Karnataka High Court
Smt Shantabai Since Dead By Her Lrs Smt ... vs Smt. Dhondubai on 23 November, 2024
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NC: 2024:KHC-D:17195
RFA No. 100223 of 2022
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 23RD DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO.100223 OF 2022 (PAR/POS-)
BETWEEN:
SMT. SHANTABAI SINCE DEAD BY HER LRS
1. SMT. LATA W/O. SHIVAJI PATIL,
AGED ABOUT 50 YEARS,
R/O. GONDUKUPPI,
CHIKODI TALUK
BELAGAVI DISTRICT - 591237.
2. SRI. SUNIL S/O. VASANT PATIL,
AGED ABOUT 48 YEARS,
R/O: GONDUKUPPI, CHIKODI TALUK,
BELAGAVI DISTRICT- 591 237.
3. SMT. SUREKHA W/O. SANJAY CHAVAN,
ASHPAK
KASHIMSA AGED ABOUT 46 YEARS,
MALAGALADINNI
R/AT DEVI-PRASAD CO-OP HOUSING
SOCIETY, PLOT NO. 26,
FLAT NO. 305, 3RD FLOOR,
NAVI-MUMBAI SECTOR -7
Location: AROLI , NAVI-MUMBAI- 400708.
HIGH
COURT OF
KARNATAKA 4. SMT. SAROJINI
W/O. DHANANJAY PATIL,
AGED ABOUT 42 YEARS,
R/AT YASHODHAN NIVAS,
PLOT NO. 9, KADAGAON ROAD,
NEAR MSEB MANGAL KARYALA
DADHINGLAJ,
KOLHAPUR- 416 501.
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NC: 2024:KHC-D:17195
RFA No. 100223 of 2022
5. SMT. MAYA
W/O. PRAVIN PATIL
AGED ABOUT 38 YEARS,
R/O. S.R. NO. 74, PLOT NO. 27,
BHARATI NAGAR,
MOREWADI, KARVEER TALUK,
KOLHAPUR DISTRICT- 416 003.
...APPELLANTS
(BY SRI K. RAGHAVENDRA RAO K., AND
SMT. V.VIDYA, ADVOCATES)
AND:
1. SMT. DHONDUBAI
W/O. BABASO PATIL,
AGED ABOUT 76 YEARS,
C/O. SRI. MAHADEV,
S/O. BALIRAM PATIL,
R/O. BAHIRAPUR
HUKKERI TALUK,
BELGAVI DISTRICT- 591 225.
2. SRI. MAHADEV
S/O. BALIRAM PATIL,
AGED ABOUT 56 YEARS,
R/O. BAHIRAPUR,
HUKKERI TALUK,
BELAGAVI DISTRICT- 591 225.
...RESPONDENTS
(BY SRI SATISH N.KUNKEKAR, ADVOCATE FOR R1;
R2 -NOTICE IS DISPENSED WITH)
THIS RFA FILED UNDER ORDER XLI RULE 1 READ WITH
SECTION 151 OF CPC., 1908 PRAYING TO SET ASIDE THE JUDGMENT
AND DECREE PASSED BY THE LEARNED SENIOR CIVIL JUDGE AND
JMFC., NIPPANI IN O.S.NO.32/2017 (OLD O.S.NO.169/2015) DATED
16.11.2021 IN SO FAR AS THE DETERMINATION OF SHARES IS
CONCERNED AND DECREE THE SUIT AS PRAYED FOR, ALLOW THIS
APPEAL WITH COSTS, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:17195
RFA No. 100223 of 2022
CORAM: THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
ORAL JUDGMENT
This appeal is by the plaintiffs whose claim for 7/8th share in the suit schedule properties is decreed in-part awarding ½ share to the plaintiffs and remaining ½ share is awarded in to defendant No.1. Defendant No.2 is not a member of the plaintiffs' family and he is the brother of defendant No.2 and defendant No.2 being the daughter-in- law of the propositus Bhairu Gundu Patil, suit against defendant No.2 is dismissed.
2. The admitted genealogy is as under:
Bhairu Gundu Patil (Died on 1960) Sarojabai - (Died on 17.07.1988) Babaso Vasant Eknath (DD:13.10.1980) (DD:20.05.2007) (DD:27.05.1999) Dhondubai (wife) Shantabai (DD: 18.06.2021) D-1 P-1 Lata Sunil Surekha Sarojini Maya P-2 P-3 P-4 P-5 P-6 -4- NC: 2024:KHC-D:17195 RFA No. 100223 of 2022
3. Bhairu Gundu Patil was the propositus who died in the year 1960. His wife Sarojabai died on 17. 07.1988. When propositus Bhairu Gundu Patil died, the couple Bhairu Gundu Patil and Sarojabai were survived by three sons namely Babaso, Vasant and Eknath. Babaso-the elder son died on 13.10.1980, Sarojabai survived him, the youngest son Eknath died on 27.05.1999 and Eknath was a bachelor and issueless. Estate of Eknath would devolve upon Vasant, the brother the Eknath as another brother Babaso had predeceased Eknath.
4. The suit is filed by Smt.Shantabai who is the wife of Vasant and 5 children of Vasant and Shantabai. The suit is filed against Dhondubai, the wife of Babaso. The brother of Dhondubai is arrayed as a party as Dhondubai has made a claim that she has relinquished her property in favour of her brother and brother also claimed that he has acquired title over the property of Dhondubai.
5. Plaintiffs claimed 7/8th share in the suit schedule properties.
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NC: 2024:KHC-D:17195 RFA No. 100223 of 2022
6. The defendants contested the suit. Defendant No.2 took a stand that defendant No.1 relinquished her share in the suit properties and thus claimed ½ share. It is also contended by defendant No.2 that the suit is not maintainable for not including the residential house and defendant No.1 filed a counter claim claiming share in the suit properties.
7. Plaintiffs did not object to the counter claim and made a statement that the suit can be claimed even in respect of counter claimed property. The plaintiffs filed a written statement to the counter claim and took a stand that the suit is not maintainable for not including the ancestral house property.
8. Plaintiffs failed to establish the existence of ancestral house property. Accordingly, the said issue is answered against the plaintiffs.
9. The issue relating to the nature of the property is answered in favour of the plaintiffs holding that the suit -6- NC: 2024:KHC-D:17195 RFA No. 100223 of 2022 properties are joint family ancestral properties. Issue relating to the alleged relinquishment of share by defendant No.1 in favour of defendant No.2 is answered against defendants and issue based on the contention that the suit is not maintainable for not including joint family properties is answered in favour of the plaintiffs as the plaintiffs have given consent to pass a decree in respect of the counter claim property. Suit is decreed awarding ½ share to the plaintiffs and ½ share to defendant No.1.
10. Plaintiffs are before this Court raising grievance that they are entitled to 7/8th share in the suit properties and not ½ share.
11. Learned counsel appearing for the appellant Smt. V. Vidya Iyer would contend that the nature of the properties is not in dispute, relationship of the properties is not in dispute. The genealogy furnished by the plaintiffs is not disputed by the defendants and that Bhairu Gundu Patil died in the year 1960 and his elder son died on 13.10.1980 and is wife died on 17.07.1988 and another -7- NC: 2024:KHC-D:17195 RFA No. 100223 of 2022 son Eknath died on 27.05.1999 are not disputed by the defendants. And when these dates of death are not disputed and previous partition is not pleaded, the natural course of succession as contemplated under Sections 6, 8 and 15 of the Hindu Succession Act, 1956 (for short 'Act of 1956') as the case may be would take place and if such provisions are applied, the plaintiffs would be entitled to 7/8th share and defendant No.1 would be entitled to 1/8th share.
12. Learned counsel would urge that the Trial Court has not considered the implication of Sections 6, 8 and 15 of the Act of 1956 with reference to the date of death of Babaso, Sarojabai and Eknath.
13. Learned counsel appearing for the respondents would urge that the plaintiffs are not entitled to 7/8th share, they are entitled to ½ share. It is his contention that after the death of Eknath, share of Eknath would also devolve upon Dhondubai as well as Vasant. And Dhondubai is entitled to equal share in the share of -8- NC: 2024:KHC-D:17195 RFA No. 100223 of 2022 Eknath. It is also his contention that after the death of Sarojabai, Sarojabai's share would also devolve upon Dhondubai, the Trial Court is justified in granting a decree for ½ share as against the claim of 7/8th share.
14. Learned counsel for the respondents would contend that the first defendant during the pendency of the suit adopted a person by name Prateek and adoption is duly registered on 07.11.2020. Thus, he would contend that the adoption would date back to the date of death of Babaso husband of adoptive mother. Thus, he would urge that the adopted son will acquire right in the property of Babaso.
15. It is urged by the learned counsel appearing for the respondents that during the pendency of the suit, defendant No.1-Smt.Dhondubai has adopted a son by name Prateek and adoption deed is registered on 07.11.2020. He would contend that because of adoption, the same relates back to the date of the death of husband of adoptive mother. Thus, he would contend that adopted -9- NC: 2024:KHC-D:17195 RFA No. 100223 of 2022 son will acquire right over the property of Sarojabai as well. It is also his contention that adopted son will also acquire right in the property of his father. Thus, he would contend that the matter requires to be remanded to the trial Court for fresh consideration to consider the claim based on adoption.
16. Learned counsel for the plaintiffs/appellants would contend that alleged adoption deed is not produced before trial Court. This contention is sought to be raised for the first time before this Court when the case is slated for further argument. It is also his contention that adoption even if it is held to be valid, does not divest the property, which is already vested in the appellants in view of the Section 12 (c) of Hindu Adoption and Maintenance Act, 1956.
17. This Court has considered the contentions raised in this regard.
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NC: 2024:KHC-D:17195 RFA No. 100223 of 2022
18. Admittedly, the adopted son is not before this Court. Admittedly, the adoption deed is not produced before the trial Court. The adoption is said to taken place on 07.11.2020. The suit is decided on 16.11.2021.
19. This being the position, this Court does not find any reason to remand the matter to consider the claim of adopted son, who is not before this Court.
20. This Court has considered the contentions raised at the bar and perused the records.
21. It is also relevant to note that the defendants have not questioned the impugned judgment and decree, the appeal is only by the plaintiffs. Even the nature of the controversy raised in this appeal is only the point that requires consideration:
(a) Whether the Trial Court is justified in awarding ½ share to the plaintiffs as against the claim of 7/8th share and awarding ½ share to defendant No.1-Dhondubai?
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NC: 2024:KHC-D:17195 RFA No. 100223 of 2022
22. As can be seen from the records, Bhairu Gundu Patil died in the year 1960. At the time of his death he had 4 Class-I heirs namely his wife Sarojabai, his three sons Babaso, Vasant and Eknath.
23. Sarojabai died on 17.07.1988 as can be seen from Ex.P-29, Bhairu Gundu Patil died in the year 1960 as can be seen from Ex.P-27, Eknath died on 27.05.1999 as can be seen from Ex.P30 and Vasant died on 20.05.2007 as can be seen from Ex.P-31. Since these dates of death which are pleaded in the examination-in-chief are supported by the aforementioned documents, the Court has to consider how the properties would devolve upon the family members of Bhairu Gundu Patil.
24. Upon the death of Bhairu Gundu Patil in the year 1960, the property would devolve upon these 4 Class-I heirs namely Sarojabai, Babaso, Vasant and Eknath. Thereafter, Babaso died on 04.10.1980. Babaso is survived by 2 Class-I heirs namely his mother Sarojabai and wife Dhondubai. Babaso's ¼ share in the properties,
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NC: 2024:KHC-D:17195 RFA No. 100223 of 2022 would devolve on 2 Class-I heirs namely Sarojabai and Dhondubai. Thus, Dhondubai, defendant No.1 will acquire 1/8th share in the suit properties.
25. Sarojabai died on 17.07.1988. She inherited 1/4th share from her husband and in addition to that she had 1/8th share which she inherited from her son Babaso. Thus, she had 3/8th share. On her death, the succession would devolve as contemplated under Section 15(1)(a) of the Act, 1956. Under Section 15(1)(a) Sarojabai is survived by her two sons namely Vasant and Eknath. Thus, Vasant and Eknath would jointly inherit 3/8th share of Sarojabai.
26. It is relevant to note that Vasant and Eknath have inherited ¼ share each after the death of their father Bhairu Gundu Patil.
27. Eknath is the son of Bhairu Gundu Patil and Sarojabai. Admittedly, Eknath was a bachelor and issueless. Thus, his property would devolve upon sole
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NC: 2024:KHC-D:17195 RFA No. 100223 of 2022 surviving Class-II heir namely Vasant. Babaso is another brother who predeceased Eknath. Thus, the share of Eknath would devolve only on Vasant.
28. The suit is filed by the wife of Vasant and the children of Vasant. During the pendency of the suit, wife of Vasant namely plaintiff No.1 has expired, share of plaintiff No.1 would devolve upon the remaining plaintiffs namely plaintiffs No.2 to 6.
29. On considering the devolution of the properties as discussed above, Dhondubai has inherited only 1/8th share from her husband Babaso. This being the position, the remaining 7/8th share would belong to the plaintiffs.
30. The Trial Court did not notice this aspect and erroneously granted ½ share to the plaintiffs and ½ share to defendant No.1. Thus, certainly there is merit in the contentions raised by the plaintiffs/appellants. For the aforementioned reasons, the judgment and decree passed
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NC: 2024:KHC-D:17195 RFA No. 100223 of 2022 by the Trial Court have to be modified by appropriately allotting share as indicated above.
31. Hence, for the aforementioned reasons, the judgment and decree of the trial Court are modified.
32. Though learned counsel appearing for respondents contends that the appellants are claiming more share than what they have claimed before the trial Court, this Court is of the view that share has to be declared in accordance with law not as per the prayer made in the paint. Under Order XLI Rule 30 of the Code of Civil Procedure, the Court has got the power to decide the quantum of share, which the parties are entitled and this Court without having reference to the alleged adoption, has declared the share as indicated above.
33. Since a claim is made based on alleged adoption during the pendency of the suit by Dhondubai and the alleged adoption is disputed by the appellants, the adopted son if at all has any right over the properties
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NC: 2024:KHC-D:17195 RFA No. 100223 of 2022 is at liberty to file a suit to establish his right, if so advised in law. In case such suit if filed, the appellants are at liberty to raise such contentions available in law relating to the consequence of adoption including the defence under Section 12 (c) of the Hindu Adoption and Maintenance Act, 1956. If such suit is filed, the Court shall consider the validity of the adoption as well as the consequence of adoption in accordance with law and pass appropriate orders.
34. Hence, the following:
ORDER
(i) Appeal is allowed.
(ii) The judgment and decree dated 16.11.2021 in O.S.No.32/2017 on the file of Senior Civil Judge, Nippani are modified.
(iii) Plaintiffs/appellants are entitled to 7/8th share in the suit schedule properties.
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(iv) Defendant No.1 is entitled to 1/8th share in the suit schedule properties.
(v) Registry to draw decree accordingly.
Sd/-
(ANANT RAMANATH HEGDE) JUDGE GVP,GAB,AM/-
CT:ANB List No.: 1 Sl No.: 58