1. The Appellants, as unmarried daughters, sued their fathers, alienees from their lathers and their brothers for shares in the properties described in plaint schedule alleging that these belonged to a joint family of which they are members, that the alienations of the same effected by the father of plaintiffs 1 and 2 and father of plaintiffs 3 and 4 were not valid as has been held in a suit instituted by the plaintiffs' brothers and do not affect the plaintiffs' shares. According to the ultimate decision in that suit, the alienees are entitle only to the shares of the father of plaintiffs 1 and 2 and father of plaintiffs 3 and 4 and these shares are to be separated from the shares of plaintiffs' brothers after a division of the properties. The present suit is said to have become necessary as plaintiffs were not parties to the suit in which partition is ordered and as such could not secure their shares in the properties. Of the defendants, the fathers and brothers remained ex parte but the alienees contested the claim. The trial Court dismissed the suit and the dismissal is confirmed in appeal.
2. Sri Krishnamurthy contended on behalf of the plaintiffs-appellants that the view of the two courts as regards the law applicable to the case and the effect of the previous litigation is erroneous. He argued that in any event, there is no justification for a total dismissal of the suit. No decision about the right of an unmarried daughter to a share in circumstances similar to those in this was cited by learned counsel. The claim to a share with respect to alienated properties has to be determined on the interpretation of the provisions of Hindu Women's Rights Act and the principles of Hindu law governing alienations. The right of unmarried daughters and other female members of a joint Hindu family to shares in family properties, the quantum thereof and the conditions necessary for the accrual of such rights are provided for in Section 8 of the Hindu Women's Rights Act, The section so far as is material to the case is as follows :
8(1) (a) 'At a partition of joint family property between a person and his son or sons, his mother, his unmarried daughters and the widows and unmarried daughters of his predeceased undivided sons and brothers who have left no male issue shall be entitled 1o share with them. 2. Such share shall be fixed as follows :
(c) in the case of every unmarried daughter or sister, one-fourth of the share of a brother if she has a brother alive, and, in any other case .....
5. Each of the female relatives referred to in Sub-section (1) shall be entitled to have her share separated off and placed in her possession.
Provided always as follows :
(ii) No female whose husband or father is alive shall be entitled to demand a partition as against such husband or father, as the case may be.
The words 'At a partition' in Sub-section 1 denote that it is only when there is a partition that the unmarried daughters get a right to claim shares and not otherwise. They cannot themselves enforce a partition to obtain the shares. They can do so if there is a severance of status without necessarily actual division of the properties among the male members. The fact that partition in this case is brought about not voluntarily by act of parties but by a decree of the Court is not material for the purpose of the section as all that it required is that there should be a partition to entitle the unmarried daughters to a share. Since there is a decree for partition, the plaintiffs' claim to shares in the properties cannot be questioned. This is not disputed but the controversy is about the properties in which they can have the shares. If the partition under the decree was effected between male members of the family without providing shares in the family properties to plaintiffs, the partition was liable to be revised at the plaintiffs' instance for readjustment of shares and fresh allotment of properties and the male members could not have objected to it. The difficulty in the way of plaintiffs for the same being done in this case lies in the fact that partition is brought about after alienation of family properties by some of the male members and the rights of alienees are involved for consideration.
3. The partition at which, according to the words in the section, the right to a share arises is a partition between father and sons, that is, members of the family and not between alienees and members. The daughters though members of a joint Hindu family are not coparceners and do not get interest in the family properties by birth. Their right to a share is contingent upon the state of jointness being broken up between the male members and the right does not accrue in the absence of a division which does not depend on their volition but which, if at all, is brought about by others.
The coparcener on the other hand acquires an interest in the properties when he is born and the existence of the right does not depend upon the happening of any event, though the quantum of such right may fluctuate by the increase or decrease of persons entitled to shares in the properties from time to time. A coparcener is also entitled to alienate his undivided interest in the family properties and when he does so, the rights of the alienee are fixed by the share which the alienor was entitled to at the time of alienation. These are not affected by any subsequent change in the number of persons entitled to shares at a later partition.
Since such is the well settled rule in the case of coparceners it would be strange unless the section expressly provides for it, that the alienee's rights should be impaired by reason of persons who have no right in the properties at the time of alienation becoming entitled to a share on account of subsequent partition. It is possible that when the alienation takes place, the alienor has no daughters and they are born some years later when the partition is made. To allow daughters to impeach alienations in such circumstances is tantamount to conceding larger rights to them than to the sons and leads to the anomaly of placing unmarried daughters at the time of partition in a better position than daughters at the time of alienation. The section cannot be interpreted as giving the daughters rights possessed by sons or other coparceners and does not enable them to seek a share in properties which have ceased to belong to the family at the time of partition.
A question may arise whether unmarried daughters would not be deprived of the benefit of the section if instead of a partition the male members choose to alienate their shares to strangers. Such a contingency is unlikely to occur and consideration of this factor cannot be a ground to put the alienee in a worse position in relation to daughters than with reference to male members. 49 Mys. H.C.R. 456, cited for the appellants does not help them. It was held in that case that when the property passes to a sole surviving coparcener, the female members specified in Clause (d) of Section 8 of the Act makes them co-sharers along with him and they will have a vested right. That is because of the express terms of the section which states that the properties devolve on a single or sole coparcener subject to such rights. The present case is not of that kind. -- 'Subbiah v. Subbarayappa', 52 Mys. H.C.R. 7, is also distinguishable as it was a case in which the partition was entered into by members of the family and not a case in which rights of alienees were involved. The suit so far as the alienees-defendants are concerned & with respect to the interests vested in them in the suit properties on the dates of alienations is dismissed. There will be a decree in plaintiffs' favour as prayed for with respect to properties available for division between the male members on the date of suit, excluding what was previously alienated by any of them.
4. Parties will bear their own costs in this Court.
5. Decree accordingly.