Karnataka High Court
Fakirappa S/O Basappa Harti vs Laxmavva @ Yallavva W/O. Basavantappa ... on 4 April, 2017
Bench: B.S Patil, K.Somashekar
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 4th DAY OF APRIL, 2017
PRESENT
THE HON'BLE MR.JUSTICE B.S.PATIL
AND
THE HON'BLE MR.JUSTICE K.SOMASHEKAR
R.F.A. No. 4107/2012 (PAR/POS)
C/W R.F.A. CR. OB. NO. 107/2012
IN R.F.A. No. 4107/2012
BETWEEN:
SRI FAKIRAPPA S/O BASAPPA HARTI,
AGE: 56 YEARS, OCC: AGRICULTURE,
R/O GOPANKOPPA, HUBLI-580 023.
- APPELLANT
(BY SRI. MAHESH WODEYAR AND
NAVEEN CHATRAD, ADVOCATES)
AND:
1. SMT. LAXMAVVA ALIAS YALLAVVA
W/O BASAVANTAPPA DODDUR,
AGE 54 YEARS, OCC.: HOUSEHOLD WORK,
R/O KALAS, TAL: KUNDGOL-580 025.
2. SRI CHANNAPPA S/O BASAPPA HARTI,
AGE 57 YEARS, OCC.: HOUSEHOLD WORK,
R/O KALAS, TAL: KUNDGOL-580 025.
3. MAHADEVAPPA IRAPPA ARALI,
AGE: 48 YEARS, OCC.: AGRICULTURE,
R/O MAIN ROAD, BENGERI,
2
HUBLI-580 023.
4. SRI VENKATESH S/O ASHOK KATWE,
AGE: 25 YEARS, OCC.: BUSINESS,
R/O: BHAVANINAGAR,
HUBLI-580 024.
- RESPONDENTS
(BY SRI. V.M. SHEELAVANT AND
S.H. MITTALKOD, ADVOCATES FOR R1,
SRI PRAKASH K JAWALKAR, ADVOCATE FOR R4,
NOTICES TO R2 & R3 IS SERVED)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF
CPC AND U/S 4 OF THE KARNATAKA HIGH COURT ACT, 1961,
AGAINST THE JUDGMENT AND DECREE DATED 16.04.2012 PASSED
IN O.S. NO. 189/2010 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE & JMFC AT HUBLI, DECREEING THE SUIT FILED FOR
PARTITION & SEPARATE POSSESSION & ETC.
IN R.F.A. CR. OB. No. 107/2012
BETWEEN:
SMT. LAXMAVVA ALIAS YALLAVVA
W/O BASAVANTAPPA DODDUR,
AGE 54 YEARS, OCC.: HOUSEHOLD WORK,
R/O KALAS, TAL: KUNDGOL-581 113,
DIST.: DHARWAD.
- CROSS OBJECTOR
(BY SRI. V.M. SHEELAVANT AND
CHANDRAMOHAN M. KALE, ADVOCATES)
AND
1. SRI FAKIRAPPA S/O BASAPPA HARTI,
AGE: 56 YEARS, OCC: AGRICULTURE,
R/O GOPANKOPPA, HUBLI-580 020,
DIST.: DHARWAD.
3
2. SRI CHANNAPPA S/O BASAPPA HARTI,
AGE 57 YEARS, OCC.: HOUSEHOLD WORK,
R/O GOPANAKOPPA, HUBLI-580 020,
DIST- DHARWAD.
3. MAHADEVAPPA IRAPPA ARALI,
AGE: 49 YEARS, OCC.: AGRICULTURE,
R/O MAIN ROAD, BENGERI,
HUBLI-580 023, DIST. DHARWAD.
4. SRI VENKATESH S/O ASHOK KATWE,
AGE: 26 YEARS, OCC.: BUSINESS,
R/O: BHAVANINAGAR,
HUBLI-580 022,
DIST.: DHARWAD.
5. YOGESH S/O ASHOK HABIB,
AGE: 28 YEARS,
OCC.: AGRI & BUSINESS,
R/O KESHWAPUR, HUBLI-580 023,
DIST.: DHARWAD.
- RESPONDENTS
(BY SRI. MAHESH WODEYAR &
NAVEEN CHATRAD, ADVOCATES FOR R1,
PRAKASH K. JAWALKAR, ADVOCATE FOR R4,
NOTICE TO R2 IS DISPENSED WITH,
NOTICES TO R3 & R5 IS SERVED)
THIS R.F.A. CROSS OBJECTION IS FILED UNDER ORDER XLI
RULE 22 OF THE CPC AGAINST THE JUDGMENT AND DECREE
PASSED DATED 16.04.2012 PASSED ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE AND JMFC, HUBLI, DECREEING THE SUIT
FILED FOR PARTITION & SEPARATE POSSESSION & ETC.
THIS REGULAR FIRST APPEAL AND THE CROSS OBJECTION
COMING ON FOR FINAL HEARING THIS DAY, B.S.PATIL J.,
DELIVERED THE FOLLOWING:
4
JUDGMENT
This regular first appeal is filed under section 96 of code of Civil Procedure by the second defendant in O.S. No. 189/2010 challenging the judgment and decree dated 16.04.2012. By the judgment under challenge suit filed by respondent No.1/ plaintiff Smt. Lakshmi against her two brothers (defendants 1 and 2) and mother (defendant No.3) has been decreed. The plaintiff had impleaded the purchaser of one of the items of the suit schedule property (item No.1) as defendant No.4. She had sought 1/3rd share in the suit schedule three items of the property.
2. Case of the plaintiff is that, her father Basappa inherited the suit schedule properties (all the three items) from his father Channabasappa. Father of the plaintiff Basappa had two sons (defendants 1 and 2) and a daughter (plaintiff). He died on 14.09.2004 leaving behind his widow Neelawwa (defendant No.3) and two sons (defendants 1 and 2) and a daughter (plaintiff). During the lifetime of the father of 5 plaintiff, item No.1 of schedule 'A' property measuring 3 acres 30 guntas being the Northern portion comprised in sy. No. 152/1+2 totally measuring 7 acres 20 guntas situated at Gopanakoppa village, Hubballi Taluk was sold by way of a registered sale deed dated 18.08.1998 in favour of defendant No.4. However, the sale deed was executed by defendants 1 and 2 only and their father Basappa did not join in executing the sale deed. Therefore, it is urged by the plaintiff that the sale deed was not binding on the plaintiff.
It is her further case that during the lifetime of the father he never got effected any changes in the revenue records but it was only defendants 1 and 2, who colluded with each other and created false and bogus entry in ME No. 2863 in the year 1998 without following due procedure and without issuing any notice to the plaintiff or bringing to her knowledge the factum of the said mutation entry. Hence, it was contended that the mutation entry in ME No. 2863 by which names of defendants 1 and 2 were entered in respect of the family properties was not genuine nor was binding on the 6 plaintiff. It is also further urged that such an entry made in the name of defendants 1 and 2 will not create any right over the suit properties and the same will not affect the right of the plaintiff.
It was next contended that defendants 1 and 2 got created a partition dated 28.06.2010 in respect of items 2 and 3 of the suit properties and as the plaintiff and his mother- defendant No.3 were not parties to the said partition deed, the same was neither binding on the plaintiff nor on the interest of defendant No.3-mother. It was further urged by the plaintiff that clandestinely on 19.06.2010 defendant No.2 created an agreement of sale in favour of defendant No.5 agreeing to sell the remaining portion of 3 acres 30 guntas lying to the Southern side of item No.1 of the suit property. The said agreement to sell, it is urged by the plaintiff, was also not binding on the share of the plaintiff.
3. The suit was resisted by filing written statement by defendant No.2. Defendants 1 and 3 have filed a memo 7 adopting the written statement filed by defendant No.2. Defendant No.2 has contended that plaintiff had come up with a false and created story asserting her rights over the suit properties. That defendants 1 and 2 have inherited the entire properties consequent on the death of their father- Basappa and that whatever share mother had in the property had been made over in favour of defendants 1 and 2 by virtue of the family arrangement reflected in the mutation entry bearing ME No. 2863 which was effected during the lifetime of father of defendants 1 and 2. It is their contention that both defendants 1 and 2 had been allotted an extent of 3 acres 30 guntas and 3 acres 32 guntas respectively to the knowledge of the plaintiff as per the partition effected in the year 2010. They have also urged that, by virtue of the sale deed executed on 18.08.1998 family property was validly alienated in favour of defendant No.4 and plaintiff despite having knowledge of the same kept quiet and hence she could not be permitted to challenge the said sale deed by filing a suit in the year 2010. 8 They have denied the assertions made by the plaintiff that she had 1/3rd share in the suit land.
In addition, it has been stated in the written statement by defendant No.2 that plaintiff had gone out of the family about 30 years ago and was living separately from the family of the defendant and that she had been given her dues in terms of gold ornaments, silver articles, family utensils and other amenities including clothes, etc. at the time of her marriage as per the family customs, therefore, she had no rightful claim over the properties that belonged to defendants 1 and 2. Defendants also contended that suit was barred by limitation. Various other contentions were also raised.
4. Based on the pleadings the trial court framed the following issues.
ISSUES
1. Whether the plaintiff proves that the suit schedule properties are the ancestral joint family properties and she is entitled for share by metes and bounds?
2. Whether the plaintiff proves that the defendant Nos.1 and 2 colluded with each other and created false, bogus sale deed in favour of 4th defendant on 18.8.1998? 9
3. Whether the plaintiff proves that the defendant Nos.1 and 2 have created partition deed dated 28.06.2010 in respect of the suit properties?
4. Whether the plaintiff proves that defendant No.2 without any family legal necessity agreed to sell the part of the suit property in favour of the defendant No.5 by executing the agreement to sell dated 19.6.2010?
5. Whether the suit of the plaintiff is barred by limitation?
6. Whether the Court fee paid by the plaintiff is inadequate and improper?
7. Whether the plaintiff is entitled for the relief of partition, declaration as prayed?
8. What order or decree?
---
5. In support of her case plaintiff-Smt. Lakshmi @ Yallawwa Doddar, examined herself as P.W.1. Exs.P.1 to 8 were marked in evidence. For the defendants, Fakirappa- defendant No.2 is examined as D.W.1 and one witness by name Kariappa son of Rayappa Jatteppanavar has been examined as D.W.2. Exs.D.1 to D.10 were produced and marked by the defendants.
6. On consideration of the evidence on record, the trial court has found that plaintiff was able to prove that suit schedule properties were the ancestral joint family property wherein plaintiff was entitled for 1/3 share. Her assertion 10 that defendants 1 and 2 colluded with each other and created a false and bogus sale deed in favour of defendant No.4 on 18.08.1998 has been negatived.
7. The plaintiff's case that there was a partition on 28.06.2010 in respect of the suit properties whereunder defendants 1 and 2 got divided family properties, has been held proved. Issue No.4 regarding family and legal necessity for executing the registered agreement to sell dated 19.06.2010 agreeing to sell part of the suit property, i.e., item no.2 of 'A' schedule property in favour of defendant No5, by defendant No.2 has been held proved. In other words, the agreement to sell has been found to have been executed for family necessity by defendant No.2. In so far as bar of limitation pleaded and sufficiency of Court fee paid as set up by the defendants, the court below has negatived them. Thus, it is held that plaintiff was entitled for the relief of partition of her 1/3rd share in the suit property. 11
8. Plaintiff has filed cross objection, aggrieved by the findings recorded regarding the sale deed dated 18.08.1998 by defendant No.1 in favour of defendant No.4 holding that the same was a genuine one and not a created or bogus document as contended by the plaintiff.
9. We have heard learned counsel for both parties, both on the appeal and the cross objection filed.
10. The trial Court has held that, as the plaintiff was not a party to the partition deed dated 28.06.2010 and as the suit properties were ancestral properties, the said partition was not binding on the rights of the plaintiff. It has also come to the conclusion that Ex.D2 being only a report given to the revenue authorities by the mother of the plaintiff and allegedly by the plaintiff as well and the plaintiff having denied such a report relinquishing her right, the said document could not have the effect of relinquishing the rights of the plaintiff over the family properties. In the opinion of 12 the Court below, no sanctity could be given to such a vardi/report allegedly given by the plaintiff.
11. Learned counsel for the appellant has urged the following contentions;
(a) Admittedly, suit schedule properties are the ancestral properties and father of the plaintiff died on 14.09.2004, before the amendment Act came into force w.e.f. 09.09.2005, by which Section 6 of the Hindu Succession Act was amended. Therefore, the plaintiff could not claim any right as coparcener.
(b) It is contended that as per the judgment rendered by the Apex Court in the case of Prakash and Others Vs Phulavati and Others, AIR 2016 SC 769, co-parcenary rights conferred on the daughters would be available only prospectively i.e. to say w.e.f. 09.09.2005 irrespective of when the daughters were born but subject to the condition that the 13 coparcener concerned was alive as on the date the amended Act came into force.
(c) It is further contended by the learned counsel for the appellant that as the plaintiff had executed the vardi/report along with defendant No.3/ the mother of plaintiff agreeing to give up their share in the family properties in favour of defendants 1 and 2, it was not open for her to claim any right even on the basis of notional partition from out of the share, which would fall to Basappa, her father.
(d) In the alternative, it is urged that as defendant No.3, mother of plaintiff had adopted the written statement filed by defendant No.2 and in this regard admitted the vardi given to the revenue authorities and the right, title and interest given in favour of her sons in the family properties to the extent of her share, plaintiff was not entitled to claim any right in respect of the mother's share and that if the plaintiff had got any share, the same would be only in the share of the father. In other words, learned counsel for the appellant contends 14 that in the notional partition the property has to be divided between Basappa and his two sons out of 1/3rd share that would fall to the share of Basappa; there has to be equal division among two sons, the daughter and the widow of Basappa; the share that falls to the widow will have go to sons as she has admitted by adopting the written statement filed by defendant No.2 that property that fell to her share had been given up in favour of her two sons and therefore what remains would be 1/4th share that had to be again divided among three sharers. Therefore, 1/3rd of 1/4th would cease to 1/12th each.
12. These contentions are strongly refuted by the learned counsel appearing for respondents. He supports the findings recorded by the trial Court except with regard to the validity of alienation made in the year 1988. According to him, alienation made was not for legal necessity and was not with the consent of Basappa and therefore it was not binding on the plaintiff. It is further contended that as defendant No.3, 15 mother of the plaintiff had died without effecting any testamentary or non-testamentary instrument transferring her share in favour of defendant Nos.1 and 2, plaintiff would be entitled to share equally along with defendant Nos.1 and 2 in her share also.
13. Having heard the learned counsel for both parties and on careful consideration of the entire materials on record the points that arise for our consideration are;
(1) Whether the findings recorded and conclusion reached by the trial Court holding that plaintiff was entitled for 1/3rd share in the suit property as all the suit properties were the ancestral properties is in accordance with law particularly keeping in mind the judgment of the Apex Court in the case of Prakash and Others Vs Phulavati and Others, AIR 2016 SC 769?
(2) In the alternative, whether the plaintiff is entitled to share equally along with defendants in respect of the share of defendant No.3/mother of the 16 plaintiff apart from succeeding to the share of the father in the notional partition to be effected? (3) What order?
14. It is well established by virtue of the judgment of the Apex Court in the case of Prakash and Others Vs Phulavati and Others, AIR 2016 SC 769, that coparcenary rights are available in favour of living daughters and living coparcener as on 9.9.2005 irrespective of the date on which the daughters were born. It is further laid down in the said judgment that disposition or alienation including partition which had taken place earlier to 20.12.2004, as per the law applicable prior to the said date, will remain unaffected and transaction of partition effected thereafter will be governed by the explanation.
15. In paragraphs 18, 21 to 23 of the aforesaid judgment the Apex Court has laid down the law succinctly as under;
18. The contention of the respondents that the amendment should be read at retrospective being a piece of social legislation cannot be 17 accepted. Even a social legislation cannot be accepted. Even a social legislation cannot be given retrospective effect unless so provided for or so intended by the legislature. In the present case, the legislature has expressly made the amendment applicable on an from its commencement and only if death of the coparcener in question is after the amendment. Thus, no other interpretation is possible in view of the express language of the statute. The proviso keeping dispositions or alienations or partitions prior to 20-12-2004 unaffected can also not lead to the inference that the daughter could be a coparcener prior to the commencement of the act. The proviso only means that the transactions not covered thereby will not affect the extent of coparcenery property which may be available when the main provision is applicable. Similarly, Explanation has to be read harmoniously with the substantive provision of Section 6(5) by being limited to a transaction of partition effected after 20-12-2004. Notional partition, by it very nature, is not covered either under the proviso or under sub-section (5) or under the Explanation.
21. Normal rule is that a proviso excepts something out of the enactment which would otherwise be within the purview of the enactment but it the text, context or purpose so require a different rule may apply. Similarly, an explanation is to explain the meaning of words of the section but if the language or purpose so require, the explanation can be so interpreted. Rules of interpretation of statutes are useful servants but difficult master. Object of 18 interpretation is to discover the intention of legislature.
22. In this background, we find that the proviso to Section 6(1) and sub-section (5) of Section 6 clearly intend to exclude the transactions referred to therein which may have taken place prior to 20-12-2004 on which date the Bill was introduced. Explanation cannot permit reopening of partitions which were valid when effected. Object of giving finality to transactions prior to 20-12-2004 is not to make the main provision retrospective in any manner. The object is that by fake transactions available property at the introduction of the Bill is not taken away and remain available as and when right conferred by the statute becomes available and is to be enforced. Main provision of the amendment in Sections 6(1) and (3) is not in any manner intended to be affected but strengthened in this way. Settled principles governing such transactions relied upon by the appellants are not intended to be done away with for period prior to 20-12-2004. In no case statutory notional partition even after 20-12- 2004 could be covered by the Explanation or the proviso in question.
23. Accordingly, we hold that the rights under the amendment are applicable to living daughters of living coparceners as on 9-9-2005 irrespective of when such daughters are born. Disposition or alienation including partitions which may have taken place before 20-12-2004 as per law applicable prior to the said date will remain unaffected. Any transaction of partition 19 effected thereafter will be governed by the Explanation.
16. The Apex Court has thus emphasized that the amending provision to Section 6 of Hindu Succession Act is prospective. The tenor and text of the amendment itself discloses that right conferred on a 'daughter of a coparcener' who is member of coparcenery is from the commencement of the Act and father should be alive on the date of the amendment. In the instant case, father of the plaintiff died on 14.09.2004. The Act came into force on 09.09.2005. Therefore, as on the date the Act came into force father of the coparcener was not alive. Hence, the daughter/ plaintiff could not claim benefit of status of coparcener and the coparcenery rights. Similarly, Ex.P6, sale deed executed on 18.08.1998 by defendants 1 and 2, whereunder one of the family properties has been sold in favour of defendant No.4 can not be said to have been vitiated. Neither the father of the plaintiff nor the other brother or for that matter the mother of the plaintiff herself had raised any objection for the sale transaction. It is only 20 after a lapse of 12 years from the date of execution of the sale deed, plaintiff has filed the present suit making a grievance regarding the alienation made, contending that it was not binding on her. It is relevant to note here that admittedly, the property alienated was an ancestral property. During the lifetime of the father of the plaintiff, plaintiff had no right over the same. She had no right to object for execution of the sale deed. The findings of the Court below are also that the sale deed was executed for legal necessity. Hence, question of plaintiff laying any challenge to the validity of the sale deed Ex.P6 does not arise. As the properties are ancestral properties and plaintiff had no right to claim coparcernary right in the family properties, her right is limited and restricted to claim share that could be allotted to her father Basappa in a notional partition. In the notional partition, Basappa would have got 1/3rd share from out of item Nos.2 and 3 in schedule 'A' property and also in schedule 'B' property (house property).
21
17. If partition had taken place during the lifetime of Basappa, Basappa would have got 1/3rd share and from out of 1/3rd share, his three children and his widow would have got equally i.e. 1/4th each out of 1/3rd. Thus, daughter/ plaintiff would be entitled to 1/12th share in item Nos.2 & 3 of schedule A property. Therefore, plaintiff is entitled to succeed only to this extent.
18. Accordingly, the suit is partly decreed and the cross- objection filed is dismissed.
19. At this stage, learned counsel for both parties submit on instructions that share of the plaintiff could be earmarked and once for all the dispute could be put an end to. Learned counsel for the appellant/defendant No.2 and learned counsel for the plaintiff/respondent No.1 herein have kept their parties present.
20. It is brought to the notice of the Court that defendant No.1/respondent No.2 herein Sri.Channappa has taken his 22 share of the property which is described in Item No.1 and which was the subject-mater of Ex.P2-sale deed. We have held that Ex.P6-sale deed is not affected and is binding. In this proceeding, defendant No.1/respondent No.2 has not entered appearance and has not contested this case. Out of the other two respondents namely Sri. Mahadevappa Irappa Arali and Sri. Venkatesh respondents 3 and 4 respectively, respondent No.3 is the purchaser under Ex.P6 sale deed dated 18.08.1998. His interest is safeguarded as the said sale deed is held valid and binding. Insofar as respondent No.4 is concerned, namely Venkatesh, he claims to be the intending purchaser under the agreement of sale dated 19.06.2010 as per Ex.P7. We have held that this agreement having been entered after the Act came into force it cannot bind the interest of the plaintiff, at any rate, now before this Court Fakirappa-defendant No.2/appellant herein is present and son of plaintiff/respondednt No.1-Smt. Laxmavva namely Anand is also present. Mr. Anand who represents his mother submits to the Court that as this Court has decreed 1/12th 23 share of plaintiff-Laxmavva, she may be granted 15 guntas of land in the portion of agricultural land comprised in Survey No.152/1+2 measuring 3 acres 13 guntas described in Item No.2. It is submitted by counsel for the plaintiff and Mr. Anand that plaintiff will be satisfied if 15 guntas of land in the uncoverted portion of the aforesaid land as specified in the sketch annexed to the memo filed today into the Court is allotted to her share and if she is put in possession of the same.
21. It is submitted by the learned counsel for the plaintiff/respondent No.1 on instructions from his client and also from Sri.Anand - son of plaintiff that 15 guntas of agricultural land shown with letters "ABCD" in the sketch annexed to the memo could be allotted in full and final settlement of her entire claim of plaintiff. In response to this, learned counsel for the appellant-defendant No.2 Fakirappa who is also present in the Court submits through his counsel Sri. Mahesh Wadeyar that the proposal is acceptable to him. 24 He has also filed a memo in this regard agreeing to the proposal. The memo is duly signed by Fakirappa and his learned counsel. It is made clear that both of them have agreed that there shall be no other claim including in the house property and the present arrangement would satisfy the claim of the plaintiff fully. In the light of the consent expressed by both parties and their counsel, by placing the memo filed by them on record, we proceed to pass the following judgment:-
22. The appeal is partly allowed in the following terms:-
(1) The plaintiff is entitled for allotment of 15 guntas of agricultural land shown in letters "ABCD" in the sketch enclosed to the memo, which shall be part of the decree.
(2) The plaintiff shall be put in possession of the said portion and in this regard we direct the trial Court to appoint the Assistant Director of Land Records, who shall survey and earmark 15 guntas of land as indicated in the sketch annexed 25 to the memo and put the plaintiff in possession of the same after issuing notice to both the parties.
(3) The ADLR shall report to this Court the survey conducted and the factum of putting the plaintiff-respondent herein in possession. Both parties have agreed that the ADLR may also put the plaintiff in possession of the identified portion as per the sketch annexed to the memo.
(4) There shall be no other claim by the plaintiff in respect of any other part of the suit schedule properties including the house property.
The assurance given by the learned counsel for both the parties that they will also place before the Registry affidavits duly sworn by plaintiff and defendant No.2 reiterating the terms agreed is placed on record.
Sd/-
JUDGE Sd/-
JUDGE Bvv (upto para 8) msr/alb