(1.) This revision has been referred by Basheer Ahmed sayeed J., for the decision of a Bench as it raises a question of considerable importance under the Hindu women's Rights to Property Act, 18 of 1937. The facts are simple. One Nagiah and his three sons Subba Rao, Sitaramayya ana Sri Krishnaiah were memoers of a joint undivided Hindu family. On 22-5-1945, Sri Krish-naiah died leaving behind a widow Ramaba-namma und a daughter Krisnna Prasadam pos-tnumously born. On 17-11-1950, Ramabanamma instituted a suit under the provisions of the Hindu Women's Rights to Property Act, hereinafter referred to as the Act, for partition of her husband's one-fourth share in the joint family properties which were set out in schedules B and C to the plaint and also for maintenance past and future at Rs. 250 per annum. That was O. S. No. 274 of 1950 on the file of the Court of the District Munsif, Tenali. Defendants 1 and 2 in the suit are the surviving brothers of the deceased Sri Krishniah and the third defendant Sitamma is the widow of Nagiah who had died before the suit. While the action was pending, the plaintiff died and thereupon I. A. No. 141 of 1951 was filed under Or. 22, R. 3, Civil P. C. for bringing on record her minor daughter Krishna Prasadam as the legal representative and for continuing the suit. The defendants resisted the application on the ground that the cause of action for partition under the Act and for maintenance was personal to the widow and that it did not survive to the daughter. The learned District Munsif Held, following the opinion expressed by Mayne in his "Hindu Law and Usage" and certain observations occurring in the judgment of Viswanatha Sastri J. in --'Radha Ammal v. Commr. of Income-tax, Madras', (A), that on the death of the widow the estate devolved on the daughter as the heir of her father and accordingly ordered the application. It is the correctness of this view that is questioned by defendants 1 and 2 in this revision. The point for determination is whether on the death of the widow Ramabanamma, her husband's share survives to his coparceners, defendants l and 2, as contended by the petitioners or whether it devolves on his own heirs as maintained by the first respondent Krishna Prasadam. No authority directly deciding this question has been cited before us, but counsel on both sides relied on observations made in the course of Judgments in cases arising under the Act, as lending support to their respective contentions. The question, however, falls to be considered primarily on the construction of the relevant provisions of the Act because the right claimed by the respondent is not one recognised by the Hindu common law, but is wholly a creature of the Act and must be found within the four corners thereof. The contention of the first respondent is based on Sections 3(2) and 3(3) of the Act which runs as follows:
"Section 3(2): When a Hindu governed by any school of Hindu law other than the Dayabhaga school or by customary law dies having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of sub-sec. (3), have in the property the same interest as he himself had. Section 3 (3): Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu woman's estate, provided however that she shall have the same right of claiming partition as a male owner."
(2.) The argument is that Section 3(2) completely puts an end to the right of survivorship possessed by the coparceners under the law as it stood prior to the Act and has in consequence the effect of causing severance in status of the deceased coparcener; that the provision in Section .3 (3) that the widow is to take a woman's estate means that after her death the estate will devolve on her husband's heirs, the contention be-ing that it is an incident of a woman's estate that it should revert to the heirs of the last male-holder and therefore, the daughter would take as heir and not the brothers as surviving coparceners. There is nothing, however, in the language of the Act to support the broad contention that the right of coparceners to take by survivorship is completely extinguished by Section 3(2) and that there results a severance of status by operation of the statute; nor is the argument that it is an incident of a woman's estate that it should revert to the heirs of the last maleholder quite accurate as a statement of the law.
(3.) Taking first the question as to the effect of Section 3 (2) on the right of survivorship, it may be noted that the section does not enact that the interest of a deceased coparcener shall devolve on his heirs as if he had become divided in status; nor does it declare that the coparceners shall have no right to take by survivorship. It is very guard-ed in its terms and limited in its operation; it merely provides that the widow shall have the same interest in the properties which her husband had. It is not a matter for surprise that a right conferred in such terms should have led to considerable controversy as to its true character and scope. Being a new right conferred in modification of the pre-existing law, the question came to be asked on what principle does this right rest; under what category of rights known to Hindu law is this right to be classed; what is its place in the Hindu jurisprudence and what are its legal incidents. Is it, that she becomes by force of Section 3(2) a coparcener with the right of survivorship? The decisions were unanimous that that was not her status. If she does not take as coparcener, then does she take it as heir? The question was answered in the affirmative in -' Jadaobai v. Puranmal', AIR 1944 Nag 243 at p. 245 (B), the reason being that the Hindu law knows of only two modes of succession--survivorship and inheritance and if survivorship is negatived there remained only the alternative of inheritance. The question there was whether a widow who sought to execute the decree obtained by her husband was bound to take out succession certificate. After holding that she was not a coparcener and did not take by survivorship, the learned Judges observed: "Survivorship having been ruled out the only other mode by which she will be clothed with the rights of her husband in the property, though to a limited extent, would be by succession or inheritance if she claims under the Hindu Women's Rights to Property Act." The question is whether there is anything in the language of the Act which supports the conclusion that the widow takes under Section 3(2) of the Act as the heir of her husband. If it was the intention of the Legislature that she should take as heir, it could have quite clearly expressed that intention by providing that she should inherit the estate as if the deceased had become divided in status without leaving, it to be gathered inferentially by a process of ratiocination. The language of Section 3(2) is, it must be conceded, not quite apt to convey the notion that the widow takes as heir, but it becomes intelligible and its true intent clear when recourse is had to a well-known text of Brihaspathi, the principle of which would appear to have been embodied in the section. That text runs as follows: ..(Vernacular matter not Printed).. "When a person dies and his wife survives, half his body survives in her; when half the body of a person survives, how can another person take his property?" According to Hindu theory, the widow is the surviving half of the deceased husband and it is on the basis of this theory that her status as heir which was at one time denied to her came to be recognised later. What the Legislature would appear to have done is to extend this theory to widows of coparceners in a Mitakshara Joint family and to have enacted that the interest of the husband will not lapse on his death, if there is a widow surviving because he is still in theory alive in his widow. The right of the widow being thus founded on the fiction that her husband continues to live in her, there can be no question of her succeeding as heir to her husband, for heirship arises only on the death of a person, whereas the basis of her title is that the husband continues to live in her. If this Is the principle underlying Section 3(2), then there can be no question of either severance of status by operation of law or of succession by the widow as heir. The true scope of Section 3(2) then is, that it modifies the preexisting law on the subject to this extent, that where under the law as it stood before the Act the Interest of the coparcener lapsed on his death, thereby augmenting the interest of the surviving coparceners, under that section the interest of the deceased coparcener does not lapse where he leaves a widow surviving. As against her, the right of the coparceners to take by survivorship is taken away. To this extent, the right of survivorship under the Mitakshara law is modified. It does not follow from this that that right has been abrogated altogether, for all times and against all persons. If a coparcener dies leaving behind a daughter and no widow, Section 3 (2) has no application and the right of survivorship under the Mitakshara law stands unaffected. The precise effect of Section 3(2), therefore, seems to be that the right of survivorship which the coparceners had under the Hindu law prior to the Act is suspended as against the widow, but, in other respects, it still subsists and operates in accordance with the principles of Hindu law. The result is, that when once the widow dies, Section 3(2) has no further effect and the rights of the parties must be determined exactly as if there had been no interposition of the widow or as if the husband himself had died when the widow died. The right of the coparceners to take by survivorship which was in abeyance so long as the widow was alive comes into operation the moment she dies.;