Annapurnavva W/O. ... vs Parvatevva W/O. Parameshwarayya
2021 Latest Caselaw 2964 Kant

                                 1


                                                 R
           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

         DATED THIS THE 7TH DAY OF JULY, 2021

                           PRESENT

         THE HON'BLE MR. JUSTICE R.DEVDAS

                              AND

         THE HON'BLE MS. JUSTICE J.M.KHAZI

                 R.F.A.No.100007/2014
                          c/w
              R.F.A.No.100028/2014 (PAR.)

IN R.F.A.No.100007/2014

BETWEEN:

SMT.ANNAPURNAVVA,
D/O *SIDDARAMAYYA KALLAYANAVAR HIREMATH
HERSELF CALLING AS
 W/O. PARAMESHAWRAYYA, KARASTHAL,

THE PLAINTIFF HAS WRONGLY MENTIONED
NAME OF APPELLANT AND HER CORRECT NAME IS
SMT.ANNAPURNAVVA,
 W/O PARAMESHAWRAYYA, KARASTHAL,
AGE: 67 YEARS,
OCC: AGRICULTURE and HOUSEHOLD WORK,
R/O. HAVANUR,
TQ and DIST: HAVERI-681110.               ..APPELLANT

(BY SRI N.P.VIVEK MEHTA, ADV.)

AND:

1.     PARVATEVVA,
       W/O. PARAMESHAWRAYYA, KARASTHAL,
       AGE: 74 YEARS,
       OCC: HOUSEHOLD WORK,


              Sd/ * Corrected vide Court
              RDJ order dated 23.07.2021.
                                 2




2.     CHANABASAYYA,
       A/F PARAMESHAWRAYYA, KARASTHAL,
       AGE: 63 YEARS,
       OCC: AGRICULTURE,

3.     HALAMMA D/O. PARAMESHAWRAYYA,
       KARASTHAL,
       AGE: 35 YEARS,
       OCC: HOUSEHOLD WORK,

ALL ARE R/O. HAVANUR,
TQ and DIST: HAVERI-581110.                     ...RESPONDENTS

(BY SRI *B.M.PATIL, ADV. FOR R1, SRI M.M.HIREMATH, ADV. FOR R2, RESPONDENT No.3-served)

THIS APPEAL IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF CPC 1908, AGAINST THE JUDGMENT AND DECREE ON THE FILE OF THE SENIOR CIVIL JUDGE HAVERI DTD:25.10.2013 PASSED IN O.S. NO.126/2006 ON THE FILE OF THE SENIOR CIVIL JUDGE, AT HAVERI, DECREEING THE SUIT FILED FOR PARTITION.

IN R.F.A.No.100028/2014

BETWEEN

CHANNABASAYYA, A/S PARAMESHWARAYYA KARASTHAL, AGE: 64 YEARS, OCC: AGRICULTURE R/O. HAVANUR, TQ: and DIST: HAVERI. .. APPELLANT

(BY SRI NAGAPPA TUKKOI AND

SRI M. M HIREMATH, ADVS.)

AND

1. SMT.ANNAPURNAVVA, D/O SIDDARAMAYYA KALLAYANAVAR HIREMATH, HERSELF CALLING PARAMESHWARAYYA KARASTHAL,

Sd/ * Corrected vide Court RDJ order dated 23.07.2021

AGE: 68 YEARS, OCC: AGRICULTURE and HOUSEHOLD WORK, R/O. HAVANUR, TQ and DIST: HAVERI.

2. PARAVATEVVA, W/O PARAMESHWARAYYA KARASTHAL, AGE: 75 YEARS, OCC: HOUSEHOLD WORK, R/O.HAVANUR, TQ and DIST: HAVERI.

3. HALAMMA, D/O. PARAMESHWARAYYA KARASTHAL, AGE: 36 YEARS, OCC: HOUSEHOLD WORK, R/O.HAVANUR, TQ and DIST: HAVERI. ... RESPONDENTS

(BY SHRI N P VIVEKMEHTA, ADV.FOR R1, SHRI B.M.PATIL, ADV. FOR R2, RESPONDENT NO.3-SERVED)

THIS APPEAL IS FILED UNDER SECTION 96 READ WITH ORDER 41, RULE 1 OF CPC 1908, AGAINST THE JUDGMENT AND DECREE DATED 25.10.2013 PASSED IN O.S.No.126/2006 ON THE FILE OF THE SENIOR CIVIL JUDGE, HAVERI, DECREEING THE SUIT FILED FOR PARTITION.

THESE APPEALS COMING ON FOR FINAL HEARING AND THE SAME HAVING BEEN HEARD AND RESERVED ON 22.06.2021, THIS DAY, R.DEVDAS J. DELIVERED THE FOLLOWING:

COMMON JUDGMENT

R.DEVDAS J.,:

A divided son, whether would be entitled to seek a share

in the father's property or whether only the undivided would

succeed to such property is the question that seeks

consideration in these Regular First Appeals.

2. The undisputed facts are that on 27.04.1971

Channabasayya was adopted by Parameshwarayya with due

ceremonies. During the year 1976, Channabasayya filed

O.S.No.38/1976 seeking declaration that he is the adopted

son of Parameshwarayya and his two wives, Annapurnavva

and Parvatevva and further sought for partition and separate

possession of his 1/3rd share in the ancestral properties. The

parties to the suit filed a compromise petition and as per the

compromise petition, the relationship between the parties was

admitted, more particularly, that Parameshwarayya had two

wives and since no issues were born out of the wedlock, they

adopted Channabasayya on 27.04.1971 with due ceremonies.

Further, during May, 1971, the parties had entered into an

oral partition and as per the said partition, the properties were

divided and allotted. The suit was accordingly decreed by

*dividing the joint family properties of Parameshwarayya into

two. Five items of agricultural properties and a house situated

in Havanur village panchayath limits bearing No.668 were

allotted to the share of Channabasayya. The rest of the

properties were retained by Parameshwarayya and his two

wives as their joint share. Parameshwarayya died on

Sd/ * Corrected vide Court RDJ order dated 23.07.2021

14.10.1991. Thereafter, Parvatevva filed the instant suit in

O.S.No.126/2006 against Annapurnavva claiming partition and

separate possession in the suit schedule properties which are

the properties that remained with Parameshwarayya and his

two wives as per the compromise decree in O.S.No.38/1976.

During the course of the suit proceedings, Channabasayya and

one Halamma, i.e., the 3rd respondent herein filed an

impleading application and came on record while

Channabasayya contended that being the only son of

Parameshwarayya, he too is entitled for a share, Halamma

contended that she is the naturally born daughter of

Parameshwarayya and *Parvatevva.

3. In the written statement filed by Annapurnavva,

she claimed to be the first wife of Parameshwarayya and on

the other hand, Parvatevva also claimed to be the first wife

and that Halamma, was born out of the wedlock between

Parvatevva and Parameshwarayya. In the matter of

establishing the paternity of Halamma, documentary evidence

such as birth certificate issued by the Birth and Death Register

on 04.03.2006 at Ex.D.16, SSLC marks card Ex.D.17 and

Sd/ * Corrected vide Court RDJ order dated 23.07.2021

ration card at Ex.D.18 were produced and marked before the

Court. However, Channabasayya, on his part had produced

copies of the judgment in O.S.No.76/1994 along with copy of

the deposition of Parvatevva to the effect that since no child

was born out of the wedlock of Parameshwarayya and

Parvatevva, she brought one orphan girl from Guttal police

station and they treated the girl as their daughter. The trial

Court, therefore, proceeded to reject the contention of

Halamma and Parvatevva that Hallamma was the naturally

born daughter of Parameshwarayya and Parvatevva. All the

additional issues raised consequent to the written statement

filed by Halamma have been answered against Halamma.

4. While answering additional issue No.4 - whether

the 2nd defendant Channabasayya proves that he has half

share in the suit schedule properties as pleaded in his written

statement, the trial Court has come to a conclusion that

Ex.D.1 to Ex.D.6 which are sale deeds executed by Parvatevva

and Annapurnavva in favour of various persons, go to show

that after the death of Parameshwarayya, Parvatevva and

Annapurnavva continued to be in joint possession of the suit

schedule properties and Channabasayya has not produced any

document in proof of his possession of the suit schedule

properties. The trial Court has also gone to the extent of

holding that since Channabasayya had not produced any

documentary proof of the adoption ceremony, coupled with

the fact that there is no documentary proof of his being in

joint possession of the suit schedule properties, along with

Parvatevva and Annapurnavva and since he has taken his

entire share as per the compromise decree in

O.S.No.38/1976, it was held that Channabasayya cannot claim

any share in the suit schedule properties. Consequently, the

suit filed by Parvatevva is decreed holding that she is entitled

for half share in the suit schedule properties.

5. Aggrieved by the impugned judgment and decree,

the adopted son Channabasayya and Annapurnavva have filed

two separate appeals and both the appeals are heard and

disposed of by this common judgment.

6. Regular First Appeal No.100028/*2014 is filed by

Channabasayya assailing the judgment and decree of the trial

Court. The main contention urged on behalf of the appellant

Sd/ * Corrected vide Court RDJ order dated 23.07.2021

is that as per the compromise decree entered into between

the parties in O.S.No.38/76, the fact that the appellant is the

adoptive son, has been admitted by the plaintiff-Parvatevva

on one hand and Parameshwarayya and Annapurnavva on the

other hand. Therefore, it is submitted that when the legal

status and relationship between the parties were admitted

before a competent Court of law, question of re-consideration

of such issues would not arise. Secondly, it was submitted

that even if Channabasayya had divided himself from the joint

family, nevertheless, he continues to be the only son of

Parameshwarayya. Therefore, it is submitted that in terms of

Section 8 of the Hindu Succession Act, 1956, Channabasayya

is entitled for an equal share along with Parvatevva and

Annapurnavva in the suit schedule properties.

7. Learned counsel would further submit that the trial

Court has also erred in granting half share of the suit schedule

properties to the plaintiff and has said nothing about the

remaining half share. The learned counsel would submit that

it cannot be inferred that the remaining half would go to

Annapurnavva. As an alternative submission, the learned

counsel for the appellant would also submit that in terms of

Section 6 of the Hindu Succession Act, if notional partition is

applied, the appellant is entitled to 1/3rd share in the share of

the father, Shri Parameshwarayya.

8. Per contra, learned counsel for respondent

No.1/Annapurnavva submits that when once it is admitted and

proved by evidence on record that during the life time of

Parameshwarayya, his adopted son Channabasayya had filed a

suit for partition and the joint family properties were divided

by allotting a specific share to Channabasayya, he stands

separated/divided from the joint family. Therefore, in terms

of sub Section (2) of Section 6 (B) of the Karnataka State

Amendment of the Hindu Succession Act, 1956, since the

appellant herein had separated himself from the co-parceners

before the death of Parameshwarayya, the appellant is

precluded from claiming a share in the interest of

Parameshwarayya. In order to buttress his contention,

learned counsel places reliance on a decision of the Allahabad

High Court in the case of DEBI MANGAL PRASAD SINGH

VS. MAHADEO PRASAD SINGH reported in (ILR 1912 ALL

234).

9. At this juncture, learned counsel for the appellant

would draw the attention of this Court to Article 341 of the

Principles of Hindu Law by Mulla. The learned counsel would

point out that the decision cited by the learned counsel for the

1st respondent is not applicable after coming into force of the

Hindu Succession Act, 1956. It is submitted that although the

earlier view was that on the death of a father leaving self

acquired property, an undivided son takes such property to

the exclusion of a divided son, however, since Section 8 of the

Hindu Succession Act, 1956, abolishes the distinction between

a divided son and an undivided son in the matter of

inheritance of self acquired property, the decision cited by the

learned counsel for the appellant is not applicable. The

learned counsel for the appellant has also filed a memo dated

21.06.2021 at the end of his argument stating that the

appellant Channabasayya gives up the contention that

Annapurnavva is the first wife of Parameshwarayya and

supports the judgment of the trial Court that Annapurnavva is

the second wife of the deceased Parameshwarayya and that

the appellant restricts his claim only to the extent of his share,

as an adopted son of the deceased Parameshwarayya for

which he is entitled under law. Consequently, the submission

of the learned counsel for the appellant is that at any rate, the

appellant, being the son of Parameshwarayya, the previous

partition does not destroy the filial relation nor the rights of

inheritance incidental to such relation and therefore, the

appellant is entitled atleast for 1/3rd of the share out of the

father's share in the suit schedule property. It is submitted

that if a notional partition had taken place just before the

death of Parameshwarayya, he would be entitled for 1/3rd of

the share in the suit schedule properties and therefore, the

appellant being the divided son is now entitled for 1/3rd share

in such share of the father.

10. On the face of it, it appears as if this question is

mundane and there may be any number of authoritative

decisions throwing light on the contentious issue. However,

surprisingly, both the learned counsel submitted that there

were not many decisions of recent origin on this point.

11. Before delving into this question, it is necessary to

consider whether the trial Court was right in coming to a

conclusion that the plaintiff-Parvatevva is the legally wedded

wife of Parameshwarayya and her marriage with

Parameshwarayya having been conducted in the year 1941,

Parvatevva is the first wife of Parameshwarayya and

therefore, Annapurnavva has no legal status of a legally

wedded wife having regard to the provisions of the Hindu

Marriage Act, 1955 and therefore, Annapurnavva was denied

any share in the suit schedule properties.

12. As rightly submitted by the learned counsel on

both the sides, the factum of Parameshwarayya having two

wives having been admitted in a Court of law, in a previous

round of litigation, the said question cannot be reopened for

consideration. The decision of the trial Court in that regard

requires to be held as perverse and is liable to be set aside.

In the light of the said position, we are required to proceed on

the basis of the division of properties in terms of the decree

passed in O.S.No.38/1976.

13. Now, therefore, the question is - whether after the

death of Parameshwarayya, his two widows-Parvatevva and

Annapurnevva who remained joint and enjoyed the immovable

properties jointly along with Parameshwarayya are only

entitled for a share in the joint family properties or whether

Channabasayya, the divided son is also entitled for a share

and if so, to what extent?

14. We have gone through the decision in Debi Mangal

Prasad Singh (supra) and we find that the question there was

- whether immovable property obtained by a Hindu widow on

partition of the joint family property under the Mitakshara

Law, is part of her streedhan in the narrow sense of that word,

indicating her separate property or peculium which passes on

her death to her own heirs or is merely part of streedhan in

the wider sense. Therefore, not much light is thrown on the

issue that has fallen for consideration in this case. On the

other hand, a Full Bench of the Madras High Court in the case

of VIRAVAN CHETTIAR VS. SRINIVASACHARIAR reported

in AIR 1921 MAD 168 while considering a question as to

whether on the death of a Hindu male, his self-acquired

property devolves upon the sons by survivorship or

inheritance, has dealt with the issue raised in the present

case. The main issue therein was whether succession

certificate was required to be obtained by a person claiming

debts or debt in the property of the deceased, not only by

succession, but under any title whatsoever. Per majority, it

was held that the succession of the undivided son by

inheritance was recorded as beyond doubt. It was noticed

that the Privy Council in BALWANT SINGH VS. RANI

KISHORE reported in (1898) 20 All. 267, which had noticed

the text of the Mitakshara dealing with the rights of the sons

in their father's self-acquisitions that though immoveables or

bipeds have been acquired by a man himself, a gift or sale of

them should not be made without convening all the sons.

They who are born and they who are yet unbegotten and they

who are still in the womb, require the means of support. No

gift or sale should therefore be made, was held as only a

moral percept and not a rule of law capable of being enforced

in a matter of self-acquisitions of a male Hindu. It was held

that the son acquires no legal rights over his father's self-

acquisitions by reason of the text of the Mitakshara, his right

is imperfect one incapable of being enforced at law. It was

held that co-parcenary and survivorship imply the existence of

co-ownership and of rights of partition enforceable at law and

a mere moral injunction can hardly be the foundation of a

legal right. The contention that sons acquire a right by birth

in the father's self-acquired property was rejected by holding

that, "he is his father's son, and if his father does not dispose

of, it will come to him; but is it anything more than a Spes?"

So far as a father's self-acquisitions are concerned, the son,

though undivided, has only spes successionis and he stands in

relation to that property in the same position as heir under

Hindu Law. The very essence of the distinction between

Apratibandha and Sapratibandha daya is the existence of an

interest in the son in respect of properties got by his father.

The Full Bench noticed and approved the decision in the case

of NANA TAWKER VS. RAMACHANDRA TAWKER reported

in (1909) 32 MAD 377, where it was held that under the law

of Mitakshara the self-acquired property of a father is taken by

his undivided sons to the exclusion of a divided son.

15. In the case of NARASIMHA RAO VS.

NARASIMHAN reported in AIR 1932 MAD 361, it was

noticed that the question that was answered in the affirmative

in Nana Tawker Vs. Ramachandra Tawker (supra) was referred

to a Bench for re-consideration on the grounds that some

doubt has been thrown on the correctness of that decision in a

later Madras case, and it has been expressly dissented from

by the Chief Court of Oudh. It was also noticed that the later

Madras case in Vairavan Chettiar's case (supra) dissents from

Nana Tawker on one point, but it does not dissent from it on

the material point as to the exclusion from inheritance to the

father of divided by undivided sons.

16. The decision in the case of FAKIRAPPA VS.

YELLAPPA reported in AIR 1930 OUDH 77 and the

commentary in Mayne's Hindu Law was noticed. It was

noticed that a grandson who had sued his grandfather and

uncles for a partition, obtained a decree as to all the joint

property, but failed as to a part which was held to be the

separate property of the grandfather. On the death of the

grandfather, he brought a fresh suit for a share of this,

contending that by descent it had become joint property. This

was perfectly true, but the answer to the plaintiff was that he

was no longer a member of the co-parcenary. On the

grandfather's death his interest in the joint property passed to

the remaining co-parceners by survivorship. His own separate

property passed to his united sons as heirs and in their hands

became an addition to the joint property, in which the divided

grandson had no interest. In other words, it was held that the

separate property becomes part of the joint property in the

hands of the heirs and, as a divided member no longer

belongs to the co-parcenary and has no interest in its

property, he can take no share in it.

17. A Full Bench of the Allahabad High Court in the

case of GANESH PRASAD VS. LALA HAZARI LAL AND

OTHERS reported in AIR (29) 1942 ALL 201, noticed the

earlier decisions that the succession of the male issue is by

right of survivorship to joint estate and must be confined to

sons who are united co-parceners and cannot include a

separated son; the succession to a joint estate goes by

survivorship to the co-parceners and the separated

sons/grandsons cannot be regarded as co-parceners with the

grandfather at the time of his death; a partition once made

must be presumed to be final and complete. To hold

otherwise would be to open the door to a flood of litigation, for

in every case a separated son can always putforth the

suggestion that a portion of his father's property was self-

acquired. The Court also noticed the argument that if sons

have by birth an interest in their father's self-acquisitions, and

if at the time when a son separates himself there are such self

acquisitions in existence, then inasmuch as at partition, the

son cannot obtain any share of the self-acquisitions, he would

be entitled on the death of the father to regard them as

property of which he could demand a share in the same way

as if due were ordinary coparcenary property which, for some

reason or other, had been omitted from the original partition.

The answer is that while theoretically the sons have an

interest by birth in their father's self-acquisitions, still, as the

father can dispose of those acquisitions at his pleasure they

are not coparcenary property in the ordinary sense, and it is

only the latter property that can form the subject of partition.

After obtaining on partition his share of all the divisible

property, the separating son loses all the rights which he had

as a member of the coparcenary and it was only as a member

of the coparcenary that he had by birth an interest in his

father's self-acquisitions. All the right that remains to him

with regard to his father's property is the right by virtue of his

sonship to inherit in the absence of undivided sons. The

specific question that was considered was whether the divided

son has any right of inheritance where undivided sons exist at

the father's death. It was held that there is no text of the

Mitakshara which directly distinguishes between the right of

inheritance of an undivided and of a divided son. Argument

and counter argument stating that the proposition that

undivided sons will have preference is so obvious that there

was no necessity to state it and on the other hand it is

contended that in the absence of any text to the contrary

divided and undivided sons must be held to have an equal

right of inheritance by virtue of their relationship with their

father, for it is this which determines their right to the

property, was considered. The Full Bench noticed the

commentary in Sarvadhikari's "Hindu Law of Inheritance"

where it was provided that sons legally separated from their

father have not, on his death, any claim to inherit his property

with a son not separated. Thus, where a father separates

from his sons, an after-born son alone inherits the share which

his father took on partition as well as any wealth acquired by

the father subsequent to partition. The commentary on

similar lines in Sarkar's "Hindu Law", Edition 7 at page 494

was also noticed. An argument regarding the different posts

in the two Schools of Law i.e., Dayabhaga and the Mitakshara

were also heard and considered. It was held in that regard

that there was no difference or distinction as regards

succession of self-acquired property in the two Schools of Law.

18. The declaration of Sarasvati Vilas to the effect that

the son born after partition shall divide with such of the

brothers as lived in reunion with the father after partition -

and that where father has two or three or many sons and is

divided with some and undivided with others, property

acquired by him shall be divided after his death only among

his undivided sons, was also noticed. The Full Bench noticed a

common thread running in all the Shastric texts that the self-

acquired property of the father divided from his sons goes

entirely to the son born after that partition. Those born before

have been declared to have no right over it. Per majority, it

was concluded that a son born after separation inherits the

father's self-acquired property to the exclusion of divided

sons. Re-united sons share this preference with such after

born son over divided sons. There is sufficient reason for

giving a preference to the joint sons over the divided sons who

are not members of the coparcenary.

19. Similarly, a Division Bench of the Allahabad High

Court, Lucknow Bench, in the case of RAM DEI VS. GYARSI

reported in AIR (36) 1949 ALLAHABAD 545 which was

cited by the learned counsel Shri Vivek Mehta, it was held

that:

" If the father dies as a member of a joint Hindu family with his sons and grandsons, leaving self- acquired and ancestral property, the property in the hands of the sons and grandsons in which they have acquired interest by birth is joint family property, and they must hold it as joint owners without specification of shares. If the sons and grandsons have already separated in the lifetime of the father, then there being no joint family, the paternal estate that is inherited by them can be held by them only as co- owners. If the father was joint with some of his sons

and grandsons and separated from the others, the property both self-acquired and ancestral belonged to the joint family of which the father was a member. On the death of the father there can, therefore, be no question of his separated sons or grandsons getting a share in the same."

20. Answering the question referred to the Full Bench,

it was held that the self-acquired property of a Hindu father

which his sons who were joint with him get on his death is in

their hands joint family property. As between the sons and

their descendants, it is subject to all the incidents of a

coparcenary.

21. A Division Bench of the Madras High Court had an

occasion to consider the position after the Hindu Succession

Act, 1956, came into force. In the case of

M.D.R.RANGANATHA VS. M.D.T.KUMARASWAMI reported

in AIR 1959 MADRAS 253, in the same position, the right of

a widow having regard to the Hindu Women's Right to

Property Act, 1937, was also considered. The decisions a

fortiori were also considered and it was held that the

separated property got by Hindu father at partition of the joint

family properties with his sons does not become coparcenary

property in the hands of his divided sons, who had separated

from him during his life time and therefore, after his death,

each son takes the property as a tenants in common and not

as joint tenants. It was canvassed before the Madras High

Court that the decision of the Full Bench in VIRAVAN

CHETTIAR B (supra) may have to be reconsidered in view of

the observations in subsequent decisions and therefore,

reference to Full Bench was also sought. But, the Division

Bench held that the decision in VIRAVAN CHETTIAR

withstood the test of 37 years and the Court was satisfied that

it does not deserve to be referred to a Fuller Bench and the

ruling of the Full Bench cannot be doubted. The distinction

sought to be drawn by the learned counsel seeking

reconsideration, was answered by stating that to ascertain the

extent of the son's right in and to a particular property

belonging to the father, it is absolutely necessary to determine

whether that property is paithamaha or swayarjita. This

dichotomous division is fundamental. According to Hindu law

(and in this there is no difference between the Dayabhaga and

the Mitakshara) property must be one or the other. This

division is not only mutually exclusive. It must also be

exhaustive. You cannot leave out a property as not falling in

either category, because how then will you determine the

extent of the son's right in such property?" As there is no

coparcenary in modern law between the Hindu father and his

undivided sons regarding his self-acquired properties, as held

in Kattamanachiar Vs. Rajah of Sivaganga, 9 Moo Ind

Application 539 (PC), it is of importance to note that even

regarding such self-acquired property the undivided son, even

though he may not be the oldest or next son, will take the

entire self-acquired property to the exclusion of his father.

When it was further urged that the right of representation was

inherited in a son, even if divided, the Division Bench held that

the Hindu Law, like all other laws, is not always consistent or

logical, and, sometimes, it is difficult to reconcile all the

principles into one grand principle. The Division Bench went

to hold that when once there has been a division, though

there has been still a continuation of filial relationship between

the father and the sons, the divided sons have ceased, beyond

any doubt, to be the members of the coparcenary and they do

not have any more right to the property by birth. That right

by birth has been settled by the partition and in respect of

that property which has fallen to the share of the father it is

beyond comprehension as to how exactly the divided sons

could still lay a claim co-extensive with that of the father or

any of his undivided sons. That was the position under the

Shastric uncodified and codified Hindu Law.

22. Now, coming to the question as to whether the

Hindu Succession Act, 1956, has brought about any change in

this regard. It can be seen that when the Act was brought

into force in the year 1956, in Explanation (2) to Section 6 of

the Act, it was provided that the Section was not to be

construed as enabling a person who had separated himself

from the co-parcenary before the death of the deceased or

any of his heirs to claim on intestacy a share in the interest

referred to therein. The State amendment was brought about

by Karnataka Act 23/1994, where, under Section 6-B which

dealt with interest to devolve by survivorship on death,

Explanation (2) as found in Section 6 was once again provided

for. However, on commencement of the Hindu Succession

(Amendment) Act, 2005, Explanation (2) has been deleted.

The State Amendment, however, continues and consequently,

the Explanation (2) can be made applicable only to the

particular Section i.e., Section 6-B which deals with the

devolution of interest of a female Hindu who dies after

commencement of the Hindu Succession (Karnataka

Amendment) Act, 1990. Section 6-B provides that where a

female Hindu dies after the commencement of the Hindu

Succession Act (Karnataka Amendment) Act, 1990, having at

the time of her death an interest in Mitakshara coparcenary

property, her interest in the property shall devolve by

survivorship upon the surviving members of the coparcenars

and not in accordance with the Act. However, the proviso to

Section 6-B provides that if the deceased (i.e., a female

Hindu) had left any child or child of a predeceased child, the

interest of the deceased in the property shall devolve by

testamentary or intestate succession as the case may be

under the Act and not by survivorship. Explanation (2) further

qualifies the proviso by stating that before the death of the

deceased (female Hindu) if a person had separated himself or

herself from the coparcenars, such person or any of his or her

heirs shall not claim on intestacy a share in the interest

referred to therein.

23. The submission of the learned counsel for the

appellant appears to be the correct position, that since

Explanation-2 has been deleted from the original provision and

what is left in the State amendment as explanation is only

referable to Section 6-B, which does not deal with succession

to the property of a male Hindu dying intestate, there is no

impediment for the appellant to claim a share in his father's

property, in terms of Section 8 of the Act.

24. In terms of Section 8, on the death of

Parameshwarayya, the coparcenars' property held in the

hands of Parameshwarayya, Parvatevva and Annapurnavva,

jointly, by a notional partition shall be divided into three

shares, one share each for Parameshwarayya, Parvatevva and

Annapurnavva. However, in the share of Parameshwarayya,

the two widows and his son Channabasayya shall get 1/3rd

each. Since Channabasayya had separated himself from the

joint family during the life time of his father, taking his

separate share, he would not be entitled to seek a share at

the time of effecting the notional partition. However, at the

time of distribution of the property belonging to

Parameshwarayya, in accordance with Section 8, his son

Channabasayya and two widows who are the Class-I heirs as

per the schedule are entitled for equal share in the separate

property of Parameshwarayya. Consequently, Channabasayya

will be entitled for 1/9th of the suit schedule properties,

whereas Parvatevva and Annapurnavva shall be entitled for

4/9th each in the suit schedule properties. Accordingly, both

the appeals are allowed in part.

25. A preliminary decree of 4/9th share in favour of the

plaintiff-Parvatevva shall be drawn. As and when

*Channabasayya and Annapurnavva file separate valuation

slip and pay the Court fee, they shall be entitled for a

preliminary decree as stated above.

The impugned judgment and decree passed by the trial

Court is accordingly modified.

Ordered accordingly.

(Sd/-) JUDGE

(Sd/-) JUDGE Jm/-

Sd/ * Corrected vide Court RDJ order dated 23.07.2021