In the High Court of Karnataka at Bangalore

® IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 16 TH DAY OF APRIL 2013

BEFORE:

THE HON’BLE MR.JUSTICE ANAND BYRAREDDY

REGULAR FIRST APPEAL NO.534 OF 2003

CONNECTED WITH

REGULAR FIRST APPEAL No. 394 of 2003

REGULAR FIRST APPEAL No..669 of 2003

IN R.F.A.No.534 of 2003

BETWEEN:

1. Sri. Swamy, Son of Late Chandregowda, Major,

2. Smt. Puttamma, Wife of Late Chandregowda, Major,

Both are residents of Palahalli Village, Belagola Hobli, Srirangapatna Taluk, Mandya District. …APPELLANTS

(By Shri. K.V. Narasimhan, Advocate )

AND:

1. Smt. Thimmamma, Wife of Late Thimmegowda, Major, Resident of Palahalli Village, Belagola Hobli, Srirangapatna Taluk.

2. Smt. Parvathamma, Wife of Naganna, since dead by her legal representatives are a) Naganna, Son of T. Mariyappa, Aged about 57 years, b) P.N. Yoganarasimha, son of Sri. Naganna, Aged about 32 years, c) Sri. P.N. Yadhukumar, Son of Sri. Naganna, Aged about 28 years, d) Smt. N. Jayalakshmi, wife of Kempegowda, aged about 31 years, resident of No. 1963, 4th Cross, K-Block, Kuvempunagar, Mysore – 23. e) Smt. N. Vijayalakshmi, Daughter of Sri. Naganna, Aged about 26 years, f) Smt. N. Ambika, daughter of Sri. Naganna,

aged about 24 years,

respondent Nos. 2(a) to (c) and (e) and (f) are Residents of Palahalli Village, Belgola Hobli, Srirangapatna Taluk, Mandya District.

[cause title amended as per the order dated 9.9.2009]

3. Sri. L. Prakasha, Sonof P.N. Lakshmayya, Major, Resident of Palahalli Village, Belagola Hobli, Srirangapatna Taluk.

4. Sri. Shivanna, Son of P.N. Lakshmayya, Major, Resident of Palahalli Village, Belagola Hobli, Srirangapatna Taluk.

5. Sri. P.G. Somashekara, Son of Gundappa, Major, Resident of Palahalli Village, Belagola Hobli, Srirangapatna Taluk.

6. Sri. Ningegowda, Son of Devegowd, Major, Resident of Palahalli Village, Belagola Hobli, Srirangapatna Taluk.

7. Sri. P.M.S. Gowda, Son of Palahalli Marigowda, Major, Drill Teacher, Vahini High School, Palahalli Village, Belagola Hobli, Srirangapatna Taluk. … RESPONDENTS

(By Shri. T.N. Raghupathy, Advocate for Respondent Nos. 2 (a, c to f) Shri. G.S. Bhat, Advocate for Caveator/Respondent No.1 Respondent Nos. 3 to 7 and Respondent No.2(b) are served and unrepresented) ***** This Regular First Appeal is filed under section 96 of Code of Civil Procedure, 1908, with a prayer to against the judgment and decree dated 2.12.2002 passed in O.S.No.73/1989 on the file of the Principal Civil Judge (Sr.Dn.) and Judicial Magistrate First Class, Srirangapatna, decreeing the suit for partition and separate possession.

IN R.F.A.No.394 of 2003

BETWEEN:

1. Smt. Parvathamma, Aged about 53 years, Wife of Sri. Naganna, Since deceased by her Legal representatives are a) Naganna, Son of T. Mariyappa, Aged about 55 years, b) P.N. Yoganarasimha, son of Sri. Naganna,

Aged about 30 years, c) P.N. Yadhukumar, Son of Sri. Naganna, Aged about 26 years, d) N. Jayalakshmi, wife of Kempegowda, aged about 29 years, resident of No. 1963, 4th Cross, K-Block, Kuvempunagar, Mysore – 23. e) N. Vijayalakshmi, Daughter of Naganna, Aged about 24 years, f) N. Ambika, daughter of Naganna, aged about 22 years,

Appeallant Nos. 1(a) to (c) and (e) and (f) are Residents of Palahalli Village, Belgola Hobli, Srirangapatna Taluk, Mandya District.

[cause title amended as per the order dated 16.02.2004] …APPELLANTS

(By Shri. T.N. Raghupathy, Advocate)

AND:

1. Smt. Thimmamma, Major, Wife of Sri.Thimme Gowda, Residing at Palahalli,

Belagola Hobli, Srirangapatna Taluk, Mysore District.

2. Sri. Swamy, Major, Son of Late Chandregowda,

3. Smt. Puttamma, Major, Son of Late Chandregowda,

4. Sri. L. Prakasha, Major, Son of Sri. Lakshmayya,

5. Sri. Shivanna, Major, Son of Sri. Gundappa,

6. Sri. P.G. Somasekhara, Major, Son of Sri. Gundappa,

7. Sri. Ninge Gowda, Major, Son of Sri. Deve Gowda,

8. Sri. P.M.S. Gowda, Major, Sonof Sri. Mavi Gowda,

Respondent Nos. 2 to 8 are Residing at Palahalli, Belagola Hobli, Srirangapatna Taluk, Mysore District. …RESPONDENTS

(By Shri. G.S. Bhat, Advocate for M/s. G.S. Bhat and Associates for Respondent No.1

Shri. K.V. Narasimhan, Advocate for Respondent No.2 Respondent Nos. 3 , 4, 6 to 8 are served Notice to respondent No.5 is dispensed with)

This Regular First Appeal is filed under section 96 of Code of Civil Procedure, 1908, with a prayer to against the judgment and decree dated 2.12.2002 passed in O.S.No.73/1989 on the file of the Civil Judge (Sr.Dn.) and Judicial Magistrate First Class, Srirangapatna, decreeing the suit for partition and separate possession.

IN R.F.A.No.669 of 2003

BETWEEN:

L. Prakasha, Son of P.N. Lakshmayya, Resident of Palahalli Village, Belagola Hobli, Srirangapatna Taluk. …APPELLANT

(Shri. L. Prakasha, party-in-person)

AND:

1. Thimmamma, Wife of Late Thimme Gowda, Aged about 60 years, Resident of Palahalli Village, Belagola Hobli, Srirangapatna Taluk.

2. Swamy, Minor, Son of Late Chandre Gowda, By guardian natural mother Respondent No.3 Puttamma.

3. Puttamma, Wife of Late Chandre Gowda, Aged about 45 years,

4. Parvathamma, Wife of Naganna,

5. Shivanna, Son of P.N. Lakshmayya,

6. P.G. Somashekara, Son of Gundappa,

7. Ningegowda, Son of Devegowda,

Respondent nos. 3 to 7 are Major, Resident of Palahalli Village, Belagola Hobli, Srirangapatna Taluk.

8. P.M.S. Gowda, Son of Palahalli Marigowda, Aged about 30 years, Drill Teacher, Vahini High School, Palahalli, Belagola Hobli, Srirangapatna Taluk. …RESPONDENTS

(By Shri. G.S. Bhat, Advocate for M/s. G.S.Bhat and Associates, for Caveator/Respondent NO.1 Shri. K.V. Narasimhan, Advocate for Respondent No.2 Respondent Nos. 3, 5, 6 are served Respondent no.4 – abated)

***** This Regular First Appeal is filed under section 96 read with Order XLI Rule 1 of Civil Procedure, 1908, with a prayer to against the judgment and decree dated 2.12.2002 passed in O.S.No.73/1989 on the file of the Civil Judge (Sr.Dn.) and

Judicial Magistrate First Class, Srirangapatna, decreeing the suit for partition and separate possession.

These Regular First Appeals, having been heard and reserved on 18.03.2013 and coming on for Pronouncement of Orders this day, the Court delivered the following:-

JUDGMENT

These appeals are heard and disposed of by this common judgment, as all the appeals arise out of the same judgment.

2. The parties are referred to by their rank before the trial court for the sake of convenience.

3. The first respondent in the appeal in RFA 534/2003 was the plaintiff before the trial court. The suit was one for partition and separate possession of the one-third share claimed by the plaintiff , in the suit schedule properties. The trial court decreed the suit and has granted a two-sixth share – the defendants have filed the above appeals.

The following is the genealogical tree of the family :-

Golangana Dasappa

Huchegowda

Shivamma Puttaboramma (1 st wife of Huchegowda) (2 nd wife of Huchegowda)

Thimamma Chandregowda Parvathi (Plaintiff) (Def.No.3)

Puttamma W/o Chandregowda (Defendant No.2)

Swamy (Defendant No.1)

4. The appeal in RFA 534/2003 is filed by the defendant nos.1 and 2. Defendant no.1, Swamy, is the grandson of

Hutchegowda and the son of Chandre gowda. Defendant no. 2,

Puttamma, is the widow of Chandre gowda.

5. The appeal in RFA 394/2003 is filed by defendant no.

3, Parvathamma, the daughter of late Huchegowda.

6. The appeal in RFA 669/2003 is filed by defendant no.

4, L. Prakash, who is the purchaser of land bearing Survey no.

447/2 , measuring 61 acres, one of the items of the suit schedule properties.

The case of the plaintiff was that, Golangana Dasappa had a son, Hutchegowda, who had two wives, namely,

Shivamma and Puttaboramma. The plaintiff, Thimmamma, was the only daughter of Shivamma. Puttaboramma, the second wife of Hutchegowda had two children, Chandregowda

& Parvathamma. Defendants 1 and 2, Swamy and Puttamma are the son and widow, respectively, of deceased

Chandregowda, who had pre-deceased his father,

Hutchegowda. Parvathamma is defendant no. 3. The plaintiff claimed that all the suit properties are the ancestral properties of

Hutchegowda. After his death, the plaintiff claimed that she was entitled to one-third share in the suit properties. It was contended that the third defendant had sold some of the properties without the consent of the plaintiff or the other members of the family.

The first defendant admitted the relationship of the parties and supported the case of the plaintiff. It was also contended by the said defendant that apart from the suit schedule properties, deceased Hutchegowda had held one more item of land measuring 6 acres and sought that the same be directed to be included in the suit schedule. It was however, denied that the plaintiff was in enjoyment of the suit properties, jointly, with the first defendant. It was claimed that while

Hutchegowda had a half share in the suit properties,

Chandregowda was entitled to the remaining extent. After the death of Hutchegowda, the plaintiff- Thimmamma, defendants

1, 2 and 3 were entitled to an equal share in respect of the properties fallen to the share of Hutchegowda. On that basis the first defendant claimed partition and separate possession of his two-third share in the suit properties. As also the item of land not included in the plaint.

Defendant no. 2 contended that she had filed a suit in OS

No.44/1988, for partition and separate possession of a three- fourth share in the ancestral properties, as the next friend of her son, the first defendant. This was warranted as the third

defendant was laying claim to the entire suit properties on the basis of a will said to have been executed by Huchegowda, in favour of defendant no.3, dated 22-12-1986, bequeathing all the properties to her. That suit had however, ended in a compromise, with the third defendant giving up her claim under the will. But, it is contended that, the third defendant had even then managed to wrangle a major share of the suit properties in terms of the said compromise. It is asserted that this was possible as the third defendant carried much influence with

Hutchegowda during his life time and after his death, her husband exerted authority over the family and appropriated the income from the properties and alienated several properties, even though there was no legal necessity for such alienation. It was hence contended that any such alienations did not bind the other sharers.

The third defendant contended that the plaintiff was married to one Thimmegowda and that she was married to one

Naganna. They lived in the same village, but separately and did not constitute a joint family. It was denied that the properties were ancestral properties of Hutchegowda. It was also asserted

that the sale of several items of land in favour of defendants 4 to 7 were made during the life time of Hutchegowda , and could not be questioned as being illegal. This was to the knowledge of the plaintiff. As Hutchegowda had the power of alienation, there was no illegal transaction. It was pointed out that

Hutchegowda was the only son to his father and was the sole surviving co-parcener and the properties in his hands could be construed as his separate properties and hence he could dispose of the same by will or otherwise. It was claimed that under his last will and testament, Hutchegowda had recorded that the third defendant on the one hand, and the first and second defendant on the other, were living separately, in the same village. Hence there was no joint family status existing between the parties.

The fourth defendant contended that he had purchased one of the items of the suit property on 20-2-1988, from one

John, whose vendor had been in possession before the transaction. It is asserted that the plaintiff had not objected to the transaction in his favour at the relevant point of time.

The fifth and eighth defendant who are also said to be purchasers of items of the suit properties, prior to the suit, have taken similar contentions as the fourth defendant.

7. The court below had framed the following issues on the basis of the above pleadings:-

“1. Whether the plaintiff proves that the suit properties are the ancestral joint family properties of herself and D1 to 3?

2. Whether the defendant No.3 proves that her father Hutchegowda had made disposition of properties through a will dated 22.12.1986, as they were himself acquired properties?

3. Whether the defendant No.3 proves that sales made by her cannot be questioned by plaintiff for the reasons stated in para-10 of her written statement?

4. Whether the suit is bad for mis-joinder of parties?

5. Whether the suit is bad for non-joinder of necessary parties and properties?

6. Whether the plaintiff is entitled to relief of partition and separate possession of 1/3 rd share in the suit properties?

7. Whether the 1 st defendant is entitled to partition and separate possession of 2/3 rd share in suit properties?

8. Whether the plaintiff is entitled to mesne profits?

9. To what reliefs parties are entitled?

ADDITIONAL ISSUES

1. Whether the 3 rd defendant proves that the sale to defendants 4 to 7 are not by defendant Nos. 1 to 3, but deceased Hutchegowda during his life time for his necessity and he had absolute power to effect the sales as averred in the amended written statement?

2. Whether the plaintiff proves that the sales effected by the defendants 1 to 3 in favour of defendant No.8 and some other third parties are not binding on the shares of plaintiff as averred in para-4(b) of the plaint?

3. Whether the plaintiff proves that the suit schedule properties are in joint possession of plaintiff and defendants 1 to 3? 4. Whether the plaintiff is entitled for the relief claimed in the suit?”

The suit was partly decreed as per judgment and decree dated 29.2.1996, holding that the plaintiff was entitled to one- sixth share and the defendant no. 1 was entitled to two-third share, while the third defendant was held entitled to one-sixth share, in all the suit properties, except those sold to defendants

4 to 8. Against the above judgment and decree, both the plaintiff and the defendants had preferred appeals to this court in RFA 490/1996, RFA 489/1996 and RFA 518/1996. This court, by its judgment dated 16-2-2002 , remitted the matter for a fresh consideration. The plaintiff and the defendants had been

permitted to amend their pleadings and the above issues were framed.

The court below has held Issues nos.1 to 5, 8 and additional issue no. 1 in the negative and issue no. 6 and 7 and additional issue nos. 2 and 3 in the affirmative. It is this which is under challenge in these appeals.

8. The learned counsel for the appellants, Shri

K.V.Narasimhan contends as follows:-

That Chandregowda died in the year 1975. He predeceased his father Hutchegowda, who died on 7.2.1987.

The court below has erroneously concluded that Hutchegowda was the sole surviving co-parcener seeming to apply the rule of inheritance in terms of Section 8 of the Hindu Succession Act,

1956 (Hereinafter referred to as the ‘1956 Act’, for brevity) and has pronounced that the plaintiff - defendants 1, 2 and 3 were the heirs of Hutchegowda and has allotted them shares accordingly. However, it was overlooked that Chandregowda died in the year 1975, leaving behind him Swamy, his son, the first defendant. Therefore, by the deeming fiction of notional

partition, the half share of Chandregowda in the suit properties would devolve upon Swamy, his son and Puttamma, his widow, respectively, and Hutchegowda would retain the other half. On the death of Hutchegowda, the half share belonging to

Hutchegowda by notional partition, would have to be divided into three equal shares, to be distributed between the plaintiff, defendants 1 and 2 and defendant 3, respectively. The fallacy committed by the court below in overlooking this obvious circumstance, has resulted in a miscarriage of justice, leading to the impugned judgement. The conclusion by the court below that Hutchegowda would become the sole co-parcener after the demise of Chandregowda is, therefore, a cardinal error committed by the trial court. The learned Counsel relies on the following authorities to substantiate his contentions:-

(a) Sheela Devi and others vs. Lal Chand, (2006)8 SCC 581,

(b) Dharma Shamrao Agalawe vs. Pandurang Miragu Agalawe and others, AIR 1988 SC 845.

The learned counsel would further contend that Section

6 of the 1956 Act, as amended by Act 39 of 2005, would not be

applicable to the case on hand, for the reason that even if the amendment of the year 2005 is applied with retrospective effect from the date the Act came into force, it is evident that the legislature had no intention of conferring the rights on the female relative of a co-parcener, including a daughter, prior to the commencement of the Act. It is for the first time that by the amendment, such rights are conferred. Therefore, it would not be possible to extend the benefit of Section 6 to daughters born before the 1956 Act came into force and it would be necessary to keep in view the circumstance whether the female relative, including the daughters of a co-parcener, were born before

17.6.1956 or after 17.6.1956. It is only those born after the said date, who would be conferred with the rights contemplated under the amended Act 35/2005. For this proposition, sustenance is sought to be drawn from Pushpalatha N.V. vs.

V.Padma, ILR 2010 KAR.1484 and if the above proposition is applied to the present case on hand, the learned counsel would contend that the plaintiff was 60 years old as on the date of filing of the suit, that is on 3.4.1989. Defendant no.3 is said to have been 53 years old as on the date of filing of the appeal in

RFA 394/2003. Therefore, she must have been born in the year

1950 and hence the amended Act would not be applicable to neither the plaintiff nor defendant no.3.

It is further contended that in the instant case, succession opened on 7.2.1987 with the demise of

Hutchegowda and therefore, Act 13/2005 was not in operation as on the date of opening of the succession and places reliance on the following :-

(a) Anar Devi and others vs. Parmeshwari Devi and others,

AIR 2006 SC 3332,

(b) M.Prithviraj and others vs. Leelamma, 2008 (4) KCCR

2333, and

AIR 2012 Bombay 101.

The learned Counsel would thus contend that neither the plaintiff nor defendant no.3 are entitled to claim their share in the suit properties as co-parceners as they were born even before the 1959 Act came into force and succession had opened before the amended Act came into force.

9. Shri G.S.Bhat, learned Counsel appearing for the plaintiff, on the other hand, contends that there is no dispute as to the relationship of the parties and the fact that there was no partition prior to the suit as also the fact that all the properties are ancestral and family properties. The propositus Dasappa died after 1956. The argument canvassed on behalf of defendants 1 and 2 that in the notional partition, the property should be first divided between the father and son and the son would take the half share and in the remaining half, all the members, both male and female, would be entitled to a share and therefore, Thimmamma, the plaintiff would be entitled to one-sixth share, is an incorrect proposition. The learned

Counsel draws attention to Sections 4 and 6 of the 1956 Act as amended and would contend that the proposition that the date of birth of the daughters being prior to 1956 and that the provisions of the 1956 Act were not applicable would be a mis- interpretation of Section 4 of the 1956 Act. To attract Section

4 of the 1956 Act, two conditions are to be satisfied, namely, that there must be a partition in the family between the sons and

father prior to 1956 or the father should have died before

1956. Otherwise, it is the general rule in regard to succession as contemplated under Section 8 of the 1956 Act, which would become applicable and places reliance on the following authorities and seeks to justify the judgment of the court below:

1. Bondar Singh and others Vs. Nihal Singh and others,

(2003) 4 SCC 161,

2. Rajgopal (dead) by L.Rs., Vs. Kishan Gopal and another, AIR 2003 SC 4319,

3. Smt. Phulavati Vs. Prakash and others, AIR 2011

Karnataka 78,

4. Beg Raj Singh Vs. State of U.P. and others, (2003) 1

SCC 726,

5. Ganduri Koteshwaramma and another Vs. Chakiri

Yanadi and another, (2011) 9 SCC 788,

6. Miss. R. Kantha Vs. Union of India represented by its

Cabinet Secretary, Ministry of Law, Justice and Company

Affairs and another, ILR 2009 KAR 3699.

10. Shri T.N.Raghupathy, appearing for defendant no.3, the appellant in RFA 394/2003, would contend that the said defendant no.3 had contested the suit. However, it was held that she was entitled to one-sixth share in the suit properties while excluding the properties sold to defendants 4 to 8. The primary contention of defendant no.3 in resisting the suit of the plaintiff was to the effect that Hutchegowda had executed a will dated 22.12.1986 in favour of the said defendant and therefore, the suit for partition was not maintainable. The court below had held that the execution of the will had been established, but concluded that it was impracticable to give effect to the will and that finding had been challenged in an appeal in RFA 518/1996. The plaintiff in turn had also filed an appeal in RFA 486/1996 and the first defendant had also challenged the same in RFA 490/1996. All the appeals were allowed and the matter was remitted for a fresh consideration.

On such remand, the said defendant no.3 had examined her husband Naganna as a witness and had produced additional documents apart from examining one Chandrashekar as DW.8 and the trial court having held that the plaintiff and the third

defendant were entitled to one-third share each and defendants

1 and 2 were entitled to one-sixth share each, is erroneous for the reason that the trial court having held that the properties in question were the self acquired properties of Hutchegowda as he was the sole surviving co-parcener, has committed an error in holding that the will executed by Hutchegowda was not a genuine will. The reasons assigned for such a finding cannot be sustained. This is further confounded by the fact that while concluding the court below having apparently held that the execution of the will had been proved nevertheless goes on to hold that even though the will might have been executed, it was not a genuine will, which is a contradictory finding on the face of it. The observation of the court below that the appellant ought to have examined herself as a witness is again not with reference to any legal requirement. The doubt expressed of the execution of the will was on account of the presence of a beneficiary, when in fact, such beneficiary has neither had any role in the execution of the will or the attestation thereof.

Therefore, examining herself as a witness would not have advanced the case that Hutchegowda was in a sound state of

mind at the time of execution of the will. The negation of the evidence tendered by defendant no.3 through her husband as a power of attorney holder is unjust and is not in accordance with law. There was no impediment in having examined her husband on her behalf. The statement made by the scribe of the will was that he did not know who were present at the time that the will was written down when at the same time, the scribe has stated that he wrote to the dictates of Hutchegowda has been unfairly rejected. What was expected of a scribe was only an affirmation that he wrote to the dictates of the testator. Further, the negation of the evidence of DWs 3 and 4, when they had declared that they were present at the time of the execution of the will and had signed in the presence of each other after the execution of the will by Hutchegowda, was ample compliance of the requirement under section 63 of the 1956 Act and the same being negated, was again not tenable. The court below having found that defendant no.3 had executed a sale deed on the date of the execution of the will, would not again have the effect of negating the validity of the will and hence the findings given by the Civil Judge smacks of perversity.

The trial court has also doubted the execution of the will on the ground that Hutchegowda was 80 years old when it was said to have been executed and he having died two months thereafter has found the execution of the will to be suspicious.

It is pointed out that only a person in the evening of his life would contemplate the execution of a will and there was nothing unnatural about that circumstance. The learned counsel would also point out that the trial court has suspected the will on the footing that the disposition was not equal as between the children of the testator. It was indeed the privilege of the testator to bequeath the properties to one or the other heirs and the intention expressed in the will was to be looked into as to why the testator chose to bequeath the properties only in favour of defendant no.3. Therefore, the finding of the trial court as to the execution of the will by Hutchegowda in a sound state of mind as being doubtful, is based only on conjectures and surmises and therefore is not tenable.

It is also contended that the finding as to the sale deeds executed in favour of defendants 4 to 8 not binding on the

other members of the family is erroneous, as the same were executed even during the life time of Hutchegowda and therefore, cannot be questioned at this point of time.

The learned Counsel for defendant no.4 has sought to contend that defendant no.4 was a bona fide purchaser for value and even if the sale was held to be not binding on the other defendants, the share of the vendor ought to have been culled out in order to save the sale transaction to that extent as the law does contemplate such a course of action. The court below not having chosen to do so, has not rendered the judgment in accordance with law and therefore to that extent, it ought to be set aside. The learned Counsel has also raised other contentions which may not be relevant.

11. In the light of the above contentions, the questions that would arise for consideration before this court are,

(a) Whether on the principle of notional partition, the trial court ought to have held that the half share of

Chandregowda in the suit properties devolved upon Swamy

and Puttamma, his son and widow, respectively, as legal representatives and the other half share was held by

Hutchegowda?

(b) Whether after the death of Hutchegowda, his half share, by notional partition, was to be divided into three equal shares as between the plaintiff, defendants 1 and 2 and defendant no.3?

(d) Whether the third defendant could claim under the will said to have been executed by Hutchegowda bequeathing the suit properties in her favour?

(e) Whether the alienations in favour of defendants 4 to

7 are binding on the plaintiff and defendants 1 and 2?

It is noticed that in the impugned judgment, the court below has proceeded on the basis that Golangana Dasappa, the propositus having died, had left behind Hutchegowda as the sole surviving co-parcener and that Chandregowda, son of

Hutchegowda was born much subsequent to the death of

Golangana Dasappa. Therefore, on the death of Dasappa,

Hutchegowda, as the sole surviving co-parcener, takes the suit properties entirely and it would be his separate properties. The court below has relied upon a decision in Kumbalagunte

Gowramma vs. Kumbalagunte Dodda Veeranna, ILR 2000

Kar.3695 and had referred to a paragraph from Mulla’s Hindu

Law, 15 th edition, at page-345, item -257 and also to the decisions in Commissioner of Wealth Tax, Kanpur vs. Chander

Sen, AIR 1980 SC 1753 and Yudhishter vs. Ashok Kumar, AIR

1987 SC 558. The reasoning of the court below is to the effect that Hutchappa died on 7.2.1987, after coming into force of the Hindu Succession Act, 1956 and in view of Section 8 of the 1956 Act, Hutchegowda was the sole surviving coparcener on the death of Golangana Dasappa and the property devolved according to the Schedule to the 1956 Act and as a class-1 heir and not as a Hindu Undivided family property, but as his self acquired property, as Chandregowda was not born at that time and has further concluded that insofar as the claim of the third defendant that Hutchegowda, by his will dated 22.12.1986, had bequeathed the entire property to her is concerned, has

negated the same, on the ground that there were suspicious circumstances and further that the first defendant Swamy had filed a suit through his guardian, against the third defendant in

O.S.No.44/1988 before the Civil Judge and JMFC,

Srirangapatna, questioning the genuineness of the will and the said suit having been compromised, the third defendant had given up her claim under the will by virtue of the compromise and could not again rely upon the same. Insofar as the allegations in favour of defendants 4 to 8 are concerned, the court has found as a fact that the alienations were made by the third defendant when she had no right in the properties and therefore, the same were not binding on the parties to the suit and has held that the plaintiff was entitled to two-sixth share; defendants 1 and 2 were entitled to one-sixth share and the third defendant was entitled to two-sixth share in all the suit properties, including the properties sold to defendants 4 to 8.

From the established facts, it is clear that Chandregowda died in the year 1975. He pre-deceased his father

Hutchegowda, who died on 7.2.1987. But the court has overlooked the fact that Chandregowda, who died in the year

1975, was survived by his son Swamy, the first defendant. The court below has not taken that important circumstance into account. On the principle of notional partition, on the death of

Chandregowda, the suit properties to the extent of half share devolved upon Swamy and Puttamma, the widow of

Chandregowda and after the death of Hutchegowda, the half share, to which he was entitled by a notional partition, would be divided into three equal shares as between the plaintiff, defendant nos. 1 and 2 and defendant no.3. The finding of the court below that Hutchegowda became the sole coparcener on the demise of Chandregowda is an incorrect finding. So long as the property remains in the hands of a single person, the same would be treated as a separate property and he would be entitled to dispose of the coparcenery property, as if the same were his separate property. But if a son was subsequently born to him or adopted by him, the alienation thereafter, whether it is by way of sale, mortgage or gift, will stand, for the son cannot object to the alienations so made by his father before he was born or begotten. But once a son is born, it becomes coparcenery property and the son would acquire an interest

therein. This is the proposition as laid down in C.Krishna

Prasad vs. CIT, (1975)1 SCC 160, and followed in Sheela

Devi and others vs. Lal Chand, (2006)8 SCC 581. Section 8 which provides for the general rules of succession in the case of males lays down that a property of a male Hindu dying intestate shall devolve according to the provisions of Chapter-

II, firstly upon heirs being the relatives specified in Class-I of the Schedule. Therefore, on the death of the propositus

Dasappa, though Hutchegowda was the sole surviving coparcener, Chandregowda having been born subsequently, left behind Swamy. Therefore, Hutchegowda as the son of Dasappa and Swamy, as the son of a pre-deceased son and Puttamma, the widow of Chandre Gowda are class-I heirs. Consequently, the property on the death of Chandregowda, by a notional partition, devolved on Swamy and Puttamma as the legal representatives of Chandregowda to the extent of half share as against the half share of Hutchegowda. In the light of the above, Hutchegowda could not have disposed of the suit properties to the entire extent under a will. It is also to be mentioned that the authorities relied upon by the trial court do

not state the law differently. The court below has misconstrued the same.

Nextly, without reference to the will said to have been left behind by Hutchegowda, which is dealt with hereinafter, the question as to the manner of succession to the half share, to which Hutchegowda was entitled, would by virtue of the general rules of succession under the 1956 Act, by notional partition, have to be divided into three equal shares, to be distributed between the plaintiff, defendants 1 and 2 and defendant 3.

The judgment of the trial court was rendered prior to the amendment of Section 6 of the 1956 Act. The amended Section was substituted by Act no.39 of 2005 with effect from

9.9.2005. A division bench judgment of this court in

Pushpalatha N.V. vs. V.Padma, ILR 2010 Kar.1484 has addressed the question of the status of a daughter of a coparcener born prior to 17.6.1956 and the effect of the amended Act on such a female heir and has held thus:-

“56. Therefore, it follows that the Act when it was enacted, the legislature had no

intention of conferring rights which are conferred for the first time on a female relative of a Co-parcener including a daughter prior to the commencement of the Act. Therefore, while enacting this substituted provision of Section 6 also it cannot be made retrospective in the sense applicable to the daughters born before the Act came into force. In the Act before amendment the daughter of a Co-parcener was not conferred the status of a Co-parcener. Such a status is conferred only by the Amendment act in 2005. After conferring such status, right to Co-parcenary property is given from the date of her birth. Therefore, it should necessarily follow such a date of birth should be after the Act came into force, i.e., 17.6.1956. There was no intention either under the unamended Act or the Act after amendment to confer any such right on a daughter of a Co-parcener who was born prior to 17.6.1956. Therefore, in this context also the opening words of the amending section assumes importance. The status of a Co-parcener is conferred on a daughter of a Co-parcenar on and from the commencement of the Amendment Act, 2005. The right to property is conferred from the date of birth. But, both these rights are conferred under the Act and, therefore, it necessarily follows the daughter of a Co-parcenar who is born after

the Act came into force alone will be entitled to a right in the Co-parcenary property and not a daughter who was born prior to 17.6.1956.

57. Thus, by virtue of the substituted provision what the Parliament intends to do is first to declare that, on and from the commencement of this Amendment Act in a Joint Hindu family governed by the Mitakshara law, the daughter of a Co-parcener shall by birth become a Co-parcener in her own right in the same manner as the son and have the same rights in the Co-parcenary property as she would have had if she had been a son. Therefore, the Mitakshara law in respect of Co- parcenary property and Co-parcenary consisting of only male members came to an end. By such a declaration the Parliament declared that from the date of the amendment shastric and customary law of Co-parcenary governed by Mitakshara school is no more applicable and it cease to exist. Thus, by virtue of the aforesaid provision, a right is conferred on a daughter of a Co-parcener for the first time. The said right is conferred by birth. Therefore, though such a right was declared in the year 2005, the declaration that the said right as a Co-parcener enures to her benefit by birth makes the said provision retro active.

Though on the date of the birth she did not have such right because of the law governing on that day by amendment the law, such a right is conferred on her from the date of the Act of 1956. A historical blunder depriving an equal right in spite of the constitutional mandate is now remedied and the lawful right to which the daughter was entitled by virtue of the constitution is restored to her from the date of her birth. This, the Parliament has done by using the express words that a daughter of a Co-parcener shall by birth become a Co- parcener in her own right in the same manner as the son and have the same rights in the Co- parcenary property as she would have had if she had been a son.”

However, a division bench of the Bombay High Court, while dealing with the right that would accrue under Section 6 of the 1956, Act after its amendment has held thus:-

“9. The Section is required to be dissected for interpretation. The sub-title of the section relates to devolution of interest in co-parcenary property. The interest devolves upon succession. Such devolution may be upon intestate or testamentary succession. The entitlement of a

daughter of a coparcener is, therefore, upon devolution and not without any such cause since devolution is only upon succession. The succession would open on a given day. It would, therefore, open only upon the death of the coparcener. Until that time the coparcener, to constitute the coparcenary of which he is a coparcener, must be a member in HUF consisting of other coparceners. In the present case admittedly aside from the appellants there has been no other coparcener of respondent No.1.

10. It would have to be seen when the appellants would be coparceners being the daughter of a coparcener. The section gives the right to a daughter of a coparcener “on and from” the commencement of the Act. The amended provision under Section 6 of the HAS came into effect from 9 September, 2005. On and from that date the daughter of a coparcener would become a coparcener in her own right just as a son would be by virtue of her birth and she would have the same rights and liabilities as that of a son. The devolution of her interest should, therefore, be on and from 9 September, 2005.

11. No interest can devolve in a coparcenary property except on the death of the coparcener. In this case there has been no devolution of interest by any succession, testamentary or intestate, because no coparcerner (assuming that respondent No.1

was a coparcener with another in his HUF) has been deceased. The share in the coparcenary, therefore, cannot “devolve” upon anyone. The succession, therefore, has not yet, opened. The suit is, therefore, premature. The appellants, as the daughters of the coparcener, are not statutorily given any right as coparceners ipso facto before devolution of any interest. 12. Meaning of the word “devolve” in Oxford English Dictionary is: (i) transfer power to a lower level, (ii) pass to a deputy or to a successor, It originates from the Latin word devolver - meaning “roll down”.

The Concise Oxford English Dictionary shows the meaning of the word “devolve” to be “thrown, fall, descend upon, fall by succession”. The meaning of the devolve in the Chambers Dictionary (20 th Edition) is shown as “to roll down, to hand down, to deliver over, to fall or Passover in succession”.

13. Consequently, until a coparcener dies and his succession opens and a succession takes place, there is no devolution of interest and hence no daughter of such coparcener to whom an interest in the coparcenary property would devolve would be entitled to be a coparcener or to have the

rights or the liabilities in the coparcenary property along with the son of such coparcener. 14. It may be mentioned, therefore, that ipso facto upon the passing of the Amendment Act all the daughters of a coparcener in a coparcenary or a joint HUF do not become coparceners. The daughters who are born after such dates would certainly be coparceners by virtue of birth, but for a daughter who was born prior to the coming into force of the amendment Act she would be a coparcener only upon a devolution of interest in coparcenary property taking place.

15. It is contended on behalf of the appellants that Section 6 of the amendment Act is retrospective in operation and hence all daughters of all coparceners would have the interest devolved upon them even if they were born prior to the amendment Act and even if the succession opened earlier than the amendment Act. We may mention that this is not a case of succession at all. It is contended on behalf of the appellants that any daughter born even prior to the amendment Act would be a coparcener as to have an equal, undivided interest in the coparcenery properties.

16. This contention is made wholly disregarding the sub-title of the section. The subtitle of a section is required to be considered in

the interpretation of the section and hence the devolution of the interest is condition precedent for any claim in coparcenary interest.

17. Even dehors the subtitle the section is required to be interpreted to see whether a daughter of a coparcener would have an interest in the coparcenery property by virtue of her birth in her own right prior to the amendment Act having been brought into effect. It may be mentioned that prior to the amendment Act (aside from the State Amendment Act of 1995 which amended Section 29 of the HSA) indeed the daughter was not a coparcener; she had no interest in a coparcenery property. She had, therefore, no interest by virtue of her birth in such property. This she got only "on and from" the commencement of the amendment Act i.e, on and from 9 September 2005. The basis of the right is, therefore, the commencement of the amendment Act. The daughter acquiring an interest as a coparcener under the Section was given the interest which is denoted by the future participle "shall". What the section lays down is that the daughter of a coparcener shall by birth become a coparcener. It involves no past participle. It involves only the future tense. Consequently, by the legislative amendment contained in the amended Section 6 the daughter shall be a coparcener as much as a son in a coparcenery property. This

right as a coparcener would be by birth. This is the natural ingredient of a coparcenery interest since a coparcenery interest is acquired by virtue of birth and from the moment of birth. This acquisition (not devolution) which until the amendment Act was the right and entitlement only of a son in a coparcenary property, was by the amendment conferred also on the daughter by birth. The future tense denoted by the word "shall" shows that the daughters born on and from 9 September, 2005 would get that right, entitlement and benefit, together with the liabilities. It may be mentioned that if all the daughters born prior to the amendment were to become coparceners by birth the word "shall" would be absent and the section would show the past tense denoted by the words "was" or "had been". The future participle makes the prospectivity of the section clear.

18. Similarly in sub clause (a) of the amended Section 6 the word "become" shows what was contemplated to be in the future on and after the date the amendment came into force. It is from that date that the daughter would "become" a coparcener, which she was not until then. If she was to be taken to be the coparcener since even prior to the coming into force of the Act the word "become" in sub clause A of Section 6 would have been instead "was".

19. Reading the operative part of the section alongside the sub clause (a) shows that the daughter "shall become" a coparcener by virtue of her birth in a coparcenery property. This future tense is consistent with the operative words "on and from". Hence on and from 9 September 2005 a daughter shall become a coparcener in a coparcenery property by birth. The words "was" or "had been" etc., would be inconsistent with the words "on and from".

20. The words "on and from" are indeed unique. They show the date from which the amendment would come into effect. The footnote of the section itself shows w.e.f. 9 September 2005 hence on and w.e.f 9 September 2005 a daughter shall become a coparcener in coparcenery property by virtue of her birth. That would be acquisition of interest in a coparcenery property though not devolution.

21. Similarly in the latter part of the section after sub clause (c) the reference to a Hindu Mitakshara coparcener which would be deemed to include the daughter is also in the future tense denoted by the words "shall be". Had the section being retrospective and was to be effective for all daughters born prior to the date the amendment was effected or prior to the succession having

opened, the reference to the daughter as a copercener in a Hindu Mitakshara family would be shown to have been deemed "always have included" a reference to the daughter of a coparcener.

22. The section further contains a proviso. The proviso is to prevent mischief of application of the section to non-applicable cases, precisely the kind of mischief that is made in the suit of the appellants themselves. The section has a limited effect. That is because for as many as about 50 years after the HSA came into force in 1956 various Hindu families having coparcenery property could have made various dispositions and alienations which had to be saved. Under the proviso any disposition including a testamentary disposition and any alienation including a partition made prior to 20 December 2004 (presumably when the Act was tabled in Parliament and which was only about 9 months prior to the coming into force of the amendment Act) were saved from the effect of the section. Hence for such disposition and alienation made prior to 20 December 2004 the daughter of the copercener would not be entitled to claim her interest in the coparcenery property.

23. In this case the alienation was made by the respondent No.1, the father of the appellants, in

2008 by creation of the equitable mortgage in favour of the respondent No.2. Hence, if otherwise the appellants would be covered by Section 6 the alienation by the equitable mortgage created by respondent No.1 would not come in their way.

24. The express words in the section clearly indicate the intention of the legislature to make daughters coparceners in coparcenery property on and from the date the amendment Act came into force. The Act also clearly shows that from that date they shall become coparceners with the same rights and liabilities and the reference to the Mitakshara would also be reference including the daughter from then on. The express provisions in the Act are, therefore, inconsistent with any retrospectivity.

25. It is settled law that unless the Statute makes a provision retrospective expressly or by necessary intent it cannot be interpreted to be retrospective. It is also settled law that vested rights cannot be unsettled by imputing retrospectivity upon a legislation by judicial interpretation or construction. Making the section retrospective would wholly denude the words "on and from" in the section; they would be rendered otiose. These words are unique and clear. They

express the intent of the legislature which is not far to seek.

26. The rights of a coparcener vest in him/her upon an interest devolving upon such coparcener. This interest would devolve by succession, intestate or testamentary. Upon the death of a coparcener his interest in a coparcenery property would devolve upon other coparceners. This devolution under the unamended Section 6 of the HSA was by survivorship in case of only male heirs and by succession, if there were female heirs also. After the amended Section 6 this devolution of interest would be upon the son and the daughter alike.

27. A reading of Section as a whole would, therefore, show that either the devolution of legal rights would accrue by opening of a succession on or after 9 September 2005 in case of daughters born before 9 September 2005 or by birth itself in case of daughters born after 9 September 2005 upon them.

28. The prospectivity of the Act is clear. It is not made expressly retrospective by the legislature. Further it has specified not to effect transactions prior to the specified date in the proviso. Even the intention of the legislature in keeping in tact the rights vested upon any disposition or alienation is

clear and hence further supports the mischief that the amendment Act sought to remedy and the mischief that it sought to prevent. The mischief that was remedied was the discrimination between the daughter and a son in a legislation that was enacted 6 years after the coming into force of the Constitution of India which granted equal rights to all persons irrespective of their sex. The discrimination prevailed for 50 years despite the constitutional mandate of equality. The mischief that it sought to prevent was precisely a kind of mischief that the appellants have sought to create. Though alienation prior to the specified date, which was also 9 months prior to the coming into force of the Act, have been excepted, all daughters born well prior to the coming into force of the amendment Act (and in this case the date of birth of the appellant is neither known nor shown), would seek to be included to undo transactions of other members of the coparcenary either before any succession opened and only mere virtue of their birth. The mischief would be precisely that. It would set at naught the rights vested in a son or in any other coparcener when the unamended Act was not in force. It would seek to undo transactions entered into by those coparceners with third parties, such as respondent No.2 Bank in this case. It would not be known to respondent No.2 at the time the equitable mortgage was created that any

part of the mortgaged property would be let off consequent upon a subsequent claim by the daughters of the mortgagors who were not known to the Bank or shown to be coparceners.

29. The aspect of the retrospectivity has been considered by the Supreme Court as well as other Courts. In the case of Sugalabai Vs. Gundappa A. Maradi & Ors. ILR 2007 KAR 4790 : (2007 (6) AIR Kar R 506) the words "on and from" came to be considered and interpreted in paragraph 24. It was observed that it meant "immediately and after". Hence immediately and after the commencement of the Act the daughter of a coparcener became by birth a coparcener in her own right as the son.

The observation in that judgment that there was nothing in the Act which showed that only those born on and after the commencement of the Act would become coparceners would run counter to the aforesaid dissection of the section by the words "shall become".

30. The judgment in the case of Pravat Chandra Pattnaik & Ors. v. Sarat Chandra Pattnaik & Anr. AIR 2008 Orissa 133 showed that Section 6 of the amendment Act created a new right and the provisions were not expressly made retrospective by the legislature. The Act is clearly

without any ambiguity and, therefore, the words could not be interpreted. They do not bear more than one meaning and the act was, therefore, held to be prospective creating a substantive right for a daughter and hence it was held that the daughter got rights of the coparcener from the date when the amended Act came into force.

Despite the contention that only the daughters who are born after 2005 would be treated as coparceners was not accepted, it was clarified that the daughter would have a right to be coparcener from 9 September 2005 whenever she was born and she could claim partition of the property which was not partitioned earlier. This aspect also loses sight of the subtitle of the Section which deals with only "devolution" of interest in case of such daughter born before 9 September 2005.

These judgments, therefore, do not commend to us.

31. The Hindu Succession Act is an Act 1956 to amend and codify the law relating to the intestate succession of Hindus. It brought about changes in the law of succession amongst the Hindus and give rights which were until then unknown in relation to the women's property. The Act of 1956, however, did not interfere with the

members of Hindu Mitakshara coparcenery. It was that provision that the amendment Act of 2005 sought to further codify. It applied to all Hindus belonging to any coparcenery and laid down special provisions for the daughters of a coparcener upon devolution of interest under Section 6 of the Act removing the discrimination on the ground of gender against such daughters and to render social justice to women.

32. Relating to devolution of interest, the opening of a succession came to be considered as the focal point by the Supreme Court in the case of Sheela Devi & Ors. v. Lal Chand & Anr. (2006) 8 SCC 581 followed thereafter in the case of G. Sekar v. Geetha & Ors. (2009) 6 SCC 99: (AIR 2009 SC 2649). It was held that the date of the opening of the succession was the relevant date and if succession opened prior to the amendment Act of 2005 the provisions of the amendment Act would have no application because rights under the succession would vest upon the successors from the date the succession opened. Paragraph 49 of the judgment in the case of G. Sekar v. Geetha & Ors. (2009) 6 SCC 99: (AIR 2009 SC 2649) extracts paragraph 21 of the judgment in the case of Sheela Devi (supra) and observes that the amendment Act had no application to the succession which opened

prior to the coming into force of the Act despite the word "negative" therein.

33. In the case of Champabai W/o. Darshrathsingh Pardeshi & Ors. v. Shamabai @ Shamkuwarbai Gajrajsingh Pardeshi & Anr. 2010 (3) ALL MR 262 this Court similarly considered the year when the succession opened and observed that the division of shares was made before when the amendment Act was not in force. In that case the shares devolved upon two sons by application of Section 6 r.w. Section 8 of the unamended HSA of 1956. Consequently, in the case of Miss. R. Kantha, d/o Doddarmaiah Reddy v. Union of India & Anr. AIR 2010 Karnataka 27 also that the provisions of the Act was held to be brought in force when the right of succession opened and not before. It was observed that the father of the petitioner in that case was alive and hence her right to succession as a coparcener had not opened. These are the judgments which must be accepted for the foundation they have laid.

34. We have been shown the judgment of the Division Bench of the Karnataka High Court in the case of Pushpalatha N.V. v. V. Padma AIR 2010 Karnataka 124 which has held that the section is retrospective and that all the daughters no matter when they were born and no matter when the

succession opened were entitled to equal share along with the sons of the coparcener. The Court considered the law before the amendment, the mischief and the difficulty that the law did not provide for and the remedy therefor. In paragraph 15 of the judgment, the Court held that the construction "which would suppress the mischief and advance the remedy" and "which would suppress subtle inventions and evasions for continuance of the mischief" were to be upheld so that they would "add force and life to cure the remedy, according to true intent of the makers of the Act".

35. In paragraph 44 of the judgment the Court considered the settled rules of interpretation of the Statutes embedded in various judgments of the Supreme Court thus:

(a) statutory provisions of substantive rights are ordinarily prospective.

(b) retrospective operation must be given only when it is made expressly or by necessary implication.

(d) if the legislation has two meanings, the meaning which preserves the benefits should be adopted.

(e) interpretation giving rise to absurdity or inconsistency should be discarded.

(See Mahadfolal Kanodia v. Administrator General of West Bengal AIR 1960 SC 936)

(a) It may be mentioned that Section 6 creates substantive rights in favour of a daughter as a coparcener; it would, therefore, be ordinarily prospective.

(b) there are no express words showing retrospective operation in the Statute and in fact the express words are "on and from" denoting prospectivity.

(c) the plain normal grammatical meaning of the words "shall become" and "shall be deemed" shows the future tense and the total absence of any past participle. The words must be given the grammatical meaning as per the grammatical tense.

(d) The section is incapable of two meanings; it cannot mention that all the daughters born before the amendment would be included and

that only daughters born after the amendment would be included.

Since two meanings are not contemplated, it would rule out interpretations which are required in legislations which are capable of two meanings.

(e) The absurdity of making all the daughters born before or after the commencement of the amendment Act included in the amendment Act would not only be directly against and diametrically different from the express provision of making the section applicable to daughters who shall be coparceners by birth only on and after the amendment, but would make the applicability of the Act so all-perversive that the entire populace who are Hindus and have any HUF property of the family would be encompassed setting at naught various transactions entered in to by coparcerners creating vested rights as in this case.

36. It may be mentioned that in the case of Sadashiv Sakharam Patil & Ors. v. Chandrakant Gopal Desale & Ors. in Appeal from Order No. 265 of 2011 and other related appeals the single Judge of this Court had to contend with a claim of the heirs of the deceased daughter who claimed to be a coparcener seeking to include even daughters who have been deceased prior to the amendment! Hence the interpretation of retrospectivity would

promote the mischief of dishonest litigations by claiming an interest in a coparcernery property hitherto never claimed, as in this case, rather than suppress the mischief of discrimination.

The observation in paragraph 52 of the judgment in the case of Pushpalatha (AIR 2010 Kar 124) (supra) relates to when the daughter would get the right under the amended Section 6 of the Act shows that it was by birth "leaving no scope for interpretation". The further observation in paragraph 53 of the judgment is that such a right is given to a daughter born after 1956.

If the Act was restrospective we do not see how daughters born only after 1956 would be entitled to claim interest in a coparcenery property and not daughters before 1956 also. As observed in that judgment when a provision is substituted for an earlier provision by an amendment of the Act it would apply from the date of the unamended Act. That would be from 1956. Hence, if from 1956 the daughter would get her interest by birth by the very retrospectivity bestowed upon the section it would apply equally to daughters born even prior to 1956. This analogy is, however, academic since the amending Statute is made to come into effect from a specified date i.e., 9 September 2005 and we are

fortified in our view by the proviso which seeks to expressly curtail the mischief envisaged.

37. We may mention that in the extensive reading of the judgment which exudes nobility, we are in agreement with each of the observations discussed therein, but for the retrospectivity in its interpretation in view of our interpretation of the Section as set out hereinabove.”

Coming back to the case on hand, as the Court below has proceeded to hold that the suit properties ought to be treated as the self acquired properties in the hands of

Hutchegowda and therefore, would have to be divided equally between the plaintiff and the defendants, has been found to be an incorrect presumption. However, in the course of the arguments before this court, as it was sought to be contended that in view of the amended Section 6 of the

1956 Act, that the female heirs would yet be entitled to claim as coparceners and that therefore, since the amendment has been held to be retrospective in its effect, they would still be entitled to share equally with the male members, the question, whether the plaintiff and defendant

no.3 could claim a share in the suit properties, as coparceners by birth, is framed.

As seen above, the Bombay High Court has expressed a view disagreeing with the view of the division bench of this court as to the retrospectivity of Section 6. But however, since this bench would be bound by the division bench judgment of this court, and even if the same is applied, as pointed out by the learned counsel Shri K.V.Narasimhan, even according to the division bench of this court in Pushpalatha

N.V., supra, the benefit of the Section would not be available to female heirs born before the 1956 Act came into force.

The question whether the plaintiff and defendant no.3 were born before 1956, was never in issue before the court below and even though there is no finding of fact in this regard, there is sufficient material available on record, as produced by the plaintiff and defendant no.3 themselves, that they were clearly born before 1956. Therefore, their share in the suit properties as coparceners by birth cannot be accepted.

Insofar as the question whether the third defendant could claim under a will said to have been executed by Hutchegowda bequeathing the suit properties in her favour, is concerned, as it is not in dispute that though the third defendant had set up a will in an earlier suit in O.S.No.44/1988 and the same having ended in a compromise, it is deemed that the third defendant had given up her claim under the will and the same could not be set up again in the present suit. Further, it is also held hereinabove that Hutchegowda did not have a right over all the suit properties and could not have disposed of the same by will. Therefore, the third defendant is not entitled to claim under the will said to have been executed by Hutchegowda.

Insofar as the alienations in favour of defendants 4 to 7 are concerned, the same cannot bind the plaintiff and defendants 1 and 2. The findings of the court below are to the effect that the sale deeds had been executed not by

Hutchegowda, but by defendant no.3, who did not have any right in her, during the life time of Hutchegowda, to alienate the properties and even if she was claiming under the will, the alleged bequest had not taken effect as Hutchegowda was

still alive, as found by the trial court, at the time of the transactions. However, the alienations insofar as the extent of share in the respective suit properties that would fall as a part of the share of defendant no.3 would alone be saved insofar as those purchasers are concerned. The extent and the identity of the same by metes and bounds would have to be worked out in due course.

Though the parties have referred to a large number of decisions, the same are not discussed at length, in order that this judgment is not burdened with discussion, which may not be relevant to decide the questions framed for consideration.

Therefore, the appeal in RFA 534/2003 is allowed. The appeals in RFA 394/2003 and RFA 669/2003 are dismissed.

Costs are made easy. The judgment of the court below stands modified to hold that on the birth of Chandregowda, he shared the suit properties equally with his father

Hutchegowda, by birth. On the death of Chandregowda, his half share devolved on defendants 1 and 2 by notional partition. And after the death of Hutchegowda, the half share

notionally held by him is divided equally between the plaintiff, defendants 1 and 2 together and defendant no.3.

The preliminary decree shall be drawn up accordingly.

Sd/- JUDGE nv*