Unchastity of a widow is not a disqualification for inheriting her deceased husband's estate under the Hindu Succession Act, 1956, as Section 28 of the Act removes all disabilities for inheriting property except those prescribed under the Act.

( 1 ) JUDGEMENT :- An interesting question of law, whether the widow of a coparcener who is found unchaste on the date of his demise is disqualified to inherit his estate as a Class I heir under the Hindu Succession Act, 1956 (Act No. XXX of 1956), arises in this case.

( 2 ) THE appellants are defendants 1 to 6. The respondent is the widow of the elder brother of the 1st appellant. Her husband died in the year 1962. Her marriage was celebrated 24 years prior to the institution of the suit. It is her case that after her husband s demise, she continued to live as a member of the joint family with the 1st Appellant; but he started secreting the income of the joint family and purchasing the properties benami necessitating her to lay the suit for a partition. Initially, she impleaded the 1st appellant as the sole defendant. Subsequently, at the behest of the 1st appellant, his sisters defendants 2 to 4, and his deceased sister s husband and son, defendants 5 and 6, respectively were impleaded. She claimed initially half share and subsequently 1/4th share. The trial Court granted a preliminary decree in respect of items 1 to 14 of the plaint A Schedule properties and dismissed the suit in respect of item 15 of the plaint A Schedule properties and also the plaint B and C Schedule properties. No cross-objections have been filed in that regard.

( 3 ) WITH a view to disentitle the respondent to claim a share, the 1st appellant pleaded that even before the marriage with his brother, the respondent was leading immoral life having illicit intimacy with one Rangappa of her parents village, Gandhipalle, and one year after the marriage, she deserted her husband and continued to live openly with the said person and, therefore, she is not entitled to a share in the coparcenery property. Though the 1st Appellant pleaded that the properties were purchased by D. W. 6, his sister, and he was holding the properties benami for her benefit, that plea was negatived by the Court below and it is not challenged before me. Therefore, I need not go into that question.

( 4 ) ONE of the contentions raised by Sri E. Subrahmanyam, the learned counsel for the appellants, is that in items 1 to 6 of the plaint A schedule properties the joint family has only half share and the cousins of the 1st appellant has the other half share and, therefore, the Court below is not justified in holding that the entire extent of items 1 to 6 is available for partition. He has led me through the written statement of the 1st appellant and the evidence of D. Ws. 6 and 9. I am unable to agree with his contention. Ex. B-10 dt. Oct. 20, 1928 is admittedly executed by the 1st appellant and Ex. B-12 is the mortgage decree in O. S. No. 135 of 1969 on the file of the Court of the District Munsif, Kuppam, in which the 1st appellant himself hypothecated these properties as joint family properties. In Ex. B-10 he expressly admitted the partition anterior to 1928 and in Ex. B-12 he treated these properties as joint family properties. D. W. 6, his sister, expressly admitted in her evidence that her father and her uncle divided their properties. Therefore, the contention that the properties still continued to be joint properties of his agnates is not correct and cannot be given countenance. Moreover, no revenue records or receipts have been placed to show the extent of enjoyment the family had. No doubt, in Ex. B-12, half of the properties, items 1 and 3, was hypothecated, but it does not mean that the other half was not available for joint family. What would appear to be is that the 1st Appellant mortgaged only half the extent, i. e. Acs. 1869 cents in Survey Nos. 74/2 and 114, items 1 and 3 of the plaint A schedule properties, under the mortgage deed. As stated earlier, it would not postulate that the other half was not available to the joint family. Therefore, the entire extent of items 1 to 6 is available for partition.

( 5 ) THE next question is whether the respondent was