1995 INSC 0917
                                           Jayamma (Smt) and Another

                                                           Vs

                                   Thimmamma (Dead) By Lrs. and Another.

                                         Civil Appeal No. 10212 of 1995

                                        (K. Ramaswamy, B. N. Kirpal JJ)

                                                      01.11.1995

                                                        ORDER

1. Delay condoned.

2. Leave granted.

3. Though notices were served on both the respondents as early as in March 1991, till date none has
appeared in person or through counsel. Notices served on them as sufficient. The respondents are
daughters of one Doddahanumegowda. Doddahanumegowda died on 21-5-1972 leaving behind him
Chikhanumegowda, Ningamma (first defendant), Mariyamma (Plaintiff 2), Javaramma (Defendant
2), and Boramma (Defendant 3) both through their predeceased son Chikhanumegowda. On his
demise Mariyamma and Thimmamma, the daughters of Doddahanumegowda filed the suit for a
declaration that they became owners pursuant to a settlement deed dated 23-5-1970 and succeeded
to the entire property. Therefore, they were entitled to the exclusive possession of the plaintiff's
property. Thereon, the appellants and their mother had contended that they being the heirs of
predeceased son Chikhanumegowda, they are also entitled to half share in the coparcenary property
left by Doddahanumegowda. The trial court dismissed OS No. 216 of 1972 by its judgment and
decree dated 20-6-1977. But on appeal, the appellate court reversed the decree holding that the
appellants had not proved as to when Chikhanumegowda died and that Doddahanumegowda being
the sole surviving coparcener, he became the absolute owner and thereby he was entitled to
bequeath the property in favour of his daughter, which was upheld by the High Court in SA No. 34
of 1979 by judgment and decree dated 24-1-1989.

4. It is seen that in the plaint the respondents had admitted that Chikhanumegowda died 33 years
prior to the suit. Suit was filed in 1972. Thus, the death of Chikhanumegowda, the father of the
appellants, admittedly occurred in 1938 or 1939 by which time the Hindu Law Women's Rights Act,
1933 had come into force. Section 8(1)(d) of the Act envisages that where joint family property
passes to a single coparcener by survivorship, it shall so pass subject to the right to the share of the
classes of females enumerated in the sub-sections. Classes of females consist of widows and the
daughter of the pre-deceased son of the sole surviving coparcener. Consequently, the appellants and
their mother became entitled to the share in the coparcenary property. Since Chikhanumegowda and
the father of the respondents being the only coparceners they are entitled to equal share in the
property by operation of Section 14 of Hindu Succession Act, 1956. Therefore, the appellants are
entitled to half share in the plaint schedule property. The High Court and the appellant court had
committed error in refusing to grant relief. The judgment and decree of the trial court and the
appellate court are set aside. However, there shall be preliminary decree to the extent of half share in
the property in favour of the appellants. It would be open to the appellants to make an application to
pass the final decree in the trial court.
5. The appeal is accordingly allowed. No costs.