Karnataka High Court
Bhagirati W/O Kallappa Udapudi, vs Rukmavva W/O Goudappa Chouraddi, on 10 December, 2018
Author: B.V. Nagarathna
Bench: B.V. Nagarathna
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 10TH DAY OF DECEMBER, 2018
PRESENT
THE HON'BLE MRS. JUSTICE B.V. NAGARATHNA
AND
THE HON'BLE MR. JUSTICE BELLUNKE A.S.
REGULAR FIRST APPEAL No.100022/2015 (PAR & SP)
BETWEEN:
1. SMT. BHAGIRATI,
W/O. KALLAPPA UDAPUDI,
AGE: 32 YEARS,
OCC: HOUSEHOLD WORK,
R/O. KOPPADATTI, TQ: GOKAK,
NOW RESIDING AT C/O. TARAVVA
W/O. SANGAPPA DESAI,
JAI NAGAR, MUDHOL, TAL: MUDHOL,
DIST: BAGALKOT - 587 101.
2. KUMARI SANJANA,
D/O. KALLAPPA UDAPUDI,
AGE: 10 YEARS,
R/O. KOPPADATTI, TQ: GOKAK,
NOW AT C/O. TARAVVA,
W/O. SANGAPPA DESAI,
JAI NAGAR, MUDHOL, TAL: MUDHOL,
DIST: BAGALKOT - 587 101.
3. KUMAR BASAVARAJ,
S/O. KALLAPPA UDAPUDI,
AGE: 7 YEARS,
R/O. KOPPADATTI, TQ: GOKAK,
NOW AT C/O. TARAVVA,
W/O. SANGAPPA DESAI,
JAI NAGAR, MUDHOL, TAL: MUDHOL,
DIST: BAGALKOT - 587 101.
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SINCE APPELLANTS NO.2 AND 3 ARE MINORS,
R/BY THEIR NATURAL MOTHER
MINOR GUARDIAN APPELLANT NO.1
BHAGIRATI W/O. KALLAPPA UDAPUDI. ... APPELLANTS
(BY SMT. PALLAVI S. PACHHAPURE AND
SRI SRINAND A. PACHCHAPURE, ADVOCATES)
AND:
1. SMT. RUKMAVVA,
W/O. GOUDAPPA CHOURADDI,
AGE: 32 YEARS,
OCC: HOUSEHOLD WORK,
SINCE DIED ON 01.11.2014.
REP. BY HER L.R.
1A. SRI GOUDAPPA,
S/O. HANAMAPPA CHOURADDI
AGE: 38 YEARS, OCC: AGRICULTURE,
R/O. JAMBAGI, TQ. MUDHOL,
DISTRICT BAGALKOT. ... RESPONDENT
(BY SRI A.S. PATIL, ADVOCATE FOR R1(A))
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF THE CIVIL PROCEDURE CODE, AGAINST THE JUDGMENT
AND DECREE DATED 18.11.2014 PASSED IN O.S. NO.98/2012
ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE,
GOKAK, DECREEING THE SUIT FILED FOR PARTITION AND
SEPARATE POSSESSION.
THIS REGULAR FIRST APPEAL COMING ON FOR 'ORDERS'
THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:
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JUDGMENT
Though this appeal is listed to consider I.A.No.3/2018 which is for early hearing, with the consent of learned counsel on both sides, it is heard finally.
2. This Regular First Appeal assails the judgment and decree dated 18.11.2014 passed in O.S. No.98/2012 by the I Additional Senior Civil Judge, Gokak.
3. For the sake if convenience, the parties shall be referred to in terms of their status before the trial Court.
4. Plaintiff filed the suit seeking partition and separate possession of 1/3rd share in 'A' schedule properties. According to the plaintiff, the original propositus, Balappa died in the year 2006 leaving behind him his widow - defendant No.1, his son deceased Kallappa and his daughter i.e., the plaintiff as his legal heirs. Kallappa died on 26.11.2011 leaving behind him 4 his widow - defendant No.2 and his children - defendant Nos.3 and 4 as his only Class-I legal heirs entitled to succeed to his estate. According to the plaintiff, she and defendant No.1 together constitute a Hindu undivided family and the suit properties are ancestral/joint family properties. That the name of the plaintiff was appearing in the record of rights along with defendant No.1 i.e. deceased Kallappa, but, he colluded with the revenue authorities and got plaintiff's name deleted from the revenue records in respect of the suit properties. Subsequent to the death of Kallappa, defendant Nos.2 to 4 mutated their names in respect of the suit properties. When these developments came to the knowledge of the plaintiff, she requested defendant No.2 to consent for entering her name in the revenue records, but defendant No.2 refused to oblige. In the first week of April 2012, plaintiff demanded her legitimate share in the suit schedule properties. Defendant Nos.1 and 2 refused to partition the suit properties. Left with no other alternative, plaintiff filed the suit seeking partition and 5 separate possession of her 1/3rd share in the suit properties.
5. In response to the suit summons and court notices, defendant Nos.2 to 4 appeared through their counsel and filed their written statement by only admitting the relationship between the parties and by denying the other material averments made in the plaint. It is averred that Kallappa, during his life time, had performed marriage of the plaintiff by spending huge sums of money and that the plaintiff had relinquished her right, title and interest over item No.1 of suit 'A' schedule properties in favour of Kallappa on 23.05.2009 and that defendant No.1 had also relinquished her right over the other suit properties in favour of Kallappa and the latter had become the absolute owner of the suit property. Further, plaintiff and defendant no.1 had relinquished their right, title and interest over item No.3 of the suit property and also over 12 acres of land in Sy. No.249/2 of Yadwad Village (item No.2 of the suit property) in favour of Kallappa before the elders of the village and 6 that Kallappa had become the absolute owners of item Nos.2 and 3 of the suit 'A' schedule properties. That the name of Kallappa was entered in the records of right as the absolute owner as per the joint wardi given by the plaintiff and defendant no.1, who had not challenged the entries in the records of right and hence, the same is binding upon the plaintiff. That Kallappa, during his life time, had sold an extent of six acres out of twelve acres in sy.No.249/2 of Yadwad Village in favour of Parayya Shankarayya Mahalingapur, Vasant Shankarayya Mahalingapur, Gururaj Shankarayya Mahalingapur and Sangamesh Shankarayya Mahalingapur under a registered sale deed dated 11.05.2011 on account of family necessity. Hence, in the absence of such purchasers as parties, the present suit is not maintainable. It is also contended that Basappa owned three acres of land and the said extend had not been included in the suit. That the mutation entries in favour of defendant Nos.2 to 4 have not been challenged by the 7 plaintiff and therefore, they sought for dismissal of the suit.
6. On the basis of the rival pleadings, the trial court framed the following issues for its consideration:
"1. Whether the defendants 2 to 4 prove that the plaintiff and defendant No.1 have relinquished their right over the suit properties?
2. Do they further prove that the persons referred to in para 21 of their written statement are necessary and proper parties?
3. Whether the plaintiff is entitled for relief?
4. What order or decree?"
7. In spite of repeated opportunities being given, the plaintiff as well as defendant Nos.2 to 4 did not let-in any oral or documentary evidence so as to substantiate their respective contentions. The Trial Court on hearing the arguments answered issue Nos.1 and 2 in the negative and answered issue No.3 in the affirmative and decreed plaintiff's suit declaring that the plaintiff was entitled to 8 half share in the suit properties, while defendant Nos.2 to 4 were together entitled for half share in the suit properties and a direction was issued to draw the preliminary decree accordingly. Being aggrieved by the said judgment and decree, defendant Nos.2 to 4 have preferred this appeal.
8. We have heard learned counsel for the appellant and learned counsel for respondent No.1(a) and perused the material on record.
9. Appellants' counsel contended that the Trial court was not right in allotting half share in the suit properties to the plaintiff. She drew our attention to the genealogy of the family and submitted that the original propositus, Basappa and his wife Kashibai both died in the year 2006 and 2012 respectively; that they had two children, namely, Kallappa and Rukmavva; that since Basappa died in the year 2006, the principle of notional partition would apply and Basappa and his son would each get half share in the suit properties and that the plaintiff- 9 Rukmawwa, the daughter of Basappa, would get a share in the share of Basappa i.e. 1/4th share and the other 1/4th share would have to be allotted to Kallappa in addition to his half share; that the trial Court was not right in allotting half share to the plaintiff Rukmawa. She further contended that, on the demise of the plaintiff during the pendency of the suit i.e., on 01.11.2014, by virtue of Section 15(2) of the Hindu Succession Act, 1956 (hereinafter referred to as 'the Act' for the sake of brevity), the share of the plaintiff would revert to the heirs of her father namely the defendants in the suit. Therefore, the Trial court was not right in allotting the share to the legal heir of the respondent/plaintiff who is her husband.
10. Learned counsel further contended under Section 15(1) of the Act, the property of a female Hindu dying intestate shall devolve firstly, upon the sons and daughters and the husband, but under clause (a) of sub-section (2) of Section 15, which begins with a non- obstante clause, any property inherited by a female Hindu from her father or mother shall devolve, in the absence of 10 any son or daughter of the deceased not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father. Learned counsel for the appellants contended that the respondent/plaintiff, Rukmawwa, did not have any children and she died leaving behind her husband and therefore, her share would now have to devolve upon the appellants herein, who are the heirs of her father. She, therefore, submitted that the appeal may be allowed.
11. Per contra, learned counsel for the respondent/plaintiff contended that Basappa died in the year 2006 subsequent to the enforcement of amendment to section 6 of the Act; that as per the amended Section 6, Rukmawwa was entitled to a share equal to that of brother having regard to the dictum of the Hon'ble Supreme Court in the case of P r ak a s h a n d O th e r s v s. P hu l a v at i & O th e rs reported in ( 20 1 6) 2 S C C 36, ( Ph u l av a t i) . Hence, the trial court was right in granting half share to the respondent/plaintiff. He, further, fairly contended that since Rukmawwa is now dead, and he, being her husband, 11 succeeded to her and as she did not have any children, her share would now have to devolve upon the appellants herein.
12. On hearing learned counsel for the respective parties, the following points would arise for our consideration:
1) Whether the trial Court was right in allotting half share in the suit schedule properties to the plaintiff?
2) Whether, on the demise of plaintiff during the pendency of the suit on 01.11.2014, by virtue of sub-section (2) of Section 15 of the Hindu Succession Act, 1956, the share of the plaintiff would revert to the heirs of her father namely the defendants in the suit?
13. The relationship between the parties is not in dispute. The original propositus - Basappa died in the year 2006 after coming into force of the amendment to Section 6 of the Act. His wife Kashibai died on 24.04.2012. They had two children namely Kallappa and Rukmavva. 12 Kallappa's wife is Bhagirathi and their children are Sanjana and Basavaraj. As far as point No.1 is concerned, it is noted that the original propositus Basappa died in the year 2006. It is subsequent to enforcement of the amendment to Section 6 of the Act, as per the judgment of the Hon'ble Supreme Court in the case of Prakash vs. Phulwathi (supra) since the coparceners and particularly, the father (Basappa) as well as the daughter (Rukmavva) were both alive on 09.09.2005, the plaintiff is entitled to a share equal to that of her brother Kallappa. In the circumstances, the plaintiff was entitled to only half share in the suit schedule properties. The trial Court was right in allotting half share to Rukmavva and other half share to Kallappa. We find no infirmity in the said allotment made by the Trial Court. Accordingly, point No.1 is answered against the appellant and in favour of respondent/plaintiff.
14. As far as Point No.2 is concerned, it is the contention of the learned counsel for the appellant that since the respondent/plaintiff died during the pendency of the suit just prior to the pronouncement of the judgment 13 in the suit, the half share of the respondent/plaintiff in the suit schedule property would now have to be succeeded to by her legal heirs as per Section 15 of the Act, which reads as under:
"15. General rules of succession in the case of female Hindus.- (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,-
(a) firstly, upon the sons and daughters (including the children of any pre-
deceased son or daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother. (2) Notwithstanding anything contained in sub-section (1),
(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified 14 therein, but upon the heirs of the father, and
(b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter ) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband."
Under sub-section (1) of Section 15 of the Act, the property of a Hindu female dying intestate would devolve firstly, upon her sons and daughters, including the children of any pre-deceased son or daughter, and her husband. But, sub-section (2) of Section 15 is an exception to Section 15(1)(a). Sub-section 2(a) of Section 15 states that notwithstanding anything contained in sub-section (1), any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased, not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of her father. The import of the above 15 section is that, if any female hindu dies intestate, then the property inherited by such a female Hindu from her parents would devolve on her sons, daughters and husband in the first instance, but if such a female Hindu does not have any son or daughter, then such property would not devolve upon her husband or any other heir mentioned in sub-section (1) of Section 15 of the Act. The said property would be succeeded to by heirs of her father.
15. The object of sub-section (2) is to ensure that the property left by a Hindu female does not lose its source from the deceased female, who had inherited the property from her parents in the absence of she having any children. In other words, if a female Hindu dies intestate having no children, then her husband would not be entitled to inherit the property which is inherited by her from her parents. In other words, such property would revert to her parental family. The intention of the Parliament is that the property inherited by a female Hindu from her parents, on the demise of the said female Hindu, should be succeeded to by legal heirs of her parents in the absence of the 16 female Hindu having a son or a daughter; it cannot devolve upon her husband or her husband's family. The fact that the female Hindu originally had limited right and later acquired the full right would not alter the rules of succession as provided in sub-section (2) of Section 15 of the Act vide Bhagat Ram (D) by L.Rs. vs. Teja Singh (D) by L.Rs., AIR 2002 SC 1. Since sub-section (2) of Section 15 of the Act applies to the present case, the share of the plaintiff reverts to the legal heirs of her father namely the defendants in the suit. Accordingly, we answer point No.2 in favour of the appellants.
16. Appeal is allowed in the aforesaid terms. Office to draw a preliminary decree accordingly. I.A. No.3/2018 is disposed accordingly off.
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