IMPORTANT POINT
Under section 197 of the Baroda Hindu Nibandh 1937, daughter is not entitled to claim partition.

ORDER :

1. We have heard the learned counsels for the parties.

2. Three courts including the High Court in Second Appeal have decreed the suit of the plaintiffs for partition. The plaintiff No.1- Dahiben is the daughter of plaintiff No.2 - Bai Jethu. The property in respect of which partition was prayed for in the suit belong to one Dahyabhai who had died in the year 1942 leaving behind his son - the first defendant - Karsanbhai Dahyabhai Parmar (appellant herein), plaintiff No.2 (Bai Jethu) - the widow, who also is no more and four daughters three of whom had died and the first plaintiff who is the sole surviving daughter.

3. As the death of the original owner (Dahyabhai) had occurred in the year 1942 the entitlement of the parties will be governed by the Baroda Hindu Nibandh 1937 and specifically Section 197 thereof which, inter alia, makes it clear that following the death of a male, his property will devolve on his son and widow. In the present case as the deceased owner (Dahyabhai) had left behind only one son i.e. defendant No.1 (Karsanbhai Dahyabhai Parmar, appellant herein) we are not required to go into the question as to whether the son who would inherit the property is the eldest son or that the property would also be inherited by other sons of the deceased owner.

4. The claim for partition was based on a gift deed executed by the plaintiff No.2 (Bai Jethu), the mother, in favour of the plaintiff No.1 (Dahiben), the daughter, on 28th April, 1972. Thereafter in the year 1974 the suit in question was filed. The consistent view taken by all the three courts is that as the mother (Bai Jethu, plaintiff No.2) is entitled to half share in the property as the widow of deceased owner (Dahyabhai) the gift deed executed by her in favour of the plaintiff No.1 (Dahiben) would entitle the plaintiff No.1 to a half share in the property. This essentially is the basis of the decree passed in favour of the plaintiffs in the suit. The same has been put to challenge by the first defendant in this appeal.

5. Interference by this Court in an appeal upon grant of special leave under Article 136 of the Constitution of India where consistent views have been taken by three courts is a rare event. However, we are left with no doubt in the mind that the present is one such occasion. Under Section 197 of the Baroda Hindu Nibandh 1937 the son and the widow of a deceased get inheritance/succession as co-sharer. The concept of co-sharer is akin to one of co-owner which vests in both an equal right to the same property. Both the co-sharers being holders of equal share to the same property, apportionment thereof and division of the property can only be by means of a partition. The right to seek such a partition, naturally, will be in one of the two co-sharers. The first plaintiff (Dahiben) being a daughter who does not have a right of inheritance under the Baroda Hindu Nibandh 1937 will not be a person entitled to seek a partition of the property. It is the mother/widow of the original owner i.e. plaintiff No.2 (Bai Jethu) who would have been entitled to claim of a partition but the plaintiff No.2 (Bai Jethu) i.e. the widow passed away, it is stated, on 20th January, 1974 i.e. during the pendency of the suit. In the absence of the plaintiff No.2 (Bai Jethu), the first plaintiff (Dahiben) did not have a right to demand partition and the suit should have failed on that count alone, immediately following the death of the plaintiff No.2. The gift deed dated 28th April, 1972 could not have vested in the plaintiff No.1 a right to claim partition inasmuch as the property being undivided the gift deed could not have been for an uncertain and undisclosed share of the property. In fact, when the gift deed was executed the share of the plaintiff No.2 was yet to be ascertained and apportioned. This is a lacuna in the decree passed by the three courts which has come to our notice at this stage. The same, therefore, will have to be cured by an appropriate interference