Karnataka High Court
Smt. Nagavva W/O Shivappa Melli vs Smt. Seetavva W/O Venkappa ... on 22 January, 2014
Bench: N.Kumar, C.R.Kumaraswamy
:1:
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 22ND DAY OF JANUARY 2014
PRESENT
THE HON'BLE MR.JUSTICE N.KUMAR
AND
THE HON'BLE MR.JUSTICE C.R.KUMARASWAMY
R.F.A. No. 3072/2009 (DEC/INJ)
C/w. R.F.A. CROB.No.104/2010
IN RFA No.3072/2009:
BETWEEN:
1. SMT.NAGAVVA W/O.SHIVAPPA MELLI
AGE: 55 YEARS, OCC: HOUSEHOLD,
R/O: YARAGATTI - 591 129,
TQ: SOUNDATTI, DIST: BELGAUM.
SMT.PARVATEWA W/O.GIREPPA MASAREDDI,
SINCE DECEASED BY HER LR.
2. SMT.PADDAWA W/O PADAMAVATI
W/O TIMMANNA ASANGI,
AGE 52 YEARS, OCC: HOUSE HOLD,
R/O: OPP.APMC, MAHARAJ COLONY,
MUDHOL, DIST: BAGALKOT.
3. SMT.KAMALAWA W/O.LAXMAPPA LAKKAM
AGE 84 YEARS, OCC:HOUSE HOLD,
R/O: JEERGAL-587 313,
TQ: MUDHOL, DIST: BAGALKOT.
SINCE DECEASED BY HER L.RS.
3A. SMT.PADMAVATI
W/O.TIMMANNA BIRADAR PATIL,
:2:
AGE 55 YEARS, OCC.: HOUSEHOLD,
R/O.AMALZARI-587 121,
TQ.: BILAGI, DIST.: BAGALKOT.
3B. SMT.KASTURIBAI
W/O.VEERAPPA HOSUR,
AGE 50 YEARS, OCC.: HOUSEHOLD.
R/O.JEERGAL-587 313,
TA.: MUDHOL, DIST.: BAGALKOT.
3C. SHRI VENKAPPA LAXMAPPA LAKKAM,
AGE 48 YEARS, OCC.: AGRICULTURE,
R/O.JEERGAL-587 313,
TA.: MUDHOL, DIST.: BAGALKOT.
3D. SMT.TAYAWA W/O.RAMAPPA MALALI,
AGE 47 YEARS, OCC.: HOUSEHOLD,
R/O.METAGUD-587 313,
TQ.: MUDHOL, DIST.:L BAGALKOT.
3E. SHRI SHASAPPA LAXMAPPA LAKKAM,
AGE 45 YEARS, OCC.: LEGAL PRACTITIONER,
R/O.JEERGAL-587 313,
TQ.: MUDHOL, DIST.: BAGALKOT.
... APPELLANTS
(BY SRI.M.G.NAGANURI, ADVOCATE)
AND:
SMT.SEETAVVA W/O.VENKAPPA HUNASHIKATTI,
SINCE DECEASED BY HER LRs.
1. SHRI.KUSHNAPPA VENKAPPA HUNASHIKATTI,
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O: METGUD-587 313,
TQ: MUDHOL, DIST: BAGALKOT.
2. SMT.BHAGAWWA W/O.SHIVAPPA HADIMANI,
AGE: 55 YEARS, OCC: HOUSEHOLD
R/O: KADARKOPP-587 122,
:3:
TQ: BADAMI DIST: BAGALKOT
3. SMT.CHINNAWA W/O.RAMANAGOUDA PATIL,
Age: 42 years, OCC: AGRICULTURE,
R/O: METGUD-587 313,
TQ: MUDHOL, DIST: BAGALKOT.
4. SHRI. SAGAREPPA GIREPPA MASAREDDI,
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O: METGUD-587 313,
TQ: MUDHOL, DIST: BAGALKOT.
5. SHRI. KALLAPPA LAXMAPPA LAKKAM,
Age: 54 years, OCC: AGRICULTURE,
R/O: JEERGAL-587 313,
TQ: MUDHOL, DIST: BAGALKOT.
... RESPONDENTS
(BY SRI.V.P.KULKARNI, ADV. FOR R1-R3 (GPA)
SRI.MRUTYUNJAYA TATA BANGI, ADV. FOR C/R1-R3.
SRI.N.L.BATAKURKI, ADVOCATE FOR R4 AND R5.)
THIS RFA IS FILED U/S.96 R/W. ORDER 41 RULE 1
OF CPC, 1908, AGAINST THE JUDGEMENT AND DECREE
DATED 17-11-2009, PASSED IN O.S.NO.145/2007, ON
THE FILE OF THE CIVIL JUDGE (SR.DN) RAMDURG
DECREEING THE SUIT FILED FOR DECLARATION AND
PERMANENT INJUNCTION.
IN RFA CROB.NO.104/2010:
BETWEEN:
1. KUSHANAPPA
W/O.VENKAPPA HUNASHIKATTI,
AGED ABOUT 48 YEARS,
R/AT METAGUDDA, TQ.: MUDHOL,
DISTRICT BAGALKOTE,
:4:
2. SMT.BHAGAWWA
W/O.SHIVAPPA HADIMANI,
AGED ABOUT 53 YEARS,
R/AT KADARKOPPA, TQ.: BADAMI,
DISTRICT BAGALKOTE,
3. SMT.CHINNAWWA
W/O.RAMANGOUIDA PATIL @ GOUDAR,
AGED ABOUT 42 YEARS,
R/AT METAGUDDA, TQ.: MUDHOL,
DISTRICT BAGALKOTE,
REP. BY THE GPA HOLDER,
SRI.RAMESH S/O.SHIVAPPA HADIMANI,
AGED ABOUT 33 YEARS,
R/AT KADARKOPPA, TQ.: BADAMI,
DISTRICT BAGALKOTE,
PRESENTLY R/AT SIDDAPUR,
TQ.: SIDDAPUR,
DIST.: UTTAR KANNADA.
... CROSS-OBJECTORS
(BY SRI.MRUTYUNJAYA TATA BANGI ADVOCATE)
AND:
1. NAGAVVA W/O.SHIVAPPA MELLI
AGE: 65 YEARS, OCC: HOUSEHOLD,
R/O: YARAGATTI,
TQ: SOUNDATTI, DIST: BELGAUM.
2. PADDAWA W/O TIMMANNA ASANGI,
AGE 55 YEARS, OCC: HOUSE HOLD,
R/O: MAHARAJ COLONY,
MUDHOL, DIST: BAGALKOT.
3. KAMALAWA W/O.LAXMAPPA LAKKAM
AGE 85 YEARS, OCC:HOUSE HOLD,
R/O: JEERGAL, TQ: MUDHOL,
:5:
DIST: BAGALKOT.
SINCE DECEASED BY HER L.RS.
3A. PADMAVATI
W/O.TIMMANNA BIRADAR PATIL,
AGE 55 YEARS, OCC.: HOUSEHOLD,
R/O.AMALZARI, TQ.: BILAGI,
DIST.: BAGALKOT.
3B. KASTURIBAI
W/O.VEERAPPA HOSUR,
AGE 50 YEARS, OCC.: HOUSEHOLD.
R/O.JEERGAL, TQ.: MUDHOL,
DIST.: BAGALKOT.
3C. VENKAPPA LAXMAPPA LAKKAM,
AGE 48 YEARS, OCC.: AGRICULTURE,
R/O.JEERGAL, TQ.: MUDHOL,
DIST.: BAGALKOT.
3D. TAYAWA W/O.RAMAPPA MALALI,
AGE 47 YEARS, OCC.: HOUSEHOLD,
R/O.METAGUD, TQ.: MUDHOL,
DIST.: BAGALKOT.
3E. SHASAPPA LAXMAPPA LAKKAM,
AGE 45 YEARS, OCC.: LEGAL PRACTITIONER,
R/O.JEERGAL, TQ.: MUDHOL,
DIST.: BAGALKOT.
4. SAGAREPPA GIREPPA MASAREDDI,
AGE: 48 YEARS, OCC: AGRICULTURE,
R/O: METGUD, TQ: MUDHOL,
DIST: BAGALKOT.
5. KALLAPPA LAXMAPPA LAKKAM,
AGE: 54 YEARS, OCC: AGRICULTURE,
R/O: JEERGAL, TQ: MUDHOL,
DIST: BAGALKOT.
... RESPONDENTS
(BY SRI.M.G.NAGANURI, ADV. FOR R1, R2, R3A-R3E.
:6:
SRI.N.L.BATAKURKI, ADVOCATE FOR R4 AND R5)
THIS RFA CROB. IS FILED UNDER ORDER 41 RULE
22(1) R/W. SECTION 96 OF CPC, AGAINST THE JUDGMENT
AND DECREE DATED 17.11.2009 PASSED IN
O.S.NO.145/2007 ON THE FILE OF THE CIVIL JUDGE
(SR.DN.) RAMDURG, DECREEING THE SUIT FILED FOR
DECLARATION AND PERMANENT INJUNCTION.
THIS APPEAL AND CROSS-OBJECTION COMING ON
FOR HEARING ON INTERLOCUTORY APPLICATION THIS
DAY, N.KUMAR, J., DELIVERED THE FOLLOWING:
JUDGMENT
This is a defendants' appeal challenging the judgment and decree of the trial Court, which has declared the plaintiffs as the owners in actual possession of the suit properties and in granting a decree of permanent injunction and dismissing the counter claim.
2. For the purpose of convenience, the parties are referred to as they are referred to in the suit.
3. The properties, which are the subject matter of the suit, are clearly setout in schedule-A to the plaint. The relationship between the parties is :7: clearly setout in the genealogy, which is produced along with the plaint as schedule-B.
4. The case of the plaintiffs is that the A- schedule properties are the joint family ancestral properties of the plaintiffs and it originally belonged to the propositus - Satteppa. He died long back, leaving behind him his two sons, namely Bhimappa and Kushnappa. After the death of Satteppa, these two sons became the owners of the suit properties by way of succession and survivorship. Kushnappa died in the year 1929 and Bhimappa died on 17.04.1936. Kushnappa died living behind him his two sons namely Dasharath and Venkappa, who succeeded to the estate of the deceased-Kushnappa on his death. After the death of Kushnappa, Bhimappa became the Kartha of the family. The said Bhimappa had great love and affection for his brother's sons by name Dasharath and Venkappa. Bhimappa while he was in :8: sound disposing state of mind executed a Will on 04.04.1936 and the same was duly registered. The said Bhimappa died on 07.04.1936. After the death of Bhimappa, Dasharath and Venkappa became the owners of the suit properties by virtue of the said Will. Dasharath had no issues. Hence, he took one Bhimappa, who is the son of Venkappa and the plaintiff No.1 in adoption after complying with all the necessary ceremonies like giving and taking. He also executed a deed of adoption on 18.10.1958 and the same was duly registered.
5. Venkappa predeceased his elder brother Dasharath, while he was in joint with him. Venkappa died leaving behind him, the plaintiffs as his legal heirs. Then there was a partition between the said Dasharath and plaintiff No.1. In that partition, the suit properties fell to the share of the said Dashrath. Thus, the said Dasharath became the owner of the suit :9: properties. Dasharath died in the year 1975 leaving behind him, his adopted son, Bhimappa as his sole heir. Thus, the said Bhimappa No.2 succeeded to the suit properties by way of succession and survivorship.
6. The said Bhimappa died unmarried.
Bhimappa during his lifetime was living with the plaintiff Nos.1 and 2, who are looking after him. It is the plaintiffs, who are managing the affairs of the suit properties. The plaintiffs and Bhimappa were living and carrying on their agricultural activities as members of the joint family. The said Bhimappa had great love and affection for his natural mother, brother and sisters. Bhimappa during his last days was suffering from Asthama and Cancer. The plaintiffs were taking care of his health. Bhimappa out of love and affection and when he was in sound disposing state of mind, executed a Will in the presence of the witnesses on 18.10.2006. Under a Will he bequeathed : 10 : the northern portion measuring 6 acres out of suit land R.S.No.158 of Rugi village to the plaintiff No.1, remaining portion measuring 10 acres 06 guntas of the said suit land R.S.No.158 to the plaintiff No.3, the suit land R.S.No.22/2A of Metagudd village fell to the share of the plaintiff No.2 and the suit lands in RS No.106/2 and 107/2 of Gulagal-Jambagi village and R.S.No.90 of Kamakeri village fell to the share of the plaintiff No.4. The said Bhimappa died on 03.12.2006 leaving behind him, the plaintiffs as his successors and legatees. Thus, the plaintiffs became the owners of the respective suit properties, by virtue of the Will dated 18.10.2006 executed by Bhimappa. Even in the absence of the said Will, the suit properties devolved on the plaintiffs, who are the legitimate heirs of the deceased Bhimappa and the plaintiffs became the owners of the suit properties by way of succession and survivorship, under the provisions of the Hindu : 11 : Succession Act, 1956. As the original Will was lost, the xerox copy of the said Will was produced along with the plaintiffs. The plaintiffs are in peaceful possession and enjoyment of the respective suit properties fallen to their respective shares as absolute owners.
7. They contended that, the defendants have no right, title or interest over the suit properties. Now the defendant Nos.4 and 5 at the instance and instigation of the defendant No.1 to 3, with an intention to deprive the plaintiffs of their legitimate rights over the suit properties, have created a forged Will alleged to have been executed by the said Bhimappa in their favour on 03.11.2006. The said Bhimappa during his lifetime never executed any Will on 03.11.2006 in favour of the defendant Nos.4 and 5 bequeathing the suit properties in their favour. The said Will is created and concocted by the defendant Nos.4 and 5. On the basis of the aforesaid Will, the : 12 : defendant Nos.4 and 5 are trying to get their names mutated to the suit properties and they have filed an application before the Revenue Authorities. Further, the defendant Nos.1 to 3 at the instance and instigation of the defendant Nos.4 and 5 have also filed an application before the Revenue Authorities requesting them not to mutate the names of the plaintiffs to the respective suit properties. The application filed by the plaintiff No.4 for trying to mutate her name is opposed by the defendants without any manner of right. The said application is still pending consideration. Therefore, the plaintiffs filed the suit claiming absolute title to the portion as setout above. As the defendants were trying to interfere with their possession, they have also sought for permanent injunction restraining the defendants from interfering with their possession. : 13 :
8. After service of summons, the defendants entered appearance. The defendant Nos.1 to 3 have filed their detailed written statement. They denied the genealogy produced by the plaintiffs. They have given a separate genealogy along with the written statement. A careful perusal of the written statement shows that it is a case of total denial. They have denied all the allegations in the plaint in para 1 to 15 of the written statement. However, they have setout their case in para 16 of the written statement. Their case is originally there was one propositus by name Satteppa, who had two sons namely Bhimappa and Kushnappa. Bhimappa was not having any male issues. He had three daughters namely Kashawwa, Parwatewwa and Kamalawwa. The defendant No.1 is the only daughter of the deceased Kashawwa. Bhimappa expired during 1936. He had half share in the entire suit properties. Bhimappa's brother- : 14 : Kushnappa's son by name Dasharath has managed to obtain his only name entered to the properties without the knowledge and consent of these defendant Nos.1 to 3 and the so called Dasharath had also not having any issues, and he is also dead. It is revealed from the records that Dasharath, the son of Kushnappa had taken in adoption to one Bhimappa, the son of Venkappa. At no point of time either Dasharath or Bhimappa have obtained the consent of the defendant Nos.1 to 3 to get their names entered to the suit properties. Bhimappa, the adopted son also died on 03.12.2006 and he was also unmarried. The defendant Nos.1 to 3 being class-1 legal heirs of original Bhimappa are entitled to the entire suit properties. As presently leaving apart these defendant nos.1 to 3, there are no nearest relatives to the deceased Kushnappa's branch and defendant Nos.1 to 3's right, title and interest have not been relinquished : 15 : at any point of time. When waradies were submitted by the plaintiffs before the Tahasildar, Ramadurg and also Mudhol, the defendant Nos.1 to 3 have filed their objections. The adopted son Bhimappa has not executed any Will in favour of the plaintiffs in respect of the suit properties. When they came to know the said claim, they have submitted the wardies to get their names entered in the suit properties. The defendant Nos.1 to 3 are the class-1 legal heirs of the deceased Bhimappa and also the deceased Kushnappa, as there are no class-1 heirs to the Dasharath and Venkappa's Branch. Therefore, they sought for dismissal of the suit.
9. In the written statement, they have also put forth a counter claim seeking a declaration that they are the absolute owners of the suit properties holding that the documents in favour of the plaintiffs and defendant Nos.4 and 5 are null and void. : 16 :
10. The defendant Nos.4 and 5, who are the sons of defendant Nos.2 and 3 have filed a separate written statement setting up title under a Will dated 03.11.2006 said to have been executed by the adopted son Bhimappa in their favour. They reiterate all the allegations made by the defendant Nos.1 to 3 in the written statement. However, they have set up an exclusive title to the suit properties.
11. The plaintiffs filed a written statement to the counter claim preferred by the defendant Nos.1 to 3 as well as the defendant Nos.4 and 5. They have reiterated the allegations made in the plaint. They have denied the execution of the Will under which the defendant Nos.4 and 5 were claiming title to the suit properties and they sought for dismissal of the Counter claim.
: 17 :
12. On the aforesaid pleadings, the trial Court framed as many as 14 issues, and 2 additional issues, which are as under:
1. Whether the plaintiffs prove that suit properties are the ancestral and joint family properties of plaintiffs?
2. Whether the plaintiffs prove that Bhimappa No.1 has executed the Will in faovur of Dashrath and Venkappa in respect of suit properties on 4.4.1936, while he was in disposing state of mind?
3. Whether the plaintiffs prove that the said Dasharath and Venkappa became the owners of suit properties by virtue of this Will?
4. Whether the plaintiffs prove that Dasharath has took in adoption to Bhimappa No.2 and has executed the registered deed of adoption on 18.10.1958?: 18 :
5. Whether the plaintiffs prove that Bhimappa No.2 has executed the Will on 18.10.2006 while he is in disposing state of mind and has bequeathed the northern portion of 6 acres of land in Sy.No.158 of Rugi village in favour plainitff No.1 and remaining portion of 10 acres 6 guntas of land to plaintiff No.3 and Sy.No.22/2A to plaitniff No.2 and land Sy.No.106/2, 107/2, 90 to the plaintiff No.4?
6. Whether the plaintiffs prove that they are the owners and in actual possession of suit properties?
7. Whether the plaintiffs prove the alleged interference of defendants?
8. Whether this Court has jurisdiction to try the suit?
9. Whether the suit is properly valued and Court fee paid is correct?: 19 : 10. Whether the defendant Nos.1 to 3
prove that they are the absolute owners and in actual possession of suit properties?
11. Whether the defendant No.1 to 3 are entitled for the reliefs as sought for by way of counter claim?
12. Whether the defendant Nos.4 and 5
prove that Bhimappa No.2 has
executed the will on 3.11.2006 in
favouir of defendants Nos.4 and 5
while he is in sound disposing state of mind and has bequeathed his properties in their favour?
13. Whether the defendant Nos.4 and 5 proves that they became the owners of suit properties on the basis of Will dated 3.11.2006 and they are in actual possession of the same?
14. What order or decree?
ADDITIONAL ISSUES:
: 20 :
1. Whether the plaintiffs prove that even in the absence of the Will dated 4.4.1936 executed by the deceased Bhimappa No.1 the said Dasharath and Venkappa became the owners of Bhimappa No.1's share in the suit properties by way of survivorship after his death?
2. Whether the plaintiffs further prove that the counter claim of the defendant Nos.1 to 3 is barred by limitation?
13. The plaintiffs in order substantiate their claim, examined 9 witnesses as PWs1 to PW9 and produced 43 documents, which are marked as Exs.P1 to P43. The defendants also examined 7 witnesses as DW1 to DW7 and produced 19 documents, which are marked as Exs.D1 to D19.
14. The trial Court on appreciation of the aforesaid oral and documentary evidence on record : 21 : held that the Will set up by both the plaintiffs and defendants are not proved. It also rejected the counter claim preferred by the defendants, it held that the provisions of Hindu Women's Rights to Property Act, 1937 is not attracted to the facts of the case because Bhimappa under whom, the defendants are claiming title, died prior to coming into force of the said Act and in view of Section 4 of the said Act, it has no application. Further he held that on the death of Bhimappa in the year 1936 his interest in the schedule properties devolved on the sons of Kushnappa as they were all the members of the co-parcener by way of survivorship. Therefore, the widow of Bhimappa did not succeed to the estate of Bhimappa under the Mitakshara Law, which governs the parties, they had no right to inheritance of his undivided share in the co-parcenary properties. Therefore, he held that the plaintiffs, who are claiming through the sons of : 22 : Kushnappa i.e., Dasharath and Venkappa have inherited their properties exclusively and therefore, they are entitled to declaration sought for and consequently to the decree of permanent injunction.
Thus, the plaintiffs' suit was decreed, counter claims were dismissed. Aggrieved by the said judgment and decree of the trial Court, the defendants are in appeal.
15. Sri.M.G.Naganuri, the learned counsel for the appellants assailing the impugned judgment and decree of the trial Court contends that, according to the theory underlying the Hindu law, the widow of a deceased Hindu is his surviving half and therefore as long as she is alive, he must be deemed to continue to exist in her person. Therefore, though Bhimappa died in the year 1936, by virtue of the aforesaid legal fixation, he is deemed to continue to exist in his wife and only on the death of the wife, he also dies and therefore, the date of death of a wife is to be taken : 23 : into consideration to decide the rights of the parties and two wives having died subsequent to coming into operation of the Hindu Women's Rights to Property Act, 1937, the share of Bhimappa in the co-parcenary property devolved on them and after their death, it devolves on the legal heirs, who are the defendants in the suit. Therefore, he submits that the trial Court was justified in dismissing the claim of the plaintiffs.
16. Per contra, Sri.V.P.Kulkarni, the learned counsel for the defendant Nos.1 to 3 submits that Bhimappa died in the year 1936. The Hindu Women's Rights to property Act, 1937 came into force from 14th April 1937. Section 4 of the Act makes it clear that nothing in the Act shall apply to the property of any Hindu, who dies intestate before commencement of the Act. Therefore the said Act is not attracted under the Hindu Law. It is not accepted that the actual date of death of the husband would be the date of death of : 24 : the wife, if a husband predeceases the wife. It is only under the 1937 Act, if a husband dies being a coparcenar though the wife has not been conferred the right of a coparcenar, she has been given right of the share of the coparcenar. In other words, not being a member of coparcenary, she steps into the shoes of her husband - a coparenar insofar as his share in the coparcenary property is concerned. As Bhimappa died prior to the coming into the force of the Act, the Act has no application. Therefore, on the death of Bhimappa, his share in the coparcenary was succeeded by the sons of Kushnappa by way of survivorship. Therefore, neither the widow of Bhimappa nor their children acquired any interest in the schedule property. Therefore, the trial Court was justified in decreeing the suit and in dismissing the counter claim filed by the defendants. : 25 :
17. In the light of the aforesaid facts and the rival contentions, the point that arise for our consideration in this appeal is as under:
• On the death of Bhimappa - co-parcenar in the year 1936, whether his widow inherited the share of Bhimappa in the co-parcenary property, which the defendants are claiming?
18. The Apex Court had an occasion to consider the right of a widow prior to 1937 Act under the Hindu Law. In POTTI LAKSHMI PERUMALLU S. POTTI KRISHNAVENAMMA, reported in AIR 1965 SUPREME COURT 825, referring to the judgment of Nagapur High Court in the case of JADAOBAI V. PURANMAL reported in AIR 1944 NAG 243 and in the case of SIVESHWAR PRADSAD V. HAR NARAIN reported in AIR 1945 PAT 116, it was held that, whenever a co-parcener in a Hindu joint family dies leaving a widow a disruption takes place in the : 26 : family, for unless a disruption is deemed to take place, it would not be possible for the widow's share to be crystallized. The legislature did not intend to create a new kind of interest nor to make her a coparcener. Though her interest in the family property is to be the same as that of her deceased husband except that in extent it is to be that of a Hindu widow. A coparcener has no definite interest in the joint family property and the right, which he has, is to claim for partition. The quantum of his interest would be determinable with reference to the date on which such member unequivocally declares his intention to separate and thus put an end to the coparcenary. It cannot even be suggested that the event of the death of a coparcener is not tantamount to an unequivocal declaration by him to separate from the family. According to the theory underlying the Hindu law the widow of a deceased Hindu is his surviving half and : 27 : therefore as long as she is alive, he must be deemed to continue to exist in her person. This surviving half had under the Hindu law text no right to claim a partition of the property of the family, which her husband belonged. But the Act of 1937 has conferred that right upon her. When the Act says that she will have the same right as her husband had it clearly means that she would be entitled to be allotted the same share as her husband would have been entitled to had he lived on the date on which she claimed partition.
19. The Supreme Court in the case of SATRUGHAN ISSER VS. SABUJPARI reported in 1966-LAWS(SC)-8-16 interpreting the scheme and the relevant provisions of the Act, 1937 held as under:
"3. Under the Mitakshara School of Hindu law, on the death of a coparcener his individual interests in coparcenary property devolves by survivorship upon the : 28 : remaining coparceners, and his widow if any is entitled to maintenance only out of the property.......
4. The 1937 Act seeks to make fundamental changes in the concept of a copacenary and the rights of members of the family in coparcenary property. The Hindu Law as laboriously developed by the Anglo-Indian Courts in the light of certain basic concepts expounded by the ancient law givers, and acquired a degree of consistency and symmetry. The Act in investing the widow of a member of a coparcenary with the interest which the member had at the time of his death has introduced changes which are alien to the structure of a coparcenary. The interest of the widow arises not by inheritance, not by survivorship, but by statutory substitution:
her interest in the property is the limited, interest known as a Hindu Woman's estate, but the Act gives her the same power to claim partition as a male owner has. The Act, is however, silent about the mode of : 29 : devolution of the property obtained on partition, on termination of her estate, about the rights of the surviving coparceners qua the interest vested in the widow, about the rights of the widow qua the interest of the surviving coparceners, and about several other matters.
5. A Hindu coparcener under the Mitakshara School consists of males alone;
it includes only those members, who acquire by birth or adoption interest in the coparcenary property. The essence of the coparcenary property is unity of ownership, which is vested in the whole body of coparcenars. While it remains joint, no individual member can predicate of the undivided property that he has a definite share therein. The interest of each coparcener is fluctuating, capable of being enlarged by deaths, and liable to be diminished by the birth of sons to coparceners; it is only on partition that the coparcener can claim that he has become entitle to a definite share. The two principal : 30 : incident of coparcenary property are: that the interest of coparceners devolves by survivorship and not by inheritance; and that the male issue of a copracener acquires an interest in the coparcenary property by birth, not representing his father but in his own independent right acquired by birth.
6. Property inherited by a Hindu female, who has entered the gotra of the deceased owner by marriage acquires according to all schools of Hindu law a widow's estate or a Hindu woman's estate.
In that estate her right is of an owner and not that of a tenant-for-life. The property is vested in her and she represents it completely: so long as she is alive no one has any vested interest in the property held by her. Her rights of alienation are, however, restricted she may alienate the corpus of the property only for purposes of legal necessity or benefit of the estate. The limited estate of a Hindu female postulates ownership in the property held by her : 31 : subject to restrictions on her power of alienation and devolution of that property on extinction of the estate of the female on the heirs of the last full owner.
7. By 1937 Act, certain antithetical concepts are sought to be reconciled. A widow of a coparener is invested by the act with the same interest, which her husband had at the time of his death in the property of the coparcenary. She is thereby introduced into the coparcenary, and between the surviving coparceners of her husband and the widow so introduced, there arises community of interest and unity of possession. But the widow does not on that account become a coparcener:
though invested with the same interest, which her husband had in the property, she does not acquire the right, which her husband could have exercised over the interest of the other coparceners. Because of statutory substitution of her interest in the coparcenery property in place of her husband the right which the other : 32 : coparceners had under the Hindu Law of the Mitakshara School of taking that interest by the rule of surviorship remains suspended so long as that estate enures. But on the death of a coparcener there is no dissolution of the coparcenary so as to carve out a defined interest in favour of the widow in the coparcenary property. The interest acquired by her under Section 8(2) is subject to the restriction on alienation, which are inherent in her estate. She has still power to make her interest definite by making a demand for partition, as a male owner may. If the widow after being introduced into family to which her husband belonged does not seek partition, on the termination of her estate her interest will merge into the coparcenary property. But if she claims partition, she is severed from the other members and her interest becomes a defined interest in the coparcenary property and the right of the other coparceners to take that interest by survivorship will stand extinguished. If she : 33 : dies after partition or her estate is otherwise determined, the interest in coparcenary property', which has vested in her will devolve upon the heirs of her husband. It is true that a widow obtaining an interest in coparcenary property by Section 3(2) does not inherit that interest but once her interest has ceased to have the character of undiided interest in the property, it will upon termination of her estate devolve upon her husband's heirs."
20. It is in the background of legal position, we have to find out in this instant case, what is the interest of the widow of Bhimappa, had on the date of his death, on the basis of which, the defendants are claiming title to the property in dispute.
21. As stated earlier, the 1937 Act came into force from 14th April 1937. Prior to the enactment of the aforesaid law, the Hindu Law of Inheritance (Amendment) Act, 1929 was in force. Certain heirs of : 34 : a Hindu male dying intestate were given the right to succeed to their estate. The said Act applies to such persons in respect only when the property of males not held in co-parcenary and not disposed of by Will.
In other words, the said Act did not deal with the inheritance in respect of a co-parcenary or a joint family property. It dealt with only the self acquisitions of males, if they had not disposed of the same by way of a Will. As in this case, we are dealing with the right to a co-parcenary property, the said Act has no application. Section 4 of the 1937 Act explicitly makes it clear that the said Act is prospective in nature and it applies only if a Hindu has died intestate, after the commencement of the Act. In other words, if a Hindu had died before the commencement of the Act, the said Act has no application and right to property is to be governed by the Shastric Hindu Law, in this case Mitakshara Law. Therefore, the case has to be decided : 35 : in the light of the law, which was in force before 1937, Act came into force.
22. The facts are not in dispute. The propositus had two sons by name Bhimappa and Kushnappa. After the death of Setteppa, as there was no partition in the family, his two sons continued as members of the joint family and co-parceners. Kushnappa died in the year 1929, leaving behind his two sons Dashrath and Venkappa and two daughters Taravva and Lakkavva. As only male members are the members of the co-parceners, after the death of Kushnappa, co- parceners consist of Bhimappa, Dashrath and Venkappa. Between themselves also there was no partition, they continued as joint family members. On 07.04.1936, Bhimappa died leaving behind his two wives. Bhimappa and Venkappa though they were members of the joint family they are not members of the co-parcenery, on the death of Bheemappa, the : 36 : rights of the co-parceners as in the coparcenery property devolves on the surviving co-percenery members by survivorship. Therefore, Dashrath and Venkappa, became the absolute owners of the plaint schedule properties. The widows of Bhimappa had only right of the maintenance. It is only under the 1937 Act, right is conferred on the widows under Section 3 of the said Act. Section 3(2) confers on the widows a limited interest known as Hindu Women's Rights share to which their husband are entitled to in the co-parcenery property. As the said Act is not applicable, they did not inherit the share of Bhimappa in the co-parcenery property.
23. Learned trial Judge on careful consideration of the several judgments relied upon by the parties rightly held on the death of Bheemappa his wives and daughters did not succeed to his property as his heirs. On the death of Bheemappa, his share in the co- : 37 : parcenery property devolves on the sons of Kushnappa namely Dashrath and Venkappa. Therefore, the declaration granted by the trial Court that the plaintiffs are absolute and exclusive owners of the plaint schedule property is in accordance with law. No infirmity could be attributed to the said judgment. In that view of the matter, we do not see any merit in the appeal. Accordingly, the appeal is dismissed.
24. Though defendants disputed the claim of the plaintiffs and preferred counter claim seeking declaration of their rights to the schedule property, as discussed above, on the death of Bheemappa neither his widows nor his daughters under whom defendants are claiming title had any interest in the schedule property. Therefore, counter claim is mis-conceived. Rightly the trial Court dismissed the said counter claim. Therefore, no case is made out to interfere with the judgment and decree of the trial Court. : 38 :
25. No merits in this appeal and in the RFA Crob. Accordingly both are dismissed. No costs.
SD/-
JUDGE SD/-
JUDGE Vnp*/JTR