Upon the death of a female coparcener, her share devolves by intestate succession under Section 15 of the Hindu Succession Act, not by survivorship, affirming equal coparcenary rights for daughters.

CAV JUDGMENT

(PER: THE HON'BLE MR.JUSTICE SACHIN SHANKAR MAGADUM)

The captioned appeal is by defendants No.3 to 9, who are assailing the preliminary decree granted in O.S.No.32/2015. The said judgment and decree is under challenge by these defendants.

2. For the sake of convenience, the parties are referred to as per their rank before the trial Court.

3. Before we examine the issue on hand, we deem it appropriate to cull out the family tree, which is as under:

Timmappa Subray Hegde (Defendant No.1) (Died on 13-7-2017)

Subhadra (Died on 2-8-2000)

Subray Chandramati Jahnavai Venkatraman Sumangala Prakash Sumana (plaintiff) (Defendant (Defendant (Defendant (Defendant (Defendant (Def.No.4) No.5) No.2) No.6) No.3) No.7)

Vidya (Def.No.8) Shrikant (D9)

Sarojini Suresh Ashok (Died unmarried & issueless) (Died unmarried & issueless) (Died unmarried & issueless)

4. The facts leading to the case are that;

Plaintiff, who is the elder son of Timmappa Hegde and Subhadra Hegde has instituted a suit for partition in O.S.No.32/2015. The plaintiff asserts that he along with defendants No.2 to 7 are the children of defendant No.1 and late Subhadra, who died on 02.08.2000. Defendant No.8 is the daughter of defendant No.4 and defendant No.9 is the husband of defendant No.7. Defendants No.4 to 7 are the daughters of defendant No.1. The plaintiff has specifically pleaded that defendant No.1-father had no authority to gift the property in favour of defendant No.3. He also questioned the subsequent gift deed dated 13.02.2002 executed by defendants No.4 and 7 in favour of defendants No.8 and 9. The plaintiff alleged that these are void and fraudulent documents.

5. The defendants on receipt of summons, tendered appearance. Defendants No.1, 3 and 5 filed written statement and claimed that the suit schedule properties are the self acquired properties of defendant No.1. Defendants alleged that item No.1 property was purchased by defendant No.1 on 08.06.1960 from his independent earnings as defendant No.1 was running a grocery shop and never treated item No.1 property as joint family property. Insofar as item No.2 property is concerned, defendants claim that it is the self acquired property of Ashok, the youngest son of defendant No.1 and after his death, with the consent of mother, a mutation came to be effected with the consent of plaintiff and defendant No.2. Therefore, defendants claim that defendant No.1 is the absolute owner of item No.2 property. Defendants further contended that Subhadra has made a testamentary arrangement by executing Will on 02.07.1995, thereby bequeathing the property in favour of defendant No.1 and this fact is well within the knowledge of plaintiff.

6. The plaintiff and defendants to substantiate their respective claims have led in oral and documentary evidence. The trial Court after assessing oral and documentary evidence, decreed the suit granting 1/7^th share to the plaintiff in the suit schedule properties.Similarly, defendants No.2 to 7 are also granted 1/7^th share in the suit schedule properties.

7. In the captioned appeal, counsel appearing for appellant reiterating the grounds has raised question of law by citing the second explanation to Section 6 B, which is the Karnataka State Amendment to Section 6 of the Hindu Succession Act, 1956 (hereinafter referred to as ‘the Act’ for brevity). Citing the second explanation, he would point out that after the death of Subhadra, who is the mother of plaintiff, defendant No.1-father would become the a