Karnataka High Court
Smt Savakka W/O Mahadevappa Jolad vs Smt Ningavva W/O Yallappa Navalgund on 20 February, 2014
Author: A.V.Chandrashekara
Bench: A.V.Chandrashekara
1
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 20TH DAY OF FEBRUARY 2014
BEFORE
THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA
RSA No.1874/2007 (DEC)
BETWEEN:
1. SMT.SAVAKKA W/O MAHADEVAPPA JOLAD,
AGE: 60 YEARS, OCC: HOUSEHOLD WORK,
R/O KOTALLI, TQ.SHIGGAON, DIST: HAVERI-581104.
2. NINGAPPA A/F MALLAPPA INGALAGI,
AGE: 43 YEARS, OCC: AGRICULTURE,
R/O KOTALLI, TQ.SHIGGAON, DIST: HAVERI-581104.
... APPELLANTS
(BY SRI.B.M.PATIL & SRI.F.V.PATIL, ADV.)
AND:
1. NINGAVVA, W/O YALLAPPA NAVALGUND,
SINCE DECEASED BY HER LRS.
1(a) SMT.PARAVVA W/O SANNANINGAPPA HUBBALI,
AGE: MAJOR, OCC: HOUSEHOLD,
R/O AGADI VILLAGE, TQ.HAVERI, DIST: HAVERI.
2. SMT.PUTTAVVA W/O NINGANAGOUDA PATIL,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O KOTALLI, TQ.SHIGGAON, DIST: HAVERI-581104.
... RESPONDENTS
(BY SRI.SUNIL S.DESAI, ADV. FOR R1a,
SRI.S.T.PATIL, ADV. FOR R1 & R2)
2
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 19.05.2007
PASSED IN R.A.NO.38/2002 ON THE FILE OF THE ADDL. CIVIL
JUDGE (SR.DN.) & JMFC, HAVERI DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 20.03.2002
PASSED IN O.S.NO.18/1995 ON THE FILE OF THE CIVIL JUDGE
(JR.DN.) SHIGGAON.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present appeal filed under Section 100 of CPC is directed against the concurrent judgments passed in O.S.No.18/1995 and R.A.No.38/2002. Appellants herein were the defendant Nos.1 and 2 of an original suit bearing O.S.No.18/1995, which was pending on the file of the then Munsiff Court at Shiggaon. Respondents herein were the plaintiffs in the said suit. Parties will be referred to as plaintiffs and defendants as per their ranking given in the trial Court.
2. One person by name Mallappa was the propositus. He had a wife by name Fakkiravva. They have three daughters namely, Ningavva, Tippavva and Savakka. Tippavva is no more and her only daughter Puttavva is 3 plaintiff No.2. Defendant No.2-Ningappa is the genetic son of defendant No.1-Savakka. Propositus Mallappa died in the year 1952. In the year 1968 defendant No.2-Ningappa was given in adoption by his genetic mother Savakka-defendant No.1 to her mother Fakkiravva. The adopted mother Fakkiravva died on 27.09.1983.
3. Propositus had properties at his disposal at the time of his death and they were all his ancestral properties. Ningavva is the daughter of Mallappa and Fakkiravva and Puttavva is the daughter of Tippavva, the deceased second daughter of Mallappa and Fakkiravva both of them chose to file a suit in the year 1995 claiming 1/4th share each in respect of schedule properties which are described in the schedule appended to the plaint. Defendant No.2-Ningappa chose to file a detailed written statement denying all the averments and had called upon the plaintiffs to strictly prove the contents of the plaint. According to him, his adoption by Fakkiravva relates back to the death of Mallappa and therefore, he has succeeded to all the properties of Mallappa 4 in entirety and therefore, plaintiffs have no right, title or interest to claim any share in the suit schedule properties. According to him, Mallappa was the sole surviving coparcener and he, being adopted son, has succeeded to all his estate. Hence, he had requested the Court to dismiss the suit. A memo was filed on behalf of defendant No.1 adopting the written statement filed by defendant No.2. On the basis of the above pleadings, following issues came to be framed.
i) Whether plaintiff proves that the suit properties are ancestral joint family properties of plaintiff and defendant No.1?
ii) Whether the plaintiffs prove that the plaintiff NO.1 is in exclusive possession of the suit properties?
iii) Whether the plaintiffs prove that the plaintiff No.1 has become the absolute owner of the suit house and open site by virtue of Will dated 30.10.1968 as alleged in para 5 of the written statement?
iv) Whether the plaintiffs prove that they have got 5/16th share in the suit lands?5
v) Whether the defendants prove that the gold and silver ornaments and cash were given to the plaintiffs in lieu of their shares in the suit properties as alleged in para 4 of the written statement?
vi) Whether the defendant No.2 proves that he is the
absolute owner in actual possession and
enjoyment of the suit properties by virtue of the registered adoption deed dated 30.10.1968 as alleged in para 5 of the written statement?
vii) In the alternative, whether the defendant No.2 proves that he has perfected his title over the suit properties by adverse possession as alleged in para 7 of the written statement?
viii) Whether the plaintiffs are entitled to the relief of declaration as sought for?
ix) Whether the plaintiffs are entitled for partition and separate possession of their 5/16th share each in the suit lands as sought for?6
x) What decree or order?
4. Plaintiff No.1 is examined as P.W.1 and two
witnesses have been examined on her behalf, apart from getting 11 documents marked on their behalf. Defendant No.2 is examined as D.W.1 and two witnesses have been examined on behalf of the defendants. Ultimately, the learned Civil Judge (Jr.Dn.), Shiggaon has answered issue No.1 in the affirmative and issue Nos.4, 6 and 9 in the partly affirmative and remaining issues in the negative.
Consequently, suit came to be decreed on 20.03.2002 granting 1/4th share each to the plaintiff Nos.1 and 2. It is this judgment and decree which had been called in question in an appeal filed under Section 96 of CPC before the Additional Civil Judge (Sr.Dn.) & JMFC, Haveri in R.A.No.38/2002. Several grounds had been urged before the first appellate Court on behalf of the appellants/defendants. After hearing the arguments and perusing the records, the learned Senior Civil judge has chosen to dismiss the said 7 appeal R.A.No.38/2002 by framing following three points for consideration.
i) Whether the trial Court is justified in partly decreeing the suit holding that each of the parties to the suit has got 1/4th share?
ii) Whether judgment and decree of trial Court call for interference?
iii) What order?
5. Point No.1 is answered in the affirmative and point No.2 in the negative. Consequently, judgment and decree of the trial Court is upheld. It is these concurrent judgments which are called in question on various grounds as set out in the appeal memo.
6. The case is posted for hearing arguments on the question of admitting the appeal in order to frame substantial question of law.
7. The learned counsel for the appellant has vehemently argued that adoption of defendant No.2 by late Fakkiravva would relate back to the death of Mallappa and therefore, the 8 ancestral properties held by Mallappa at the time of his death would naturally devolve upon him in entirety and therefore, plaintiffs have no matter of right, title or interest over the schedule properties. He has relied upon the decision reported in the case of Krishtappa Vs Ananta Kalappa Jaratakhane reported in Kar L. J. 2001(5) page 130 and AIR 1954 SC 379 between Shrinivas Krishnarao Kango Vs. Narayan Devji Kango and Others. Arguments of the learned counsel for the appellants in regard to the admission is heard.
8. It is to be seen that Mallappa was the sole surviving coparcener and had ancestral properties at his disposal at the time of his death and was survived by his wife and three daughters namely, Ningavva, Tippavva and Savakka. At the time when the Mallappa died in the year 1952, the Hindu Women's Rights to Property Act, 1937 was in vogue. Sub Section 2 of Section 3 specifically speaks that, when a Hindu governed by any school of Hindu law other than the Dayabhaga school or by customary law, dies having at the 9 time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of sub-section (3), have in the property the same interest as he himself had. Sub Section 3 of Section 3 of the above Act speaks that, any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu woman's estate, provided however that she shall have the same right of claiming partition as a male owner. Therefore, it is incumbent upon the Court to read both sub Sections harmoniously. On a harmonious reading of these two sub sections of Section 3, it is evident that widow would be entitled to seek a share in respect of the undivided share of her husband, soon after the death of her husband. Admittedly, as per Section 3 of Hindu Women's Rights to Property Act, 1937, all the ancestral properties of Mallappa had devolved upon Fakkiravva notwithstanding the fact that she had three daughters at that time. Even if one were to consider that all the properties that had devolved upon Fakkiravva consequent upon the death of her husband 10 Mallappa in the year 1952, as per sub Section 2 of Section 3 is a limited estate, it would enlarge itself into an absolute estate in view of Section 14(1) of the Hindu Succession Act, 1956. As such, the properties so held by Fakkiravva became her absolute properties in view of Section 14(1) of the Hindu Succession Act and therefore, she could have dealt with the properties in any manner she likes.
9. In the present case, the said Fakkiravva the adoptive mother of defendant No.2 and the natural mother of plaintiff No.1 and defendant No.1 died intestate. When a Hindu female dies intestate, the succession of such property left by a female Hindu is covered under Section 15 of the Hindu Succession Act, 1956. Sub Section 1 of Section 15 states that on the death of a female Hindu dying intestate, the same shall devolve (a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband.
10. In the instant case, she was survived by three daughters inclusive of Tippavva and one adopted son 11 Ningappa. Tippavva died after the death of Fakkiravva. Therefore, plaintiff Nos.1 and 2 are entitled to 1/4th share each in the properties left by deceased Fakkiravva. Accordingly, the properties held by Fakkiravva will have to be divided equally between her three daughters and one son and therefore, both the trial Court and the first appellate Court have allotted 1/4th share each and the share of Tippavva is allotted to her daughter defendant No.2.
11. It is also to be seen that adoption of Ningappa took place after coming into force of Hindu Adoptions and Maintenance Act, 1956. Therefore, as per Section 12(C) of Hindu Adoptions and Maintenance Act, the adoption of Ningappa in 1968 will not divest the rights that Fakkiravva had acquired soon after the death of her husband in the year 1952. Therefore the theory of relation back is not applicable in the present case.
12. In this view of the matter, the judgments relied upon by the learned counsel for the appellants are distinguishable on facts and circumstances of the case and 12 hence, they are not helpful to the case of the appellants, more particularly, when the adoption in these cases taken place prior to the coming into the force of the Hindu Adoption and Maintenance Act, 1956.
13. Therefore, the approach adopted by the trial Court as well as the first appellate Court cannot be found fault with in any manner. Both the Courts have properly analyzed the material evidence placed on record in right perspective apart from applying the proper provision of law to the facts of the case. Hence, there are no merits in the appeal. Appeal is liable to be dismissed as unfit for admission.
ORDER
14. Appeal is dismissed as unfit for admission. Consequently, the judgments of the trial Court and the first appellate Court are upheld.
No costs.
SD/-
JUDGE.
MBS/-