{"id":18774,"date":"2000-08-25T00:00:00","date_gmt":"2000-08-24T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/thimmaiah-and-ors-vs-ningamma-and-anr-on-25-august-2000"},"modified":"2017-11-13T05:42:43","modified_gmt":"2017-11-13T00:12:43","slug":"thimmaiah-and-ors-vs-ningamma-and-anr-on-25-august-2000","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/thimmaiah-and-ors-vs-ningamma-and-anr-on-25-august-2000","title":{"rendered":"Thimmaiah And Ors vs Ningamma And Anr on 25 August, 2000"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Thimmaiah And Ors vs Ningamma And Anr on 25 August, 2000<\/div>\n
Author: R Pal<\/div>\n
Bench: A.P.Misra, Ruma Pal<\/div>\n
           PETITIONER:\nTHIMMAIAH AND ORS.\n\n\tVs.\n\nRESPONDENT:\nNINGAMMA AND ANR.\n\nDATE OF JUDGMENT:\t25\/08\/2000\n\nBENCH:\nA.P.Misra, Ruma Pal\n\n\n\n\nJUDGMENT:\n<\/pre>\n
RUMA PAL, J.\n<\/p>\n
      The issue to be decided in this appeal is the share of
\neach  of  the  parties\tin  coparcenary\t properties.\tHiri
\nThimmaiah  (referred to briefly as Hiri) was the Karta\tof
\nthe  coparcenary.   He had two wives Sidamma  and  Ningamma.
\nThe  appellants\t are  the  children of\tHiris  first  wife,
\nSidamma.   The respondent No.  1 is the second wife and\t the
\nrespondent No.\t2 is her daughter.  Hiri died in 1971.\tSoon
\nafter  his death, in 1972, the appellant No.  1 filed a suit
\nfor partition by metes and bounds of 12 properties described
\nin the Schedule to the plaint and for separate possession of
\n7\/12th share in such properties.  The case in the plaint was
\nthat items 1 and 2 of the schedule properties were ancestral
\nand   all   the\t remaining   properties\t belonged   to\t the
\ncoparcenery.   The further case in the plaint was that\tHiri
\nhad  illegally sought to gift away item No.  1 and 2 by deed
\ndated  17.11.67 to the respondent No.  1 and items 3 to 6 by
\ndeed  dated 9.6.71 to the respondent No.  2.  The  appellant
\nNo.   1 claimed a declaration that the gifts were void.\t The
\nappellants 2, 3 and 4 were named as defendants 3, 4 and 5 in
\nthe  suit.   They  filed a written  statement  substantially
\nsupporting  the\t case of the appellant No.  1  and  claiming
\n1\/4th  share  in  all the 12 properties.  In  their  written
\nstatement,  the respondents (who were the defendants 1 and 2
\nin  the\t suit)\tconceded that items 1 and 2  were  ancestral
\nproperties  but\t claimed  that items 3 to 6 were  the  self-
\nacquired  properties  of Hiri.\tThey claimed that  both\t the
\ndeeds  were  settlement\t deeds.\t The first  settlement\tdeed
\ndated  17.11.67\t made  provision   for\tthe  maintenance  of
\nrespondent  No.\t 1 out of items 1 and 2 and after her death,
\nthe  properties were to revert back to Hiri.  By the  second
\ndeed  dated  9.6.71,  items 3 to 6 had been settled  on\t the
\nsecond\trespondent with the consent of appellant No.  1\t who
\nhad  not only put his left thumb impression on the deed\t but
\nhad  also signed the document as a consenting party.  Issues
\nwere  framed on the basis of the pleadings.  Witnesses\twere
\nexamined  in  support of the contesting parties.  The  Trial
\nCourt  negatived  the claim put forward by  the\t respondents
\nthat  the  two deeds were deeds of settlement.\tIt was\theld
\nthat  items 3 to 6 were not the self-acquired properties  of
\nHiri  but belonged to the coparcenary and that the two deeds
\nwere  deeds  of\t gift  and were void.\tIn  coming  to\tthis
\nconclusion,  the  Trial\t Court noted the contention  of\t the
\nappellant  No.\t 1 that fraud had been committed on him\t and
\nthat  he  had not fixed his left thumb impression by way  of
\nhis  consent to the document dated 9.6.71 and said:  It has
\nto be noted that there is material in the evidence of D.W- 2
\nthe  uncle  of the plaintiff, to show that on the very\tsame
\nday of the execution of the document in question, the father
\nof  the plaintiff executed another document in favour of his
\nbrother D.W-2 as per Ex.P- 24 and in the course of obtaining
\nconsent\t of  the  plaintiff to that document,  Ex.P-24,\t the
\nsignature of the plaintiff is by deceitful means obtained on
\nEx.D-2 also.\n<\/p>\n
      However,\tthe Trial Judge did not hold that the  deeds
\nwere  void  only  because  of the lack\tof  the\t consent  of
\nappellant  No.\t1.  Relying on the decision of this Court in
\nAmmathayee  alias Perumalakkal and Anr.\t V.  Kumaresan<\/a> alias
\nBalakrishnan and Others AIR 1967 SC 569 the Trial Judge held
\nthat  Hiri  was\t incompetent  to gift items 3 to  6  to\t the
\nrespondent  No.\t  2  irrespective  of  the  consent  of\t the
\nappellant  No.\t 1.  According to the Trial Judge  immovable
\nancestral  properties could only be gifted within reasonable
\nlimits\tfor  pious  purposes  such as  the  marriage  of  an
\nunmarried   daughter.\t The  Trial   Court  found  that   a
\nconsiderable  portion of the coparcenary properties had been
\ngifted\tby  Hiri to the respondent No.\t2 and that it  could
\nnot  be\t said that the gift had been made in favour  of\t the
\nsecond respondent in fulfillment of any pious purpose as she
\nwas  well below the marriageable age when the gift was made.
\nThe  appellant No.  1s suit was accordingly decreed on\t8th
\nAugust\t1977  as prayed for by the respondent No.  1  and  a
\npreliminary   decree   for  partition\twas   passed.\t The
\nrespondents  preferred an appeal before the District  Judge.
\nThe  first  appellate Court dismissed the appeal and  upheld
\nthe  findings  of the trial Court that the  properties\twere
\ncoparcenery  and  could\t not have been affected by  the\t two
\nimpugned   deeds  executed  by\tHiri   in  favour   of\t the
\nrespondents.  On the question of consent, the District Judge
\nsaid:\tPlaintiff  has taken the stand that his L.T.M.\t is
\ntaken  to  Ex.D-1 at Ex.D.1 (e) by practising fraud  on\t him
\nwhen  he had gone to the Sub-Registrars Office at the  time
\nof  execution  of another document by his  father  regarding
\nsale  of a site.  Even if it can be held on the basis of the
\nevidence  of  D.Ws.   1 and 2 that  plaintiff  has  attested
\nEx.D-1\tby  putting  his L.T.M.\t at Ex.D-1 (e),\t I  find  it
\ndifficult  to  uphold the validity of Ex.D-1 as there is  no
\nrecital\t in  the body writing of Ex.D-1 that the  properties
\nwere  gifted by H.  Thimmaiah in favour of the 2nd defendant
\nwith  the specific consent of the plaintiff.  Therefore, the
\nmere  attestation of Ex.D-1 by the plaintiff by putting\t his
\nL.T.M.\t would not validate the gift of considerable portion
\nof family properties made under Ex.D-1.\n<\/p>\n
      A\t second\t appeal\t was preferred\tby  the\t respondents
\nbefore\t the  High  Court.   There  it\twas  urged  by\t the
\nrespondents  for the first time that by virtue of the Mysore
\nHindu Law Womens Rights Act, 1993 (hereafter referred to as
\nthe  Mysore Act), the respondent No.  1 was entitled to\t a
\nwidows\tshare  and  the respondent No.\t2 to  an  unmarried
\ndaughters share in addition to their rights on intestacy as
\nheirs  of Hiri under the Hindu Succession Act, 1956 as\twell
\nas  under the two deeds dated 17.11.67 and 9.6.71.  The High
\nCourt  held  that the respondent No.2 was entitled to  1\/9th
\nshare  in  the coparcenary property under Section 8  of\t the
\nMysore\tAct but negatived the claim of the respondent No.  1
\nnot  only under the Mysore Act but also under the deed dated
\n17.11.67.  As far as the deed dated 9.6.71 was concerned, it
\nwas held by the High Court that items 3 to 6 had been gifted
\nto  the respondent No.\t2 with the consent of the  appellant
\nNo.   1 and was, therefore, valid.  The High Court held that
\nthe  conclusion arrived at by the Trial Court and the  first
\nappellate  Court that the appellant No.\t 1 had not consented
\nto  the\t gift,\twas not based on  any  acceptable  evidence.
\nAccording  to the High Court, items 3 to 6 were,  therefore,
\nnot  available for partition and the parties entitlement in
\nthe  remaining properties were:\t Appellant No.\t1 4\/9+4\/54 =
\n28\/54 (son)<\/p>\n
      Appellant No.  2 = 4\/54 (married daughter)<\/p>\n
      Appellant No.  3 = 4\/54 (married daughter)<\/p>\n
      Appellant No.  4 = 4\/54 (married daughter)<\/p>\n
      Respondent No.  1 = 4\/54 (widow)<\/p>\n
      Respondent  No.\t2  (unmarried daughter)\t 1\/9+4\/54  =
\n10\/54<\/span><\/p>\n
      The  judgment  delivered\ton 1st August  1991  by\t the
\nlearned\t Single\t Judge of the High Court has  been  impugned
\nbefore\tthis  Court  on the ground that the  High  Court  on
\nsecond\tappeal\tshould not have interfered  with  concurrent
\nfindings  of  fact  on the appellants lack of  consent\tand
\nshould\tnot  have applied the provisions of the\t Mysore\t Act
\nwhich, according to the appellants, had been excluded by the
\nprovisions  of Section 4 of the Hindu Succession Act,  1956.
\nThe  respondents have relied upon the decision of this Court
\nin Ladli Parshad Jaiswal V.  The Karnal Distillery Co., Ltd.
\nKarnal\tand Others AIR<\/a> 1963 SC 1279 to contend that the High
\nCourt  was  competent  to reverse the finding of  the  lower
\nCourts\tthat  there was no consent of the appellant No.\t  1,
\nbecause\t the  finding was based on no evidence.\t It is\talso
\ncontended  that\t the  provisions  of   the  Mysore  Act\t are
\nancillary  to  the provisions of the Hindu  Succession\tAct,
\n1956  and  particularly\t Sections 6 and 8 of that  Act.\t  In
\nJaiswals case (supra), this Court has, no doubt, held that:
\nA  decision  of\t the first appellate  Court  reached  after
\nplacing\t the  onus  wrongfully or based on no  evidence,  or
\nwhere  there  has  been substantial error or defect  in\t the
\nprocedure,  producing error or defect in the decision of the
\ncase  on  the merits, is not conclusive and a second  appeal
\nlies to the High Court against that decision.\n<\/p>\n
      But  at  the same time, this Court has noted that\t the
\nHigh  Court has no jurisdiction to entertain a second appeal
\non the ground of an erroneous finding of fact however gross
\nor  inexcusable the error may seem to be.  In other  words,
\nif  there  is  some  evidence and the  appreciation  of\t the
\nevidence  is  erroneous,  a  second  appeal  will  not\tlie.
\nFurther the decision in Jaiswals case was rendered prior to
\nthe  amendment\tof  Section 100 by which the  provisions  of
\nsecond\tappeal\tare  more stringent and have  been  strictly
\nlimited\t to those cases where a substantial question of law
\narises\tand  in\t no  others.  We  have\talready\t noted\tthe
\nfindings  of the Trial Court as well as the first  appellate
\nCourt  on  the\tquestion  of  consent.\t These\tobservations
\nclearly\t show that there was some evidence in support of the
\nfinding of the lower Courts.  In the circumstances, the High
\nCourt  was not entitled to reassess the evidence and  arrive
\nat  a  different  conclusion.  Besides the onus was  on\t the
\nrespondents  to\t prove\tthe fact of the appellant  No.\t 1s
\nconsent.   When\t items\t3  to 6 were being  claimed  by\t the
\nrespondents  to\t be the self-acquired property of  Hiri,  it
\ncould  hardly  be  contended  in the same  breath  that\t the
\nappellant  No.\t1 had consented to the gift of items 3 to  6
\non  the\t basis\tthat  it was coparcenary  property  and\t the
\nappellant  No.\t1 the only other coparcener.  The High Court
\nalso  erred  in its view on the effect of consent on a\tgift
\nwhich may otherwise be void.  This Court in Ammathayee alias
\nPerumalakkal  and  Another V.  Kumaresan alias\tBalakrishnan
\nand  Others AIR 1967 SC 569 summarised the Hindu Law on\t the
\nquestion  of gifts of ancestral properties in the  following
\nwords:\t Hindu\tlaw on the question of gifts  of  ancestral
\nproperty  is  well  settled.  So far as\t moveable  ancestral
\nproperty  is concerned, a gift out of affection may be\tmade
\nto  a  wife, to a daughter and even to a son,  provided\t the
\ngift is within reasonable limits.  A gift for example of the
\nwhole or almost the whole of the ancestral moveable property
\ncannot\tbe upheld as a gift through affection.\t(See Mullas
\nHindu  Law,  13th  Edn., p.252, para 225).  But\t so  far  as
\nimmovable ancestral property is concerned, the power of gift
\nis  much  more\tcircumscribed than in the case\tof  moveable
\nancestral  property.   A Hindu father or any other  managing
\nmember\thas  power  to make a gift  of\tancestral  immovable
\nproperty  within  reasonable  limits for  pious\t purposes;
\n(see  Mullas Hindu Law, 13th Edn., para 226, p.\t 252).\tNow
\nwhat is generally understood by pious purposes is gift for
\ncharitable  and\/or  religious purposes.\t But this Court\t has
\nextended  the  meaning of pious purposes to cases where\t a
\nHindu  father  makes  a\t gift within  reasonable  limits  of
\nimmovable  ancestral property to his daughter in  fulfilment
\nof  an\tantenuptial  promise  made on the  occasion  of\t the
\nsettlement  of\tthe terms of her marriage, and the same\t can
\nalso  be done by the mother in case the father is dead.( See
\nKamala\tDevi  v.   Bachu Lal Gupta,<\/a> 1957 SCR  (AIR  1957  SC\n<\/p>\n
434).\n<\/p>\n
      The  Karta is competent or has the power to dispose of
\ncoparcenary  property  only if (a) the disposition is  of  a
\nreasonable  portion of the coparcenary property and (b)\t the
\ndisposition  is for a recognised pious purpose.\t The  High
\nCourt  has not come to any conclusion as to whether the gift
\nof  items 3 to 6 by Hiri to the respondent No.\t2 was within
\nreasonable limits or in fulfilment of an antenuptial promise
\nmade  on the occasion of the settlement of the terms of\t the
\nrespondent  No.2s  marriage.  It must be taken,\t therefore,
\nthat  the  findings of the lower Courts on both counts\twere
\naccepted.   That being so, Hiri could not have donated items
\n3  to  6  to respondent No.  2 and the deed  of\t gift  dated
\n9.6.71 was impermissible under Hindu Law.  The question is –
\ncould  such  an alienation be made with the consent  of\t the
\nappellant   No.\t  1?   It  is\targuable  that\tthere  is  a
\ndistinction  between a void disposition and a voidable\tone,
\nand  that the gift in favour of the respondent No.  2  being
\nvoid  cannot be made even with the consent of the  appellant
\nNo.1.\tHowever, it is not necessary to decide the issue  in
\nthe  view  that we have taken in this case.  This  Court  in
\nGuramma\t V.   Mallappa AIR 1964 SC 510 has  envisaged  three
\nsituations  of\tvoidable transactions.\tIt was held  that  a
\nmanaging  member may alienate joint family property in three
\nsituations  namely:  (i) legal necessity, or (ii) benefit of
\nthe  estate or (iii) with the consent of all the coparceners
\nof the family.\tWhere the alienation is not with the consent
\nof  all\t the coparceners, it is voidable at the instance  of
\nthe   coparcener  whose\t consent   has\tnot  been  obtained.
\nNeedless  to  say  where  there is  only  a  sole  surviving
\ncoparcener and no other member of the family who has a joint
\ninterest  in  the  property,  there are no  fetters  on\t the
\nalienation  of\tthe property.  Assuming that  the  principle
\nenunciated  in\tGuramma V.  Mallappa (supra) would apply  to
\nvoid  alienations of joint family property, the question  of
\nconsent\t of all interested parties would still remain.\t The
\nrationale   behind   the     impermissibility\tof   certain
\ndispositions  of coparcenary properties is the protection of
\nthe interest of other coparceners.  Where other persons have
\nan  interest  in coparcenary property, whether\tinchoate  or
\notherwise,  and willingly acquiesce in the depletion of such
\ninterest  for whatever purpose, such a disposition would  be
\npermissible.  In this case, apart from the appellant No.  1,
\nif  the\t other\theirs of Hiri had such an  interest,  merely
\ngetting\t the  consent of the appellant No.  1 would not\t do.
\nThe  impugned  deed  was executed in 1971, prior  to  Hiris
\ndeath  in the same year.  By this time, the Hindu Succession
\nAct,  1956 had come into force.\t The proviso to section 6 of
\nthe  1956  Act ( considered at greater length later  in\t the
\njudgment)  now\tprovides  that the  deceaseds  interest\t in
\nMitakshara   coparcenary  property  does   not\tdevolve\t  by
\nsurvivorship  if  the deceased leaves surviving\t him  female
\nrelatives   specified\tin   class  I\tof   the   Schedule.
\nConsequently,  the  interest of the surviving coparcener  to
\nthe  deceaseds coparcenary share, in such a case, no longer
\nsurvives  and  his consent to depletion of his\tinterest  in
\njoint  family property would not, therefore, make a gift  of
\ncoparcenary  property otherwise invalid, valid.\t Consent  in
\nsuch  a case would have to be obtained from all the  persons
\nwho  could  claim  a  share  in\t the  deceased\tcoparceners
\ninterest.   The\t appellants 2, 3 and 4 as well as  both\t the
\nrespondents  are class I heirs of Hiri.\t It is not the\tcase
\nof  the\t respondents  that  the appellants 2, 3\t and  4\t had
\nconsented  to  the gift.  We are, therefore, of the  opinion
\nthat  the  finding of the High Court on the validity of\t the
\ndeed  of  gift\tdated  9.6.71 is  unsustainable\t and  it  is
\naccordingly   set   aside.   The   next\t question   is\t the
\napplicability  of  Section 8 (1) (d) of the Mysore Act.\t  It
\nmay  be\t stated\t at  the outset that  while  we\t affirm\t the
\nconclusions  reached  as  to the shares of the\tparties,  it
\nappears\t to  us\t that the High Court  has  misconstrued\t the
\nprovisions of Section 8 (1) (d).  Section 8 reads:\n<\/p>\n
       8.  Certain females entitled to shares at partition.
\n  (1) (a) At a partition of joint family property between a
\nperson\tand  his  son  or sons, his  mother,  his  unmarried
\ndaughters  and\tthe  widows and unmarried daughters  of\t his
\npredeceased  undivided\tsons and brothers who have  left  no
\nmale issue shall be entitled to share with him.\n<\/p>\n
      (b)  At  a  partition of joint family  property  among
\nbrothers,  their  mother,  their unmarried sisters  and\t the
\nwidows\t and  unmarried\t daughters   of\t their\t predeceased
\nundivided  brothers  who  have left no male issue  shall  be
\nentitled to share with them.\n<\/p>\n
      (c)Sub-sections  (a) and (b) shall also apply  mutatis
\nmutandis  to a partition among other coparceners in a  joint
\nfamily.\n<\/p>\n
      (d)  Where  joint family property passes to  a  single
\ncoparcener  by survivorship, it shall so pass subject to the
\nright  to shares of the classes of females enumerated in the
\nabove sub-sections.\n<\/p>\n
      (2) Such share shall be fixed as follows:\t –\n<\/p>\n
      (a)  in  the case of the widow, one-half of  what\t her
\nhusband, if he were alive, would receive as his share;\n<\/p>\n
      (b)  in the case of the mother, one-half of the  share
\nof  a  son if she has a son alive, and, in any\tother  case,
\none-  half  of\twhat  her husband if he\t were  alive,  would
\nreceive as his share;\n<\/p>\n
      (c) in the case of every unmarried daughter or sister,
\none-fourth  of\tthe share of a brother if she has a  brother
\nalive,\tand,  in  any  other case, one-fourth  of  what\t her
\nfather,\t if  he\t were  alive, would receive  as\t his  share:
\nprovided  that\tthe share to which a daughter or  sister  is
\nentitled  under this section shall be inclusive of, and\t not
\nin  addition  to,  the legitimate expenses of  her  marriage
\nincluding a reasonable dowry or marriage portion.\n<\/p>\n
      (3)  In this section, the term widow includes, where
\nthere  are  more widows than one of the same person  all  of
\nthem  jointly, and the term mother includes a step- mother
\nand,  where there are both a mother and a step- mother,\t all
\nof  them  jointly and the term son includes a step-son\tas
\nalso a grandson and a great grandson;  and the provisions of
\nthis  section  relating\t to the mother shall  be  applicable
\nmutatis\t mutandis  to  the paternal  grandmother  and  great
\ngrandmother.\n<\/p>\n
      (4)  Fractional  shares of the females as fixed  above
\nshall  relate  to the share of the husband, son,  father  or
\nbrother\t as  the  case\tmay  be and  their  value  shall  be
\nascertained  by\t treating one share as allotted to the\tmale
\nand  assigning therefrom the proper fractional shares to the
\nfemale relatives.\n<\/p>\n
      5.   Each of the female relatives referred to in\tsub-
\nsection\t (1)  shall be entitled to have her share  separated
\noff and placed in her possession.\n<\/p>\n
      Provisos:\t  –  Provided always as follows:  –  (i)  No
\nfemale\trelative  shall be entitled to a share\tin  property
\nacquired  by a person and referred to in Section 6, so\tlong
\nas he is alive;\n<\/p>\n
      (ii)  No female whose husband or father is alive shall
\nbe entitled to demand a partition as against such husband or
\nfather, as the case may be;\n<\/p>\n
      (iii)  A female entitled to a share in any property in
\none  capacity of relationship shall not be entitled to claim
\na  further  or additional share in the same property in\t any
\nother capacity.\n<\/p>\n
      Illustration:   A and his son B effect a partition  of
\ntheir  family  property.  A has a mother and  two  unmarried
\ndaughters.  Their shares will be as follows:  –\n<\/p>\n
      Father  ..   ..  1 Son ..\t ..  1 Mother ..  ..  \u00bd\t Two
\ndaughters ..  ..  \u00bc each The property will be divided in the
\nabove  proportion, the father getting 1\/3, the son 1\/3,\t the
\nmother 1\/6 and each daughter 1\/12.\n<\/p>\n
      Clauses  (a),  (b), (c) and (d) of sub-section (1)  of
\nSection\t 8  deal with four separate situations.\t Clause\t (a)
\ndeals  with a partition of joint family between a person and
\nhis  sons.   Clause  (b) deals with the partition  of  joint
\nfamily\tproperty  among\t brothers, clause (c) applies  to  a
\npartition among other coparceners in a joint family.  Clause\n<\/p>\n
(d)  provides  for a situation where joint  family  property
\npasses\tto a single coparcener by survivorship.\t The  female
\nmembers\t who have been declared to be entitled to shares are
\nthe  mother  of\t the  concerned\t coparcener,  his  unmarried
\ndaughters and widows and unmarried daughters of pre-deceased
\nsons  and  undivided brothers.\tAt this stage, it  would  be
\nappropriate  to\t refer\tin detail to  relevant\tportions  of
\nSection\t 6 of the 1956 Act:  6.\t Devolution of interest\t in
\ncoparcenary  property.\t – When a male Hindu dies after\t the
\ncommencement of this Act, having at the time of his death an
\ninterest  in a Mitakshara coparcenary property, his interest
\nin  the\t property  shall devolve by  survivorship  upon\t the
\nsurviving  members of the coparcenary and not in  accordance
\nwith this Act.\n<\/p>\n
      Provided\tthat, if the deceased had left him surviving
\na  female relative specified in class I of the Schedule or a
\nmale  relative\tspecified in that class who  claims  through
\nsuch  female  relative, the interest of the deceased in\t the
\nMitakshara   coparcenary   property\tshall\tdevolve\t  by
\ntestamentary  or interestate succession, as the case may be,
\nunder this Act and not by survivorship.\n<\/p>\n
      Explanation  1.\t For the purposes of this  section,
\nthe  interest  of  a Hindu Mitakshara  coparcener  shall  be
\ndeemed\tto be the share in the property that would have been
\nallotted  to  him if a partition of the property  had  taken
\nplace  immediately before his death, irrespective of whether
\nhe was entitled to claim partition or not.\n<\/p>\n
      Explanation 2 x x x x x x x x<\/p>\n
      (Emphasis supplied)<\/p>\n
      It  is  not in dispute that the Mysore Act deals\twith
\nHindu  Mitakshara  coparcenary rights.\tThis is\t also  clear
\nfrom  the  definition  of Hindu in section 3  (c)  of  the
\nMysore\tAct.   Section\t4 of the 1956 Act  gives  overriding
\neffect to the 1956 Act in so far as any law governing Hindus
\nis  inconsistent  with\tthe  provisions\t of  the  1956\tAct.
\nReading\t the  proviso  to  section 6 of the  1956  Act\twith
\nsection\t 8  of\tthe Mysore Act, it is clear that  where\t the
\nfemale members sought to be protected under Section 8 of the
\nMysore\tAct  are  in  fact  Class  I  heirs  of\t a  deceased
\ncoparcener, his interest in the joint family property cannot
\npass  by  survivorship\tat  all.  Thus the  question  of  it
\npassing\t subject to the rights of any class of females under
\nSection\t 8  (1) (d) of the Mysore Act does not\talso  arise.
\nThis would mean that Section 8 (1) (d) of the Mysore Act has
\nbeen  superseded by the proviso to Section 6 of the 1956 Act
\nto  the\t extent stated.\t The decision in  Gurupad  Khandappa
\nMagdum\tVs.   Hirabai Khandappa Magdum & Ors.  1978 (3)\t SCR
\n671  is an authority for the proposition that where a female
\nis entitled to a share in coparcenary property on partition,
\nthen  by  virtue of Explanation I to Section 6 of 1956\tAct,
\nshe  continues\tto be so entitled despite the fact  that  no
\npartition  may\tactually  have\ttaken  place  prior  to\t the
\ncoparceners  death.  This Court held that Explanation I\t to
\nSection\t 6 covered a situation where a Hindu coparcener dies
\nwithout actual partition having taken place.  In such event,
\nthe  Court will have to assume that a partition had in\tfact
\ntaken place immediately prior to the death of the coparcener
\nconcerned  and\tgrant shares on the basis of  such  notional
\npartition.   This  Court  also held that the  share  of\t the
\nfemale member on such partition was in addition to any share
\nwhich  she  may get as an heir of the  deceased\t coparcener.
\n[See  also State of Maharashtra V.  Narayan Rao<\/a> 1985 (3) SCR
\n358;   AIR (1985) SC 716, 721].\t Reliance by the respondents
\non the decision of this Court in Gurupad Khandappa Magdum V.
\nHirabai\t Khandappa  Magdum  and Ors.<\/a>  1978 (3)\tSCR  671  to
\ncontend\t that the respondents were entitled to shares in the
\ncoparcenary  property by virtue of Section 8 (1) (d) of\t the
\nMysore\tAct is misplaced because as already noted Section  8
\n(1)  (d)  in terms does not apply in the facts of this\tcase
\nbecause\t of the proviso to Section 6 of the 1956 Act.  Under
\nExplanation  I to Section 6 of the 1956 Act , the Court will
\nhave to ascertain what the shares of the parties would be as
\nif Hiri had sought for partition just before his death.\t The
\nonly   other  coparcener  being\t  the  appellant  No.1,\t the
\npartition  would have to be effected according to Section  8
\n(1)  (a)  which provides for partition between a  coparcener
\nand  his  son\/sons.   Under  Section 8 (1)  (a)\t the  female
\nmembers\t  who  could  claim  a\tshare  in  the\t coparcenary
\nproperties  would be Hiris mother, his unmarried daughter (
\nthe respondent no.2) and the widow or unmarried daughters of
\nany  predeceased sons or brother.  Admittedly, Hiris mother
\nwas  not alive in 1971.\t Nor had Hiri any predeceased son or
\nbrother.   The sole female member entitled to a share  under
\nSection\t 8  (1) (a) therefore is the respondent\t No.2.\t The
\nappellant  being  the  other coparcenar would get \u00bd  of\t the
\ncoparcenary  properties on partition.  In terms of Section 8
\n(2)  (c) of the Mysore Act, his sister, the respondent\tno.2
\nwould  get  \u00bd  her  brothers share,  namely  1\/4th  of\tthe
\ncoparcenary properties.\t The remaining interest would belong
\nto  Hiri.   It\thas not been disputed before us\t that  under
\nSection\t 8  of\tthe 1956 Act, each of the  parties  to\tthis
\nappeal\tis  entitled to claim a share in Hiris interest\t as
\nhis  Class  I  heir.  On the basis of the ratio\t in  Gurupad
\nKhandappa  Magdums case (supra) , the respondent No.2 would
\nalso be entitled to a share in Hiris interest as an heir on
\nintestacy,  under Section 8 of the 1956 Act.  To sum up:  if
\nthere were an actual partition of the coparcenary properties
\nbetween\t Hiri  and his son, under Section 8 (1) (a)  of\t the
\nMysore Act, his son, the appellant No.\t1 would get \u00bd share.
\nHis  wife, namely the respondent No.  1, and the  appellants
\n2,  3  and  4  would not get any share\tin  the\t coparcenary
\nproperty at all.  But the respondent No.  2 as the unmarried
\ndaughter  would get a share calculated in terms of Section 8
\n(2) (c) of the Mysore Act, namely, 1\/4th of the share of her
\nbrother,  namely,  the appellant No.  1 in addition  to\t her
\nshare  as  the heir of Hiri.  All the appellants as well  as
\nboth  the respondents are each entitled to an equal share in
\nHiris  interest as heirs on intestacy.\tThe High Court has,
\ntherefore,  correctly  calculated the shares of the  parties
\nand  we affirm its conclusion in this regard.  The appeal is
\naccordingly  partly  allowed.  We hold that items 3 to 6  of
\nthe  Schedule  to the plaint are available for partition  as
\ncoparcenary property according to the shares declared by the
\nHigh Court.  There will be no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Thimmaiah And Ors vs Ningamma And Anr on 25 August, 2000 Author: R Pal Bench: A.P.Misra, Ruma Pal PETITIONER: THIMMAIAH AND ORS. Vs. RESPONDENT: NINGAMMA AND ANR. DATE OF JUDGMENT: 25\/08\/2000 BENCH: A.P.Misra, Ruma Pal JUDGMENT: RUMA PAL, J. The issue to be decided in this appeal is the share of […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-18774","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nThimmaiah And Ors vs Ningamma And Anr on 25 August, 2000 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/thimmaiah-and-ors-vs-ningamma-and-anr-on-25-august-2000\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Thimmaiah And Ors vs Ningamma And Anr on 25 August, 2000 - 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