Karnataka High Court
Sri. Ravindranath Mane vs Smt. Meera Satyananda Nikam on 12 November, 2021
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
1
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12th DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
REGULAR FIRST APPEAL NO.666 OF 2016 (PAR)
BETWEEN:
SRI RAVINDRANATH MANE
S/O LATE J.ATHMARAM MANE,
SINCE DECEASED BY HIS LRs.
1. SMT.DEVIKA BAI
W/O LATE RAVINDRANATH MANE,
AGED ABOUT 59 YEARS.
2. SRI ROOPESH MANE
S/O LATE RAVINDRANATH MANE,
AGED ABOUT 33 YEARS.
3. SRI SHREYAS MANE
S/O LATE RAVINDRANATH MANE,
AGED ABOUT 25 YEARS
ALL ARE R/AT NO.36,
ANJANEYA TEMPLE 1ST STREET,
SHESHADRIPURAM,
BANGALORE - 560 020. ... APPELLANTS
(BY SRI.AMARESH A. ANGADI, ADVOCATE)
AND:
1. SMT.MEERA SATYANANDA NIKAM
W/O SRI SATYANANDA NIKAM,
D/O LATE J.ATHMARAM MANE
AGED ABOUT 65 YEARS,
NO.131, 3RD MAIN, 3RD BLOCK,
2
3RD STAGE, BASAVESWARA NAGAR,
BANGALORE - 560 079.
MR.BABU LAXIMINARAYANA RAO MANE
S/O LATE J.ATHMARAM MANE
SINCE DECEASED REPRESENTED BY LRs.
2. MRS.SHANTHA RAO
W/O LATE BABU LAXMINARAYANA RAO MANE,
AGED ABOUT 69 YEARS.
3. MR.PRASHANTH MANE
S/O LATE BABU LAXMINARAYANA RAO MANE,
AGED ABOUT 48 YEARS.
4. MR.VIJAY MANE
S/O LATE BABU LAXMINARAYANA RAO MANE,
AGED ABOUT 46 YEARS.
5. MRS.POONAM ASHWATHNARAYANA
D/O LATE BABU LAXMINARAYANA RAO MANE,
AGED ABOUT 38 YEARS.
All ARE R/AT NO.73,
7TH MAIN, 1ST 'C' CROSS, 2ND PHASE
4TH BLOCK, BANASHANKARI 3RD STAGE
BANGALORE - 560 085
MR.BABU VISHWANATHA MANE
SINCE DECEASED BY LRs.
6. SMT.SHYAMALA BAI
W/O LATE VISHWANATH MANE,
AGED ABOUT 61 YEARS.
7. GYANESHWARA KIRAN MANE
S/O LATE VISHWANATH MANE,
AGED ABOUT 36 YEARS.
8. PRAVEEN MANE
S/O LATE VISHWANATH MANE,
AGED ABOUT 34 YEARS
3
ALL ARE R/AT NO.441,
3RD CROSS, 3RD BLOCK, 3RD STAGE,
BEML LAYOUT, R.R.NAGAR,
BANGALORE - 560 098. ... RESPONDENTS
(BY SRI.M.R.RAJAGOPAL, ADVOCATE
FOR SRI.K.S.KALLESHAPPA, ADVOCATE - R1,
SRI.P.N.HEGDE, ADVOCATE - R2 TO 8)
THIS RFA IS FILED UNDER SECTION 96 OF CIVIL
PROCEDURE CODE, 1908.
THIS RFA HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT, COMING ON FOR PRONOUNCEMENT OF JUDGMENT
THROUGH VIDEO CONFERENCING THIS DAY, SITTING AT
DHARWAD, THIS COURT DELIVERED THE FOLLOWING:
JUDGMENT
Sri.Amaresh A. Angadi learned counsel for appellants and Sri.P.N.Hegde learned counsel for respondents 2 to 8 have appeared in person and Sri.M.R.Rajagopal learned counsel on behalf of Sri.K.S.Kalleshappa for respondent No.1 has appeared through video conferencing.
This is an appeal from the Court of I Additional City Civil and Sessions Judge, Bengaluru.
4
2. For the sake of convenience, the parties are referred to as per their rankings before the trial Court.
3. The facts of the case are simply stated as under:-
The original Plaintiffs 1 to 3 and the defendant are the children of one J.Athmaram Mane and Smt.Gopika Bai.
It is stated that the brothers of Smt.Gopika Bai executed a Registered Gift Deed in respect of the house property bearing Door No.36, Anjaneya Temple, First Street, Sheshadripuram Link Road, Bangalore - 560020, measuring East to West 30 feet North to South 47 feet with approximately measuring seven squares building on 24.12.1945. Smt.Gopika Bai died on 27.08.1992 giving instructions to her husband J.Athmaram Mane that the gifted property should go to her daughter Smt.Meera Satyanand Nikam - the third plaintiff.
It is stated that J.Athmaram Mane, had fixed deposit of Rs.1,00,000/- (Rupees One Lakh only) (Receipt 5 No.119/74 dated:23.03.1999) and Saving Bank Account (old No.6/1732) New No.18SB1732 in the State Bank of Mysore, Malleshwaram Branch, Bangalore. The father J.Athmaram Mane died on 14.05.1999. After his death, as per the instructions of the father, the original first and the second plaintiffs relinquished their rights in respect of the gifted property (item No.1 of the suit schedule property) in favor of the third plaintiff by executing a Registered Release deeds on 31.08.1999. The defendant has not executed any Release Deed in respect of item No.1 of suit schedule property. The plaintiffs approached the defendant for the division of the properties. But the defendant refused.
It is averred that the properties belonged to their parents J.Athmaram Mane and Smt.Gopika Bai. Plaintiffs are entitled for 1/3rd share each in respect of item Nos.2 and 3 of suit schedule properties and the third plaintiff is entitled for 3/4th share in Item No.1 of the suit schedule property.
6
Contending that they are in joint possession and enjoyment of suit schedule properties and the defendant is making efforts to create third parties' interest in respect of item No.1 of the suit schedule property, plaintiffs sought the aid of the Court and filed a suit seeking partition and separate possession with respect of suit schedule properties.
After service of the suit summons, the defendant appeared through his counsel and filed written statement. He denied the plaint averments.
He contended that 6 Acres 30 Guntas of agricultural land situated at Doddaballapura was the ancestral property of the plaintiffs and the defendant. The plaintiffs and one Sachin Dev Nikam acting as a General Power of Attorney Holder sold the said agricultural land for a sum of Rs.24,00,000/- (Rupees Twenty-Four Lakhs only). He is entitled for 1/4th share in the said amount. By mutual discussion, it was agreed between the plaintiffs and the 7 defendant that the defendant shall continue to be in possession and enjoyment of the suit schedule item No.1 property till his share in the sale consideration amount is paid. It is with this understanding that the defendant continued in possession and enjoyment of the suit schedule item No.1 property. The plaintiffs and the GPA Holder Sachin Dev Nikam have not paid the share amount. By virtue of the mutual agreement, the defendant is entitled to continue in possession and enjoyment of suit schedule item No.1 property till his 1/4 th share in the sale consideration amount is settled. Without settling the amount, plaintiffs have filed the suit.
He contended that the General Power of Attorney Holder Sachin Dev Nikam has taken away all the original documents relating to the suit schedule item No.1 property and also the original fixed deposit receipts when Sri.J.Athmaram Mane was hospitalized. Thereafter, the plaintiffs and said General Power of Attorney Holder Sachin 8 Dev Nikam started misusing the documents and made false claims.
It is also contended that GPA Holder has taken away all the documents, tried to knock off the amount in the fixed deposit by misrepresenting the bank authorities and by forging the signatures. The defendant after coming to know about the truth of the matter, refused to pay the amount to the plaintiffs and the GPA Holder.
It is further contended that J.Atmaram Mane, out of love and affection, deposited a sum of Rs.1,00,000/- (Rupees One Lakhs only) in F.D Receipt No.LE.119/73 dated:23.03.1999 in the name of his grandson Shreyas Mane, who was minor. The deposit was made for the benefit of the minor. Hence, neither the plaintiffs nor the defendant can claim share in the said amount. Accordingly, he prayed for dismissal of the suit.
The legal representatives of the original first plaintiff and second plaintiffs were transposed as defendants 2 (a) 9 to (d) and defendant No.3. Defendants 2(a) to 2(d) filed written statement. They denied the plaint averments. They admitted that their grandmother Late.Gopika Bai had acquired suit schedule Item No.1 property under a Registered Gift deed dated:24.12.1945. But they denied the execution of the Registered Release Deeds dated:31.08.1999.
They also contended that the General Power of Attorney Holder Sachin Dev Nikam who was acting on behalf of plaintiffs has taken away all the documents pertaining to suit schedule properties and the same was misused by him in collusion with other defendants.
It is also contended that the GPA Holder Sachin Dev Nikam misused his position in collusion with plaintiff No.3 and others, sold 6 Acres 30 Guntas of agricultural land situated at Doddaballapura which was ancestral property of plaintiffs and the defendant for a sale consideration of Rs.24,00,000/- (Rupees Twenty-Four Lakhs only) without the knowledge of these defendants. The GPA Holder is 10 none other than the son of the third plaintiff who is in the habit of executing fraud and invalid documents with an intention to deny the lawful share of these defendants.
They further contended that they are not aware of the demand made by the third plaintiff seeking partition. They prayed that the third plaintiff's claim of ¾thshare in suit schedule Item No.1 property may be dismissed and prayed for grant of 1/4th share each in respect of all the three items of the suit schedule property.
On the basis of the rival pleadings of the parties, the Trial Court framed the following issues:
1. Whether the plaintiffs prove that the item No.1 of the suit schedule property is the self acquired property of the mother of the plaintiffs and defendant, as it was gifted by her brothers as per the Gift deed dated 24.12.1945?
2. Whether the plaintiffs further prove that at the time of death of their father Sri.Atmaram Mane, he had Fixed Deposit of Rs.1,00,000/-
(Item No.2 of the suit schedule property) in 11 the State Bank of Mysore, Malleshwaram Branch, Bangalore, as contended in Para-5 of the plaint?
3. Whether the plaintiffs further prove that at the time of death of their father Sri.Atmaram Mane, he had a Savings Bank Account Old No.6/1732, new No.18SB1732 (Item No.3 of the suit schedule property), in the State Bank of Mysore, Malleshwaram Branch, Bangalore as contended in Para-5 of the plaint?
4. Whether the plaintiffs further prove that after the death of Sri.Atmaram Mane, as per the instructions of their father, the plaintiff Nos.1 & 2 have executed a registered relinquishment deed in favour of plaintiff No.3 in respect of item No.1 of the suit schedule property and relinquished their rights?
5. Whether the defendant proves that 6 acres 30 guntas of agricultural land situated at Doddaballapura was the ancestral property of the plaintiff and defendant and accordingly it was sold by the plaintiffs and one Sachin Dev Nikam, the GPA holder, for Rs.24 Lakhs as contended in Para-3 of the written statement?
6. Whether the defendant further proves that he is entitled for 1/4th share in the above said sale 12 consideration and as such, he is in enjoyment of the item No.1 of the suit schedule property till his share of sale consideration is paid to him?
7. Whether the defendant further proves that in view of the said family arrangement and mutual agreement, the defendant is entitled to continue to be in possession and enjoyment of the item No.1 of the suit schedule property, till his share in the suit schedule property is settled?
8. Whether the plaintiffs are entitled for partition and separate possession? If so, what is the quantum of the share?
9. What Order or decree?
ADDITIONAL ISSUES:
1. Whether the LRs of defendant no.2 prove that execution of relinquishment deed dated 31.8.1999 and relinquishment of his rights are not sustainable and same shall be set aside?
2. Whether the LRs of 2nd defendant prove that they are entitled for 1/4th share in item no.1 of the suit schedule properties?
3. Whether the LRs of 2nd defendant further prove that they are entitled to 1/4th share of sale 13 consideration out of the family properties sold at Doddaballapur?
The General Power of Attorney Holder Sachin Dev Nikam was examined as PW1 and produced eight documents which were marked at Ex.P.1 to Ex.P.8. The first defendant was examined as DW1. Defendant No.2(c) was examined as DW2 and one G.S.Somarudra Sharma was examined as DW3. Thirteen documents were produced and marked at Exs.D.1 to D13.
On the trial of the action, the suit came to be decreed holding that the plaintiff is entitled for 3/4 th share in item No.1 of suit schedule property and the legal representatives of the deceased defendant No.1 are together entitled for 1/4th share in item No.1 of suit schedule property and it was decreed that the plaintiff and the legal representatives of defendants 2 and 3 are entitled for 1/4th share each in item No 2 and 3 of the suit schedule properties.
14
Hence, this Regular First Appeal is filed under Section 96 of CPC.
4. Sri.Amaresh A. Angadi learned counsel for the appellants submitted that the judgment and decree of the Trial Court is quite contrary to the material on record.
Next, he submitted that the Trial Court committed an error in considering Exs.P7 and P8 Release Deeds which are alleged to have been executed by the original first and second plaintiffs. The Trial Court has erroneously proceeded to hold that Smt.Meera Nikam - the third plaintiff is entitled for 3/4th share in Item No.1 of the suit schedule property on the basis of Exs.P7 and P8.
A further submission was made that there was no partition in the family and the properties were not divided by metes and bounds. Hence relinquishment of right by the original first and the second plaintiffs in favor of the third plaintiff in respect of item No.1 of the property is untenable.
15
In this regard, counsel has drawn the attention of the Court to Section 6 of the Transfer of Property Act 1882. In the present case, the first and the second plaintiffs had only a chance of succession, hence they could not have released their right in favor of Smt.Meera Nikam - the third plaintiff.
It is further submitted that Smt.Meera Nikam - the third plaintiff did not enter the witness box. The Power of Attorney Holder was examined on her behalf. The law is well settled that the Power of Attorney Holder cannot depose in the place of principal.
Learned counsel vehemently contended that the suit filed by the daughter Smt.Meera Nikam is barred under Section 23 of Hindu Succession Act, 1956. The Trial Court has failed to consider that as per Section 23 of the Hindu Succession Act, 1956, Smt.Meera Nikam - the third plaintiff had no right to seek for partition in respect of dwelling house.
16
Lastly, he submitted that the judgment and decree in granting 3/4th share to Smt.Meera Nikam - the third plaintiff in respect of item No.1 of the suit schedule property is unsustainable in law. Therefore, he submits that the judgment and decree of the Trial Court is liable to be set aside and appeal may be allowed.
To substantiate the contentions counsel relied upon the following decisions:
1. AIR 2008 MADRAS 250 - SMT.BAGIRATHI AND OTHERS VS. S.MANIVANAN AND ANOTHER.
2. AIR 2011 SC 3609 - SHEHAMMAL VS. HASAN KHANI RAWTHER AND OTHERS.
3. AIR 2017 SC 3857 - KARSANBHAI DAHYABHAI PARMAR VS. DAHIBEN D/O. DAHYABHAI DABHAIBHAI AND OTHERS.
4. AIR 1990 KAR 317 - M. C. THIMMARAJU (DECEASED BY L.R's) VS. SMT.
PUTTAKENCHAMMA AND OTHERS.
5. LAWS (MAD) 2013 1 93 - VIJAYA;
PUGAZEHNTHI VS. AYYANAR, SUGANTHI,
17
SIVAKUMAR, BHUVANESHWARI, SUNDARI
AMMAL, UDAYA VANI, BAVAGARNAN,
VIBESHANAN.
6. LAWS (MAD)-2008-8-182 - VALLIAMMAL VS. MUNIYAPPAN.
7. AIR 1989 KAR 31 - K.R.SUBBAKRISHNA VS. NINGIAH AND OTHERS.
8. (2009) 6 SCC 99 - G.SEKAR VS. GEETHA AND OTHERS.
9. 2008 SAR (CIVIL) 817 - BALJINDER SINGH VS. RATTAN SINGH.
10. 2013 SAR (CIVIL) 503 - S.KESARI HANUMAN GOUD VS. ANJUM JEHAN AND OTHERS.
11. 2019 SAR (CIVIL) 1053 - MOHINDER KAUR VS. SANT PAUL SINGH.
5. Sri.M.R.Rajagopal learned counsel appearing on behalf of Sri.K.S.Kalleshappa for respondent No.1 justified the judgment and decree of the Trial Court. 18
Next, he submitted that the Release deeds executed by the first and the second plaintiffs in favor of Smt.Meera Nikam - the third plaintiff is in accordance with law. He submitted that the Trial Court in extenso referred to the material on record and justified in holding that Smt.Meera Nikam - the third plaintiff is entitled for 3/4th share in item No.1 of the suit schedule property.
A further submission was made that the Release Deeds were executed by the first and the second plaintiffs at an undisputed point of time and the relationship between the plaintiffs and the defendant was cordial.
Counsel submitted that Section 6 of the Transfer of Property Act is not applicable to the facts and circumstances of the present case.
Sri.M.R.Rajagopal vehemently urged that Section 23 of Hindu Succession Act 1956 is not applicable to the present case. He submitted that the suit was instituted by three plaintiffs who are none other than 2 sons and 19 daughter of Sri.J.Athmaram Mane and Smt.Gopika Bai. The first and the second Plaintiffs have signed the plaint and also verified the plaint contents along with the third plaintiff Smt.Meera Nikam. The plaint is verified by three plaintiffs and the affidavit is filed by Smt.Meera Nikam - the third plaintiff. Further, it is also submitted that the plaintiffs included other properties apart from dwelling house as a part of suit claim.
Accordingly, he submitted that the Trial Court has justified in concluding that the third plaintiff is entitled for 3/4th share in item No.1 of the suit schedule property on the basis of the Release Deeds which are executed by plaintiffs 1 and 2. Therefore, he submits that the appellants have not made out any good grounds to interfere with the judgment and decree of the Trial Court. Accordingly, he prayed for dismissal of the suit.
To substantiate the contention learned counsel has relied on the following judgments:
20
1. (1995) 5 SCC 431 - VIDYAWATI VS. MAN MOHAN AND OTHERS.
2. (1986) 4 SCC 155 - BAL KISHAN VS. OM PARKASH AND ANOTHER.
3. 2007 (3) Kar. L.J. 125 - SHANKARAPPA (DECEASED) BY HIS L.Rs VS.
BASAWARAJAPPA.
4. (1998) 5 SCC 368 - SEETHALAKSHMI AMMAL VS. MUTHUVENKATARAMA IYENGAR AND ANOTHER.
5. AIR 2020 SC 3717 - VINEETA SHARMA VS.
RAKESH SHARMA AND OTHERS.
6. Heard the contentions on behalf of the appellants and respondents and perused the records with care.
In the backdrop of the above contentions, the points which arise for consideration are:
1) Whether the action brought by the plaintiffs is a joint and consolidated action? 21
2) Whether the release deeds executed by the first and the second plaintiffs is hit by the provision of section 6(a) of the Transfer of Property Act 1882?
3) Whether Section 23 of Hindu Succession Act 1956 (as it stood prior to 09.09.2005) is attracted to the facts and circumstances of the present case?
4) What is the extent of share the parties are entitled for?
The facts of the case are few and simple, but they raise a question which may be of some general importance.
One J.Atmaram Mane and Smt.Gopika Bai had three sons and one daughter.
For the sake of convenience, the genealogy is referred to as under.
22
SRI.ATHMARAM MANE
+
SMT.GOPIKA BAI (WIFE)
|
| | | |
Babu Babu Viswanath Smt.Meera Ravindranath
Laxminarayana Rao Mane Nikam Mane
Mane
CONSOLIDATED AND JOINT ACTION
The pleadings are statement in writing drawn up and filed by each party to a case, stating what his contentions will be at the trial and giving all such details as his opponent needs to know in order to prepare his case in answer. As a rule, there are two pleadings in a suit, viz:
a) A statement of claim, called the "plaint", in which the plaintiff sets out his cause of action with all necessary particulars;
b) A statement of defence is called the "Written Statement", in which the defendant deals with every material fact alleged by the plaintiff in the plaint and states any new facts which tell in his favor, adding such legal objections as he wishes to take the claim. 23
The whole object of pleading is to give fair notice to each party of what the opponent's case is, and to ascertain, with precision, the points on which the parties agree and those on which they differ, and thus to bring the parties to a definite issue. The purpose of pleading is also to eradicate irrelevancy. The responsibility of clearly perceiving and raising points, which arise upon the pleadings and evidence, and the proper adjudication of which is essential for the ends of justice, rests on the Court as much as on the parties or their pleaders.
The first principle to be remembered in framing a suit that, as far as practicable, it should be so framed as to afford ground for final decision of the " subjects in dispute"
and to prevent further litigation concerning them. The second principle embodied in Order 2 Rule 2, is directed against splitting up of a cause of action. The object of this rule is that a defendant should not be dragged to Court unnecessarily and that there may not be multiplicity of suits. It requires that every suit shall include the whole of 24 the claim which a plaintiff/s is entitled to make in respect of an action but it is not necessary that he should include in one suit every claim or every cause of action which a plaintiff might have against the defendant even where more than one claim arise in respect of the same subject matter.
The law is well established that whenever a suit relates to a joint right, all the co-sharers not only may join but as far as possible must join as plaintiff as they represent a single and indivisible right. The person on whose behalf the suit is brought must have the same interest. The expression 'same interest' means a common interest or a common grievance. There must be a community of interest.
Reverting to the facts of the case, originally the suit was instituted by Babu Laxminarayan Rao Mane, Babu Vishwanath Mane and Smt.Meera Satyanand Nikam. The plaint has been signed and verified by all the three plaintiffs on 23.07.2002. Affidavit is sworn to by the third 25 plaintiff. The plaint is presented to the court on 25.07.2002.
As could be observed from the pleadings, the original three plaintiffs being co-plaintiffs (prior to transposition), filed the suit seeking the relief of partition of the dwelling house with their share being divested to plaintiff No.3 along with other suit items. The suit was instituted by three plaintiffs who are none other than the two sons and daughter of Sri.J.Athmaram Mane and Smt.Gopika Bai. The first and second plaintiffs are the sons and the third plaintiff - Smt.Meera Nikam joined the first and the second Plaintiffs against the defendant who is none other than one more son of Sri.J.Athmaram Mane and Smt.Gopika Bai. The suit claim is with respect of three items. The details of the suit schedule properties are as under:-
1. House property bearing Door No 36, Anjaneya Temple, 1st street, Seshadripuram, Link Road, Bangalore - 560020 measuring East to West 30 feet 26 and North to South 47 feet with approximately 7 square building with the following boundaries.
East by: Government Road.
West by: Public Road.
North by: Property bearing Door No.35.
South by: Property bearing Door No.37.
2. Fixed Deposit of Rs.1,00,000/- (Rupees One Lakh only) in the State Bank of Mysore, Malleshwaram Branch, Bangalore - 560003 vide F.D Receipts No.LF.119/74 dated 23.03.1999.
3. Savings Bank Account Old No.6/1732 New No.18SB1732 in State Bank of Deposit of Rs.3,09,047/- (Rupees Three Lakh Nine Thousand and Forty Seven only) in State Bank of Mysore, Malleshwaram Branch, Bangalore - 560003. The action brought by the plaintiffs as co-plaintiffs is a joint/consolidated action as the relief of partition is not just for the dwelling house but also for the other suit items of which equal share was sought in the prayer. There are 27 three co-plaintiffs duly authorized the institution of the suit. It is relevant to note that the first plaintiff and the second plaintiff did not contend that they had a conflict of interest with the third plaintiff. All of them had common interest or a common grievance. There was a community of interest.
As could be seen from the plaint, there are no divergent contentions and interests as between the co- plaintiffs as on the date of institution of the suit, as the relief sought was for partition of the suit items amongst the plaintiffs and defendant. I cannot see any divergence of interests or even substantially any divergence of contentions as between the plaintiffs on any issue and it seems reasonably clear that they have exactly the same interest. Therefore, I have no hesitation to hold that the present case is a case of joint/ consolidated action. SECTION 6 OF THE TRANSFER OF PROPERTY ACT 1882 Having held that the action brought by the plaintiffs is a joint and consolidated action, the next point to be 28 answered is whether Section 6(a) of the Transfer of Property Act, 1882 is applicable.
While addressing arguments, learned counsel Sri.Amaresh Angadi strenuously urged that original the first and the second plaintiffs had only a chance of succession, hence they could not have released their right in item No.1 of the suit schedule property in favor of Smt.Meera Nikam - the third plaintiff. Counsel placed reliance on Section 6(a) of the Transfer of Property Act, 1882 and submitted that it is squarely attracted to the case.
By way of answer, learned counsel Sri.M.R.Rajagopal submitted that the item No.1 of the suit schedule property was the absolute property of Smt.Gopika Bai and Section 15 of the Hindu Succession Act, 1956 is applicable. It is also submitted that Smt.Gopika Bai died intestate in the year 1992. Hence, the first and the second plaintiffs being the sons would take one share each. Hence Section 6(a) of the Transfer of Property Act, 1882 is not attracted. 29
7. I have heard the rival contentions urged on behalf of parties. It would be relevant to refer to Section 6(a) of the Transfer of Property Act, 1882. The same reads as under.
6. What may be transferred.- Property of any kind may be transferred, except as otherwise provided by this Act or by any other law for the time being in force,
(a) The chance of an heir - apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of a kinsman, or any other mere possibility of a like nature, cannot be transferred;
The words property of any kind indicate that transferability is the general rule, and that the right to property includes the right to transfer the property to another person. The onus of proof is on the person alleging that any kind of property is not transferable. 30
The possibilities referred to in Clause (a) are bare possibilities, and not possibilities coupled with an interest such as contingent remainders and future interest.
An heir apparent is a person who would be the heir if he survived the propositus and if the propositus died intestate. Such a possibility is in English law not an interest or even a contingent title. The law is stated In re PARSONS reported in (1890) 45 Ch D 51 as follows:
"It is indisputable law that no one can have any estate or interest, at law or in equity, contingent or other, in the property of a living person to which he hopes to succeed as heir at law or next of kin of such living person. During the life time of such person no one can have more than a spes successionis, an expectation or hope of succeeding to his property".31
Where however, the transfer is not of the right of expectancy of an heir apparent but of the property itself, it cannot be said to be a transfer of a mere chance to succeed.
On a reading of Clause (a) of Section 6, an heir - apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of a kinsman, or any other mere possibility of a like nature, cannot be transferred.
Bearing these principles in mind let me consider whether the release deeds executed by the brothers in favor of their sister is hit by the provision of Section 6(a) of the Transfer of Property Act 1882?
As already noted above, counsel for defendant No.1 sought to urge that the two brothers (the first and the second plaintiffs) have released spes succession or right of expectancy and it was, therefore, hit by the provision of Section 6(a). In my considered view, counsel has misunderstood the legal position.
32
Under Section 6 of the Transfer of Property Act 1882, property of any kind may be transferred except as otherwise provided by the Act or by any other law for the time being in force. Clause (a) to (i) of section 6 enumerates the properties which cannot be transferred. Clause (a) provides that the chance of an heir - apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of a kinsman, or any other mere possibility of a like nature, cannot be transferred. What is forbidden by clause (a) is a mere chance of an heir succeeding to an estate or a mere possibility of a like nature. When the transfer is a transfer by an heir apparent on his chance to succeed to an estate, the transfer will be hit Section 6(a). But where the transfer is not of the right of expectancy but of the property itself, it cannot be said to be a transfer of a mere chance to succeed to an estate. The position was made clear long ago in a Bench decision of the Allahabad High Court consisting of Sulaiman, C. J. and Rachhpal Singh, J. (Shyan Narain Misir and antoher Vs 33 Mangal Prasad Misir and others) reported in AIR 1935 All.,
244. The question that arose for consideration in that case was whether there was a conflict between the illustration to Section 43 of the Transfer of Property Act and Section 6(a). Their Lordships observed as follows:
"Section 6 does not prohibit emphatically the transfer of a chance of an heir; nor does it make it absolutely illegal so as to vitiate the entire contract. It merely lays down that the property of any kind may be transferred, but the chance of an heir cannot be transferred. This is no more than saying that a transfer of a mere chance of an heir is void in law and is of no effect. Section 6 (a) would therefore apply to cases where professedly there is a transfer of a mere spes successionis, the parties knowing that the transferor has no more right than that of a mere expectant heir. The result, of course, would be the same where the parties knowing the full facts fraudulently clothe the transaction in the grab of an out and out sale of the property, and there is no erroneous representation made by the transferor to transferee as to his ownership. 34
But where an erroneous representation is made by the transferor to the transferee that he is the full owner of the property transferred and is authorized to transfer it and the property transferred is not a mere chance or succession, but immovable property itself, and the transferee acts upon such erroneous representation, then if the transfer happens later, before the contract of transfer comes to an end, to acquire an interest in that property, no matter whether by private purchase, gift legacy or by inheritance or otherwise, the previous transfer can at the option of the transferee operate on the interest which has been subsequently acquired, although it did not exist at the time of the transfer."
Hence it was held that unless the transfer is professedly of a mere spes successionis and the parties are aware of the same, it does not come within the purview of Section 6(a). But, when the property transferred is not a mere chance of succession, but immovable property itself, the transfer is not hit by Section 6(a).
35
In the instant case, the property item No.1 of the suit schedule was acquired by Smt.Gopika Bai through her brothers under a registered gift deed. It is her absolute property. Smt.Gopika Bai predeceases her husband and she died on 27.08.1992 leaving behind 3 sons, 1 daughter and husband as Class I heirs. As per Section 15 of Hindu Succession Act 1956, the property of a female Hindu dying intestate, devolves according to the rules set out in Section 16 and clauses (a) to (e) of sub-section 1 of Section 15 of the Act subject to the provisions contained in sub-section (2) thereof. As the property inherited by Smt.Gopika Bai was from her brothers under a registered gift deed, clause
(a)(1) of Section 15 is applicable.
The first and the second plaintiffs executed a release deed in favor of the third plaintiff. Upon the death of Smt.Gopika Bai property (item No.1 of the plaint schedule property) has devolved upon the first and the second plaintiffs as per Section 15 of the Act. Further, upon the death of the father Sri.Atmaram Mane his 1/5th share has 36 also devolved upon the first and the second plaintiffs. Hence, they had every right to execute a release deed.
It is perhaps well to observe that the transfer is not the right of expectancy of an heir. Hence the contention that the first and second plaintiffs have transferred the right of expectancy of an heir apparent must necessarily fail. Therefore, it can be safely held that the transfer is not hit by Section 6(a) of the Transfer of Property Act, 1882.
Accordingly, I have no hesitation to say that Section 6 of the Transfer of Property Act, 1882 is not attracted.
APPLICATION SECTION 23 OF THE HINDU SUCCESSION ACT, 1956 (AS IT STOOD PRIOR TO 9.9.2005) Having held that the action brought by the plaintiffs is a joint and consolidated action, and the first and the second plaintiffs had every right to execute the release deed and Section 6(a) is not attracted, the next point to be answered is whether Section 23 of the Hindu Succession 37 Act (as it stood prior to 09.09.2005) is applicable to the facts and circumstances of the case.
Originally, the suit was instituted by Babu Laxminarayan Rao Mane, Babu Vishwanath Mane and Smt.Meera Satyanand Nikam on 25.07.2002. The plaint has been signed and verified by all the three plaintiffs. Affidavit is sworn to by the third plaintiff.
During the pendency of the suit, the first plaintiff died on 14.02.2008 and his legal representatives moved an application under Order 22 of CPC on 25.01.2011. The Trial Court allowed the application by condoning the delay and setting aside the abetment. On 21.02.2011, applications under IA-6 to 8 were allowed and they were permitted to come on record.
The third plaintiff filed an application on 22.06.2011 under Order 1 Rule 10(6) of CPC to transpose the legal representatives of deceased plaintiff No.1 and plaintiff No.2 as defendants D2(a) to (d) and D3 in IA-9. Defendant 38 No.1 files objection. The Trial Court allowed the application on 26.06.2012. The LR's of plaintiff No.1 and plaintiff No.2 were transposed as Defendants 2(a) to (d) and D3. Accordingly, the cause title of plaint was also amended. IA.No.11 filed by the LR's of original plaintiff No.1 on 22.06.2011, was allowed by the Trial Court on 26.06.2012.
Sri.Amaresh A.Angadi, learned counsel for respondent No.1 contends that originally the suit was instituted by the sons and daughter seeking partition, however after the demise of plaintiff No.1, his LR's and plaintiff No.2 were transposed as Defendants 2(a) to (d) and Defendant No.3. The effect of transposition being that, the daughter would become the sole plaintiff seeking partition in respect of dwelling house attracts the provisions of Section 23 of the Hindu Succession Act as it stood prior to 09.09.2005. Thus, the suit is not maintainable. He relied upon the decision of the Hon'ble Apex Court in G.SEKAR VS. GEETHA & ORS reported in (2009) 6 SCC 99 and argued that the Hon'ble Apex Court 39 in the said ruling has held that the omission of Section 23 is prospective and the suits instituted prior to the omission are not maintainable. In the instant case, the suit being instituted in the year 2002, the same is also not maintainable.
By way of answer to this point, Sri.M.R.Rajagopal urged that Section 23 of the Hindu Succession Act, 1956 (as it stood prior to 09.09.2005) is not applicable to the facts and circumstances of the case. Counsel also submitted that it is a case where the suit was filed by two brothers and a sister jointly and two brothers supported the case of third plaintiff Smt.Meera Nikam because they executed the release deeds of their share in her favor. It is a suit for partition by two male members and a female member against another male member of the family. Hence the contention that the suit is barred under Section 23 of the Act is untenable in law. He further submitted that the Hon'ble Supreme Court in VINEETA SHARMA VS. 40 RAKESH SHARMA & ORS reported in AIR 2020 SC 3717, has clarified the position in this regard.
8. I have considered these rival contentions urged on behalf of the parties with care. It would be relevant to refer to Section 23 as it stood prior to 09.09.2005;
"23. Special provision respecting dwelling houses [Omitted by the Hindu Succession (Amendment) Act, 2005 (39 of 2005), Section 4 (w.e.f. 9.9.2005)] - Where a Hindu intestate has left surviving him or her both male and female heirs specified in Class I of the Schedule and his or her property includes a dwelling-house wholly occupied by members of his or her family, then, notwithstanding anything contained in this Act, the right of any such female heir to claim partition of the dwelling-house shall not arise until the male heirs choose to divide their respective shares therein; but the female heir shall be entitled to a right of residence therein:
Provided that where such female heir is a daughter, she shall be entitled to a right of residence in the dwelling-house only if she is 41 unmarried or has been deserted by or has separated from her husband or is a widow."
Section 23 is omitted by Act No.39 of 2005 with effect from 09.09.2005.
The law on the point whether the Hindu Succession (Amendment) Act, 2005 is prospective or retrospective in nature is already answered by the Hon'ble Supreme Court in the case of G.SEKAR VS. GEETHA, wherein it was held as under;
"30. Neither the 1956 Act nor the 2005 Act seeks to reopen vesting of a right where succession had already been taken place. The operation of the said statute is no doubt prospective in nature. The High Court might have committed a mistake in opining that the operation of Section 3 of the 2005 Act is retrospective in character, but, for the reasons aforementioned, it does not make any difference. What should have been held was that although it is not retrospective in nature, its application is prospective."42
"55. ....as the fact remains that Section 23 of the Hindu Succession Act as it stood was to be applicable on the date of the institution of the suit. The respondents may file a new suit and obtain a decree for partition."
Reverting to the facts of the case, the suit instituted by the plaintiffs in the instant case was in the year 2002, prior to the omission of Section 23. In view of the same, Section 23 was still in operation on the date of institution of the suit. No doubt that the suit is instituted prior to the omission, but the differentiating factor being that the suit on the date of institution was filed by the male heirs (two sons of Atmaram Mane) along with the female member i.e., the daughter Smt.Meera Nikam against another male member of the family - the first defendant. Hence, I have no hesitation to hold that Section 23 is not attracted for the simple reason that the suit was filed by two male members and a female member (two brothers and a sister) jointly. The first and the second plaintiffs supported the third plaintiff since they executed a release deed in 43 favor of their sister the third plaintiff. Hence, it cannot be said that the suit is filed exclusively by the female member so as to attract Section 23 of the Act.
The subsequent transposition of the LR's of plaintiff No.1 & plaintiff No.2 would render the daughter i.e., plaintiff, the sole claimant and thus Section 23 of Hindu Succession Act would attract is not tenable for the simple reason that the transposition took place on 26.06.2012. The suit was instituted by the male heirs along with the female heir i.e., the daughter.
While addressing the argument, Sri.P.N.Hegde learned counsel for LR's of original plaintiff No.1, has admitted the relinquishment of the right by the first plaintiff in favor his sister i.e., the third plaintiff- Smt.Meera Nikam in the dwelling house. Though the LR's of plaintiff No.1 and plaintiff No.2 were transposed as defendants No.2(a) to (d) and defendants No.3 and had filed additional written statement in objection to the averments of the plaint, during the course of argument, 44 the admission by the LR's of plaintiff No.1 in respect of release of right by their father in favor of the third plaintiff has the effect as that of the original stand of plaintiff No.1. In effect, this leads us to the original circumstance of a joint and consolidated action for partition in respect of suit schedule properties. The rights and claims in this instance being joint/consolidated towards the claim of partition of the dwelling house along with other items of suit.
For the reasons stated above, I have no hesitation in holding that Section 23 (as it stood prior to 09.09.2005) is not applicable in the present case. Therefore, the suit is maintainable.
EXTENT OF SHARES Having held that the action brought by the plaintiffs is a joint and consolidated action; Section 6(a) of the Transfer of Property Act, 1882 and Section 23 of the Hindu Succession Act, 1956 (as it stood prior to 09.09.2005) are not attracted, the next point to be answered is what is the extent of shares, the parties to the suit are entitled for. 45
The admitted facts are as under-
Atmaram Mane and Gopika Bai are husband and wife, they had 3 sons and 1 daughter. The relationship is not in dispute It is also not in dispute that the Item No.1 of the suit schedule property belonged to Gopika Bai. She acquired the title to the said property by virtue of the gift deed executed by her brothers namely L.Annaji Rao Pawar; L.Krishnaji Rao Pawar; L.Vital Rao Pawar and L.Narayan Rao Pawar dated 24.12.1945, which is a registered gift deed.
Smt.Gopika Bai predeceased her husband and she died on 27.08.1992 leaving behind her husband and her four children.
It is also not in dispute that the two sons of Atmaram Mane and Gopika Bai i.e., Babu Laxminarayan Rao Mane and Babu Vishwanath Mane have released their right in favor of the daughter Smt.Meera Nikam under two 46 separate registered release deeds both dated 31.08.1999 (Ex.P7 & Ex.P8). The said release deeds are not in dispute or challenged by defendant no.1.
As already noted above, the suit Item No.1 was acquired by Smt.Gopika Bai under a registered gift deed in the year 1945. She was the absolute owner of the said property. She died intestate in the year 1992, leaving behind 3 sons, 1 daughter and the husband as Class I heirs. As per Section 15 of Hindu Succession Act 1956, the property of a female Hindu dying intestate, devolves according to the rules set out in Section 16 and Clauses
(a) to (e) of sub-section 1 of Section 15 of the Act subject to the provisions contained in sub-section (2) thereof.
As the property inherited by Smt.Gopika Bai was from her brothers under a registered gift deed, Clause
(a)(1) of Section 15 is applicable.
As Section 15 of the Act opens with the words "The property of the female Hindu dying intestate" shall devolve 47 according to the rules set out in section 16, necessarily Section 15 has to be read with Section 16 of the Act. Therefore, the order of succession among the heirs specified in sub-section (1)(a) of Section 15 shall take simultaneously one share each.
Therefore, the three sons, one daughter and the husband will take 1/5th share each. Subsequently upon the death of J.Atmaram Mane, his 1/5th share will be equally divided among 3 sons and 1 daughter. In view of the release deeds by the original plaintiffs 1 & 2 in favor of original plaintiff No.3, their 1/5th share is released in favor of plaintiff.
Upon the death of Atmaram Mane his 1/5th share again will be divided into 4 equal shares and the same would be 1/20th share. Hence, three sons and daughter will take 1/20th share in the share of father plus their 1/5th share together will be 5/20 th share each. 48
The first and the second plaintiff have relinquished their right in favor of the third plaintiff. Hence, the third plaintiff will be entitled for 3/4th share and the defendant will be entitled for 1/4th share in suit schedule Item No.1 property.
In so far as other two items, the children of Atmaram Mane and Smt.Gopika Bai are equally entitled for one share each.
SRI.ATHMARAM MANE (1/5)
+
SMT.GOPIKA BAI (WIFE)
|
| | | |
Babu Babu Viswanath Smt.Meera Ravindranath
Laxminarayana Rao Mane Nikam Mane
Mane
(1/5) (1/5) (1/5) (1/5)
1/5 + 1/20 1/5 + 1/20 1/5 + 1/20 1/5 + 1/20
= 5/20 = 5/20 = 5/20 = 5/20
5/20 + 5/20 = 10/20 = 1/2 5/20 +1/2 = 15/20 =3/4 5/20 = 1/4
Accordingly, the points are answered.
Counsel for appellants and respondent have cited a number of cases, but I do not think that the law is in 49 doubt. Each decision turns on its own facts. The present case is also tested in the light of the aforesaid decisions.
In the result, the calculation of shares are modified in this appeal holding that the third plaintiff - Smt. Meera Nikam is entitled for 3/4th share, the legal representatives of deceased defendant No.1 are entitled for 1/4 th share in item No.1 of the suit schedule property.
Insofar as item Nos.2 and 3 are concerned, same has to be distributed equally among the original plaintiffs and the defendant.
The appeal is dismissed.
The parties to bear their own costs.
In view of dismissal of main appeal, I.A.No.1/2016 does not survive for consideration and the same is disposed of.
Sd/-
JUDGE TKN