1. This appeal is by defendant 6 which arises out of a suit brought by two plaintiffs for a partition of the property which belonged to a Hindu joint family which was composed of defendant 1 and defendants 3 to 6. Defendant 1 is the father and defendants 3 to 6 are his sons. The two plaintiffs and defendant 2 are his daughters. There was a partition on April 19, 1960 between the members of the family in which defendant 6 took his fifth share and the other members of the family remained joint. It is because of that partition that the two plaintiffs claimed that they were also entitled to demand a partition in the family properties under Section 8 of the Hindu Law Women's Rights Act (Mysore Act 10 of 1933) which will be referred to as the Act.
2. The Munsiff dismissed the suit on the ground that the plaintiffs could not demand a partition because their father was alive. But the Civil Judge allowed the appeal and gave the plaintiffs the decree which they wanted for partition and delivery of possession of their 2/23rd share in the family properties including the property which had fallen to the share of defendant 6. So defendant 6 appeals.
3. Mr. Ramchandra appearing for defendant 6 contends that the decree for partition offends against proviso (ii) to Section 8 of the Act. He is right In making that submission.
4. Although under Section 8 (1) (a) the unmarried daughters in a Hindu Joint family have the right to demand a share in the family properties when a partition of joint family property is made between a person and his son or sons, that right is clearly controlled by the proviso to that section, Clause (ii) of which reads:
'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;'
Defendant 1 who is the father of the plaintiffs was alive when the suit was brought and continues to be alive. So the Civil Judge was not right in taking the view that the demand for the partition by the plaintiffs could be sustained.
5. So I allow this appeal. But since defendant 6 is the only person who appealed from the decree made by the Civil Judge, the decree that I make is that there should be a partition and delivery of possession to the plaintiffs of 8/115 sharewhich is the share to which they are entitled after eliminating from the joint family property the share of defendant 6 who alone has appealed from the decree of the Civil Judge. So for the 2/23 share as directed by the Civil Judge, I substitute a 8/115 share. I also make an elucidation that the partition made on April 19, 1960 In Exhibit D-5 between defendant 6 and other members of the family remains unaffected bv this decree and that defendant 6 shall continue to be the absolute owner of the share allotted to him at that partition.
6. Each party will bear his or her own.
7. Appeal allowed.