Madras High Court
Laxminarayani Ammal And Ors. vs A.M. Tarabai Ammal on 28 October, 1987
Equivalent citations: (1988)1MLJ153
JUDGMENT S.A. Kader, J.
1. The appeal is against the judgment and decree of the 7th Assistant Judge, City Civil Court, Madras, in O.S. No. 6220 of 1969. The defendants 2 to 7 are the appellants.
2. This is a suit for partition and separate possession of the plaintiff's half share in the suit property, which is house bearing door No. 36, Ramakrishna Street, Madras, and for accounts. The plaintiff is the sister of the first defendant, since dead. The defendants 2 to 7 are the heirs and legal representatives of the deceased first defendant. The plaintiff and the first defendant had another sister by name Padmavathi. The plaint schedule property originally belonged to one Murugesa Mudaliar, the maternal uncle of the plaintiff and the first defendant, as his self-acquired property, having been purchased by him with his own funds by a deed of sale dated 22.6.1933. His only son Mohanasundaram predeceased his father on 17.5.1930 issueless leaving behind him his widow Padmavathiammal, the sister of the plaintiff and the first defendant. The said Murugesa Mudaliar died on 19.1.1942, leaving behind him his widow Balammal and his widowed daughter-in-law Padmavathi. Both these widows inherited the schedule property under the provisions of the Hindu Women's Rights to Property Act. 1937. Murugesa Mudaliar's widow Balammal died on 23.1.1951, and on her death, the daughter-in-law Padmavathi got the suit property exclusively and was in possession and enjoyment of the same as absolute owner, her rights having been enlarged into a full estate under the Hindu Succession Act of 1956. The said Padmavathi died on 10.4.1966 leaving behind a will dated 24.2.1966 by and under which she bequeathed the schedule property to her sister, the plaintiff and to her brother, the deceased first defendant in equal shares to be enjoyed by them for their lives with a gift over absolutely in favour of their respective children, male and female. In T.O.S. 15 of 1966 on the file of this Court, the plaintiff obtained Letters of Administration with the will annexed. The plaintiff and the first defendant are thus co-owners of the suit property. The first defendant has been receiving the rental income from the suit property ever since the death of Padmavathi and after the death of the first defendant the other defendants have been receiving the rental income. The present suit is filed for partition and separate possession of the plaintiffs half share and for accounts.
3. The contentions raised by the defendants in their original and their additional written statements are briefly as follows: It is denied that the suit property belonged to Padmavathiammal. The will executed by her cannot affect the first defendant's right to the suit property. In T.O.S. 15 of 1966 on the file of this Court the question of title has been expressly left open. According to the defendants, the suit property was not the self-acquired property of late Murugesa Mudaliar. But, it Is a property purchased from out of the income from the ancestral properties. On the death of Murugesa Mudaliar in 1942, his widow Balammal succeeded to the suit property absolutely. His daughter-in-law, Padmavathi, did not succeed to the said property by herself or along with her mother-in-law. On the death of Balammal, in 1951, the deceased first defendant became entitled to the suit property in entirety as the reversionary heir of Murugesa Mudaliar, he being his sister's son. Padmavathi was never in possession and enjoyment in her own right. It is the first defendant who has been in possession ever since 1951 openly and adversely to the interest of Padmavathi and has acquired title by prescription. As Padmavathi had no right, the plaintiff cannot claim any right to the suit property under her will. She is not a co-owner with the first defendant and is not entitled to claim partition or accounts.
4. The learned Subordinate Judge held that the suit property was the self-acquired property of late Murugesa Mudaliar and on his death his widow Balammal and his widowed daughter-in-law Padmavathi inherited the property under Section 3(1) of the Hindu Women's Rights to Property Act, 1937, and on the death of widow Balammal, the daughter-in-law Padmavathi inherited her share and became entitled to the suit property solely and she became the full owner by virtue of she Hindu Succession Act of 1956. The will executed by Padmavathi is valid and the plaintiff is entitled to an undivided half share. The claim of acquisition of title by adverse possession put forward by the deceased first defendant was also negatived. The plaintiff was, therefore, held entitled to claim partition arid separate possession of half share and for accounting of the rental income, which was relegated to a separate enquiry. In the result, a preliminary decree for partition and separate possession was passed. Aggrieved thereby, the defendants 2 to 7 have preferred this appeal.
5. The points that arise for determination are:
1. Whether Padmavathiammal was entitled to the schedule property absolutely and the plaintiff is entitled to claim a half share therein by virtue of the will executed by the said Padmavathiammal dated 24.2.1966?
2. Whether the plaintiff is entitled to claim accounts and if so from whom and for what period?
6. Point 1 : The plaintiff is the sister of the first defendant, who died after suit and whose heirs and legal representatives are defendants 2 to 7. The plaintiff and the first defendant had another sister by name Padmavathiammal, who was married to one Mohanasundaram, son of Murugesa Mudaliar, the maternal uncle of the plaintiff, the first defendant and Padmavathi. Mohanasundaram died issueless on 17.5.1930 leaving behind him his widow Padmavathi. Murugesa Mudaliar died on 19.1.1942, leaving behind him his widow Balammal and his widowed daughter-in-law Padmavathi. The widow Balammal died on 24.1.1951 and her daughter-in-law, Padmavathi died on 10.4.1966.
7. It is the case of the plaintiff that the schedule house property is the self acquired property of Murugesa Mudaliar, who purchased the same by and under the original of Ex. A-4, dated 22.6.1933. On his death on 19.1.1942, his widow Balammal and his widowed daughter-in-law Padmavathi inherited the schedule property in equal shares under Section 3(1) of the Hindu Women's Rights to Property Act of 1937 and held the property as limited owners as per Section 3(3) of the said Act. On the death of Balammal on 23.1.1951, her undivided half share in the schedule property devolved upon her widowed daughter-in-law, Padmavathi, who thus became entitled to the schedule property exclusively. By virtue of Section 14(1) of the Hindu Succession Act, 1956, her estate matured into a full one. By and under a will dated 24.2.1966, she bequeathed the schedule property to her sister, the plaintiff herein and her brother, the deceased first defendant in equal moieties to be enjoyed by them for their lives without any power of alienation with the vested remainder in favour of their respective children. Padmavathi died, as already stated, on 10.4.1966 and in T.O.S. No. 15 of 1966 on the file of this Court, the plaintiff has obtained Letters of Administration with the will annexed. She has filed this action for partition and separate possession of her half share in the plaint schedule property and for accounts.
8. Mr. O.V. Baluswami, learned Counsel for the appellants, has raised several contentions against the applicability of the Hindu Women's Rights to Property Act of 1937 and the scope of Section 3(1) of the said Act. It is contended that Balammal, widow of Murugesa Mudaliar, did not inherit the schedule property under Section 3(1) of the Hindu Women's Rights to Property Act, as it was not the self-acquired property of Murugesa Mudaliar, but was joint family property in his hands as the sole surviving coparcener and also because the propositus Murugesa Mudaliar did not leave behind a son in order to enable the widow to take the 'same share' as a son as laid down in Section 3(1). It is further urged that Padmavathi, the widow of the predeceased son of Murugesa Mudaliar, did not inherit any share under Section 3(1) of the Hindu Women's Rights to Property Act, as Murugesa Mudaliar had left behind his widow and also because Padmavathi's husband died prior to the coming into force of the Hindu Women's Rights to Property Act. The plea of acquisition of title by adverse possession by the deceased first defendant is also put forward. I shall now deal with these contentions.
9. The first point urged by Mr. O.V. Baluswami, is that the Hindu Women's Rights to Property Act of 1937 has been repealed by Section 31 of the Hindu Succession Act of 1956 and it must, therefore, be deemed that the Hindu Women's Rights to Property Act had never been in the statute book. Section 31 of the Hindu Succession Act has subsequently been repealed by the Act 58 of 1960. But it is well settled that the repeal of a repealing provisions has not the effect of reviving the repealed provision. We have, therefore, to consider whether the repeal of the Hindu Women's Rights to Property Act, 1937 by Section 31 of the Hindu Succession Act of 1956 has the effect of the Hindu Women's Rights to Property Act being treated as if it had never been enacted. In Varalakshmi and Ors. v. Alagammaiachi and Ors. C.S. 219 of 1978 T.L.N.J. 285, a similar contention was advanced before me in respect of the Madras Hindu Bigamy (Prevention and Divorce) Act, 1949. The plaintiff in that suit claimed to have married the late A.L. Srinivasan, a well known figure in the film filed in Tamil Nadu, on 26.5.1952 during the subsistence of his marriage with his first wife, who was the first defendant in the said suit. Section 4(1) of the said Act rendered void any marriage solemnised after the commencement of the said Act between a man and a woman either of whom had a spouse living at the time of such solemnisation. The Madras Hindu Bigamy (Prevention and Divorce) Act of 1949 was repealed by Section 30 of the Hindu Marriage Act of 1955 and it was, therefore, contended that the effect of repeal was to obliterate the repealed enactment from the statute book as completely as if it had never been passed. This contention was repelled by me and after referring to Section 6 of the General Clauses Act, and the decision of the Supreme Court in Baliah v. Rangachari , I found that Section 6 of the General Clauses Act saved the previous operation of the Madras Hindu Bigamy (Prevention and Divorce) Act of 1949 or anything duly done or suffered thereunder and the alleged marriage of late A.L. Srinivasan with the plaintiff was void. The same principle applies in the instant case. The question with regard to the repeal of the Hindu Women's Rights to Property Act has directly come up for consideration before this Court in Kuppathammal v. Sakthi 70 L.W. 249 : , Rajagopala Iyengar, J., (as he then was) after referring to the various principles of law on the subject, concluded that the repeal of the Hindu Women's Rights to Property Act by Section 31 of the Hindu Succession Act, did not in any way impair the rights conferred on the widows by the said Act and I respectfully agree with the said view. It follows that the repeal of the Hindu Women's Rights to Property Act by Section 31 of the Hindu Succession Act of 1956, did not in any way, affect any right, privilege, obligation or liability acquired, accrued or incurred under the repealed enactment. This contention must, therefore, fail.
10. Section 3 of the Hindu Women's Rights to Property Act, with which we are concerned, runs thus:
(1) When a Hindu governed by the Dayabagha school of Hindu Law, dies intestate leaving any property and when a Hindu governed by any other School of Hindu Law or by customary law dies intestate leaving separate property, his widow or if there is more than one widow, all his widows together shall, subject to the provisions of Sub-section (3), be entitled in respect of which he dies intestate of the same share as a son;
Provided that, the widow of a predeceased son shall inherit in like manner as a son if there is no son surviving of such predeceased son, and shall inherit in like manner as a son's son, if there is surviving a son or son's son of such predeceased son;
Provided further, that the same provision shall apply Mutatis Mutandis to the widow of a predeceased son of a predeceased son.
(2) When a Hindu governed by any school of Hindu Law other than the Dayabagha 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-section (3), have in the property the same interest as he himself had;
(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 to a male owner.
11. In Umayal Achi v. Lakshmi Achi (1945)1 M.L.J. 108 (F.C.) : 1945 F.C.R. 1 : A.I.R. 1945 F.C. 25, the Federal Court of India, had occasion to deal with the expression 'separate property' in Section 3(1) of the Act. The Federal Court held that the expression 'separate property' may be the antithesis of three expressions, viz., 'the ancestral property'; 'coparcenary property'; and 'joint family property' that having regard to the contingency requiring legislative interference the property held by a person as the last surviving coparcener of a joint family cannot be regarded as 'separate property within the meaning of Section 3(l), wherein the term refers to 'property' in respect of which the son of the surviving coparcener would not be entitled to coparcenary rights but only to a right of inheritance on the father's death if he survived him. In a very recent decision in Manoharlal v. Bhuri Bai A.I.R. 1975 S.C. 1369, the Supreme Court has also expressed the view that the property held by a sole surviving coparcener in a family does not become his 'separate property' so long as there is a woman in the family who can bring into existence a new coparcener by adoption. It is now, therefore, well settled that the expression 'separate property' under Section 3(1) of the Hindu Women's Rights to Property Act, means the self-acquired property of the propositus in which the son would not have been entitled to claim coparcenary right but only to a right of inheritance on his father's death. We have, therefore, to see whether the plaint schedule property, is the self-acquisition of Murugesa Mudaliar in which his son will not be entitled to any coparcenary right or the joint family property in his hands as the sole surviving coparcener.
12. There is no presumption in Hindu Law that a joint family possesses joint property or that a property standing in the name of a member of the joint family is joint family property. To render the property joint, the person, who claims it to be joint, must prove that the family was possessed of some property with the income of which the property in question could have been acquired. Where it is established, or admitted that the family possessed some joint family property which, from its and relative value may have formed the nucleus from which the property in question may have been acquired, the presumption arises that it was joint property and the burden shifts to the party alleging self acquisition to establish affirmatively that the property was not acquired with the aid of the joint family nucleus. But, no such presumption can arise if the nucleus is such that with its help the property claimed to be joint, could not have been acquired. Where however a manager of the joint family claims that any immovable property has been acquired by him with his own separate funds and not with the help of the joint family funds of which he was in possession and charge, it is for him to prove by clear and satifactory evidence that the purchase money proceeded from his separate funds vide Mallesappa Pandappa Desai v. Desai Mallappa . It is clear that even in such a case, where the property stands in the name of the manager of the joint family, it must first be established that he was possessed of joint family property or funds.
13. The deceased first defendant has been examined as D.W. 1. it is his evidence that his maternal uncle Murugesa Mudaliar, the propositus had a brother by name Kandasami Mudaliar and they had three or four cawnies of nanjas in Karunguzhi village and some jewels. But, he has candidly admitted that there is no document to show that Murugesa Mudaliar had any ancestral property. D.W.2 is one Murugesa Mudaliar, whose mother was the elder sister of Murugesa Mudaliar's mother. According to him, Murugesa Mudaliar and his brother, Kandasami, had 3 or 4 acres of nanjas in Karunguzhi village and they were doing business in silk. It has been elicited from him in cross-examination that those lands were sold when he was ten years old i.e., before 1903. It is difficult to believe that at that tender age of 10, D.W. 2 could have had any knowledge about the properties of Murugesa Mudaliar and his brother or about their disposal. Further, when those properties had been disposed of in 1903, it is too much to think that the sale proceeds of those properties went in for the purchase of the plaint schedule property 30 years later under the original of Ex. A4, dated 22.8.1933. As rightly pointed out by the learned Subordinate Judge, if Murugesa Mudaliar and his brother Kandasami Mudaliar had ancestral properties, it could have been easily proved by the production of the documents in respect of the same and for their sale. The non-production of any document for the sale of these properties clinchingly shows that the joint family did not own any immovable property. The version of D.Ws. 1 and 2, that the brothers had some jewels also, is another piece of attendant falsehood and cannot be relied on. The story, trotted out by D.W. 2, that the brothers were doing silk business, is equally unreliable. Murugesa Mudaliar was admittedly working as a proof reader in the Government Press, Madras from 1896 and his brother Kandasami Mudaliar was employed in the Customs in the Madras Port. The story, that they were doing silk business for which there is absolutely no scrap of paper, is a mere figment of imagination. There are two other documents, which completely falsify the case of the defendants that Murugesa Mudaliar was possessed of ancestral properties-movable or immovable, and they are Exs. A13 and A14. Ex. A13 is the registration copy of a will dated 28.1.1948 executed by Murugesa Mudaliar's brother, Kandaswami. The first defendant is an attesting witness thereto. No doubt, this will has not been proved in accordance with Section 68 of the Indian Evidence Act, but its admissibility and marking have not been challenged at the time when it was tendered in evidence and if any objection had been raised at that time, the plaintiff could have taken steps to prove the documents in accordance with the law. It is not now open to the defendants to challenge its admissibility. Ex. A14 is the draft of Ex. A13 will prepared in the very handwriting of the deceased first defendant and its genuineness is not liable to be challenged. In Ex. A13, will, Murugesa Mudaliar's brother Kandasami Mudaliar has categorically averred that he had no ancestral property whatsoever. This document establishes beyond doubt that the two brothers had no ancestral nucleus, movable or immovable. The plaintiff's husband as P.W. 1 had stated that the schedule property was purchased by late Murugesa Mudaliar out of his provident fund savings and commuted pension amount. Ex. 621 extract from the register of pension payment shows that his pension has been commuted in G.O. Ms. No. 859, Finance (Pension), dated 12.12.1933, whereas the suit property has been purchased under the original of Ex. A4 dated 22.6.1933. Hence, the commuted pension amount could not have been utilised for the purchase of this property. At the time when Murugesa Mudaliar was in service, there was no provision for payment of gratuity. But, the Provident Fund Rules were in force as spoken to by P.W. 1, and this is not challenged. Murugesa Mudaliar must, therefore, have received the provident fund amount at the time of his retirement in May, 1933, and this amount could very well have been utilised for the purchase of the suit property. Murugesa Mudaliar, has been in service as proof reader from 1.3.1896 till 31.5.1933, for a period of 37 years and 3 months. During this long period of service, he could have certainly saved some money for the purchase of the suit property soon after his retirement. There is, therefore, sufficient evidence to show that Murugesa Mudaliar could have mustered funds of his own for the acquisition of the schedule-property under Ex. A4. Be that as it may, the fact, that Murugesa Mudaliar had no ancestral nucleus-movable or Immovable-coupled with the fact that Murugesa Mudaliar was employed as a proof reader in the Government Press, Madras, for over 37 years, and must have received the provident fund amount, go a long way to establish that the suit property is his self-acquisition. It follows that the provision of Section 3(1) of the Hindu Women's Rights to Property Act, apply and inheritance to the schedule property has to be worked out under the provisions of the said Section.
14. It is then urged by Mr. O.V. Baluswami, learned Counsel for the appellants, that the widow of the propositus could inherit under Section 3(1) of the Hindu Women's Rights to Property Act, only along with a son and since Murugesa Mudaliar the propositus, did not leave behind any son, his widow Balambal was not tentitled to claim inheritance under Section 3(1). This argument is based upon the language of Section 3(1) of the Act, which lays down that the widow shall inherit 'the same share as a son'. The words 'the same share as a son' only means 'the same share as if she were a son' as pointed out by a Bench of the Patna High Court in Dulhin Nandakumari Devi v. Mt. Balkan Devi and Ors. A.I.R. 1945 Pat. 87 at 91. A similar argument has been argued before the Bench of the Patna High Court in the following terms:
If the intestate left no son, there was no son to take a share; a son, therefore, takes no share; the widow takes the same share as a son, which in this case is nil.
Characterising this argument as ingenious but quite unsound, the Bench pointed out that it was quite clear that the words 'the same share as a son' in Section 3(1) meant 'the same share as if she were a son'. In that case before the Bench of the Patna High Court, one Babu Narayana Sao died leaving behind Balkan Devi, has widow and Ramadevi, the widow of his predeceased son Ramji. He left behind no son surviving. It was held that Balkan Devi as the widow took, under Section 3(1) the same share as if she had been a son. In Smt. Angur Bala Malik v. Debavrata Mallick , a Bench of four Judges of the Supreme Court observed thus:
It will be seen that Section 3(1) Hindu Women's Rights to Property Act abrogates the general rule of Hindu Law according to which a widow succeeds to her deceased husband's property only in default of male issue and she is now entitled to the same share as a son along with or in default of a male issue.
The words 'the same share as a son' are intended only to quantify the share taken by the widow. If the deceased Hindu left behind his widow alone, she takes the entire property as if she were the only son. If the deceased left behind a widow and a son, they get half share each, if the deceased had left behind two sons and a widow, each of them takes one-third and so on. There is, therefore, no force in the contention that the widow of a deceased Hindu would be entitled to inherit under Section 3(1) only if there was a son for the deceased Hindu. There is, therefore, no bar for Murugesa Mudaliar's widow Balambal to inherit his property on account of the fact that Murugesa Mudaliar left behind no son.
15. The next contention advanced by Mr. O.V. Baluswami, learned Counsel for the appellants, is that Padmavathi, the widow of the predeceased son of Murugesa Mudaliar is not entitled to claim any right of inheritance under Section 3(1) of the Hindu Women's Rights to Property Act, as Murugesa Mudaliar has left behind his widow. According to him, the right of inheritance of the widowed daughter-in-law arises only in the absence of the widow of the propositus. This contention has also no legal basis, Proviso (1) to Section 3(1) of the Hindu Women's Rights to Property Act clearly lays down that a predeceased son's widow inherits in like manner as the son, if there is no son surviving of any such predeceased son and shall inherit in like manner as a son's son if there is surviving a son or son's son of such predeceased son and under Proviso (2) the same principle applies Mutatis Mutandis to the widow of a predeceased son of a predeceased son. These provisions are not subject to any limitation that the deceased Hindu must not have left behind his widow. As pointed out by Das, J. in Kamalabala Bose v. Jiban Krishna A.I.R. 1946 Cal. 461 at 464, the Hindu Women's Rights to Property Act so far as the widow of a predeceased son and a widow of a predeceased son of a predeceased son are concerned expressly provides that they inherit in like manner as a son or son's son. In other words, they are put into the category of heirs along with a son or son's son. In Umayal Achi v. Lakshmi Achi (1945)1 M.L.J. 108(F.C) : 1945 F.C.R. 1 : A.I.R. 1945 F.C. 25, already referred to, the plaintiff was the widow of the predeceased son of Arunachala Chettiar while defendants 1 and 2 were the widows of the said Arunachala Chettiar. The Federal Court, which gave a narrow interpretation to the expression 'separate property' as confined to the self-acquired properties of the propositus in which his son could not claim coparcenery rights but only a right of inheritance, found that the plaintiff was entitled to a half share in so much of the properties of Arunachala Chettiar as may be found to have been his 'separate property' in the narrow sense of the term and the question whether there were such properties and what those properties were was directed to be determined before the final decree was passed. It is clear therefore, that the Federal Court had recognised the right of the widowed daughter-in-law to claim a share in the 'separate property' of her father-in-law along with his widow or widows. In Dulhin Nandakumari Devi v. Balken Devi and Ors. A.I.R. 1945 Pat. 87, already referred to, the propositus Babu Narayana Rao died leaving behind Balken Devi as widow and Ramadevi, the widow of his predeceased son Ramji. The Bench held:
Balken, Devi, as widow took under Section 3(1) the same share as if she had been a son and Ramadevi, the widow of Ramji, the predeceased son of Narayana Rao, inherited under Proviso (1) to that sub-section in like manner as the son of Narayana Rao, as Ramji left no son. Thus Balkan Devi and Ramadevi each took half the property.
In Mr. Asraf Quer v. Bhimswar Rai 1958 I.L.R. 37 Pat. 306 (D.B.), an exactly contrary contention was put forward that before a predeceased son's widow could be held entitled to inherit under the proviso to Section 3(1) of the Hindu Women's Rights to Property Act, it postulated the existence of the widow. The Bench observed:
There would be no force in this contention as the language of the proviso makes it clear that the widow of the predeceased son would inherit as a son and in that view, of the matter, it is immaterial whether the widow of the propositus would be alive or dead when the succession opens. If the widow of the propositus be alive, it would no doubt affect the quantum of the share of the daughter-in-law but her existence is not a condition precedent to the right of the daughter-in-law conferred upon her by this proviso.
It is thus quite obvious that the right of inheritance conferred upon the widow of a predeceased son or the widow of a predeceased son of a predeceased son under the proviso to Section 3(1) of the Hindu Women's Rights to Property Act is not dependent on the existence or otherwise of the widow of the propositus. This contention of Mr. O.V. Baluswami is unsound and untenable.
16. It is finally urged by Mr. O.V. Baluswami that the plaintiff has no right of inheritance under Section 3(1) of the Hindu Women's Rights to Property Act, as her husband died before the Act and reliance is sought to be placed on the following observation of Varadachariar, J., who delivered the leading judgment in Umayal Achi v. Lakshmi Achi (1945)1 M.L.J. 108 (F.C.) : 1945 F.C.R. 1.
It is true that on the above view the plaintiff in the present "case will derive no benefit from the Act though she happens to be the widow of a predeceased son. But this is due to the circumstance that her husband died before the passing of the Act.
This passage is quoted out of context by the learned Counsel for the appellants. The last full owner of the suit properties in that suit was one Arunachala Chettiar, who married three wives. The first wife died in 1913, leaving behind her three daughters and a son. The son died in 1934, leaving the plaintiff, his widow. Arunachala Chettiar married subsequently two wives, but, they bore him no son. He died on 23.2 1938 leaving behind two widows. The widowed daughter-in-law filed the suit for partition and separate possession of a half share in the properties of Arunachala, The Federal Court, which, as already pointed out, construed the expression 'separate property' as the property in which the son was not entitled to claim coparcenary rights but only a right of inheritance, was of the opinion that the estate left by Arunachala could not be regarded as 'separate property' within the meaning of Section 3(1) of the Hindu Women's Rights to Property Act, and the plaintiff could not, therefore, claim any rights of inheritance under Section 3(1). She was disentitled to inherit only because the property was not the 'separate property' of Arunachala Chettiar and not because her husband died before the Act. Even if her husband had died after the Act, she could not have claimed any right of inheritance under Section 3(1) as the property of Arunachala Chettiar was not his 'separate property' within the meaning of Section 3(1) as construed by the Federal Court. But, if her husband had died after the Act, the plaintiff could have had in the estate of Arunachala, the same interest as her husband had under Sub-section (2) of Section 3 of the Hindu Women's Rights to Property Act. It is in that context, Varadachariar, J., has observed that the plaintiff could not derive any benefit from the Act and that was due to the circumstance that her husband died before the passing of the Act. The learned Judge did not intend and could not have intended to mean that the plaintiff was deprived of the right of inheritance under Section 3(1) of the Act on account of the death of her husband prior to the Act. For, as a matter of fact, the Federal Court has found that the plaintiff would be entitled to a half share in so much of the properties of Arunachala Chettiar as may be found to have been his 'separate property' in the narrow sense of the term and the determination of this question has been relegated to a separate enquiry as is clear from the following observation of the Court in the final order:
On the case put forward on behalf of the plaintiff before the courts in Madras, the estate left by Arunachala cannot, in our judgment be regarded as his 'separate property' within the meaning of Section 3(1) of the Hindu Women's Rights to Property Act, 1937. On our interpretation of that provision, the plaintiff will be entitled to a half share (subject to the limitations mentioned in the decree of the High Court) as to immovable property only in so much of his properties as may be found to have been his 'separate property' in the narrow sense, that is 'property' in respect of which the son would not have been entitled to claim coparcenary rights but only a right of inheritance on the father's death if he survived the father. Whether there are such properties and what they are will have to be determined before the final decree is passed.
There is thus no merit in the contention of the learned Counsel for the appellants that the death of the plaintiff's husband prior to the Act is a bar to her right of inheritance under Section 3(1) of the Act.
17. From the foregoing discussion, it follows that on the death of Murugesa Mudaliar, leaving behind him his widow Balambal and his widowed daughter-in-law Padmavathiammal, the widow and the widowed daughter-in-law inherited the plaint schedule property as the 'separate property' of Murugesa Mudaliar each taking a half share under Section 3(1) of the Act. The further question is as to what should happen to the widow's half share on her death in 1951. It is conceded by the learned Counsel for the respondent-plaintiff that the mother-in-law and the daughter-in-law did not inherit as joint tenants but only as tenants-in-common and hence the mother-in-law's undivided half share did not devolve on the daughter-in-law by survivorship. The limited interest of Balammal, the widow of Murugesa Mudaliar in the undivided half share in the schedule property will, therefore, revert to the next reversioner of her husband Murugesa Mudaliar, as if Murugesa Mudaliar died on the date of the death of his widow on 23.1.1951. The Hindu Women's Rights to Property Act having been in force on that day, the schedule property being the separate property of Murugesa Mudaliar, Section 3(1) of the Hindu Women's Rights to Property Act comes into play and inheritance has to be worked out as per the provisions of the said sub-section. Under Proviso (1) of the said sub-section, the daughter-in-law is the next heir. In Mayne's Hindu Law, 1986 Edn. at page 760, the learned author has pointed out that the heirs according to the Mitakshara Law, fall into three divisions, viz.
(1) Samana Gothra or Sagothra Sapindas:
(2) Samanodaks; and (3) Bhinna Gothra Sapindas or Bhandhus.
Among these, Samana Gothra or Sagothra sapindas are the heirs in the first instance; On failure of them, the Samanodhakas, or if there be none, the Bhinna Gothra Sapindas or Bandhus. The first two divisions are comprehensively known as Gotrajas. a tabular statement of Gotrajas is annexed in that page and it is seen from it that the order of succession to the last owner is as follows:
(1) Son (2) Grandson (3) Great-grandson (4-A) Widow (4-B) Widow of the son (4-C) Widow of the grandson.
The sister's son of the last owner, which is the claim put forward by the first defendant tanks 13(D) and is nowhere, near the plaintiff who ranks 4-B. It, therefore, admits of no doubt that the plaintiff is the next reversionary heir of Murugesa Mudaliar on whom the limited interest of her mother-in-law Balammal in a half share in the schedule property has devolved on her death on 23.1.1951. The plaintiff has thus become entitled to the schedule property exclusively on the death of her mother-in-law, and has been in possession thereof ever since. Section 14(1) of the Hindu Succession Act of 1956 has enlarged her limited interest into a full one and she has become the full owner thereof on and from the date of the coming into force of the Hindu Succession Act of 1956.
18. The plea of acquisition of prescriptive title by adverse possession put forward by the first defendant has to be mentioned only to be rejected. Murugesa Mudaliar's widowed daughter-in-law Padmavathi, who is also the sister of the first defendant has been living in the suit house from the days of her husband, who died in 1930, till she died in 1966. The first defendant on his own admission as D.W.I has come to live with his maternal uncle, Murugesa Mudaliar, when he was 20 years old has lived in the suit property along with his uncle, then with his uncle's widow Balammal and his sister Padmavathi and after the death of Balammal in 1951 along with Padmavathi. Ex.A7 is the account book maintained by Padmavathi and it covers the period from 1.1.1951 till December 1965. It is a monthly account showing the receipts of rental income on the one side and the expenditure on the other side, which Included payment of taxes, expenses incurred for repairing the house, medical expenses, purchase of clothes, etc. D.W.1 himself accepted the truth of Ex.A7. It is significant that along with the name of the tenants from whom rents are received, there is a reference to her elder brother which undoubtedly refers to the first defendant from whom a sum of Rs. 25 is shown as receipt almost every month. It indicates that the first defendant has also been paying a rent of Rs. 25. Ex. A9 is the account sheet under which the first defendant has rendered account of Padmavathi for expenses incurred on her behalf for the repair of the house and Ex. A10 is the photostat copy of Ex. A9. The entries in Ex. A9 tally with the entries Ex. A7 account book at pages 102 and 104. It is patent therefore, that Padmavathi has been exercising rights over the property as the full owner and the first defendant has been helping her as the only male member. Ex. A15 is an affidavit sworn to by the first defendants in which he admits that Murugesa Mudaliar was his maternal uncle, that he died on 19.1.1942, leaving his wife, and his daughter-in-law as his heirs. What is more is that Padmavathi has executed a mortgage in favour of the George Town Co-operative Bank Ltd., on 12.1.1963, over the schedule property claiming it to be the absolute owner thereof under the original of Ex. A3, and the first defendant has identified her before the Registrar. The testimony of the first defendant, who was a member of the Bar, as D.W. 1 that he did not know then that it was a mortgage is sickening indeed. He could not have been aware of the fact that Padmavathi has executed a mortgage over the schedule property as her absolute one and borrowed from the Co-operative Bank. There is no doubt that the first defendant has recognised Padmavathi as the absolute owner of the schedule property till her death and had attempted to challenge her title only after her death, probably because of the bequest made by her bequeathing a half share in the schedule property in favour of the plaintiff. His plea of prescriptive title is obnoxious.
19. I hold, therefore, that Padmavathi was the absolute owner of the schedule property and by and under her will, dated 24.2.1966, the plaintiff is entitled to a half share in the schedule property and to seek partition and separate possession of the same. Point 1 is answered the appellants.
20. Point 2 : It is not disputed and it cannot be disputed that ever since the death of Padmavathi on 10.4.1966 the first defendant has been in receipt of rents from the tenants of different portions of the schedule building till he died after suit and therefore the defendants 2 to 7 have been realising the rental income. The plaintiff is entitled to claim amounts for her share of the rental income. The fact, that the first defendant died after suit, does not in any way absolve the liability of his estate for rendition of accounts for the rental income realised by him during his lifetime. In Girijan and Devi v. Bikendra Narayan Chowdry , it was observed thus:
A claim for rendition of accounts is not a personal claim. It is not extinguished because the party, who claims an account or the party who is called upon to account died. The maxim Actio personalis Moritur-cum-Persona a personal action dies with the person, has a limited application. It operates in a limited class of actions Ex Delicto, such as the actions for damages for defamation, assault or other personal injuries not causing the death of the party, and in other actions where after the death of the party, the relief granted could not be enjoyed or granting it would be nugatory. An action for account is not an action for damages Ex Delicto, and does not fall within the enumerated clauses. Nor is it such that the relief claimed being personal could not be enjoyed after death or granting it would be nugatory. Death of the person liable to render an account for property received by him does not, therefore, affect the liability of his estate.
The plaintiff is, therefore, entitled to a decree for rendition of accounts against the estate of the deceased first defendant in the hands of the defendants 2 to 7 for her share of the income from the schedule property for the period from 10.4.1966 when Padmavathi died till the date of death of the first defendant after suit and against the defendant 2 to 7 personally for the period from the date of death of the first defendant till delivery of possession. The point is answered accordingly.
21. In the result, the appeal fails and is dismissed with costs.