(Delivered by Patanjali Sastri, J.)

These two connected appeals have been brought from a preliminary decree in a partition suit. One Ramachandra Rao died on 23rd February 1939 leaving him surviving his widow (plaintiff), two sons (defendants 1 and 2) and an unmarried daughter by his predeceased wife (3rd defendant) and his mother (6th defendant). The sons and daughter being minors were represented by their maternal grandfather the 4th defendant who was appointed as their guardian for the suit. The fifth defendant was a stranger with whom Ramachandra Rao carried on business in partnership as retailer of fancy goods under the style of Friends and Co. Soon after the death of Ramachandra Rao there were magisterial proceedings and inventories were prepared of the moveables in the house including the articles belonging to the Friends and Co. which had its shop in the front rooms of the same premises. The plaintiff sued for partition and delivery of a third share of Ramachandra Rao's properties which were set out in five schedules annexed to the plaint.

As Ramachandra Rao died undivided from his sons, the plaintiff's right to a share could only be based on the Hindu Women's Rights to Property Act, 1937, and though the claim was originally made in respect of all the properties it was conceded that she was not entitled to a share in the agricultural lands forming part of the estate, as it has since been held by the Federal Court that the Act does not operate to regulate succession to agricultural land in the Governor's Provinces but operates only in respect of other kinds of property [See In re. the Hindu Women's Rights to Property Act (1)]. In the absence of parallel legislation by the Legislature of this Province in regard to agricultural land this decision has given rise to new problems in apportioning or allocating, among the full and partial cosharers, the common obligations to be borne by the estate as a whole, such as claims of creditors, maintenance holders, and unmarried daughters, and some of those problems arise for consideration in the present case.

The first contention raised by Mr. Raghava Rao for the plaintiff relates to a mango grove (item 36 schedule A) forming part of the estate. The Court below negatived the plaintiff's claim to a share therein on the ground that it is agricultural land succession to which is not regulated by the Hindu Women's Rights to Property Act. While it has been held in the decision already referred to that succession to “agricultural land” is a subject within the exclusive competence of the Provincial Legislature, there is no indication in the judgment as to what is “agricultural land” within the meaning of the entries No. 21 of List II and No. 7 of List III of Schedule VII of the Government of India Act, 1935. No case throwing light on the point has been brought to our notice though numerous decisions were cited as to the connotation of the term “agricultural” or “agriculture” occurring in various other enactments relating, for the most part, to tenancy legislation in this and other Provinces. Many of these statutes contain their own definitions of the term and even where there is no definition the term had to be interpreted in the light of the object and general policy underlying the particular enactment and of other indications afforded by it. It seems to us therefore not profitable to discuss in detail any of those decisions as they cannot afford any useful guidance in the interpretation of the expression “agricultural land” in the Constitution Act. That Act has not defined the term which has accordingly to be interpreted in its ordinary sense controlled, no doubt, by the context of the Act.

It is somewhat remarkable that a word in such common use as “agriculture” should have given rise to a great divergence of judicial opinion in regard to its interpretation. In Murugesa Chetti v. Chinnathambi Goundan (2) Bhashyam Ayyangar J. pointed out that the word was susceptible of a wider and a narrower interpretation and that in its more general sense signified “not only all field cultivation by tillage but also all garden cultivation for the purpose chiefly of procuring vegetables or fruits as food for man or beast and other products fit for human consumption by way of luxury, if not as an article of diet.” Shepherd J. was of opinion that in ordinary parlance neither a man who planted fruit trees or bushes in an enclosed space nor still less one who planted and maintained trees for firewood or other such purposes would be called an agriculturist. He recognised, however, that the word “agriculture” was capable of being applied to tillage of the soil in its widest sense and agreed with his learned colleague that the lease of a betel garden was a lease for “agricultural purposes” within the meaning of S. 117 of the Transfer of Property Act which does not contain a definition of the term. In Rajah of Venkatagiri v. Ayyappa Reddi (3) Sadasiva Ayyar J. expressed the opinion that the ordinary meaning of agriculture was the raising of annual or periodical grain crops through the operation of ploughing, sowing etc. In Panadai Pathan v. Ramasami Chetti Spencer J. criticised, the definitions of Bhashyam Ayyangar J. and Sadasiva Ayyar J. as being too narrow as they would exclude cultivation of flower, indigo, cotton, jute, flax etc., from agriculture. According to him “agriculture” connotes “the raising of useful or valuable products which derive nutriment from the soil with the aid of human skill or labour” and will include “horticulture, arboriculture, and silviculture in all cases where the growth of trees is effected by the expenditure of human care and attention in such operations as those of ploughing, sowing, planting, pruning, manuring, watering, protecting etc.” Ramesam J. referred to the definitions in several dictionaries and English statutes and was inclined to think that the term would include the rearing of any plants requiring “some preparation of the ground and subsequent care by watering the plants.” The learned Judges held that growing casuarina trees was an agricultural purpose under S. 117 of the Transfer of Property Act. These views were in turn criticised by Reilly J. in Chandrasekhara Bharathi Swamigal v. Doraiswami Naidu as being the “result rather of stretching than of defining the word (agriculture)” and as ignoring the first two syllables of that word. The learned Judge thought that according to its derivation it meant the cultivation of an open space as opposed to horticulture the cultivation of a comparatively small enclosed space. He would reject the test based on the nature of the products cultivated and define the term “rather by the circumstances in which the cultivation is carried on.” He was accordingly of opinion that “the planting of timber or firewood trees which are to stand on the land for a considerable number of years, forming plantations or woods or forests was opposed to the idea of agriculture the cultivation of an open space,” notwithstanding that it might be necessary, for the purpose of growing such trees, first to prepare the land and later on to protect and water them. Relying also on certain indications in the Madras Estates Land Act he held, with the concurrence of Ananthakrishna Ayyar J. that growing casuarina trees for fuel was not an agricultural purpose within the meaning of that Act. It is unnecessary to refer to the decisions of the other High Courts as those to which reference has been made sufficiently illustrate the difficulty in defining the term which admits of different interpretations.

Mr. Raghava Rao however claimed that the decision of the Privy Council in Kesho Prasad Singh v. Sheo Pragash Ojha practically concluded the point in his favour, as it related more or less to the same kind of property as we are now considering, viz., grove land. It was a pronouncement on appeal from the decision in Kesho Prasad Singh v. Sheo Pragash Ojha (4) where, following a line of cases decided by that Court, it was held that land granted by a Zamindar “for the purpose of planting a grove the grantee agreeing to deliver one half of the fruit to the Zamindar” was not “land held for agricultural purposes” within the meaning of the Agra Tenancy Act. It would, however, appear that the earlier decisions in that Province were based on the peculiar status of “grove holders pure and simple” who had no rights in the land after the trees were cut. Their Lordships simply expressed their agreement with the opinion of the High Court that “it is impossible to hold that section (S. 79) has any application whatever to such a property as the grove in fact is.” There is no discussion as to the connotation of the term “agriculture,” and no test of any general application is indicated. We cannot therefore regard the decision as a conclusive authority on the question we have to decide in this case.

As we have already poited out, the term “agriculture” is used in different senses and in order to ascertain in what sense it is used in the Legislative Lists in Sch. VII of the Constitution Act, we must have regard to the object and purpose of S. 100 of which these Lists really form part. That section deals with the distribution of Legislative powers as between the Federal and Provincial Legislatures, and the Lists enumerate the “matters” in respect of which those Legislatures have or have not power to make laws. In such context it seems to us that the expression “agricultural land”, must receive the widest meaning, for it would be somewhat grotesque to suppose that Parliament intended that lands devoted to the production of one kind of crop should devolve according to laws passed by Provincial Legislatures, while those used for growing another kind should pass according to laws made by the Central Legislature, or that “the circumstances in which the cultivation is carried on” [per Reilly J. in Chandrasekhara Bharathi Swamigal v. Doraiswami Naidu ,] should determine the law which governs the devolution of the land. Nor could it have been intended that succession to such lands should depend on the degree of tillage, or preparation of the soil or of the skill and labour expended in rearing and maintaining the plants. We are of opinion that for the purposes of the relevant entries in Lists II and III of Schedule VII, the expression “agricultural lands” must be taken to include lands which are used or are capable of being used for raising any valuable plants or trees or for any other purpose of husbandry. It follows that the mango grove in question is agricultural land in respect of which the Hindu Women's Rights to Property Act, 1937, does not operate to regulate succession.

The only other items of Schedule A as to which the plaintiff raised any objection before us are 31 and 32 a house and a site, which the fourth defendant, who was managing the properties on behalf of defendants 1 and 2 as their guardian, sold for Rs. 1750 during the pendency of the suit. It was objected that the sale was for a low value and could not bind the plaintiff, but the lower Court has observed that neither the sale nor the price was questioned, and it has decreed to the plaintiff her share of the sale proceeds. The objection cannot therefore be entertained at this stage.

The objections relating to the moveables comprised in Schedules B and B-1 however, require more serious consideration. Before dealing with these objections, it is necessary to mention that Ramachandra Rao was the adopted son of one Bapanayya who had two divided brothers, Subba Rao and Sriramulu. Subba Rao died in 1931 leaving a will whereby, after making certain bequests he left the residue of his properties, moveable and immoveable, to his wife to be enjoyed for her lifetime and, after her death to his brothers Bapanayya and Sriramulu. Subba Rao's widow died in 1933. The residue of Subba Rao's estate thereupon passed to Bapanayya and Sriramulu who having become divided were living separately. Evidently, these brothers must have divided the properties thus obtained by them under Subba Rao's will and these must have included moveables. Sriramulu who was examined as a witness no doubt denied that any moveables of Subba Rao came either to himself or to Bapanayya. But it is difficult to believe this statement as it is common ground that among the moveables found in the house of Bapanayya's adopted son Ramachandra Rao were several articles bearing the initials of Subba Rao. It is therefore probable, as suggested for the plaintiff, that Subba Rao also left some moveable properties, that these were divided between the surviving brothers Bapanayya and Sriramulu and that those got by Bapanayya for his share passed to Ramachandra Rao and were accordingly found in his house. Now, the learned District Judge disallowed the plaintiff's claim to a share in the moveables which bear the initials of Subba Rao, and the plaintiff's contention is that she should have been given a third share in these items as well. In view of what we have stated above, the contention must be accepted and she will be allowed a third share in these items.

The plaintiff's claim to a share in item 318 of B-1 schedule must also succeed for the same reason. This item also bears the name of Subba Rao and it is referred to as the “big iron safe” in the inventory, Ex. P-1. While the learned District Judge has allowed the plaintiff's claim to three other iron safes found in the house, he excluded this item from the divisible properties remarking merely that “it is not likely to have been owned by Ramachandra Rao.” Sriramulu claimed a “big iron safe in the shop of Ramachandra Rao” referring probably to this item. But there is no acceptable evidence in support of his claim and for the reasons we have already indicated in connection with the other items bearing the initials of Subba Rao, the plaintiff must be allowed a share in this item also.

Then, as regards the jewels and gold and silver articles comprised in B and B-1 schedules the defendants claimed that the items specified in paragraph 17(a) of their written statement belonged to the sixth defendant as her stridhanam properties and that the items specified in paragraph 17-b, belonged to Raghavamma, the predeceased first wife of Ramachandra Rao, which on her death passed to the third defendant, her daughter. The Court below upheld the claims of defendants 3 and 6 and excluded these items from the division. The plaintiff objects that these items were not the stridhanam jewels of the sixth defendant or of Raghavamma but were family jewels in which she was entitled to a share. But, as pointed out by the learned Judge, the evidence that Ramachandra Rao owned any jewels as family jewels, i.e, jewels not belonging to any particular lady of the family but belonging to the family itself, which any lady of the family might wear as occasion arose, is meagre and not acceptable. The only witness who speaks to the existence of such family jewels, viz., the plaintiff's father, while saying that rich Vysia families have family jewels, admits that he does not know personally whether Ramachandra Rao had any such jewels. On the other hand, the paternal uncle of Ramachandra Rao, his natural father and his adoptive mother, have all deposed that there were no jewels owned by Ramachandra Rao's family apart from jewels belonging to one or other of the ladies of the family. The plaintiff herself claims that the jewels which she is wearing on her person are her own and do not belong to the family. It was admitted by her father that the sixth defendant had jewels worth about Rs. 5000, though he added that she gave them away to her brother. The latter, however, denied that any jewels had been given to him by the sixth defendant. There is also other evidence that the sixth defendant had jewels worth about Rs. 6,000 and that Raghavamma had jewels of considerable value, worth about Rs. 7,000 or 8,000. In such circumstances, the conclusion of the learned Judge that there were no family jewels owned by Ramachandra Rao, that all the jewels in the possession of the family belonged to one or other of the ladies in the family and that, the plaintiff having taken away her jewels, those now found in the family house should be taken to belong to the other ladies is, in our opinion, correct. It follows that the plaintiff is not entitled to any share in the jewels now claimed by the sixth and third defendants respectively in paragraph 17(a) and (b) of their written statement.

These paragraphs, however, include not merely items of jewels, but also other items which are gold and silver vessels. It seems to us that the plaintiff's claim to a share in these articles stands on a different footing. While it may well be presumed that the jewels found in the possession of a family belong to one or other of the ladies of the family as stridhanam property in the absence of any clear evidence that they are family jewels, no such presumption can safely be made in respect of the gold and silver vessels and articles in the possession of the family. As regards these moveables we consider that they must be treated as belonging to the family unless there is clear evidence that they belong to one or other of the ladies of the family and the plaintiff must he allowed a share in these items. The evidence will have to be examined from this standpoint.

The next contention in the plaintiff's appeal relates to her claim with reference to the outstandings due to Friends and Co., and the articles constituting its stock on hand at the time of dissolution. These are covered by Schedules C and D of the plaint respectively. As already stated, Ramachandra Rao was a partner with the fifth defendant in the fancy goods trade and the partnership must be deemed to have been dissolved on the death of Ramachandra Rao. The plaintiff's claim as against the fifth defendant must therefore be viewed as one made by one of the representatives of a deceased partner for an account of the dissolved partnership against the surviving partner, the other representatives being also made parties to the suit. Having assumed that there were no liabilities of the firm to pay, the plaintiff merely prayed for her share in the outstandings alleged to be due to the firm and the articles found in the premises at the time of Ramachandra Rao's death. But it cannot be disputed that the plaintiff's claim as against the fifth defendant was really one for taking accounts of the dissolved partnership and for payment to her of her share of what might be found to be payable to the deceased partner. The plaintiff valued in her plaint the stock on hand of Friends and Co., and outstandings due to that firm as on the date of dissolution at about Rs. 8000. In answer to this claim it was pleaded that the net assets of the firm at the time of the death of Ramachandra Rao did not exceed Rs. 3000 in value of which the half share of Ramachandra Rao, was only Rs. 1500, and that no claim to relief in respect of the dissolved partnership could be joined in this suit. The plea of misjoinder was negatived by the lower Court and was not pressed before us. In the course of the trial, the fifth defendant put forward an arrangement between himself and the fourth defendant acting as the guardian of defendants 1 and 2, whereby it was settled that, at the time of Ramachandra Rao's death, the outstandings due to the firm should be valued at about Rs. 1000 and the stock on hand at about Rs. 2000, and that these should be taken over by the fifth defendant on his paying to the fourth defendant Rs. 1650 representing half their value to the share of Ramachandra Rao. According to the fifth defendant the arrangement as well as the taking over of the assets by him was in 1939. The valuation was said to have been made by the fourth defendant and two other persons after making enquiries of some shop keepers. But these persons called by the defendants as witnesses do not support the story; and neither the receipts which are said to have passed between the fourth and fifth defendants at the time of the arrangement nor the account books of the firm, which are admittedly in existence and in which entries relating to the arrangement and the consequent payment would have been made if it was true, have been produced. In such circumstances there is room for serious doubt as to whether the alleged arrangement of 1939 was true, more especially as it was not put forward in the written statements of the defendants which were filed in September, 1940. In any case, it is admitted that the plaintiff was not a party to the alleged arrangement which cannot therefore bind her even if it was true. The learned District Judge has, however, accepted the fifth defendant's story as to the arrangement and, being of opinion that it was a fair one, has held that it was binding on the plaintiff though she was not a party to it. For the reasons already indicated we are unable to agree with the learned Judge's conclusion on this part of the case. The fifth defendant who has admittedly taken charge of all the assets of the firm as they stood at the time of the death of Ramachandra Rao is bound to account to the plaintiff for her share of the net assets due to the deceased partner at the time of the dissolution, with subsequent interest at six per cent per annum.

The only other dispute raised in the plaintiff's appeal relates to her right of maintenance. As already stated, in her plaint which was filed before the decision of the Federal Court referred to above, the plaintiff claimed a third share of the entire family estate, but in view of that decision the claim, so far as it related to agricultural lands which form a considerable portion of the estate, has failed. It is therefore urged for the plaintiff that she is entitled to maintenance as against these properties which have passed exclusively to defendants 1 and 2 and that such maintenance should also be provided for in this suit. As there is no prayer for this relief in the plaint, we have acceded to the plaintiff's request to allow her to amend the plaint suitably so as to raise this matter. The question accordingly arises whether, notwithstanding the right to a share in the non-agricultural properties of the family allowed to her under the Hindu Women's Rights to Property Act, 1937, the widow of a deceased coparcener is still entitled to any right of maintenance as under the ordinary Hindu Law. It seems to us that this question must be answered in the affirmative. It may well be that, if the Act conferred upon the widow a right of succession in respect of all her husband's property, the right of maintenance allowed to her under the ordinary Hindu Law as compensation for her exclusion from inheritance would no longer be available, although nothing is said in the Act about rights of maintenance. But that is not the position according to the decision of the Federal Court already referred to. The widow still stands excluded from succession to agricultural land in the absence of provincial legislation on parallel lines in respect of such land. It cannot, therefore, be said that the reason of the right has ceased to exist and the right is gone. It would be strange and anomalous if, as a result of an enactment designed to give “better rights” to the widow, she were to be placed in a worse position by being deprived of her pre-existing right of maintenance, with consequences which may well prove disastrous where the bulk of her husband's joint or separate property consists of agricultural land. We are therefore of opinion that the plaintiff is entitled to maintenance notwithstanding her right under the Act to a share in the non-agricultural part of the family estate. This share will, of course, be taken into account in determining the sum payable to her. A similar conclusion, it may be observed, was reached by King, J. in Venkata Subbarattamma v. Krishniah .

The main contentions raised in the defendant's appeal were in regard to the provision to be made for certain common charges on the family estate. The third defendant claimed that a provision should be made for her maintenance until her marriage and for her marriage expenses. She also claimed that the jewels of her mother Raghavamma, the predeceased first wife of Ramachandra Rao, having been given away by the latter to the plaintiff, their value should be paid to her as the stridhanam heir of her mother out of the estate as a liability incurred by Ramachandra Rao. The sixth defendant the adoptive mother of Ramachandra Rao also claimed maintenance for herself. These claims were the subject matters of issues 6 to 9, but the learned Judge below has left them undetermined, as in his opinion it would be unfair to charge the limited property in which the plaintiff is entitled to a share with these liabilities which should be more appropriately dealt with at a general partition of all the family properties between defendants 1 and 2. While it would no doubt be unfair to the plaintiff to debit the common liabilities chargeable to the family estate as a whole against the non-agricultural part of it, for that would result in the agricultural lands in the hands of the defendants, which in this case form the bulk of the family estate escaping their just share of the burden, it would on the other hand, be unfair to defendants 1 and 2 to give the plaintiff her share in the non-agricultural part freed from these liabilities as the learned Judge has done, for this would have the result, overlooked by him, of making these defendants solely responsible for the payment of these charges. It seems to us that the only equitable way of dealing with these common liabilities will be to apportion them between the non-agricultural part of the estate and the agricultural lands according to their respective value after ascertaining the same, though these lands do not fall to be partitioned in this suit, and to charge to the share decreed to the plaintiff a proportionate part of what is found debitable to the non-agricultural part of the estate on such apportionment. It was said that such an apportionment would not have due regard to the fact that while the plaintiff gets only the limited estate of a widow in the share allowed to her under the new Act, the shares of defendants 1 and 2 have passed to them absolutely. But it is to be remembered that the liabilities are a charge on the estate as a whole, and what is divisible among the co-sharers is only the residue after setting apart what is necessary to meet these liabilities. The fact that the widow is given only a limited right under the Act in the net divisible fund can have no relevance in the apportionment of the liabilities among those who share it. We accordingly direct that provision should be made for the maintenance and marriage expenses claimed before the plaintiff is given a decree for her share in the assets divisible in this suit.

As regards the third defendant's claim for the value of her mother's jewels alleged to have been given to the plaintiff by Ramachandra Rao, we consider that she should seek her remedy in a separate suit as it raises various questions which cannot be conveniently gone into in this suit.

A minor point was raised as regards the date from which the plaintiff was to be awarded mesne profits in respect of the third share of the immoveable properties other than agricultural lands allowed to her. The lower Court held that she was entitled to such profits from the date of the death of Ramachandra Rao. This is clearly wrong as the plaintiff admits in her plaint that she was in joint possession of the properties till the date of suit. She will therefore get mesne profits only from that date.

In the result, both appeals are allowed to the extent indicated and the case is remanded to the lower Court for passing a revised preliminary decree in the light of this judgment, after making such further enquiry as may be found necessary in that behalf. Parties will have liberty to adduce fresh evidence on all matters relevant to the enquiry. In A.S No. 311 of 1942 the plaintiff's costs as against the fifth defendant will abide and follow the result. Otherwise we make no order as to costs. In A.S No. 380 of 1942, the appellants 3 and 5 will be entitled to costs proportionate to their success and such costs will abide and be provided for in the revised preliminary decree. The lower Court will make its own order as to costs in that Court. The court-fee on the memoranda of appeal and cross-appeal will be refunded.

N.R.R