Wednesday, January 13, 2016

पति की मौत होने पर संपत्ति पत्नी की होगी




     CIVIL APPEAL NOS.  174-175  OF 2016
       (Arising out of S.L.P. (Civil) Nos.24809-24810 of 2008)




  J U D G M E N T

R.F. Nariman, J.

Delay condoned in filing the special leave petitions.

Leave granted.

3.    These appeals raise an interesting question on the  true  construction
of some of the provisions of the Hindu Law Women’s Rights Act, 1933  (Mysore
Act No.X  of  1933).   One  Venkatsubbaiah  had  two  sons  Mahabalaiah  and
Thimmappa.  After the death of  Venkatsubbaiah, the two sons  and  the  wife
of Mahabalaiah constituted a joint  Hindu  family.   Mahabalaiah  being  the
elder brother was the Karta of the said  family.   In  the  year  1940-1941,
Mahabalaiah  and  Thimmappa  partitioned  and  divided  their  joint  family
properties and got possession of their respective  shares.   Thimmappa  died
on  9.10.1952,  leaving  behind  him  his  widow  one  Gowramma  and   three
daughters.  The widow has executed a will on 9.5.1990 bequeathing her  share
in the joint family property in favour of only one of  the  three  daughters
namely the third defendant.  The 4th defendant has been joined in  the  suit
inasmuch as the first defendant widow had sold one of  the  scheduled  items
of the suit property namely item No.3 to the said 4th defendant  during  the
pendency of the suit.

4.    One of  the  said  daughters  namely  Sunanda  filed  a  suit  against
defendant No.1 – her mother, defendant Nos. 2  and  3  –  her  sisters,  and
defendant No.4 – the purchaser, being  O.S. No.46  of  1994.  After  setting
out the relevant facts, the Civil Judge, Senior Division by  judgment  dated
28.3.2005 framed as many as 12 issues and ultimately decided on  application
of Section 10(2)(g) of the 1933 Act that the plaintiff would be entitled  to
a 1/4th  share  in  the  scheduled  properties  and  the  suit  was  decreed

5.    In a first appeal filed by defendant No.1, the first  Appellate  Court
agreed with the conclusions both on facts as well  as  law  with  the  trial
court.  Accordingly, the first appeal was dismissed on 5.8.2005.

6.    Thereafter, a review petition was filed  and  by  the  judgment  dated
24.11.2007, the review was dismissed but  this  time  adverting  to  Section
8(1)(d) of the 1933 Act and decreeing the suit with reference  to  the  said
Section.  The review also was accordingly dismissed.

7.    Shri R.S. Hegde, learned counsel appearing on behalf of the  appellant
has urged before us that the applicable Section of the 1933 Act  is  Section
4, and not Sections 8 and 10, and accordingly  the  succession  of  a  Hindu
male dying intestate vests property only in the widow to  the  exclusion  of
the daughters and hence the plaintiff’s suit should have been  dismissed  on
this ground.

8.    On the other hand,  Shri  S.N.  Bhat,  learned  counsel,  invited  our
attention to Section 8(1)(d) of the Act and according  to  him  since  joint
family  property  passed  to  Thimmappa  who  was  a  single  coparcener  by
survivorship,  on  partition  in  1940-1941,  all  the  classes  of  females
mentioned in Section 8 would be entitled to a share  in  the  said  property
which would include not only his widow but also his unmarried daughters.

9.    For a proper appreciation of the controversy at hand, we set  out  the
relevant Sections of the Hindu Law Women’s  Rights  Act,  1933  (Mysore  Act
No.X of 1933).

      “Part I


4. Order of succession:-

(1)  The succession to a Hindu male dying  intestate  shall,  in  the  first
place, vest in the members of the family of the propositus mentioned  below,
and in the following order:-

i)    the male issue to the third generation ;

ii)   the widow ;

iii)  daughters ;

iv)   daughter’s sons

XXX              XXX              XXX

8.    Certain females entitled to shares at partition-

(1) (a) At a partition of joint family property between  a  person  and  his
son or sons,  his  mother,  his  unmarried  daughters  and  the  widows  and
unmarried daughters of his predeceased undivided sons and brothers who  have
left no male issue shall be entitled to share with them.

(b)   At a partition of joint family property among brothers, their  mother,
their unmarried sisters and the widows  and  unmarried  daughters  of  their
predeceased undivided  brothers  who  have  left  no  male  issue  shall  be
entitled to share with them.

(c)   Sub-sections (a) and (b)  shall  also  apply  mutatis  mutandis  to  a
partition among other co-parceners in a joint family.

(d)   Where  joint  family  property  passes  to  a  single  co-parcener  by
survivorship, it shall so pass  subject  to  the  right  to  shares  of  the
classes of females enumerated in the above sub-sections.

XXX         XXX              XXX

.10.  What is “stridhana” –

“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.

“Stridhana” includes :-

      XXX        XXX              XXX        XXX

(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 son of the propositus alive  at  the  time  the  property  is  so

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 person on their  behalf,  by  the  bridegroom,
bride or their relatives or friends, shall be the stridhana of the bride.”

10.   A cursory reading of Section  8  would  reveal  that  various  females
mentioned in the Section would be  entitled  to  a  share  of  joint  family
property in the circumstances mentioned therein.  Under Sections 8(1)(a)  to
8(1)(c) there has necessarily first to be a partition in  the  circumstances
mentioned in each of the said sub-sections  whereas  under  sub-section  (d)
what is required is that joint family properties should  pass  to  a  single
coparcener by survivorship.  If this condition of  sub-clause  (d)  is  met,
then all the women mentioned in sub-clauses (a) to (c) would be entitled  to
a share therein.

11.   Shri Bhat relied upon a judgment delivered by B.P. Singh,J. in  Byamma
v. Ramdev reported in I.L.R. 1991 KAR 3245. After setting out Section  8  of
the 1933 Act, it was held:-

“It is well settled that devolution of joint family property, which come  to
the hands of a son from his father or grand-father or great-grand-father  as
unobstructed heritage is governed  by  the  Rule  of  Survivorship.  A  male
coparcener acquires right to such property by birth. This is different  from
property that may come to the hands of a  coparcener  in  which  he  has  no
right by birth. This is what is  known  as  obstructed  heritage,  and  such
property devolve by succession and not by survivorship. Such  a  distinction
is well known in Hindu Law. Therefore, when Section 8(1)(d)  of  the  Mysore
Act  refers  to  the  properties  passing  on  to  a  single  coparcener  by
survivorship, it has reference to the ancestral  properties  which  come  to
his hands upon partition or otherwise.

It is also well settled that if a coparcener  dies,  his  interest  devolves
upon other coparceners by survivorship. As long as the joint  family  is  in
existence,  all  the  coparceners  jointly  own  all  the  properties.  Each
coparcener is a full owner of each property owned by the joint  family.  The
effect of partition is severance of  status  and,  as  a  consequence,  each
coparcener becomes entitled to separate  possession  and  enjoyment  of  his
share in the joint family properties. Partition by itself does not create  a
right because the right of a coparcener existed even  before  partition.  It
only brings about demarcation of his  interest  with  a  right  to  separate
possession and enjoyment. It is therefore, not correct to state that when  a
coparcener, upon partition, gets his share in the joint  family  properties,
it does not come to him by survivorship. The  right  which  accrues  to  the
coparcener is by operation of the Rule of  Survivorship  and  the  partition
only demarcates his share  in  the  joint  family  properties.  As  observed
earlier, unobstructed heritage always devolves by operation of the  Rule  of
Survivorship and there is no exception to this Rule. It has  therefore  been
held that where a father disposes of by a Will, his interest  in  the  joint
family properties in favour of his son, the properties in the hands  of  the
son still retain the  character  of  coparcenary  property,  and  not  self-
acquired property.

I, therefore, hold that the properties to which Chowdappa  became  entitled,
upon partition passed on to him by survivorship. I find no substance in  the
contention raised on behalf of the respondents that it passed on to  him  by
reason of partition and not by survivorship.

In view of Section 8(1) of the Act, there can be  no  doubt  that  a  single
coparcener such as Chowdappa took the ancestral  property,  subject  to  the
right to shares of female members of the joint family enumerated in  Clauses
(a), (b) or (c) of Section 8(1) of the Mysore Act. The  plaintiff,  being  a
widow of a pre-deceased son, was entitled to a share equal to  one  half  of
the share to which her husband would have been entitled  if  he  were  alive
[vide Section 8(1) (a) of  the  Mysore  Act].  I  therefore  hold  that  the
plaintiff is entitled to claim one half  of  the  share  which  her  husband
could have claimed if he was alive. In the instant case  her  husband  would
have got half share in the properties in a partition between his father  and
himself in  the  year  1946  when  Chowdappa  became  a  single  coparcener.
Consequently,  she  is  entitled  to  1/4th  share  in  the  suit   schedule
properties.” (at para nos.10, 11, 12 and 17)

12.   Unfortunately for Shri Bhat,  this  Court  in  Sathyaprema  Manjunatha
Gowda (Smt) v. Controller of Estate Duty, Karnataka, (1997) 10 SCC 684,  has
taken a view which is directly contrary to the view of the single  Judge  of
the Karnataka High Court.

13.   In Sathyaprema’s case (supra), the question posed was whether  in  the
facts and circumstances of the case the  Tribunal  was  correct  in  holding
that neither the unmarried daughter nor the wife of  the  deceased  had  any
interest in the joint family property of the deceased while  he  was  alive.
This Court stated that the only question for consideration  is  whether  the
estate left by the husband and father of the widow  and  unmarried  daughter
respectively on partition was  obtained  by  survivorship  applying  Section
8(1)(d) of the Act.

14.   This Court exhaustively  discussed  the  meaning  of  the  expressions
“survivor” and “survivorship” and ultimately held:-

“Here, we are concerned with Manjunatha Gowda who had obtained  property  at
a partition with coparceners. Survivorship, therefore, is the living of  one
of two or more persons after the death of  the  others  having  interest  to
succeed in the  property  by  succession.  The  shares  in  the  coparcenery
property changes with death or birth of other coparceners. However,  in  the
case of survivorship it is not  of  the  same  incidence.  He  received  the
property at the partition without there being any other  coparcener.  It  is
an  individual  property  and,  therefore,  he  did  not   receive   it   by
survivorship but by virtue of his status being a  coparcener  of  the  Hindu
Joint Family along with his father and brothers.

Under these circumstances, the conclusion reached by  the  High  Court  that
since it is by partition, not by survivorship,  clause  (d)  of  sub-section
(1) of Section 8 does not get attracted, is not (sic)  correct.   No  doubt,
the learned counsel relied upon the  judgment  of  this  Court  in  Nagendra
Prasad v. Kempananjamma [AIR 1968 SC 209] which was also considered  by  the
High Court in the impugned judgment. This Court therein has  explained  that
the object of Section 8(1)(d) is to give a right to claim  a  share  in  the
joint family property to all females referred  to  in  clauses  (a)  to  (c)
thereof.  Merely because partition by one of the coparceners  under  clauses
(a) to (c) is a condition for a class of family members entitled to a  share
in the property, it does not apply to a case where class of  family  members
entitled under clause 8(1)(d) since it  stands  altogether  on  a  different
footing and, therefore, partition is not a condition precedent for  claiming
a share by a class of family members enumerated in Section  8(1)(a)  of  the
Act.  But that principle has no bearing to the facts in this  case  for  the
reason that the property held was not received by survivorship.

Under  these  circumstances,  family  members   enumerated   under   Section
8(1)(d) are not entitled to a share in the  estate  left  by  the  deceased.
Thus we do not find any illegality in the  view  taken  by  the  High  Court
warranting interference.” (at paragraph nos.13-15)

15.   In fact, this follows from a reading of Section 8.   Whereas  Sections
8(1)(a)(b) and (c) refers to  a  partition  among  coparceners  in  a  joint
family, sub-section (d) refers to property passing to  a  single  coparcener
only by survivorship.  In this behalf, in Nagendra Prasad v.  Kempananjamma,
 [1968] 1 SCR 124, this Court by a majority judgment held:-

“This intention can only be given effect to on the  basis  that  clause  (d)
does not restrict itself to finding out females on the basis of  an  assumed
partition between the last two male coparceners.   It  is  significant  that
clause (d) gives a right independently of a partition and we do not see  why
its scope should be restricted by assuming a partition.” (at page No.128).

16.   In fact, even the dissenting Judge held:-

“Clause  (d)  applies  to  a  case  when  the  family  property  passes   by
survivorship to a sole surviving coparcener. In such a case there can be  no
partition, as is the case under clause  (a)  or  (b)  or  (c).  Indeed,  the
property becomes incapable of partition and but for  clause  (d)  no  female
relative would have any right to a share. To save such a result  clause  (d)
provides that the rights of the female relatives should not be lost only  by
reason of the property  passing  to  the  sole  surviving  coparcener.  Sub-
section 5, furthermore, gives such  female  relatives  as  fall  under  sub-
section 1 a right to have their shares separated and  thus  makes  them  co-
sharers subject to whose rights the  sole  surviving  coparcener  takes  the
property. Therefore, whereas under clauses  (a),  (b)  and  (c)  the  rights
fluctuate according to the position of the female relatives  in  the  family
when the partition takes place there is no  such  uncertainty  in  the  case
falling under  clause  (d)  as  the  sole  surviving  coparcener  takes  the
property subject to the right to shares of female  relatives  falling  under
the provisions of clause (a) or (b) or (c). Such is the  scheme  of  Section

17.   The dissenting Judge basically dissented on the point that under  sub-
clause (d), a partition has to  be  assumed  because  it  is  only  on  such
assumption that females on whom  a  right  to  share  is  conferred  can  be
ascertained.  It is clear, therefore,  that  Section  8(1)(d)  can  have  no
application to a case  where  joint  family  property  passes  to  a  single
coparcener not by survivorship but by partition.

A recent view of  Section  8(1)(d)  in  Smt.  Ramakka  and  others  v.  Smt.
Thanamma since deceased by LR, P. Srinivas and Others,  ILR  2014  Karnataka
1335, has been taken by a  Division  Bench  of  the  Karnataka  High  Court.
While construing Section 8(1)(d), the Division Bench has held:-

“When the coparcenary  property  passes  to  a  sole  surviving  coparcener,
provision has been made in clause (d) of  Section  8(1).   This  clause,  in
protecting the rights of females, had necessarily to give females the  right
to share in the coparcenary property even if there be no partition  at  all,
because, on passing of property to a sole surviving coparcener, there  could
not possibly be any partition sought by the male members of the  coparcenary
body.  The right conferred by  clause  (d)  is,  therefore,  an  independent
right and not connected  with  the  rights  granted  to  the  females  under
clauses (a), (b) and (c).  The females who are to get benefit are all  those
to whom a right to a share in the joint family property would  have  accrued
if there had been a partition either under clause  (a),  or  clause  (b)  or
clause (c).  The language of clause (d) has  to  be  interpreted  as  laying
down that right to shares will vest  in  all  females  of  the  joint  Hindu
family who would have possibly received the right  to  a  share  if  at  any
earlier time there had been partition in the family  in  any  of  the  three
manners laid down in clauses (a), (b)  and  (c).   It  is  significant  that
clause (d) gives a right independent of a partition  and  its  scope  should
not be restricted by assuming a partition.”

      This is the correct view  of  the  law  on  Section  8(1)(d),  and  we
endorse it.

18.   There is also another way of  looking  at  the  issue  raised  in  the
present appeals.  A partition of joint family  property  among  brothers  is
expressly mentioned in Section 8(1)(b).  Therefore, upon partition of  joint
family property between Thimmappa and his older brother, it  is  only  their
mother, their unmarried sisters and widows and unmarried daughters of  their
pre-deceased undivided brothers who have left no male issue who get a  share
under  the  Section.   Unlike  sub-section  (a),  unmarried   daughters   of
Thimmappa do not get any share at the partition between  Thimmappa  and  his

19.   The ground  on  which  the  judgments  below  rested,  namely  Section
10(1)(g), was not even sought to be supported by Shri Bhat. And for  a  very
good reason. In order that Section 10(1)(g) apply, first  and  foremost  the
property referred to is “stridhana” which is defined as  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.
Under Section 10(1)(g) it is only property taken by inheritance by a  female
from her husband that is included in stridhana. This would not  include  the
unmarried daughters as property taken by inheritance by a  female  from  her
father is not included.

20.   In this view of the matter, Shri Hegde is right  in  saying  that  the
succession to a Hindu male dying intestate  will  vest  only  in  the  widow
under Section 4(1)(ii) to the exclusion of the daughters who  are  mentioned
in a subsequent clause i.e. clause (iii) by virtue  of  the  expression  “in
the following order”.  This being the case, it is  clear  that  the  appeals
will have to be allowed and the judgments of the  courts  below  set  aside.
The suit will stand dismissed as a consequence.


                                             (Kurian Joseph)


                                             (R.F. Nariman)

New Delhi;

January 12, 2016.