Karnataka High Court
Malleshappa S/O Rudrappa Shiralli vs Nagavva W/O Irappa Hosagoudra on 10 October, 2023
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RFA No. 100248 of 2015
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 10TH DAY OF OCTOBER, 2023
PRESENT
THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO. 100248 OF 2015 (DEC/PAR-)
BETWEEN:
MALLESHAPPA S/O. RUDRAPPA SHIRALLI,
AGE: 67 YEARS, OCC: COOLIE,
R/O: CHIKKONATI, TQ: HIREKERUR,
NOW RESIDING AT RAGIKOPPA VILLAGE,
TQ: SHIKARIPUR, DIST: SHIVAMOGGA-577427.
...APPELLANT
(BY SRI. AVINAS G BANAKAR)
AND:
1. NAGAVVA W/O. IRAPPA HOSAGOUDRA
SINCE DEAD BY HER LRS,
Digitally
signed by
SAMREEN
SAMREEN AYUB
AYUB DESHNUR
DESHNUR Date: 1a GADIGEPPA S/O. IRAPPA HOSAGOUDRA,
2023.10.13
16:07:21
+0530
AGE: 46 YEARS, OCC: AGRICULTURE,
R/O MALLENAHALLI, TQ: SHIKARIPUR,
DIST: SHIVAMOGGA-581109.
1b BASAPPA S/O. IRAPPA HOSAGOUDRA,
AGE: 38 YEARS, OCC: AGRICULTURE,
R/O MALLENAHALLI, TQ: SHIKARIPUR,
DIST: SHIVAMOGGA-581109.
1c NINGAPPA S/O. IRAPPA HOSAGOUDRA,
AGE: 46 YEARS, OCC: AGRICULTURE,
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RFA No. 100248 of 2015
R/O: MALLENAHALLI, TQ: SHIKARIPUR,
DIST: SHIVAMOGGA-581109.
1d MALLANAGOUDA S/O. IRAPPA HOSAGOUDRA,
AGE: 33 YEARS, OCC: AGRICULTURE,
R/O: MALLENAHALLI, TQ: SHIKARIPUR,
DIST: SHIVAMOGGA-581109.
1e MANJULA W/O. GANGAPPA SANNAKKERE,
AGE: 30 YEARS, OCC: AGRICULTURE,
R/O: YATTINAHALLI, TQ: HIREKERUR,
DIST: HAVERI-581111.
2. SMT. LALITAVVA W/O. RUDRAPPA MUTTALLAR
AGE: 42 YEARS, OCC: HOUSEHOLD WORK,
R/O: HIREMATTUR, TQ: HIREKERUR,
DIST: HAVERI-581116.
3. SMT. NAGAVVA W/O. IRAPPA MUTTALLAR,
AGE: 40 YEARS, OCC: HOUSEHOLD WORK,
R/O: HIREMATTUR, TQ: HIREKERUR,
DIST: HAVERI-581116.
4. VIRUPAKSHAPPA S/O. LOKAPPA SHIRALLI,
AGE: 38 YEARS, OCC: AGRICULTURE,
R/O: CHIKKONATI, TQ: HIREKERUR,
DIST: HAVERI-581116.
5. CHANDRAPPA S/O. LOKAPPA SHIRALLI,
AGE: 32 YEARS, OCC: AGRICULTURE,
R/O: CHIKKONATI, TQ: HIREKERUR,
DIST: HAVERI-581116.
6. KARABASAVVA W/O. BASAVARAJAPPA KOTTUR,
AGE: 30 YEARS, OCC: HOUSEHOLD WORK,
R/O: SUTTAKOTI, TQ: HIREKERUR,
DIST: HAVERI-581116.
7. SHIVAYOGEPPA S/O. GURAPPA SHIRALLI,
AGE:72 YEARS, OCC: AGRICULTURE,
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RFA No. 100248 of 2015
R/O: CHIKKONATI, TQ: HIREKERUR,
DIST: HAVERI-581116.
8. UJANEPPA S/O. SHIVAYOGEPPA SHIRALLI,
AGE: 38 YEARS, OCC: AGRICULTURE,
R/O: CHIKKONATI, TQ: HIREKERUR,
DIST: HAVERI-581116.
9. BASAVARAJ S/O. SHIVAYOGEPPA SHIRALLI,
AGE: 38 YEARS, OCC: AGRICUTLURE,
R/O: CHIKKONATI, TQ: HIREKERUR,
DIST: HAVERI-581116.
10 . PARAMESHAPPA S/O. SHIVAYOGEPPA SHIRALLI,
AGE: 34 YEARS, OCC: AGRICULTURE,
R/O: CHIKKONATI, TQ: HIREKERUR,
DIST: HAVERI-581116.
...RESPONDENT
(BY SRI. S. G. KADADAKATTI, ADV. FOR R1(A, B, C, E),
R2 TO R10,
NOTICE TO R1(D) SERVED)
THIS RFA IS FILED U/S.96 OF CPC R/W ORDER 41 OF
CPC, AGAINST THE JUDGMENT & DECREE DATED:25.07.2015,
PASSED IN OS.NO.4/2013, ON THE FILE OF SENIOR CIVIL
JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, HIREKERUR,
DISMISSING THE SUIT FILED FOR DECLARATION/PARTITION
AND SEPARATE POSSESSION.
THIS APPEAL, COMING ON FOR FINAL HEARING ON
31.08.2023 AND THE SAME HAVING BEEN HEARD AND
RESERVED FOR PRONOUNCEMENT OF JUDGMENT, THIS DAY,
RAMACHANDRA D. HUDDAR J., DELIVERED THE FOLLOWING:
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RFA No. 100248 of 2015
JUDGMENT
The present appeal is filed under Section 96 R/w. Order XLI of CPC against the judgment and decree dated 25.07.2015 passed in O.S.No.4/2013 by the Senior Civil Judge and JMFC, Hirekerur, dismissing the suit of the plaintiff.
2. For the purpose of convenience, parties to this appeal are referred to as per their rank before the Trial Court.
3. In order to appreciate the controversy involved in the matter, it would be beneficial to reproduce the genealogy of the families of the parties:
Gouravva (Died in the year 1975) Hucchhavva (Dead) Chennavva (Died in the year 1944) Nagavva Lokappa Shivayogeppa Malleshappa D1 (Died in the year 2008) D7 Pltff Lalitavva Nagavva Virupaxappa Chandrappa Karabasappa D2 D3 D4 D5 D6 -5- NC: 2023:KHC-D:12441-DB RFA No. 100248 of 2015
4. The records of this appeal reveal that during the pendency of this appeal respondent No.1 died and her LRs' were brought on record in the shape of respondent No.1(a) to respondent No.1(e). Accordingly cause title came to be amended.
5. The plaintiff filed the suit in O.S.No.4/2013 praying to grant a relief of declaration that Gift deed and a Will executed by Gouravva is not binding to the extent of his ½ share over the suit schedule properties and also has sought relief of partition and separate possession of his alleged ½ share with a prayer to grant cost.
6. According to the plaintiff, the suit schedule properties belonged to one Gouravva who died in the year 1975. She had two daughters by name Hucchavva and Chennavva. It is alleged that the plaintiff is the son of Chennavva. Defendant Nos.1 and 7 and deceased Lokappa are the children of Hucchavva. Defendant Nos.2 to 6 are the legal heirs of Lokappa. The said Lokappa died on 06.04.2008. It is his case that, Chennavva -6- NC: 2023:KHC-D:12441-DB RFA No. 100248 of 2015 predeceased Gouravva. The plaintiff has got ½ shares in the suit schedule properties. Till today there is no partition of the suit schedule properties by metes and bounds. All the properties are joint family properties.
7. It is his further pleading that, item Nos.6, 7, 8, 9, 10 and 11 of 'A' schedule properties were purchased by the deceased Lokappa by utilizing joint family nucleus. It is his case that, the aforesaid item Nos.8, 9, 10 and 11 were purchased by defendant Nos.7 and 8 respectively.
8. It is his further allegation that, he is an illiterate person. Defendants are quite intelligent; they used to look after the affairs of the joint family. It is his case that, Gouravva executed a Gift deed in respect of item Nos.1 to 4 of 'A' schedule properties and Will in respect of item No.5 of 'A' schedule properties in the name of deceased Lokappa. It is alleged that, the aforesaid documents are got created by the defendants. The said alleged Will and Gift deed are not binding on the plaintiff to the extent of his ½ share. Even it is alleged that, item Nos.6 to 11 of 'A' -7- NC: 2023:KHC-D:12441-DB RFA No. 100248 of 2015 schedule properties were purchased out of the joint family income. So far as defendant Nos.9 and 10 are concerned they are the formal parties. Therefore, it is prayed by the plaintiff to decree the suit.
9. Before the Trial Court, all the defendants appeared through their counsel. Defendant No.7 filed written statement and the same was adopted by other defendants.
10. Defendant No.7 has denied all the averments in the plaint and dispute the very genealogy set up by the plaintiff. It is contended that plaintiff is known as Malleshappa S/o. Rudrappa @ Rudragouda Karasappalavar being the resident of Shidenur village, Byadagi taluk. When he filed a suit he was residing at Ragikoppa village in Shikaripur taluk, Shivamogga district.
11. A specific contention is taken by the defendants that so called cause of action set up by the plaintiff to file a suit is imaginary and the cause of action if at all the -8- NC: 2023:KHC-D:12441-DB RFA No. 100248 of 2015 plaintiff had, it arose on 29.02.1944 when Chennavva died. On that day the provisions of The Hindu Women's Rights to Property Act, 1937 (hereinafter referred to as 'the Act, 1937', for brevity) was in force. By virtue of the said act, no female member of the family was entitled to claim any share. Gouravva died on 27.12.1975. At that time, the Hindu Succession Act, 1956 (hereinafter referred to as 'the Act, 1956', for brevity) was in force. By virtue of the said act, Gouravva became the absolute owner in possession of the suit schedule properties stated in the Gift deed and the Will. She had absolute right to alienate the said properties. There is no pleading in the plaint that on which date, said Gouravva executed the said documents. The claim of the plaintiff is barred by law of limitation as mandated under Article 59 of the Indian Limitation Act, 1963. The valuation of the suit is not properly made by the plaintiff. He has not sought the relief of cancellation of mutation entries. -9-
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12. As per defence, deceased Gouravva executed a Gift deed and Will on 12.04.1965 bequeathing item Nos.1 to 5 of the suit schedule properties under the Will. The suit is filed after 48 years. Item Nos. 6 to 11 of 'A' schedule properties and 'B' schedule properties are the self acquisitions of defendant No.7. Item Nos.1 to 5 are the only ancestral properties of Gouravva. Right from the date of Gift deed and Will, he is in possession and enjoyment of the properties. Out of their own earnings they have purchased the properties. Even there was a partition of the properties amongst defendant Nos.4, 5, 7 and 10. For all these reasons, it is prayed by the defendants to dismiss the suit with compensatory cost.
13. Based on the rival pleadings of both the parties, learned Trial Court framed the following issues:
"ISSUES
1. Whether the plaintiff proves that correctness of the genealogy as is shown in the plaint?
2. Whether the plaintiff proves that the Gift deed and Will executed by Smt. Gouravva is not binding upon him?
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3. Whether the suit is properly valued and Court fee paid is sufficient?
4. Whether defendants prove that the suit is barred by time?
5. Whether the plaintiff is entitled to partition and separate possession of half share in the joint family ancestral properties?
6. What order or decree?"
14. To prove the case of the plaintiff, he himself entered the witness box as PW.1 and got marked Ex.P.1 to P.33, closed his evidence. Defendant No.7 entered the witness box to rebut the evidence of the plaintiff and also examined DW.2 by name Jevappa and got marked Ex.D.1 to D.62.
15. On hearing the arguments of both the sides and on perusal of the records, the learned Trial Court answered issue Nos.1 to 3 and 5 in the negative and issue No.4 in the affirmative and ultimately dismissed the suit of the plaintiff with cost.
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16. It is this judgment that has been assailed by the plaintiff by filing this appeal before this Court.
Arguments by both the sides:
17. The learned counsel for the appellant submits that plaintiff being the son of Chennavva succeeded to the property of Chennavva. The said so called Gift deed and Will alleged to have been executed by Gouravva in favour of Lokappa were behind his back. Taking undue advantage of the innocence of the plaintiff, defendants got entered their names in the revenue records. Though Chennavva died in the year 1944, in view of provisions of the Act, 1937, she has got coparcenery interest in the property.
18. In support of his submission he placed reliance upon the judgment of the Hon'ble Supreme Court in the case of Controller of Estate Duty, Madras Vs. Alladi Kuppuswamy1.
1 AIR 1977 SCC 2069
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19. It is his submission that in view of the observations made by the Hon'ble Apex Court in the said judgment at paragraph No.11, the plaintiff has to succeed in the suit. He prays to allow the appeal and set aside the impugned judgment.
20. As against this submission, the counsel for the respondent submits that as per the provisions of the Act, 1937, the daughter has no share in the property. When Chennavva died in the year 1944, she had no right at all to inherent the property from her mother Gouravva had limited share in the property acquired by her from her husband. So the strict provisions under the said act never provided any right to the daughter to claim share in the property. According to his submission as per the law existed at the relevant time, the property which was an agricultural land devolved upon the male side. The daughter should get only limited right till they were married. The widow would be entitled to the maintenance only. Therefore, according to his submission the plaintiff is
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NC: 2023:KHC-D:12441-DB RFA No. 100248 of 2015 not entitled for any share and accordingly the Trial Court has dismissed the suit of the plaintiff.
Finding of the Trial Court in brief
21. The learned Trial Court dismissed the suit of the plaintiff by giving a finding that the plaintiff has not proved the genealogy as described in the plaint. The so called Gift deed and Will were executed by Gauravva in 1965 and the suit filed in the year 2013 was barred by law of limitation. As the plaintiff has failed to prove the coparcenery status, it is held that the suit schedule properties are not the joint family properties of the family of the plaintiff and defendants.
22. In view of the rival submission of both the sides the following points arise for our consideration:
i) Whether, in view of the provisions of the Hindu Women's Rights to Property Act, 1937 and the Hindu Succession Act, 1956, the plaintiff can maintain his suit for declaration, partition and separate possession of the suit properties against defendants?
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RFA No. 100248 of 2015
ii) Whether the learned Trial Court has
committed factual or legal error in
dismissing the suit of the plaintiff?
23. So far as genealogy stated by the plaintiff is concerned, in paragraph No.12 of the written statement, defendants admit. On perusal of the judgment of the Trial Court, a finding is given that genealogy stated by the plaintiff is not proved. Even in the evidence, the genealogy stated by the plaintiff is disputed. The Court has framed an issue with regard to the proof of genealogy. When there is an admission about the genealogy stated by the plaintiff in paragraph No.12 of the written statement, the Trial Court ought not to have framed an issue to that effect. However, the issue was framed and it was answered against the plaintiff. The law is that admitted facts need not be proved. Therefore, finding of the Trial Court with regard to correctness of the genealogy is incorrect.
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24. As per the plaint allegations, the suit schedule properties at item Nos.1 to 5 are the ancestral properties of the plaintiff and defendant Nos.2 to 6, 8 to 10. It is stated that item Nos.6 and 7 of suit schedule 'A' properties were purchased out of the joint family income earned by the plaintiff and defendants. The father of defendant Nos.2 to 6 was an elderly person of the joint family. The said Lokappa purchased item Nos.6 and 7 in his name by paying a sale consideration of Rs.1,000/- under registered sale deed dated 13.11.1967. Likewise, item No.8 of suit schedule 'A' property was purchased on 03.07.1978 for Rs.1,000/- on behalf of the joint family. Lokappa and defendant Nos.2 to 6 purchased the said property. Item No.9 of the suit schedule 'A' property was purchased in the name of defendant No.7 for Rs.2,000/- on 23.01.1981 from one Durugappa S/o. Bharmappa Giddappalvar @ Masanad. Item No.10 of the suit schedule 'A' property was purchased on 23.07.1996 for Rs.23,500/- in the name of defendant No.8 from Manjunath, Gurushantayya and Mallikarjunayya sons of Veerayya Hiremath. Item No.11
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NC: 2023:KHC-D:12441-DB RFA No. 100248 of 2015 of suit schedule 'A' property was purchased in the name of defendant No.7 for Rs.46,000/- on 22.03.2001 from Virupaxayya S/o. Basavanayya Hiremath. Thus, it is alleged that the property stated supra are all the joint family properties in which the plaintiff and defendants have got their shares.
25. Now the question is, whether the plaintiff is right in claiming share in the suit schedule properties?
26. The Act, 1937 came into force on 14th April 1937 and has no retrospective operation. As the act was considered to be defective, it was amended by the Hindu Women's Right to Property (Amendment) Act XI, 1938 was declared to have retrospective effect, from the 14th April, 1937. Prior to enactment of the Act, 1937, succession was governed by survivorship. According to the rules of survivorship, on the death of a member of a joint and undivided family, his share in the joint family property would pass on the surviving copaceners which included
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NC: 2023:KHC-D:12441-DB RFA No. 100248 of 2015 only the male members of the family. There was no codified law prior to 1937.
27. The Act of 1937, enabled the widow to succeed along with the son and to take a share equal to that of a son. The widow was entitled only to a limited share in the property of the deceased with right to claim partition. A daughter had virtually no inheritance rights. With introduction of the Act, 1937, the widow of the deceased husband had a right in her husband's property after his death. Unlike previously, where the property was divided among the surviving copaceners by the doctrine of survivorship, it was the widow who had the sole right to such property. However, she only had limited rights (popularly called "limited estate") over such property, which remained with her till death. The rights and protection offered under the Act, 1937 were, not only the widow of the deceased but also included the widow of deceased son and also the widow of a predeceased son of a predeceased son (widow's grand daughter-in-law), but
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NC: 2023:KHC-D:12441-DB RFA No. 100248 of 2015 no other female, including a daughter, was included in the ambit of the said Act. The said law was made applicable to all schools of Hindu Law including Dayabhaga and Mitakshara. The said Act no way defines the word "property". A cursory reading of Section 3 of the Act, clearly shows that, the equal property as to the son, were given to a widow, predeceased son's widow and predeceased grand son's widow.
28. Thus, in view of the provisions of the Act, 1937, devolution of property as defined under Section 3 of the Act, would not help the case of the plaintiff to claim any share in the properties inherited by Gouravva from her husband which was her limited estate as per the provisions of the Act.
29. The only allegation of the plaintiff is that, behind his back and taking undue advantage of his innocence, the defendants created Gift deed and Will, to
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NC: 2023:KHC-D:12441-DB RFA No. 100248 of 2015 deprive his legitimate share in the suit schedule properties.
30. From the aforesaid discussion, it is very much clear that deceased Gouravva had limited right over the property and she had a 'limited estate' to enjoy the property till her death under the provisions of the Act, 1937.
31. When the Act, 1956 came into force, certain provisions are made with regard to the Hindu Women's Rights in the property. Section 14 of the Act, 1956 states that "any property possessed by female hindu, whether acquired before or after the commencement of Hindu Succession Act, 1956, shall be held by her as a full owner thereof and not as a limited owner."
32. In the explanation, it explicitly states about property i.e, "property includes both movable and immovable property acquired by a female hindu by inheritance or device, or at a partition, or in lieu of
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NC: 2023:KHC-D:12441-DB RFA No. 100248 of 2015 maintenance, or arrears of maintenance or by a Gift from any person, whether the relative or not, before, at or after her marriage, or by her skill or excretion, or by purchase or by prescription, or in any other manner whatsoever and also any such property held by her as stridhana immediately before the commencement of this act."
33. Thus, with introduction of the Act, 1956, a Hindu woman gets absolute ownership over any property that she possessed. Therefore, Gouravva having inherited the properties as a limited owner of the property and by virtue of Section 14 (1) of the Act, 1956, she became the absolute owner of the ancestral properties. The said Chennavva had no right at all to succeed to the properties of Gouravva as she was the only absolute owner of the said properties.
34. In the case of Tulasamma and others2 it is held as under:
2
AIR 1977 SCC (3) 99
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NC: 2023:KHC-D:12441-DB RFA No. 100248 of 2015 "the hindu female's right to maintenance is not an empty formality or an illusory claim being conceded as a matter of brace and generosity, but is a tangible right against property which flows from the spiritual relationship between the husband and the wife and is recognized and enjoyed by pure Shastric Hindu Law and has been strongly stressed even by the earlier Hindu Geos starting from Yagnavalkya to Manu. Such a right may not be a right to property but it is a right against property and the husband has a personal obligation to maintain his wife and if he or the family has the property, the female has the legal right to be maintained there from. If a charge is created for the maintenance of a female, the said right becomes a legally enforceable one. At any rate, even without a charge the claim for maintenance is doubtless a pre existing right so that any transfer declaring or recognizing such a right does not confer any new title but merely endorses are conforms the pre-existing rights.
Section 14(1) and the explanation thereto have been couched in the widest possible terms and must be liberally construed in favour of the females so as to advance the object of the 1956 act, and promote the socio economic ends sought to be achieved by this long- needed legislation.
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NC: 2023:KHC-D:12441-DB RFA No. 100248 of 2015 Sub Section 2 of Section 14 is in the nature of a proviso and has a field of its own without interfering with the operation of Section 14(1) materially. The proviso should not be construed in a manner so as to destroy the effect of the main provision or the protection granted by Section 14(1) or in a way so as to become totally inconsistence with a main provision."
35. By operation of Section 14(1) of the Act, 1956, Gouravva having a limited interest in the ancestral property as mentioned in the plaint became the absolute owner of the said properties. As Chennavva had no right in the said properties under the provisions of the Act, 1937, now the plaintiff cannot claim any share in the same. Further, Gouravva executed Gift deed in respect of item nos.1 to 4 of the suit schedule 'A' property and Will in respect of item no.5 of the suit schedule A' property, she executed the said documents as an absolute owner of the properties.
36. In the plaint, the plaintiff has not mentioned the date of execution of both the documents. The only
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NC: 2023:KHC-D:12441-DB RFA No. 100248 of 2015 allegations against defendants is that taking advantage of the innocence of the plaintiff and his illiteracy defendants have got created the said Gift deed and Will so as to deprive his ½ share in the suit schedule properties.
37. It is his pleading against the defendants that, he is in joint possession, enjoyment and in cultivation of the suit schedule properties. Evidentially, Gouravva died in the year 1975. If really the plaintiff was in joint cultivation of the suit schedule properties, he would have questioned the acts of defendants. He never pleaded any fraud, misrepresentation, cheating etc., against defendants. It has come in the evidence of the plaintiff that, he is residing in Shikaripur taluk. He also got the properties from his father and he is cultivating the same.
38. To prove the factum of execution of the Gift deed, the plaintiff has produced Ex.P.14 the certified copy of the Gift deed so also defendants have produced certified copy of the Gift deed, as well as the Will as per Ex.D.6 and D.7. It is pleaded by the plaintiff that out of the joint
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NC: 2023:KHC-D:12441-DB RFA No. 100248 of 2015 family funds, the properties were purchased in the name of Lokappa and Shivayogeppa. To show that the properties were purchased in the name of above said persons, various certified copies of sale deed are produced by defendants as per Ex.D.1 to D.4. Based upon the said documents certain mutation entries were certified by the revenue authorities marked at Ex.D.8 to D.15. Certified copy of the Will also is produced at Ex.D.19.
39. When the properties were held by the defendants by virtue of Gift deed and Will executed by Gouravva, the said properties become the exclusive properties of defendants. Defendants might have purchased other properties as per the sale deed standing in their names by using the income derived from properties acquired under the Gift deed and Will. There is no evidence placed on record by the plaintiff that, he too was cultivating these properties jointly along with defendants. Similarly pleading of joint cultivation of
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NC: 2023:KHC-D:12441-DB RFA No. 100248 of 2015 properties by the plaintiff along with the defendants is not sufficient to accept the arguments of the plaintiff.
40. There was no objection raised by the plaintiff while mutating the names of defendants in the revenue records. So, now the plaintiff cannot contend that the said Gift deed and Will are not binding on him to the extent of his ½ share.
41. In an unreported judgment of the Hon'ble Apex Court in Civil Appeal No.254/2010 in the case of M. Sivadasan (dead) through LRs. And others Vs. A Soudamini (dead) through LRs. And others, and another, it is held while explaining Section 14(1) of the Hindu Succession Act. It reads thus:
"In Rama Vishal (dead) by lrs. And Ors. V. Jagan Nath and Antoher, reported in (2004) 9 SCC 302 the position of the possession being a pre-requisite to sustain a claim under sub-section (1) of Section 14 of the 1956 Act was confirmed in Para 16 which is quoted below:
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NC: 2023:KHC-D:12441-DB RFA No. 100248 of 2015 In our view, the authority in Raghubar Singh case [(1998) 6 SCC 314] can be of no assistance to the respondent. As has been held by this Court, a pre-existing right is a sine qua non for conferment of a full ownership under Section 14 if the Hindu Succession Act. The Hindu female must not only be possessed of the property but she must have acquired the property. Such acquisition must be either by way of inheritance or devise, or at a maintenance or arrears of maintenance" or by gift or by her own skill or exertion, or by purchase or by prescription.... [Emphasis Supplied]
42. If the said principle is applied to the present facts of the case, during 1944 Chennavva was already married. She being the daughter of Gouravva had no right in any suit schedule properties by virtue of the Act, 1937. Gouravva was having a limited right in the properties in question. She had pre-existing right in the properties in question which is a sine-quo-non for conferment of full ownership under Section 14(1) of Hindu Succession Act. Gouravva being the Hindu female, was possessing the suit
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NC: 2023:KHC-D:12441-DB RFA No. 100248 of 2015 schedule properties and she acquired the properties from her husband by way of inheritance. Therefore, whatever the limited right Gouravva had, the said right of Gouravva have been blossomed into absolute right.
43. So far as limitation aspect is concerned, though the plaintiff asserts his right over the property and pleads that the cause of action to file a suit arose on 06.01.2013 and filed a suit basing the said cause of action. As rightly contended by the defendants as per Article 59 of the Indian Limitation Act, claim of the plaintiff and the relief so claimed is barred by Law of limitation as Gouravva died in the year 1975, suit was filed in the year 2013. The learned Trial Court considering all these aspects has rightly dismissed the suit.
44. We do not find any factual or legal error being committed by the Trial Court in dismissing the suit of the plaintiff. Therefore, appeal filed by the appellant fails and it is liable to be dismissed but without any costs.
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NC: 2023:KHC-D:12441-DB RFA No. 100248 of 2015 Accordingly, point Nos.1 and 2 are answered in the negative.
45. Resultantly, we pass the following:
ORDER
(i) Appeal filed by the appellant is dismissed without any cost.
(ii) Judgment and decree passed in O.S.No.4/2013 dated 25.07.2015 by the Senior Civil Judge and JMFC, Hirekerur, is confirmed.
(iii) Transmit the Trial Court records along with copy of the judgment forthwith.
Sd/-
JUDGE Sd/-
JUDGE SMM List No.: 1 Sl No.: 26