The share of a widow in the joint family property under Section 3 of the Hindu Women's Rights to Property Act, 1937, should be determined as on the date when she claims the partition, and not as on the date of her husband's death.

JUDGMENT :

SATYANARAYANA RAJU, J.:— This is an appeal from the decree and judgment of the Court of the Subordinate Judge, Vijayawada, in O.S. No. 112 of 1950. The suit was instituted by the respondent herein for partition of the properties described in schedules A, B and D to F, appended to the plaint, into two equal shares and for recovery of one such share, for recovery of maintenance, for mesne profits and other incidental reliefs. The following short genealogical table will be helpful in appreciating the relationship of the parties to the suit:

2. Potti Subbarao, a resident of Bezwada, died in the year 1919 leaving him surviving three sons and two daughters. His eldest son, Sitaramaiah, was twice married. By his first wife, he had a son, by name Pullarao. The respondent herein is the second wife of Sitaramayya Sitaramayya executed a registered will on 3rd August 1938. He died about a week later, on 10th August 1938. Lakshmiperumallu is the 2nd son of Subbarao. He is the sole defendant in the suit and is the appellant in this appeal Subbarao's third son, Krishnamurti, died in or about the year 1930.

3. On 6th July 1950 the respondent brought the action. Shortly stated, her case is that her husband and his two brothers, with the aid of the ancestral business nucleus of Potti Subbarao, acquired the plaint schedule properties; that the will executed by her husband is inoperative; and that her step-son Pullarao having died, she is entitled to a half share in the plaint schedule properties by virtue of the provisions of the Hindu Women's Rights to Property Act.

4. The defendant contested the plaintiff's claim on various grounds. His defence is that there was no ancestral nucleus; that he and the plaintiff's husband acquired the properties in suit by their individual efforts and treated them as their self-acquisitions and never as joint family properties; that the will executed by Sitaramayya is valid and binding on the plaintiff; that the properties allotted to the plaintiff under the said will are being enjoyed by her; and that after the death of Pullarao, the step-son of the plaintiff, the properties have devolved on him. His contention is that even if it were to be held that the plaintiff was entitled to a share, she would be entitled only to a one-fourth share in the properties and not a half share.

5. On these contentions, the lower court framed appropriate issues. The question as to whether the properties are joint family properties or the self-acquisitions of the brothers is covered by issue No. 1, which reads:—

“Whether the suit properties are the joint family properties of the plaintiff's husband and the defendant or are they their self acquisitions?”

6. The other pleas of the defendant are covered by issues 2, 3 and 4 which read:—

“2. Whether late Seetaramayya executed a will dated 3-8-1938 and whether the same is valid and binding on the plaintiff?

3. Whether the plaintiff is entitled to any and if so what share in the suit properties?

4. What are the assets, moveables and immoveables liable to be partitioned?”

7. After a consideration of the evidence, oral and documentary, adduced by the parties, the Subordinate judge has found that the plaint schedule properties are the joint family properties of the plaintiff's husband and the defendant and that they are not their self-acquisitions. He has held that the will executed by Sitaramayya is not valid and binding on the plaintiff. He has found from the evidence available in the case, that the will was not acted upon. As a result of these findings, he decreed the suit for partition of the properties mentioned in schedules A, B and D to F into two equal shares and for separate possession of the respondent's half share. He also decreed her claim for annual maintenance at Rs. 120 with a charge on half of the C scheduled properties. He directed the respondent to file a separate petition for appointment of a Commissioner for ascertainment and determination of the properties existing