Bhimappa Ramachandrappa Amate vs Shrikant Maruthi Mirajakar And Ors. on 26 August, 2004

[Cites 6, Cited by 2]

Karnataka High Court

Bhimappa Ramachandrappa Amate vs Shrikant Maruthi Mirajakar And Ors. on 26 August, 2004

Equivalent citations: ILR2004KAR5047, [2005(3)JCR349(KANT)]

ORDER 22 RULE 5 - Matter remanded on LR application and summary proceedings pending - Right granted in favour of LR - Legality of - Plaintiff awidow - Suit for declaration filed claiming absolute ownership - died during pendency of proceedings -Application filed to bring one S on record as legal representative of the deceased plaintiff - S who impleaded himself as LR of the plaintiff based on alleged Will, the Trial Court in enquiry held that the LR has proved the execution of the Will in his favour by the deceased plaintiff- Whether the lower appellate Court could give a finding on the question whether the appellant who sought to comeon record as LR of the original plaintiff could get a declaration in his favour on the alleged Will on which herelied to come on record as legal representative of the plaintiff. HELD - The first appellate Court could not have allowed the appeal and granted a declaration in favour ofthe 1st respondent LR basing the same on the alleged Will set up by the LR during the summary proceeding under Order 22 Rule 5 CPC.

Held:

Thus, under Order 22 Rule 5 an appellate Court before determining the question could direct any subordinate Court totry the question and to return the records together with the evidence if any recorded in such proceeding and its findings and reasons therefore and the appellate Court may take those findings into consideration and pass make its own order. These proceedings are only summary proceedings. In similar circumstances, this Court in RFA 6/96 disposed of on 17.4.2004 has held that an enquiry made after an order made by this Court under Order 22 Rule 5 CPC is on a summary proceeding andany order passed in the appeal before this Court after impleading the LR. on the finding given by the lower Court will be in respect of the rights of the parties in the suit for whom the L.R. represents. Any such declaration given in favour of either the plaintiff or the defendant could decide only their rights and notthe rights of the L.R. and under such circumstances, the L.R. cannot rely upon the findings given in the summary enquiry and claim his individual rights in respect of the suit properties.

(B) HINDU SUCCESSION ACT, 1956 - SECTION 14 (1), 15-Trial Court passing a order by giving a finding that the application filed by the appellant to come on record as a LR could be treated as a finding in favour of the 1st respondent and holding that the respondent No. l is entitled for the property of the deceased plaintiff - HELD - Respondent No.l who is the LR of the late plaintiff cannotstraight away execute the decree on the finding given onthe application filed by him to come on record as L.R. But he can do so only after getting a declaration to the effect that he is entitled to the share of the deceased plaintiff in view of the alleged Will executed by the late plaintiff.

In this appeal, this Court could only declare that the late Nagavva is entitled to 1/4'1' share in the suit schedule properties. If the first respondent who has set up a Will proves the Will before a competent Court and gets declaration that he is entitled for the share of the plaintiff Nagavva then the first respondent - L.R. can seek to execute the decree and get the suit properties divided in accordance with the share of the plaintiff.

(C) HINDU SUCCESSION ACT, 1956 - SECTIONS 14(1), 15- Right of co-widow - Husband dying Intestate - Summedby 2 co-widows and one adopted son - Female Hindu alsodying Intestate - HELD - The property of a female Hindudying intestate shall devolve firstly upon the sons and daughters including the children of any pre-deceased sonor daughter and the husband and they are to be preferred to the other heirs who come under Clause (b), (c), (d) or(e). The co-widow is not one of the heirs mentioned in Section 15 of the Act and therefore she will not inherit the property from the co-widow. Therefore, the only heir who could inherit the property of the co-widow is the first defendant who is the adopted son of the husband ofthe co-widow. Therefore, her entire share goes to the first defendant being the only heir of her husband.

Both co-widows together get l/4th share in the properties of the late husband. When one co-widow dies, the otherdoes not interest the properties of the other co-widow inview of Section 15 of the Hindu Succession Act.

Appeal allowed.

JUDGMENT

A.M. Farooq, J.

1. This second appeal is by the l5t defendant in O.S.No. 6/74 on the file of the learned Civil Judge, Gadag and it is directed against the judgment and decree dated 3.3.2000 in R.A.No. 170/89 on the file of the learned III All. District Judge, Dharwad, allowing the appeal and reversing the judgment and decree passed by the Trial Court.

2. The brief facts of the case are that one Smt. Nagavva Kom Narasappa Navale filed the suit for declaration claiming that she is the absolute owner of Western half of the suit schedule l(a), l(b) and l(c) and the entire property described in Schedule l(d) and half of the property described in l(c) to the eastern side, which are in possession of defendant Nos. 2 to 5 as tenants, and that she is entitled for the compensation towards the value of the land and for consequential relief of injunction.

3. The case of the plaintiff was that the suit properties formally belong to her husband Narasappa Navale, who was in the actual possession and enjoyment of all the properties. He died in 1952 leaving behind him two of his widows. One widow was the plaintiff and the other is one Bayavva who died in the year 1972. After the death of her husband, the plaintiff and other widow Bayavva were enjoying the suit properties and after some time, the Eastern side of schedule l(c) of property was leased to the deceased father of the 2nd defendant and husband of 3rd defendant and to 4th and 5"1 defendants who had been cultivating the land from then on. That in the remaining suit property i.e., western half of the schedule (a), (b) and (c), the plaintiff and the other widow Bayavva were getting the lands cultivated on hire basis and that the tenants were paying the land revenue on their behalf since both of them were women. It is stated that the 1st defendant - Bhimappa Ramachandrappa Amate had gone to the suit lands some days back and started obstructing the plaintiff in the enjoyment of the suit properties claiming that he has been adopted by her- late husband Narasappa Navale under a registered adoption deed in the year 1951 and further claimed that his name has been entered in the record of rights in respect of the suit lands and thus he claimed the right, interest and title over the suit properties. The plaintiff contended that the 1st defendant was not the adopted son of her deceased husband and she also denied the adoption deed. However, the plaintiff made an alternative contention contending that if the 1st defendant is held to be the adopted son of her deceased husband Narasappa, she and her co- widow Bayavva had the right to claim maintenance in the suit properties after the death of their husband. As such and as provided under Section 14(1) of the Hindu Succession Act, 1956, she and her co-widow Bayavva have become the absolute owners of all the properties. The plaintiff contended that the 1st defendant was obstructing the plaintiff from enjoying the suit schedule properties and that the said defendant is of bad character. In view of the alleged obstruction from the 1st defendant, the plaintiff filed the suit seeking declaration and other consequential reliefs.

4. The 1st defendant filed his written statement contending that the suit of the plaintiff is false and is not maintainable in law and he further contended that he is the adopted son of the late Narasappa and his correct name is Bhimappa and his adoptive father's name is Narasappa Navale. He has admitted that the suit properties were the ancestral properties of late, Narasappa, his adoptive father who died in the year 1952; but denied that the plaintiff and Bayavva, the second wife of Narasappa took possession of the suit properties and were enjoying the same after the death of late Narasappa. He also denied about the alleged lease to the tenants and Ors. by the plaintiff and also about the payment of land revenue. He also denied that he has obstructed the plaintiff from enjoying the suit lands and further denied that the statement made by the two widows that they did not consent for the adoption was not true. He denied the averments made by the plaintiff. According to him, his natural father consented for his adoption and accordingly on 19.8.1950, as per the Hindu Rights and Customs at Malawad village in Ron Taluka the late Narasappa took him in adoption. According to the 1st defendant, the plaintiff was also present at the time of adoption and that she had taken active part in the adoption ceremony and even a photo was taken in that regard. He had stated that when the adoption took place, he was a minor and he was looked after by his natural father. It is stated that an adoption deed was executed by his adoptive father Narasappa on 4.8.1951 and hence, the plaintiff and her co-widow Bayavva were estopped from denying the adoption. According to the 1st defendant, he had acquired all the rights of his adoptive father and has become the co-parcener in the family and he has equal rights of ownership with that of the late Narasappa and he is in joint possession of the suit schedule properties. He has stated that the properties are being enjoyed by himself and the two widows. He has admitted that Narasappa, his adoptive father died in the year 1952 leaving himself as the sole co- parcener and the plaintiff and Bayavva. Being widows, both had the right of maintenance without absolute right of ownership. He had also disputed the claims made by the plaintiff under Section 14(1) of the Hindu Succession Act, 1956, which according to him is not attracted and the plaintiff has never become owner of the suit properties. He had further contended that the plaintiff and her co-widow Bayavva had only maintenance right after the death of Narasappa in 1952. It stated that the plaintiff could not pull on well with the 1st defendant who according to him took Rs. 5,000/- and 20 tholas of gold in lieu of her maintenance from the 1st defendant as per the settlement arrived at before the elders. Thereafter, the plaintiff has been staying at Bijapur with her brothers and she never came back to Malawad. The name of the 1st defendant is entered in respect of properties in the record of rights as the owner of the suit properties. He submitted that there is no clause to the effect that two widows of the late Narasappa should enjoy all the family properties during their life time as mentioned in the adoption deed, is redundant, null and void and that the parties have not acted upon it. He contended that there was no cause of action for the suit and denied that he had caused any alleged obstruction to the plaintiff in her enjoyment of the suit properties. He also contended that defendant Nos. 2 to 5 were not the tenants as alleged by the plaintiff and according to him, it is on their instigation, the plaintiff had filed the suit and sought for dismissal of the suit. Defendant No.2 filed consent written statement and submitted that the suit may be decreed as prayed for by the plaintiff. The said written statement was adopted by the defendant Nos. 3 to 5.

5. On the above pleadings, the Trial Court framed the following issues:

1. Whether the plaintiff proves her title?

2. Whether the plaintiff proves that all the items of the properties except eastern half portion of Sy.No. 117/1 were in her exclusive possession on the date of institution of the suit?

3. Whether the defendant Nos. 2 to 4 prove that they are in possession of suit item No.3 - property bearing S.No. 117/1 as tenants?

4. Whether defendant No. 1 proves that he is the adopted son of Narasappa Navale?

5. Does defendant No. 1 prove that he is the absolute owner in possession of all the items of properties?

6. Whether the plaintiff proves that the suit properties have been given to the plaintiff and Bayavva, in lieu of their maintenance?

7. Whether the plaintiff proves that she is entitled to remain in exclusive possession and enjoyment of the properties during her life time?

8. Whether the plaintiff is entitled for declaration and also perpetual injunction as prayed in the suit?

9. To what relief or reliefs are the parties entitled?

6. During trial, the plaintiff examined three witnesses including her and got marked Exs.P-1 to P-27. Defendant No. 1 himself was examined as DW-1 and examined six more witnesses. On appreciation of the entire evidence on record, the Trial Court negatived the contention of the plaintiff, but held that the 1st defendant has proved that he is the adopted son of the late Narasappa, husband of the plaintiff and further held that the suit properties have been given to the plaintiff and Bayavva, in view of maintenance and ultimately dismissed the suit. Against the said order of dismissal, the plaintiff filed RFA No. 247/83 before this Court and during the pendency of the said appeal, the plaintiff- Nagavva died and the present 1st respondent - Shrikant Maruthi Mirajakar made an application to bring himself on record as legal representative of the deceased plaintiff.

7. This Court under Order 22 Rule 5 of the CPC directed the learned Civil Judge, Gadag, to enquire the matter. The Trial Judge who enquired into the matter gave a finding on the question as to whether the applicant who sought for getting himself impleaded as L.R. in the first appeal on the strength of an alleged will. The Trial Court by an order dated 17.11.88 in Misc. Application No. 120/87, allowed the application holding that the applicant has proved the execution of the Will in his favour by the deceased plaintiff-Nagawwa. After the report, the 1st respondent was impleaded as the L.R. of the deceased plaintiff and as the appellant in the first appeal.

8. Subsequently, on the point of jurisdiction RFA 247/82 was transferred to the Court of Prl. Dist. Judge, Dharwad for disposal and it is the said Court which has ultimately passed the judgment which is impugned in this second appeal. This Court while admitting the appeal formulated the substantial question of law " whether the Court below has not erred in law in assuming that the original plaintiff had any right to make a will and upholding the same permitting Srikanth to pursue the proceedings?"

9. I have heard Sri Tarakaram, learned Senior Counsel appearing for the appellant and Sri G.S. Khannur learned Counsel appearing for the respondent No. 1

10. It was contended by the learned Senior Counsel Sri Tarakaram that the judgment and decree passed by the Court below reversing the judgment and decree passed by the Trial Court cannot be upheld. He submitted that the appellant has proved that he is the adopted son of late Narasappa and the evidence on record show that the plaintiff alongwith her co-widow had only a right of maintenance and no property has been put in their possession and hence, the question of the plaintiff and her co-heir becoming the absolute owners of the property under Section 14(1) of the Hindu Succession Act does not arise.

11. Nextly, the learned Counsel submitted that the Lower Appellate Court had no jurisdiction to grant a declaration to the L.R. of the plaintiff in respect of his individual right namely, the claim made by him that he has become the owner of the properties under the alleged will which could have gone to the share of late Nagavva. On the other hand, Sri Khannur, learned Counsel appearing for the respondent submitted that the judgment and decree passed by the lower Court reversing the decree passed by the Trial Court is just and correct. According to the learned Counsel, what the Lower Appellate Court has done is to declare the share of the plaintiff which the appellant is entitled as a L.R. of the plaintiff. He further contended that this Court while giving a direction to the lower Court on an application filed by the respondent-1 to come on record as an L.R. of the deceased Nagavva had directed the Trial Court to treat the application as an original proceeding and to give a finding as to whether the will has been proved and when the Trial Court after a full pledged trial has come to the conclusion that the alleged will has been proved to be that of the original plaintiff then there is nothing more to be done and the appellant has to be declared as the owner of the property belonging to late Nagavva.

12. After hearing the learned Counsels appearing for the parties, in any view, the following substantial question of law arise in this appeal:

"1. Whether the Lower Appellate Court could give a finding on the question whether the appellant who sought- to come on record as L.R. of the original plaintiff could get a declaration in his favour on the alleged will on which he relied to come on record as legal representative of the plaintiff?

2. Whether the order passed by the Trial Court while giving a finding on the application filed by the appellant to come on record as a L.R. could be treated as a finding in favour of the first respondent and to hold that the respondent -1 is entitled for the property of the deceased plaintiff"?

13. It is an admitted fact that the plaintiff is one of the widows of late Narasappa. The said Narasappa had two wives the plaintiff and Smt. Bayavva. Narasappa died in the year 1952 leaving behind him the two widows the plaintiff and Bayavva and the adopted son the first defendant. The Trial Court while considering the question appears to have gone on the correct footing and rightly come to the conclusion that the question has to be decided in accordance with the Hindu Succession Act on the ground that the two widows are entitled only for maintenance and hence, the properties in their possession could be considered to be properties which have come to them for maintenance and hence in view of Section 14 of the Hindu Succession Act they become the absolute owners of their respective share. However, it went wrong in holding that the plaintiff and the first defendant has equal shares in the properties in question.

14. On the admitted facts, both the plaintiff and Bayavva the other co-widow are also the heirs to the properties of late Narasappa. The co-widow Bayavva died in 1972. As already stated Narasappa died in 1952 leaving behind the two widows and the first defendant his adopted son. Therefore, on the death of Narasappa the first defendant gets his half share plus the quarter share from his father the late Narasappa. The other quarter share will go to both the plaintiff and her co-widow Bayavva in equal shares. According to Hindu Law even if there arc more widows than one all the widows shall get only one share. It is also not disputed that Bayavva died in 1972. Then Section 15 of Hindu Succession Act is to be applied. Section 15 of the Act reads as follows:

"General Rules of succession in the case of female Hindu - (1) the property of a female Hindu Dying intestate shall devolve according to the rules set out in Section 16

(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;

(b) secondly, upon the heirs of the husband;

(c) thirdly, upon the mother and father;

(d) fourthly, upon the heirs of the father, and

(e) lastly, upon the heirs of the mother.

(2) Notwithstanding anything contained in Sub-section (1),-

(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in Sub-section (1) in the order specified therein, but upon the heirs of the father; and

(b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in Sub-section (1) in the order specified therein, but upon the heirs of the husband."

15. Thus, as could be seen from Section 15 of the Act the property of a female Hindu dying intestate shall devolve firstly upon the sons and daughters including the children of any pre- deceased son or daughter and the husband and they are to be preferred to the other heirs who come under Clause (b), (c), (d) or (e). The co-widow is not one of the heirs mentioned in Section 15 of the Act and therefore she will not inherit the property from Bayavva. Therefore, the only heir who could inherit the property of the co-widow is the first defendant who is the adopted son of the husband of Bayavva. Therefore, her entire share goes to the first defendant being the only heir of her husband.

16. The Lower Appellate Court while considering the appeal framed the following points as additional issues;

i) Whether the appellant proves that he is entitled for partition as claimed?

ii) Whether the appellant proves that the deceased original plaintiff has duly executed a will in his favour as contended?

iii) Whether the respondent-defendant No. 1 proves after the death of the original plaintiff the entire estate devolves on him as contended and as to whether the plaintiff is entitled for the relief sought for?

17. The learned Appellate Judge has held that the appellant was entitled for partition as claimed and further held that the appellant has proved that the plaintiff had executed a will in favour of the appellant who is the L.R. of the original plaintiff and further held that the appellant is entitled for the relief sought for and negatived the contention of the first respondent - appellant that after the death of the original plaintiff the entire estate devolves on him.

18. First of all, let me consider the contention raised by the learned Counsel appearing for the respondent that this Court in RFA 247/83 had passed a specific order while considering the application filed by the L.R. namely, Srikanth Maruthi Mirajakar the respondent-1 herein directing the Trial Court that the application to be treated as original proceedings on his file and give findings after enquiry and communicate the findings to this Court.

19. It is contended by Sri Khannur, learned Counsel appearing for the respondent that when a specific direction is given by this Court on the application filed by the first respondent directing the Trial Court to treat the matter as an original proceeding and give a finding on the question as to whether the alleged will set up by the legal representative who is the first respondent herein has been proved amounts to finding on merits and a final adjudication and therefore, it cannot be held to be a summary proceeding. The learned Counsel submitted that eventhough it is true that this Court could give a direction to the Lower Court to give a finding or to hold an enquiry on a question in a matter remanded to that Court, this Court can also give a direction to treat the proceeding as a suit and give a finding on merits.

20. In my view, as rightly contended by the learned Counsel appearing for the respondent, the direction given by this Court should be treated as a direction given under Order 22 Rule 5 of CPC. Order 22 concerns with the death, marriage and insolvency of parties and Order 22 Rule i states that the death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives and the other rules are the procedures that has to be adopted when either the plaintiff or plaintiffs, defendant or defendants dies during the course of the proceedings. Under Order 22 Rule 4A when a party dies and when there is no L.R. to represent the dead party, the Court may also appoint an administrator or an officer of the Court to represent the estate of the deceased to continue the suit. But the relevant Rule for the purpose of our case is Rule 5 which reads as follows:

"R.5 Determination of question as to legal representative - Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court.

Provided that where such question arises before an Appellate Court, that Court may, before determining the questions, direct any subordinate Court to try the question and to return the records together with evidence, if any, recorded at such trial, its findings and reasons therefor, and the Appellate Court may take the same into consideration in determining the question."

21. Thus, under the above provision an Appellate Court before determining the question could direct any sub-ordinate Court to try the question and to return the records together with the evidence if any recorded in such proceeding and its findings and reasons therefore and the Appellate Court may take those findings into consideration and pass make its own order. These proceedings are only summary proceedings. In similar circumstances, this Court in RFA 6/96 disposed of on 17/4/2004 has held that an enquiry made after an order made by this Court under Order 22 Rule 5 CPC is on a summary proceeding and any order passed in the appeal before this Court after impleading.the L.R. on the finding given by the lower Court will be in respect of the rights of the parties in the suit for whom the L.R. represents. Any such declaration given in favour of either the plaintiff or the defendant could decide only their rights and not the rights of the L.R. and under such circumstances, the L.R. cannot rely upon the findings given in the summary enquiry and claim his individual rights in respect of the suit properties.

22. Even in the present case, the late plaintiff Nagavva had sought for a declaration of her rights in respect of the suit schedule properties. Eventhough she failed before the Trial Court in getting a decree the Lower Appellate Court has granted a decree and on the footing that the L.R. of the deceased plaintiff could be granted a decree in view of the alleged will set up by him. The question is whether the Lower Appellate Court could have given a decree in favour of a legal representative in his individual capacity on the basis of the Will set up by the L.R.

23. In my view, such declaration cannot at all be given by the Lower Appellate Court in favour of legal representative. What could be granted is a declaration in favour of the original party for whom the L.R. represents. That is, the Court cannot consider the right of the L.R. It can only consider the rights of the deceased party for whom the L.R. represents. In the present case, what could be gathered from the judgment of the Trial Court is that the Trial Court has gone on considering the question as to whether the respondent-1 has proved that the late plaintiff has executed a Will in his favour and whether under the Will he acquires the properties of the late Nagavva. As rightly contended by the learned Counsel appearing for the appellant such a declaration cannot at all be given by the Lower Appellate Court. As held by this Court in RFA No. 6/96 (Doddamuniswamappa by L.Rs. v. Laxmamma and Ors., RFA No. 6/96) the Lower Appellate Court could have just considered the question whether the deceased plaintiff ha got any right in respect of the suit schedule properties and if so could have just declared her rights. Therefore, the declaration given by the Lower Appellate Court in favour of the appellant on his plea of his acquiring the suit property under the alleged Will cannot be upheld. The Lower Appellate Court has no jurisdiction to give such a declaration.

24. However, this matter is before this Court in the second appeal and on the admitted facts there cannot be any doubt that the late plaintiff was entitled for a share in the properties of her husband. First of all, there is no dispute that the late plaintiff was in possession of some of the suit schedule properties towards the maintenance of herself and her co-widow Bayavva, She and her co-widow together has got l/4lh share in the properties of her late husband Narasappa. When Bayavva died and the plaintiff does not inherit any of the properties of Bayavva in view of Section 15 of the Hindu Succession Act. Therefore, the only share the late plaintiff Nagavva gets is the l/4lh in the suit schedule properties. Therefore, what is to be declared is the entitlement of the said share by her. On the admitted evidence on record late plaintiff Nagavva is entitled to 1/4"1 share of the suit schedule properties.

25. It is submitted on behalf of the, appellant that the late Nagavva had executed a Will in which the suit schedule properties1 are mentioned and therefore the appellant as her L.R. is not entitled to seek her shares in all properties. That may be so, but that question is not to be considered in this appeal. In this appeal, this Court could only declare that the late Nagavva is entitled to l/4lh share in the suit schedule properties. If the first respondent who has set up a Will proves the Will before a competent Court and gets declaration that he is entitled for the share of the plaintiff Nagavva then the first respondent-L.R. can seek to execute the decree and get the suit properties divided in accordance with the share of the plaintiff.

26. Thus, on an entire reconsideration of the materials on record, I hold that this second appeal involves the above formulated substantial question of law and they are answered as follows:

The First Appellate Court could not have allowed the appeal and granted a declaration in favour of the first respondent- L.R. basing the same on the alleged will set up by the L.R. during the summary proceedings under Order 22 Rule 5 CPC.

Secondly, the respondent-1 who is the L.R. of the late plaintiff cannot straight away execute the decree on the finding given on the application filed by him to come on record as L.R. But he can do so only after getting a declaration to the effect that he is entitled to the share of the deceased plaintiff in view of the alleged Will executed by the late plaintiff.

27. In the result, this appeal is allowed with the above findings on the substantial question of law and the decree granted by the lower Court is modified holding that the late plaintiff Nagavva is entitled to l/4th share of the suit schedule properties. The appellant who is the first defendant is entitled to the remaining 3/4th share of the suit schedule properties.

Unlock Advanced Research with PRISMAI

Karnataka High Court