Karnataka High Court
Smt. Roopa J.M. vs Sri Jallur Musturappa And Ors. on 1 March, 2006
Equivalent citations: AIR2006KANT196, I(2006)DMC743, ILR2006KAR1505, 2006(2)KARLJ644, AIR 2006 KARNATAKA 196, 2006 (3) AIR KANT HCR 21, 2006 A I H C 1700, (2006) 42 ALLINDCAS 452 (KAR), 2006 (42) ALLINDCAS 452, (2006) ILR (KANT) 1505, (2006) 1 DMC 743, (2007) 1 MARRILJ 26, (2006) 4 CURCC 379, (2006) 4 RECCIVR 406, (2006) 2 HINDULR 288, (2006) 2 KANT LJ 644, (2006) 2 KCCR 942, (2006) 4 CIVLJ 388
Author: K.L. Manjunath
Bench: K.L. Manjunath
JUDGMENT K.L. Manjunath, J.
1. The appellant herein was the plaintiff No. 2 in O.S. No. 42/ 1992 on the file the Civil Judge (Sr.Dn.) Chitradurga. The said suit was filed by the present appellant along with her brother Ravi, claiming partition and separate possession of 17/36 share in the suit schedule properties and for mesne profits.
2. According to the plaint averments, the plaintiffs Ravi and Roopa are the children of one Jellur Musturappa, the first defendant in the suit. They were born out of the wedlock of the first defendant with Smt. Bharathamma and that the first defendant or neglected to maintain the plaintiffs and their mother Bharathamma. Therefore, they have taken shelter in the house of their maternal grand-father. The plaintiffs claim their 2/3 share in all the suit schedule properties contending that the suit properties are joint family properties and further contended that the first defendant has to perform the marriage of the second plaintiff and she has to be maintained till her marriage. The appellant also claimed a share in all the suit schedule properties.
3. The defendants contested the suit. According to the defendants, the plaintiffs are not having a share to an extent of 17/36 in all the suit schedule properties. It is contended that the 3rd defendant is also having daughters by name Annapurna and Thippamma and they are also having l/5th share in all the suit schedule properties and they are also necessary and proper parties to the suit. It is the case of the defendants that the second plaintiff is not having any share. According to them, the first plaintiff is having 1/2 share out of the share of his father, first defendant. The first defendant is having 1 /3rd +1/5"1 share in the suit schedule properties and therefore, they requested the court to dismiss the said suit.
4. Based on the above pleadings, following issues were framed by the Trial Court.
(i) Whether the plaintiffs prove that the suit properties are the ancestral and joint family properties of the plaintiffs and defendants 1 and 3?
(ii) Whether the plaintiffs prove that the 1st defendant is to meet the marriage expenses of the 2nd plaintiff including her maintenance till her marriage?
(iii) Whether the suit is bad for non-joinder of necessary parties?
(iv) Whether the 1st defendant proves that he has incurred debts as stated in para 3 of the written statement?
(v) Whether the plaintiffs are entitled for 17/3 6th share in all the suit properties?
(vi) Whether the plaintiffs are entitled for the reliefs claimed?
(vii)to what order and decree.
5. During the pendency of the suit, both the plaintiffs attained majority and their guardian was discharged. On behalf of the plaintiffs, the first plaintiff was examined as P.W. 1. Plaintiffs relied upon Ex.P1 to Ex.P.23. On behalf of the defendants, defendants 1 and 2 were examined as D.W.2 and one witness was examined as D.W.3. They relied upon Ex.D1 to Ex.D5.
6. The Trial Court after considering the evidence adduced by the parties held issue No. 1 as affirmative, issues 2 to 4 as negative, issue No. 5 was held that the first plaintiff is entitled to 17/108 share in the suit schedule properties, issue No. 6 was held partly in the affirmative and partly in the nagtive. The suit of the plaintiffs was decreed in part declaring that the first plaintiff alone is entitled for 17/ 108 share in all the suit schedule properties. The prayer of the second plaintiff who is the appellant herein was rejected.
7. Being aggrieved by the judgment and decree of the Trial Court, both the plaintiffs filed an appeal before the Principal District Judge in R.A. No. 5/2002. The Lower Appellate Court after hearing the learned Counsel for the parties, formulated the following points for its consideration:
(i) Whether the plaintiffs are entitled to lead additional evidence before this Court as prayed in LA. No. I?
(ii) Whether the second plaintiff is entitled to any share in the suit properties?
(iii) To what legitimate share the first plaintiff or the plaintiffs together is/are entitled?
(iv) Whether the impugned judgment and decree call for interference in this appeal?
8. During the pendency of the appeal, the pliantiffs also filed an application under Order 41 Rule 27 of C.P.C. seeking permission and to adduce additional evidence. This application was also considered along with the main appeal. After reappreciating the evidence, the lower Appellate Court held points No. 1 and 2 as NO, Point No. 3 as first and plaintiff alone is entitled to a share to the extent of 5/24 in all suit schedule properties and Point No. 4 as YES. The appeal was allowed in part and the claim of the second plaintiff, who is the appellant in this appeal, has been dismissed by the lower Appellate Court. The lower Appellate Court has partially modified the judgment and decree of the Appellate Court by holding that there plaintiff No. 1 is entitled to 5/24 share in all the suit schedule properties. Being aggrieved by the concurrent findings of both the courts, the present appeal is filed by the second plaintiff.
9. I have heard the learned Counsel for the parties.
10. According to the learned Counsel for the appellant, both the courts did not consider the case of the appellant in a proper perspective. Admittedly, when the suit was filed, she was minor. When she was minor, it was the duty of the father (first defendant) to maintain her till she is married and also to bear marriage expenses of the appellant. It is her specific case that after the amendment to the Hindu Succession Act, she is also entitled to claim equal share along with plaintiff No. 1 and the first defendant, since she was not married as on 30th July 1994. Therefore, on these two grounds, she requested this Court to set aside the judgment and decree of both the courts below.
11. According to Sri. B.M. Siddappa, learned Counsel appearing for the Respondents, the courts below were right in rejecting the prayer of the second plaintiff/appellant in regard to the share claimed by her since the suit was instituted on 26-3-1992 and the written statement was filed on 16-3-1993 and that as on the date of filing of the suit, she has no right over the suit property and she cannot be considered a coparcener of the Hindu undivided joint family. Under such circumstances, he requested this Court to dismiss the appeal. Alternatively he contended that according to him/the amended provisions of Hindu Succession Act was not applicable to the case of the appellant since on the date of filing of the said suit, the Act was not enure to the benefit of the appellant.
12. Having heard the learned Counsel for the appellant and learned Counsel for the respondents, this Court is of the opinion that the Judgment and deree of the courts below are required to set aside and the matter is required to be remitted back to the Trial Court for the following reasons:
When the suit was filed, the appellant was a minor, she attained majority after the institution of the suit. Based on the pleadings of the parties, the Trial Court had framed issue No. 2 as hereunder:
Whether the plaintiffs prove that the first defendant is to meet marriage expenses of the second plaintiff, including her maintenance, till her marriage.
While considering this issue, the Trial Court has held the issue in negative; only on the ground that as on the date of consideration of that issue, the appellant had married. Therefore, the Trial Court held that it was not for the first defendant to maintain the appellant/Second plaintiff till her marriage and to meet marriage expenses.
13. Admittedly, the appellant was not married on the date of filing of the suit and if she had married subsequent to the institution of suit or during the pendency of the suit, it was for the first defendant to meet the marriage expenses. If the marriage of the appellant is taken either by borrowing loan or at the costs of others, the same cannot be a ground for the Trial Court to hold issue No. 2 in negative. As a matter of fact, the Trial Court has not assigned any reasons to hold issue No. 2 in the negative. Therefore, on this ground the judgment and decree of the Trial Court has to be set aside since the case of the appellant has also and not considered by the lower appellate Court. This Court has also examined the judgment and decree of the lower Appellate Court. Though this issue was raised by the appellant before the lower Appellate Court, the lower Appellate Court has also not taken into consideration the duty of the father in maintaining the daughter till her marriage and to meet marriage expenses. Since both the courts have failed to consider the case pleaded by the parties and evidence let in by the parties, this Court is of the opinion that both the courts have committed an error in appreciating the evidence. Properly or According to this Court, appreciation of the evidence by the courts below is perverse. Only on this short ground, the judgment and decree of both the courts are required to set aside.
14. At this stage, the learned Counsel for the appellant submits that in view of the amendment to Hindu Succession Act, since the appellant's marriage has taken place subsequent to the amended Act, the appellant is also entitled for the share in all the properties. If it is so, it is for the appellant to make a necessary amendment application before the Trial Court and if such an application is filed, the same has to be considered by the Trial Court in accordance with law.
15. In the result, the appeal is allowed. Judgment and deeree passed in O.S. No. 42/1992 passed by the Civil Judge (Sr.Dn.), Chitradurga, and the judgment and decree passed in R.A. No. 5/ 2002 by the Principal District Judge, Chitradurga dated 29-1 -2002 and 14-8-2003 respectively are hereby set aside so far as the claim of the appellant is concerned and the matter is remitted back to the Trial Court for fresh consideration, in the light of the observations made above.