Satyanarayana Rao, J.-This is an appeal by the first defendant 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. The first defendant 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, the second defendant. 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 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 the 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.

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 the first defendant 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 II 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 Governors’ Provinces, it must be taken that when Krishnaswami died in June, 1942, his interest in the agricultural land survived to the other coparcener, namely, the first defendant and that thereafter he became the sole and exclusive owner of the agricultural lands. The produce of the lands thereafter belongs exclusively to the first defendant. 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 the first defendant. 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, o