JUDGMENT
Abdul Hadi, J.
1. Both these second appeals arise out of the same suit O.S. No. 281 of 1980 and the appeal therefrom in A.S. No. 164 of 1981, on the file of the Court of the District Munsif, of Melur and Subordinate Judge of Madurai, respectively.
2. The plaintiff is the appellant in S.A. No. 969 of 1982, and the sole respondent therein is the first defendant. Defendants 2 to 4 are the appellants in S.A. No. 1459 of 1982 and the first respondent therein is the plaintiff and the second respondent therein is the first defendant.
3. The plaintiff is the son through the first wife of one Nadukattan. The first defendant is the second wife of the said Nadukkattan, and the defendants 2 to 4 are the sons of Nadukkattan through the first defendant.
4. The first defendant died pending the second appeals and defendants 2 to 4 got themselves recorded as her legal representatives in S.A No. 1459 of 1982. In S.A. No. 969 of 1982, pursuant to the civil miscellaneous petitions filed by the appellant, defendants 2 to 4 were brought on record as the legal representatives of the first defendant/ respondent.
5. The suit is for declaration of the exclusive title of the plaintiff to the suit five items of properties, and for consequential injunction. However, in so far as the 5th item is concerned, it is represented by both counsel that there is no controversy about it in the second appeals. Hence, the second appeals are concerned only with items 1 to 4 of the suit properties, about which alone I make reference here.
6. The trial court granted decree for declaration to the extent of 6/10 shares of the plaintiff in items 1 to 4 of the suit properties and for permanent injunction against all the defendants, restraining them from interfering with the plaintiffs possession of the entirety of the said items 1 to 4.
7. However, the lower appellate court modified the decree given by the trial court, granting declaration in respect of 3/4 shares in items 1 to 4 of the suit properties. It also granted injunction against D-2 to D-4 alone, with reference to the entirety of Items 1 to 4 of the suit properties. It refused injunction against the first defendant on the ground that she is a co-owner, in respect of items 1 to 4 of the suit properties.
8. Admittedly, the suit property originally belonged to the joint family of the said Nadukkattan. It is also not in dispute that he died after the Hindu Succession Act came into force, and that even before his death, there was a partition in the above said family as borne out by Ex.A-1 partition deed of the year 1959, by which the suit property was allotted to the said Nadukkattan and the plaintiff, and some other properties were allotted to Defendants 1 to 4.
9. According to the plaintiff, after the above said partition, plaintiff and Nadukkattan held the suit properties as family property between them, and since Nadukkattan died, by survivorship the plaintiff got the entire suit properties to himself in which the defendants have no share.
10. But the defendants’ case is that subsequent to Ex.A-1 partition deed, the co-parcenary was not continued even between the plaintiff and Nadukkattan and they continued only as tenants in common and, therefore, there is no scope for survivorship and, when the said Nadukkattan died, defendants are entitled to their respective shares in the share that belonged to Nadukkattan.
11. The trial court accepted this case of the defendant and hence granted, as stated above, the declaration to the extent of 6/10 shares in the suit properties i.e., 1/2 share which originally belonged to plaintiff under the partition and 1/5th of the other half share which belonged to Nadukkattan, as per Ex.A-1 partition deed. It granted the other 4/10 shares to the defendants, on the footing that they are the other heirs of Nadukkattan.
12. However, the lower appellate court held that after Ex.A-1 partition deed, the suit properties were held by plaintiff and Nadukkattan only as co-parceners between themselves, but that there was no survivorship on the death of the said Nadukkattan, in view of the proviso to Section 6 of the Hindu Succession Act. That is why taking also into account Explanation 2 to Section 6 of the Act, the lower appellate court held that first defendant was entitled to 1/4th share in the suit properties, that the balance 3/4th share should go to the plaintiff and that defendants 2 to 4 would not get any share.
13. Now, the contention of the learned Counsel for the appellant in S.A. No. 969 of 1982 is that as per Explanation 2 to Section 6 of the Hindu Succession Act, the first defendant will not get any share in the suit property. The second submission is that even though the trial court held that the plaintiff was entitled to 6/10th share and the defendants were entitled to 4/10th share the defendants did not prefer any first appeal or cross-objection against the said finding.
14. I may dispose of the above said second submission first. This argument of the learned Counsel for the appellant cannot be accepted since the lower appellate court in working out the rights of the plaintiff has only consequently modified the share to which the defendants are entitled.
15. Now, coming to the first submission, it is to be seen whether Explanation 2 to the Proviso under Section 6 of the Hindu Succession Act would apply to the present case. In discussing this aspect, I proceed on the footing that after Ex.A-1 partition deed, the suit properties were held by the plaintiff and his father Nadukkattan as co-parcenars of the family of Nadukkattan and the plaintiff. No doubt, in the other S.A. No. 1459 of 1982, the only question to be seen is whether they continued as such co-parceners of the family of plaintiff and Nadukkattan or they were, after the said partition, only tenants in common. I shall deal with that aspect when I deal with S.A. No. 1459 of 1982.
16. The relevant portions of Section 6 of the Hindu Succession Act run as follows:
Devolution of interest in co-parcenary property:- When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara co-parcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the co-parcenary and not in accordance with this Act:
Provided that, if the deceased had left him surviving 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 the Mitakshara co-parcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.
Explanation 1:…
Explanation 2: Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the co-parcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein.
No doubt, the above said proviso would apply since the first defendant is a Class I heir of Nadukkattan. Explanation 2 to the said proviso of Section 6 of the Act says that nothing contained in the said proviso shall be construed as enabling “a person who has separated .himself from the co-parcenary before the death of the deceased” to claim on intestacy a share in the interest referred to therein. No doubt it is clear that defendants 2 to 4, having separated themselves from -the co-parcenary under Ex.A-1 partition deed, cannot claim inheritance from Nadukkattan when he died subsequently. But the question is whether the first defendant can be deprived of her share of inheritance from Nadukkattan in view of Ex.A-1-partition deed, as contended by the learned Counsel for the appellant. In other words, can it be said that she has separated herself from the co-parcenary, pursuant to Ex.A-1.
17. The contention of the learned Counsel for the defendants 2 to 4 is that the first defendant, being a female, cannot be a co-parcener and so the question whether she separated herself from the co-parcenary would not arise at all. Therefore, according to the said counsel Explanation-2 will not apply in so far as the first defendant is concerned and the lower appellate court’s decree granting her, 1/4th share in the suit properties has to be confirmed. In this connection, he relied on the decision in Basavalingamma v. Sharadamma A.I.R. 1984 Kam. 27 : (1983)2 Karn.L.J.20.
18. On the other hand, the learned Counsel for the appellant contends that Basavalingamma v. Sharadamma A.I.R. 1984 Karn. 27 : (1983)2 Kam.LJ.20, has not laid down the correct law, itself not having taken into account what has been held in the decision of the Supreme Court, Controller of Estate Duty, Madras v. Alladi Kuppuswami A.I.R. 1977 S.C. 2069 : (1977)2 M.L.J. (S.C.) 20 : (1977)2 S.C.J. 336 : (1977)3 S.C.C. 385 : (1977)2 I.T.J. 214, while dealing with the scope of the interest of a Hindu widow, after the death of her husband, pursuant to the Hindu Women’s Rights to Property Act, 1937. He also relies on the decision in V. Tulasamma v. Vaddeboyina Sesha Reddi A.I.R. 1977 S.C. 1944 : (1978)1 S.C.J. 29 : (1978)1 An.W.R. (S.C.) 6 : (1977)3 S.C.C.99 : (1977)3S.C.R. 261, to show the nature of the interest of a Hindu female even prior to Hindu Succession Act, 1956. He also submits that there is a direct decision in his favour, namely, Venubai v. Saraswathi Bai, 1980 Mah.L.J. 907. In this regard he cites the following passage in Mayne’s Hindu Law and Usage at page 935,
It was however held in Venubai v. Saraswathi Bai, 1980 Mah.L.J. 907, that a predeceased son’s widow who had obtained a share in a suit for partition is disabled from claiming any share in her father-in-law’s undivided interest.
19. I shall now consider the rival submissions. In Controller of Estate Duty, Madras v. Alladi Kuppuswami A.I.R. 1977 S.C. 2069 : (1977)2 M.L.J. (S.C.) 20 : (1977)2 S.C.J. 336 : (1977)3 S.C.C. 385 : (1977)2 I.T.J. 214, it has been held thus:
It must follow as a logical corollary that though a Hindu widow cannot be a co-parcener, she has coparcenary interest and she is also a member of the coparcenary by virtue of the rights conferred on her under the Act of 1937.
Thus, the Supreme Court has held that the widow under the Act of 1937 is “a member of the coparcenary”. Further, the Supreme Court in the said decision observes that the Hindu Coparcenary has six essential characteristics, two of which are right of ownership by birth and right to demand partition. Of these six characteristics, the Supreme Court holds that except right by birth, a widow under the aforesaid Act of 1937, has got every other right flowing from the other five characteristics, including right to demand partition. After holding so, the Supreme Court has observed as above extracted. So, according to the Supreme Court, the first defendant will be a member of the co-parcenary of Defendants 1 to 4, plaintiff and plaintiffs father. If that is so, particularly when she has also a right to separate herself from the coparcenary, I have to necessarily hold that Explanation 2 of Section 6 of the Hindu Succession Act will apply to her case also.
20. Basavalingamma v. Sharadamma A.I.R. 1984 Kam. 27 : (1983)2 Karn.L.J.20, has proceeded on the footing that the widow, being a female cannot be a member of the coparcenary. The relevant observation of the Karnataka High Court, in relation to Explanation-2 is as follows:
The question of separating from the coparcenary arises only when a person is a member of the coparcenary. A person who is never given status as a coparcenary has no occasion to separate himself or herself from the coparcenary. The sentence has to be read as a whole and reading the sentence as a whole and in its proper grammatical setting, I am satisfied that the explanation speaks of ‘a coparcener who has separated himself from the coparcenary before the death of the deceased or any of his heirs’ and it does not refer a female heir who has separated from the co-parcenary.
21. But in view of the above said decision of the Supreme Court in A.I.R. 1977 S.C. 2069 with due respect I have to hold that the reasoning of the decision in Basavalingamma v. Sharadamma A.I.R. 1984 Kam. 27 : (1983)2 Karn.L.L20 and the decision reached by it are not correct.
22. No doubt, the other decision, cited by the learned Counsel for the appellant, viz., V. Tulasamma v. Vaddeboyina Sesha Reddi A.I.R. 1977 S.C. 1944 : (1978)1 S.C.J. 29 : (1978)1 An.W.R. (S.C.) 6 : (1977)3 S.C.C.99 : (1977)3 S.C.R. 261 also lends support to his contention. There, the Supreme Court has held as follows:
…As the wife is in a sense a part of the body of her husband, she becomes co-owner of the property of her husband though in a subordinate sense. Secondly, we have already pointed out that the claim of a Hindu female for maintenance is undoubtedly a pre-existing right and this has been so held not only by various courts in India, but also by the Judicial Committee of the Privy Council and by this Court. It seems to us, and it has been held as discussed above, that the claim or the right to maintenance possessed by a Hindu female is really a substitute for a share which she would have got in the property of her husband.
Therefore, the decision of the lower appellate court that the first defendant is entitled to 1/4th share in the suit property since the abovesaid Explanation 2 will not apply to her, is not correct.
23. Then, coming to the contention of defendants 2 to 4, particularly in S.A. No. 1459 of 1982, that there was no coparcenary between the plaintiff and Nadukkattan after Ex.A-1, but there was only co-ownership between the two after Ex.A-1 partition deed I am unable to accept the said contention. In this connection Sengoda Gounden v. Muthu Goundan (1924)I.L.R. 47 Mad. 567(D.B.) is directly in favour of the contention of the learned Counsel for the appellant. There, it has been held that though some of the members of a joint Hindu family sued for partition and recovery of their shares from the other members of the family, the suit and the decree do not necessarily divide the plaintiffs inter se..
24. Unless there is definite evidence to show that after Ex.A-1 partition deed, the plaintiff and his father continued only as co-owners, it has to be held that they continued only as co-parceners between themselves. The learned Counsel for the defendants 2 to 4 also could not point out any other decision contra. No doubt he relied on the decision, Kalyani (dead.) by L.Rs. v. Narayanan A.I.R. 1980 S.C. 1173, but that has no application at all to the present facts.
25. The net result is that the judgment and decree of the courts below in so far as the declaration relief in relation to Items 1 to 4 of the suit properties are set aside and the plaintiff is granted a decree for declaration to his exclusive title to the entirety of Items-1 to 4 of the suit properties, and in so far as the relief of injunction is concerned, with reference to the above said Items 1 to 4 of the suit properties, the judgment and decree of the trial court are restored, and accordingly, the judgment and decree of the lower appellate court are modified. In other words, the relief of injunction is granted to the plaintiff as against all the defendants in respect of Items 1 to 4 of suit properties. The judgment and decree of the courts below in relation to the plaintiffs lease hold right to Item-5 of the suit properties are confirmed.
26. The S. A. No. 969 of 1982 is allowed accordingly with costs. S.A. No. 1459 of 1982 is dismissed. There will be no order as to costs.