Karnataka High Court
Vijaya Kumar vs Smt Vanajakshi on 1 December, 2021
Author: S.Vishwajith Shetty
Bench: S.Vishwajith Shetty
RSA.577/2014
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF DECEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY
REGULAR SECOND APPEAL NO.577/2014
BETWEEN:
1. VIJAYA KUMAR
S/O LATE REVANAPPA,
AGED ABOUT 23 YEARS,
2. VINAYA KUMAR
S/O LATE REVANAPPA,
AGED ABOUT 21 YEARS,
BOTH ARE R/AT D.NO. 103,
LENIN NAGAR,
BEHIND ITI COLLEGE,
NITTUVALLI NEW EXTENSION,
DAVANGERE-577003. ... APPELLANTS
(BY SRI VISHWAJITH RAI.M., ADV.)
AND:
1. SMT. VANAJAKSHI
D/O LATE REVANAPPA,
AGED ABOUT 33 YEARS,
R/AT BEHIND SIDDESHWARA MILL,
ADJACENT TO OM TAILOR,
NITTUVALLI,
DAVANGERE-577003.
2. SMT. GOWRAMMA
W/O SURESH,
D/O LATE REVANAPPA,
AGED ABOUT 35 YEARS,
R/AT GARIHATTI VILLAGE,
PAIGUNA BUILDING,
CHITRADURGA-577502. ... RESPONDENTS
(BY SRI H.P.SABJAN, ADV. [ABSENT])
RSA.577/2014
2
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE
DATED 1.3.2014 PASSED IN R.A.NO.10/2012 ON THE FILE OF
THE II ADDL. DISTRICT JUDGE, DAVANAGERE, DISMISSING
THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DTD 1.12.2011 PASSED IN O.S.NO.117/2008 ON THE FILE OF
THE PRL. SENIOR CIVIL JUDGE, DAVANAGERE.
THIS APPEAL COMING ON FOR FURTHER AGRUMENTS,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This regular second appeal is filed by defendant Nos.2 and 3 challenging the judgment and decree dated 01.12.2011 passed by the court of Principal Senior Civil Judge, Davangere, in O.S.No.117/2008, which has been confirmed in R.A.No.10/2012 by the court of II Additional District and Sessions Judge, Davanagere, by its judgment and decree dated 1st March 2014.
2. For the sake of convenience, the parties to the appeal are referred to as per their rankings given before the trial court.
3. Brief facts of the case that would be relevant for the purpose of disposal of this appeal are:
The plaintiff had filed O.S.No.117/2008 before the court of Principal Senior Civil Judge, Davangere (for RSA.577/2014 3 brevity "the trial court") against the defendants seeking for partition and separate possession to the extent of their 1/4th share in the suit schedule properties by metes and bounds.
4. It is the case of the plaintiff that she is the daughter of one Revanappa, son of Karibasappa through his first wife Hanumanthamma. Defendant No.1 is her sister and one Siddesh is her brother. Said Siddesh died unmarried and therefore, according to the plaintiff, herself and defendant No.1 are the only children of Revanappa through his first wife Hanumanthamma. Hanumanthamma is said to have died about 20 years back and it is the case of the plaintiff that during the life time of Hanumanthamma, Revanappa had married one Prema and all of them lived together in a house constituting a joint family. It is the further case of the plaintiff that Revanappa had two children through his second wife Prema, who are defendant Nos.2 and 3 in the present suit. Prema is said to have died in the year 2000 and Revanappa is RSA.577/2014 4 said to have died on 15.07.2008 leaving behind the plaintiff and the defendants as his legal representatives.
5. It is the further case of the plaintiff that defendant No.1 being the eldest member of the joint family was looking after the affairs of the joint family property and since defendant Nos.2 and 3 were minors, one Suvarnamma, who is the relative of Prema, was taking care of defendant Nos.2 and 3. Defendant No.1 in collusion with defendant Nos.2 and 3 tried to alienate the suit schedule property without the consent of the plaintiff and after coming to know about the same, the plaintiff insisted for partition of the suit schedule property and since defendant Nos.1 to 3 refused, she had filed O.S.No.117/2008 before the trial court.
6. Defendant Nos.1 to 3 appeared before the trial court on receipt of summons. Defendant Nos.2 and 3, who were minors, were represented by their guardian Suvarnamma. Defendant No.1 filed written statement admitting the plaint averments regarding joint family and also admitted the relationship between the plaintiff RSA.577/2014 5 and the defendants. However, defendant No.1 in her written statement contended that her father Revanappa married Prema after the death of his first wife and she denied that she was trying to alienate the suit schedule property by colluding with defendant Nos.2 and 3. Defendant No.1 further contended that she being the co-parcener is entitled for 1/3rd share in the suit schedule property and hence, sought for a decree in her favour to the extent of 1/3rd share in the suit schedule property. Defendant Nos.2 and 3 being minors represented through their guardian by name Suvarnamma filed their written statement contending that Revanappa had married Prema after the death of his first wife Hanumanthamma. The said Prema had died in the year 2000. After the death of Prema, Revanappa married Suvarnamma, who is the sister of Prema. After the death of Revanappa, Suvarnamma and defendant Nos.2 and 3 being the wife and children of Revanappa succeeded to the estate of late Revanappa and they also contended that the suit schedule item Nos.2 and 3 is the self-acquired property of Prema and RSA.577/2014 6 hence, it is contended that the plaintiff and defendant No.1 do not have any share in the suit schedule item nos.2 and 3 property. They also contended that suit schedule item No.1 property is the self-acquired property of Revanappa and he had registered a Will in favour of defendant Nos.2 and 3 and Suvarnamma, who is the third wife of Revanappa.
7. On the basis of the rival pleadings, the trial court framed the following issues:
"1. Whether the plaintiff proves that the suit schedule properties are the joint family properties?
2. Whether the plaintiff proves that they are the coparceners of Hindu undivided family?
3. Whether the plaintiff proves that she is entitled for 1/4th share in the suit schedule properties?
4. Whether the defendants 2 & 3 prove that the suit schedule items 2 & 3 are the self acquired properties of Smt. Prema?
5. Whether the defendants 2 & 3 prove that the suit schedule item No.1 property has been bequeathed by late Revanappa through the Will in favour of defendants 2 & 3 and Smt.Suvarnamma?RSA.577/2014 7
6. Whether the suit is bad for non- joinder of necessary parties?
7. Whether the defendant No.1 proves that she is entitled for 1/3rd share in the suit schedule properties?
8. Whether the plaintiff is entitled for the relief sought for?
9. What decree or order?"
8. During the course of trial, the plaintiff got herself examined as PW-1 and got marked 7 documents as Exs.P1 to P7. She also got another witness by name D.K.Rudrappa examined in her favour as PW-2. On behalf of the defendants, defendant No.1 was examined as DW-1 and the guardian of defendant Nos.2 and 3 viz., Suvarnamma was examined as DW-2 and she got marked four documents as Exs.D1 to D4.
9. After completion of recording the evidence, the trial court heard the arguments on both sides and by its judgment and decree dated 01.12.2011 partly decreed the suit of the plaintiff and held that the plaintiff, defendant Nos.1 to 3 and Suvarnamma are entitled for 1/5th share in the suit schedule item Nos.2 RSA.577/2014 8 and 3 properties. The trial court further held that the plaintiff and defendant No.1 are not entitled for any share in the suit schedule item No.1 property. The said judgment and decree passed by the trial court was challenged by defendant Nos.2 and 3 in R.A.No.10/2012 before the court of II Additional District and Sessions Judge, Davanagere, insofar as it relates to the finding that the plaintiff, defendant No.1 and Suvarnamma are entitled for a share in the suit schedule item Nos.2 and 3 properties. The said regular appeal filed by defendant Nos.2 and 3 was dismissed by the first appellate court by its judgment and decree dated 01.03.2014 and it is under these circumstances, defendant Nos.2 and 3 are before this court in this regular second appeal.
10. This court on 21.07.2014 while admitting this regular second appeal had framed the following substantial questions of law:
"1. Whether the courts below were right in holding that the suit schedule properties are the joint family properties in the absence of RSA.577/2014 9 any evidence as to the income to purchase the suit schedule properties?
2. Whether the courts below having held that there was no joint family, was right in holding that the property purchased by Revanappa belongs to the Joint Family?"
11. The appeal was taken up for hearing on 17.11.2021 and after hearing the learned counsel for the appellants for some time, this court has framed the additional issue to be considered in this appeal, which reads as follows:
"Whether the suit item Nos.2 and 3
purchased in the name of Smt.Prema, the second wife of Revanappa, will become her absolute property having regard to Section 14 of the Hindu Succession Act and if so, whether the courts below were justified in decreeing the suit in respect of item Nos.2 and 3 of the suit schedule property?"
12. In order to give an opportunity to the counsels appearing on both sides to address their arguments on the additional substantial question of law framed on RSA.577/2014 10 17.11.2021, the matter was adjourned to 24.11.2021. On the said date, learned counsel appearing for the appellants had addressed his arguments and to hear the learned counsel for respondent Nos.1 and 2, the matter was listed on 26.11.2021. Even on that day, there was no representation on behalf of respondent Nos.1 and 2 and therefore, the matter was adjourned to 29.11.2021 and even on the said date, there was no representation on behalf of respondent Nos.1 and 2 and therefore, again the matter was listed on 01.12.2021. Even today, there is no representation on behalf of the respondents.
13. Learned counsel for the appellants/defendant Nos.2 and 3 has contended that insofar as suit schedule item No.1 property is concerned, the same is the self-acquired property of Revanappa and he had executed a Will dated 17.11.2000 as per Ex.D1 in favour of defendant Nos.2 and 3 and also Smt.Suvarnamma. The trial court having appreciated this aspect of the matter has rightly dismissed the suit RSA.577/2014 11 in respect of suit schedule item No.1 property and the said judgment and decree passed by the trial court to the extent it relates to dismissing the suit in relation to schedule item No.1 property has attained finality. He submits that defendant Nos.2 and 3 had filed the regular appeal before the first appellate court only questioning the judgment and decree passed by the trial court to the extent it relates to holding that the plaintiff, defendant No.1 and Suvarnamma are entitled for a share in the suit schedule item Nos.2 and 3 properties. He submits that admittedly suit schedule item Nos.2 and 3 properties were purchased in the name of Prema. According to defendant Nos.2 and 3, Prema had purchased the suit schedule item Nos.2 and 3 properties out of her own income. However, the trial court has erroneously held that suit schedule item Nos.2 and 3 properties were purchased by Revanappa in the name of Prema. He further submits that even if it is presumed to be true, since the suit schedule item Nos.2 and 3 properties has been admittedly purchased in the name of Prema, in view of Section 14 of the RSA.577/2014 12 Hindu Succession Act, Prema becomes the absolute owner of the suit schedule item Nos.2 and 3 properties and therefore, the trial court was not justified in holding that the plaintiff, defendant No.1 and Suvarnamma were entitled for a share in suit schedule item Nos.2 and 3 properties. He submits that defendant Nos.2 and 3, who are the sons of Prema, being her legal representatives are the only successors to the said property and therefore, the trial court as well as the first appellate court are not justified in decreeing the suit insofar as it relates to suit schedule item Nos.2 and 3 properties. He also submits that there is no presumption as such with regard to existence of Hindu joint family and unless the same is proved, the courts below would not have held that the suit schedule item Nos.2 and 3 properties were purchased by Revanappa in the name of Prema.
In support of his contentions, he has relied upon the following judgments of the Hon'ble Supreme Court:
1. AIR 1987 SC 1493 - Jagannathan Pillai - vs- Kunjithapadam Pillai and others; RSA.577/2014 13
2. AIR 1970 SC 1730 - Punithavalli Ammal
-vs- Minor Ramalingam and Another;
3. AIR 1966 SC 1879 - Eramma -vs-
Veerupana and others.
He also submits that though it is a general rule that this court will not interfere with the concurrent findings recorded by the courts below, but when a substantial question of law arises in the appeal, this court is required to interfere in exercise of is power under Section 100 of CPC, more so, when the courts below have drawn wrong inference from the admitted facts of the case. In support of the said arguments, he has relied upon the judgment of the Hon'ble Supreme Court in the case of Nazir Mohamed -vs- J.Kamala and Others reported in AIR 2020 SC 4321.
14. I have carefully considered the arguments addressed by the learned counsel for the appellants/defendant Nos.2 and 3 and also perused the material evidence available on record. RSA.577/2014 14
15. It is not in dispute that suit schedule item Nos.2 and 3 properties are purchased in the name of Prema, who is the mother of defendant Nos.2 and 3. The said sale deeds dated 16.04.1988 and 20.02.1997 have been marked as Exs.D2 and D3 respectively. The trial court has held that Revanappa, who is the husband of Prema, had purchased the suit schedule item Nos.2 and 3 properties in her name from the income of the joint family and therefore, had decreed the suit insofar as it relates to suit schedule item Nos.2 and 3 properties holding that defendant Nos.1 to 3 and Suvarnamma are entitled for 1/5th share in the suit schedule property. Even if it is presumed that the suit schedule properties are purchased by her husband in the name of Prema, in view of Section 14 of the Hindu Succession Act, the property purchased in the name of a female becomes her absolute property. Section 14 of the Hindu Succession Act reads as follows:
"14. Property of a female Hindu to be her absolute property.-- (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of RSA.577/2014 15 this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation.--In this sub-section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.
(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property."
From a reading of said provision of law, it is clear that even a property which is purchased in the name of Hindu female becomes her absolute property. The Hon'ble Supreme Court in the case of Jagannathan Pillai (supra) has held as under:
"It is settled that the limited estate or limited ownership of a Hindu female would enlarge into an absolute estate or full ownership of the property in question in the following fact situation:RSA.577/2014 16
(1) Where she acquired the limited estate in the property before or after the commencement of the Act provided she was in possession of the property at the time of the coming into force of the Act on June 17, 1956.
(2) Even if the property in question was possessed by her in lieu of her right to maintenance as against the estate of her deceased husband or the joint family property, she would be entitled to become a full or absolute owner having regard to the fact that the origin of her right was traceable to the right against her husband's estate."
16. In the case of Punithavalli Ammal (supra) the Hon'ble Supreme Court in paragraph-6 has held as follows:
"6. . . . . . . . . . . . . . . . . In our opinion the rights conferred on a Hindu female under s. 14(1) of the Act are not restricted or limited by any rule of Hindu law. The section plainly says that the property possessed by a Hindu female on the date the Act came into force whether acquired before or after the commencement of the Act shall be held by her as full owner thereof. That provision makes a clear departure from the Hindu law texts or rules. Those texts or rules cannot be used for circumventing the plain intendment of the provision."
17. In the case of Eramma (supra) the Hon'ble Supreme Court has held that the property possessed by RSA.577/2014 17 a female Hindu, as contemplated in Section 14 of the Hindu Succession Act, is clearly property to which she has acquired some kind of title whether before or after the commencement of the Act. It may be noticed that the Explanation to Section 14(1) sets out the various modes of acquisition of the property by a female Hindu and indicates that the section applies only to property to which the female Hindu has acquired some kind of title, however, restricted the nature of her interest may be. The words "as full owner thereof and not as a limited owner" as given in the last portion of sub- section (1) of Section 14 clearly suggest that the legislature intended that the limited ownership of a Hindu female should be changed into full ownership. In other words, Section 14(1) of the Act contemplates that a Hindu female who, in the absence of this provision, would have been limited owner of the property, will now become full owner of the same by virtue of said section.
RSA.577/201418
18. In the case on hand, there is no dispute that suit schedule item Nos.2 and 3 properties were purchased in the name of Smt. Prema, who is the mother of defendant Nos.2 and 3 and Exs.D2 and D3 are the sale deeds in respect of the said properties, which stand in the name of Prema. From a reading of said sale deeds, it is very clear that interest of Prema in the suit schedule item Nos.2 and 3 properties, which are the subject matter of said sale deeds, are not limited. Further, having regard to Section 14 of the Hindu Succession Act, since the suit schedule item Nos.2 and 3 properties has been purchased in the name of Smt.Prema, she acquires the absolute title over the suit schedule item Nos.2 and 3 properties. This aspect of the matter has been completely overlooked by the courts below and thereby the courts below have erred in coming to a conclusion that even though the sale deeds in respect of suit schedule item Nos.2 and 3 properties stood in the name of Prema, since she had no income of her own, it has to be presumed that her husband late Revanappa had purchased the suit schedule property in RSA.577/2014 19 her name. Having regard to the intend and object behind Section 14 of the Hindu Succession Act, the courts below are not justified in holding that Smt.Prema was not the absolute owner of the suit schedule item Nos.2 and 3 properties. Under the circumstances, the trial court has erred in answering issue No.4 in the negative. Accordingly, the substantial questions of law framed by this court on 21.07.2014 are answered in the negative and the additional substantial question of law framed on 17.11.2021 is answered in the affirmative.
The regular second appeal is allowed. The judgment and decree dated 01.12.2011 passed by the court of Principal Senior Civil Judge, Davangere, in O.S.No.117/2008, insofar as it relates to holding that the plaintiff, defendant Nos.1 to 3, Suvarnamma are entitled to 1/5th share in the suit schedule item Nos.2 and 3 properties and the judgment and decree dated 01.03.2014 passed in R.A.No.10/2012 by the court of II Additional District and Sessions Judge, Davanagere, confirming the same are hereby set aside. RSA.577/2014 20
Consequently, plaintiff's suit in O.S.No.117/2008 is dismissed.
In view of disposal of the appeal, the pending I.As. do not survive for consideration. Hence, they stand disposed of.
Sd/-
JUDGE KNM/-