Karnataka High Court
Neelawwa vs Shivawwa on 8 July, 1987
Equivalent citations: AIR1989KANT45, ILR1988KAR2761, 1988(1)KARLJ58, AIR 1989 KARNATAKA 45, (1989) 1 CIV LJ 510, (1988) 24 REPORTS 181, 1988 (1) KANTLJ 2761, ILR 1988 KANT 58, (1988) 1 KANT LJ 58, (1988) 2 HINDULR 799, (1988) 1 CURCC 631, (1988) 2 CURCC 1129
JUDGMENT K.A. Swami, J.
1. At the stage of admission the respondent is notified. Accordingly she has put in appearance through a Counsel. The records are also obtained as this appeal can be disposed of on a short point, it is admitted and heard for final disposal and disposed by this judgment.
2. This appeal is preferred against the judgment and decree dt. 22-1-1987 passed by the learned Additional Civil Judge, Bagalkot in O.S. No. 94 of 1982. The appellant was the plaintiff and the respondent was the defendant. In this appeal the parties will be referred to as plaintiff and defendant.
3. The appellant/ plaintiff filed the suit for a declaration that she has got half share in the suit land which is fully described in Schedule B to the plaint and for a consequential relief of permanent injunction restraining the defendant from alienating the suit land. She has claimed half share in the suit land on the ground that she is the daughter of late Mallappa and the suit land belonged to him. The defendant is the widow of the said Mallappa,being the step mother of the plaintiff. Therefore, she is entitled to half share in the suit land after the death of her father Mallappa.
4. The defendant resisted the suit on various grounds and inter alia contended that the plaintiff having been born prior to that adoption of her father, she does not belong to the adoptive family. Therefore, the plaintiff is not entitled to any share in the suit B Schedule property. She also further contended that the plaintiff has never been in possession of the suit property; therefore she is not entitled to the declaration and the injunction sought for.
5. The trial Court, in the light of the pleas r ed by the parties, framed the following, issues:
(1) Whether the Plaintiff proves that she was born on 2-5-1941 i.e., subsequent to the adoption of her father deceased Mallappa?
(2) Whether the plaintiff further proves that name of the defendant appeared in record of rights as manager of the joint family?
(3) Whether the Plaintiff proves that she is in joint possession of the suit land along with defendant?
(4) Whether the defendant proves that she is in exclusive possession of the suit land since the death of her husband?
(5) Whether the defendant proves that She has also perfected her title to the suit land by adverse possession?
(6) What decree or order?
6. Issues 1 to 3 and 4 were answered against the plaintiff. Issue No. 5 was held against the defendant. In the light of the findings recorded on issues 1 to 3 and 4 the suit was dismissed.
7. The contention urged before us is that admittedly the plaintiff is the daughter of the deceased Mallappa who was the owner of the suit land; that the said Mallappa died after the coming into force of the Hindu Succession Act, leaving behind only the female heirs,that the plaintiff being a Class I heir as per S. 8 of the Hindu Succession Act she is entitled to a half share in the suit land because Mallappa died leaving behind only two heirs namely the plaintiff and the defendant. However, Sri A. B. Patil, learned Counsel appearing for the defendant/ respondent disputed the correctness of this contention.
8. Having regard to the contentions urged, the following points arise for consideration: -
(1) Whether the plaintiff-is entitled to a half share in the suit land?
(2) If so, whether this is a case in which a request for partition and possession of her half share can be acceded to, in the absence of a specific prayer made in the plaint for partition and separate possession of her share?POINT NO. 1
9. Deceased Mallappa - the father of the plaintiff was given in adoption on 17-5-1939. The plaintiff claims that she was born on 2-5-1941 subsequent to the adoption. However, the trial Court has found, - and we do not consider it necessary to disturb that finding, - as that will not have any bearing on the right of the plaintiff, - that the plaintiff was born an 8-10-1937 prior to the adoption. In this case it is not in dispute that the plaintiff is the daughter of Mallappa and was born on 18-10-1937 (8-10-1937?). Mallappa was taken in adoption on 17-5-1939. Subsequent to the adoption of Mallappa the mother of the plaintiff expired and Mallappa took the defendant as his 2nd wife. On the date of death of Mallappa his only heirs were the plaintiff and the defendant. The question for consideration is whether the plaintiff is entitled to a share in the property (suit land) left by the deceased Mallappa which, he got from the adoptive family. Sri A. B. Patil, learned Counsel appearing for the respondent submits that as the plaintiff was born prior to the adoption she cannot be considered to have gone into the adoptive family along with the father and therefore she will not be entitled to a share in the property obtained by her father as a result of adoption. If only Mallappa had died prior to the coming into force of the Hindu Succession Act, there was something in the contention to be considered. The position is completely altered after the corn ing into force of the Hindu Succession Act. The succession to the property left by a male Hindu who dies after the coming into force of the Hindu Succession Act (hereinafter referred to as 'the Act') is governed by the Act.subject, of course, to the provision of S. 5 of the Act. Section 8 of the Act provides:
"The property of a male Hindu dying intestate shall devolve according to the provisions of this chapter : -
(a) firstly, upon the heirs, being the relatives specified in Class I of schedule;
(b) secondly, if there is no heir of Class I then upon the heirs, being the relatives specified in Class II of the Schedule;
(c) Thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased;
(d) Lastly, if there is no agnate, then upon the cognates of the deceased."
Mallappa was a male Hindu. He died intestate, after the coming into force of the Act, leaving behind the suit land which does not fall under S. 5 of the' Act. Admittedly the defendant respondent is the widow of the deceased Mallappa. Therefore, she becomes an undisputed heir to succeed to the property of Mallappa. The question for consideration, whether the plaintiff being the daughter Of the deceased Mallappa cannot clairii a share in the suit land as an heir to him merely because she was born before the deceased Mallappa was given in adoption and the property, i.e., the suit land, left by him belonged to his adoptive family. The expression "property" occurring in S. 8 of the Act must receive the widest possible interpretation. In our view- it means and includes moveable and immovable property, whether separate or self acquired or an interest in a Mitakshara coparcenary property provided he has left him surviving any of the female heir or a daughter's son mentioned in class I of the Schedule to the Act. The fact that the deceased Mallappa had come to own and possess the suit land by reason of his adoption did not make any difference for the purpose of S. 8 of the Act as it was the property of Mallappa at the time of his death. Now we shall see whether the plaintiff cannot be considered to be an heir of her father merely because she was born before he was given in adoption. The expressions 'heir' and 'related' are also defined in S. 3(f) and (j) respectively of the Act. "Heir" means any person male or female who is entitled to succeed to the property of an intestate 'under the Act. "Related" means related by legitimate "kinship". The proviso to this definition is not relevant for our purpose, because it is not in dispute that the plaintiff is the legitimate daughter of the deceased Mallappa born through his Ist wife. It is true, adoption had the effect of removing Mallappa from his natural family into the adoptive family, but did not and could not sever the tie of blood relationship between him and the plaintiff, or for that matter the members of his natural family. Therefore, the plaintiff irrespective of the adoption of her father continued to be the daughter of Mallappa. Thus the plaintiff being the daughter falls in the category of heirs specified in Class I of the Schedule to he Act. Thus the plaintiff and the Defendant are the Class I heirs of the deceased Mallappa. There are no other heirs of Mallappa falling in Class 1. As such as per S. 9 of the Act, the plaintiff and the defendant exclude all other heirs, if any, and take the property of the deceased Mallappa simultaneously. That being so, whether the plaintiff was born prior to the adoption of the deceased Mallappa or subsequent to his adoption loses all its significance in as much as, Mallappa died intestate, after the coming into force of the Act. Consequently, the property left by him has to devolve as per S. 8 of the Act. It cannot be denied that irrespective of the adoption of Mallappa, the plaintiff is a Class I heir of Mallappa being his daughter. Therefore, she is entitled to succeed to a half share in the suit land left by her father Mallappa. Hence the trial Court is not right in refusing to declare that the plaintiff is entitled to a half share in the suit land. Point No. I is accordingly answered and in favour of the plaintiff appellant.
POINT No. 210. It is contended by Sri A. W. Patil, learned Counsel for respondent/ defendant that in the suit the plaintiff has only sought for a declaration and injunction restraining the defendant from alienating the suit property and there is no prayer for partition and separate possession, therefore, the prayer made by the appellant cannot at all be granted. No doubt in the plaint there is no specific prayer made by the plaintiff seeking partition and separate possession of her share in the suit land. In our opinion, this should not come in the way of granting a preliminary decree for partition and separate possession of the share of the plaintiff. Once it is declared that the plaintiff is entitled to a half share in the suit land, the necessary consequence of it is to divide the suit land and give her half share. As all the persons entitled to a share in the suit land are parties to the suit, in a suit of this nature the relief for partition must be deemed to have been prayed for in the suit. It is also relevant to notice that the relief of partition and separate possession flows from the same cause of action which forms the basis for the present suit. Denial of such a relief would only lead to another suit. Multiplicity of proceedings should normally be avoided as the same tends to delay justice. In the facts and circumstances of the case the relief of partition and separate possession becomes a consequential relief. In First Appeal No. 231 of 1987, Rangappa v. Jayamma decided on 17-6-1987 under more or less similar circumstances, we have considered the scope of R. 7 of O. VII of the Civil P. C. and held as follows: -
(Reported in (1987) 2 Kant LJ 369) "The words "and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for" are wide enough to empower the Court to grant such relief. The plaintiff is entitled to, on the facts established on the evidence on record, even if such relief has not been specifically prayed for.
8.1. The provisions of O. VII, R. 7 of the C.P.C. are so widely worded that they do enable the Court to pass a decree for partition in a suit for declaration of title to immoveable property and possession thereof where it turns out that the plaintiff is not entitled to all the interest claimed by him in the 'Suit property. In such a situation there is nothing unusual in giving relief to the parties by directing partition of the suit property according to the share of the parties established in the suit. The normal rule that relief not founded on the pleadings should not be granted is not without an exception. Where substantial matters constituting the title of all the parities are touched in the issues and have been fully put in evidence the case does not fall within the aforesaid rule. The Court has to look into the substance of the claim in determining the nature of the relief to be granted. Of course, the Court while moulding the relief most take care to see that relief it grants is not inconsistent with the plaintiffs claim, and is based on the same cause of action on which the relief claimed in the suit, that it occasions no prejudice or causes embarrassment to the other side; that it is not larger than the one claimed in the suit, even it the plaintiff is really entitled to it, unless he amends the plaint; that it had not been barred by time on the date of presentation of the plaint.
8.2. No doubt the plaintiff has sought for exclusive title and he has not been able to prove his exclusive title; but has been able to prove, that he is entitled to a half share in the suit properties. When a party claims exclusive title to the suit property and is liable to establish that he is entitled to half of the suit property, it will not be unusual for the Court to pass a decree for partition and possession of his half share. In fact such a relief flows from the relief prayed for in the plaint that he is the exclusive owner of the entire property ,When a larger relief is med and what is established, is not the entire relief claimed in the suit but a part of it, as whole includes a part, larger relief includes smaller relief, and it also arises out of the same cause of action. Therefore in the instant case, nothing prevented the Court to pass a decree for partition, in order to avoid another suit for partition and. to give relief to the party in conformity with the right he had established."
Therefore we are of the view that instead of driving the plaintiff to another suit for partition, in conformity in the right she has established, it is just and appropriate to pass a preliminary decree for partition and separate possession of her half share. The plaintiff has not also lost her right in the suit property because the, suit is filed within 12 years from the date of the death of her father. In other words, within 12 years from the date the property developed upon her or the succession opened. Therefore, even if a separate suit has to be filed for partition, the defendant does not have any sustainable defence. Therefore no prejudice will be caused to the defendant/ respondent if a preliminary decree for partition and separate possession is passed in this suit itself. Accordingly Point No. 2 is also answered in the affirmative and in favour of the plaintiff/appellant.
11. For the reasons stated above, this appeal is allowed. The judgment and decree of the trial Court are set aside. The plaintiff is declared to be the owner to the extent of half share in the suit land more fully described in Schedule 'B' to the plaint. There shall be a preliminary decree for partition and separate possession of her half share in the suit land which shall be effected by the Deputy Commissioner of the District or his Gazetted Assistant as per S. 54 of the Civil P. C. There shall also be an enquiry into future menses profits under O. XX, R. 18(2) of the Civil P. C. The necessary deficit Court-fee if any, as per the valuation made by the plaintiff be paid by the plaintiff on the plaint as well as on the memorandum of appeal as per S. 35(2) of the Karnataka Court-fees and Suits Valuation Act and then the decree be drawn.
12. The plaintiff/appellant is granted 4 weeks to pay the deficit Court-fee, if any, payable both on the plaint and in the appeal.
13. There will be no order as to cost throughout the proceedings.
14. Appeal allowed.