Entitlement of widow for share in the property.

The appellant is the plaintiff in a suit for partition and separate possession in respect of the properties of his grandfather one Subramania Iyer. Subramania Iyer had two sons, the first defendant and Narayana Iyer, father of the plaintiff. Subramania Iyer died in 1945 leaving his widow the 2nd defendant. The plaintiff’s claim is in respect of the properties left by Subramania Iyer which consists of properties which were allotted to the share of Subramania Iyer in a partition between Subramania Iyer, Kalyanarama Iyer and Narayana Iyer entered into under Exhibit B-1, dated 4th February, 1935. The second defendant is the widow of Subramania Iyer and the lower Court conceded to her a share under the Hindu Women’s Rights to Property Act. The present appeal is confined to the finding as to the widow being entitled to a share in the partition under the Hindu Women’s Rights to Property Act and as to the rejection of the plaintiff’s claim to items 29 and 30 of the A schedule to the plaint. The preliminary decree was passed on 17th September, 1948. The second defendant died on 28th November, 1948. The question as to her being entitled to a right to a share need not really be decided in appeal. But it is pointed out by Mr. Sundara Iyer appearing for the appellant that even though by reason of her death no share need be set apart for her and the property may be divided as between the surviving parties, in any event as a question of mesne profits arises, it should be necessary to consider whether she would be entitled to any share after the lifetime of her husband until her death on 28th November, 1948.

The properties in respect of which the 2nd defendant was allotted a share comprised of properties allotted to her husband Subramania Iyer at the family partition evidenced by Exhibit B-1. That was a partition between the father and his two sons and each had separate possession of their respective shares. But in respect of one of the items, i.e., item 29 which is one of the properties referred to in schedule D to the partition deed it was provided that the exact half of the properties in D schedule had been separately allotted to Subramania Iyer and similarly the remaining half of the properties mentioned in the said D schedule are allotted separately to the first defendant. Paragraph 11 of that document proceeds as follows:- "It has been settled and agreed that even though executants Nos. 1 and 2 have equal rights in respect of the madam kudiyiruppu (item 29) mentioned in the D schedule, as described in paragraph 6, supra, executant No. 1 and his wife Lakshmiammal, the mother of executants Nos. 2 and 3 shall have full authority and liberty to reside therein, that subsequent to the death of the aforesaid two persons the said madam kudiyiruppu shall devolve upon executant No. 2 exclusively and that -executant No. 3 shall have no right in respect of the same."

This item of property continued to be in the possession of Subramania Iyer and the first defendant and during the period it was in their possession improvements were made by putting up a building which is described as item 30 in schedule A to the plaint. The contention of the learned counsel for the appellant is that this item 29 is also the property of Subramania Iyer in which the plaintiff would be entitled to a share and that in any event item 30, being a building put up by Subramania Iyer on the house site in item 29, whatever rights the first defendant may have to item 29 by virtue of the recitals in clause (11) of Exhibit B-1, item 30, should be treated as a property in which the plaintiff would be entitled to a share.

As regards the first of these contentions, viz., the widow’s right to a share, reliance is placed on the decision of the Federal Court reported in Umayal Achi v. Lakshmi Achi1 and it is urged that property obtained by a coparcener at a partition would not be "separate property" as contemplated in section 3(1) of the Hindu Women’s Rights to Property Act of 19