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2004 DIGILAW 59 (KAR)

PUTTAMMA v. H. K. RAMEGOWDA

2004-01-22

K.SREEDHAR RAO

body2004
K. SREEDHAR RAO, J. ( 1 ) THE appeal filed against the judgment and decree passed in RA No. 44/95 on the file of Civil judge, Senior Division, Holenarasipura arising of the judgment and decree passed in O. S. No. 207/92 on the file of Munsiff, Holenarasipura. ( 2 ) THE appellants are the defendants. The respondent- plaintiff filed a suit for partition and possession of his 3/10th share in the suit properties consisting of agricultural lands and house property and the movables mentioned in the B schedule. One Sathigowda is the propositus, father of the plaintiff and defendants 2 to 4. The first defendant is the wife of Sathigowda. The propositus died in the year 1990. The plaintiff submits that the suit properties are ancestral properties, after demise of Sathigowda claims that he is entitled to a share in the property, accordingly filed a suit for partition. ( 3 ) THE defendants contend that the plaintiff on his marriage become illatom son-in-law to his in laws, he severed his links with the natural family, therefore not entitled to any share in the property. The defendants also plead ouster and adverse possession. The Trial Court rejected the defence contentions allowed the suit of the plaintiff declaring 2/9th share in the A schedule property and rejected the relief in respect of the B schedule property. The first appellate Court confirmed the findings in the judgment and decree of the Trial Court, dismissed the appeal of the defendants. Hence, the second appeal. ( 4 ) THE following substantial questions of law are framed for consideration : (1) Whether the appellate Court erred in denying share to the first defendant and other daughters by ignoring Section 8 of the Hindu Law Women's Property Act of 1933. (2) The grant of 2/9th share to the plaintiff in the suit schedule property is excessive and contrary to law?" ( 5 ) THE relationship of the parties inter-se and the character of a schedule property as ancestral property are not in dispute. The contention of the defendants that plaintiff severed his links and he was ousted from the property therefore not entitled to any share in the property has been rejected concurrently by the Courts below. The said finding is sound and proper. The contention of the defendants that plaintiff severed his links and he was ousted from the property therefore not entitled to any share in the property has been rejected concurrently by the Courts below. The said finding is sound and proper. ( 6 ) THE provisions of Section 8 of Mysore Hindu Law Women's Rights Act 1933 (hereinafter called Mysore Act 1933) and 6 of Hindu Succession Act, 1956 are reproduced hereunder for convenient reference. "section 8: Certain females entitled to shares at partition : (1 (a)At a partition of joint family property between a person and his son or sons, his mother, his unmarried daughters and the widows and unmarried daughters his predeceased undivided sons and brothers who have left no male issue shall be entitled to share with them. (b) At a partition of joint family property among brothers, their mother, their unmarried sisters and the widows and unmarried daughters of their predeceased undivided brothers who have left no male issue shall be entitled to share with them. (c) Sub-sections (a) and (b) shall also apply mutates mutandis to a partition among other co-parceners in a joint family. (d) Were joint family property passes to a single co-parcener by survivorship, it shall so pass subject to the right to shares of the classes of females enumerated in the above sub-sections. (2) Such share shall be fixed as follows: ( a) In the case of the widow, one-half of what her husband, if he were alive, would receive as his share; (b) In the case of the mother, one-half of the share of a son if she has a son alive, and, in any other case one-half of what her husband, if he were alive, would receive as his share; (c) in the case of every unmarried daughter or sister, one-fourth of the share of a brother if she has a brother alive, and, in any other case, one-fourth of what her father, if he were alive, would receive as his share; provided that the share to which a daughter or sister is entitled under this section shall be inclusive of, and not in addition to, the legitimate expenses of her marriage including a reasonable dowry or marriage portion. (3) In this section, the term "widow" includes, where there are more widows than one of the same person all of them jointly, and the term "mother" includes a step -- mother and, where there are both a mother and a step-mother, all of them jointly and the term "son" includes a step-son as also a grandson and a great grandson; and the provisions of this section relating to the mother shall be applicable mutates mutandis to the paternal grandmother and great grandmother. (4) Fractional shares of the females as fixed above shall relate to the share of the husband, son, father or brother as the case may be and their value shall be ascertained by treating one share as allotted to the male and assigning therefrom the proper fractional shares to the female relatives. (5) Each of the female relatives referred to in Sub-section (1) shall be entitled to have here share separated off and placed in her possession. Provided always as follows:(i) No female relative shall be entitled to a share in property acquired by a person and referred to in Section 6, so long as he is alive; (ii) No female whose husband or father is alive shall be entitled to demand a partition as against such husband or father, as the case may be; (iii) A female entitled to a share in any property in one capacity of relationship shall not be entitled to claim a further or additional share in the same property in any other capacity section 6 of the Hindu Succession Act 1956 devolution of interest in coparcenary property' 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 coparcenary and not in accordance with this act. Provided that, if the deceased had left surviving him a female relative specified in class I of the schedule or a male relative, specified in that class who claims, through such female relative, the interest of the deceased in Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship. Explanation 1: For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. Explanation 2: - Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein. " ( 7 ) THE provisions of Section 6 of Hindu Succession Act declares that when a male Hindu dies intestate after the commencement of this Act, his interest in a Mitakshara coparcenary property, shall devolve by succession if he leaves behind Class I female relatives. In the absence of female relatives, the property has to devolve upon by survivorship on the other coparceners. In other words the female relatives who are Class I heirs will have an equal share with other coparceners in the share of the deceased in the ancestral estate. The first explanation permits working out a notional partition to ascertain the extent of share the deceased. There may not be a partition or an occasion for partition between the other surviving coparceners but by legal fiction under Section 6 both the male and female class I heirs would be entitled to seek share. The right invested in the female heirs under Section 8 of the Mysore Act of 1933 is a distinct right to have a share in the ancestral joint family property along with the coparceners. The rationale of granting share in the joint family property along with the coparceners can be better understood by reference to the rights of the widow/mother under the Shastric Bombay School of Mitakshara Law. The said right given to a widow/mother under Bombay School of Mitakshara Law is independent of the right of limited estate created under Hindu Women's Right to Property Act of 1937. The right of the mother/widow at a partition to have a share equal to that of a son is recognised and is in vogue even prior to 1937 Act. The said right given to a widow/mother under Bombay School of Mitakshara Law is independent of the right of limited estate created under Hindu Women's Right to Property Act of 1937. The right of the mother/widow at a partition to have a share equal to that of a son is recognised and is in vogue even prior to 1937 Act. In other words the mother/widow would be entitled to share along with coparceners in the ancestral estate ( 8 ) THE Supreme Court in GURUPAD KHANDAPPA MAGDUM v. HIRABAI KHAHDAPPA magdam AND ORS. , AIR1978 SC 1239 , 1978 (26 )BLJR354 , [1981 ]129 ITR440 (SC ), (1978 )3 SCC383 , [1978 ]3 SCR761 , 1978 (10 )UJ381 (SC ) has upheld and endorsed the legality of granting a share to the mother/widow in the joint family property along with other coparceners at a partition. In Paras 9, 10, and 11, the following observations are made: ( 9 ) THE next step, equally important though not equally easy to work out, is to find out the share which the deceased had in the coparcenary property because after all, the plaintiff has a l/6th interest in that share. Explanation 1 which contains the formula for determining the share of the deceased creates a fiction by providing that the interest of a Hindu mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death. One must-therefore, imagine a state of affairs in which a little prior to Khandappa's death, a partition of the coparcenary property was effected between him and other members of the coparcenary. Though the plaintiff, not being a coparcener, was not entitled to demand partition yet, if a partition were to take place between her husband and his two sons, she would be entitled to receive a share equal to that of a son. (see mulla' a Hindu Law. Fourteenth Edition, page 403. para 315 ). In a partition between Khandappa and his two sons, there would be four sharers in the coparcenery property, the fourth being khandappa's wife, the plaintiff. Khandappa would have therefore got a 1/4th share in the coparcenary property on the hypothesis of a partition between himself arid his sons. (see mulla' a Hindu Law. Fourteenth Edition, page 403. para 315 ). In a partition between Khandappa and his two sons, there would be four sharers in the coparcenery property, the fourth being khandappa's wife, the plaintiff. Khandappa would have therefore got a 1/4th share in the coparcenary property on the hypothesis of a partition between himself arid his sons. (Emphasis by me) ( 10 ) TWO things are thus clear: one, that in a partition of the coparcenary Property Khandappa would have obtained a 1/4 share and two, that the share of the plaintiff in the 1/4th share is 1/6th, that is to say 1/24th. So far there is no difficulty. The question which poses a some what difficult problem is whether the plaintiff's share in the coparcenary property is only 1/24th or whether it is 1/4th plus 1/24th, that is to say, 7/24th. The learned trial Judge, relying upon the decision in shirambai AIR1964 Bom 263 , (1964 )66 BOMLR351 which was later overruled by the Bombay High Court, accepted the former contention while the High Court accepted the latter. The question is which of these two views is to be preferred. ( 11 ) WE see no justification for limiting the plaintiff share to 1/24th by ignoring the l/4th share which she would have obtained had there been a partition during her husband's lifetime between him and his two sons. , 9. The Counsel for the respondents relied on the Ruling of the Supreme Court in THIMMAIAH and ORS. v. NINGAMMA AND ANR. AIR 2000 SC 3529, At para 25 the following observations are made: 25. It is not in dispute that the Mysore Act deals with Hindu Mitakshara coparcenary rights. This is also clear from the definition of 'hindu' in Section 3 (c) of the Mysore Act. Section 4 of the 1956 Act gives overriding effect to the 1956 Act in so far as any law governing Hindus is inconsistent with the provisions of the 1956 Act. Reading the proviso to Section 6 of the 1956 act with Section 8 of the Mysore Act, it is clear that where the female members sought to be protected under Section 8 of the Mysore Act are in fact Class I heirs of a deceased coparcener, his interest in the joint family property cannot pass by survivorship at all. Reading the proviso to Section 6 of the 1956 act with Section 8 of the Mysore Act, it is clear that where the female members sought to be protected under Section 8 of the Mysore Act are in fact Class I heirs of a deceased coparcener, his interest in the joint family property cannot pass by survivorship at all. Thus the question of it passing subject to the rights of any class of females under Section 8 (1) (d) of the Mysore Act does not also arise. This would mean that Section 8 (1) (d) of the Mysore Act has been superseded by the proviso to Section 6 of the 1956 Act to the extent stated. 10. The Supreme Court has laid down that the provisions of Section 8 (1) (d) of the Mysore Act are superceded by the provisions of Section 6 of the Hindu Succession Act. In the instant case we are concerned with the provisions of Section 8 (1) (a) and 8 (1) (b ). The ratio laid down by the supreme Court has no application to the facts of the case and for interpreting Section (1) (a) and 8 (1) (b ). 11. The provisions of Section 4 of the Hindu Succession Act states that any text, rule or interpretation of Hindu Law shall cease to have effect if there is a provision made under the Act. Likewise any law, custom, interpretation etc. made prior to the commencement of the Act if it is inconsistent with the provisions of the Succession Act they cease to apply and the provisions of succession Act will prevail. ( 12 ) THE Division Bench of this Court in K. VISWESWARIAH AND ANR. v. K. V. SATHYANARAYANA AND ORS. (1990 (3) Kar. L. . J. (Supp.) 286 has observed that the mysore Act of 1933 is not repealed by Hindu Succession Act of 1956 and the Mysore Act of 1933 is still operative. In the context of such observations the ruling of the Single Judge in muniswamy v. SMT. LAXMAKKA, AIR1989 Kant 67 , AIR1989 kar 67 , ILR1987 KAR 2666 taking a contra view that Section 8 of the Mysore Act of 1933 is inconsistent with the provisions of Section 6 of Hindu Succession Act is not a good law. In the context of such observations the ruling of the Single Judge in muniswamy v. SMT. LAXMAKKA, AIR1989 Kant 67 , AIR1989 kar 67 , ILR1987 KAR 2666 taking a contra view that Section 8 of the Mysore Act of 1933 is inconsistent with the provisions of Section 6 of Hindu Succession Act is not a good law. ( 13 ) THE right of a female heir under Section 8 of 1933 Act to inherit along with the coparceners is a distinct right from the right of succession under 6 which permits succession only in the share of the deceased along with other Class I heirs - Where as under Section 8 in the ancestral joint family property the female has a right to inherit along with the coparceners. The widow/mother under 1933 Act is entitled to half the share that of a son. The distinct and independent right of a female heir to inherit in the ancestral estate along with the coparceners under Section 8 is unaffected by the provisions of Section 6 of the Hindu Succession Act. ( 14 ) AFTER the death of propositus Sathigowda the defendants 2 to 4 being co-parceners entitled to one share each and the first defendant is entitled to half that of a son. The daughters have been allotted l/9th share in the estate of Sathigowda under Section 6 of the Hindu Succession Act. There is no evidence to show whether the daughters were unmarried at the time when succession opened after the death of Sathigowda. That apart, in view of the ruling in Thimmaiah's case in air 2000 SC Page 3529, the daughters would not entitled to share in the ancestral estate. But after the Karnataka amendment to the Hindu Succession Act 1994 the unmarried daughters would be deemed as coparceners and entitled to share in the ancestral property. Any way that proposition is not relevant for the present case. In view of the reasons and discussions made above, the first question of law is answered partly in affirmative in so far as the first defendant is concerned. ( 15 ) THE first defendant/mother would be entitled to 1/9th share in the ancestral estate and each son would be entitled to 2/9th share. In the notional 2/9th share of the propositus the daughters, widow and the sons all of them are entitled to equal share at the rate of 2/81. ( 15 ) THE first defendant/mother would be entitled to 1/9th share in the ancestral estate and each son would be entitled to 2/9th share. In the notional 2/9th share of the propositus the daughters, widow and the sons all of them are entitled to equal share at the rate of 2/81. Therefore the first defendant would be entitled to 1/9th share plus 2/81th share. The sons would be entitled to 2/9th share plus 2/81th share each. The daughters would be entitled to 2/81th share each. The second question of law is answered in affirmative. The appeal is allowed in part. The judgment and decree of the Appellate Court is modified. Preliminary decree be drawn as indicated above.