Karnataka High Court
Y S Gurunanjappa S/O Shivalingegowda vs Sunanda W/O Jagadish on 29 May, 2008
Author: V.Jagannathan
Bench: V.Jagannathan
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Dated the 29**1 day of May 2008
:BEFORE:
THE HON'BLE MRJUSTICE : v.JAGAN1§A.THé;N" H
REGULAR SECOND APPEALNQ. 394"i--a:zQd5 "
BETVNEEN :
1.
Sri Y. S. Gurunanjappék 4-, _
S/0 Shivalingcgowda, " _
Aged 50 years, Agricu1tL1.ri.fi,_ "
R/0 Yaflamba1a$é'V-Vfllagc, V .,_ ,
Yagati Hohlj, Kadur --}- 5'}'*7 543,
Smt. Mehaboobi; _ V.
W/o Aged about sfrycais,
R/<?%¥aHa?:nF3a1asr_Vi11agr:, 11' V .
Yagati 34.:-b'1i; -+,5:"«"r 543.
1
S/-:0 Rucizappa, Z"xg¢c1..50-yea:-s,
;s'\g1'ic11Itv.1;t'1'.~B2-t,~ ,Riq Ya}Eamba}asc Village,
Yag;-xii Iv-Io33li,"{{ad1i;~ Taluk M 57? 543.
' 'V Sri Kalhafiifigafijpa 8:'.
;_1';isvwife Sine.---Nanjamma,
by their L. Rs. :
1 " ./ Deveerappa,
j SIG Srj late appa,
Aged about 50 years.
a " Sri Parameshwatappa,
S/0 late Kallaningappa,
Aged about 47 yeam.
:3) Sri Shanthappa,
S/0 late Sri Kallaaingappa,
Aged about 4'? years.
:1) Sri Rajapps}, .
S/o late Sn Kallamngappa,
Aged about 35 years.
e) Smt. Sharadamma,
D/0 late Sri Kallaningappa,
Aged about 47 years,
R] o Somanahalli Village,
Singatageri Hobli,
Kadur Taluk «~-- 577 548;» j
E) Stat. Shavanthamma,"
I.)/0 late Sri Kallzagxingappa,
Aged about 38 yr-..a"1*s., ' V . _ .
Rjo Soorapura Viilage, " "
Yagati Ho}_:)li, Kmi_urjfra1u1g-577
4(a) to (d) an I'€§id"€11tSOfV j " AA "
Chikkanayakanahalfli Vii3Qage,_.~«._ " V
Yagati Hchli, Tfaluli-57? "
Advocate. )
A N 1)*:""~-. "
1.
"'-smt'. s3:.gxi;~.§i:c1:a;»
we 51-; Jagaa;"s=.s_1;~;,.__ "<
Aged _V about _45._y&a1's,
5 -V R/o La-2kukava}Ji,"
Ta1,_i_;_k.- 577 228.
_ -V
* 4._\i-.110 Sri Rajanna,
about 42 years,
Rf9 I{;HosahaI1i, Kadur Kasaba,
. Kadur Taluk -- 577 543.
Smt. Sharadamma,
D] 0 late Sri Y.N.Bhavanthappa,
Aged about 32 years,
R/o Kl-Iosahaili, Kadur Kasaba,
Kadur Taluk --- 577 548.
Sri Y.B.Kumar,
S/o late Sri Y.N.Bhavanthappa,
Aged about 4 1 years,
R] o Yeflsmbalase Village,
Yagati Hobli, Kadur Ta1uk~57? 548.
5. Sn' P.Sam1abasappa,
S10 Sri Papanna,
Aged about 60 years,
Agxiculturist, R/o Yallamhaiase
Village, Kadur 'I'aIuk-577 548.
6. Sri Hyamappa,
S/o Sri Kenchappa, I
Aged about 56 years, Ag'ic1'i11:u1'1st_,_
R/0 Yaflambalase Village, T A.
Kadur Taluk -- 5?'? 548. 4'
( By S11" M. B. Chandeéehocyda, Advu§¢5§.tc."f)
Regular Second Section 100 of the
C.P.C. againstfihe dated 14.12.2004
passed in x§z.A;..1§g». 145/€200 1"«.cSI;'.i_"t11e §i1e of the Presiding
o£eg»¢1%,"'ia*aa..iiie1fra;§?:;"'cgsugt, x§d'er;'% dismissing the appeal and
ccmfiiming t:n§'"m_'d' decree dated 6.8.2001 passed
in O.$LNe.-673-[V1'§I89' 'ee'Vibe file of the Prl. Civil Judge
(Jr, E331.) a;"Jm«1:,"V'Ka;c-anti'.
. "appeal'e<H)ming on for hearm g this day, the oourt
_fe;}1owi11g :
JUDGMENT
" ..1_3efendants--4, 5, 6 and 8 respectively in the trial 'veoiirt in O.S.No. 673/ 1989 are the appellants herein U ___§and they are aggrieved by the appeal preferred by them before the iewer appellate court; being dismissed by confnning the judwent and decree of the uial court i« _p = " V %V.§?¢spondén*$ * 4 passed in favour of the plaintiffs in a. suit filed the plaixltiifs for partition and separate possessiojri' resfittctive shares in the suit pP0pert1'es. , A *
2. The facts necessaxy for the '' this appeal, briefly stated,-tofthe that plaintiffs before the trial fitstivvfidefendant are the children of and it is the case of are p1ee.~r1:;;a"e% 'fplaint schedule propertiers,i%'*'=1;%é,tt?*t2 of the family and ft 'r'.IV;.B1;agavanfl1appa, who was maeegirrg undivided joint family being the_Ka1-the er-re, death of their father, the first eeierrrierrt, the brother of the plaintiffs, was affairs of the family. It is their further the first defendant, being their brother, fell into" habits and though there was sufiicient income by the family out of the joint family properties, . K ___5yet, the fixst defendant sold ali the suit schedule properties though there was no legal necessity to Sell the same and, accordingly, item No.1 was sold in favour of the second defendant, item No.2 was sold in favour of 92 S the third defendant, item No.3 was sold in favour of the fourth defendant, item No.4 was sold in I'avou.r:
defendant and item No.5 was sold in favotuiiéof defendant and the fld sales Wt31TE_I_10t » or benefit of the joint family and, . efforts to prevent their the suit L' properties did not, "and,_.:§as such, following the sold to various persons, whowaee wade' in the suit, the plaintifis; for partition and separate share in all the suit properties.' it i it
3. 5. ., 'A the i."dei'endants, defendant-5 flied his . " which was also adopted by taetr¢.;¢ant;..3 and 6 and defendant~8 also filed his arfitten' statement. The defendants' ease in substance .. is the plaintifis are not entitled to any share in the it items and the sale was efieoted for legal necessity ' --':and, therefore, was binding on the piaintiifs and the suit itself was barred by time. It is also their case that the suit items purchased by the defendants were for ix 0,1"
6
valuable consideration and the plaintiffs, therefore, have no right whatsoever to lay a claim over the which have been purchased by the accordance with law.
4. Based on the said plessimgsgt judge framed as many as issiies the ' first live issues in the a11i_vz%isevele%l);}he1di;eg that the plaintiffs are entitled' in the suit schedule made by defendant; plaintiffs and the to prove that the sale was effecteciu' «fox . The issue regarding was"eJ.so.vanswered in favour of the plaintiffs. ' ;"l1'l":eA the plaintifis, therefore, came to be decreed " were held enetled to 7/12th share in all l:~1lt';.item No.2 of the suit items. It is this judgnent A 51' decree of the trial court that was called in question by some of the defendants before the lower appellate court in R.A.No. 145/2001 and the learned judge of the lower appellate court, on finding that the appellants before him had been given sufficient opportunity to lead .b _ evidence and also on conemtring with the findings with regard to the plaintiifs ,4 to shame in the suit items in View of the Hindu Succession Act by Act' ii' dismissed the appeal preferreA:"z:i Aggrieved by the dismissai'oi'V:Vt;'1eirVeppesJ,f'.defendsnts~4g 5, 6 and 8 have preferred
5. I have éheaxd Shri K.P.Ashok Kumar and counsel Shri M and carefuliy perLised* on record including the assigned 'lower courts.
E>"._;" " The leagned eounsel for the appellants, at the ' that the suit itself is hopelessly barred ._ regard to the fact that the suit was flied for and separate possession and the Article " ti'-l4_£."1t applicable is Article 113 of the Limitation Act and of the plaintiffs themselves stating' in their pieadings that the suit items had been sold by the first defendant to other defendants and the said transactions «ii 8 took place on various dates right from 1980, t1___1e suit could not have been filed after the expiry' "the limitation period prescribed under A1'tiel_.ei-- iii.[fo--f Limitation Act. it was also ' .
pleading was not taken up tiae court, yet, the trial issue concerning the smebemgs % by " 'hmitéeon and, therefore, the appeiionts to urge the said ground in cos it this ward, the learned etdecision of the Madhya Pradesii of Lalchand ohanazaz Vs. in AIR 1953 Madhya Prodesh to suijmit that once a suit is found to have " E"'iilS§f.i$1.it€d vtieyirond the liinitation period, the court I dismissed the suit irrespective of the qi1est:io11.ii:ga1'di11g limitation being raised or considered A. by the eourts below.
As for as the applicability of the Hindu Succession V Act as amended by Karnataka Amendment Act 23 of 1994 is conoemed, the submission made is that the provisions of the said amended Act are not retrospective ix
5..-
9 in effect and in this eolmection also, the learned counsel for the appellants placed reliance on a decision' court in the ease of Deveerawwa Vs. 4' in 2005(2) AIR Kar. R 63. 'Iv'eherefore._:.:ilcotirtjneedl it not dwell into other aspects of the satisfied that the suit is
8. Even on the megfits of is"suii;mitted by the learned counsel the plaintiffs are not enizitled. suit items as,
3. 12. 1976, the first defendant person who was entitled to receive .V%theVsuit..iten71s and the plaintiffs had no right ofierv-the suit items as, at that point of time, d _ provisions of the Hindu Succession Act ll not in o force.
9'.-.. .4' e o er hand, the learned counsel for the .A resoondents contended that the plaintifis were only ll 'claiming their shave fmm out of the share which their ' Vifathcr would have got in a parétion during his life time and, therefore, following the death of their father, the L .4 is plaintiffs are entitled to Ieeeive their respective __sl1ams from out of their father's share. It is also 'by him that all the suit items were joint and, therefore, the plaintiffs. . 1' enforce their respective was only when the first the 1 plaintiffs' share and. various defendants that and henofig Article 1 10 of to the case of the 113. In this regard, it was 113 is applicable oniy in respeet.,of a of "movable properties" but not to iioroperties". in support of his «sfibmiihsaioas, the learned counsel for the respondents piaeed on the decisions reported in AIR 1985 143, AIR 1991 Kamataka 273 and AIR 1966 is Therefore, the submission made is that the taken by the courts below does not call for any 1 V "interference at the hands of this court and, as far as the limitation ground urged by the appellants' counsel is % Q I 11 concerned, no such plan. can be entertained at thi-s___ stage by this court.
. 1'} e ' o e su missions mane-difiasiiai g 1OIthl1tfth in 'Mfored by the respective counsel fOI'v7._thff;"eiIiCiV:}71&'Vi§1ig regard to the substantial t1;1iesfion'oii law ' by this court and noteihof of limitation urged by counsel, in my view, the following_:"s11bstanfiai of law arise for consideration: " Y': i
1) :cjiiwi;;st1~;g;.;f barre_~ "Mid by time?
ii) A'Wu1_1eti1e'1*.,_.A'iA;:_?i.'1Ae' below were justified in V. _ invoidngw .tt1eA'pi'o%risions of Hindu Succession Act amendedhy Karnataka Act 23 of 1994? .';'__.1V.' to to the first question of law raised is in i of the appellants, then the question of A considefing the second question of law does not arise.
-..V"Th'erefore, I focus my attention to the first point at the V .I§fi;rst instance.
12. The main contention put forward by the appellants' counsel is that the suit was filed in the year fix O I 12 1987 which is not in dispute and secondly, the ___suit is also for partition and separate possession of. share. Hence, the appropriate Article case on hand will be Article 1 and. no; H' 1. the other hand, the learned cotinsellior has also strenuously Afiifit' is'? applicable to the "agld iio't-AAAr§I:iole 113.
Therefore, it is the said two Articles and in law as laid down by? iolollexzswer the point under Considerofioig. if
13. Aftacjes 1o ;.u:df1 13 of the Limitation Act read as A A _____ .. s Pfifiod of Time from which ._ of suit ]. .tafiim period begins to T1111 31210. 'Boo person When the exclusion excluded from :51 becomes known to _ jointx.7 family Twelve years the plaintiff. to shape therein.
paropertjgr to enforce Part X -- Suits for which there is no prescribed period
113. Any suit for When the right to which no period sue accrues.
of limitation is Three years provided elsewhere in this Schedule.
b gm 13
14. Which is the precise Article that is applicable to a suit for partition has been answered by the in the ease of Krishna Pillar' Ii'ajczsekhar;m.'4.' its. Padmanabha piaai, reported in AIR 2oo4tise isms. T in the said decision, the Apex "i it '4 which was filed in the cas'e,_})y t1'ierplainti;'? "
for partition primarily and the relief of redemption to direction made by the High rsegufit, for such suit;
would oi': the Limitation Act, 19osist(con-usg§oiiic1ing%iit§i mj1:ic1e 113 of the 1953 Act) and, thei'efo1;e,-.._Vi'or partition, the starting point for is when the right to sue accrues that is, ' has notice of his entitlement to " paV_"'rt1'é 'u§:i'i;éirig denied. AA 15. ii iihfl View expressed by the learned author it *-.w_"U..i4'.Min*a in his "Law of Limitation 8; Piesciiption" -- sigma Edition -- 2006) whiie dealing with Article 113 is to lie found at page No.20'73 of Volume 2. It has been observed that a suit to enforce as right to a share in 3% l4 Mitakshara Joint family property i.e., a suit for partition of such property is governed by Article look at the pleadings of the parties will anyone's mind as to the natui"ellVo1"the4Alsoughtnisny i V the plaintifis i.e., the relief = possession of the items. Therefore, the 'suit that is fiiw is primarily one for partition and henoe,;_Aftichle 1:13 the case on hand.
16. As. the learned counsel for the 113 is applicable only in respectVVV'of_Viav.sjuit._ psrtition of "movable property" and property" is concerned, i am unable ' the said submission made because, no 'such conclusion can be drawn from a plain reading of the wlo:'dli11gs of Article 1l3. The use of the words "any in Article 113 is wide enough to encompass any suit and it is not Confined only to a suit concerning movable property. Once it is established that a suit in respect of which no period of limitation is provided elsewhere in the Schedule to the Act, then, such a suit ~92"
15
is governed by Article 1 13. Therefore, the argument that Article 113 is applicable only to a case of partition of movable properties and does not cover a; _ of partition of immovable properties }cannot 1?. As far as the app1ieabi1ity"o'f "1-'u«'f,_ie;1e .1 97 is concerned, the said Article co\}e_r?s,g1_;he case'of 'a excluded from joint fa1I1i1y"'p1:Vfoperties._to'A to share therein. "one "the essential requirements of Articte '1 must have been exc1u§ied';fi*oni._ "joiitt ..pt?operty". The term "joi.nt--._ "treated as synonymous of this is the View expressed by tE;e:. learned ai1thor«eU.N.Mitra in the vexy same volume to but at page-'2003. The expression .' to share" has also been explained by the author Mitra in the aforesaid word at page-2002 "6. Enforcing right to share.- Though the article refers to a suit to enforce a right to share joint family property yet it has been construai both by the Privy Council and the 3::
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Courts in India as applicable to suits for partifion by a coparcener in a joint Hindu family and not merely to suite to enforce _a__ right to common enjoyment along other co-sharers. For, a claim for pa1'_tZ:ifi0I1»'_iS:
one of the modes of enforcing share in the joint family" A has been wefl-established'1.ever 7-I' of 1859." ' it ' It is, therefore, clear 'conimetits of the learned author -fatzliiy property is a sine qua nor: for 'Article 110. In the joint family property was in existenee4__' as on of filing of the suit by the their own saying, the first defendant ' ;had suit properties long back in the years 1980 Q = elm lee; Therefore, in the absence of existence A family property, the question of the plaintiffs it ~ beingdexcluded does not arise. In View of the foregoing analysis of the scope of Articles 110 and 113 of the Limitation Act, 1 do find enough merit in the submission made by the learned .£~ Isl 17 counsel for the appellants that the suit of the plainfifis ought to have been instituted within a period of three years as required under Article 1 I3. No such taken and the suit was filed after a lapse of Hence, the suit is barred by him' _',taf.:ion. " " "if h
19. As far as the submission of k' the appeliants that some of suit" sold in the year 1985 is 'remeihs that the first defendarit 'items right from the it is deemed that the to them as far back as in the '19t3{) 7when the first defendant refused t1;emA'éi's~1eeie in the suit items. Therefore, the the suit being not barred by limitation win * 'Z29. I have answered the first point itself in favour of the eppenantefiaei the suit itself is held to be barred by limitation in View of the decision cited by the learned counsel for the appellants i.e., AIR 1963 MP 102, wherein it has been observed that, where the suit was 3:
18
liable to be dismissed as barred by time notwitiistanding the fact that the question was not pointedly "nor specifically considered by the courts belowjixz 4' perspective would not preclude--the. ' j considering the same and further iiviéas observed the said decision that the provisions ci""Section 3' i of the Limitation Act.,.get.s;_ meicsun the court is bound to 'on the face of it, appears to,» .V addition to the aforesaid out of place to refer to "Which also provides that everyii" "appeal preferred after the prcsczrtibeti be dismissed although limitation " ~ set as a defence. Hence, the suit of the to have been dismissed by the courts hemp the ground of it having been barred by ii * Iixnitation.
if Notwithstanding the answer given to the point ' concerning limitation, even with regard to the applicability of the amended provisions of the Hindu Succession Act is concerned, the amended provisions X /M E9 are not made applicable retrospectively and this is the law laid down by a learned judge of this court in the ease of Deveerctwwa Vs. Gangawa, reported AIR Kar. R 63, and in the course of court has taken the View that _.the__que_:stiotl:
the provisions of the Kainataltia 1994, which was not 9' and, on the said grouhd, the j1ldge..held that the unmarried daughters' to a sham in notional pa1T;itjon. aforesaid decision of this jV'seeond.VHdaesfion of law raised will have At'o_ "holding that the courts below were ei'r'otfi1i ixivoking the provisions of the Hindu 9' Act amended by Karnataka Amendment 9 _ Ag{2si'¢£%iéa4.
22. '~ the aforesaid reasons, the View taken by the below both on the limitation aspect as Well as the applicability of the Hindu Succession Act as amended by Karnataka Amendment Act 23 of 1994 cannot be sustained in law and hence, the suit filed by the plaintiffs ought to have been dismissed solely on the R </.:
20
gonad of limitation. The appeal, therefore, to succeed and hence I pass the following order: f » The appeal is allowed. The judgmentiofv apwllate court, by which the j§1d"gn1eIfl1tlof >1' was confirmed, as well as Vti1at»A:of aside and the suit of the plaéxiififis is