NANJAMMA Vs. CHANDRAPPA

JUDGEMENT

(1.) This is a plaintiff's second appeal against the decree passed by the Civil Judge, Chickmagalur, in RA..67 of 1970, reversing the decree passed by the Munsiff; Tarikere, in OS. 328 of 1967.

(2.) The plaintiff instituted the suit for partition and possession of half-a-share in the suit properties. The admitted facts of the case are that one Kollurappa was the propositus who died in or about 1936 leaving behind his widow Kariyawa, his son Mallappa and his daughter Nanjamma (the plaintiff). The defendant Chandrappa was on the date of the death of Kollurappa, in the womb of Kariyawa and was born only a couple of months after his father's death Mallappa died unmarried. By the time Mallappa died, Nanjamma, the plaintiff, had got married. She has claimed a share in the joint family properties under clause(d) of sub-sec.(1) of S.8 of the Hindu Women's Right to Property Act, 1933 (hereinafter referred to as the 'Act'), which came into force on 1-1-1934. The suit was resisted by the defendant who, inter alia, took the stand that as the plaintiff is the married sister of his, she having got married long before the death of her brother, Mallappa, is not entitled to claim any share in the suit properties. The Court of first instance accepted the plaintiff's case and made a decree for partition and separate possession, as prayed for by her. On appeal, the learned Civil Judge reversed the said decree and dismissed the plaintiff's suit. Hence this second appeal by the plaintiff.

(3.) Sri N. C. Biligiri Rangaiah, learned Counsel appearing for the appellant, contended that the plaintiff became entitled to half-a-share in the suit properties immediately on the death of her father, Kollurappa, as Mallappa got the suit properties by survivorship, he being the sole coparcener in the family. His submission is that the defendant being a posthumous child, he must be regarded as having been born only after the right to a share in the suit properties accrued to the plaintiff under Cl. (d) of sub-sec.(1) of Section 8 of the Act.