Karnataka High Court
Smt Elizabeth W/O Devadatta Kumar vs Subhoda Prakash S/O Late Artur N Kumar on 24 July, 2018
IN THE HIGH COU RT OF KARNAT AKA
DHARWAD B ENCH
DAT ED THIS THE 24 T H DAY OF JU LY 2018
B EFORE
T HE HON'B LE MRS .JUSTICE K.S.MU DAGAL
R.F.A. No.1685 OF 2005 [PAR]
C /w.
R.F.A. CROB. No.100011/ 2014 [ PAR]
R.F.A. No.1685 OF 2005 :
BETWEEN:
SMT. ELIZABETH W/O DEVADATTA KUMAR
SINCE DEAD BY HER L.R'S.
DAVID S/O. SUMANTH ANDALI
AGE. 35 YEARS, OCC. NIL,
R/O. PLOT NO 19, NAV JEEN HOUSING SOCIETY
BEHIND GURUDATTA BHAVAN
JAYANAGAR HUBLI.
... APPELLANT
(BY SRI M G NAGANURI, ADVOCATE)
AND :
1. SUBHODA PRAKASH S/O LATE ARTUR N KUMAR
AGED ABOUT 73 YRS
OCC : EX SERVICEMAN
R/O OPP K C PARK, POST OFFICE
DHARWAD.
2. CHANNABASAPPA S/O DUNDEPPA HILIYAL
AGED ABOUT 58 YRS
OCC: AGRICULTURE, R/O NIGADI, TQ: DHARWAD
SINCE DECEASED BY HIS LRS.
2A. RUDRAPPA
S/O. CHANABASAPPA HALIYAL
AGE. 72 YEARS, OCC. AGRICULTURE,
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RFA CROB.No.100011/2014
R/O. NIGADI, TQ. DHARWAD.
2B. NAGAPPA S/O.CHANABASAPPA HALIYAL
SINCE DECEASED BY HIS LRS.
2B(I)DEVENDRAPPA S/O. NAGAPPA HALIYAL
AGE. 32 YEARS, OCC. AGRICULTURE ,
R/O. NIGADI, TQ. DHARWAD.
2B(II)CHINNAWWA W/O.NAGAPPA HALIYAL
AGE. 60 YEARS,
OCC. HOUSEHOLD WORK
R/O. NIGADI, TQ.DHARWAD.
2B(III)GOURAVVA
W/O. MALLANAGOUDA KHANAGOUDAR
AGE. 35 YEARS,
OCC. HOUSEHOLD WORK,
R/O. TADAKOD, TQ. DHARWAD.
2B(IV)GANGAVVA
W/O. SHEKHAPPA SALAKINAKOPPA
AGE. 35 YEARS,
OCC. HOUSEHOLD WORK,
R/O.KURABAGATTI, TQ.DHARWAD.
2B(V)PARAWWA W/O.NINGAPPA YALIGAR
AGE. 28 YEARS.
OCC. HOUSEHOLD WORK
R/O. KURABAGATTI, TQ.DHARWAD.
2C SIDDABASAPPA
S/O. CHANNABASAPPA HALIYAL
AGE. 66 YEARS, OCC:AGRICULTURE,
R/O. NIGADI, TQ.DHARWAD.
2D. VEERAPPA
S/O. CHANNABASAPPA HALIYAL
AGE. 64 YEARS, OCC:AGRICULTURE,
R/O. NIGADI, TQ. DHARWAD.
2E. SOMAPPA
S/O. CHANNABASAPPA HALIYAL
AGE. 52 YEARS, OCC:AGRICULTURE,
R/O. NIGADI, TQ. DHARWAD.
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RFA CROB.No.100011/2014
2F. KALLAPPA
S/O. CHANNABASAPPA HALIYAL
AGE. 42 YEARS, OCC. AGRI.,
R/O. NIGADI. TQ. DHARWAD.
2G. NINGAPPA
S/O. CHANNABASAPPA HALIYAL
SINCE DECEASED BY HIS LRS.
2G(I)IRAPPA S/O.NINGAPPA HALIYAL
AGE. 38 YEARS, OCC:AGRICULTURE,
R/O. NIGADI, TQ.DHARWAD.
2G(II)BASAPPA S/O.NINGAPPA HALIYAL
AGE. 36 YEARS, OCC:AGRICULTURE,
R/O. NIGADI, TQ. DHARWAD.
2G(III)SHIVANAND S/O.NINGAPPA HALIYAL
AGE. 34 YEARS, OCC:AGRICULTURE,
R/O. NIGADI, TQ. DHARWAD.
2G(IV) GURUNATH S/O. NINGAPPA HALIYAL
AGE. 30 YEARS, OCC:AGRICULTURE,
R/O. NIGADI, TQ. DHARWAD.
3. MAHIR S/O.SRINIVAS KULKARNI
@ DESHAPANDE, AGE.23 YEARS,
R/O. NO.301, PRATIMA APARTMENTS,
KABBUR ROAD, MALAMADDI, DHARWAD.
4. AARYABHATA
S/O.SRINIVAS KULKARNI @ DESHAPANDE
AGE. 22 YEARS, R/O. NO.301,
PRATIMA APARTMENTS,
KABBUR ROAD, MALAMADDI, DHARWAD.
5. SMT. POORNIMA
D/O. DEVENDRAPPA MANGLENNAVAR
AGE. 42 YEARS, OCC.HOUSEHOLD
R/O. SARSWATPUR, DHARWAD,
TQ. & DIST. DHARWAD.
6. RAJESH
S/O. DEVENDRAPPA MANGLENNAVAR
AGE. 39 YEARS, OCC:AGRICULTURE,
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RFA CROB.No.100011/2014
R/O. HOSKOPPA, TQ. HANGAL,
NOW AT DHARWAD.
7. SANJAYA S/O. DEVENDRAPPA MANGLENNAVAR
AGE. 39 YEARS. OCC. AGRI.,
R/O. HOSKOPPA, TQ. HANGAL,
NOW AT DHARWAD.
ALL ARE REPRESENTED BY
VINAYAK S/O. RAJARAM JADHAV
AGE. 51 YEARS, OCC. AGRI.,
R/O. SARASWATHPUR, DHARWAD.
... RESPONDENTS
(BY SRI S S BAWAKHAN, ADVOCATE FOR R1;
SRI MAHESH WODEYAR, ADVOCATE FOR R2A,
R2B(I) TO R2B(5), R2(C) TO R2(F) AND R2G(I) TO
R2G(IV);
SRI S. T. PATIL, ADVOCATE FOR R3 & R4;
SRI V. M. KHARVI, ADVOCATE FOR R5 TO 7)
THIS RFA IS FILED U/S.96 OF CPC AGAINST THE
JUDGMENT AND DECREE DT.17.8.2005 PASSED IN O.S.NO.146/95
ON THE FILE OF THE II ADDL. CIVIL JUDGE (SR.DN), DHARWAD,
IN SO FAR AS DECREEING THE SUIT FOR PARTITION AND
SEPARATE POSSESSION IN RESPECT OF THREE AGRICULTURAL
LANDS & ETC.
R.F.A. CROB. No.100011/ 2014 :
BETWEEN :
1. MAHIR S/O SRINIVAS KULKARNI @ DESHPANDE
AGED ABOUT 32 YEARS, OCC. SERVICE
R/O NO 301, PRATIMA APARTMENTS
KABBUR ROAD, MALMADDI, DHARWAD
2. AARYABHATA
S/O SRINIVAS KULKARNI @ DESHPANDE
AGED ABOUT 31 YEARS, OCC: SERVICE
R/O 301, PRATIMA APARTMENTS
KABBUR ROAD, MALAMADDI, DHARWAD
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RFA CROB.No.100011/2014
R/BY GPA HOLDER
SMT. RADHA W/O. SHRINIVAS DESHPANDE
AGE: 56 YEARS, OCC: HOUSEHOLD WORK
R/O. VASANT KARGUDARI COMPOUND
YEMMIKERI, MALLMADDI, DHARWAD.
... CROSS-OBJECTORS
(BY SRI S T PATIL & R. S. PATIL, ADVOCATES)
AND :
1. SMT. ELIZABETH W/O DEVADATTA KUMAR
R/O PLOT NO 19, NAV JEEVAN HOUSING SOCIETY
BEHIND GURUDATTA BHAVAN
JAYANAGAR HUBLI
TQ. & DIST. DHARWAD.
SINCE DEAD BY HER LRS
DAVID S/O SUMANTH ANDALI,
AGED ABOUT 36 YEARS,
R/O PLOT NO 19, NAV JEEVAN HOUSING SOCIETY
BEHIND GURUDATTA BHAVAN
JAYANAGAR HUBLI, TQ. & DIST. DHARWAD.
2. SUBHODA PRAKASH
S/O. LATE ARTUR N KUMAR
AGE: 64 YEARS,
OCC: EX SERVICEMAN
R/O. OPP. K C PARK
POST OFFICE, DIST: DHARWAD
SINCE DECEASED BY HIS L.RS.,
2A. RUDRAPPA
S/O. CHANABASAPPA HALIYAL
AGE. 72 YEARS, OCC:AGRICULTURE,
R/O. NIGADI, TQ. DHARWAD.
2B. NAGAPPA S/O.CHANABASAPPA HALIYAL
SINCE DECEASED BY HIS LRS.
2B(I)DEVENDRAPPA S/O. NAGAPPA HALIYAL
AGE. 32 YEARS, OCC. AGRI.,
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RFA CROB.No.100011/2014
R/O. NIGADI, TQ. DHARWAD.
2B(II)CHINNAVVA W/O. NAGAPPA HALIYAL
AGE. 60 YEARS,
OCC. HOUSEHOLD WORK
R/O. NIGADI, TQ.DHARWAD.
2B(III)GOURAVVA
W/O. MALLANAGOUDA KHANAGOUDAR
AGE. 35 YEARS,
OCC. HOUSEHOLD WORK,
R/O. TADAKOD, TQ. DHARWAD.
2B(IV)GANGAVVA
W/O. SHEKHAPPA SALAKINAKOPPA
AGE. 35 YEARS,
OCC. HOUSEHOLD WORK,
R/O.KURABAGATTI, TQ.DHARWAD.
2B(V)PARAWWA W/O.NINGAPPA YALIGAR
AGE. 28 YEARS.
OCC. HOUSEHOLD WORK
R/O. KURABAGATTI, TQ.DHARWAD.
2C SIDDABASAPPA
S/O. CHANNABASAPPA HALIYAL
AGE. 66 YEARS, OCC:AGRICULTURE,
R/O. NIGADI, TQ.DHARWAD.
2D. VEERAPPA
S/O. CHANNABASAPPA HALIYAL
AGE. 64 YEARS, OCC:AGRICULTURE,
R/O. NIGADI, TQ. DHARWAD.
2E. SOMAPPA
S/O. CHANNABASAPPA HALIYAL
AGE. 52 YEARS, OCC:AGRICULTURE,
R/O. NIGADI, TQ. DHARWAD.
2F. KALLAPPA
S/O. CHANNABASAPPA HALIYAL
AGE. 42 YEARS, OCC:AGRICULTURE,
R/O. NIGADI. TQ. DHARWAD.
2G. NINGAPPA
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RFA CROB.No.100011/2014
S/O. CHANNABASAPPA HALIYAL
SINCE DECEASED BY HIS LRS.
2G(I)IRAPPA S/O.NINGAPPA HALIYAL
AGE. 38 YEARS, OCC:AGRICULTURE,
R/O. NIGADI, TQ.DHARWAD.
2G(II)BASAPPA S/O.NINGAPPA HALIYAL
AGE. 36 YEARS, OCC. AGRI.,
R/O. NIGADI, TQ. DHARWAD.
2G(III)SHIVANAND S/O.NINGAPPA HALIYAL
AGE. 34 YEARS, OCC. AGRI.,
R/O. NIGADI, TQ. DHARWAD.
2G(IV) GURUNATH S/O. NINGAPPA HALIYAL
AGE. 30 YEARS, OCC. AGRI.,
R/O. NIGADI, TQ. DHARWAD.
3. CHANNABASAPPA W/O. DUNDAPPA HILIYAL
AGE: 67 YEARS,
OCC: AGRICULTURE
R/O. NIGADI, TQ: & DIST: DHARWAD
... RESPONDENTS
[BY SRI M. G. NAGANURI, ADVOCATE FOR R1;
SRI S S BAWAKHAN, ADVOCATE FOR R2;
SRI MAHESH WODEYAR, ADVOCATE FOR R2A,
R2B(I) TO R2B(5), R2(C) TO R2(F) AND R2G(I) TO R2(IV)]
THIS RFA CROB. IN RFA NO.1685/2005 FILED U/S. 96 R/W.
ORDER XLI RULE 22 OF CPC AGAINST THE JUDGMENT AND
DECREE DATED 17.08.2005 PASSED IN O.S. NO.146/1995 ON
THE FILE OF THE II ADDL. CIVIL JUDGE (SR. DN.) AT DHARWAD,
DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE
POSSESSION.
THIS APPEAL AND CROB. COMING ON FOR FINAL HEARING,
THIS DAY THE COURT DELIVERED THE FOLLOWING:
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RFA CROB.No.100011/2014
JUDGMENT
The above appeal and cross-ob jections arise out of the judgment and decree dated 17.08.2005 in O.S. No.146/1995 passed by the II Additional Senior Civil Judge, Dharwad.
2. Smt. Elizab eth was defend ant No.1 in the suit. On the death of defendant No.1 the appellant David came on record as d efendant No.1(a) as her leg al rep resentative. The cross-objectors are defend ant Nos.3 and 4 in the suit. Subhod a Prakash respondent No.1 herein filed the said suit ag ainst defend ant Nos.1 to 4 for p artition and sep arate possession of his half share in the suit schedule properties.
3. For the purpose of convenience, the parties will be referred to hereafter with their ranks before the trial Court.
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4. The p roperties which are subject matter of the suit are shown in Schedules A to C of the plaint. Schedule A p roperties are six ag ricultural lands situated within the revenue limits of Murakatti villag e of Dharwad taluk; Schedule B property is the site b earing C.T.S. No.2/27A measuring 407 and 3/3 sq. yards with a building thereon situated in Jaynag ar, Hubli; Schedule C properties are the movab les, like furniture, electronic goods, etc.
5. The plaintiff contend ed that himself and Devad atta the husb and of first defendant were the sons of Artur N. Kumar, who died on 10.07.1974 and his wife Sulochanab ai who died on 14.03.1991. Plaintiff contend ed that the coup le left b ehind them seven sons including the plaintiff & Devad atta and two d aughters. He contended that the suit lands were being cultivated by himself and his father jointly as tenants, as Devad atta was the eldest son, his name was entered in record of rights and occup ancy rights were granted in his name.
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6. Regarding the house prop erty, he
contend ed that the same was acq uired b y his father, but still the name of Devadatta was entered in the property records as he was the eld est son. He further contended that except himself and Devad atta, all other child ren of his p arents are residing ab road therefore, they have no right in the suit prop erties. He contend ed that on death of Devad atta on 07.06.1981, of late defend ant No.1 is not co-operating for maintenance and enjoyment of the p roperties and when he demand ed partition and separate possession of his share, she d eclined. Thus, he claimed decree for partition and sep arate possession of his share.
7. Defend ant No.1 contested the suit denying that the suit lands were being cultivated by Artur Kumar and plaintiff jointly. She further denied that Devad atta was only a name lendor in acquiring the suit house and obtaining the : 11 : R F A N o . 1 6 8 5 /2 0 0 5 C/w.
RFA CROB.No.100011/2014occup ancy rights of the lands in the p roperty records b ecause he b eing the eldest son.
8. She contended that the suit land s and the site and b uild ing were acquired by her husb and and he was the exclusive owner of those p roperties. She contend ed that on the d eath of Devad atta Kumar, the properties have devolved exclusively on her as his leg al rep resentative. She contended that with similar contentions, the p laintiff went before the Revenue Courts and failed. Alternatively, she further contend ed that the suit is not p rop erly valued and court fee paid is insufficient and soug ht dismissal of the suit.
9. Pend ing the suit, defend ant No.1 Elizab eth died and defendant No.1(a) (present app ellant) came on record contend ing that he is the adop ted son of defend ant No.1 Elizabeth. He further contend ed that defendant No.1 Elizab eth has executed registered Will d ated 04.07.1997 : 12 : R F A N o . 1 6 8 5 /2 0 0 5 C/w.
RFA CROB.No.100011/2014bequeathing all the suit p roperties in his favour and the said Will is p rob ated in P & Sc. No.1/2001 by the ord er of I Additional District Court, Hub li.
10. Elizab eth sold plaint schedule Item Nos.1 to 3 properties to defend ant Nos.2 to 7 und er different sale deed s. The sale in favour of defend ant No.2 was effected on 19.12.1988. The sale in favour of defend ant Nos.3 and 4 was effected on 20.02.1999 and sale in favour of defend ant Nos.5 to 7 was effected on 22.09.1999. Therefore, they were imp lead ed as defend ant Nos.2 to 7 in the suit subsequently. Defend ant No.2 died pending the suit. His L.Rs. were not b rought on record. Therefore, the suit ag ainst him abated.
11. On the b asis of the plead ings of the parties, the trial Court initially framed four issues. However, subsequently they were re-casted as follows and the additional issues were also framed .
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RFA CROB.No.100011/2014
Re-casted Issues :
i. Whether plaintiff proves that he is entitled
for partition and sep arate possession of half share in the suit p roperty?
ii. Whether the defend ants p rove that the occup ancy rights were g ranted by the Land Tribunal in resp ect of suit lands in the name of her deceased husband exclusively and that plaintiff is not entitled for any share in the suit lands? iii. Whether the court fee p aid is not proper? iv. What decree or order the p arties are entitled ?
v. Whether the defend ant proves that the entire p ayment towards the costs of the house has b een paid by her and her deceased husband?
vi. Whether the plaintiff's suit is b arred by Limitation?
Additional Issues :
i. Whether the suit of plaintiff suffers for want of necessary parties to the suit as contend ed in para 2 and 3 of W.S. of D3 and D4?
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ii. Whether the g enealogy g iven by the
plaintiff is not complete?
iii. Whether D3 and D4 prove that they are
bonafid e purchasers of suit land R.S.
No.49 for valuable consid eration without notice?
iv. Whether this Court has no jurisdiction to try this suit as contended in WS para 7 of D3, D4?
v. Is there no cause of action to file this suit for plaintiff?
vi. Whether defend ant 1a p roves that he has acquired absolute rig ht over the suit properties by virtue of Will dated 04.04.1997 executed by deceased defend ant Elizab eth in his favour and that plaintiff has no share?
12. In support of his case, the plaintiff got examined himself as P.W.1 and one witness as P.W.2. He got marked Exs.P-1 to 3. On b ehalf of defend ants, D.Ws.1 to 4 were examined and Ex.D-1 to D-36 were marked .
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13. The trial Court after hearing the parties neg atived the contention of the plaintiff that the suit properties were acquired by his father Artur Kumar and suit lands were being cultivated by himself and Artur Kumar jointly and on the death of Artur Kumar, the occup ancy rights of the lands were granted to Devad atta Kumar as he was the elder son etc. The trial Court held that the grant of occup ancy rig hts in favour of Devad atta Kumar was in his own right and acquisition of the suit site and building was in his own right and there is no concept of joint family amongst the Christians.
14. However, the trial Court held that the parties, namely, plaintiff and defend ant No.1 are Christians and therefore they are governed by Indian Succession Act, 1925 (for short, 'the Act') and on the d eath of Devad atta Kumar, the p rop erty devolves in equal half share on plaintiff and defend ant No.1 Elizab eth by virtue of Section 33 of the said Act. Further, the trial Court held that the : 16 : R F A N o . 1 6 8 5 /2 0 0 5 C/w.
RFA CROB.No.100011/2014adoption of defend ant No.1(a) is proved by his evid ence, Ex.D-35 the deed of affirmation and the Will executed by Elizab eth in his favour. Trial Court held that the Will of Elizabeth Ex.D-34 is p roved by the order in P & Sc. No.1/2001. However, the trial Court held that since plaintiff is entitled to half share by virtue of Section 33 of the Act, the Will does not b ind him so far it relates to his half share.
15. So far as the contention of non-joind er of necessary p arties, the trial Court states that the defend ants have not g iven the full pedig ree of Artur Kumar and since the other siblings of the plaintiff have acquired American citizenship , they are not necessary p arties.
16. In respect of defend ant Nos.3 to 7 the trial Court held that they have failed to sub stantiate that they were the bona fid e purchasers. Thus decreed the suit.
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17. Sri M.G. Nag anuri, learned counsel for
defend ant No.1(a) / app ellant and Sri S.T. Patil, learned counsel for the cross-objectors seek to assail the impugned judgment and d ecree on the following grounds :
i. Since the plaintiff himself in p aragraph 2 of the plaint admitted that Artur Kumar had nine issues the question of defend ants prod ucing the full pedegree does not arise;
ii. Merely because the other children of Artur Kumar have acquired American citizenship, the Indian Succession Act does not b ar them from succession to his prop erties;
iii. Since they have some interest/share in the properties, they are necessary parties to the suit. Therefore, suit ought to have b een dismissed for non-joinder of necessary p arties;
iv. The occup ancy rights were g ranted in favour of Devad atta Kumar in the year 1977. Thereafter all along his name appeared in the record of : 18 : R F A N o . 1 6 8 5 /2 0 0 5 C/w.RFA CROB.No.100011/2014
rights of the lands. Therefore, the suit was barred by time;
v. Defend ants denied the title of the plaintiff much b efore the suit in the RTC proceedings which went on from 1994 to 1996. Therefore, the suit for p artition was not maintainable.
The plaintiff was required to seek declaration.
vi. If the plaintiff claims that the suit p roperties are the ancestral joint family properties, then he has not included the house properties stand ing in his name. Therefore, the suit was bad for non-inclusion of all joint family properties.
vii. Defend ant Nos.3 to 7 have purchased the property as they were stand ing in the name of defend ant No.1, and therefore, they were bona fid e p urchasers.
viii. So far as d efendant No.2, though the suit was abated and ab atement was recorded, the trial court p roceeded to decree the suit ag ainst him which is illeg al.
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18. In support of their contentions, they rely upon the following judgments :
i. Chief Conservator of Forests, Govt.
of A.P. v. Collector and others, AIR 2003 SC 1805;
ii. Smt. Puttakkaiah v. Smt. Basamma since dead by LRs and Others, 2013 (2) KCCR 1277;
iii. B.C. Singh (D) by LRs. v. J.M.Utarid (D) by LR s., [2018] SCCR 448;
iv. Vasanti and Others v. Pharez John Abraham and Others, ILR 2007 KAR 2375.
19. Per contra, Shri.S.S.Bawakhan, the learned counsel for the plaintiff / respondent No.1 seeks to support the judgment and decree of the trial court on the following g round s:
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(i) Even assuming that the prop erties were the
self-acquired p rop erties of Devad atta
Kumar, he d ied issueless. Plaintiff has
denied the adoption and Will set up by defendant No.1(a). The same is not proved by defend ant No.1(a). Therefore, by virtue of Section 33 of the Indian Succession Act, 1925, defend ant No.1(a) gets only half share and plaintiff being only sib ling in India gets half share;
(ii) Since other sons and daughters of Artur N.Kumar are permanently residing in America and have taken the citizenship of America, they are not entitled to claim a share in the suit schedule properties. Therefore, they are not necessary parties to the suit;
(iii) Section 31 of the Foreign Exchange Regulation Act, 1973 bars the nationals of Foreign State to acquire immoveab le properties in Ind ia; the other heirs of Artur : 21 : R F A N o . 1 6 8 5 /2 0 0 5 C/w.
RFA CROB.No.100011/2014Kumar are not entitled to any share in the suit sched ule p roperties;
(iv) In this appeal, once the plaintiff and defendant No.1(a) compromised the matter. In the compromise, they admitted the right of the plaintiff and therefore, now they cannot go back to d eny his share;
(v) Amongst the Christians, there is no concept of adoption and therefore, adoption set up by defend ant No.1(a) has no valid ity in the eye of law.
20. In support of his contentions, he relies upon the following judgment:
(i) Joy ce Pushapalath Karkada A lias Shiri and Geetha Hidi Shiri vs. Mrs. Shameela N ina, Ravindra Shiri and Naveetha Shrey a, Laws(Kar) 2013 (9) 247.
21. Having reg ard to the rival contentions, the question that arises for consid eration is:
"Whether the trial court was justified in awarding half share to the : 22 : R F A N o . 1 6 8 5 /2 0 0 5 C/w.RFA CROB.No.100011/2014
plaintiff and whether the impugned jud gment and decree is sustainable in law?"
22. The plaintiff himself in his p laint stated that his father Artur N.Kumar left behind him the following nine children:
Sons
(i) Devad atta Kumar;
(ii) John;
(iii) Samual;
(iv) Sub hodha Prakash (plaintiff)
(v) Sumanth David;
(vi) Manohar;
(vii) Vijayap rab hakar Nathaniyal;
Daughters
(viii) Sophia;
(ix) Lilavati;
23. There is no dispute b etween the parties that they are Christians and they are governed by Indian Succession Act.The occup ancy rig hts of the suit lands were granted in favour of Devad atta Kumar und er Ex.D-27 by the ord er of the Land Tribunal. He also d id not d ispute that the site : 23 : R F A N o . 1 6 8 5 /2 0 0 5 C/w.RFA CROB.No.100011/2014
wherein the suit house situates was allotted to Devad atta Kumar and the house thereon was constructed in his name.
24. As alread y pointed out, the trial court has held that the acquisition of plaint 'A' and 'B' immovable prop erties was b y Devad atta Kumar and he was the exclusive owner of those p roperties. The plaintiff has not filed any cross-objection challenging those find ings. Therefore, those findings have b ecome final.
25. The Hon'b le Supreme Court in LAXMAN TATTYABA KANKATE AND ANOTHER vs. TARAMATI HARISHCHANDRA DHATRAK, (2010) 7 SCC 717, held that the p arty may be ab le to support the d ecree and challenge the findings without filing cross-objections. In this reg ard, parag rap h 24 of the said judgment read s as follows:
"24. It is a settled principle of law that before the First Appellate Court, the party may be able to support the decree but cannot challenge the findings without filing the : 24 : R F A N o . 1 6 8 5 /2 0 0 5 C/w.RFA CROB.No.100011/2014
cross objections. As it appears from the record, the present appellants have neither filed cross objections nor their appeal challenging the findings recorded by the learned Trial Court. In fact, the entire conduct of the present appellants shows that they have not only failed to prove their claim before the Courts of competent jurisdiction but have even not raised proper pleas in their pleadings."
(Emphasis supplied)
26. Und er the circumstances, now it is not open to the plaintiff to contend that the suit properties were acquired in the name of Devad atta Kumar/husb and of defendant No.1 as the elder son of the family and therefore, he has a share in that. Moreover, as rightly held by the trial court, there is no concept of joint family in the Christian p ersonal law by which the p laintiff and defend ant No.1 are governed.
REG. NON-JOINDER OF NECESSASRY PARTIES:
27. Learned counsel for the p laintiff contends that by virtue of Section 33 of the Act, he is entitled : 25 : R F A N o . 1 6 8 5 /2 0 0 5 C/w.
RFA CROB.No.100011/2014to a share in the prop erty of his brother-Devad atta Kumar. Section 33 of the Act, 1925 read s as under:
"33. Where intestate has left widow and lineal descendants, or widow and kindred only, or widow and no kindred. -Where the intestate has left a widow--
(a) if he has also left any lineal descendants, one-third of his property shall belong to his widow, and the remaining two-thirds shall go to his lineal descendants, according to the rules hereinafter contained;
(b) save as provided by section 33A, if he has left no lineal descendant, but has left persons who are of kindred to him, one-
half of his property shall belong to his widow, and the other half shall go to those who are of kindred to him, in the order and according to the rules hereinafter contained;
(c) if he has left none who are of kindred to him, the whole of his property shall belong to his widow."
(Emphas is supplie d to him)
28. Section 33(b) of the Act applies to a case where the intestate has left no lineal descend ants. Plaintiff is not the lineal descendant of d eceased Devad atta Kumar to come under Section 33(a) of the Act. Even to bring the case of the plaintiff : 26 : R F A N o . 1 6 8 5 /2 0 0 5 C/w.
RFA CROB.No.100011/2014und er Section 33(b) of the Act, along with him, his other b rothers and sisters also g et a share. In that event, they are necessary p arties to the suit.
29. Contention of the plaintiff that the other bothers and sisters have acq uired the foreign citizenship and therefore, they are not entitled to a share, d eserves no merit having reg ard to the judgment of the Apex Court in this reg ard in B.C.SIN GH (D) BY LRs ( supra) .
30. In p arag rap h 9 of the said judgment, Hon'b le Supreme Court has held as follows:
"9. Dr. S.L. Singh died on 20.3.1976 without leaving any issue. It is not disputed that Ida Utarid is the real sister of Dr.S.L.Singh. According to the admitted pedigree, M.Utarid had two sons, namely, Dr. M.B.Utarid and Nazir Utarid. Nazir Utarid had two daughters, namely, Dr.S.L.Singh (wife of the original plaintiff) and Ida Utarid. J.M. Utarid (defendant No.1) is the son of E.Udarid and grandson of Dr.M.B.Utarid. Dr.S.L.Singh is admittedly an Indian Christian. Therefore, the Indian Succession Act, 1925 (for short 'the : 27 : R F A N o . 1 6 8 5 /2 0 0 5 C/w.RFA CROB.No.100011/2014
Act') would be applicable to the succession of the property left by her. This Act does not bar the succession of property of any Indian Christian by a person who is not an Indian national. There is no prohibition for succession of the property in India by a foreign national by inheritance."
(Emphasis supplied)
31. In view of the aforesaid judgment, if once it is held that the brothers and sisters are also entitled to get a share along with the plaintiff if he succeeds in the suit, in their ab sence, whether the suit is maintainable is the q uestion.
32. In this reg ard , the Hon'b le Supreme Court in Kenchegowda (Since deceased) by Legal Representaives Vs. Siddegowda Alias Motegowda, (1994) 4 SCC 294, in p arag raph 16 of the judgment has held as follows:
"16. .................Even otherwise, a suit for partial partition in the absence of inclusion of other joint family properties and the impleadment of the other co-
sharers was not warranted in law. Thus,
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we find no difficulty in allowing these appeals, which accordingly are allowed. The judgment and decree of the trial court as affirmed by the first appellate court are restored. However, there shall be no order as to costs."
(Emphasis supplied)
33. In Smt. Puttakkaiah (supra), this Court in p arag raph 11 of the judgment, in this reg ard has held as follows:
"11. ..............It is settled principle of law that partition suit should include all the joint family properties and also of persons who are entitled for a share are to be impleaded as parties. Otherwise, the such a suit is not maintainable. In the ab sence of a sharer who has interest in the suit property, no effective d ecree for partition can be passed. Therefore, the judgment and d ecree of the trial court cannot b e sustained."
(Emphasis supplied)
34. Learned counsel for the plaintiff relying on Ord er I Rule 2 of the Code of Civil Proced ure, : 29 : R F A N o . 1 6 8 5 /2 0 0 5 C/w.
RFA CROB.No.100011/20141908 (for short 'CPC'), contends that for non-joinder of necessary p arties, a suit cannot be dismissed. Ord er I Rule 2 of CPC operates in a totally different sphere. In view of the aforesaid judgments of the Hon'b le Sup reme Court and High Court directly on the point, the said contention carries no merit.
35. Section 31 of the Foreign Exchang e Regulation Act, 1973 also operates in a totally different sp here. Even otherwise, Section 31 does not impose a total bar on the acquisition of property. Bar is for the acquisition without p revious general or sp ecial permission of the Reserve Bank. If at all such permission is required for person getting a share by virtue of a decree, then how that matter has to be dealt with by the authorities concerned under the said Act is a different issue. But, that does not totally b ar a person from acquiring p roperties b y succession and the judgment in B.C.SINGH referred to supra is a complete answer for such argument.
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RFA CROB.No.100011/2014REG. SECTION 33(b) OF IN DIAN SUCCESSION ACT:
36. Section 33(b) of the Act comes into picture only when a Christian male dies without leaving behind him the widow and lineal descend ents. In this case, defendant No.1(a) claimed to be an adopted son. As already pointed out the Trial Court held that he has proved his adoption and g ave a finding in his favour.
37. In JOYCE PUSHAPALATH KARKADA (supra) relied up on the learned counsel for plaintiff, it is not held that there is b ar for Christians for adopting a child. What is said is, Christian law does not recognize ad option, but Christian law does not prohib it adop tion. Therefore, the said judgment in no way advances the case of the plaintiff.
38. Further, this Court in Vasanti's case (supra), in p arag raphs 14 and 15 of the judgment in this reg ard has held as follows:
"14. The question whether the adopted children have right of inheritance under the Indian : 31 : R F A N o . 1 6 8 5 /2 0 0 5 C/w.RFA CROB.No.100011/2014
Succession Act is no more res-integra. In the enlightening Division Bench judgment of Allahabad High court in the case of Ajit Datt v. Mrs. Ethel Walters and Ors. reported in AIR 2001 Allahabad 109 on the proposition of right of inheritance of adopted child of an Indian Christian, divergent views are expressed by Sri G.P. Mathur J., and S.R. Singh J., My Lord G.P. Mathur takes the view that "Although there is no rule or law which permits adoption. In Christianity there is no prohibition against adoption. The right to inheritance by an adopted child in the estate of adopted father, is a statutory right. Whereas in U.K. and USA and other European Countries, the State has made a law giving right of inheritance to the adopted child. Since there is no such adoption procedures in India the adoptive child does not have a right to claim the property in accordance with the Christian Canons. My Lord S.R. Singh J., on the other hand while interpreting the provisions of Section 3(57) of the General Clauses Act, 1904 declares that an adopted son is also a son and the adoption is not prohibited in Christianity. Therefore, holds that adopted child has right of inheritance in view of the definition of the 'son' in the General Clauses Act.
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15. The Kerala High Court in the case of Philips Alfred Malvin v. Y.J. Gonsalvis and Ors. has held that the Christian couple can adopt and the adopted child gets all rights of a naturally born child and entitled to inherit assets of the adoptive parents. I am in full agreement with the view of the Kerala High Court and with the view of my Lord S.R. Singh J., that an adopted child of a Christian parents shall have right of inheritance. Unlike in Hindu Law, there is no law prohibiting the Christian, couple to adopt male or a female child although they may have natural born male and a female child as the case may be. The adoption according to Christians is based on both temporal and spiritual values. Therefore, I am of the view that the 3rd defendant and the defendants 4 and 5 are entitled to a share notwithstanding that the third defendant and late Maccabeaus are the adopted children."
(Emphasis supplied)
39. Therefore, there is no merit in the contention that adoption is alien to the Christian personal law and therefore, defendant No.1(a) does not become a lineal d escend ant. When there is a : 33 : R F A N o . 1 6 8 5 /2 0 0 5 C/w.
RFA CROB.No.100011/2014widow and lineal descend ant, the question of properties devolving amongst the kindred und er Section 33(b) of the Act does not arise. But, the trial court without adverting to these facts, relying on Section 33(b) of the Act, has decreed the suit awarding half share to the plaintiff which is unsustainable in law.
REG. LIMITATION:
40. The trial court has concluded that the acquisition of the prop erty by Devad atta Kumar was in his own right. The p laintiff himself states that those acquisitions were in the name of Devad atta Kumar in 1977 and the site and buildings were acquired in his name. Devad atta Kumar himself died on 07.06.1981, therefore, it is clear that such acquisition was before 1981. But the plaintiff filed suit in the year 1995.
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41. As rightly pointed out by the learned
counsel for the defend ants, right of the p laintiff was denied much prior to the suit, atleast in the proceedings b efore the Tahasildar prior to 1994. But, he did not seek a d eclaration of his title to the suit prop erties. He brought the suit for partition simpliciter after fourteen years of the d eath of Devad atta kumar. Therefore, there is force in the contention that the suit is barred by time and the suit as framed is not maintainable.
42. Having regard to these facts and circumstances, the trial court was not justified in decreeing the suit over-looking all these aspects. Therefore, the appeal and cross-objection are allowed.
The judgment and decree dated 17.08.2005 passed by the II Additional Senior Civil Judg e, Dharwad in OS No.146/1995 is hereb y set aside. The suit is dismissed . No ord er as to costs.
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RFA CROB.No.100011/2014In view of the disposal of the app eal and cross- objection, IA No.1 of 2014 does not survive for consid eration and is disposed of accord ingly.
Sd/-
JUDGE 1-16:Hnm 17-end: RK/-