( 1 ) THIS second appeal has set a problem arising under the provisions of the Hindu womens Rights to Property Act, 1937. (1a) The properties described in the C schedule attached to the plaint in O. S. No. 159 of 1952 on the file of the District Munsif Court, Tirukoilur belonged to one Hanumaji Rao, he having got them as a reversioner of the estate of one Raghunatha Roa. Subbanna Rao, the third defendant in the suit, purchased the properties from Hanumaji Rao under the sale deed Ex. A. 1 dated 3-4-1940. There were two brothers, Krishnamurthi Rao and Nagoji Rao. Nagoji Rao died on 10-11950 leaving behind his widow Kamala. Two days after the death of Nagoji Rao, his brother Krishnamurthi Rao, who was unmarried, also dies. Nagojis widow, kamala, sold the suit properties to the first defendant in the suit under Ex. B. 2, dated 25-8-1950. Krishnamurthi Raos sister, Rukumani Ammal, the 2nd defendant in the suit, sold the suit properties to the plaintiff under Ex. A. 10 dated 22-2-195

1. The 3rd defendant who had purchased the properties from Hanumaji Rao and in whose name the apparent title to the properties stood also executed a release deed Ex. A. 9 dated 5-3-1951, in favour of the plaintiff. The plaintiff averred that the 3rd defendant was not the real owner of the properties despite Ex. A. 1 standing in his name, but that he was a benamidar for Krishnamurthi Rao, the brother of the said Nagoji Rao having died, the plaintiff claimed that his sister, the 2nd defendant, was his next heir competent to convey the beneficial interest of Krishnamurthi Rao, in the suit properties. By way of abundant caution the plaintiff also obtained a release deed from the 3rd defendant, the ostensible title holder. The plaintiff therefore prayed for declaration of title to the suit properties and for recovery of possession.

( 2 ) THE first defendant alone contested the suit, defendants 2 and 3 having remained ex parte. His case also was that the 3rd defendant was not the real owner of the property but was only a benamidar. But according to him the 3rd defendant was not a benamidar for Krishnamurthi Rao alone but was a benamidar for both Krishnamurthi Rao and Nagoji Rao, who together constituted members of a Hindu undivided family. He contended that Nagoji Rao, having died as an undivided coparcener entitled to a moiety of the suit properties, his widow, Kamala acquired rights under the Hindu Womens Rights to Property Act and that right after the death of Krishnamurthi Rao, the other coparcener, became augmented into right in the entirety of the suit properties and that was conveyed to him by her under Ex. B. 2. He therefore claimed that he was entitled to the whole of the property and that the plaintiff was not entitled to it, part or whole.

( 3 ) AFTER the institution of the suit the plaintiff field an application for amendment of the plaint praying for the alternative relief by way of partition and separate possession of a half share in the suit properties. The plaintiffs case, therefore, was that either Krishnamurthi Rao was entitled to the whole of the suit properties or to at least a moiety if it were to be held that the other moiety belonged to his brothers widow, Kamala.

( 4 ) THE learned District Munsif of Tirukoilur who tried the suit held that the 3rd defendant was a benamidar for both the brothers, Nagoji and Krishnamurthi, who were members of a joint Hindu family and who continued to be so till their death. He held that the plaintiff did not acquire any interest in the suit properties under the conveyance in his favour from the sister of krishnamurthi Rao as the widow of Nagoji Rao became entitled to the whole of the property by virtue of the operation of the Hindu Womens Rights to Property Act. The suit was accordingly dismissed with costs.

( 5 ) THE plaintiff preferred an appeal, A. S. No. 175 of 1956, on the file of the court of the Subordinate Judge, Cuddalore, challenging the correctness of the decision of the trial court. The learned Subordinate Judge concurred with the finding of the trial court that the third defendant was a benamidar for the two brothers and that the plaintiffs case that he was a benamidar from Krishnamurthi Rao alone was not true. But he disagreed with the trial court and held that the plaintiff was entitled to a half share in the suit properties. He accordingly granted a preliminary decree for partition, thereby entitling the plaintiff and the first defendant each to share the properties equally among themselves.

( 6 ) THIS second appeal has been preferred by the 1st defendant who claims that the decree of the trial court should be restored. There is no memorandum of cross-objections by the plaintiff claiming that he should get a decree for recovery of possession of the entire suit properties.

( 7 ) THE concurrent finding of both the courts below is that the brothers, Nagoji and Krishnamurthi, were members of an undivided Hindu family, and that the suit properties belonged to them as members of such family. That was the case set up by the first defendant in his written statement, and that finding is in his favour. The respondent plaintiff has not challenged the correctness of that finding. The only point that arises for consideration is the extent or quantum of interest which Nagojis widow, Kamala, held and possessed on the date of the alienation by her in favour of the first defendant under Ex. B. 2, dated 25-8-1950. On the date of the death of Kamalas husband, Nagoji, he held an undefined interest in the suit properties as a coparcener of a Hindu joint family. Krishnamurthi Rao survived his brother, Nagoji Rao. But he did not and could not acquire the interests of his deceased brother by the operation of the rule of survivorship under the Hindu law as Nagojis widow who became vested with rights under the Hindu Womens Rights to Property Act was a stumbling-block holding in abeyance the operation of such rule for the duration of her lifetime. The coparcenary interest of Nagoji in the suit properties devolved under the status on his widow. Before the widow could enforce that statutory right and work it out by partition and severance of her share in the suit properties, the other coparcener was dead. Under those circumstances, the question is what is the extent of the interest in the suit properties of the widow of the predeceased coparcener, whether it should be confined only to a half share which undoubtedly her deceased husband had, or whether it should be taken to have been augmented to the fullest extent by reason of the death of the surviving coparcener as well.

( 8 ) THE Hindu Womens Rights to Property Act, was on the statute book from April 1937 for very nearly two decades till it was repealed by the Hindu Succession Act, 1956. It has given rise to knotty legal problems of great complexity. Judicial commentaries on the enactment are many and varied. The difficulty in interpreting the statute is caused not merely by its language which is not simple and plain, but by its being a fragmentary legislation concerning an aspect of Hindu law of succession and devolution of property. Gajendragadkar, J, as be then was, of the Bombay High Court commented upon the Act as follows in Shivappa Laxman v. Yellawa.

"It is true that piecemeal legislation passed for removing obvious anomalies or making pressing progressive changes in Hindu law tends to lead to complications; because it is sometimes difficult to reconcile the new provisions made by the Amending Acts with the rest of the structure of the Hindu law. The effect of the provisions of S. 3 on the constitution of the surviving family after the death of a coparcener is an illustration in point. The undivided Hindu family would now consist of coparceners and a female who has a share in the properties of the family. The right to property is conferred on the widow without giving her the status of a coparcener. This position is likely to raise some problems which may not admit of a logically consistent answer. The question as to how the deceased husbands interest devolves upon his widow has given rise to conflicting views."

( 9 ) THE relevant statutory provision which has to be construed in S. 3 clause (2) of the Hindu Womens Rights to Property Act, 1937, which is as follows:

"When a Hindu governed by any school of Hindu law other then the Dayabagh 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 clause (3) is as follows: "any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu womens estate, provided however that she shall have the same right of claiming partition as a male owner."

The Federal Court has held in Umayal Achi v. Lakshmi Achi, 1945 FCR 1 : (AIR 1945 FC 25 [] ), that the property held by a person as the last surviving coparcener of a Hindu joint family cannot be regarded as separate property within the meaning of S. 3 (1) of the Act though the expression "separate property" may be an antithesis of three other expressions, viz. , ancestral property, coparcenary property and joint family property.

( 10 ) A few things emerging out of the interpretation of the Act are now well settled. The conferment of right to property in favour of certain female heirs under the Act does not bring about a statutory severance in the undivided status of the members of the joint family. The female heir taking the property under the Act does take it by the rule of survivorship, known to Hindu law and operating between coparceners of a Hindu joint family. Nor does she take it by inheritance or succession. Such a mode of devolution of property though outside the concepts of Hindu law has come to be recognised by reason of the statute. If it were to be held that the female heir takes by survivorship, it would implicitly make such heir a coparcener on a par with the male coparcener of the family. The Act, however, has not chosen to use language apt enough to make her a coparcener which she was not prior to the Act. If the taking of the property by the female heir were to be invested with the character of inheritance or succession, it would follow that the property succeeded to was the separate property of the deceased coparcener, which it cannot be in the view that the Act does not bring about a disruption of the joint family status. It is this difficulty which is not very different from being between Scylla and charybdis that resulted in the courts devising the formula of statutory devolution of property, and thereby adding a third category to the two existing modes devolution of property under the Hindu law. It is also well settled at least so far as the decisions of this court go that, during the lifetime of the female heir entitled to the benefits of the Act to the extent of the interest of that heir, the operation of the rule of survivorship as between the male coparceners is suspended and held in abeyance. If the heir happens to die without working out her rights the suspension is removed and survivorship commences to operate. This is based on the ground of legal fiction that in the body of the female heir, the widow, half the body of her deceased husband survives.

( 11 ) I shall now refer to a few decisions of this court with a view to state what has so far been authoritatively laid down in the matter of the interpretation of the Act. In Subba Rao v. Krishna Prasadam, a widow, Ramabanamma filed a suit for partition against her father-in-law and the brothers of her deceased husband. She claimed one fourth share in the joint family properties belonging to them under the Hindu Womens Rights to property Act. While the action was pending the plaintiff-widow died. Her minor daughter, Krishna Prasadam filed an application to be brought on record as the legal representative of her mother and prayed for relief to continue the suit. This application was resisted and the question for consideration was whether after the death of the widow the rights she had under the Act can be enforced or whether such rights were defeated by the operation of the rule of survivorship amongst other members of the family. At page 567 (Mad LJ): (at p. 230-231 of AIR) Venkatarama Iyer, J. as he then was, summed up the legal position thus:

"To sum up, S. 3 (2) of the Act does not operate as severance of interest of the deceased coparcener; the right which a widow gets under that section is not as heir of her deceased husband; it is a statutory right based on the recognition of the principle that a widow is the surviving half of her deceased husband; that the incidents of that rights are those specified in the Act; that such right is one personal to the widow and comes to an end on her death; that the estate which the widow takes under S. 3 (2) does not, on her death, devolve on her husbands heirs; and that the right of the coparceners to take by survivorship is suspended as against the widow of a deceased coparcener and such right reasserts itself on her death."

( 12 ) IN Parappa v. Nagamma, a Full Bench of this court considered the nature and incidents of rights created under the Act. At page 192 (ILR Mad): (at p. 579 of AIR), Subba Rao, J. As he then was observed as follows:

"The Act, therefore, has conferred a new right on the widow of a deceased coparcener in modification of the pre-existing law. Sec. 3 (2) of the Act does not bring about a severance of interest of the deceased coparcener. Certainly the widow is not raised to the status of a coparcener, though she continues to be a member of the joint Hindu family as she was before the Act. The joint family would continue as before, subject only to her statutory right. The Hindu conception that a widow is the surviving half of the deceased husband was invoked and a fiction was introduced, namely, that she continued the legal persona of the husband till partition. From the standpoint of the other male members of the joint family, the right to survivorship was suspended. The legal effect of the fiction was that the right of the other members of the joint family would be worked out on the basis that the husband died on the date when the widow passed away. She would have during her lifetime all the powers which her husband had, save that her interest was limited to a widows interest. She could alienate her widows interest in her husbands share; she could even convey her absolute interest in the same for necessity or other binding purposes. She could ask for partition and separate possession of her husbands share. In case she asked for partition, her husbands interest should be worked out having regard to the circumstances obtaining in the family on the date of partition. If she divided herself from the other members of the family during her lifetime, on her demise the succession would be traced to her husband on the basis that the property was his separate property. If there was no severance, it would devolve by survivorship to the other members of the joint Hindu family. This conception of the legal persona of the husband continuing to live in her steers clear of many of the anomalies and inconsistencies that otherwise would arise."

( 13 ) A question was raised whether the Full Bench decision referred to above was in any way inconsistent with the decision in so as to hold that the latter decision has been overruled. This necessitated a reference to another full Bench, the decision in which is reported in Alamelu Ammal v. Chellammal, (FB). The Full Bench held that the ruling in was in no way affected by the Full Bench ruling in (FB). This Full bench however observed that the observation in the former Full Bench decision regarding succession to the interest of the widow after partition was merely obiter. The importance of the Full Bench decision in (FB), so far as this case is concerned is the observation of Subba Rao, J. That in the working out of the husbands interest by the widow in an action for partition the interest should be worked out having regard to the circumstances obtaining in the family on the date of partition.

( 14 ) IT has been held in a number of decisions, to a few of which a reference will now be made, that the interest of the widow, which is defined under the Act as the same interest which her deceased husband had, is not fixed or defined as on the date of the death of the husband, but is a fluctuating interest diminishing and augmenting by births and deaths in the family. There is sufficient warrant in the language of the statute itself for this view to be taken. The widow steps into the shoes of her deceased husband, who is not yet completely dead by reason of his fictional existence as a legal persona in the body of his wife. The interest of the deceased coparcener itself was a fluctuating interest which would abide by the varying fortunes of the family and the decrease and increase in the strength of the members of the family. The statute did not certainly confer a higher right on the widow than what her deceased husband himself had. (14a) In Mahadu Kashiba v. Gajarabai Shankar, AIR 1942 Born 442, the headnote summarises the legal position thus:

"Under the Act the interest which a widow takes upon the death of her husband in the husbands property is a fluctuating interest. It is liable to decrease by the number of coparceners in the family increasing by a birth or adoption. On the other hand, it is capable of augmentation in case one of the coparceners, who was alive at the time of her husbands death, dies subsequently. The interest which she takes is not a separated interest, separated, that is, from the interest of the other members of the family, who may, of course, be coparceners. Her interest is like the interest of her husband, an undivided interest in the joint family property and even though she is entitled to file a suit for partition, the interest does not get separated, at any rate, until the suit for partition is filed by her. The family consequently continues to be a joint one till the widow files a suit or a separation of interest is otherwise brought about."

( 15 ) TO the same effect is the decision of the Orissa High Court in Gangadhar v. Subhashini, (S) the learned Chief Justice (Panigrahi C.J.) observed as follows:

"The section provides that the widow shall have the same interest as he himself had in that property at the time of his death. The interest is of a fluctuating character and is liable to be either reduced or augmented on the birth or death of a coparcener. If the husband of the widow had not sued for partition, his interest in the coparcenary property would be open to the risk of fluctuation. Can it be said that his widow gets a superior right under the Act. Can she insist upon the identical share which her husband would have had at the time of his death One of the incidents of a coparcenary property is that no coparcener can predicate what his share is at any definite point of time, unless he gets his share separated by partition. It would be anomalous to hold that a widow would be entitled to claim a definite share which her husband would not have. The inclination of my mind is to hold that the Act gives the widow just what her husband had, namely, his undivided interest, subject to fluctuations, arising out of the varying fortunes of the family."

( 16 ) WITH respect I agree with the view expressed by the Bombay and the Orissa high Courts in the decisions cited above. (16a) Reference may be made to the decision of the Nagpur High Court in Ramchandra v. Ramgopal, AIR 1956 Nag 228, which specifically decided that the share of a widow claiming partition on the date of the institution of the suit, and not as on the date of the death of the husband of the claimant. In that case one Ramachandra had a one third share in certain joint family properties belonging to him and his two brothers, Ramgopal and Madangopal. Ramachandra had two sons, Trilokchand and Dwarakadas. Trilokchand died first in the year 1944 leaving behind his widow, Gitabai Dwarakadas dies next in 1947. In Ramchandras suit for partition, Gitabai was impleaded as a party, as she undoubtedly had a share as the widow of the predeceased son of Ramachandra. At the time when Gitabais husband died he had only a one third share in the one third of Ramachandra, that is a one-ninth share. On the date of the partition suit the other son of ramachandra, Dwarakadas having died Gitabai could claim a half of one third of Ramachandra, namely, one-sixth. The question for consideration in that case was whether Gitabai was entitled to only one ninth, or could she claim one sixth. The Nagpur High Court decided that Gitabais interest was a fluctuating one and her share became augmented after the death of her husband by reason of the death of another coparcener. At page 231, their Lordships observed.

". . . . . Sub-section (3) confers upon her a right to obtain a partition whenever she chooses. In other words, the Act specifically provided for the ascertainment and separate possession of the widows share at such time as she desires to have it ascertained and separated. Since the property continues to be joint family property, despite the fact of the widow taking the place of her husband after his death, she is like any other member of the family, entitled to the joint enjoyment of every portion of that property in the same manner as the other members of the family. The question, therefore, of determining the extent of her share does not arise at the time of her husbands death just as it does not arise in respect of the other members of the family. That question arises only when the right to claim partition is exercised either by her or by some other member of the family. It is, therefore, that date which is the crucial one for determining the quantum of interest or the extent of her share.

( 17 ) THIS decision was followed by a later decision of that court reported in Tukaram v. Mst. Gangi, AIR 1957 Nag

28. The same view has been taken by a recent decision of the Andhra High Court in Lakshmi Perumal v. Krishnavenamma, 1959 Andh L. T. 318.

( 18 ) I am of opinion that the language of S. 3 (2) of the Act can only lead to that conclusion. The interest of the widow being a fluctuating one, the extent of that right has to be determined only as on the date when she sues for partition, and not as on the date of the death of her deceased husband. But the acceptance of this legal position cannot solve the problem arising in this case.

( 19 ) THERE is a detailed and exhaustive consideration of the widows rights under the Act and her status quota the other members of the family in a decision of a division Bench of this court in Manorama Bai v. Rama Bai, The following observations from the judgment of Ramaswami J. May be quoted:

"The incidents of that coparcenership can be conveniently summed up as every individual member having by virtue of being a coparcener, an interest in coparcenery property; a right to enforce partition until partition takes places an unpredictable and fluctuating interest in the joint and undivided property possessed and enjoyed in common by the coparcenery the interest being a fluctuating interest enlarged by deaths and diminished by the births in the family; right to be in joint possession and enjoyment of coparcenery property, reside and to be maintained in the family house; and as a necessary corollary thereof, be bound by the alienations for benefit and necessity and the legitimate acts of management of the karta. There does not seem to be any justification for saying that the widow is not a pucca coparcener and at the best in a kucha one entitled to the rights of survivorship at least (the last male preserve) as a coparcener as she has no right by birth."

( 20 ) THIS decision has taken a step further than the earlier decisions of this court in equating the status of a widow to that of a male coparcener under the Hindu law.

( 21 ) IT must be pointed out that the concept of a widow being a coparcener of the joint undivided family as laid down in this decision is unique and is at variance not merely with the decisions of this court including that of the Full Bench decision in (FB) but with all the decisions of the other High Courts as well. In accordance with this decision the first defendant in this suit will be entitled to the entire property and the plaintiff has got to be non-suited. But the decision is in conflict with (FB) and another decision of a Bench of this court in Seshi Ammal v. Lakshmiammal, A.S. No. 299 of 1950 (Mad).

( 22 ) IT is necessary to refer to a decision of the Orissa High Court in Keluni Dei v. Jagbandhu Naik, which expresses dissent from the decision of the Division Bench of this court in that case there were two brothers Bhagirathi and Balaram. Both the brothers died in the same month October-November 1939 each with an interval of 10 or 12 days, and Balaram died first. Balaram left behind his only heir, widow, Pitai. Pitai died sometime in April 1944. Bhagirathis widow was one Keluni defendant 1 in that action, and his daughter was one Malathi, defendant 2. The suit was instituted by the fathers brother of Balaram claiming himself to be the heir entitled to succeed to the interest of Balaram after the death of his widow Pitai. The question for consideration related only to Balarams interest, and the question was as to who was the preferential heir, Balarams fathers brother of the surviving widow of Bhagirathi, namely, Keluni. Their Lordships of the Orissa High Court held that Balarams interest which passed on to Pitai under the Hindu Womens Rights to property Act, 1937, cannot pass in favour of Keluni by way of survivorship, and that the plaintiff namely Balarams fathers brother was the person entitled to succeed. Referring to the judgment of this court in their lordship observed at p. 50:

"We are not prepared to attach importance to this decision inasmuch as it being a Division Bench case, it goes beyond the decision of the Full bench decision of the same High Court. It is to be noted, Ramaswami, J. Who delivered the judgment in the 1957 case, was also a party to the judgment of the Full Bench decision in the year 1954. "

At p. 51, their Lordships summed up the conclusion in the following words, the above considerations lead us to the position that after the death of Bhagirathi, the last coparcener, the coparcenary ceased to exist as the widows Keluni and Malati cannot in any event be termed as coparceners according to Hindu conception. Keluni and Pitai therefore possessed the properties of Bhagirathi and Balaram as tenants-in-common."

In A. S. No. 299 of 1950 (Mad) on the file of this court, the facts were that one Mathrubhutham Iyer died on 13-5-1939 leaving behind his first wife Lakshmi Ammal, a son by her, Ramamurthi, his second wife Seshi Ammal, and a son by her also. Ramamurthi the first wires son became divided from this father during his lifetime. The father Mathrubhutham and his son by the second wife remained undivided. The son by the second wire died on 23-12-1959. The first wife Lakshmi filed the suit out of which the appeal arose for partition and separate possession of a half share in the non-agricultural properties of her late husband. The co-widow pleaded that the first wire will be entitled to only a quarters share. Her contention was that her son survived her husband and that he was the sole surviving coparcener of the family entitled to the property subject to the half share which the two widows, his mother and step mother, might have together obtained and that on his death the property was inherited by her as his heir subject to the same right. The contention was upheld by this court. The first wire who sued for partition was held entitled only to a quarter share Panchapakesan Ayyar J. Observed as follows: "to say that the plaintiff and the first defendant would be entitled to take a half share each, ignoring the birth and death of the male child of the first defendant and the effect of his being the sole surviving coparcener and the last full male holder, would be running against the authority of Hindu law." I respectfully agree with this observation.

( 23 ) THE death of the last surviving coparcener in a Hindu joint family lets in the law of inheritance and succession, if he dies intestate. There can be no passing of property by survivorship to another coparcener, as the deceased was the last coparcener. But the person who inherits the property from the last coparcener can take it subject only to the rights of the female members of the family acquired under the Hindu Womens Rights to Property Act, 1937 before the death of such coparcener. The fluidity of the share of the female member can subsist only so long as there is scope of survivorship to operate that is so long as the coparcenary subsist. The female member is not a coparcener and she cannot therefore claim any property by right of survivorship. Once the coparcenery terminates by the death of the last surviving coparcener, and his property passes on to another by inheritance, while the female members vested rights under the Act are in no way defeated, she cannot prevent the operation of the law of inheritance and aspire to be placed in the position of the next heir of the last propositus.

( 24 ) IN my judgment, the plaintiff as the alienee from the heir of Krishnamurthi Rao is entitled to the suit properties subject to the half share of Kamala under the Hindu Womens Rights to Property Act, 1937, now got by the first defendant.

( 25 ) THE judgment and decree of the learned Subordinate Judge are correct. The second appeal fails and is dismissed with costs. Leave granted. Appeal dismissed.