Karnataka High Court
L. Venkatesh Reddy vs H Lakshmaiah Reddy on 12 January, 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JANUARY 2022
BEFORE
THE HON'BLE MR.JUSTICE ASHOK S. KINAGI
WRIT PETITION NO.25858 OF 2018 (GM-CPC)
BETWEEN:
L. VENKATESH REDDY,
S/O LATE H. LAKSHMAIAH REDDY,
R/AT NO.39/24,
THIMMA REDDY ROAD,
APPAREDDY PALYA,
INDIRANAGAR,
BENGLAURU - 560 038.
...PETITIONER
(BY SRI.ABHISHEK PATIL, ADVOCATE)
AND:
H. LAKSHMAIAH REDDY,
SINCE DEAD BY HIS PROPOSE LRs:
1. SMT. JAYALAKSHMAMMA,
AGED ABOUT 65 YEARS,
W/O LATE H. LAKSHMAIAH REDDY,
R/AT NO.1/1, THIMMA REDDY ROAD,
APPAREDDYPALYA, INDIRANAGAR POST,
BENGLAURU - 560 038.
2. SMT. L. MANJULA,
AGED ABOUT 43 YEARS,
2
D/O LATE H. LAKSHMAIAH REDDY,
W/O P. GOPAL REDDY,
PRESENTLY R/AT NO.90/2,
15TH CROSS, APPAREDDYPALYA,
INDIRANAGAR POST,
BENGLAURU - 560 038.
3. SMT. L. CHANDRAKANTHI,
AGED ABOUT 41 YEARS,
D/O LATE H. LAKSHMAIAH REDDY,
W/O. N. SURESH BABU,
R/AT KUDLU VILLAGE,
SARJAPURA HOBLI, ANEKAL TALUK.
4. L. PURUSHOTHAM REDDY,
AGED ABOUT 39 YEARS,
S/O LATE. H. LAKSHMAIAH REDDY,
R/AT NO.1/1, THIMMA REDDY ROAD,
APPAREDDYPALYA, INDIRANAGAR POST,
BENGLAURU - 560 038.
5. L. RAGHURAM REDDY,
S/O LATE. H. LAKSHMAIAH REDDY,
R/AT NO.1/1, THIMMA REDDY ROAD,
APPAREDDYPALYA, INDIRANAGAR POST,
BENGLAURU - 560 038.
... RESPONDENTS
(BY SRI. K.M. JAGANNATH, ADVOCATE FOR R-2 TO R-5;
R1 IS SERVED)
THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER DATED 31.05.2018, ON I.A.NO.2, PASED BY
THE COURT OF I ADDL. SENIOR CIVIL JUDGE, BENGALURU
RURAL DISTRICT, BENGALURU IN F.D.P.NO.57/2015, AT
3
ANNEXURE-J AND CONSEQUENTLY DISMISS I.A.NO.2
FILED BY THE RESPONDENT NO.2 UNDER ORDER XXII
RULE 3(1) OF CPCP ON THE FILE OF THE I ADDL. SENIOR
CIVIL JUDGE, BENGALURU RURAL DISTRICT IN
F.D.P.NO.57/2015.
THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B; GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
The petitioner being aggrieved by the order dated 31.05.2018 on I.A.No.2 passed in F.D.P.No.57/2015 by the 1st Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru, has filed this writ petition.
2. Brief facts leading rise to filing of this petition are as under:
That the mother of the petitioner Smt.Guramma had purchased the suit property under a registered sale deed dated 14.11.1959. After her demise, 4 petitioner's name was effected and entered vide M.R.No.4/1989-90 with due consent of his father - H.Lakshmaiah Reddy and he became the owner and in possession of the same. The father of the petitioner, in collusion with the revenue officials, got the revenue records mutated for the joint names of himself and the petitioner vide M.R.No.40/2002-03 without the knowledge of the petitioner. The petitioner being aggrieved by the revenue records, filed a suit in O.S.No.1083/2005 before the Trial Court seeking for the relief of declaration of ownership and permanent injunction. The Trial Court vide judgment and decree dated 06.01.2009 dismissed the suit of the petitioner. The petitioner being aggrieved by the judgment and decree passed by the Trial Court, preferred an appeal in R.A.No.46/2009 before the Principal District Judge, Bengaluru Rural District. The Appellate Court vide judgment and decree dated 29.08.2009, allowed the 5 appeal and decreed the suit of the petitioner and moulded the relief of declaration into a partition suit and declared that the petitioner is a owner of half share in the plaint schedule property and father of the petitioner - H.Lakshmaiah Reddy was declared as a owner of half share in the plaint schedule property. The petitioner being aggrieved by the order passed in R.A.No.46/2009, preferred Second appeal in R.S.A.No.1500/2009 before this Court. This Court vide judgment and decree dated 08.09.2010, allowed the second appeal and set aside the judgment and decree passed in R.A.No.46/2009. The respondents filed a review petition in R.P.No.398/2010 before this Court. This Court vide order dated 25.11.2010 dismissed the review petition. The respondents being aggrieved by the judgment and decree passed in R.S.A.No.1500/2009 have preferred an SLP in Civil Appeal Nos.3725-3726/2015 before the Hon'bel Apex 6 Court. The Hon'ble Apex Court vide judgment dated 17.04.2015, allowed the appeal and set aside the judgment and decree passed by this Court and restored the judgment and decree passed by the Lower Appellate Court.
2.2. The father of the petitioner H.Lakshmaiah Reddy and Respondents No.2 to 5 herein filed a Final Decree Proceedings in FDP.No.57/2015. During pendency of the FDP proceedings the respondent H.Lakshmiaiah Reddy i.e., the father of the petitioner died and the respondents No.2 to 5 filed an application seeking permission to bring the mother of respondents No.2 to 5 Smt.Jayalakshmamma the second wife of deceased H.Lakshmaiah Reddy as legal representative on record. The said application was opposed by the petitioner by filing a detailed objection. The Trial Court after hearing the parties, allowed the application and permitted the 7 Smt.Jayalakshmamma wife of the deceased H.Lakshmaiah Reddy to come on record as legal representative of deceased H.Lakshmaiah Reddy as Petitioner No.1(a) therein. Hence, the petitioner being aggrieved by the order passed on I.A.No.2 has filed this writ No.
3. Heard the learned counsel for the petitioner.
4. Learned counsel for the petitioner submits that the application filed by respondents No.2 to 5 is not maintainable. He submits that the proposed legal representative is not a wife of the deceased H.Lakshmaiah Reddy therein. He further states that she is not a legal representative of deceased H.Lakshmaiah Reddy. He further submits that the succession was opened after the death of mother of the petitioner i.e., Guramma. He further submits 8 that as per Section 15(2)(a) of the Hindu Succession Act, the petitioner is the only successor to the property, but not deceased H.Lakshmaiah Reddy. He further places reliance on the judgments of the Hon'ble Apex Court in the case of SEETHALAKSHMI AMMAL -vs- MUTHUVENKATARAMA IYENGAR AND ANOTHER reported in [1998 (5) SCC 368] and DAYA SINGH (DEAD) THROUGH L.Rs. AND ANOTHER -vs- DHAN KAUR reported in [1974 1 SC Page No.700]. He further submits that the Trial Court has committed an error in passing the impugned order. He further submits that the petitioner alone is entitled for the properties left by the deceased mother of the petitioner Guramma.
Hence, he submits that the respondents are not entitled for any share in the suit schedule property. He further submits that the Trial Court has committed 9 an error in passing the impugned order. Hence, on these grounds, he prays to allow the writ petition.
5. Per contra, learned counsel for the respondents submits that the provision of Section 15(1) applies to the present case, as the suit of the petitioner came to be decreed and the First Appellate Court has moulded the relief and declared that the petitioner is entitle for half share in the plaint suit property and father of the petitioner is also entitle for half share in the plaint suit property. It is submitted that the father of the petitioner and other respondents have filed Final Decree Proceedings. During pendency of FDP proceedings the father of the petitioner H.Lakshmaiah Reddy died leaving behind his wife Smt.Jyalakshmamma, the proposed legal representative. He further submits that the proposed legal representative is entitled for a share in the suit schedule property as per Section 8 of the Hindu 10 Succession Act. He also submits that the mother of the petitioner Guramma has not inherited the property from her father or from her father-in-law or from her husband. He further submits that the mother of the petitioner has purchased the property. He submits that the provision of Section 15(2) does not apply to the present case in hand and he submits that Section 15(1)(a) applies. The Lower Appellate Court applying Section 15(1)(a) has moulded the relief and awarded a share to the father of the petitioner - deceased H.Lakshmaiah Reddy. He further submits that the Trial Court was justified in passing the impugned order. He submits that there is no error committed by the Trial Court in passing the impugned order. Hence, on these grounds, he prays to dismiss the writ petition.
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6. Perused the records and considered the submissions made by the learned counsel for the parties.
7. In order to consider the contentions of the learned counsel for the parties, it is necessary to consider some of the provisions of the Hindu Succession Act, which are extracted below:
"Section 3(1)(f) "heir"--means any person, male or female, who is entitled to succeed to the property of an intestate under this Act; Section 3(1)(g) "intestate"--a person is deemed to die intestate in respect of property of which he or she has not made a testamentary disposition capable of taking effect;
Section 8 - General rules of succession in the case of males.--The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter--12
(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;
(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule;
(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and
(d) lastly, if there is no agnate, then upon the cognates of the deceased.
Section 14. Property of a female Hindu to be her absolute property.--
(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Explanation.--In this sub-section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or 13 exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act. (2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.
Section 15 - 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 pre-
deceased son or daughter) and the husband;
(b) secondly, upon the heirs of the
husband;
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(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 pre-deceased 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 pre-deceased 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.
Section 16. Order of succession and manner of distribution among heirs of a female Hindu.--The order of succession among the heirs referred to in section 15 shall be, and the 15 distribution of the intestates property among those heirs shall take place according to the following rules, namely:-- Rule 1.--Among the heirs specified in sub-section (1) of section 15, those in one entry shall be preferred to those in any succeeding entry and those included in the same entry shall take simultaneously. Rule 2.-- If any son or daughter of the intestate had pre- deceased the intestate leaving his or her own children alive at the time of the intestate's death, the children of such son or daughter shall take between them the share which such son or daughter would have taken if living at the intestate's death. Rule 3.--The devolution of the property of the intestate on the heirs referred to in clauses (b), (d) and (e) of sub- section (1) and in sub-section (2) to section 15 shall be in the same order and according to the same rules as would have applied if the property had been the father's or the mother's or the husband's as the case may be, and such person had died intestate in respect thereof immediately after the intestate's death." 16
8. As per the above provisions, the definition of "heir" means any person, male or female, who is entitled to succeed to the property of an intestate. Sofar as Section 8 is concerned the same deals with General Rules of succession in case male Hindu for dying intestate which shall devolve upon the legal heirs specified in the schedule. Section 14 deals with any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Section 15 deals with the property of a female Hindu, when the property of female Hindu dying intestate, shall devolve according to the rules set out in Section 16. Section 16 deals with the order of succession and manner of distribution among heirs of a female Hindu.
9. Now coming to the facts of the case, admittedly the suit property was purchased by 17 Guramma on 14.11.1959. The petitioner is the son and H.Lakshmaiah Reddy is the husband of deceased Guramma. The said Guramma died leaving behind the petitioner and her husband H.Lakshmaiah Reddy. After the demise of Guramma, H.Lakshmaiah Reddy married one Smt.Jayalakshmamma i.e., the proposed legal representative of deceased H.Lakshmaiah Reddy. The deceased H.Lakshmaiah Reddy made an application to the revenue authority to mutate the joint names of himself and the petitioner in the suit schedule property. The revenue authorities after following the procedure, passed the order effecting mutation in the joint names of himself and the petitioner. The petitioner filed a suit in O.S.No.1083/2005 for the relief of declaration of ownership and permanent injunction. The Trial Court dismissed the suit filed by the petitioner. The petitioner being aggrieved by the judgment and 18 decree passed by the Trial Court filed an appeal in R.A.No.46/2009. The First Appellate Court moulded the relief and granted relief of partition and separate possession and held that the petitioner and his father i.e., deceased H.Lakshmaiah Reddy are entitled for half share each in the suit property and they shall workout their rights in the Final Decree Proceedings. The petitioner being aggrieved by the judgment and decree passed in R.A.No.46/2009 preferred second appeal in R.S.A.No.1500/2009 before this Court. This Court allowed the appeal and set aside the judgment and decree passed by the First Appellate Court and consequently decreed the suit of the petitioner as prayed for. The respondents filed a review petition in R.P.No.398/2010. The said review petition came to be dismissed by this Court. The respondents aggrieved by the same preferred Civil Appeal before the Hon'ble Apex Court, the Hon'ble Apex Court 19 allowed the appeal filed by the respondents and set aside the judgment and decree passed in the second appeal and consequently restored the judgment and decree passed by the First Appellate Court. After the disposal of Civil Appeal, the respondents filed a Final Decree Proceedings in FDP No.57/2015 for drawing up of the final decree. During pendency of the FDP proceedings H.Lakshmaiah Reddy died on 01.09.2017 and respondents No.2 to 5 filed an application I.A.No.2 to bring Smt.Jayalakshmamma wife of deceased H.Lakshmaiah Reddy on record as legal representative of deceased Lakshmaiah Reddy. The said application was opposed by the petitioner. The Trial Court after hearing the parties, allowed the application.
10. It is not in dispute that the suit property was purchased by deceased Guramma under the registered sale deed dated 14.11.1959 and it is also 20 not in dispute that the said property has inherited by Guramma. As per Section 14(1) of the Hindu Succession Act, any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. In the present case, Guramma was the absolute owner of the suit schedule property under the registered sale deed dated 14.11.1959. After her demise i.e., as per Section 15(1) of the Hindu Succession Act, the property of a female Hindu dying intestate shall devolve firstly, upon the sons and daughters and the husband.
11. Admittedly, in the present case, the petitioner is the son and deceased H.Lakshmaiah Reddy is the husband of deceased Guramma. The property left by deceased Guramma shall devolve upon the petitioner and her husband deceased 21 H.Lakshmaiah Reddy. The Lower Appellate Court, considering Section 15(1)(a) has moulded the relief and converted the suit for declaration into partition and separate possession and granted a share and held that the petitioner and deceased H.Lakshmaiah Reddy are entitled for half share each in the plaint schedule property and they shall workout their rights, in the light of the FDP proceedings. In the instant case, Section 15(2) does not apply as Section 15(2) applies to (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; (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.
12. In the present case, deceased Guramma has not inherited any property either from her father or mother or from her husband or from her father-in- 22 law. Further, the petitioner being the son and deceased H.Lakshmaiah Reddy being the husband, the said property devolves upon the petitioner and deceased H.Lakshmaiah Reddy as per Rule (a) of Sub- Section 1 of Section 15. Hence, Sub-Section 2 of Section 15 will not apply to the present case in hand.
13. Whether the respondent No.1 -
Smt.Jayalakshmamma is the legal representative of deceased H.Lakshmaiah Reddy is to be considered. As per the definition of Section 3(1)(f) "heir" means any person, male or female, who is entitled to succeed to the property of an intestate under this Act.
Admittedly, in the present case, deceased H.Lakshmaiah Reddy married to Smt.Jayalakshmamma, the proposed legal representative, after the death of Guramma. The proposed legal representative falls within the
definition of "heir". Further, as per Sub-Section 11 of 23 Section 2 of the Code of Civil Procedure "Legal Representative" means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is prosecuted in a representative manner by the person to whom the estate is transferred upon the death of the party so suing or sued.
14. In the present case, the father of the petitioner i.e., deceased H.Lakshmaiah Reddy was allotted half share in the suit property. He died intestate leaving behind proposed legal heir i.e., Smt.Jayalakshmamma. The estate of deceased devolves on the legal heir on the death of the party. The legal heir/s are entitled for estate of the deceased H.Lakshmaiah Reddy. The proposed respondent falls within the definition of "Legal Heir" and as per the first schedule, the widow is a Class-I 24 heir. The proposed legal heir is the wife of deceased H.Lakshmaiah Reddy. She being the Class-I heir is entitled for the estate of the deceased H.Lakshmaiah Reddy as per Section 8 and right to sue survives to the proposed legal heir in law. As observed above, she represents the estate of her deceased husband. The Trial Court after considering the material on record, was justified in passing impugned order.
15. It is also contended by the learned counsel for the respondents that the petitioner filed a suit in O.S.No.659/2007 challenging the registered Gift Deed. The said suit came to be dismissed on 07.02.2019 and petitioner preferred an appeal in R.F.A.No.842/2019. This Court dismissed the appeal filed by the petitioner vide judgment and decree dated 07.11.2019. As rightly contended by the learned counsel for the respondents, Sub-Section 2 of Section 15 is not applicable to the case in hand. 25
16. Learned counsel for the petitioner has placed reliance on the judgment of the Hon'ble Apex Court in the case of SEETHALAKSHMI AMMAL -vs- MUTHUVENKATARAMA IYENGAR AND ANOTHER reported in [1998 (5) SCC 368]. The said judgment is not applicable to the present case in hand, as the issue involved in the said decision is under the category of Clause (b) of Sub-Section 1 of Section 15. Thereafter, the suit for declaration was filed and First Appellate Court has moulded the relief and granted half share in the suit property to deceased H.Lakshmaiah Reddy. The proposed respondent is claiming the estate of deceased Lakshmaiah Reddy and succession was open after the death of H.Lakshmaiah Reddy.
17. Learned counsel for the petitioner has also placed reliance on the judgment of Hon'ble Apex Court in the case of DAYA SINGH (DEAD) 26 THROUGH L.Rs. AND ANOTHER -vs- DHAN KAUR reported in [1974 1 SC Page No.700], wherein the Hon'ble Apex Court has held that on the death of limited owner, succession opens and would be decided on the basis of last male owner died on that day.
18. In the present case, as observed above, the property was purchased by Guramma and she died leaving behind the petitioner and her husband H.Lakshmaiah Reddy. She was the full owner of the suit property as on the date of her death. The said property devolves upon the petitioner and H.Lakshmaiah Reddy. After the demise of H.Lakshmaiah Reddy, proposed legal representatives succeeds to the estate of deceased H.Lakshmaiah Reddy. The Trial Court was justified in recording that the legal representatives has succeeded to the estate of the deceased H.Lakshmaiah Reddy. Hence, I do not find any grounds to interfere with the impugned 27 order in exercise of the supervisory power under Article 227 of the Constitution of India. Accordingly, the writ petition is dismissed.
SD/-
JUDGE GRD