Karnataka High Court
D.M. Venkataramanappa And Ors. vs Chikkadaddappa And Ors. on 25 January, 2006
Equivalent citations: ILR2006KAR2596, 2007(1)KARLJ154, AIR 2006 KARNATAKA 154, 2000 (9) SCC 175, 2006 (3) ALL LJ NOC 582, 2006 (3) ABR (NOC) 566 (KAR), 2006 (1) AIR BOM R 152, 2006 (2) AIR KANT HCR 364, 2006 AIHC 1628, (2006) 2 HINDULR 245, (2006) 2 MARRILJ 270, (2006) 3 RECCIVR 190, (2007) 1 KANT LJ 154, (2006) 4 ICC 41, (2006) 45 ALLINDCAS 238 (KAR), (2006) 1 KCCR 503, (2007) 2 CIVLJ 592, (2000) 2 CURLR 786, (2000) 3 ESC 1950, (2000) 3 LAB LN 529, (2000) 3 UPLBEC 2296, (2000) 4 SCT 448, (2000) 4 SERVLR 479, (2000) 6 SUPREME 552, (2000) 7 JT 442 (SC), (2000) 87 FACLR 23, 2000 SCC (L&S) 879, (2018) 3 BOMCR(CRI) 485, 2006 (2) AIR KAR R 364
Author: Anand Byrareddy
Bench: Anand Byrareddy
JUDGMENT Anand Byrareddy, J.
1. These two appeals by the same appellants are filed against a common order on I. A. Nos. II and III filed by them before the trial Court.
2. The facts of the case are as follows : The appellants claim that they, along with the respondents, except Respondent No. 4, constituted a Hindu Joint Family. It is stated that the father of appellant No. 1 had three wives. Appellant No. 1 and father of appellant No. 3 are Children of Bhagyamma, the third wife. Respondents Nos. 1 to 3 are born to Chikka Akkayamma, the second wife. Dodda Akkayamma, the third wife of Munishamappa, did not have any children. During the lifetime of late Munishamappa, appellant No. 1 and one Muniyappa had filed O.S. 185/75. The said Muniyappa, the plaintiff therein, and Munishamappa, defendant, had entered into a compromise and the suit was accordingly decreed in terms of the compromise. At para 15 of the compromise petition, it was recorded as follows It is agreed that the eastern portion of Survey No. 88 measuring 2 acres 4 guntas is left for the maintenance of Chikka Akkayamma, the mother of defendants Nos. 1 to 3 and Dodda Akkayamma and they shall hold the said land for their lifetime.
Dodda Akkayamma having died intestate as on 17-11 -1991, it is the claim of the appellants that the property which was provided for the maintenance of Dodda Akkayamma and Chikka Akkayamma reverted to the family and is in the joint possession of the parties. The respondents, seeking to alienate the said property to the exclusion of the appellants, the suit was brought along with applications under I. A. Nos. II and III seeking to restrain the respondents from alienating the property and from changing the nature of the property, respectively.
The defendants contended that the properties having been conferred on Dodda Akkayamma, she became an absolute owner of the property by virtue of Section 14(1) of the Hindu Succession Act, 1956 (hereinafter referred to as 'the Act' for brevity) and since she lived, during her lifetime, with Defendant No. 1, of her volition, has bequeathed her interest in the subject property to Defendants Nos. 5 to 7 under a registered Will dated 13-3-1991. It is Defendant No. 1 and his children who have been in possession and enjoyment of the suit property. Therefore, the appellants are not entitled to any order of injunction.
The trial Court, on consideration of the applications and objections thereto, held that in terms of the Will executed by Dodda Akkayarnma, mutation entries have been effected in favour of Defendants Nos. 5 to 7 and it is also noticed that appellants Nos. 1 to 3 had themselves filed a statement before the revenue authorities on 2-11-2002 admitting the Will. Though the counsel for the appellants had taken a stand that the same was a got up document, the Court was not convinced with the explanation and also noticed that for over a period of ten years the appellants had not taken any steps to claim the said disputed property and having regard to the admitted legal position, the trial Court found that there was no case made out by the appellants for injunction.
3. Smt. T. N. Manjula Devi, Senior Advocate, appearing for Manjula Devi Associates for the appellants, contends that the grant of the subject property in favour of late Dodda Akkayamma for her maintenance during her lifetime, to be a restricted estate in the property and since the intention under the said compromise can be gleaned from the circumstance that in so far as the allotment of shares in respect of other members of the family is concerned, it is expressly conferred absolutely. This would presuppose that the property allotted to the share of Dodda Akkayamma for her maintenance was a restricted estate and the property would revert to the family on her demise. Therefore, it is not open for respondents Nos. 5 to 7 to claim any exclusive right in respect of the said property.
4. It is contended that the trial Court, while considering the case for injunction by the other members of the family, has misguided itself in examining the prima facie title to the property instead of considering a prima facie case in respect of the claim and in this regard, would rely on the judgment reported in the case of Giroji Rao @ Girmoji Rao v. Shivashankara Reddy and Ors. 1991 (1) KCCR SN 34.
5. In so far as the claim that there was a restricted estate conferred on the deceased Dodda Akkayamma is concerned, the Senior Advocate seeks to rely upon the judgments in the case of G. Appaswami Chettiar and Anr. v. R. Sarangapani Chettiar and Ors. ; Bhura and Ors. v. Kashiram ; and Kothi Sathyanarayana v. Galla Sithayya and Ors. .
6. Per. contra, counsel for the respondents, would seek to support the order of the trial Court and would further submit that the subject property has been alienated even prior to the suit and the suit is infructuous in the absence of third party purchasers and that the suit would fail both on facts and in law and hence, the appeal is an exercise in futility.
7. On these rival contentions, I proceed to consider, whether the trial Court was right in holding, prima facie, that the estate conferred on Dodda Akkayamma enlarged into her absolute property in terms of Sub-section (1) of Section 14 of the Act. The text of Section 14 is extracted below :
14. Property of a female Hindu to be her absolute property:
(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation :- In this sub-section, "Property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription or in any other mariner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.
(2) Nothing contained in Sub-section (1) shall apply to any property acquired by way of gift or under a Will or any other instrument or under a decree or order of a civil Court or under an award where the terms of the gift, Will or other instrument or the decree, order or award prescribe a restricted estate in such property.
The scope of Section 14 of the Act has been considered by the Supreme Court in the case of C. Masilamani Mudaliar and Ors. v. The Idol of Sri Swaminathaswami Swaminathaswami Thirukoli and Ors. . The entire case law has been reviewed and the law has been stated with reference to decided cases. The Supreme Court has reiterated with approval the view of the Court in Tulasamma v. V. Sesha Reddi where a bench of three Judges had considered a right acquired under a Will and wherein it was held as follows (Paras 3 & 4):
Whatever be the kind of property, movable or immovable, and whichever be the mode of acquisition, it would be covered by Sub-section (1) of Section 14, the object of the Legislature being to wipe out the disabilities from which a Hindu female suffered in regard to ownership of property under the old Sastric law, to abridge the stringent provisions against proprietary rights which were often regarded as evidence of her perpetual tutelage and to recognize her status as an independent and absolute owner of property.
And, further, Sub-section (2) must, therefore, be read in the context of Sub-section (1) so as to leave as large a scope for operation as possible to Sub-section (1) and so read, it must be confined to cases where property is acquired by a female Hindu for the first time as a grant without any pre-existing right, under a gift, Will, instrument, decree, order or award, the terms of which prescribe a restricted estate in the property.
And has further quoted the judgment in Mangat Mal v. Punnidevi wherein a right acquired by a family under an award was considered and where it was held as under (Para 18) :
Maintenance as we see it necessarily must encompass a provision for residence. Maintenance is given so that the lady can live in the manner, more or less, to which she was accustomed. The concept of maintenance must, therefore, include provision for food and clothing and the like and take into account the basic need of a roof over the head. Provision for residence may be made either by giving a lump sum in money, or property in lieu thereof. It may also be made by providing, for the course of the lady's life, a residence and money for other necessary expenditure. Where provision is made in this manner, by giving a life interest in the property for the purposes of residence, that provision is made in lieu of a pre-existing right to maintenance and the Hindu lady acquires far more than the vestige of title which is deemed sufficient to attract Section 14(1).
And, further, the decision in Seth Badri Prasad v. Kanso Devi where the scope of Sub-section (2) and Sub-section (1) of Section 14 had come up for consideration before a three-Judge Bench of the Supreme Court. The facts therein were, that the respondent got certain properties under an award as a widow's estate. The suit was filed by the appellant to restrain the respondent from committing acts of waste or alienation of the property on the ground that she was only a limited owner of the property. The respondent however contended that she became full owner of the property in terms of Section 14(1) and (2) and the Court held that the words "acquired" and "possessed" have been used in their widest connotation. Possession must be constructive or actual or in any form recognised by law. In the language of explanation the word "acquired" must also be given the widest possible meaning. Sub-section (2) of Section 14 would come into operation only if acquisition in any of the matters indicated therein does not come under Section 14(1) and was made for the first time, without there being any pre-existing right in the Hindu female who is in possession of the property. It was held that since she was in possession of the property as a widow's estate, her limited right was enlarged into an absolute right under Section 14(1). The Supreme Court, after considering the above and other cases on other aspects, has held as follows :
If the acquisition is for the first time, without any vestige of pre-existing right under the instrument, document or device etc, then Sub-section (2) of Section 14 gets attracted. Sub-section (2) being in the nature of an exception, it does not engulf and wipe out the operation of Sub-section (1). Sub-section (2) of Section 14 independently operates in its own sphere. The right to disposition of property by a Hindu under Section 30 is required to be understood in this perspective and if any attempt is made to put restriction upon the property possessed by a Hindu female under an instrument, document or device, though executed after the Act had come into force, it must be interpreted in the light of the facts and circumstances in each case and to construe whether Hindu female acquired or possessed the property in recognition of her pre-existing right or she gets the rights for the first time under the instrument without any vestige of pre-existing right. If the answer is in the positive, Sub-section (1) of Section 14 gets attracted. Thus construed, both Sub-sections (1) and (2) of Section 14 will be given their full play without rendering either as otiose or aids as means of avoidance.
8. Having regard to this authoritative interpretation of the section by the Apex Court, there is no difficulty in holding that in the facts and circumstances of the present case, the property would be covered by Section 14(1) of the Act. And, in the light of the findings of the trial Court as to the state of affairs in so far as the revenue records are concerned, it cannot be said that the appellants have made out a prima facie case of possession, and therefore, there is no ground made out for interference.
9. The case law cited by the appellants' counsel are rendered on facts and circumstances, different from that of the one on hand, and would not aid the contentions put forth.
10. Accordingly, the appeals are dismissed.