L. GOWRAMMA (D) BY LR.versusSUNANDA (D) BY LRS. & ANR.

                             [2016] l S.C.R. 256


A                        L. GOWRAMMA (D) BY LR.
                                         v.
                      SUNANDA (D) BY LRS. & ANR.
                      (Civil Appeal Nos. 174-175 of 2016)
                               JANUARY 12, 2016
B
             [KURIAN JOSEPH AND R. F. NARIMAN, JJ.]
          Hindu Law Women's Rights Act, 1933 (Mysore Act No. X of
    1933) - ss. 4, JO and 8 - Succession to Hindu male dying intestate
    - On facts, constitution of joint Hindu family between two brothers
    and wife of elder brother - Elder brother karta of the family -
C   Partition of joint family property between two brothers - Death of
    younger brother leaving behind his widow and three daughters -
    Execution of Will by widow-defendant no. 1 bequeathing her share
    in joint property in favour of only one of her daughters - Suit by
    other daughter against her mother-defendant no. 1, her sisters and
D   a purchaser who bought some property from her mother - Claim as
    regards her share in the property - Trial court applying s. 10(2)(g)
    held that the plaintiff entitled to w• share in the scheduled properties
    and decreed the suit - First appeal by defendant no. 1, dismissed -
    Review petition also dismissed applying s. 8(1 )(d) - On appeal,
    held: Succession to a Hindu male dying intestate would vest only in
E   the widow u/s. 4( 1 )(ii) to the exclusion of the daughters - Judgments
    of the courts below set aside.
         Allowing the appeals, the Court
       HELD: 1.1 A partition of joint family property among
F brothers is expressly mentioned in Section S(l)(b) of the Hindu
  Law Women's Rights Act, 1933 (Mysore Act No. X of 1933).
  Therefore, upon partition of joint family property between 'T'
  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
G would get a share under the Section. Unlike sub-section (a),
  unmarried daughters of 'T' do not get any share at the partition
  between 'T' and his brother. [Para 18] [265-C-DJ
       1.2 Under Section lO(l)(g) it is only property taken by
  inheritance by a female from her husband that is included in
H stridhana. This would not include the unmarried daughters as
                               256
   L. GOWRAMMA (D) BY LR. v. SUNANDA (D) BY LRS.                         257



property taken by inheritance by a female from her father Is not A
included. The succession to a Hindu male dying intestate would
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".
The judgment of the courts below Is set aside and the suit would B
be dismissed as a consequence. [Para 19, 20] (265-F-G]
      Byamma v. Ramdev ILR 1991 KAR 3245; Sathyaprema
      Manjunatha Gowda (Smt) v. Controller of Estate Duty,
      Karnataka (1997) 10 SCC 684: 1997 (3) SCR 86;
      Nagendra Prasad v. Kempananjamma 1968 1 SCR 124;
      Smt. Ramakka and others v. Smt. Thanamma since                     c
      deceased by LR, P. Srinivas and Others ILR 2014
      Karnataka 1335 - Referred to.
                         Case Law Reference
     I.L.R. 1991 KAR 3245               Referred to.    Para 11          D
     1997 (3) SCR 86                    Referred to.    Para 12,13
     1968 1 SCR 124                     Referred to.    Para 15
     ILR 2014 Karnataka 1335            Referred to.    Para 17
     CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 174-                E
175 of2016
     From the Judgment and Order dated 05.08.2005 and 24.11.2007 of
the High Court of Karnataka at Bangalore in R.F.A. No. 915 of 2005
and in Review Petition No. 712 of 2005 in R.A.A. No. 915 of 2005.
     R. S. Hegde, Shanti Prakash, Rajeev Singh for the Appellants.       F

     S. N. Bhat for the Respondents.
     The Judgment of the Court was delivered by
      R. F. NARIMAN, J. 1. Delay condoned in filing the special leave
petitions.                                                               G
     2. 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
                                                                         H
258               SUPREME COURT REPORTS                        [2016] l S.C.R.


A     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. Tltimmappa died on 9.10.1952, leaving behind him
B
      his widow one Gowrarnma 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
c     namely item No.3 to the said 4'h defendant during the pendency of the
      suit.
            4. One of the said daughters namely Sunanda filed a suit against
      defendant No. I - her mother, defendant Nos. 2 and 3 - her sisters, and
      defendant No.4-the purchaser, being O.S. No.46 of 1994. After setting
D     out the relevant facts, the Civil Judge, Senior Division hy judgment dated
      28.3.2005 framed as many as 12 issues and ultimately decided on
      application of Section I 0(2)(g) of the 1933 Act that the plaintiff would
      be entitled to a l/4'h share in the scheduled properties and the suit was
      decreed accordingly.
E            5. In a first appeal filed by defendant No.I, 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
 F    Section 8( I)( 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
G     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( l )(d) of the Act and according to him since joint
      family property passed to Thimmappa who was a single coparcener by
H
   L. GOWRAMMA (D) BY LR. v. SUNANDA (D) BY LRS.                             259
                [R. F. NARIMAN, J.]

survivorship, on partition in 1940-1941, all the classes of females          A
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).                                                   B
                                    "Part I
                               INHERITANCE
      4. Order of succession:-
      ( I) The succession to a Hindu male dying intestate shall, in the      C
      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 ;
                                                                             D
      iii) daughters;
      iv) daughter's sons
      xxx                        xxx                        xxx
                                                                             E
      8. Certain females entitled to shares at partition-
      (!) (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
                                                                             F
      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.
                                                                             G
      (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.               H
260                 SUPREME COURT REPORTS                         [2016] 1 S.C.R.



A            xxx                  xxx                      xxx
             .IO.         What is "stridhana" -
             (I) "Stridhana" means property of every description belonging to
             a Hindu female, otber than property in which she has, by law or
             under the terms of an instrument, only a limited estate.
B            (2) "Stridhana" includes:-
                    xxx           xxx                      xxx               xxx
             (g) property taken by inheritance by a female from anotber female
             and property taken by inheritance by a female from her husband
c            or son, or from a male relative connected by blood except when
             tbere is a daughter or daughter's son of tbe propositus alive at tbe
             time tbe property is so inherited.
             (3) All gifts and payments otbertban or in addition to, or in excess
             of, tbe customary presents of vessels, apparel and other articles
0            of personal use made to a bride or bridegroom in connection witb
             their marriage or to their parents or guardians or other person on
             tbeir behalf, by tbe bridegroom, bride or tbeir relatives or friends,
             shall be the stridhana of tbe bride."
             10. A cursory reading of Section 8 would reveal that various females
 E    mentioned in tbe Section would be entitled to a share of joint family
      property in the circumstances mentioned tberein. Under Sections 8(1)(a)
      to 8( I)(c) tbere has necessarily first to be a partition in tbe circumstances
      mentioned in each of the said sub-sections whereas under sub-section
      ( d) what is required is tbat joint family properties should pass to a single
      coparcener by survivorship. If tbis condition of sub-clause (d) is met,
 F    tben all tbe women mentioned in sub-clauses (a) to (c) would be entitled
      to a share tberein.
           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 oftbe 1933 Act, it was held:-
G            "It is well settled that devolution of joint family property, which
             come to tbe hands of a son from his fatber or grand-fatber 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
H            to tbe hands of a coparcener in which he has no right by birth.
L. GOWRAMMA (D) BY LR. v. SUNANDA (D) BY LRS.                               261
             [R. F. NARIMAN, J.]

 This is what is known as obstructed heritage, and such property            A
 devolve by succession and not by survivorship. Such a distinction
 is well known in Hindu Law. Therefore, when Section 8(l)(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.
                                                                            B
 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                c
 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           D
 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               E
 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.                                                    F
 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.                                                              G
  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              H
262               SUPREME COURT REPORTS                          [2016] 1 S.C.R.


A           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
B
            his father and himself in the year 1946 when Chowdappa became
            a single coparcener. Consequently, she is entitled to I/4th share in
            the suit schedule properties." (at para nos.JO, ll, 12 and 17)
            12. Unfortunately for Shri Bhat, this Court in Sathyaprema
      Manjunatha Gowda (Smt) v. Controller of Estate Duty, Karnataka,
c     ( 1997) 10 sec 684, has taken a view which is directly contrary to the
      view of the single Judge of the Kamataka 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
D     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.
E          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
 F    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
G     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
H
   L. GOWRAMMA (D) BY LR. v. SUNANDA (D) BY LRS.                                  263
                [R. F. NARIMAN, J.]

         of this Court in Nagendra Prasad v. Kempananjamma [AIR 1968              A
         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        B
         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             C
         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        D
         the High Court warranting interference." (at paragraph nos.13-
         15)
       15. In fact, this follows from a reading of Section 8. Whereas
Sections 8(l)(a)(b) and (c) refers to a partition among coparceners in a
joint family, sub-section (d) refers to property passing to a single              E
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   p
         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:-                              G
         "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        H
264               SUPREME COURT REPORTS                         [2016] 1 S.C.R.


A           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.
B
            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
c           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 is only on such
      assumption that females on whom a right to share is conferred can be
D     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(l)(d) in Smt. Ramakka and others v.
      Smt. Thanamma since deceased by LR, P. Srinivas and Others,
E     ILR 2014 Karnataka 1335, has been taken by a Division Bench of the
      Karnataka High Court. While construing Section 8(l)(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 ).
F            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
G            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
H           .interpreted as laying down that right to shares will vest in all
   L. GOWRAMMA (D) BY LR. v. SUNANDA (D) BY LRS.                                  265
                [R. F. NARIMAN, J.]

       females of the joint Hindu family who would have possibly received         A
       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."
                                                                                  B
    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            c
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.                                                        D
      19. The ground on which the judgments below rested, namely Section
lO(l)(g), was not even sought to be supported by Shri Bhat. And for a
very good reason. In order that Section IO(l)(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              E
which she has by law or under the terms of an instrument only a limited
estate. Under Section lO(l)(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.                                         p
      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          G
have to be allowed and the judgments of the courts below set aside.
The suit will stand dismissed as a consequence.
Nidhi Jain                                                    Appeals allowed.