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PETITIONER: SMT. JAYAMMA & ANR.

       Vs.

RESPONDENT: SMT. THIMMAMMA (DEAD) BY L.RS. & ANR.

DATE OF JUDGMENT01/11/1995

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. KIRPAL B.N. (J)

CITATION:  1996 SCC  (1) 506        JT 1995 (8)   505  1995 SCALE  (6)601

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Delay condoned.      Leave granted.      Though notices  were served  on both the respondents as early as  in March  1991, till  date none  has  appeared  in person  or  though  counsel.  Notices  served  on  them  are sufficient.   The   respondents   are   daughters   of   one Doddahanumegowda. Doddahanumegowda  died  on  May  21,  1972 leaving behind  Chikhanumegowda, Ningamma (first defendant), Mariyamma (Plaintiff  No.2), Javaramma (defendant No.2), and Boramma (defendant  No.3) both through their predeceased son Chikhanumegowda. On  his demise Mariyamma and Thimmamma, the daughters  of   Doddahanumegowda  filed   the  suit   for  a declaration that they became owners pursuant to a settlement deed dated  23.5.1970 and  succeeded to the entire property. Therefore, they were entitled to the exclusive possession of the plaintiff’s  property. Thereon, the appellants and thier mother  had   contended  that   they  being   the  heirs  of predeceased son  Chikhanumegowda, they  are also entitled to half   share   in   the   coparcenary   property   left   by Doddahanumegowda. The  Trial Court  dismissed O.S. No.216/72 by its  judgment and  decree dated  June 20,  1977.  But  on appeal, the  appellants court  reversed the  decree  holding that  the   appellants   had   not   proved   as   to   when Chikhanumegowda died  and that  Doddahanumegowda  being  the sole surviving  coparcener, he became the absolute owner and thereby he  was entitled  to bequeath the property in favour of his  daughter, which was upheld by the High Court in S.A. No.34/79 by judgment and decree dated January 24, 1989.      It is  seen that  in the  plaint  the  respondents  had admitted that  Chikhanumegowda died  33 years  prior to  the suit.  Suit   was  filed   in  1972.   Thus,  the  death  of Chikhanumegowda, the  father of  the appellants,  admittedly occurred in  1938 or  1939 by  which time  the Hindu Women’s Right to  property Act,  1937 had  come into  force. Section

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8(d) of  the Act  envisages that where joint family property passes to  a single  coparcener by survivorship, it shall so pass subject  to the  right to  the share  of the classes of females enumerated  in the  sub-sections. Classes of females consist of  widows and  the daughter of the pre-deceased son of  the   sole  surviving   coparcener.  Consequently,   the appellants and  their mother became entitled to the share in the coparcenery  property.  Since  Chikhanumegowda  and  the father of  the respondents  being the  only coparceners they are entitled  to equal share in the property. Therefore, the appellants are entitled to half share in the plaint schedule property.  The  High  Court  and  the  appellate  court  had committed error  in refusing  to grant  relief. The judgment and decree  of the  Trial Court  and the appellate court are set aside.  However, there  shall be a preliminary decree to the extent  of half  share in  the property in favour of the appellants. It  would be  open to  the appellants to make an application to pass the final decree in the Trial Court.      The appeal is accordingly allowed. No costs.