Karnataka High Court
Smt. Putteeramma @ Pramila W/O A C ... vs Mallaiah Since Dead By His on 18 November, 2021
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF NOVEMBER 2021
BEFORE
THE HON'BLE MR. JUSTICE N.K.SUDHINDRARAO
REGULAR FIRST APPEAL NO.1533 OF 2005
BETWEEN:
SMT.PUTTEERAMMA @ PRAMILA
W/O A.C.RANGASWAMY
AGED ABOUT 55 YEARS
R/AT ANGADIMALLANAHALLI
DODDERI HOBLI
MADHUGIRI TALUK
TUMKUR DISTRICT 572 101
..APPELLANT
(BY SRI.PRAKASH M.H, ADVOCATE)
AND:
1. MALLAIAH SINCE DEAD BY HIS
LEGAL REPRESENTATIVE
SMT.NARASAMMA
W/O LATE MALLAIAH
SINCE DEAD BY LR
SMT.PUTTEERAMMA,
APPELLANT
2. EERAPPA
S/O SANNEERAPPA
AGED ABUT 70 YEARS
2
3. DODDAMALLAIAH
AGED ABOUT 60 YEARS
S/O BANDAPPA
4. G.D.KAMAIAH
AGED ABUT 55 YEARS
S/O DODDANNA
2 TO 4 ARE RESIDENTS OF
GOWJAGALLU
MALLEKAVU HOBLI
KORATAGERE TALUK
TUMKUR DISTRICT
PIN CODE 572 101
..RESPONDENTS
(BY SRI.PATEL D. KAREGOWDA, ADVOCATE FOR R-2 TO R-
4,
R-1- IS DECEASED & APPELLANT IS TREATED AS LR OF
DECEASED R-1 VIDE ORDER DATED 28.09.2012)
THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 OF CPC AGAINST THE JUDGMENT AND
DECREE DATED 30.06.2005 PASSED IN O.S.NO.55/95 ON
THE FILE OF THE CIVIL JUDGE (SR.DN.), MADHUGIRI,
DISMISSING THE SUIT FOR DECLARATION AND
PERMANENT INJUNCTION.
THIS APPEAL COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is directed against the Judgment and decree passed by learned Civil Judge (Sr.Dn.), 3 Madhugiri in O.S.No.55/1995 on 30.06.2005, wherein the suit of the plaintiff came to be dismissed. Being aggrieved by the said Judgment and decree, the plaintiff has come in appeal under Section 96 of CPC.
2. In order to avoid confusion and overlapping, the parties are addressed in accordance with their ranks and status as stood before the trial court.
3. The plaintiff is the daughter of defendant No.1. Prior to 1989, the family of the defendants was a Hindu Joint undivided family and defendant No.1 was controlling and managing the family and the properties were owned around Gowjugal Village, Koratagere taluk, apart from the lands of Sidadaragal and Giregowdanahalli Villages and a residential site in Madhugiri town. Certain properties were purchased by defendant No.1 out of the joint family funds which 4 were registered in the name of defendant No.1. During the year 1989, except defendant No.1 and Sri.Doddaeerappa the others died and the differences started in the joint family.
4. Thus, the joint family was partitioned in the year 1989. Defendant No.1 chose to have his share from the properties which are closely situated to the plaintiff's and her husband's properties.
5. It was in this connection, defendant No.1 preferred to take his share at Sidadaragal and Giregowdanahalli Villages. After the partition, defendant No.1 and his wife moved to the lands at Sidadaragal village and started living in the land itself in a hutment. Defendant No.1, however could not manage the properties effectively and the plaintiff started looking after the landed properties and 5 defendant along and his wife moved to the care of the plaintiff. Further, defendant No.1 during 1990 advised the plaintiff and her husband to sell the garden land in Sidadaragal survey number and give the proceeds to defendant No.1 and the dry lands in Giregowdanahalli survey number, the residential site in Madhugiri town would go to the plaintiff by way of "Sthridhana". This was accepted by the plaintiff and she came into absolute possession and enjoyment of the schedule properties as a owner. The said properties are stated to be the suit schedule properties.
6. In accordance with settlement, the land which was in Sidadaragal survey number was sold in favour of Govindappa and defendant No.1 kept the entire proceeds of the sale. The plaintiff was put in possession and enjoyment of the schedule properties, as plaintiff had accepted the settlement and invested 6 substantial amount on the properties and paid the arrears of revenue to the Government.
7. Defendant No.1 in re-affirmation of the settlement has given schedule item No.2 as collateral security to K.S.F.C. Tumkur for the loan which the plaintiff's husband has obtained. It was also claimed that due to calamity in the life, the plaintiff and her family on the demise of her eldest son in a road accident, the plaintiff and her family lost all hopes in life. But defendant No.1 under the ill advise of some strangers moved to the schedule item No.1 under the pretext of looking after the lands, even before the plaintiff could recover from the shock.
8. To the surprise of the plaintiff some unknown persons had written a letter to the plaintiff disclosing the malafide intentions of defendant No.1 to sell away the schedule properties in favour of the third 7 parties and without due respect to the settlement arrived at. Suspecting the integrity of defendant No.1, a legal notice was sent to defendant No.1 and the intended purchaser.
9. Thus, the plaintiff and defendant No.1 has no right title or interest over the schedule properties to partition the same. The suit was filed for the judgment and decree seeking following reliefs:
" 1. Judgment and Decree of declaration declaring that the suit schedule properties are the 'STHRIDHANA' of the plaintiff under the settlement entered upon by the plaintiff with the defendant.
2. Judgment and Decree of permanent injunction restraining the defendant, his wife, his agents, his representatives of any person claiming under him under any manner of right whatsoever from interfering with the 8 peaceful possession and enjoyment of the suit schedule properties.
3. For award of cost such other reliefs as this Hon'ble Court deems fit and proper in the facts and circumstances of the case and so as to meet the ends of justice.
4. Pass an order as to costs of this suit."
10. The suit schedule properties are two items which are as follows:
"Item No.1 All that piece and parcel of agricultural property in Survey number 31, 32, 33 of Giregowdanahally, Dodderi Hobli, Madhugiri Taluk measring an extent of about 6 acres 35 guntas Asst:Rs.6.95 and bounded on the:
East by: Government Land, West by: Government Halls, North: Rangappa's Land, South by: Chikkanna's Land. This land 9 contain about 300 coconut Trees, Two Borewells, pumpset and farm house Item No.2 All that piece and parcel of residential site at Madhugiri Town bearing Town Municipal Khatha No.2113-A/2065-A measuring 47' x 50 bounded by East by: storm water drain, West by: private site, North by: Lalbadur Shastry Play ground, South by: Madhugiri- Tumkur Road."
11. Defendant Nos.2 to 4 filed their written statement. The defendants contended that defendant No.1 had sold suit item No.1 of the properties to the purchasers i.e., defendant Nos.2 to 4 under a registered sale deed dated 17.07.1998 for a valuable consideration as he was in need of money. The purchasers the other defendants are in possession and enjoyment of the property. Suit item No.2 is situated in Madhugiri Town. The power of attorney holder of 10 the plaintiff Sri.A.C.Rangaswamy, who is the son-in- law of defendant No.1 when he was in cordial terms with defendant No.1, induced defendant No.1 to offer the suit item No.2 as security to the loan raised by him in the KSFC for running an industry. Since he did not repay the said loan amount with a sole intention to cause wrongful loss to defendant No.1, he brought the suit item No.2 property for sale in the public auction in respect of the loan payable to KSFC. Accordingly, said item No.2 property was sold in the public auction and Sri.Shankarappa is the successful bidder of the auction and thus, Shankarappa, who is the auction purchaser of the said property is a necessary party to the suit. Thus, out of the total defendants, defendant No.1 is the father of the plaintiff and the other defendants are purchasers of item No.1 of the schedule property from defendant No.1.
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12. The learned trial Judge was accommodated with the oral evidence of PW-1-A.C.Rangaswamy, PW- 2-Doddeerappa, PW-3-Munikrishnappa, PW-4- Ramaiah, PW-5-Nagappa, PW-6- Ramanna, PW-7- Govindappa, DW-1-Manjunatha and documentary evidence Ex.P-1 to P-75 and Ex.D-1- to D-31.
13. The trial court framed the following issues:
1. Whether the plaintiff proves that both the suit schedule properties are the Sthreedhana properties under the settlement between herself and her defendant father?
2. Whether the plaintiff proves that she has been in lawful possession and enjoyment of the said both the suit properties?
3. Whether the plaintiff is entitled to a declaration that both the suit properties are her own Sthreedhana properties?
4. Whether the plaintiff is entitled to perpetual injunction against her defendant father?
5. What decree or order?12
14. Upon conclusion of the trial, suit of the plaintiff was dismissed. Being aggrieved plaintiff has preferred this appeal.
15. Sri.M.H.Prakash, learned counsel for the appellant would submit that the plaintiff in a family settlement was given the schedule properties which consists of item Nos.1 and 2. The family settlement of the properties was effected in the year 1990 and ever since the settlement which took place in the year 1990, the plaintiff was in absolute possession and enjoyment of the schedule properties. Defendant No.1 without courtesy on the plaintiff, after the death of her son, the defendant no.1 gone back and stated that he wanted to look after the schedule properties. It was thereafter the plaintiff received letter from the third parties that defendant No.1 was in a hurry to sell the schedule properties and the plaintiff came to know 13 that he literally sold the schedule properties to the defendants. In the circumstances, also gives item No.2 of the schedule property to the KSFC which was offered as a security and defendant No.1 has consented for the same.
16. The learned counsel would further submit that it was only in accordance with the arrangements made by defendant No.1, item No.2 was offered as security in respect of the loan borrowed by the plaintiff's husband.
17. Defendant No.1 and the other defendants have filed the written statement. Other defendants except, defendant No.1 have contended that the suit is without any basis and the plaintiff has no right over the schedule properties and defendant Nos.2 to 4 are the purchasers of the schedule properties for a valuable consideration. The plaintiff's husband made 14 defendant No.1 to offer the schedule property item No.2 as the security and the said property was also sold in the public auction by KSFC. Only intention of the plaintiff is to see that defendant No.1 is put to miseries.
18. Sri.Patel D.Karegowda, learned counsel for respondents 2 to 4 would submit that the plaintiff has made a false ground and not entitled for share in properties and the judgment and decree is well reasoned and appeal may be dismissed and the present suit is filed for declaration and permanent injunction. There are two items of the properties. The plaintiff - Smt.Putteeramma, who is the daughter of defendant No.1, claims that the suit schedule properties were given to her by way of settlement during the year 1990 by her father, who is none other than defendant No.1.
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19. The plaintiff further asserts that she is the only child to her father defendant No.1 and the family consisted of herself and defendant No.1. Defendant No.1 - Mallaiah and his brothers owned and possessed several properties at Giregowdana Halli, Sidadaragal, Gowjugal villages in Koratagere Taluk. Further, stated that the family properties of her father Mallaiah- defendant No.1 and his brothers were partitioned during 1989 and the schedule items came into the share of the plaintiff's father. It is also the case of the plaintiff that defendant No.1 developed after thought and wanted to sell the properties and the plaintiff on coming to know of the same, made efforts to prevent him from selling but came to know that defendant No.1 had sold both the properties to Defendant Nos.2 to 4.
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20. Sri.Mallaiah filed the written statement denying the plaint averments and also denying the right of the plaintiff over the schedule properties.
21. The plaintiff in the plaint states that the schedule properties were passed on to her in a settlement effected in the year 1990. It is her further claim that the properties in her hand became Sthridhana as separate properties. It is not the question by what name she calls the property, whether Sthridhana or share or whatever it is, the bottom line would be had she any pre-existing right over the properties. She has gone on record saying that the schedule properties fell to the share of her father Mallaiah - defendant No.1 and further asserts that prior to partition in the family of her father- defendant No.1, joint family consisted of defendant No.1 and his brothers. Thus, she mentioned all the 17 ingredients of a Joint Hindu Family and claims that the schedule properties came to her through oral settlement during the year 1990 made by her father- defendant No.1 for which the latter denies the settlement and right of the plaintiff.
22. As I have stated earlier, the plaintiff is none other than daughter of defendant No.1 and whether she had vested right in the suit schedule properties allotted to her in the settlement of partition. The claim of the plaintiff is that defendant No.1 by that time, wanted to come to a place nearer to the properties of the plaintiff. Accordingly, defendant No.1, he who insisted for settlement and it was effected and plaintiff was allotted properties.
23. A member of a Joint Hindu Family is also addressed as a coparcener. Thus, a coparcener has right in the coparcenary. Further, the coparcenary is 18 not limited to three degrees from common ancestors namely son, grandson and great grandson. Earlier notion of Hindu Law was the women was not a coparcener. When a daughter is not a coparcener, she had no right to seek partition of the Joint Hindu Family Property. At the most, after the death of the father, she was entitled for notional partition in the share of her father, however, along with her other siblings.
24. After the Hindu Succession Act, 1956, though the rights of a daughter underwent a significant change to her benefit, particularly, in the light of Section 48 of the said Act, in the matter of acquisition of immovable property claiming share in her separate property was recognized and intestate succession also was recognized as a matter of fact, the mother and the daughter of the deceased dying 19 intestate are found in the list of class-I heirs of the Hindu Succession Act. However, she was not entitled for a right of partition along with her brothers on equal footing. It was this that bifurcated the legal right of a daughter and that of a son.
25. Insofar as in the entire Joint Family, if there are three sons and one daughter, of course father, then according to pre-amendment position, the partition would have been considered as four and each are entitled for ¼th share. As such, if the partition was effected, all the sons would get ¼th share totally, ¾th share among themselves and ¼th goes to father, under which circumstance, father's share would be recognized as ¼th share.
26. Suppose no partition took place during the life time of the father and when he dies, then comes the theory of notional partition under which share of 20 the father was recognized as ¼th share under the doctrine of notional partition.
27. The scheme is ¼th share is reserved for the father and the remaining ¾th share would be shared by the sons in the proportion of ¼:¼:¼ and the notional share of the father i.e., ¼ would have been subjected to division among all the sons and in other words, the share of the sons would be recognized as original share ¼ + 1/16 i.e., 1/4th share of the share of the father and insofar as the daughter, she would get only ¼th share of the father i.e., 1/4th of ¼th i.e., 1/16th.
28. It is in this respect, the amendment was effected to Section 6 of the Hindu Succession Act, 1956. After this Central Amendment Act came into force from 09.09.2005. Thus, over-riding effect of the Central Amendment Act over the State Act is 21 constitutionally guaranteed, as such, we are governed by Hindu Succession (Amendment) Act, 2005 which are at Sections 6 (a), (b) and (c) which are as under:
"6A. Equal rights to daughter in co- parcenary property.-Notwithstanding anything contained in section 6 of this Act,-
(a) in a joint Hindu family governed by Mitakshara law, the daughter of a co-
parcener shall by birth become a co-
parcener in her own right in the same manner as the son and have the same rights in the co-parcenary property as she would have had if she had been a son inclusive of the right to claim by survivorship and shall be subject to the same liabilities and disabilities in respect thereto as the son;
(b) at a partition in such Joint Hindu Family the co-parcenary property shall be so divided as to allot to a daughter the same share as is allotable to a son:
Provided that the share which a predeceased son or a predeceased daughter would have got at the partition if he or she had been alive at the time of the partition, shall be allotted to the surviving child of such predeceased son or of such predeceased daughter:
Provided further that the share allotable to the predeceased child of the 22 predeceased son or of a predeceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such predeceased child of the predeceased son or of such predeceased daughter, as the case may be;
(c) any property to which a female Hindu becomes entitled by virtue of the provisions of clause (a) shall be held by her with the incidents of co-parcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by will or other testamentary disposition;
(d) nothing in clause (b) shall apply to a daughter married prior to or to a partition which had been effected before the commencement of Hindu Succession (Karnataka Amendment) Act, 1990.
6B. Interest to devolve by survivorship on death.-When a female Hindu dies after the commencement of the Hindu Succession (Karnataka Amendment) Act, 1990, having at the time of her death an interest in a Mitakshara co-parcenary property, her interest in the property shall devolve by survivorship upon the surviving members of the co-parcenary and not in accordance with this Act:
Provided that if the deceased had left any child or child of a pre-deceased child, the interest of the deceased in the 23 Mitakshara co-parcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.
Explanation.-(1) For the purposes of this section the interest of female Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to her if a partition of the property had taken place immediately before her death, irrespective of whether she was entitled to claim partition or not.
(2) Nothing contained in the proviso to this section shall be construed as enabling a person who, before the death of the deceased had separated himself or herself from the co-parcenary, or any of his or her heirs to claim on intestacy a share in the interest referred to therein.
6C. Preferential right to acquire property in certain cases.-(1) Where, after the commencement of Hindu Succession (Karnataka Amendment) Act, 1990 an interest in any immovable property of an intestate or in any business carried on by him or her, whether solely or in conjunction with others devolves under sections 6A or 6B upon two or more heirs and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred.
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(2) The consideration for which any interest in the property of the deceased may be transferred under sub-section (1) shall, in the absence of any agreement between the parties, be determined by the court, on application, being made to it in this behalf, and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs of or incidental to the application.
(3) If there are two or more heirs proposing to acquire any interest under, this section, that heir who offers the highest consideration for the transfer shall be preferred.
Explanation.--In this section 'Court' means the court within the limits of whose jurisdiction the immoveable property is situate or the business is carried on, and includes any other court which the State Government may by notification in the official Gazette specify in this behalf."
29. It is towards the interpretation of the amendment and status of the daughter, we are guided by the land mark judgments of the Apex Court in Phulvathi's case, Danamma's Case and Vineeth Sharma's case.
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30. Thus, the position of a daughter is no where less than that of a regular coparcener and there are no circumstances minting or restricting the right of a coparcener in the share of coparcenary with reference to joint Hindu family property. Admittedly when there are no other children to Mallaiah, defendant No.1 except the plaintiff it goes to show that partition if was effected plaintiff would have been entitled for half share and defendant No.1 is entitled in respect of another half.
31. Insofar as the plaint is concerned in paragraph No.5 of the plaint it is stated the joint family of defendant No.1 and his brothers broke and entire joint family properties were partitioned. On partition defendant No.1 chose to have his share from the properties that are closely situated to plaintiff's property.
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32. It is also further stated in paragraph 6 of the plaint that after partition defendant No.1 and his wife moved to the lands at Sidadaragal Village and started to live in the land itself in a hutment since they were more attached to the property. However defendant No.1 could not manage the properties effectively and plaintiff started looking after the landed properties and defendant No.1 along with his wife moved into the care of plaintiff.
33. The plaint do not say regarding properties that were allotted to the defendant No.1.
34. Learned counsel for appellant submitted three properties were allotted to defendant No.1 in the earlier partition and one was sold to Govindappa at the instance of the defendant No.1 alone. 27
35. Thus, the reckoning of properties of the joint family between plaintiff and defendant No.1 consisting of three properties out of which one property at Sidadaragal village was sold to one Govindappa.
36. Then remained two properties. Out of them second item is stated to have been offered as security to KSFC, Tumkur for securing the loan raised by husband of the plaintiff and for the loan document defendant No.1 is also stated to be a party. In the whole set of circumstances settlement is stated to be made in year 1990 and the property mortgaged by the plaintiff's husband was sold in the auction during the pendency of the suit and what remains is item No.1 i.e., landed property in Sy.Nos.31, 32, 33 in Giregowdanahalli.
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37. In this connection item No.2 is stated to have been mortgaged/sold in respect of loan borrowed by husband of plaintiff in respect of which plaintiff is also liable and the same version is admitted by learned counsel for appellant/plaintiff.
38. Thus, in the context and circumstances of the case plaintiff and defendant No.1 are the share holders of the joint family properties considering the defendant No.1 as the father and plaintiff as the daughter in the equal status of coparcener. Thus, the partition of the properties would have to be effected in the ratio of 1:1 between plaintiff and defendant No.1.
39. However defendant No.1 is stated to be dead after filing of the appeal. Appellant -plaintiff is the sole surviving legal representative of defendant No.1. Under such circumstances it is plaintiff who succeeds to the estate of defendant No.1. During the 29 life time defendant No.1 sold item No.1 of the schedule property to defendants 2 to 4. In this connection the rules of partition and based on the entitlement would suggest that defendant No.1 was entitled for half share and he could not have sold the entire property. Thus, it becomes another task to ascertain the value of share of item No.1 and item No.2 and then divide the same in equal proportion. However, the share of defendant No.1 whatever the extent comes therein is allotted to the share of defendants 2 to 4. In this way suit should have been partly decreed by the trial court and this has not happened.
40. In the circumstances it is further necessary to substantiate whether settlement is proved or not the pre existing share of plaintiff is half share to her and rest half went to her father and if he had not sold 30 the property to defendants 2 to 4 she would have been entitled to entire share of property. But in the light of defendants 2 to 4 having purchased the schedule property they are entitled for the share of late defendant No.1.
41. The plaintiff cannot take advantage of item No.2 of schedule as it was at the instance of her husband the same was sold in public auction by the KSFC. This is admitted by the learned counsel for plaintiff. Thus total estate for partition is item Nos.1 and 2. since item No.2 is sold and is deemed to have been appropriated to the family of the plaintiff. Hence, share of the plaintiff is ½ share in item No.1 and 2 less the value of item No.2.
42. Thus the Judgment and decree of trial court is liable to be set aside.
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In the result, I proceed to pass the following:
ORDER Appeal is partly allowed. Suit is decreed in part.
Plaintiff is entitled for half share in the suit schedule Item Nos.1 and 2.
However in the light of item No.2 being sold in the auction, the division of share has to be effected considering the total value of item No.1 and item No.2 and out of the total value the plaintiff is entitled for half share and in the said half share value of item No.2 shall be deducted.
Sd/-
JUDGE GH/SBN