Karnataka High Court
Thippeswamy vs Sri Rangappa on 20 December, 2013
R
1 RSA No.25/2009 CW
RSA No.26/2009
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 20TH DAY OF DECEMBER, 2013
BEFORE
THE HON'BLE MR. JUSTICE A.S. PACHHAPURE
REGULAR SECOND APPEAL No.25 OF 2009
C/W.
REGULAR SECOND APPEAL No.26 OF 2009
BETWEEN:
1. THIPPESWAMY
AGED ABOUT 46 YEARS
S/O BANGARI THIMMANNA
AGRICULTURIST
R/O CHIKKENAHALLI VILLAGE
CHALLAKERE TALUK-562 132.
2. SMT NAGAMMA
W/O BANGARI THIMMANNA
MAJOR
R/AT CHIKKENAHALLI VILLAGE
CHALLAKERE TALUK-562 132. ... APPELLANTS
[COMMON IN BOTH THE APPEALS]
(BY SRI: P D SURANA, ADV)
AND:
SRI RANGAPPA
S/O KURILINGAPPA
AGED ABOUT 65 YEARS
AGRICULTURIST
R/O CHIKKENAHALLI VILLAGE
CHALLAKERE TALUK-562 132. ... RESPONDENT
[COMMON IN BOTH THE APPEALS]
(BY SRI: G BALAKRISHNA SHASTRY, ADV)
2 RSA No.25/2009 CW
RSA No.26/2009
THESE RSAs ARE FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT & DECREE DATED 26.09.2008
PASSED IN RA NOS.16/2008 & 15/2008 RESPECTIVELY
ON THE FILE OF THE PRL. DISTRICT JUDGE,
CHITRADURGA, DISMISSING THE APPEAL FILED AGAINST
THE JUDGMENT AND DECREE DATED 12.12.2007
PASSED IN OS NOS.163/2002 & 08/2004 RESPECTIVELY
ON THE FILE OF THE CIVIL JUDGE (SR.DN.),
CHALLAKERE.
THESE RSAs HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT, THIS DAY THE COURT PRONOUNCED THE
FOLLOWING:
J U D G M E N T
The appellants have challenged the dismissal of their suit in OS No.8/2004 and judgment and decree for injunction against them in OS No.163/2002 granted by the trial Court and confirmed in the appeals by the First Appellate Court.
2. The facts relevant for the purpose of these appeals are as under:
For the sake of convenience, the parties will be referred by their names.3 RSA No.25/2009 CW
RSA No.26/2009
Late Odo Nagappa and his wife Rangamma had no male issues. Nagamma the second plaintiff in O.S.No.8/2004 and second defendant in O.S.No.163/2002 and Muddamma are the two daughters of the aforesaid couple, whereas plaintiff No.1 in OS No.8/2004 and the first defendant in the other suit is Thippeswamy, the son of Nagamma. Late Odo Nagappa was the owner in possession of Sy.Nos.114/4, 111/5 and 108/3. Odo Nagappa died approximately 50 years prior to the suit. After his death, his wife Rangamma inherited the properties left by her husband. On the death of Odo Nagappa, she came in possession of the suit properties and after the marriage of her daughters in the same village she gifted the land bearing Sy.No.111/5 and northern portion of Sy.No.114/4 to Nagamma, whereas, the southern portion in Sy.No.114/4 measuring 18 acres and 18 guntas was gifted to Muddamma. The gift deed was executed on 09.04.1954. Since from the date of 4 RSA No.25/2009 CW RSA No.26/2009 gift, the respective properties were enjoyed by their daughters and they came in possession of the respective portions under the gift. The suit property is the property which was gifted by Rangamma to his second daughter Muddamma.
Muddamma came in possession of the suit property after the gift and she died about two years and two months prior to the suit and her husband Rangappa continued in possession of the suit property as her heir. Late Muddamma and her husband Rangappa had no issues. After the death of Muddamma, her husband Rangappa @ Bodappa sold the suit property to Rangappa i.e. the plaintiff in OS No.163/2002 and the defendant in the other suit. He got his name entered in the records as per the entry bearing No.IHC.75/1997-98. The sale deed came to be executed on 03.07.1997. Subsequently on 05.12.1997 a rectification deed was also executed. From the date of sale, Rangappa claims to be in possession of the suit 5 RSA No.25/2009 CW RSA No.26/2009 property and it was his contention that neither Nagamma nor her son Thippeswamy have any right, title or interest in the suit property. These being the facts, both Thippeswamy and Nagamma filed an appeal against the mutation entry to Assistant Commissioner in RA No.19/1997-98. The said appeal was allowed and the name of first defendant was ordered to be entered in the records. It is in these circumstances that one suit came to be instituted seeking the relief of declaration and injunction, whereas, the other suit was filed for the same reliefs.
It was the contention of Nagamma and her son Thippeswamy that on the death of Muddamma, the suit property reverts back to her by inheritance and Rangappa the purchaser had no right, title or interest of whatsoever type over the suit property whereas it was the contention of Rangappa that Muddamma was absolute owner of the suit property on the basis of gift deed 6 RSA No.25/2009 CW RSA No.26/2009 executed by her mother Rangamma and on the death of Muddamma, her husband acquired an absolute interest in the suit property and he sold it in his favour under the registered sale deed dated
03.07.1997. So he pleads that since from the date of registered sale, he has acquired the title and also the possession and therefore, sought for the relief.
On the basis of aforesaid facts and pleadings, the Trial Court framed 5 issues in OS No.163/2002 whereas as many as 6 issues in the other suit. Both these cases were clubbed and the Trial Court permitted the parties to lead common evidence.
Accordingly, Thippeswamy the son of Nagamma was examined as PW1 and two witnesses PWs.2 and
3. In their evidence, documents Exs.P1 to P5 were marked. Rangappa was examined as DW1 and a witness DW2 and in their evidence, documents 7 RSA No.25/2009 CW RSA No.26/2009 Exs.D1 to D6 were marked. The Trial Court after hearing the counsel for parties and on appreciation of the evidence on record, decreed the suit in part in OS No.163/2002 and declared Rangappa as the owner of suit schedule property and granted an injunction restraining Nagamma and her son Thippeswamy from causing obstruction to the peaceful possession and enjoyment of the suit property, whereas OS NO.8/2004 instituted by Thippeswamy and Nagamma claiming the same reliefs was dismissed. Aggrieved by the common judgment and decrees in both the suits, Thippeswany and Nagamma preferred RA Nos.15 and 16/2008. Learned District Judge after clubbing both these appeals, heard them and by a common judgment and decree dated 26.09.2008 dismissed both the appeals. Aggrieved by the judgment and decrees of the Courts below, the aforesaid Thippeswamy and Nagamma have approached this Court in both these appeals.
8 RSA No.25/2009 CWRSA No.26/2009
3. At the time of admission, this Court has raised the following substantial question of law for consideration:
"1. Whether the Courts below were justified in holding that Section 15(1) of Hindu Succession Act, 1956 would apply to the facts of the case in deciding the right of the plaintiffs and whether it was in fact Section 15(2) of the Act, which ought to have been applied?
2. Whether Section 14 of the Act would over ride Section 15(2) of the Act? and
3. Whether the Courts below have over looked the law as laid down by the Supreme Court in the case of BHAGAT RAM (D) BY LRs Vs TEJA SINGH (D) BY LRs (AIR 2002 SC 1)?"
4. I have heard learned Counsel for both the parties.
9 RSA No.25/2009 CWRSA No.26/2009
5. It is the contention of learned Counsel for the appellants that Rangamma, the wife of Odo Nagappa had acquired a life interest in the properties left by her husband and as she gifted those properties under a gift deed dated 09.04.1954 to both her daughters who were entitled to the properties by inheritance on the death of their mother Rangamma, they were the absolute owners of the properties given to them under a gift deed. Both the daughters got properties and their right of inheritance was accelerated and it relates back to the date of gift. Therefore, he contends that the properties given to both the daughters could be treated as an acquisition by inheritance and on the death of Muddamma, the husband cannot claim any right over the suit property and it has to revert back to the heirs of her father or mother as she had no children through her husband Rangappa. Hence, it is his contention that 10 RSA No.25/2009 CW RSA No.26/2009 under the provisions of Section 15(2)(a) of the Hindu Succession Act, the suit property inherited by Muddamma from her father or mother would devolve in the absence of any son or daughter, not upon the heirs referred to under Sub Section (1) in the order specified therein but upon the heirs of the father. Hence, he would contend that the Courts below committed an error in applying the provisions of Section 15(1) of the Hindu Succession Act, though it was the property in the hands of Muddamma, through her father. Therefore, he claims that the Courts below committed an illegality in dismissing their suit and granting a decree in favour of Rangappa.
6. On the other hand, learned Counsel for the respondent submits that from the date of gift i.e., from 09.04.1954, Muddamma acquired an absolute interest in the suit property and this acquisition is not by inheritance but under the 11 RSA No.25/2009 CW RSA No.26/2009 gift. Hence, he submits that on the death of Muddamma, her husband succeeded to the suit property and had an absolute interest over it and thereby, the sale deed executed by the husband of Muddamma dated 03.07.1997 is legal and valid. On the aforesaid contentions, he submits that the Courts below were justified in dismissing the suit of appellants and granting a decree of declaration and injunction in favour of the respondent.
7. It is not in dispute that late Odo Nagappa was the owner of land bearing Sy.Nos.114/4, 111/5 and 108/3. He died prior to the commencement of Hindu Succession Act. On his death, his wife Rangamma inherited the aforesaid properties and gifted the suit property to Muddamma whereas other properties were gifted to Nagamma, the second plaintiff. The gift deed was on 09.04.1954. Under the aforesaid gift, it is Muddamma who acquired an 12 RSA No.25/2009 CW RSA No.26/2009 interest over the suit property from the date of gift and Muddamma continued to enjoy the suit property till she died and on her death, the suit property was sold to Rangappa, the defendant in the suit.
8. Under the provisions of Mysore Hindu Law Women's Rights Act, 1933, Rangamma the widow of late Odo Nagappa inherited the suit property. Under the provisions of Section 4(1) of the aforesaid Act on the death of Odo Nagappa it was his widow who inherited the property and though the aforesaid Act came into force, she was having a limited estate and was not the absolute owner with the rights to transfer the properties to any person other than the daughters. Though in the order of succession, the daughters were next to the widow of deceased, she did not have full estate to mean the total rights exercisable over any property inherited by her and under Section 10(1)(g) of the aforesaid Act, when she 13 RSA No.25/2009 CW RSA No.26/2009 had daughters, she would not inherit the full estate. The provisions of Section 10(1) of the aforesaid Act, though state that she was the absolute owner of the properties mentioned under the said provision, Clause (g) reads "property taken by inheritance by a female from another female and property taken by inheritance by a female from her husband or son, or from a male relative connected by blood except when there is a daughter or daughter's son of the propositus alive at the time the property is so inherited."
9. So in cases where the propositus died leaving behind him his widow and his daughters, the widow gets a limited estate to mean the life estate over the properties of her deceased husband and this is an exception to her right to inherit the properties absolutely in the absence of daughter or daughter's son as said in the aforesaid provision. Even under the provision of Section 176 of Hindu Law, the properties 14 RSA No.25/2009 CW RSA No.26/2009 inherited by widow subject to certain restriction on alienation and subject to its devolving upon the heirs of last owner upon her death, the position of a widow is that of a owner and her powers under that character are however limited but so long as she is alive no one has vested interest in the succession. Therefore, Rangamma the widow of Odo Nagappa had limited estate inherited from her husband and she had no rights to transfer the said properties to any other except to her daughters.
10. At this stage, it is relevant to mention here that on the day when Hindu Succession Act came into force, though she was alive as she had gifted her properties to her two daughters, she do not acquire an absolute rights over the properties as the gift was in the year 1954 and the provisions of Section 14 of Hindu Succession Act, 1956 would not apply as she was not in the possession of the suit 15 RSA No.25/2009 CW RSA No.26/2009 property and the properties inherited by her from her husband on the date of commencement of Hindu Succession Act.
11. The suit property was gifted to Muddamma under the gift deed dated 09.04.1954 and this gift is valid for the reason that Muddamma was the next reversioner. Whenever a widow who had the life estate over the property inherited by her and surrenders the property to her next reversioner, the daughter would acquire an absolute interest in the property. On the date of gift, the right of inheritance of the daughters would accelerate and relates back to the date of gift. When the widow Rangamma parted the property with those who are her next reversioners, though she is said to be physically alive on the date of gift, the consequence is same as if she died a natural death. Thereby the next reversioner with whom the property is surrendered or gifted the 16 RSA No.25/2009 CW RSA No.26/2009 inherited property, acquire title to the property from the date of gift.
12. On this position of law, reliance could be placed on the decision of Apex Court reported in AIR 1954 SC 61 (Natvarlal Punjabhai and another Vs Dadubhai Manubhai and Others). Even earlier as well, this principle was accepted by the High Court of Patna in a decision reported in AIR 1958 Patna 115 (Julam Missir and Others Vs Pradip Missir and Others). It is held "Surrender by a Hindu widow of her limited estate means a self effacement of the widow and amounts to a civil death and complete extinguishment of the title of the widow in her husband's estate. Its legal consequence is that all prior alienations in excess of her powers are liable to be challenged immediately on her civil death 'just as they could be impeached after she had died'." Therefore, Rangamma the widow had gifted the properties inherited to her 17 RSA No.25/2009 CW RSA No.26/2009 two daughters i.e., to one Nagamma and another Muddamma, the gift has to be treated as surrender of all her rights in the properties inherited to the next reversioners i.e., the daughters. The mere fact that there was a gift deed does not change the nature of suit property as the deed of gift is a transfer of rights in the property to the next reversioner.
13. The special Bench of Patna High Court in a decision reported in AIR 1938 Patna 33, while considering the provisions of Stamp Act, 1899, held as under:
"A Hindu widow was in possession of certain property having rights in it similar to those of a Hindu widow in the property of a deceased husband. She desired to surrender her interest to her son who would succeed to the property in the ordinary course on her death. She executed a deed for that purpose 18 RSA No.25/2009 CW RSA No.26/2009 whereby she transferred the rights to possession of property to her sons."
Considering the facts on hand, in view of the aforesaid provisions of Mysore Hindu Law of Women's Rights Act, 1933, the only inference that has to be drawn is that the widow surrenders her rights in the properties inherited by her daughters who are her next reversioners.
14. Sri.G Balakrishna Shastry, the learned Counsel for the respondent placed reliance on the decision of Apex Court reported in (2009) 15 SCC 66 (Om Prakash and Others Vs Radhacharan and Others), wherein the Apex Court took into consideration the provisions of Section 15(1) of the Hindu Succession Act, 1956. The facts reveal that Smt.Narayani who was educated died intestate and as she was employed, she left huge sum in her provident fund account and her mother filed an application for grant of 19 RSA No.25/2009 CW RSA No.26/2009 succession certificate under Section 372 of the Succession Act. The Apex Court considering the fact that a widow had acquired the properties from her own income, held that on her death the provisions of Section 15(1) of Hindu Succession Act will be applicable to consider the rights of inheritance and the provision of Section 15(2)(a) are not applicable.
15. The provisions of Section 15 of the Hindu Succession Act relates to the succession in case of female Hindus, the property of a female Hindu dying intestate would devolve according to the rules set out in Section 16, under Clause (a) firstly upon the sons and daughters (including the children of any predeceased son or daughter) and the husband;
(b) secondly, upon the heirs of the husband and
(c) thirdly upon the mother and father. In case if a widow inherited any property from her father or mother, in the absence of any son or 20 RSA No.25/2009 CW RSA No.26/2009 daughter of the deceased widow, devolves not upon the other heirs referred to in Sub Section (1) in the order specified therein, but upon the heirs of the father. So the provisions of Clause (a) Sub Section (2) of Section 15 apply to the properties inherited by female Hindu who has not left a son or daughter, the interest of female Hindu would be inherited by heirs of the father and not on her husband, whereas Clause
(b) applies to a case where the female Hindu had acquired any property inherited from her husband or from her father-in-law, it devolves upon the heirs of her husband in the absence of any son or daughter.
16. So far as suit property that was inherited by Muddamma, on her death the property would devolve upon the heirs of her father and not to the heirs of her husband as she did not leave any son or daughter at the time of her death. So the aforesaid principle was taken into 21 RSA No.25/2009 CW RSA No.26/2009 consideration by the Apex Court in the decision referred to supra and it was held that clause
(a) of Sub Section (2) of Section 15 is an exception to the general rule that the property of Hindu Widow shall devolve upon the heirs of her husband in case if it is self acquired property or the property inherited from her husband or father-in-law. The principle laid down by the Apex Court aforesaid certainly does not apply to the facts on hand for the sole reason that Muddamma who inherited the suit property did not leave a daughter or son and hence, the provisions of Section 15(2)(a) of the Hindu Succession Act is applicable for inheritance and not clause (b) of Section 15(2) or 15(1) of the Hindu Succession Act.
17. From the aforesaid discussion, it could be certainly said that the intent of the Legislature to incorporate Section 15(2)(a) of the Act is to see that the property originally 22 RSA No.25/2009 CW RSA No.26/2009 belonged to the parents of the deceased female Hindu should be inherited by only those descendants of the parents family and such property shall not go either to the husband or to his heirs unless the deceased has left behind her a son or a daughter. In any other cases, it is the provisions of Section 15(1) of the aforesaid Act which would be applicable and therefore, Section 15(2)(a) of the Act is an exception to the general rule of succession in case of female Hindus. [Emphasis supplied by me]
18. Now to advert to the facts, though Rangamma had gifted the suit property to her daughter Muddamma, as she was the next reversioner, the gift to the next reversioner is the surrender in her life time and only inference that has to be drawn is that it accelerates the right of inheritance of her daughter and it relates back to the date of gift and the right of inheritance of the heirs of her 23 RSA No.25/2009 CW RSA No.26/2009 parents would not change merely because there was a gift by widow to her next reversioner.
19. The Apex Court had an occasion to consider the provisions of Section 15(1)(b) and Section 15(2) of the Hindu Succession Act in a decision reported in AIR 2002 SC 1 (Bhagat Ram (D) by LRs. Vs Teja Singh (D) by LRs.). The facts in the aforesaid judgment are similar to the facts on hand. One Smt.Santi died in the year 1960 and the property in question was inherited from her mother Smt.Kirpo who died on 25.12.1951 and though Smt.Santi had only limited right over the property, but by virtue of Section 14 of the Hindu Succession Act, she became an absolute owner of the property and therefore, it was contended that on her death, the property held by her would be inherited by her LRS. As per rules set out under Section 16(1) of the Act, and the Apex Court held that though she had acquired an absolute right in the 24 RSA No.25/2009 CW RSA No.26/2009 property by virtue of Section 14(1) of the said Act, as the property was inherited from her mother, it held that Section 15(2)(a) would apply to the facts as the inheritance was through her deceased mother and despite the commencement of Hindu Succession Act, absolute ownership rights of succession would not change merely because the life estate was converted into an absolute estate.
20. Though in the case on hand, the gift was in the year 1954 and under the gift Muddamma had acquired the absolute interest over the property and as such in the absence of any son or daughter, the suit property cannot be inherited by her husband and on the death of Muddamma, the inheritance would be as contemplated under Section 15(2)(a) of the Hindu Succession Act. Therefore, when Rangappa her husband had not acquired any interest in the suit property on the death of Muddamma, he had 25 RSA No.25/2009 CW RSA No.26/2009 no rights to transfer the suit property to Rangappa, the plaintiff in one suit and defendant in the other and ultimately on the death of Muddamma, her sister Nagamma and her son Thippeswamy being the heirs through her father or mother are the persons who are entitled to inherit the suit property. These provisions of Section 15(2)(a) of the Hindu Succession Act would be applicable to the facts on hand and the property on the death of Muddamma would devolve upon her sister and the husband has no right to transfer the suit property under the sale deed.
21. The Courts below applied the provisions of Section 15(1) of the Hindu Succession Act and held that on the death of Muddamma, her husband Rangappa inherits the property left by deceased Muddamma and the sale deed executed by him in favour of Rangappa, the plaintiff in one suit and defendant in another, 26 RSA No.25/2009 CW RSA No.26/2009 is valid. This approach of the Courts below is contrary to the provision of Section 15(2)(a) of Hindu Succession Act as the property devolves upon the heirs of parents of the deceased Muddamma. The husband would not inherit any rights and therefore, the sale deed executed is void-ab-initio. Hence, for the aforesaid reasons, the provision of Section 15(2)(a) of the Act which has to be applied to the facts on hand and Section 14 of the Hindu Succession Act would not over ride Section 15(2) of the Act. The principle laid down by the Apex Court in the decision reported in AIR 2002 SC 1 has been overlooked by the Courts below, hence, the appeals deserve to be allowed.
Consequently, the appeals are allowed. The judgment and decrees of the Courts below are set aside. The suit instituted by the respondent in OS No.163/2002 is dismissed, whereas the suit instituted by the appellants in OS No.8/2004 is 27 RSA No.25/2009 CW RSA No.26/2009 decreed granting the relief of declaration and injunction as prayed for.
No costs.
Sd/-
JUDGE Ap/- & *bgn/-