Karnataka High Court
Indira Bai vs Prof. Shyamasundar on 8 January, 1988
Equivalent citations: ILR1988KAR1095
JUDGMENT K.A.Swami, J.
1. Both the appeals are preferred against the same judgment and decree dated 4-6-1987 passed by the learned Additional Civil Judge, Dharwad in O.S.No. 113 of 1978. R.F.A.(F.R) No. 9060/87 is filed by the 1st defendant and R.F.A.No. 582/87 is filed by plaintiffs 1 and 3.
2. The office has not registered R.F.A. (F.R) No. 9060/87 on the ground that the appellant therein has not impleaded the second defendant in the suit. It is submitted by Sri Shivaswamy, learned Counsel appearing for the appellant-first defendant that the property alienated by the 1st defendant-appellant in favour of the second defendant has been excluded from the decree of the trial Court on holding that the alienation was good as it was for legal necessity. The first defendant-appellant does not challenge the said portion of the decree. Hence the second defendant is not a necessary party to the appeal preferred by the 1st defendant. In view of the fact that the appellant does not challenge the correctness of the finding recorded and the decree passed, by the trial Court in respect of the alienation made in favour of the second defendant, it is not necessary to implead the second defendant in the appeal. Hence the office objection is over-ruled. It is directed to give a number to the appeal.
3. The Appeal R.F.A. (F.R.) 9060/87 is also heard along with R.F.A.No. 582/87. Sri Kulkarni, learned appearing for the appellants in R.F.A.582/87 also takes notice for respondents 1 and 2 in the connected appeal R.F.A.(F.R) 9060/87. The 2nd respondent in R.F.A. No. 582/87 is also represented by Sri Ramakant V. Desai, Advocate. Sri Shivaswamy, Advocate has also filed power for respondent-1 in R.F.A. 582/87.
4. The parties in this Judgment will be referred to with reference to their position in the suit.
5. Both the appeals lie in a very narrow compass. As such they can also be decided on the undisputed facts and the findings recorded by the trial Court in as much as the 1st defendant who is the appellant in R.F.A.(F.R) 9060/87 does not contend that the 2nd plaintiff was a congenital idiot or lunatic. Further Sri Shivaswamy, learned Counsel appearing for the 1st defendant has also produced the certified copies of the pleadings and I.A.No. 27 and the objections filed thereto and the order passed thereon and also the Memo dated 17-1-1984 filed before the trial Court. Hence it is not necessary to obtain the records.
6. Even though the appeals are posted for admission, by consent of the learned Counsel appearing on both sides, these appeals are heard for final disposal.
7. The appellants in R.F.A. 582/87 are plaintiffs 1 and 3. They along with one Srinivas Gambhir - son of the 1st plaintiff - 1st appellant - filed O.S.No. 113/78 in the Court of the Civil Judge, Dharwad (decided by the Additional Civil Judge) out of which the appeals in question arise, for partition and separate possession of the share and other reliefs against the respondents in R.F.A. 582/87 who were defendants 1 and 2 in the suit.
8. The prayers made in the suit were as follows:
a) That partition and separate possession of 1/2 share in the suit properties be awarded to the plaintiff No. 1, with future mesne profits.
b) Maintenance charge of Rs. 300/- per month of the plaintiff No. 2 be placed on the suit properties.
c) Defendant be ordered to pay Rs. 150/- per month as his share of the maintenance of the plaintiff No. 2, to the plaintiff No. 1, on behalf of the plaintiff No. 2. Permanent injunction be issued against defendant 2 not to exercise any rights of ownership over the property said to be purchased from defendant-1 under the sale deed.
(Amended as per order of the Court on I.A.I. 10-1-1978.)
d) Future mesne profits be awarded and Court costs and other ancilliary reliefs may be awarded from defendant to plaintiff.
The 1st plaintiff has claimed half share in the suit properties on the ground that the 2nd plaintiff was a congenital idiot or lunatic and as such he was not entitled to inherit the suit properties. Therefore, defendant-1 is entitled to half share and she is entitled to the remaining half. The 1st defendant has disputed that the 2nd plaintiff was a congenitalidiot or lunatic. According to him, the 2nd plaintiff was not a congenital idiot or lunatic and as such he was not disqualified to inherit, therefore he was also entitled to a share in the suit properties except those which were alienated to defendant-2. He also further contended that the alienation made by him in favour of defendant-2 was for legal necessity and was for the benefit of the family. Defendant-2 also contended that the alienation was for legal necessity and as such it was binding upon the plaintiffs and the 1st defendant.
9. Defendant-2 is the alienee of one of the suit properties bearing C.T.S. No. 71. B + 74+ 75A + 75B/MF of Dharwar. The alienation of this property is made by defendant- 1. In the appeal filed by defendant-1 in this Court and also before the trial Court, defendant-1 has not challenged the alienation. In this Court he does not dispute the correctness of the finding recorded by the trial Court that the alienation made in favour of the 2nd defendant by the 1st defendant is valid and binding on the plaintiffs and defendant-1. Therefore, he has not impleaded defendant-2 in his appeal.
10. On the basis of the pleadings of the parties, the trial Court raised the following issues:
1) Whether Court fee paid is proper and sufficient?
2) Whether the plaintiff No. 1 proves that plaintiff No. 2 was a lunatic and idiot at the time of the suit and that she incurred expenditure for his maintenance till his death?
3) Whether the plaintiff No. 1 is entitled to past maintenance of plaintiff No. 2 from out of the suit properties or income from such properties?
4) Whether the defendant No. 1 proves that the properties given to the plaintiff No. 3 and another sister by alleged gifts are liable to be included in the properties liable for partition?
5) What rights the plaintiffs 1, 2 and the defendant No. 1 derived in Sri Gururao's properties on his death in 1940?
6) Whether the defendant No. 1 proves that the plaintiff No. 1 is estopped from claiming any share in the suit properties in view of letter's acts before revenue and survey officers and latter's conduct in dealing with the properties as guardian of her minor sons?
7) Whether the defendant No. 1 proves that in view of claim for maintenance under Section 125 of Cr.P.C. the plaintiff No. 1 is debarred from claiming partition?
8) Whether the claim for partition is barred by time as contended by the defendant No. 1 in para 13(a) of his W.S?
9) Whether the defendants prove that sale of C.T.S.Nos. 71B/74 + 75 + A + 75B/MF by the defendant No. 1 in favour of the defendant No. 2 binds the plaintiffs 1 and 2 and that those properties are not liable for partition?
10) Whether the plaintiff No. 1 is entitled to partition of her share in the suit properties and separate possession of the same? if so, what is her share?
11) Whether the plaintiff is entitled to future mesne profits?
12) What order or decree?
On the basis of the evidence on record, the trial Court has held that the Court fee paid was proper and sufficient; that plaintiff-1 failed to prove that plaintiff-2 was a congenital idiot or lunatic and as such he incurred disqualification to inherit the suit properties; that she failed to establish that she incurred expenditure for the maintenance of the 2nd plaintiff till his death; that the plaintiff-1 was entitled to have the suit properties divided and separate possession obtained according to her share even though she had claimed maintenance in a proceeding under Section 125 Cr.P.C. On issue No. 4 it has held thus:
"Hence, this Court at this stage cannot give any opinion in respect of the gifted property by defendant No. 1 either in favour of plaintiff No. 3 Sindhu or the other sister of defendant No. 1 Padmavathi. In case the defendant No. 1 succeeds in his suit O.S.374/73 avoiding the said gift in favour of Sindhu plaintiff No. 3, or in any other proceedings against Padmavathi in respect of gift in her favour, the said two properties may be then brought to partition between the present plaintiff and present defendant No. 1. At present, those two properties i.e., the subject-matter of the gifts, one in favour of plaintiff No. 3 Sindhu and other in favour of Padmavathi, cannot be brought into hotch-pot. Hence this issue is answered against the defendant No. 1 and in negative."
The trial Court has further held that the plaintiff No. 1 is entitled to the share in the suit properties to which her husband was entitled to at the time of his death; that plaintiff- 1 had not relinquished her right in the suit properties in favour of the 1st defendant; therefore she is not deprived of her share in the suit properties. On issue No. 8, the suit is held to be in time. On issue No. 9, relating to alienation made by defendant-1 in favour of defendant-2, it is held that the alienation is valid and binding on plaintiffs 1 and 2. As such the properties alienated to defendant-2 are not available for partition.
11. During the pendency of the suit, the 2nd plaintiff expired. The trial Court has held that the share of the 2nd plaintiff went to the 1st defendant by survivorship as he died as a member of the joint family. Consequently, the trial Court has held that the share of plaintiff No. 2 did not devolve upon plaintiff-1, as such plaintiff No. 1 is entitled to only 1/3 share. Accordingly, the trial Court has passed a preliminary decree for partition in the following terms:
"Suit of the plaintiff is decreed. No costs. Plaintiff No. 1 is declared as entitled for 1/3rd share and separate possession in the suit properties except property bearing C.T.S. N0.71.B/74 + 75A + 75B/MF the property under sale by defendant No. 1 in favour of defendant No. 2 for legal necessities."
12. In the tight of the contentions advanced by Sri Shivaswamy, learned Counsel appearing for the 1st defendant - appellant in R.F.A.(F.R) No. 9060/87 and respondent-1 in RFA No. 582/87, and Sri S.G. Kulkarni learned Counsel for plaintiffs 1 and 3 -appellants 1 and 2 in R.F.A. 582/87 and respondents 1 and 2 in R.F.A. (F.R) No. 9060/87 and Sri Ramakant V. Desai, learned Advocate appearing for respondent-2 in R.F.A. No. 582/87, the following points arise for consideration:
1. Whether the trial Court is justified in rejecting I.A.No. 27 filed by the plaintiffs on 18-2-1986 seeking amendment of the plaint?
2. Whether the first plaintiff is entitled to the share of the 2nd plaintiff in view of the fact that he died during the pendency of the suit on 24-12-1983?
3. If answer to point No. 2 is in the affirmative whether plaintiff-1 is entitled to have the share of the 2nd plaintiff without specifically amending the plaint?
4. Whether the plaintif No. 1 had relinquished her right in favour of defendant No. 1?
5. Having regard to the fact that plaintiff-1 claimed maintenance against defendant-1 whether she is entitled to claim a share in the suit property?
6. Whether the finding recorded by the trial Court on issue No. 9 regarding the alienation made in favour of defendant-2 of the properties bearing CTS Nos.71B/74+75A+ 75B/MF by defendant-1 is correct?
7. Whether the suit is barred by time?
13. Before taking up the points for consideration, it is necessary to mention certain undisputed facts:
The relationship between the parties is not in dispute. Plaintiff-1 is the mother of plaintiffs 2 and 3 and defendant-1. Plaintiff No. 3 is the sister of plaintiff-2 and defendant-1. Defendant-2 is not related to the parties. As already noticed, he is the alienee of some of the suit properties. It is also not in dispute that the suit properties were owned and possessed by Sri Gururao Gambhir, who was the husband of the 1st plaintiff and father of plaintiffs 2 and 3 and defendant-1. The suit properties were the self acquired properties of deceased Gururao. He died on 13-12-1940, leaving behind his widow the 1st plaintiff, two sons -plaintiff-2 and defendant-1 -and three daughters Padmavathi, Leelavathi and plaintiff-3. During the pendency of the suit, plaintiff-2 expired on 24-12-1983 before the evidence was recorded in the suit. On 17-1-1984, the plaintiffs 1 and 3 filed a memo intimating the death of plaintiff-2 and further stating that plaintiff-2 was a born-lunatic, therefore he did not have any right in the suit properties; hence it was not necessary to bring his legal representatives on record. Thereafter on 18-2-1986, I.A.No. 27 was filed seeking amendment of the plaint. It was opposed by the 1st defendant. The trial Court rejected the same on 1-3-1986.
POINT NO. 1:
14. The amendments sought in I.A.No. 27 by plaintiffs-1 and 3 were as follows:
"1. Para 5: The first four lines in this para be permitted to be deleted and in their place the following be inserted:
"The plaintiff No. 2 has 1/3rd share in the suit properties, plaintiff No. 1 being his mother in Class I heir and as such entitled to succeed to his 1/3rd share as the plaintiff No. 1 is his class I heir."
2. In para 13: Sub-para (a) may be deleted and in its place new para be substituted as follows:
"The plaintiff No. 1 has 1/3rd share and plaintiff No. 2 has 1/3rd share in the suit properties and the mesne profit from the date of suit be please awarded in this proportion."
3. A new sub-para (f) be please allowed to be inserted:
"Since plaintiff No. 2 has died on 24-2-1983, his share in the suit property be please awarded to plaintiff No. 1 by partition and separate possession."
The following reasons were given in the affidavit of the 1st plaintiff filed in support of the application I.A.No. 27:
"Plaintiff No. 2 is my second son and he died on 24-12-83. On account of his death it is necessary to make certain amendments in the plaint. A memo was submitted on my behalf that since he is congenital idiot it is not necessary to bring his heirs on record. This was due to my illiteracy and misconception."
The trial Court has rejected the application on the ground that the amendment sought for was not a mere alteration in the share of plaintiff-1; that it was an amendment giving up the plea that plaintiff-2 was a born lunatic; that it would affect the interested persons;that according to defendant-1, there was a will executed by plaintiff-2, therefore the amendment would affect the legatee under the will; that the amendment would also introduce a new plea, as such the same cannot be allowed; that the amendment was not necessary to decide the real questions in controversy between the parties; that it would be open to the plaintiffs to take up the plea as an alternative contention if they choose to do so or as the main relief but they cannot give up the original stand regarding plaintiff-2's disability to inherit the property. Accordingly, the trial Court passed the following order on 1-3-1986:
"I.A.No. XXVII is dismissed. No costs.
However, liberty is eserved to the plaintiffs to file fresh application for amendment of the plaint on the same contentions now taken in I.A.No. XXVII as alternative contentions or prayer or as main relief."
The 1st defendant opposed the application on the ground that the 2nd plaintiff was not a born-lunatic; he had left a will. Therefore, there was no intestate succession. In the written statement also he had taken a stand that the 2nd plaintiff was not a born-lunatic and he was entitled to a share and he was not disqualified to inherit. In the objections filed to I.A.No. 27 regarding the will alleged to have been left by deceased 2nd plaintiff, it was averred as follows:
"7. The memo is not a result of illiteracy or misconception. It is now learnt that, plaintiff No. 2 has executed a will disposing off his rights in the suit property. It appears that, it appears that (sic) knowing of a will executed by the deceased plaintiff No. 2, she and plaintiff No. 3 have passed the memo to circumvent the said will to the effect that the deceased plaintiff No. 2 had no right, title or interest in the suit property and having come to know the contents of the will, it appears that she wants to take a stand entirely inconsistent with the original stand in the plaint. This defendant is making enquiries as to the person who is in custody of such a will and the contents thereof and after having ascertained as to the person who is in custody of the will he will take necessary steps in respect of the will such as probate etc.
8. In view of the specific stand that the plaintiff No. 2 has no interest in the suit properties end having deposed in this very suit that plaintiff No. 2 was contentially idiot, it is not now open for the plaintiff No. 1 to contend that the plaintiff No. 2 has got 1/3 share and thus seek an amendment."
We are of the view that the trial Court is not justified in rejecting the amendment. The amendment would not have altered the nature of the relief sought for in the suit nor it would have introduced a new cause of action. No prejudice also would have been caused to the 1st defendant. It was the case of the 1st defendant before the trial Court, and it is also his case before us that the 2nd plaintiff was not a born idiot or lunatic; that he did not suffer from any disqualification so as to disable him from inheriting the suit properties of his father. He did not state definitely as to the execution of the will by the deceased 2nd plaintiff. His objection was that he had learnt that the 2nd plaintiff had executed a will. He also further stated that he was not aware of the contents of the will, the persons in whose favour the bequeath was made, the person in whose custody the will was kept and that after ascertaining the same he would take necessary steps. By allowing the amendment the suit would have remained the same viz., the suit for partition. Neither the nature of the suit nor the cause of action would have changed. Even if the 1st defendant had produced and proved the will, it would have only prevented the devolution of the estate of the deceased 2nd plaintiff upon his heir viz., the 1st plaintiff as per the provisions of the Hindu Succession Act. Consequently, she would not have been entitled to the relief which she wanted to have by way of amendment. The amendment became necessary because of the death of the 2nd plaintiff. The amendment was also necessary for the purpose of effectively and finally adjudicating the controversies between the parties.
15. As far as the deletion of the plea relating to 2nd plaintiff being the congenital idiot or lunatic is concerned, it would not have also affected the 1st defendant because it was his case that the 2nd plaintiff was not a born idiot or lunatic. In addition to this, the trial Court was of the view that it was open to the plaintiffs to take up this plea as an alternative contention if they choose to do so and seek it as a main relief but they could not give up the earlier stand. Thus we are of the view that the trial Court did not exercise the discretion properly and failed to appreciate the scope of the suit and the relevant considerations for granting or refusing an amendment. Therefore, we set aside the order dated 1-3-1986 and allow the application I.A.No. 27. Accordingly point No. 1 is answered in the negative.
POINT NOS.2 and 3:
16. These two points are inter-connected. Therefore they are considered together.
17. The trial Court has held thus:
"Plaintiff Nos.1 and 2 and defendant-No. 1 will all have equal share in the suit properties. The learned advocate for defendant No. 1 contended that plaintiff No. 2 and defendant No. 1 were joint tenants with the rights of survivorship in the separate property of late Gururao. According to Mitakshara school, the defendant No. 1 and plaintiff No. 2 being the sons of late Gururao, come under Article 41(1)(a) by Mulla on Hindu Law, they take the self-acquired property of late Gururao as joint tenants with the rights of survivorship. The shares of each of the plaintiff No. 1, plaintiff No. 2 and defendant No. 1 would be 1/3rd after the properties under sale Ex.D.74 by defendant No. 1 to defendant No. 2 are left. Applying the above Article 41(1)(a), the death of plaintiff No. 2 and his undivided interest in the joint family property will come to defendant No. 1 on the basis of survivorship. Here plaintiff No. 1 has filed this suit for partition of the suit property; her interest is determined at the time of filing the suit. She is a separated member of the coparcenery before the death of plaintiff No. 2. Section 6 of the Hindu Succession Act proviso (1) will not come to the rescue of plaintiff No. 1. The plaintiff No. 2 is not adjudged under Order 32 Rule 15 CPC as of unsound mind. So, the plaintiff No. 1 has not filed this suit for partition on behalf of plaintiff No. 2 legally. Hence plaintiff No. 2 is not a separated member of the co-parcenery consisting of plaintiff No. 2 and defendant No. 1. The interest of plaintiff No. 2 in the coparcenery property on the death of plaintiff No. 2 devolves by survivorship upon the surviving member of the coparcenery i.e., defendant No. 1. The explanation No. 2 of Section 6 of Hindu Succession Act comes in the way of succession of plaintiff No. 1 to the property of plaintiff No. 2 on the basis of proviso to Section 6 of the said Act. Hence I am of the opinion that the plaintiff No. 1 is entitled for 1/3rd share in the suit property except the property bearing CTS No. 71B/74 + 75A + 75B/MF which is sold by defendant No. 1 in favour of defendant No. 2 for joint family necessity as held by me in issue No. 9. Defendant No. 1 is entitled for the share and interest of plaintiff No. 2 in the suit property on the basis of survivorship. Hence, this issue is answered in affirmative holding that plaintiff No. 1 is entitled for partition and separate possession in the suit property in respect of her 1/3rd share except the property bearing CTS No. 71B/74 + 75A + 75B/MF under sale."
18. Though in the objections filed to I.A.No. 27 the 1st defendant contended that the 2nd plaintiff had left a will, therefore, there was a testmentary succession; but no will was produced during the course of trial after the application I.A.No. 27 for amendment was rejected. Before us also, no such will is produced nor particulars of the same as to the date of execution, the legatees and the properties willed away by the 2nd plaintiff are furnished.
19. Sri Shivaswamy, learned Advocate appearing for the 1st defendant also does not contend that there is a will left by deceased 2nd plaintiff bequeathing his share in the suit properties. The main contention urged by Sri Shivaswamy is that the plaintiffs 1 and 3 having come forward with a plea that plaintiff-2 was a congenital idiot or lunatic and as such was not entitled to inherit the properties of his father and claimed only half share in the suit properties on that ground, plaintiff 1 is not entitled to have a decree declaring that the share of the deceased 2nd plaintiff has devolved upon her under the Hindu Succession Act. It is further contended that the plaintiffs did not even seek amendment of the plaint seeking alternative plea as indicated in the order dated 1 -3-1986 passed by the trial Court rejecting I.A.No. 27. Therefore, it is contended that in the appeal, plaintiff-1 is not entitled to seek the relief which she did not seek in the suit.
20. There is no doubt that the plaintiffs, after I.A. No. 27 was rejected, did not seek amendment in terms of the order dated 1-3-1986. Therefore, the question for consideration is whether having regard to the reliefs sought for in the plaint, in a suit for partition, the 1st plaintiff is entitled to have a decree declaring that the share of the deceased 2nd plaintiff also has devolved upon her? Of course, we have, on point No. 1, held that the rejection of I.A.No. 27 is not justified. We have also allowed the amendment. Nevertheless, even without such amendment also, on the undisputed facts, plaintiff-1 is entitled to have the adjudication made as to the devolution of interest of the 2nd plaintiff in the suit properties, since the death of the 2nd plaintiff has taken place during the pendency of the suit. The trial Court curiously enough has held that the share of the 2nd plaintiff in the suit properties excluding those alienated to the 2nd defendant, has gone by survivorship to the 1st defendant. This is contrary to the provisions of the Hindu Succession Act and is opposed to the very stand taken by the 1st defendant that the deceased 2nd plaintiff had left a will.
21. As far as the objection of the 1st defendant that the 2nd plaintiff had left a will is concerned in view of the fact that the 1st defendant did not amend the written statement and did not either produce the will or furnish by way of amendment to the written statement or by way of additional written statement necessary details of the will such as the date of the will, the properties concerned in the will, the person or persons in whose favour the will was executed and the attestors and whether it was registered and the person in whose custody it was kept, it must be deemed to have been given up. Before us also, no such stand is taken. No such particulars have been stated in the Memorandum of Appeal. Therefore, we have to proceed on the basis that there was no testamentary succession to the property of the deceased 2nd plaintiff.
22. Before we proceed to consider whether the trial Court is right in holding that the share of the deceased 2nd plaintiff went by survivorship to the 1st defendant, it is also necessary to advert to the issue as to whether plaintiff No. 2 was a congenital idiot or lunatic.
23. In view of the fact that the 1st defendant does not dispute the correctness of the finding recorded by the trial Court that the 1st plaintiff has failed to prove that the 2nd plaintiff was a congenital idiot or lunatic and also inview of the amendment sought for by plaintiffs 1 and 3 to delete that contention which amendment we have allowed while considering point No. 1, it now becomes undisputed that the 2nd plaintiff was not a congenital idiot or lunatic and was entitled to inherit the share in the properties of his father. However, we make a reference to the evidence on record and the finding recorded by the trial Court in this regard.
The subsequent change in the stand of the plaintiffs Nos.1 and 3 regarding plaintiff No. 2 does not cause any prejudice to the 1st defendant or affect his interest in any manner. Even otherwise, the trial Court has held that the 1st plaintiff has failed to prove that plaintiff-2 was a congenital idiot or lunatic. The finding recorded by the trial Court on this point is proper and correct and as such on reconsideration of the evidence, we are inclined to accept it. The evidence produced in the case does not establish that plaintiff No. 2 was congenitally idiot. Ex.P.20 is the Medical Certificate issued by the Mental Hospital, Dharwad dated 5-4-1979. The doctor who has issued it, is not examined. It is stated in this certificate that plaintiff No. 2 "had head injury and brain damage during his birth." But P.W.1, the mother herself has not stated that at the time of birth, plaintiff No. 2 had any head injury. Ex.P.25 is another medical certificate issued by Dr.K.S. Kamalapur dated 12-11-1981. It is mentioned in Ex.P.25 thus:
"...If I remember right on the right side of the head noticed that there was a soft circular swelling on the head no immediate treatment I considered was possible or necessary. I expected the swelling would get absorbed in due course of time."
This doctor has not been examined. Plaintiff No. 2 was born in the year 1940. The certificate, Ex.P.25 has been issued nearly 40 years thereafter on 12-11-1981. The certificate also does not state that it was issued on the basis of the records maintained by the hospital. In the absence of examination of the Doctor who issued the certificate Ex.P.25, the trial Court is justified in rejecting it. Next we come to Ex.P.26, a certified copy of the Commissioner's report dated 2-6-1981. The Commissioner was a superintendent. Mental Hospital, Dharwad. He is also not examined in the case. He has opined thus:
"...The other factor that is observation of the patient does not show any signs of congenital deformities in the facial appearance or shape of the head.
CONCLUSION: ....It is difficult to declare that this might have been due to congenital illness. The present condition definitely suggest that it is due to a long-standing illness and the patient is physically and mentally severely incapacitated."
In addition to this, there are certain out-patient chits and medical bills, produced and marked as Exhibits P.4 to P. 19 and P.33 to P.80. The trial Court has observed that these records do not contain necessary information; in some of them the name of the Doctor is mentioned and in some name of the doctor is filled up as 'Doctor in Mental Hospital'. None of the said prescription chits show the history of the disease and nature of the disease. This is all the evidence that is adduced on this point. We are satisfied that the trial Court is justified in holding that plaintiff No. 2 was not congenital idiot. As it is already pointed out, this is not at all contested by the 1st defendant, who is appellant in R.F.A.F.R. 9060 of 1987. Before us the appellants in R.F.A.582 of 1987 also did not challenge the correctness of the finding recorded by the trial Court that plaintiff No. 2 was not proved to be congenital idiot or lunatic.
Consequently, the position that obtains is that the suit properties are the self-acquired properties of Sri Gururao Gambhir. He died on 13-12-1940 leaving behind the widow, plaintiff No. 1, two sons plaintiff No. 2 and defendant No. 1 and three daughters. At that time the Hindu Women's Right to Property Act, 1937 (hereinafter referred to as '1937 Act') was also extended to the Bombay Karnataka Area. Consequently, as per Sub-section (1) of Section 3 of 1937 Act, in the self-acquired property of her deceased husband, the widow - the plaintiff No. 1 - was entitled to the same share as a son subject to the conditions contained in Sub-section (3) thereof. Consequent upon the death of Gururao Gambhir, plaintiff No. 1 became entitled to 1/3rd share, plaintiff No. 2,1/3rd share and defendant No. 1,1/3rd share in the suit properties left by the deceased Gururao.
Plaintiff No. 2 died during the pendency of the suit. First defendant has contended that plaintiff No. 2 had left a will and as such there was no intestate succession. Hence the devolution of interest of plaintiff No. 2 was not covered by Sections 6 and 8 of the Hindu Succession Act. However, curiously enough he has not produced any will. It was his case in the objections to I.A.No. XXVII that he had heard that 2nd plaintiff had left a will and if he comes to know of it he would disclose the same. Even to this day, he has not disclosed the will nor in this appeal it is his case that plaintiff No. 2 had left a will. Therefore, we have to proceed on the basis that plaintiff No. 2 died intestate.
24. We shall now consider whether the trial Court is right in holding that the 1/3rd share of the deceased second plaintiff went by survivorship to the first defendant. The reasons of the trial Court is that the plaintiff-2 and defendant-2 being the sons of deceased Gururao Gambhir were undivided and were members of a joint family, therefore they became the joint tenants of the self acquired property left by their father Gururao Gambhir. The further reason of the trial Court is that as the second plaintiff died undivided, his interest in the suit properties went by survivorship to defendant-1. The trial Court has relied upon para 31(1)(a) of Hindu Law by Mulla, 15th Edition, in support of its reasoning.
24.1 : We are of the view that the trial Court is not right in holding that plaintiff-2 and defendant-1 became joint tenants of the self acquired properties left by their father Gururao Gambhir. It has failed to notice the incidents of separate or self acquired property of a Hindu. In KATAMA NATCHIAR v. THE RAJAH OF SHIVAGUNGA, Moore Indian Appeals 543, the Judicial Committee of the Privy Council considered this aspect of Hindu Law and held as follows:
"Again, it is not pretended that on the death of the acquirer of separate property, the separately acquired property falls into the common stock, and passes like ancestral property. On the contrary, it is admitted that if the acquirer leaves male issue, it will descend as separate property to that issue down to the third generation. Although, therefore, where there is male issue, the family property and the separate property would not descend to different persons, they would descend in a different way, and with different consequences; the sons taking their father's share in the ancestral property subject to all the rights of the coparceners in that property, and his self-acquired property free from those rights. The course of succession would not be the same for the family and the separate estate; and it is clear, therefore, that, according to the Hindu Law, there need not be unity of heirship.
But to look more closely into the Hindu law. When property belonging in common to a united Hindu family has been divided, the divided shares go in the general course of descent of separate property. Why, it may well be asked, should not the same rule apply to property which from its first acquisition has always been separate? We have seen from -the passage already quoted from Macnaghten's "Hindu Law" that where a residue is left undivided upon partition, what is divided goes as separate property; what is undivided follows the family property; that which remains as it was, devolves in the old line; that which is changed and becomes separate, devolves in the new line. In other words, the law of succession follows the nature of the property and of the interest in it."
xx xx xx xx xx "According to the principles of Hindu law, there is coparcenaryship between the different members of a united family, and survivorship following upon it. There is community of interest and unity of possession between all the members of the family, and upon the death of any one of them the others may well take by survivorship that in which they had during the deceased's life time a common interest and a common possession. But the law of partition shows that as to the separately acquired property of one member of a united family, the other members of that family have neither community of interest nor unity of possession. The foundation, therefore, of a right to take such property by survivorship fails; and there are no grounds for postponing the widow's right to any superior right of the coparceners in the undivided property.
24.2: The incidents of separate or self acquired property summarised in Hindu Law by Mulla, 15th Edition at para 222 are also to the same effect. The same may also be noticed here:
"Incidents of separate or self-acquired property. - A Hindu, even if he be joint, may possess separate property. Such property belongs exclusively to him. No other member of the coparcenary, not even his male issue, acquires any interest in it by birth. He may sell it, or he may make a gift of it, or bequeath it by will, to any person he likes. It is not liable to partition/and, on his death intestate, it passes by succession to his heirs, and not by survivorship to the surviving coparceners."
This being the position, the self acquired property of late Gururao Gambhir (which is the suit property) on his death intestate passed by a succession to his heirs. The property of the deceased Gururao Gambhir so obtained by plaintiff Nos.1, 2 and defendant-1 was not the joint family property. They succeeded to it as tenants in common and not as joint tenants. Thus, they became the co-owners. Of course, the share of the first plaintiff was subject to Subsection (3) of Section 3 of 1937 Act till the Hindu Succession Act, 1956 (hereinafter referred to as 'the Act') came into force. On coming into force of the Act, she also became the absolute owner of her share. The second plaintiff died intestate as a divided member as he died after filing the suit for partition and after the coming into force of the Act, therefore, his share in the suit properties which is not a joint family property devolved according to the provisions of Chapter II of the Act. The share in the suit properties left by the deceased plaintiff No. 2 was not a Mitakshara coparcenary property. It was a self acquired property of his father which he got it by succession and not by inheritance. Therefore, Section 6 of the Act was not applicable. Section 8 of the Act was attracted. Accordingly, the share of the second plaintiff devolved upon the first plaintiff who is the only Class-l heir to the deceased plaintiff-2 as mentioned in the Schedule to the Act. Defendant-1, plaintiff-3 and two daughters of plaintiff-1 though they are the brother and sisters respectively of deceased plaintiff-2, are not Class-I heirs. Therefore, plaintiff-1 alone is entitled to succeed to the share in the suit properties left by deceased 2nd plaintiff. Therefore, the trial Court is not right in holding that the share of the 2nd plaintiff in the suit properties excluding those alienated to defendant-2 has gone by survivorship to defendant-1. Accordingly point No. 2 has to be answered in the affirmative.
25. The next point for consideration is whether the 1st plaintiff is entitled to have the share of the 2nd plaintiff allotted to her without specifically amending the plaint. In view of our finding on point No. 1, this point has lost its efficacy because we have allowed the application I.A.No. 27. Consequently, the plaint now stands amended including the prayer for claiming the share of the 2nd plaintiff by the 1st plaintiff. However, the contention of Sri Shivaswamy, learned Counsel for the 1st defendant is that such a thing has not been done in the trial Court, therefore, the 1st plaintiff is not entitled to have such a relief in the appeal. Hence we will now consider whether such a relief would have been granted to the 1st plaintiff even without an amendment.
26. This is a suit for partition. Plaintiffs 1 and 2 and defendant-1, as per the undisputed and proved facts have 1/3rd share in the self-acquired properties left by deceased Gururao. In a suit for partition the shares of the parties have to be determined according to the findings arrived at by the Court. The Court is also required to take into account the events that take place subsequent to the filing of the suit and also determine the shares according to such events if those events have a bearing on the quantum of share of the parties to the suit. That the reliefs prayed for in the suit can be moulded as long as such reliefs flow from the same cause of action even though such reliefs a specifically prayed for or not. Rule 7 of Order VII of C.P.C. is very widely worded. A Division Bench of this Court RANGAPPA v. JAYAMMA, while considering the scope Rule 7 of Order VII of C.P.C. has held thus:
"6. In this background, the point that arises for consideration is, whether in these circumstances, the trial Court is justified in law in refusing to pass a preliminary decree for partition only on the ground that it is not one of the reliefs sought for in the suit and the suit is only for a declaration of title and injunction:
7. Order VII Rule 7 C.P.C. reads thus:
"Relief to be specifically stated:
Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement."
The words "and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for" are wide enough to empower the Court to grant such relief as the plaintiff is entitled to, on the facts established on the evidence on record, even if such relief has not been specifically prayed for."
8.1 The provisions of Order VII Rule 7 of the C.P.Code are so widely worded that they do enable the Court to pass a decree for partition in a suit for declaration of title to immoveable property and possession thereof where it turns out that the plaintiff is not entitled to all the interest claimed by him in the suit property. In such a situation there is nothing unusual in giving relief to the parties by directing partition of the suit property according to the shares of the parties established in the suit. The normal rule that relief not founded on the pleadings should not be granted is not without an exception, Where substantial matters constituting the title of all the parties are touched in the Issues and have been fully put in evidence, the case does not fall within the aforesaid rule. The Court has to look into the substance of the claim in determining the nature of the relief to be granted. Of course, the Court while moulding the relief must take care to see that relief it grants is not inconsistent with the plaintiff's claim, and is based on the same cause of action on which the relief claimed in the suit, that it occasions no prejudice or causes embarassment to the other side; that it is not larger than the one claimed in the suit, even if, the plaintiff is really entitled to it, unless he amends the plaint; that it had not been barred by time on the date of presentation of the plaint.
8.2 No doubt the plaintiff has sought for exclusive title and he has not been able to prove his exclusive title; but has been able to prove that he is entitled to a half share in the suit properties. When a party claims exclusive title to the suit property and is able to establish that he is entitled to half of the suit property, it will not be unusual for the Court to pass a decree for partition and possession of his half share. In fact such a relief flows from the relief prayed for in the plaint that he is the exclusive owner of the entire property. When a larger relief is claimed and what is established is not the entire relief claimed in the suit but a part of it, as whole includes a part, larger relief includes smaller relief, and it also arises out of the same cause of action. Therefore, in the instant case, nothing prevented the Court to pass a decree for partition, in order to avoid another suit for partition and to give relief to the party in conformity with the right he had established."
That being the position, even in the absence of specific amendment of the plaint, the plaintiff No. 1 was and is entitled to have the relief declaring that she is entitled to the share in the suit properties excluding those alienated to the 2nd defendant left by the deceased 2nd plaintiff. Accordingly point Nos.2 and 3 are answered in the affirmative.
Point No. 4:-
27. The case of the 1st defendant in this regard is that immediately on the death of Gururao Gambhir the 1st plaintiff gave 'Varadi' to enter the names of plaintiff No. 2 and defendant No. 1 as their guardian because at that time both were minors. Accordingly, their names were entered and after they became majors the names of plaintiff No. 1 and defendant No. 1 were continued and the name of the first plaintiff was not entered as the person entitled to a share in the suit properties. Hence, the case of the 1st defendant is that by her conduct the 1st plaintiff must be held to have relinquished her share in favour of the 2nd plaintiff and defendant No. 1 and as such she is not entitled to any share in the suit properties and it should be held that she is estopped from claiming any share. It is not possible to accept this contention. No doubt plaintiff No. 1 on the death of her husband gave Varadi to enter the names of plaintiff No. 2 and defendant No. 1 as the heirs of the deceased Gururao Gambhir and she did it in her capacity as guardian being their mother. The fact that she got the names of her sons plaintiff No. 2 and defendant No. 1 entered in respect of the suit properties as heirs of her deceased husband as guardian and did not get her name entered as one of the heirs or persons entitled to a share, did not at all affect her right because, she also succeeded along with them to the equivalent share to which plaintiff No. 2 and defendant No. 1 became entitled to, and continued in possession of the suit properties. On the death of Gururao Gambhir her act in getting the names of her sons entered in respect of the suit properties did not and does not amount to giving up her share in the suit properties. She has never stated at any time that she has no share or has given up her share in the suit properties in favour of plaintiff No. 2 and defendant No. 1. In fact, there is no such relinquishment except the Varadi to enter the names of plaintiff No. 2 and defendant No. 1 which, under misconception of law is relied upon by defendant-1 as amounting to relinquishment. Therefore, the trial Court is right in negativing the contention of the 1st defendant that plaintiff No. 1 has either relinquished her share or is estopped from claiming her share in the suit properties. We affirm the finding of the trial Court. Accordingly, point No. 4 is answered in the negative.
Point No. 5:
28. The contention of defendant No. 1 is that as the 1st plaintiff claimed maintenance under Section 125 Cr.P.C. and the maintenance was also awarded, she is not entitled to claim share in the suit properties. This contention is negatived by the trial Court and in our opinion rightly so. It is an established position of law that the right to claim a share given to a Hindu widow is not taken away or lost on her claiming maintenance and obtaining an order or decree for maintenance. Awarding of maintenance also does not take away the right to claim share. On obtaining a share, she will not be entitled to maintenance. The legal position is stated in Mulla's Hindu Law, 15th Edition, page 111, thus:
"The right to claim partition given to a widow under this sub-section does not negative her right to claim maintenance. It is only an enabling right and she may ask for maintenance instead of partition. But she cannot enforce both the rights simultaneously. The share she gets on partition, it has been held, is in lieu of maintenance and if she can get a share in all the coparcenary property including agricultural lands, her right to maintenance would cease."
Therefore, we are of the view that the fact that plaintiff No. 1 has claimed and awarded maintenance under Section 125 Cr.P.C. does not deprive her to claim share in the suit properties. In fact Section 3(3) of the 1937 Act specifically conferred upon her the right of claiming partition as a male owner, but she was to enjoy such property with limited interest otherwise known as Hindu Women's Estate. This limited interest has now enlarged into absolute ownership under Section 14(1) of the Act. Therefore, she is entitled to claim her share by way of partition irrespective of the fact that she has been awarded maintenance. Therefore, point No. 5 is answered in the affirmative.
Point No. 6:-
29. These properties were alienated by defendant-1 in favour of defendant-2 as a manager of the Hindu family. The recitals contained in Ex.D.74 dated 4-9-1978 sufficiently indicate that as a manager of Hindu family the first defendant incurred several expenses both for maintaining the family as well as for performing the marriage of two sisters. Even plaintiff No. 1 has not disputed this aspect of the matter in her evidence. Added to it, the 1st defendant has not challenged the correctness of the finding recorded by the trial Court on this issue. Learned Counsel for the appellant in R.F.A. 582 of 1987, though made efforts to convince us that the alienation was neither for legal necessity nor for the benefit of the family. However, it is not possible to accept this contention. The recitals-contained in the document Ex.D.74 which came into existence prior to the suit go to show that the alienation was for legal necessity. Further, the first plaintiff in her evidence has not stated that the alienation was not for legal necessity. However, plaintiff No. 3 has admitted that the alienation evidenced by Ex.D.74 was for discharging the antecedent debts. Therefore, we are satisfied that the finding recorded by the trial Court on Issue No. 9 is justified. Accordingly point No. 6 is answered in the affirmative.
Point No. 7:-
30. One of the contentions of the first defendant was that the cause of action for the suit arose immediately on the death of Gururao Gambhir - the husband of the first plaintiff who died on 13-12-1940, whereas the suit is filed on 19-10-1978, therefore it is hopelessly barred by time. In this regard, as it has already been pointed out, it is pertinent to notice that Gururao Gambhir died intestate leaving behind the suit properties as his self acquired properties. The first plaintiff as per Sub-section (1) of Section 3 of the 1937 Act, became entitled to the same share as a son. The Supreme Court in POTTI LAKSHMI PERUMALLU v. POTTI KRISHNAVENAMMA, has held that the quantum or interest to which a Hindu widow is entitled under Section 3(2) of the 1937 Act is to be determined as on the date on which she seeks to enforce partition under Sub-section (3) of Section 3 of 1937 Act. It has also been further held that by virtue of the interest given to her by the 1937 Act, though the widow does not become a coparcener, but nevertheless she is entitled to claim partition of the joint family, therefore she is in the same position in which her deceased husband would have been in the matter of exercise of that right. In other words, her interest is a fluctuating one and is liable to increase or decrease according as there are deaths in or additions to the members of the family or according as there are accretions to or diminutions of the property. In the instant case, we are concerned with the self acquired properties of the husband of the first plaintiff in which under 1937 Act she has been given the same interest as a son.
31. Sub-section (2) of Section 3 which is interpreted by the Supreme Court in the aforesaid Lakshmi Perumallu's case relates to the interest left by a Hindu governed by Mitakshara school at the time of his death and interest left by a Hindu in a Hindu joint family at the time of his death and in such a situation the widow under the said provision of law Hindu widow is given the same interest as her husband had. Under Sub-section (1) thereof a widow is given the same interest as a son in the self acquired property left by her deceased husband. The only difference will be that whereas the quantum of share of the widow in such self acquired property of her husband gets determined on the date of death of her husband but she will continue to be in the joint possession and ownership of her share with the sons of her deceased husband. This interest also is governed by Sub-section (3) of Section 3 of the Act as the interest in the Hindu joint family property. Therefore, as long as the unity of interest and possession continued it was open to the first plaintiff to file a suit only when there was a threat to her right. Such a threat could be said to have occurred only when she was refused to be maintained by the first defendant though she continued to remain in possession of the suit properties. Such a situation arose only on 27-1-1977 when she was compelled to institute proceedings for maintenance in Crl.Misc. Case No. 25/77. The suit was filed on 19-10-1978 within twelve years from 27-1-1977. The suit is governed by Article 65 of the Limitation Act, as it is a suit for partition and separate possession of the share of the plaintiff in the suit properties which are not.the joint family properties. Hence, the suit is in time. Accordingly, point No. 7 is answered in the negative.
32. Before parting with the case, we may also make a passing reference to the fact that two properties which were gifted in favour of plaintiff No. 3 and her another sister Smt. Padmavathi are left out from the purview of the decree, because there is another proceeding filed by defendant-1 himself challenging the validity of the gift made by himself in favour of plaintiff No. 3 and that suit is pending in the appeal. As far as the gift made in favour of Smt. Padmavathi is concerned, she is not made a party to the suit, therefore that property is also left out from consideration. It has been rightly observed by the trial Court that in any other proceeding if it is held that those gifts are invalid, the properties covered by those gifts will be available for partition between the parties who are entitled to them. In view of this, it is not possible to hold that those observations would affect the first defendant or plaintiff No. 1 in any manner.
33. For the reasons stated above, appeal No. RFA FR No. 9060 of 1987 is liable to be dismissed. It is, accordingly, dismissed. R.F.A. 582/87 is allowed in part and the decree of the trial Court is modified in the following terms:
Plaintiff No. 1 is entitled to 2/3rd share and defendant No. 1 is entitled to 1/3rd share in the suit properties excluding the properties alienated in favour of defendant No. 2 by defendant No. 1 under the sale deed Ex.D.74 dated 4-9-1978.
34. There shall be an enquiry as to the future profits as per Rule 18 of Order XX of the Code of Civil Procedure.