MAHADEVAPPA SHANKERAPPA Vs. GAURAMMA

JUDGEMENT

(1.) This appeal is by the defendant in Case No. 235/1 of 1964 on the file of fee Court of the Munsiff at Gul-barga. It is directed against the Judgment and Decree made by the Additional Civil Judge, Gulbarga, in R. A. No. 337/1965. That was an appeal preferred by the plaintiff-respondent. By the said judgment and decree, the learned Civil Judge decreed the suit of the plaintiff for declaration of her title in respect of the suit property.

(2.) Few facts relevant for the disposal of this appeal which are not in dispute, are as follows: The plaintiff Guaramma was the daughter of one Revappa whose wife was one Siddawwa. She had two sisters by name Shivamma and Retnawwa, elder to her. Shivamma predeceased Revappa leaving behind her the present appellant Mahadevap-pa. The said Mahadevappa was brought up by Ratnawwa, one of the daughters of Revappa, who came into possession of the suit properties on the date of the death of her mother Siddawwa, about 17 years prior to the suit. Revappa had predeceased the said Siddawwa about 35 years ago prior 10 the suit, leaving behind him his widow and two daughters. Ratnawwa died in the month of August, 1963, that is subsequent to the coining into force of the Hindu Succession Act, 1956 (hereinafter referred to as the Act). It would appear that she also executed a will in respect of her interest in the property, in favour of the present appellant. Since the will has not been held to have been established her interest in the property had to devolve by succession in accordance with the Act. At one stage, the relationship of the appellant was also disputed and now it is no longer in dispute that he is the son of late Shivamma. The trial Court did not grant the decree holding that the appellant had an interest in the property and therefore the decree for declaration of the respondent's title and for possession could not be granted. Incidentally, the respondent was advised to file a suit for partition to carve out her share. It is against this decree, that the respondent appealed. The lower appellate Court set aside the judgment and decree of the trial Court and decreed the suit as prayed for. Hence, this appeal by the defendant in the suit.

(3.) On behalf of the appellant, Shri A. M. Farooq the learned counsel contended thus: That in the facts and circumstances of the case the appellant would be entitled to succeed to the estate of Ratnawwa as the heir of her father Revappa by virtue of the provisions of Section 15 and Rule (3) of Section 16 read with Section 9 of the Act. His contention is that in view of the fact that Ratnawwa had half share in the property as absolute owner thereof, that estate should devolve on the heirs of her father by virtue of Rule (3) of Section 16. According to him, the said heirs, in the circumstances, are only himself and Gauramma, the present plaintiff. In the view of the fact that Section 9 of that Act provides for simultaneous succession of the heirs mentioned in Clause (1) of Schedule 1 to that Act, he would be entitled to succeed to the estate of Ratnawwa along with the present respondent. He, however, computes the snare as having fallen to his share as 1/4th of the estate jointly held by Ratnawwa and Gauramma.