Bangalore District Court
Mr.Krishnappa vs Mrs. Sakamma on 22 October, 2020
1 1 O.S. No.6082/2012
C.R.P.67
Govt. of Karnataka
Form No.9(Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENT IN SUITS
IN THE COURT OF THE XII ADDL. CITY CIVIL JUDGE, AT
BENGALURU
Dated this the 22nd day of October 2020
PRESENT: SRI.SATHISHA L.P., B.A.,LL.B.,
XII ADDL.CITY CIVIL &SESSIONS JUDGE
(CCH.NO.27), BENGALURU
O.S.NO.6082/2012
PLAINTIFF : Mr.Krishnappa
S/o late Kariyappa
Aged about 63 years
R/at No.100, Indiranagar
HAL 2nd stage, Old thippasandra,
Bangalore - 560008
(By B.M.Shyamaprasad and associates)
V/s
DEFENDANTS : 1. Mrs. Sakamma
D/o late Kariyappa
Aged about 60 years
R/o Haralur, Jadigenahalli village
Hoskote taluk
Bangalore
(exparte)
2 2 O.S. No.6082/2012
2. Mrs. Rathnamma
D/o late Nanjappa
Aged about 50 years
R/at No.701, HAL 2nd stage
Indiranagar,
Bangalore - 560008
(Rep by Kumar & Kumar, advocates)
Date of institution of suit : 24/08/2012
Nature of suit : Declaration and Partition
Date of commencement of : 28/11/2016
recording of evidence
Date on which the judgment : 22/10/2020
was pronounced
Total duration : Year Month Day
08 01 28
Sri. SATHISHA.L.P.
TH
12 Addl City Civil and sessions Judge
CCH27, Bengaluru
3 3 O.S. No.6082/2012
JUDGMENT
The plaintiff has filed the present suit against the defendants for the relief of declaration to declare that the plaintiff is entitled for 1/3rd share in the suit schedule properties and for partition and separate possession of his 1/3rd share in the suit schedule properties.
2. The brief facts of the plaintiff's case is that the plaintiff and defendants are the members of an undivided Hindu joint family. The plaintiff and first defendant are the children of late Smt.Bayamma and late Sri.Krishnappa. Whilst the second defendant is the only daughter of late Sri.Nanjappa and late Gowramma. The said Late Smt.Bayamma & late Sri.Nanjappa are the children of late Muniveerappa & Akkalamma.
3. It is submitted that late Nanjappa's wife late Gowramma is his sister's daughter i.e., late by Bayamma's elder daughter. Late Nanjappa died in the year 196869 & Gowramma died on 12 /4/ 2010 and their only child i.e., daughter the second defendant is their legal heir. Late Bayamma died in the year 1999 and the plaintiff and the first defendant are the legal heirs. There has no partition in the joint family properties and the plaintiff and each of the first 4 4 O.S. No.6082/2012 and second defendants are the entitled for 1/3 rd share each in the joint family properties.
4. It is submitted that Bangalore development authority executed reconveyance agreement dated 20 September 1974 registered as document No. 2196/7475 in favor of late Gowramma reconveying the sites bearing number 703 and 704 of HAL 2nd stage Indira Nagar Bangalore, in lieu of joint family properties acquired. These properties were transferred in favor of the third parties during her lifetime for the benefit of joint family.
5. It is submitted that Bangalore development authority executed sale deed dated 12.02.1986 registered as document No.3024/8586 in favor of late Gowramma absolutely transferring sites bearing number 699, 700, 701, 702, 7th Main Road, HAL second stage Bangalore. These properties bearing number 699, 700, 701, 702, 7 th Main Road, HAL 2nd stage Bangalore, were conveyed in favor of Late Gowramma in lieu of the acquisition of the joint family properties and upon the late Gowramma remitting the prescribed amount from out of the joint family nucleus.
6. It is submitted that late Gowramma executed the gift dated 17032003 registered as document No.6066/2002 2003 transferring the sites bearing No.699, 7th main road, 5 5 O.S. No.6082/2012 HAL 2nd stage Bangalore in favor of the 2nd defendant and in view of the fact that there was an error in mentioning the date in the gift deed late Gowramma has executed deed of rectification on 16/6/2003.
7. It is submitted that properties bearing number 700, 701 and 702 are described as schedule 'A' property. After the demise of late Gowramma the 2nd defendant is in possession and occupation of the property bearing No.704. The property bearing survey No.700 comprises of one residential and one commercial premises which has been let out in favor of the tenants. The property bearing No.702 vacant. The premises in property No's.699, 700 and 701 were constructed during the lifetime of late Gowramma.
8. It is submitted that the plaintiffs and the defendants and their family members have been permanent residents of old Thippasandra village Bangalore which is now part of the urban conglomeration of Bruhath Bangalore. The residential property bearing HA sanitary board Khata No.63/A to 63/Q measuring 75 feet east to west and 65 feet north to south on 9th Main Road, old Thippasandra Bangalore is their other joint family property. The khatha for this property bearing HA sanitary board khatha No.63/A to 63Q was mutated in the name of late Gowramma after the demise of late Nanjappa.
6 6 O.S. No.6082/2012
9. It is submitted that in the year 2002 late Gowramma executed gift deed dated 27022002 transferring a small portion of this property measuring east to west 24 feet and north to south 33 feet in favor of plaintiff to enable the plaintiff to put up a residential construction for his separate use and accommodation. The plaintiff after the gift deed dated 27 Feb. 2002 has constructed residential premises in this portion and over a period of time the plaintiff has also constructed additional premises in an additional area with the consent of the family members. Thus, the plaintiff is possession of an extent measuring east to west 24 feet and north to south 65 feet as the absolute owner.
10. It is submitted that the remaining lager portion of the property bearing HAS khatha No 63/A to 63/Q (now bearing No 63/44 and 63/A 44 to 63/Q44 100) 4 th cross road, old Thippasandra, Bangalore is described as 'B' schedule property.
11. It is submitted that the schedule 'B' property comprised of different small tenements and the rents received from such tenants described in the schedule 'A' properties and the income from the agricultural land at Bommanabande and Kamrasanahalli Jadgenahalli Hobli, Hosakote, have been the source of joint family income in all these years. After the 7 7 O.S. No.6082/2012 demise of late Gowramma, the second defendant has been collecting the rents from the tenants in the occupation in the schedule A & B properties.
12. It is submitted that the plaintiff and defendants are members of the undivided joint family are also owners of the following agricultural properties.
Land in Sy No 39 measuring 1 acre 08 guntas of Bommana bande village, Jadigenahalli hobli, Hoskote taluk.
Land in Sy No 67 of Bommana bande village, Jadigenahalli hobli, Hoskote taluk 7 ½ guntas, and Land in Sy No. 30/3 of Kamarasanahalli village, Jadigenahalli hobli, Hoskote taluk measuring 23 guntas.
These lands are described as schedule 'C' property.
13. It is submitted that the Item No 1 and 2 of the schedule 'C' properties were initially purchased in the name of plaintiffs' mother late Bayamma under the sale deed dated 21st December 1965 registered as document No.3328/6566, but the she subsequently executed sale deed for these two properties in favor of her brother late Nanjapppa, the 2 nd defendant's father under the sale deed dated 30 th June 1966. This sale deed dated 30th June 1966 was executed because it was understood that the land could be better managed if it was in the name of the male member of the family. The 8 8 O.S. No.6082/2012 Khatha for the land item No 1 of schedule 'C' is the in the name of the late Nanjappa.
14. It is submitted that the land in Sy No 67 of Bommanabande village, Jadigenahalli hobli, Hoskote taluk comprises of 3 portions namely item No 2 of schedule 'C' property, an extent of 7 ½ guntas owned by a 3rd party and the plaintiff's father property. The khatha of the plaintiff's father's and the Item No 2 of the schedule 'C' property is commonly mutated in favor of the plaintiff.
15. It is submitted that the item No 3 of the schedule 'C' was purchased in the name of the plaintiff's mother late Bayamma under the sale deed dated 28 th March 1966. The khatha for this property was mutated in the favor of Bayamma and it is continued in her name.
16. It is submitted that the plaintiff was managing the agricultural land, while that the 2nd defendant assisted late Gowramma in looking after the property described in the schedule A and schedule B. the 2nd defendant approached the plaintiff, the 1st defendant and late Gowramma with the proposal to develop the schedule B property under a joint development scheme after the demolition of the existing tenements. The 2nd defendant represented to the plaintiff and 9 9 O.S. No.6082/2012 late Gowramma that, because the khatha for the schedule B was mutated in favor late Gowramma and a portion of the schedule B property was transferred to the plaintiff under the gift deed 27th February 2002, it would be inappropriate and proper if only late Gowramma and the 2nd defendant execute necessary agreement in favor of the developers and that after the completion of the construction necessary deeds could be executed in favor of members of joint family.
17. It is submitted that accordingly late Gowramma and 2nd defendant executed joint development agreement dated 28th march 2007 registered as document No.35758/06 07 in favor of the developer stipulating that the developer shall be entitled to 53% of the constructed area with undivided share in the land.
18. It is submitted that the developer has commenced construction but the construction is yet to completed. The plaintiff has been seeking partition of the A, B & C properties by metes and bounds ever since the demise of late Gowramma, but the 2nd defendant procrastinated such partition representing that the partition could be made after the construction in the schedule B property is completed and possession handed over by the developer.
10 10 O.S. No.6082/2012
19. It is submitted that the plaintiff has now learnt that the 2nd defendant, at the instance of her husband is trying to create 3rd party rights in the schedule A & B properties in an effort to deny the plaintiff's right, title and interest therein. The 1st defendant is acting in collusion with the 2 nd defendant. The schedule A, B, & C properties are joint family properties and the plaintiff is entitle for 1/3 rd share each in the schedule A, B & C properties and the 2nd defendant is also liable to render accounts for the rents received from the schedule A and B properties after the demise of late Gowramma and the plaintiff is entitle for mesne profit.
20. It is submitted that the plaintiff and defendants are in common and constructive joint possession of the schedule A, B & C properties. The 2nd defendant's husband C .Srinivas Murthy is influential and the 2nd defendant is acting at his behest is denying the plaintiff's legitimate 1/3 rd share in the schedule A, B & C properties. With these facts the plaintiff seeks to decree the suit.
21. The defendant No.1 not appeared before the court and hence placed exparte.
22. The defendant No.2 has filed written statement by disputing and denying the plaint averments, where in the defendant No.2 has contended that the suit of the plaintiff is 11 11 O.S. No.6082/2012 not maintainable either in law or facts of the case and the same is required to be dismissed in limine. The present suit is foisted with an intention to make wrongful gain by misusing the process of this court.
23. There was no joint family in existence much less a joint family comprising of plaintiff and defendants as members of undivided Hindu family.
24. The defendant No.2 further submits that a property consists of three sites situated at HAL, 2 nd stage, Indira Nagar Bangalore. The schedule a property was transferred and conveyed by Bangalore development authority in favor of Smt. Gowramma for valuable consideration. The plaintiff is guilty of suppersio veri and suggestio falsi. The city improvement trust board predecessor in interest of BDA through the then government of Mysore of acquired various lands for formation of a layout between old Madras and HAL second stage in pursuance of notification which were published and gazetted 27081964. The acquisition was in relation to land situated in Thippasandra village and surrounding areas. Lands comprised in survey number 151 of Thippasandra village to an extent of 4 acres 29 gunthas (excluding five gunthas of Kharab) was inter alia acquired by the government of Mysore for the benefit of CITB for the 12 12 O.S. No.6082/2012 purpose of formation of layout as stated above. The land comprised in survey number 151 of the thippasandra village was in Inam land. After coming into the force of Mysore personal and Inams abolition act 1954 all Inam lands vested in the government subject to rights conferred upon the category of persons to claim regrant /occupancy rights. The father of this defendant namely Sri. Nanjappa was in personal cultivation of various Inams lands and therefore he filed an application under Section 4 of the aforesaid Inams Abolition Act requesting the designated authority to grant occupancy rights as he was a Kadim tenant. After considering the case made out by the Sri Nanjappa special Deputy Commissioner for abolition of Inams on 29071958 registered Mr. Nanjappa as Kadim tenant in respect of land comprised in survey numbers including the land comprised in survey number 151 of Thippasandra village. Therefore, the registration of Mr. Nanjappa as an occupant under the provisions of Inam abolition act is in his individual capacity. It is necessary to mention here that there did not exist any joint family. Sri Nanjappa i.e., the father of this defendant passed away during the year 1969. In view of the fact that this aforesaid property comprised in survey number 151 was acquired by the state government the sites bearing No. 703 and 704 were reconveyed in favor of Smt. Gowramma wife of Nanjappa after layout charges were remitted by Smt. Gowramma. In so 13 13 O.S. No.6082/2012 far as the plaint A schedule property is concerned the same was purchased by Smt. Gowramma for a valuable consideration and accordingly the plaint A schedule property was sold and transferred in favor of Smt. Gowramma and she became the absolute owner of A schedule property. By exercising incidents of ownership Smt. Gowramma sold and alienated sites bearing number 703 and 704 for urgent necessity more than 30 years back. The above aspects make it clear that plaint A schedule property is the absolute property of Smt. Gowramma wife of late Nanjappa. As such the plaint schedule property is not a joint family property and the plaintiff has no semblance of right over the same. The plaint A schedule property is therefore not available for partition.
25. In so far as the plaint B schedule property is concerned the same was the property of Muni Veerappa i.e the paternal grandfather of this defendant. After the death of Muni Veerappa during the year 1950 the plaint B schedule property became the absolute property of Shri Nanjappa i.e., the father of this defendant. This is the position even if it is assumed to be an ancestral property. In that sense it is a property that has become ancestral to Sri Nanjappa but it is not a joint family property or an ancestral property by virtue of which Smt. Bayamma or plaintiff would derive any right. After the death of Shri Nanjappa the property was succeeded 14 14 O.S. No.6082/2012 by Smt. Gowramma as well as this defendant as classI heir under the Hindu succession act. The plaint B schedule property therefore was the absolute property of late Nanjappa and no one else had any manner of right title and interest over the same. As the plaintiff had not settle down in life and was a vagabond, a portion of the property comprised in HAS khatha No.63/A to 63/Q was gifted to Sri Krishnappa, by Smt Gowramma under a registered gift deed dated 27/2/2002, so as to enable the plaintiff to eke out a living. The gift deed dated 27/2/2002 was got drafted by the plaintiff. The very act of the gift deed being executed by Smt Gowramma in favor of Sri K.Krishnappa(plaintiff) which according to him has been accepted by him would show that at an undisputed point in life the plaintiff had accepted Smt Gowramma to be the absolute owner of the plaintiff B schedule property. That apart the plaintiff has mischievously encroached a portion of the aforesaid property. The remaining property which is described as plaint B schedule property had been offered for joint development to a developer by Smt Gowramma. The plaintiff has chosen to file the suit only in relation to the balance portion and not the entire property and this very aspect speaks volumes of the conduct of the plaintiff and intention behind filing the present suit. Hence the plaint B schedule property is also not available for partition.
15 15 O.S. No.6082/2012
26. The defendant No.2 further submits that, in so far as the plaint C schedule property is concerned, as admitted by the plaintiff himself, item No 1 and 2 of the plaint C schedule property were purchased by Sri Nanjappa for a valuable consideration under a sale deed dated 30/6/1966. It was a sale for a valuable consideration and not a family settlement for arrangement. The claim that the said property were transferred to effective management is most unbelievable and utterly false. In so far as item No 3 of the plaint C schedule property is concerned to the knowledge of this defendant, an extent of 12 guntas and 11 guntas of lands in Sy No 30/3 i.e. the entire item No 3 of the plaint C schedule property has been sold transferred to Sri Nanjappa for a valuable consideration under an absolute sale deed dated 30/6/1966. This aspect is deliberately suppressed. This defendant submits that her father acquired title to item No.3 of the C schedule property under a registered sale deed for valuable consideration. Sri Nanjappa has been the absolute owner ever since the execution of the aforesaid sale deed. The aspects make it very clear that no partition can be granted even in respect of plaint C schedule property.
27. It is further submitted that, Smt Gowramma executed a joint development agreement dated 28/3/2007 in respect of the plaint C schedule property. The property has 16 16 O.S. No.6082/2012 been developed by constructing residential apartment. The development is complete and the apartments constructed therein that have fallen to the share of the developer has been already been sold by the developer. The B schedule property although out recognized as the separate property of Smt.Gowramma, it is relevant to mention here that apart from the portion of the property bearing HAS khatha No.63/a to 63/q which is gifted in favor of Sri Krishnappa the plaintiff by Smt Gowramma under the gift deed dated 27/2/2002 as stated supra, the plaintiff Sri Krishnappa has encroached upon a portion of the property over which he has illegally put up construction. Considering the fact that the plaintiff Krishnappa is a family member, Smt Gowramma and this defendant has not taken recourse to legal procedure or recourse to law for recovering the excess portion that is in the occupation of Sri Krishnappa by way of encroachment over and above the portion that is gifted to him.
28. The defendant No.2 further submits that, the above aspects clearly demonstrates that there was no joint family in existence, consequently the question of there being a joint family nucleus also does not arise at all. The properties were the separate properties and hardearned properties of sri Nanjappa i.e. the father of this defendant. As stated, Sri Nanjappa passed away in 1969, when this defendant was 17 17 O.S. No.6082/2012 hardly 5 to 6 years. Smt Gowramma was a lady of determination and she managed the properties of Sri Nanjappa. Smt Gowramma passed away in the year 2010. This defendant's husband namely Sri.C.Srinivasamurthy was inflicted with severe bout of jaundice during AprilMay 2010 and on account of medical ailments he severely unwell and virtually bed ridden. It is during this period where things were not well in the family of this defendant, the plaintiff looking into the health condition of Sri C.Srinivasamurthy and knowing fully well that this defendant has always been house wife confined within four walls of the house and not worldly wise with young children chose to file the present suit to knock away the properties belonging to this defendant and her children. It is only most unfortunate that the plaintiff being a family member has chosen to institute these proceedings without having any regard or concern to the family of this defendant. Instead of supporting the family of the defendant at hour of need, the plaintiff has dragged this defendant to the court, by filing the instant suit which is totally baseless and vexatious.
29. It is further contended that, the plaintiff is not in possession of any portion of the plaint A&B and item No 1 & 2 of the C schedule properties. The plaintiff will have to pay court fee on the market value of the property. The question of 18 18 O.S. No.6082/2012 the proper valuation and sufficiency of court fee will have to be tried as preliminary issue. Seen from any angle the suit of the plaintiff is not sustainable and is required to be dismissed with costs. With these contentions the defendant. No.2 seeks to dismiss the suit.
30. On the basis of the above pleadings, the following issues are framed;
1) Whether the plaintiff to prove the suit schedules A, B, and C properties are joint family properties of plaintiff and defendants and they are in common and constructive joint possession of schedule properties?
2) Issue No.2: Whether the defendant No.2 proves that schedule A, B & C Properties are absolute properties of family of Nanjappa and the same is inherited by Smt.Gowramma and defendant No.2 as classI legal heirs of Nanjappa after his death?
(Issue.No.2 is recasted as per the orders on I.A.No.14)
3) Whether the whether the court fee paid is sufficient?
4) Whether the plaintiff is entitled for reliefs claimed in the suit?
5) What decree or order?
31. The plaintiff got examined himself as PW1 and got 19 19 O.S. No.6082/2012 marked following Ex.P. 1 to Ex.P.14 documents.
Ex.P.1 Genealogical tree
Ex.P.2 Re conveyance agreement
Ex.P.2(a) Typed copy of the Ex.P.2
Ex.P.3 Absolute sale deed
Ex.P.3(a) Typed copy of the Ex.P.3
Ex.P.4 Certified copy of the gift deed dated
17/3/2003
Ex.P.5 Rectification deed dated 16/6/2003
Ex.P.6 RTC
Ex.P.7 RTC
Ex.P.8 RTC
Ex.P.9 Certified copy of the JDA dated
28/3/2007.
Ex.P.10 Certified copy of the gift deed
Ex.P.11 Certified copy of the will dated
24/4/1924
Ex.P.12 Certified copy of the order sheet of inam
case
Ex.P.13 Certified copy of the sale deed dated
21/12/1965
Ex.P.14 Certified copy of the sale deed dated
28/3/1966
32. The defendant No.1's GPA holder by Smt Kavyashree examined as D.W.1 and got marked following Ex.D.1 to Ex.D.49 documents.
20 20 O.S. No.6082/2012 Ex.D.1 GPA by defendant No 1 to the witness Ex.D.2 Death certificate of Nanjappa Ex.D.3 Death certificate of C.Srinivasamurthy Ex.D.4 Death certificate of Gowramma Ex.D.5 Sale deed dated 12/6/1986 Ex.D.6 Khatha certificate Ex.D.7 Khatha extract Ex.D.8 Khatha certificate Ex.D.9 Khatha extract Ex D.10 Tax paid receipts to D. 17 Ex.D.18 to Special notices D.20 Ex.D.21 CITB notice Ex.D.22 Letter by Gowramma to CITB Ex.D.23 Certified copy of the sale deed dated 30/6/1966 Ex.D.24 Memo for handing over the possession to Gowramma by CITB Ex.D.25 Certified copy of the Order sheet in case No.125/1956 Ex.D.26 & Khatha certificate and Khatha extract D.27 Ex.D.28 to 7 RTCs D.34 Ex.D.35 MR Ex.D.36 EC 21 21 O.S. No.6082/2012 Ex.D. 37 & EC 38 Ex.D.39 Assessment Ex.D.40 & 2 RTCs D.41 Ex.D.42 MR Ex.D.43 Certified copy of the sale deed dated 26/11/2011 executed by Gowramma and Rathna in respect of flat No.1 Ex.D.44 Certified copy of the sale deed dated 26/11/2011 executed by Gowramma and Rathna in respect of flat No.2 Ex.D.45 Certified copy of the sale deed dated 26/11/2011 executed by Gowramma and Rathna in respect of flat No.302 Ex.D.46 Certified copy of the sale deed dated 26/11/2011 executed by Gowramma and Rathna in respect of flat No.401 Ex.D.47 Certified copy of the sale deed dated 26/11/2011 executed by Gowramma and Rathna in respect of flat No.402 Ex.D.48 Certified copy of the sale deed dated 26/11/2011 executed by Gowramma and Rathna in respect of flat No.102 Ex.D.49 Certified copy of the sale deed dated 26/11/2011 executed by Gowramma and Rathna in respect of flat No.301
33. Learned counsel for plaintiff vehemently submitted that, the propositus of the family is one Mr. late Muniveerappa, who died intestate leaving behind his daughter Smt Bayamma and son Sri Nanjappa. The said 22 22 O.S. No.6082/2012 Bayamma w/o Kariyappa, died intestate leaving behind the Gowramma, Krishnnappa (plaintiff) and Sakamma (defendant No.2). the first daughter of Bayamma by name Gowramma married to brother of Bayamma by name Nanjappa. And the said Nanjappa died intestate leaving behind his wife Smt Gowramma and Daughter Smt Rathnamma i.e, defendant No.2. Propositus Muniveerappa acquired the properties in Sy No.6, 84, 151, 32/4 under will dated 24/4/1924, which is executed by one Nanjaiah S/o Munishammappa, the same is marked as Ex P 11. The said properties were acquired by the government under the Mysore inams (personal and miscellaneous) abolition act, and after the said acquisition, the same were regranted to the family of Muniveerappa and as the said person died at the time of regrant it was granted in the name of the Nanjappa and any such regrant become the joint family property and not the individual property of the Nanjappa. Suit 'A' schedule properties were reconveyed in favor of Gowramma, W/o Nanjappa, as the joint family properties were acquired by the BDA (then CITB) for formation of layout and amount was paid by the said Gowramma out of the joint family funds to the 'A' schedule sites. Hence the 'A' schedule properties are the joint family properties and since there is no partition, the plaintiff is entitle for share in the 'A' schedule properties.
23 23 O.S. No.6082/2012
34. He further contended that, the 'B' schedule property is also the joint family property. After the demise of Nanjappa the same was mutated in the name of the Gowramma. And the said Gowramma and 2 nd defendant have entered into joint development agreement in which the plaintiff has also right as there was partition in the family.
35. He further contended that the 'C' schedule properties were acquired by the Bayamma out of the joint family income and with the understanding in the family that the if the land in the name of the male member, same should be better managed, hence a nominal sale deed is executed by the Smt Bayamma to his brother Sri Nanjappa and the same is also joint family property as there is only nominal sale deed in respect of the 'C' schedule properties and hence submits that plaintiff is entitled for share in the 'C' schedule property also.
36. He further contended that, as the propositus Muniveerappa died prior to commencement of Hindu Succession act 1956, case of the plaintiff is governed by the Mysore Hindu law women's rights act, 1933. He vehemently contended that, as the Muniveerappa acquired the properties under the will, which becomes his separate property under section 6 of the said act, and as per section 6 (2) of the said act, mother of the plaintiff Smt Bayamma also entitle for 24 24 O.S. No.6082/2012 equal share along with her brother Mr. Nanjappa, as the Muniveerappa died intestate. And while countering the argument of defendant that, 'the Nanjappa is succeeded to the property as sole single surviving coparcener', the learned counsel for plaintiff argued that the property passed to the single surviving coparcener is subject to the limitations prescribed under section 8 of the Mysore Hindu law women's rights act 1933, then also plaintiff is entitle for share in the suit schedule properties, with these and other contentions he seeks to decree the suit.
37. Learned counsel for plaintiff along with his oral arguments has also filed written arguments and has relied upon the following citations,
1. 2007 (1) SCC 694, Jagannath Amin v/s Seetharam (dead) by Lr's and others.
2. 2. ILR 2014 KAR 3707, Sri Sampnagi Gowda v/s Sri Muddanna and others
3. 2017 (9) SCC 586, Adiveppa and others v/s Bhimappa and others.
4. 2013 SCC online Kar 9935, Smt Ramakka and others v/s Smt Thanamma dead by LR's and others
5. 2016 (3) SCC 356, L.Gowramma (dead) by Lr' v/s Sunanda (dead) by Lr's
6. MANU/TN/2524/2018, Ashok Surana v/s T.Suresh Surana
7. MANU/KE/2316/2010, Puthumana Meenakshi Amma v/s Puthumana Kantha Amma and others
8. 2008 (9) SCC 907, K.V.Sudharshana v/s 25 25 O.S. No.6082/2012 Ramakrishnappa and others
9. 2017 SCC online Kar 4318
10. RFA.1420/2012, High court of Karanataka in Narayanappa and others v/s Dadda Pattabhi.
11. ILR 2007 KAR 3454, Rangaswamy v/s Venkatappa
12. ILR 2005 KAR 568 , Doddamma v/s Muniyamma
38. Learned counsel for defendant No.2 has vehemently submitted that, the properties acquired by the Muniveerappa through the will are his separate properties and since there is no partition the same is passed on to his sole surviving co parcener Mr. Nanjappa, hence the plaintiff is not entitle for any share in the suit schedule properties and further contended that, the properties were acquired by the government under Mysore inams (personal & miscellaneous ) abolition act and when once the land is acquired by the government it is vested with the government and after that it is granted to the Nanjappa as he was Kadim tenant, and hence the said lands becomes his absolute properties and the grant is not for the benefit or for the joint family and hence the plaintiff is not entitle for share in the property. And even 'B' schedule property is also absolute property of family of Nanjappa, as he succeed to the property as sole surviving coparcener and hence the plaintiff is not entitle for any share in the said property also. And he further contended that 'C' schedule property has been sold to Nanjappa for valuable consideration and the same is not nominal sale deed and the 26 26 O.S. No.6082/2012 consideration is not the criteria and more over the said sale deeds are not challenged even by the plaintiff or his mother and hence the plaintiff is not entitle for share in the said properties also. And it is also argued that the court fee paid is insufficient as admittedly the plaintiff is not in possession of the suit properties and hence suit is to be dismissed for non payment of the sufficient court fee and with other contentions he seeks to dismiss the suit.
39. Learned counsel for defendant No 2 has also filed the written argument by reiterating the oral arguments and has filed the following citations:
1. 2001 SCC online KAR 297, S.B.Malleshappa v/s Koratigere Shivalingappa,
2. ILR 2007 KAR 339, Sri Aralappa v/s Jagannath and others
3. 1992 SCC onlie KAR 258, Sumithra v/s State
4. 1995 SCC online KAR 218, Anjanappa v/s Byrappa since dead by LRs
5. 1954 SCR 243, C.N.Arunachala Mudaliyar v/s C.A.Muruganatha Mudaliyar.
6. 2009 SCC online KAR 614, K.Madhava Rajanayak v/s K.Sridhar Nayak.
7. 2016 (3) supreme court cases 356, Gowramma v/s Sunanda
8. 2013 SCC online Kar 9935, Ramakka v/s Tanamma
9. 1992 (2) Kar LJ 548 (DB), Annamma & another v/s Puttamma and others
10.R.S.A.2008/2012, K.R.Venakatarao v/s Vasanth Bheema Rao. High court of Karnataka.
11.2006 (5) SCC 353, Prema Singh v/s Birbal and others 27 27 O.S. No.6082/2012 12.2011 (11) SCC 786, Kalyan Singh Chouhan v/s C.P.Joshi.
13.(2008) 17 SCC 491, Bachraj Nahar v/s Nilima Mandal and others.
14.2020 SCC online SC 348, Bagavath Sharan v/s Purushottam and others
15.RFA.683/2003, S.P.Subbarao v/s Lakshmana Rao and others, High court of Karnataka.
16.RFA.1699/2012, Doddamuniyamma v/s Guttahalli Muniraju, High court of Karnataka.
17.2003 SCC online AP 600, Kavitha Gouda v/s Nookala Sudharshan Reddy.
40. Having heard the arguments from both sides and after perusal of the records,
41. My findings on the above issues as are; ISSUE. No.1: In the Negative ISSUE. No.2: In the Affirmative ISSUE. No.3: In the Affirmative ISSUE. No.4: In the Negative ISSUE. No.5: As per the final order for the following.
REASONS
42. Issue.No.1 and recasted issue No.2 : Issue No.1 and recasted issue No.2 are taken together for the sake of convenience since the both issues are inter linked or inter woven.
28 28 O.S. No.6082/2012
43. The suit is filed by the plaintiff against the defendants for the relief of partition and separate possession of his 1/3rd share and for mesne profits and such other reliefs, claiming that the suit schedule properties are joint family properties of plaintiff and defendants. Though the 'joint family property' and 'ancestral properties' are entirely different, here the plaintiff has used the word 'joint family property' to claim the share in the suit schedule properties in the sense as 'ancestral properties'.
44. For the sake of better understanding and convenience GTree which is extracted as under;
Muniveerappa (1950)
Akkalamma (No date)
Bayamma (died in the year 1999) Nanjappa (196869)
Gowramma (12.04.10)
Gowramma Krishnappa Sakamma
st
(W/o Nanjappa) (plaintiff) (1 defendant)
Rathnamma
(2nd Defendant)
45. Before discussing the case on merits I would like to mention some admitted facts.
1. Relationship of the parties is not disputed.
2. The original propositus Mr. Muniveerappa is died some 29 29 O.S. No.6082/2012 where in 1950 and it is undisputed that death of the Muni Veerappa is prior to commencement of Hindu Succession Act 1956.
3. Muni Veerappa's daughter Smt.Bayamma died in the year 1999. Muni Veerappa's son Sri.Nanjappa died during 196869.
4. Smt.Gowramma died on 12042010.
46. Original propositus Sri.Muniveerappa died leaving behind his daughter Smt.Bayamma and son Sri.Nanjappa. Smt.Bayamma died leaving behind Smt.Gowramma, K.Krishnappa and Smt.Sakamma. The daughter of Smt. Bayamma i.e., Smt.Gowramma married to Sri.Nanjappa who is brother of Smt.Bayamma. The plaintiff is the son, first defendant is the daughter of Smt. Bayamma & Sri. Kariyappa and 2nd defendant is the daughter of Smt.Gowramma and Sri.Nanjappa.
47. The plaintiff is claiming his share in suit schedule properties which is consisting of 3 schedule. The first schedule 'A' is consisting of 3 items i.e., the site No.700, 701 and 702 and schedule 'B' is consisting of 43% of undivided share in the property earlier bearing HAS katha No.63/A to 63/Q (now 100 and 63/A 44 to 63/Q44) and schedule 'C' is consisting of 3 items i.e., Sy.No.39, 67, 30/3.
30 30 O.S. No.6082/2012
48. During the course of arguments both the counsels have submitted that, the suit is governed by Mysore Hindu Law Women's Right Act, 1933, since the original propositus died prior to commencement of Hindu Succession Act 1956.
49. Since the plaintiff is claiming his share in item No. A, B & C. let me examine the schedule one by one.
50. Schedule 'A' property which is consisting of site No.700, 701 & 702. The same is undisputed by both the parties that the sites have been acquired by Gowramma and the same were allotted by BDA in favour of Gowramma, but plaintiff claims that the said properties are acquired by Gowramma out of the payment made by the joint family funds and the same were allotted by BDA in favour of Gowramma in lieu of the acquisition of the joint family properties but the defendants disputes that the said properties are the joint family properties and they claims that the said properties are absolute properties of the family of Nanjappa.
51. It is undisputed by both the parties that the originally the properties in Sy.No.6, 84, 151, 32/4 were belonged to one Mr. Nanjaiah S/o Munishamappa and he executed the will in favour of Muniveerappa who is the son of Muniyamma, who seems to be the sister of the said Nanjaiah.
31 31 O.S. No.6082/2012 The said will is produced by the plaintiff as per the Ex.P11. The said will is dated 24041924. Since both the plaintiff and defendants have admitted that the property is fallen to Muniveerappa through the said will, there is no much dispute on the said document. Ex.D21 produced by the defendant shows that the Sy.No.151 has been acquired by the CITB for the formation of layout between the Old Madras Road and HAL Road 2nd stage and as per the Ex.D22. The sites No.699 to 704 have been reconveyed by the CITB in favour of Gowramma. So it is clear that A schedule properties re conveyed by the CITB in favour of Gowramma after collection of necessary amount in lieu of the acquisition of Sy.No.151.
52. So for as 'B schedule property is concerned, it is undisputed fact that, 'B' schedule property was originally belonged to Muniveerappa because during the cross examination it is suggested to P.W.1 that, "B schedule property was originally belonged to Muniveerappa", and he has admitted the said suggestion during the cross examination which is at page No.5 para 13 of cross examination PW.1 " It is true to suggest that B schedule property was originally belonged to MuniVeerappa. In 1954 55 the said Muni Veerappa might have died". From these suggestions also it is clear that, the said property was originally belonged to Muniveerappa. And after the death of Muni Veerappa the said 32 32 O.S. No.6082/2012 property fallen to his son Nanjappa, and after the death of Nanjappa the 'B' schedule property is come to his wife Gowramma and daughter Smt Rathana i.e., defendant No.2.
53. So far as 'C' schedule property is concerned, Item No.1 and 2 of 'C' schedule property were purchased by Smt.Bayamma under the registered sale deed dated 2112 1965 and item No.3 of 'C' schedule property is also purchased by Smt.Bayamma under the registered sale deed dated 28/3/1966, which are produced at Ex P.13 & 14 respectively . All the item No.1, 2 and 3 of 'C' schedule property have been sold by the Smt.Bayamma in favour of her brother Nanjappa under the registered sale deed dated 30061966 which is produced at Ex.D.23.
54. Now it is very much clear that the plaintiff is claiming his 1/3rd share over all the suit schedule properties through his mother Smt.Bayamma.
55. The parties to the suit are governed by the Hindu mithakshara law of school.
(i) The plaintiff is claiming the right over the suit properties prior to commencement of the Hindu succession act 1956, as the propositus Sri Muniveerappa died prior to commencement of Hindu succession act.
33 33 O.S. No.6082/2012
(ii) Partition would governed by the Shastrik Hindu law, if the case not falls under the Hindu succession act 1956.
56. This particular case also has to be considered under the shastrik Hindu law, since the propositus Muniveerappa died prior commencement of the Hindu succession act 1956.
In this regard I would like to reply upon the decision rendered by the Hon'ble Bombay High court, reported in AIR 2008 BOMBAY 183, Devidas udhao Gaurkar & others vs Smt Vithabai & Anr. S.A.No.127 of 1996, D/ 17.4.2008.
Hindu law joint family property share of daughter her father died before coming into force of Hindu succession act, 1956, Hence case would be governed by old shastrik Hindu law share of her father would devolve by survivorship and not by succession consequently his share would pass to his brother, the surviving coparcener his daughter would not be entitled to any share.
57. In the cited decision also, suit filed by a daughter of a coparcener. Hon'ble High court by considering the illustration to section 24 in Mulla's Hindu law, 19 th edition, held that she is not entitle for share, as the property devolves upon the survivorship. For the sake of convenience the illustration is extracted here under; "A and B two Hindu brothers, governed by Mithakshara school of Hindu law, are members of joint and undivided family. A dies leaving his brother B and daughter. A's share in the joint family property will pass to his brother and not to his 34 34 O.S. No.6082/2012 daughter. However if A and B were, separate, A' property would on his death pass to his daughter as his heir".
58. Here in this case also, Muniveerappa acquired the properties under the will and died intestate, the said properties were succeeded by his only son/coparcener Nanjappa. Smt.Bayamma being daughter was never considered as coparcener in the Shastrik Hindu law. The properties acquired by the Muniveerappa under the will, later acquired by the government under the Mysore Inams (personal and miscellaneous) abolition act. And the same were regranted to the Sri.Nanjappa as he was a kadim tenant. Regrant is for family or for personal is immaterial since Smt.Bayamma is not a coparcener. And pleading is also lacking that whether she was married daughter or unmarried daughter at the time of regrant. A' schedule properties re conveyed to Gowramma as the Sy No.151 was acquired by the BDA (then CITB). The same were reconveyed in the name of the Smt. Gowramma, who is the w/o Sri.Nanjappa, since by the time of reconveyance Sri. Nanjappa was no more. Sy No.151 was become the absolute property of Sri. Nanjappa As he succeeded to the said property as a sole surviving co parcener. Any reconveyance made by the BDA(then CITB) in favor of Smt.Gowramma is towards the family of the Sri.Nanjappa. And the property of Sri.Nanjappa will not 35 35 O.S. No.6082/2012 become the ancestral property to the plaintiff as he is claiming the property through his mother Smt.Bayamma, who is the sister of Sri.Nanjappa. And plaintiff cannot be considered as coparcener to the property of Sri.Nanjappa, who is the maternal uncle of the plaintiff and plaintiff also cannot be considered as coparcener to the property of propositus Sri.Muniveerappa, because he is the maternal grand father. And plaintiff being the grand son of Sri.Muniveerappa, through his daughter Smt.Bayamma, cannot claim the properties of Sri.Muniveerappa, since the properties of Sri.Muniveerappa will not become ancestral properties of plaintiff.
59. That, under the Hindu Mithakshara school of law, 'son' is entitled for the share in the coparcenary /Ancestral property only. In this regard I would like to rely upon the decision reported in AIR 2009(NOC) 2884(KAR), K.Madhava Raja Nayak v K.Sridhara Nayak & ors. R.F.A.No.2039 of 2006, D/ 2.2.2009.
Hindu law coparcenary property meaning and partibility discussed.
Coparcenary property means and includes (1) ancestral property, (2) acquisitions made by the coparceners with the help of ancestral property, (3) joint acquisition of coparceners even without such help provided there was no 36 36 O.S. No.6082/2012 proof of intention on their part that the property should not be treated as joint family property and (4) separate property of the coparceners thrown into the common stock.
The Term 'Ancestral property' has a special meaning in Hindu law. That means only such property as is inherited by a male from father, father's father and father's father's father and such inheritor's son. Son's son and son's son's son get an interest in it by birth. Hence, unless there is nucleus of ancestral property with the aid of which the acquisition are made, the acquisitions cannot be included within the concept of coparcenary property available for partition between the members of the joint family. The coparcenary property is the property held by a coparcener absolutely and free of all claims from the rest of the coparceners which is known as separate or selfacquired property.
60. In the present case, the plaintiff cannot become a coparcener to the family of the Muniveerappa and Nanjappa, since he is the son of Smt Bayamma, who is the daughter of Muniveerappa. In the suit schedule properties plaintiff has no any birth right. And as such the 'A' schedule property is not ancestral property of plaintiff, and hence he is not entitle for share in the said properties.
61. That, 'B' schedule property is also originally belonged to the Sri.Muniveerappa, which is undisputed fact and after his death the same is passed into the Sri.Nanjappa 37 37 O.S. No.6082/2012 and after his death to his wife Smt.Gowramma. As like 'A' schedule property 'B' schedule property is also not the coparcenary/ Ancestral property of the plaintiff, to which the plaintiff is claiming his right through his mother. And it pertinent to consider that Smt.Bayamma, who died in the year 1999. Never claimed her right to share in the suit schedule properties and no partition is effected to during her life and no share is allotted to her. When the 'B' schedule property is also not the ancestral property of the plaintiff he cannot claim any share in the 'B' schedule property and he is not entitle for any share in the said property.
62. So far as 'C' schedule is concerned, the same is consisting of 3 items. Item No. 1 and 2 were purchased by Smt.Bayamma w/o Sri.Kariyappa, who is the mother of the plaintiff, under a registered sale deed dated 21.12.1965 and item No.3 is purchased under a registered sale deed dated 28.3.1966, which are produced at Ex.P. 13 & 14 respectively. These items were sold by the Smt Bayamma, to her brother Nanjappa under registered sale deed dated 30.6.1966.
63. The plaintiff is claiming the share in the 'C' schedule property stating that these properties were acquired by Smt.Bayamma out of the joint family income, and the same were sold to her brother Sri.Nanjappa under a nominal sale 38 38 O.S. No.6082/2012 deed with the understanding that the properties should be in the name of male for better management. But it is to be noted that these properties were purchased by the Smt.Bayamma after her marriage, that too in the years 1965 and 1966. Except oral testimony there is no proof that the 'C' schedule properties were purchased by Smt.Bayamma out of the income of joint family property of Sri.Muniveerappa/ Sri.Nanjappa, that too after her marriage.
64. Even otherwise the sale deeds pertaining to the years 1965 and 1966, then case of the plaintiff to the 'C' schedule property has to be considered under section 14 of the Hindu succession act 1956. Then the property standing in the name of the female Hindu should be considered as her absolute property. When she has sold the property way back in 30.6.1966 to her brother and she herself has not challenged the same during her life though she died during year1999. When the Smt.Bayamma herself has not challenged the said sale deed, the plaintiff cannot question the same, because he was having no right in the 'C' schedule properties as on the date of execution of the said sale deed, since the said properties are not the coparcenary properties or the ancestral properties of plaintiff. hence he is not entitle for share in the 'C' schedule properties also.
39 39 O.S. No.6082/2012
65. The plaintiff claims the right in the suit schedule properties under the Mysore Hindu Law Women's Rights Act, 1933, then he must establish his right under the said Act.
66. Here in this case the plaintiff is claiming right over the properties of Sri.Muniveerappa through his mother Smt.Bayamma. It is to be noted that, Smt.Bayamma who lived till 1999 has not claimed any right in the suit schedule properties, even if her father died prior to 1956. She died without getting any share in the suit schedule property. The plaintiff could have got the right only if Smt.Bayamma had acquired the property as absolute owner in the partition but admittedly there is no partition of the suit schedule properties right from the date of death of original propositus Sri.Muniveerappa. After the death of Sri.Muni Veerappa the said property was fallen to his alone son Sri.Nanjappa. When the Smt.Bayamma had not exercised her right to claim the partition the plaintiff cannot file a suit for partition in the properties of maternal grand father because the said property will not become ancestral property of the plaintiff, as he is claiming the suit schedule property through his mother. He can claim the rights only through or only to the property of paternal grand father.
40 40 O.S. No.6082/2012
67. During the course of argument L/c for plaintiff pressed into the service of Section 6 of the Mysore Hindu Law Women's Rights Act, 1933 which reads as under: Sec.6: Selfacquisitions demand to be separate property. (1) property acquired by a member of a joint Hindu family by his own exertions, skill, learning or talents, or acquired in any other manner, without material and direct aid from property belonging to the joint family, shall be deemed to be the separate property of such member, notwithstanding that, at any time previous to, or at the time of his acquiring such property, such member may have been maintained or supported, or have received training or education of any of any kind (general, special, technical, or other), at the expense of the joint family or of any member thereof.
(2) Separate property to pass by succession in case of intestacy. Such separate property of a person shall, in the event of his dying intestate, pass by succession to his own heirs, male or female.
68. While arguing Section 6, of Mysore Hindu Law Women's Right Act,1933 L/c for plaintiff has vehemently submitted property acquired by Sri.Muniveerappa through the will as per Ex.P11, becomes his separate property and as per Section 6(2) such property shall in the event of his death dying intestate passed by succession to his own heirs male or female. But the said contention cannot be accepted for the plaintiff in view of the decision rendered by the 41 41 O.S. No.6082/2012 Hon'ble High Court of Karnataka reported in 1992(2) Karnataka Law Journal 548 (DB) in the case of Smt.Annamma and another V/s Puttamma and Others, (A) MYSORE HINDU WOMEN ACT 1933, Sec. 4 and 6 (2) - Succession share to female heirs - whether Sec.6(2) is a complete code by itself and independent of Sec.4, so that, on the death of a Hindu male intenstate in the year 1952, share in the property is allocable to his daughters also.
Held: Sec.6(2) does not name the heirs. It only states in generic terms by describing them as a male or female meaning thereby that the separate property of a male Hindu dying intestate can be succeeded by a male or a female heir as the case may be according to the heirs left by the deceased. In a case where a Hindu male dies leaving behind male and female heirs both or male or female heirs only, without applying Sec.4 of the Act, it is not at all possible to determine as to who are the male or female heirs of the deceased, who are entitled to succeed to the estate of the deceased. Sons are not the only male heirs. Similarly, daughters are not the only female heirs, inasmuch as male heirs go upto third generation and female heirs include daughter's sons, daughter's daughter's sons, daughter's great granddaughter, daughter's son's sons. Similarly the widow of the deceased would also be the female heirs. So when there are more than one heir belonging to the same or more than one category, Sec.4 comes into operation and provides a solution for it. It provides for the order of succession in the case of direct heirs, and on the failure of direct heirs, the second line and the third line of the heirs as stated 42 42 O.S. No.6082/2012 therein and as to it what manner each of them shall succeed ...... The word "person" used in Sec.6(2) is referable to a Hindu male. Therefore, in the case of a Hindu male dying intestate, the succession has to take place even when the property left by the deceased male Hindu falls under Sec.6(2), in accordance with Sec.4 only ....... There is no ambiguity or uncertainty in Secs.4 and 6(2) so as to fall back on the intendment of the Legislature. Sec.6(2) only provides that the separate property of a person in the even of dying intestate will pass by succession to his own heirs male or female. As such it does not specify as to who are those male or female heirs. For finding out that, one has to fall back on Sec.4. This interpretation does not affect the object and intendment of the Act nor does it in any way defeat the same (para 9,10 and 11).
69. As per the section 6(2) of Mysore Hindu law women's rights act, 1933, separate property to pass by succession in case of intestacy such seaparate property of a person shall, in the event of of his dying intestate, pass by succession to his own heirs, male or females. It does not specify who are the male or female heirs. This aspect has been considered by the Hon'ble High court in the above said decision. And it is held that in such event we have to fall back to the section 4 of the said act, which prescribes the order of succession. For the sake of convenience and better under standing the section 4. of Mysore Hindu law women's rights act, 1933, is reproduced hereunder: 43 43 O.S. No.6082/2012
4. order of succession; (1) the succession to a hindu male dying intestate shall, in the first plae. Vest in the members of the family of the propositus mentioned below, and in the following order;
(i) the male issue to the third generation;
(ii) the widow,
(iii) daughters;
(iv) daughters; sons;
(v) the mother;
(vi) the father;
(vii) widows of predeceased sons;
(viii) son's daughters;
(ix) daughters' daugthers;
(x) brothers of whole blood,
(xi)........
(xii) ................
(xiii).........
(2) on failure of the family of the .............. (3) on failure of the family.............. (4) on failure of the families ........... (5) the members......
(6) every reference.....
and the order of succession mentioned in the section 4 is subject to the rules contained in the section 5, and as per section 5 nearer line shall exclude one more remote.
In the back ground of the section 4, 5, and 6, 6(2) of the act, the case of the plaintiff is considered.
44 44 O.S. No.6082/2012
70. As already stated that there is no dispute that the plaintiff is claiming the suit properties stating that the said properties are the self properties of Muniveerappa since he acquired the same through the will, and the said properties are to be treated as self properties of Muniveerappa under section 6 of the act and under section 6(2) the said properties falls to the share of the his mother Bayamma and Nanjappa, who are the legal heirs of the deceased Muniveerappa.
71. The said contention, as already stated cannot be accepted, because Nanjappa being the son of excludes Bayamma, the daughter of Muniveerappa. And she was not entitle for share in the suit properties. And as per Section 6(2) R/w Section 4 of Mysore Hindu Law Women's Right Act 1933 the property vest with the son Nanjappa.
72. Similar matter is also considered by the Hon'ble High Court of karnataka, in RSA NO. 2008 of 2012, dated 22/1/2020. in para 4 & 5 it is held that, (4)The plaintiff being the daughter's son was placed at the fourth degree and he was excluded by the sons and daughters of deceased son. Therefore, the plaintiff's mother did not have any right in the suit schedule property and being a remote heir than the defendants, she was not entitled to claim partition or separate possession of her share in the suit schedule properties. Consequently, the plaintiff who has filed the present suit 45 45 O.S. No.6082/2012 claiming his mother's share cannot contend that he is entitled to his mother's share. The trial court has succinctly applied Section 4 & 5 of the Karnataka Hindu Law Women's Rights Act, 1933 and hence, excluded the plaintiff from any share in the suit schedule property.
(5) Since there is no dispute regarding the date of death of Vedavyasachar in the year 1944 and since there is no dispute regarding the applicability of 1933 Act and as the plaintiff's mother did not stake her claim to the suit schedule property during her lifetime, the judgment and decree of the courts below is proper and legally valid. I do not find any illegality or perversity in the judgment and decree of the courts below. No substantial question of law arises for consideration in this appeal. Hence, this second appeal lacks merit and the same is dismissed.
73. In the above mentioned case it is very clearly held that, the plaintiff's mother did not stake her claim to the suit schedule property during her lifetime. here in this case also the mother of the plaintiff Smt.Bayamma did not stake her claim during her lifetime. when she did not claim her property during her lifetime now the plaintiff cannot claim the share in the suit schedule property through his mother because the plaintiff being governed by Hindu Mitakshara cannot claim the properties through mother in the properties of maternal grand father.
74. Plaintiff while arguing has also placed reliance on Section 8 of the said Mysore Hindu Law Women's Rights Act, 46 46 O.S. No.6082/2012 1933 and relied upon the decision rendered by the Hon'ble Supreme Court reported in 2016(3) SCC 356 in the case of L.Gowramma (dead) by L.R. V/s Sunanda (dead) by L.Rs. And another and stated Smt.Bayamma was entitled for share if not under 6 then under Section 8 but under this also the plaintiff is not entitle for share because the word used in the Section 8 is 'unmarried daughters'. There is no any details either in the pleading or in the document regarding Smt.Bayamma, whether she was married or not at the time of death of Muniveerappa her father, and more over there is no partition has taken place to claim the benefit under Section 8, because under Section 8 the unmarried daughters and widows and unmarried daughters of predeceased un divided sons etc., are entitle for share at partition. here admittedly there in no partition since from the date of death of Sri.Muniveerappa till this date. In the above said decision the hon'ble supreme court has clearly held that, family and personal laws hindu law womens rights act.1933(mysore at 10 of 1933) S.8(1)(b) rights of females to share at partition where after partition among two brothers, one then died intestate leaving behind his widow and unmarried daughtes, only widow, not daughters would be entitled to estate of her husband.
47 47 O.S. No.6082/2012 Under section 8 (d) it is mentioned that, where joint family property passes to a single coparcener by survivorship, it shall so pass subject to the right to shares of the classes of females enumerated in the above sections.
75. In the section 8 word used is only "unmarried daughters", in the case on hand there is no pleading and proof to show that as on the date of death of Muniveerappa, the mother of the plaintiff smt Bayamma was unmarried. And moreover there is no partition even till today and the same is succeeded by sole surviving coparcener Mr Nanjappa. And Smt Bayamma did not exercise her right during her life time. Even under the section 8 of the said act, plaintiff is not entitle for share. Under this circumstances the plaintiff is not entitle for any share in the suit properties, hence the issue No.1 is held in Negative and Issue No.2 answered in Affirmative.
76. ISSUE NO.3; The issue No. 3 is framed regarding the court fee. This suit is simple partition suit filed by the plaintiff by claiming that he is entitle for 1/3 rd share in the suit schedule properties and by valuing the suit under section 35(2) of the Karnataka court fee and suit valuation act, he has paid court fee of Rs 200/ . The defendant No 2 has taken contention that the plaintiff is not in possession of the suit properties and hence he should have paid the court fee under 48 48 O.S. No.6082/2012 section 35(1) on the market value. On the other hand plaintiff contended that since there is no partition of the properties, it is to be treated that the plaintiff is also in joint and constructive possession. In my humble opinion, that the plaintiff has filed the suit assuming that he is also one of the coparcenar, though the suit properties are not the ancestral properties or joint family properties of plaintiff, and paid the court fee under section 35(2) of the Karnataka court fee and suit valuation act. The argument of the defendant that the plaintiff is not in possession of the property and thereby court fee paid is insufficient definitely should have been considered when the plaintiff is able to prove he is entitle for share in the suit properties. But here he is not entitle for any share and considering the settle position of law that "possession of one coparcener is possession of all the coparcener", I am of the opinion that the court fee paid is sufficient. Hence the issue is held in affirmative.
77. ISSUE NO.4: since the suit schedule properties are not the ancestral/ joint family properties of the plaintiff, for the above said reasons, the plaintiff is not entitle for any relief. Hence this issue is held in NEGATIVE.
78. The counsel for plaintiff during his course arguments has relied upon following decisions : 49 49 O.S. No.6082/2012
1. 2007 (1) SCC 694, Jagannath Amin v/s Seetharam (dead) by Lr's and others: is in respect of court fee. The plaintiff has relied upon this decision since the defendant has taken the contention that the plaintiff is not in a possession of the suit property and hence the court fee paid by the plaintiff is in sufficient. By relying upon this decision the counsel for plaintiff has submitted that the court fee paid by the plaintiff is correct, Since the possession of one is possession of all The plaintiff with a bonafide contention deeming that he is one of the coparcener to the suit schedule property has filed the suit for partition. But the properties were originally belonged the Muni Veerappa who is the grand father of plaintiff through his mother and the plaintiff is not a coparcener and suit schedule property is not a ancestral property of the plaintiff but with a bonafide assumption he has filed the suit for partition and paid the court fee under Sec.35 (2) of C.P.C. when issue No.3 regarding the court fee is held in affirmative this decision will not help much to the plaintiff.
2. ILR 2014 KAR 3707, Sri Sampnagi Gowda v/s Sri Muddanna and others and 2017 (9) SCC 586, Adiveppa and others v/s Bhimappa and others : is in respect of presumption about the 'joint family'. the said decision will not come to the aid of the plaintiff because the plaintiff is not member of the Nanjappa's family. he cannot be treated as coparcener to the family of Nanjappa since he has claiming the share through his mother hence this decision is also not applicable to the case on hand.
3. 2013 SCC online Kar 9935, Smt Ramakka and others v/s Smt Thanamma dead by LR's and others : this decision is relied upon by the plaintiff to convince the 50 50 O.S. No.6082/2012 court that the Hindu Law Women Rights Act 1933 ( Mysore Act 10/1933) is applicable to the case on hand Since the Muni Veerappa died prior to the commencement of a Hindu Succession Act 1956 and plaintiff is entitle for share under this Act. This decision has been considered by this court, and has opined that even under the said act also the plaintiff is not entitle for share in the suit schedule properties.
4. 2016 (3) SCC 356, L.Gowramma (dead) by Lr' v/s Sunanda (dead) by Lr's : this decision is also relied by the defendant and the same has been considered by this court regarding the rights of the plaintiff. This decision is relied upon by the plaintiff to convince the court that in event the property passes to a single coparcener, then the same is subject to the rights of the female heir enumerated in the section 8 of the Hindu law womens rights act.1933 (mysore act 10 of 1933). of course this decision is goes against the plaintiff. In this decision the hon'ble supreme court has clearly held that, family and personal laws hindu law womens rights act.1933(mysore at 10 of 1933) S.8(1)(b) rights of females to share at partition where after partition among two brothers, one then died intestate leaving behind his widow and unmarried daughtes, only widow, not daughters would be entitled to estate of her husband.
Under section 8 (d) it is mentioned that, where joint family property passes to a single coparcener by survivorship, it shall so pass subject to the right to shares of the classes of females enumerated in the above sections.
In the section 8 word used is only "unmarried daughters", in the case on hand there is no pleading and proof to show that as on the date of death of 51 51 O.S. No.6082/2012 Muniveerappa, the mother of the plaintiff Smt Bayamma was unmarried. And moreover there is no partition even till today and the same is succeeded by sole surviving coparcener Mr Nanjappa. And Smt Bayamma did not exercise her right during her life time. Even under the section 8 of the said act, plaintiff is not entitle for share. This decision is also will not come to the aid of plaintiff.
5. MANU/TN/2524/2018, Ashok Surana v/s T.Suresh Surana : This decision is relied upon by the plaintiff to counter the arguments of the defendant, that properties alienated by the Gowramma and properties gifted by Gowramma to the plaintiff are not included in the suit schedule property. while relying upon this decision the plaintiff has submitted that those properties are not available for partition, hence the said properties were not included in the suit schedule property. to substantiate this argument he relied upon this decision. But this citation no much importance to the case on hand.
6. MANU/KE/2316/2010, Puthumana Meenakshi Amma v/s Puthumana Kantha Amma and others: This decision is in the same line of Ashok Surana V/s T. Suresh Surana case regarding the partial partition and availability of the property for partition.
7. 2008 (9) SCC 907, K.V.Sudharshana v/s Ramakrishnappa and others : this decision in respect of inam land. To substantiate his contention that the inam land cannot be regarded as individual property of the grantee. Though it is settled position of law, the said decision is not applicable to the case on hand. The plaintiff claims the property rights through his mother. there is lack of pleadings whether she was married or 52 52 O.S. No.6082/2012 unmarried during the time of regrant of land to Nanjappa and moreover the plaintiff and his deceased mother cannot be considered as members of joint family of Muniveerppa/Nanjappa. Hence the same is not helpful to the plaintiff.
8. 2017 SCC online Kar 4318 and ILR 2007 KAR 3454, Rangaswamy v/s Venkatappa and ILR 2005 KAR 568, Doddamma v/s Muniyamma : all these decisions are relied upon by the plaintiff in the same line of above mentioned decision in respect of Inam land, but not helpful to the plaintiff.
9. RFA.1420/2012, High court of Karanataka in Narayanappa and others v/s Dadda Pattabhi: this decision is relied upon by the plaintiff to substantiate his argument that any grant is made in favour of a person is in favour of the joint family. In the said decision it is held "when once the land is granted in his favour, the presumption is, it is granted to him on behalf of the joint family and his possession of the property is presumed to be on the basis of joint title". The said decision is not applicable to the case on hand since Smt. Bayamma cannot be treated as one of the member of joint family as on the date of grant in favour of Sri. Nanjappa because she was a married daughter and moreover there is no pleading to that effect whether she was married or not as on the date of the said grant. Hence this decision is not much helpful to the plaintiff.
79. The defendant has relied upon by the following decisions during the course of his arguments.
53 53 O.S. No.6082/2012
1. 2001 SCC online KAR 297, S.B.Malleshappa v/s Koratigere Shivalingappa : it is in respect of court fee. As already stated that the plaintiff under a bonafide assumption that he has coparcener as filed the present suit by paying the court fee under Sec.35(2) of the Karnataka Court fee and suit valuation Act. When the plaintiff is not a coparcener or member of the joint family, when there is no question of ousting the plaintiff from joint possession, court fee paid by the plaintiff under bonafide circumstances is held to be sufficient and the present decision is not applicable to the case on hand.
2. ILR 2007 KAR 339, Sri Aralappa v/s Jagannath and others : it is in respect of Sec. 34 of Specific relief Act to substantiate that plaintiff has not sought for declaration relief, since there is a joint development agreement and he is not challenged the other sale deeds etc, but I am of the opinion that, when this court has come to a conclusion that the plaintiff is not at all co parcener to claim the share in the suit property this decision is not helpful to the defendant
3. 1992 SCC onlie KAR 258, Sumithra v/s State : it is relied upon by the defendant to explain the what is the Kadim tenant.
4. 1995 SCC online KAR 218, Anjanappa v/s Byrappa since dead by LRs :it is relied upon by the defendants regarding vesting of land with the state when the notificatiion under subsection 4 of Sec.1 in inrespect of any inam has been published in the Karnataka Gazette. This decision relied upon by the defendant to submit that when once the inam land is vested with the government, to regrant in favour of the person is becomes his personal property. Though he relied upon 54 54 O.S. No.6082/2012 this decision to submit that Sri. Nanjappa acquired the property as a khadim tenant. This decision is not much helpful tot he defendant.
5. 1954 SCR 243, C.N.Arunachala Mudaliyar v/s C.A.Muruganatha Mudaliyar : This decision relied by the defendant to substantiate his argument regarding what is the self acquired property.
6. 2009 SCC online KAR 614, K.Madhava Rajanayak v/s K.Sridhar Nayak : This decision is relied upon by the defendant to explain what is joint family property and ancestral property and self acquired property. This decision has been considered by this court and it is aptly applicable tot he facts on hand.
7. 2016 (3) supreme court cases 356, Gowramma v/s Sunanda : this decision is also relied by the plaintiff and the same has been considered by this court regarding the rights of the plaintiff under the Mysore Hindu Women's Rights Act 1933.
8. 2013 SCC online Kar 9935, Ramakka v/s Tanamma : this decision is also relied upon by the plaintiff to convince the court that the Hindu Law Women Rights Act 1933 ( Mysore Act 10/1933) is applicable to the case on hand. Since the Muni Veerappa died prior to the commencement of a Hindu Succession Act 1956. This decision has been considered by this court.
9. 1992 (2) Kar LJ 548 (DB), Annamma & another v/s Puttamma and others : this decision has been relied upon by the defendant to explain how the plaintiff is not entitle for the share in the suit schedule property even in the Mysore Act 1933. This decision is elaborately considered by this court and the same is aptly applicable to the case on hand.
55 55 O.S. No.6082/2012
10. R.S.A.2008/2012, K.R.Venakatarao v/s Vasanth Bheema Rao. High court of Karnataka: This is also under 1933 act of Mysore elaborately considered by this court and the same is aptly applicable to the case on hand and helpful to the defendant.
11. 2006 (5) SCC 353, Prema Singh v/s Birbal and others : it is under Sec.31 of Specific Relief Act which is not much helpful to the defendant.
12. 2011 (11) SCC 786, Kalyan Singh Chouhan v/s C.P.Joshi :regarding the pleadings without proof and in the same line (2008) 17 SCC 491 Bachraj Nahar v/s Nilima Mandal and others has been considered by this court.
13. 2020 SCC online SC 348, Bagavath Sharan v/s Purushottam and others : to explain what is joint family property
14. RFA.683/2003, S.P.Subbarao v/s Lakshmana Rao and others, High court of Karnataka: to explain when the grant is made in favour of member of the joint family it becomes his separate property unless it is shown that the grant was intended on behalf of the joint family. Even if the grantee is a khartha of the joint family such grant in favour of the khartha will not become joint family property, it will be his separate property unless it is shown that the grant was intended in favour of the joint family. This decision is not much helpful to the defendant since this court has clearly opined that the plaintiff is not the joint family member of the Sri. Nanjappa and the properties are not the ancestral properties of plaintiff.
15. RFA.1699/2012, Doddamuniyamma v/s Guttahalli Muniraju, High court of Karnataka: this decision is 56 56 O.S. No.6082/2012 also in the same line of above mentioned decision and not much helpful to the defendant.
16. 2003 SCC online AP 600, Kavitha Gouda v/s Nookala Sudharshan Reddy: is with regard to sale consideration amount. This decision is relied upon defendant to counter the argument of plaintiff that the mother of the plaintiff Smt. Bayamma has executed a nominal sale deed to his brother Nanjappa. It is argued that the consideration amount is not a criteria, it is the only stamp duty is a criteria for the registration of the document. When the document is executed and it is registered it is binding on the parties. This decision is also helpful to the defendant.
80. Issue.No.5: In view of my above findings on the above issues, I proceed to pass the following order, ORDER The suit of the plaintiff is dismissed.
Looking into the relationship of the parties, there is no order as to the costs.
Draw decree accordingly.
(Dictated to Stenographer, transcript thereof corrected, signed and then pronounced by me in the open court, on this 22nd day of October 2020) Sri. SATHISHA.L.P. TH 12 Addl City Civil and sessions Judge Bengaluru city 57 57 O.S. No.6082/2012 SCHEDULEA Item No.1.
All that piece and parcel of the property bearing site No.700, situated at 7th main road, HAL 2nd stage, Indiranagar, Bangalore560008, measuring east to west 40 feet, north to south 60 feet and bounded on the: EAST BY: property bearing site No.701 WEST BY: property bearing site No.699 SOUTH BY: property bearing site No.719 NORTH BY: road Item No.2.
All that piece and parcel of the property bearing site No.701, situated at 7th main road, HAL 2nd stage, Indiranagar, Bangalore560008, measuring east to west 40 feet, north to south 60 feet and bounded on the: EAST BY: property bearing site No.707 WEST BY: property bearing site No.700, SOUTH BY: property bearing site No.718 NORTH BY: road Item No.3 All that piece and parcel of the property bearing site No.702, situated at 7th main road, HAL 2nd stage, Indiranagar, Bangalore560008, measuring east to west 40 feet, north to south 60 feet and bounded on the: EAST BY: property bearing site No.703 WEST BY: property bearing site No.701 SOUTH BY: property bearing site No.717 NORTH BY: road 58 58 O.S. No.6082/2012 SCHEDULEB All that piece and parcel of 43% of the undivided share in the property earlier bearing HAS katha No.63/aA to 63/Q (now 100 and 63/A 44 to 63/Q44) situated at 4 th cross, old Thippasandra, Bangalore measuring east to west 75 feet, north to south 65 feet and bounded on the: EAST BY: Shamanna property WEST BY: Plaintiff's property SOUTH BY: Road NORTH BY: Road SCHEDULEC Item No.1.
All that piece and parcel of the property bearing in Sy.No.39 measuring 1 acre 8 guntas, situated Bommanabande village, Jadigenahalli hobli, Hoskote taluk, Bangalore rural district and bounded on the:
EAST BY: Property of Kariyappa WEST BY: Property of Kenchappa SOUTH BY: Sarakari voni NORTH BY: Property owned by Muninanjappa.
Item No.2.
All that piece and parcel of the property bearing in Sy.No.67 measuring 7 ½ guntas, situated Bommanabande village, Jadigenahalli hobli, Hoskote taluk, Bangalore rural district and bounded on the:
EAST BY: Property owned by Muninanjappa and Subbrayappa WEST BY: Property owned by Kenchappa. SOUTH BY: Talavaru owned by Innamathi land NORTH BY: Property owned by Kariyappa 59 59 O.S. No.6082/2012 Item No.3.
All that piece and parcel of the property bearing in Sy.No.30/3 measuring 23 guntas, situated Bommanabande village, Jadigenahalli hobli, Hoskote taluk, Bangalore rural district and bounded on the:
EAST BY: property owned by Abdul Rahid Khan Tharim WEST BY: property owned by Abdul Jabber Khan SOUTH BY: property owned by Akbhar Ali NORTH BY: property owned by Bommanabande Marappa, ANNEXURE LIST OF WITNESS EXAMINED ON BEHALF OF PLAINTIFF :
PW1 Krishnappa.K. LIST OF WITNESS EXAMINED ON BEHALF OF DEFENDANT:
DW1 Smt Kavyashree LIST OF DOCUMENTS EXHIBITED ON BEHALF OF PLAINTIFF Ex.P.1 Genealogical tree Ex.P.2 Reconveyance agreement Ex.P.2(a) Typed copy of the Ex.P.2 Ex.P.3 Absolute sale deed Ex.P.3(a) Typed copy of the Ex.P.3 Ex.P.4 Certified copy of the gift deed dated 17/3/2003 Ex.P.5 Rectification deed dated 16/6/2003 Ex.P.6 RTC 60 60 O.S. No.6082/2012 Ex.P.7 RTC Ex.P.8 RTC Ex.P.9 Certified copy of the JDA dated 28/3/2007.
Ex.P.10 Certified copy of the gift deed Ex.P.11 Certified copy of the will dated 24/4/1924 Ex.P.12 Certified copy of the order sheet of inam case Ex.P.13 Certified copy of the sale deed dated 21/12/1965 Ex.P.14 Certified copy of the sale deed dated 28/3/1966 LIST OF DOCUMENTS EXHIBITED ON BEHALF OF DEFENDANT: Ex.D.1 GPA by defendant No 1 to the witness Ex.D.2 Death certificate of Nanjappa Ex.D.3 Death certificate of C.Srinivasamurthy Ex.D.4 Death certificate of Gowramma Ex.D.5 Sale deed dated 12/6/1986 Ex.D.6 Khatha certificate Ex.D.7 Khatha extract Ex.D.8 Khatha certificate Ex.D.9 Khatha extract Ex D.10 Tax paid receipts to D.17 61 61 O.S. No.6082/2012 Ex.D.18 to Special notices D.20 Ex.D.21 CITB notice Ex.D.22 Letter by Gowramma to CITB Ex.D.23 Certified copy of the sale deed dated 30/6/1966 Ex.D.24 Memo for handing over the possession to Gowramma by CITB Ex.D.25 Certified copy of the Order sheet in case No.125/1956 Ex.D.26 & Khatha certificate & Khatha extract D.27 Ex.D.28 to 7 RTCs D.34 Ex.D.35 MR Ex.D.36 EC Ex.D. 37 & EC 38 Ex.D.39 Assessment Ex.D.40 & 2 RTCs D.41 Ex.D.42 MR Ex.D.43 Certified copy of the sale deed dated 26/11/2011 executed by Gowramma and Rathna in respect of flat No.1 Ex.D.44 Certified copy of the sale deed dated 26/11/2011 executed by Gowramma and Rathna in respect of flat No.2 Ex.D.45 Certified copy of the sale deed dated 26/11/2011 executed by Gowramma and Rathna in respect of flat No.302 62 62 O.S. No.6082/2012 Ex.D.46 Certified copy of the sale deed dated 26/11/2011 executed by Gowramma and Rathna in respect of flat No.401 Ex.D.47 Certified copy of the sale deed dated 26/11/2011 executed by Gowramma and Rathna in respect of flat No.402 Ex.D.48 Certified copy of the sale deed dated 26/11/2011 executed by Gowramma and Rathna in respect of flat No.102 Ex.D.49 Certified copy of the sale deed dated 26/11/2011 executed by Gowramma and Rathna in respect of flat No.301 Sri. SATHISHA.L.P. TH 12 Addl City Civil and sessions Judge CCH27, Bengaluru city 63 63 O.S. No.6082/2012 Judgment pronounced in the open court (Vide separate order) ORDER The suit of the plaintiff is dismissed.
Looking into the relationship of the parties, there is no order as to the costs.
Draw decree accordingly.
Sri. SATHISHA.L.P. TH 12 ACC and SJ, Bengaluru