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TMI Blog1944 (6) TMI 14X X X X Extracts X X X X X X X X Extracts X X X X ..... 5th June 1937 after the Hindu Women's Rights to Property Act (18 of 1937) bad come into operation. The plain, tiff, Srimati Rukmini Debi, is his widow. On 25th February 1939 she instituted this suit for partition. The defendants to the suit were Nil Gobinda, the surviving son of Bama Cha-ran and the male descendants in the direct line-sons and grandsons of the other three sons of Bama Charan. The plaint proceeded upon the basis that the plaintiff's husband was at the time of his death a member of a joint Mitakshara family of which the defendants were the other coparceners. In the plaint she stated that the properties described in Schedules Ka and Kha attached to the plaint were the joint ancestral properties of the sons of Bama Charan and those described in Schedule Ga were their joint self-acquired properties. She claimed one-fourth share in all of them on the basis of Section 8 (2), Hindu Women's Rights to Property Act of 1987 (hereinafter called the Act) and prayed for partition by metes and bounds. The learned Subordinate Judge considered the questions raised by the defendants. He overruled them and declared the plaintiff's share in all the properties to be one ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (ii) that the phrase agricultural land means land actually used for the purpose of agriculture or for purposes subservient to agriculture; (iii) that land used for the purpose of raising food crops for the use of men and beasts and for horticultural purposes would be regarded as agri cultural land, but a garden used for the purpose of gathering fruits would not be so regarded. 5. Applying those general conclusions he came to the following findings in respect of the lands held in khas possession by the family, namely (i) that those lands which were cultivated for raising food crops at the time of Radha Gobinda's death were agricultural property notwithstanding the fact that the parties held them in tenure or niskar right and notwithstanding the fact that some of those lands contained minerals underneath, such as lime stone, etc.; (ii) that lands falling under the category of danga (high arable land), patit (waste lands but which can be brought under cultivation) and garlayek patit (waste lands which cannot be brought under cultivation) would have to be considered as agricultural property the last mentioned class on the ground that they were and are used as pasture groun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the few facts we will deal with it first. 7. In para. 1 of the plaint the plaintiff stated that the properties of schedule Ga were the self-acquired properties of her husband and of the predecessors of the defendants. If in fact that was so, the plaintiff would inherit her husband's share under the Hindu law, which on the facts would be not one fourth but one fifth. That statement was not denied in the written statements of defendants 1 to 4 and 6 but defendants 7 to 14 denied the same. No issue, however, was framed in the lower Court and the judgment of the lower Court does not contain a decision on the point. In her deposition, however, the plaintiff admitted that her husband and his brothers had no personal properties and all their properties were either their ancestral properties or acquired by them from out of the income of their ancestral properties. In view of this admission the properties described in schedule Ga must stand on the same footing as those described in schedules Ka and Kha so far as the plaintiff's claim to them is concerned. Lands representing 9 annas share of village Mochrakend were held by the plaintiff's husband and his coparcener ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ). As the word property used in that Sub-section means property other than agricultural land 1. In the matter of Hindu Women's Rights to Property Act, , the plaintiffs cannot get a share in such of the properties described in the plaint as can be regarded as agricultural land. The question therefore in the appeal is what meaning should be attributed to the phrase devolution to agricultural land used in item 21 of List 2 of schedule. 7, Constitution Act. 9. The Provincial Legislature has the exclusive power to pass laws relating to devolution of agricultural land and on subjects mentioned in that item. But jus descendit ct non terra the right descends and not the land (Coke on Littleton, Section 345). That subject therefore means that the Provincial Legislature has the exclusive power to pass laws dealing with succession to rights in agricultural land. Moreover, Parliament knew that in India a great deal of sub-infeudation exists in respect of agricultural land and by giving the Provincial Legislature the exclusive power to legislate in respect to devolution of agricultural land it could not have intended to confer the power to legislate only in respect of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e on his death according to the provisions of Act 18 of 1937,-though his tenure comprised agricultural lands only. The physical character of the land included in the tenure must, in our judgment, determine the Rule of succession whether succession would be in ac cordance with that Act or according to the rules of Hindu law, as long as the Pro vincial Legislature does not pass the law regulating devolution of agricultural land held by Hindus. We must accordingly consider what should be the physical character of the land so that it may be classed as agricultural land within the meaning of item 21 of List II. This question was raised in Megh Raj v. Allah Rakhia ('42) 29 A.I.R. 1942 F.C. 27, and was discussed at some length by the Federal Court but final opinion was reserved. 10. Lands actually used for raising by cultivation food crops for men and beasts, as also other crops like jute, hemp, cotton and flax marketable commodities raised by the labour of man are no doubt agricultural lands. Lands which are used for purposes accessory to cultivation would, in our judgment, also be considered as agricultural lands-the threshing floor, irrigation tanks, land containing cattle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cultural land as was held in 3. Chandrasekhara v. Duraiawami ('31) 18 A.I.R. 1931 Mad. 659, Till the Provincial Legislatures legislate on the lines of Act 18 of 1937 and the amending Act of 1938, there would arise anomalies and difficulties in the matter of succession but the adoption of the wider import for the term 'agriculture' would reduce the anomalies to a great extent, and that is one of the main reasons why we adopt the wider meaning. 12. Applying what we have laid down above to the facts of this case, we hold in agreement with the lower Court that the items of pro perty mentioned at pages 48 to 50 of the judgment of the lower Court dated 8th August 1942 (as printed in the paper book) are agricultural lands. We, however, differ from that Court on the following matters: As the plaintiff led no evidence, the homesteads of under-tenants would not be excluded from the category of agricultural land. They may as well be, and possibly the majority are homesteads of cultivators. Gardens and orchards which are outside of what can be regarded as the compound of the residential house of the parties to the suit would not be excluded from the category of agricult ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o her husband has disappeared with his death. A Hindu female, who has a widow's estate, is entitled to bring a suit for partition and to have her share separated by metes and bounds. It is also an established principle that a co-sharer, be he or she a plaintiff or defendant in a suit for partition, is entitled do claim a separate allotment at any stage before the final decree. The other defendants do not resist her claim to a separate allotment to those properties in which the plaintiff has a share. Their contention is that there cannot be in this suit parti tion by metes and bounds of those properties in which the plaintiff has no share and so in those properties neither Nil gobinda's widow nor any one of the other defendants can claim separate allotment. They contend that for partitioning those properties by metes and bounds a separate suit must be brought. We cannot accede to that contention. In this suit the question of title has been gone into and the result of our judgment is (1) that in some items of property, e.g., the dwelling house and its appurtenances and in debsthans the co-owners are the plaintiff and the defendants and that (2) in the rest of the properties i ..... X X X X Extracts X X X X X X X X Extracts X X X X
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