Karnataka High Court
Mahendra Swamy vs Basavarajappa Dead By Lr'S on 22 November, 2012
Author: Anand Byrareddy
Bench: Anand Byrareddy
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 22nd DAY OF NOVEMBER 2012
BEFORE
THE HON'BLE MR. JUSTICE ANAND BYRAREDDY
REGULAR FIRST APPEAL No.814 OF 2003
BETWEEN:
1. Mahendra Swamy,
Son of Late Marisiddaiah,
Aged about 23 years,
2. Manjula,
Aged about 21 years,
Daughter of Late Marisiddaiah,
3. Puttadevamma @ Thayamma,
Wife of Late Marisiddaiah,
Aged about 50 years,
All are residents of
Booduguppe Village,
Kasaba Hobli,
Maddur Taluk,
Mandya District. ...APPELLANTS
(By Shri. M. Shivappa, Senior Advocate)
2
AND:
1. Basavarajappa,
Dead by legal representatives,
a) Puttalingamma,
Wife of Mahadevappa,
Aged about 50 years,
Resident of Boppasamudra Village,
Menasinakere Post,
C.A.Kere Hobli,
Maddur Taluk.
b) Shivabasavaiah,
Son of Late Basavarajappa,
Aged about 46 years,
Resident of Boodaguppe,
Kasaba Hobli, Maddur Taluk,
Alur Post.
c) Shivamma,
Wife of Channappa,
Daughter of Late Basavarajappa,
Resident of Hunjinakere,
Arakere Hobli,
Alagudu Post,
S.R.Patna Taluk,
Mandya District.
d) Shivakumar,
Son of Late Basavarajappa,
Resident of Boodaguppe,
Major, Kasaba Hobli,
Alur Post,
Maddur Taluk.
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e) Gowramma,
Wife of Nagalingaiah,
Daughter of Late Basavarajappa,
Major, resident of Bidara Kote,
Bidara Kote Post,
Koppa Hobli,
Maddur Taluk.
f) Bhagyamma,
Daughter of Late Basavarajappa,
Major,
Resident of Boodaguppe Village,
Kasaba Hobli,
Alur Post,
Maddur Taluk. ...RESPONDENTS
(By Smt. Deepashree, Advocate )
******
This Regular First Appeal is filed under Section 96 of the
Code of Civil Procedure, 1908, against the judgment and decree
dated 11.4.2003 passed in O.S.No.55/2000 on the file of the Civil
Judge (Sr. Dn.), Maddur, dismissing the suit for partition and
separate possession.
This Appeal, having been heard and reserved on 07.11.2012
and coming on for Pronouncement of Judgment this day, the court
delivered the following:
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JUDGMENT
This appeal is filed by the plaintiffs.
The parties are referred to by their rank before the trial court for the sake of convenience.
2. The facts of the case are as follows:
Plaintiffs 1 and 2 are the children of one Marisiddaiah and plaintiff no.3, who is the widow of Marisiddaiah. The genealogical tree under which the plaintiffs' claim is as under:-
Basavaiah @ Basappa (Deceased) = Madamma (D-1) Marisiddaiah (Deceased) Madamma @ Sannamma (D-2) Puttadevamma Basavarajappa (D-3) @ (Thayamma (P-3) Mahendra Swamy (P-1) Manjula (P-2) 5 It was their case that Basavaiah, the propositus and Marisiddaiah constituted a Hindu Coparcenery. Defendant no.1 is the widow of Basavaiah, defendant no.2 is her daughter and defendant no.3 is her son-in-law. Defendant no.2 was married much prior to the suit.
It was the case of the plaintiffs that defendant no.2 had been married much prior to 1956 and even before the death of Basavaiah, who is said to have died in the year 1952. Therefore, defendant no.1, Marisiddaiah and plaintiffs 2 and 3 constituted a Hindu Undivided Joint family. Marisiddaiah in turn, had died in the year 1991, leaving behind the plaintiffs and defendant no.1. Hence, it is claimed that plaintiffs and defendant no.1 are class-I heirs of Marisiddaiah. The properties described in the suit schedule are said to be the ancestral and joint family properties of Basavaiah, Marisiddaiah and plaintiff no.1. Basavaiah had died intestate and as an undivided member of the family. Marisiddaiah and defendant no.1, along with the plaintiffs, had succeeded to the suit properties, which continued to be joint family properties. It 6 was contended that the defendants have no right over the suit properties. They were not the members of the family. On Basavaiah's death, defendant no.1 had no right to represent the family. However, she had executed a gift deed dated 20.12.1976 in respect of a portion of the suit property. The plaintiffs were not parties to the said deed and the plaintiffs remained unaware of the said deed till about one year prior to the suit. It was only when defendants 2 and 3, were said to have made an attempt to occupy the suit properties, that the deed come to light and it was also discovered that the revenue entries had been made in favour of defendant no.2 on the basis of the said gift deed and therefore, the plaintiffs having disputed the right of the first defendant to have executed a gift deed in favour of defendant no.2, have questioned the same in the present suit, seeking a declaration that the gift deed was ab initio and for partition and separate possession of the plaintiffs' share in the suit properties by metes and bounds and for settlement of accounts and other reliefs. 7
The suit was contested by the defendants, who had filed their written statement, to contend that the genealogical tree furnished by the plaintiffs was admitted and the relationship of the parties was admitted, but, the allegation that the first plaintiff being the son of Marisiddaiah was one of the co-parceners consisting of Basavaiah, Marisiddaiah and plaintiff no.1 and defendant no.1 was denied as incorrect. All the other allegations were also generally denied.
It was contended that Basavaiah, the husband of the first defendant and the father of the second defendant died in the year 1957 leaving behind his son Marisiddaiah, his daughter, Madamma @ Sannamma and his wife Madamma. At that point of time, Marisiddaiah was only five years old and was lame. He was not capable of normal activities nor was in a position to manage the affairs of the family. The first defendant, as the elder in the family, took over the affairs and management of the family including the properties. The marriage of the second defendant was performed with the third defendant and that marriage had 8 taken place after the death of Basavaiah. After their marriage, the third defendant came to live with the family of the first defendant, and defendants 2and 3, therefore, enjoyed the family properties. The khata of the family properties was changed to the name of the first defendant with the consent of Marisiddaiah. Basavaiah, during his life time, had an intention to gift some portion of the family properties in favour of his daughter, but did not do so during his life time. In order to fulfill his wish, when the second defendant married, the first defendant had executed a gift deed in her favour dated 20.12.1976, donating 1 acre of land in Survey No.130/2 and 33 guntas of land in Survey No.125/3 and 15 guntas of land in Survey No.543/5, which are described as items 1,2 and 3, respectively, of the suit schedule. Pursuant to the gift deed, defendants 2 and 3 have been absolutely enjoying the same. The revenue records stood transferred in favour of the second defendant, who has continuously paid taxes in respect of the same.9
It was stated that plaintiffs - 1 and 2 and the husband of plaintiff - 3 had filed a civil suit in O.S.No.96/1981 before the Court of the Civil Judge, Mandya, seeking a declaration that the gift deed was not binding on them. The same was dismissed as on 7.12.1983 and no appeal was filed against the same and therefore had attained finality.
Plaintiff -3 was all along aware of the execution of the gift deed from inception. Plaintiffs 1 and 2 were not at all born at the time of execution of the gift deed and hence, have no right to question the gift deed executed by the first defendant in favour of the second defendant. In view of the dismissal of the earlier suit, the present suit is barred by res judicata apart from being barred by time and therefore, the defendants sought dismissal of the suit.
3. On the above pleadings, the court below framed the following issues:-
"1. Whether the plaintiffs prove that, gift deed dated 20.12.1976 is void-a-initio and no legal existence?10
2. Whether the plaintiffs are entitled for possession and separate possession of their share in the suit properties? If so what?
3. Whether the plaintiffs are entitled for means profits? If so what? "
4. The court below answered issues 1 and 2 in the negative and held that issue no.3 does not survive for consideration, on the following reasons.
The gift deed executed by defendant no.1 in favour of defendant no.2 of the year 1976, was in respect of 2 acres 8 guntas, out of more than 7 acres of suit schedule properties. The said gift deed had been questioned by Marisiddaiah in O.S.96/1981. PW.1, the widow of Marisiddaiah had admitted that she knew about the gift deed one year after its execution. Therefore, even the previous suit in O.S.No.96/1981 ought to have been filed within 3 years from the date of their knowledge and the said suit having been posted for evidence, in May 1983, Marisiddaiah had defaulted in appearance. The Counsel, who appeared for Marisiddaiah, even had retired from the case and 11 immediately on the same day, namely, 7.12.1983, the suit was dismissed. Therefore, the plaintiffs seeking to claim that they remained unaware of the gift deed till one year prior to the filing of the present suit, was not acceptable as they had not produced any material to show that they had been in undisturbed possession of the suit properties and that they were enjoying the same. On the other hand, the defendants had produced abundant material to show their exclusive possession. The khata was made in favour of defendant no.2 when Marisiddaiah was a major and he could have objected to the same. Plaintiff no.3, who has filed the suit on behalf of the minor plaintiffs, did not choose to challenge the gift deed at an earlier point of time. Since it is the same cause of action that is sought to be pursued, issue no.1 was answered in the negative. It was also held that the gift deed was executed much earlier to the birth of plaintiffs 1 and 2, who were born in the year 1979 and 1981, respectively, and therefore, on the dismissal of the suit in O.S.No.96/1981, the matter having attained finality, they lost their right to question the gift deed. Further, even under 12 notional partition, on the death of Basavaiah, Marisiddaiah would have got half share in the suit properties and the remaining half share is again liable to be divided among the widow of Basavaiah, Marisiddaiah and the daughter. Therefore, Marisiddaiah would have been entitled to four-sixth share and not five-sixth share. It is not unusual for a daughter to be gifted properties from her maternal home and if the share of defendants 1 and 2 cannot be denied, the extent of property that is held by the second defendant under the gift deed, would not exceed the combined shares of defendants 1 and 2, which they were entitled to in any case. Hence, it was held that the plaintiffs were not entitled to claim partition of the entire suit properties. It is on such reasoning that the court below has proceeded to dismiss the suit. It is that which is under challenge in the present appeal.
5. Heard the learned counsel for the plaintiffs and the learned counsel for the defendants.
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6. It is contended on behalf of the plaintiffs as follows:-
That the court below has failed to take into account that the gift deed dated 20.12.1976 was void ab initio and did not bind the plaintiffs and therefore, being entitled to their share in the suit properties, has been denied, when it is not in dispute that the suit properties were the ancestral properties of Marisiddaiah and the grand-father of plaintiffs 1 and 2 and that there was no prior partition and continued to be the ancestral property. The court below has failed to apply the law in deciding the case of the plaintiffs. On the death of Basavaiah - the grand-father of plaintiffs 1 and 2, his widow had no right to the suit properties except the right to maintenance and could not have executed a gift deed in favour of her daughter when Marisiddaiah, the father of plaintiffs 1 and 2, had succeeded to the suit properties as a sole surviving co-parcener, on the demise of Basavaiah. It is contended that the unfair reasoning of the court below that the widow of Basavaiah as well as defendant no.2, the daughter of Basavaiah would also have a share in the suit properties at a 14 notional partition and therefore, in the ultimate analysis, the suit property that has been gifted by defendant no.1 in favour of defendant no.2, would not exceed the combined shares of defendants 1 and 2 and hence no injustice is caused, to the plaintiffs is also erroneous as the first defendant Madamma would have got only one-third of the share of late Basavaiah, from out of the share of late Basavaiah along with others, which would be one-ninth share and the second defendant would be entitled to any share out of the same and it could not be two-sixth share as held by the court below. Further since Madamma had died intestate, plaintiffs 1 and 3, being the son and the widow of pre-deceased son would be class-I heirs along with the second defendant and the second defendant would only receive a small share and not two-sixth share, which has been gifted by Madamma. Therefore, the reasoning of the court below cannot be sustained.
The further reasoning of the court below that the suit filed in O.S.96/1981 by the father of the plaintiffs 1 and 2 having been dismissed, has attained finality, would not bind the plaintiffs 15 since the gift deed was void ab initio and hence there can be no limitation pleaded in respect of any such transfer. The learned Senior Advocate Shri M.Shivappa, places reliance on the following authorities:-
1. Sripati Panditharadhyulu Saraba Salvalingam and another Vs. Mudigonda Lingamurthy and others, AIR 1962 Andhra Pradesh 173,
2. State Bank of India Vs. Chamandi Ram (dead) by legal representative Gurbux Rai, AIR 1969 SC 1330,
3. Thamma Venkata Subbamma (dead) by L.R., Vs. Thamma Rattamma and others, AIR 1987 SC 1775,
4. Babu Mother Savavva Navelgund and others Vs. Gopinath, AIR 2000 Karnataka 27,
5. Kanna Gounder and another Vs. Arjuna Gounder, AIR 2003 Madras 157,
6. State of Maharashtra and another Vs. M/s. National Construction Company, Bombay and another, AIR 1996 SC 2367.16
7. On the other hand, the learned Counsel for defendants - 1 and 2 seeks to justify the judgment of the trial court and places reliance on the following decisions:-
1. Gummalapura Taggina Matada Kotturu Swami Vs. Setra Veeravva and others, AIR 1959 SC 577,
2. Nagendra Prasad and another Vs. Kempananjamma, AIR 1968 SC 209,
3. Chinnamma Vs. Srinivas and others, AIR 1971 Mysore 28,
4. Smt. Byyamma Vs. Ramdev and others, 1991 (1) Kar. LJ.221 (HC),
5. Thimmaiah and others Vs. Ningamma and another, ILR 2000 KAR 4322.
8. Insofar as the decisions cited by the learned counsel for the plaintiffs, in Sripati Panditharadhyulu, State Bank of India, and Thamma Venkatasubbamma, supra, is to emphasize the proposition that a co-parcener had no right to dispose of an undivided share in the family property, except under will as provided under Section 30 of the Hindu Succession Act, 1956 (Hereinafter referred to as the '1956 Act', for brevity) and to 17 further emphasize that by an alienation of an undivided interest in the co-parcenery property, a co-parcener cannot deprive all the other co-parceners of their right to the property.
In Babu Mother Savavva, supra, it is further emphasized that a co-parcener cannot make a gift of a co-parcenery property. And when there is a gift and it is objected to by other co- parceners, that the gift will not be valid even to the extent of the donor's interest in the property. If the gifts are void ab initio, they have to be ignored by the court while entertaining a prayer for recovery of possession of the properties covered by such instruments.
Reliance is placed on State of Maharashtra vs. National Construction Company, to assert that the dismissal of an earlier suit on technical grounds would not attract the bar under Section 11 of the Civil Procedure Code, 1908 and that it would apply only if the matter directly and substantially in issue in the former suit has been heard and finally decided by the court competent to try such suit, which means that on the matter or issue in question, 18 there has been an application of the judicial mind and a final adjudication made. If the former suit is dismissed without any adjudication on the matter in issue, merely on a technical ground of non-joinder, that would not operate as res judicata.
9. On the other hand, the decisions relied upon by the Counsel for the defendants are in support of the following propositions:
In Gummalapura Taggina Matada Kotturu Swamy, supra, the Supreme Court in interpreting the scope of Section 14 of the 1956 Act and particularly, the opening words "property possessed by a female Hindu" would mean that to come within the purview of the Section, the property must be in possession of the female concerned as on the date of commencement of the Act. That possession might have been neither actual or constructive or in any form recognized by law. But unless the female Hindu whose limited estate in the disputed property is claimed to have been transformed into an absolute estate under the Section was atleast 19 in such possession taking the word "possession" in the widest connotation, when the Act came into force, the section would not apply.
In Nagendra Prasad, supra, Section 8 of the Mysore Hindu Law Women's Rights Act, 1933 (Hereinafter referred to as the '1933 Act', for brevity), is addressed and interpreted and it is held that the scope of ascertainment of the females, who are to receive a share under clause(d) must be very wide. Clause (d) mentions that when the joint family property passes to a single co-parcener for survivorship, the right to shares is vested in all the classes of females enumerated in all the three clauses (a), (b) and (c). That being the position, clause (d) could not be interpreted narrowly as giving a right to only those females who happened to be related to one or the other of the last two male co-parceners. It is to be interpreted as laying down that right to share will vest in all the females in the joint family, who would have possibly received the right to a share if at any earlier time, there had been partition in the family in any of the three manners laid down in clauses (a), (b) 20 and (c). Clause (d) gives a right independently of a partition and its scope should not be restricted by assuming a partition. The object of clause (d) is to give all females entitled to maintenance from the co-parcenery property a right to claim a share in the joint family property, instead of a right to maintenance and that is why reference is made in it to all females enumerated in clauses (a), (b) and (c). A female member's right under clause (d) is different from the rights of the female member under clause (a). The right of a female member to share the property is not limited as under
clause (a) to arise only on a partition of the joint family properties, but her right, as pointed out in (1940)45 Mys.HCR 102), arises from the moment when the property passes to a single co- parcener.
In Chinnamma vs. Sirnivas, supra, it is further laid down that the right of a female acquired under clause (d) in joint family property on its passing through to a sole co-parcener by survivorship, the right of the female is a vested right and any subsequent change in composition of the joint family due to the 21 birth or death of a co-parcener does not effect the extent of such right.
Nagendra Prasad, supra, is also followed in the subsequent decision in Byamma vs. Ramdev, supra.
In Thimmaiah vs. Ningamma, supra, it is laid down that if there was an earlier partition of co-parcenery properties under Section (8)(1)(a) of the 1933 Act, the manner in which the shares would have to be allotted has been discussed with reference to the 1933 Act.
10. On consideration of the above, insofar as the sequence of events are concerned, though there was no consistency in the rival claims as to the exact date of death of Basavaiah or the date of marriage of his daughter, in that, there was no endeavour in the course of the proceedings, to arrive at any finding of fact on the said events, the direct result of identifying the exact date of death of Basavaiah and the marriage of his daughter, is that the law as it 22 pertained to the enactment of Hindu Succession Act, 1956 and the effect on the rights of the parties by virtue of the same, is left in an ambiguous state. What is otherwise not disputed is that the gift deed, which is under challenge, in the plaintiffs seeking to assert a larger share of the suit properties, is undisputedly executed in the year 1976. As on that date, it could not be said that the father of plaintiffs 1 and 2 was a minor and that defendant -1 executing a gift deed was acting as a co-parcener. Plaintiffs 1 and 2 were not born on that date. Therefore, whether the Mysore Hindu Law Women's Rights Act, 1933, would apply insofar as determining the right of defendant no.1, assuming that she was widowed prior to 1956 or that she was widowed subsequent to 1956, after the 1956 Act came into force would yet face defendant no.1 with a semblance of a right over the suit properties, though not as a co-parcener.
Assuming that the execution of the gift deed by defendant no.1 was against the will of the sole surviving co-parcener namely, the father of plaintiffs 1 and 2, he had questioned the 23 same in a civil suit in O.S.No.96/1981 and the suit had been dismissed for default, on the father of the plaintiffs having abandoned the proceedings. The plaintiffs are claiming their right under their father and therefore, it cannot be said that the dismissal of the suit instituted by their father having attained finality, that the subsequent suit filed by the plaintiffs was maintainable. The proposition that a suit, which is dismissed, not on its merits, but, on a technical ground, cannot be applied to the present case on hand. A suit, which is dismissed for default of the plaintiff and which attains finality, cannot be construed as a suit, that is dismissed on a technicality. Therefore, the court below was justified in holding that the suit was not maintainable in view of the earlier suit for the very cause of action instituted by a person, under whom the plaintiffs claim, having attained finality.
The incidental observations as to the extent of shares and the contentions urged that the court below has committed an error even in computing such shares is incidental and would not 24 assume significance, if the very suit of the plaintiffs was not maintainable. Therefore, the case-law cited does not require to be applied in the present case on hand as the suit of the plaintiffs is liable to be rejected as not maintainable for the above reasons.
Accordingly, the present appeal is dismissed.
Sd/-
JUDGE nv