LAWS(KAR)-1970-10-11

MALLAVA ALIAS AVALABAI Vs. PARVATEVVA

Decided On October 16, 1970
MALLAVA ALIAS AVALABAI Appellant
V/S
PARVATEVVA Respondents

JUDGEMENT

(1.) The short question that arises in this case is the determination of the plaintiff's share. The plaintiff's suit was for partition and separate possession of a half share in the suit schedule properties. The learned Additional Civil Judge, Belgaum, granted a decree for a share. On appeal by the plaintiff the lower appellate Court has granted her a hall share in the suit schedule properties.

(2.) The facts relevant for consideration of this question are in short that the plainiff is the widow of one Fakirappa Havannavar who died on 11-10-1962; he is the son of Bhimappa Havannavar who died on 26-9-1961. The first defendant is his (Bhimappa) widow. The plaintiff claims as succeeding to the interest of Fakirappa under S.6 of the Hindu Succession Act. S.6 of the Hindu Succession Act reads as folows:

(3.) The share that the plaintiff is entitled to is to be worked out according to the said section. This proceeds on the undisputed assumption that the property in which the plaintiff claims her share is an interest in a Mitakshara coparcenary property, Under the first explanation to Sec.6 of the Hindu Succession Act, Fakirappa's share requires to be determined on the basis of what would have been allotted to him on a partition of the property immediately beofre his death. This necessitates the determination of the devolution of the interest of Bhimappa on 26-9-1961. If partition had taken place immediately prior to the death of Bhimappa, Bhimappa, Mallavva and Fakirappa would each be entitled to a 1/3 share according to Hindu Law prevailing in Bombay area. Thereafter, the share of Bhimappa would devolve on defendant 1 and Fakirappa. Fakirappa would be entitled to 116 share and, defendant 1 would be entitled to 1/6 share.