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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

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

L. GOWRAMMA (D) BY LR.           …APPELLANT              

 VERSUS

SUNANDA (D) BY LRS. & ANR.           ...RESPONDENTS

J U D G M E N T  

R.F. Nariman, J.

1. Delay condoned in filing the special leave petitions.  

2. Leave granted.

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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 4 th 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.  

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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 accordingly.  

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  

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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.  

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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

INHERITANCE

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  

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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” –

(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 :-

     XXX XXX XXX XXX

(g) property  taken  by  inheritance  by  a  female  from  another  female  and  property  taken  by  

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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  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  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.   

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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  

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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  

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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.  

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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  

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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  

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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 8(1).”

17. The dissenting Judge basically dissented on the point that  

under sub-clause (d), a partition has to be assumed because it  

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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  

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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 brother.   

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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  

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allowed and the judgments of the courts below set aside.  The  

suit will stand dismissed as a consequence.  

……………………J.

(Kurian Joseph)

……………………J.

(R.F. Nariman)

New Delhi;

January 12, 2016.  

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