Karnataka High Court
Sri Ashok S/O. Basavaraj Maradi vs Sri Basavraj S/O. Veerabhadrappa ... on 19 February, 2014
Author: A.V.Chandrashekara
Bench: A.V. Chandrashekara
1
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 19TH DAY OF FEBRUARY 2014
BEFORE
THE HON'BLE MR. JUSTICE A.V. CHANDRASHEKARA
R.S.A. No.5304/2010 (PAR/SEP. POSSN.)
BETWEEN
1. SRI ASHOK S/O BASAVARAJ MARADI,
AGE 28 YEARS, OC:AGRIL,
R/O UJJANKOPPA TQ:RAMDURG,
NOW R/AT AMBEDKAR NAGAR,
NEAR BUS STAND, GOKAK,
DIST:BELGAUM-591309.
2. SRI. SHASHIKALA,
W/O BASAVARAJ MARADI,
AGE 46 YEARS, OC:AGRIL.,
R/O UJJANKOPPA, TQ:RAMDURG,
NOW R.AT AMBEDKAR NAGAR,
NEAR BUS STAND, GOKAK,
DIST:BELGAUM-591309.
- APPELLANTS
(BY SRI. GANGADHAR S HOSAKERI, ADV.)
AND
SRI BASAVRAJ S/O VEERABHADRAPPA MARADI,
AGE 58 YEARS, OCC:AGRIL.,
R/O UJJANKOPPA, TQ:RAMDURG,
DIST:BELGAUM-591309.
- RESPONDENT
(BY SRI. M S SATISH, ADV.)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DATED 02-01-2010 PASSED IN R.A.NO:
82/2007 ON THE FILE OF THE VI-ADDL. DISTRICT JUDGE, BELGAUM,
ALLOWING THE APPEAL, FILED AGAINST THE JUDGEMENT AND
2
DECREE DTD:31-08-2007 PASSED IN O.S.NO:29/2007 ON THE FILE
OF THE CIVIL JUDGE(JR.DN), RAMDURG, DECREEING THE SUIT
FILED FOR PARTITION AND SEPARATE POSSESSION.
THIS APPEAL COMING ON FOR FINAL HEARING ON THIS
DAY, COURT DELIVERED THE FOLLOWING:-
JUDGMENT
1. Appellants were the plaintiffs in O.S. No. 89/2002 which was pending on the file of the Court of Civil Judge (Sr. Dn.) & JMFC at Ramdurg. Plaintiffs haD filed A suit for the relief of partition and separate possession of their 1/3rd share EACH in the suit properties as described in the schedule appended to the plaint. Properties described in the schedule appended to the plaint are; 33 guntas of land in R.S. No. 44/5+7+8/1 and 4.20 acres in R.S. No. 37/2+1B/1, both situate in Ujjanakoppa village of Ramadurga Taluk. Item no. 3 is the house bearing property no. 172 of Ujjanakoppa village, Chunchanur Grama Panchayath.
2. First plaintiff is the son of second plaintiff and the defendant. Respondent herein was the only defendant in the said suit. Parties will be referred to as plaintiff nos. 1 and 2 and defendant as per their 3 ranking arrived at the trial Court. This appeal filed by the plaintiffs is directed against the divergent judgment of the first appellate Court.
3. As already discussed, suit came to be filed for the relief of partition and separate possession claiming in all 2/3rd share in the schedule properties. Marriage of the second plaintiff with the defendant and birth of first plaintiff out of the wedlock is not in dispute. Some differences arose between the second plaintiff and the defendant and they started living separately. According to the defendant, a divorce deed was entered into between himself and the second plaintiff way back on 29.03.1983 and since then they are living separately. According to him, there is no legal relationship of husband and wife between himself and the second plaintiff. Further, after divorcing him, the second plaintiff has married one person by name Ramachandra and that she has one child out of the said marriage. He had taken a specific contention that the suit was barred by time more particularly when the suit filed 12 years after 29.03.1983. According to him, the said divorce deed has been acted 4 upon and therefore nothing survives for the plaintiffs to file a suit for partition. According to the defendant suit was bad for non joinder of necessary parties in view of non-inclusion of his children born through his second wife namely Mahadevi. With these pleadings he had requested the trial Court to dismiss the suit.
4. On the basis of the above pleadings the following issues came to be framed.
1) Do the plaintiffs prove that the suit properties are the ancestral joint family properties of defendant and themselves?
2) Does the suit of the plaintiffs is bad for misjoinder of necessary parties and non-joinder of necessary parties as contended in para-3 and 7 of W.S?
3) Do the defendant proves that he has taken consent divorce as per custom on 29.3.1983 from plaintiff-2 and therby plaintiff- 2 is not become his family member?
4) Does the suit of the plaintiffs is barred by limitation?
5) Do the plaintiffs are entitled for partition and separate possession to the extent of 2/3rd share over the suit properties?
6) What order or decree?
---
5. Second plaintiff is examined as P.W.1 and 2 witnesses have been examined and 3 exhibits have been got marked on their behalf. 5 Defendant is examined as D.W.1 and one Mahadevappa is examined as D.W.2 apart from getting 5 exhibits got marked on his behalf.
6. After analyzing the evidence placed on record, learned Judge has answered issue no.1 in the affirmative and issue nos.2 to 4 in the negative. Issue no. 5 has been held partly in the affirmative granting in all 2/5th share to the plaintiffs together. This considered judgment and decree dated 31.08.2007 passed by the learned Civil Judge (Sr. Dn.), Ramdurg came to be challenged by filing an appeal before the District Court, Belgaum in R.A. No. 82/2007. The said appeal was to be assigned to the Court of 6th Addl. District Court, Belgaum.
7. Several grounds have been urged before the first appellate Court in the appeal filed u/S 96 of CPC. The main ground urged in the first appeal was about the applicability of limitation as contemplated under Article 110 of the Limitation Act. It had been strenuously contended before the first appellate Court that exclusion of the plaintiffs has to be calculated from the date of the divorce deed executed by the second plaintiff in favour of the defendant. 6 Reckoning 12 years from the divorce deed dated 29.03.1983, the first appellate court has chosen to non suit the plaintiff and it has held that the suit itself was barred by time. It is this judgment and decree which is called in question on several grounds urged in the appeal.
8. On going through the records and hearing the learned counsel for the appellant following substantial questions of law came to be framed on 10.02.2014. While hearing the arguments today, i.e., 19.02.2014, this Court felt that one more substantial question of law is required in regard to the first appellate Court applying Article 110 of the Limitation Act to non suit the plaintiff. Accordingly, following substantial question of law is framed:
Whether the plaintiffs-appellants can question the share granted in their favour by the trial Court in this second appeal for the first time without questioning the quantum of share by means of separate regular appeal or cross-objection u/S 96 of CPC in the first appellate Court?
Earlier to this, following substantial questions of law have been framed by my learned predecessor on 25.06.2010.
1) Whether, the first appellate Court is justified in holding that the appellants/ plaintiffs are excluded from possession of the suit properties on the sole 7 ground that the plaintiffs/ appellants were residing separately since 1983, when there is no evidence of exclusion of the plaintiffs and denial of the share of plaintiffs by the defendant at any time before filing of the suit by the plaintiffs?
2) Whether the first appellate Court is justified in holding that the plaintiff no.1 who has admittedly attained majority in the year 1995 sought to have filed the suit within 3 years from the date of attaining his majority contrary to Article 110 of the Limitation Act which prescribes a period of 12 years for filing the suit for partition?
---
9. On 10.02.2014, a substantial question of law came to be framed in view of the arguments advanced by the learned counsel for the respondent that the plaintiffs cannot seek higher share than what was granted before the trial Court more particularly having not filed any appeal or cross-objection against granting 2/5th share by the trial Court.
10. Regarding Q. No. 1 and 2: There is no dispute with regard to the marriage that had taken place between the second plaintiff and defendant. They lived as husband and wife, as a result of the said wedlock first plaintiff was born on 12.03.1977. Because of some differences between the second plaintiff and the defendant, they could 8 not live together and as such they started living separately. A document also came to be executed which is styled as 'divorce deed' marked as Ex.D.1. Of course Ex.D.1 cannot be considered as a valid document dissolving legal wedlock between the second plaintiff and the defendant. At the best the said document can be looked into only for a limited purpose that all was not well between the second plaintiff and the defendant and they started living separately. It has also come in the evidence of the parties that second plaintiff has married one person by name Ramachandra and has given birth to a female child. It has also come in the evidence of the defendant that he has married a lady by name Mahadevi and he has two children through the said Mahadevi. Admittedly, the marriage that has taken place between the defendant and the said Mahadevi, is a second marriage. Any children born out of the second marriage will not be entitled to a share in the ancestral property. Children born out of the second marriage must not be denied a legitimate share in the property of the putative father and it is in this regard protection is given to such illegitimate children u/S 16(3) of the Hindu Marriage Act. They are considered as though they 9 are the legitimate children for all practical purposes in order to lay a claim on absolute property of their putative father.
11. The fact that the schedule properties are the ancestral properties of the defendant is not in dispute and it is not suggested to P.W.1 at any point of time that these properties are not the ancestral properties. Thus the schedule properties are ancestral property at the hands of the first plaintiff who is born out of the legal wedlock of the second plaintiff with the defendant.
12. What is argued before this Court is that the first appellate Court has rightly applied Article 110 of the Limitation Act to non suit the plaintiffs and that has been rightly calculated from the date on which Ex.D.1 came into being. We cannot lose sight of the fact that first plaintiff was a minor and hardly aged about 6 years and was under the care and custody of his natural guardian-mother when Ex.D.1, the divorce deed came into existence. It is not the case of the defendant that the first plaintiff continued to live with him notwithstanding execution of Ex.D.1 between himself and the second plaintiff. 10
13. V.N. Mitra's Law of Limitation and Prescription 12th Edition reprint 2011 is perused by this Court. In page no. 1998 of the said edition the object underlines this Article 110 has been eloquently explained:
The object underlined Article is presumably to afford protection to a member of a Hindu Joint Family against prejudicial action by the other members of the family behind his back with respect to his interest in the family property. The joint and undivided family is the normal condition of the Hindu Society. There is a presumption of jointness in the Hindu family and jointness subsists till a member is proved. The presumption of the jointness is greatest of father and sons as reported in 1971 (1) SCWR 764.
---
14. What is argued before this Court is that exclusion of second plaintiff is very much evident and that is forthcoming from Ex.D.1. It is to be seen that a Hindu wife in India except the Southern Province 11 is entitled to a share at a partition that takes place between her sons. In Shiromani's case reported in AIR 1968 SC 1299, the Hon'ble Supreme Court has specifically held that a wife cannot herself take a share by filing a suit for partition. But if a partition does takes place between herself and her sons then she is entitled (except in Southern India) to receive a share equal to that of a son and to hold and enjoy that share separately even from her husband. Even where a partition between the father and his sons takes place and if wife is not allotted a share, it is held that she would be entitled to reopen the partition since waiver cannot be made applicable to a wife in India except in Southern India. Admittedly, Belgaum District is a part of erstwhile Bombay province and the parties to the suit are from Belgaum District. Such being the case, the applicability of Article 110 of the Limitation Act to the second plaintiff is wholly misconceived and thereby the first appellate Court has adopted wrong approach to the real state of affairs.
12
15. It is to be seen that first plaintiff was a minor and he was in the care and custody of the second plaintiff who is the natural guardian. He could not have filed a suit for partition and separate possession seeking his 1/3rd share because of legal disability due to minority and mother could have filed a suit seeking partition to claim her share. Admittedly, mother did not file a suit for partition on behalf of her minor son.
16. In view of non applicability of Article 110 of the Limitation Act to the present case, plaintiff no. 2 was entitled to invoke Article 109 of the Limitation Act. 12 years is the time to seek possession of an undivided share of a coparcenary governed under the Mithakshara Law. Admittedly no alienation has taken place in the present case. First plaintiff had attained majority on 12.03.1995. Even if Article 110 of the Limitation Act were to be made applicable to the first plaintiff, it is to be from the date of attaining majority, i.e., 12.03.1995. Admittedly, suit came to be filed in the year 2002, i.e., on 09.10.2002 more particularly within 12 years from the date of 13 attaining majority. Viewed from any angle applicability of Article 110 of the Limitation Act to the facts of the case by the first appellate Court is misconceived. As already discussed, the approach of the first appellate Court is inconsistent and not in accordance with law.
17. Learned counsel for the respondent has vehemently argued that Article 110 would be made applicable to the second plaintiff. A discussion is already made as to how the same is made applicable. She could not have brought a suit independently on her own unless a partition suit was filed by her son. Therefore, Article 110 cannot be applied even to the second plaintiff in any manner. Hence, there is no substance in the argument advanced by the learned counsel for the respondent.
18. In this view of the matter, the approach of the first appellate Court that the suit should have been filed within 3 years from the date of attaining majority by the first plaintiff is contrary to Article 110 of the Limitation Act, which prescribes 12 years for filing suit for 14 partition. In this view of the matter, the substantial question of law nos.1 and 2 are answered in the negative.
19. The next substantial question of law is in regard to the entitlement of the plaintiff to claim higher share than the one granted to them by the trial Court, more particularly no appeal or cross- objection being filed as against the judgment and decree of the trial Court u/S 96 or under Order 41 Rule 22 of CPC.
20. What is argued before this court by the learned counsel for the respondent is that Sec. 96 of CPC provides an opportunity for any party aggrieved by any finding or judgment of the appellate Court. Unless such a relief is exhausted under Order 41 Rule 1 or under Rule 41 Rule 22 of CPC, the same cannot be invoked u/S 100 of CPC, is his argument. In this regard, a leading decision reported in AIR 2008 SC 2594 (STATE BANK OF INDIA & ORS. VS. S.N. GOYAL) is relevant. The power of the second appellate Court u/S 100 CPC in regard to framing of substantial question of law has been eloquently explained. It is specifically held that even if there is a clear 15 enunciation of law by the Apex Court or by the High Court, and if the lower appellate Court has ignored or misinterpreted or misapplied the same, then appeal u/S 100 of CPC would involve a substantial question of law. It is further held that errors committed by the appellate Court needs to be corrected if such lapses are technical nature lead to injustice and multiplication of litigations. The principles reiterated in this decision is aptly applicable to the facts of the case. The relevant discussion found in para 9 (9.1) of the decision reported in State Bank of India's case is reproduced below:
9.1 Second appeals would lie in cases which involve substantial questions of law. The word 'substantial' prefixed to 'question of law' does not refer to the stakes involved in the case, nor intended to refer only to questions of law of general importance, but refers to impact or effect of the question of law on the decision in the lis between the parties, 'Substantial questions of law' means not only substantial questions of law of general importance, but also substantial question of law arising in a case as between the parties. In the context of section 100, CPC, any question of law which affects the final decision in a case is a substantial question of law as between the aprties. A question of law which arises incidentally or collaterally, having no bearing in the final outcome, will not be a substantial question of law. Where there is a clear and settled enunciation on a question of law, by this Court or by the High Court concerned, it cannot be said that the case involves a substantial question of law. It is said that a substantial question of law arises when a question o flaw, which is not finally settled by this Court (or by the 16 concerned high Court so far as the State is concerned), arises for consideration in the case. But this statement has to be understood in the correct perspective. Where there is a clear enunciation of law and the lower court has followed or rightly applied such clear enunciation of law, obviously the case will not be considered as giving rise to a substantial question of law, even if the question of law may be one of general importance. On the other hand, if there is a clear enunciation of law by this Court (or by the concerned High Court), but the lower court had ignored or misinterpreted or misapplied the same, and correct application of the law as declared or enunciated by this Court (or the concerned High Court) would have led to a different decision, the appeal would involve a substantial question of law as between the parties. Even where there is an enunciation of law by this Court (or the concerned High Court) and the same has been followed by the lower court, if the appellant is able to persuade the High Court that the enunciated legal position needs reconsideration, alteration, modification or clarification or that there is a need to resolve an apparent conflict between two viewpoints, it can be said that a substantial question of law arises for consideration. There cannot, therefore, be a strait-jack definition as to when a substantial question of law arises in a case. Be that as it may."
---
21. The error committed by the trial Court is in regard to the proper calculation of the shares of the parties based on the personal laws applicable to the facts of the case. Admittedly parties are Hindus. Second plaintiff is the legally wedded wife of the defendant and first plaintiff is born out of the said wedlock. Parties have been living in 17 the Belgaum District which was part and parcel of earlier Bombay province and in view of the decision rendered in Shiromani's case (AIR 1968 SC 1299), the wife is also entitled to equal share along with her son.
22. It is in this view of the matter, the correct share between the parties would be 1/3rd each. Defendant would get 1/3, first plaintiff being the son born out of the legal wedlock would also get 1/3 and the second plaintiff being the legally wedded wife of the defendant would also get 1/3rd share. The children born out of Mahadevi, the second wife of the defendant will have to workout their share in the share allotted to the defendant which becomes his exclusive share after partition. In this view of the matter, it is made clear that the plaintiffs can question the quantum of share granted in their favour by the trial Court in this second appeal for the first time even though they have not questioned the same by filing first appeal u/S 96 of CPC or Under Order 41 Rule 22 of CPC.
18
23. The error that has crept in the judgment pronounced by the trial Court in regard to the share of the parties can be set right by the second appellate Court and that is what is held in State Bank of India's case. It is also to be seen that judgment of the trial Court had merged with the appellate Court judgment and therefore the judgment of the first appellate Court is called in question before this Court. The question of reapprecaition of evidence has not arisen in the present case more particularly in the light of proper application of the provisions of Article 110 to the facts of the case and the exact calculation of the shares based on the personal laws applicable to them.
In this view of the matter the additional substantial question of law framed on 10.02.2014 is also answered in the affirmative.
24. In the light of the findings given on the above 3 substantial questions of law, the appeal will have to be allowed in its entirety and the judgment and decree of the first appellate Court will have to be set 19 aside and the judgment and decree of the trial Court stands restored subject of course to certain modifications.
ORDER It is hereby declared that plaintiff nos.1 and 2 are entitled to 1/3rd share in the suit property to be demarcated by metes and bounds u/S 54 and under Order 20 Rule 18 of CPC. Appeal is allowed and judgment of the first appellate Court stands dismissed and the judgment of the trial Court stands restored with modification granting 1/3 share each to the plaintiffs.
In view of the relationship of the parties, there is no order as to costs.
SD/-
JUDGE bvv