CHINNAMMA Vs. SRINIVAS

JUDGEMENT

(1.) This second appeal has been referred to a Division Bench by an order made under the proviso to Section 6 of the Mysore High Court Act. 1961 by Govinda Bhat J. on 29-8-1969 in view of the fact that the appeal raises a substantial question of law regarding the applicability of the Mysore Hindu Law Women's Rights Act (Mysore Act X of 1933) (hereinafter referred to as the Mysore Act of 1933) to Hindus who are permanent residents of erstwhile Madras State and who had acquired properties in the area of the old Mysore State.

(2.) This second appeal arises out of a suit, O. S. No. 539 of 1962 on the file of the Munsiff, Mysore, filed by the appellant for partition and separate possession of one-third share in the plaint schedule properties with mesne profits from date of suit. In the schedule attached to the plaint, there are eight items of properties. Items 1, 5 and 6 are houses and Items 2, 3, 4. 7 and 8 are agricultural lands. Item 1 is situated in Mysore City. Items 2 to 8 are situated in Kollegal Taluk. The plaintiff filed the suit against three defendants. The first defendant is the son of one M. P. Venkataswamy who happened to be the stepson of the plaintiff; the second defendant is the widow of the said M. P. Venkataswamy; and the third defendant is an alienee of Item 4.

(3.) The case of the plaintiff as disclosed in the plaint is that she was the widow of one M. S. Puttanniah who died on 3-5-1937 leaving behind him the plaintiff, her married daughter Rathn-amma, an unmarried daughter Sakun-talamma, and a son M. P. Venkataswamy, as the only sole surviving coparcener in the family. The properties described in Items 2 to 8 in the schedule attached to the plaint were joint family properties in the hands of M. S. Puttanniah and his son M. P. Venkataswamy. Item 1 of the plaint schedule is stated to have been acquired in or about the year 1950 out of the joint family income, and, therefore. Item 1 also was part of the joint family estate. The first defendant who was aged about eight years in the year 1962 when the suit was filed, was born in or about the year 1954. It is alleged that M. P. Venkataswamy lived mostly in Mysore City till his death which took place on 6-10-1955 at Mysore. On his death the surviving members of the family were the plaintiff i. e, step-mother of Venkataswamv; the second defendant who was the widow of Venkataswamy, and the first defendant, an only son. According to the plaintiff, on 6-10-1955 the joint family properties which are described in the schedule attached to the plaint passed on by survivorship to the sole surviving coparcener, namely, the first defendant and hence under the provisions of Section 8 (1) (d) of the Mysore Act of 1933, she became entitled to one-third share in the family properties including Item 1, namely the house which was situated in Mysore City. On the basis of the said cause of action which is alleged to have accrued on 8-10-1955, the plaintiff claims the relief as set out above for a decree for partition and separate possession in the schedule properties with mesne profits. Defendants 1 and 2 who contested the suit pleaded that since the plaintiff was leading an immoral and unchaste life even during the lifetime of her husband, she was not entitled to any share in the suit properties and that Item 1 of the plaint schedule was a self-acquired property of Venkataswamy and hence it was not one of the joint family properties. It was further pleaded by defendants 1 and 2 that since Puttan-naiah, the husband of the plaintiff and his son Venkataswamy were natives of Mudigunda village in Kollegal Taluk which was formerly part of Madras State and which became part of Mysore on 1-11-1956 under the provisions of the States Reorganization Act, the Mysore Act of 1933 was not applicable to the parties to the suit. In any event, it was pleaded, the plaintiff had no right to a share in Item 1 of the plaint schedule. They also pleaded that Item 4 of the plaint schedule was sold to the third defendant for family necessity and that the third defendant was in possession of the said property.