P (PLP)

THADANI, J.‑

This is an appeal from the decision of the learned First Class Subordinate Judge of Larkana in Suit No. 16 of 1942 in which he passed a preliminary decree for partition and separate possession, of the property in suit and appointed a Commissioner for partitioning the property other than' the agricultural property and ascertaining the outstanding of the shop and mesne profits. The agricultural property was ordered to be partitioned by the Collector of Larkana. The suit was instituted by the widow and two daughters of one Topandas against one Pessumal son of Parumal, Shrimati Gangabai widow of Pessumal. Shrimati Lakhambai widow of Parumal, and Ramchatid and Murli, two sons of Pessumal for partition and separate possession. The relationship of the parties is shown in the following geneological table: PARUMAL LAKHAMBAI (defendant No. 2) | ______________________________|______________________________ | | | Pessumal=Gaugabai Chanumal‑at‑died Topandas died in defendant No. 1 in 1941 1937 December= | Parmeshwaribai | (plaintiff No. 1) | | | | | | |____________________________________ | | | | Ramchand defendant No. 3 Murli defendant | No: 4 | ____________________________________________________________| | | | Tirathmai died Shushila plaintiff Bhagwani plaintiff in 1941. No.

2. No.

3. The respondents case was that they and the appellants were members of a Hindu joist family and together owned joint family property shown in Schs A, B and C ; Topandas. the husband of respondent No.

1. Parmeshwaribai, died intestate on 15th December, 1937 at the‑date of the suit. Tirathmal the son of respondent No. 1 was dead she, therefore as the widow of her husband Topandas had the same interest in the joint family property in suit as her husband by reason of the provisions of the Hindu Women's Rights to Property Act (XVIII of 1937), and that upon partition she was entitled to share equal to the share of Pessumal. Pessumal died during the pendency of the suit and his widow Gargabai and Pessumal's two sons Ramchand and Murli were brought on 1st record as defendants Nos. 1A 3 and 4 respectively defendants Nos. 3 and 4 being minors were represented by the Nazir of the First Class Civil Court of Larkana‑‑as their guardian‑adlitem, Respondent No. 1 alleged that as the appellants had quarrelled with her and her two daughters and were threatening to dispossess them of the joint family property, she was obliged to bring the present suit. The appellant's case was that they and the respondents were not members of a Hindu joint family ; no property was left by Parumal the shop .goods and out standings mentioned in Sch. C did not belong to the joint family the business and its out standings were the exclusive property of Pessumal ; the shop goods and out standings were excessively valued by the respondents; their actual value was considerably less Fessumal denied the allegation of the respondent Parmeshwaribai that he had any ornaments belonging to Parmeshwaribai with him ;there were no ornaments at all belonging to the joint family. Pessurnal denied that there was any property belonging to the joint family ; he alleged that tie and his deceased brother Chainomal were the owners of the properties mentioned in Schs. A and B by purchase ; Topandas during his lifetime .did riot lead a good life and lost a great deal of money in business, and in order, to improve his social status he and Chainomal mentioned his name also as a purchaser in the sale‑deed. As regards house No. 5 mentioned in Sch. A, Pessumal contended that it was purchased after the death of Topandas, and that Topanda's widow and his daughters had no interest in it. He further alleged that one Mr. Holaram, an advocate, was appointed an arbitrator to settle the family disputes and he decided that Topanda's widow should have no share in the family property: but should receive Rs. 15 p. m. for her maintenance this award was .acted upon by Topanda's widow and her daughters and they were therefore debarred from bringing the present suit. The defence of the other appellants was the same as that of Pessumal. Upon the pleadings the trial Court framed the following issues: "

1. Are plaintiffs and defendants members of the joint Hindu family ?

2. What property or properties belong to the joint Hindu family of plaintiffs and defendants ?

3. Is plaintiff entitled to any shares in the property ? If so, what is it ?

4. Was there any settlement between the parties as alleged in para. 3 (12) of the written 'statement? If so, what is the effect ?

5. Is defendant‑No. 2 entitled to any share in the property as alleged in‑written statement ?

6. Are plaintiffs Nos. 2 and 3 entitled to a 'provision being made‑for their marriage and maintenance ?

7. Is the suit for partition legally incompetent ?

8. Is the suit not maintainable in the present form ?

9. What order be made about mesne profits ?

10. What should the decree be ? " Mr. Manghammal for the appellants has not addressed us on the first issue. He frankly stated that be would be unable to convince us that the finding of the trial Court on this issue was erroneous. On the 2nd issue he confined his argument is for exclud ing section No. 99 and certain agricultural property mentioned in Schedule B from the joint family estate. On issue 3 his conten tion was that Topandas widow was not entitled to half share as decreed in her favour but to a third only. On the remaining issues, Mr. Manghanmal accepted the findings of the Court. The trial Court came to the conclusion that the parties were members of a Hindu joint family. It relied upon the admission of Pessumal contained in para, 3 (2) of his written statement and which the other defendants to the suit had adopted. One Heman mal, a partner of the deceased Pessurnal in Gur business had stated in his evidence that he had seen Topandas working on Pessumal's shop for 10‑15 years he had also seen Chainomal working on Pessumal's shop. Hemanmal produced accounts kept by Pessurnal which showed that Pessurnal used to pay Rs. 15 p.m. to Topandas's widow after Topandas's death. the learned judge thought it was unlikely that, if Topandas and Pessurnal were not members of a Hindu joint family. Pessurnal would have agreed to pay Rs. 15 to Topandas's widow. The learned judge also has found that this sum of Rs. 15 was paid to the widow every month out of the earnings of the shop, and came to the conclusion that the shop business was carried on by the three brothers Pessumal, Chainomal, and Topandas as a joint family business. The terms of the award as alleged by Pessumal trod ii support the allegation of the respondents that Topandas and his two brothers were members of a Hindu joint family and owned property as joint family property. At the trial the appellant's, advocate, Mr. Manghraj had contended that Topandas's widow and his two daughters had relinquished their rights in the joint family property after Holaram had awarded to Topandas's widow Rs.15 a month as her maintenance. As Holaram was dead, his clerk one Chattomal was examined as a witness by the appellants. From the evidence of this witness it is clear that Topandas's widow claimed a share in the property of her husband, but she was told by Holaram that her son Tirathmal, since deceased, who was then a minor, could claim the property upon attaining majority, and that in the interval she should be content to receive .a maintenance allowance of Rs. 15 a month. The learned judge rightly points out that as Pessurnal was then a client of Mr. Holaram he would not be justified in accepting the clerk's evidence in it entirely to the effect that there was a settlement by which Topandas's widow agreed to accept Rs. 15 a month as maintenance in lieu of her share in the property, but it is of considerable significance to the respondent's case that Chattomal should have admitted that Topandas's widow claimed partition of property before Mr. Holaram. The learned judge then found that the accounts produced by the appellants, Exhibits 127 and 128, were accounts of the family business, and while it may be that Topandas's widow was messing separately from Pessumal the evidence as a whole showed that the family was joint in estate. There was evidence before the learned judge which he accepted. and we see no reason to take a different view, that the three brothers Pessumal, Chainomal and Topandas jointly conducted the shop business and purchased the properties in suit out of the earnings of the shop business. judicial opinion undoubtedly favours the view that here property is acquired by members of a Hindu joint family by their exertion in a joint business, and do not treat the property sc acquired as their partnership property, it would be regarded as joint family property, see Manglomal Sugnomal v. Padibai A. I. R, 1936 Sind

217. Upon this' material, we think the trial Court was right in holding that one parties to the suit were members of a Hindu joint family and that the property in suit was owned by them as joint family property. The next point for our consideration is to what share is the widow of Topandas entitled upon partition of 'the property in suit. It is common ground that Topandas was a Hindu governed by the Mitakshara School of Hindu Law. It is not disputed that the suit .was instituted under the provisions of the Hindu Women's Rights to Property Act (XVIII of 1937), read with Sind Act‑IX of 1943. Subsection (2) of section 3 of Act XVIII of 1937 says:

When a Hindu governed by, any school of Hindu Law other than the Dayabbag school or by Customary Law dies having at the time of his death an interest in a Hindu joint family property his widow shall, subject to the provisions of subsection (3), have in the property the same interest as he 'himself had". Subsection (3) of section 3 of the same Act says: "Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu ,women's estate, provided, however, that she shall have the same right of claiming partition as male owner." On the death of Topandas his widow came to have in. the joint family property the same interest as Topandas himself had. The interest of Topandas was undoubtedly a coparcenary interest. Topandas's widow under the Hindu law could not become a coparcener in the joint family, but under the Hindu Women's Rights to Property Act she came to have the same interest in the `property as her husband had without being a coparcener. Topandas's interest was by the very nature of a coparcenary interest a fluctuating, interest liable to be increased by death or birth of a caparcener in. the family. So long as the widow of Topandas was content to have the same interest in the joint family property as tier husband had and did not claim a partition, her interest was jus as liable to be increased or decreased as the interest of her husband had he been alive. Chainomal, a brother of Topandi s and Pessumal, died in 1941, but before the institution of the present suit. Now while it is true that when Topandas died 11 1937 and his widow came to have in the property the same interest as Topandas bad without being a coparcener along with Pessumal and Chainomal, she would have been entitled upon partition to one‑third share in the joint family property, if no death or birth had occurred, it is not correct to say that riot withstanding the death of Chainomal the interest of Topandas's widow remained the same and that she would be entitled upon partition to a one‑third share only in the joint family property. Upon this interpretation of section 3 of Act (XVIII of 1937) we think the learned Judge was right in coming to the conclusion that topandas widow was entitled to one‑half share in the joint family property upon partition. In M. C. Chinniah Chettiar v. Sivagami Achi A. I. R. 1945 Mad. 21 a Division Bench of the Madras High Court had occasion to interpret subsection (2) of section 3, Hindu, Women's Rights to property Act, 1937. In the course of the judgment it referred to the decision of the Privy' Council in Appovier v. Ramasubba Aiyar 11 M I A 75 ; in which their Lordships had observed. "D ring his lifetime the interest of the plaintiffs husband was an uncertain one. His father might have had a son born to him. He could, of course, have fixed his share by insisting on' partition, but this he did not do, The section does not give the plaintiff any greater rights than those possessed by her husband, and when she sought partition the joint family had booked increased. by the adoption of a ' son by the head of it. The question is fully discussed by the learned author .of the tenth edition of Mayne at pp. 721 and 722, and with are in full agreement with the observation made there that a Widow cannot be deemed to be in a better position than her husband if he had lived." In the case before us the position is reversed. In the Madras case there was an increase in the members of the undivided family by the adoption of a son. In this case there was a decrease by the death of Criminal It was at first contended by Mr. Muhammad on behalf of the appellants that while the interest of a widow as representing the interest of her dead husband in the joint family is liable to be diminished by an increase in the members of the undivided family, it is not liable to be augmented by the death of‑ a member. But Mr Manghanmal abandoned the contention on a closer reading of the Madras case, upon which he had relied. We think that a Hindu widow's interest in her husband's co‑parcenary estate is liable to be increased or decreased by the death or birth of a co‑parcener in the joint family in the same way as if her husband had been alive. We will now deal with Mr. Manghanmal's attempt w exclude certain items of property from partition. We have carefully examined the evidence relating to owner ship of S. No. 99 and have come to the conclusion that there is no reason for its exclusion from the joint family estate. It was argued that as Chainomal and Pessumal only are entered as owners in the record of rights, Topandas had no interest in the property. But as S. No. 99 was 'purchased in 1841 after the death of Topandas, absence of Topandas's name in the record of rights against this property would not assist the appellants. The learned judge rightly points out that there is overwhelming evidence that the three brothers Pessumal, Chainomal and Topandas carried on a joint family business and no evidence was led to show that any of the brothers had a separate income of his own. The learned judge referred to Exhibit 149, plaint instituted in the Small Cause Court in Suit No. 576 of 1942, on the file of his Court in which Rainchand and Murli the two sons of Pessumal, had claimed a certain sum from one Sardarimal and had produced as evidence an account which showed that it had continued up to 15th September 1942 only a month before the present suit was instituted. In Suit No. 576 of 1942 Murli and Ramchand had joined the widow of Topandas as la co‑defendant. We think the respondents are justified in contending that as recently as 15th September 1942 the sons of Pessumal regarded the business carried on by them as a joint family business in which the widow of Topandas represented her husband's interest. We think there was credible evidence on the record before the learned judge for coming to the conclusion that S. No. 99 was pur chased out of the joint family income and that it was therefore a part of the joint family estate. As regards the agricultural property shown in Schedule B: No. 13/1 in Deb Kanga in Taluka Larkana, it was pur chased by Pessumal, in May 1936. when Topandas was alive. There is no evidence that it was purchased by Pessumal out of his separate income and .as there was a nucleus in the shape of a business which provided income to the joint family, it is reason able to suppose that S. 13/1 was purchased out of the joint family income and was therefore a part of the joint family estate. It is true that S. No. 13/1 stands in the name of Pessumal, but we are not prepared on the facts of this case to hold that it belonged exclusively to Pessumal. We agree with the learned judge that it was bought out of the joint family income. In Rajanagam Ayyar v. Rajanagam Ayyar A I R 1922 P C 266 their Lordships of the Privy Council have observed: "The learned judges of the High Court were, however, perfectly right in the view that the onus was on the defendant to establish that the properties be claimed as the self‑acquired properties of his father, Krishna Ayyar, bore that character." The result is that the appeal is dismissed with costs. K. M. A. Appeal dismissed.