# POITI LAKSHMI PERUMALLU v. POTfl KRISHNA VENAMMA

- **Citation:** [1965] 1 S.C.R. 26
- **Court:** Supreme Court of India
- **Decided:** 1964-08-13
- **Case number:** Civil Appeal No. 519 of 1961
- **Bench:** K. SUBBA RAo, N. R1Uagopala Ayyangar, J. R. MuoHOLKAll
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/poiti-lakshmi-perumallu-v-potfl-krishna-venamma-3301
- **Pages:** 12

## Headnote

llindu Womw's Rights to Property Act, 1937 (Act 18 of 1937)-
/lusband member of joint family-Will by husband-Whether amo1U1U to
separation--JVht:thc•r could be construed as family arrange1nen1-WiJow's
itJterest-Dcterminafion-iYhethcr as on the d.11e of seeking partition or
as on the date of death of husband.
The respondent, widow of S, 1hc brother of the appellant, filed o
suit claiming half ~hare in the entire propeny by virtue of the provisions
of the Hindu Women's Right to Properly Acl.
After 1he death of S.
his only son by his first wife died al 1he age of 11 yeaf3.
The
respondenl admit1ed thal S had purporled 10 exeeule a will before hi•
death but contended that it was inofcrativc because he was a member of
a Hindu joint family at 1he lime o his dea1h.
The courts below found
that 1he suit properties were the joint family properties of S and the
appellant. that the will execuled by S was inoperative and not bindi"I'
on the respondent and that she was cnti1Ied to half share in the swl
properties.
On appeal by special leave, 1he appellanl contended tbol
( 1) 1he will execuled by S it<elf rcsulled in a severance in the a1a1us of
the two brothers consliluling lhe join1 family and 1ha1 in any event ocpa·
ration en•ued between them at the death of S; (2) at any rate the will
should be construed to be a family arrangemenl made by 1he Karla of
the family and assented lo by the respondenl aad by the father and the
foster-father of the respoadenl on her behalf. and ( 3) assuming thal
neither of the two contentions ,~·ere correct, the interest to whioh the
respomlenl would he Clllilled would he ilh share in the properly and not
half share therein. this interest having to be a.~certaincd as on the date
of the dea1h of S.
HELD : chat the High Court rightly aega1hed all these contcnti-.
(i) Nowhere in the will had S staled thal be wanlcd to pnt an end
10 1he coparcenary.
Indeed, 1he very assertion therein-though it ba3
been concurrently found 10 be untrue-that the properly was not join!
family property would preclude an inference that S inlcnded 10 CXl'fllS'!
an intention to separate and put an end to a coparcenary which, according to thal asser1ion, in face did not exist. [30G-3 IA]
A. Raghava1111na v. A. Che11cha1nn1a, (1964J 2 S.C.R. 933 referred to.
(ii) A family arangement which is for lhe benefil of lhe family
generally can be enforced in a court of law.
Bm before the court would
do so, it must be shown that there was an occasion for entering iato_ a
family arrangemenl and ii was acletl upon. [31A-BJ
(iii) According to the theory underlying the Hindu law the widow
of a deceased Hindu is his surviving half and therefore as long u lb•
is alive he must be deemed to continue to exist in her person. Thi!
surviving half had, under the Hindu law lexts, no right to claim a partition of 1he property of lhe family to which her husband belonged.
Bnt
.. the Act- of. 1937 has conferred thal righ1 upon ;,er.
When the Act says
that she wiU have the same right as her husband had, it cJcarJv mcen'I:
that she would be entitled to be allotted the same shnrc ac; hr:-
h11~
1,and
A
B
c
•
D
••
G
t
II
LAKSHMI \I, KRJSHNAVENAMMA (Mudholkar J.)
27
A
would have been entitled to had he lived on the date on which she claimed
partition. The interest devolving upon the widow need not necessarily be
either by survivorship or by inheritance but could also be in a third way
<I
i.e., by statute ilnd where the interest is taken by her under a statute it
would be of a kind provided by the statute itself. [34B-D; 37BJ
Case law discussed.
Jadaobai v. Puranmal, I.L.R. [1944] Nag. 832, and Natarajan Chettiar
B
v. P'Tumal Ammal, A.I.R. 1943 Mad. 246, disapproved.
Siveshwar Prasad v. Lala Har Narain, I.LR. (1944) 23 Pat 760 and
R•/•ndrabati v. Mungalal, I.L.R. (1952) 31 Pat. 477, distinguished.

## Text

POITI LAKSHMI PERUMALLU
v.
POTfl KRISHNA VENAMMA
August 13, 1964
(K. SUBBA RAo, N. R1UAGOPALA AYYANGAR AND J. R.
MuoHOLKAll JJ.)
llindu Womw's Rights to Property Act, 1937 (Act 18 of 1937)-
/lusband member of joint family-Will by husband-Whether amo1U1U to
separation--JVht:thc•r could be construed as family arrange1nen1-WiJow's
itJterest-Dcterminafion-iYhethcr as on the d.11e of seeking partition or
as on the date of death of husband.
The respondent, widow of S, 1hc brother of the appellant, filed o
suit claiming half ~hare in the entire propeny by virtue of the provisions
of the Hindu Women's Right to Properly Acl.
After 1he death of S.
his only son by his first wife died al 1he age of 11 yeaf3.
The
respondenl admit1ed thal S had purporled 10 exeeule a will before hi•
death but contended that it was inofcrativc because he was a member of
a Hindu joint family at 1he lime o his dea1h.
The courts below found
that 1he suit properties were the joint family properties of S and the
appellant. that the will execuled by S was inoperative and not bindi"I'
on the respondent and that she was cnti1Ied to half share in the swl
properties.
On appeal by special leave, 1he appellanl contended tbol
( 1) 1he will execuled by S it<elf rcsulled in a severance in the a1a1us of
the two brothers consliluling lhe join1 family and 1ha1 in any event ocpa·
ration en•ued between them at the death of S; (2) at any rate the will
should be construed to be a family arrangemenl made by 1he Karla of
the family and assented lo by the respondenl aad by the father and the
foster-father of the respoadenl on her behalf. and ( 3) assuming thal
neither of the two contentions ,~·ere correct, the interest to whioh the
respomlenl would he Clllilled would he ilh share in the properly and not
half share therein. this interest having to be a.~certaincd as on the date
of the dea1h of S.
HELD : chat the High Court rightly aega1hed all these contcnti-.
(i) Nowhere in the will had S staled thal be wanlcd to pnt an end
10 1he coparcenary.
Indeed, 1he very assertion therein-though it ba3
been concurrently found 10 be untrue-that the properly was not join!
family property would preclude an inference that S inlcnded 10 CXl'fllS'!
an intention to separate and put an end to a coparcenary which, according to thal asser1ion, in face did not exist. [30G-3 IA]
A. Raghava1111na v. A. Che11cha1nn1a, (1964J 2 S.C.R. 933 referred to.
(ii) A family arangement which is for lhe benefil of lhe family
generally can be enforced in a court of law.
Bm before the court would
do so, it must be shown that there was an occasion for entering iato_ a
family arrangemenl and ii was acletl upon. [31A-BJ
(iii) According to the theory underlying the Hindu law the widow
of a deceased Hindu is his surviving half and therefore as long u lb•
is alive he must be deemed to continue to exist in her person. Thi!
surviving half had, under the Hindu law lexts, no right to claim a partition of 1he property of lhe family to which her husband belonged.
Bnt
.. the Act- of. 1937 has conferred thal righ1 upon ;,er.
When the Act says
that she wiU have the same right as her husband had, it cJcarJv mcen'I:
that she would be entitled to be allotted the same shnrc ac; hr:-
h11~
1,and
A
B
c
•
D
••
G
t
II
LAKSHMI \I, KRJSHNAVENAMMA (Mudholkar J.)
27
A
would have been entitled to had he lived on the date on which she claimed
partition. The interest devolving upon the widow need not necessarily be
either by survivorship or by inheritance but could also be in a third way
<I
i.e., by statute ilnd where the interest is taken by her under a statute it
would be of a kind provided by the statute itself. [34B-D; 37BJ
Case law discussed.
Jadaobai v. Puranmal, I.L.R. [1944] Nag. 832, and Natarajan Chettiar
B
v. P'Tumal Ammal, A.I.R. 1943 Mad. 246, disapproved.
Siveshwar Prasad v. Lala Har Narain, I.LR. (1944) 23 Pat 760 and
R•/•ndrabati v. Mungalal, I.L.R. (1952) 31 Pat. 477, distinguished.
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 519 of
1961.
t
Appeal by special leave from the judgment and decree dated
December 11, 1958, of the Andhra Pradesh High Court in Appeal
Suit No. 1142/1953.
S. T. Desai and T. V. R. Tatachari, for the !IPpellant.
G. Venkatarama Sastri and R. Gopalakrishnan, for the resD pondent.
The Judgment of the Court was delivered by
Mudholkar J. This is an aP.peal by special leave from
the judgment of the High Court of Andhra Pradesh affirming the
decrees for partition and separate possession of certain movable and
E immovable properties, passed by the second Additional Subordinate
Judge, Vijayawada.
F
G
The genealogical table showing the relationship between the
parties set out below will be of assistance in appreciating the
facts of the case :
First wife I
Plllla Pao
died in 1939
Potti Subba Rao
(died in 1919)
I
-
sit.dmaiah -
Second wife
Lakshmi
1Perumallu Kris~namurti
(died on
(Plaintiff)
(defendant)
(died in 1930)
10.8.1938)
. krishnavenamma ·
Potti Subba Rao who died in the year 1919 was survived by
,.
three sons Sitaramaiah, Lakshmi Perumallu and Krishnanturti.
Sitaramaiah was married twice. From the first wife he had a son
named Pulla Rao. After the death of the first wife he married
H
Krishnavenamma, the plaintiff in the suit. Sitaramaiah died on
August 10, 1938 •. No issue was born to Krishnavenamma who
was only 14 years of age at the time of Sitaramaiah's death. Pulla
28
SUPREME COURT REPORTS
[196~] I S.C.R.
Rao died in the year I 939 at the age of I I years. Krishnamurti A
died in the year 1930 i.e., before Sitaramai&h, without leaving any
issue or a widow. The plaintiff continued to stay in the same house
as the defendant till the beginning of July, 1950. Then she suddenly left the house and instituted the suit in question on the 6th
of that month. According to her Sitaramaiah and his two brothers,
·the defendant and Krishnamurti, acquired large movable and B
immovable property at Vijayawada, described in the schedule to the
plaint, with the aid of their ancestral business. She claimed half
share in the entire property set out in the schedules, by virtue of the
provisions of the Hindu Women's Rights to Property Act, I 937.
She admitted that her husband had purported to execute a will
before his death but conten~ed that it was inoperative because he
C
was a member of a Hindu joint 'family at the time of his death. •
The defendant contested the claim on various ground•.
According to him there was no ancestral property and the suit
properties were acquired by the brothers by their individual efforts
and treated as self-acquisition. Further according to him the will
D
executed by Sitaramaiah is valid and binding on the plaintiff and
that the -property allotted to the plaintiff under the will was being
enjoyed by the plaintiff and further the properties ·allotted to Pulla
Rao devolved upon him after Pulla Rao's death. Lastly, according
to him even if rhe property were held to be joint family property
of Sitaramaiah and the defendant lhe plaintiff would be entitled
only to I/4th share in them and nof half shar~.
E
The courts below have found that the suit properties were
the joint family properties of Sitaramaiah and the defendant, that
the will executed by Sitaramaiah was inoperative and not binding
on the plaintiff and that the plaintiff is entitled to half share in the
suit properties. The trial court gave direction to the effect that a
commissioner be appointed for ascertaining the property liable to be
•·
partitioned and for dividing them into two equal shares by metes
and bounds for the purpose of awarding to the plaintiff the separate
rosscssion of her half share in the propertie,.
Mr. S. T. Desai who appears for the defendant-appellant has
not challenged the concurrent findir.gs of the courts below to the
G
effect that the properties acquired by the family were joint family
properties.
He. however. urged the following three contentions
before us :
(I ) The will executed by Sitnramaiah on August 3, 1938
itself resulted in severance in the status of the twr>
brothcf' constituting the Joint fomily and that in any
H
•
•
...
A
B
c
LAKSHMI v. KRISHNAVENAMMA (Mudho/kar /~)
. 2~
event separation· ensued betwee.n them at the death of
Sitaramaiah;
(2) that at an} rate the will should ·~e construed to be a
family arrangement made by the · karta of the family
and assented to by the defendant. and by' the father and
the foster-father of the plaintiff on her behalf;
( 3) assuming that neither of the two contentions is correct,.
the interest to. which the plaintiff would be entitled
would be I/ 4th share ·in the property and not half
share therein. This interest has to be ascertained as
on the date of the death of Sitaramaiah.
', . All these contentions were also urged before the High Court
butwere negatived by it and in our opinion, rightly. Mr. Desai
has, however, placed reliance upon a recent decision of this Court
in A. Raghavamma & anr. v. A. Cheni:hamma & anr.(') in support
of the contention that the will itself effected a severance in status.
D What was held in that case was that a member of a joint Hindu
family can bring about 11 separation in status by a definite and
unequivocal declaration of his intention to separate himself from
the family and enjoy his share in severalty by expressing such an
intention even in a will. It was further held that. the knowledge
of the expression of intention to separate has to be brought home
E to the persons affected by it and if that is done it relates back to·
the date when the intention was formed and expressed. A perusal
of the will, Ex. B-1, does not however unmistakably show that
the intention of Sitaramaiah was to separate himself from the joint
family.
At the outset he has stated : "I have executed this wilr
regarding the arrangements to take effect after my life-time with·
F
regard to the enjoyment of the joint iinmovable and movable
properties which are possessed by me and under my management by
my brother and others." In the second paragraph he has stated·
that ht had no ancestral property at all and that the business carried·
on by himself and his brother was established by them. In the third··
paragraph he directed that the plaintiff shall maintain his son Pulla
G Rao and that his brother would look after the interests of Pulla Rao.
H
The 4th, 5th· and the 8th paragraphs on which reliance is placed'
by Mr. Desai run thus :
·
·
"4. If for any reason the said Krishnaveni does not agree·
to be like that my younger brother Lakshmi Perumallu·
shall deliver possession of the upstair house constmcted
newly on the house
sit~ purchased from Nadakurthi'
. (1) [1964] 2 S.C.R. 933.
LISup./64-- 3
30
SUPREME COURT REPORTS
[1965) I S;
Kristamma and others and the tiled room situate in the
A
big street and purchased from Gunda Subbarayudu out .of
the immovable property possessed by.me in Bezwada town
on condition of including them in the half share of the
property that shall pass to my son after my life-time.
5. The said Krishnaveni shall be at liberty to take
B
possession of the two properties mentioned in paragraph
4 above, to pay all kinds of tax~; payable thereon and to
enjoy freely throughout her life-time only the income got
every year from the said two properties without powers
of gift, mortgage, exchange and sale. by following
the
age-old custom and by maintaining the family respect and
C
custom and the said two properties shall pass to my son
PuUa Rao alias Venkatasatyanarayana after her life-time.
8. My younger brother Lakshmi Perumallu shall keep
the remaining entire property joint till my son Pulla Rao
alias Venkatasatyanarayana attains majority and manage
D
the same, shall bring up the boy properly, celebrate the
marriage and other auspicious functions and divide the half
share of the property after he attcins majority and deliver
possession of the same to my son."
It seems to us difficult to infer from the recitals in these paragraphs E
that Sitaramaiah had expressed his unequivocal intention to get
separated in status. No doubt, in the 4th paragraph he has observed
that in certain circumstances certain property will be included in
"
the half share of the property that wou Id pass to his son after his
death and he has also said in paragraph 5 that the plaintiff shall
be at liberty to take possession of the two properties indicated in F
paragraph 4, enjoy them during her life time and that on her death
they will pass to Pulla Rao. But in paragraph 6 he has referred
to the remaining property as "joint property" and has reptlll!M that
in paragraph 7. Again, what he has said in paragraph 8 militates
wholly against the inference of separation in status. TIIC!e he has
enjoined upon the defendant to keep the remaining property joint
G
till Puna Rao attained majority, manage the same and divide that
property between himself and Pulla Rao after the latter attained
majority. Nowhere in the will has he stated that he wanted to.put
an end to the coparcenary. Indeed, the very assertion which has
been concurrently found to be untrue that the property was not
joint family property would preclude an inference that Sitaramaiah ff
intended to express his intentioo to separate in status· and pot an
end to a coparcenary which, accord~ng to that assertion, in fact did
•
•
...
LAKSHMI v. KRISHNAVENAMMA (Mudholkar I.)
3.1
A not exist. In the circumstances we cannot accept the first conten.,
ti on of Mr. Desai.
No doubt, a family arrangement which is for the benefit of the
family -generally can be enforced in a court of law. But before
the court would do so, it must be shown that there was an occasion
B
for effecting a family arrangement and that it was acted upon.
It is quite clear that there is complete absence of evidence to show
that there was such an occasion or the arrangement indicated in the
will was acted upon. The letter Ex. B 12 upon which reliance was
placed before the High Court on behalf ,of the defendant has not
been found by it to be genuine. The defendant had also pleaded
C
that the provisions under the will were given effect to but no satls·
factory evidence has 'been adduced to prove that the plaintiff vyas
in enjoyment of the properties allotted to her under the will. We
cannot,. therefore, accept the second contention of Mr. Desai.
Coming to the last ·question there is a certain amount of
conflict in the decisions of the various High Courts. One view
D
is that the qqantum of interest tci which a Hindu widow is entitled
under s. 3(2) of the Hindu Women's Rights to Property Act, 1937,
is to be determined as on the date on which she seeks to enforce
partition under sub-s. (3) of s. 3. The other view is that it has
to be .determined as on the elate on which her husband died, that is
E
to say, that it is not a fluctuating interest increasing or decreasing as
a result of deaths or births in the family.
F
G
H
The first mentioned view has been stated with approval in
Mulla's Principles of Hindu f.,aw, (12 ed.) and it is stated at
pp. 109-110 :
"The share which ·aevolves on a widow of a deceased
coparcener is not a fixed and determinate share but what
she takes is the 'same interest as he himself had'. Therefore,
un~il there is partitiqn, she cannot predicate the
particular fraction of her share for it is likely to increase
or decrease by birth or death of other coparceners.
Her
. share would include a share in accre._tions to the joint
fa,inily property till partition is effected.
Prior to the
Act, a widow was entitled to a share in partition among
her sons in her capacity as a mother (except in Madras).
It 'has been held in a number of cases that after the Act
the widow cannot claim a double share on partition between the sons, one in her capacity as a widow and another
as a mother.
Under the prior law, stridhan acquired by
a female from her husband or father-in-law was taken
32
SUPREME COURT REPORTS
( 1965] I S.C.R.
into account when a share wa' allotted to her on partition
A
arnorigst the sons.
The share she gets under section
3 ( 2) is not affected by any rule of Hindu law to
the
contrary and it has been held in a Nagpur case that such
srridhan received by her would not be
deducted from
her share on partition."
B
In support of this statement in law reliance has been placed upon
the following decisions :
Nagappa v. Mukambe('); Mahadu v. Gajarabai(2); Shivappa
v.
Yellewa('); Gangadhar v.
Subhashsini('); Tukaram v.
Gangi("); Ramchandra v. Ramgopa/("); Hanuman v. Tu/sabai(').
C
In addition to these decisions our attention was also invited
to Gurudayal v. Sarju( 8 ); Kamal Kishore v. Harihar('); SabujpQ.ri
v. Satrughan lsser(' 0 ); Muvva Subba Rao v. Movva Krishna
Prasadam ( 11 ); Parappa v. Nagamma( 12 ); Manicka v. Arunachala( "); Harekrishna v. Jujesthi( "); Kel.uni V. Jagabandhu( 1•); n
The Indian Leaf Tobacco Deve/opme11t Co. Ltd., v.
K. -
Kotayya( 10 ); Laxman v. Gangabai("); Bhondu v. Ramdayal(");
Rat an K umari v. Sunder Lal ( 19 ).
The High Court itself referred to the decision in Chinniah
Che/liar v. Sivagami Achi('0 ) which is a decision of the Full Bench
constiluted for resolving an apparent conflict between the decisions
E
in Chinniah Che/liar's case('") and Subba Naicker v.
Na/lamma/(21). In the opinion of the Full Bench there was really no
conflict between the two decisions and that the right conferred
by the Hindu Women's Rights t6 Property Act was a new right
in modification of the pre-existing one. The Full Bench further
held th~t s. 3(2) of the Act does not bring about a severance of
F
interest of the deceased coparcener, that his 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, that the
joint family would continue to exist as before subject only to her
statutory rights and that the rights of the other members of the
family would be worked out on the basis that the husband died
G
(ll 1.L.R. 11951! Bom. 442.
(2) l.L.R. 11954) Born. 885.
(3) I.LR. [19S3! Born. 958.
(4) A.l.R. 19SS Orissa 135.
(5) A.LR. 1957
Nag. 28.
(6) l.L.R. [19561 Nas. 362.
(7) A.1.R. 19S6 Nag. 63
(8) A.l.R. 1952 Nas. 43.
(9) l.L.R. [1951] Pat. 357.
(10) A.l.R. 195B Pat. 405.
(11) l.L.R. !1954) Mad. 2S7.
(12) I.LR. [1954] Mad. 183 (F.8.).
(13) 1.L.R. 1961] Mad. 1016.
(14) 1.L.R. l19SS] Cutt. 709.
H
(IS) l.L.R. [19571 Cutt. 6:lll.
(16) A.LR. 1955 Andh. 135.
(17} 1.L.R. [1955] M.B. 282.
(18) A.l.R. 1960 M.P. 51.
(19) A.J.R. 1959 Cal. 787.
(20) I.LR. [!~SJ Mad. 402.
(21) (1949) 2 M.L.J. 536.
'
.; •
I ,
•
..
A
T.AKSHMI v. KRISHNAVENAMMA (Mudholkar J.)
33
on the date when the widow passed away, the right to survivorship
being suspended till then.
Further according to the Full Bench
a widow can under the Aci claim a share not only in the property
owned and possessed by the family at the time· of his death but
also in the accretions arising therefrom, irrespective of the character of the accretions.
The various decisions to which we have
B adverted rest on the view that the interest which the Jaw has conferred upon the widow is a new kind of interest ,though in character
it is what is commonly known as the Hindu widow's estate. This
interest is in substitution of her right under the pre-existing Hindu
law to claim maintenance.
The decisions also recognise , that
c
D
though the widow does not, by virtue of the interest given to her
by the new law become a coparcener she being entitled to claim
partition of the joint family property is in the same position in which
her deceased husband would have been in the matter of exercise
of that right.
That is to say, according to these decisions her
interest is a fluctuating one and is liable to increase or decrease
according as there are deaths jn or additions to the members of
the family or according as there are accretions to or diminutions
of the property. In our opinion these decisions lay down the law
correctly. To hold, as contended for by Mr. Desai and as would
appear from the two decisions upon which reliance was placed by
him before us-ladaobai v. Puranmal(') and Siveshwar Prasad v.
E . Lala Har Narain( 2)-would mean that whenever a coparcener in a
Hindu joint family dies leaving a widow a disruption takes
place in the family.
For, unless a disruption js deemed to take
pl:!ICe, it would not be possible for the widow's share to be· crystallised.
The argument of Mr. Desai, however, is that the words
F
G
H
in the Act "his widow shall, subject to the provisions of sub-s.
( 3) have in the property the same interest as he· himself had" can
only mean the interest which the deceased coparcener had at
the moment of his death and the words "shall be the limited interest known as a Hindu woman's estate" show that the nature
of her interest was to be the same as already recognised by the·
Hindu law.
The legislature did not, he says, intend to create a
new kind of interest nor to make her a coparcener.
Undoubtedly
she does not become a coparccner, though her interest in the
family property is to be the same as that of her deceased husband
. except that in extent it is to be that of a Hindu widow.
(Now,
of course, it has been enlarged by s. 14 'of the Hindu Succession
Act, 1956). But a coparcener has no defined interest in the
joint family property and the right which he has is to claim for
partition.
The quantum of his interest would be determinable
(I) J.L.R, [1944] Nag. 832.
(2) J.L.R. (1944) 23 Pat. 7(1J.
34
SUPREME COURT REPOR·:s
[ 1965] I S.C.R.
with reference to the date on which such member unequivocally
declares his intention to separate and thus put an end to the
coparcenary.
ft cannot even be suggested that the event of the
death of a coparceaer is not tantamount to an unequivocal declaration by him to separate from the family.
According to the
theory underlying the Hindu law the widow of a deceased Hindu
is his surviving half and, therefore, as long as she is alive
he
must be deemed to continue to exist in her person.
This surviving half had under the Hindu law texts no right to claim a partition of the property of the family to which her husband belonged.
But the Act of I 937 has conferred that right upon her.
When
A
B
the Act says that she will have the same right as her husband had
it clearly means that she would be entitled to be allotted the . C
same share as her husband would have been entitled to had he lived
on the date on which she claimed partition.
Jadaobai's case(') in which a different view has been taken
and on which reliance has been placed by Mr. Desai may now be
considered. In that case it was contended that the widow does not D
take any property by succession and, therefore, she is not liable
to produce a succession certificate for the execution of a decree
obt:1ined by her hushand. In support of this contention reliance was
placed on b.ohalf of the widow upon the decision in Natara;an
Chettiar v. Perumal Amma/(2). In that case Horwill J. observed
as follows :
'The widow does not obtain the right given under this
section (section 3 of the Hindu Women's Rights to Property Act, I 937) by survivorship.
She was not a coparcencr before her husband's death and she was not one
afterwards.
I do not however think that it follows that
because the widow does not obtain her right by survivorship that she must
obtain it by inheritance.
The
effect of s. 3 els. (2) and (3) mav be regarded as
a
survival of the husband's persona in the wife giving her
the same rights as her husband -had except that she can
alienate property only under certain circumstances.
As
the widow did not inherit her right, no succession certi·
ficate is necessary."
The learneti Jmlj!cs of the Nag;rnr High Court observed that a
perwn ~~n tak~ the prore~ty of another either by survivorship or
E
F
G
bv succe"ion and that if. as held in the Madras case, the widow
ff
of " deceased coparcener does nm take it by survivorship the only
··-
--
. -
(I) J.L.R. (!944] Na•'. 83".
t2) A.t.R. t943 Mad. 246.
..
c ,
LAKSHMI v. KR!SHNAVENAMMA (Mudholkar J.)
35-
,
A way in which she co~ld take it would be by succession, In the
course of the jud.gment the learned Judges observed·:
B
"Horwill J., in the Madras case quoted above, is of the
opinion that the mere fact that the widow d0es not obtain
her right by survivorship does not lead to the conclusion
that she obtains it by inheritance. H she does not claim
it by inheritance we fail to understand how she is claiming
it in the face of the clear wording of the Act. The observations that the effect of section 3, clauses (2) and (3), may
be regarded as a survival of the husband's persona in the
" . c
wife, giving her the same rights as her husband ·had except
that she can alienate property only under certain ch-cumstances, do not indicate very clearly what was really
' .
..
D
intended to be laid down. 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."
It seems to us that the learned Judges were not quite correct in
saying that the property of one person can, on his death, c'evolve on
another only by survivorship or by inheritance and in no other
way. For, it is competent for the legislature to confer a right on
E
a person to get the property of another on the latter's death in
certain circumstances. This. is precisely what has been done. by
t:1e legislature in enacting s. 3, sub-s. (2) of the Hindu Women's
Rights to Property Act. Adverting to the aforesaid decision it was
observed by another division bench of the same High Court in
Gurdayal v. Sar ju (1) :
F
G
H
"Reliance was, however, placed for the defendants on
Jadaobai v. Puranmal( 2 ) where a Division Bench of this
Court heid that the interest of the husband devolves on the
widow by inheritance and not by survivorship. We have
no quarrel with that. It does not matter for the purposes
of this case how the interest which the Hindu Women's
Rights to Property Act gives Sarjubai devolved on her.
The question is of what does that interest consist. Even
if it devolves on her by inheritance the interest is, according to the Act_, 'the same interest as the husband had', and
·'the same right of claiming a partition as a male owner.'
Whether this right devolved on Sarjubai by way of inheritance, or by succession, or whether because of the Act, a~
(l) A.I.R. [1952] Nag. 43.
(2)" I.LR. [1944] Nag. 832.
36
SUPREME COURT REPORTS
{ 1965] I S.C.R.
a statutory right, would make no difference.
The right A
is the same as that of a male·owner and the interest is the
~.ame as her husband had. For these li1Ilited purposes she
merely steps into his shoes and can be regarded as a c0ntinuation of himself."
In the next case relied upon, Siveshwar Prasad v. Lala Har
Narain ( ') a Division Bench has held that the interest which is
B
acquired by a widow under the Hinqu Women's Rights to Property
Act, 1937 is not as a survivor but as an heir of her husband. The
interest, therefore, is an asset of her husband in her hands and
can be proceeded against by a creditor even though it may be an
unruvided interest in a joint family property.
It is rufficult to c
appreciate how this decision is of assistance to the appellant.
No <lou bt, the husbaud's interest does not devolve on the widow
by survivorship but it docs not follow from that that the husband's
interest gets crystallised at the moment of his death and that it is
to thb interest that the widow succeeds. On the other hand the
view of the learned Judges that the husband's interest is liable to
D
he u•t~ched at the instance of the husband's creditors despite it~
dcvolu1ion on the widow seems to accord with the view that the
widow takes the husband's interest as the surviving half of the
husband. A passing reference was also made by learned counsel
to Rojendrabati v. Munga/al(').
The question for consideration
in that case was the same as in Jadaobai's case( 1 ) and the High
E
Court relying upon its earlier decision held that the provisions
of s. 214 of the Indian Succession Act, 1925 were attracted, the
suit b~ing one for the recovery of her share of the money due to
the joint family of which her deceased husband was a member.
In the course of the argument reliance was placed on a decision
of the Madras High Cou:t in which it was held that under s. 3 of
F
the Hindu Women's Rights to Property Act a widow of a deceased
COJJace~ner in a joint Hindu family becomes entitled to a right not
us an heir but by statute and that she stands in the shoes of her
decea<c<l husband and continues to he a member of the join! family.
Thi> "-'"l;ument was rejected by the leamccl Judges who observed :
"With the greatest respect I cannot accept this proG
· position specially in view of the principles which have
been so definitclv laid down in two Bench decisions of this
Court referred io above.
The lady may be regarded as
a member of the joint family but as has been pointed out
by this Court the interest which devolves upon her after
H
the death of the last male holder, must be regarded as an
( ·) I.! .R. (1944) 23 Pat. 76ll.
(2) I.l.R. (19S2) lt Pat. 477.
(3) I.LR. 1!944] Nag. 832.
·
LAKSHMI v. KR\SHNAVENAMMA (Mudholkar /.)
37
A
interest descending to her as an heir, and as soon as it is ·
held that she acquires her interest as an heir section 214
1
of the Succession Act would come into play and no decree
can be passed in her favour unless she produces a succession certificate."
B As we have already pointed out the interest devolving upon the
widow need not necessarily be either by survivorship or by inheritance but could also be in a third .way i.e., by statute and where the
interest is taken by her under a statute no further diffil)ulty arises.
We are, therefore, clearly of the view that the High Court was
right in allotting to the respondent half share in the family property
C at its partition. Accordingly .we affirm its decree and dismiss the
appeal with costs.
Appeal dismissed.