JUDGMENT
Satyanarayana Rao, J.
1. This is an appeal by defendant 1 against the preliminary decree for partition passed by the learned Subordinate Judge in O. S. No. 24 of 1943. It is unnecessary to set out the facts of the case elaborately and it will be sufficient to confine the facts in so far as they are relevant to the disposal of the contentions that have been raised in this appeal. Defendant 1 and one Krishnaswami Naicker were brothers being members of an undivided Hindu joint family. The family owned properties specified in the various schedules attached to the plaint. Krishnaswami Naicker died in June 1942 leaving behind him the plaintiff, his widow and an unmarried daughter, defendant 2. The widow instituted the present suit for partition and separate possession of a half share in the family properties basing her claim on the rights conferred upon her by the Hindu Women’s Rights to Property Act, 1937. It has now been finally decided by the Federal Court that this Act as it then stood does not operate to regulate succession to agricultural land in the Governors’ Provinces and also that it does not operate to regulate devolution by survivorship of such agricultural land. This Act so far as this Presidency is concerned was amended by the Madras Hindu Women’s Rights to Property (Extension to Agricultural land) Act, 1947 (Madras Act, XXVI [26] of 1947). The amending Act does not help the plaintiff in respect of the agricultural lands involved in this suit as the amending Act applies only to the property of a Hindu dying intestate after 26th November 1946. As Krishnaswami Naicker died in June 1942, the rights in the agricultural lands are governed by the ordinary Hindu law and not by the Act of 1937.
2. The learned Subordinate Judge decreed the claim of the plaintiff in respect of the non-agricultural property, but disallowed the claim with regard to the agricultural lands. In this appeal by defendant 1 the main and the most important question that was raised on his behalf by his learned advocate relates to the share decreed in favour of the plaintiff by the learned Subordinate Judge in items 1, 2, 17 and 18 of Schedule 2 to the plaint. These items represent the produce of the land cultivated and harvested after the death of Krishnaswami Naicker. That is the finding of the learned Subordinate Judge and has not been seriously challenged before us. The learned Subordinate Judge decreed a share in these items on the ground that the rights to property should be determined as on the date on which the plaintiff claimed a share by instituting the present suit for partition of the items and not as on the date of the death of her husband. Under the Act, as it would be seen from the language of Section 3 (2) the right is created in favour of the widow of a deceased coparcener in the property governed by the Act, her interest being the same as that of her husband. As it has now been finally settled by the Federal Court that the Act does not apply to agricultural land in the Governor’s Province, it must be taken that when Krishnaswami died in June 1942 his interest in the agricultural land survived to the other coparcener namely defendant 1 and that thereafter he became the sole and exclusive owner of the agricultural lands. The produce of the lands thereafter belongs exclusively to defendant 1, If on the date of the death of her husband the plaintiff had acquired no interest in the agricultural lands by virtue of the provisions of the Act, it is difficult to see how she could claim a share in the produce of the lands which upon the death of her husband became the sole and exclusive property of defendant 1. The right of succession or of survivorship must be determined as on the date of the death of the husband of the plaintiff and not as on the date of the institution of this suit for partition. If no interest in the agricultural lands devolved on the widow i. e., the plaintiff, on the death of Krishnaswami Naicker in the income that subsequently accrued from such property the plaintiff gets no share or interest. The reasoning therefore of the learned Judge on the basis of which he granted the decree for partition of these items of Schedule. 2, to the plaint seems to us to be entirely wrong. Some light is thrown on this question by the decision of the Federal Court in Mt. Prakash Kaur v. Mt. Udham Kaur, 1947-1 M. L. J. 127 : A. I. R. (34) 1947 F. C. 12), though the question was not specifically raised in the form in which it arises for consideration before us. In that case one Harnam Singh obtained possession of certain agricultural lands as a mortgagee. The mortgage contained no covenant to pay. Harnam Singh died leaving behind him surviving a widow and a predeceased son’s widow. The mortgage was redeemed after his death and the widow received the entire amount due under the mortgage. The son’s widow thereafter claimed a half share in the mortgage money and instituted a suit to recover that share from the widow or in the alternative from the legal representatives of the mortgagor. She based her claim on, Section 3, Hindu Women’s Rights to Property Act, 1937. The main question that was considered in that case by the Federal Court was whether the expression “agricultural land” occurring in Entry 21 of List II of Sch. VII, Government of India Act, 1935, included also rights in agricultural land and whether a mortgage of the description which was then in dispute before the Federal Court could be deemed to be agricultural land within the meaning of that list. It was held by the Federal Court that the expression “agricultural land” included also a limited right such as that of a mortgage particularly when there was no covenant to pay and the only means by which the debt could be discharged was by remaining in possession of the lands and to receive the rents and profits until the mortgage money was repaid to the mortgagee. The contention, however, that the money that was collected after the death of Harnam Singh by his widow became property in which the son’s widow acquired an interest under the provisions of Section 3 o the Act was not raised and if the argument that the rights should be determined as on the date of partition was permissible–even if it was not raised–their Lordships of the Federal Court would not have omitted to consider and give effect to it. However, on the plain language of Section 3 of the Act we have no hesitation in holding that the rights should be determined whether claimed by succession or survivorship as on the date of the death of the husband of the plaintiff and not on the date of the partition suit. If as stated above by reason of the death of Krishnaswami Naicker no interest devolved on the widow, the plaintiff, in the agricultural lands, under the ordinary Hindu law which continues to operate the defendant 1 acquired the entire rights in the agricultural lands by survivorship and the income of such lands would also partake the same character. The Act merely modified the right of succession and survivorship of Hindu law to the extent to which it is indicated in the Act. It does not abrogate and repeal the Hindu law relating to succession and survivorship. In this view we think that the learned Subordinate Judge was wrong in allowing a share to the plaintiff in those items. We think therefore that the decree of the learned Subordinate Judge should be modified by excluding those items from partition.
3. The next question for consideration is whether the house, item No. 2 of Schedule 1 is the exclusive property of defendant 1. The learned Subordinate Judge on the evidence before him found that defendant 1 failed to establish that the house which stands in his name and which was purchased in 1939 was acquired by him without the aid of the joint family funds. He was the manager of the family and was receiving rents and profits of the joint family property. The burden is entirely upon him to show by clear and cogent evidence that the property was acquired by his separate funds. Defendant 1 failed to discharge the burden that lies on him and we think that the finding of the learned Subordinate Judge on this question is correct and must be upheld. It was faintly argued that the provision of Rs. 2000 for the marriage expenses of defendant 2 is too high. In view of the fact that at least Rs. 1000 would be required for jewels and another Rs. 1000 for other expenses, on the evidence in the case it is difficult to agree with this contention. We think that the provision made by the learned Subordinate Judge for the marriage expenses of defendant 2 is reasonable and does not call for interference by this Court.
4. There is also another contention relating to the pledge of jewels and it is alleged that the pledge really belongs to defendant 6. Defendant 6 himself has not appealed against the finding of the learned Subordinate Judge and the case of defendant 1 rests entirely upon the real testimony of himself and of defendant 6. For reasons given by the learned Subordinate Judge in para. 26 of the judgment we see no reason to differ from his conclusion on the point. We thick therefore that this contention also must be disallowed.
5. In the result the appeal is allowed to the extent of directing the exclusion of items l, 2,17 and 18 of sch. II to the plaint from partition. The rest of the appeal is dismissed. The parties will pay and receive proportionate costs.
6. The direction regarding payment of Rs. 2000 for the marriage expenses of defendant 2 should, we think, be modified by directing defendant 1 to pay the amount to the mother soon after the marriage of defendant 2 is fixed.