Karnataka High Court
Shivalingappa vs Gouravva on 12 January, 1988
Equivalent citations: ILR1988KAR1933
JUDGMENT K.A. Swami, J.
1. At the stage of admission, the respondent is notified. Accordingly, she has put in appearance through a Counsel. The records are also received. As the appeal can be disposed of on the findings recorded by the trial Court and it lies in a narrow compass, it is admitted and by consent of learned Counsel on both the sides, it is treated as being in the list for final hearing. Accordingly, it is heard and disposed of by this Judgment. The appellant is the defendant and respondent is the plaintiff. In this Judgment, they are referred as defendant and plaintiff respectively.
2. The relationship between the parties is not in dispute. The plaintiff Smt. Gowrawwa is the widow of one Bhimappa who died on 22-1-1943. The defendant is the adopted son of Bhimappa. The plaintiff after the death of her husband took the defendant in adoption on 27-9-1944. The adoption is also evidenced by a registered deed dated 27-9-1944. Bhimappa was the owner of plaint A and B schedule properties consisting of agricultural lands and house properties. At the time when the plaintiff was married to Bhimappa, she had not attained puberty. Therefore, Bhimappa wanted to have another wife. Hence, he executed a registered deed of maintenance dated 12-1-1933 in favour of the plaintiff giving 'A' Schedule properties to her for her maintenance. However, Bhimappa did not take second wife. He died on 22-1-1943. Both the parties continued to enjoy the suit properties. These facts are not in dispute and are also found by the trial Court as proved.
3. The trial Court has held that as 'A' Schedule properties were given to the plaintiff for her maintenance she became absolute owner of the same on the coming into force of the Hindu Succession Act. Therefore, it has denied a share to the defendant in 'A' Schedule properties and permanently restraining him from interfering with the possession of the plaintiff. However in respect of the 'B' Schedule properties it has held that both the plaintiff and the defendant are entitled to share equally. Accordingly, it has passed a preliminary decree for partition and possession of half share of the plaintiff in 'B' Schedule properties.
4.1. Being aggrieved by the aforesaid decree in so far it denies a share to the defendant in A schedule properties and declares the plaintiff as absolute owner of the same and grants a decree for permanent injunction in her favour, the defendant has come up in appeal.
4.2. Having regard to the contentions urged on both the sides, the point that arises for consideration is as follows:
Whether the trial Court is justified in law in holding that the plaintiff has become the absolute owner of the 'A' Schedule properties and as such the defendant is not entitled to any share in them?
5. It appears to us that the trial Court has not appreciated the law bearing on the point. The parties are Hindus and they come from Bombay Karnataka area governed by Bombay School of Hindu Law, Bhimappa-the husband of the plaintiff died on 22-1-1943 leaving behind him the plaintiff and the suit schedule properties. As per the Bombay School, the plaintiff inherited the properties of her husband as a female heir being a widow as there were no male or female lineal descendants and the wives of his sapindas and samanodakas. The properties so inherited by her were to be enjoyed by her as limited estate and on her death the properties were to pass not to her heirs but to next heir of her husband from whom she inherited them. The law on the point is stated at sub-para (2) of Para 170 in Principles of Hindu Law by Mulla, 14th Edition, thus :
"Para 170(2) - As regards property inherited from males, female heirs under the Bombay school are divided into two classes, namely :-
(i) Those who come into the gotra of the deceased owner, by marriage, that is, the wife of the deceased and the wives of the his sapindas and Samanodakas ; and (ii) Those who are born in the gotra of the deceased owner, but pass by marriage into a different gotra, and their daughters. This class includes a daughter, son's daughter, daughter's daughter, sister, niece, grant-niece, father's sister, and the like."
The son's daughter, daughter's daughter, and sister are now expressly mentioned as heirs in the Hindu Law of Inheritance (Amendment) Act, 1929.
Females coming under class (i), such as widow (d), mother (e), father's mother (f), father's father's mother, and widows of gotraja sapindas (g), e.g., son's widow (h), brother's widow, uncle's widow, etc., take a limited estate in the property inherited by them from males, and on their death the property passes not to their heirs, but to next heir of the male from whom they inherited it (i). And this Is so even if such a female succeeds immediately after the death of another female who was the widow of gotraja sapinda and who had previously inherited the property."
In this appeal, we are not concerned with the female heirs falling in the second category mentioned above in para 170(2)(ii).
Further the plaintiff having inherited the properties of her husband including 'A' Schedule properties, there was no question of enjoying 'A' Schedule properties separately towards her maintenance as she became entitled to enjoy all the suit properties as limited estate. If the matter stood at that, on coming into force of the Hindu Succession Act, the plaintiff would have become the absolute owner of the suit properties having regard to the provisions contained in Section 14 of the Hindu Succession Act.
6. However, with a view to continue the line of her husband, she took the defendant in adoption as per the registered deed of adoption dated 27-9-1944. The adoption of the defendant is not in dispute. As the law stood at the time the defendant was taken in adoption, the adoption related back to the date of death of the husband of the plaintiff. Accordingly, it must have to be regarded that on the date of the death of the husband of the plaintiff, there was an adopted son - the defendant, who should be regarded for all purposes as the. son of the deceased Bhimappa and the plaintiff. The Hindu Women's Rights to Property Act 1937, as amended by Act 11 of 1938 (hereinafter referred to as 'the 1937 Act') had come into force on 14-4-1937. It came to be extended to agricultural lands in the Bombay State in Bombay Karnataka area by the Bombay Act 17 of 1942. Thus, on the date of the death of Bhimappa i.e., 22-1-1943, the 1937 Act, as amended by Bombay Act 17 of 1942 was in force. As a result of adoption of the defendant to Bhimappa which related back to the date of death of Bhimappa, it has to be presumed that Bhimappa died leaving behind his widow the plaintiff and the defendant as his adopted son. Section 2 and Sub-sections (2) and (3) of Section 3 of 1937 Act which are relevant for our purpose are as follows:
"Section 2 - Notwithstanding any rule of Hindu Law or custom to the contrary, the provisions of Section 3 shall apply where a Hindu dies intestate."
"Section 3(2) - When a Hindu governed by any school of Hindu law other than the Dayabhaga school or by customary law dies having at the time of his death an interest in a Hindu Joint Family Property, his widow shall, subject to the provisions of Sub-section (3), have in the property the same interest as he himself had.
(3) Any interest devolving on a Hindu widow under the provisions of this Section shall be the limited interest known as a Hindu Woman's estate, provided however that she shall have the same right of claiming partition as a male owner."
Thus as per Sub-section (2) of Section 3 of the 1937 Act, the plaintiff as the widow of Bhimappa became entitled to the same interest in the suit properties which her husband had. Of course, as per Sub-section (3) of Section 3 of 1937 Act, the interest in the suit properties which devolved upon the plaintiff under Sub-section (2) of Section 3 of the 1937 Act was the limited interest known as a Hindu Woman's estate, provided however that the plaintiff was entitled to the same right of partition as a male owner. Consequently, the plaintiff having become entitled to the limited interest known as Hindu Woman's estate in all the suit properties equivalent to the share of her husband, there was no question of enjoying 'A' Schedule properties by her separately towards maintenance. The husband of the plaintiff in the presence of his adopted son - the defendant on the date of his death was entitled to a half share in the suit A & B Schedule properties. The plaintiff and the defendant together continued to enjoy the suit properties. On the coming into force of the Hindu Succession Act, having regard to the provisions of Section 14 thereof, the limited interest known as Hindu Woman's Estate held by the plaintiff in the suit properties equivalent to the share of her husband enlarged into a full ownership. Thus, the reasoning of the trial Court that the plaintiff became the full owner of 'A' Schedule properties as they were given to her for maintenance by Bhimappa failed to take into consideration the effect of Sub-sections (2) and (3) of Section 3 of 1937 Act and the effect of adoption of the defendant which related back to the date of death of Bhimappa. On the date when the Hindu Succession Act came into force and on the date of the suit the plaintiff and the defendant were entitled to half share each in the suit properties and it is this half share which the plaintiff has become the absolute owner on the coming into force of the Hindu Succession Act.
7. Learned Counsel for the plaintiff has placed reliance on a decision of the Supreme Court in POTTI LAKSHMI PERUMALLU v. POTTI KRISHNAVENAMMA, . In that decision, Sub-sections (2) and (3) of Section 3 of the 1937 Act, are considered and it is held that the quantum or interest to which a Hindu widow is entitled under Section 3(2) of the 1937 Act is to be determined as on the date on which she seeks to enforce partition under Sub-section (3) of Section 3 of the Act. It is further held that "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 allowed the same share as her husband would have been entitled to had he lived on the date on which she claimed partition." While dealing with the nature of the interest devolving upon the widow under the 1937 Act, it is held that the interest which the 1937 Act has conferred upon the widow is a new kind of interest though in character it is commonly known as Hindu Woman's Estate. Her interest is a fluctuating one and is liable to increase or decrease according as there are deaths in, or additions to, the members of the family or according as there are accretions to or diminutions of the property. As the 1937 Act says that she will have the same right as her husband had, it clearly means that she would be entitled to the same share as her husband would have been entitled to had he lived on the date on which she claimed partition. The interest devolving upon the widow was neither by survivorship nor by inheritance. It was by statute, i.e., the 1937 Act. The view taken by us is in conformity with the aforesaid decision of the Supreme Court in Potti Lakshmi Perumallu's case, . Thus, from what has been stated above, it is clear that the trial Court is not right in holding that the plaintiff became the absolute owner of the A Schedule properties and the defendant is not entitled to have any share in it. Accordingly, the point raised for determination is answered in the negative.
8. For the reasons stated above, the appeal is entitled to succeed and it is accordingly allowed. The Judgment and decree of the trial Court in so far it declares that the plaintiff is the absolute owner of the 'A' Schedule properties and the defendant is not entitled to any share in them and further passing a decree for permanent injunction against the defendant are set aside. It is further declared that the plaintiff and the defendant are entitled to half share each in the suit Schedule properties including the 'A' Schedule properties also. Partition of the agricultural lands assessed to payment of revenue to the Government and separate possession of the share of each of the parties shall be effected by the Deputy Commissioner of the District or any Gazetted subordinate of him. The other properties which are house properties shall be got divided according to the share of each of the parties through a Commissioner appointed by the Court. There shall also be an enquiry into the future profits under Rule 18 of Order 20 of the C.P.C.
9. Each party shall bear the costs throughout.