Karnataka High Court
Prabhakar vs Ganapati on 19 July, 2012
Author: H.S.Kempanna
Bench: H. S. Kempanna
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IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 19 T H DAY OF JULY, 2012
BEFORE
THE HON'BLE MR. JUSTICE H. S. KEMPANNA
REGULAR SECOND APPEAL NO.551/2007
BETWEEN:
1. PRABHAKAR
AGED ABOUT 56 YEARS
2. BHARATESH
AGED ABOUT 45 YEARS
3. AJITHKUMAR
AGED ABOUT 42 YEARS
4. SUDHATAI
AGED ABOUT 54 YEARS
W/O KAMALAKAR KASAR
ALL ARE CHILDREN OF DECEASED
TATAPPA BABURAO BURASHI
ALL ARE RESIDING AT
TERDAL
TQ. JAMKHANDI
DIST. BAGALKOT 587 301.
5. SUNANDA
AGED ABOUT 40 YEARS
W/O BALAPPA ROKADE
D/O BABURAO B BURASHI
R/O AMMINBHAVI
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TALUK AND DIST DHARWAD 580 003
5. GANGATAI
AGED ABOUT 35 YEARS
W/O BABASAHEB DESAI
D/O BABURAO B BURASHI
R/O RAILWAY STATION ROAD
DHARWAD 580 003
... APPELLANTS
(BY SRI. A. T. SAVANUR, ADV.,)
AND
1. GANAPATI
S/O GANGARAM AMBEKAR
SINCE DEAD BY HIS LRS'
1(a) SMT. MALUTAI
W/O. GANAPATI AMBEDKAR
AGE: 74 YEARS'
OCC: HOUSEHOLD WORK
R/O. TERDAL, JAMAKHANDI TQ.,
BAGALKOT DIST.
1(b) SRI. VIJAY
S/O. GANAPATI AMBEDKAR
AGE: 53 YEARS
OCC: NIL
R/O. TERDAL, JAMAKHANDI TQ.,
BAGALKOT DIST.
1(c) SRI. ANIL
S/O. GAWNAPATI AMBEDKAR
AGE: 51 YEARS
OCC: TAILOR
R/O. TERDAL, JAMAKHANDI TQ.,
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BAGALKOT DIST.
1(d) SRI. PANDURANGA
S/O. GANAPATI AMBEDKAR
AGE: 49 YEARS, OCC: CARPENTER
R/O. TERDAL, JAMAKHANDI TQ.,
BAGALKOT DIST.
1(e) SMT. KANCHANA
W/O. RAMAKANTH CHIKKORDE
AGE: 47 YEARS
OCC: HOUSEHOLD WORK
R/AT SALUNKE BUILDING
MAHADWARA ROAD, BELGAUM.
1(f) SMT. MEENA
W/O. MUKUNDA KUMTEKAR
AGE: 45 YEARS
OCC: HOUSEHOLD WORK
R/O. NARASOBAWADI, SHIROL TQ.,
KOLHAPUR DIST, MAHARASTRA STATE.
2. SHAKUNTALA @ PARAVVA
W/O. ANNAPPA CHIKKURDE
AGE: 50 YEARS,
R/O. NARVEKAR GALLI
SHAHPUR, BELGAUM - 570 003.
3. KAMALAVVA
W/O. SONAPPA CHIKKURDE
AGE: 48 YEARS
OCC: TEA STALL
R/O. HUKKERI
DIST. BELGAUM-591 309.
... RESPONDENTS
(BY SRI. RAVI S. BALIKAI, ADV., FOR R.2 AND
SRI. ANIL KALE, ADV., FOR R1(a) -R1(f))
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THIS RSA FILED U/S.100 OF CPC AGAINST THE
JUDGMENT AND DECREE DT.3.1.2007 PASSED IN
R.A.NO.19/2002 ON THE FILE OF THE PRESIDING OFFICER, I/C.
FTC, JAMAKHANDI, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMETN AND DECREE DT.17.7.2002 PASSED IN
O.S.NO.267/1999 ON THE FILE OF THE PRL. CIVIL JUDGE
(SR.DN), JAMKHANDI.
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T
Heard the learned counsel for the parties. The appeal is admitted to consider the following substantial question of law:-
"Whether the Courts below were justified in ignoring the vesting of right in Smt.Kashibai - the mother of respondent Nos.2 and 3 by virtue of Section 3(2) of the Hindu Women's Right to Properties Act, 1937 read with Section 14(1) of the Hindu Succession Act, 1956?"
Though this matter is listed for admission, as the appeal is of the year 2007 and the records have :5: also been received, it is taken up for final disposal with the consent of the learned counsels appearing for the parties.
This is a defendants appeal challenging the concurrent findings of the Courts below which have decreed the suit of the respondent/plaintiff.
For the sake of convenience, the parties in this appeal would be referred to by their rankings as the y are arrayed in the suit before the Trial Court.
2. The brief facts of the case are:-
2.1 The plaintiff instituted the suit against the defendants seeking the relief of declaration and injunction in respect of the suit schedule properties.
2.2.The suit schedule properties are house property bearing Nos.1074-1075 situated adjacent to each other at Terdal village in Jamkhandi Taluka, :6: more fully described in the schedule annexed to the plaint (hereinafter referred to as 'the suit property' for short).
2.3 It is the case of the plaintiff that the suit schedule properties are the ancestral properties of the original propositus by name Gangaram, who is his father. Gangaram - his father died in the year 1949 leaving behind him- his only son i.e. the plaintiff, his wife Smt.Kashibai and his two daughters i.e. defendant Nos.1 and 2. After the death of his father he succeeded to the estate of his deceased father under the provisions of Hindu Law and he became the absolute owner in possession of the suit properties. It is his further case that defendant Nos.1 and 2 are his married sisters and they are residing in their respective marital home.
They have no right or title over the suit properties. :7: But defendant No.1 hand-in-glow with the municipal authorities without his knowledge got entered her name in the municipal records in respect of the suit properties. The said entries are not binding on the rights of the plaintiff and no title passes in favour of defendant No.1 by virtue of the entry made by the municipal authorities. It is his case that defendant No.1 by virtue of the entries in the municipal records is denying his title over the suit properties and also threatening the possession of the plaintiff over the suit properties. Hence, he was constrained to file the suit for declaration and injunction.
2.4 Initially the suit was filed against only defendant Nos.1 and 2. In response to the suit summons issued on their appearance and on their filing written statements plaintiff impleaded defendant No.3 and he too appeared through their :8: counsel and all of them filed their written statements. Among the defendants, first defendant filed her written statement and that was adopted by the second respondent. Defendant No.3 as already stated filed his separate written statement.
2.5 Defendant Nos.1 and 2 in their statements' inter-alia contended that after the death of Gangaram
- their father, the plaintiff alone succeeded to the suit schedule properties as absolute owner and he is in possession is not correct. They further denied defendant No.1 hand-in-glow with the municipal authorities had got entered her name in the municipal records in respect of the suit schedule properties without the knowledge of the plaintiff. The name of defendant No.1 was entered legally by following all the procedures. The plaintiff cannot challenge the entries in the name of the defendant in :9: this suit without exhausting remedies available under the Karnataka Municipalities Act. They further contended that the deceased Gangaram owned one more house bearing TMC No.1410 apart from the suit properties. After the death of Gangaram, the plaintiff and mother of defendant Nos.1 and 2 i.e. Smt.Kashibai succeeded to all the properties. There was a partition effected between the plaintiff and Kashibai and in the said partition house No.1410 fell to the share of plaintiff and these two suit house properties fell to the share of deceased Smt.Kashibai, who is their mother and wife of deceased Gangaram. Hence, suit properties are the absolute properties of the deceased mother Smt.Kashibai. The plaintiff sold the house, which had fallen to his share to one Parappa Basappa Hawaldar under a registered sale deed dated 3.12.1974 and left the village about 15 to 20 years back and started to reside at Belgaum : 10 : permanently. They further contended that Smt.Kashibai - their mother during her lifetime, who is the owner of the suit properties, executed her last registered Will dated 13.10.1984 and bequeathed the suit properties in favour of defendant No.1. After the death of Kashibai, defendant No.1 succeeded to the suit properties as a legatee under the Will and as an heir. As such, defendant No.1 is the absolute owner in possession of the suit properties and she use to let out the property bearing No.1074 to different persons and as on the date of filing the suit and statements, it was let out to one Katappa Baburao Burshi, who is the third defendant in the case. She is paying municipal taxes. The plaintiff has no cause of action to file the suit. Suit is not properly valued and the Court has no jurisdiction to entertain and try the suit and suit is barred by time and accordingly, prayed for dismissal of the suit.
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2.6 Third defendant in his written statement denied all the plaint averments and contended that he had purchased the suit property bearing TMC No.1074 from defendant No.1 for a consideration of Rs.60,000/- under the registered sale deed and by virtue of the same, he is bona fide purchaser of the suit property. No specific prayer is made against him and the Court has no pecuniary jurisdiction to try the suit and therefore, he prayed for dismissal of the suit as against him.
2.6 On the basis of the above pleadings, the trial Court framed the following issues:-
1. Whether the plaintiff proves that he is exclusive owner and in possession of the suit property?
2. Whether the plaintiff proves the alleged interf erence by the def endants?: 12 :
3. Whether the plaintiff proves that the genealogy f urnished by the plaintiff is correct?
4. Whether the f irst def endant proves that there was a partition in the f amily of plaintiff and def endants as alleged in par a- 8 of the W.S. of def endant No.1?
5. Whether the f irst def endant proves that the suit properties bearing T.M.C. No.1074 and 1075 allotted to the share of the deceased Kashibai?
6. Whether the f irst def endant proves that the deceased Kashibai bequeathed the suit properties under the registered will in f avour of the f irst def endant?
7. Whether the suit barred by limitation?
8. Whether the suit is not properly valued?
9. Whether the court f ee paid in insufficient?
10. Whether this Court has no jurisdiction to try the suit?: 13 :
11. Whether the plaintiff has no locus standi to try the suit?
12. Whether the plaintiff is estopped f rom claiming the relief s?
13. Whether the plaintiff is entitled f or the relief sought f or?
14. What order or decree?
2.7 The plaintiff in support of his case got examined himself as PW.1 and examined two more witnesses as PWs.2 and 3. He produced sixteen documents, which came to be marked as Exs.P.1 to P.16. On behalf of the defendants, defendant No. 1 and 4 got examined themselves as DWs.1 and 4 and two more witnesses as DWs. 2 and 3. They produced fifteen documents, which came to be marked as Exs.D.1. to D.15.: 14 :
2.8 The trial Court on considering the oral and documentary evidence on record held that the plaintiff is the owner and he is not in possession of the suit properties; he has proved the alleged interference by the defendants; the genealogy furnished by the plaintiff is correct; the first defendant has failed to prove that there was a partition in the family of the plaintiff and the defendants; the first defendant further failed to prove that the suit properties are allotted to her mother Kashibai and she has failed to prove that her mother has bequeathed the suit properties under the registered Will in her favour.; the suit is not barred by time and properly valued; court fee paid is sufficient; the Court has jurisdiction to try the suit;
the plaintiff has locus standi to file the suit and the plaintiff is not estopped from claiming relief, accordingly, decreed the suit of the plaintiff partly : 15 : declaring him as owner of the suit properties, but declined to grant the relief of injunction holding that he is not in possession of the suit properties.
2.9 Aggrieved by the said judgment and decree of the trial Court, the defendants preferred appeal in R.A.No.19/2002 before the District Judge, Bagalkot, which in turn came to be transferred to the Fast Track Court, Jamakhandi. The learned Judge on hearing the respective counsels for the parties and on going through the entire record called for in the case concurred with the findings of the trial Court and accordingly, by his judgment and decree dated 3.1.2007 dismissed the appeal preferred by the defendants.
3. Defendant No.3 aggrieved by the concurrent findings of the Courts below is in appeal before this Court.
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4. Learned counsel for the appellant/defendant No.3 contended that the Courts below have erred in not noticing the provisions of the Hindu Women's Right to Properties Act, 1937 and Hindu Succession Act, 1956, and have erred in decreeing the suit of the plaintiff. In this connection, learned counsel contended that by virtue of Section 3 of Clause 2 of the Hindu Women's Rights to Properties Act, 1937, coupled with Section 14(1) of the Hindu Succession Act, 1956, deceased Kashibai - mother of defendant Nos.1 and 2 is the absolute owner in possession of the property, which had fallen to the share of her husband Gangaram in the partition that had been effected between Gangaram and his son Ganapati, the plaintiff in the case. The deceased Smt.Kashibai by virtue of the aforementioned provision having become absolute : 17 : owner of the property has bequeathed her share of property in favour of defendant No.1 under the registered Will - Ex.D.2 executed by her. This Will has not been challenged. The trail Court has not given any finding in respect of the Will-Ex.D.2 as to whether it has been duly executed or not. It has gone on the footing that since Kashibai has no title to the property, she could not have bequeathed the suit properties under the Will, which finding is not correct in view of the legal position as stated to above. He further contended that the Courts below have not properly appreciated the legal position in respect of their rights to the properties of Kashibai and thereby, have erred in decreeing the suit of the plaintiff holding that he is the absolute owner of the suit schedule properties. In support of his submission, the learned counsel has relied upon the decisions in the case of Shivalingappa Vs. Gouravva : 18 : reported in ILR 1988 KAR 1933 and in the case of Indira Bai Vs. Prof . Shyamasundar reported in IL R 1988 KAR 1115. Therefore, he contended that the concurrent findings of the Courts below cannot be sustained, accordingly, it be set aside and the suit be dismissed by allowing the appeal.
5. Sri.Ravi S. Balekai, learned counse l appearing for respondent No.2 and defendant No.1 in the trial Court supported the case of the appellant.
6. Learned counsel for the contesting respondent No.1 supported the impugned concurrent findings of the Courts below.
7. Having regard to the submissions made, evidence and documents on record, the point that arises for my consideration is:
"Whether the impugned concurrent f indings of the Courts below in view of : 19 : Clause 2 of Section 3 of the Hindu Women's Right to Properties Act, 1937 coupled with Section 14(1) of the Hindu Succession Act, 1956, is sustainable or not?"
8. The admitted facts are; the plaintiff is the son of Gangaram through his first wife. Defendant Nos. 1 and 2 are the daughters of deceased Gangaram through his second wife Smt.Kashibai. Gangaram - father of the plaintiff and defendants 1 and 2 died in the year 1949. Gangaram during his lifetime owned the suit properties and also another property bearing TMC No.1410 situated at Terdal village. After his death, the properties owned by him devolved on his wife Smt.Kashibai and his son Ganapathi, the plaintiff in the case in the ratio of 50:50 between them. Since suit properties were two small houses, that fell to the share of Smt.Kashibai, W/o.Gangaram and other property bearing No.TMC 1410 fell to the share of the plaintiff : 20 : Ganapathi. Ganapathi - the plaintiff sold the property bearing No.TMC 1410, which fell to his share in the year 1974 under the Sale Deed - Ex.D.15. After selling his property the material on record reveals that he has settled at Belgaum. Inter-se relationship between the parties i.e., the plaintiff, the defendants 1 and 2 and their mother Smt.Kashibai is not disputed. Admittedly, Gangaram died intestate in the year 1949. After his death by virtue of Clause 2 - Section 3 of Hindu Women's Right to Properties Act, 1937, Smt.Kashibai - the second wife of Gangaram and the plaintiff will have equal share in the properties held by Late Gangaram. That property which fell to the share of Gangaram devolves upon his wife Kashibai. Smt.Kashibai thus would become absolute owner of the property by virtue of Section 14(1) of Hindu Succession Act, 1956. This aspect of the matter has not been considered by the Courts : 21 : below. As already pointed out, since Smt.Kashibai steps into the shoes of Gangaram on his death, acquires her right to ½ of the property by virtue of Clause 2 of Section 3 of the Hindu Women's Right to Properties Act, 1937 and thus, she becomes absolute owner of the said property under Section 14(1) of the Hindu Succession Act, 1956. Therefore, the case of the plaintiff that he was the absolute owner of the suit schedule property after the death of his father cannot be accepted. Once the suit schedule property becomes absolute property of Smt.Kashibai, she gets a right to dispose of the same as per her will and wish. It is the case of defendant Nos. 1 and 2 that their mother Smt.Kashibai during her lifetime has bequeathed the suit properties under the Will Ex.D.2 in favour of defendant No.1. Here itself it may be mentioned that after death of Gangaram, the suit schedule properties were mutated : 22 : in the name of the deceased Smt.Kashibai, who is mother of the defendant Nos.1 and 2. After the death of Kashibai by virtue of the Will executed by her in favour of defendant No.1, the entries in the municipal records were made in the name of defendant No.1. Therefore, by virtue of the Will executed by Smt.Kashibai and the entries made in the municipal records, defendant No.1 has become absolute owner of the property. It is the case of the defendants that initially they had let out the suit premises bearing No.1074 in favour of the third defendant. Subsequently, according to the third defendant, the suit property has been sold in his favour under the registered Sale Deed- Ex.D.1 dated 3.8.1995. As on that day, by virtue of the Will - Ex.D.2 the first defendant was the absolute owner of the property. She had all the right, title to sell the same in favour of the third defendant. The Courts : 23 : below ignoring the statutory rights conferred on the deceased Smt.Kashibai by virtue of Clause 2 - Section 3 of Hindu Women's Right to Properties Act, 1937 and Section 14(1) of the Hindu Succession Act, 1956, have come to the conclusion that the deceased Kashibai had no right, title in the property, as such, she could not have executed the Will Ex.D.2 in favour of her daughter defendant No.1, which factually is not correct. Since Smt.Kashibai had stepped into the shoes of Gangaram and on his death, she had acquired the title to the properties owned by Gangaram to an extent of 50%, she would get absolute right to dispose of her share of 50% as per her Will and exercising that right, which is vested in her has executed the Will in favour of her daughter - defendant No.1, who in turn has sold the property in favour of defendant No.3. In view of this position in law, the concurrent findings of the Courts below that : 24 : Smt.Kashibai did not have any right, title and interest in the property cannot be sustained and further she had no power to execute the Will also cannot be sustained.
9. Material on record reveals that defendant Nos.1 and 2 have proved the Will, which has been executed in favour of defendant No.1 by their mother Smt.Kashibai by examining attesting witnesses DW.2. Unfortunately, this aspect has not been gone into by the trial Court on the ground that Smt.Kashibai did not have any right, title or interest in the property and as such, she could not have executed the Will at all. In view of what has been observed above, having regard to the statutory rights conferred on Smt.Kashibai, she had the right, title and interest in the suit schedule property and in exercising her right she has executed the Will-Ex.D.2 in favour of her daughter - defendant No.1. This Hon'ble Court in the : 25 : case of Shivalingappa Vs. Gouravva reported in ILR 1988 KAR 1933 held as follows:
HINDU WOMEN'S R IGHTS TO PROPERTY ACT, 1937 (Central Act No.18 of 1937 - AS AMENDED BY ACT NO.11 of 1938 - Sections 3(2) & (3) - Widow entitled to same interest which husband had- interest devolved on widow limited i.e. Hindu Woman's estate with right of partition as male owner in all properties - No question of enjoying any property towards maintenance separ ately - Under Hindu Succession Act (Section 14) limited interest i.e. Hindu Woman's estate held equivalent to share of husband, enlarged into f ull ownership".
10. In view of what has been held by this Court in the above mentioned decision, Smt.Kashibai, who is the widow of Gangaram, father of the plaintiff holds an equivalent share of her husband, which has enlarged into full ownership by virtue of Section 14(1) of the Hindu Succession Act, 1956. : 26 :
11. In that view of the matter, the findings of the Courts below that the plaintiff is the absolute owner of the property cannot be sustained. The Courts below have rightly held that the plaintiff is not in possession of the suit schedule property as on the date of suit. In that view of the matter, the substantial question of law, which has been raised, is to be answered in the affirmative and in favour of the appellant. Accordingly, the judgment and decree of the trial Court confirmed by the Appellate Court is set aside. Suit of the plaintiff is dismissed.
Office to draw the decree accordingly. Parties to bear their own costs.
Sd/-
JUDGE SA/-