JUDGMENT
K.A. Swami, J.
1. Learned Counsel Sri B.K. Manjunath, files power for the appellants. Sri Hande, Advocate, has also given his consent. Accordingly the vakalath of Sri B.K. Manjunath is accepted and he is permitted to appear for the appellants.
2. This appeal by defendants 1,2,5 and 7 is preferred against the judgment and decree dated 21-8-1975 passed by the learned Civil Judge, Udupi in O.S. No. 18/1970.
3. The learned trial Judge has passed a preliminary decree for partition and separate possession of half share of the plaintiff who was respondent-1 in the appeal and who died on 12-2-1987.
4. In this appeal, it is not in dispute that the plaintiff claimed half share in the suit schedule properties on the basis that she was the heir of her husband late Koteshwara Adiga who died as a member of the Mitakshara coparcenery consisting of himself and defendants 1 to 3 leaving an interest in the Mitakshara coparcenery property and she was entitled to have the share of her husband partitioned.
5. The suit properties belonged to the joint family consisting of Koteshware Adiga and the defendants. The trial Court has held that the genealogy of the family is proved. The correctness of the said finding is not disputed before us. The genealogy of the family which is held as proved by the trial Court is as follows:
Koteshwara Adiga
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_________________________|_____________________
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Subraya Adiga Ramanna Adiga
____|__________________ ___________|_________
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Nageshwara Settharma Rangayya Ramayya Koteshwara = Kaveramma
Adiga Adiga Adiga Adiga (Plaintiff)
(D-1) (D-2) (D-3) (Died on
| 1-3-52)
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___________________________|_______________________________
| | | | | | |
Subraya Laxmi- Chandra- Manjunatha Venkatesha Suresha Krishna
(D-4) narayana shakhara (D-9) (D-10) Murthy
Adiga Adiga (D-8) (D-1)
(D-5) (D-6)
6. The plaintiff Smt. Kaveramma – the widow of late Koteshwara Adiga died during the pendency of this appeal on 12-2-1987. One Sri K. Janardhana Udupa claiming to be the brother of the deceased-plaintiff Smt. Kaveramma claims that there are no heirs of the deceased falling in Clauses (a), (b) and (c) of sub-section (1) of Section 15 of the Hindu. Succession Act, 1956 (hereinafter referred to as the ‘Act’) ; that being the brother of the deceased, the falls in Clause (d) of Subsection (1) of Section 15 of the Act as he being the son of the father of the deceased-plaintiff, is an their to her father. Whereas defendants 1 to 3 claim that they being the heirs of the late husband of the deceased plaintiff and the property i.e., the share awarded under the decree under appeal inherited by the deceased plaintiff was that of her husband, therefore as per Clause (b) of sub-section (2) of Section 15 of the Act, they are entitled to it in exclusion of all other heirs of the deceased plaintiff.
7. As the decision on the above contention results in the disposal of the appeal itself, we have heard the whole appeal.
8. In the light of the aforesaid contention the following point arises for consideration :
“Whether it is defendants-1 to 3 or K. Janardhana Udupa entitled to the share awarded to the deceased plaintiff -Smt. Kaveramma by the decree under appeal ?”
9. After the death of the 1st respondent on 12-7-1987 an application was filed by the appellants stating that as the 1st respondent-plaintiff died leaving behind no heir, the appeal be allowed and the suit be dismissed. However, the aforesaid person K. Janardhana Udupa filed an application stating that he is the brother of the deceased Kaveramma (plaintiff) and there are no heirs failing under Clauses (a), (b) and (c) of Sub-section (1) of Section 15 of the Act, he being the heir of the father of the deceased’s plaintiff, falls in the category of the heirs mentioned in Clauses (d) of Sub-section (1) of Section 15 of the Act, therefore, he is entitled to come on record. On 6-7-1987 the application of Sri K. Janardhana Udupa was allowed and he was permitted to come on record.
10. Now the appellants have filed I.A. No. VII to recall the order dated 6-7-1987 on the ground that admittedly the deceased Kaveramma claimed the share in the suit properties as an heir to her husband who had a share in the suit properties; therefore, defendants 1 to 3 to the exclusion of all other heirs of the deceased are entitled to the share of the deceased plaintiff awarded under the decree under appeal.
11. The operative portion of the decree under appeal is as follows:
i) Plaintiff’s suit is decreed with costs. The costs shall be paid by defendants 1 to 3 from their person.
ii) A preliminary decree is passed as follows :
a) It is hereby declared and ordered that plaintiff is entitled to an aliquot share in B’ and C’ schedule properties except the well from which she is entitled to take water.
b) On partition, she is entitled to recover one half separate share in B’ schedule properties except well. Similarly plaintiff is entitled to recover moveables or the value thereof in proportion to her half share.
c) On partition and recovery of separate possession of landed properties of B’ schedule, plaintiff shall realise the income of aforesaid lands and render services personally, if allowed by custom and religion or through her deputy to the deity daily and perform all the religious rites and ceremonial functions consistent with the usage, custom and the avowed object of endowment private.
d) In so far as suit lands assessed to revenue as mentioned in B’ Schedule, the partition shall be effected by the Deputy Commissioner, South Kanara, or any subordinate Gazetted Officer appointed by him in this behalf, in accordance with law for the time being in force and also the law relating to partition of separate possession of shares.
e) A Commissioner shall be appointed for partition and separate possession of tiled house (newly built), thatched house, cow-shed and all the trees apprtenant thereto.
f) Issue Nos.8 and 13 which are kept open shall be decided in the final decree proceedings.”
12. It is not in dispute that the plaintiff was the widow of late Koteshwara Adiga who was the son of Ramanna Adiga. This Ramanna Adiga was the brother of Subraya Adiga. Koteshwara Adiga died on 1-3-1952. At the time of his death, the joint family possessed the properties in which the plaintiff has now been awarded the share. Koteshwara Adiga (husband of the plaintiff) had no issues. Thus the plaintiff was the only heir to her husband. Koteshwara Adiga died as a member of the Mitakshara coparcenery. At the time of his death. The Hindu Women’s Rights to Property Act, 1937 as amended by Act No. 11/1938 was extended to the Madras State by Hindu Women’s Right to Property Act (Madras Amendment) (hereinafter referred to as Act No. 18/1937). Subsections (2) and (3) of Section 3 of Act No. 18/1937 were as follows:
“3(2): When a Hindu governed by any school of Hindu law other than the Dayabhaga school or by customary law dies having at the time his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of Sub-section (3) have in the property the same interest as he himself had.
3(3) Any interest devolving on a Hindu widow under the provisions of this Section shall be the limited interest known as a Hindu Woman’s estate, provided however that she shall have the same right of claiming partition as a male owner.”
It is under this provision the plaintiff being the widow of Koteshwara Adiga became entitled to a share in the property of the joint family consisting of her husband and the defendants to which her husband was entitled to. However the family continued to be joint. The plaintiff filed the present suit for partition and separate possession of her share on 25-8-1970, after the coming into force of the Hindu Succession Act, 1956. It is on this basis, the trial Court has awarded the aforesaid share in the suit properties to the plaintiff. Thus it is not in dispute and it cannot also be disputed that the share allotted to the plaintiff in the suit properties is the property inherited from her husband. The plaintiff Smt. Kaveramma has left no will. Thus there is intestate succession.
13. As per Section 15 of the Act, the property of a female Hindu dying intestate, devolves according to the rules set out in Section 16 and Clauses (a) to (e) of Subsection (1) of Section 15 of the Act subject to the provisions contained in Sub-section (2) thereof. As the property inherited by the plaintiff was from her husband, Clauses (a) to (e) of Sub-section (1) of Section 15 will not be applicable having regard to the special provision made in Clause (b) of Sub-section (2) of Section 15 of the Act for devolution of the property inherited by a female Hindu from her husband. Clause (b) of Sub-section (2) of Section 15 of the Act is as follows :
“15(2) : Notwithstanding anything contained in Subsection (1).-
a) xx xx
b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in Sub-section (1) in the order specified therein, but upon the heirs of the husband.”
The deceased plaintiff has neither left any son or daughter nor the children of any predeceased son or daughter. As Section 15 of the Act opens with the words “The property of a female Hindu dying intestate” shall devolve according to the rules set out in Section 16, necessarily Section 15 has to be read with Section 16 of the Act. Rule 3 contained in Section 16 of the Act is relevant for our: purpose. The said rule provides thus:
“16. The order of succession among the heirs referred to in Section 15 shall, and the distribution of the intestate’s property among those heirs shall take place according to the following rules, namely :-
Rules (1) and (2) xx xx
Rule (3) : The devolution of the property of the intestate on the heirs referred in Clauses (b), (d) and (c) of Sub-section (1) and in Sub-section (2) of Section 15 shall be in the same order and according to the same rules as would have applied if the property had been the father’s or the mother’s or the husband’s as the case may be, and such person had died intestate in respect thereof immediately after the intestate’s death.”
Thus Rule 3 of Section 16 of the Act envisages the fiction, in as much as it is to be deemed as if the husband had died intestate immediately after the female intestate’s death. Consequently Section 8 will come into operation as it would become a case of the property of a male Hindu dying intestate. Therefore it has to devolve according to the provisions contained in Chapter II of the Act more particularly Section 8 which falls in Chapter II on the heirs of the husband of the plaintiff available as on 12-2-87 the deemed date of death of the husband of the plaintiff as per Rule 3 of Section 16 of the Act.
14. Therefore, we have to now see whether defendants 1 to 3 can be considered to be the heirs of the deceased husband of the plaintiff. Defendants 1 to 3 are the sons of Subraya Adiga as revealed from the genealogy of the family referred to earlier, who was the elder brother of Ramanna Adiga, the father of the husband of the plaintiffs. Subraya Adiga and Ramanna Adiga were the sons of Koteshwara Adiga, the prepositus of the joint family. Thus they do not fall in the category of heirs specified in Class I and Class II of the schedule to the Act but they fail in the third category of heirs known as agnates. The property of a male Hindu dying intestate devolves upon the agnates only when there are no heirs specified in class I and Class I! of the schedule to the Act. In the instant case, it is not in dispute that there are no heirs of the husband of the plaintiff falling in the category of heirs specified in Class I and Class II of the Scheduled to the Act. Defendants 1 to 3 are related to the deceased -husband of the plaintiff by blood wholly through males inasmuch as the deceased husband of the plaintiff was the paternal grand son of the original prepositus Koteshwara Adiga being the son of Ramanna Adiga who was the son of Koteshwara Adiga. So also defendants 1 to 3 are the paternal grand sons of the very same Koteshwara Adiga being the sons of Subraya Adiga who was the son of Koteshwara Adiga – the prepositus. Therefore, it is clear that defendants 1 to 3 being the agnates of deceased husband of the plaintiff, the property of the! deceased-husband of the plaintiff devolves upon them as per Section 15(2)(b) read with Rule 3 of Section 16 and Clause (c) of Section 8 of the Act as there are no heirs of the deceased husband of the plaintiff specified in class I and Class II of the schedule to the Act. All other heirs of the deceased-plaintiff are excluded as they are not entitled to inherit the property of a female Hindu which is inherited by a female Hindu from her husband as such property devolves upon the heirs of the husband and not upon the heirs of the female Hindu dying intestate. Consequently it follows that K. Janardhana Udupa cannot claim any share in the suit property allotted to the deceased-plaintiff by the decree under appeal because that property was inherited by the plaintiff from her husband. Therefore, it does not devolve upon K. Janardhana Udupa who is the brother of the deceased plaintiff who does not fall in the category of the heirs of the deceased husband of the deceased-plaintiff. This view of ours receives support from the decision of the Supreme Court in BAJYA v. GOPIKABAI, . In the said decision the Supreme Court had occasion to consider Clause (b) of Section 8 and Clause (b) of Sub-section (2) of Section 15 and Rule 3 of Section 16 of the Act. In the instant case we are concerned with Clause (c) of Section 8 of the Act read with Section 15(2)(b) and Rule 3 of Section 16 of the Act. The facts in Bajya’s case were these :
The suit land originally belonged to G son of D. G died before the settlement of 1918 and thereafter, this land was held by his son P, who died in the year 1936. On P’s death, the holding devolved on P’s widow, S.S. died on November 6, 1956 and thereupon dispute about the inheritance to the land left behind by S arose between the parties. The plaintiff claimed that she being the daughter of T, a sister of the last male holder, P was an heir under Section 15 read with Section 2(II)(4)(iv) of the Schedule referred to in Section 8 of the Hindu Succession Act, 1956, whereas the defendants claimed as sapindas of the last male holder under Mitakshara law. On those facts it was held by the Supreme Court thus:
“32. The instant case will fall under Clause (b) Subsection (2) of Section 15 because Smt. Sarji died issueless and intestate. The interest in the suit property was inherited by her from her husband. The suit land will, therefore, under Clause (b) go to the heirs of husband Puniya.
33. The next question is whether “the heirs of the husband” in Section 15 are to be ascertained with reference to the date of Puniya’s demise in 1936, or with reference to the date of Shrimati Sarji’s death on November 6, 1956, when succession opened out.
34. There appears to be some divergence of opinion among the High Courts on this point. We are however of opinion that once it is found that the case falls under Section 15(2)(b), the fiction envisaged in Rule 3 of Section 16 is attracted according to which, for the purpose of ascertaining the order of devolution, it is to be deemed as if the husband had died interestate immediately after the female intestate’s death. Bearing this fiction in mind we have then to go to the schedule under Section 8 of the Act to find out as to who would be the heirs of Smt. Sarji’s husband on the date of her death. Section 8 of the Act provides that the property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter :-
a) Firstly upon the heirs, being the relatives specified in class I of the schedule:
b) Secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in Class II of the schedule:
c) Thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and Lastly if there is no agnate, then upon the cognates of the deceased.
35. Now, Smt. Gopikabai, respondent-1 is admittedly the daughter of the sister of the last male holder, Puniya, whereas the appellants are the remote agnates. Neither party falls under Class I of the schedule. ‘Sister’s daughter’ is item 4 of Entry IV in Class II of the schedule while agnates do not figure anywhere in class II. Thus Smt. Gopikabai’s case will come in Clause (b). Secondly of Section 8 and as such she will be a preferential heir of the husband of Smt. Sarji, if he had died the moment after her death on November 6, 1956. In this view, she would exclude the defendants – agnates from inheritance even according to personal law which, within the contemplation of Section 151 of the Code, will include the Hindu Succession Act, 1956, in force at the time when Smt. Sarji died and succession opened out.”
15. For the reasons stated above, the point raised for determination is answered as follows:
It is defendants 1 to 3 and not K. Janardhana Udupa who are entitled to the share allotted to deceased-plaintiff Smt. Kaveramma by the decree under the appeal.
16. For the reasons stated above, the order dated 6-7-1987 is recalled. It is held that defendants 1 to 3 being the agnates of the deceased husband of the deceased-plaintiff are entitled to share equally the share allotted to deceased plaintiff by the decree under appeal. The decree of the trial Court shall stand modified accordingly. The application filed by K. Janardhana Udupa is dismissed. In the circumstances, there will be no order as to costs.