JUDGMENT
1. This is defendants’ second appeal from the judgment and decree dated 23-10-1990 passed by Sri R.H. Raddi, Principal Civil Judge and C.J.M., Shimoga in Regular Appeal No. 41/88 dismissing the defendants’ appeal and confirming the judgment and decree dated 20-2-1988 given by Sri. C.G. Hungund, Principal Munsiff, Shimoga, in Original Suit No. 589/1977, decreeing the plaintiffs-respondents’ suit for declaratory decree declaring the plaintiffs-respondents to be the absolute owner of the suit schedule properties as well as for permanent injunction directing defendants (appellants) not to interfere with the plaintiffs’ peaceful possession and enjoyment of the property.
2. The facts of the case in brief are that, the present plaintiffs-respondents filed the suit for declaration that plaintiffs alone have got right title and interest in the suit properties and are in possession of the same. Plaintiffs have also prayed for grant of decree for permanent injunction. The suit properties are more specifically described in the schedule attached to the plaint.
3. The original owner of the suit properties was one Karadi Erappa. Karadi Erappa had two daughters known by names Halamma and Eramma. It is as per the material on record which is not in dispute between the parties, that the original owner Erappa died in the year 1920. It is also not in dispute that Karadi Erappa at the time of his death had no son but had only two daughters, as his wife had predeceased him. So at the time of death of Karadi Erappa, there were only two daughters who on the death of Karadi Erappa, inherited the properties left by Karadi Erappa in the year 1920. It is also not in dispute that Eramma was married to Karadi Basappa and Halamma was married to Karadi Basappa and Halamma was married to Karadi Mallappa. Eramma died issueless. The case of the plaintiffs has been that after the death of Eramma, Halamma continued to be in actual possession and enjoyment of the suit schedule properties who in the year 1951 executed a registered gift deed in favour of the 1st plaintiff. She had also executed a registered Will on 6-10-1977 in favour of the 1st plaintiff. Plaintiffs’ case has been that defendants had no title, right in the properties, but inspite of that they started claiming the rights in suit property. Plaintiffs’ case has been that plaintiffs have filed a suit against Karadi Basappa, husband of Eramma, who tried to meddle with the plaintiffs’ possession and enjoyment of the suit schedule properties in O.S. No. 37/1951-52 which ended in a compromise and under compromise, Karadi Basappa was allowed to cultivate the land till his life-time. Plaintiffs alleged that the 1st defendant has claimed to be the kept mistress of said Karadi Basappa. Defendants 2 and 3 have no relationship of whatsoever with the family of Karadi Basappa. In such circumstances, plaintiffs claimed the reliefs in the suit as has been mentioned above. The cause of action has been alleged to be the act of
criminal trespass committed by the defendants on 27-10-1977 and cutting of 576 loads of crop.
4. The defendants have filed their written statement. They did not dispute that death of Karadi Erappa had taken place in the year 1920. It has also been admitted that Karadi Erappa had performed the marriage of his two daughters Halamma and Eramma with two brothers Karadi Mallappa and Karadi Basappa. What the defendants have disputed is that Halamma and Eramma succeeded to the estate of deceased Erappa as joint owners with right of survivorship. But they contended that there was a division between Eramma and Halamma and Sy. No. 44/1 had fallen to the share of Eramma and Sy. No. 71/1 had fallen to the share of Halamma and since then, defendants claimed to be in exclusive possession and enjoyment of the properties. Defendants asserted that defendant 1 is the legally wedded wife of Karadi Basappa, husband of Eramma since after the death of Eramma. The defendants disputed the plaint averment that after the death of Eramma, the said property was inherited as well by Halamma. Defendants denied that Halamma inherited the entire property of Karadi Erappa by virtue of survivorship. They asserted that by virtue of deed of Will executed, the plaintiffs did not get any right or title in the properties which had been executed and compromise decree has not been binding. Appellants claim themselves to be in possession of the suit property and they asserted that their possession has been confirmed by the Sub-Divisional Magistrate, Shimoga. Therefore, defendants asserted that the suit of the plaintiffs is not maintainable in view of the earlier suit No. 91 of 1976.
5. On the basis of the pleadings of the parties, Trial Court framed the following issues.-
1.Whether the plaintiffs prove that they are the owners of the suit schedule property?
2.Whether the plaintiffs further prove that they are in possession of the suit property as alleged?
3.Whether the plaintiffs further prove the alleged interference with their possession and enjoyment of the suit property by the defendants?
4.Whether the plaintiffs are entitled to the declaration sought for?
5.Whether the plaintiffs are entitled to recovery of hay with corn alleged to have been removed on 27-10-1977 or the equivalent money value as claimed in the suit?
6.Whether the plaintiffs are entitled to the permanent injunction sought for?
7.To what relief or reliefs the parties areentitled to?
Additional issue.-
8. Whether the plaintiffs prove that the deceased defendant 1 is the kept mistress of one Basappa?
6. On the basis of the evidence on record, the Trial Court held that the property was inherited by two daughters of Karadi Erappa, namely, Halamma and Eramma some time in 1920. But during Eramma’s lifetime, as it was inherited from father it became her Stridhana property and so it could not have passed on to her own heirs, after the Eramma’s death. That on the death of Eramma, Halamma, the surviving daughter of deceased Karadi Erappa could inherit the property. It further held that the defendants failed to prove any partition between Halamma and Eramma. The Trial Court further held that Eramma died in 1940 and Halamma inherited the said properties being the only surviving heir and after the enforcement in 1956 of the Hindu Succession Act, Halamma became the absolute owner of the Schedule properties. It further found that in view of this position under law, 1st plaintiff being the daughter and plaintiff 2 being the grandson of deceased Halamma, who are surviving heirs of Halamma, succeeded to her property and the Trial Court found plaintiffs to be in possession. Therefore, it decreed the plaintiffs’ suit declaring plaintiffs 1 and 2 i.e., present respondents to be absolute owners of the suit schedule properties and restrained the defendants from interfering with the plaintiffs’ possession. Having felt aggrieved from the judgment and decree of the Trial Court, defendants filed first appeal and the lower Appellate Court affirmed the finding of the Trial Court as well as the decree passed by the Trial Court and dismissed the defendants’ 1st appeal; The defendants have come up in second appeal before this Court under Section 100 of Code of Civil Procedure.
7. I have heard Smt. Vasudha holding brief for Sri G.S. Vishweswara, learned Counsel for the appellants and Sri Jayakumar S. Patil, learned Counsel for the respondents.
8. This second appeal had been admitted on the following questions vide order sheet dated March 26, 1991.
(1)There being no dispute as to the year of death of Eramma who succeeded to her father, jointly with Halamma, her sister, whether she acquired any interest in the property which could be held to be Stridhan as defined by Section 10 of the Hindu Women’s Right to Property Act, 1933 of the erstwhile State of Mysore”?
(2)If on her death after marriage without issues whether such interest would vest on her heirs or successors such as husband Basappa (since deceased by virtue of provision contained) in accordance with Part II of sub-section (1) of Section 12 of the aforementioned Mysore Act?
(3)Incidentally substantial question would also arise as to whether in the absence of partition prior to the death of Eramma the surviving co-owner Halamma would become the sole owner of the property of her father?
9. Arguments of the learned Counsel for the parties primarily reveal that the prime question to be decided in this appeal is whether Eramma
and Halamma succeeded to the property as limited owners and whether the property inherited by them was Stridhan property in the hands of Eramma or did it become a Stridhan property of Eramma to the extent of her share under Hindu Women’s Right to Property Act, 1933 and did it pass on to her husband namely Karadi Basappa.
10. These contentions made on behalf of the appellants’ Counsel, have been hotly contested on behalf of the respondents by Sri Jayakumar S. Patil.
11. It has been contended on behalf of the respondents that it is the well-settled principle of Hindu Law that properties inherited by a female heir from her husband is not her Stridhana property, she is the limited owner. It has further been contended that if two widows or two or more daughters of a male Hindu inherit the property from the male, then they take the interest or the interest in the property, subject to law of survivorship and on the death of either, the interest passes to the next heir of last male holder from whom they inherited and in the case of co-widows, on the death of one of the widows it goes to the other widow, in the case of two or more daughters inheriting together, on the death of any one, it passes by survivorship to the other daughter. Learned Counsel for the respondents contended that in the present case, Mysore Hindu Law Women’s Rights Act, 1933, may not be applicable, in view of the fact that in the year 1920, when Erappa died this Act was not in operation, it did not see the light of the day even. This Act No.10 of 1933, did come into force on the First day of January, 1934. Therefore the interest succeeded by Halamma and Eramma in the property from their father could not be said to be Stridhana. It has been submitted by the respondents that the provisions of the Act No. 10 of 1933 are not retrospective in operation and as such on the death of Eramma, her husband did not succeed, as Eramma had died some time in 1930 as well and even if she would have died later on than 1930 i.e., even after the coming into force of the Act, her interest would have remained subject to law of survivorship and her interest could pass on to next heir of original male from whom she had succeeded, namely had passed on to Halamma, and not on the husband of the Eramma. It has further been contended that on coming into force of Hindu Succession Act, 1956, as well, Halamma became full owner. She had executed a gift deed on 17-1-1951 and later the Will in favour of the first plaintiff on 6-10-1977. Halamma having died after coming into force of Hindu Succession Act, 1956, the Court below rightly held that the respondents i.e., plaintiffs 1 and 2 being the daughter and grandson of Halamma succeeded to her property and as full owners in possession of the property and were entitled to decree as claimed for declaration of title as well as for injunction and as such the Trial Court rightly decreed the plaintiffs-respondents suit and the lower Appellate Court did not commit any error of law in dismissing the defendants’ appeal and in affirming the judgment and decree of the Trial Court.
12. I have applied my mind to the contentions of the learned Counsel for the parties. The admitted facts are that Erappa (Karadi Erappa) had died in the year 1920. He had only two daughters and no other neither son nor widow to succeed to his property or interest in property, namely Halamma and Eramma. The two daughters succeeded to the interest in property from their father namely the property in dispute. The position under the Hindu Law prior of Hindu Succession Act had been well settled with respect to the woman succeeding or inheriting the property of her father or husband.
13. In the case of Bhugwandeen Doobey v Myna Baee, it has been held by their Lordships of the Privy Council with reference to more than one widow, may be two or three — “that the estate”of two widows, who take their husband’s property by inheritence” is one estate. “The right of survivorship”, it is there said, is so strong, that the survivor takes the whole property, to the exclusion, even, of daughters of the deceased widow. In the case of Aumirtalall Base and Others v Rajoneekant Mitter and Others, their Lordships referred to the above case of Bhugwandeen Doobey. They also referred to the decision in the case of Strimuttu Muttu Vezia Ragunada Rani v Dorasingay Tevar, that is (6) Madras High Court Report 310 as well, where it was held that the daughters to whom as a class paternal property descents, take a joint interest, with rights of survivorship. At page 126, their Lordships further observed as under.-
“But if Sarodamoye and her sister Nittokally, upon the death of their mother, together constituted their father’s heir, then, upon the death of Sarodamoye the property which descended to the two sisters jointly survived to Nittokally, and her disqualification to inherit at that time did not destroy the right of survivorship which she had previously acquired by inheritance”.
14. In the case of Raja Chelikani Venkayyamma Garu v Raja Chelikani Venkataramarutyyamma, at page 164, observations in relation to law in case of women is as under.-
“The law of inheritance in the case of women is left in great obscurity by the Mitakshara. The subject is dealt with in Chapter II, Section 11 and has more than once been considered by this Board. The nature of a widow’s estate was settled in two cases in 11 Moore’s Indian Appeals, pp.139 and 487; and the nature of a daughter’s estate was considered in Chotay Lal v Chunno Lal, (1878) Law Reports, 6 IA 15. It was there decided that under the law of the Mitakshara a daughter’s estate inherited from the father is a limited and restricted estate only and not Stridhan. Upon her death the next heirs of her father succeed thereto. In the case of Chattar Singh and Others v Hukum Kunwar, ILR LVIII58) All. 391, Division Bench of Allahabad High Court had to
consider the question of the two daughterssucceeding their father. The Division Bench observed.-
“We are satisfied that this is a true proposition of law and that the matter is concluded by authority. In the case of Gauri Nath Kakaji v Gaya Kaur, their Lordships of the Privy Council said.-
“The general law is so well-settled that it scarcely requires restatement. If a Hindu dies leaving two widows, they succeed as joint tenants with a right of survivorship. They are entitled to obtain a partition of separate portions of the property so that each may enjoy her equal share of the income accruing therefrom. Each can deal as she pleases with her own life interest, hut she cannot alienate any part of the corpus of the estate by gift or Will so as to prejudice the rights of the survivor or a future reversioner. If they act together they can burden the reversion with any debts contracted owing to legal necessity, but one of them acting without the authority of the other cannot prejudice the right of survivorship by burdening or alienating any part of the estate” “.
15. Their Lordships further referred to the case of Aumirtolall Base, supra, at page 127. Their Lordships of the Privy Council, observed, “In the case of Aumritolall Base, their Lordships of the Privy Council have quoted with approval a proposition laid down by Mr. Justice Morgan, namely that, like widows, the two daughters collectively were, in a legal sense, one heir to their father. The reference was to daughters holding a Hindu father’s estate. It seems to us that this is quite conclusive upon the question whether there is any difference between the position of widows and the position of daughters in this respect. We are satisfied that the position is the same and consequently that one of the daughters in this case could not alienate any part of the joint estate to the prejudice of the other”.
16. That the position emerges under the Hindu Law prior to Hindu Succession Act of 1956, that under Hindu Law the widows inheriting their husband or the daughters, two or more inheriting the father’s estate jointly, they could and did inherit the property as limited estate, that is life estate and subject to the law of survivorship, and the property inherited by them could not be termed to be their Stridhana property. That being the position of law no doubt in the year 1920, the two daughters of Karadi Erappa, namely Halamma and Eramma succeeded to the father’s estate as life estate holders or as life interest and subject to law of survivorship or I may say on the death of a daughter her estate had to go to heirs of her deceased father and not to her own heirs and any partition even if entered into between them, it could not be taken to be in any way damaging the doctrine of survivorship, it could only be taken as the arrangement to enjoy the income of the property during their life, on the death of either it could pass on to the other surviving daughter, being heir of the father and not to her husband.
17. It has been contended that Mysore Act No. 10 of 1933 (Mysore Hindu Law Women’s Rights Act, 1933) had been in force on the First day of January, 1934. The question is what is the effect of the provisions of this Act. This Act no doubt governs succession to interest in the property, after coming into force of the Act, it had the effect of regulating the succession to the property in case of a male Hindu dying intestate. The Act declare that it shall come into force on the first day of January 1934. The Act became applicable to persons who but for the passing of this Act, would have been subject to the law of Mitakshara in respect of matters for which the provisions are contained in the Act. Section 3 does not reveal that it is retrospective in operation. Section 5 of the Mysore General Clauses Act, 1899 provides and deals with the coming into operation of enactments. It reads as under.-
“5. (1) Where any Mysore Act is not expressed to come into operation on a particular day, then.-
(i)in the case of a Mysore Act made before the commencement of the Constitution, it shall be deemed to have come into operation on the day on which it received the assent of the Maharaja;
(ii)in the case of Mysore Act made after the commencement of the Constitution, and before the commencement of the Mysore General Clauses (Amendment) Act, 1953, it shall be deemed to have come into operation on the day on which it received the assent of the Rajpramukh or the President, as the case may require;
(iii)in the case of a Mysore Act made after the commencement of the Mysore General Clauses (Amendment) Act, 1953, it shall come into operation on the day on which the assent thereto of the Rajpramukh or the President, as the case may require, is first published in the official Gazette.
(2) Unless the contrary is expressed, an Act shall be construed as coming into operation immediately on the expiration of the day preceding its commencement.
(3) In every Act referred to in clause (iii) of sub-section (1), the date of publication in the official Gazette shall be printed either above or below the title of the Act and shall form part of the Act”.
18. A reading of the Section 5 of the Act reveals that if an Act expressly provides that it shall come into operation from a particular day, it will come into operation from that day, but wherein Mysore Act does not so express, as to its coming into force on a particular day, then, as clause (i), the Mysore Act-made before the coming into force of the Constitution-shall be deemed to have come into operation on the day on which it received the assent of Maharaja and in cases Mysore Act made after the commencement of the Constitution and before the commencement of Mysore General Clauses (Amendment) Act, 1953, it has to be
deemed to have come into operation on the day on which it received the assent of the Rajpramukh or the President; or Acts made after the commencement of the General Clauses Act, 1953, it shall come into operation on the day on which the assent thereto of Rajpramukh or the President as the case may be, is first published in the Official Gazette. Clause (ii) provides that unless contrary intention is expressed in the Act, the Act shall be construed as coming into operation immediately on the expiration of the day preceding its commencement.
19. Keeping in view these provisions of Section 5 of the Mysore General Clauses Act, the Act by itself has to be taken to have come into operation from First day of January, 1934. There is nothing in this Section to indicate to the contrary that it will have retrospective operation. It appears to be prospective in its operation.
20. Section 4 of the Hindu Law Women’s Rights Act provides for succession to a male Hindu dying intestate and it provides that in case of a male Hindu dying intestate, succession in the first place vests in the members of the family of the propositus mentioned below in the order given in that Section. Use of expression “shall in the first place vest in the members of the family” indicates that Section 4(1) is prospective in operation. A reading of expression “shall pass an order of succession, as in sub-sections (2), (3) and (4) also reveal it to be prospective. Sub-section (5) of Section 4 reads as under.-
“(5) The members (where there are more than one) of each of the groups indicated above by Roman numerals and of the groups corresponding to them under sub-sections (3) and (4) shall among themselves, take simultaneously and in equal shares (per capita), provided that the male issue of the propositus shall take according to stock (per stirpes)”.
21. A reading of Section 4, sub-sections (1), (2), (3), (4) and (5) reveals that the section is prospectively operative. Section 5 of the Mysore General Clauses Act, provides vide, sub-section (1), clauses (iii) and (iv) and Section 2 thereof, that an Act shall be construed as coming into operation immediately on the expiration of the day preceding its commencement, unless the contrary intent is expressed i.e., unless contrary ‘ intention is contained in express terms in the Act, it is to be taken to be prospective in operation. A perusal of Sections 1, 3 and 4 only reveal the intention of the Legislature that the provisions of the Act have been prospective. Section 10 of the Act 10 of 1933 defines “Stridhana”. It reads as under.-
“10. (1) “Stridhana” means property of every description
belonging to a Hindu female, other than property in which she
has, by law or under the terms of an instrument, only a limited
estate.
(2)Stridhana includes.-
(a) all ornaments and apparel belonging to a female;
(b) all gifts received by a female at any time (whether before, at or after her marriage) and from any person (whether her husband or other relative or a stranger);
(c)property acquired by a female by her own exertions, skill, learning or talents;
(d) property acquired by a female by purchase, agreement, compromise, finding or adverse
possession;
(e) the income and savings from income, of all property whatsoever vested in a female, whether absolutely or otherwise;
(f)property obtained by a female as her share at a partition; and
(g)property taken by inheritance by a female from another female and property taken by inheritance by a female from her husband or son, or from a male relative connected by blood except when there is a daughter or daughter’s sons of the propositus alive at the time the property is so inherited.
(3) All gifts and payments other than or in addition to, or in excess of, the customary presents of vessels, apparel and other articles of personal use, made to a bride or bridegroom in connection with their marriage or to their parents or guardians or other persons on their behalf, by the bridegroom, bride, or their relatives or friends, shall be the Stridhana of the bride”.
21-A. Section 10(1) per se reveals that property of every description belonging to a Hindu female, other than property in which she has, by law or under the terms of an instrument, only a limited estate. It means that according to Section 10 of the Act, property in which a Hindu woman has a limited estate by virtue of law or under the terms of an instrument, she has only limited estate, will not be taken to be included within the framework of Stridhana. Section 10(2) is illustrative. It provides that a property taken by inheritance by a female from another female or any property taken by a female from her husband or a son or a male relative connected by blood, except in cases where or when there is a daughter or a daughter’s son, of the propositus alive at the time the property was inherited, is also included in the Stridhana property. It means in case the property inherited by a female either from another female or from her husband, or son or any male relative connected by blood, if there is a daughter or daughter’s son of the propositus alive, at the time the property was so inherited, in such a case that property will not be taken to be Stridhana property. But in cases where there is no daughter or daughter’s son of the propositus alive at the time the property was so inherited, such a property may be deemed to be Stridhana property.
22. Chapter IV particularly deals with the women’s limited estate. Section 16 per se reveals that in property other than Stridhana female takes a limited estate. Proviso to Section 16 further provides that to acquire full estate, for a woman having a limited estate in any property, she had to obtain the release of the entire estate in such property or the entire interest in her favour. Section 21 of Act 10 of 1933, provides that on the determination of the limited estate of a female owner, the property comprised in such estate shall pass to the person who at the time is the next heir of the last full owner.
23. A perusal of the scheme of these provisions which relate to succession under the Act clearly reveals.–(1) that the Act is prospective; (2) that it has not given a complete good-bye to the concept of limited estate of a female owner even after coming into force of the Act of 1933. The concept of limited owner was continued to be in operation, such as in the case of property inherited by a female from another female or the property inherited by female from her husband or a son or from a male relative connected with blood, if and when there is a daughter or daughter’s son of the propositus alive at the time the property was so inherited, such a property has not been included within the category of Stridhana, in which a woman had a full estate.
24. Thus considered the scheme of Section 10(1) it conies out that any property in which a female heir at the commencement of the Act, either under law or under terms of the instrument had limited estate, such property has also not been included within the framework of expression “Stridhana”. The expression, ‘except when there is a daughter or daughter’s son to the propositus alive at the time the property was inherited’ is an exception. But the property inherited by a female either from another female or from her husband or son or from any male relative connected by blood, that is if in case where there is a daughter or daughter’s son to the propositus, then the females succeeding to the property of another female or the property of her husband, son or male relative, such as father, shall take only limited estate, and not full estate. It cannot be taken that this exception is only with reference to inheritance of property by a female from any male relative connected by blood and not to inheritance from other male that is husband or son.
25. My attention had been invited to the earlier decision of this Court in the case of Dyavamma and Another v Siddegowda and Another , where it had been laid down that in view of the force of Section 5 of the Act, interest of co-widows succeeding estate as joint tenants will be converted and stand altered to a tenancy common on the coming into force of the Act, in view of sub-section (4) of Section 5. No doubt in that case, two widows inherited the properties from their husband in 1912. In this decision with all due respect to Their Lordships of the Division Bench, the attention of the Court had not been invited to the provisions
of Section 5 of the Mysore General Clauses Act, which provides if the provisions of Mysore Act provide that it shall come from a particular day into operation, it shall be deemed to come into operation from that date. Sub-section (2) provides that unless contrary intention is expressed, means expressly provided, ordinarily the Act will be deemed to come into operation immediately on the expiration of the date preceding its commencement. So ordinarily as per this section, the Act has to be presumed and to be taken to be operative prospectively, unless there is any express provision to the contrary. In Section 5(2) of the Mysore General Clauses Act, expression used is ‘unless the contrary is expressed’ which means that if the Act has to take retrospective operation, then such an intention should be expressed in the Act i.e., expressly provided in the Act and is not to be implied. When Section 5 so provides, we cannot imply such an intention of the Legislature by applying the doctrine of implication. Section requires that Legislative intention, that Act will have retrospective operation and effect, should be clearly expressed one and not otherwise. It appears the attention of the Court was not drawn to this provision and expression ‘unless the contrary is expressed’. Therefore, the decision cited by the learned Counsel for the appellant cannot be said to be binding precedent, as it suffers from doctrine of per incuriam as per decision of Supreme Court in the case of A.R. Antuley v U.S. Nayak. Therefore, I do not think it necessary to refer this matter to the larger Court. Thus looking to the scheme of the Act and it being prospective in operation, there being nothing in the Act to indicate that there has been intention of the Legislature to convert the limited state of Hindu female into full owner, if she had acquired any property earlier to the coming into force of the Act as a limited owner.
26. In my opinion the benefit of the provisions of the Act of 1993 cannot confer nor can the provision be construed to affect the status of Halamma and Eramma who succeed to the estate of their father on their father’s death in 1920 with a limited life estate. The property inherited by them continued to be of limited status and did not stand converted into Stridhana property, particularly in view of the expressions used in the section other than the property in which she has by law or under instrument only limited estate. Under the law as it existed immediately before the First of January, 1934, Halamma and Eramma possessed only limited estate. So it could not be covered and be described as Stridhana property under Section 10(1), nor under Section 10(2) also, as Erappa had left two daughters and Halamma was also alive at the time of death of Eramma. Therefore, there being a limited estate vesting in Eramma at the time of her death, as such even in view of Section 21 of the Act 10 of 1933, which may be said to have become operative at the time of the death of Eramma in 1940 or 1945, on the termination of limited estate, the estate had to pass to the person, who at the time was the next heir of the full owner, namely Halamma, the Erappa’s other daughter. So I may take, either this interest had passed on to Halamma
at the time of death of Eramma in 1940 under Section 21 of the Act or by virtue of the principle of survivorship.
27. It has been urged on behalf of the respondent that in the evidence it has come that Eramma had died 50 years earlier or some time in 1930, that is prior to the coming into force of the Act. So far as that question is concerned, I have perused the evidence produced on behalf of the plaintiff i.e., witnesses and that evidence negatives the contention of the plaintiff that Eramma had died some 40 to 45 years prior to the date of evidence. Evidence had been recorded in this case by the Trial Court some time in 1986 that brings the death of Eramma to be 1940, that is after the coming into force of the Act and that there has been a finding of fact recorded by the Court and the finding could not be challenged by the respondent. So Eramma died some time in 1940 or so, when the Act had already come into force, but under the provisions of the Act 10 of 1933, the position of Eramma did not improve. The property in her hand or half share of the property in her hand at the time of her death was nothing but a limited life estate. It was not Stridhana and she was not the full owner and so on her death, the property or interest in the property which Eramma had did not pass on nor was succeeded by inheritance by her husband. It did pass on to Halamma the other daughter by survivorship as well as under Section 21 of the Act No.10 of 1933. Halamma died after the coming into force of the Hindu Succession Act, 1956. She was possessed of entire estate of her father, no doubt as a limited owner prior to the coming into force of the Hindu Succession Act, but by virtue of Section 14 of the Hindu Succession Act, did become the full owner of the property and as such was competent to dispose of that property as well as to execute the Will in favour of her daughter and daughter’s son in 1977. If there would have been no Will, as Halamma having become full owner on coming into force of Hindu Succession Act by Section 14 thereof, the property could be succeeded and so succeeded and inherited by plaintiffs 1 and 2, being the son and daughter of Halamma.
28. In view of this position, in my opinion, defendants-respondents did not acquire any right or title to the property nor they were not entitled to interfere with the possession of the plaintiff.
29. Learned Courts below, that is the Trial Court as well as the First Appellate Court have rightly held that the plaintiffs-respondents were the sole and absolute owners of the property. As mentioned earlier, with reference to the Privy Council decision, even a partition amongst two daughters could not and did not affect the principle of survivorship or application of survivorship.
30. In my opinion the judgment and decree given by Courts below do not suffer from any error of law or substantial error of law. The second appeal is devoid of merits and as such is hereby dismissed. The judgment and decree of the Court below decreeing the plaintiffs suit is confirmed in toto. No costs.