Karnataka High Court
Smt. Sakamma And Ors. vs Sri Rangaiah, Since Deceased By His ... on 22 September, 1997
Equivalent citations: ILR1998KAR672, 1998 A I H C 2206, (1998) 2 MARRILJ 182, (1998) 3 CIVLJ 306, (1998) 1 CURCC 585
JUDGMENT T.N. vallinayagam, J.
1. The L.Rs of the first plaintiff and plaintiffs 2 to 6 are the appellants. The suit for declaration of the plaintiff's title to the suit schedule properties and for injunction, was decreed by the trial Court. On appeal by the defendants, the decree was set aside by allowing the appeal and the suit was dismissed. Hence, the plaintiffs are before this Court in this second appeal.
2. The facts relating to the second appeal are as follows:
One Dasegowda had three sons by name Kempanna, Yelavaiah and Rangappa. The family tree of the said Dasegowda is appended below:
Dase Gowda ____________________________|___________________________ | | | Kempanna Yelavaiah Rangappa | | | ______|___________ | ______|______ | | | | | Rangappa Gaviappa | Rangaiah Nanjappa @ G. Narasiah | Chikkarangappa | | | Lakkamma (widow died in 1978 | Daughter Rangamma died in 1964 Husband Huchaiah (died in 1973 | ____________________|______________________________ Chikk- Lakkamma Nanjamma Dase- Hanuman- Chand mariah gowda thaiah rajiah
3. The second son of Dasegowda, Yelavaiah died in 1920 leaving behind him surviving his widow Lakkamma, and daughter Rangamma. After the death of Yelavaiah, his two brothers, Kempanna and Rangappa entered into a compromise with Lakkamma and left the suit properties in her possession in lieu of her maintenance under registered deed dated 4.10.1920 with the condition that they should revert back to the aforesaid properties after the demise. Till her death in 1978, she was in possession. By virtue of passing of the Hindu Succession Act, she became absolute owner of the property on 15.6.1976; consequently, the neither Kempanna nor Rangappa had a right over the same. Her daughter Rangamma was married to one Huchaiah and the said Huchaiah died in 1973. Plaintiffs 1 and 2 are the sons of Huchaiah and grand-sons of Lakkamma have succeeded to the suit properties as joint owners from the date of death of said Lakkamma i.e., 3.3.1978. Defendant-1 is the son of Kempanna and defendants 2 and 3 are the sons of Rangappa were obstructing the possession, defendants 1 and 2 initiated proceedings under Section 145 Cr.P.C., and had a Receiver appointed, but the said order was nullified by the High Court. Having failed in their attempts, the defendants have filed a complaint under Section 379. Thus, they disturb the possession of the plaintiffs. Therefore, the suit for declaration and injunction was laid by the plaintiffs.
4. The defendants apart from usual denial mainly contended as follows:
"Even four years prior to death of Lakkamma, she gave up possession of suit properties to the defendants who are the owners of suit properties and they are continuing in possession of suit properties as absolute owners thereof."
5. On these pleadings, the parties went to trial and the trial Court on consideration of documentary and oral evidence came to the conclusion that deceased Lakkamma was in possession and enjoyment of the properties from 4.10.1920, the date of the registered deed till her death and that Hanumanthaiah was managing the suit properties, plaintiffs are the grand-sons of Lakkamma, who are also managing the properties on behalf of Lakkamma; and they succeeded the properties as joint owners on the death of Lakkamma and the defendants are trying to interfere with the possession and ultimately the suit was decreed with costs granting the decree for declaration and injunction. On appeal by the defendants, the Appellate Court held that the suit schedule properties are the self acquired properties of Kempaiah and Rangappa and on question of injunction the Appellate Court held that no injunction can be granted against the true owner. This judgment of the first appellate Court that is being challenged in this second appeal.
6. It was submitted that the suit schedule properties cannot be construed as self acquired properties of Kempanna and Rangappa. The lower appellate court committed an error in construing that there is no pleading with regard to the existence of the joint family properties and therefore error in holding that the suit schedule properties are not joint family properties of Yelavaiah. There is no iota of any oral evidence to show that the suit schedule properties were acquired from the joint family nucleus. The suit schedule properties were treated as joint family properties with reference to Ex.P.24 and the recitals thereof in Ex.P.24 would go to show that the possession of the suit schedule properties were given in lieu of her right of maintenance. The admission by second defendant is that the suit schedule properties are the ancestral and joint family properties of Yelavaiah and his brothers and Exs.P.27 and P.28 support both the stands. The properties given to Lakkamma under Ex.P.24 got enlarged into full estate in view of Section 14(2) of the Hindu Succession Act. Equally so, Section 14(1) is also applicable to this case. As against this, the counsel for the respondents submitted his arguments in support of the judgment of the first appellate court.
7. The crux of the problem is that on 4.10.1920 Kempanna and Rangappa executed a registered deed in favour of Lakkamma mentioning that she shall be in possession and enjoyment thereof till her death and the property shall come back to them on her death. When the right of the woman was not very much there in 1920, the reason for the brothers Kempanna and Rangappa to execute such a deed in favour of their brother's widow Lakkamma would indicate beyond doubt that they were conscious of maintaining their brothers widow. Such moral obligation on their part is exhibited and endorsed in that deed. Admittedly, the brothers, Kempanna, Yelavaiah and Rangappa were borne to the same father Dasegowda, the question whether those properties were forming part of the joint family properties or they were self acquired properties of Kempanna and Rangappa has to be answered from and out of the above mentioned contentions in the written statement and not otherwise. Except mentioning that "suit properties were the properties of Kempanna and Rangappa and after the death of Yelavaiah in order to provide her means of livelihood the suit properties were allowed to be enjoyed by Lakkamma till her life time and her daughter till the marriage only." The pleadings are whether they are joint family properties or self acquired properties were conspicuously absent. At least the fact that they felt moral obligation is admitted in the following lines of the written statement "this arrangement was made only out of love and affection towards the brother Yelavaiah and on humanitarian consideration." Finally a stand has been taken in the written statement in paragraph 5 clearly indicating that the claim of the defendant is based on alleged giving up of possession of the suit properties by Lakkamma even four years prior to the death. This last contention can be rejected in toto and in limine in view of the earlier contention mentioned in the previous paragraph. The document itself mentions about enjoyment of properties till her death and till the marriage of her daughter; it cannot be construed that suddenly the widow Lakkamma gave up her right four years prior to the death.
8. These two questions as to whether those properties can be construed as joint family properties or self acquired properties, and whether, in any event, the brothers felt moral obligation on them to execute the deed of maintenance, is answered by the two decisions placed before me. In the dictum laid in KUPPALA OBUL REDDY v. BONALA VENKATA NARAYANA REDDY, AIR 1984 SC 1171, while considering the presumption in respect of a joint family properties. The Supreme Court considered a gift deed executed in favour of the senior wife by the husband. The deed was executed by Bonala Thimma Reddi in favour of his wife Bonala Naramma. The question whether Bonala Naramma acquired title to the property gifted to her in the said deed was considered by the Supreme Court and the Supreme Court took the view that all the properties gifted by Thimma Reddi were joint family properties and the gift in favour of his wife Naramma was not valid. The Supreme Court considered the question as to whether there was any pleading that the properties covered by the gift deed were the joint family properties and whether an issue regarding the joint family properties was raised in the suit. In the absence of any pleadings or any evidence whether there can be any finding that the properties were the joint family properties. The Supreme Court ultimately held that no case was made with regard to the property gifted to Thimma Reddi to his wife Naramma; being joint family properties no issue with regard to the properties being joint was raised and no such issue could possibly be raised in the absence of pleadings. There is presumption that there is a Hindu joint family, but there cannot be presumption that there is possession of the joint family properties. Therefore, the gift by Thimma Reddi in favour of his wife Naramma cannot be considered to be conveyed half a share of Thimma Reddi as a member of the joint family. Holding that the gift deed executed by Thimma Reddy in favour of his wife clearly establishes that the properties were gifted by Thimma Reddi to his wife absolutely, the court found such deed of gift is valid. But in the present case what was conveyed by way of deed of maintenance in favour of the widow Lakkamma was pursuant to a compromise in respect of the properties of Yelavaiah, Kempanna and Rangappa; When it was the properties of Yelavaiah which was separated, was granted by way of a registered deed in favour of the widow. The law as is stood then the brothers Kempanna and Rangappa succeeded to the properties as co-parceners. But instead of such succession, they postponed the succession till the life time of the widow by creating a right of maintenance on her, which right she possessed in law even then. But for the interference by the Hindu Succession Act, the properties would have got back to Kempanna and Rangappa. But the entrance of a new law, made the properties in the hands of Lakkamma as her absolute property. This my finding is based on paragraph 3 of the plaint which has not been controverted to in the written statement by the defendants specifically. Therefore, the above decision of the Supreme Court is applicable on principle, though the facts are different. As found by the Supreme Court, in he absence of any pleadings and consequent issue raised by such pleadings, it is not open to the courts below to embark upon investigation of facts and emerge into a finding not warranted by the pleadings. It is of course true that the Division Bench of this Court in BASETTAPPA BANGAREPPA BANGARSHETTAR v. SMT. IRAWWA, , has held as follows:
"It is well settled that while it is not necessary that the Court should insist on precise pleadings, having regard to many factors such as poverty, ignorance, illiteracy, etc; it is not however conceded that without pleading, which is understandable by the Court as well as by the opposite party, issues must be raised or framed and even without evidence supporting such unraised issues, the Court should give relief."
9. The above dictum of the Division Bench is clear on the point that "it is well settled that in the absence of pleadings, evidence if any produced by the parties cannot be considered. It is equally settled that no party should be permitted to travel beyond the pleadings and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of the pleadings is to enable the affected party to know the case suggested in order to have a fair trial. It is imperative that the party should state essential material facts so that the other party may not be taken by surprise. The pleadings, however, should receive liberal construction and no pedantic approach should be adopted to defeat justice on technicalities. But this ruling is not without exception. "Once it is found that in spite of deficiency in the pleadings, party knew the case and they proceed with the trial on those issues by producing evidence, in that event, it would not be open to the party to raise a question of absence of pleadings in the appeal.
10. The other principle of law is laid in LAXMAPPA AND ORS. v. BALAWA, In that case, the moral obligation theory was profounded and accepted. The following passage is worth to note:
"The High Court has concluded that it was clear that the father was under an obligation to maintain the plaintiff-respondent. Seemingly, the High Court in doing so was conscious of the declaration made in the gift deed in which she was described as a destitute and unable to maintain herself. In that way, the father may not have had a legal obligation to maintain her but all the same there existed a moral obligation. And if in acknowledgment of that moral obligation the father had transferred property to his daughter then it is an obligation well-fructified. In other words, a moral obligation even though not enforceable under the law, would by acknowledgment, bring jt to the level of a legal obligation, for it would be perfectly legitimate for the father to treat himself obliged out of love and affection to maintain his destitute daughter, even impinging to a reasonable extent on his ancestral property. It is duly acknowledged in Hindu law that the Karta of the family has in some circumstances, power to alienate ancestral property to meet an obligation of the kind. We would rather construe the said paragraph more liberally in the modern context having regard to the state of law which has been brought about in the succeeding years. Therefore, in our view, the High Court was within its right to come to the conclusion that there was an obligation on the part of the father to maintain his destitute widowed daughter."
11. In this view, the deed in favour of Lakkamma should be construed as one in lieu of her maintenance, both on principle of moral obligation and on principle of entitlement, being the widow of the brother's wife. Viewed from any angle, the judgment and decree of the first Appellate Court is not sustainable and the same is set aside. The decree of the trial Court is restored and the second appeal is allowed.