Karnataka High Court
Basamma vs Hanumanthappa Dead By Lrs on 7 November, 2022
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR SECOND APPEAL NO.40 OF 2007 (PAR)
BETWEEN:
1. BASAMMA,
W/O. LATE BASAPPA @ KUNDAPPA,
71 YEARS, HOUSEHOLD WORK
RESIDING AT HEGGANAHALLI
CHIKKURALI HOBLI,
PANDAVAPURA TALUK,
MANDYA DISTRICT - 571434.
THE APPELLANT NO.1 DIED ON 19.09.2015
APPELLANT NO.2 IS TREATED AS LR OF
DECEASED APPELLANT NO.1
V/C/O DT: 21.04.2016.
2. SHIVAMMA
W/O NINGAPPA
HOUSEHOLD WORK,
MAJOR,
R/O. CHAGASETTIHALLI VILLAGE,
KASABA HOBLI,
PANDAVAPURA TALUK - 571434,
MANDYA DISTRICT. ... APPELLANTS
(BY SRI VIVEKANANDA T P, ADVOCATE)
AND:
HANUMANTHAPPA DEAD BY LRS
1. GOWRAMMA,
W/O. SRIKANTEGOWDA,
AGED ABOUT 60 YEARS
R/O. CHAKASETTAHALLI,
2
CHINAKURALI HOBLI,
PANDAVAPURA TALUK - 571434.
2. NANJAPPA,
S/O. HANUMANTHAPPA,
MAJOR,
R/O. CHAKASETTAHALLI,
CHINAKURALI HOBLI,
PANDAVAPURA TALUK - 571434.
3. THAYAMMA,
W/O. BASAPPA ,
AGED ABOUT 55 YEARS,
R/O. NUGAHALLI,
KASABA HOBLI,
PANDAVAPURA TALUK - 571434.
4. SOMASEKHARAIAH,
S/O. HANUMANTHAPPA,
AGED ABOUT 52 YEARS,
R/O. CHAKASETTAHALLI,
CHINAKURALI HOBLI,
PANDAVAPURA TALUK - 571434.
5. DAKSHAYANI,
W/O. NINGAPPA,
AGED ABOUT 45 YEARS,
R/O. LALANADEVANAHALLI,
K.R. NAGARA TALUK - 571602.
6. JAYALINGAPPA,
S/O HANUMANTHAPPA,
AGED ABOUT 44 YEARS,
R/O CHAKASETTAHALLI,
CHINAKURALI HOBLI,
PANDAVAPURA TALUK - 571434. ... RESPONDENTS
(BY SRI SMT.K.R.JAYALAKSHMI, ADVOCATE FOR
PADUBIDRI MOHAN RAO ASSTS. )
THIS RSA IS FILED U/S 100 CPC AGAINST THE
JUDGMENT AND DECREE DATED 11.9.2006 PASSED IN
R.A.NO.4/1996 ON THE FILE OF THE PRL.DISTRICT JUDGE,
MANDYA, ALLOWING THE APPEAL AND SETTING ASIDE THE
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JUDGMENT AND DECREE DATED 26.10.1995 PASSED IN
OS.NO.58/1989 ON THE FILE OF THE CIVIL JUDGE & JMFC,
SRIRANGAPATNA.
THIS APPEAL COMING ON FOR FURTHER HEARING
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned advocate appearing for the appellant and the learned advocate appearing for the respondents.
2. This is an unfortunate case where a lady by name Basamma who filed a suit for maintenance along with her daughter Shivamma against her husband in the year 1964, lost the battle when she claimed a maintenance of Rs.50/- per month. In the suit filed by her seeking partition in the property of her husband, after the demise of the husband, the suit is dismissed though her status as wife of Basappa was established in the earlier proceedings. Now in this second appeal, she is no more. The appeal is being prosecuted by her daughter Shivamma.
4Brief facts:
3. This appeal is arising from the judgment and decree passed in O.S.58/89 on the file of the Civil Judge & JMFC, Srirangapatna. The suit was for partition and separate possession. The suit was decreed. Challenging the judgment and decree, 1st defendant filed R.A.4/96 on the file of the Principal District Judge, Mandya. The said appeal was allowed in terms of the impugned judgment and decree dated 11.09.2006. The plaintiff filed RSA 384/99 before this Court challenging the judgment and decree in R.A.4/96. This Court in terms of the judgment and decree dated 21.02.2005 allowed the appeal in part and remanded the matter to the trial Court to consider whether the unchastity of the wife can be considered as ground to deny the share to the wife in the property of her deceased husband.
4. The First Appellate Court after remand has concluded that the wife is not entitled to share in the property of the husband on the premise that the plea of unchastity raised by the defendant is proved by the defendant.
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5. Again challenging the judgment an decree of the First Appellate Court, plaintiff is in second appeal.
6. Brief facts necessary for adjudication of the case are as follows:
- There is no dispute over the fact that plaintiff is the wife of Basappa. Plaintiff also claims that one Shivamma is her daughter through Basappa. The suit is filed against Hanumanthappa - brother of deceased Basappa. At this juncture, it is relevant to state certain antecedent facts which are relevant for the purpose of this case. Misc.58/58 was filed by Basappa under Section 13 of The Hindu Marriage Act, 1955 seeking dissolution of marriage. The said petition was dismissed vide order dated 24.06.1958. This order was not called in question. This order has attained finality. Thereafter, one more petition was filed in Misc.136/58 by said Basappa once again seeking dissolution of marriage. Again it was dismissed on 12.11.1959. Thereafter the suit was filed O.S.423/1964 by Basamma and her daughter Shivamma seeking maintenance. The said suit was decreed in part. 6 The Court held that Shivamma is not the daughter of Basappa, however, granted maintenance only in favour of the Shivamma. No decree was passed in favour of Basamma, the wife of Basappa. This judgment and decree were called in question by Basappa by filing R.A.27/67. Basamma also filed an appeal in R.A.No.33/67. The appeal by Basappa was allowed and appeal filed by Basamma was rejected. However, while allowing the appeal filed by Basappa, the finding that Basamma is the wife of Basappa is not disturbed by the Appellate Court.
7. The status of Basamma as the wife of Basappa has attained finality. Basappa died in 1989. After his demise, Basamma filed a suit referred above seeking partition and separate possession. As noticed earlier, the trial Court has granted decree. The First Appellate Court allowed the appeal and dismissed the suit on the premise that Basamma led unchaste life. As noticed earlier again this Court has remanded the matter to the First Appellate Court to decide the question, "Whether unchastity is a ground to deny the share to the widow?"
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8. The First Appellate Court placing reliance on the judgment of the Apex Court in the case of VELAMURI VENKATA SIVAPRASAD vs KOTHURI VENKATESWARLU reported in AIR 2000 SC 434 has held that the wife is not entitled to share in the property once she marries after the death of the husband.
9. Learned counsel for the appellant would make following submissions:
(i) The First Appellate Court misdirected in placing reliance on the Judgment referred above. In the aforementioned case, the Supreme Court was considering the status of a wife who remarried before 1956. In the said case whether the remarriage before the commencement of the Hindu Marriage Act, 1956 would disqualify the widow from inheriting the property of the first husband was the question, in the said case. This is not the case when Court is considering the question of remarriage of widow. Basamma never remarried.8
(ii) After the commencement of Hindu Succession Act, 1956 the disqualification to inherit the property has to be under the Act of 1956 and not under any other provision of law.
(iii) The status of Basamma as the wife of Basappa is already declared in the earlier proceedings. As such, Basamma becomes Class-I heir to Basappa. Thus, she is entitled to share in the property.
(iv) Basamma died in the year 2015 and present appeal is now being prosecuted by Shivamma Basamma's daughter. Shivamma being Class-I heir of Basamma, succeeds to the property of Basamma.
10. Learned counsel for the respondents would raise the following contentions:
(i) The suit filed by Basamma seeking maintenance in O.S.423/1964 was dismissed as against Basamma and appeal filed by her is also dismissed in R.A.33/67. Moreover, R.A.27/67 filed by Basappa challenging the judgment for maintenance is also 9 allowed, as such the wife i.e.Basamma is not entitled to succeed to the share of Basappa.
(ii) It is established that Basamma led an unchaste life as such, she is disqualified in law and therefore, the First Appellate Court is justified in placing reliance on the judgment of the Apex Court in VELAMURI VENKATA SIVAPRASAD supra and Basamma is not entitled to inherit any property.
(iii) The trial Court in earlier proceeding as held that Shivamma is the illegitimate daughter of Basappa and as such, she is not entitled to succeed to the share of Basamma through Basappa.
11. This Court has considered the rival contentions.
12. This appeal is admitted to consider the following substantial questions of law framed on 25.08.2009:
"Whether the wife of a pre-deceased coparcener of a joint family is dis-qualified from inheriting the share of her husband in the joint family on the ground of leading an unchaste & immoral life?"
13. As could be noticed by the impugned judgment and decree passed by the First Appellate Court, it is 10 apparent that the First Appellate Court has placed reliance on the judgment of the Apex Court in the case of VELAMURI VENKATA SIVAPRASAD supra. In the said case, the Supreme Court was considering the legal position of a widow marrying prior to 1956. In the facts of the said case, the Hon'ble Apex Court has come to the conclusion that under law prevailing prior to 1956, the widow after her remarriage is disqualified to inherit the property of her first husband who is deceased. After 1956, the law relating to succession in codified in terms of The Hindu Succession Act, 1956. Section 4 of the Hindu Succession Act is relevant which reads as under:
4. Over-riding effect of Act.-(1) Save as otherwise expressly provided in this Act,-
(a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act;
(b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act.11
14. From reading of Section 4, it is apparent that it has got over-riding effect in respect of text, rule or interpretation of Hindu law or any custom or usage of part of that law in force immediately before the commencement of the Act shall cease to have effect with respect to any matter for which provision is made in the Act. Section 4 also provides that law immediately before the commencement of this Court shall cease to apply to Hindus insofar as it is inconsistent with any of the provisions of law. Thus, whether the widow is disqualified from inheriting the property of her husband is to be understood with reference to the provisions of The Hindu Succession Act, 1956 and not from any other previous law or text or custom or usage.
15. Sections 25 to 28 deal with the condition under which a person is disqualified to inherit the properties. Section 25 deals with the disqualification on account of murder. Section 26 deals with the disqualification incurred by the person who converts from Hindu religion to another religion. Section 27 deals with a consequence of 12 disqualification. Section 28 is a provision which provides that no person shall be disqualified from succeeding to any property on the ground of any disease, defect or deformity or save as provided in this Act on any ground whatsoever. Section 28 has got a far reaching effect. Section 28 specifically provides for disqualification to inherit the property is to be found in provisions of this Act and not elsewhere. Under the circumstances, there is no difficulty in saying that the ground of unchasitity which is sought to be urged as defense by the defendant to say that the plaintiff is disqualified is no longer available to the defendant under The Hindu Succession Act, 1956. Unfortunately, these provisions have not been noticed by the First Appellate Court though death of Basappa died after the commencement of Hindu Succession Act, 1956.
16. So far as the contention of the learned counsel for the respondents that daughter cannot inherit the property of Basamma, again it has to be noticed that there is no dispute over the fact that Basamma had a daughter by name Shivamma. The finding of the Court in the earlier proceeding is that Shivamma is not the legitimate 13 daughter of late Basappa. From the records, it is apparent that Shivamma is the daughter of Basamma. Under the circumstances, all the properties held by Basamma would devolve after her on her only daughter Shivamma. Plaintiff is entitled to succeed to the share of Basamma which she inherited after the death of Basappa. Under the circumstances, the substantial questions of law framed has to be answered in favour of the appellant and against the respondents.
17. Learned counsel for the respondent would submit that the trial Court has granted decree for 1/4th share to Basamma and remaining 1/4th to Shivamma. This judgment was not called in question by Basamma and the decree granting 1/4th share to Basamma is concerned, the same has attained finality and same cannot be disturbed in the instant appeal in the absence of any appeal by Basamma by challenging the judgment and decree awarding only 1/4th share.
18. The Final Decree Proceedings Court shall expedite the matter on the fact that Basamma died in this 14 case without having the benefit of the decree which was passed in her favour. It is the law declared by the Apex Court in M L SUBBARAYA SETTY AND OTHERS vs M L NAGAPPA SETTY AND OTHERS reported in AIR 2002 SC 2066 that Final Decree Proceeding has to be proceeded on day-to-day basis. It is made clear that the trial Court shall expedite the final decree proceeding and ensure that the fruits of the decree are available to the appellant at the earliest. It is also made clear that the decree for past and future profits is passed by this Court. The FDP Court shall hold enquiry to ascertain past profits payable to the appellant.
19. This contention of the respondent's counsel cannot be accepted in view of Order XLI Rule 33 of CPC. If there is an error in computing the share, then the appellate Court can exercise power under Order XLI Rule 33 to award correct share and modify the decree even in the absence of challenge to the quantum of share awarded by the trial Court. Once in the earlier proceeding it was held that Shivamma is not the daughter of Basappa, then the trial court could not have granted 1/4th share to 15 Shivamma. Moreover, in this case assuming that the contention of the learned counsel for the respondent is to be accepted, then also it is to be noted that 1/4th share awarded to Shivamma is also not questioned. After the demise of Basamma, Shivamma the present appellant is prosecuting the appeal and claiming share through Basamma. Under the circumstances, the decree for partition has to be passed holding that Shivamma has got 1/2 share in the suit property and accordingly, appeal is allowed.
20. Hence, the following:
ORDER The judgment and decree dated 11.09.2006 passed by the Principal District Judge at Mandya in R.A.No.4/1996 is to be set-aside and are set-aside. The judgment and decree dated 26.10.1995 passed by the Civil Judge & JMFC, Srirangapatna in O.S.No.58/89 is restored. Appellant is entitled to half share in the suit schedule property.
Sd/-
JUDGE BRN