Karnataka High Court
Pramila K G vs Jayamma @ Honnamma on 18 September, 2018
Author: L.Narayana Swamy
Bench: L. Narayana Swamy
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF SEPTEMBER, 2018
BEFORE
THE HON'BLE MR. JUSTICE L. NARAYANA SWAMY
REGULAR FIRST APPEAL No.277 OF 2005
BETWEEN:
PRAMILA K G
AGED 56 YEARS
W/O K MARISWAMY
R/O NAGUNAHALLY
SRIRANGAPATNA TALUK ... APPELLANT
(BY SRI.P S MANJUNATH, ADV.)
AND:
1. JAYAMMA @ HONNAMMA
AGED 62 YEAS
W/O LATE GOVINDAPPA
D/O SUBBAMMA
SINCE DEAD BY HER LRS
1A) SUBRAMANYA, MAJOR
1B) RAMACHANDRA, MAJOR
1C) RAMESH, MAJOR
1D) VIJAYA, MAJOR
ALL ARE SONS OF
JAYAMMA @ HONNAMMA
R/AT CHANDAGAL VILLAGE,
2
KASABA HOBLI
SRIRANGAPATNA TALUK
MANDYA DISTRICT - 571 438
2. SATHYAVATHI @ NANJAMMA
AGED ABOUT 44 YEARS
W/O CHIKKANNA &
D/O I DEFENDANT
R/O PALAHALLY
SRIRANGAPATNA TALUK - 571 438 ... RESPONDENTS
(by SRI.T.N.RAGHUPATHY, ADV. FOR R2;
SRI.H C NARASIMHASWAMY, ADV. FOR R1 (A TO D)
THIS RFA IS FILED U/S 96 OF CPC AGAINST THE
JUDGMENT AND DECREE DT.30.10.04 PASSED IN
O.S.NO.95/1993 ON THE FILE OF THE II ADDL. CIVIL JUDGE
(SR. DN.), MYSORE, DISMISSING THE SUIT FOR DECLARATION,
PARTITION & SEPARATE POSSESSION & MESNE PROFITS.
THIS APPEAL COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY AFTER HAVING HEARD AND RESERVED
FOR JUDGMENT ON 30.03.2017, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This regular first appeal is filed by the plaintiff in O S No.95/1993 on the file of Additional Civil Judge (Sr.Dn.) at Mysuru. The said suit filed by the plaintiff was for declaration that she is entitled to half share in all the suit properties and for partition of half share by metes and bounds and for possession, together with mesne profits or in the alternative for declaration 3 that plaintiff is entitled to hand over item No.1 and 5 of the suit properties and for possession of the same together with cost and also mesne profits in respect of item No.5 of the suit schedule property, came to be dismissed by the judgment and decree dated 30.10.2004.
2. The facts of the case to be stated in brief are that one Subbanna was the propositus. He died in the year 1935 leaving behind his widow Smt.Lakshmamma and two daughters, namely, Smt.Jayamma @ Honnamma (first defendant) and Smt.Subbamma (predeceased Smt.Lakshmamma). Plaintiff is the daughter of Smt.Subbamma. The second defendant is the daughter of Smt.Jayamma (first defendant).
3. Sri Subbanna was the owner of the suit schedule item Nos.1 to 4 and 5th item of the schedule properties was purchased by his wife Smt.Lakshmamma.
4. It is the case of the plaintiff that on the death of Sri Subbanna in 1935, Act 10/1933 was in force which came into force from 01.01.1934 and his widow Smt.Lakshmamma became 4 the owner of the property left behind by her husband as a limited owner. Smt.Lakshmamma died on 14.9.1987. On her death, it is stated, properties passed on to her female reversioners i.e., plaintiff and defendants 1 & 2 and therefore she is entitled to one-half share in the suit schedule properties.
5. It is further case of the plaintiff that during life time of Smt.Lakshmamma, she learnt to have executed a registered deed dated 22.07.1970 styling it as a settlement deed settling item Nos.1 & 5 of the plaint schedule properties in favour of the plaintiff and rest of items No.2, 3 & 4 in favour of defendants 1 &
2. It is claimed that though the said document was styled as a settlement deed, on the basis of recitals stated therein to the effect that possession of the properties settled would pass on to the settlers after death of Smt.Lakshmamma, it has to be construed as a Will. Since Smt.Lakshmamma was a limited owner, she could not have executed the said deed and hence the settlement is inoperative and ineffective in the eye of law. According to plaintiff, item No.5 the house property is in occupation of the plaintiff. It is her case that during life time of 5 Smt.Lakshmamma, the settlement did not come into effect and all of them were residing in item No.5. Only after the marriage of first defendant, she started living with her husband at Chandagal. After the death of Smt.Lakshmamma, the plaintiff called upon the first defendant to divide the suit properties and put the plaintiff in possession of her half share. It is only at that time, first defendant disclosed the settlement deed, which is concocted and a fabricated one to defeat the rights of the plaintiff. Therefore, the plaintiff filed the suit seeking for declaration and other reliefs as mentioned hereinabove.
6. The 2nd defendant filed written statement admitting relation between the parties. It is denied that Smt.Lakshmamma was a limited owner till her death on 14.9.1987. It is denied after death of Smt.Lakshmamma, the properties shall pass on to her female reversioners. It is contended that by advent of Hindu Succession Act, 1956 Smt.Lakshmamma was the full owner. Settlement deed dated 22.2.1970 was executed by her giving certain properties to the plaintiff and certain to defendants. It is denied that settlement 6 deed is a Will. It is denied that Lakshmamma was in enjoyment of the suit schedule properties till her death. The settlement deed was in the knowledge of the plaintiff and with her consent and the same has been acted upon by the parties during the life time of Lakshmamma. The properties item Nos.1 & 5 are in possession of the plaintiff. As the parties were in separate possession as per the settlement deed, there was no reason to demand partition. The averment made by the plaintiff with regard to joint possession of the properties during life time of Lakshmamma are denied. It is claimed that the plaintiff is in separate possession of the properties allotted to her under the deed. Hence the plaintiff is estopped from questioning the deed of settlement after this length of time.
7. According to defendant No.2, during life time of defendant No.1, defendant No.1 has executed gift deed on 24.03.1997 in favour of 2nd defendant and by virtue of the gift deed she became the owner of 4 acres 5 guntas in S.No.184 of item No.2 and the remaining 1 acre has been given by 7 Lakshmamma under the settlement deed. Therefore, she is the owner of 5 acres 5 guntas in Sy.No.184 item No.2.
8. The court below framed the following issues based on pleadings of the parties:
(a) Whether Lakshmamma had only limited right over the suit properties?
(b) Whether on the death of Lakshmamma, the suit properties stood reverted to the female reversionary namely the plaintiff and the defendants?
(c) Whether Lakshmamma was incompetent under law to execute the deed dated 22.2.1970, which is described as settlement deed? If so, is that deed bad in law?
(d) Whether plaintiff is entitled for 1st declaratory relief sought?
(e) Whether all the items of the plaint schedule are liable for partition? If not which of the items and what is the share of the plaintiff over the same?
(f) Whether alternative reliefs arise for consideration, If so, whether plaintiff is entitled for the same? 8
(g) Whether the suit is barred by the law of limitation?
(h)Whether suit is improperly valued for the purpose of Court fee and that the court fee paid is insufficient?
(i) To what reliefs the parties to the suit are entitled?
Additional issue framed on 19.02.2002:
(a) Whether second defendant proves that she is the absolute owner of suit schedule item No.2 property by virtue of registered gift deed dated 3.2.1999 and correction deed dated 29.9.1997?
(b) Whether 2nd defendant proves that one-acre land in Sy.No.184 was given to her under registered settlement deed dated 22.7.1970?
(c) Whether 2nd defendant proves that the plaintiff is estopped from questioning the settlement deed dated 22.7.1970 as it was acted upon and plaintiff had acquiescence of it?
Additional issue framed on 18.12.2002:
(a) Whether the deed dated 22.2.1970 is not a settlement deed but a Will?9
(b) Whether the suit is bad for non-joinder father as a party to the suit?
9. The findings of the court below on the above issues are as follows:
Issue No.1 - In the negative.
Issue No.2 - In the negative
Issue No.3 - In the negative
Issue No.4 - In the negative
Issue No.5 - In the negative
Issue No.6 - In the negative
Issue No.7 - In the affirmative
Issue No.8 - In the negative
Issue No.9 - As per final order
Addl. Issue No.1 - In the affirmative
Addl. Issue No.2 - In the affirmative
Addl. Issue No.3 - In the affirmative
Addl. Issue No.1
framed on 18.12.02 In the negative
Addl. Issue No.2 In the negative
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10. Thus, the court below has dismissed the suit holding that Smt.Lakshmamma was the absolute owner of the suit schedule properties having right to execute the settlement deed, it is a settlement deed only and not a Will as sought to be contended by the appellant, the settlement deed was within the knowledge of plaintiff, settlement deed was acted upon, plaintiff has been in separate possession of the properties allotted to her under the settlement deed, thereby she is estopped from questioning the validity of settlement deed and that the suit is clearly time barred.
11. The learned counsel for the appellant contends that in view of Section 4(b) of Hindu Succession Act to the effect any other law in force immediately before commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act, Section 4(1)(ii) & (iii) of the Hindu Law Women's Rights Act, 1933 (Act No.X of 1933) under which in case of intestate succession of a Hindu male dying without male issue up to third generation, falling to the widow to the exclusion of daughters cannot be applied and 11 thereby the widow of Subbanna did not become the full owner of the ancestral properties left behind by Subbanna and Section 14 of the Hindu Succession Act, 1956 is also not applicable and thus Smt.Lakshmamma was incapable of executing the deed dated 20.02.1970. It is contended that the said deed was not acted upon. It is further contended that based on the averments made in the deed to the effect that possession of the properties would be delivered after the death of Smt.Lakshmamma, it is a Will and not a settlement deed. Thus the appellant is entitled to the reliefs prayed for in the suit and dismissal of the suit by the court below is not sustainable.
12. On the other hand, the learned counsel for the respondents supported the judgment and decree passed by the court below.
13. The point that arises for consideration in this appeal is:
"Whether the impugned judgment and decree passed by the court below suffer from any infirmity or illegality so as to call for interference by this Court?"12
My finding would be in the negative for the following reasons:
14. Husband of the appellant, Sri Mariswamy, was examined as PW-1 and one G Venkatesh as PW-2 on behalf of the appellant and Ex.P1 to P15 were got marked, consisting of Ex.P1 power of attorney in favour of PW-1, Ex.P2 to P14 RTC copies and Ex.P15 mutation register extract.
15. On behalf of respondents, husband of the second respondent Sri M D Chikkanna was examined as DW-1 and three more witnesses as DWs-2 to DW-4 and got marked Ex.D1 to D43. Ex.D1 general power of attorney, Ex.D2 gift deed, Ex.D3 correction gift deed, Ex.D4 registered purchase deed, Ex.D5 endorsement, Ex.D6 copy of demand register, Ex.D7 to D15 RTC copies, Ex.D16 copy of judgment in O S No.61/97, Ex.D17 copy of order sheet in R A No.50/98, Ex.D18 to D23 Kandayam receipts, Ex.D24 settlement deed, Ex.D25 to D31 RTC marked in O S No.61/97, Ex.D32 to D36 kandayam receipts marked in O S No.61/97, Ex.D37 patta book, Ex.D38 to D41 consent letter and receipts, Ex.D42 ration card and Ex.D43 voters list. 13
16. PW-1 deposed to the plaint averments in the chief examination. He has admitted in his cross-examination that he has read the settlement deed in which Sy.No.182 was given to his wife. He has admitted that they are residing in House No.99 for the last 45 years. He has also admitted the khata made in respect of the said house in the name of his wife. However, he has denied the suggestion to the effect that land Sy.No.182 is in possession of his wife. He has admitted that suit item No.2 is made over in the name of Smt.Jayamma as per the settlement deed. He has stated in his cross-examination that suit item No.3 might have been given to Smt.Jayamma and she is in possession thereof.
17. PW-2 G Venkatesh is cousin of Smt.Lakshmamma and resident of the same village Naguvanahalli. He has stated,after the death of Lakshmamma, the house property situated in Naguvanahalli village which was earlier standing in the name of Lakshmamma is in occupation of the plaintiff and she is residing therein, right from her childhood from last more than 50 years. There was no partition of the properties among the plaintiff and 14 defendants. He has denied the suggestion that Sy.No.182 land is being cultivated by the plaintiff. He has admitted execution of a registered settlement deed, but he has stated that he has not read the document.
18. DW-1 has deposed to the contents of the written statement in his chief examination. He has denied suggestion that Smt.Lakshmamma had no right to execute the registered settlement deed. He has also denied the suggestion to deceive plaintiff the said deed is created. He has denied the suggestion that no body is in possession of their respective properties as per the settlement deed. He has denied the suggestion that the suit schedule properties are the joint family properties and not separated.
19. DW-2 B Ashok Kumar has deposed about execution of gift deed by first defendant in favour of defendant No.2.
20. DW-3 & DW-4 have also deposed about execution of the gift deed by the first defendant. The main controversy involved in the suit is competency of Smt.Lakshmamma to 15 execute the settlement deed and therefore the evidence of DW-2 to DW-4 need not be referred to in detail.
21. The court below in Para-11 of the judgment that learned counsel for the appellant conceded the legal position that by advent of coming into force of Hindu Succession Act, the limited interest of Smt.Lakshmamma became full interest. As per Section 6 of the Hindu Succession Act, 1956, hereinafter referred to as `the Act' no doubt daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son as is provided in sub-sections (a) to (c). Proviso to Section 6(1) of the Act reads as follows:
"Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004".
22. Admittedly, the deed in the instant case came into being on 22.02.1970 settling the properties in favour of appellant and respondents in the manner provided therein. The said deed is not questioned and set at naught in any of the 16 proceedings initiated by the appellant. On the contrary, based on the said document, the appellant herself got item No.5 of the suit schedule properties transferred to her name and evidence discloses that appellant is in separate possession of the said property. There is also a suggestion to PW-1 that item No.1 landed property is in possession of the appellant. The said suggestion is denied by the PW-1 but he has asserted that it is in possession of Smt.Lakshmamma. Smt.Lakshmamma is no more and dead person cannot be in possession and therefore PW-1 has not deposed truth before the Court. PW-1 has also admitted allotment of property in favour of first defendant though not in specific terms but by saying, it might have been allotted to her. Transfer of khata in the name of second defendant and payment of kandayam in respect of the said property is admitted by PW-
1. Ex.D24 is an ancient document of more than 30 years old. It is on record that based on the said document, defendant No.1 maintained a suit as against her children and obtained a decree of permanent injunction. The said document having acted upon and in view of proviso to Section 6 of the Act, it cannot be said that there is any merit in the contention raised by the appellant 17 that she would have inherited the suit schedule properties as per Section 6(a) of the Act.
23. It is the contention of the appellant that the deed dated 22.2.1970 is a Will and not settlement deed. It is so contended by the appellant on the basis that there is an averment in the deed to the effect that possession of the properties would be delivered to the settlees only after her death. Based on the fact that house property is transferred to name of the appellant and it was suggested to PW-1 that the land property is in possession of the appellant, it could be inferred that the deed dated 22.2.1970 is acted upon. Rights are transferred in respect of the properties allotted to respective parties and by mere statement that possession would be delivered at a later date, would not make the document as Will as rightly concluded by the Trial Court. The executant of the deed has not retained right of cancellation. The right in the properties has been transferred on the date of execution of the document.
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24. It may be true that parties would have succeeded to the suit schedule properties as per provisions of Section 6(a) of the Act in view of overriding effect of Section 4 of Hindu Succession Act. But the said provision cannot be applied to the present case for more than one reason. Firstly the deed dated 22.2.1970 has been acted upon and the parties are in possession and enjoyment of their respective properties since then. Though the appellant sought to contend that she came to know the said deed only she demanded for partition with the first defendant, change of khata of the house property to her name and her keeping quiet from the date of death of Smt.Lakshmamma in 1987 till 1993, goes against her plea of ignorance about the deed. It has come in evidence of PW-1 himself that landed property and house property settled in favour of appellant are worth lakhs of rupees. If the defendants had an intention to grab the properties, there was no necessity for them to bank upon the settlement deed. They could have suppressed the deed of settlement and prepared some other document in the manner which is more beneficial to them. The contention of the plaintiff that the said document is concocted and fabricated 19 cannot be believed. The appellant having accepted the deed of settlement and acted upon, is not entitled to question the same. In view of the deed dated 22.2.1970 which is acted upon and in view of proviso to Section 6(1) of the Act, the appellant is not entitled to question the deed at this length of time on the ground that Smt.Lakshmamma was a limited owner and incompetent to execute the deed dated 22.2.1970.
25. It is the case of the defendants that the suit filed by the appellant is time barred. It is the case of the appellant to bring the suit within limitation that immediately after death of Smt.Lakshmamma in 1987, she approached the defendant No.1 for partition and at that time through defendant No.1 she came to know of the settlement deed. It is averred in plaint that Smt.Lakshmama had a limited interest in the suit schedule properties and therefore she could not have executed the said deed. Hence the appellant ought to have filed the suit within 12 years as provided under Section 108 of Limitation Act challenging the deed of settlement. Admittedly the suit having not brought within 12 years from the date of settlement deed, 20 the suit filed by the appellant was clearly time barred. Even if date of knowledge of the deed is taken from the date of mutation entry Ex.D5 & D6, the suit is time barred as is provided under Article 113 of the Limitation Act. Therefore, the court below is right in holding that the suit filed by the appellant is time barred.
26. The court below has properly appreciated all the materials on record and has come to correct conclusions. The impugned judgment and decree passed by the court below do not suffer from any infirmity or illegality so as to call for interference.
Accordingly, this appeal is dismissed. The parties are directed to bear their own costs.
Sd/-
JUDGE akd