TMI Blog1944 (2) TMI 19X X X X Extracts X X X X X X X X Extracts X X X X ..... nexed to the plaint. As Ramachandra Rao died undivided from his sons, the plaintiffs right to a share could only be based on the 'Hindu Women's Rights to Property Act, 1937, and though the claim was originally made in respect of all the properties it Was conceded that she was not entitled to a share in the agricultural lands forming part of the estate, as it has since been held by the Federal Court that the Act does not operate to regulate succession to agricultural land in the Governor's Provinces but operates only in respect of other kinds of property: see In Re Hindu Women's Rights to Property Act. In the absence of parallel legislation by the Legislature of this province in regard to agricultural land this decision has given rise to new problems in apportioning or allocating, among the full and partial cosharers, the common obligations to be borne by the estate as a whole, such as claims of creditors, maintenance holders, and unmarried daughters, and some of those problems arise for consideration in the present case. The first contention raised by Mr. Raghava Rao for the plaintiff relates to a mango-grove (item 36, Schedule A) forming part of the estate. The Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iz., grove land. It was a pronouncement on appeal from the decision in Kesho Prasad v. Sheo Pargash AIR 1922 All 301 , where, following a line of cases decided by that Court, it was held that land granted by a zamindar for the purpose of planting a grove the grantee agreeing to deliver one-half of the fruit to the zamindar was not land held for agricultural purposes within the meaning of the Agra Tenancy Act. It would however appear that the earlier decisions in that province were based on the peculiar status of grove-holders pure and simple who had no rights in the land after the trees were cut. Their Lordships simply expressed their agreement with the opinion of the High Court that it is impossible to hold that that section (S. 79) has any application whatever to such a property as the grove in fact is. There is no discussion as to the connotation of the term agriculture, and no test of any general application is indicated. We cannot therefore regard the decision as a conclusive authority on the question we have to decide in this case. As we have already pointed out, the term agriculture is used in different senses and in order to ascertain in what sense it is used in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the plaintiff's claim to a share in item 318 of Schedule B-l also succeeded.) (And as regards the jewels and gold and silver articles comprised in Schedules B and B-l, his Lordship held that the plaintiff was not entitled to any share in the jewels claimed by defendants 6 and 3 respectively in para. 17 (a) and (b) of their written statement.) These paragraphs, however, include not merely items of jewels, but also other items which are gold and silver vessels. It seems to us that the plaintiff's claim to a share in these articles stands on a different footing. While it may well be presumed that the jewels found in the possession of a family belong to one or other of the ladies of the family as stridhanam property in the absence of any clear evidence that they are family jewels, no such presumption can safely be made in respect of the gold and silver vessels and articles in the possession of the family. As regards these moveables we consider that they must be treated as belonging to the family unless there is clear evidence that they belong to one or other of the ladies of the family and the plaintiff must be allowed a share in these items. The evidence will have to be examin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not the position according to the decision of the Federal Court already referred to.. The widow still stands excluded from succession to agricultural land in the absence of provincial legislation on parallel lines in respect of such land. It cannot, therefore, be said that the reason of the right has ceased to exist and the right is gone. It would be strange and anomalous if, as a result of an enactment designed to give better rights to the widow, she were to be placed in a worse position by being deprived of her pre-existing right of maintenance, with consequences which may well prove disastrous where the bulk of her husband's joint or separate property consists of agricultural land. We are therefore of opinion that the plaintiff is entitled to maintenance notwithstanding her right under the Act to a share in the non-agricultural part of the family estate. This share will, of course, be taken into account in determining the sum payable to her. A similar conclusion, it may be observed, was reached by King J. in Venkata v. Krishniah A.I.R. 1943 Mad. 417. The main contentions raised in the defendant's appeal were in regard to the provision to be made for certain common char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ble among the cosharers is only the residue after setting apart what is necessary to meet these liabilities. The fact that the widow is given only a limited right under the Act in the net divisible fund can have no relevance in the apportionment of the liabilities among those who share it. We accordingly direct that provision should be made for the maintenance and marriage expenses claimed before the plaintiff is given a decree for her share in the assets divisible in this suit. As regards defendant 3's claim for the value of her mother's jewels alleged to have been given to the plaintiff by Ramachandra Rao, we consider that she should seek her remedy in a separate suit as it raises various questions which cannot be conveniently gone into in this suit. 5. A minor point was raised as regards the date from which the plaintiff was to be awarded mesne profits in respect of the third share of the immovable properties other than agricultural lands allowed to her. The lower Court held that she was entitled to such profits from the date of the death of Ramchandra Rao. This is clearly wrong as the plaintiff admits in her plaint that she was in joint possession of the properties t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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