Karnataka High Court
Smt. Kumbalagunte Gowramma (Deceased) ... vs Kumbalagunte Dodda Veeranna ... on 10 August, 2000
Equivalent citations: ILR2000KAR3695, 2001(2)KARLJ456
Author: K.R. Prasad Rao
Bench: K.R. Prasad Rao
JUDGMENT K.R. Prasad Rao, J.
1. This appeal is filed by the plaintiff against the judgment and decree passed by the Court of Principal District Judge, Bellary in R.A. No. 67 of 1989, dated 19th December, 1994 allowing the said appeal and setting aside the judgment and decree passed by the Civil Judge, Hospet, in O.S. No. 148 of 1980, dated 27-2-1987, granting a decree for partition in favour of the plaintiff.
2. The appellant-plaintiff filed the suit in the Trial Court seeking for the relief of partition and for separate possession of her half share in the plaint schedule properties alleging that she is the daughter of one Kumbalagunte Dodda Veeranna by his second wife, Smt. Sanna Veeramma. The 2nd defendant-Halamma is her stepsister, being the daughter of the first wife Smt. Dodda Veeramma of her father, Kumbalagunte Dodda Veeranna. The 1st defendant is Dodda Veeramma, who is the first wife of her father. She further alleged that the plaint 'B' and 'C' Schedule properties are the ancestral properties belonging to herself and the defendants 1 and 2 and that she is entitled to 1/3rd share in the said properties as legal heir of her father.
3. The defendants filed their written statement contending that under a registered gift deed dated 1-5-1956, the plaint schedule Items 1 to 4 and 8 and 12 have been gifted in favour of the 2nd defendant-Halamma by her father, Kumbalagunte Dodda Veeranna, who was the sole surviving coparcener and by virtue of the said gift deed, executed in her favour, the 2nd defendant became the absolute owner of the above items of the schedule properties. The defendants further contended that the 2nd defendant purchased the other Items 5 to 7, 9 to 11 and 13 of the plaint schedule properties under the various sale deeds, which are marked as Exs. D. 1 and D. 3 to D. 5 and they are her self-acquired properties. The defendants, therefore, prayed for dismissal of the suit.
4. On the basis of the above pleading between the parties, the Trial Court framed the issues and on appreciation of the evidence adduced by both parties, the Trial Court recorded its finding that the suit schedule properties are the joint family properties and that on account of the death of the 1st defendant during the pendency of the suit, the plaintiff became entitled to half share in the said properties. The Trial Court also recorded a finding that the Gift Deed executed by Kumbalagunte Dodda Veeranna in favour of the 2nd defendant is not binding the plaintiff to the extent of half share in the plaintiff. The Trial Court, therefore, granted a preliminary decree in favour of the plaintiff for partition and separate possession of her half share of the plaint schedule properties. The 2nd defendant has challenged the said judgment and decree passed by the Trial Court in R.A. No. 67 of 1989 before the 1st Appellate Court.
5. The 1st Appellate Court on re-appreciation of the evidence adduced by both parties, came to the conclusion that the plaint schedule Items 1 to 4 and 8 and 12 have been gifted in favour of the 2nd defendant, by Kumbalagunte Dodda Veeranna under the Gift Dued dated 1-5-1956 and the said Gift Deed is valid and binding on the plaintiff since it was executed by Kumbalagunte Dodda Veeranna as the sole surviving coparcener. The 1st Appellate Court further came to the conclusion that since the other items of the plaint schedule properties, i.e., Items 5 to 7. 9 to 11 and 13 have been acquired by the defendant 2. after she became the absolute owner of Items 1 to 4, 8 and 12 of the plaint schedule properties, the said properties are to be treated as the self-acquired properties belonging to the 2nd defendant, even assuming that they are earned out of the income of the properties gifted in her favour, she has acquired the said properties under the registered sale deeds Exs. D. 1 and D. 3 to D. 5 executed in her favour. The 1st Appellate Court, therefore, held that the plaintiff is not entitled to any share in the plaint schedule properties and allowed the said appeal and set aside the judgment and decree passed by the Trial Court in favour of the plaintiff. The plaintiff has challenged the said judgment and decree passed by the 1st Appellate Court in the present second appeal.
6. During the pendency of the present appeal, the 2nd defendant died and her L.Rs who are her husband and sons by the 2nd wife of her husband, are brought on record.
7. At the time of admission of this appeal, the following substantial question of law has been formulated:
Whether the First Appellate Court was justified in holding that deceased Veeranna as sole surviving coparcener is entitled to execute Gift Deed as per Ex. D. 3?
8. I have heard the arguments advanced by the learned Counsel appearing on both sides.
9. It is not disputed that Kumbalagunte Dodda Veeranna was the sole surviving coparcener in possession of the Items 1 to 4 and 8 and 12 of the plaint schedule properties, which are the ancestral properties. It is settled law that a sole surviving coparcener is entitled to deal with the said properties as if they are his separate properties.
10. In Mulla's Hindu Law, 15th Edition by S.T. Desai at page 345, Item 257, the law on the subject is briefly stated as follows.--
"Alienation by sole surviving coparcener.--(1) A person who for the time being is the sole surviving coparcener is entitled to dispose of the coparcenary property as if it were his separate property. He may sell or mortgage the property without legal necessity or he may make a gift of it. If a son is subsequently born to him or adopted by him, the alienation, whether it is by way of sale, mortgage or gift, will nevertheless stand, for a son cannot object to alienations made by his father before he was born or begotten".
10-A. Thus, it is clear that Veeranna as sole surviving coparcener was entitled to alienate the suit property by way of gift under the Gift Deed dated 1-5-1956. Ex. D. 2 executed by him in favour of his daughter by his first wife Halamma, who is the second defendant in the suit. The Courts below have recorded a concurrent finding that the defendants have proved that the said registered Gift Deed Ex. D. 2, dated 1-5-1956 has been executed by Veeranna, in favour of the second defendant, by examining the scribe of the said Gift Deed. In fact, the finding recorded by the Trial Court that, the execution of the said Gift Deed by Veeranna in favour of the second defendant has been duly proved, has not been challenged by the plaintiff in the 1st Appellate Court, by filing any cross-objections. However, the 1st Appellate Court has further examined the said question with reference to the evidence adduced by the defendant and came to the conclusion that the execution of the said Gift Deed by Veeranna in favour of the second defendant has been duly proved by examining the scribe of the Gift Deed D.W. 6. The 1st Appellate Court was therefore justified in holding that the said Gift Deed is valid and binding on the plaintiff. It is further found that, subsequent to the date of the said Gift Deed, the second defendant has purchased the other Items 5 to 7, 9, 11 and 13 of the plaint schedule under the registered sale deeds Ex. D. 1 and Exs. D. 3 to D. 5. The 1st Appellate Court has rightly observed that, even assuming that the said items of the properties have been purchased from out of the income of the properties gifted under the registered Gift Deed Ex. D. 2, they are to be considered as the self-acquired properties of the second defendant, when once it is found that, she became the absolute owner of the other Items 1 to 4, 8 and 12 of the plaint schedule, by virtue of the Gift Deed dated 1-5-1956, executed in her favour by her father. Thus, it is found that, 2nd defendant became the absolute owner of the plaint schedule properties and the plaintiff is not entitled to any share in those properties.
11. For the above reasons, I answer the point in the affirmative.
12. It is next contended by the learned Counsel for the appellant that, since the 2nd defendant died during the pendency of the proceedings before this Court plaintiff being the nearest legal heir, became entitled to all the plaint schedule properties as the legal heir of the 2nd defendant. It is further contended by him that, since the second defendant got the plaint schedule Items 1 to 4, 8 and 12 from her father and she died without leaving any issues, plaintiff being the nearest legal heir on the side of her father inherited the said properties by virtue of the provisions of Section 15(2)(a) of the Hindu Succession Act, 1956.
13. In reply to this contention, learned Counsel for the L.Rs of the second defendant submitted that, since the second defendant got the above items of plaint schedule properties under the Gift Deed executed in her favour by her father and since she did not inherit any of those properties from her father, only the husband of the second defendant and the sons of her husband's second wife inherited the said properties. To appreciate the above rival contention urged by the learned Counsel appearing on both sides, I find it necessary to refer to the provisions of Section 15(a) and (b) of the Hindu Succession Act, 1956, which reads as under.--
"General rules of succession in the case of female hindus.--(1) The property of a female hindu dying intestate shall devolve according to the rules set out in Section 16,
(a) firstly, upon the sons and daughters (including the children of any predeceased son or daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in sub-section (1)--
(a) any property inherited by a female hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father; and
(b) any property inherited by a female hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband".
14. It is therefore, clear from the above provision that, any property inherited by a female hindu from her father or mother devolves in the absence of any son or daughter of the deceased upon the heirs of the father. But, in the instant case, the second defendant did not inherit Items 1 to 4, 8 and 12 of the plaint schedule from her father Veeranna. On the other hand, she got those properties under the registered gift deed Ex. D. 2 executed in her favour on 1-5-1956 and the other items of the properties were acquired by her after the date of the said gift deed from out of her own earnings and income of the other items of the plaint schedule. It is therefore clear that, Section 15(2)(a) will not apply to the present case. On similar facts in a decision in Ayi Ammal v Subramania Asari and Another, it was held that-
"Where a female died leaving property gifted to her by her father, sub-section (2)(a) of Section 15 will not apply, as the property gifted to her cannot be treated as one inherited by her from her father and so, Section 15(1) only would apply. Whereas, succession to a female Hindu generally is provided for under sub-section (1) of Section 15 an exception has been engrafted under sub-section (2) recognising a different mode of devolution in respect of property which the woman acquired by inheritance, in a way to a very limited extent recognising the old Hindu law in the matter, which restricted a woman's estate in inherited property and provided for its devolution as from the last full owner. Prima facie, the exception engrafted seeks to retain in the father's family property inherited by the deceased lady from her parents and similarly seeks to retain in the husband's family property inherited from her husband or father-in-law. The word "inherit" means to receive as heir, that is, succession by descent".
15. In another decision of the Andhra Pradesh High Court in Bobbal-lapati Kameswararao and Another v Kavuri Vasudeva Rao, it was held that--
The term "inherited" occurring in Section 15(2) in the context means "to receive property as heir" or "succession by descent". It has a restricted meaning and does not include acquisition of property by device under a Will. If wide meaning is given to sub-section (2) of Section 15 which is by way of exception to sub-section (1) it will lose its force. The word "inheritance" used in Section 14(1) also does not include "device" or a "bequest under the Will". Where a Hindu widow having no issues dies intestate, the property received by her from her mother under a Will would devolve on her husband's heirs and not on her father's or mother's heirs. Section 15(1) would apply and not Section 15(2)".
16. Thus, it is clear from the above legal position that, the above referred items of the plaint schedule which were gifted in favour of the second defendant by her father Veeranna under the registered Gift Deed Ex. D. 2, dated 1-5-1956 would devolve on her husband and his heirs and not on the legal heirs of her father and the provisions of sub-section (2)(a) of Section 15 will not apply.
17. I therefore, find no merit in the above contentions of the learned Counsel for the appellant.
18. Thus, I find that, plaintiff is not entitled to any share in any of the plaint schedule properties.
19. This appeal is therefore dismissed, confirming the impugned judgment and decree passed by the 1st Appellate Court.
20. In the circumstances, I direct the parties to bear their respective costs.
ORDERS ON BEING SPOKEN TO K.R. Prasad Rao, J.
I have heard the learned Counsel for the appellant and the learned Counsel for the respondent.
2. Learned Counsel for the appellant pointed out that under the registered Gift Deed Ex. D. 3, dated 1-5-1956, some of the items of the plaint schedule are not covered, which are land measuring 6 acres 61 cents situated in Sy. No. 265-B, which is part of Item 5; land measuring 6 acres 99 cents in Sy. No. 264-A, which is Item 6 and land measuring 3 acres 35 cents in Sy. No. 264-C, which is Item 7 and also the plaint 'C' Schedule movable properties. He, therefore, contended that since these items are the properties belonging to the father of the plaintiff-Kumbalagunte Dodda Veeranna, the plaintiff became entitled to half share in the said properties after the death of her father and the remaining half share belonging to the 2nd defendant also devolved on her after the death of the 2nd defendant during the pendency of these proceedings. It is further pointed out by him that this aspect of the matter has not been considered by the Courts below and they have erroneously presumed that the above referred Item Nos. 5, 6 and 7 of the plaint 'B' Schedule have been acquired by the 2nd defendant, after the date of the Gift Deed, Ex. D. 3 executed in her favour by her father. It is further pointed out by him that the lower Appellate Court has not considered the question whether the movable properties shown in the 'C' Schedule are the properties belonging to the father of the plaintiff and whether the plaintiff is entitled to the said properties.
3. In reply to the above submissions, it is pointed out by the learned Counsel for the respondents that so far as the Item 5 of the plaint 'B' Schedule, Sy. No. 265-B measuring 6 acres, 61 cents is concerned, the 2nd defendant produced the sale deed, Ex. D. 4, dated 4-6-1951 to show that it was purchased by one Thindhanna from N.C. Obleshappa and according to the evidence given by the defendant 2, her husband has purchased this property from the said Thindhanna. It is further pointed out by him that the plaintiff has not produced any sale deed in respect of this property to show that her father Kumbalagunte Dodda Veeranna purchased this land from Thindhanna. On a perusal of the sale deed, Ex. D. 4, it is found that Thindhanna purchased this land from N.C. Obleshappa in the year 1951. The plaintiff has not produced any sale deed to show that her father Kumbalagunte Dodda Veeranna purchased this property from Thindanna subsequently. It is no doubt pointed out by the learned Counsel for the appellant that in the R.T.C. extract produced in this case pertaining to this land in Column 10, it is mentioned as ancestral land. But, I am unable to place reliance on the said entry when it is found from the sale deed, Ex. D. 4 that it is purchased by Thindhanna, who is not a member of the family of the plaintiff or her father. It is next submitted by the learned Counsel for the respondents, that even in respect of Items 6 and 7 of the plaint 'B' Schedule, there is no documentary evidence to show that these items were standing in the name of Kumbalagunte Dodda Veeranna, the father of the plaintiff and the 2nd defendant and that they were purchased by him or acquired by him in any other mode. It is further pointed out by him that as per the mutation entry made in Ex. D. 9, these two items were transferred in the names of sons of the 2nd defendant's husband's second wife and the 2nd defendant is shown as the guardian for the said minor sons. It is nowhere mentioned in this document that these two items of land originally belonged to Kumbalagunte Dodda Veeranna, the father of the plaintiff and the 2nd defendant and that they were transferred to the names of the said minor sons of the 2nd defendant's husband's second wife from the Khatha of Kumbalagunte Dodda Veeranna. Though it is mentioned in Column 10 in the R.T.C. extract in respect of these two lands as the "ancestral" it is not clear from the said entry as to whose ancestral land they were. In the absence of any documentary evidence to show that these lands originally belonged to Kumbalagunte Dodda Veeranna, it is not possible to presume that they were the ancestral lands of the Kumbalagunte Dodda Veeranna. In respect of the plaint 'C' Schedule moveables, there is no evidence to show that the moveables mentioned in that Schedule were the properties belonging to Kumbalagunte Dodda Veeranna and that they came into possession of the 2nd defendant after his death. On the other hand, the Court Commissioner taken to house of the 2nd defendant for making an inventory of the moveables available, has prepared an inventory in this regard and submitted the same along with a report. It is seen from the said inventory report that the gold ornaments available were one gold long chain weighing two tholas of the value of Rs. 3,000, one pair of earrings of the weight of 5 anas and of the value of Rs. 400, two silver waist belts of 20 tholas weight and of the value of Rs. 400, one gold ring of 6 anas weight and of the value of Rs. 400, one gold mangalya chain of the weight of 3 tholas and of the value of Rs. 3,000. There is nothing on record to show that these items are the gold ornaments, which came into the custody of the 2nd defendant from her father. Nine bullocks, seven cows, three she-buffaloes, nineteen sheep, twelve goats are shown to be the cattle and one bullock cart available with the 2nd defendant. The other moveables which are said to be available with the 2nd defendant are a Philips Radio, 4 vessels, 2 steel plates and some foodgrains of the values shown in the inventory. Having regard to the fact that the 2nd defendant got some of the land properties under the Gift Deed, Ex. D. 3 executed by her father and some other land properties were purchased by her subsequent to the date of the Gift Deed, it cannot be said that all the above aaid moveables could not have been acquired by the 2nd defendant from the income of her properties and the income of her husband. I am therefore, unable to hold that the properties shown in the list of inventory prospered by the Court Commissioner are the properties belonging to the father of the plaintiff and the 2nd defendant. Thus, I find that none of the above items of the plaint schedules are proved to be the properties belonging to Kumbalagunte Dodda Veeranna.
I, therefore, find that the plaintiff is not entitled to any share in any of the above properties and I do not find any grounds modify the judgment and decree passed on 10-8-2000.