Decided on September 03,1953

Parappa Alias Hanumanthappa Appellant
Nagamma And Ors. Respondents


- (1.) THIS appeal has been referred to the Full Bench at the instance of my learned brother Krishnaswami Nayudu J. The facts that led up to the reference may briefly be stated. For convenience of reference the following genealogy may be extracted:
(2.) THE persons shown in the genealogy constituted members of a joint Hindu family. At the time of the death of Gangappa in 1940 the family owned 15 acres of wet land called 'Gonchi' lands irrigated by channel and well, 14 acres of well -fed land and 120 acres of red soil dry land and two houses Subsequent to his death, from and out of the agricultural lands the family acquired item 3 (house), a sum of Rs. 5000 the amount of fixed deposit standing in the name of the second defendant, outstanding amounting to Rs. 2000 and the agricultural produce consisting of grains harvested and kept in the house. In addition the family is alleged to own moveable properties mentioned in the inventory prepared by the Commissioner, Ex. A. 2. The plaintiffs, i.e., the widow of Gangappa and her two unmarried daughters Thippamma and Chennamma filed O. S. No. 4 of 1948 on the file of the court of the District Judge of Anantapur for partition and possession of the first plaintiff's half share in the non -agricultural properties of the family and for maintenance of Rs. 150 per month for the plaintiffs. The first defendant is the son of Hanumanthapa, a cousin of Gaugappa. The 2nd defendant is his wife. They pleaded that the first plaintiff would be entitled to a share only in the non -agricultural properties existing at the time of the death of Gangappa and that she could not claim a share in all the items acquired by the family subsequent to his death from the income of the agricultural properties. They also pleaded that the moveable property was highly exaggerated in the plaint schedule. They averred that the claim for maintenance was rather exaggerated. The learned District Judge on the evidence found that all the properties mentioned in the plaint schedule were joint family properties, that though the third item, a house, the fixed deposit amount, the outstanding and the produce from the lands were all acquired subsequent to the death of Gangappa, the first plaintiff would be entitled to a share in them as at the time the share was claimed they were all non -agricultural property. He also held that the moveables mentioned in the inventory prepared by the Commissioner were all joint family properties in which the first plaintiff had a share. He further held that the net annual income from the family agricultural properties would not be less than Rs. 3500 and on that basis he fixed a maintenance of Rs. 40 per month to the first plaintiff and to plaintiffs 2 and 3 at Rs. 30 per each per month. The learned Judge decreed the suit accordingly. The defendants have preferred the aforesaid appeal against the decree and judgment of the court of the District Judge of Anantapur. The plaintiffs. preferred a memorandum of objections asking for an enhanced rate of maintenance. The appeal came up before our learned brother Krishnaswami Nayudu J. The learned Judge accepted the findings of the court below; but in view of the alleged conflict between the judgments in - - 'Subba Naicker v. : AIR1950Mad192 and - - 'Chinniah Chettiar v. Sivagami Achi', : AIR 1945 Mad 21 (B) and other judgments referred to in the order of reference, placed the matter before the learned Chief Justice for constituting a Pull Bench. The entire appeal was posted before us for disposal.
(3.) LEARNED counsel appearing for the parties did not question before us the findings of fact arrived at by the learned District Judge except in regard to the moveables inventoried in Ex. A. 2 which I shall deal with at a later stage. Learned counsel for the appellants contended that Act 18 of 1937 (hereafter called the Act) which regulates the right of the first plaintiff to succeed to her husband's interest in the joint family property applied to property other than agricultural land and therefore she cannot claim any right or interest in the agricultural property or the accretions therefrom. The answer of the learned counsel for the respondents may be stated thus. The demise of a member of a joint family leaving a widow to step in his shoes under the Act does not in itself effect a partition in the family. The joint family continues as before and its properties, whether agricultural or otherwise, and accretions therefrom would constitute and continue to be its properties. If her husband were alive he would be entitled to a share in all the properties possessed by the Joint family at the time the partition was effected. The right of the widow who steps into his shoes is coextensive with that of her husband in regard to property other than agricultural property existing at the time when she seeks to work out his interest. To express the same idea differently, the crucial date for working out her interest is the date when she seeks to enforce her right" and she would be entitled to share in the properties of the joint family other than agricultural property, possessed by that family on that date irrespective of the pre -existing character of that property or the source from which it was acquired. To afford a satisfactory evidence solution to the problem raised it would be convenient to consider the question form three aspects: 2.WHAT were the rights of Hindu widow in her husband's interest in the joint family property under Hindu law before the Act? What were the changes effected by the Act in respect of Her right? 3.WHAT was the impact of the decision of the Federal Court in 'In the matter of the Hindu Women's Rights to Property Act, 1937',, AIR 1941 PC 72 (C) on the Hindu law so modified 'vis a vis' her rights? ;

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