G.K. Govinda Bhat, C.J.
1. This appeal by the plaintiff, arises out of her suit for partition and separate possession of a one half share in the Plaint schedule Properties and future mesne Profits which has been dismissed by the Court below on the around that Section 8 of the Mysore Hindu Law Women's Rights Act. 1933 (Mysore Act X of 1933) is a bar to the plaintiff enforcing her right by way of a suit for partition.
2. The material facts. so far as they are relevant for the purose of this appeal. lie in a very narrow compass. The genealogy of the family of the Plaintiff and defendants 1 to 9 is given in the Plaint. Dasegowda is the common ancestor. He had two sons by name Narase Gowda and ThimmeGowda. Plaintiff Hanumakka is the widow of the said Thimmegowda Gowda. who died in the year 1962. long after the Hindu Succession Act 1956 (which will hereinafter be referred to as the 'Act'), came into force. Narase Gowda had three sons by name Mudligirigowda. Dasegowda and Lakshminarasegowda. Mudligirigowda died in 1969 leaving his wife the 6th defendant and children defendants 5. 7. 8 and 9. Dasegowda. younger brother of Mudligirigowda. is the first defendant and his sons are defendants 2 and 3. The fourth defendant is the youngest son of Narase, gowda.
3. Plaintiff. alleging that on the death of her husband Thimmegowda in the year 1962. the one half share to which Thimmegowda Gowda would have been entitled to at a Partition if the same had taken Place immediately before his death, brought the suit for Partition claiming a one half share in the plaint schedule properties. The plaint A schedule consists of immovable Properties, and the Plaint schedule is a list of movables, belonging to the family.
4. Defendants, 10 and 11 are alienees of Items 37 and 38 of the Plaint A schedule, Defendant 12 is a lessee of Item No. 36 of the plaint A schedule.
5. The trial Court. on the pleadings, of the parties, settled as many as fifteen issues.
6. The alienees, i.e.. defendants 10 and 11. contended that in any event the properties sold, to them should be deemed to have been allotted to the share of their alienor Mudligirigowda in equity.
7. Defendants 5 to 9 are the contesting defendants. They contended, inter alias, that Items 36 to 39 of the Plaint A schedule are the self required properties of Mudligirigowda and the Plaintiff. in any event. has no right to claim a share in the said properties.
8. It was not disputed before the Court below that if a partition had taken place immediate1y before the death of Thimmegowda Gowda in the year 1962. he would have been entitled to a one half share in the properties belonging to the joint family. Plaintiff claims a one half share in the properties by virtue of Section 6 of the Act. The learned Civil Judge upheld the contention of the contesting defendants that Section 8 of the Mysore Act X of 1933 is a bar to the plaintiff suing for Partition. The only point that arises for determination in this appeal is whether Section 8 of Mysore Act X of 1933 is a bar to the plaintiff endocrine her right to claim the share to which her husband would have been entitled if a Partition had taken Place immediately before his death.
9. The Act. in its preamble. States as follows:
'An Act to amend and codify the law relating to intestate succession among Hindus.'
It is applicable to all Hindus in the whole of India except the State of Jammu and Kashmir. Section 6 of the Act states as follows: -
'When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property. his interest in the property shall devolve by survivor upon the surviving members of the coparcenary and not in accordance with this Act:
Provided that. if the deceased had left him surviving a female relative specified in class 1 of the Schedule or a male relative, specified in that class who claims through such family relative. the interest of the deceased in the Mitakshara, coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by. Sorvivorship'
(Explain tiff who is the 1 and 2 omitted as unnecessary),
Plaintiff who is the widow of Thimmegowda is a Class 1 heir and therefore her ease falls within the scope of the Proviso to Section. 6 of the Act
10. Section 4 of the Act overrides all laws in force in the territory of India immediately before the commencement of the Act in so far as such law is repugnant to any of the Provisions of the Act. In Mysore Act X of 1933. a Widow Of a deceased coparcener is not entitled to. enforce her right to a share by instituting a suit for Partition. Section 8 of Mysore Act X of 1933 provides that where partition takes Place out of court or through Court between. coparceners specified female heirs are entitled to be allotted a share. Section 8 Provides for a contingency where the partition, in a joint family takes Place and there are widows and other female heirs in the family who are entitled to a share at such Partition. This is not a case which falls under Section 8 of Mysore Act X of 1933. If the Plaintiff's husband had died before the Act came into force, then, her right was only to claim a share at a partition of the joint family properties but she could not have enforced her right by bringing a suit for Partition. Ass already stated, the Plaintiff is a Class I heir. Her husband Thimmegowda would have been entitled to a one half share in the joint family properties if a partition had taken Place immediately before his death. The Plaintiff. therefore. succeeded to the one half share of Thimmegowda Gowda under See. 6 of the Act By virtue of Section 14 of the Act. she becomes the absolute owner of the share of Thimmegowda Gowda.
11. The Court below is clearly in error in holding that Section 8 of Mysore Act X of 1933 is, a bar to the plaintiff instituting a suit for partition. Therefore we reverse the finding of the Court below on issue No. 15 and declare that the plaintiff is entitled to a one half share in the Plaint A and B schedule properties.
12. Defendants 10 and 11 who are alienees of Items 37 and 38 of the plaint A schedule, are in equity entitled to have the properties alienated to them nominally allotted to the share of the alien or as far as possible.
13. All other material issues have been found in favour of the Plaintiff.
14. For the reasons stated above, we reverse the decree of the Court below and, decree the plaintiff's suit for Partition. declaring that the Plaintiff is entitled to a one half share in the plaint A and B schedule properties and that the alienees are entitled to have the equities adjusted in the final decree Proceedings. Partition of the agricultural lands has to be effected by the Revenue authorities under Section 54 of the Code of Civil Procedure. Non-agricultural properties have to be Partitioned in the final decree proceedings before the Court below.
15. The counsel for the contesting defendants-respondents. were not present when this appeal was heard. The Plaintiff who is the appellant is entitled to her costs of this appeal from defendants 5 to 9 who are respondents 5 to 9. Ordered accordingly.
16. Appeal allowed.