Karnataka High Court
Pushpadant Dharwad Bin Padmappa ... vs Vishweshwar Khare Bin Prahalad Bhat on 14 September, 2012
Author: Huluvadi G.Ramesh
Bench: Huluvadi G Ramesh
1
R
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 14TH DAY OF SEPTEMBER 2012
BEFORE
THE HON'BLE MR JUSTICE HULUVADI G RAMESH
REGULAR SECOND APPEAL NO.5651 OF 2012
Between:
1. Pushapadant Dharwad Bin
Padmappa Dharwad, 67 yrs
Now resident of H.No.656,
Namadev Kalyan Mantap Road,
Banavasi Gram, Taluk Sirsi,
2. Manjunath Patil alias
Manjunath Gowda Bin Basavaraj Gowda,
40 years, Occ: Business,
Now resident of Namadev Kalyan
Mantap Road,
Banavasi Gram, Taluka Sirsi ..APPELLANTS
(By Sri H R Gundappa, Adv)
And:
1. Vishweshwar Khare Bin
Prahalad Bhat Khare, 65 yrs
Occ: Advocate & Agriculturist,
Resident of Tegginakeri,
2
Kadamba Marg,
Banavasi Gram, Taluka Sirsi
2. Shekhar Uppar Bin Bangarayya Uppar,
45 years, Ex-President, Block Congress Party,
Resident of Upparkeri,
Banavasi Gram, Taluka Sirsi
3. Smt Gunavati Kom Padmappa Gunjal,
Since dead by LR's,
A. Rajeshwari, W/o Raju Pandith
Since dead by LR's
3AA. Sri Raju Pandith @ Raju Upadhya,
35 years, Resident of Bastigalli,
Veereshwar Nagar, Muddebihal Town
District Bagalkot-586212. ..RESPONDENTS
(By M/s Hegde, Neeralagi and Patil Associates, Advs for C/R1)
This Regular Second Appeal is filed under Section 100 of
CPC against the judgment and decree dated 9.3.2012 passed in
R.A.No.60/2010 by Fast Track Court, Sirsi, dismissing the
appeal filed against the judgment dtd.29.5.2010 and the decree
passed in O.S.No.144/2003 by the Sr. Civil Judge, Sirsi,
decreeing the suit filed for declaration, possession and
injunction.
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This Regular Second Appeal coming on for admission
this day, the Court delivered the following:
JUDGMENT
This second appeal is by defendant Nos.1 and 2
challenging the judgment and decree passed by the Fast Track Court, Sirsi in R.A.No.60/2010.
2. O.S.No.144/2003 was filed by the plaintiff for declaration that he is the absolute owner in possession of suit schedule property and for injunction and, also for an alternative relief of possession, if he is found not in possession of the suit schedule property. Suit schedule property situate in Banavasi Gaonthana Sy.No.520 measuring 6 guntas is a non-agricultural land with assessment No.753 and property bearing No.656 including some fruit yielding trees. This property belonged to one Padmappa Gunjal, who had constructed a small tiled roof 4 house. As his first wife pre-deceased him, he married 4th defendant as second wife after his retirement from service as a Teacher and since there was no chance of 4th defendant getting any family pension, to secure her life, Padmappa Gunjal has transferred suit property in favour of the 4th defendant in the year 1987. Both, 4th defendant and Padmappa Gunjal were residing jointly in the suit property. After the death of Padmappa Gunjal on 6.2.1999, defendant No.4 and her daughter Rajeshwari inherited the suit property and for their family necessity, she has sold the suit property to the plaintiff by executing a registered sale deed on 24.1.2000. Since then plaintiff has become the owner in possession of the suit property. It is also stated that for some time the suit property was also leased out to defendant No.3 on a monthly rent of Rs.250/-. Thereafter, it was informed to the plaintiff by defendant No.3 that defendant No.2 has trespassed into the suit property colluding with defendant No.1, although they do not have any right. Even when plaintiff had applied for entering his 5 name in the revenue records, on the order passed by the Tahasildar, Assistant Commissioner was approached wherein an order was passed directing the plaintiff to approach the Civil Court. Thereafter, plaintiff approached Mandal Panchayath to enter his name against which, defendant No.1 had filed objections wherein rejecting the objections filed, name of plaintiff had been entered in the records. According to the plaintiff, defendant No.3 has handed over possession of the suit property to the plaintiff on 1.3.2003. Defendants 1 and 2 contested the suit alleging that they are in possession of the suit property. It is denied that Padmappa Gunjal and defendant No.4 had led marital life and got a daughter by name Rajeshwari. According to them, defendant No.4 has not sold the suit property to the plaintiff and it is only a concocted document to evict them. Padmappa Gunjal himself had filed O.S.No.149/1993 against defendant No.4 restraining her from alienating the suit property and also obtained an order. The property in question is the self-acquired property of Padmappa 6 Gunjal, which has been bequeathed on 26.12.1998 in favour of the 1st defendant by executing a Will and accordingly, the 1st and 2nd defendants have continued in suit property. The 3rd defendant has also filed the written statement stating that property belongs to Padmappa Gunjal and after the death of his first wife, he married 4th defendant and has a daughter by name Rajeshwari out of the wedlock. The suit property was transferred in favour of defendant No.4 towards life security. He being the mandal panchayath member, had taken the suit property on lease and thereafter, he was forcibly evicted by defendant No.2, against whom, a criminal case is filed by him. The 4th defendant is the legal heir of deceased Padmappa Gunjal and plaintiff has purchased the suit property from defendant No.4. On 1.3.2003, defendant No.3 has handed over the possession of the property to the plaintiff and defendants 1 and 2 are causing inconvenience and accordingly, stated that he has no objection to decree the suit. Based on the pleadings, as many as seven issues were raised. After enquiry, the trial Court has 7 decreed the suit of the plaintiff. Hence, appeal was filed by defendants 1 and 2 before the Fast Track Court, Sirsi in R.A.No.60/2010, wherein the order of the trial Court came to be confirmed and by the decree passed, it is held that plaintiff is the absolute owner of the suit property and also directed the defendants to hand over vacant possession of the property. Hence, this second appeal by defendants 1 and 2.
3. Heard.
4. The argument of the learned counsel for the appellants is, both the Courts below have erred in holding that plaintiff is the owner of the suit property. They have not visualized that deceased Padmappa Gunjal had not conveyed any valid title in favour of 4th defendant. There is a Will executed in favour of defendant No.1 by Padmappa Gunjal and appellant No.1 being propounder of the Will is entitled to the property. Without properly appreciating due execution of Will, both the Courts below have held that Will has not been duly proved. Further, 8 during the lifetime of Padmappa Gunjal, he himself had filed a suit against defendant No.4 not to alienate the suit property. Suit property has been alienated contrary to the Court order. He being the legatee of the Will which has been duly executed, is entitled to the suit property. The sale, if any, made in favour of the plaintiff by the 4th defendant is not valid without there being semblance of title. It is also his submission that as per Section 14(1) of the Hindu Succession Act of 1956, if the property had been given in lieu of maintenance, it would have been the absolute property of 4th defendant on the death of Padmappa Gunjal, but on the basis of Varadi, the name of defendant No.4 has been entered in the revenue records. As such, the right of plaintiff, if any is without there being any valid title to his vendor. Accordingly, he has sought for allowing the appeal, stating that substantial questions of law arise for consideration.
5. In support of his arguments, the learned counsel for the appellants has relied upon the judgment of the Apex Court 9 reported in AIR 1966 SC 1879 in the case of Eramma Vs. Veerupana and others and also another judgment reported in 2008(5) KLJ 460 in the case of G Rama Vs. T.G.Seshagiri Rao by Lrs., with regard to Section 14(1) of Hindu Succession Act, 1956 to contend that property did not devolve on the 4th defendant. Further, he has also relied upon other judgments reported in ILR 1998 KAR 2650, AIR 2006 SC 1993, AIR 1994 SC 1202, (2012)4 SCC 387, AIR 2003 SC 3109, 2008(3) KCCR 1585.
6. Per-contra, learned counsel appearing for the 1st respondent-plaintiff has submitted that the property in question has been given to the 4th defendant as per the Varadi of Padmappa Gunjal himself wherein it is also admitted that 4th defendant is his wife. He never intended to cause injustice to 4th defendant. Both the Courts below in a concurrent finding have held that Will has not been duly proved and it has come into existence under suspicious circumstance. Padmappa Gunjal 10 had married 4th defendant after the demise of his first wife and also from her, Padmappa Gunjal has a daughter by name Rajeshwari. The daughter of 4th defendant has never objected for the alienation of the property in favour of the plaintiff since there was a family necessity. The property which had been given by Padmappa Gunjal in favour of 4th defendant as a security/in lieu of maintenance, had been sold in favour of the plaintiff by the 4th defendant. As per Section 14(1) of the Hindu Succession Act, as is held in Tulasamma's case reported in AIR 1977 SC 1944 by the Apex Court, the limited estate given to the wife becomes absolute estate on the death of the husband. The sale made by the 4th defendant in favour of the plaintiff is in order. On facts, both the Courts below have concurrently held that property in question was not bequeathed in favour of defendant No.1 and that Will has not been duly proved, as such, defendant No.1 is not entitled for any relief much less, no substantial question of law arises for 11 consideration. Accordingly, he has sought for dismissal of the appeal.
7. In the decision reported in AIR 1966 SC 1879 in the case of Eramma Vs. Veerupana and others, with reference to Section 14 of the Hindu Succession Act, the Apex Court has held that, Section 14 does not attract where a female Hindu is in possession of the property without any right to it. But, it is held that it does not confer a title on the female Hindu where she did not in fact, possess any vestige of title, as such, the section cannot be interpreted so as to validate the illegal possession of a female Hindu and it does not confer any title on a mere trespass.
8. In the decision reported in 2008(5) KLJ 460 in the case of G Rama Vs. T G Sheshasgiri Rao, with reference to Section 14(1) of the Hindu Succession Act, the Apex Court has held that, in the absence of any evidence to show that in lieu of 12 maintenance property was given or permitted to possess the property, mere possession does not automatically attract Section 14 of the Act.
9. In the decision reported in AIR 2006 SC 1993 in the case of Sharad Subramanyan Vs. Soumi Mazumdar and others, with reference to Section 14(2) of the Hindu Succession Act, it is observed that, there is no material to indicate that property was given in lieu of right of maintenance, even in terms of Will she had right of enjoyment in respect of entire property and held that she has only limited interest i.e., life interest in the suit property.
10. In the decision reported in AIR 1994 SC 1202 in the case of Bhura and others Vs. Kashiram, Apex Court has held that, the limited estate could not be enlarged into an absolute estate as per the provisions of Section 14(2) of the Hindu Succession Act.
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11. In Vaddeboyina Tulasamma and others Vs Vaddeboyina Sesha Reddi by LRs. reported in AIR 1977 SC 1944, referring to Section 14(1) of the Hindu Succession Act, the Apex Court has held thus:
"Sub-section (1) of Section 14 is large in its amplitude and covers every kind of acquisition of property by a female Hindu including acquisition in lieu of maintenance and where such property was possessed by her at the date of commencement of the Act or was subsequently acquired and possessed, she would become the full owner of the property. Sub-section (2) is more in the nature of a proviso or exception to sub-section (1). It excepts certain kinds of acquisition of property by a Hindu female from the operation of sub-section (1) and being in the nature of an exception to a provision which is calculated to achieve a social purpose by bringing about change in the social and economic position of woman in Hindu society, it must be construed strictly so as to impinge as little as possible on the broad sweep of the ameliorative provision contained in sub-section (1). It cannot be interpreted in a manner which would rob sub- section(1) of its efficacy and deprive a Hindu female of the protection sought to be given to her by sub-section (1)."14
12. In view of the arguments advanced, the following substantial questions of law would arise for consideration in this appeal:
(i) Whether the property entered in the name of defendant No.4 based on the Varadi given by the deceased Padmappa Gunjal, her husband, would be construed as vestige of right in her, so as to make it absolute right accrued to her on the death of Padmappa Gunjal, as per Section 14(1) of the Act?
(ii) Whether the Varadi given by Padmappa Gunjal to enter the name of 4th defendant namely, the second wife, on the death of first wife, would create any right in life interest or absolute right in favour of the 4th defendant?
(iii) Whether both the Courts below have failed to appreciate the material evidence on record to hold that Will has not been validly made in favour of the 1st defendant?
13. So far as the finding of both the Courts below with regard to validity of the Will dated 26.12.1998 made in favour of defendant No.1 is concerned, the trial Court having raised relevant issue No.3 and having discussed the material evidence on record, has opined that the burden is on the propounder of 15 the Will and he has to satisfy the Court. In paragraphs 14 and 15 of the judgment, the trial Court referring to the evidence on record, has come to the conclusion that there are many suspicious circumstances which have not been dispelled by the propounder of the Will. Further, having noted the relationship of defendant No.4 and the daughter born to defendant No.4 and Padmappa Gunjal, it has doubted the very veracity of bequeathing the property in favour of defendant No.1.
14. Of course, the stand taken by the trial Court is, Padmappa Gunjal had no right to bequeath the property in favour of defendant No.1 having regard to the fact that he had a child born to defendant No.4 through him. Similarly, the lower appellate Court in the evidence given by defendant No.1 with regard to proof of Will, has opined that it is vague and not inspiring confidence of the Court and not trustworthy and as a matter of preponderance of probabilities, evidence let in by defendant No.1 also had been considered and has come to the 16 conclusion that Will has not been duly executed by late Padmappa Gunjal in favour of defendant No.1 and that it has come into existence in suspicious circumstance.
15. As is indicated in the evidence of Padmappa Gunjal in the suit filed by him against defendant No.4, it is only to retain the property since defendant No.4 intended to alienate the property. Even in the vivid evidence of deceased Padmappa Gunjal before the Civil Court on 25.6.1994 , he has stated that he married defendant No.4 in the year 1985 and since then she had been living with him. As he is aged he has got entered the property in the name of 4th defendant on 8.4.1987 by giving Varadi. Apart from that, he has also given evidence that he never intended to cause injustice to defendant No.4. The circumstance under which he has filed the suit is, since defendant No.4 intended to dispose of the property and settle in her maternal house, under the apprehension that he would be thrown to streets, he has filed a suit as a matter of security, not 17 to alienate the property during his lifetime. He has also intended that the property should go to 4th defendant after his lifetime.
16. The very fact that he has transferred the property to defendant No.4 by way of giving Varadi, is to be treated as an assignment and it is being enjoyed by defendant No.4 having vestige of right and also the intention of deceased Padmappa Gunjal was to see that property shall be enjoyed by 4th defendant after his lifetime, on such transfer though not by way of registered deed, but by way of Varadi.
17. In the decision reported in AIR 1966 SC 1879 in the case of Eramma referred to above, the three judges bench of the Apex Court have held, in the absence of any vestige of title, mere illegal possession does not confer any title or absolute right by virtue of Section 14(1) of the Hindu Succession Act. In the instant case, the very intention of Padmappa Gunjal having got entered Varadi in the name of 4th defendant is to see 18 that the property shall go to his wife after his lifetime and that he had filed a suit against her only under the apprehension that if the property is sold during his lifetime, he would be thrown to streets.
18. In that view of the matter, there is vestige of right created in favour of the 4th defendant which, on the death of Padmappa Gunjal, becomes an absolute right as per Section 14(1) of the Hindu Succession Act and as a matter of fact finding, both the Courts below on appreciating the oral and material evidence of the 1st defendant, have opined that Will came into existence in suspicious circumstance. Moreover, Padmappa Gunjal had married 4th defendant after the death of his first wife and he has a daughter. Under the circumstance, the property which has been entered in the name of 4th defendant, which created a right or semblance of right by way of vestige of title, would become absolute on the death of Padmappa Gunjal as per Section 14(1) of the Act and that it is 19 not Section 14(2) of the Act which applies to the case on hand but it is Section 14(1) of the Hindu Succession Act which applies. The property which was been given to defendant No.4 has been sold in favour of the plaintiff after the death of Padmappa Gunjal after having acquired absolute title. Even for argument sake, as between the right of 4th defendant and the 1st defendant, admittedly since 4th defendant is the wife of Padmappa Gunjal who also has a daughter born to 4th defendant through him the Will, if any made is to be held that it is only subject to the right accrued in favour of the 4th defendant, as per Section 14(1) of the Act. As such, the Will, if any created in respect of 1st defendant would fail and the property which has been given to 4th defendant becomes absolute by virtue of Section 14(1) of the Hindu Succession Act.
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19. While answering the substantial questions of law raised accordingly, appeal is dismissed. Consequently, I.A.No.1/2012 filed for stay is also dismissed.
Sd/-
JUDGE bkp