DILIP KUMAR ALIAS SRINIVAS Vs. DAMODAR NARAYANRAO RAMMANGUDKAR

JUDGEMENT

(1.) This appeal by defendants 1 to 7 is directed against the judgment and decree passed by the Court of the Dist. Judge, Gulbarga in R.A. No. 17/01 dated 30-6-2003 dismissing the appeal and cross-objections preferred by the defendant No. 2 and confirming the judgment and decree passed by the Court of the Addl. Civil Judge (Sr. Dn.), Gulbarga, in O.S. No. 203/ 1995 dated 10-8-2001 wherein the suit of the plaintiff is partly decreed by holding that the plaintiff is entitled to partition and separate possession of 1/12th share in the suit schedule house bearing 1 -3-185 situated at Chincholi and in suit lands measuring 21 acres 11 guntas both situated at Doulatpur village in Chincholi Taluk and dismissing the suit of the plaintiff for partition and separate possession in respect of the suit land in Sy. No. 125 measuring 4 acres 27 guntas and for the relief of future mesne profits of the suit properties and further ordering that defendants 2 to 5 are also entitled to partition and separate possession of their 1 / 12th share each in the house property and the suit lands in Sy. Nos. 18 and 19 of Doulatpur village.

(2.) The essenual lacts of the case leading up to the filing of this appeal with reference to the rank of the parties before the trial Court are as follows :-

(3.) The learned counsel for the appellants submitted that the Courts below have erred in ascertaining the share of the plaintiff with reference to S. 15(1) of the Hindu Succession Act (for short 'the Act') and submitted that defendant No. 1 being the son of Sonubai has become the absolute owner of the property after her death in view of the provisions of S. 15(2) of the Act. The learned counsel submitted that the provisions of sub-section (2) of the Act is a non obstante provision as it begins with the word 'notwithstanding anything contained in subsection (1) and in the absence of son or daughter of the deceased, property inherited by the female from her father or mother will devolve upon the heirs of her father or mother and the property inherited by the female from her father-in-law would devolve upon the heirs of the husband and in case there is son, he would become the absolute owner of the property in view of the provisions of S. 15(2) of the Act. In support of his contention he has relied upon the decisions of the Hon'ble Supreme Court in Bhagat Ram (deceased by LRs) v. Teja Singh (deceased by LRs), reported in AIR 2002 SC 1 and V. Dhandapani Chettiar v. Balasubramanian Chettiar (dead) by LRs, reported in ILR 2004 Kar 771.