Holding

A gift of Mitakshara coparcenary property is void unless consent is obtained from all persons who could claim a share, and the proviso to Section 6 of the Hindu Succession Act, 1956 supersedes the Mysore Act, rendering the gift to the unmarried daughter invalid.

Summary

The son of the deceased Karta filed a suit for partition of twelve properties, alleging that the Karta had illegally gifted two ancestral items to his second wife and four coparcenary items to his unmarried daughter. The trial court and the first appellate court held the gifts void for lack of consent and because a coparcener cannot alienate coparcenary property without a pious purpose. The High Court reversed the finding on consent for the gift to the daughter and granted her a share under the Mysore Hindu Law Women’s Rights Act, but the Supreme Court held that consent of only one coparcener was insufficient and that the gift of coparcenary property was impermissible. It further clarified that Section 8 of the Mysore Act is superseded by the proviso to Section 6 of the Hindu Succession Act, 1956, and that the daughter is entitled to a share as a Class I heir in addition to her share as an heir on intestacy. The Court affirmed the High Court’s calculation of shares but set aside its finding on the validity of the gift, allowing the appeal in part.

Issues considered

The validity of gifts of coparcenary property made by a Karta without consent of all coparceners.
Whether the gift to the unmarried daughter was within reasonable limits or for a pious purpose.
The applicability of the Mysore Hindu Law Women’s Rights Act, 1933 to the shares of the widow and unmarried daughter in light of the Hindu Succession Act, 1956.
The scope of a High Court’s power to reassess factual findings on a second appeal under CPC 100.

Legislation cited

Code of Civil Procedure, 1908s. 100
Hindu Succession Act, 1956s. 6, s. 8
Mysore Hindu Law Women’s Rights Act, 1933s. 8(1)(a), s. 8(1)(d), s. 8(2)(c)

Subjects

Hindu lawcoparcenary propertygift of ancestral propertypartitionconsent of coparcenersMysore Women’s Rights ActSection 6 Hindu Succession ActSection 8void giftsurvivorship

Judgment

THIMMAIAH AND ORS. A
v.
NINGAMMA AND ANR.

AUGUST 25, 2000

[A.P. MISRA AND RUMA PAL, JJ.] B

Hindu Law-Succession-Devolution of coparcenery property-Son fil-
ing suit for partition of estate of deceased father ( Karta) comprising ancestral
and coparcenery properties--Wife and unmarried daughter of Karta resisting
suit claiming deceased Karta had gifted items of ancestral property to wife and c
se(f-acquired properties to unmarried daughter by separate gift deeds, the
latter with consent of son-Trial court and appellate court finding lack of
consent and furtha that coparcenery prooerties could not have been given to
daughter by way of gift-High Court negativing claim of wife but holding that
gift to unmarried daughter was validly made with consent of son-High Court
not coming to conclusion that gift to unmarried daughter was either within D
reasonable limits or in fulfilment of any recognised pious purpose-Held, on
facts, gift of coparcenery property to unmarried daughter was legally imper-
missible.

Unmarried daughter of deceased Karta claiming gift of coparcenery
properties to her with consent of coparcener son-Other coparceners not
E
consenting to gift-Held, in the circumstances, the gift to the daughter was
invalid-Hindu Law-Succession.

Hindu Succession Act, 1956, ss.6 proviso, Explanation I-Mysore Hindu
Law Women's Rights Act, 1933, ss.8( J)(a), (d) and 8(2)(c)(Mysore Act)-High
F
Court holding unmarried daughter entitled to I/9th share in Mitakshara
coparcenery property-Whether Mysore Act applied-Held, no, since interest
of deceased coparcener could not pass by survivorship and Mysore Act was
superseded by s.6 of the 1956 Act; ho!;Yever, unmarried daughter would get 11
4th share of her brother in terms of s.8(2)(c) of the Mysore Act in addition to
her share under s.6 of the 1956 Act as heir of male dying intestate. G
Code of Civil Procedure 1908, s.100-Scope of interference by High
Court in Second Appeal on questions offact-Held, High Court not entitled to
reassess evidence and arrive at a different conclusion-Practice and Proce-
dure.
H
653
654 SUPREME COURT REPORTS (2000] SUPP. 2 S.C.R.
A Soon after H's death his son T filed a suit for partition by metes and
bounds of 12 properties described in the Schedule to the plaint and for
separate possession of 7/12th share in such properties. The case in the
plaint was that items I and 2 of the schedule properties were ancestral and
all the remaining properties belonged to the coparcenery. The further case
in the plaint was that H had illegally sought to gift away items I and 2 a
B
deed dated 17.11.1967 to his surviving second wife N and items 3 to 6 by
deed dated 9.6.1971 to his unmarried daughter D through N. T claimed
that the gifts were void.

T's siblings who were named as defendants 3, 4 and 5 in the suit
c supported T and claimed I/4th share in all the 12 properties. N and D
conceded that items I and 2 were ancestral properties but claimed that
items 3 to 6 were the self-acquired properties of H. They claimed that both
the deeds were settlement deeds. The first made provision for the mainte-
nance of N out of items 1 and 2 and after her death, the properties were to
revert to H. By the second deed, items 3 to 6 had been settled on D with the
D
consent of T who had apart from putting a left thumb impression had also
signed the document.

The trial court found the gifts to be void not only because of lack of
consent but also because H was incompetent to gift items 3 to 6 to D. The
E gift of coparcenery property had not been made to D for any pious
purpose. The first appellate court concurred with the finding and conclu-
sion of the trial court.

In a second appeal by N and D, the High Court held that D was
entitled to l/9th share in the coparcenery property under s.8 of the Mysore
F Hindu Law Women's Rights Act 1933 (Mysore Act) but negatived the
claim of N not only under the Mysore Act but also under the deed dated
17.11.1967. Further the High Court held that items 3 to 6 having been
gifted to D with the consent of T was valid and, therefore, not available for
partition. T appealed to this Court.
G
Allowing the appeal in part, the Court

Held : I.I. H could not have donated items of coparcenery property
to D and the deed of gift dated 9.6,1971 was impermissible under Hindu
Law. The High Court had not come to any conclusion as to whether gift of
H coparcenery items by H to D was within reasonable limits or in fulfilment
THIMMAIAH v. NINGAMMA 655
of an antenupital promise made on occasion of settlement of the terms of A
D's marriage. [661-E; DJ

Ammathayee alias, Perumalakkal v. Kumaresan alias Balakrishnan, AIR
(1967) SC 569, referred to.

1.2. Merely getting the consent of T would not do. Consent had to be B
obtained from all the persons who could claim a share in the deceased
coparceners' interest. The appellants 2, 3 and 4 were class I heirs of Hand
had not consented to the gift. The High Court's finding on the validity of
the gift deed dated 9.6.71 was unsustainable. [662-F]

Guramma v. Mallappa, AIR (1964) SC 510, referred to. c
2.1. s.8(1)(d) of the Mysore Act had been superseded by the proviso
to s.6 of the 1956 Act. Reading the two provisions together, where female
members sought to be protected under s.8 of the Mysore Act are in fact
Class I heirs of a deceased coparcener, his interest in the joint family D
property could not pass by survivorship at all. The question of it passing
subject to the rights of any class of females under s.8(1)(d) of the Mysore
Act did not also arise. [665-F-G]

Gurupad Khandappa Magdum v. Hzrabai Khandappa Magdum, [1978]
3 SCR 671, distinguished. E

State of Maharashtra v. Narayana Rao, [1985] 3 SCR 358, referred to.

2.2. If there were an actual partition of the coparcenery properties
between Hand T, under s.8(1)(a) of the Mysore Act, T would get 1/2 share.
N and the appellants 2, 3 and 4 would not get any share in the coparcenery F
property at all. But D as the unmarried daughter would get a share
calculated in terms of s.8(2)(c) of the Mysore Act, namely, I/4th of the
share of her brother T in addition to her share as the heir of H. All the
appellants as well as both the respondents were each entitled to an equal
share in H's interest as heirs on intestacy. [667-A-B] G

3. The High Court was not entitled to reassess the evidence and
arrive at different conclusion. Besides the onus was on the respondents to
prove the fact of T's consent. When items 3 to 6 were being claimed by the
respondents to be the self-acquired property of H, it could hardly be
contended in the same breath that T had consented to the gift of items 3 to H
656 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.
A 6 on the basis that it was coparcenery property and that T was the only
other coparcener. [660-E]

Ladli Parshad Jaswal v. The Karna! Distillery Co. Lid. Kamal, AIR
(1963), referred to.

B CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1062 of 1992.

From the Judgment and Order dated 1.8.91 of the Karnataka High Court
in R.S.A. No. 116 of 1981.

C Ms. Lalita Kaushik for the Appellants.

Rajesh Mahale and K.C. Sudarshan for the Respondents.

The Judgment of the Court was delivered by

D RUMA PAL, J. The issue to be decided in this appeal is the share of
each of the parties in coparcenary properties. Hiri Thimmaiah (referred to
briefly as 'Hiri') was the Karla of the coparcenary. He had two wives Sidamma
and Ninganuna. The appellants are the children of Hiri's first wife, Sidamma.
The respondent No. I is the second wife and the respondent No. 2 is her
daughter.
E
Hiri died in 1971. Soon after his death, in 1972, the appellant No. 1 filed
a suit for partition by metes and bounds of 12 properties described in the
Schedule to the plaint and for separate possession of 7/12th share in such
properties. The case in the plaint was that items I and 2 of the schedule
F properties were ancestral and all the remaining properties belonged to the
coparcenery. The forther case in the plaint was that Hiri had illegally sought
to gift away item No. I and 2 by deed dated 17.11.67 to the respondent No.
I and items 3 to 6 by deed dated 9.6.71 to the respondent No. 2. The appellant
No. 1 claimed a declaration that the gifts were void.

G The appellants 2, 3 and 4 were named as defendants 3, 4 and 5 in the
suit. They filed a wrillen statement substantially supporting the case of the
appellant No. 1 and claiming I/4th share in all the 12 properties.

In their written statement, the respondents (who were the defendants I
H and 2 in the suit) conceded that items I and 2 were ancestral properties but
\

THIMMAIAH v. NINGAMMA [RUMA PAL, J.] 657
claimed that items 3 to 6 were the self-acquired properties of Hiri. They A
claimed that both the deeds were settlement deeds. The first settlement deed
dated 17 .11.67 made provision for the maintenance of respondent No. 1 out of
items 1 and 2 and after her death, the properties were to revert back to Hiri.
By the second deed dated 9.6.71, items 3 to 6 had been settled on the second
respondent with the consent of appellant No. 1 who had not only put his left
B
thumb impression on the deed but had also signed the document as a consenting
party.

Issues were framed on the basis of the pleadings. Witnesses were exam-
ined in support of the contesting parties. The Trial Court negatived the claim
put forward by the respondents that the two deeds were deeds of settlement. c
It was held that items 3 to 6 were not the self-acquired properties of Hiri but
belonged to the coparcenary and that the two deeds were deeds of gift and were
void. In coming to this conclusion, the Trial Court noted the contention of the
appellant No. 1 that fraud had been committed on him and that he had not fixed
his left thumb impression by way of his consent to the document dated 9.6.71
and s.-:J: D

"It has to be noted that there is material in the evidence of D.W- 2 the
uncle of the plaintiff, to show that on the very same day of the
execution of the document in question, the father of the plaintiff
executed another document in favour of his brother D.W-2 as per Ex.P-
E
24 and in the course of obtaining consent of the plaintiff to that
document, Ex.P-24, the signature of the plaintiff is by deceitful means
obtained on Ex.D-2 also."

However, the Tri~l Judge did not hold that the deeds were void only
because of the lack of the consent of appellant No. 1. Relying on the decision F
of this Court in Ammathayee alias Perumalakkal and Am: v. Kumaresan alias
Balakrishnan and Others, AIR (1967) SC 569 the Trial Judge held that Hiri
was incompetent to gift items 3 to 6 to the respondent No. 2 irrespective of the
consent of the appellant No. I. According to the Trial Judge immovable
ancestral properties could only be gifted within reasonable limits for pious
purposes such as the marriage of an unmarried daughter. The Trial Court found G
that a considerable portion of the coparcenary properties had been
gifted by Hiri to the respondent No. 2 and that it could not be said that the
gift had been made in favour of the second respondent in fulfilment of any
pious purpose as she w~s well below the marriageable age when the gift was
made. H
658 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.
A The appellant No. l's suit was accordingly decreed on 8th August, 1977
as prayed for by the respondent No. 1 and a preliminary decree for partition
was passed.

The respondents preferred an appeal before the District Judge. The First
Appellate Court dismissed the appeal and upheld the findings of the trial Court
B
that the properties were coparcenery and could not have been affected by the
two impugned deeds executed by Hiri in favour of the respondents. On the
question of consent, the District Judge said:

"Plaintiff has taken the stand that his L.T.M. is taken to Ex.D-1 at
c Ex.D.l (e) by practising fraud on him when he had gone to the Sub-
Registrar's Office at the time of execution of another document by his
father regarding sale of a site. Even if it can be held on the basis of
the evidence of D.Ws. 1 and 2 that plaintiff has attested Ex.D-1 by
putting his L.T.M. at Ex.D-1 (e), I find it difficult to uphold the validity
of Ex.D-1 as there is no recital in the body writing of Ex.D-1 that the
D
properties were gifted by H. Thimmaiah in favour of the 2nd defendant
with the specific consent of the plaintiff. Therefore, the mere attesta-
tion ofEx.D-1 by the plaintiff by putting his L.T.M. would not validate
the gift of considerable portion of family properties made under Ex.D-
I."
E
A second appeal was preferred by the respondents before the High Court.
There it was urged by the respondents for the first time that by virtue of the
Mysore Hindu Law Women's Rights Act, 1993 (hereafter referred to as the
'Mysore Act'), the respondent No. 1 was entitled to a widow's share and the
respondent No. 2 to an unmarried daughter's share in addition to their rights
F
on intestacy as heirs of Hiri under the Hindu Succession Act, 1956 as well as
under the two deeds dated 17.11.67 and 9.6.71. The High Court held that the
respondent No.2 was entitled to l/9th share in the coparcenary property under
Section 8 of the Mysore Act but negatived the claim of the respondent No. 1
not only under the Mysore Act but also under the deed dated 17.11.67. As far
G as the deed dated 9.6.71 was concerned, it was held by the High Court that
items 3 to 6 had been gifted to the respondent No. 2 with the consent of the
appellant No. 1 and was, therefore, valid. The High Court held that the con-
clusion arrived at by the Trial Court and the First Appellate Court that the
appellant No. 1 had not consented to the gift, was not based on any acceptable
H evidence. According to the High Court, items 3 to 6 were, therefore, not
TIIIMMAIAH v. NINGAMMA [RUMA PAL, J.] 659
available for partition and the parties' entitlement in the remaining properties A
were:

Appellant No. I 419+4154 =28/54
(son)

Appellant No. 2 =4/54 B
(married daughter)

Appellant No. 3 =4/54
(married daughter)

Appellant No. 4 =4/54 c
(married daughter)

Respondent No. I =4/54
(widow)

Respondent No. 2 119+4/54 =10/54 D
(unmarried daughter)

The judgment delivered on !st August 1991 by the learned Single Judge
of the High Court has been impugned before this Court on the ground that
the High Court on second appeal should not have interfered with E
concurrent findings of fact on the appellants' lack of consent and should not
have applied the provisions of the Mysore Act which, according to the appel-
lants, had been excluded by the provisions of Section 4 of the Hindu Succes-
sion Act, 1956.

The respondents have relied upon the decisi.on of this Court in Ladli F
Parshad Jaiswal v. The Kamal Distillery Co., Ltd. Kamal and Others, AIR
( 1963) SC 1279 to contend that the High Court was competent to reverse the
finding of the lower courts that there was no consent of the appellant No. 1,
because the finding was based on no evidence. It is also contended that the
provisions of the Mysore Act are ancillary to the provisions of the Hindu G
Succession Act, 1956 and particularly Sections 6 and 8 of that Act.

In Jaiswal's case (supra), this Court has, no doubt, held that:

"A decision of the First Appellate Court reached after placing the onus
wrongfully or based on no evidence, or where there has been substan- H
660 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.
A tial error or defect in the procedure, producing error or defect in the
decision of the case on the merits, is not conclusive and a second
appeal lies to the High Court against that decision."

But at the same time, this Court has noted that the High Court has no
jurisdiction to entertain a second appeal "on the ground of an erroneous finding
B of fact, however, gross or inexcusable the error may seem to be". In other
words, if there is some evidence and the appreciation of the evidence is
erroneous, a second appeal will not lie.

Further the decision in Jaiswal 's case was rendered prior to the amend-
C ment of Section 100 by which the provisions of second appeal are more
stringent and have been strictly limited to those cases where a 'substantial
question of law arises' and in no others.

We have already noted the findings of the Trial Court as well as the First
Appellate Court on the question of consent. These observations clearly show
D that there was some evidence in support of the finding of the lower courts. In
the circumstances, the High Court was not entitled to reassess the evidence and
arrive at a different conclusion. Besides the onus was on the respondents to
prove the fact of the appellant No. i ·s consent. When items 3 to 6 were being
claimed by the respondents to be the self-acquired property of Hiri, it could
E hardly be contended in the same breath that the appellant No. l had consented
to the gift of items 3 to 6 on the basis that it was coparcenary property and the
appellant No. I the only other coparcener.

The High Court also erred in its view on the effect of consent on a gift
which may otherwise be void. This Court in Ammathayee alias Perumalakkal
F and Another v. Kwnaresan alias Balakrishnan and Others, AIR (1967) SC 569
summarised the Hindu Law on the question of gifts of ancestral properties in
the following words:

"Hindu law on the question of gifts of ancestral property is well
settled. So far as moveable ancestral property is concerned, a gift
G out of affection may be made to a wife, to a daughter and even to
a son, provided the gift is within reasonable limits. A gift for
example of the whole or almost the whole of the ancestral move-
able property cannot be upheld as a gift through affection. (See
Mulla's Hindu Law, 13th Edn., p.252, para 225). But so far as
H immovable ancestral property is concerned, the power of gift is
THIMMAIAH v. NINGAMMA [RUMA PAL, J.] 661
much more circumscribed than in the case of moveable ancestral A
property. A Hindu father or any other managing member has power
to make a gift of ancestral immovable property within reasonable
limits for "pious purposes"; (see Mulla's Hindu Law, 13th Edn.,
para 226, p. 252). Now what is generally understood by "pious
purposes" is gift for charitable and/or religious purposes. But this
B
Court has extended the meaning of "pious purposes" to cases
where a Hindu father makes a gift within reasonable limits of
immovable ancestral property to his daughter in fulfilment of an
antenuptial promise made on the occasion of the settlement of
the terms of her marriage, and the same can also be done by the
mother in case the father is dead.( See Kamala Devi v. Bachu Lal c
Gupta, [1957] SCR: AIR (1957) SC 434."

The Karta is competent or has the power to dispose of coparcenary
property only if (a) the disposition is of a reasonable portion of the coparcenary
property and (b) the disposition is for a recognised "pious purpose". The High
Court has not come to any conclusion as to whether the gift of items 3 to 6
D
by Hiri to the respondent No. 2 was within reasonable limits or in fulfilment
of an antenuptial promise made on the occasion of the settlement of the terms
of the respondent No.2' s marriage. It must be taken, therefore, that the findings
of the lower courts on both counts were accepted. That being so, Hiri could
not have donated items 3 to 6 to respondent No. 2 and the deed of gift dated E
9.6.71 was impermissible under Hindu Law. The question is - could such an
alienation be made with the consent of the appellant No. 1?

It is arguable that there is a distinction between a void disposition
and a voidable one, and that the gift in favour of the respondent No. 2 being
void cannot be made even with the consent of the appellant No. l. However, F
it is not necessary to decide the issue in the view that we have taken in this
case.

This Court in Guramma v. Mallappa, AIR (1964) SC 510 has envisaged
three situations of voidable transactions. It was held that a managing member
G
may alienate joint family property in three situations, namely: (i) legal neces-
sity, or (ii) benefit of the estate or (iii) with the consent of all the coparceners
of the family. Where the alienation is not with the consent of all the coparceners,
it is voidable at the instance of the coparcener whose consent has not been
obtained. Needless to say where there is only a sole surviving coparcener and
no other member of the family who has a joint interest in the property, there H
662 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.
A are no fetters on the alienation of the property. Assuming that the principle
enunciated in Guramma v. Ma/lappa (supra) would apply to void alienations
of joint family property, the question of consent of all interested parties would
still remain.

The rationale behind the impermissibility of certain dispositions of
B coparcenary properties is the protection of the interest of other coparceners.
Where other persons have an interest in coparcenary property, whether incho-
ate or otherwise, and willingly acquiesce in the depletion of such interest for
whatever purpose, such a disposition would be permissible. In this case, apart
from the appellant No. 1, if the other heirs of Hiri had such an interest, merely
c getting the consent of the appellant No. 1 would not do.

The impugned deed was executed in 1971, prior to Hiri's death in the
same year. By this time, the Hindu Succession Act, 1956 had come into force.
The proviso to section 6 of the 1956 Act ( considered at greater length later
in the judgment) now provides that the deceased's interest in Mitakshara
D coparcenary property does not devolve by survivorship if the deceased leaves
surviving him female relatives specified in class I of the Schedule. Conse-
quently, the interest of the surviving coparcener to the deceased's coparcenary
share, in such a case, no longer survives and his consent to depletion of his
interest in joint family property would not, therefore, make a gift of coparcenary
E property otherwise invalid, valid. Consent in such a case would have to be
obtained from all the persons who could claim a share in the deceased
coparceners' interest. The appellants 2, 3 and 4 as well as both the respondents
are class I heirs of Hiri. It is not the case of the respondents that the appellants
2, 3 and 4 had consented to the gift. We are, therefore, of the opinion that the
finding of the High Court on the validity of the deed of gift dated 9.6.71 is
F unsustainable and it is accordingly set aside.

The next question is the applicability of Section 8 (1) (d) of the Mysore
Act. It may be stated at the outset that while we affirm the conclusions reached
as to the shares of the parties, it appears to us that the High Court has miscon-
strued the provisions of Section 8 (!) (d). Section 8 reads:
G
" 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
H left no male issue shall be entitled to share with him.
THIMMAIAH v. NINGAMMA [RUMA PAL, J.] 663
(b) At a partition of joint family property among brothers, their mother, A
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 coparceners in a joint family. B

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

(2) Such share shall be fixed as follows: - c
(a) in the case of the widow, one-halfof what her husband, ifhe were
alive, would receive as his share;

(b) in the case of the mother, one-half of the share of a son if she
has a son alive, and, in any other case, one-half of what her D
husband if he were alive, would receive as his share;

(c) in the case of every unmarried daughter or sister, one-fourth of
the share of a brother if she has a brother alive, and, in any other
case, one-fourth of what her father, if he were alive, would
E
receive as his share: provided that the share to which a daughter
or sister is entitled under this section shall be inclusive of, and
not in addition to, the legitimate expenses of her marriage includ-
ing a reasonable dowry or marriage portion.

(3) In this section, the term "widow" includes, where there are F
more widows than one of the same person all of them jointly, and
the term "mother" includes a step-mother and, where there are
both a mother and a step-mother, all of them jointly and the
term "son" includes a step-son as also a grandson and a great
grandson; and the provisions of this section relating to the mother G
shall be applicable mutatis mutandis to the paternal grandmother and
great grandmother.

(4) Fractional shares of the females as fixed above shall relate to the
share of the husband, son, father or brother as the case may be and their
value shall be ascertained by treating one share as allotted to the male H
664 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.
A and assigning therefrom the proper fractional shares to the female
relatives.

(5) Each of the female relatives referred to in sub-section (I) shall be
entitled to have her share separated off and placed in her possession.

B Provisos: - Provided always as follows:

(i) No female relative shall be entitled to a share in property ac-
quired by a person and referred to in Section 6, so long as he is
alive;

(ii) No female whose husband or father is alive shall be entitled to
c demand a partition as against such husband or father, as the case
may be;

(iii) A female entitled to a share in any property in one capacity of
relationship shall not be entitled to claim a further or additional
share in the same property in any other capacity.
D
Illustration: A and his son B effect a partition of their family property.
A has a mother and two unmarried daughters. Their shares will be as
follows: -

Father
E
Son

Mother 112

Two daughters 114 each
F The property will be divided in the above proportion, the father
getting 113, the son 113, the mother 1/6 and each daughter 1112."

Clauses (a), (b), (c) and (d) of sub-section(!) of Section 8 deal with four
separate situations. Clause (a) deals with a partition of joint family between a
person and his sons. Clause (b) deals with the partition of joint family property
G among brothers, clause (c) applies to a partition among other coparceners in
a joint family. Clause (d) provides for a situation where joint family property
passes to a single coparcener by survivorship. The female members who have
been declared to be entitled to shares are the mother of the concerned coparcener,
his unmarried daughters and widows and unmarried daughters of pre-deceased
H sons and undivided brothers.
THIMMAIAH v. NINGAMMA [RUMA PAL, J.] 665
At this stage, it would be appropriate to refer in detail to relevant portions A
of Section 6 of the 1956 Act:

"6. Devolution of interest in coparcenary property. - When a male
Hindu dies after the commencement of this Act, having at the time of
his death an interest in a Mitakshara coparcenary property, his interest
in the property shall devolve by survivorship upon the surviving B
members of the coparcenary and not in accordance with this Act.

Provided that, if the deceased had left him surviving a female
relative specified in class I of the Schedule or a male relative specified
in that class who claims through such female relative, the interest of
the deceased in the Mitakshara coparcenary property shall devolve by c
testamentary or intestate succession, as the case may be, under this Act
and not by survivorship.

Explanation I. - For the purposes of this section, the interest of a Hindu
Mitakshara coparcener shall be deemed to be the share in the property
that would have been allotted to him if a partition of the property had D
taken place immediately before his death, irrespective of whether he
was entitled to claim partition or not.

Explanation 2 - x x x x x x x x"
(Emphasis supplied) E

It is not in dispute that the Mysore Act deals with Hindu Mitakshara
coparcenary rights. This is also clear from the definition of 'Hindu' in section
3 (..:)of the Mysore Act. Section 4 of the 1956 Act gives overriding effect to
the 1956 Act in so far as any law governing Hindus is inconsistent with the
provisions of the 1956 Act. Reading the proviso to section 6 of the 1956 Act F
with section 8 of the Mysore Act, it is clear that where the female members
sought to be protected under Section 8 of the Mysore Act are in fact
Class I heirs of a deceased coparcener, his interest in the joint family property
cannot pass by survivorship at all. Thus the question of it passing subject to
the rights of any class of females under Section 8 (1) (d) of the Mysore Act G
does not also arise. This would mean that Section 8 (1) (d) of the Mysore Act
has been superseded by the proviso to Section 6 of the 1956 Act to the extent
stated.

The decision in Gurupad Khandappa Magdum v. Hirabai Khandappa
Magdum & Ors., [1978] 3 SCR 671 is an authority for the proposition that H
666 SUPREME COURT REPORTS [2000] SUPP. 2 S.C.R.
A where a female is entitled to a share in coparcenary property on partition, then
by virtue of Explanation I to Section 6 of 1956 Act, she continues to be so
entitled despite the fact that no partition may actually have taken place prior
to the coparcener' s death. This Court held that Explanation I to Section 6
covered a situation where a Hindu coparcener dies without actual partition
having taken place. In such event, the Court will have to assume that a partition
B
had in fact taken place immediately prior to the death of the coparcener
concerned and grant shares on the basis of such notional partition. This Court
also held that the share of the female member on such partition was in addition
to any share which she may get as an heir of the deceased coparcener. [See also
State of Maharashtra v. Narayan Rao, [1985] 3 SCR 358: AIR (1985) SC 716,
c 721.

Reliance by the respondents on the decision of this Court in Gurupad
Khandappa Magdum v. Hirabai Khandappa Magdum and Ors., [1978] 3 SCR
671 to contend that the respondents were entitled to shares in the coparcenary
property by virtue of Section 8 (1) (d) of the Mysore Act is misplaced because
D as already noted Section 8 (1) (d) in terms does not apply in the facts of this
case because of the proviso to Section 6 of the 1956 Act.

Under Explanation I to Section 6 of the 1956 Act, the Court will have
to ascertain what the shares of the parties would be as if Hiri had sought for
partition just before his death. The only other coparcener being the appellant
E No.l, the partition would have to be effected according to Section 8 (1) (a)
which provides for partition between a coparcener and his son/sons. Under
Section 8 (1) (a) the female members who could claim a share in.the coparcenary
properties would be Hiri's mother, his unmarried daughter (the respondent
no.2) and the widow or unmarried daughters of any predeceased sons or
F brother. Admittedly, Hiri's mother was not alive in 1971. Nor had Hiri any
predeceased son or brother. The sole female member entitled to a share under
Section 8 (1) (a) therefore is the respondent No.2. The appellant being the other
coparcenar would get 112 of the coparcenary properties on partition. In terms
of Section 8 (2) (c) of the Mysore Act, his sister, the respondent no.2 would
get 1/2 her brother's share, namely I/4th of the coparcenary properties. The
G remaining interest would belong to Hiri. It has not been disputed before us that
under Section 8 of the 1956 Act, each of the parties to this appeal is entitled
to claim a share in Hiri's interest as his Class I heir. On the basis of the ratio
in Gurupad Khandappa Magdum's case (supra), the respondent No.2 would
also be entitled to a share in Hiri's interest as an heir on intestacy, under Section
H 8 of the 1956 Act.
THIMMAIAH v. NINGAMMA [RUMA PAL, J.] 667
To sum up: if there were an actual partition of the coparcenary properties A
between Hiri and his son, under Section 8 (I) (a) of the Mysore Act, his son,
the appellant No. 1 would get 112 share. His wife, namely the respondent No.
!, and the appellants 2, 3 and 4 would not get any share in the coparcenary
property at all. But the respondent No. 2 as the unmarried daughter would get
a share calculated in tenns of Section 8 (2) (c) of the Mysore Act, namely,
B
I/4th of the share of her brother, namely, the appellant No. I in addition to her
share as the heir of Hiri. All the appellants as well as both the respondents are
each entitled to an equal share in Hiri's interest as heirs on intestacy. The High
Court has, therefore, correctly calculated the shares of the parties and we affirm
its conclusion in this regard.
c
The appeal is accordingly partly allowed. We hold that items 3 to 6 of
the Schedule to the plaint are available for partition as coparcenary property
according to the shares declared by the High Court. There will be no order as
to costs.

S.M. Appeal partly, allowed.