LAKSHMAMMA Vs. NARASAMMA

JUDGEMENT

(1.) The defendants are the appellants.

(2.) One Narasappa died on 3-4-1966. He had two wives. The 1st defendant is his first wife, and the mother of the plaintiff is his second wife. The 2nd defendant in the suit is the minor son of the 1st defendant. After the death of Narasappa, the 2nd wife and the present plaintiff filed a suit, O.S. No. 35/68 for partition and separate possession of their share in the estate left by Narasappa. The said suit was dismissed on two grounds, namely (i) that the marriage of the 2nd wife with Narasappa being a nullity, she cannot have a claim in his properties; and (ii) since the present plaintiff A.A.O. No. 138 of 1977. dt. H-7-1978. was born before the declaration of nullity was obtained, she too is disentitled from any are in tne properties of Narasappa. Subsequent to the said judgment and decree, the second wife filed an application under section 11 of the Hindu Marriage Act 1955, being O.P, No. 45/69, for a decree of annulment of her marriage with Narasappa. The said petition was allowed on 8-12-1971. An appeal, filed against the same, being CMA. 27 of 1972, was dismissed on 13-11-1973. It is then tha the present suit was institutsd by the plaintiff alone on 5-10-1974 for partition and separate possession of her one third share and for mesne prr Sits. The suit was dismissed by the trial court on 29/9/1975. The plaintiff filed an appeal and pending the appeal, section 16 of the Hindu Marriage Act 1955, was amended. The old section was repealed and substituted by a new one. The Appellate Court was of the opinion that the amended section 16 comes to the rescue of the present plaintiff and that she is en itied to a share in the properties of the deceased Narasappa. Accordingly, it remanded the matter to the court below for a fresh disposal on the questions relating to the quintum of share to which the plaintiff is entitled and the ascertainment of the properties that are available for partition. It is against the said order of remand that the present appeal is filed.

(3.) The reasoning of the learned counsel for the appellants runs as follows: Soon upon the death of Narasappa on 3-4-1966, his properties devolved upon both the defendants. Succession never remains in abeyance. Defendants 1 and 2 there ore become the absolute owners of the Said properties according to law then in force on 3-4-1966 itself, because, on that date, the plaintiff was admittedly not entitled to any properties. It H only by virtue of the subsequent Amendment Act that the plaintiff has become legitimate, but that does not mean that the succession which has already vested in the defendant is liable to bs re-opsnod. The new section 16 does not provide for re-opening a succession already devolved. It may be that the plaintiff is declared to be the legitimate daughter of Narasappa by the present Section 16. But that by itself does not entitle the plaintiff to seek to divest the defendants of the properties already vested in them by law. tor these reasons, the finding of the lower appellate Court regarding the applicability of new Section 16 and the consequent remand is untenable, it is argued.