ORDER
T.N. Vallinayagam, J.
1. The defendant challenges the decree for partition of 1/8th share of the plaintiff by the first Appellate Court while the suit was dismissed by the trial Court. Hence, this second appeal.
2. Plaintiffs mother Javaramma and the second defendant were the wives of one Ningegowda, who died in 1960 leaving behind him the plaintiff, her mother, the son first defendant and the other widow-second defendant. Claiming that on the death of Ningegowda, succession opened, the plaintiff and the first defendant are each entitled to 2/5th share and surviving widow the second defendant is entitled to the remaining l/5th. The suit for partition was laid.
3. The defendants resisted by contending that the plaintiffs marriage took place in 1951.
Ningegowda died in 1945 or 46 and therefore the first defendant alone became the sole surviving a co-parcener and consequently the plaintiff is not entitled to any share. The 9th item of the suit schedule is built out of the defendant’s earnings. In any event, the defendants are perfected their title by adverse possession. Plea of limitation was also raised.
4. The trial Court found that the suit properties are not joint family properties and the defendants are the co-surviving legal heirs of late Ningegowda, and they are the absolute owners. It also held that item No. 9 is the self acquired property of the defendants. Of course, the plea of limitation and adverse possession was negatived. Thus, the suit came to be dismissed.
5. But the Appellate Court held that the plaintiff was unmarried on the date of death of her father and applying Section 8(1)(b) of Hindu Laws to Women’s Right Act, 1933 Mysore, the daughter is entitled to a share, and also applying Section 14(1) of the Hindu Succession Act, the Appellate Court held that the plaintiff is entitled to l/4th share of defendant-1, i.e., l/8th share in the suit properties. Aggrieved by the grant of such share, the defendants are before this Court.
6. It is contended before me that when there was no partition prior to 1956, the plaintiff had lost the status of an unmarried daughter and she no more entitled to a share. Therefore, Section 14(1) cannot be extended to confer a share on the daughter. Section 8 (1) (d) of 1933 Act, has been wrongly interpreted as, the sub-section makes it clear that it is only at a partition the female can get a share and they had no enforceable right independently.
7. While interpreting Section 8 (1) (d) of Hindu Law Women’s Right Act (M) Act 10 of 1933, the Supreme Court has held thus :
“The scope of ascertainment of the females who are to receive a share under Clause (d) must be very wide, because Clause (d) mentions that when the joint family property passes to a single coparcener by survivorship, the right to shares is vested in all the classes of females enumerated in all the three Clauses (a), (b) and (c). That being the position, Clause (d) cannot be interpreted narrowly as giving a right to only those females who happen to be related to one or the other of the last two male coparceners in the manner laid down in Clauses (a) and (b). In fact, the language of Clause (d) has to be interpreted as laying down the right to shares will vest in all females of the joint Hindu family who would have possibly received the right to a share if at any earlier time there had been a partition in the family in any of the three manners laid down in Clauses (a), (b) and (c). This intention can only be given effect to on the basis that Clause (d) does not restrict itself to finding out females on the basis of an assumed partition between the last two male coparceners. It is significant that Clause (d) gives a right independently of a partition and there is no reason why its scope should be restricted by assuming a partition. The reference to the earlier clauses in this clause must be held to be restricted to the sole purpose of ascertainment of the females falling under Clause (a), (b) and (c) and once they arc ascertained, it has to be held that each one of them becomes entitled to a share under this clause. The object of Clause (d) is to give to all females entitled to maintenance from the coparcenary property, a right to claim a share in the joint family property instead of a right to maintenance.”
This dictum itself is sufficient to hold that the plaintiff is entitled to a share. Section 8 (1) (d) of the Act in question reads as follows :
“(d) Where joint family property passes to a single coparcener by survivorship, it shall so pass subject to the right to share of the classes of females enumerated in the above sub-sections.”
Interpreting the above section, a Division Bench of this Court in Dakshina Murthy v. Subbamma, (1940) 45 Mysore High Court Re-ports 102, has held, in a case where a widow claimed a share when her husband’s interest in the joint family property passed by survivorship to a single coparcener.
“Here it will be seen that we are not dealing with a case such as is covered by Clauses (a), (b) and (c) of Sub-section 1 of Section 8 of the Act, where a woman becomes entitled to a share of the joint family property at a partition, a case such as Venkatapathial v. Saraswathamma (1938) 43 Mys HCR 361, but with a case where the woman’s right arose at the moment when her husband’s interest in the joint family property passed on his death by survivorship to his brother as sole surviving co-parcener. Mr. Gopalaswamy Iyengar does not deny that in the circumstances alleged by the plaintiff, when her husband’s interest so passed by survivorship to defendant 1, the plaintiff under Clause (d) would at once have a right to a share now that other parts of the section fix her share at a quarter of the property. But, he suggests that it is very doubtful exactly what that right would be. Very recently it was decided by my learned brother and Singaravelu Mudaliar J. in Chikkanagamma v. Sivaswamy (1939) 44 Mys HCR 473, that a woman in the position of the plaintiff in such circumstances would not have a right to joint or common possession of her share of the property with the sole surviving coparcener. But I do not think it is necessary for us to try to define exactly what the plaintiffs right in the share given to her under Clause (d) would be. It is not necessary for us to do that in this case. What she has asked for is the partition and recovery of her quarter-share. Whatever may be the exact nature of her right in her share of the property according to Clause (d), the Act leaves us I think in no doubt that she has a right to the separation of her quarter-share and the possession of it, and had that right from the moment when her husband died and when defendant-1 became the sole coparcener. That right is given to her clearly by Sub-section 5 of Section 8 of the Act, which runs : “Each of the female relatives referred to in Sub-section (1) shall be entitled to have her share separated off and placed in her possession.” That is what the plaintiff sued for, and that is what the Act specifically gives her.”
Following the above dictum, confirming the view, at the same time expanding to say the property becomes vested in the female member, another Division Bench in 49 Mys HCR 456 in Pogaku Venkatachaliah v. Pogaku Ramalingaiah, has held as follows :
“Under me Mitakshara Law when property passes by survivorship to a single co-parcener,
the survivorship that is recognised by that law is to include the widow of a predeceased coparcener on whose death the property devolved on the single coparcener. But Clause (d) says that the property shall pass by survivorship subject to the right of the female members mentioned therein; that is to say, the survivorship does not exclude the right of the widow of a pre-deceased coparcener to share in the joint family property which under the old law was denied to her. The question therefore is what is the nature of the right, is it a mere right to share or does it confer on her a vested interest. The clause says “subject to the rights to shares” and not to a right to share. “The rights to share” means the rights to specific shares which are mentioned in the section. She can ask for partition and recover the specific share. Therefore there is a wider right conferred on a female member under Clause (d) in that the survivorship which would otherwise vest in a single coparcener an exclusive right to the property is limited, and qualified by the rights of the female members. In our opinion, Clause (d) virtually makes the female members specified therein cosharers along with the ‘single co-parcener’ and they will be entitled under Sub-section (5) of the said section to have their shares separated off and placed in their possession. But until that is done they would have a vested interest therein.”
8. The effect of such provision, after the advent of Hindu Succession Act, 1956, was considered by another Division Bench of this Court in Shankarama v. Madappa, , wherein the facts are :
“Plaintiff 1, the widow of a pre-deceased son and plaintiff 2, her unmarried daughter, brought a suit in 1965 against defendant 1, the father-in-law of plaintiff-1 for partition and separate possession of their 3/8 share in the family properties to which defendant-1 had succeeded at the sole surviving coparcener subject to the plaintiff’s right to a share as provided in Mysore Act 10 of 1933 and for challenging the alienations thereof made by defendant-1 in favour of defendants 2 and 3. The alienations were made by defendant the Karta after the Hindu Succession Act had come into force.”
Following the dictum of the Supreme Court, mentioned supra, the Division Bench held thus (At p. 190-91 of AIR):
“In the present case, the plaintiffs are in a better position. Their possession was joint and actual. Their right to a share as observed by the Supreme Court in Narendra Prasad v. Kempananjamma, is independently of a partition, and not to be restricted by ascertaining partition. Therefore, the plaintiffs’ interest in the family properties became absolute upon the coming into force of Section 14(1) of the Act and the sole surviving coparcener had no right to alienate it. The absolute property vested in a female member cannot be disposed of by the Kartha of the family.”
9. The question as to whether, an unmarried daughter who becomes entitled to a share, if married before partition takes place, would lose her right to property under the above enactment, was answered by a Division Bench of this Court in Subbanna v. Kamaiah, ILR (1988) Karnataka 786, in the following lines :
“Thus, partition according to Mitakshara law consists in a numerical divisions of the property. In other words, it consists in defining the shares of the coparceners in the joint properties, an actual division of the properties by metes and bounds is not necessary. The institution of a suit by a coparcener for partition of a joint family property is an undoubted and unequivocal intimation of his intention to separate himself from the rest of the joint family. Therefore, no sooner the suit is filed severance of joint status takes place. Once it happens, division of the title takes place. The decree is necessary only to apply the division of title and for allotting defnite properties according to the shares. As such, it is only consequential or the result of the severance. Therefore, as on the date of filing of the suit for partition, the 6th respondent was an unmarried daughter became entitled to a share. The fact that the suit was pending for a long time and in the meanwhile the marriage of respondent-6 was performed did not and could not affect the right that had accrued to respondent-6 as an unmarried daughter because the partition in the Mitakshara sense of the joint family properties took place on the filing of the suit for partition when she was an unmarried daughter.”
10. Female heirs have become recognised in law as early as from 1937 and such recognition had become perfect and complete with the advent of the Hindu Succession Act of 1956. In todays concept of equality before law, several states, in
particular, Karnataka and Tamil Nadu, have made even amendments to the Hindu Succession Act, by conferring right on the female heir in a coparcenery property as well; it is but necessary to hold that the plaintiff becomes entitled to a share on the date of death of her father when she was unmarried. Her subsequent marriage cannot take away the vested right, as found by the Division Bench in , referred to supra. In fact, in my opinion, the principles in ILR (1988) Karnataka 786 (supra) can as well be extended to include the rights of such heirs, who remains unmarried on the date of death of her father and a notional partition should be deemed to have taken place, as is now contemplated under Section 6 of the Hindu Succession Act.
11. In this view, the decree of partition granted by the Courts below is confirmed and the second appeal is dismissed. No costs.