Rajamannar, C.J.-This appeal against the judgment of Krishnaswami Nayudu, J.,1 in A.S. No. 484 of 1949 arises out of a suit for partition filed by the appellant herein in the Court of the Subordinate Judge of Ottapalam, O.S. No. 55 of 1946. The plaintiff is the son of one Narayana Ayyar. Narayana Ayyar and the first defendant herein, Kalyanarama Ayyar, were the sons of one Subramania Ayyar who died in 1945 leaving behind him his widow, the second defendant in the case, and his two sons. It is common ground that under a deed of partition dated 4th February, 1935, Exhibit B-1, there was a partition between the father Subramania Ayyar and his two sons. Separate properties were allotted to the shares of each of the three coparceners. The first question which arises in this appeal relates to the rights of the second defendant, the widow of Subramania Ayyar, in the non-agricultural properties left by him. She claimed a share relying on the provisions of the Hindu Women’s Rights to Property Act and her claim was accepted by the trial Judge. On appeal by the plaintiff, Krishnaswmi Nayudu, J., confirmed the decision of the trial Judge on this point. Before us Mr. N. Sundaram Ayyar has challenged the view taken by the trial Judge and Krishnaswami Nayudu, J. It is sufficient to deal with the reasoning of Krishnaswami Nayudu, J., for the purpose of this appeal.

The learned Judge held that the second defendant as the widow of Subramania Ayyar was entitled to a share in the property which he got at the partition and which he died possessed of under section 3, sub-section (1) of the Hindu Women’s Rights to Property Act. That sub-section in so far as it is material runs thus-

“When a Hindu governed by the Dayabhaga School of Hindu Law dies intestate leaving any property and when a Hindu governed by any other school of Hindu Law or by customary law dies intestate leaving separate property, his widow, or if there is more then one widow all his widows together, shall subject to the provisions of sub-section (3) be entitled in respect of property in respect of which he dies intestate to the same share as a son.”

Krishnaswami Nayudu, J., held that the property which Subramania Ayyar got for his share at the partition with his sons would be separate property within the meaning of that expression in the above section and therefore the widow would be entitled to the benefit of that provision. Mr. Sundaram Ayyar contended that this view is opposed to the principle of the decision of the Federal Court in Umayal Achi v. Lakshmi Achi2. In that case the last owner of the suit properties, one Arunachalam Chettiar died leaving his two widows and the widow of a predeceased son, who claimed a share basing her right on the first proviso to section 3(1) of the Act which runs thus:-

“Provided that the widow of a predeceased son shall inherit in like manner as a son if there is no son surviving of such predeceased son, and shall inherit in like manner as a son’s son if there is surviving a son or son’s son of such predeceased son.”

When he died, Arunachalam Chettiar was the sole surviving coparcener in the joint family which owned the suit properties. It was held by the learned Judges of the Federal Court that the property held by a person as the last surviving coparcener of a joint family could not be regarded as ‘separate property’ within the meaning of section 3(1) of the Act. Krishnaswami Nayudu, J., thought that the decision in that case must be held to be confined to the case of a sole surviving coparcener and as in the present case the property was obtained by the last male holder as his share at a partition of family property, the decision would have no direct application. He felt himself therefore free to take the view that property obtained by a member of a joint family at a partition would be separate property within the meaning of section 3(1) of the Act. We cannot agree with him. The principle of the Federal Court decision would, in our opinion, equally a

Click Here to Read the rest of this document