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Judgment
The main question arising for decision in this second appeal is whether the provisions of Section 33A(1) of Act 39 of 1923, the Succession Act
apply to this case so as to benefit the appellant to the extent of property worth Rs. 5000. The appellant is the widow of one Arulandu Nadan who
was an Indian Christian. He died in the year 1936 leaving his widow defendant 1, a sister the plaintiff, a brother defendant 2 and two daughters by
a deceased sister, defendants 3 and 4. The property left by the deceased Arulandu Nadan is stated in the plaint to be worth Rs. 6725-14-0. The
plaintiff conceded that defendant 1 was entitled exclusively to Rs. 5000 and interest thereon. Deducting this sum she claimed a sixth in the balance
and that was mentioned to be Rs. 159-13-10-2/3. It was also stated that defendants 3 and 4 who were her sister''s daughters were entitled to a
like sum of Rs. 159-13-10-2/3. Defendant 2 was stated to be also entitled to a similar sum and the balance of the excess was stated to be the
share of defendant 1, i.e., this is in addition to the sum of Rs. 5000 and interest thereon which was conceded in favour of defendant 1. Defendants
3 and 4 submitted to a decree apparently content with the share allotted to them in the plaint. Defendant 1 did not contest the plaintiff''s claim.
Defendant 2, however, put forward a claim that he was entitled to a sixth not merely in the surplus remaining after setting apart Rs. 5000 and
interest for the sole benefit of defendant 1 but in the entire assets left by Arulandu Nadan. To this claim defendant 1 naturally took objection. The
fight was between defendant 1 whose priority to the sum of Rs. 5000 and interest was conceded by the plaintiff and defendant 2 who did not
concede this right. The trial Court held in favour of defendant 1 the widow and decreed Rs. 159-13-10-2/3 to each of the three sets of claimants,
namely, the plaintiff, defendant 2 and defendants 3 and 4. The plaintiff was content as she got what she wanted in her plaint, that being the amount
on which she paid the court-fee. Defendants 3 and 4 did not file any appeal; they were also apparently content with what they got. Defendant 2,
however, took the matter on appeal to the appellate Court. That Court agreed with his contention and held that he was entitled to a sixth share in
the entire property and did not uphold the exclusive right to Rs. 5000 and interest put forward by defendant 1. While allowing the appeal, the
appellate Court varied the decree in favour of the plaintiff and defendants 3 and 4 by giving a sixth in the whole of the property to them. Defendant
1 has filed this appeal and urges that the correct view of the law is the one taken by the trial Court and that, at any rate, the appellate Court should
not have varied the decree which had been passed in favour of the plaintiff and defendants 3 and 4.
Mr. Umamaheswaram urges that the plaintiff claimed in her plaint only Rs. 159 odd, paid court-fee only on that sum, did not ask for an
amendment of the plaint even after defendant 1 appeared and put forward a larger claim and that after the decree of the trial Court, she did not
prefer an appeal or even a memorandum of objections as she would be entitled to file as a respondent Under Order 41, Rule 22, Civil P.C. Under
that rule one respondent can file a memorandum of objections against another respondent and not merely against the appellant. That being so, it is
said that there was no valid ground for the appellate Court enhancing the amount granted to the plaintiff and for varying a decree in which she
acquiesced. Section 33A was introduced into the Succession Act by Act 40 of 1926. Arulandu Nadan died in 1936. So the amending Act applies
to this case. u/s 33A(1) where the intestate has left a widow but no lineal descendants and the net value of his property does not exceed five
thousand rupees, the whole of his property shall belong to his widow. Under Clause (2), where the net value of the property exceeds the sum of
five thousand rupees, the widow shall be entitled to five thousand rupees thereof and shall have a charge upon the whole of such property for such
sum of the five thousand rupees, with interest thereon from the date of the death of the intestate at four per cent, per annum until payment. Clause
(3) says:
The provision for the widow made by this section shall be in addition and without prejudice to her interest and share in the residue of the estate of
such intestate remaining after payment of the said sum of five thousand rupees, with interest as aforesaid, and such residue shall be distributed in
accordance with the provisions of Section 33 as if it (residue) were the whole of such intestate''s property.
Clause (4) is not material. Clause (5) which has given rise to the trouble runs as follows:
This section shall not apply
(a) to the property of: (i) any Indian Christian; (ii) any child or grandchild of any male person who is or was at the time of his death an Indian
Christian, or (iii) any person professing the Hindu, Buddhist, Sikh or Jaina religion the succession to whose property is, u/s 24, Special Marriage
Act, 1872, regulated by the provisions of this Act;
(b) unless the deceased dies intestate in respect of all his property.
The contention put forward by the appellant which found acceptance in the trial Court is that the expression ""unless the deceased dies intestate
in respect of all his property"" occurring in Clause (b) is really part of Clause (a) and governs the three classes which are mentioned in Clause (a).
According to the learned advocate, the section will not apply to the property of an Indian Christian unless the deceased died intestate in respect of
his property; similarly as regards the persons mentioned in Clauses (ii) and (iii). If this is the correct construction, then the provisions of Clause (5)
which provide that the section shall not apply to certain cases will exclude only those cases of Indian Christians who die leaving a will in respect of
any sum or all his properties. But if the Indian Christian died intestate in respect of all his property, then the provisions in Clause (5) will not come
into operation and therefore the right of exclusion enacted in Clause (5) would not apply.
This construction ignores the fact that the expression ""unless the deceased dies intestate in respect of all his property"" is put in as a separate and
independent clause and it is not made part of Clause (a). If the Legislature intended that it should be a clause governing the three classes of cases
mentioned in clause (a), then it ought not to have been put as Clause (b) at all; it should be put in continuation of Sub-clauses (i), (ii) and (iii) of
Clause (a). If this construction is correct, then in the case of persons who are not Indian Christians or any other persons mentioned in Clauses (ii)
and (iii) of Sub-clause (a) of Clause (5), the section will apply whether the deceased died intestate in respect of all his property or whether he left a
will disposing of some of his property. If an Anglo Indian or an Englishman domiciled in India or any of the other persons to whom chap. II would
apply other than those mentioned in Clauses (i), (ii) and (iii) of Clause 5 (a) leaves a will which does not dispose of his property, and who is
therefore to be deemed to be intestate with respect to the property of which there was no testamentary disposition which was capable of taking
effect, the provisions of Section 33A (1) would apply because clause (5)(b) only qualifies Clause (5)(a)(i), (ii) and (iii) and is not an independent
clause. In this connexion the preamble to the amending Act is very help, ful. The preamble states:
Whereas it is expedient to amend the provisions of Section 33, Indian Succession Act, 1925, so as to provide more liberally for the surviving
widow or husband where there are no lineal descendants in the case of a total intestacy. It is hereby enacted as follows:
As stated on p. 40 of Maxwell''s Interpretation of Statutes:
The preamble of a Statute has been said to be a good means of finding out its meaning, and, as it were, a key to the understanding of it; and as it
usually states, or professes to state, the general object and intention of the Legislature in passing the enactment, it may legitimately be consulted to
solve any ambiguity, or to fix the meaning of words which may have more than one or to keep the effect of the Act within its real scope, whenever
the enacting part is in any of these respects open to doubt.
Of course the preamble cannot be used in order to control the plain meaning of provisions of the enacting part. In this case, as the preamble
states, the amending Act was passed to provide for a liberal provision in the case of the widow or the husband of the person where there are no
lineal descendants ""in the case of a total intestacy."" For these reasons, I hold that the construction placed upon the preamble by the lower appellate
Court is correct and I do not accept this argument of the learned advocate for the appellant. As Mr. Venkatarama Iyer, the learned advocate for
the respondents has suggested, it may be that the Legislature thought that if a person set about making a will, he might well have made a provision if
he wanted to benefit his widow and if he did not provide for his widow at all or sufficiently well, the Legislature might well have thought that that
was not a case in which the Legislature ought to interfere by way of giving this preferential right to the widow. In a case where a person dies
intestate, the Legislature might make a provision for the widow, but where the husband has left'' a will not making a sufficient provision or any
provision in favour of the widow, that is an indication that he does not want her to benefit and that might be the reason why the condition of a total
intestacy is mentioned in the preamble of the amending Act.
The next argument is that the sister and the sister''s children are not entitled to anything more than a sixth in the surplus which alone the plaint
claimed. The plaintiff did not claim anything more than Rs. 159 odd and paid court-fee only on that sum. She got a decree for that sum and was
content with it. Even after she got notice of the appeal filed by defendant 2, she did not choose to come up by way of an independent appeal or if
the time for an independent appeal had elapsed by a memorandum of objections. Under these circumstances, the lower appellate Court clearly
erred in giving the plaintiff a decree for a sum in excess of that upon which she paid court-fee. Even in the case of defendants 3 and 4, they were
content apparently with the sum that was stated in the plaint to belong to them. As in the case of the plaintiff, they did not file an appeal or a
memorandum of objection and there is no justification for the appellate Court to have interfered in their favour either.
Another contention was raised by the learned advocate for the appellant that defendant 2 is precluded from setting up a claim to a half of the
whole by virtue of certain proceedings that took place in O.S. No. 78 of 1934, District Munsif''s Court, Sivaganga. That was a suit which was filed
by the deceased Arulandu Nadan who died during the pendency of that suit, and the brother applied in I.A. No. 232 of 1932 to be brought on
record along with the widow as a legal representative. The widow contested this claim and stated that the whole of the property was not worth
more than three thousand rupees and that therefore she was entitled u/s 33A, Succession Act, to the whole of the property. The Court evidently
put a question to the counsel appearing for the widow whether in the event of the property being found ultimately to be worth more than Rs. 5000,
the brother would not have a share. That could not but be conceded and it was so done. Evidently in order to avoid a decision on the question
which has been agitated in this Court for several hours, the District Munsif appointed a Commissioner to fix the valuation of the estate left by the
deceased Arulandu Nadan. Evidently the view was that in case the property was found to be worth more than Rs. 5000, the brother would be
admittedly entitled to a share and would therefore be entitled to come in as a legal representative along with the widow. The Commissioner found
that the property was worth over Rs. 6000. Objection was filed, the Court considered the objection and found that the property was worth over
Rs. 6000 and it accordingly brought the brother as one of the legal representatives. I fail to see how there is any decision against the brother in
these proceedings which can be made the foundation for the argument now advanced before me. Mr, Umamaheswaram urges that there is an
implied decision that in case the property was worth below Rs. 5000, the brother would not be entitled to a share in it. I do not agree. There is no
concession by the brother that in case the property was worth below Rs. 5000, he would not be entitled to any share in it; nor is there any such
finding by the Court. I therefore decline to accept this argument. In the result the second appeal is dismissed as against respondent 1 with his costs
payable by the appellant. As regards respondents 2 to 4, the appeal is allowed, the decree of the lower appellate Court as regards them is set
aside and that of the trial Court restored; the balance will go to the appellant. There will he no order as to costs against; respondents 2, 8 and 4.
(No leave).