DHANAM ALIAS DHANALAKSHMI AMMAL Vs. VARADARAJAN
HIGH COURT OF MADRAS
Dhanam Alias Dhanalakshmi Ammal
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GOVINDA MENON, J. -
(1.) THE plaintiffs, who were the 2nd and 3rd wives of Pr. Srinivasa Mudaliar, who died on 15 -12 -1943, filed O. S. No. 37 of 1944 on the file of the Subordinate Judge's Court, Velloro, for partition and recovery of possession of their share of the properties left by the deceased Srinivasa Mudaliar. The suit was based on the ground that according to Act 18 of 1937, the Hindu Women's Right to Property Act, the widows are entitled to a share of the properties of the deceased husband in equal rights with those of any sons left behind by the deceased. As Madras Act 26 of 1947 which enables the widows to claim their rights in agricultural lands as well had not come into force, when Srinivasa Mudaliar died and when this suit was filed, in accordance with the decisions of the Supreme Court - - 'In Re a Special Reference under Section 213 of the Government of India Act, 1935', 1941 F. C. R. 12 and - - 'Meghraj v. Alla Rakhia', 1942 F. C. R. 52, the plaintiffs are not entitled to claim a share in the agricultural lands as legislation with regard to such lands can be undertaken after the coming into operation of the Government of India Act, 1935, only by the Provincial Legislature. Since Act 17 of 1937 was by the Central Legislature, it cannot affect proprietary rights so far as agricultural lands are concerned. So the lower court had to give a decree to the plaintiffs only with regard to properties other than agricultural lands.
(2.) BUT the dispute centred round certain items mentioned in C. 2 and C. 4 schedule as well as items 1 to 4 in the D schedule. C. 2 schedule related to certain mortgages executed in favour of Srinivasa Mudaliar, both simple as well as usufructuary, and the plaintiffs claimed their shares on those mortgages. These mortgages were over agricultural lands. C. 4 schedule related to arrears of rent due to Srinivasa Mudaliar from tenants of agricultural lands let into possession by him. Items 1 to 4 of D schedule related to certain moveables. The learned Subordinate Judge relying upon two decisions of this court in - - 'Kotayya v. Annapurnamma', ILR 1945 Mad 777 and - -'Ramaswami v. Murugayyan', ILR 1945 Mad 781. as well as an unreported decision in - - 'A. S. No. 2 of 1944' held that the plaintiffs are not entitled to a share because leases of agricultural lands and mortgages of agricultural lands came within the definition of interest in agricultural property within the meaning of entry 21 in the 7th schedule to the Act and could not be divided. It is against that decree that the plaintiffs have appealed.
We are now concerned with such of the items in the C. 2 schedule which relate to leases of agricultural property and mortgages over agricultural property. It is clear from the various exhibits filed in the case that the deceased Srinivasa Mudaliar was a mortgagee; some of the mortgagees were simple and the others usufructuary of some of the properties in the C. 2 schedule. He had also leased out to various tenants properties, the rents of which have been mentioned in C. 4 schedule.
(3.) IN - - 'Kotayya v. Annapurnamma', ILR 1945 Mad 777, a Bench of this court held that Hindu Women's Rights to Property Act, 1937 does not confer upon a widow of a deceased Hindu coparcener any interest in a lease of agricultural lands obtained by the joint family. The same learned Judges held in - -'Ramaswami v. Murugayyan', ILR 1945 Mad 781 that the Hindu Women's Rights to Property Act, 1937, does not confer on a Hindu widow any right to or interest in a simple mortgage of agricultural land executed in favour of her husband. To the same effect is the decision in A. S. No. 2 of 1944 where the same learned Judges reaffirmed and reiterated what they had already laid down in the decisions aforesaid. They also referred to the decision of the Federal Court, in - - 'In EC a Special Reference under Section 213 of the Government of India Act 1935', 1941 F. C. R. 12, and held that the judgment of the Federal Court would apply equally to corporeal and incorporeal rights in land, which meant that a Hindu widow was not entitled to any share in a mortgage on agricultural land.;
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