Karnataka High Court
S Siddagangaiah vs Smt Lalithamma on 7 September, 2012
Author: N.Ananda
Bench: N. Ananda
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 07TH DAY OF SEPTEMBER 2012
BEFORE
THE HON'BLE MR.JUSTICE N. ANANDA
M.F.A. No.3124/2012 (CPC)
BETWEEN:
1. S.Siddagangaiah
S/o Shamanna
Aged about 84 Years.
R/at No.70/Y, 14th Main,
3rd Block, Rajajinagar
Bangalore - 560 010.
2. Smt.Gowramma
D/o S.Siddagangaiah
Aged about 52 Years
R/at No.70/Y, 14th Main
3rd Block, Rajajinagar,
Bangalore - 560 010. ... Appellants
(By Sri V.B.Shiva Kumar, Advocate)
AND:
1. Smt.Lalithamma
D/o late Shamanna
Aged about 67 Years
R/at No.445/H, 9th 'F' Main
2nd Cross, Pipeline, Vijayanagar,
Bangalore - 560 040.
2. Sri Basavarajappa
S/o late Revamma
Aged about 60 Years
R/at Lakshmipura Village
Dasanapura Hobli
Bangalore North Taluk.
2
3. C.Siddagangaiah
S/o Smt.Late Basamma
Aged about 64 Years
R/at Ambalagere Village
Doddabelavengala Hobli
Doddaballapura Taluk
Bangalore Rural District.
4. Smt.Gowramma
D/o late Siddagangamma
Aged about 58 Years
R/at Karadigere Village
Gulur Hobli, Tumkur Taluk.
5. Smt.Munisiddamma
D/o late Smt.Sarvamma,
Aged about 61 Years
Jedahalli, Industrial Town,
Bangalore - 560 044. ... Respondents
(By Sri K.R.Kumar, Advocate for R1; R2 & R3 are served; Sri
V.Rajanna, Advocate for R5/R4)
This appeal is filed under order 43 Rule 1(r) CPC,
against the order dated 01.03.2012, passed on IA.No.1 in
O.S.No.5246/2010, on the file of the XLIII Additional City
Civil and Sessions Judge, Bangalore, allowing IA.No.1 etc.
This appeal coming on for hearing this day, the Court
delivered the following:
JUDGMENT
The learned trial judge has granted an order of Temporary injunction restraining first defendant from alienating plaint 'A' to 'D' schedule properties reading as hereunder:
3SCHEDULE - 'A' All that piece and parcel of the House Property bearing Municipal No.59 (Old No.70/Y) measuring 2100 Sq.Ft. situated at 14th Main, 3rd Block, Ward No.22, Srirama Mandira Ward, Rajajinagar, Bangalore -560 010, consisting of a Residential House of Ground Floor, 1st Floor and 2nd Floor & bounded on East by : Road West by : Apartment No.58, Old No.227/Y North by : Site Old No.71/Y South by : Subramani's Property SCHEDULE - 'B' All that piece and parcel of the land bearing Sy. No.133 measuring 8 Acres situated at Ambalagere Village, Doddabelavangala Hobli, Doddaballapura Taluk, Bangalore Rural District & bounded on East by : Road West by : Sy. No.134 North by : Gundu Thopu South by : Property of Basavaraju SCHEDULE - 'C' All that piece and parcel of the land bearing Sy.No.134 measuring 1 Acre 39 Guntas situated at Ambalagere Village, Doddabelavangala Hobli, Doddaballapura Taluk, Bangalore Rural District & bounded on East by : Sy. No.133 West by : Ramanna's Land North by : Mare Gowda's Land South by : Bramarambike's Land 4 SCHEDULE - 'D' All that piece and parcel of the land bearing Sy.No.48 measuring 4 Acres 24 Guntas situated at Ambalagere Village, Doddabelavangala Hobli, Doddaballapura Taluk, Bangalore Rural District & bounded on East by : Road West by : Honnappa's Land North by : Road South by : Basaiah's Land
2. The admitted relationship between the parties is stated thus:
The first defendant is the son of Late.Shamanna;
plaintiff is the daughter of Late.Shamanna. In other words, plaintiff is the younger sister of first defendant, second defendant is the daughter of first defendant. Defendants
3 to 6 are the descendants of other daughters of Late Shamanna namely Revamma, Basamma, Siddgangamma and Sarvamma.
The suit is filed for partition and separate possession of 'A' to 'D' schedule properties described above. The learned trial judge has granted an order of temporary injunction, restraining I-defendant from alienating suit schedule 5 properties on the ground that there are triable issues in the suit. Therefore, it is necessary to safeguard the interest of plaintiff by restraining first defendant from alienating plaint schedule properties pending disposal of the suit.
3. I have heard Sri.V.B.Shivakumar, learned counsel for first defendant and Sri.K.R.Kumar, learned counsel for plaintiff.
4. It is not disputed by parties that Shamanna died in the year 1952 even before the Hindu Succession Act, 1956, was brought into force.
The documents relied upon by first defendant would disclose that, site described in 'A' schedule property was allotted to second defendant by the Bangalore Development Authority on 04.01.1996 and she has constructed a house.
That plaint 'B' and 'C' schedule properties are granted to first defendant under the Grant Certificates dated 17.02.1972 and plaint 'D' schedule property is the property acquired and left by Late.Shamanna.
65. In a decision reported in JT 2000 (9) SC 516 (in the case of Thimmaiah and Ors. -vs- Ningamma and Anr.) the Supreme Court dealing with the provisions of Section 8 (1) (a), 1 (d) of the Mysore Hindu Women's Right to Property Act, 1933 and the provisions of Hindu Succession Act, 1956 and also Act as amended by 2005 has held:
"21. The impugned deed was executed in 1971, prior to Hiri's death in the same year. By this time, the Hindu Succession Act, 1956 had come into force. The proviso to section 6 of the 1956 Act (considered at greater length later in the judgment) now provides that the deceased's interest in Mitakshara coparcenary property does not devolve by survivorship if the deceased leaves surviving him female relatives specified in Class I of the Schedule. Consequently, the interest of the surviving coparcener to the deceased's coparcenary share, in such a case, no longer survives and his consent to depletion of his interest in joint family property would not, therefore, make a gift of coparcenary property otherwise invalid, valid. Consent in such a case would have to be obtained from all the persons who could claim a share in the deceased coparceners' interest. The appellants 2, 3 and 4 as well as both the respondents are Class I heirs of Hiri. It is not the case of the respondents that the appellants 2, 3 and 4 had consented to the gift. We are, therefore, of the opinion that the finding of the High Court on the validity of the deed of gift dated 9.6.71 is unsustainable and it is accordingly set aside.7
22. The next question is the applicability of Section 8 (1) (d) of the Mysore Act. It may be stated at the outset that while we affirm the conclusions reached as to the shares of the parties, it appears to us that the High Court has misconstrued the provisions of Section 8 (1) (d). Section 8 reads:
"8. Certain females entitled to shares at partition.- (1) (a) At a partition of joint family property between a person and his son or sons, his mother, his unmarried daughters and the widows and unmarried daughters of his predeceased undivided sons and brothers who have left no male issue shall be entitled to share with him.
(b) At a partition of joint family property among brothers, their mother, their unmarried sisters and the widows and unmarried daughters of their predeceased undivided brothers who have left no male issue shall be entitled to share with them.
(c) Sub-sections (a) and (b) shall also apply mutatis mutandis to a partition among other coparceners in a joint family.
(d) Where joint family property passes to a single coparcener by survivorship, it shall so pass subject to the right to shares of the classes of females enumerated in the above sub-sections.
(2) Such share shall be fixed as follows: -
(a) in the case of the widow, one-half of what her husband, if he were alive, would receive as his share;8
(b) in the case of the mother, one-half of the share of a son if she has a son alive, and, in any other case, one- half of what her husband if he were alive, would receive as his share;
(c) in the case of every unmarried daughter or sister, one-fourth of the share of a brother if she has a brother alive, and, in any other case, one-
fourth of what her father, if he were alive, would receive as his share: provided that the share to which a daughter or sister is entitled under this section shall be inclusive of, and not in addition to, the legitimate expenses of her marriage including a reasonable dowry or marriage portion.
(3) In this section, the term "widow" includes, where there are more widows than one of the same person all of them jointly, and the term "mother" includes a step- mother and, where there are both a mother and a step- mother, all of them jointly and the term "son" includes a step-son as also a grandson and a great grandson; and the provisions of this section relating to the mother shall be applicable mutatis mutandis to the paternal grandmother and great grandmother.
(4) Fractional shares of the females as fixed above shall relate to the share of the husband, son, father or brother as the case may be and their value shall be ascertained by treating one share as allotted to the male and assigning therefrom the proper fractional shares to the female relatives.
5. Each of the female relatives referred to in sub- section (1) shall be entitled to have her share separated off and placed in her possession.
9Provisos: - Provided always as follows: -
(i) No female relative shall be entitled to a share in property acquired by a person and referred to in Section 6, so long as he is alive;
(ii) No female whose husband or father is alive shall be entitled to demand a partition as against such husband or father, as the case may be;
(iii) A female entitled to a share in any property in one capacity of relationship shall not be entitled to claim a further or additional share in the same property in any other capacity.
Illustration: A and his son B effect a partition of their family property. A has a mother and two unmarried daughters. Their shares will be as follows: -
Father .. .. 1 Son .. .. 1 Mother .. .. ½ Two daughters .. .. ¼ each
The property will be divided in the above proportion, the father getting 1/3, the son 1/3, the mother 1/6 and each daughter 1/12".
23. Clauses (a), (b), (c) and (d) of Sub- section (1) of Section 8 deal with four separate situations. Clause (a) deals with a partition of joint family between a person and his sons. Clause (b) deals with the partition of joint family property among brothers, Clause (c) applies to a partition among other coparceners in a joint family. Clause (d) provides for a situation where joint family property passes to a single 10 coparcener by survivorship. The female members who have been declared to be entitled to shares are the mother of the concerned coparcener, his unmarried daughters and widows and unmarried daughters of pre- deceased sons and undivided brothers.
24. At this stage, it would be appropriate to refer in detail to relevant portions of Section 6 of the 1956 Act:
"6. Devolution of interest in coparcenary property.- When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act.
Provided that, if the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.
Explanation 1.- For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. Explanation 2 x x x x x x x x"
(Emphasis supplied) 11
25. It is not in dispute that the Mysore Act deals with Hindu Mitakshara coparcenary rights. This is also clear from the definition of 'Hindu' in section 3 (c) of the Mysore Act. Section 4 of the 1956 Act gives overriding effect to the 1956 Act in so far as any law governing Hindus, is inconsistent with the provisions of the 1956 Act. Reading the proviso to section 6 of the 1956 Act with section 8 of the Mysore Act, it is clear that where the female members sought to be protected under Section 8 of the Mysore Act are in fact Class I heirs of a deceased coparcener, his interest in the joint family property cannot pass by survivorship at all. Thus the question of it passing subject to the rights of any class of females under Section 8(1) (d) of the Mysore Act does not also arise. This would mean that Section 8(1) (d) of the Mysore Act has been superseded by the proviso to Section 6 of the 1956 Act to the extent stated.
26. The decision in Gurupad Khandappa Magdum Vs. Hirabai Khandappa Magdum & Ors. [1978 (3) SCR 671] is an authority for the proposition that where a female is entitled to a share in coparcenary property on partition, then by virtue of Explanation I to Section 6 of 1956 Act, she continues to be so entitled despite the fact that no partition may actually have taken place prior to the coparcener's death. This Court held that Explanation I to Section 6 covered a situation where a Hindu coparcener dies without actual partition having taken place. In such event, the Court will have to assume that a partition had in fact taken place immediately prior to the death of the coparcener concerned and grant shares on the basis of such notional partition. This Court also held that the share of the female member on such partition was in addition to any share which she may get as an 12 heir of the deceased coparcener. [See also State of Maharashtra V. Narayan Rao 1985 (3) SCR 358; AIR (1985) SC 716, 721].
27. Reliance by the respondents on the decision of this Court in Gurupad Khandappa Magdum V. Hirabai Khandappa Magdum and Ors. [1978 (3) SCR 671] to contend that the respondents were entitled to shares in the coparcenary property by virtue of Section 8(1) (d) of the Mysore Act is misplaced because as already noted Section 8(1) (d) in terms does not apply in the facts of this case because of the proviso to Section 6 of the 1956 Act.
28. Under Explanation I to Section 6 of the 1956 Act, the Court will have to ascertain what the shares of the parties would be as if Hiri had sought for partition just before his death. The only other coparcener being the appellant No.1, the partition would have to be effected according to Section 8 (1) (a) which provides for partition between a coparcener and his son/sons. Under Section 8 (1) (a) the female members who could claim a share in the coparcenary properties would be Hiri's mother, his unmarried daughter (the respondent no.2) and the widow or unmarried daughters of any predeceased sons or brother. Admittedly, Hiri's mother was not alive in 1971. Nor had Hiri any predeceased son or brother. The sole female member entitled to a share under Section 8(1) (a) therefore is the respondent No.2. The appellant being the other coparcenar would get of the coparcenary properties on partition. In terms of Section 8 (2)
(c) of the Mysore Act, his sister, the respondent no.2 would get her brothers share, namely 1/4th of the coparcenary properties. The remaining interest would belong to Hiri. It has not been disputed before us that under Section 8 of the 13 1956 Act, each of the parties to this appeal is entitled to claim a share in Hiri's interest as his Class I heir. On the basis of the ratio in Gurupad Khandappa Magdums case (supra), the respondent No.2 would also be entitled to a share in Hiri's interest as an heir on intestacy, under Section 8 of the 1956 Act.
29. To sum up: if there were an actual partition of the coparcenary properties between Hiri and his son, under Section 8 (1) (a) of the Mysore Act, his son, the appellant No.1 would get half share. His wife, namely the respondent No.1, and the appellants 2, 3 and 4 would not get any share in the coparcenary property at all. But the respondent No.2 as the unmarried daughter would get a share calculated in terms of Section 8(2) (c) of the Mysore Act, namely, 1/4th of the share of her brother, namely, the appellant No.1 in addition to her share as the heir of Hiri. All the appellants as well as both the respondents are each entitled to an equal share in Hiri's interest as heirs on intestacy. The High Court has, therefore, correctly calculated the shares of the parties and we affirm its conclusion in this regard."
In the case on hand, first defendant has produced documents to show that plaint 'A' schedule property was acquired from Bangalore Development Authority during 1996 and plaint 'B' and 'C' schedule properties were granted to first defendant during the year 1972. Therefore, plaintiff has not made out prima-facie case to restrain first defendant 14 from alienating plaint 'A' to 'D' schedule properties, more particularly, when plaintiff has not produced any documents to prove that plaint 'A' to 'C' schedule properties were acquired and left by Late.Shamanna. In the circumstances, the learned trial judge was not justified in granting injunction in respect of all the suit schedule properties.
6. The learned counsel for plaintiffs relying on a judgment reported in ILR 1991 KAR 1696 (in the case of Annamma -vs- Pattamma) would submit that, in order to safeguard the interest of plaintiff, it is necessary to restrain first defendant from alienating suit schedule properties.
7. The view taken by learned Single Judge of this court in the case of Annamma -vs- Pattamma reported in ILR 1991 KAR 1696 regarding right of plaintiff therein under Section 6 (2) of the Mysore Hindu Women's Right to Property Act, 1933, has been reversed by a Division Bench of this court in ILR 1993 KAR 755. At this juncture, it is relevant to state that decisions reported in ILR 1991 KAR 1696 and 15 ILR 1993 KAR 755 relate to same litigation and same parties.
8. The learned trial judge without recording a finding on existence of prima-facie case has granted an order of Temporary injunction. There is no material to establish that prima-facie plaintiffs have right over 'A' to 'C' schedule properties and there was any connection between acquisition of 'A' to 'C' schedule properties and property ('D' schedule property) held and left by Late.Shamanna.
9. It is not the case of plaintiffs that Late.Shamanna had left considerable property with yielding nucleus, which enabled defendants to acquire 'B' and 'C' schedule properties. At this stage, it cannot be disputed that 'A' schedule property was allotted to second defendant by the Bangalore Development Authority during the year 1996.
10. Considering all these facts, I am of the considered opinion that the learned trial judge did not have justification to grant temporary injunction in respect of 'A' to 'C' schedule properties. The order of temporary injunction restraining 16 first defendant from alienating ''D' schedule property during pendency of suit will definitely take care of interest of plaintiff if she were to succeed in the suit.
11. In the result, I pass the following:
ORDER
i) The appeal is accepted in part.
ii) The order of temporary injunction granted by the trial court in respect of 'A' to 'C' schedule properties is set aside.
iii) The order of temporary injunction granted by the trial court in respect of 'D' schedule property is confirmed.
Sd/-
JUDGE Np/-