Full Judgment
1. Neelawwa, widow of Huchanpa and co-widow of Basawannevva, instituted Original Suit No. 34 of 1974 on the file of the Munsiff, Kundgol, for partition and possession of her share. She claimed 1/6th share or in the alternative 1/12th share in the suit properties.
2. The reason is not far to seek Huchanpa left behind him two widows, four sons and a daughter. Therefore, she claimed 1/12th share.
3. The suit was resisted by the defendants. Ultimately, the trial court decreed the suit for 1/84th share. Aggrieved by the said judgment and decree, she went up in appeal before the principal Civil Judge. Hubli, in Regular Appeal No. 93 of 1975. The learned Civil Judge modified the decree and awarded 1/72nd share in favour of the plaintiff. Aggrived by the same, she has come up in the above second appeal before this Court.
4. The learned counsel appearing for the appellants argued that in view of the decision of the Supreme Court of India in the case of Gurupad Khandappa Magdum v. Hirabai Khandappa Magdum : [1981]129ITR440(SC) , the co-widow would be entitled to 1/12th share along with her right of residence in the family house.
5. It is no doubt true that in the aforesaid decision of the Supreme Court of India, it is observed (at p. 1243 of AIR):
'In order to ascertain the share of heirs in the property of a deceased coparcener it is necessary in the very nature of things, and as the very first step, to ascertain the share of the deceased in the coparcener property. For, by doing that alone can one determine the extent of the claimant's share. Explanation 1 to S. 6 resorts to the simple expedient, undoubtedly fictional, that the interest of a Hindu Mitakshara coparcener 'shall be deemed to be' the share in the property that would have been allotted to him if a partition of that property had taken place immediately before his death. What is therefore required to be assumed is that a partition had in fact taken place between the deceased and his coparceners immediately before his death. That assumption, once made, is irrevocable. In other words, the assumption having been made once for the purpose of ascertaining the share of the deceased in the coparcener property, one cannot go back on that assumption and ascertain the share of the heirs without reference to it. The assumption which the statute requires to be made that a partition had in fact taken place must permeate the entire process of ascertainment of the ultimate share of the heirs, through all its stages. To make the assumption at the initial stage for the limited purpose of ascertaining the share of the deceased and then to ignore it for calculating the quantum of the share of the heirs is truly to permit one's imagination to boggle. All the consequences which flow from a real partition have to be logically worked out, which means that the share of the heirs must be ascertained on the basis that they had separated from one another and had received a share in the partition which had taken place during the lifetime of the
deceased '
6. That being so, it is obvious that the share of Huchanpa should be first worked out at 1/7th and in that the widows would be entitled to 1/40th share. Again, in the notional partition, they would get 1/7th share. Together, therefore, they get 116th share. The plaintiff is entitled to half, of it, there being two widows. Therefore, she is entitled to 1/12th share and not 1/72nd share as held by the Court below.
7. In view of the aforesaid judgment of the Supreme Court, the earlier decisions of this Court in the case of Padmavati Bai v. Rajappa Gundappa Devakath, (1969) 2 Mys IJ 348 and in the case M. V. Shivaji Rao Kore v. Rukminiyamma, (1972) 2 Mys LJ 374: (AIR 1973 Mys 113) are no longer good law, to the extent they conflict with the ruling rendered by the Supreme Court as cited above.
8. In the result, therefore, the appeal is allowed. It is declared that the plaintiff is entitled to 11,12th share in the suit properties and it is further directed that she is entitled to separate possession of the same. She has also a right of residence in the family house till such time as the brothers bring about a partition, (Vide: S. 23 of the Hindu Succession Act). Draw up the preliminary decree accordingly.
9. Appeal allowed.