B. Venkataswami, J.
1. This appeal is by the defendant in Case No. 235/1 of 1964 on the file of fee Court of the Munsiff at Gul-barga. It is directed against the Judgment and Decree made by the Additional Civil Judge, Gulbarga, in R. A. No. 337/1965. That was an appeal preferred by the plaintiff-respondent. By the said judgment and decree, the learned Civil Judge decreed the suit of the plaintiff for declaration of her title in respect of the suit property.
2. Few facts relevant for the disposal of this appeal which are not in dispute, are as follows: The plaintiff Guaramma was the daughter of one Revappa whose wife was one Siddawwa. She had two sisters by name Shivamma and Retnawwa, elder to her. Shivamma predeceased Revappa leaving behind her the present appellant Mahadevap-pa. The said Mahadevappa was brought up by Ratnawwa, one of the daughters of Revappa, who came into possession of the suit properties on the date of the death of her mother Siddawwa, about 17 years prior to the suit. Revappa had predeceased the said Siddawwa about 35 years ago prior 10 the suit, leaving behind him his widow and two daughters. Ratnawwa died in the month of August, 1963, that is subsequent to the coining into force of the Hindu Succession Act, 1956 (hereinafter referred to as the Act). It would appear that she also executed a will in respect of her interest in the property, in favour of the present appellant. Since the will has not been held to have been established her interest in the property had to devolve by succession in accordance with the Act. At one stage, the relationship of the appellant was also disputed and now it is no longer in dispute that he is the son of late Shivamma. The trial Court did not grant the decree holding that the appellant had an interest in the property and therefore the decree for declaration of the respondent's title and for possession could not be granted. Incidentally, the respondent was advised to file a suit for partition to carve out her share. It is against this decree, that the respondent appealed. The lower appellate Court set aside the judgment and decree of the trial Court and decreed the suit as prayed for. Hence, this appeal by the defendant in the suit.
3. On behalf of the appellant, Shri A. M. Farooq the learned counsel contended thus: That in the facts and circumstances of the case the appellant would be entitled to succeed to the estate of Ratnawwa as the heir of her father Revappa by virtue of the provisions of Section 15 and Rule (3) of Section 16 read with Section 9 of the Act. His contention is that in view of the fact that Ratnawwa had half share in the property as absolute owner thereof, that estate should devolve on the heirs of her father by virtue of Rule (3) of Section 16. According to him, the said heirs, in the circumstances, are only himself and Gauramma, the present plaintiff. In the view of the fact that Section 9 of that Act provides for simultaneous succession of the heirs mentioned in Clause (1) of Schedule 1 to that Act, he would be entitled to succeed to the estate of Ratnawwa along with the present respondent. He, however, computes the snare as having fallen to his share as 1/4th of the estate jointly held by Ratnawwa and Gauramma.
4. On behalf of the respondent, Shri Murlidhar Rao submits that the propositioncanvassed by Shri Farooq's would not be tenable having regard to the true scope and effect of the provisions relied on by him. In this connection, he invites my attention to a decision in Renuka Bala v. Aswini Kumar, : AIR1961Pat498 and contended that the fiction indicated in Rule (3) of Section 16 would not, however, mean that the heirs of the father as on the date of the death of Ratnawwa were alone entitled to succeed. In other words, his submission is that the heirs of the father, that is, those in existence on the date of the death of the father, would not become the heirs of Ratnawwa. That being the position, the present appellant, who was not the heir on the date of the death of Ratnawwa therefore cannot lay claim to the estate of Ratnawwa. Alternatively, he argued that in the event of the contention of the appellant being upheld, a preliminary decree for partition and separate possession of 3/4th share of the estate in the suit schedule property, should be made in substitution of the decree granted.
5. On a careful consideration of the matter, I am clearly of opinion, that the contention of Shri Farooq, should succeed. I am further of the opinion, that the plaintiff's suit should be decreed at least as regards the partition and possession of 3/4th share in the suit schedule property by way of preliminary decree. It is seen from Section 15 of the Act that the property of a female Hindu who died intestate subsequent to the enactment of of the Act, shall devolve as per the rules made hi Section 16 thereof. It is further clear that among the several categories of heirs to such an estate enumerated in Sub-section (1) thereof, the heirs of the father would also be the heirs to such a Hindu female. But, Sub-section (2) thereof engrafts an exception to this effect:
'15 (2) Notwithstanding anything contained in Sub-section (1), any properly inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon the other heirs referred to in Sub-section (1) in the order specified therein, but upon the heirs of the father.'
6. It is clear from the above provisions that in the absence of children of a Hindu female or the children of any predeceased son or daughter the estate of the deceased should be in the hands of the heirs of the father. It is also further provided that such succession shall be regulated by the rules enacted in Section 16.
7. I now turn to Section 16 of the Act. It is necessary to set out the relevant rule on which reliance was placed on behalf of the appellant. The relevant portion of that section reads;
'16. The order of succession among the heirs referred to in Section 15 shall be, and the distribution of the intestate's propertyamong those heirs shall lake place according the following rules, namely:--
Rule 3. -- The devolution of the property of the intestate on the heirs referredto in clauses (b), (d) and (e) of Sub-section (1)and in tub-section (2) of Section 15 shall bein the game order and according to the samerules as would have applied if the propertyhad been the father's or the mother's or thehusband's as the case may be, and such person had died intestate in respect thereof immediately after the intestate's death.'(Rules 1 & 2 are not set out as unnecessary.)
8. It is clear from the above rule that a fiction has been indicated to the effect that the heirs of the father are to be those who would have been the heirs, if such father had died immediately after the death of the last female Hindu. This, in other words, means the heirs of the father as are recognised in the present Act.
9. It is necessary to refer to one more provision on which reliance was pine-ed on behalf of the appellant. Section 9 of the Act reads thus:
'9. Among the heirs specified in the Schedule, those in class 1 shall take simultaneously and to the exclusion of all other heirs; those in the first entry in class II shall be preferred to those in the second entry; those in the second entry shall be preferred to those in the third entry; and so on in succession.'
10. The schedule referred to thereinspecifies two classes of heirs. We are only concerned with class of heirs mentioned in Class I. This Section indicates that those persons who have been mentioned in Class I of the Schedule are to take the properties simultaneously in accordance with the provisions entitling them as such heirs of the father of the deceased Hindu female.
11. As earlier observed, Ratnawwa was the last female Hindu of the joint family who had inherited the family property of the estate of Revappa and her mother Siddawwa along with the present respondent. It is relevant to note that she has not left behind her any issue. It is, therefore, clear that the estate shall devolve, on the basis of Rule 3 of Section 16, on the heirs of her father, on the assumption that the father died soon after Ratnawwa. In other words, the fiction assumes that the death of her father took place immediately after the death of Ratnawwa. It is also not in dispute that the present appellant and Gauramma were the only heirs of the father who were alive on the date of death of Ratnawwa. Such being the position, they are clearly entitled to succeed to the estate of Ralnawwa. It is also relevant to mention that the share of Ratnawwa in the suit property, as on the date of her death, was only a half share. It is this half share that has to be shared equally by the parties in this appeal. It would, therefore, follow that the appellant would be entitledto 1/4th share in the suit schedule property. I hold accordingly.
12. But Shri Murlidhar Rao placed reliance on a passage occurring in paragraph 14 of the above mentioned report in Renuka Bala's case, : AIR1961Pat498 . The paragraph reads thus:
'The argument of learned counsel is that on the death of Urmila (defendant No. 2) the succession will open and Manorama and Amala would be deemed to have died then, in which case their heirs will have to be found out to take the succession recording to the law then prevailing. Both those ladies, Manorama and Amala, would be taken to have died intestate at that point of time, and, as such. Section 15 of the Act will come into play. In other words, a fictional death will be supposed to attract the new rule of succession. This contention is not at all warranted by the language of the section. Wherever a legal fiction was sought to be introduced to work out the succession the Legislature provided for that in clear terms in this Act. Rule 3 under Section 16 is an instance of that. There is no justification to import such a deeming clause to Section 15 in absence of any provision for the same.'
13. It is plain from this decision that the learned Judges of the Patna High Court were not interpreting Rule (3) of Section 16 of the Act at all. In fact, the argument advanced before that Court was that such fiction would be imported into Section 15 also. If such a fiction is imported, then the heirs of Manorama and Amala would be entitled to succeed in accordance with the provisions of the present Act. In disposing of this contention, the Court has observed that if the Legislature intended that such a fiction should be imported into Section 15 it would have expressly said so in regard to Rule 3 of Section 16 of the Act. This is not the same thing as saying that Section 16 has been interpreted to mean that the heirs of the father as on the date of his death would become the heirs of the Hindu female, who died intestate and in regard to succession to whose property the present Act has to be followed. I am not therefore in agreement with the contention of Shri Murlidhara Rao.
14. Then what remains for consideration is whether the plaintiff would be entitled to a preliminary decree for partition and separate possession of her 3/4th share in the suit property which she had not prayed for expressly. On this question Shri Farooq has no serious opposition to offer. I am also of the opinion that on the facts of the case, such a decree opinion that to be granted in order to avoid multiplicity of litigation and harassment to the plaintiff. It is clear from the case that what the respondent has sued for is for a declaration and possession of the suit property and she has paid court fee on the relief of possession. It cannot also be gainsaid that the possession of the entire property is the higher relief. What ShriMurlidhara Rao is asking for is 3/4th share of the same which clearly is a lesser relief. In this view of the matter, I am persuaded to accept the submission made on behalf of the respondent.
15. In the light of the above discussion, the appeal of the appellant is partly allowed and the plaintiff's right to 3/4th share of the suit property has to be accepted. But, the decree for declaration and possession granted by the lower appellate court requires to be modified into one of preliminary decree for partition and separate possession of 3/4th share of the plaintiff in the suit schedule property. In modification of the decree under appeal, I make an order in the above terms. In circumstances of the case, the parties will bear their own costs.
16. The cross objections of the respondent are also dismissed, but without costs.