations of some items and they could be regarded even as ultimate reversioners only by the contemplation of several contingencies which cannot now be possibly foreseen.

In that situation, it was indeed unfortunate that the parties invited the adjudication of court upon the additional issues which were framed on 22-8-1958, with reference to the rights of the ladies under Act XXX of 1956. This did not arise within the ambit of the suit at all, and was wholly superfluous for the determination or any present claim in the suit. Nevertheless, as we find from the record, the parties not merely invited the adjudication of court, but advanced pleadings and their learned counsel adduced arguments upon the relevant additional issues. The learned Subordinate Judge came to the conclusion, on a consideration of the aspects of this matter, that defendants 2 and 3 were entitled to the allotted snares not merely as limited owners, but as absolute owners, whose rights had been enlarged by virtue of Section 14(1) of the Hindu Succession Act.

4. As we have now been invited by the learned counsel for defendant 1 and his sons to set aside this finding upon certain arguments, we shall immediately dispose or this matter, before proceeding to the factual areas of the other claims in the suit.

5. We have perused the interim final decree, which was the consent decree in this suit, and, undoubtedly which it does declare the rights of these ladies to specific properties by virtue of the effect of Section 3 (2) of the 1937 Act, the nature of that interest is not specified in any manner; indeed, it was wholly unnecessary to do that for the purpose of the decree, considering the law as it then stood. Nobody could possibly have anticipated Act XXX of 1956, or the enactment of Section 14(1) and (2), and the court went no further than crystallising the rights of the ladies in terms of the specific properties. Further, in. a partition suit, that was undoubtedly the proper course, and nothing further was called for. Now, Section 14(2) of the Act XXX of 1956 is in the following terms:

"Nothing contained in Sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other Instrument or the decree, order or award prescribe a restricted estate in such property"

It is obvious that, with regard to any argument founded upon Section 14(2) as affecting that conclusion of the trial court that the interest of the ladies was enlarged to an absolute one by virtue of Section 14(1), the real question would be whether the ladies "acquired" the right under the decree, and whether the decree did prescribe a restricted estate in the property. Upon both these points, a decision of this court in which a very similar argument was dealt with is Sampath Kumari v. Laksnmiammal, ILR (1962) Mad 832: (AIR 19S3 Mad 50), the Bench decision of Ganapatia Pillai and Venkataraman JJ. It is seen from the judgment of Venkataraman J. where the facts are elaborately dealt with, that there was a feature in that case more in favour of the argument than in the present case, in that the partition deed on that case did use some words indicative of a restricted estate or right. As observed by the learned Judge at p. S55 (of ILR Mad) : (at p. 60 of AIR) "It concludes with the recital that after their lives, the properties mentioned in the two schedules should go to the heirs at law".

But even then, the court held that it merely specified what would have otherwise happened, namely, the devolution of the properties according to law, and that these were not words restricting the estate.

In the present case, the interim final decree admittedly contains no hint or suggestion of any kind, of a limited or restricted estate; indeed, it is incontrovertible that there is no language used defining or describing the nature of the interest as qualified or otherwise. It is pleaded that a necessary intendment can be spelt out from the circumstances under which the decree was passed, but we do nor think that we can possibly accept this argument, in view of the observation in ILR (1962) Mad 832 : (AIR 1953 wad (50). Next, with regard to the word "acquired" occurring in Section 14(2), the Bench decision is even more heavily against defendant 1 and his sons. The learned judges ob serve, in this context as follows:

"The word 'acquired' means that prior to the acquisition, the widows could not have had any interest in the lands whatever. Though the point is simple and obvious, still it would not be out of place to refer to the decisions cited....."

A little earlier than this, the learned Judges observed that the widows had acquired the rights by inheritance even prior to the partition deed, which merely crystallised those rights. On this argument also, it could not be contended that Section 14(2) of the Act affects the right of the ladies under the consent decree, and prevents the operation of Section 14(1) in their favour.

6. Nevertheless, having held so far, we must point out that there is another legal aspect of this problem or a conundrum, which has not been dealt with by the trial court, and which we are not now dealing with. We must emphasise that the conclusion on the additional issues was directly outside the ambit of the partition suit, and that we are not interfering with the findings on that aspect which were furnished only with regard to the argument addressed before the trial judge, namely, the effect of Section 14(2) as affecting the possible enlargement under Section 14(1).

Learned counsel for defendant 1 and his sons has cited one or two decisions in support of his argument on the main question but they are really inconclusive and not directly applicable. Thus, the Privy Council case in Abdul Aziz Khan v. Appayasami Naicker, ILR 27 Maq 131 (PC), relates to the very different case of the rights of a holder by primogeniture of an impartible zamindari, and the nature of his interest, as resulting from a previously accepted interpretation of law and the subsequent decisions of the Judicial Committee in Sartaj Kuari v. Deoraj Kuari 15 Ind App 51 (PC) and Venkatasurya v. Court of Wards, 26 Ind App 83 (PC). The Judicial Committee observed that the reversal of the previously accepted interpretation did not displace its application to the contract contained in the certificate of sale of 18/6 The decision does not really impinge on the present facts, for here we are concerned, not with the interpretation of the law in. Judicial precedents, but with the effects of a specific enactment.

Similarly, the Bench decision of Rajamannar C. J. and Jagadisan J. in venkataraman v. Lakshmiammal is merely authority for the view that because of Section 14 of the Hindu Succession Act of 1956, Section 151 C. P. C. could confer no power on a court to vary a consent decree under which a limited estate was granted, in terms, before the coming into force of the amended Succession Act. This also has no relevance to the present situation.

But the aspect of the law, which we think has to be sequestrated from the scope of this appeal, is the validity of Section 14(1) itself, in the light of Section 3 (2) of the 1937 Act. The argument of Sri Vedantachanar for defendant and his sons on this aspect is that Section 3 (2) no doubt declares certain rights in favour of Hindu women, but does not put an end to the concept of the coparcenery or us continuance: actually, it could well be pleaded that, on the contrary, the section really includes women among those entitled to property rights within the coparcenary, and thereby ensures certain interests in their favour. The further argument is that a right granted for such a restricted purpose, under the statute, could not be validly enlarged by a subsequent Act into an absolute right which would affect the concept of the coparcenery itself, without infringing Article 19 of the Constitution and without being unconstitutional.

Upon a parity of reasoning, the decision of the supreme Court in Kochuni v. States of Madras and Kerala, is relied upon in support. Alternatively, it is contended that Section 3 (2) of the 193/ Act would be unconstitutional and ultra vires of the Legislature; per contra, learned counsel for defendants 2 and 3 argues that the validity of Section 3 (2) was admitted, and made the basis of the consent decree. We are not adjudicating upon these grounds for two important reasons. Firstly, as we observed earlier, defendant 1 and his sons are possible remote reversioners, in the light of changes which may or may not occur in the future. Secondly, if the grounds urged by learned counsel, as affecting the constitutional validity of Section 14(1) is tenable and correct, it is difficult to see how there could be an estopped against it merely because of the decision of the trial court on the additional issues. for these reasons, we are unable to hold that these grounds would also be concluded by res judicata between the present parties. We leave the matter at that, since there is no other need to interfere with the decree of that court on that aspect.

7. We might now pass on to those areas of controversy, which are really issues of tact. The most important of them are (1) the declaration by the court below that the four items in D schedule belong to the sixth defendant the concubine of the first defendant, and have to be excluded from the scope of the partition. It is strenuously contended, per contra, that these Items were acquired with the family funds while Marimuthu Pillai was incapacitated by cataract, and the junior coparcener (first dependant) was in virtual management of the family properties. The argument is that, during such management, the first defendant took advantage of a situation heavily in his favour, to sequestrate certain funds and to purchase properties for the sixth defendant, In her name this concubine being otherwise impecunious, and totally not in a position to acquire the properties.

The learned Subordinate Judge has fully discussed we particulars of the evidence on this aspect, and it is sufficient for us to indicate the major features, it is true, as proved by the documentary evidence, that the sixth defendant originally files a suit for maintenance against nor husband, and was awarded Rs. 10 per mensem, that she was living by cooly work for sometime, and that she was living on rent In Poonthottam belonging to Manmuthu Pillai, But items 1 to 4 of D schedule properties were acquired very much later, and her case is that she acquired them out of earnings of milk trade which she conducted, and leases of coconut and topioca gardens. True it is that the sixth defendant herself has kept out of the witness-box, but she examined D. Ws. 5, 6 and 7 in support of her contentions, with regard to the question whether she was or was not the concubine of the first defendant. We are unable to agree with the learned Subordinate judge that there is only suspicion, and that suspicion is not equivalent 10 proof. on the contrary, We rice ration cards exhibited in the case, as well as the particulars given in certain of the documents establish it beyond doubt that the sixth defendant was living with the first defendant, and was more or less regarded by him as the wife. Even so, and even assuming that, from the circumstances of her original livelihood, the sixth defendant could not have acquired those properties by her existence, so we are nevertheless quite unable to see how these items of the D schedule properties could possibly be regarded as joint family properties. The major facts remain that Marimuthu Pillai was the father and manager of the Joint family ant there is no adequate evidence to show that he had abdicated all his functions in favour of the first defendant. The first defendant, a junior member, might nave de facto managed certain affairs, but that does nut necessarily indicate that he had control of all the income from the very extensive properties of this family. Again, the fact that Dasa Naidu, the accountant of Marimuthu Pillai, figures in such document as Ex.-36 does not necessarily establish that the consideration for the acquisition was from family funds.

Above all, there is really no specific case either of benami or of a trust, or of the tracing of the properties by virtue of such trust. In Hindu law, it is impossible to spell out any such case, where We situation is that the concubine of a junior member acquires properties, even assuming that moneys were presented to her. Such moneys, from some share of the joint family income taken from the junior member, cannot be recalled or traced and realised where they have been given as presents and have been embodied in immoveable properties acquired by the concubine, there is no doctrine of advancement applicable to any such case, nor any doctrine of the tracing of trust properties, The evidence is wholly inadequate to establish a nexus between the joint family funds and the sources of the acquisition of items 1 to 4 of 0 schedule properties, even granting that the sixth defendant must have received presents from her paramour, the first defendant. Under those circumstances, this contention cannot be accepted and the findings on those issues have to be confirmed.

8. Next, we are concerned with the contentions raised by the 2nd defendant, with reference to a large sum in the iron safe for which she has been held accountable as well as the contents of two promissory notes, and certain family Jewels.

(His Lordship examined the evidence and continued).

9. In the result, therefore, the appeals and the memorandum of cross objections by the plaintiff are dismissed, except to the extent of the modification furnished by us above. (Rest of the judgment is not necessary for the purpose of this Report.)