G. Shivanna vs Smt. S. Parvathamma and Others

Hari Nath Tilhari, J.-This is defendant''s appeal arising from the judgment and decree dated 27-5-1997 delivered by Choudapurker Arun, XVIII Additional City Civil Judge, Bangalore, in Original Suit No. 232 of 1987 decreeing the plaintiff''s claim for declaration to the effect that the plaintiff has got 5/8th share in the suit property as well as for decree for partition and separate possession of plaintiff''s 5/8th share in the suit property by meets and bounds.

The plaintiff/respondent filed the above suit for a declaration declaring that the plaintiff/respondent is the owner of 5/8th share in the suit property described in the schedule attached to the plaint and for partition and separate possession thereof.

The plaintiff though, in the plaint paragraph 2, appears to have mistakenly mentioned that the defendants 1 and 2 are the brother''s son and daughter of plaintiff''s father G.S. Shivarudrappa. The plaintiff/respondent claimed herself to be the daughter of Sri G.S. Shivarudrappa and asserted that the defendants 1 and 2 namely, G. Shivanna and Gowramma are the son and daughter of brother of late G.S. Shivarudrappa. But in paragraph 2 it has further been stated that the relationship of the parties are as set out in detail in genealogical table which is Annexure-A to the plaint with genealogical table and its as given in the plaint schedule reveals that G.S. Shivarudrappa had two sons and one daughter. G.S. Shivarudrappa(died in 1945) = Smt. Puttaveeramma(dead)

Son Son Daughter

S. Gangappa(died on 7-5-1961) B.S. Rudrappa(died on 9-10-1954) Parvathamma

= Smt. Siddalingamma(died on 4-5-1981) = Smt. Gowramma(died on 17-12-1978)

G. Shivanna (D.1) Gowramma (D.2)

The plaintiff alleged, as per plaint allegations, that property in suit has been the self-acquired property of G.S. Shivarudrappa. The property in dispute has been mentioned in the scheduled as two storied building comprising Site No. 40 situated at II Cross, K.G. Road Extension (formerly numbered as No. 22, Gandhinagar) situated at present Corporation Division No. 26, Bangalore City, approximately measuring East-West 170''and North-South 60'' bounded as below.-

East - Road

West - Building of Kabirnath Ashram

North - Premises bearing present No. 11

South - House bearing present No. 9 belonging to Kabadi Eshwarasa

That, according to the plaintiff, the Site of the land in dispute was acquired by G.S. Shivarudrappa in the year 1938 out of his own earnings and later on, the building was constructed thereon by him with his self-acquired income and it was not a coparcenary or ancestral property. According to the plaint case, plaintiff was married in 1929 by her father G.S. Shivarudrappa. That, according to the plaint case, the property in dispute dissolved and was succeeded by four persons in the Pedigree in equal share namely by plaintiff-1/4th, by plaintiff''s mother Puttaveeramma-1/4th and by two sons of Sri G.S. Shivarudrappa namely, S. Gangappa and B.S. Rudrappa-1/4th each. Thus, according to the plaintiff, on the death of G.S. Shivarudrappa, plaintiff inherited the 1/4th share in her own right. According to the plaintiff''s case, B.S. Rudrappa, son of G.S. Shivarudrappa died in the year 1954. He left no sons nor daughters i.e., he died issueless, but left his widow Smt. Gowramma who became entitled and who succeeded as his heir to B.S. Rudrappa''s 1/4th share which B.S. Rudrappa had inherited from his father. Thus, according to the plaintiff, 1/4th share of B.S. Rudrappa was inherited by Smt. Gowramma, widow of B.S. Rudrappa. According to the plaintiff''s case, plaintiff''s mother Smt. Puttaveeramma died in the year 1965 and as Smt. Puttaveeramma had become full owner before her death and the plaintiff inherited 50% of alleged 1/4th share of Puttaveeramma and the remaining 1/2nd of 1/4th share was inherited by the defendants 1 and 2 jointly. The plaintiff further alleged that B.S. Rudrappa''s widow

Gowramma died in the year 1979 and as Gangappa had also died earlier in the lifetime of Gowramma and the plaintiff being the nearer heir of the B.S. Rudrappa at the time of death of Gowramma, being the sister of B.S. Rudrappa, the plaintiff inherited the 1/4th interest of B.S. Rudrappa and the defendants did not get any share therein. Thus, according to the plaintiff''s claim, plaintiff had 5/8th share i.e., 2/8 her own share, 1/8th from Puttaveeramma her mother and 2/8th share of B.S. Rudrappa, after the death of Rudrappa''s widow and thus, she claimed that she is entitled to 5/8th share in the suit property and according to the plaintiff, the two defendants 1 and 2 have been entitled to 3/8th share in the suit property. The plaintiff alleged that she demanded the two defendants for partition and for separation of the shares and notice also having been given including Lawyer''s notice, defendants denied the demand. So cause of action accrued to the plaintiff on 7-8-1986 and 15-9-1986, the dates of reply and rejoinder of the notice and on that basis, the plaintiff alleged that the above suit has been filed for the reliefs, as have been mentioned earlier.

The defendants filed the written statement. The defendants denied the plaintiff''s case and claim that suit property has been the self-acquired property of Sri G.S. Shivarudrappa. According to the defendants, the suit property was acquired as well as the building thereon was constructed by Sri G.S. Shivarudrappa, who was the head of the family, through the nucleus provided by the funds of the Hindu Joint Family as according to the defendants, Shivarudrappa after having sold the ancestral house, came to Bangalore. The defendants further alleged that the measurements of the property given are incorrect. They alleged that the suit property did not bear the area of 61'' x 62''. The defendants alleged that in 1906 G.S. Shivarudrappa had got the partition of the joint family property done vide partition deed dated 26-7-1906. He got the ancestral house at Gollahalli under the above partition deed and that house was sold by G.S. Shivarudrappa in 1911. The defendants asserted that the Site of the house in suit was acquired in 1939 and house thereon was constructed as well by Sri G.S. Shivarudrappa out of the income from the joint family ancestral property and also the funds provided by sale of ancestral house. According to the defendants, G.S. Shivarudrappa died on 21-8-1945. According to the defendants'' case, plaintiff was married in the year 1929 and B.S. Rudrappa, son of G.S. Shivarudrappa died on 9-10-1954. His wife Gowramma died on 17-12-1978 and B.S. Rudrappa did not leave any male or female issues. According to the defendants, S. Gangappa, father of 1st defendant died on 7-5-1961 and his widow Smt. Siddalingamma died on 4-5-1981 leaving behind 1st defendant as their son and defendant 2 as their daughter. According to the defendants, the plaintiff had neither been entitled to any share in the house in suit nor was in possession, actual or constructive, of the suit property. According to the defendants'' case, claim of the plaintiff was misconceived. The defendants asserted that the suit was barred by limitation and it was liable to be dismissed with costs. The defendants asserted that neither the plaintiff/respondent nor her children are in possession of the suit property.

On the basis of the pleadings of the parties, the Trial Court framed the following issues.-

(1) What are the correct measurements, boundaries and the description of the suit property?

(2) Whether the plaintiff proves that the suit property was the self-acquired property of late G.S. Shivarudrappa?

(3) Whether the 1st defendants proves that the suit property was the joint family property of late G.S. Shivarudrappa?

(4) Whether the genealogical table given in Annexure-1 of list dated 9-1-1996 is correct?

(5) Whether the first defendant proves that the suit is barred by limitation?

(6) Whether the Court fee paid by the plaintiff is proper and sufficient?

(7) Whether the plaintiff is entitled to 5/8th share in the suit property?

(8) Whether the plaintiff is entitled for declaration as sought?

(9) In case of partition, what are the shares of the plaintiff and defendants 1 and 2 in the suit property?

(10) Whether the plaintiff is entitled for partition and separate possession as sought?

(11) Whether the plaintiff is entitled for future mesne profits, if so, from which of the defendants and at what rate?

(12) What decree or order?

@BODY LESS = Additional Issue 1.-Whether the first defendant proves that he has became the owner of the suit property by adverse possession?

@BODY LESS = Additional Issue 2.-Whether the plaintiff has a right in the suit property after her marriage when the Mysore Hindu Law Women''s Rights Act, 1933 was in force?

The Trial Court decreed the plaintiff''s suit for declaration holding the plaintiff to be entitled to 5/8th share in the suit property as well as entitled to decree for partition and separate possession and granted the decree for partition of her 5/8th share after having recorded the following findings.-

(a) The measurements, boundaries and descriptions of the suit property given in the plaint is correct.

(b) That the plaintiff has established and proved that the suit property is the self-acquired property of G.S. Shivarudrappa and that the defendants have failed to establish the suit property to be the joint family property of G.S. Shivarudrappa.

(c) Genealogical table given in Annexure-A the plaint is correct. That the suit is not barred by limitation and the Court fee paid in correct.

(d) That the plaintiff is entitled to 5/8th share as claimed in the plaint.

(e) That the defendants have failed to prove that they have become the owner by adverse possession.

(f) That the plaintiff, even after her marriage, had inherited a right in the suit property after the enforcement and under the provisions of Mysore Hindu Law Women''s Rights Act, 1933.

Feeling aggrieved from the judgment and decree of the Trial Court dated 27-5-1997, the defendant 1-G. Shivanna has come up in appeal and has impleaded defendant 2-Gowramma as respondent 2 i.e.,pro forma respondent.

I have heard Sri B. Veerabhadrappa, learned Counsel for the appellant and Sri H. Noorullah Shariff, learned Counsel for respondent 1 as well as Sri R.D. Kolekar, learned Counsel for respondent 5.

It has been vehemently contended by Sri B. Veerabhadrappa, learned Counsel for the appellant, that the finding on issue 1 recorded by the Trial Court that measurements of the suit property as 120'' (East-West) x 60'' (North-South) as given in the plaint have been proved and established is erroneous. The learned Counsel for the appellant invited my attention to the materials on record namely the deposition of P.W. 1 particularly to the following statements in which made in course of examination-in-chief by P.W. 1, he clearly states:

"The suit schedule Site may be measuring 61'' x 63''.

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The said number of the suit schedule property was No. 22, Gandhinagar. The present number of the suit schedule property is No. 10, K.G. Road, II Cross, Bangalore".

He further invited my attention, in the deposition of the plaintiff in this regard, to the sale-deed and to the Site plan which indicates that Site No. 22 measuring 61''9 East-West and 62''6 North-South and further indicates that to the North of Site No. 22 is Site No. 23 and to the West of Site No. 22 is Site No. 25 and to the South of Site No. 22 is Site No. 21. The learned Counsel further invited my attention to Exs. D. 9 and 10 which are dated 29-3-1938 wherein, the property that was purchased by G.S. Shivarudrappa was shown to bear Site No. 22 only. The learned Counsel for the defendant/appellant submitted that in the plaint also the plaintiff has confined his claim to Site No. 22 and Site No. 22 has got the area of 61''9"x 62''6" and not more. He submitted that in view of the above and in view of the admission of P.W. 1 as well that the area may be 61'' x 63'', the finding of the Court below that the plaintiff has established the area of the property in dispute to be 120'' East-West by 60'' North-South is incorrect and is based on non-consideration of the above mentioned documents as well as the own admission of the plaintiff.

The learned Counsel for the plaintiff, in this regard, submitted that there may be mistake in the description of the area of the land. He submitted that really the area has been mentioned on the basis of Ex. D. 25 i.e., encumbrance certificate as well as on the basis of approximation based on information.

Thus, considering the evidence on record, the area of old Site No. 22 over which the house is constructed is held not to be established as 120'' East-West and 60'' North-South. Its area as per evidence on record is only 61''9"East-West and 62''6" North-South. The finding on issue 1, as such, is hereby modified and it is held that the suit property consists of Site No. 22 and construction thereon, the area of which is 61''9"by 62''6".

The learned Counsel for the appellant further submitted that the finding of the Court below that the property in dispute is self-acquired property of G.S. Shivarudrappa is erroneous and is based on non-consideration of materials on record as well as misconception of law.

These contentions of the appellant''s Counsel have hotly been contested by the learned Counsel for the plaintiff-respondent. The learned Counsel for the respondent submitted that the finding of the Trial Court holding the property in dispute to be self-acquired property of G.S. Shivarudrappa is correct as defendant 1 i.e., the appellant has not been able to furnish any documentary or substantive evidence to prove that the property in dispute is ancestral one or that it was acquired by or from the nucleus of any joint family funds and that the finding does not call for interference as the defendant-appellant who had asserted the property in dispute to be joint family or ancestral property, burden did lay on him to establish that and he has failed to discharge it.

Before proceeding further it will be appropriate to observe that it is a well-established principle of Hindu Law that there is no presumption that if there is a joint Hindu family, it may be presumed to have been possessed with joint family funds or property. Existence of joint family does not by itself leads to a presumption that the joint family is possessed of joint family property or a particular item of property is the joint family property. It is well-settled that even a member of the joint family can have his individual, separate property, the burden lies and rests upon the shoulder of the party who asserts that an item or an item of property, moveable or immoveable, is or has been the joint family property, to establish that fact by evidence. But, once it is established that the joint family is possessed of some joint family property which, from its nature and relative value, could have formed the nucleus from which the property in question or property in dispute may have been acquired, then and then only the burden shifts on the party alleging the property in dispute to be self-acquired property to establish affirmatively that the property was acquired without the aid of joint family property. If the Kartha or the Manager of a Hindu Joint Family acquires any property in his name or there also exists joint family property which could provide the nucleus and it is shown that the Kartha has shown no independent source of income, in those circumstances, no doubt, presumption may be raised of that the property in question to be the joint family property. Reference in this regard may be made to the decision of their Lordships of the Supreme Court in the case of Srinivas Krishna Rao Kango v Narayan Devji Kango and Another, AIR 1954 SC 379, as well as to the decision of the Supreme Court in Mallappa Girimallappa Betgeri v Ramgonda Yellappagouda Patil, AIR 1959 SC 906 and also to the decision of the Supreme Court in Kuppala Obul Reddy v Bonala Venkata Narayana Reddy (dead) through L.Rs, AIR 1984 SC 1171. It is also well-settled that if in a case a party alleges the suit property to be the self-acquisition and proves and shows that the ancestral lands or ancestral properties are intact and the income therefrom may have been used for the maintenance of the members of the family, then the party alleging the property to be self-acquired property is taken to have discharged the burden.

According to the plaintiff''s case, the property in question and in dispute was self-acquired property of G.S. Shivarudrappa. The plaintiff/respondent alleged that G.S. Shivarudrappa did not bring any ancestral assets and in fact had no ancestral property. According to the plaintiff''s case. G.S. Shivarudrappa, solely out of his earnings, acquired the immoveable property detailed in the plaint schedule as well as other moveable properties and those properties acquired by him were self-acquired properties and he remained in possession thereof for the whole life.

The defendant 1 in his written statement stated and took the plea to the effect that the plaintiff''s case in this regard is incorrect and false. According to the defendant''s case, as per the pleadings, the true state of affairs has been that the suit schedule property was acquired through the nucleus of funds of Hindu United and undivided joint family. The defendant alleged that when G.S. Shivarudrappa came to Bangalore, he started working as an attender in the house of one sugar merchant at Doddapet, Bangalore and after leaving this job, he started his business as Druggist at Doddapet, Bangalore. But he could not thrive on well and later on he took the electrical works. The defendant further alleged that G.S. Shivarudrappa had sold the ancestral house situated at Gollahalli and the suit schedule property was acquired by the nucleus, i.e., unds of undivided joint Hindu family. The defendant further alleged that in the construction of the property on the site namely the schedule property, the funds were provided out of the nucleus of the Hindu joint family funds. The defendant asserted that the late G.S. Shivarudrappa sold the house situated at Gollahalli, Nelamangala Taluk and then came to Bangalore and with the sale of ancestral property, schedule property was purchased as well as constructions were put thereon. The defendant further alleged, by way of amendment, that late G.S. Shivarudrappa had got partitioned joint family property as per registered partition deed dated 26-7-1906 and sold the ancestral house at Gollahalli in 1911 and after having got the income from the sale of ancestral property at Gollahalli, he continued to do the business at Bangalore out of the joint family income or nucleus later acquired the suit schedule property in the year 1939 and constructed the house existing now thereon. According to the defendant''s case, the plaintiff had got no interest as she had already been married in 1929, long before coming into force of Mysore Hindu Law of Women''s Rights to Property Act, 1933*. The defendant alleged that on the death of G.S. Shivarudrappa which had taken place on 21-8-1945, schedule property had dissolved by survivorship on his two sons S. Gangappa and B.S. Rudrappa. The defendant asserted that the said B.S. Rudrappa died in the year 1954 and Gowramma, his widow, succeeded to his interest in the suit schedule property and she continued to enjoy that property and Gowramma died on 17-12-1978. According to the defendant, 1st defendant''s father Gangappa had died on 7-5-1961 and Gangappa''s widow Siddalingamma also died on 4-5-1981 leaving behind 1st and 2nd defendants. (* This Act should be as Mysore Hindu Law Women''s Rights Act, 1933)

Now, the question is whether the property in dispute is a self-acquired property of G.S. Shivarudrappa or it is a joint family property. No doubt, the deed whereunder the suit schedule property namely, the land over which the building now stands in G.S. Shivarudrappa''s name. It is also mentioned in the schedule to the plaint that it was purchased in 1939, the deed of transfer with respect to site of the building in dispute, as per Exs. D. 9 and D. 10 dated 27-2-1938 and 29-3-1938, it appear to have been purchased by G.S. Shivarudrappa. These are the receipts of the Public Works Department relating to payment of price i.e., purchase value of Site No. 22. The burden is definitely on the defendants to establish that it is a joint ancestral property. The learned Counsel for the defendants/appellants invited my attention in this regard to the following statements of P.W. 1 at page 159 of the paper book and it reads as under.-

"My father had come to Bangalore even before I was born................. It is true to suggest that even ten years prior to my birth, my father and my grandfather had come to Bangalore and they were carrying on business at village Angadi".

He further invited my attention to the following statement of P.W. 1.

"It is true that the suit schedule property was allotted to my father by the Bangalore City Municipality (Corporation) during the year 1939".

He further invited my attention to the following statements of P.W. 1.

"It is true that my father and my brothers, namely, Gangappa and Rudrappa were doing business jointly till the death of my father".

The learned Counsel further contended that it is admitted by P.W. 1 that there existed joint family and joint family property and even Ex. D. 4 -the registered partition deed of 1906 shows that after the partition in 1906, G.S. Shivarudrappa and his brother Siddappa received substantively moveable and immoveable properties and they continued to be joint and in this connection, he has also made a reference to the sale-deed dated 24-9-1942. He contended that the suit schedule property was acquired in 1939 when family was joint amongst G.S. Shivarudrappa and his two sons and grandson G. Shivanna and the property was acquired by the nucleus provided by the joint family property like the house at Gollahalli, lands and family business of electrical contract as well as building was constructed thereon by the funds of the joint family business. D.W. 1 in this connection has deposed as under.-

"The source of capital for starting the Druggist shop in Bangalore is the income of agricultural land in Gollahalli. Gollahalli house was sold for Rs. 50-00 in 1911. My grandfather got to his share Rs. 7,000-00 cash, gold jewelleries, one small house in Basettipete".

The D.W. 1 submitted that so money for acquiring the property in dispute vide Exs. D. 9 and D. 10 was provided by partition and the money he got in partition apart from income from electrical contract work. He stated that the construction work had started in 1938 and house warming ceremony was performed in the year 1940. The house at Chickpet was sold. D.W. 1 stated that all the joint family members were earning and their earnings were contributed for the construction of the house, besides using some hand loans. D.W. 1 in his statement has admitted, as pointed out by the respondent''s Counsel that:

"It is true that my father and my uncle were not doing business with my father". D.W. 1 states that:

"The ancestral property of my grandfather were a land and house at village Gollahalli".

He further states that:

"It may be true that one of these lands might be yielding five quintals of Ragi and sometimes the yield was there and some other times, it was not".

He further states that:

"It is true to suggest that my grandfather came to Bangalore from village Gollahalli and he sold his ancestral house at the time of coming to Bangalore".

It has been admitted that the land at Gollahalli was sold only for Rs. 50-00 vide statement of D.W. 1 at page 196 of the paper-book. The deeds Exs. D. 9 and D. 10, relied by the learned Counsel for the defendants reveals that for the purchase of the land in total a sum of Rs. 2,846.00 was paid by way of cheques. The land was sold in 1911, while the present site was purchased in 1938 and the village ancestral land was sold, as per the own admission of D.W. 1 only for Rs. 50-00. In my opinion, the evidence furnished by the defendants fails to establish that the site of the property in dispute was purchased out of or with the aid of any such thing as nucleus provided by joint family or ancestral property. In the absence of any evidence which may indicate that the joint family property provided a sufficient nucleus for the purchase of the property in dispute, it has to be held that the suit property was purchased by G.S. Shivarudrappa, as deeds also indicates, in his individual capacity and there is no evidence to indicate that the building on that site was constructed by any funds of joint family property.

Thus considered in my opinion, the defendants/appellants have failed to establish the suit property to be the joint family property. It appears that the suit property has been the self-acquired property of G.S. Shivarudrappa and the findings recorded by the Trial Court on this aspect appears to be correct and justified one. When the property is found to be the self-acquired property and separate property of G.S. Shivarudrappa, the question before this Court for consideration is, how the parties succeeded to the property?

It is an admitted position that G.S. Shivarudrappa died in the year 1945 as has been stated by both the Counsels. At the time of his death, he left his widow Smt. Puttaveeramma, his two sons Gangappa and Rudrappa and Smt. Parvathamma, his daughter who is the original plaintiff. In the year 1945 at the time of death of G.S. Shivarudrappa, the old Hindu Law did apply and in the State of Mysore the Act is known as Mysore Hindu Law Women''s Rights Act was also in operation. In 1945, Mysore Act 10 of 1933 provided for the order of inheritance. It will be appropriate at this stage to refer and quote Sections 4 and 5 thereof in extenso.

"Section 4.-(1) The succession to a Hindu male dying intestate shall, in the first place, vest in the members of the family of the propositus mentioned below, and in the following order.-

(i) the male issue to the third generation;

(ii) the widow;

(iii) daughters;

(iv) daughter''s sons;

(v) the mother;

(vi) the father;

(vii) widows of predeceased sons;

(viii) sons'' daughters;

(ix) daughters'' daughters;

(x) brothers of the whole blood;

(xi) brothers of the half blood;

(xii) sons'' sons'' daughters, sons'' daughters'' sons, sons'' daughters'' daughters, daughters'' sons'' sons, daughters'' son''s daughters, daughters'' daughters'' sons, and daughters'' daughters'' daughters;

(xiii) widows of predeceased grandsons and great grandsons;

(2) On failure of the family of the propositus, the succession shall pass to the family of the father of the propositus mentioned below, and in the following order.-

(i) brothers'' male issue to the second generation;

(ii) sisters;

(iii) half sisters;

(iv) sisters'' sons;

(v) half sisters'' sons;

(vi) the father''s mother;

(vii) the father''s father;

(viii) stepmothers;

(ix) brothers'' widows;

(x) brothers'' daughters;

(xi) sisters'' daughters;

(xii) father''s brothers of the whole blood;

(xiii) father''s brothers of the half blood;

(xiv) brothers'' sons'' daughters, brothers'' daughters'' sons, brothers'' daughters'' daughters, sisters'' sons'' sons, sisters'' sons'' daughters, sisters'' daughters'' sons, and sisters'' daughters'' daughters;

(xv) widows of brothers'' male issue to the second generation.

(3) On failure of the family of the father of the propositus, the succession shall pass to the family of the paternal grandfather, and next thereafter to the family of the paternal great-grandfather, the members of each family ranking among themselves in the same relative order as the members corresponding to them in the family of the father.

(4) On failure of the families of paternal ancestors to the third degree as above, the succession shall pass to the maternal ancestors to the third degree and their respective families, one after the other, and under the same rules mutatis mutandis as to relative order within each such family as are applicable to the families of the paternal ancestors.

(5) The members (where there are more than one) of each of groups indicated above by Roman numerals and of the groups corresponding to them under sub-sections (3) and (4) shall among themselves, take simultaneously and in equal shares (per capita), provided that the male issue of the propositus shall take according to stock (per stripes).

(6) Every reference to the son of a female relative in this section shall be read as excluding a son adopted after the death of such female relative.

Illustration.-A sister''s son does not include a son adopted after the sister''s death.

Section 5.-Except as otherwise specially provided in the preceding section and in Section 12, the order of preference among heirs shall be regulated by the following rules.-

Firstly, a nearer line shall exclude one more remote.-

Explanation to Rule I.-The descendants of the propositus constitute a nearer line than those of the father, the descendants of the father a nearer line than those of the grandfather, and so on, upto a limit of three degrees from and exclusive of the common ancestor in each case. Secondly, within each line limited as aforesaid, agnates shall be preferred to cognates irrespective of degree.

Thirdly, among agnates and likewise among cognates, heirs nearer in degree to the propositus shall exclude those more remote; but where the degrees are equal, a male shall be preferred to a female.

Explanation to Rule III.-Male issue upto three generations shall count as one degree for the purpose of this rule.

Fourthly, in the absence of any ground of preference as herein provided, heirs of the same degree reckoned from the propositus shall take equally".

A reading of Section 4 per se reveals that succession to the property of a male Hindu dying intestate, the succession shall vest in the members of the family of the propositus as mentioned in clauses (i) to (xiii), but in the order or say in sequence or arrangement as is indicated under Section 4(1). A reading of sub-section (5) clearly indicates that the members of each of the groups have been indicated by Roman numerals and they shall take simultaneously and in equal shares per capita and male issue of the propositus shall take according to stock (per stirpes). The order of preference among heirs shall be as one regulated and as indicated in Section 5 and the nearer line will exclude the one more remote. As per the language of Section 4 of the Act, the male issues to the third generation succeed to the property of a Hindu male dying intestate and if male issues upto third generation are alive, neither widow nor daughter nor daughter''s son could get succession and the succession to the Hindu male dying intestate could not pass on to neither widow nor daughter nor daughter''s son. The expression, "in the following order means", that succession and arrangement of succession amongst heirs mentioned in Section 4(1) shall be in sequence and order as given in clauses (i) to (xii) and preference will be as given in the sequence namely, first to male issues upto the 3rd line of generation i.e, sons, sons of predeceased sons and the sons of predeceased sons'' predeceased sons. If the issues mentioned as in clause (i) of sub-section (1) of Section 4 are not available, only then succession may pass on to the widow and not to the daughters.

In view of the above position of law, it appears that as at the time of death of G.S. Shivarudrappa, he had two sons alive namely S. Gangappa and B.S. Rudrappa. Only two sons referred to above succeeded to the property in dispute life by G.S. Shivarudrappa. No share did pass on by succession to either Puttaveeramma, widow of G.S. Shivarudrappa nor to Parvathamma, daughter-plaintiff. The expression "in the following order" clearly indicates in the order as given below that, if the first group is available, the second group will not come into picture. If the first group is not available and persons belonging to second group i.e, widow or widows are available and alive, the succession will not pass on to the daughters or daughters'' sons and the like. As such, the two sons of G.S. Shivarudrappa succeeded to the property in dispute left by G.S. Shivarudrappa on his death in 1945. In the year 1954, as per the case of the parties, B.S. Rudrappa, son of G.S. Shivarudrappa, died i.e., he died before Hindu Succession Act came into force. There is no dispute between the parties as regards the fact that B.S. Rudrappa died issueless. He only left his widow Gowramma and Gowramma succeeded to the interest in property which had been succeeded by B.S. Rudrappa, of which he was possessed of at the time of death i.e., 1/2 share, Gangappa died in the year 1961. No doubt by that time, the Hindu Succession Act had come into force namely with effect from 17-6-1956. Under the Act of 1956, the interest belonging to Gangappa, as per Sections 8 and 10 (Rules 1 and 2 and clause 1 of the Schedule) of the Hindu Succession Act, 1956, read with first Schedule thereto, devolved and was succeeded by his children and his widow simultaneously as sons and widow are the heirs of first class as per schedule and they did inherit it simultaneously and in equal shares. The three heirs of Gangappa namely, his widow and one son and one daughter i.e., defendants 1 and 2 namely, present appellant and respondent 2. Widow of Gangappa had died in 1981. Her interest devolved on the two children i.e., defendants 1 and 2, namely, appellant and respondent 2 i.e., entire interest of Gangappa in suit property, as such, devolved on appellant and respondent 2 in equal shares. As regards Rudrappa''s branch, Rudrappa having died in 1954, as mentioned earlier, i.e., before coming into force of Hindu Succession Act, his entire interest in the suit property and share in suit property devolved under Section 4 of the Mysore Act X of 1933 on his widow Smt. Gowramma. Thus, Gowramma became entitled to 1/2 share in the suit property and held it during all of her lifetime. Neither Rudrappa nor Gowramma did leave any son or daughter. Really they had died issueless. Gowramma had died in 1978. Whatever interest she had inherited from her husband S. Rudrappa in the property in dispute, she became the full owner. Her limited interest whatsoever was there was converted into full interest by virtue of operation of Section 14, as Section 14(1) provides that any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Thus Gowramma, widow of S. Rudrappa, became full owner of 1/2 share which her husband had inherited in the suit property. Gowramma died in 1978. Succession to her would be governed by Section 15 of the Hindu Succession Act. As per Section 15, the property of a female dying intestate, it is provided, shall devolve according to the rules set out in Section 16.-

(a) firstly, upon the sons and daughters (including the children of any predeceased son or daughter) and the husband;

(b) secondly, upon the heirs of the husband;

(c) thirdly, upon the mother and father;

(d) fourthly, upon the heirs of the father; and (e) lastly, upon the heirs of the mother.

There is no dispute that Gowramma did not leave any son or daughter and her husband had died earlier. So it had to devolve upon the heirs of her husband to be determinable under Section 8 of the Hindu Succession Act. No heir of class I of her husband has been alive in 1978 as is the admitted case. But, the plaintiff being the sister of her husband and coming under Class II, as such, the property which Gowramma inherited from her husband devolved and was inherited by and did fall to the share of the plaintiff.

Thus, the position comes out to be that the plaintiff could claim entitled only to 1/2 share in the suit property, left by B.S. Rudrappa on the ground and basis that B.S. Rudrappa having died issueless, 1/2 interest in the suit property was succeeded on B.S. Rudrappa''s death by Mst. Gowramma, his widow, and on Mst. Gowramma''s death, plaintiff being the sister of Gowramma''s husband B.S. Rudrappa, she succeeded to entire 1/2 share in the suit property while the other half share in the suit property had been succeeded by Gangappa and later on Gangappa''s death, his children namely, appellant 1 and respondent 2 who succeeded jointly.

In this view of the matter, in my opinion, the Trial Court''s decree suffers from an error of law when the Court below held that the plaintiff inherited 1/4th share on the death of G.S. Shivarudrappa and the plaintiff''s share in the property was 5/8th and the share of the defendants 1 and 2 and i.e., appellant 1 and respondent 2 jointly was 3/8th. The correct position appears to be that really either I may say 4/8th share i.e., say 1/2 share in the entire property belongs to Gangappa''s branch and belonging to defendants 1 and 2, while the plaintiff had been entitled to decree for partition of her share as indicated above which is not 5/8th, but is only 1/2 i.e., 4/8th share.

It has been contended by the learned Counsel for the appellant that in view of Section 3, the property in dispute being the dwelling house, the plaintiff is not entitled to claim partition of the dwelling house. Section 23 of the Hindu Succession Act reads as under.-

"Section 23. Special provision respecting dwelling-houses.-Where a Hindu intestate has left surviving him or her both male and female heirs specified in class I of the Schedule and his or her property includes a dwelling-house wholly occupied by members of his or her family, then, notwithstanding anything contained in this Act, the right of any such female heir to claim partition of the dwelling-house shall not arise until the male heirs choose to divide their respective shares therein; but the female heir shall be entitled to a right of residence therein: Provided that, where such female heir is a daughter, she shall be entitled to a right of residence in the dwelling house only if she is unmarried or has been deserted by or has separated from her husband or is a widow".

A reading of this section clearly reveals that it applies to the cases where a Hindu has died intestate leaving surviving him or her both male and female heirs specified in Class I of the Schedule and the property left by him includes a dwelling-house, then the bar against female heirs claiming partition of dwelling-house may arise that she cannot claim partition of the dwelling-house, until the male heirs choose to divide their respective shares. But in such a case where the bar comes, the female heirs if she is a daughter, she is entitled to residence only if she is unmarried, deserted by her husband of is a widow.

Firstly in the present case, the plaintiff-respondent does not come within the framework of expression "heir" specified in Class I of the Schedule. Really with reference to B.S. Rudrappa and his widow whose interest plaintiff succeeded, she succeeded as the heir of (her brother) B.S. Rudrappa and coming within Class II. As such, in my opinion, the contention made by the appellant''s Counsel that the plaintiff''s suit for partition was not maintainable has got no substance. Suit is and has been maintainable.

In view of the above, the appeal is allowed in part. Decree of the Trial Court is modified for declaration and partition holding the plaintiff-respondent 1 to be entitled to 1/2 share in the suit property and is entitled for partition and separate possession thereof while remaining half share in the suit property shall fall jointly to the share of defendant/appellant 1 and defendant-respondent 2. Let the partition be effected accordingly. Thus, the Trial Court''s decree is modified to this extent i.e., that the plaintiff/respondent is entitled to 1/2 share (one half share in suit property) i.e., 4/8th share in suit property only. For expression ''5/8th share'', expression ''1/2 or 4/8th share'' shall be read as suit of the plaintiff-respondent stands and has been decreed for partition and separate possession of only 4/8th i.e., 1/2 (one half share) in suit scheduled property. The first appeal as such is allowed to this limited extent of modifying the Trial Court''s decree to the above extent. Let the parties bear their own respective costs of suit and appeal.