1974 (1) TMI 117 - HC - Indian Laws

Summary

Issues Involved:
1. Insolvency and sale of undivided share.
2. Right of wife to demand partition.
3. Obsolescence of wife's right to share in Southern India.
4. Interpretation of Hindu Law texts on female inheritance rights.
5. Judicial precedents on female partition rights.
6. Applicability of precedents and customs in contemporary judgments.

Detailed Analysis:

1. Insolvency and Sale of Undivided Share:
Adusumalli Punniah was declared insolvent in I.P. No. 36 of 1933 by the Sub-Court, Machilipatnam on 28-9-1934. The Official Receiver sold his undivided one-third share, which was later purchased by two individuals who filed suits O.S. Nos. 38 and 39 of 1956 for partition and possession of the insolvent's share.

2. Right of Wife to Demand Partition:
The petitioner, wife of the insolvent, filed I.A. Nos. 457 and 458 of 1971 in O.S. Nos. 38 and 39 of 1956 to reopen the preliminary decree and seek her share. The petitions were resisted on the ground that the wife's right to a share on partition between her husband and son has long since become obsolete according to Hindu Law prevalent in South India.

3. Obsolescence of Wife's Right to Share in Southern India:
The learned Subordinate Judge, Gudivada, held that the petitioner was not entitled to a share according to the Hindu Law prevalent in South India. This view was based on the long-standing practice where the wife's right to a share on partition had become obsolete. The petitions to implead the petitioner as a party were dismissed.

4. Interpretation of Hindu Law Texts on Female Inheritance Rights:
The court analyzed various Hindu Law texts, including Mitakshara, Smruti Chandrika, and Saraswati Vilas. It was noted that:
- The mother or wife is not a coparcener and has no right to demand a partition.
- Partition can occur at the father's or husband's desire, not at the mother's or wife's desire.
- If the father or husband makes the shares equal, the mother or wife would partake equally, provided she has not been given property by her husband or father-in-law.
- The portion allotted to the mother or wife is for her maintenance and religious rites, not as a share of inheritance.

5. Judicial Precedents on Female Partition Rights:
The court reviewed several precedents from the Madras High Court, which consistently held that the practice of allotting shares to females had become obsolete in Southern India. Key cases referenced include:
- Ramappa Naicken v. Sithammal (1878 ILR 2 Mad 182)
- Venkatammal v. Andyappa (1883 ILR 6 Mad 130)
- Mari v. Chinnammal (1885 ILR 8 Mad 107)
- Subramaniam Chetti v. Arunachalam Chetty (1905 ILR 28 Mad 1)
- Thangavelu v. Court of Wards, Madras
- Audemma v. Varadareddi (1948 1 Mad LJ 30)

6. Applicability of Precedents and Customs in Contemporary Judgments:
The court observed that the practice of allotting shares to females has long since become obsolete in Southern India due to the influence of Smruti Chandrika and Saraswati Vilas. The court rejected the petitioner's arguments, emphasizing that the judicial precedents and customs prevailing in Southern India do not support the wife's claim to a share in partition.

Conclusion:
The petitions to implead the petitioner as a party were dismissed by the Subordinate Judge, Gudivada, and the High Court upheld this decision. The court found no merit in the revision petitions, affirming that the practice of allotting shares to females on partition has become obsolete in Southern India. The revisions were dismissed with costs.