Karnataka High Court
Lata W/O Shahu Ghorpade vs Malubai W/O Ramchndra Dange on 20 June, 2017
Author: B.V.Nagarathna
Bench: B.V.Nagarathna
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 20TH DAY OF JUNE 2017
BEFORE
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
REGULAR SECOND APPEAL No.7268/2010
C/W
RSA CROB.No.102/2010
RSA No.7268/2010:
BETWEEN:
1. Lata W/o Shahu Ghorpade
Aged about 52 years
Occ: Household
2. Sagar S/o Shahu Ghorpade
Aged about 31 years
Occ: Agriculture
3. Praveen S/o Shahu Ghorpade
Aged about 30 years
Occ: Agriculture
All r/o behind Shankarlilng Temple,
Jorapurpet, Bijapur-561016.
...APPELLANTS
(By Sri R.S. Sidhapurkar, Advocate)
AND:
1. Malubai
W/o Ramchandra Dange
2
Aged about 54 years
Occ: Household
R/o D-2 CID Quarters,
Police Head Quarters
Shivaji Nagar,
Pune (Maharastra State)-410102
2. Vaishali
W/o Jyotiba More
Aged about 40 years
Occ: Household
R/o D-2 CID Quarters,
Police Head Quarters
Shivaji Nagar,
Pune (Maharastra State)
3. Maheshwari
W/o Shahaji Gaikwad
Aged about 30 years
Occ: Household
R/o Vajra Channdi,
Tq. Tasagaon
Dist. Sangli (Maharastra State)
4. Savita W/o Satish Dhare
Aged about 31 yars
Occ: Household
R/o Rajaram Puri Galli
Kolhapur (Maharashtra State)
5. Laxman S/o Shankar Jadhav
Ageda bout 39 years
Occ: Agriculture
R/o Toravi, Tq. & Dist. Bijapur.
...RESPONDENTS
(By Sri I.R. Biradar, Advocate for R1;
Notice to R2 to R5 dispensed with vide order dated
22.01.2016)
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This Regular Second Appeal is filed under Section
100 of CPC against the judgment and decree dated
01.04.2010 passed in R.A.No.105/2006 on the file of the
Principal District Judge at Bijapur, dismissing the appeal
and confirming the judgment and decree dated 30.09.2006
passed in O.S.No.375/1998 on the file of the II Additional
Civil Judge (Sr.Dn.) at Bijapur.
RSA Crob.No.102/2010:
BETWEEN:
Malubai
W/o Ramchandra Dange
Aged about 54 years
Occ: Household
R/o D-2 CID Quarters,
Police Head Quarters
Shivaji Nagar,
Pune (Maharastra State)-410102
...CROSS OBJECTOR
(By Sri I.R.Biradar, Advocate)
AND:
1. Lata W/o Shahu Ghorpade
Age: 52 years
Occ: Household
2. Sagar S/o Shahu Ghorpade
Age: 31 years
Occ: Agriculture
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3. Praveen S/o Shahu Ghorpade
Age: 52 years
Occ: Household
All r/o behind Shankarlilng Temple,
Jorapurpet, Bijapur.
...RESPONDENTS
(By Sri R.S. Sidhapurkar, Advocate for R1 to R3)
This RSA Crob. is filed under Order 41 Rule 22 of
CPC, against the judgment and decree dated 01.04.2010
passed in R.A.No.105/2006 on the file of the Prl. Dist.
Judge at Bijapur, dismissing the appeal and confirming the
judgment and decree dated 30.09.2006 passed in
O.S.No.375/1998 on the file of the II Addl. Civil Judge
(Sr.Dn.) at Bijapur.
This appeal along with RSA Crob. coming on for
orders this day, Court delivered the following:
JUDGMENT
RSA.No.7268/2010 is listed to consider I.A. No.1/2015 filed by respondent No.1 seeking early hearing of the appeal. The said appeal is clubbed with RSA Crob.No.102/2010 filed by respondent No.1 in the appeal. Both these appeals assail judgment and decree passed in R.A.No.105/2006 dated 01.04.2010 by the Principal 5 District Judge at Bijapur. At this stage itself it may be noted that RSA No.7268/2010 was admitted by order dated 03.09.2010 to consider only one substantial question of law. But the cross-objection has not yet been admitted.
Though I.A.No.1/2015 has been filed seeking early hearing of the aforesaid matters, with the consent of learned counsel on both sides, I have heard second appeal as well as cross-objection finally and the same are disposed of by this common judgment.
2. For the sake of convenience, the parties herein shall be referred to in terms of their status before the trial court.
3. The cross-objector who is respondent No.1 in the second appeal filed the suit seeking the relief of partition and separate possession of her half share in the suit properties and for division of the same by metes and bounds. The suit properties are described as under: 6
Sl. Sy.No. Measurement Assessment Situated at Value No. As-Gs. Rs. Ps.
1. 397 3-17 02-61 Mahalbagayat --
Bijapur
2. 396 01-29 01-61 -do- --
3. CTS 38-46 -- Ward No.I --
No.1119 sq. mtrs. 4. 547 18-26 16-60 Torvi -- 5. 552 16-15 15-90 -do- --
4. According to the plaintiff, Sakaram is the propositus. His wife was Yallu Bai. Yallu Bai died in the year 1975. Sakaram had predeceased her. They had two children namely, Hanamantrao and Awwamma.
Hanamantrao died in the year 1975 leaving behind him his two wives namely, Akku Bai and Chandra Bai. Akku Bai had no children, Chandra Bai had two children namely, Shahu - defendant No.1, since dead, represented by his legal heirs and Malu Bai, the plaintiff. That the husband of the plaintiff, Ramchandra Dange is the brother of her mother, Chandra Bai. According to the plaintiff the suit properties were standing in the names of Yallu Bai, the grand mother of the plaintiff and defendant No.1 at the time of her death. After the death of Yallu Bai, her son Hanamantrao inherited the suit properties. The name of 7 Hanamantrao was entered in the revenue records. The suit properties in the hands of Hanamantrao were joint family properties. The joint family consisted of plaintiff, defendant No.1, the deceased Hanamantrao and his two wives. Hanamantrao died on 08.02.1975 at Bijapur leaving behind his legal heirs. At the time of death of Hanamantrao plaintiff was already married. After the death of Hanamantrao the names of his heirs were entered in record of rights by virtue of M.E.No.9987, which was certified. The plaintiff and the two wives of Hanamantrao were not in a position to manage the suit properties on their own. Therefore, defendant Shahu started looking after the suit properties as the male member of the joint family. The step-mother of the plaintiff and the defendant passed away. The plaintiff, defendant and their mother Chandra Bai are the only heirs and members of the joint family. No partition has taken place between them. The suit properties continued to be joint family properties. 8
5. That suit land at Sl.No.4 was standing in the name of Sakaram, grand father of plaintiff and defendant No.1. He died in 1937. His only son Hanamantrao came into possession of the said land and was cultivating the same. There was sufficient income from the said land and out of the said income Hanamantrao purchased item No.5 i.e. R.S.No.552. Suit land at Sl.No.4 is ancestral property and suit land at Sl.No.5 is purchased out of the joint family funds. Therefore, both the landed properties and joint family properties after the death of Hanamantrao, defendant No.1 being the only male member of the family was looking after the joint family properties and managing the affairs of the joint family. Defendant No.1 and deceased Akku Bai and Chandra Bai have sold suit item No.5 i.e. Sy.No.552 at Torvi village to defendant No.2 on 13.04.1992 without there being any legal necessity or for the benefit of the estate or to clear off any joint family debts. The sale is not supported by any consideration. Hence, the sale made in favour of defendant No.2 is not valid. Defendant No.2 has not acquired any right in the 9 suit item. That husband of the plaintiff is residing at Maharashtra and is serving in Police Department. Hence, the plaintiff is also residing at Maharashtra. Defendant is managing suit items on behalf of the plaintiff as well. The suit properties are near Bijapur City and the prices of land are increasing day by day. Defendants intend to knock off the suit properties and dupe the plaintiff. Hence, plaintiff is asserting her exclusive interest in the suit properties. Plaintiff, defendant and their mother are governed by Mitakshara Law. That Section 6 of the Hindu Succession Act, 1956 (hereinafter referred to as 'the Act' for the sake of brevity) has been amended by Karnataka Amendment Act No.23 of 1994 and the daughters are entitled to seek a share as that of the sons. At this stage itself, it may be mentioned that on 09.09.2005, Parliament has amended Section 6 of the Act. Hence the parties would now be governed by Section 6 of the Act as amended by the Parliament and interpreted by the Hon'ble Supreme Court. 10
6. According to the plaintiff, in June 1998, defendant refused to effect partition when demanded by the plaintiff. Hence the plaintiff had no other alternative, but to file the suit seeking relief of partition and separate possession of her half share in the suit properties. Defendant No.2 was added as a party to the suit by amendment of the plaint. Defendant No.1 died and his legal representatives were brought on record by amending the plaint.
7. In response to the suit summons and Court notices, defendant Nos.1 and 2 appeared through their advocates and filed their separate written statements.
8. According to defendant No.1 the suit filed by the plaintiff is false and vexatious. The suit is not a bonafide one. Plaintiff has suppressed the real facts pertaining to the said properties and the character of the properties. That Sakaram had only half share in the landed property bearing Sy.No.547. Item Nos.1 and 2 are the properties of the grand mother of the defendant i.e. 11 Smt. Yallu Bai. She had acquired it from her brother in the year 1960. Yallu Bai had no property on the date of acquisition of Sy.No.552 and part of Sy.No.547. That item No.5 land was acquired by Hanamantrao in 1969 and also half portion of Sy.No.547 when he was a junior member in the family. Land bearing Sy.No.552 and half portion of Sy.No.547 were acquired by Hanamantrao which cannot be treated as a joint family property as asserted by the plaintiff. The father of defendant was serving as a Police Sub-Inspector in the Karnataka Police Department and out of his earnings and income he had acquired land bearing Sy.No.552 in 1969 and half portion of land in Sy.No.547 in 1949 when he was a junior member of the family. Those lands are his self acquired properties. That during his lifetime Hanamantrao had effected partition in respect of item Nos.4 and 5 lands. These two lands were given by his father to the defendant Shahu on 12.05.1972 and the father had given a wardi which was certified under M.E.No.8360. These properties are the properties of the defendant and they were purchased by the father. They 12 cannot be construed to be joint family properties. The plaintiff has no share in the said properties.
9. According to defendant No.1, later on defendant No.1 sold his property to defendant No.2 on 13.02.1992 and at the time of sale, both the wives of Hanamantrao signed the sale deed as purchaser pressed for the same. The plaintiff cannot claim any right over the said lands. The question of legal necessity or benefit of estate to discharge antecedent debt etc. are of no importance in respect of these lands, unless it is shown to be joint family property. Defendant No.2 is a bonafide purchaser for valuable consideration.
10. That the suit in respect of Sy.No.552 is not maintainable as it is not a joint Hindu family property and it is a self acquired property of Hanamantrao. That it cannot be presumed that the said property was purchased out of a joint family nucleus. That after the death of Sakaram, the lands were personally cultivated by 13 Hanamantrao. That there was sufficient income from the said land has been denied as false.
11. That the rest of the suit properties are of Ganga Ram, he relinquished the same in favour of his sister, Yallu Bai, grand mother of this defendant, who died in 1960. This is evident from M.E.No.5201. These properties were the self-acquired properties of Yallu Bai and on her death, the name of her only son, Hanumanthrao came to be entered in the records. On the death of Hanamantrao an application was moved by the defendant to mutate his name in respect of the properties held by Yallu Bai. The plaintiff has orally relinquished all her right, title and interest in the properties at item Nos.1 to 3. The plaintiff thus cannot file a suit after over twenty years. That the plaintiff is well qualified and the wife of a wireless officer and has worldly knowledge. Her right in the suit properties have been extinguished by her own statement before the City Survey Officer and also before the Revenue Officers made during April, 1975. She has 14 relinquished her right in the year 1975 and hence her claim in the year 1995 is barred by limitation. Plaintiff is not entitled to half share in the suit properties. Hence, the suit ought to be dismissed. In the circumstances, defendant No.1 sought dismissal of the suit.
12. Defendant No.2 filed his separate written statement denying the plaint averments and contended that the suit in respect of Sy.No.552 measuring 16 acres 15 guntas of Torvi village is not maintainable. That plaintiff has no right to claim any share in the said property. That the plaintiff has given up her right, title and interest in the suit property in favour of defendant No.1 as recorded in M.E.No.9987 of Mahalbagayat and also the house property in CTS No.1119 in the year 1975. That plaintiff has not questioned the entries made thereafter. Hence, the suit is barred by limitation. Partition of the suit properties now does not arise. Sy.No.552 was never the joint family property. Defendant No.2 has purchased the same for a valuable consideration of Rs.80,000/- on 15 18.04.1992 under a registered sale deed. He is the absolute owner in respect of the said property. The sale was made on account of legal necessity. The plaintiff cannot question the said sale. Even otherwise, she could have questioned it within three years from the date of sale. Therefore, she is not entitled to any share in Sy.No.552 of Torvi village. Defendant No.2 sought for dismissal of the suit.
13. On the basis of the rival pleadings, the trial court framed following issues and additional issue for its consideration:
1. Whether the plaintiff proves that, the suit schedule properties are the joint family properties as contended in the Plaint?
2. Whether plaintiff proves that, she is having 1/2 share in the suit properties?
3. Whether the Defendant proves that, the plaintiff has lost her right in respect of suit property in 1975 itself as pleaded in the W.S.?
4. Whether the Defendant No.2 proves that, suit land bearing Sy.No.552 is his absolute 16 property, as he has purchased on 13.04.1992 and not the joint property?
5. Whether the Defendant No.2 proves that, he is the bonafide purchaser of suit property bearing Sy.No.552 as pleaded in the W.S.?
6. Whether the plaintiff proves that, she is entitled for the reliefs claimed in the suit?
7. What order or decree?
Additional Issue:
1. Whether the suit is barred by limitation?
In support of her case, plaintiff examined herself as PW-1. She produced nine documents which were marked as Exs.P-1 to P-9. Defendants examined three witnesses. 35 documents were marked as Exs.D-1 to D-35. On the basis of the said evidence, the trial court answered issue Nos.1, 4 and 5 in the affirmative, issue Nos.2 and 6 as partly in the affirmative, issue No.3 in the negative and additional issue No.1 was also answered in the negative. The trial court decreed the suit declaring that the plaintiff is entitled to one-fourth share in Sy.Nos.397, 396 and 547. 17 That legal representatives of defendant No.1 are entitled to three-fourth share in the said properties. The trial court held that the plaintiff was not entitled to any share in the dwelling house situated at CTS No.1119 of Ward No.1, Bijapur as well as in Sy.No.552 which was sold by defendant No.1 for legal necessity i.e. to perform the marriage of his daughters. Therefore, that item was not available for partition according to the according to the trial court.
14. Being aggrieved by the judgment and decree of the trial court, defendant Nos.1(a), 1(e) and 1(f) preferred R.A.No.105/2006 before the Principal District Judge, Bijapur (first appellate Court). Plaintiff preferred cross objections in the said regular appeal. The first appellate court, after hearing learned counsel for the respective parties, framed the following points for its consideration:
1. Whether the suit schedule properties are the joint family properties as contended in the plaint?18
2. Whether the plaintiff has lost her right in the suit properties during 1975 as contended in the written statement?
3. Whether defendant-2 is a bonafide purchaser of suit property bearing No.552 for valuable consideration as pleaded in the written statement?
4. Whether plaintiff is entitled to any share in the suit properties and if so, what is his share?
5. Whether the suit is barred by limitation?
6. What order?
15. On point No.1 it held that the suit properties at Sl.Nos.1 and 2 are the separate properties of Yallu Bai and suit properties at Sl.Nos.3 to 5 are joint family properties. It held point Nos.2 and 5 in the negative and point No.3 in the affirmative. Consequently, the first appellate court dismissed the regular appeal and allowed the cross objection. The judgment and decree of the trial court was modified. The first appellate court held that the plaintiff is entitled to half share in suit properties bearing Sy.Nos.397, 19 396 of Bijapur and one-fourth share in suit properties bearing CTS No.1119 of Ward No.1 Bijapur and Sy.No.547 of Torvi village. Plaintiff's suit in respect of Sy.No.552 (item No.5) was rejected. Being aggrieved by the judgment and decree of the first appellate court, modifying the judgment and decree of the trial court, defendant Nos.1 (a), 1(e) and 1(f) have preferred this second appeal. While the plaintiff has filed cross objection.
16. As already noted, the appeal was admitted on 03.09.2010 to consider the following substantial question of law:
"Whether the marriage of the plaintiff prior to amendment of the Hindu Succession Act would affect her right?"
Cross objection has not yet been admitted.
17. I have heard learned counsel for the appellants and learned counsel for respondent - Cross objector and perused the material on record.
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18. Appellants' counsel contended that the Courts below could not have granted any share in item Nos.3 to 5 of the suit schedule properties by holding that they are the joint family properties. He contended that the said properties are not joint family properties. That item Nos.4 and 5 are the self acquired properties of Hanamantrao and that item Nos.1 and 2 were the self acquired properties of Yallu Bai the mother of Hanamtharao and therefore, not joint family properties. He further contended that the plaintiff being a married daughter was not entitled to any share in the suit properties as she was married prior to amendment made to Section 6 of the Act as amended by the Karnataka Amendment Act. He contended that the substantial question of law raised herein be answered in favour of the appellant and the appeal be allowed by modifying the judgment and decree of the first appellate court and thereby dismiss plaintiff's suit.
19. Per contra, learned counsel for respondent - plaintiff cross-objector contended that in the first instance, 21 as far as item Nos.1 and 2 of the suit schedule properties are concerned, both the courts have concurrently held that the said items were the self acquired or separate properties of Yallu Bai, grand mother of the plaintiff and her brother, Sakaram. That on her demise her son Hanamantrao succeeded to the said properties and the plaintiff and her brother Shahu are now entitled to half share each in the said properties as their mother, Chandra Bai and their step mother Akku Bai have died and Akku Bai had no children. Therefore, that portion of the judgment and decree of the first appellate court would not call for any interference in this appeal and there is also no substantial question of law, which has been framed in that regard.
20. Learned counsel for respondent - plaintiff cross-objector however contended that with regard to item Nos.3 to 5 of the suit schedule properties they have been held to be joint family properties. If that is so, then in regard to item No.5 in which plaintiff has a share, the 22 same could not have been sold by defendant No.1. That there was no legal necessity for alienation of the said item. The suit could not have been dismissed in respect of item No.5 property. That substantial questions of law would arise in the cross objection and therefore the cross objection may be admitted and allowed in favour of the cross objector. He further contended that having regard to the amendment made to Section 6 of the Act by the Parliament, substantial question of law raised in the appeal would have to be modified in which event, the principles of notional partition would apply. The plaintiff's share would be one-fourth share in item Nos.3 to 5 having regard to the latest decision of the Hon'ble Supreme Court in the case of Prakash and others vs. Phulavati and others reported in (2016) 2 SCC 36 (Prakash vs. Phulavati). He submitted that if the substantial question of law are re- framed then the appeal filed by the appellant may be dismissed and the cross objection may be allowed insofar as item No.5 is concerned.
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21. In reply, learned counsel for the appellant reiterated his submission and contended that there is no merit in the cross-objection as both the courts have held that item No.5 has been sold by defendant No.1 as funds were required to perform the marriage of Shahu's daughters and therefore for legal necessity it was sold. Therefore, the cross objection may be dismissed as no substantial question of law would arise in the cross objection.
22. Having heard learned counsel for the parties and on perusal of the material on record, in my view the substantial question of law would have to be re-framed in the following manner:
Whether in view of the amendment made to Section 6 of the Act by the Parliament and having regard to the latest judgment of the Hon'ble Supreme Court in the case of Prakash and others vs. Phulavati and others reported in (2016) 2 SCC 36 whether the first appellate court was right in awarding one-fourth share in 24 item Nos.3 and 4 of the suit schedule properties to the plaintiff?
23. Before considering the said substantial question of law, the arguments of learned counsel for the appellants with regard to half share being given in item Nos.1 and 2 would have to be considered in the first instance. Although plaintiff contended that item Nos.1 and 2 are joint family properties and the trial court also held that they were joint family properties and hence granted one-fourth share to the plaintiff in the said properties, in the appeal filed by the defendant Nos.1(a), 1(e) and 1(f) it was contended otherwise. According to the defendants, the said items were the separate properties of Yallu Bai, wife of Hanamantrao. That she acquired the said properties from her brother, Gangaram. In the circumstances, the first appellate court concluded that it is separate property of Yallu Bai Hanamantrao. On her demise, her properties would have succeeded to by her children, Hanamantrao and Awwamma to an extent of half share each. But there is no material as to whether 25 Awwamma indeed took her half share in her mother's property. In the circumstances, in respect of the entire extent of item Nos.1 and 2 which belonged to Yallu Bai, on her death, it was succeeded to by Hanamantrao and on his demise, by his legal heirs namely, his widows, Akku Bai and Chandra Bai, who would take one share together and Chandra Bai's children i.e., the plaintiff and defendant No.1. On the demise of Akku Bai and Chandra Bai the said properties would be shared by plaintiff and defendant No.1. In the circumstances, the first appellate court has held that plaintiff and defendant No.1 have each half share in the said properties. There can be no grievance on this aspect of the matter as the first appellate court has awarded half share on concluding that the said properties belonged to the mother of the plaintiff and defendant No.1 as her separate property.
24. As already noted, the substantial question of law framed earlier in the appeal has been re-framed in view of the Parliament amending Section 6 of the Act and 26 the latest decision of the Hon'ble Supreme Court in Prakash vs. Phulavati. Item Nos.3 to 5 of the suit schedule properties, according to the plaintiff, are joint family properties. The trial court held that they are joint family properties and granted one-fourth share in the said properties by applying the principles of notional partition. The same principles have also been applied by the first appellate court and it has granted one-fourth share in suit item Nos.3 and 4 to the plaintiff. Despite the amendment made to Section 6 of the Act, having regard to the dictum of the Hon'ble Supreme Court in the case of Prakash vs. Phulavati supra, as the father of the plaintiff died long ago i.e., sometime in the year 1975, the amended Section 6 of the Act would not apply. In the circumstances, on application of the principles of notional partition, plaintiff would be entitled to one-fourth share in the said items. Hence, substantial question of law is accordingly answered by holding that the plaintiff is entitled to one-fourth share in the said properties and that her marriage would not, in any way, deprive her of the said properties as was the 27 case under Section 6A of the Hindu Succession Act, 1956 (Karnataka Amendment). In view of the Parliament subsequently amending Section 6 of the Act with effect from 09.09.2005, the Parliamentary amendment would prevail over the said amendment. This is on the basis of Article 254 of the Constitution. Hence, the award of one- fourth share to the plaintiff by the first appellate court in respect of item Nos.3 and 4 is just and proper and the substantial question of law is accordingly answered.
25. As far as item No.5 of the suit schedule property is concerned, contention of the plaintiff before the trial court was that the said item had been alienated by the defendant without there being any legal necessity to do so. That the said item is also a joint family asset. Plaintiff had one-fourth share in the said land and therefore the defendant could not have alienated it, is the contention of the plaintiff. The trial court while considering that contention held that as defendant No.1 had sold the said item for performing the marriage of his daughters, there 28 was need for funds and thus a legal necessity to alienate the said item and hence did not award any share to the plaintiff in Sy.No.552 i.e. item No.5. Being aggrieved by that aspect of the matter, the plaintiff had preferred cross objection to R.A.No.105/2006 before the first appellate court. The first appellate court has re-considered the said aspect of the case and has rejected the claim of the plaintiff in respect of suit item No.5 namely land bearing Sy.No.552 and has not awarded any share in the said item. Thus, by reiterating that defendant No.1 had alienated the said land in order to perform the marriage of his daughters for which he required finances and thus there was legal necessity. The concurrent findings of the courts below, in my view, would not call for any interference in the cross objection filed by the plaintiff. Hence, the cross objection is dismissed as no substantial question of law would arise therein.
26. In the result, the second appeal as well as the cross objection are both dismissed.
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Parties to bear their respective costs.
Interim stay granted in the second appeal is revoked/vacated in view of dismissal of the appeal.
In view of dismissal of the appeal, I.A.No.1/2015 also stands disposed.
Sd/-
JUDGE swk