LAKSHMINARAYANA Vs. SARASWATI

JUDGEMENT

(1.) This appeal is by defendant 6 which arises out of a suit brought by two plaintiffs for a partition of the property which belonged to a Hindu joint family which was composed of defendant 1 and defendants 3 to" 6. Defendant 1 is the father and defendants 3 to 6 are his sons. The two plaintiffs and defendant 2 are his daughters There was a partition on April 19, I960 between the members of the family in which defendant 6 took his fifth share and the other members of the familv remained joint. It is because of that partition that the two plaintiffs claimed that they were also entitled to demand a partition in the familv properties under S.8 of the Hindu Law Women's Rights Act (Mysore Act X of 1933) which will be referred to as the Act.

(2.) The Munsiff dismissed the suit on the ground that the plaintiffs could not demand a partition because their father was alive. But the Civil Judge allowed the appeal and gave the plaintiffs the decree which they wanted for partition and delivery of possession of their 2/23rd share in the family properties including the property which had fallen to the share of defendant 6. So defendant 6 appeals. Mr. Ramachandra appearing for defendant 6 contends that the decree for partition offends against proviso (ii) to S.8 of the Act He is right in making that submission.

(3.) Although under S.8(1) (a) the unmarried daughters in a Hindu joint family have the right to demand a share in the family properties when a partition of joint family property is made between a pprson and his son or sons, that right is clearly controlled by the proviso to that section, Cl. (ii) of which reads: " Provided always as follows : x x x x x (ii) No female whose husband or father is alive shall be entitled to demand a partition as against such husband or father, as the case may be; " RSA.404/65 from civil Judge, Shimoga in RA.143|64. Defendant 1 who is the father of the plaintiffs was alive when the suit was brought and continues to be alive. So the Civil Judge was not right in taking the view that the demand for the partition by the plaintiffs could be sustained.