JUDGMENT
1. The legal representatives of the defendant are the appellants in the above second appeal.
2. The first respondent herein filed O.S. No. 311 of 1981 on the file of the District Munsif’s Court, Pudukkottai for partition and separate possession. The averments in the plaint are as follows :– The plaintiff is the daughter of deceased Lakshaman Angurar. Her grandfather Valathan died long ago leaving his two sons namely Ramasami Angurar and Lakhshmana Angurar. The defendant is the son of Ramasami Angurar. After the death of Valathan Angurar his properties were inherited by Ramasami Angurar and Lakshmana Angurar and were enjoyed by them jointly. Ramasami Angurar predeceased Lakshmana Angurar. Lakshmana Angurar left behind his wife Kasi Ammal who became entitled to the properties representing the undivided share of Lakshmana Angurar. Kasi Ammal died in or about 1969 leaving the plaintiff only. After the death of Lakshmana Angurar, the defendant and Kasim Ammal enjoyed the properties jointly. It is further contended that after the death of Kasi Ammal, the defendant had been giving the share of income to the plaintiff till about 1975. The plaintiff is in joint possession of the suit properties with the defendant for all purposes. In or about 1975 the plaintiff’s husband deserted her and she is living in the house of Lakshmana Angurar. Taking advantage of the helpless position of the plaintiff, the defendant schemed to convert her mother’s sridhana properties about 7 Ma’s of land in the hands of the plaintiff. Since the plaintiff refused to part away with the properties, the defendant stopped giving her share of income. Inspite of several Pan-chayats, the defendants did not comply with the demand of partition of the ancestral properties of the defendant’s father and the plaintiff’s father. It is further contended that after the death of Lakshmana Angurar, his wife Kasi Ammal became entitled to the share by virtue of Hindu Women’s Right to Property Act. After the death of Kasi Ammal in the year 1959, the plaintiff is entitled to half share in the suit properties. With these averments the plaintiff prayed for a decree for partition and separate possession.
3. The defendant filed a written statement in the following manner:– The defendant admits the relationship between Ramasami Angurar and Lakhshmana Angurar. After the death of Valathan Angurar, the suit properties and some other properties were inherited by his two sons. Lakshmana Angurar went to Ceylon and returned to the village after the death of Ramasami Angurar and was managing the properties. This defendant and two other brothers were minors when Lakshmana Angurar engaging himself in evil ways and he contracted heavy debts. Therefore, at the instance of close relatives, the family properties were divided and Lakshmana Angurar put this defendant and his brothers in possession of their shares. Five years after the partition, Lakshmana Angurar died and the plaintiff was just then born. In the the year 1929, the plaintiff’s mother could not manage the properties or the debts. Then at her request and at the instance of the villagers it was agreed that Kasi Ammal should be given some properties to be enjoyed by her till her life time and later given to the plaintiff and it was further agreed that the defendant and his brother Govinda-samy should pay off all the family debts created by deceased Lakshmana Angurar. Accordingly, the arrangement was put into writing and signed by both the parties and it was duly registered. Accordingly, Kari
Animal enjoyed those properties and after her demise the properties has been inherited and enjoyed by the plaintiff. The defendant further contended that there was no pan-chayat as alleged by the plaintiff. The suit is bad for non-joinder of parties, as this defendant’s brother’s wife is alive and she should have been added as a party. Subsequent to the death of Lakshmana Angurar there was a partition between this” defendant and his brother Govindasamy. He further contended that they have cleared the entire family debts referred above after the death of Govindasamy, his widow had executed a release deed after getting proper consideration whereby she has relinquished her rights in her husband’s properties in favour of this defendant. Therefore, this defendant is the full owner. With these averments, the defendant prayed for dismissal of the suit,
4. The plaintiff herself was examined as P.W. 1 and copy of the notice issued by her Advocate to the defendant is marked as Ex. A. 1 and postal acknowledgement as Ex. A. 2. On the other hand, the defendant was examined as D. W. 1 and has marked registration copy of maintenance deed executed to Kasi Ammal by Rengasami Angurar and Govindasami Anguar dated 9-6-1929 as Ex. B1 and registration sale deed executed in favour of Rengasami Angurar by Nachar-ammal dated 22-2-1978 as Ex. B. 2. The Patta pass Book issued to Rengasami Angurar (defendant) is marked as Ex. B. 3.
5. On the basis of the oral evidence of
P.W. 1 and D.W. 1 and in the light of Exs. B1
to B3, the learned District Munsif, Puduk-
kottai came to a conclusion that there was no
partition as spoken to by D. W. 1 and the joint
family properties were enjoyed by the parties
in common. In view of the above finding by
judgment and decree dated 30-1-1982 a pre-
liminary decree for partition was passed in
favour of the plaintiff.
6. Against the judgment and decree of the trial Court, the defendant filed A.S. No. 57 of 1982 before the sub Court, Pudukkottai. The lower appellate Court on the basis of Ex. B. 1, came to a conclusion that Lakshmana Angurar, father of the plaintiff died prior to 1929. Likewise, the lower appellate Judge has held that there was no partition between Lakshmana Angurar and the defendant. Inasmuch as there is no acceptable evidence to accept the case that there was an earlier partition, while confirming the judgment and decree of the trial Court, the learned Subordinate Judge dismissed the appeal.
7. The unsuccessful defendant preferred the present second Appeal before this Court. Pending appeal, the appellant/defendant died, hence the legal representatives were brought on record as appellant 2 to 5.
8. Mr. K. Chandramouli, the learned
senior counsel for the appellants, contended that the defendant’s father predeceased Lakshmana Angurar and the suit properties were managed by the plaintiff’s father. Since the plaintiff’s father was involved evil ways and incurred heavy debts, the family properties were divided at the instance of the Pan-chayatdars and the plaintiffs father was given a separate share. It is further contended that after the death of Lakshmana Angurar, the plaintiffs mother Kasi Ammal could not manage the properties and discharge the debts. The Plaintiff’s mother was given some properties in lieu of her maintenance till her life time and the properties should be devolved upon the defendant after her life-time. In other words, the learned senior counsel contended that Lakshmana Angurar died prior to 1929 and as per Hindu Law prevailing then, the undivided interest of the co-parce-nery Lakshmana Angurar in the co-parcenery devolved on the defendant who is the only surviving co-parcener of the co-parcenery by survivorship. It is also the contention of the learned senior counsel that the share of Lakshmana Angurar did not devolve on his widow to Kasi Ammal and Kasi Ammal was haying only a right of maintenance. With these contentions he prayed for interference in the Second Appeal.
9. On the other hand, Mr. K. A. Ravindran, the learned counsel for the respondents contended that the plaintiffs grandfather died long back and her mother was in joint possession of the suit properties and she died in the year 1969. Hence, according to
him, the plaintiff is entitled to the suit properties as per the provisions of Hindu Succession Act, 1956.
10. The pertinent question to be decided is whether the plaintiff is entitled to any share in the suit properties.
11. It is the evidence of P.W. 1 that her father died some 60 years ago, that is, in or around 1922 and her mother Kasi Ammal also died in the year 1969. The plaintiff and her mother Kasi Ammal became entitled to the share of Lakshmana Angurar by virtue of Hindu Women’s Right to Property Act. Admittedly, Lakshmana Angurar had no male issue, except the plaintiff through his wife Kasi Ammal. According to the defendant as D.W.1, the partition took place some 65 years ago. This was categorically denied by the plaintiff as P.W.1. In the written statement the defendant even though pleaded that there was a prior partition, there is no specific averments and no details have been furnished. With regard to the contention that Lakshmana Angurar had incurred debts, while he was managing the entire family properties, I do not find any evidence. The defendant has not filed any document to show that Lakshmana Angurar had incurred debts and the same was discharged by the defendant.
12. It is useful to refer the relevant passage in Ex. B. 1 as pointed out by the lower appellate Judge, which reads as follows :
(Vernacular matter is omitted)
A reading of the above passage from Ex. B1 discloses that both the plaintiff’s mother and the defendant were lived together and plaintiffs mother would have given some properties on account of family quarrel. Ex. B. 1 also discloses that there was no partition prior to 1929. Both the Courts below categorically held that the defendant has not established his case that the properties belonged to Lakshmana Angurar were enjoyed by his wife and daughter and sold the same under Ex. B. 2.
13. The learned senior counsel for the appellants also contended that the Hindu Women’s Right to Property Act will apply only to agricultural property of a Hindu died intestate after 26-11-1946. It is needless to mention that Hindu Women’s Right to Property Act, 1937 had conferred some rights on a widow, in case if a co-parcener died intestate. The Hindu Women’s Right to Property Act came in the year 1947 (applicable to agricultural lands also). Regarding the absence of specific plea, after referring the decisions in Chitturi Subbanna V. Kudara Subbanna, , V. B. Kalingarayar v. Rajam, and Chellammal v. Valli-ammal, , the learned senior counsel contended that since it is a pure question of law, it can be raised even at this stage. It is true that the above referred decisions clearly show that if it is a question of law, which required no evidence can be raised even in the Second Appeal. It is pertinent to note that the defendant has not based his defence on the ground that Lakshmana Angurar died prior to 1929 and the properties were developed by Survivorship on him. His case is that there was a partition between him and Lakshmana Angurar put up him in possession of the share of his father. The another plea was that plaintiffs mother was given some properties in lieu of maintenance under Ex. B.1, dated 9-6-1929. Admittedly, Kasi Ammal, that is, mother of the plaintiff, died only in the year 1969. In this context, it is relevant to note that the Hindu Succession Act came in the year 1956. As per Section 14, if a woman was given any property in lieu of maintenance and her right had become absolute, she became an absolute owner. The preexisting right of a widow prior to 1936 has become enlarged into one of absolute estate under Section 14 of the Act. It has been held so in Mangal Singh v. Rattno, (AIR 1967 SC 1786) and Sellammal v. Nellammal, . In this case admittedly, the plaintiffs mother was given some properties for maintenance under Ex. B. 1 even in the year 1929. In view of the Hindu Women’s Right to Property Acts 1937 and 1946, her right has become absolute in view of the Hindu Succession Act, 1956. The plaintiffs mother died only in the year 1969. Where property was acquired by a Hindu woman in
lieu of her right to maintenance it was by virtue of a pre-existing right and such acquisition was not within the scope and ambit of sub Section (2) even if the instrument allotting the property prescribed a restricted estate in it. Where property was acquired by a Hindu Woman under an instrument by virtue of a pre-existing right to maintenance and, under the law as it stood prior to the enactment of the Act, she would have had no more than a limited interest in the property, a provision in the instrument giving her limited interest in the property was merely by way of recognition of the legal position as it existed and the restriction on her interest, being a disability imposed by law, was wiped out and her limited interest enlarged under sub-section (1) The above principle has been enunciated by the Supreme Court in the leading case v. Tulasamma v. Sesha Reddy (dead) by L.Rs. . The same legal position was reiterated by the Supreme Court in many cases ending with a latest judgment in Mangal Mal (dead.) v. Smt. Punni Devi (dead) (1996-1 Mad LW 135).
14. In view of the legal position enunciated by our High Court as well as the Apex Court, a persual of Ex. B 1 shows that the, plaintiff’s mother was given some properties in lieu of maintenance. Where provision is made in this manner, by giving a life interest in property for the purposes of residence, that provision is made in lieu of a pre-existing right to maintenance and the Hindu lady acquired far more than the vestige of title which is deemed sufficient to attract Section 14(1).
15. Considering the factual position as discussed by both the Courts below and in the light of legal position referred above, I am unable to accept any of the arguments of the learned senior counsel for the appellants, consequently the concurrent findings of the Courts below are confirmed, the Second Appeal fails and is dismissed. No order as to costs.
16. Appeal dismissed.