Karnataka High Court
Nimbavva S/O Basalingayya Hiremath vs Channaveerayya S/O Gurushantayya ... on 26 August, 2013
Author: K.L. Manjunath
Bench: K.L. Manjunath
®
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 26th DAY OF AUGUST 2013
PRESENT
THE HON'BLE MR. JUSTICE K.L. MANJUNATH
AND
THE HON'BLE MR. JUSTICE S.N. SATYANARAYANA
REGULAR FIRST APPEAL NO.4150/2012
C/W REGULAR FIRST APPEAL NO.4025/2013
IN RFA NO.4150/2012
BETWEEN:
1. NIMBAVVA S/O BASALINGAYYA HIREMATH
AGE: 67 YRS, OCC: HOUSEHOLD,
R/O SINGAPUR, TQ: SHIGGAON,
DIST: HAVERI. 580 001.
2. SMT. MAHADEVAKKA
W/O CHANNABASAYYA HIREMATH
AGE: 64 YEARS, OCC: HOUSEHOLD,
R/O GUTTAL, TQ:DIST: HAVERI. 580 001
3. SMT. CHANNAVVA W/O VEERAYYA HIREMATH
AGE: 62 YEARS, OCC: HOUSELHOLD,
R/O GURUVINAHALLI, TQ: KUNDGOL,
DIST: HAVERI. 580 001
4. SMT. MAHANANDAVVA
W/O SHEKHARAYYA HIREMATH
AGE: 62 YEARS, OCC: HOUSELHOLD,
R/O MASANKATTI, TQ: HANGAL,
DIST: HAVERI. 580 001
.. APPELLANTS
(BY SRI. N.S. KINI, ADV.)
2
AND:
1. CHANNAVEERAYYA S/O GURUSHANTAYYA
GURULINGADEVARAMATH @ MATHAD,
AGE: 60 YEARS, OCC: AGRIL.
AND BUSINESS, R/O IJARILAKAMAPUR,
TQ:DIST: HAVERI. 580 001
2. MURUGESH S/O CHIDANANDAYYA
GURULINGADEVARAMATH @ MATHAD,
AGE: 37 YEARS, OCC: GOVT. SERVICE,
R/O IJARILAKAMAPUR,
TQ: DIST: HAVERI. 580 001.
3. SHIVAYOGEYYA @ SHIVAYOGI
S/O CHIDANANDAYYA
GURULINGADEVARAMATH @ MATHAD,
AGE: 35 YEARS, OCC: PVT. SERVICE,
R/O IJARILAKAMAPUR, TQ: DIST: HAVERI. 580 001.
4. SMT. PUTTAVVA W/O RUDRAYYA GANJIGATTI
AGE: 30 YEARS, OCC: HOUSEHOLD,
R/O GANGAVATI, DIST KOPPAL.
C/O R. M. GANJIGATTI, APP,
GANGAVATI, DIST: KOPPAL. 580 001
5. SMT. RATNAVVA W/O CHIDANANDAYYA
GURULINGADEVARAMATH @ MATHAD,
R/O 64 YEARS, OCC: HOUSEHOLD,
R/O IJARILAKAMAPUR,
TQ:DIST: HAVERI. 580 001
6. GIRIJAMMA W/O CHANDRASHEKARAYYA @
CHANDRASHEKAR SHASHTRI
GURULINGADEVARAMATH
AGE: 72 YEARS, OCC: HOUSEHOLD,
R/O IJARILAKAMAPUR,
TQ:DIST: HAVERI. 580 001
7. SMT. VIJAYA
W/O SHANKARAYYA PRABHUSWAMIMATH
AGE: 47 YEARS, OCC: HOUSELHOLD,
3
R/O HATTIMATTUR, TQ: SAVANUR,
DIST: HAVERI. C/O SHANKARAYYA
PRABHUSWAMIMATH, LECTURER,
GOVERNMENT JUNIOR COLLEGE,
HATTIMATTUR, TQ: SAVANUR,
DIST: HAVERI. 580 001
8. SMT. UMADEVI
W/O SHIDDAYYA KADADEVARAMATH,
AGE: 45 YEARS, OCC: HOUSEHOLD,
R/O OPP. BUS STAND, KADADEVARAMATH
TQ: NARAGUND, DIST: HAVERI. 580 001.
9. SMT. SUJATA W/O SHIDDALINGAYYA CHOWKIMATH
AGE: 53 YEARS, OCC: HOUSEHOLD,
R/O NEAR HIREMATH HOSPITAL,
ASHWINI NAGAR, HAVERI. 580 001.
.. RESPONDENTS
(BY SRI. N.P. VIVEKMEHTA, ADV. FOR R1 TO R9)
THIS RFA FILED U/S.96 OF CPC, AGAINST THE
JUDGMENT AND DECREE DTD:12.07.2012 PASSED IN O.S.
NO.45/2010 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE,
HAVERI, PARTLY DECREEING THE SUIT FILED FOR PARTITION
AND SEPARATE POSSESSION.
IN RFA NO.4025 OF 2013
BETWEEN
1. CHANNAVEERAYYA S/O. GURUSHANTAYYA
GURULINGDEVAMATH
@ MATHAD, AGE: 60 YEARS,
OCC: AGRICULTURE
R/O. IJARILAKAMPUR,
TQ & DIST: HAVERI
2. MURGESH
S/O. CHIDANANDAYA GURULINGDEVAMATH
@ MATHAD, AGE: 37 YEARS,
OCC: AGRICULTURE
R/O. IJARILAKAMPUR
4
TQ & DIST: HAVERI
3. SHIVAYOGEYYA S/O. CHIDANANDAYYA
GURULINGDEVAMATH
@ MATHAD, AGE: 34 YEARS,
OCC: AGRICULTURE
R/O. IJARILAKAMPUR
TQ & DIST: HAVERI
4. PUTTAVVA W/O. RUDARAYYA GANJIGATTI
AGE: 30 YEARS, OCC: HOUSEHOLD WORK
C/O. R.M. GANGATTI, APP,
R/O. GANGAVATI, DIST:KOPPAL
5. RATANAVVA W/O. CHIDANANDAYYA
GURULINGDEVAMATH @ MATHD
AGE: 64 YEARS, OCC: HOUSEHOLD WORK
R/O. IJARILAKAMPUR TQ & DIST: HAVERI
6. GIRIJAMMA W/O. CHANDRASHEKARAYYA
@ CHANDRASHEKHARAYYA SHATRI
GURULINGDEVAMATH @ MATHAD,
AGE: 70 YEARS, OCC: AGRICULTURE
R/O. IJARILAKAMPUR TQ & DIST: HAVERI
7. VIJAYA W/O. SHANKRAYYA PRABHUSWAMIMATH
AGE: 47 YEARS, OCC: HOUSEHOLD WORK
C/O. SHANKARAYYA PARBHUSWAMIMATH
OCC: LECTURER, GOVT. JUNIOR COLLEGE
R/O. HATTIMATTUR, TQ: SAVANUR
DIST: HAVERI
8. UMADEVI W/O. SHIDDAYYA KADADEVRMATH
AGE: 45 YEARS, OCC: HOUSEHOLD WORK
R/O. OPP. BUS STAND, KADADEVRMATH
NARAGUND, DIST: DHARWAD
9. SUJATHA
W/O. SHIDDALINGAYYA CHOWKIMATH
OCC: HOUSEHOLD WORK
R/O. NEAR HIREMATH HOSPITAL
ASHAWINI NAGAR, HAVERI
...APPELLANTS
5
(By Sri.N P VIVEKMEHTA. ADV.)
AND
1. NIMBAVVA W/O. BASALINGAPPA HIREAMATH
AGE: 69 YEARS, OCC:HOUSEHOLD WORK
R/O. SINGAPUR, TQ: SHIGGAON
DIST: HAVERI
2. MAHADEVAKKA W/O. CHANNABASAYYA HIREMATH
AGE: 66 YEARS, OCC: HOUSEHOLD WORK
R/O. GUTTAL, TQ & DIST: HAVERI
3. CHANNAVVA W/O. VEERAYYA HIREMATH
AGE: 64 YEARS, OCC: HOUSEHOLD WORK
R/O. GURAVINAHALLI, TQ: GUNDAGOL,
DIST: DHARWAD
4. MAHANANDAVVA W/O. SHEKHARAYYA HIREMATH
AGE: 62 YEARS, OCC: HOUSEHOLD WORK
NOW R/AT: SAMANGAON ROAD,
NEAR DIPLOMA COLLEGE, NASIK ROAD
NASIK, MAHARASHTRA
... RESPONDENTS
(By Sri. SURESH N KINI, ADV.)
THIS RFA FILED U/S. 96 R/W. ORDER 41 RULE 1 OF CPC
1908, AGAINST THE JUDGMENT AND DECREE DTD:12.07.2012
PASSED IN O.S.NO.45/2010 ON THE FILE OF THE ADDL.
SENIOR CIVIL JUDGE, HAVERI, PARTLY DECREEING THE SUIT
FILED FOR PARTITION AND SEPARATE POSSESSION.
THESE RFAs COMING ON FOR ORDERS THIS DAY,
K.L. MANJUNATH J., DELIVERED THE FOLLOWING :
6
JUDGMENT
By consent of both the counsel for the parties, the appeals are heard together.
2. RFA No.4150/2012 is filed by the plaintiffs and RFA No.4025/2013 is filed by defendants 1 to 9 in O.S. No.45/2010 before the Senior Civil Judge, Haveri.
3. For the sake of convenience, the parties would be referred to as per their status before the Court below.
4. Plaintiffs 1 to 4 are the married daughters of one Gurushantayya and Gurushantavva. Gurushantayya died intestate on 04/01/1974. Defendant No.1 is the 3rd son of Gurushantayya and Gurushantavva. Defendant No.5 is the widow of second son of Gurushantayya by name Chidanandayya and defendant Nos.2 to 4 are the children born to Chidanandayya and Ratnavva. Defendant No.6 is the widow of one Chandrashekarayya and defendants 7 to 9 are the children born to Chandrashekarayya and Girijamma.
7
5. The plaintiffs filed the suit for partition and separate possession claiming 1/7th share each in the suit schedule properties. According to them, deceased Chandrashekarayya, Chidanandayya, defendant Channaveerayya and plaintiffs are the children born to Gurushantayya and Gurushantavva and after the death of their parents, plaintiffs along with defendants 1 to 9 are entitled to claim equal share and that each of the plaintiffs are entitled to 1/7th share in the suit schedule properties. The suit schedule properties are described as 3 landed properties bearing R.S.No.2/3A, 2/3B and 2/3C situate at Ijarilakamapur village, Haveri taluk. Schedule "B" property is an ancestral family dwelling house.
6. The defendants contested the suit. They admitted the relationship between the plaintiffs and them. According to them, the plaintiffs are not entitled to claim any share in the suit schedule properties since plaint "A" schedule properties are agricultural lands and their father was a tenant of those lands and after the death of their 8 father Gurushantayya, Form No.7 under Section 48-A of the Karnataka Land Reforms Act came to be filed and the same has been granted in favour of the sons of late Gurushantayya and that the plaintiffs being the daughters are not entitled to claim any share in the tenanted lands and they also cannot claim any share in the family dwelling house. Therefore, they requested the Court do dismiss the suit.
7. Based on the above pleadings, the following issues were framed by the Court below:
"1.Whether plaintiffs prove that, the suit schedule 'A' properties were granted in favour of joint family by the land tribunal, Haveri?
2. Whether plaintiffs prove that, themselves and defendants are joint owner and joint possessor of suit schedule properties?
3. Whether defendants proves that, the description of suit schedule 'B' properties is incorrect?9
4. Whether defendants proves that, this court has no pecuniary jurisdiction to try the suit?
5. Whether defendants proves that, the plaintiffs are not entitle the relief of partition as per provision of Hindu Succession Act-2005?
6. Whether plaintiffs are entitled the relief of partition and separate possession?
7. Whether plaintiffs are entitled 1/7th share in suit schedule properties?
8. What order or decree?"
8. In order to prove their respective contentions, first plaintiff got examined herself as PW-1 and she relied upon Exs.P1 to P-12. First defendant got examined himself as DW-1 and he relied upon Exs.D-1 to D-10.
9. The trial Court after considering the entire evidence let in by the parties, held issue Nos.1, 2 and 5 in the affirmative, issue Nos.3 and 4 in the negative and issue Nos.6 and 7 partly in the affirmative and ultimately the suit came to be decreed holding that the plaintiffs put together are entitled to 1/7th share in schedule "A" 10 properties and dismissed the suit in respect of plaint "B" schedule properties. Challenging the legality and correctness of the judgment in granting 1/7th share in plaint "A" schedule properties to the plaintiffs put together, the defendants have filed RFA No.4025/2013. Similarly, the plaintiffs being not satisfied with the share allotted to them by the Court below, filed a separate appeal stating that each one of them were entitled for 1/7th share in both "A" and "B" schedule properties. In the circumstances, we have heard both the appeals together.
10. According to Mr. Mehta, the suit filed by the plaintiffs was not maintainable both in respect of "A and B"
schedule properties. According to him, plaint "A" schedule were tenanted lands of Gurushantayya who died prior to Karnataka Land Reforms Amended Act, 1974, came into force. The Karnataka Land Reforms Act has come into force with effect from 01/03/1974. As on the date of enforcement of the said act, father Gurushantayya was not alive and Form No.7 was filed by Chandrashekarayya who 11 was the eldest son of Gurushantayya-husband of defendant No.6 and father of defendants 7 to 9 on behalf of his two brothers Chidanandayya-husband of defendant No.5 and father of defendants 2 to 4 and Channaveerayya-
defendant No.1. The Tribunal considering the application filed by the eldest son of Gurushantayya, granted occupancy rights which order has enured to the benefit of late Chandrashekarayya, Chidanandayya and first defendant Channaveeraya. According to him, as per the provisions of the Karnataka Land Reforms Act, married daughters have no right to claim any right over the tenanted land. To support his view, he has relied upon the judgments of this Court in the case of KAMALA Vs. LINGAMMA HENGSU reported in Kar.L.J.-2002-2-456 and in the case of NARAYANA AND OTHERS VS. THE LAND TRIBUNAL(IV), MANGALORE AND OTHERS . Relying upon these two decisions, he submits that grant of share in plaint "A" schedule properties to the plaintiffs is illegal and incorrect and liable to be set aside.12
11. Per contra, Mr. Kini, learned counsel appearing for the plaintiffs submits that since Gurushantayya died on 04/01/1974 intestate, in view of amendment to Hindu Succession Act, daughters are entitled to equal share on par with the sons. In addition to that he submits that denial of share to the plaintiffs by the trial Court in respect of the family dwelling house is also incorrect as the plaintiffs being the coparceners, are entitled to claim equal share.
12. Per contra, learned counsel of the defendants submits that in view of Section 23 of the Hindu Succession Act, the plaintiffs are debarred from seeking any share in family dwelling house. In the circumstances, he requests to dismiss the appeal of the plaintiffs.
13. Having heard the learned counsel for the parties, we have to consider the following points in these two appeals:
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1. Whether the suit filed by the plaintiffs claiming equal share in both plaint "A" and "B"
schedule properties was maintainable?
2. Whether the share allotted by the trial Court is required to be interfered with?
14. Having heard the learned counsel for the parties, we are of the view that there is no necessity to traverse the oral evidence let in by the parties because both the parties have admitted the following facts in the appeals.
15. According to them, the plaintiffs are the daughters of Gurushantayya, who died on 04/01/1974. It is also not in dispute that Gurushantaya was cultivating plaint "A" schedule properties as a tenant. After his death, in view of the provisions of the Karnataka Land Reforms Act, 1961, the eldest son of Gurushantayya filed an application for grant of tenancy rights in his favour for the benefit of his brothers and him. It is also not in dispute that occupancy right has been granted to him by the Land 14 Tribunal. The nature of the plaint "B" schedule property is also not in dispute. It is a family dwelling house of the 3 sons of late Gurushantayya. The plaintiffs-who are married are living separately at different places along with their spouses.
16. The actual dispute is whether the married daughters are entitled to claim share after the death of their father in respect of the tenanted lands of their father and whether can they claim a share in respect of the family dwelling house in view of the Hindu Succession Act, 1956.
17. So far as the first point is concerned, Section 2(12) of the Karnataka Land Reforms Act defines "Family" as under:
2(12) "Family" means-
(a) in the case of an individual who has a spouse or spouses, such individual, the spouse or spouses and their minor sons and unmarried daughters, if any;15
(b) in the case of an individual who has no spouse, such individual and his or her minor sons and unmarried daughters;
(c) in the case of an individual who is a divorced person and who has not remarried, such individual and his minor sons and unmarried daughters, whether in his custody or not; and
(d) where an individual and his or her spouse are both dead, their minor sons and unmarried daughters."
By looking into the definition of family, it includes only the spouse, minor sons and un-married daughters. At no place, "married daughters" finds a place under the Karnataka Land Reforms Act.
18. Section 24 of the Karnataka Land Reforms Act reads as hereunder:
" 24. Rights of tenant to be heritable: Where a tenant dies, the landlord shall be deemed to have continued the tenancy to the heirs of such tenant on the same terms and conditions on which such tenant was holding at the time of his death."16
19. On perusal of Section 24 of the Act read with the definition of family, it is clear that married daughter cannot claim share in respect of tenanted land. The question whether the married daughters can claim a share in respect of a tenanted land of their father is decided by this Court in Kamala vs.Lingamma Hengsu reported in 2002(2) K.L.J., 456, wherein it is held that only the family members as defined in the Karnataka Land Reforms Act are entitled for inheritance by way of succession after the death of their father. The legal position in regard to the right of a married daughter to claim a share in respect of a tenanted land of her father cannot be disputed by the plaintiff's counsel. We would have agreed with the contentions urged by Mr. Kini that the plaintiffs are entitled to equal share on par with the sons when the father died intestate provided there is a heritable right to them under the Act. Karnataka Land Reforms Act is a special enactment which has been enacted for the benefit of cultivator, the same cannot be deviated by this Court by applying the provisions of Hindu Succession Act. 17
20. In the circumstances, we are of the view that when a married daughter is excluded under the definition of "family" under the Karnataka Land Reforms Act, and more particularly in the back ground of Section 24 of the Act, the trial Court has committed an error in considering the right that as per the notional partition, the plaintiffs are entitled to claim a share along with their brothers out of the share of their deceased father.
21. In view of the fore going discussions we are of the view that suit filed by the plaintiffs claiming share in the tenanted lands of the father is not maintainable and the judgment and decree of the trial court has to be set aside.
22. So far as second point is concerned, the contention of the learned counsel for the defendant that in view of Section 23 of the Hindu Succession Act, the plaintiffs are not entitled for a share in the family dwelling house has to be rejected because Section 23 of the Hindu 18 Succession Act has been repealed with effect from 09.09.2005 under the Hindu Succession (Amendment) Act, 2005( 39 of 2005) when there is no bar to claim a share after the death of their father, the finding of the trial Court that plaintiffs are not entitled to a share has to be set aside. According to us, each of the plaintiffs are entitled to 1/7th share in schedule "B" property.
In the result, the appeal filed by the plaintiffs in RFA No.4150/2012 is allowed in part. Similarly RFA No.4025/2013 filed by the defendants is also allowed in part. Consequently, the judgment and decree passed by the Senior Civil Judge, Haveri, in O.S.No.45/2010 dated 12th July, 2012 is hereby set aside and modified as hereunder:
A. The suit filed by the plaintiffs for partition and separate possession of plaint "A" schedule properties i.e., 3 landed properties, is dismissed.
B. Each of the plaintiffs is entitled to 1/7th share in the plaint "B" schedule-family dwelling house.19
c. Parties to bear their own costs.
Registry is directed to draw the modified decree accordingly.
Sd/-
JUDGE Sd/-
JUDGE kmv