This petition arises out of an order of the learned Subordinate Judge of Bapatla passed in O.S No. 6 of 1940. The suit was filed for partition by the widow of the brother of the first defendant basing her rights to partition upon the newly enacted Act XVIII of 1937. Before the suit came on for hearing, the Federal Court had decided in a case before them in 1941 that Act XVIII of 1937 was ultra vires of the Central Legislature in so far as it referred to agricultural land. The property of which the plaintiff sought partition consisted partly of agricultural land and partly of other property. When the decision of the Federal Court became known, she accordingly applied for permission to amend her plaint and claimed partition of such property as Act XVIII of 1937 was still effective to deal with, and maintenance in addition to that partition. This amendment was at first allowed, but the question of whether this double remedy should be given was made the subject of an additional issue and the learned Subordinate Judge found that a decree could not be given for both maintenance and partition. He therefore called upon the plaintiff to elect which remedy she wished to have granted to her. Against that order the present petition has been filed.
It seems to me that the order of the learned Subordinate Judge cannot possibly be justified except perhaps upon the hypothesis that the plaintiff is asking for the full maintenance which she could have got before the Act XVIII of 1937 had been passed, in addition to the partition of the property under that Act. It is argued against this petition that the passing of Act XVIII of 1937 put an end to the widow's right of maintenance and with that argument, thus simply expressed, I am in agreement. It is of course obvious that no woman can take advantage of Act XVIII of 1937 and also ask for additional maintenance. The Act has substituted a new and better remedy for the rights which the widow possessed before. But, of course, Act XVIII of 1937 is no longer in the full sense effective. The result of the decision of the Federal Court has been to make the Act a dead letter so far as agricultural land is concerned. The argument is therefore no longer open that the mere existence of Act XVIII of 1937 puts an end to any right of maintenance on the part of a Hindu widow. It need hardly be stated that the Act does not expressly put an end to any such right. The obvious position would seem to be now that in so far as Act XVIII of 1937 is still valid, the widow may take advantage of it and that in so far as the Act does not take effect upon certain property, the widow's old right of maintenance is restored, the only proviso being that in assessing the amount of maintenance due and proposed to be charged upon agricultural property, due allowance is made for the property which comes to the plaintiff by virtue of Act XVIII of 1937.
For these reasons I set aside the order of the learned Subordinate Judge and direct that the trial of the suit do proceed upon the amended plaint with the decision on this particular issue reversed. The costs of this petition must be paid by the respondents.
N.R.R
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