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1975 DIGILAW 85 (KAR)

HANUMAKKA v. DASE GOWDA

1975-07-10

GOVINDA BHAT, SRINIVASA IYENGAR

body1975
GOVINDA BHAT, CJ. ( 1 ) THIS appeal by the plaintiff, arises out of her suit for partition and separate possession of a one half share in the plaint schedule properties and future mesne profits which has been dismissed by the Court below on the ground that S. 8 of the Mysore Hindu Law Women's Rights Act, 1933, mysore Act X of 1933) is a bar tp the plaintiff enforcing her right by way of a suit for partition. ( 2 ) 'the material facts, so far as they are relevant for the purpose of this appeal, lie in a very narrow compass. The genealogy of the family of the plaintiff and defendants 1 to 9 is given in the plaint. Dase Gowda is the common ancestor. He had two sons by name Narase Gowda and Thimme gowda. Plaintiff Hanumakka is the widow of the said Thimme Gowda, who died in the year 1962, long after the Hindu Succession Act, 1956 (which will hereinafter be referred (to as the 'act'), came into force. Narase gowda had three song by name) Mudligirigowda, Dasegowda and Lakshminarasegowda. Mudlgirigowd died in 1969 leaving his wife the 6th defendant and children defendants 5, 7, 8 and 9. Dasegowda, younger brother of mudligirigowda, is the first defendant and his sons are defendants 2 and 3. The fourth defendant is the youngest son of Narasegowda. ( 3 ) PLAINTIFF, alleging that on the death of her husband Thimmegowda in the year 1962, the one half share to which Thimmegowda would have been entitled to at a partition if the same had taken place immediately before his death, brought the suit for partition claiming a one half share in the plaint schedule properties. The plaint A schedule consists of immoveable properties, and the plaint B schedule is a list of moveables belonging to the family. ( 4 ) DEFENDANTS 10 and 11 are alienees of items 37 and 38 of the plaint a schedule. Defendant 12 is a lessee of Item 36 of the plajnt A schedule. ( 5 ) THE trial Court, on the pleadings of the parties, settled as many as fifteen issues. ( 6 ) THE alienees, i. e. , defendants 10 and 11, contended that in any event the properties sold to them should be deemed to have been allotted to the share of their alienor Mudligirigowda in equity. ( 5 ) THE trial Court, on the pleadings of the parties, settled as many as fifteen issues. ( 6 ) THE alienees, i. e. , defendants 10 and 11, contended that in any event the properties sold to them should be deemed to have been allotted to the share of their alienor Mudligirigowda in equity. ( 7 ) DEFENDANTS 5 to 9 are the contesting defendants. They contended, inter alia, that Items 36 to 39 of the plaint A schedule are the self acquired properties of Mudligirigowda and the plaintiff, in any event, has no right to claim a share in the said properties. ( 8 ) IT was not disputed before the Court below that, if a partition had taken place immediately before the death of Thimmegowda in the year 1962, he would have been entitled to a one half share in the properties belonging to the joint family. Plaintiff claims a, one half share in the properties by virtue of S. 6 of the Act. The learned Civil Judge upheld thq contention of the contesting defendants that S. 8 of the, Mysore Act X of 1933 is a bar to the plaintiff suing for partition. The only point that arises for determination in this appeal is whether S. 8 of Mysore Act X of 1933 is a bar to the plaintiff enforcing her right to, claim the share to which her husband would have been entitiled if a partition had taken place immediately before his death. ( 9 ) THE Act, in its preamble, states, as follows : " An Act to amend and codify the law relating to intestate succession among Hindus". It is applicable to all Hindus in the whole of India except the State of jammu and Kashmir. ( 9 ) THE Act, in its preamble, states, as follows : " An Act to amend and codify the law relating to intestate succession among Hindus". It is applicable to all Hindus in the whole of India except the State of jammu and Kashmir. S. 6 of the Act states as follows :" When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparceneary and not in accordance with this Act: provided that if the deceased had left him surviving a female relative specified in class I the Schedule or a male relative, specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship. " (Explanations 1 and 2 omitted as unnecessary ). Plaintiff who is the widow of Thimmegowda is a Class T heir and therefore her case falls within the scope of the proviso to S. 6 of the Act. ( 10 ) S. 4 of the Act overrides all laws in force in the territory of India immediately before the commencement of the Act in so far as such law is repugnant to any of the provisions of the Act. In Mysore Act X of 1933, a widow nf a deceased coparcener is not entitled to enforce her right to a share by instituting a suit for partition. S. 8 of Mysore Act X of 1933 provides that where partition takes place out of Court or through Court between, coparceners, specified female heirs are entitled to be allotted a share. S. 8 provides for a contingency where the partition in a joint Hindu family takes place and there are widows and other female heirs in the family who are entitled to a share at such partition. This is not a case which falls under s 8 of Myscre Act X of 1933. If the plaintiff's husband had died before the act came, into force, then, her right was only to claim a sharei at a partition of the joint family properties but she could not have enforced her right by bringing a suit for partition. This is not a case which falls under s 8 of Myscre Act X of 1933. If the plaintiff's husband had died before the act came, into force, then, her right was only to claim a sharei at a partition of the joint family properties but she could not have enforced her right by bringing a suit for partition. As already stated, the plaintiff is a Class I heir. Her husband Thimmegowda would have been entitled to a one half share in the joint family properties if a partition had taken place immediately before bis death. The plaintiff, therefore, succeeded to the one half share of Thimme Gowda u/s 6 of the Act. By virtue of S. 14 of the Act she becomes the absolute owner of the share of Thimme Gowda. ( 11 ) THE Court below is clearly in error in holding that S 8 of Mysore act X of 1933 is a bar to the plaintiff instituting a suit for partition. Therefore we reverse the finding cf the Court below on issue No. 15 and declare that the plaintiff is entitled to a one half share in the plaint A and B schedule properties. ( 12 ) DEFENDANTS 10 and 11 who are alienees of Items 37 and 38 of the plaint A schedule, are in equity entitled to have the properties alienated to them nominally allotted to the share of the alienor as far as possible. ( 13 ) ALL other material issues have been found in favour of the plaintiff. ( 14 ) FOR the reasons stated above, we reverse the decree of the Court below and decree the plaintiffs suit for partition, declaring that the plaintiff is entitled to a one half share in the plaint A and B schedule properties and that the alienees are entitled to have the equities adjusted in the final decree proceedings. Partition of the agricultural lands has to be effected by the revenue authorities under S. 54 CPC. Non-agricultural properties have to he partitioned in the final decree proceedings beforet the Court below. ( 15 ) THE Counsel for the contesting defendants-respondents, were not present when this appeal was heard. The plaintiff who is the appellant is entitled to her costs of this appeal from defendants 5 to 9 who are respondents 5 to 9. Ordered accordingly. --- *** --- .