Decided on January 29,1953



Mack, J. - (1.) I have had the advantage of perusing my learned brother's judgment and merely wish to add a few words in further support of our view that Act 18 of 1937 does not take away the old Hindu law right of maintenance a widow had against her husband's joint family. There are observations at page 711 of the 11th edition of Mayne on Hindu Law and Usage edited by Sri N. Chandrasekhara Ayyar, which suggest a contrary view on the ground that Hindu law allowed widows maintenance only because of their exclusion from inheritance and from a share on partition. At the time of this commentary, a widow was still excluded from succession to agricultural land and it was observed that, therefore, a widow was entitled to maintenance notwithstanding her right under the Act to a share in the non-agricultural part of the family estate. The Act has since, by Madras Act 26 of 1947, been extended in favour of widows so as to include agricultural land. We are, with respect to the learned commentator, unable to accept the view, which would appear to follow, that this legislation has extinguished the widow's right to sue for maintenance. The adoption of such a view would mean that a Hindu widow would have no option at all but to sue for partition under these Acts. Many a widow may not desire to pursue this remedy, which will not only have the disastrous effect of plunging the joint family into the travail of a partition suit, but may also entail trouble, botheration and responsibility for herself in administering the share partitioned and allotted to her, which she can only enjoy for her life and which she is expected to preserve for her husband's reversioners. Widows may if they are legally well advised prefer a fixation of reasonable maintenance which will free them from all such troublesome responsibility. We do not think that Act 18 of 1937 as amended by Act 26 of 1937. both of which were animated by liberal and generous motives towards widows, had any intention of compelling them to sue for partition though they may desire only to have reasonable maintenance. It may in many cases be in the interests of both husband's undivided estate and the widow herself that she should be paid a reasonable and equitable maintenance, roughly equivalent to her husband's share in the joint family income for her life, than that the joint family agricultural holding should be carved up and fragmented. Fragmentation consequential on joint family partitions without any economic safeguards of even minimum economic agricultural holdings has had disastrous effects on agrarian and rural economy. In my view these Acts were intended to enlarge a widow's rights and not to detract from or restrict her pre-existing rights under Hindu law. The result is that, her right to sue only for maintenance if she so prefers without having recourse to the remedy of partition under Act 18 of 1937 is preserved intact. The Act in my opinion, never intended to drive all widows aggrieved on the question of maintenance provision in an undivided joint family, compulsorily to partition suits cutting up and splitting up agricultural holdings as their only legal remedy.
(2.) This legislation does not put the widow into the position of a coparcener, but gives her a statutory right to a partition if she so desires to exercise it, without any interference to her alternative right to maintenance under Hindu law. Krishnaswami Nayudu, J.
(3.) This appeal arises in a suit for partition by a Hindu widow under the Hindu Women's Rights to Property Act 18 of 1937. One Kunchithapatham Pillai died on 27-2-1947 possessed of movable & immovable properties including agricultural lands leaving behind him two sons by his deceased first wife, defendants 1 and 2 who are the appellants and a second wife, the plaintiff, who is the sole respondent in this appeal. The suit was one laid for partition and recovery of separate possession of 1/3 share in the properties of Kunchithapatham Pillai. The properties consisted of agricultural lands and houses as also moveable including the amount due under two insurance policies taken out by the deceased. The defendants contested the plaintiff's right to partition in. certain items of immoveable properties, viz., items 12, 13, 17 and 22 of schedule A and item 4 o! plaint A-1 schedule and also in respect of certain moveables including the insurance amounts. As regards these items of immoveable properties the defendants' case was that they were the properties which were conveyed to them under a Deed of Settlement, dated 5-21942, Ex. B. 27, by Kunchithapatham Pillai giving under the deed a life interest in favour of the defendants' grandmother & the mother-in-law of Kunchithapatham, one Ratnathachi & Ratnathachi having died on 26-7-42, the defendants claimed sole & exclusive rights to the properties contending that they were not joint family properties, and could not therefore be the subject of any division. (After discussing the evidence His Lordship continued):--;

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