Karnataka High Court
Chamu Jinnappa Sheri And Ors. vs Savitri Yeshwantrao Chagule And Ors. on 13 April, 2004
Equivalent citations: AIR2005KANT30, ILR2004KAR4738, 2004(7)KARLJ238, AIR 2005 KARNATAKA 30, 2004 AIR - KANT. H. C. R. 3308, (2005) 25 ALLINDCAS 891 (KAR), 2005 (25) ALLINDCAS 891, (2004) ILR (KANT) (4) 4738, (2005) 1 HINDULR 53, (2005) 1 CURCC 550
Author: K. Sreedhar Rao
Bench: K. Sreedhar Rao
ORDER K. Sreedhar Rao, J.
1. The respondents have filed an application under Order 41 Rule 21 CPC. It is submitted that the appeal was disposed of earlier by this Court and Sri G.S. Vishveswara was appearing for the respondents then. The order of this Court was set aside in appeal by the Supreme Court in the Civil Appeal remanding the matter for fresh disposal in accordance with law. After the remand Sri V.P. Kulkarni filed vakalath for the respondents. By mistake Office did not show the name of Sri V.P. Kulkarni, therefore it is submitted that the Counsel appearing for the respondents has not been heard and prayed for an opportunity to submit his arguments on merits. The request is granted and heard.
2. Sri V.P. Kulkarni referred to the contents of the registered partition deed marked at Ex.P.5 dated 4.10.1963. The following are the material paragraph of the deed relevant for consideration.
"The details of the properties jointly given to the share of No. l - Jinnappa Nemanna Sheri and No. 2 Jivabalawwa W/o Jinnappa Sheri are:
Government Raitawa land, bearing No. 829 measuring 02 acres 13 guntas, assessed at Rs. 23-12-00 situate within the limits of Belgaum. Complete number, to which no boundaries have been given. Since this land is a Raitawa land, the cost of this land for the purpose of Stamp duty has been made at Rs. 593-12-00 being the 25 times of the assessment of the land. The income derived from this land is to be enjoyed till lifetime.
The properties as fallen to the share of each of us as stated above, have been taken in possession by each of them and shall hereinafter enjoy with all the appurtenancies therein and all other rights therein and that each of them shall safeguard their respective interest. All the assessment and other cesses etc. of the respective properties shall be paid by each of them and shall enjoy the property generation to generation.
Land R.S. No. 829 has been given to Nos. l and 2 for their life enjoyment and accordingly Nos. 1 and 2 shall enjoy the said land during their life time and pay all the government assessment and cesses etc. of the said land during their life time. After their death the said land shall be got partitioned by Nos. 3, 4 and 5 equally.
That Nos. l and 2 shall have right during the life time to reside in one of the rooms of the house properties fallen to the shares of 3, 4 and 5 and that they shall reside with any one of them jointly as per their wish."
3. It is the contention of the Counsel for respondents that the joint allotment of share in favour of Jinnappa and Jivabalawwa is an absolute allotment of share in their favour. The terms of document does not indicate that only the lifetime interest was created. In the alternative, the Counsel contends that Jinnappa predeceased Jivabalawwa. The share allotted in favour of Jivabalawwa is towards the pre existing right of maintenance. In view of the provisions of Section 14(1) of the Succession Act the limited estate granted under Ex P5 ripens into full estate, therefore the respondents who are daughters are entitled to a share by way of succession in the estate of their mother Jivabalawwa, the following decisions of the Supreme Court are cited in support of the contentions.
(1) V. TULASAMMA V. SESHA REDDY, .
(2) SELLAMMAL V. NALLAMMMAL, .
(3) BAI VAJIA V. THAKORBHAI CHELABHAI, .
(4) GULWANT KAUR V. MOHINDER SINGH, .
(5) MAHARAJA PILLAI LAKSHMI AMMAL V. MAHARAJA PILLAI THILLANAYAKOM PILLAI, . (6) K. MUNISWAMY V. K.VENKATASWAMY, .
4. Sri V.P. Kulkarni strenuously contended that the ratio laid down in K Muniswamy v. K. Venkataswamy in squarely applies to the facts of the case, there is no express bar prohibiting alienation by Jinnappa and Jivabalawwa in Ex Dl, therefore what is granted is to be construed as an absolute estate with full ownership rights. Even otherwise in view of the rulings of the Supreme Court cited above, it is argued that the limited estate granted ripens into an absolute estate and that the daughters are entitled to a share in the property.
5. On careful reading of the relevant stipulations in the partition deed, I find the stipulations in second para noted above cannot be read in isolation. No doubt in the said paragraph it is stated that the properties allotted to each party shall be enjoyed by them, none the less in para 1 and 3, there is a clear stipulation that Jinnappa and Jivabalawwa have to enjoy the properties during their life time and after their demise, the property shall devolve upon the second, third and fourth party to the deed.
6. In decision in disclose that before coming into operation of the Hindu Succession Act under a compromise in an execution certain properties were given to a widow by way of maintenance, with the limited interest but it gets ripened into an absolute interest UNDER SECTION 14(1) of the Act. In Bai Vajiya v. Thakorbhai Chelabhai a limited interest of the property was granted towards the maintenance of a widow prior to Hindu Succession Act 1956. After coming into force it was held that the limited right fructifies into an absolute right under Section 14(1). Similarly in Gulvanth Kaur v. Mohinder Singh and Mahararaja Pillai Lakshmi Ammal v. Maharaja Pillai Thilanayakom Pillai a property was given towards maintenance by the husband towards wife. It is held that the limited estate has ripened into an absolute estate.
7. The facts in this case stand on a different footing. The parties are governed by Bombay School of Mithakshara law. A wife or a widow in Bombay School of Mithakshara is placed on a better footing than in any other school of thought in Mithakshara. A widow/mother is entitled to a share equal to that of a son and she takes it as an absolute right in the ancestral estate with absolute right and it becomes a Streedhan property, whereas in any other school of thought the position is different. Under Shastric Law in other Schools of Mithakshara a widow was entitled to maintenance without a share in the property. The Mysore Act of 1933 grants a share to the widow or mother in the ancestral estate like Bombay School with a difference that under Mysore Act she is entitled to half that of a son. The Hindu Womens' Right to Property Act 1937 recognised a share with a limited interest. Section 6 of Hindu Succession Act gives equal share to female heirs in the estate of a Hindu male dying intestate.
8. No doubt, Smt Jivabalawwa was entitled to share in her own right in the ancestral estate equal to that of a Son, but under the terms of deed both Jivabalawwa and Jinnappa choose to take only the limited interest and they direct that after their demise the property shall devolve upon their sons. The document is a registered deed. During the life time of Jinnappa and Jivabalawa they do not make any attempt to alienate the property. They keep the property intact and immediately after their demise the sons have taken over the property. Ex. D.1 is a registered deed and it is a multi-faced document in the sense that it not only effects the partition between the parties but is also directs devolution of share of Jinnappa and Jivabalawwa after their demise and both of them consent and agree to the arrangements made in the partition.
9. Therefore the devolution of the property whatever that takes place under Ex. D.1 is according to the terms of the registered deed to which Jivabalawwa is a, party. When the propositus Jivabalawwa has chosen to deliver the property after her demise to her sons, the daughters who claim under Jivabalawwa cannot question her action. If Ex. D.1 is not a registered deed it would have made difference in law. The question whether what was granted is a limited interest or an absolute right under Ex. DI does not appear to be relevant fact for consideration since under the registered document Jiavabalawwa has choosen to bequeath the property in favour of her sons after her demise.
10. The decision of this Court in K. MUNISWAMY SINCE DECEASED BY LRS. V. K. VENKATASWAMY has no application to the facts. In the said case it was argued that under a partition no limited interest can be created in favour of the members of the family who are entitled to a share and the terms of document were not explicit to show that the allotment of the share was only by way of limited interest and not an absolute interest. The person to whom the share was given had transferred the property during their lifetime. After the demise of the transferor his heirs questioned the transfer on the ground that what was granted to transferor was only a limited interest. In view of the vague recitals in the document it was held that the allotment of share was not by way of limited interest. In this case whether or not it is a limited interest, but by virtue of the terms of partition deed Ex. Dl Jivabalawwa takes the property only for enjoyment during her life time and does not alienate the property, further directs that after her demise, the property shall devolve upon her sons. In that view of the matter, the respondent/plaintiff cannot have right in the property by way of succession and there is no need to interfere with the earlier order passed by this Court.