1. This appeal by the defendants in O. S. No. 18 of 1977 is directed against the judgment and decree dated 8-3-1982 passed by the District Judge, Chitradurga in R. A. No. 23 of 1981, on his file, allowing the appeal in part and giving a decree in favour of the plaintiff for partition and separate possession of 1/15th share in B Schedule properties with costs of the lower court and directing enquiry for the purpose of mesne profits as provided under O. 20, R. 12, C. P. C. and further directing that a preliminary decree be drawn accordingly. The judgment and decree dated 21-2-1980 passed in O. S. No. 18 of 1977 were accordingly modified.
2. The, plaintiff is the widowed daughter-in-law of Siddappa. Siddappa had two sons, namely, Rajappa and Nagaraja and two daughters namely, Sharanamma, and Saraswathamma. The plaintiff is the widow of Rajappa who died after 1956. The plaintiff instituted a suit earlier at O S. No. 37 of 1963 for separate possession of her 1/3rd share which devolved on her on the death of her husband, against Siddappa and his other son. She got a decree in her favour on 23-3-1967. Aggrieved by the sold judgment and decree, the defendants went up in appeal before the learned District Judge, Chitradurga in R. A. No. 4 of 1 1967 and the earned District Judge who heard the appeal modified the decree by awarding 1/6th share instead of 1/3rd share to-the plaintiff. The Judgment on 19-12-19. After the decree was passed, the plaintiff moved for amendment of the decree before the trial court by filing 1. A, 14 wherein she contended that her share was enhanced as her father-in-law died during the pendency of the proceeding. The trial court rejected her application holding that it she in herited a share on the death of her father-in-law, she was at liberty to institute a fresh suit for getting her share determined and partitioned. The matter was brought up in revision at C. R. P, Nos. 1464, 1604 and 1605 of 1075 before this court and this Court on hearing ordered that 1. A, 14 and 32 in O. S. we. 37 of 1963 were rightly dismissed. This Court, however, made it clear that the dismissal of the petitioner is application for variation of her share, did not bar her from Instituting a separate suit for her share in the estate of deceased first defendant, The order was delivered on 14-12-1976. Thereafter, the plaintiff instituted O. S, No. 18 of 1977 before, the Munsiff, Chitraurga, claiming 1/8th share in B Schedule properties after the death of her father-in-law Siddappa. In the meanwhile, she was awarded actual possession of 1/6th share in the earlier suit 0. S. No. 37 of 1963 during 1968 which she has shown in plaint A Schedule.
3. Her suit was resisted by the defendants in the suit. The defendants are Basavalingamma the widow of Siddappa, Nagaraja the second son of Siddappa and the two daughters, namely, Sharanamma and Saraswathamma, of Siddappa. The defendants resisted the suit by filing their written statements. They contended that since the present plaintiff instituted a suit at 0. S. No. 37 of 1963 for partition of her share and got her share separated even during the lifetime of her father-in-law, Siddappa, she was not entitled to claim any share in the estate of her father-in-law after his death. According to them the house was improved by spending more than Rs. 30,000/- and if at all she were to be awarded any share in house, she would be required to deposit her share of expenses for -improvement. They also contended on the aspect of the court-fee.
4. The trial court rais4d the following issues as arising from the pleadings.
(1) Does the plaintiff prove that she is entitled to claim a share in the property of Siddappa. in spite of her division from the family by virtue of the decree passed in 0. S. 37/63 on the file of the Civil Judge's Court Chitradurga?
(2) If so. What 1 is her share?
(3) Does s e prove that she has been 'in joint possession of the property in question and that the court-fee paid. Is sufficient?
(4) What is the extent of improvements effected by the defendants to their share of properties and is not the plaintiff liable to pay the cost of improvements?
(5) To what reliefs are the parties entitled?
5. The trial court, appreciating the evidence on record, held that the plaintiff was entitled to 1/12th share and the trial court further held that the defendants failed to prove that they spent for improvement of the building in question and in that view the trial court gave a decree in favour of the plaintiff for 1/12th share In 'B' schedule properties and directed an enquiry for mesne profits. It passed a preliminary decree accordingly, Aggrieved by the said judgment and decree as stated above, the defendants went up in appeal before the learned District Judge, Chitradurga in R. A, No, 23 of 1981 on his file.
6. The learned District Judge raised the following points as arising for his consideration in the appeal as arising from the arguments addressed before him.
(1) Whether the plaintiff-respondent proves that she is entitled to claim a share in the properties of the deceased Siddappa viz. the father-in-law of the plaintiff as prayed?
(2) If so, what is her share?
(3) Whether the defendants-appellant prove the improvement as contended and it so what is the extent of share to be borne out by the plaintiff-respondent?
(4) Whether the Court-fee paid is proper and sufficient?
(5) Whether the lower court's judgment and decree are justifiably to be interfered with, as challenged?
(6) What order and decree?
The learned Civil Judge reassessing the evidence on record, answered point No. I in the affirmative. Under point No. 2 the plaintiff is found entitled, to 1/5th share. He held that point No. 3 did not arise for consideration. Under Point No. 4 he held that the court-fee paid was sufficient and under Point No. 5, be held that the decree of, the trial court had to be modified and in that view, the learned District Judge partly allowed the appeal and modified the decree of the trial court by declaring he share of the plaintiff at 1/5th instead of 1/12th share awarded by the trial court. Aggrieved by the said judgment and decree, the defendants have come up with the above second appeal before this court.
7. The learned Advocate appearing for the appellants strenuously urged before me that the courts below were not justified in interpreting explanation-2 to the proviso of S. 6 of the Hindu Succession Act in the way they have done. He submitted that since the plaintiff. separated herself from the joint family by filing 0. S. No. 37 of 1963 in the year 1963 itself, even when her father-in-law was alive, she had no right to claim any share in the properties left behind by her father-in-law who died in about, the year 1967. Alternatively, he submitted that even if the plaintiff was entitled to any share in the suit schedule B properties, she was required to pay her share of the expenses incurred for the improvement of the suit house. Regarding mesne profits he submitted that since Rs. 50/- p. m. were paid to the plaintiff during the pendency of the proceeding before the trial court and the first appellate court, the same should be adjusted towards mesne profits, if at all liable to be paid to the plaintiff.
8. As against that, the learned Advocate appearing for the plaintiff respondent argued supporting the judgment and decree of the first appellate court.
8A. The points, therefore, that &rise; for my consideration in this appeal are:-
(1) Whether the courts below were justified in holding that the plaintiff is competent to institute the suit claiming share in the estate of her father-in-law who died in the year 1967, on the facts and circumstances of the present case?
(2) Whether the plaintiff is r6quired to pay her share of the expenses incurred for the improvement of the building, if she is entitled to a share?
(3) Whether the amount paid towat4o maintenance at Rs. 50/- per month during the pendency of the proceeding before the trial court and the first appellant court should he adjusted while calculating the mesne profits, if any, in favour it the plaintiff?
9. The undisputed facts are that Siddappa had two sons and two daughters. The sons are Rajappa and Nagaraja and the daughters are Sharanamma and Saraswathamma. Rajappa was married to the present plaintiff and Rajappa died after the Hindu Succession Act, 1956, came into force. Accordingly, the present plaintiff instituted a suit at O. S. No. 37 of 1963 claiming her share in the family properties on the death of her husband and as stated above her suit was defect fat 1/3rd share the family properties by the trial court and in appeal her share was modified at 1/6th vide R., A. No. 4 of 1967 on the file of the District Judge, Chitradurga. Thus the learned Counsel for the appellant strenuously urged before me that the present plaintiff became separated from her father-in-law even as early as in the year 1963. Therefore, he submitted that reading explanation 2 to the proviso to S. 6 of the Hindu Succession Act it would be clear that she could not claim any share after the death of her father-in-law in the year 1967.
10. He submitted before me that the term 'Partition' has two connotations, namely, severance of status of the coparcenary and partition of properties by metes and bounds relying on a decision of the Supreme Court in the case Minor P Rajendran v. State of Madras : 2SCR786 . He also submitted that there can be severance of the coparcenary even if one of the coparceners unequivocally makes his intention clear to separate from coparcenary. The proposition of law so advanced admits of no doubt. There can be severance in status of coparcenary even if one of the coparceners makes his intention clear to separate and in that sense also there is person in the-family is that way according to him, that the present plaintiff separated herself from the family as early as in the year 1963 itself.
11. At this juncture, it is necessary to read S. 6 with the proviso and explanation 2 to properly appreciate the c6ntention raised before me by the learned Counsel for the appellants.
12. Section 6 reads: -
'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 this the property shall devolve by survive upon the surviving members of the coparcenaries and not in accordance with this Act.
Provided that, if the deceased had left him surviving a female relative specified In class I of the Schedule or a male relative, specified in that class who claims, through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary of intestate succession, as the case may be, under this Act and not by survivorship.
Explation-2: Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein.'
By reading Section, proviso and explanation, it becomes clear that so far as the main Section is concerned, it does not bring about any change in the Hindu Law as it existed I prior' to the Hindu Succession Act. It is A well established principle that in a Mitakshara coparcenary it is not possible to predicate t he share of any individual coparcener as it is ambulatory and fluctuating. It enlarges on the death of a coparcener and diminishes on the birth of a coparcener. For if a coparcener dies the rest of the coparcenary takes his interest by survivorship. An exception if is brought about, however, by the proviso to the Shastric law by enabling the female heirs mentioned therein to succeed to the estate of the deceased coparcener. It states that if the deceased leaves behind him surviving- a female relative specified in class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshera coparcenary property shall devolve by testamentary or intestate succession as the case may be, tinder the Act. and not by survivorship. That is the contribution made by the Act, in its effort to reform the Hindu Law and improve the status of women by providing shares to the female relative also as contemplated in the proviso to the Section.
13. It is an equally well established principle of Shastric law that if a coparcener separates from the coparcenary voluntarily, he would not then be entitled to claim any right by survivorship on the death of any of the remaining coparceners living in undivided status. It, is that principle which is in my considered view, embodied in explanation-2, stating that any female heir claiming through a separated deceased coparcener would not be entitled to claim any share on the death of one of the remaining coparceners.
14. The learned Counsel for the appellants, however, presented a different gloss to the explanation to the proviso: He invited my attention to the peculiar wordings of the explanation. He submitted that the legislature in its wisdom has used the words 'a person- in the context 'Nothing contained in the proviso to this section shall be construed as enabling a person who has separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein.' He submitted before me that if it were the intention of the legislature that 'a person' referred to therein should for to a coparcener, the legislature would have used! the word 'a coparcener' instead of using the word 'a person'. There is no doubt' some semblance of force in the submission so made. The clause further qualifies the person. It states: 'a person who separated himself from the coparcenary'. Having regard to the structure of the clause and its grammatical syntex, it was not necessary for the legislature to use the term a coparcener instead of a person'. The reason is not far to seek. A female heir would have no occasion to separate herself from the coparcenary because even under the amended law a female is never given a status of a coparcener. The definition of coparcenary is left unchanged. The same concept is retained in the amended Hindu Law as in the Shastric Law. The question of separating from the coparcenary arises only when a person is a member of the ' coparcenary. A person who is never given status as a coparcener has no occassion to separate himself or herself from' the coparcenary. The sentence has to be read as a whole and reading the sentence: as a whole and in -its proper grammatically setting, I am satisfied that the explanation speaks of 'a coparcener' who he, separated himself from the coparcenary before the death of the deceased or any of his heirs' and it does not refer a female heir who has separated from the coparcenary. The view that I am taking finds full support in an earlier Division Bench decision of this Court in the case M. V. Shivaji Rao Kore v. Rukminiyamma (AIR 1973 Mys. 113), His Lordship E. S. Venkataramiah J.. as he then was, of this Court, who spoke for the Bench, discussing the scheme of Section 6 has observed thus (at pp. 11617):
'Explanation 2 only reproduces the law which was already in force before the Act came into force as understood by some High Courts in India. A son who is divided from a family was not entitled to claim a share in the property of the father on his death if there were undivided son or sons living with him at the time of his death. Explanation 2 does no more than incorporating the same principle of law in the Act. It states that the proviso to Section 6 would not enable a person who has separated himself from the coparcenary, before the death of the deceased or any of, his heirs to claim on intestacy a share in the estate of the deceased. It declares that the disability which a divided member was suffering from continues to be operative even after the Act comes into force. The principle underlying the, said view of law is that persons who continue to remain joint with other members of the family should be preferred in the matter of intestate succession to a person who has gone out of the family by taking away his share, Probably that was considered to be in consonance with the notions of the joint family system prevailing in India. The said disability was a consequence of a voluntary act on the part of the separated member. 'Elaborating the, point, further, His lordship at the end of the next para has observed thus: 'Explanation 2 should be confined only to those cases where a coparcener It-as gone out of the family on account, of his voluntary act and should not be extended to cases where by operation of law certain persons become entitled to a share of the joint family property of a deceased coparcener..'
Thus, his Lordship specifically draws a distinction between female heirs getting share by operation of law and a coparcener who has voluntarily separated from the coparcenary. His Lordship has very clearly laid down that Explanation-2 to Section 6 would not apply to the case of a female heir who by operation of law gets a share in the estate of the deceased coparcener. It is no doubt true that this Court in the case Neelawwa v. Basappa : AIR1982Kant126 has ruled that with regard to the calculation of the quantum of share of the female heirs, M. V. Shivaji Rao's case does not hold the field as it is not in consonance with the decision of the Supreme Court in the case Gurupad Khandappa Magdum v. Firabai Khandappa Magdum. : 129ITR440(SC) . BLI' so far as the explanation offered and ,The light shed on the interpretation of Section 6 and proviso read with explanation 2 is concerned the ruling stands and I am bound by it,
14A. In this context it is necessary to recall the guideline given by the Supreme Court, in interpreting a beneficial Legislation like the one on hand. Speaking on the aspect in para 14 of the judgment, the Supreme Court in the aforesaid case (AIR 1978 SC 123.19) has observed thus:
'the interpretation which we are placing upon the provisions of Section 6, its proviso and explanation I thereto will further the legislative intent in regard to the enlargement of the share of female heirs, qualitatively and quantitatively. The Hindu Law of Inheritance (Amendment Act , 1929, conferred heirship rights on the son's daughter, daughter's daughter and sister in all areas where the Mithakshara law prevailed. S. 3 of the Hindu Women's Right to. Property Act, 1937, speaking, broadly, conferred upon the Hindu widow the right to a share in the joint family property as also a right to demand partition like any male member of the family. The Hindu Succession Act, 1956 provides by Section 14(1) that any property possessed by a female Hindu, whether acquired before or after the commencement of the Act, shall be held by her as 'a full owner thereof and not, as a limited owner. By restricting the operation of the fiction created by explanation I in the manner suggested by the appellant, we shall be taking a retro grade step, putting back As it were the clock of social reform which has enabled the Hindu woman to acquire an equal status with males in matters of property. Ever, assuming that two interpretations of explanation I are reasonably possible, we must prefer that interpretation which will further the intention of the legislature and remedy the injustice from which the Hindu women have suffered over the years'.
Thus, even it two interpretations of explanation were reasonably possible we must prefer that interpretation which will further the intention of the legislature and if I accepted the interpretation put, to the explanation by the learned Counsel for the appellants, the very purpose of the legislature in conferring a share statutorily on the female heir on the death of a coparcener, would be rendered otiose. Because,. It is the statute that confers right on her on the death of, a deceased Coparcener as in the present case, and if that were to be interpreted as bringing about separation voluntarily from the coparcenaries as contemplated in Explanation-2 and deprive the female heir of any further share though she would be otherwise entitled as contemplated in the proviso, it 'would go to defeat the very purpose and intention of the legislature. Hence, respectfully agreeing with the view expressed by the Division Bench of this Court, as narrated above, I hold that Explanation 2 refers to a divided coparcener and the male or female members claiming under him as mentioned in Class I heirs in the Schedule to Section 8 of the Act
15. That being so, it is obvious, that the present plaintiff can institute a separate suit, on the death of her father-in-law to claim a. share in the estate of the deceased as she is a Class I heir to him as mentioned In the Schedule to Sec, 8 of the Hindu Succession Act. Thus, she claims her share in the present suit not through her husband Rajappa, but in her own right as Class I heir to her deceased father-in-law Siddappa. It is needless for me to mention in this context that Rajappa died while living in joint status as a coparcener in the family.
16. In the result, therefore, I, answer Point No. 1 in the affirmative.
17. Point No. 2. The question that arises for consideration is whether the contending defendants have proved that they have brought about the improvement of the structure. The trial court has found that the contending defendants were not able to prove the alleged improvement by cogent and convincing evidence. The first appellate court has not interfered with that finding. Therefore, it is obvious, that the finding on a question of fact is that the improvements are not proved. That apart, the learned Counsel . appearing for the respondents invited my attention to a decision of this Court in the case S. Swamy v. Chikkamunj swamisa (1970) 1 Kant LJ 129 wherein his Lordship Justice Gopivallebha 1yengar has referred approvingly to an English decision reported in (1878) 7 Ch D 551, 554 which reads:
'In particular, he drew my attention to an extract incorporated in it with approval from the judgment of Sir Gorge Jessel, M. R. in Krehl v. Burrell wherein it is observed that: 'If with the notice of the right belonging to the plaintiff, And in defiance of that notice, without any reasonable ground, and after action brought, the rich defendant is to be entitled to build up a house of enormous proportion at An enormous expense, and then to say In effect to the Court, 'You will injure me a great deal more by pulling it down that you will benefit the poor man by restoring his right', that simply means that the Court in every case, at the instance of the rich man, is to compel the poor man to sell him his property at a valuation. That would be the real result of such a decision. If I acceded to. this view, I should add one more to the number of instances which we have from the days in which the Bible was written until the present moment, in which the man of large possessions has endeavoured to deprive his neighbour, the man of small possessions, of his property, with or without adequate compensation.'
Though the observation was made in a different context, that would largely hold good on the facts of the present case also. Speaking on this aspect this Court in the case Jethruse D'souza v. Catherine D'souza : AIR1983Kant14 has observed thus (at p. 16)
'Law does not favour a co-owner who effects improvements on his own accord without the consent of the other co-owners to get any compensation from the other co-owners when they claim their share by partition. A co-owner, however, can compel the other co-owners to contribute to the expenses of improvements in the following cases viz. (a) if there is an express contract for such contribution; or (b) if the money was spent on the express or implied request of other co-owners or (c) if he comes under Section 70 of the Contract Act.'
The reasoning advanced is similar to the one advanced above in the English case that if one co-owner is allowed to spend enormous amounts on improvement, he may sometime do so with the mala fide intention of defeating 'the claim of the other sharer, who is not in a position to pay for the expenses. On the tact of the present case, it cannot be said that the defendants were not aware of the presence of the plaintiff who is none other than the widow of Rajappa, one of the sons of Siddappa. They cannot plead ignorance of law also. They were well aware that the present plaintiff even in the earlier case O. S. No. 37 of 1963 were trying to get her share by inheritance on the death of Siddappa and that ultimately she was directed to file a fresh suit and she instituted O. S. No. 18 of 1977. These defendants were well aware that the plaintiff is a co-owner of the properties. During the pendency of her suit, knowing that she was entitled to a share, they proceeded to improve the property by spending huge amounts, namely, more than Rs. 30,000/-, as asserted by them 7ar'nough as stated above, it is not proved (As a matter of fact, as held by the courts below. an such a case when a suit for petition is Instituted by one of the co-owner, fie cannot be saddled with costs improvement with as a condition for getting has share separated. 18, It was also submitted before me at the Bar that much of the improvement was effected to the building even before that commencement of the suit and that was to the front portion. As a matter of equitable adjustment, it would be necessary while bringing about actual partition -that the authority concerned should bear in mind that that portion should be allotted to the share of the defendants who have invested money for improvement rather than, to the plaintiff. With the, observations I hold that the courts below where justified in not saddling the cost improvement on the plaintiff as a requisite condition for her to get her share allotted,
19. Point No. 3: ft is the contention of the learned Counsel for the appellants while calculating the mesne profits, the amount paid towards maintenance, during the pendency of the proceeding, to the plaintiff, should also be taken into consideration. That question would arise while holding an enquiry into that aspect of mesne profits and this question is left open for decision in that enquiry.
20. In the result, therefore, I am constrained to hold that this appeal is devoid of merits and is liable to be dismissed end 1 dismiss the same.
21. On the peculiar facts of the case, I make no order as to costs of this appeal
22. Appeal dismissed.