Karnataka High Court
Ms S Neelamma vs Nil on 5 November, 2018
Equivalent citations: AIRONLINE 2018 KAR 1021, 2019 (1) AKR 243, (2019) 2 HINDULR 290 (2019) 2 KCCR 1929, (2019) 2 KCCR 1929
Author: S.Sunil Dutt Yadav
Bench: S. Sunil Dutt Yadav
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF NOVEMBER 2018
BEFORE
THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV
M.F.A. No.7587/2017 (ISA)
Between:
Ms. S.Neelamma,
W/o Late G.Chandra Shekar,
Aged about 51 Years,
Residing At No.5,
Matman Lane,
Veerapillai Street Cross,
Shivajinagar,
Bengaluru - 560 023. ... Appellant
(By Sri Rukkoji Rao H.S., Advocate)
And:
Nil ...Respondent
This M.F.A. is filed under Section 299 of the Indian
Succession Act, 1925, against the order dated 22.09.2017
passed in P & SC. No.153/2016 on the file of the LIX
Additional City Civil and Sessions Judge, Bengaluru City
(CCH-60), dismissing the application filed under Section
307(2)(II)(a) of the Indian Succession Act, 1925.
This M.F.A. having been heard and reserved on
23.08.2018 and coming on for pronouncement of judgment,
this day, the Court delivered the following:
2
JUDGMENT
This appeal is filed by the appellant-petitioner aggrieved by the order dated 22.09.2017 whereby the Trial Court had rejected the application filed by the petitioner under Section 307(2)(ii)(a) of the Indian Succession Act, 1925 ('the Act' for brevity) while simultaneously reserving liberty to the petitioner to approach the Civil Court to establish title over the schedule property in accordance with law, if so advised.
2. The parties herein are referred to by their ranks before the Court below for the sake of convenience.
3. Late G.Chandrashekar had married the appellant's sister, Smt.C.Lokanayaki on 08.11.2003 and on the death of Smt.Lokanayaki, Chandrashekar married the petitioner. Chandrashekar died intestate on 26.03.2012 and was survived by the petitioner as his sole legal heir. The Bangalore Development Authority 3 (BDA) had allotted the schedule property to the petitioner's sister, Smt.Lokanayaki. The petitioner sought for transfer of Khatha for which the BDA had directed the petitioner to obtain necessary Succession Certificate/Letter of Administration from the Court. Accordingly, the petitioner had applied for Letter of Administration which came to be granted by the learned LIX Additional City Civil & Sessions Judge, Bangalore City (CCH-60) by its order dated 22.09.2017 in P & SC No.153/2016.
4. The Letter of Administration duly signed dated 03.03.2017 was granted as regards the schedule property subject to the following conditions:-
"(i) The petitioner shall not mortgage, charge or transfer by sale, gift, exchange or otherwise of the property shown in the schedule without prior permission of the Court.4
(ii) Further, the petitioner shall not lease the schedule property for a term exceeding five year without the permission of the Court."
Subsequently, the petitioner obtained transfer of Khatha of the schedule property into her name by submitting the Letter of Administration obtained from the Court.
5. In view of the restrictions imposed as regards creation of encumbrance and as the petitioner wanted to sell the property, an application came to be filed under Section 307(2)(ii)(a) of the Act read with Section 151 of C.P.C. seeking leave to sell the schedule property to third parties for sale consideration. In the affidavit filed in support of the said application, the petitioner stated that she hailed originally from Kanchipuram District of Tamil Nadu and after her marriage with late G.Chandrashekar, she had moved to Bengaluru and had been residing in Bengaluru. The 5 petitioner states that as she did not have children from within the wedlock with late G.Chandrashekar and as her mother and brothers were permanent residents of Changalpet Town, Kanchipuram District, Tamil Nadu, she intended to relocate to Tamil Nadu. Further, in view of her financial commitments, she had decided to sell the property for valuable consideration and hence, had sought for permission to sell the petition schedule property.
6. Citation of the application was published in the newspaper and as none appeared and contested the application, the petitioner was directed to adduce evidence. The petitioner filed her affidavit and the matter was posted for arguments. The Court, however, rejected the said application holding that the Court had issued Letter of Administration in exercise of the testamentary jurisdiction as sought for by the petitioner and held that when the Letter of Administration was 6 obtained for the purpose of managing the property of the deceased, the petitioner was required to do acts which were necessary for administration of the property and could not seek to sell the property. The Court while observing that no case was made out that the schedule property was under the threat of destruction, wastage and that it was not possible to manage the property, dismissed the application, declining to grant relief as prayed for.
7. The said order has come to be challenged before this Court and the appellant contends that the finding of the Court that it was exercising testamentary jurisdiction and that the petitioner ought to have invoked civil jurisdiction to sell the schedule property and could not approach the Court exercising jurisdiction under the Act was erroneous and that Section 307(2)(ii)(a) of the Act was unambiguous and 7 permission to sell could be granted by the Court, which had granted the Letter of Administration.
8. The petitioner further contends that the Administrator appointed had right to sell the property with previous permission of the Court as per Section 307(2)(ii)(a) of the Act.
9. An important contention that was raised was that the petitioner was the sole legal heir of the deceased who was a Class-1 legal heir and hence, the legal owner of the schedule property, which aspect of the matter was not considered.
10. The point that arises for consideration in this appeal is:-
"Whether the rejection of permission to sell the property by the impugned order is liable to be set aside?"8
11. The admitted facts being that the Letter of Administration was sought for by the Bangalore Development Authority when the Khatha was sought to be transferred into the petitioner's name and it is for this limited purpose that the Letter of Administration was applied for and obtained. The Khatha having been transferred to the petitioner's name on 12.06.2017, the purpose for which the Letter of Administration was obtained stood satisfied. There was no debt or legal liability of the deceased that was required to be satisfied and hence, nothing more was left for the administration of the estate of the deceased.
12. The petitioner relies on the judgment in the case of Ajit K. Saha vs. Nagendra N. Saha & Another reported in AIR 1960 Cal. 484 and the observations relevant to the present case at para-13 are as follows:-
9
"13. The question then arises -- was Panchurani still administering the estate of her husband? The mere fact that Letters of Administration were obtained by Panchurani and orders have been passed in such proceedings upto December 21, 1946, does not necessarily mean that the estate of the deceased husband was still under administration and that Panchurani could only function as administratrix under Section 211 of the Indian Succession Act. The administration of the estate would be complete when the assets of the estate are realised and the debts due by the estate are all paid off. It would also be complete if the debts due by the estate are all time-barred and the estate is not legally liable to pay any other creditor. When the administration is completed in the sense that the debts due by the deceased are all paid off and/or are no longer enforceable in law, the widow or heiress would be in possession of the estate no longer as administratrix under Section 211 of the Indian Succession Act but she would be administering her own estate on her own 10 right as heiress. As such, she is entitled to deal with her own estate without any leave of the court under Section 307 of the Indian Succession Act. (See In re; Estate of Indrani; MANU/UP/0304/1930 : AIR 1931All212 ; In the Goods of Nursingh Chunder, 3 Cal WN 635, and Lakshmi Narain v. Nandarani, 9 Cal LJ 116.)............."
13. Accepting the observations made in the above case, it can be said that in the facts of the present case, the role of the petitioner had come to an end in the capacity of an administrator, once the Khatha stood transferred into the name of the petitioner. The fact that property was not subjected to any obligation/liability of the deceased, which is not forthcoming despite public notice as regards the application would point out that administration of the estate of the deceased was no longer necessary. The Trial Court has erred in rejecting the application through self imposed fetters by observing that it is 11 exercising power of testamentary jurisdiction for grant of Letter of Administration only. The Court ought to have clarified that the question of entertaining the application did not arise in light of the observations made in para No.12 above.
14. The Trial Court ought to have taken note of the fact that the petitioner was the sole heir and hence ought to have held that the petitioner consequent to having obtained change of Khatha was no more exercising rights of administrator, but was exercising rights as a true owner, having inherited the property as a legal heir. Accordingly, the application itself ought to have been disposed of as being superfluous.
15. The Trial Court has adopted an erroneous approach in directing the petitioner to establish title over the schedule property before the Civil Court. In the absence of any dispute, the petitioner's right to succession needs no declaration and vesting of 12 ownership upon the death of the petitioner's husband is by operation of law.
16. Accordingly, the appeal is allowed in part. The impugned order 22.09.2017 passed in P & SC No. 153/2016 is set aside. There was no warrant for the petitioner to have sought for permission under Section 307(2)(ii)(a) of the Indian Succession Act, 1925, in light of the observations made in para Nos.12 to 14 (supra).
Sd/-
JUDGE VGR/RS/* Ct:mhp