Karnataka High Court
Smt Saraswathi Gopinath vs Ms Uma Ram on 3 August, 2012
Bench: D.V.Shylendra Kumar, B.Manohar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 3RD DAY OF AUGUST 2012
PRESENT
THE HON'BLE MR.JUSTICE D.V.SHYLENDRA KUMAR
AND
THE HON'BLE MR.JUSTICE B.MANOHAR
RFA.NO.1093/2010(PAR-INJ)
BETWEEN:
1. SMT.SARASWATHI GOPINATH,
W/O.LATE SRI.R.GOPINATH,
AGED ABOUT 64 YEARS.
2. ROHIT.G. @ RAMALINGAM,
S/O.LATE SRI.R.GOPINATH
AGED ABOUT 34 YEARS.
BOTH OF THEM RESIDING AT
NO.27/2, 1ST MAIN ROAD,
JAYAMAHAL,
BANGALORE - 560 046. ...APPELLANTS
(BY SRI.K.P.ASOKUMAR, SRI.K.HONNAIAH, ADVS)
AND:
1. MS.UMA RAM,
D/O.LATE SRI.B.R.RAM,
AGED ABOUT 67 YEARS,
2
2. MS.RAJINI RAM,
D/O.LATE SRI.B.R.RAM,
AGED ABOUT 52 YEARS,
BOTH OF THEM RESIDING
AT NO.27/2, 1ST MAIN ROAD,
JAYAMAHAL,
BANGALORE - 560 046.
3. SMT.PRABHA VISHWANATH,
W/O.K.N.VISHWANATH,
AGED ABOUT 72 YEARS,
RESIDING AT NO.30,
MOUNTAIN ROCK ROAD,
1ST BLOCK EAST,
YANAGANAGAR,
BANGALORE - 560 011.
4. SMT.VEENA,
W/O.HEMACHANDRA KUPPALLI,
AGED ABOUT 62
P/O.BOX NO.60515, POLO ALTO,
CALIFORNIA 94306, USA.
5. B.R.RAM,
S/O.LATE B.C.RAMALINGAM,
SINCE DEAD, THE PLAINTIFF
NOS.1 AND 2 AND DEFENDANT
NOS. 2 TO 5 ARE THE LR'S
OF THE DEFENDANT NO.1,
(WHO ARE RESPONDENTS
1, 2, 3 AND 4 AND APPELLANTS)
....RESPONDENTS
(BY SRI.S.SHEKAR SHETTY FOR MARIGOWDA, ADV FOR
R1 TO R3, R.4 VEENA SERVED, REP BY GPA HOLDER, R.5
DEAD)
3
RFA FILED U/S.96 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED: 12.03.2010 PASSED IN
OS.NO.9264/1997, ON THE FILE OF THE 1-ADDL.CITY
CIVIL AND SESSIONS JUDGE, BANGALORE DECREEING
THE SUIT FOR DECLARATION, PARTITION AND
INJUNCTION.
THIS APPEAL IS COMING ON FOR HEARING THIS
DAY, B.MANOHAR, J., DELIVERED THE FOLLOWING: -
JUDGMENT
The appellants are defendants 2 and 3 in O.S.No.9264/1997, being aggrieved by the judgment and decree dated 12-3-2010 passed by the I Additional City Civil and Sessions Judge, Bangalore City filed this appeal.
2. For the purpose of better understanding of the facts of the case, ranking of the parties is referred to as in the Trial Court.
3. The plaintiffs 1 and 2 filed O.S.No.9264/1997 seeking for partition and separate possession of the suit schedule property by declaring that the settlement deed dated 13-4-1970 executed by the deceased first 4 defendant in favour of R.Gopinath who is the husband and father of the defendants 2 and 3 is not binding on them and also sought for permanent injunction restraining the defendants in the suit from interfering or disturbing the peaceful possession and enjoyment of right to stay in the suit schedule property.
4. The case of the plaintiffs is that they are the unmarried daughters and defendants 4 and 5 are the married daughters of the first defendant and defendants 2 and 3 are the wife and son of the deceased R.Gopinath, who is the son of the first defendant. The plaintiffs and defendants have formed a Hindu undivided family. The first defendant was the 'Kartha' of the said family. The joint family succeeded the properties left by the grandfather of the plaintiffs B.C.Ramalingam and after his death, the first defendant succeeded the properties held by B.C.Ramalingam. 5 They have contended that there was a registered partition between the B.C.Ramalingam, who is the grand father of the plaintiffs and B.R.Mariappa who is the brother of B.C.Ramalingam. In the said partition, five items of the properties have fallen to the share of B.C.Ramalingam, and after his death, the first defendant who is the only son of B.C.Ramalingam, succeeded all the five items of the properties. The first defendant along with plaintiffs and defendants 2 and 3 was residing in two items of the properties and leased out the remaining three items of the properties to the tenants. The first defendant being a "Kartha" of the joint family, has utilised the income from other properties for their family maintenance and also invested the family income for establishment of business in ROLEX watches at Bangalore. In the said business, he has earned lot of money and out of the said income, he has purchased the property bearing 6 No.72/2 situated at 1st Main Road, Jayamahal, Bangalore on 6-2-1967. Thereafter, he has constructed a residential house in the said property in the year 1970 from and out of the income of joint family properties. Further, the plaintiffs also averred in the plaint that for the purpose of construction of the house, the first defendant sold two items of the properties on 26-10-1964 and 12-11-1965 in favour of Kodandaswamy and Shakuntala respectively. Further, availed the loan from the Life Insurance Corporation ('LIC' for short) after pledging the Insurance Policy of R.Gopinath, who is the son of the first defendant and also mortgaging the suit schedule property to the LIC. For the purpose of availing loan from the LIC, the first defendant executed a deed of settlement settling the property in respect of the suit schedule property in favour of his son R.Gopinath on 13-4-1970. The settlement deed was executed only for the purpose of 7 raising loan for construction of building on the suit schedule property and there is no intention to settle the property in favour of the said R.Gopinath. The said document is a sham document. Further, in the year 1975, the first defendant constructed first floor by alienating item No.4 property in favour of T.M.Krishnaswamy Modaliar on 30-6-1975 and thereafter, item No.3 property was also sold in favour of M.Neelakantan on 16-10-1978. It is the specific case of the plaintiffs that the suit schedule property was purchased out of the nucleus of the joint family properties. The plaintiffs and defendants have right over the suit schedule properties. Further, the first defendant has repaid the loan amount to the LIC. The plaintiffs and defendants 1 to 3 are residing in the same house. The plaintiffs are the unmarried daughters and they are entitled for a share in the properties. 8
5. In view of coming into force of Hindu Women's Right to Property Act, 1995 and the amendment to Hindu Succession Act, 1956 as amended by Hindu Succession Act, (Amendment Act of 2005) the plaintiffs became the co-parcener by birth in their own right and liabilities in the same manner as the son. Hence, they are entitled for equal share in the suit schedule properties. The defendants 2 and 3 got the katha in respect of the suit schedule property in collusion with the first defendant and intimidating the plaintiffs under the threat of dispossession from the suit schedule property in collusion with the first defendant. Accordingly, they issued legal notice seeking for partition. However, reply has been given to the effect that defendants 2 and 3 have become the absolute owners of the properties by virtue of settlement deed dated 13-4-1970 executed by the first defendant in favour of Late R.Gopinath. In view of that the plaintiffs 9 had filed a suit seeking for partition and separate possession and also for declaration.
6. The first defendant entered appearance and filed the written statement and defendants 2 and 3 and defendants 4 and 5 have filed separate written statements. The first defendant in his written statement has denied the averments made in the plaint, however admitted the relationship between the parties and also admitted that late R.Gopinath was the husband of the second defendant and father of the third defendant and was his only son. He also admitted that Gopinath was working as a High Rank Officer in the Indian Army. It is admitted that the first defendant purchased the suit schedule property in the year 1967 and constructed the house on the said property after availing loan from the LIC on pledging the insurance policies of R.Gopinath. Since R.Gopinath met with a 10 serious accident, for his benefit, the first defendant settled the property in his favour as per the registered settlement deed dated 13-4-1970 and katha has been made in the name of his son R.Gopinath. Further he has denied that the plaintiffs have got right over the suit schedule properties and that they are entitled for any share in the suit schedule properties. He has specifically contended that right of the plaintiffs are extinguished long back immediately after execution of the settlement deed in favour of R.Gopinath, in the year 1970. Hence, the question of partitioning the property at this length of time does not arise, though the first defendant admitted that he has purchased the suit schedule property and constructed the house after obtaining the loan from the LIC on the insurance policy of R.Gopinath. Since he is the owner of the properties, he has settled the property in favour of the sole co- parcener R.Gopinath and the plaintiffs have no right 11 whatsoever in respect of the suit schedule property. The settlement deed is not a sham document. The plaintiffs are residing along with the first defendant. Hence, they are not entitled for any partition in the suit schedule property and sought for dismissal of the same.
7. The defendants 2 and 3 filed written statement contending that the plaintiffs have no right whatsoever in the suit schedule property. Originally, B.C.Ramalingam who is the father of the first defendant and grad father of the plaintiffs and defendants 4 and 5 got five items of the properties in the family partition in the year 1940. In the family partition between B.C.Ramalingam and the first defendant, four items of the properties were allotted to the first defendant and one item of the properties bearing No.1 and 1/A, (New Nos.495 and 496), OPH Road, Bangalore was fallen to the share of B.C.Ramalingam. The said B.C.Ramalingam, bequeathed the said property in 12 favour of his grandson R.Gopinath in the year 1956 and the said B.C.Ramalingam died in the year 1958. From the rental income of the building at OPH Road, Bangalore, the first defendant purchased the suit schedule property in the year 1967 and thereafter after availing loan on the Insurance Policy of R.Gopinath, a residential house was constructed in the suit schedule property. R.Gopinath joined the Military Service as a Major in Indian Army in the year 1962 and he got married in the year 1968. The residential house has been constructed on the suit schedule property from and out of the income of R.Gopinath. Further the first defendant was not doing any work for the livelihood and he was a punter in a Turf Club. From the earnings of R.Gopinath the residential house was constructed on the suit schedule property and some of the joint family properties were sold by the first defendant for the family necessities and for the marriage of daughters. Since the 13 suit schedule property was purchased and construction was made from and out of the income of R.Gopinath and R.Gopinath is the only son of the first defendant and the only co-parcener, the first defendant settled the property in favour of R.Gopinath, as per the registered Settlement Deed dated 13-4-1970. The plaintiffs are fully aware of the said facts. After a lapse of 27 years, the suit has been filed seeking for partition and also declaration. Hence, the suit filed by the plaintiffs is not maintainable on the ground of delay and latches. Further, the amendment to the Hindu Succession Act (Karnataka amendment) brought into force from the year 1994 and also amendment to Hindu Succession Act, 2005 will not be applicable to the present case since the property was already settled in the year 1970 in favour of R.Gopinath and the plaintiffs have no right whatsoever, in respect of suit schedule property and sought for dismissal of the suit.
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8. The defendants 4 and 5 filed written statement supporting the stand of the plaintiffs and contended that the site on which a residential house was constructed by the first defendant is out of rental income and the business in ROLEX watches. After purchase of the suit schedule property, loan was raised for the construction of the house by pledging the Insurance Policy of their Brother R.Gopinath and the loan amount was settled by the first defendant. Since the LIC insisted for the additional security of immovable property, the first defendant executed the registered settlement deed on 13-4-1970, which is only for the purpose of raising loan. The said document is a sham document. In view of Section 6 of the Hindu Succession Act 2005, the defendants 4 and 5 have become the co- parceners and are entitled for a share in the suit schedule properties and sought for decreeing the suit. 15
9. On the basis of the pleadings of the parties, the court below framed the following issues and also additional issues:
Issues:
(1) Do the plaintiffs prove that the settlement deed dated 13.4.1970 executed by defendant No.1 in favour of his son R.Gopinath in respect of schedule property was only a nominal one, not acted upon and that defendant No.1 had no authority to settle property and thus not binding on them?
(2) Do the plaintiffs prove that they are entitled for a share in the schedule property? If so, to what extent?
(3) Do defendant Nos.2 & 3 prove that the plaintiffs were married prior to 1990 and thus, there was severance of status in the joint family and thus the partition was deemed to have taken place on 11.6.1987 and thus the plaintiffs do not get any right to such partition as stated in pare 1(i) of the Written Statement?
(4) Do the defendant No.2 and 3 prove that B.C.Ramalingam, the father of the first defendant bequeathed to R.Gopinath, a property bearing No.1, Old Poor House road, Bangalore by virtue of Will dated 3.3.1956 and that the first defendant 16 purchased the schedule property from out of the income derived from that bequeathed property as well as other contribution made by Gopinath as stated in para-2 of the written statement?
(5) Do defendant Nos.2 & 3 further prove that the house in the schedule property was constructed by R.Gopinath?
(6) Do defendant Nos.2 & 3 prove that the suit is time barred?
(7) Do defendant Nos.2 & 3 prove that the suit is bad for non-joinder of necessary parties?
(8) What order or decree?
Additional.Issues dated 6.11.2006 (1) Whether the suit of the plaintiff is not maintainable in law?
(2) Whether there arose a cause of action for plaintiff to file this suit against defendants?
Addl.Issues dated 24.9.2008 (1) Whether the defendant Nos. 4 & 5 prove that the suit schedule property is the joint family ancestral property as contended in para-2 of the written statement?
17 (2) Whether they further prove that the settlement deed dated 30.4.1970 executed by the defendant No.1 in favour of his son R.Gopinath is not binding on these defendants?
(3) Whether the defendant Nos.4 and 5 are also entitled to the share in the suit schedule property? If so, to what extent?
10. In order to prove their case, the first plaintiff was examined as P.W.1 on behalf of herself as well as the second plaintiff and got marked the documents as Ex.P1 to Ex.P10 and also examined one of the witnesses as P.W.2. On behalf of the defendants, the defendant No.2 was examined as D.W.1 and also examined two other witnesses as D.W.2 and D.W.3 and got the marked the documents as Ex.D.1 to Ex.D.23.
11. The Trial Court considering the oral and documentary evidence let in by the parties held issue No.1 in the affirmative and insofar as issue No.2 is concerned, it has held that the plaintiffs and defendants 18 are entitled for 1/5th share each, issue Nos. 3 to 7 in the negative, Additional issue No.1 dated 6-11-2006 in the negative and issue No.2 dated 6-1-2006 in the affirmative and additional issues No.1 to 3 dated 24-09-2008 in the affirmative. Consequently by its judgment and decree dated 12-3-2010 decreed the suit filed by the plaintiffs and declared that the settlement deed dated 13-4-1970 executed by the first defendant in favour of R.Gopinath is not binding on the plaintiffs and defendants 4 and 5 are entitled for the 1/5th share each and defendants 2 and 3 are entitled for 1/5th share. Further restrained the defendants 2 and 3 from interfering or disturbing the peaceful possession of the plaintiffs over the suit schedule property. Being aggrieved by the judgment and decree dated 12-3-2010 defendants 2 and 3 filed this appeal.
12. Sri.K.P.Asokumar, learned counsel appearing for the appellants contended that the judgment and decree 19 passed by the Trial Court is contrary to law and evidence on record. The finding of the court below on issue No.1, 3 to 7 is perverse. The Trial Court misunderstood and misread the scope of amendment to the Hindu Succession Act of the year 1994 as well as the amendment of the year 2005. Learned counsel further contended that as per the family partition between B.C.Ramalingam and the first defendant, four items of the properties were allotted to the first defendant and B.C.Ramalingam retained the property situated at OPH Road, Bangalore. The said property was bequeathed by B.C.Ramalingam in favour of his grandson R.Gopinath as per the Will dated 3-3-1956 and the said B.C.Ramalingam died in the year 1958. In view of the execution of the said Will, R.Gopinath became the absolute owner of the property situated at OPH Road, Bangalore. At the time of executing the Will, the said R.Gopinath was minor and the first defendant 20 was also looking after the said property and collecting the rent from the property situated at OPH road. R.Gopinath joined the Military services in the year 1962 as a High Rank Officer. From his salaried income and the rental income from the OPH Road Property, the first defendant purchased the suit schedule property since R.Gopinath was working in the Border Security of the country. Thereafter, the first defendant constructed the house in the year 1970 after availing loan from the LIC on pledging the policies of R.Gopinath, further R.Gopinath has paid the loan installments and produced the documents in this regard as Ex.D9 to Ex.D13. Since, R.Gopinath was the only son of the first defendant and co-parcener, the first defendant settled the properties as per the Settlement Deed dated 13-4-1970 in favour of R.Gopinath. The plaintiffs and defendants 4 and 5 are fully aware of the said facts. The plaintiffs were residing with defendants 1 to 3 in the 21 same house. After registering the Settlement Deed dated 13-4-1970, katha was made in the name of R.Gopinath in respect of the suit schedule property and after his death in the year 1987, katha has been changed in the name of the second defendant in the year 1988 itself. The plaintiffs are fully aware of the said facts also. After lapse of 27 years, the suit for partition and declaration has been filed. Under Article 109 of the Limitation Act, the limitation for filing the suit is 12 years from the date of alienee taking possession. The suit filed by the plaintiffs is barred by limitation. The finding of the Trial Court that the first defendant purchased the property from the rental income derived from other three properties and the income from ROLEX watch business is totally incorrect. No materials have been produced to show as to what is the income from the ROLEX Watch business and also the rental income. The appellants have produced the 22 documents to show that from the salaried income of R.Gopinath and the rental income from the property situated at OPH Road, Bangalore, the first defendant purchased the properties and also by obtaining the loan on the Insurance Policy of R.Gopinath, constructed a residential house, since R.Gopinath was holding a transferable post. In view of that, it is clear that R.Gopinath is the only one co-parcener and his father has settled the property in favour of R.Gopinath. There was absolutely no impediment in settling the property since the suit schedule property became the absolute property of R.Gopinath and katha has been effected in his name.
13. Hence the first defendant as per the registered settlement deed dated 13-4-1970 settled the properties in favour of R.Gopinath. After his death in the year 1987, katha has been effected in the name of the second defendant. The property is not available for partition 23 from the year 1970 itself. The question of plaintiffs seeking partition in the year 1997 on the basis of Section 6-A of the Hindu Succession Act and also amendment to Section 6 of the Hindu Succession Act of the year 2005 does not arise. The reading of Section 6 of the amended Act, 2005, made it clear that Section 6 will not affect or invalidate any dispossession of alienation including any partition or testamentary disposition of property, which has taken place before 29th December 2004. In the instant case the suit schedule property has been testamentarily disposed on 13-4-1970 itself and the property is not available for partition. He also relied upon the judgments reported in AIR 2009 SC 2649 G.SEKAR V/S GEETHA & OTHERS; 2008 (4) KCCR 2333: M.PRITHVIRAJ AND OTHERS V/S.SMT.LEELAMMA.N AND OTHERS; ILR 2010 KAR 1484 PUSHPALATHA.N.V. V/S V.PADMA & OTHERS; AIR 2008 SC 1438 B.K.MUNIRAJU V/S 24 STATE OF KARNATAKA AND OTHERS; and 2006(8) SCC 581 SHEELA DEVI & OTHERS V/S LALCHAND & ANOTHER.
14. Sri.K.P.Asokumar further contended that the suit is liable to be dismissed for non-joinder of parties. All the children of the first defendant were not made parties to the suit. Further some of the daughters of the second defendant and the grandson and daughters of the first defendant were also not made parties. In a partition suit, unless all the family members are made parties, the suit cannot be maintained. Further he has contended that all the joint family properties which were sold by the first defendant are not included. O.S.No.6732/2006 has been filed seeking for partition and separate possession of OPH Road property. Hence, it is clear that during the pendency of the said suit, the suit for partition in respect of only one property is not maintainable. The reasoning of the Trial Court that 25 there is no transfer or alienation of the suit schedule property permanently and settlement deed is not a transfer is totally incorrect. The Trial Court has misunderstood and misread the settlement deed and also the effect of settlement deed and sought for setting aside the judgment and decree by allowing this appeal.
15. Sri.Shaker Shetty, learned Counsel appearing for respondents 1 to 3 submits that the suit schedule property was purchased by the 5th respondent on 6-2-1967 from the nucleus of joint family fund. Defendants 2 and 3 were not the members of the joint family as on the date of purchase and they were not competent to speak about the transaction took place in the year 1967. In the partition between the grand father of plaintiffs 1 and 2 and his brother B.C.Marigowda, the five items of the properties were allotted to the share of B.C.Ramalingam. After his death, 5th respondent i.e. B.R.Ram succeeded the estate 26 of the deceased. These respondents were residing in a joint family in 2 items of the properties and remaining three items of the properties were let out to the tenants. From the rental income, the father of plaintiffs 1 and 2 started ROLEX watch business and earned lot of money, out of which, he purchased the suit schedule property and constructed the ground floor in the year 1970 and first floor in the year 1975. The respondents being unmarried daughters have a right over the suit schedule property as per the Indian Succession Act (As amended by Karnataka Act 23/94 w.e.f. 30-7-1994), on this premise, the suit was filed seeking for partition and separate possession. In view of the non-obstante clause in Section 6-A of the Act, the female co-parcener becomes a co-parcener of the family from the date of her birth. Admittedly, there was no partition in the family. In view of 2005 amendment to Section 6 of the Act, even 27 the married daughter is also entitled to claim the same right as the unmarried daughter.
16. Sri.Shaker Shetty further submits that the Settlement Deed of the year 1970 is a sham document; created only for the purpose of taking loan from the LIC and it will not make any difference to the interest and share of the plaintiffs in the joint family properties. He further contended that the plaintiffs need not seek for a declaration by virtue of amendment to the Hindu Succession Act and they are entitled for a share in the joint family properties as co-parcener. Since the suit schedule property was purchased out of the nucleus of joint family properties, the share in the joint family properties cannot be denied to the plaintiffs and there is no limitation prescribed seeking for partition and sought for dismissal of the appeal. He also relied upon the judgment reported in AIR 1972 SC 1279 (M.N.ARYAMURTHI AND ANOTHER v/s 28 M.L.SUBBARAYA SETTY(DEAD) BY HIS LEGAL REPRESENTATIVES AND OTHERS); (2007)6 SCC 401 (M.VENKATARAMANA HEBBAR (DEAD) BY LRS. v/s M.RAJAGOPAL HEBBAR AND OTHERS); ILR 2010 KAR 1484 (PUSHPALATHA N.B. v/s V.PADMA AND OTHERS); and AIR 1980 SC 695 (THE RAJASTHAN STATE ROAD TRANSPORT CORPORATION, JAIPUR v/s NARAIN SHANKER AND ANOTHER ETC., ETC.).
17. We have carefully considered the arguments addressed by the parties and oral and documentary evidence let in by the parties.
18. The points that arise for consideration in this appeal are:
(i) Whether the suit schedule property was purchased from the nucleus of joint family fund?
(ii) Whether the plaintiffs are entitled for a share in the suit schedule property on 29 the basis of the amendment made to the Hindu Succession Act?
(iii) Whether the suit filed by the plaintiffs is barred by limitation?
19. The records clearly disclose that the suit schedule property was purchased by the first defendant who is the father of plaintiffs 1 and 2 and defendants 4 and 5 and father-in-law of defendant No.2 and grandfather of defendant No.3 on 6-2-1967. Thereafter, a residential house was constructed in the year 1970 and first floor was constructed in the year 1975. It is the specific case of the plaintiffs that in a family partition between B.C.Ramalingam who was the grandfather of the plaintiffs and his brother B.C.Marigowda, five items of properties were allotted to the share of B.C.Ramalingam. After his death, the first defendant succeeded the estate of the deceased and residing in two items of the properties and let out three items of the 30 properties. From the rental income of the other three properties, the first defendant started ROLEX watch business and purchased the suit schedule property and constructed a house thereon. The plaintiffs claim that the suit schedule property was purchased out of nucleus of the joint family fund and constructed a residential building thereon. Hence, they are entitled for a share in view of the amendment to the Hindu Succession Act. On the other hand, defendants 2 and 3 have contended that the first defendant is the son of B.C.Ramalingam. He was the sole co-parcener. In the family partition, 4 items of the properties were allotted to first defendant and B.C.Ramalingam retained the property situated at OPH Road, Bangalore. The husband of the second defendant R.Gopinath is the only son of first defendant. The grandfather B.C.Ramalingam bequeathed his share of the property in favour of R.Gopinath in the year 1956 and B.C.Ramalingam died 31 in the year 1958. Since then R.Gopinath, became the absolute owner of the said properties. It is the specific case of the defendants 2 and 3 that R.Gopinath joined the Military services as a Major in the Indian Army in the year 1962. From the rental income of OPH property bequeathed in favour of R.Gopinath and from his salaried income, the first defendant purchased the suit schedule property and not from the nucleus of the joint family fund. After taking loan by pledging the Insurance Policy of R.Gopinath, loan was availed from the LIC and constructed the house. R.Gopinath is the only co-parcener. Accordingly, first defendant settled the entire property in favour of R.Gopinath as per Settlement Deed Ex-D4 dated 13-4-1970. The said R.Gopinath bequeathed the said property as per the Will of the year 1984 in favour of the first appellant. Hence, the plaintiffs have no right whatsoever, in respect of the suit schedule property. Since the property has already 32 been settled in favour of the husband of the second defendant appellant and father of the third defendant appellant in the year 1970 itself, the question of seeking partition after lapse of 27 years does not arise. Further, the plaintiffs have no dispute in respect of other joint family properties, which were alienated by the father of the plaintiffs. In view of the amendment to Section 6 of the Hindu Succession Act, the testamentary succession cannot be reopened at this length of time.
20. On behalf of the plaintiffs, the first plaintiff examined herself as P.W.1 and got marked the documents as Ex.P1 to Ex.P10. In her evidence she has reiterated the plaint averments. In the cross- examination she had admitted the partition of the family properties between B.C.Ramalingam and B.R.Ram and properties bearing Nos.6, 7, 8, and 10 of Nadarthi Lane Cross were allotted to B.R.Ram and the property bearing Old Nos.1 and 1A (New Nos.495 and 33
496) situated at OPH Road, Bangalore has fallen to the share of B.C.Ramalingam. Further, she has admitted that as per Ex.D4, the suit schedule property has been settled in favour of R.Gopinath, by the father of the plaintiffs in the year 1970. She has also admitted that they were residing in the same house with defendants 1 to 3. She also admitted that out of four items of the properties, two items of the properties were sold on 26-10-1964 and 12-11-1965 and other two items of the properties have been sold on 30-6-1975 and 16-10-1978. However, she denied the suggestion made by the defendants that after considerable deliberation, a settlement deed was executed in favour of her brother in the year 1970 by her father. She also admitted that OPH Road property was retained by her grandfather B.C.Ramalingam. However, she denied the suggestion to the effect that she was not aware of executing the said settlement deed in favour of R.Gopinath. She has 34 not disputed that the property stands in the name of R.Gopinath and after his death, katha of the said property was effected in the name of the first appellant and her son. Further she also admitted that in the year 1962, R.Gopinath was appointed as a Major in the Indian Army and after pledging the insurance policy, loan was availed from the LIC for construction of the house. However, the loan amount was repaid by her father B.R.Ram. She also admitted that after the death of her brother, the first appellant had paid the tax of the schedule property to the Corporations. She also admitted that OPH Property rent is being received by the first appellant and she has not made any efforts to collect the rents from the tenants of the OPH Road property. However, she has denied the bequeathing of OPH Road property in favour of R.Gopinath. She also admitted that apart from the plaintiffs and defendants 4 and 5, she has got one more sister. Further two 35 children of the second defendant were also not made parties.
21. Further she has examined his brother-in-law K.L.Vishwanath as P.W.2. In the examination-in-chief he has stated that the first defendant purchased the site and constructed the house after availing loan from LIC on the Policy of R.Gopinath and the first defendant repaid the loan amount to the LIC.
22. The second defendant examined herself as D.W.2 and reiterated the averments made in the written statement. In the cross-examination she deposed that she was residing along with her father-in-law and she do not know as to how much rent was being collected from the suit schedule property. The father-in-law being the Kartha of the family was maintaining the family and collecting rents. She admitted that her father-in-law was doing the business of ROLEX watch. 36 However denied the suggestion made by the plaintiffs that out of the rental income and the income from ROLEX watch business, the first defendant purchased a site on 6-2-1967 situated at Jayamahal. She further stated that for construction of the house in the suit schedule property, the insurance policy of her husband R.Gopinath was pledged and loan was obtained. The property situated at OPH Road was bequeathed in the name of her husband by his grandfather and katha also stands in his name. However, her father-in-law was collecting the rents, since R.Gopinath was in Military service transferring from one place to another. She also denied the suggestion made by the plaintiffs that the first defendant has repaid the entire loan amount of Rs.45,000/- on the other hand, she has got marked Ex.D16 to D-21 to show that her husband had repaid the loan amount to the LIC. She got marked Ex.D.9 to Ex.D13 i.e. the tax paid receipts to show that katha 37 stands in her name after the death of her husband. She also deposed that she is a B.Sc. graduate. Since her husband was in the transferable job, she used to go along with him to various places wherever he was transferred. They were residing at Lucknow, Pune, Jhansi and Delhi. In the year 1970, her husband was posted to Bangalore. She further stated that her husband joined Military service in the year 1962 and she got married to him in the year 1968. Further her husband has declared the OPH property as well as the suit schedule property as the property owned by him to the Central Government. The second defendant examined two other witnesses as D.W2 and D.W3 to show that her husband was working as a Colonel in the Indian Army and he had made a declaration with regard to the properties owned by him as per Ex.D7 and Ex.D.8.
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23. On appreciating the oral and documentary evidence, it is explicit that the first defendant purchased the suit schedule property on 6-2-1967, though the plaintiffs claim that out of the rental income of the ancestral properties and the business in the ROLEX watch, the site was purchased in the year 1967. However, no document has been produced to show as to what was the rental income and the income from the ROLEX watch business. In the family partition between B.C.Ramalingam and the first defendant Ex.D.1, four properties were allotted to the share of the first defendant and B.C.Ramalingam retained the property situated at OPH Road, Bangalore. The said property was bequeathed in the name of his grandson R.Gopinath, who is the son of the first defendant working as a Major in the Indian Army and joined the services in the year 1962 and he was married to the second defendant in the year 1968. Since he was in the 39 Military services which is a transferable job, the first defendant was collecting the rents of OPH Road property. The case of the defendants is that in view of the rental income of the OPH Road and contribution made by the husband of the second defendant, the first defendant purchased the site at Jayamahal in the year 1967 for Rs.31,460/-. Thereafter, on pledging the insurance policy of R.Gopinath, the first defendant availed loan from LIC and constructed a residential house thereon. Though the property was purchased in the name of the first defendant, it is on behalf of the husband of the second defendant, wherein he had financed for purchase of the said site and construction of the house. Accordingly, the first defendant executed a settlement deed on 13-4-1970 and not for the purpose of availing loan from the LIC. In fact, as on the date of executing the settlement deed, R.Gopinath was the absolute owner of the OPH Road property and it was 40 bequeathed by his grandfather. The said property could have been given as a mortgage for obtaining the loan. Since R.Gopinath is the only son of the first defendant and the only other co-parcener, there is nothing wrong in one co-parcener settling the property on the other co- parcener. As on the date of settling the property in the year 1970, the plaintiffs were not the co-parcener and the amendment to the Hindu Succession Act has come into force in the year 1994.
24. From the date of settlement deed R.Gopinath became the absolute owner and katha has been effected in his name, which is an indication that the settlement deed is not only a real, valid but also acted upon and the transfer of the suit schedule property having taken place well before the amended provisions of Sec.6 of the Hindu Succession Act 1956 was legislated, the saving of prior transaction as per the proviso is also attracted and therefore, the plaintiffs have no right, interest 41 whatsoever in respect of the suit schedule property. Hence, it is held that the suit schedule property is not the joint family property.
25. The plaintiffs filed the suit on the basis of the amendment to the Hindu Succession Act as amended by the Karnataka Act No.23/1994 (coming into force from 30-7-1994) and also 2005 amendment to the Hindu Succession Act. They contended that they are the unmarried daughters; they had become the co- parcener and they are entitled for their share in the joint family properties from the date of their birth. Section 6 of the Hindu Succession Act reads as under:
6. Devolution of interest in coparcenary property - (1) On and from the commencement of the Hindu Succession (Amendment) Act 2005, in a joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall. -42
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son.
and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener; Provided that nothing contained in this sub- section shall affect or invalidated any disposition or alienation including any partition or testamentary disposition property, which had taken place before the 20th day of December, 2004.
(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition.
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26. Reading of Section 6 provides for parity of right in the co-parcener property among the male and female members of the Hindu joint family. The daughter of the co-parcener becomes a co-parcener by birth in her own rights and liabilities in the same manner as the son. However, Section 6(1) shall not affect or invalidate any dispossession or alienation or partition or testamentary disposition, which has taken place before 20th December 2004. The language employed in the provision is unambiguous and clear. The intention was to save the earlier disposition, alienation including any partition or testamentary disposition of the property, which has taken place before 20th December 2004. In the instant case, admittedly as per the settlement deed dated 13-4-1970, the property has been settled in favour of the sole co-parcener. Section 6 of the Hindu Succession Act protected the alienation or testamentary disposition made prior to 20th December 2004 even if we hold that 44 the suit schedule properties are the joint family properties. The Hon'ble Supreme Court in a judgment reported in 2011(6) KLJ 307(SC) GANDURI KOTESHWARAMMA AND ANOTHER v/s CHAKIRI YANADI AND ANOTHER clearly held that Section 6(1) will not invalidate dispossession or alienate including any partition or testamentary disposition taken place before 20th December 2004. The Division Bench of this court in a judgment reported in ILR 2010 KAR 1484 cited supra has clearly held that Section 6(1) will not affect the alienation made prior to 20th December 2004. Further in a judgment reported in AIR 2009 SC 2649 in the case of SEKAR v/s GEETHA AND OTHERS, the Apex Court clearly held that "Neither the 1956 Act nor the 2005 Act seeks to reopen vesting of a right where succession had already been taken place. The operation of the said statute is no doubt prospective in nature." In view of the declaration of law by the Hon'ble Supreme 45 Court and also this Court, the plaintiffs are not entitled for any share in the suit schedule property. Apart from that the plaintiffs have not objected for alienating the other joint family properties and they have failed to prove that the suit schedule property was purchased by the first defendant from and out of the nucleus of joint family fund. Hence, point No.2 is also held against the plaintiffs.
27. Insofar as the third issue is concerned, admittedly the plaintiffs were residing along with defendants 1 to 3 in the same house. The plaintiffs are fully aware of taking of loan from the LIC pledging the insurance policy of R.Gopinath. Further they were also aware of the alienation of the joint family properties for the legal necessities. Even after construction of the house, some of the ancestral properties were sold in the years 1975 and 1978 and it is difficult to accept the contention of 46 plaintiffs that they were not aware of the execution of settlement deed in favour of R.Gopinath. The plaintiffs are not illiterate ladies. They have toured India and foreign countries also. Further, katha of the suit schedule property stands in the name of R.Gopinath till his death and after his death, the katha was transferred in the name of the second defendant and she was collecting rents from the tenants of OPH Road Property. Hence it is difficult to believe that the plaintiffs were not aware of the execution of registered settlement deed in favour of R.Gopinath. The suit has been filed after lapse of 27 years of execution of the registered settlement deed. Under Article 109 of the Limitation Act, the suit has to be filed within 12 years from the date of alienee taking possession of the property. Further, the amendment to the Hindu Succession Act came into force on 30-7-1994 and within three years of coming into force of the Act, they ought to have filed the 47 suit. In the instant case, suit has been filed on 12-12-1997 that is beyond three years. Hence, the suit filed by the plaintiffs is barred by limitation. Further, the plaintiffs themselves have admitted that they have got one more sister and she was not made party to the suit and also two children of the second defendant who have also got share in the properties were not made parties to the suit. Hence, the suit filed by the plaintiffs is non-joinder of necessary parties. For all these reasons, the appellants have to succeed in the appeal. The Trial Court without considering all these aspects of the matter mainly on the ground that there is no transfer or alienation of the suit schedule property permanently and in view of the amendment to the Hindu Succession, the plaintiffs are entitled for their share in the suit schedule property, without noticing the cut off date fixed under proviso to Section 6(1) of the amended Act of 2005 has decreed the suit and held that 48 the plaintiffs are entitled to their share in the suit schedule property. When the plaintiffs claim that the suit schedule property was purchased from the nucleus of the joint family properties, it is for the plaintiffs to prove the same. However, no document has been produced and the Trial Court without critically examining the evidence on record decreed the suit. Further, the husband of the second defendant and father of the third defendant was the sole co-parcener and he is entitled to succeed the estate. Apart from that, in view of the settlement deed, the plaintiffs have no right in the suit schedule property, which was purchased from and out of the salaried income of R.Gopinath. These aspects of the matter have not been considered by the Trial Court. The order passed by the Trial Court cannot be sustained in the eye of law. Further the judgments relied upon by the 49 respondents/plaintiffs are also not applicable to the facts of the present case.
28. Accordingly we pass the following:
ORDER The appeal is allowed. The judgment and decree dated 12-3-2010 made in O.S.No.6294/1997 is set aside. Accordingly, the suit filed by the plaintiffs is dismissed.
Sd/-
JUDGE Sd/-
JUDGE mpk/-*