Karnataka High Court
Sri Vishwaraj vs B M Byrappa on 1 March, 2013
Author: Aravind Kumar
Bench: Aravind Kumar
1
R
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 1ST DAY OF MARCH, 2013
BEFORE
THE HON'BLE MR. JUSTICE ARAVIND KUMAR
R.F.A.NO. 611/2002 C/W R.F.A.NOs. 612/2002,
613/2002, 710/2002, 711/2002, 712/2002 & 504/2002
R.F.A.NO.611/2002
BETWEEN:
1. Sri. Vishwaraj
S/o P.R.T.Manickam
Residing No.38
Old Poor House Road
Shivajinagar
Bangalore-51.
2. Smt. Paripoorni
Major, W/o Rajappa
Residing at Kuppam
Chittoor District
Rep. by its P.A.Holder Rajappa. ..Appellants
(By Sri.V.B.Ravishankar, Advocate)
AND:
1. Sri.B.M.Byrappa
Aged about 76 years
S/o Pete Marappa
Vokkaliga, Hindu
2
Resident of No.1011
IV Block, Main Road
Rajajinagar, Bangalore-10
Since deceased by LR's
1 (a) Smt. Lakshmamma
W/o Late Sri. B.M.Byrappa
Aged about 70 years
Residing at no.1011
Dr. Rajkumar road
4th Block, Rajajinagar
Bangalore-560 010
1 (b) Smt.Lalitha Maroor Hanumanthappa
W/I Sri.Hanumanthappa Maroor
D/o Late Sri.B.M.Byrappa
Aged about 66 years
Residing at No.2291
Swartz Creek Flient
Michigan 48473, USA
1 (c) Sri.B. Venugopal
S/o Late Sri. B.M.Byrappa
Aged about 61 years
Residing at No.1011
Dr. Rajkumar road
4th Block, Rajajinagar
Bangalore-560 010
1 (d) Sri.Swamy
S/o Sri.Venkatappa
Aged about 70 years
1 (e) Sri.M.N.Hemanth
S/o Sri.Swamy
Aged about 46 years
1 (f) Sri.M.N.Sumanth
S/o Sri. Swamy
Aged about 44 years
3
1 (d) to 1 (f) are residing at
No.5, Post Office Road
Industrial Suburb 2nd Stage
Mysore-8
1 (g) Sri.B.Ramakrishna
S/o Late Sri.B.M.Byrappa
Aged about 51 years
1 (h) Sri.B.Ramesha
S/o Late Sri.B.M.Byrappa
Aged about 48 years
1 (g) and 1 (h) are residing at
No.1011, Dr. Rajkumar Road
4th Block, Rajajinagar
Bangalore-560 010
1(j) Smt. Sumithra
W/o Sri. Ranganath
D/o Late Sri.B.M.Byrappa
Aged about 40 years
Residing at No.13
Venkataswamappa Lane
Lalbagh Upparhalli
Bangalore-560 004
2. Shri. K.J.Muralidhar
S/o Late K.J. Ramappa Naidu
Hindu, Resident of
Kuppam Palace,
Kuppam, Chittor District
Andra Pradesh-517 001
3. Nagabhushanam Naidu
Hindu, Major
S/o Late K.J. Subbarayalu Naidu
Resident of Palace in Kuppam
Chittor Dist,
4
Andra Pradesh.
4. Smt. N. Rukmini Devi
Major, Hindu
W/o N.V. S. Prakash Rao
Battavarapalli
Vijilapuram Post
Kuppam Taluk, Chittor District
Andra Pradesh.
5. Smt. Shakuntala Devi
Major, Hindu
W/o M.B.N. Rao Naidu
Odder Madi, Shivaampuram Post
Via Rallabudugur
Kuppam taluk
Chittor District
Andra Pradesh
6. Smt. K.J. Jayalakshmi
Hindu, Major
D/o Raja K.J. Venkatapathi Naidu
Residing at Kenagundi
House No.54, Benson Town
Benson Cross
Bangalore-06
Since deceased by LR's
6 (a) Sri. V.Keshavamurthy
Aged about 54 years
6 (b) Sri.V. Manohar
Aged about 48 years
6 (c) Sri.V. Venkatachalapathi
Aged about 35 years
6 (d) Smt. V.Rukmini
Aged about 50 years
5
6 (e) Smt.V.Shakuntala
Aged about 46 years
6 (f) Smt.V.Parimala
Aged about 46 years
6 (g) Smt.V. Sulochana
Aged about 40 years
All are residing at No. 54,
Benson Cross, Benson Town
Bangalore-560 046
7. B.C. Hanumanthappa
Hindu, Major
S/o Channappa
Residing at No. 1011
4th Block, Main Road
Rajajinagar, Bangalore-10
Since deceased by LR's
7 (a) Smt. Gangamma
W/o late Sri.B.C.Hanumanthappa
Aged about 73 years
7 (b) Sri.B.H. Mahesh
S/o late Sri. B.C. Hanumanthappa
Aged about 46 years
7 (c) Smt. Saraswathi
W/o Late Sri. Venkatesh
Aged about 45 years
7 (d) Smt. Chandrika
D/o late Sri. B.C.Hanumanthappa
Aged about 40 years
7 (e) Sri. Ravindra
S/o late Sri. Venkatesh
Aged about 19 years
6
All are residing at No.21, 3rd Cross
9th Main, RMV Ist Stage, Sadashivanagar
Bangalore-560 080.
8. Sri.B.C.Ganganna
The brother of 7th Respondent
Since deceased by LR's
8 (a) Smt. Lakmamma
Aged: Major
W/o Late B.C. Ganganna
8 (b) B.G. Somashekhara
Age: Major
S/o Late B.C. Ganganna
8 (c) B.G. Keshava
Age: Major
S/o B.C. Ganganna
All are residing at
No. 565, 19th Cross
Sadashivanagar
Bangalore
9. B.M. Maranna
S/o Late Pete Mayanna
Age: Major
R/at No. 1011, 4th Block
Main Road, Rajajinagar
Bangalore
10. B.V. Nagaraj
Age: Major
S/o B.M.V. Mayanna
R/at No. 1011, 4th Block
Main Road, Rajajinagar
Bangalore.
7
11. B.C. Narayana
Since deceased by LR's
11 (a) Smt. Channamma
W/o B.C.Narayana
Age: Major
11 (b) B.N.Vasudeva
S/o B.C.Narayana
Age: Major
Respondent No.10 & 11
Are residing at in the
Portions of Kangudi Houses
No.54, Benson Cross
Benson Town
Corporation Division-46
Bangalore-560 006
12. Abdul Rahim Khan
Age: Major, Advocate
13. Jayadev
Major
Father's name not known to the appellant
Residing in a portion of the property
Bearing No.54, Benson Town
Bangalore-560 006
14. Smt.Haseena Begum
Age: Major
W/o Amirijan
R/at 16th Cross, Bilal Nagar
Bangalore-560 045
15. Nawabjan
Age: Major
S/o Kamar Khasmi
R/at 6th Cross, Bilal Nagar
Bangalore-45
8
16. S. Tajunnissa
Age: Major
W/o S. Jamil Basha
R/at No. 10, M-2 Street
Broadway Road Cross
Bangalore-51
17. John Moses @ Madan Kumar
S/o P.D. Mani,
Aged about 36 years
R/at No.79, 3rd Cross
Hutchins Road Cox Town
Bangalore-560 084 ...Respondents
(By Sri.A.Vijaya Kumar Bhat, advocate for impleading
Respondent;
Sri.Shanmukappa, advocate for R-9 for Kesvy & Co.,
Associates;
Sri.Rehamathulla Shariff, advocate for R-5 (b);
R-2, R-3, R-4, R-5, R-11a, R-14, R-15 are served;
R-8 (a-c), R-10, R-11(b), R-12, R-13 & R-16 notice
dispensed with v/o dated 10.3.2004;
Sri.S.K.V.Chalapathy, Advocate and Sri.Srinivas,
Advocate for R-6 (a & c-g);
R-7 (a-e) notice served;
This RFA is filed under Section 96 of CPC against the
judgment and decree dated 29.1.2002 passed in
O.S.No.1949/80 on the file of the XXVIII ADDL. CITY &
Sessions Judge, Mayo Hall, Bangalore, Dismissing the suit
for partition & separate possession.
9
R.F.A.No. 612/2002
BETWEEN:
1. Sri.B.M. Maranna,
S/o Late Pete Mayanna,
Hindu,
R/at No. 1011, 4th Block,
Main Road, Rajajinagar,
Bangalore-560 010.
2. Sri.B.C.Narayana
Since deceased by LR's
2 (a) Smt. Channamma
W/o B.C.Narayana
Age: Major
2 (b) B.N. Vasudeva
S/o B.C.Narayana
Age: Major
Appellant No.2 (a) & (b)
Are residing at in the
Portions of Kangudi Houses
No 54, Benson Cross
Benson Town
Corporation Division-46
Bangalore-560 006 ..Appellants
(By Sri.Shanmukappa, Advocate for
M/s Kesvy & co., Associates)
AND:
1. Sri.B.M.Byrappa
Since deceased by LR's
1 (a) Smt. Lakshmamma
10
W/o Late Sri.B.M.Byrappa
Aged about 70 years
Residing at no.1011
Dr. Rajkumar road
4th Block, Rajajinagar
Bangalore -560 010.
1 (b) Sri.B. Venugopal
S/o Late Sri. B.M.Byrappa
Aged about 61 years
Residing at No.1011
Dr. Rajkumar road
4th Block, Rajajinagar
Bangalore-560 010
1 (c) Sri.Swamy
S/o Sri.Venkatappa
Aged about 70 years
1 (d) Sri.M.N.Hemanth
S/o Sri.Swamy
Aged about 46 years
1 (e) Sri.M.N.Sumanth
S/o Sri. Swamy
Aged about 44 years
1 (d) to 1 (f) are residing at
No.5, Post Office Road
Industrial Suburb 2nd Stage
Mysore-8
1 (f) Sri.B.Ramakrishna
S/o Late Sri.B.M.Byrappa
Aged about 51 years
1 (g) Sri.B.Ramesha
S/o Late Sri.B.M.Byrappa
Aged about 48 years
11
1 (f) and 1 (g) are residing at
No.1011, Dr. Rajkumar Road
4th Block, Rajajinagar
Bangalore - 560 010.
1 (h) Smt. Sumithra
W/o Sri. Ranganath
D/o Late Sri.B.M.Byrappa
Aged about 40 years
Residing at No.13
Venkataswamappa Lane
Lalbagh Upparhalli
Bangalore-560 004.
2. Shri. K.J.Muralidhar
S/o Late K.J. Ramappa Naidu
Hindu, Resident of
Kuppam Palace,
Kuppam, Chittor District
Andra Pradesh-517 001
3. K.J. Nagabhushanam Naidu
Hindu, Major
S/o Late K.J. Subbarayalu Naidu
Resident of Palace in Kuppam
Chittor Dist,
Andra Pradesh.
4. Smt. N. Rukmini Devi
Major, Hindu
W/o N.V. S. Prakash Rao
Battavarapalli
Vijilapuram Post
Kuppam Taluk, Chittor District
Andra Pradesh.
5. Smt. M.Shakuntala Devi
Major, Hindu
W/o M.B.N. Rao Naidu
Odder Madi, Shivaampuram Post
12
Via Rallabudugur
Kuppam taluk
Chittor District
Andra Pradesh.
6. Smt. K.J. Jayalakshmi
Hindu, Major
D/o Raja K.J. Venkatapathi Naidu
Residing at Kenagundi
House No.54, Benson Town
Benson Cross
Bangalore-06
Since deceased by LR's
6 (a) Sri. V.Keshavamurthy
Aged about 54 years
6 (b) Sri.V. Manohar
Aged about 48 years
6 (c) Sri.V. Venkatachalapathi
Aged about 35 years
6 (d) Smt. V.Rukmini
Aged about 50 years
6 (e) Smt.V.Shakuntala
Aged about 46 years
6 (f) Smt.V.Parimala
Aged about 46 years
6 (g) Smt.V. Sulochana
Aged about 40 years
All are residing at No. 54,
Benson Cross, Benson Town
Bangalore-560 046
13
7. B.C. Hanumanthappa,
Hindu, Major,
S/o Channappa
Residing at No. 1011,
4th Block, Main Road,
Rajajinagar,
Bangalore-10.
8. Sri.B.C.Ganganna
The brother of 7th Respondent
Since deceased by LR's
8 (a) Smt. Lakmamma
Aged: Major
W/o Late B.C. Ganganna
8 (b) B.G. Somashekhara
Age: Major
S/o Late B.C. Ganganna
8 (c) B.G. Keshava
Age: Major
S/o B.C. Ganganna
All are residing at
No. 565, 19th Cross
Sadashivanagar
Bangalore.
9. B.V.Nagaraj
Age: Major
S/o B.M.V. Mayanna
R/at No. 1011, 4th Block
Main Road, Rajajinagar
Bangalore.
10. Abdul Rahim Khan
Age: Major, Advocate
14
11. The Managing Partner of
Star Oil Corporation
Respondents No.10 and 11 are
Reside in a portion of the property
Bearing No. 54, Benson Town
Bangalore-560 006.
12. Sri.M. Vishwaraj
Major
S/o P.R.T. Manickam
R/at No. 38, Old Poor House Road
Shivaji Nagar
Bangalore-51.
13. Paripoorni
Age: Major
W/o Rajappa
R/at Kuppam
Chittur District
Rep by its P.A. Holder
Rajappa.
14. Haseena Begum
Age: Major
W/o Amirijan
R/at 6th Cross, Bilal Nagar
Bangalore-560 045.
15. Nawab Jan
Age: Major
S/o Kamar Khasmi
R/at 6th Cross, Bilal Nagar
Bangalore-45.
16. S. Tajunnissa
Age: Major
W/o S. Jamil Basha
R/at No. 10, M-2 Street
Broadway Road Cross
15
Bangalore-51.
17. John Moses @ Madan Kumar
S/o P.D. Mani,
Aged about 36 years
R/at No.79, 3rd Cross
Hutchins Road Cox Town
Bangalore-560 084 ..Respondents
(By Sri.Jagadeesh Goud Patil, Advocate for R-14 & R-15;
Sri.Rahamathulla Shariff, Advovate for R 6(b);
R-2, R-3, R-4, R-5, R-9 & R-13 notice served;
R-7, R8 (a-c), R-10 & R-12 & R-16 notice dispensed;
M/s Ramesh Rao & Associates for R-11;
Sri.S.K.V.Chalapathy, Advocate for R6 (a) (c-g);
R1 (a-h) are served;
Sri.Vijaykumar Bhat, Advocate for impleading party;
Sri. Ramesh Rao & Associates for R-2)
This RFA is filed under Section 96 R/W/O 41 R 5 of
CPC against the judgment and decree dated 29.1.2002
passed in O.S.No.1949/80 on the file of the XXVIII ADDL.
CITY & Sessions Judge, Mayo Hall, Bangalore, Dismissing
the suit for partition & separate possession.
RFA No.613/2002
BETWEEN:
Sri.B.M. Byrappa
S/o Pete Marappa
Major, R/o No.1011
IV Block, Main Road
Rajajinagar
Bangalore-560 010
Since deceased by LR's
16
1 (a) Smt. Lakshmamamma
W/o Late Sri.B.M.Byrappa
Aged about 70 years
Residing at No.1011
Dr. Rajkumar Road
4th Block, Rajajinagar
Bangalore-560 010
1 (b) Sri.B. Venugopal
S/o Late Sri. B.M.Byrappa
Aged about 61 years
Residing at No.1011
Dr. Rajkumar road
4th Block, Rajajinagar
Bangalore-560 010
1 (c) Sri.Swamy
S/o Sri.Venkatappa
Aged about 70 years
1 (d) Sri.M.N.Hemanth
S/o Sri.Swamy
Aged about 46 years
1 (f) Sri.M.N.Sumanth
S/o Sri. Swamy
Aged about 44 years
1 (d) to 1 (f) are residing at
No.5, Post Office Road
Industrial Suburb 2nd Stage
Mysore-8
1 (g) Sri.B.Ramakrishna
S/o Late Sri.B.M.Byrappa
Aged about 51 years
1 (h) Sri.B.Ramesha
S/o Late Sri.B.M.Byrappa
17
Aged about 48 years
1 (g) and 1 (h) are residing at
No.1011, Dr. Rajkumar Road
4th Block, Rajajinagar
Bangalore-560 010
1(i) Smt. Sumithra
W/o Sri. Ranganath
D/o Late Sri.B.M.Byrappa
Aged about 40 years
Residing at No.13
Venkataswamappa Lane
Bangalore-560 004 ..Appellants
(By Sri.Shanmukappa, Advocate for M/s Kesvy Co.,
Advocates for AI (A-H))
AND:
1. K.J.Muralidhar
Aged about 30 years
S/o Late K.J. Ramappa Naidu
Resident of Kuppam Palace,
Kuppam, Chittor District
Andra Pradesh.
2. K.J.Nagabhushanam Naidu
Hindu, Major
S/o Late K.J. Subbarayalu Naidu
Resident of Palace in Kuppam
Chittor Dist,
Andra Pradesh.
3. N. Rukmini Devi
Major, Hindu
W/o N.V. S. Prakash Rao
Battavarapalli
Vijilapuram Post
Kuppam Taluk, Chittor District
18
Andra Pradesh.
4. M.Shakuntala Devi
Major, Hindu
W/o M.B.N. Rao Naidu
Odder Madi, Shivapuram Post
Via Rallabudugur
Kuppam taluk
Chittor District
Andra Pradesh
5. K.J. Jayalakshmi
Hindu, Major
D/o Raja K.J. Venkatapathi Naidu
Residing at Kenagundi
House No.54, Benson Town
Benson Cross
Bangalore-06
Since deceased by LR's
5 (a) Sri. V.Keshavamurthy
Aged about 54 years
5 (b) Sri.V. Manohar
Aged about 48 years
5 (c) Sri.V. Venkatachalapathi
Aged about 35 years
5 (d) Smt. V.Rukmini
Aged about 50 years
5 (e) Smt.V.Shakuntala
Aged about 46 years
5 (f) Smt.V.Parimala
Aged about 44 years
5 (g) Smt.V. Sulochana
Aged about 40 years
19
All are residing at No. 54,
Benson Cross, Benson Town
Bangalore-560 046
6. B.C. Hanumanthappa
Hindu, Major
S/o Channappa
Residing at No. 1011
4th Block, Main Road
Rajajinagar, Bangalore-10
7. Sri.B.C.Ganganna
Since deceased by LR's
(1) Smt. Lakshmamma
Aged about 45 years
W/o Late B.C. Ganganna
(2) B.G. Somashekhara
Aged about 29 years
S/o Late B.C. Ganganna
(3) B.G. Keshava
Aged about 19 years
S/o B.C. Ganganna
All are residing at
No. 565, 19th Cross
Sadashivanagar
Bangalore.
8. B.M. Maranna
S/o Late Pete Mayanna
Hindu,
R/at No. 1011, 4th Block
Main Road, Rajajinagar
Bangalore.
20
9. B.V. Nagaraj
Major
S/o B.M.V. Mayanna
R/at No. 1011, 4th Block
Main Road, Rajajinagar
Bangalore-10.
10. B.C. Narayana
Since deceased by LR's
10 (a) Smt. Channamma
W/o B.C.Narayana
Aged about 35 years
10 (b) B.N.Vasudeva
S/o B.C.Narayana
Aged about 14 years
Respondent No.10 & 11
Are residing at in the
Portions of Kangudi Houses
No.54, Benson Cross
Benson Town
Corporation Division-46
Bangalore-560 006
11. Abdul Rahim Khan
Age: Major, Advocate
12. Managing Partner of Star Oil Corporation
Respondents 11 and 12 reside
In portions of Kanagundi House,
54, Benson, Cross,
Benson Town,
Corporation Division -46
Bangalore - 6
13. Vishwaraj
Major, S/o R.P.T. Manickam,
21
R/at No. 38, Old Poor House Road,
Shivajinagar,
Bangalore-560 051.
14. Paripoorni,
Major, W/o Rajappa,
R/at Kuppam,
Chittoor District.
15. Haseena Begum,
Age: Major
W/o Amirijan
R/at 16th Cross, Bilal Nagar
Bangalore-560 045
16. Navabjan
Age: Major
S/o Kamar Khasmi
R/at 6th Cross, Bilal Nagar
Bangalore-45
17. S. Tajunnissa
Age: Major
W/o S. Jamil Basha
R/at No. 10, M-2 Street
Broadway Road Cross
Bangalore-51 ...Respondents
(By Sri.Jagadeesh Goud Patil, Advocate for R-15 & R-16;
R-1-4, 8, 9 & 14 are served;
R-6, 7(1-3), R-10A &B, 11, 13, 17 notice dispensed with;
Sri.S.K.V.Chalapathy, Advocate;
Sri.Srinivas, Advocate for R-5 (A-B);
Sri. Rehamathulla Shariff, Advocate for R-5(B1);
This Regular First Appeal is filed under Section 96
R/W/O 41 R 5 of CPC against the judgment and decree
dated 29.1.2002 passed in O.S.No.1949/80 on the file of the
XXVIII Addl. City Civil & Sessions, Judge, Mayo Hall,
22
Bangalore, dismissing the suit for partition & separate
possession.
RFA No.710/2002
BETWEEN:
Smt. Haseena Begum
W/o Amirijan, Major
R/at 6th Cross, Bilal Nagar
Bangalore-560 005
Represented by her power of attorney holder
Ayub Khan
Aged about 31 years .....Appellant
(By Sri.Shahmukappa, Advocate for
M/s Kesvy & Co., Associates)
AND:
1. Sri.B.M.Byrappa
Since deceased by LR's
1 (a) Smt. Lakshmamma
W/o Late Sri. B.M.Byrappa
Aged about 70 years
Residing at no.1011
Dr. Rajkumar road
4th Block, Rajajinagar
Bangalore-560 010
1 (b) Sri.B. Venugopal
S/o Late Sri. B.M.Byrappa
Aged about 61 years
Residing at No.1011
Dr. Rajkumar road
4th Block, Rajajinagar
Bangalore-560 010
1 (c) Sri.Swamy
S/o Sri.Venkatappa
23
Aged about 70 years
1 (d) Sri.M.N.Hemanth
S/o Sri.Swamy
Aged about 46 years
1 (e) Sri.M.N.Sumanth
S/o Sri. Swamy
Aged about 44 years
1 (d) to 1 (f) are residing at
No.5, Post Office Road
Industrial Suburb 2nd Stage
Mysore-8
1 (f) Sri.B.Ramakrishna
S/o Late Sri.B.M.Byrappa
Aged about 51 years
1 (g) Sri.B.Ramesha
S/o Late Sri.B.M.Byrappa
Aged about 48 years
1 (f) and 1 (g) are residing at
No.1011, Dr. Rajkumar Road
4th Block, Rajajinagar
Bangalore-560 010
1 (h) Smt. Sumithra
W/o Sri. Ranganath
D/o Late Sri.B.M.Byrappa
Aged about 40 years
Residing at No.13
Venkataswamappa Lane
Lalbagh Upparhalli
Bangalore-560 004
2. Shri. K.J.Muralidhar
S/o Late K.J. Ramappa Naidu
Hindu, Resident of
24
Kuppam Palace,
Kuppam, Chittor District
Andra Pradesh-517 001
3. Nagabhushanam Naidu
Hindu, Major
S/o Late K.J. Subbarayalu Naidu
Resident of Palace in Kuppam
Chittor Dist,
Andra Pradesh.
4. N. Rukmini Devi
Major, Hindu
W/o N.V. S. Prakash Rao
Battavaranapalli
Vijilapuram Post
Kuppam Taluk, Chittor District
Andra Pradesh.
5. M.Shakuntala Devi
Major, Hindu
W/o M.B.N. Rao Naidu
Odder Madi, Shivaampuram Post
Via Rallabudugur
Kuppam taluk
Chittor District
Andra Pradesh
6. K.J. Jayalakshmi
Hindu, Major
D/o Raja K.J. Venkatapathi Naidu
Residing at Kenagundi
House No.54, Benson Town
Benson Cross
Bangalore-06
Since deceased by LR's
6 (a) Sri. V.Keshavamurthy
Aged about 54 years
25
6 (b) Sri.V. Manohar
Aged about 48 years
6 (c) Sri.V. Venkatachalapathi
Aged about 35 years
6 (d) Smt. V.Rukmini
Aged about 50 years
6 (e) Smt.V.Shakuntala
Aged about 46 years
6 (f) Smt.V.Parimala
Aged about 46 years
6 (g) Smt.V. Sulochana
Aged about 40 years
All are residing at No. 54,
Benson Cross, Benson Town
Bangalore-560 046
7. B.C. Hanumanthappa
Hindu, Major
S/o Channappa
Residing at No. 1011
4th Block, Main Road
Rajajinagar, Bangalore-10
Since deceased by LR's
8. Sri.B.C.Ganganna
Since deceased by LR's
8 (a) Smt. Lakmamma
Aged: Major
W/o Late B.C. Ganganna
8 (b) B.G. Somashekhara
Age: Major
S/o Late B.C. Ganganna
26
8 (c) B.G. Keshava
Age: Major
S/o B.C. Ganganna
All are residing at
No. 565, 19th Cross
Sadashivanagar
Bangalore.
9. B.M. Maranna
S/o Late Pete Mayanna
Hindu,
R/at No. 1011, 4th Block
Main Road, Rajajinagar
Bangalore.
10. B.V.Nagaraj
Age: Major
S/o B.M.V. Mayanna
R/at No. 1011, 4th Block
Main Road, Rajajinagar
Bangalore-560 010.
11. B.C.Narayana
Since deceased by LR's
11 a). Chennamma
W/o Narayana, Major
11 b). B.N.Vasudev
S/o B.C.Narayana
Aged about 14 years
Minor represented
By next friend
Mother Chennamma
12. Abdul Rahim Khan
27
Age: Major, Advocate
13. The Managing Partner of
Star Oil Corporation
Respondents No.12 and 13 are
Reside in a portion of
Kungunnadi House. 54
Benson Cross
Benson Town
Bangalore-560 006.
14. M. Vishwaraj
Age: Major
S/o P.R.T. Manickam
R/at No. 38, Old Poor House Road
Shivaji Nagar
Bangalore-51.
15. Paripoorni
Age: Major
W/o Rajappa
R/at Kuppam
Chittur District
Rep by its P.A. Holder
Rajappa.
16. Nawab Jan
Age: Major
S/o Kamar Khasimi
R/at 6th Cross, Bilal Nagar
Bangalore-45.
17. S. Tajunnissa
Age: Major
W/o S. Jamil Basha
R/at No. 10, M-2 Street
Broadway Road Cross
Bangalore- 51.
28
18. John Moses @ Madan Kumar
S/O P.D. Mani
Aged about 36 years
R/at No. 79, 3rd Cross
Hutchins Road Cox Town
Bangalore-560 084. ..Respondents
(By Sri.S.K.V. Chalapathy, Advocate R-6 (a) (c-g);
Sri. Ramesh Rao & Associates, Advocate for R13;
R-1(a) to R-1(h), R-2 to R-5, 9, 10 & 15 notice served;
R-7, 8 (a)-(c), 11(a), 12, 14 & 17 notice dispensed;
Sri. Jagadeesh Goud Patil, Advocate for R16;
Sri.Rehamathulla Shariff, Advocate for R-6(b)
Sri.A.Vijaykumar Bhat, Advocate for impleading party)
This Regular First Appeal is filed under Section 96
R/w O 41 R 5 CPC against the judgment and decree dated
29.1.2002 passed in O.S.No.1949/80 on the file of the
XXVIII Addl. City Civil & Sessions Judge, Mayo Hall,
Bangalore dismissing the suit for partition and separate
possession.
RFA No.711/2002
BETWEEN:
Nawab Jan
Aged about 48 years
S/o Kamar Khasimi
R/at 6th Cross, Bilal Nagar
Bangalore-45. ....Appellant
(By Sri.Shanmukappa, Advocate for
M/s Kesvy & Co., Associates)
AND:
1. Sri.B.M.Byrappa
Since deceased by LR's
29
1 (a) Smt. Lakshmamma
W/o Late Sri. B.M.Byrappa
Aged about 70 years
Residing at no.1011
Dr. Rajkumar road
4th Block, Rajajinagar
Bangalore-560 010
1 (b) Sri.B. Venugopal
S/o Late Sri. B.M.Byrappa
Aged about 61 years
Residing at No.1011
Dr. Rajkumar road
4th Block, Rajajinagar
Bangalore-560 010
1 (c) Sri.Swamy
S/o Sri.Venkatappa
Aged about 70 years
1 (d) Sri.M.N.Hemanth
S/o Sri.Swamy
Aged about 46 years
1 (e) Sri.M.N.Sumanth
S/o Sri. Swamy
Aged about 44 years
1 (d) to 1 (f) are residing at
No.5, Post Office Road
Industrial Suburb 2nd Stage
Mysore-8
1 (f) Sri.B.Ramakrishna
S/o Late Sri.B.M.Byrappa
Aged about 51 years
1 (g) Sri.B.Ramesha
S/o Late Sri.B.M.Byrappa
30
Aged about 48 years
1 (f) and 1 (g) are residing at
No.1011, Dr. Rajkumar Road
4th Block, Rajajinagar
Bangalore-560 010
1 (h) Smt. Sumithra
W/o Sri. Ranganath
D/o Late Sri.B.M.Byrappa
Aged about 40 years
Residing at No.13
Venkataswamappa Lane
Lalbagh Upparhalli
Bangalore-560 004
2. Shri. K.J.Muralidhar
S/o Late K.J. Ramappa Naidu
Hindu, Resident of
Kuppam Palace,
Kuppam, Chittor District
Andra Pradesh-517 001
3. K.J.Nagabhushanam Naidu
Hindu, Major
S/o Late K.J. Subbarayalu Naidu
Resident of Palace in Kuppam
Chittor Dist,
Andra Pradesh.
4. N. Rukmini Devi
Major, Hindu
W/o N.V. S. Prakash Rao
Battavaranapalli
Vijilapuram Post
Kuppam Taluk, Chittor District
Andra Pradesh.
5. M.Shakuntala Devi
Major, Hindu
31
W/o M.B.N. Rao Naidu
Odder Madi, Shivaampuram Post
Via Rallabudugur
Kuppam taluk
Chittor District
Andra Pradesh
6. K.J. Jayalakshmi
Hindu, Major
D/o Raja K.J. Venkatapathi Naidu
Residing at Kenagundi
House No.54, Benson Town
Benson Cross
Bangalore-06
Since deceased by LR's
6 (a) Sri. V.Keshavamurthy
Aged about 54 years
6 (b) Sri.V. Manohar
Aged about 48 years
6 (c) Sri.V. Venkatachalapathi
Aged about 35 years
6 (d) Smt. V.Rukmini
Aged about 50 years
6 (e) Smt.V.Shakuntala
Aged about 46 years
6 (f) Smt.V.Parimala
Aged about 46 years
6 (g) Smt.V. Sulochana
Aged about 40 years
All are residing at No. 54,
Benson Cross, Benson Town
Bangalore-560 046
32
7. B.C. Hanumanthappa
Hindu, Major
S/o Channappa
Residing at No. 1011
4th Block, Main Road
Rajajinagar, Bangalore-10
Since deceased by LR's
8. Sri.B.C.Ganganna
Since deceased by LR's
8 (a) Smt. Lakmamma
Aged: Major
W/o Late B.C. Ganganna
8 (b) B.G. Somashekhara
Age: Major
S/o Late B.C. Ganganna
8 (c) B.G. Keshava
Age: Major
S/o B.C. Ganganna
All are residing at
No. 565, 19th Cross
Sadashivanagar
Bangalore.
9. B.M. Maranna
S/o Late Pete Mayanna
Hindu,
R/at No. 1011, 4th Block
Main Road, Rajajinagar
Bangalore.
10. B.V.Nagaraj
Age: Major
S/o B.M.V. Mayanna
R/at No. 1011, 4th Block
33
Main Road, Rajajinagar
Bangalore- 560 010.
11. B.C.Narayana
Since deceased by LR's
11 a). Chennamma
W/o Narayana, Major
11 b). B.N.Vasudev
S/o B.C.Narayana
Aged about 14 years
Minor represented
By next friend
Mother Chennamma
12. Abdul Rahim Khan
Age: Major, Advocate
13. The Managing Partner of
Star Oil Corporation
Respondents No.12 and 13 are
Reside in a portion of
Kungunnadi House. 54
Benson Cross
Benson Town
Bangalore- 560 006.
14. M. Vishwaraj
Age: Major
S/o P.R.T. Manickam
R/at No. 38, Old Poor House Road
Shivaji Nagar
Bangalore-51.
15. Paripoorni
Age: Major
W/o Rajappa
34
R/at Kuppam
Chittur District
Rep by its P.A. Holder
Rajappa.
16. Smt. Haseena Begum
W/o Amirijan, Major
R/at 6th Cross, Bilal Nagar
Bangalore-560 005
Represented by her power of attorney holder
Ayub Khan.
17. S. Tajunnissa
Age: Major
W/o S. Jameel Basha
R/at No. 10, M-2 Street
Broadway Road Cross
Bangalore-51.
18. John Moses @ Madan Kumar
S/O P.D. Mani
Aged about 36 years
R/at No. 79, 3rd Cross
Hutchins Road Cox Town
Bangalore- 560 084. ...Respondents
(By Sri.S.K.V. Chalapathy, Advocate R-6 (a) (c-g);
Sri. Ramesh Rao, Advocate for R13;
R 1(a) to (h), R-2, R-5, 9, 10 & 15 notice served;
R-7, 8(a), 11(a), 12 & 14 notice dispensed;
Sri. Jagadeesh Goud Patil, Advocate for R16& R13;
Sri.Rehamathulla Shariff, Advocate for R-6 (b)
Sri.A.Vijaykumar Bhat, Advocate for impleading party)
This Regular First Appeal is filed under Section 96
R/w O 41 R 5 CPC against the judgment and decree dated
29.1.2002 passed in O.S.No.1949/80 on the file of the
XXVIII Addl. City Civil & Sessions Judge, Mayo Hall,
Bangalore dismissing the suit for partition and separate
possession.
35
RFA No.712/2002
BETWEEN:
S. Tajunnissa
Age: Major
W/o S. Jameel Basha
R/at No. 10, M-2 Street
Broadway Road Cross
Bangalore- 51. ....Appellant
(By Sri.Shanmukappa, Advocate for
M/s Kesvy & Co., Associates)
AND:
1. Sri.B.M.Byrappa
Since deceased by LR's
1 (a) Smt. Lakshmamma
W/o Late Sri. B.M.Byrappa
Aged about 70 years
Residing at no.1011
Dr. Rajkumar road
4th Block, Rajajinagar
Bangalore-560 010
1 (b) Sri.B. Venugopal
S/o Late Sri. B.M.Byrappa
Aged about 61 years
Residing at No.1011
Dr. Rajkumar road
4th Block, Rajajinagar
Bangalore-560 010
1 (c) Sri.Swamy
S/o Sri.Venkatappa
Aged about 70 years
36
1 (d) Sri.M.N.Hemanth
S/o Sri.Swamy
Aged about 46 years
1 (e) Sri.M.N.Sumanth
S/o Sri. Swamy
Aged about 44 years
1 (d) to 1 (f) are residing at
No.5, Post Office Road
Industrial Suburb 2nd Stage
Mysore-8
1 (f) Sri.B.Ramakrishna
S/o Late Sri.B.M.Byrappa
Aged about 51 years
1 (g) Sri.B.Ramesha
S/o Late Sri.B.M.Byrappa
Aged about 48 years
1 (f) and 1 (g) are residing at
No.1011, Dr. Rajkumar Road
4th Block, Rajajinagar
Bangalore-560 010
1 (h) Smt. Sumithra
W/o Sri. Ranganath
D/o Late Sri.B.M.Byrappa
Aged about 40 years
Residing at No.13
Venkataswamappa Lane
Lalbagh Upparhalli
Bangalore-560 004
2. Shri. K.J.Muralidhar
S/o Late K.J. Ramappa Naidu
Hindu, Resident of
Kuppam Palace,
Kuppam, Chittor District
37
Andra Pradesh-517 001
3. Nagabhushanam Naidu
Hindu, Major
S/o Late K.J. Subbarayalu Naidu
Resident of Palace in Kuppam
Chittor Dist,
Andra Pradesh.
4. N. Rukmini Devi
Major, Hindu
W/o N.V. S. Prakash Rao
Battavaranapalli
Vijilapuram Post
Kuppam Taluk, Chittor District
Andra Pradesh.
5. M.Shakuntala Devi
Major, Hindu
W/o M.B.N. Rao Naidu
Odder Madi, Shivaampuram Post
Via Rallabudugur
Kuppam taluk
Chittor District
Andra Pradesh
6. K.J. Jayalakshmi
Hindu, Major
D/o Raja K.J. Venkatapathi Naidu
Residing at Kenagundi
House No.54, Benson Town
Benson Cross
Bangalore-06
Since deceased by LR's
6 (a) Sri. V.Keshavamurthy
Aged about 54 years
6 (b) Sri.V. Manohar
Aged about 48 years
38
6 (c) Sri.V. Venkatachalapathi
Aged about 35 years
6 (d) Smt. V.Rukmini
Aged about 50 years
6 (e) Smt.V.Shakuntala
Aged about 46 years
6 (f) Smt.V.Parimala
Aged about 46 years
6 (g) Smt.V. Sulochana
Aged about 40 years
All are residing at No. 54,
Benson Cross, Benson Town
Bangalore-560 046
7. B.C. Hanumanthappa
Hindu, Major
S/o Channappa
Residing at No. 1011
4th Block, Main Road
Rajajinagar, Bangalore-10
Since deceased by LR's
8. Sri.B.C.Ganganna
Since deceased by LR's
8 (a) Smt. Lakmamma
Aged: Major
W/o Late B.C. Ganganna
8 (b) B.G. Somashekhara
Age: Major
S/o Late B.C. Ganganna
39
8 (c) B.G. Keshava
Age: Major
S/o B.C. Ganganna
All are residing at
No. 565, 19th Cross
Sadashivanagar
Bangalore.
9. B.M. Maranna
S/o Late Pete Mayanna
Hindu,
R/at No. 1011, 4th Block
Main Road, Rajajinagar
Bangalore.
10. B.V.Nagaraj
Age: Major
S/o B.M.V. Mayanna
R/at No. 1011, 4th Block
Main Road, Rajajinagar
Bangalore-560 010.
11. B.C.Narayana
Since deceased by LR's
11 a). Chennamma
W/o Narayana, Major
11 b). B.N.Vasudev
S/o B.C.Narayana
Aged about 14 years
Minor represented
By next friend
Mother Chennamma
12. Abdul Rahim Khan
40
Age: Major, Advocate
13. The Managing Partner of
Star Oil Corporation
Respondents No.12 and 13 are
Reside in a portion of
Kungunnadi House. 54
Benson Cross
Benson Town
Bangalore-560 006.
14. M. Vishwaraj
Age: Major
S/o P.R.T. Manickam
R/at No. 38, Old Poor House Road
Shivaji Nagar
Bangalore-51.
15. Paripoorni
Age: Major
W/o Rajappa
R/at Kuppam
Chittur District
Rep by its P.A. Holder
Rajappa.
16. Nawab Jan
Age: Major
S/o Kamar Khasimi
R/at 6th Cross, Bilal Nagar
Bangalore- 45.
17. Smt. Haseena Begum
W/o Amirijan, Major
R/at 6th Cross, Bilal Nagar
Bangalore-560 005
Represented by her power of attorney holder
Ayub Khan.
41
18. John Moses @ Madan Kumar
S/O P.D. Mani
Aged about 36 years
R/at No. 79, 3rd Cross
Hutchins Road Cox Town
Bangalore-560 084 ..Respondents
(By Sri.S.K.V. Chalapathy, Advocate R3, R-6 (a) (c-g);
Sri. Ramesh Rao & Associates, Advocates for R13;
R 1(a) to (h), R-2, R-5, 9, 10 & 15 notice served;
R-7, 8(a), 11(a), 12 & 14 notice dispensed;
Sri. Jagadeesh Goud Patil, Advocate for R16;
Sri.Rehamathulla Shariff, Advocate for R-6 (b)
Sri.A.Vijaykumar Bhat, Advocate for impleading party)
This Regular First Appeal is filed under Section 96
R/w O 41 R 5 CPC against the judgment and decree dated
29.1.2002 passed in O.S.No.1949/80 on the file of the
XXVIII Addl. City Civil & Sessions Judge, Mayo Hall,
Bangalore dismissing the suit for partition and separate
possession.
RFA No.504/2002
BETWEEN:
1. Shri.B.C. Hanumanthappa
Hindu, Major
S/o Channappa
Residing at No. 1011
4th Block, Main Road
Rajajinagar, Bangalore-10
Since deceased by LR's
42
1 (a). Smt. Gangamma
W/o late Sri.B.C.Hanumanthappa
Aged about 73 years
1 (b). Sri.B.H. Mahesh
S/o late Sri. B.C. Hanumanthappa
Aged about 46 years
1 (c). Smt. Saraswathi
W/o Late Sri. Venkatesh
Aged about 45 years
1 (d). Smt. Chandrika
D/o late Sri. B.C.Hanumanthappa
Aged about 40 years
1 (e). Sri. Ravindra
S/o late Sri. Venkatesh
Aged about 19 years
All are residing at No.21, 3rd Cross
9th Main, RMV Ist Stage,
Sadashivanagar
Bangalore-560 080.
2. Sri.B.C. Ganganna
Brother of first appeallant
Since deceased by LR's
2 a). Smt. Lakshmamma
Major, Wife
2 b). B.G. Somashekara
Major, Son
2 c). B.G.Keshava
Major, Son
43
All are residing at No. 565,
19th Cross, Sadashivanagar
Bangalore. ...Appellants
(By Sri.T.S.Mahantesh, Advocate
Sri.Shanmukappa, Advocate for A1 (a-e)
M/s Kesvy & Co., Associates; Sri.C.B.Srinivasan,
Advocate, Sri.N.B.Reddy, Advocate for A1 M/s Kesvy &
Co., Associates)
AND:
1. Sri.B.M.Byrappa
Since deceased by LR's
1 (a) Smt. Lakshmamma
W/o Late Sri. B.M.Byrappa
Aged about 70 years
Residing at no.1011
Dr. Rajkumar road
4th Block, Rajajinagar
Bangalore-560 010
1 (b) Sri.B. Venugopal
S/o Late Sri. B.M.Byrappa
Aged about 61 years
Residing at No.1011
Dr. Rajkumar road
4th Block, Rajajinagar
Bangalore-560 010
1 (c) Sri.Swamy
S/o Sri.Venkatappa
Aged about 70 years
1 (d) Sri.M.N.Hemanth
S/o Sri.Swamy
Aged about 46 years
44
1 (e) Sri.M.N.Sumanth
S/o Sri. Swamy
Aged about 44 years
1 (d) to 1 (f) are residing at
No.5, Post Office Road
Industrial Suburb 2nd Stage
Mysore-8
1 (f) Sri.B.Ramakrishna
S/o Late Sri.B.M.Byrappa
Aged about 51 years
1 (g) Sri.B.Ramesha
S/o Late Sri.B.M.Byrappa
Aged about 48 years
1 (f) and 1 (g) are residing at
No.1011, Dr. Rajkumar Road
4th Block, Rajajinagar
Bangalore-560 010
1 (h) Smt. Sumithra
W/o Sri. Ranganath
D/o Late Sri.B.M.Byrappa
Aged about 40 years
Residing at No.13
Venkataswamappa Lane
Lalbagh Upparhalli
Bangalore-560 004
2. Shri. K.J.Muralidhar
S/o Late K.J. Ramappa Naidu
Hindu, Resident of
Kuppam Palace,
Kuppam, Chittor District
Andra Pradesh-517 001
3. Nagabhushanam Naidu
Hindu, Major
45
S/o Late K.J. Subbarayalu Naidu
Resident of Palace in Kuppam
Chittor Dist,
Andra Pradesh.
4. Smt.N. Rukmini Devi
Major, Hindu
W/o N.V. S. Prakash Rao
Battavaranapalli
Vijilapuram Post
Kuppam Taluk, Chittor District
Andra Pradesh.
5. Smt.S.M.Shakuntala Devi
Major, Hindu
W/o M.B.N. Rao Naidu
Odder Madi, Shivaampuram Post
Via Rallabudugur
Kuppam taluk
Chittor District
Andra Pradesh.
6. Smt.K.J. Jayalakshmi
Hindu, Major
D/o Raja K.J. Venkatapathi Naidu
Residing at Kenagundi
House No.54, Benson Town
Benson Cross
Bangalore-06
Since deceased by LR's
6 (a) Sri. V.Keshavamurthy
Aged about 54 years
6 (b) Sri.V. Manohar
Aged about 48 years
6 (c) Sri.V. Venkatachalapathi
Aged about 35 years
46
6 (d) Smt. V.Rukmini
Aged about 50 years
6 (e) Smt.V.Shakuntala
Aged about 46 years
6 (f) Smt.V.Parimala
Aged about 46 years
6 (g) Smt.V. Sulochana
Aged about 40 years
All are residing at No. 54,
Benson Cross, Benson Town
Bangalore-560 046
7. B.M. Maranna
S/o Late Pete Mayanna
Hindu,
R/at No. 1011, 4th Block
Main Road, Rajajinagar
Bangalore.
8. B.V.Nagaraj
Age: Major
S/o B.M.V. Mayanna
R/at No. 1011, 4th Block
Main Road, Rajajinagar
Bangalore-560 010.
9. B.C.Narayana
Since deceased by LR's
9 a). Chennamma
W/o Narayana, Major
9 b). B.N.Vasudev
S/o B.C.Narayana
Aged about 14 years
47
Minor represented
By next friend
Mother Chennamma
10. Abdul Rahim Khan
Age: Major, Advocate
11. The Managing Partner of
Star Oil Corporation
Respondents No.10 and 11 are
Reside in a portion of
Kungunnadi House. 54
Benson Cross
Benson Town
Bangalore-560 006.
12. M. Vishwaraj
Age: Major
S/o P.R.T. Manickam
R/at No. 38, Old Poor House Road
Shivaji Nagar
Bangalore-51.
13. Paripoorni
Age: Major
W/o Rajappa
R/at Kuppam
Chittur District
Rep by its P.A. Holder
Rajappa.
14. Smt. Haseena Begum
W/o Amirijan, Major
R/at 6th Cross, Bilal Nagar
Bangalore-560 005
Represented by her power of attorney holder
Ayub Khan.
48
15. Nawab Jan
Major, S/o Kamar Khasimi
Resident of 6th Cross,
Bilal Nagar
Bangalore-560 045
16. S. Tajunnissa
Age: Major
W/o S. Jameel Basha
R/at No. 10, M-2 Street
Broadway Road Cross
Bangalore-51. ..Respondents
(By Smt. Malini Venkatesh, Advocate for R14-16;
Sri.Shanmukappa, Advocate R7;
M/s Ramesh Rao & Associates, Advocates for R11;
R-2, R-3, R-4, R-5 notice served;
R 9 (a-b), R-10 & R-12 notice dispensed;
Sri.S.K.V.Chalapathy, Advocate for R6 (a) (c-g);
Sri.Rehamathulla Shariff, Advocate for R6 (b);
Sri.G.G.Shastri, Advocate for R-6)
This Regular First Appeal is filed under section 96 of
C.P.C praying to set aside the judgment and decree dated
29.1.2002 passed in O.S.No.1949/1980 on the file of the
XXVIII Addl. City Civil & Sessions Judge, Mayo Hall,
Bangalore City dismissing the suit for partition and separate
possession.
These Appeals having been heard and reserved,
coming on for pronouncement of judgment this day, the
court delivered the following:
49
JUDGMENT
These appeals are filed by unsuccessful plaintiff and defendants-9 to 13 and 31 to 35 questioning the correctness and legality of the judgment and decree passed in O.S.No.1949/1989 by 28th Addl. City Civil Judge and Sessions Judge, Mayo Hall, Bangalore dated 29.01.2002 whereunder suit filed for partition and separate possession of 1/18th share in the suit property and enquiry into mesne profits came to be dismissed and claim of the defendants 9 to 13 and 31 to 35 for partition of suit schedule property also came to be rejected.
2. All these appeals are clubbed and heard together at the request of learned Advocates appearing for parties and also on the ground that learned Advocates in unison have contended that facts and question of law involved are common in all these appeals. Hence, they are taken up together and disposed of by this common judgment. 50
3. I have heard arguments of Sri Shanmukhappa, learned Advocate appearing on behalf of all appellants and Sri.S.K.V.Chalapathi, learned Senior Advocate appearing on behalf of contesting 8th respondent. Perused the judgment and decree. This Court by order dated 10.03.2004 has observed that unserved respondents in RFA 710/2002 are the appellants in the other connected appeals and they are already represented by their counsel and as such, notices to respondents-7, 8a, 8c, 11a, 12, 14 & 17 came to be dispensed with in RFA Nos.711/2002, 712/2002,. 504/2002, 611/2002, 612/2002 & 613/2002.
4. The suit was originally numbered as O.S.22/1977 and filed before City Civil Judge at Bangalore and later it was renumbered as O.S.No.1949/1980. Initially suit was filed against defendants-1 to 30 and subsequently defendants-31 to 35 have been impleaded. Several parties to the lis having expired, both during pendency of suit as well as before this Court, necessary applications have been filed by parties to bring the legal representatives on record and 51 accordingly they have been brought on record. As such, parties are referred to as per their rank in trial Court.
5. Sri.B.M.Byrappa (plaintiff) filed a suit for partition and separate possession by metes and bounds of 1/18th undivided share in the Composite property bearing No.54, Benson Town Cross, Bangalore - 560 006 consisting of Bungalow, sheds and vacant land morefully described in the plaint schedule and hereinafter referred to as `Kanagundi House' for the sake of convenience contending interalia that he had purchased the said extent (1/18th) under a registered sale deed dated 20.05.1974 executed by Smt.M.Shakuntala Devi (7th defendant). It was contended that defendant Nos.9 to 13 and defendants 31 to 35 are purchasers of various shares in suit schedule property from defendants 1 to 6 and 8. The original propositus is one Sri.Raja K.J.Venkatapathy Naidu (hereinafter referred to as "Sri. K.J.V.Naidu" for short) and he had five wives. He expired on 30.10.1956 living behind three widows namely defendants 4 and 5 and Smt.Rani Puttamma Nagati (mother of 8th defendant) who also expired prior to the institution of 52 the suit in question. The said Sri. K.J.V.Naidu had two sons Sri.K.J.Ramappa Naidu and Sri.K.J.Subbarayulu Naidu who were also not alive at the time of the institution of suit. First defendant is son of Sri.K.J.Ramappa Naidu and defendants 2 and 3 are son and widow of K.J.Subbarayulu Naidu. Defendants 6, 7 and 8 are the daughters of Sri.K.J.V.Naidu.
6. Defendants 9 to 13 and defendants 31 to 35 who claimed to have purchased portions of the suit schedule property like the one purchased by the plaintiff have filed their respective written statements and have also sought for suit being decreed to the extent of shares purchased by them and same being allotted to them. During the course of entire trial they have sailed with the plaintiff. 8th defendant has filed a separate and detailed written statement contending that sale deeds executed in favour of the plaintiffs and other purchasers are fraudulent and collusive and not binding on her. She contended that she being the absolute owner of the "Kanagundi House" defendants 1 to 7 had no right to alienate the same. Defendants 14 to 30 were inducted by 8th defendant as tenants of different portions of "Kanagundi 53 House" and she has been collecting rents from them. Plaintiff contended that "Kanagundi House" was a joint family property belonging to the original propositus Sri.K.J.V.Naidu and during the life time of Sri.K.J.V.Naidu 8th defendant and her mother Smt.Rani Puttamma Nagati had executed an agreement dated 16.01.1951 (Exhibit P-2) relinquishing all their rights in the said property and retained only right to reside in the said property and 8th defendant had only right to reside in the said property till her marriage. It was contended that defendants 1 to 7 being the legal heirs of Sri.K.J.V.Naidu had inherited the "Kanagundi House" and being entitled to a share in "Kanagundi House" they have alienated their shares in favour of defendants 7 and 9 to 13 and as such they have consented for the suit being decreed. Thus, it could be seen from the pleadings that contest is between the 8th defendant on the one hand and defendants 1 to 7and 9 to 13 on the other hand.
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CONTENTIONS ON BEHALF OF APPELLANTS:
7. It is contended by Sri Shanmukhappa, learned Advocate appearing on behalf of the appellant that pleadings of the parties should state their claim or defence, as the case may be, and not the evidence on which they want to rely and prove upon, as required under Order VI Rule 2 CPC. In the absence of any pleading, issues would not be framed. The learned counsel would further contend that under Order VIII Rule 3, the denial in the written statement should be specific with reference to each of the averments made in the plaint as otherwise the Court trying the suit can hold, since there is non-traverse of the plaint averments it would amount to an admission. He would draw the attention of the court to the written statement filed by 8th defendant, particularly paragraph-10 whereunder a specific plea has been raised by 8th defendant denying execution of any agreement or deed dated 16.01.1951 relinquishing right, title and interest in the suit property or they were entitled to reside in the property till the marriage of 8th defendant and till the death of Rani Puttamma and contends that execution of the agreement 55 dated 16.01.1951 having been denied by 8th defendant, this document could not have been relied by the trial Court to dismiss the suit. He also contends that in the event of Trial court raising an issue in the background of plea having been raised by 8th defendant of not having executed the document/deed dated 16.01.1951 then appellants would have got an opportunity to put forth their case and in the absence thereof, trial Court could not have relied upon the said document to dismiss the suit.
8. It is also the contention of Sri Shanmukhappa, learned counsel appearing for the appellant, that 8th defendant has not raised a plea as to how the suit schedule property or in particular 'Kanagundi house' was acquired either by her or by her mother and when there is no plea raised by the 8th defendant in this regard, the plaintiffs/appellants did not have an opportunity to either putforth their case in this regard or cross examine the 8th defendant on this plea. Hence, he contends that finding recorded by the trial Court that 'Kanagundi house' was given to the mother of 8th defendant, is incorrect. He would 56 further elaborate his submission by contending that finding recorded by the trial Court that said house was given in lieu of maintenance, is erroneous. He draws the attention of the Court to the deed dated 16.01.1951 marked as Ex.P-2 to contend that claim of Smt.Rani Puttamma was with reference to the maintenance, which was given to her namely, 1/4th of the compensation amount to be deposited by the Government in the office of the Estates Abolition Tribunal under the provisions of Madras Act XXVI of 1948 in respect of impartible estate of Kanagundi taken over by the Government on 07.09.1950 under G.O.No.2216 Revenue dt. 11.08.1950 which was claimed by the 1st party therein i.e., Raja K.J.V.Naidu who was the husband of Smt.Rani Puttamma and contends that right to claim maintenance stops at it. He would further contend that right of residence is not given in lieu of maintenance and these two, namely maintenance and right of residence are two separate independent distinct claims and they do not overlap with each other. In this regard, he submits that the right of residence in 'Kanagundi house' was not given to the mother 57 of the 8th defendant in lieu of maintenance and as such, Sec.14(2) of Hindu Succession Act is applicable and not Sec.14(1). He also contends that 8th defendant's mother was not put in possession of the suit schedule property in lieu of maintenance. He also states that restricted right of residence was given to Rani Puttamma under Ex.P-2 has to be understood to mean and include only to the bungalow and not to other adjacent and abutting property namely vacant land.
9. It is also the contention of Sri Shanmukhappa that 8th defendant has taken a specific stand that she acquired title to the suit schedule property under Ex.D-2 dated 04.08.1971 and in this regard the trial Court had framed an issue by way of additional issue on 03.11.1992 which is issue No.24 and held the same in the negative. As such, issue No.4 consequentially also has to be held in the negative and not in the affirmative. He would contend that in view of categorical finding given by the trial Court while answering issue No.24 at paragraph 18 as extracted herein below-
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"It is not the case of defendant No.8 that said Photostat copy is lost. Taking all these factors into consideration, a serious doubt is created as to the authenticity of Ex.D2. I therefore hold that defendant No.8 has miserably failed to prove that there was a settlement and the terms were reduced to writing as per Ex.D-2 on 04.08.1971."
8th defendant cannot be held to be the owner of the suit property. He would also submit that suit schedule property was not the absolute property of Sri. K.J.V.Naidu and it was the joint family property of Sri. K.J.V.Naidu and his sons and admittedly as on the date of 16.01.1951, the date on which Ex.P-1 came into existence, two sons of Sri. K.J.V.Naidu were alive and they were not parties to the said agreement and if there were to be notional partition amongst all the members of the joint family of Sri. K.J.V.Naidu and his sons, Sri. K.J.V.Naidu would have got only 1/3rd share and as such 8th defendant's right even if any will have to be restricted to the 1/3rd share of late Sri. K.J.V.Naidu and it cannot extend beyond it. In support of his submissions he has relied upon the following Judgments:
1. 2008 (5) AIR Kar R 176 - Smt.G.Rama Vs T.Seshagiri Rao 59
2. (2010) 9 SCC 602 - Gaddam Ramakrishna Reddy and others Vs Gaddam Rami Reddy and anr.
CONTENTIONS RAISED ON BEHALF OF 8TH DEFENDANT:
10. Sri S K V Chalapathy, learned senior counsel appearing on behalf of defendant No.8 would support judgment and decree passed by trial Court and prays for dismissal of the appeal.
11. In support of his prayer and elaborating his submission in this regard, he contends that issue in this appeal lies in a narrow compass as to whether property in question which is claimed by 8th defendant is to be construed as one falling under Section 14(1) or Section 14(2) of the Hindu Succession Act. He submits that Smt.Rani Puttamma Nagati and her daughter - 8th defendant admittedly were living separately from her estranged husband/father K.J.V.Naidu at Benson Town as is reflected in Ex.P-2 itself and to seek for maintenance they filed a suit on the file of Sub Court, Chittur in O.S.No.28/1930 which came to be decreed and the same came to be assailed by Sri.K.J.V.Naidu in appeal i.e., A.S.No.370/1931 which came 60 to be partly allowed and modification of the decree passed in O.S.No.28/1930 sought for by Sri.K.J.V.Naidu in O.S.No.11/1938 also came to be dismissed and thereafter in the subsequent suit filed by Sri.K.J.V.Naidu in O.S.No.20/1948 a compromise was entered into between the parties and accordingly compromise decree was drawn in O.S.No.20/1948. He contends that under the decree passed in O.S.No.28/1930 which culminated in a compromise decree in O.S.20/1948 certain villages were given as maintenance to the wife and daughter of K.J.V.Naidu namely Rani Puttamma Nagati and her daughter 8th defendant and to substitute the right existing in the properties an agreement came to be entered into between the parties on 16.01.1951 as per Ex.P-2 and said document was in respect of a pre-existing right vested with Rani Puttamma Nagati and 8th defendant and as such, Section 14(1) of Hindu Succession Act applies and not Section 14(2). He would also submit that if there was no pre-existing right to the property, then Section 14(2) would apply. However, he contends that this is not the situation existing in the present 61 case as can be noticed from the document Ex.P-2 itself and Court below has taken into consideration various clauses mentioned in the said document to arrive at a conclusion that Section 14(2) of the Act would apply. He would also submit that if the property acquired by a female Hindu in lieu of maintenance, it would fall under Section 14(1) and not under Section 14(2). He further contends that even a mere right to maintenance would create a charge on the property.
12. In support of his submission, he relies upon the judgment of the Supreme Court in the matter of V.TULASAMMA & OTHERS vs SESHA REDDY (DEAD) BY LR's (1977(3) SCC PAGE 99) particularly referring to paragraphs 20, 29, 62, 67 & 69. He would also draw the attention of the Court to Ex.P2 wherein it is specifically mentioned that even as on the date of drawing of the said agreement, Smt.Rani Puttamma Nagati and 8th defendant were already residing in the property at Benson town which is the suit schedule property.
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13. He further contends that in reply to the plea or contention put forward by Sri Shanmukhappa, learned counsel appearing for the plaintiff - appellant which was to the effect that Sri.K.J.V.Naidu had two sons as on the date of execution of Ex.P-2 and he could not have encumbered shares of his two sons who had a pre-existing right over property in question, contending that by reading of clause 7(e) in the said deed would itself clarify said contention or in other words said contention was required to be rejected in as much as said clause would have come to play only in the event of sons or grandsons of Sri.K.J.V.Naidu had exercised their right over property and attempted to dispossess Smt.Rani Puttamma Nagati or 8th defendant from the Suit Schedule Property prior to Hindu Succession Act, 1956 coming into force and not otherwise. He would also rely upon recitals found in the said clause to contend or buttress his argument that said situation never arose and it is in this background it has been specifically agreed to between the parties under the said document that in the event of such a situation arising, remaining share of Sri.K.J.V.Naidu would 63 go to Sri.K.J.V.Naidu's estate and not otherwise. He would also submit that there were other properties of Sri.K.J.V.Naidu available and as such, there was no objection by any other member of the joint family for giving suit property to Smt.Rani Puttamma Nagati and her daughter 8th defendant in lieu of maintenance to be paid to them and as such argument of Sri Shanmukhappa is fallacious on two grounds - (i) if sons and grand sons had dispossessed or attempted to dispossess Smt.Rani Puttamma Nagati and 8th defendant, then said clause 7(e) to Ex.P-2 would be applicable; or (ii) contingency as mentioned in clause 7(e) stood wiped out with effect from 17.06.1956 - date on which Hindu Succession Act came into force. He would also submit in the event of a widow claiming right of maintenance, it would naturally be against the property belonging to the family i.e., property belonging to her husband and his brothers or in other words, joint family property and to protect such rights, Section 14(1) would be applicable to enlarge limited right to full fledged right. 64
14. Sri.S.K.V.Chalapathy, learned Senior Counsel appearing for defendant No.8 would further elaborate his submission by contending that contention raised by Sri.Shanmukhappa learned counsel for the appellant that 'right to residence' would not include `right to maintenance' should not be accepted and he contends that 'right to residence' and 'right of maintenance' cannot be divorced from one another. He would further submit that 'right to maintenance' includes food, clothing and shelter and as such he contends that said submission is to be rejected. In support of this proposition he relies upon the judgment of Hon'ble Apex Court in the case of Mangat Mal (Dead) and Anr. Vs. Smt.Punni Devi (Dead) and Ors. reported in AIR 1996 SC 172 by drawing the attention of the Court to paragraphs 18, 19 and 20 and contends that in the background of law laid down in Mangat Mali case -referred to supra the meaning to be attached to the words 'residence' and 'maintenance' includes both and pray this court should examine Exhibit P2 and the circumstances under which it came into existence; he further contends that under the said 65 document a specific provision is made for 'residence' apart from giving a share in the compensation that was to be awarded by the Madras Government to Sri.K.J.V.Naidu namely, by apportioning 1/3rd share jointly in favour of Smt.Rani Puttamma and defendant No.8. He contends that it is not in dispute that Sri.K.J.V.Naidu was living in a palace and was having vast Properties and he controlled about 360 villages apart from other properties and this goes to show that defendant No.8's mother lived in the said palace of Sri.K.J.V.Naidu and they were residing together and it is in this background it is to be viewed as what was given for residence of Smt.Rani Puttamma is not merely one bungalow as sought to be made out but the entire suit schedule property. He contends that words used in Section 14 (1) "possessed" and "acquired" is to be understood to mean that even mere possession of the property is sufficient enough to attract Sub Section (1) of Section 14 and these words does not refer to any particular share of the male hindu and if the intention of the legislature was to restrict the ownership of a female hindu only to the extent of her husband's share, 66 Section itself would have been worded as such or the legislature would have expressed its intention in specific terms by making it clear.
15. In reply to the contention of Sri.Shanmugappa that in para 10 of the written statement defendant No.8 had denied the execution of Exhibit P2 and Trial Court could not have relied upon the said document and dismissed the suit of the plaintiff. He contends this Court will have to examine the effect of such denial in the background of paragraph 9 of the plaint wherein plaintiff themselves have admitted execution of agreement dated 16.01.1951 Exhibit P-2. As to whether Trial Court could have relied upon Exhibit P2 without raising a issue thereof namely whether said document would enable Smt. Rani puttamma or 8th defendant to claim suit property as her absolute property on the ground that it would fall within the purview of Section 14(1) of the Act. He submits by way of reply that in paragraph 9 of the plaint, plaintiff themselves have admitted that defendant No.8 and her mother Smt.Rani Puttamma had relinquished their rights in the suit schedule property 67 and this denial has to be construed only with reference to traversing said specific plea raised in para 9 of the plaint and nothing beyond it. He would also contend that it is not an absolute or outright denial by defendant No.8 regarding execution of Exhibit P2 but it is a qualified denial. At this juncture he would also supplement his argument by contending that even otherwise if it has to be so construed that under Exhibit P2 defendant No.8 and her mother had relinquished their right, title and interest in respect of suit schedule property the said document is inadmissible document since it is an unregistered document.
16. He would further submit that the argument of learned counsel for plaintiff that Trial Court could not have considered the plea of relinquishment without raising an issue recedes to the background since trial court would not have considered the prayer of the plaintiff for decreeing the suit without considering the effect of such relinquishment under Exhibit P2 and giving a finding on Exhibit P2 was absolutely necessary; plaintiff being fully conscious that he had to prove the due execution of Exhibit P2, had examined 68 PW2 and he draws the attention of the Court to the examination-in-chief of PW2 dated 28.03.1983, as also the cross examination of DW1 on Exhibit P2 which is dated 26.08.1997. In support of his submission he relies upon the judgment of the Apex Court in the case of Dr.Mahesh Chand Sharma vs. Smt. Raj Kumari Sharma and Ors. reported in AIR 1996 SC 869 to contend question of law can be raised at any stage since section 14 operates on its own force.
17. Elaborating his contentions, Sri S K V Chalapathy, learned Senior counsel would also contend that very frame of the suit itself is bad and suit itself is not maintainable and to substantiate his submission, he draws attention of the Court to the averments made in the plaint particularly, paragraph 4 wherein it is averred by the plaintiffs to the following effect:
"Even during the life time of late Raja K.J.V.Naidu his son i.e., first defendant's father K.J.V.Ramappa Naidu has become divided in his status from his father and similarly second defendant's father K.J.V.Subbarayulu Naidu had also become divided in status although there was no separation by metes and bounds and contends that this would go 69 to show that there was no division of joint family properties by metes and bounds."
18. Hence, he contends that suit in question filed for partial partition by subsequent purchaser of a joint family property is not maintainable and he would draw the attention of Court to the findings recorded by the trial Court on additional issue Nos.1 and 2 framed in this regard which relates to maintainability of the suit and relies on the finding recorded by the trial Court while answering these two issues at paragraph 25 of the judgment assailed herein. He would also contend that there was no material on record to show what were the properties owned by the parties namely the joint family. He draws attention of the Court to Ex.D-3 namely judgment rendered by the Court of Sub Judge, Chittoor in O.S.No.1/1951 renumbered as O.S.1/1968 which was filed by late Sri.K.J.V.Naidu for partition of joint family properties and draws attention of the Court to paragraphs 2, 15, 31, 32, 73 at internal pages 5,27,47,50,51 & 108 of the said Judgment to contend that in paragraph 32, a reference is made to present suit schedule property 70 namely entire suit schedule property i.e., Kanagundi House located at Benson Town and it cannot be read or understood as restricting to the Bungalow alone. He also submits that compromise petition referred to in O.S.No.1/1968 has no bearing or impact on the rights of 8th defendant or her mother Smt.Rani Puttamma Nagati since they were not parties to it and as such said compromise would not be binding on them. He also submits that there were other properties belonging to joint family available as on the date of filing of the present suit namely O.S.No.22/1977 and same has been reflected under Ex.P-4 since these properties being available for partition having not been included in the present suit, subsequent purchaser would not be entitled to maintain the suit for partial partition or in other words, in respect of undivided share said to have been purchased by him/her. It is also his contention that case of plaintiffs themselves is that properties are joint family properties and when there are other properties available and they having not been included in the frame of the present suit, it would not be maintainable for partial partition. 71
19. In support of this proposition, he relies upon the following judgments:
1). ILR 1938 MADRAS 684 - MANJAYA MUDALI AND ANR. Vs SHANMUGA MUDALI AND SEVEN ORS.
2). ILR 1998 KAR 681 - SRI TUKARAM vs SRI SAMBHAJI & OTHERS.
3). 2001(4) KLJ 505 - TUKARAM GOVIND NAGANVAKAR (DECEASED) BY LR's AND ANOTHER vs STATE OF KARNATAKA AND OTHERS.
On this ground, he submits that suit itself is not maintainable and same is liable to be dismissed.
20. Sri.S.K.V.Chalapathy, learned senior counsel would also contend that partition dated 04.08.1971 pleaded by 8th defendant would go to show that she (8th defendant) had become absolute owner of the suit schedule property. He would also contend that document - Ex.D-2 - namely partition deed is to be read in its entirety and nomenclature used therein or stray sentences used in the said document could not form the basis for arriving at a conclusion that there was a partition deed. But on the other hand, recitals in the said document would establish that it was a family 72 settlement and as such, it cannot be contended that it is a spurious document. He would further submit that if the parties were to settle disputes with regard to the properties, as described in that particular document and distributed the properties amongst themselves by settlement; said document does not become compulsorily registerable document as required under Section 17 of the Indian Registration Act, 1908. He would draw attention of the Court to evidence of D.W.10 (Sri Nagabhushana Rao Naidu, pages 126 to 129 of paper book) to contend that said witness has unequivocally admitted execution of the said document and as such validity of the said document need not be gone into in these proceedings. He would also contend that this witness D.W.10 was also a witness in O.S.No.1/68 who has deposed in the said suit and admitted execution of Exhibit D-2 and as such validity of this document requires to be upheld; he further contends when this document has been upheld in O.S.No.14/1981 the judgment and decree which has been produced in the present suit and marked as Exs.D-5 and D- 6 question of considering the contention of Sri 73 Shanmukhappa that Smt.Rani Puttamma Nagati succeeded to the estate of deceased Sri Raja Venkatapathi Naidu as Class I heir and as such she had executed sale deed in favour of purchasers does not arise on the ground that whether said Smt.Rani Puttamma Nagati had died intestate or otherwise, was not an issue in the present suit and as such it cannot be gone into, inasmuch as, when such plea is put forward, the Court will also have to examine rights of the preferential right holders as contemplated under Section 22 of the Hindu Succession Act and contends that perusal of the written statement filed by defendants-9 and 10 would not disclose about such plea having been raised and as such this Court will not examine said issue and same cannot be looked into in the present appeal. In support of his submission, he has relied upon following judgments:
1. [(1977) 3 SCC 99] - V.TULASAMMA AND OTHERS V. SESHA REDDY (DEAD) BY LR'S
2. AIR 1996 SC 172- MANGAT MAL (DEAD) AND ANOTHER V. SMT. PUNNI DEVI (DEAD) AND OTHERS
3. AIR 1996 SC 869- DR.MAHESH CHAND SHARMA V. SMT. RAJ KUMARI SHARMA AND OTHERS 74
4. [(1915) ILR 38 MAD 684] -MANJAYA MUDALI AND ANR. V. SHANMUGA MUDALI AND SEVEN ORS.
5. ILR 1998 KAR 681- SRI.TUKARAM V. SRI SAMBHAJI & ORS.
6. [(2001(4) Kar.L.J.505]- TUKARAM GOVIND NAGANVAKAR (DECEASED) BY LR'S AND ANOTHER V. STATE OF KARNATAKA AND OTHERS
7. AIR 1988 SC 881- ROSHAN SINGH AND OTHERS V. ZILE SINGH AND OTHERS
8. [(2006) 1 SCC 275]- STATE OF ORISSA AND OTHERS V. MD. ILLIYAS On these grounds, he prays for dismissal of the appeal.
REPLY ARGUMENTS ON BEHALF OF APPELLANTS:
21. By way of reply, Sri Shanmukhappa, learned counsel appearing for the plaintiffs would contend that Code of Civil Procedure does not provide for any "qualified denial".
Denial cannot be evasive and denial has to be specific, as otherwise, it has to be construed as admission. In this regard, he would submit that at paragraph 10 of the written statement filed by defendant No.8, denial has been made specifically and absolutely with regard to execution of document dated 16.01.1951 which is marked as Ex.P-2 and 75 it is not the case of defendant No.8 or her mother that they acquired title to the suit schedule property under Ex.P-2. But on the other hand, it is their specific case that they acquired title to suit schedule property under Ex.D-2 namely partition deed dated 04.08.1971 and in the instant case, issue No.24 framed by trial Court has been answered in the negative and there being no appeal filed, defendant No.8 is estopped from contending that said issue is to be held in favour of defendant No.8.
22. He would submit that insofar as judgments relied upon by learned counsel appearing for defendant No.8 would relate to properties coming to a widow or wife in lieu of recognition of her/their right of maintenance and in the instant case, it cannot be construed or held that suit property was given to Smt.Rani Puttamma in recognition of her any pre-existing right and it is for the first time under Ex.P-2, right has been conferred namely, right of residence, to stay in the bungalow which does not mean that she had any pre-existing right of maintenance and it is only a right of residence. He would contend that her right of maintenance 76 stood discharged or satisfied by virtue of her accepting to receive 1/3rd share of compensation that the deceased K.J.V.Naidu had to receive from the then Madras Government by virtue of Estate Abolition Act of Royatwari and to the extent of Rani Puttamma is concerned, and further submits that claim of 8th defendant is to the extent of clause (5) of the said document Ex.P-2 which mandates for payment of Rs.15,000/- to her and to which amount alone she was entitled to and nothing beyond it. He would contend that it is under Ex.P-2 for the first time a right of stay in the bunglow is conferred on Rani Puttamma which is not a pre-existing right and hence, Section 14(2) is attracted and not Section 14(1). He would submit that right given to Rani Puttamma is to stay in the bungalow during her life time and thereafter it will revert back to other sharers and what she possessed was only a right of residence and it cannot be termed as right of maintenance. In support of this proposition, he relies upon the judgment of the Hon'ble Apex Court reported in (2010) 9 SCC 602, by drawing attention to paragraphs 24 to 28.
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23. He would further submit by way of reply that insofar as plea raised by defendants that plaintiff ought to be non suited and the suit is to be dismissed on the ground that suit as brought cannot be sustained on the ground of partial partition having been sought is to be rejected for reasons more than one; namely, no plea has been raised by any of the defendants in this regard in their written statements filed and that the defendants have already contended that partition had taken place and as such said plea has not been examined by the trial court nor it can be examined by the appellate Court. Even other wise, he would submit that what is determined in a suit is right of parties which would be by way of preliminary decree and even during final decree proceedings, if the parties have left out any of the properties belonging to the joint family, same can be included in the final decree proceedings and as such suit is maintainable. In support of this proposition, he relies upon the following judgments:
1. (AIR 2009 SC 1089) - S.SATNAM SINGH & Ors. Vs SURENDER KAUR & Anr.78
2. (2001)5 SCC 363) - MUNINANJAPPA AND OTHERS vs. R.MANUAL AND ANOTHER
24. Hence, he submits that suit could not be dismissed or plaintiff cannot be non-suited on this ground. He would submit that when 8th defendant has denied execution of the document - Ex.P-2, she cannot now rely upon the said document. On these grounds, he seeks for allowing the appeal by decreeing the suit as prayed for.
25. He would further submit that in Muninanjappa's case referred to supra, what came up for consideration was with regard to limited right with reference to husband's right in a joint family property which would mean, limited to the extent of husband's share in the joint family property and accordingly the wordings in Section 14(1) has to be understood and no extended meaning can be given.
26. Sri.Shanmukhappa, learned counsel appearing for plaintiff would further bring to the notice of this Court, cross-examination dated 20.07.2000 of DW1, who was examined on behalf of 8th defendant whereunder he has admitted to the following effect;
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"the defendant No.8 and her mother xxxxxxxxx said appeal. One Sri. Ganapathi has filed O.S.No.81/1984 against defendant No.8 for injunction at Court. In the said suit Exhibit D2 was produced. It if false to suggest that defendant No.8 has no right in pursuance of Exhibit D2. Apart from the property .......... Defendant No.8 has received 100 acres of land in Kuppam."
27. By relying upon the admission of DW1 that defendant No.8 had received 100 acres of land he would contend that for the first time a right was conferred to Smt.Rani Puttamma under Exhibit P2 and as such it is Sub- Section (2) of Section 14 of the Hindu Succession Act which is attracted to the facts on hand and not Sub-Section (1) of Section 14.
28. He would further contend that Exhibit D2 was a compulsorily registerable document and it is not a document evidencing the past transactions but rights conferred or the properties distributed amongst the parties under the said document and as such Section 17(1)(b) of the Indian Registration Act, 1908, is attracted and it is hit by the said Section and in support of this submission, he relies upon the judgment of Coordinate Bench of this Court in the case of 80 Sri.Pilla Muniyappa and others Vs H.Anjanappa reported in AIR 2011 Kar 103.
FURTHER ARGUMENTS ON BEHALF OF APPELLANTS AND 8TH DEFENDANT
29. Sri.S.K.V.Chalapathy, learned Senior Counsel appearing on behalf of defendant No.8 would contend that a close reading of Exhibit D2 and the recitals found therein would disclose that it is a document recording past transaction and what has been distributed as per the Schedule to the said document is the settlement of properties and as such Section 17(1)(b) of the Registration Act is not attracted and relies upon the judgment of the Hon'ble Apex Court in the case of Roshan Singh Vs Zile Singh and others reported in AIR 1988 SC 881.
30. He would further submit that judgment of AIR 2009 SC 1089 relied upon by Sri.Shanmukhappa would not be applicable to facts on hand since it was found by the Hon'ble Apex Court in the said case from the pleadings of the parties itself there was a reference to the Bombay business and same had been left out by the Court below and in this 81 said background the Apex Court held that it does not preclude the Appellate Court from including the property in the final decree proceedings which had been left out and contends that said factual matrix is not present in the facts of the present case. He submits that admittedly there were large number of properties belonging to deceased Sri.K.J.V.Naidu, which was not included in the suit and as such suit for partial partition is impermissible.
31. In reply to the judgment of Muninanjappa's case referred to supra relied upon by Sri.K.Shanmukhappa learned Advocate for plaintiff, Sri.S.K.V.Chalapathy, learned Senior Counsel would contend that in the said case Guruswamy himself had been given a limited right under the Will executed by his father and as such his widow could not have acquired any better right or title than what Guruswamy possessed and the right referred to under Section 14 of the Act is referable to the right of a female Hindu and not the right of other coparceners and contends that in the said case Guruswamy had a limited right over the property namely to reside and enjoy and did not have a right 82 of alienation and thus it was the right of Guruswamy, which was claimed by Smt.Sevamma his widow and in this background the interpretation with regard to Section 14(1) was made by the Hon'ble Apex Court, which is inapplicable to the facts of the case and contends that paragraph 71 of Tulsamma's case referred to supra would be complete answer to the contentions raised by the learned counsel for the plaintiff and even otherwise he contends that the said judgment can be construed at the most either as obiter dicta or to be held by applying the doctrine of subsilentio as held by the Hon'ble Apex Court in (2006) 1 SCC 275 at para 12 and (2011) 9 SCC 354 at paragraphs 43 and 44. He would also contend that it cannot be said that joint family in question had suit schedule property alone to be considered as the property belonging to the joint family and by virtue of same the right of other coparceners would get excluded and as such the deceased Sri.K.J.V.Naidu could not have created a right in respect of the joint family property in exclusion to the rights of other coparceners by contending that admittedly there are and there were and or other properties 83 belonging to the joint family and the property belonging to the joint family Smt.Rani Puttamma had a pre-existing right and as such the contention of the plaintiff's counsel is to be rejected, particularly referring to paragraph 17 of the said judgment.
32. He would also contend at the cost of repetition that right of 'residence' and right of 'maintenance' cannot be considered as separate and independent and they go hand in hand and the then existing "the Hindu Married Women Right to Separate Residence and Maintenance Act, 1946" which was in force in the area of Madras Presidency would clearly go to show that the grounds for claiming separate residence and maintenance cannot be considered as independent or disjunctively.
33. He would also contend that under Exhibit P2 other coparceners had a right to challenge the same and admittedly they did not challenge at any point of time that suit schedule property given to Smt.Rani Puttamma was illegal though said document was within their knowledge. 84 He would also submit virtually they are consenting parties to Exhibit P2 in view of Exhibit P3 namely a judgment and decree passed in O.S.No.1/1968 by Sub Judge, Madanapally, since the sons of deceased K.J.V.Naidu continued the said suit whereunder the possession of Rani Puttamma - 8th defendant over the suit schedule property is accepted and draws the attention of the Court to paragraphs 31 and 50.
34. In view of the fact two judgments were relied upon by S.K.V.Chalapathy, Senior Counsel afresh, in reply arguments, Sri.Shanmukhappa, learned counsel for plaintiff sought the leave of Court to address further arguments on these two judgments by contending that all the judgments referred to by the 8th defendant relates to maintenance alone and in none of the judgments the issue regarding `residence' and `maintenance' have been independently considered with reference to Section 14(1) and 14(2) of the Act and contends as such these two judgments are inapplicable to the facts of the present case. He would also draw the attention of the Court to paragraph 31 of the finding given in the judgment 85 rendered in O.S.No.1/1968 namely Exhibit P3 to contend what was given to the 8th defendant herein i.e., the 13th defendant therein was only a right of residence and nothing beyond it and as such for the first time right has been conferred under Exhibit P2 and in view of the same Sub Section (2) of Section 14 is alone is applicable and the right of the 8th defendant would not blossom itself into a full fledged right of ownership as claimed and as such he prays for allowing of the appeal and decreeing the suit as prayed for.
35. Having heard the learned Advocates appearing for the parties, I am of the considered view that following points would arise for my consideration:
POINTS FOR DETERMINATION:
(1) Whether the Court below was correct in law and on facts to hold that the document Ex.P-
2 dated 16.01.1951 is a document to be construed as one falling under Section 14(1) 86 and not under Section 14(2) of the Hindu Succession Act, 1956?
(2) Whether the Court below was justified in dismissing the suit filed by the plaintiff and rejecting the claim of defendants 9 to 13 and 31 to 35 for partition and separate possession of suit schedule property?
(3) Whether the suit in question was maintainable for partial partition though the joint family possessed other properties? (4) Whether the judgment and decree passed by the trial Court requires to be affirmed, set aside or modified?
(5) What order or decree?
BRIEF BACKGROUND OF THE CASE:
36. The claim of plaintiff as contended in the suit can be crystallized as under:
(i) It was contended that suit property "Kanagundi House" (hereinafter also referred as 'suit schedule property' 87 for brevity) originally was owned by one Sri Raja K.J.Venkatapathi Naidu (hereinafter referred to as 'K.J.V.Naidu" for brevity). He had two sons namely, late K.J. Ramappa Naidu and late K.J.Subbarayalu Naidu. Defendant No.1 is the son of late K.J. Ramappa Naidu and defendants-
2 and 3 are son and widow of late K.J.Subbarayalu Naidu. Defendants-4 and 5 are widows of late K.J.V.Naidu. Defendants-6 to 8 are his daughters. Sri K.J.V.Naidu died on 30.10.1956 and it was contended by the plaintiff that during the life time of Sri K.J.V.Naidu, his sons had become divided in status. However, property was not partitioned by metes and bounds and at the time of his demise, K.J.V.Naidu had 1/3rd share in the suit property and on his demise, his interest devolved on his two sons and three widows i.e., defendants-4 and 5 and Rani Puttamma Nagati (hereinafter referred to as "Rani Puttamma" for brevity), mother of 8th defendant (daughter of Rani Puttama;) and said Rani Puttamma expired four years prior to filing of the suit. Plaintiff further contended that 7th defendant had 1/18th share and she had sold her 1/18th share in the suit property 88 to plaintiff under a registered sale deed 30.05.1974 and delivered possession to the plaintiff. It was further contended that defendant No.1 and his father sold their undivided share to defendant Nos.9 and 10 under sale deed dated 25.04.1972 and defendants 4, 5 and 6 sold their undivided interest in favour of defendants-12, 13 and 11 respectively under separate sale deeds and as such they have been made parties to the suit. Plaintiff contended that by agreement dated 16.01.1951 Rani Puttamma and 8th defendant had relinquished their interest in the suit schedule property in favour of late Sri K.J.V.Naidu and 8th defendant had only retained right to reside in the suit property till her marriage and continued to occupy even thereafter and as such, she has no right to reside or live in the suit property contrary to the said agreement and it was also contended that she inducted defendants - 14 to 30 and as such, plaintiff sought for partition and enquiry regarding mesne profits.
37. On suit summons being issued to defendants, defendants-8 to 14 and 31 to 35 filed their written statements. Defendant Nos.9 to 13 supported the case of 89 plaintiff and also claimed their share in suit property. However, defendant No.8 filed a separate and independent written statement and contested the suit and set up title in herself.
38. Suit was contested by 8th defendant by filing separate and independent written statement. Relationship between parties was admitted but denied that she had inducted defendants-14 to 30 with malafide intention. She also denied the averments made in the plaint that there was any partition between K.J.V.Naidu and his sons and Sri. K.J.V.Naidu had 1/3rd share in the suit property. Claim of plaintiff having purchased 1/18th undivided interest from 7th defendant was denied. Defendants-9, 10, 12 & 13 having purchased undivided interest from defendant No.1 and his father and defendants-4 to 8 was also denied. It was specifically denied that defendants-1 to 7 did not have any right, interest to sell any share in the suit properties and sale deeds were result of fraud and collusion with respective defendants. However, 8th defendant denied the averment made in the plaint that she and her mother Rani Puttamma 90 executed an agreement dated 06.01.1989 relinquishing their right, title in respect of suit property and that she is only entitled to reside in the said property till her marriage. She contended that she is the absolute owner of suit property and no other person had right, title or interest. She also contended that in the family partition, suit property has been exclusively allotted to her share. She further contended that suit is barred by time and she has perfected title by adverse possession and sought for dismissal of the suit.
39. 8th defendant filed additional written statement and contended that under partition deed dated 04.08.1971 suit property has been allotted to her and she is absolute owner of the said property and other family members of late K.J.V.Naidu including defendants-1 to 7 do not have any right, title or interest in the suit property. She further contended that in O.S.No.14/1981 Sub Court, Chittor had upheld partition and confirmed in appeal and was affirmed by the High Court and Hon'ble Apex Court and as such, it is binding on the parties. She further submitted that other 91 heirs of late KJV Naidu have sold the properties allotted to their share under the said partition and as such, suit filed by plaintiff is frivolous, vexatious and sought for dismissal of the suit.
40. Defendants-9 and 10 in their written statement contended that first defendant and his deceased father K.J.V.Naidu had sold their 1/3rd share in the suit property by demarcating the property in favour of the said defendants and on the basis of said sale in their favour, they got the property bifurcated and it has been numbered as 54/1 and submitted that they have no objection for decreeing the suit subject to the condition that at the time of drawing up of the final decree, property bearing No.54/1 be allotted to them in equity.
41. Defendant No.1 filed separate written statement which was virtually on the lines of written statement filed by defendants-9 and 10 and submitted that he had purchased undivided interest of 6th defendant for Rs.16,000/- under a registered sale deed dated 13.06.1974 and he is in 92 possession of suit property and he also prayed for allotment of his share after suit being decreed.
42. Defendant-12 filed written statement contending that he had purchased the undivided interest of 4th defendant under registered sale deed dated 02.08.1974 and conceded the claim of plaintiff and submitted no objection for suit being decreed and also sought for allotment of his share. Likewise, 13th defendant filed written statement claiming to have purchased share of 5th defendant for Rs.7,250/- on 02.08.1974 and sought for partition by metes and bounds.
43. Defendant No.14 filed his written statement contending that he is a tenant in occupation of the portion of property under 8th defendant since 1970 and contended he has obtained connection of electricity and water with the consent of 8th defendant and his tenancy has been regularized by the Rent Controller.
44. Defendants-31 to 35 filed common written statement stating that KJV Naidu had filed suit against his 93 sons and wives in O.S.No.1/1952 in Sub-Court, Chittor for partition of his properties and during the pendency of the said suit, he expired and same was continued by his legal heirs which suit was later transferred to Sub-Judge, Madanapalli and renumbered as O.S.No.1/1968 and suit was decreed as per which first defendant had 24/54th share and each of three wives of KJV Naidu had 1/54th share and defendants-6 and 8 had 3/54th share and defendants-2 and 3 had 21/54th share. It was further contended that said judgment and decree passed in O.S.No.1/1968 was confirmed by High Court of Andhra Pradesh in A.S.No.369/70 and submitted that 31st defendant had purchased 10 ½ /54th share from second defendant under sale deed dated 13.07.1981. Similarly, defendant No.32 has purchased 3/54th share from 3rd defendant under sale deed dated 13.07.1981 and defendants-33 to 35 have purchased 7 ½ /54th share from third defendant under sale deeds dated 07.08.1981, 23.10.1991 and 24.10.1991 respectively. Averments made by 8th defendant in written statement came to be denied by them.
94
45. On the basis of pleadings of the parties, trial Court framed the following issues for its adjudication:
(1) Had the 7th defendant 1/18th share in the suit schedule property to sell the plaintiff?
(2) Has plaintiff become owner of 1/18th share in the suit schedule property by means of the suit sale deed dated 20.05.1974 executed by the 7th defendant in plaintiff's favour?
(3) Is the suit sale deed dated 20.05.1974 obtained by plaintiff from 7th defendant fraudulent and collusive and does not confer on plaintiff any right?
(4) Is the 8th defendant absolute owner in possession of suit schedule property?
(5) Had defendant No.1 and his deceased father Ramappa Naidu no right to or share in the suit schedule property to convey to defendants 9 and 10 under the sale deed dated 20.05.1972? And have defendants 9 and 10 acquired no right under said sale deed?
(6) Have defendants 9 and 10 purchase1/3rd of suit schedule property from first defendant and his deceased father under sale deed dated 20.05.1971?
95(7) Has the 4th defendant sold her 1/12th share in the suit schedule property on 02.03.1974 to 12th defendant?
(8) Is the sale deed dated 02.08.1974 sham, false, fraudulent and of no consequence?
(9) Has the 5th defendant sold her 1/12th share in the suit property to 13th defendant on 30.05.1974?
(10) If so, is the sale deed dated 30.05.1974, false, fraudulent and is of no consequence?
(11) Has the 6th defendant sold his share to 11th defendant on 30.05.1974? If so, is the said sale false, fraudulent and of no consequence?
(12) Has the 6th defendant sold his share to 11th defendant on 30.05.1974? If so, is the said sale false, fraudulent and is of no consequence?
(13) Has the 5th defendant sold his share to 13th defendant on 02.08.1974? If so, is the said sale deed false, nominal and fraudulent?
(14) Have defendants 8 and her mother Rani Puttamma executed release deed on 16.01.1951 in favour of late Raja Venkatapathi Naidu? If so, what is its effect and consequence on the alleged right of 8th defendant in the suit property?
96(15) Is the adverse possession pleaded by 8th defendant true?
(16) Is the suit barred by adverse possession and limitation?
(17) Was there a family partition and if so, did 8th defendant get the suit property of her share?
(18) Had defendants 9 and 10 filed O.S.68/75 against the defendant No.8 in the Munsiff Court and was it dismissed and if so, what is the legal effect of such dismissal on the present suit?
(19) Had the 8th defendant right to create tenancy in favour of 14th defendant?
Is the tenancy pleaded by 14th defendant binding on defendants 9 to 13?
(20) Are defendants 9 to 13 entitled to claim partition and separate possession of their shares also paying court fee in this suit?
(20A) Whether defendants 31 to 35 have bonafide purchased undivided share for value from defendants 2 and 3 as alleged?
(20B) Whether defendants 31 to 35 are entitled to 21/54th share as claimed?
(21) To what reliefs if any, are plaintiff and defendants 9 to 13 entitled in this suit?
(22) What order? What decree?
97
Additional Issues framed on 3.11.92 (23) Does defendant No.8 prove collusion between plaintiff and 10th defendant on his legal heirs?
(24) Does defendant No.8 prove partition dated 4.8.1971 and confirmation of the same in OS.14/1981 by Chittoor Sub Court, Additional District Court, Chittoor, Honourable High Court of Andhra Pradesh and Honourable Supreme Court and he becoming absolute owner of premises No.54, Benson Cross Road, Benson Town, Bangalore?
(25) Does defendant No.8 prove sale deed dated 15.7.1985 by K.J.Nagabhushana Rao to B.Bharathi a portion of No.128, Palace Road, 14th Block, Kuppam Village and another portion of same property being sold by defendant No.1 and his brother in favour of L.Venugopal by sale deed dated 2.4.92?
Additional Issue framed on 15.7.82 Whether defendants 31 to 35 are entitled to an allotment of 21/54 share in the suit property in equity by reason of purchase from defendants 2 and 3?
Additional Issues:
(1) Whether the suit of the plaintiff is not maintainable under law?98
(2) Is the suit for partial partition by a stranger plaintiff against the defendant is not maintainable?"
46. Plaintiff got himself examined as P.W.1 and examined two witnesses on his behalf as P.W.2 and 3 and in all produced six documents which was got marked as Exs.P-
1 to P-6. 8th defendant, who was contesting the suit, examined her husband as D.W.1. 9th defendant was examined as D.W.2. 11th defendant as D.W.3, 12th defendant as D.W.14, 31st defendant was examined as D.W.5. Power of attorney holders of defendants-32, 33, 35 were examined as D.Ws.6 to 8. Third defendant got himself examined as D.W.9 and one witness was examined as D.W.10. On behalf of defendants, 102 documents were produced and they were got marked as Exs.D-1 to D-102.
47. After appreciating the evidence both oral and documentary and on consideration of oral arguments advanced by learned Advocates, trial Court by its judgment and decree dated 19.01.2002 dismissed the plaintiff's suit as also claim of defendants-9 to 13 and defendants-31 to 35 for partition by metes and bounds with costs.99
FINDINGS RECORDED BY THE TRIAL COURT:
48. Issues No.3, 6 to 13 and 20A relates to the purchase of different shares in the "Kanagundi House" by plaintiff, defendants 9 to 13 from defendants 7, 4, 5, 6 and as such they were taken up together by trial court and was held that validity of these sale deeds would depend upon the question as to whether defendant No.8 is the absolute owner of "Kanagundi House" or not.
49. Issues 15 and 16 relates to adverse possession pleaded by 8th defendant and suit being barred by limitation came to be adjudicated and answered in the negative on the ground that defendant has set up title in herself and under these circumstances she cannot be permitted to put forth the plea of adverse possession.
50. Issues 4 and 14 relates to the ownership of Suit Property claimed by 8th defendant, since Smt.Rani Puttamma and her daughter 8th defendant had executed an agreement dated 16.01.1951. Said issues came to be adjudicated and were answered in the affirmative namely it was held that 8th 100 defendant is the absolute owner of "Kanagundi House" and she along with her mother Smt.Rani Puttamma Nagati had entered into an agreement dated 16.01.1951(Exhibit -P-2) and by virtue of said agreement dated 16.01.1951 having been executed by them in favour of late Sri.K.J.V.Naidu Smt.Rani Puttamma had become the absolute owner of the "Kanagundi House" by virtue of section 14(1) of Hindu Succession Act, 1956 (Act 30 of 1956) which came into effect from 17.06.1956 and sub-section (2) of section 14 had no application and it was not a right created for first time.
51. Issues 17 and 24 which relates to partition deed dated 04.08.1971 whereunder there was alleged partition of joint family properties and confirmation of the same in O.S.14/1981 on the file of sub-court Chittor, High Court of Andhra Pradesh and Hon'ble Supreme Court and as such these issues came to be answered in the negative by concluding that 8th defendant had failed to prove the family partition on the ground that there were various proceedings pending before courts in respect of other properties and no reference has been made in the alleged partition deed dated 101 04.08.1971 Exhibit D-2 and the said document having not been registered and it has come up in unnatural circumstances and created a doubt about its authenticity and it is not a document under which the past transaction is reduced into writing and accordingly these two issues came to be answered in the negative.
52. Other issues formulated, adjudicated and answered by the trial court are all incidental to issues 4 and 14 and as such they are delved upon in these appeals and the finding given on these two issues by referring to the laborious arguments would have a direct bearing on these issues also, as such issues 4 and 14 together with the incidental points canvassed by respective learned advocates as already noticed herein above is being analysed and scrutinised with reference to the material evidence available on record and answered accordingly herein below.
53. Plaintiff filed a suit for partition and separate possession of 1/18th undivided share in the suit schedule property contending interalia that he had purchased the same under a registered sale deed dated 20.05.1974. It was 102 also contended that defendant Nos.9 to 13 and defendants 31 to 35 are purchasers of various shares in suit schedule property from defendants 1 to 6 and 8. Plaintiff purchased the suit schedule property from 7th defendant - daughter of Sri KJV Naidu who was the original propositus. He had five wives sriyuths Eshwaramma, Venkatalakshmiamma, Rani Puttamma Nagathivaru, Suryanarayanamma and K.G.Lakshmidayamma. Said KJV Naidu expired on 30.10.1956 leaving behind three widows namely defendants 4 and 5 and Smt.Rani Puttamma Nagati (mother of 8th defendant). The said Sri. K.J.V.Naidu had two sons Sri.K.J.Ramappa Naidu and Sri.K.J.Subbarayulu Naidu who were also not alive at the time of the institution of suit. First defendant is son of Sri.K.J.Ramappa Naidu and defendants 2 and 3 are son and widow of K.J.Subbarayulu Naidu.
Defendants 6, 7 and 8 are the daughters of Sri.K.J.V.Naidu.
For the purposes of reference and for understanding the relationship of the parties, the Geneology tree of the family of KJV Naidu is extracted hereinbelow:103
RAJA VENKATPATHI NAIDU (Died on 30.10.1956) Wives ESWARAMMA VENKAT RANI PUTTAMMA SURYA K.J.LAKSHMI LAKSHMIAMMA NAGATHI VARU NARAYANAMMA DAYAMMA (Dead) (Dead) (Dead) (D4) (No issues) No issues Sold her share to (D5) B.V.Nagaraju (D 12) K.J.Subbarajalu Naidu ---------------------- -------------------------
(son) (Dead) K.J.Jayalakshmi K.J. Ramappa Naidu M.Shakunatala Devi N RukminiDevi (Daughter)(D8) (Son) (Dead) (Daughter) (D7) (Daughter)(D6) K.J.Anasuya Devi ---------------------- (Wife) (D3) K J Muralidhar Sold the property to (D1) 2 daughters 1 son B.M.Byrappa (Plaintiff)
----------------------------------
K J Nagabhushan Naidu Veenadhari sold the property on 25.04.1972 to
(Son) (D2) (Dead)
B.C.Hanumanthappa
B.C.Ganganna
104
Learned Advocates appearing for the parties have raised certain issues as preliminary points for substantiating their respective claims, those contentions are examined, considered, adjudicated and answered under the following headings:
REG: NON FRAMING OF AN ISSUE:
54. It has been contended by plaintiffs that defendant No.8 in her written statement at paragraph 10 has taken a specific plea that her mother had not executed the agreement or deed dated 16.01.1951 Ex.P-2 and as such trial court could not have relied upon the said deed for decreeing the suit. Even otherwise he would contend that trial court ought to have framed an issue in this regard and an opportunity ought to have been extended to the plaintiff and other contesting defendants to prove the said issue and in the absence thereof trial court could not have dismissed the suit by relying upon the said deed dated 16.01.1951 Exhibit P-2. Though it has been contended in reply that said denial is not absolute or outright denial but it is a 105 qualified denial, I am of the considered view that said contentions would have no bearing whatsoever in the background of the prayer sought for in the suit which was admittedly based on the very same document and the plaintiff and other defendants sailing along with the plaintiff also had based their claim on the strength of the said deed Exhibit P-2 they cannot be heard of contending that said document could not have formed basis for dismissing the suit by trial Court relying upon said document. Yet, another factor which requires to be noticed is that an issue infact has been framed by the trial court namely issue No.14, which reads as under:
"Have defendants 8 and her mother Rani Puttamma executed release deed on 16.01.1951 in favour of late Raja Venkatapathi Naidu? If so, what is its effect and consequence on the alleged right of 8th defendant in the suit property?"
55. This issue is framed by the trial court obviously on the basis of the averments made in the plaint and particularly at paragraph IX which reads as under: 106
"During the life time of late Raja K.J.Venkatapathi Naidu, the 8th defendant her mother Rani Puttamma Nagati, executed an agreement dated 16.01.1951 relinquishing all their rights. The 8th defendant retained the right to live in the suit property only till her marriage and her deceased mother retained to live in suit property till her death. The 8th defendant and her mother had no more rights than what is stated in clauses (d) to (g) of paragraph 7 of the said agreement. A photostat copy of which is filed herewith".
(Emphasis supplied)
56. When other defendants are sailing with the plaintiff have themselves raised such a plea and when they rely upon the said document and on the basis of said plea an issue having been framed by the trial court they cannot now turn around and contend that in view of said averment made in the plaint having been denied by the defendant, trial court could not have relied upon Exhibit P-2 to dismiss the suit. The parties were at `ad idem'. Issue No.14 framed relates to Exhibit P-2. Both parties have tendered evidence on this issue and on the basis of the said admitted plea put forward 107 by the plaintiff and defendants 9 to 13 and all other material evidence available on record as also the attendant circumstances, trial court has rightly relied upon the said document to examine as to whether the said document is to be looked into or not. It can also be noticed at this juncture that plaintiff knew that without proving execution of Ex.P-2 and its contents thereof, he will not be able to succeed in the suit as such, he examined a witness on his behalf by name Sri K.G.Venkatapathy Naidu as P.W.2. It is this witness who has identified the agreement dated 16.01.1951 which was marked as Ex.P-2. He has also identified the signatures of the parties to the said document. Infact, D.W.1 has also been cross examined on Ex.P-2 on 26.08.1997 and he has identified the signatures of Smt.Rani Puttamma and 8th defendant.
57. Where the parties go to the trial knowing fully well the rival contentions and have tendered evidence not only in support of their contentions but also by denying the case of other side, it cannot be said that non framing of a 108 specific issue is fatal to the case or it would vitiate the proceedings and conclusion arrived at.
58. At this juncture it can be noticed that under Order XIV Rule 1 framing of issues would arise when a material proposition of fact or law is affirmed by one and denied by other and issues can be of two kinds namely; (a) issues of fact (b) issues of law. And Order XIV Rule 3 empowers the court to frame the issues under three circumstances namely:
(a) Allegations made on oath by the parties, or by any persons present on their behalf, or made by the pleaders of such parties;
(b) Allegations made in the plaint or in answers to interogatory delivered in the suit;
(c) The contents of documents produced by either party.
Thus, when the court finds from the material pleadings that it would give rise for an issue, it would not consider the validity or correctness of the contentions in the pleadings at that stage. A finding is reached on appreciation of evidence 109 mere failure to frame an issue does not vitiate the judgment particularly when parties have understood the pleadings and tendered their evidence in support or opposing such plea. As such non-framing of an issue recedes to background.
59. In this regard the learned counsel appearing for the appellants has contended that in view of 8th defendant having raised a plea in written statement denying the execution of deed dated 16.01.1951 Exhibit P-2 in reply to the contention raised by the plaintiff in paragraph 9 whereunder it was specifically contended 8th defendant and her mother had executed an agreement dated 16.01.1951 the trial court ought to have framed the issue, since trial court relied upon Exhibit P-2 to arrive at a conclusion that 8th defendant and her mother became the absolute owner of "Kanagundi House" as per section 14(1) of the Hindu Succession Act and in support of his submission he has relied upon the Judgment of Hon'ble Apex Court in the case of Smt.G.Rama Vs T.Seshagiri Rao (deceased by LRs) reported in 2008 (5) AIR Kar (R) 176 whereunder it has been held as under:
110
"14. In response, learned counsel for the respondent submitted that the factual scenario needs to be noted. On 5.6.1963 the original plaintiff-Seshagiri and Vasudeva Murthy who was his uncle and the father-in-law of the defendant/ appellant purchased the property jointly. They were partners in a partnership firm which was dissolved on 16.8.1971. On 8.3.1981, portion of the land purchased jointly by Sheshagiri and Vasudeva Murthy was sold to one Puttann. There was no challenge to it. On 17.4.1989 Vasudeva executed the release deed for consideration of 20,000/- in favour of Sheshagiri. On 4.1.1990 the suit relating to the present dispute i.e. OS No.188 of 1990 was filed. Initially in the written statement filed, defendant took the stand that the property in question was joint family property and claimed half share. Subsequently, the written statement was amended. Plea was taken that she was permitted to stay in lieu of maintenance and so the property was of absolute property and in terms of Section 14(1) of the Act. On 19.8.1991 O.S.No.4949 of 1991 i.e. suit for partition was filed claiming the partition. There is no challenge to the release deed dated 17.4.1989 in the suit for partition. Appellant took the stand that it was a joint family property and, therefore, he had half share. No specific issue regarding the nature of the property was framed. There was no issue relating to section 14(1) of the Act and there was also no evidence led in that regard. Strangely the trial court treated the suit as one for partition though the suit was for declaration. There was no counter-claim filed by defendant- Rama. It is pointed out that Vasudeva Murthy was alive when the trial of the suit proceeded. Before the High court an under-taking was given to vacate the premises which was accepted subject to filing of an undertaking which was in 111 fact filed on 21.5.2004 after delivery of the judgment on 7.1.2004. Two years after a review petition was filed on 10.8.2006 and the same was withdrawn on 30.8.2006."
"15. As rightly contended by learned counsel for the respondent there was no issue framed regarding Section 14 of the Act. Even no evidence was led specifically to show that in lieu of maintenance she was permitted to possess the property."
"20. In Sharad Subramanyan V.Soumi Mazumdar & Ors. [2006(8) SCC 91] this court observed as follows"
"Mr.Bhaskar P.Gupta, learned Senior Counsel for the respondents, rightly distinguished all these cases, as it was clearly proved therein, that the properties had been given to a female Hindu, either in recognition of or in lieu of her right to maintenance under the Shastric Hindu Law or under the Hindu Adoptions and Maintenance Act, 1956. Consequently, these were instances where the dispositions of property, albeit as a limited estate, would blossom into a full interest by reason of sub- section (1) of Section 14 of the Act.
Learned Counsel further contended that there is no absolute rule that all properties demised to a female Hindu were necessarily in recognition of or in lieu of her right to maintenance. It was possible, even after the Act came into force, to create a limited estate by reason of a gift or Will. Such a situation would fall within the ambit of sub-section (2) of Section 14 of the Act as long as it was not in recognition of or in lieu of a right to maintenance under the Shastric Hindu Law or under a statute. Learned 112 Senior Counsel relied on Section 30 of the Act, which recognises the right of a Hindu to dispose of self-acquired property by Will. Mr.Gupta relied on the judgment of this Court in Bhura and Ors. V.Kashi Ram (1994(2) SCC 111) which was also a case of limited estate conferred on a female Hindu by a Will. This Court held that, upon a proper construction of the Will, the bequeathal in favour of the female Hindu was clearly indicative of:.....the testator's intention of only creating a life interest in her and nothing more and the various expressions used therein are indicative of and are reconcilable only with the hypothesis that the testator was creating an estate in favour of ....(the female Hindu)...only for her lifetime and not an absolute estate. [(1994) 2 SCC 111] Thus, in view of the fact that there were no indications, either in the Will or externally, to indicate that the property had been given to the female Hindu in recognition of or in lieu of her right to maintenance, it was held that the situation fall within the ambit or sub-section (2) of Section 14 of the Act and that the restricted life estate granted to the female Hindu could not be enlarged into an absolute estate. Learned Counsel for the respondents relied strongly on this judgment and contended that there was no proposition of law that all dispositions of property made to a female Hindu were necessarily in recognition of her right to maintenance whether under the Shastric Hindu Law or under the statutory law. Unless the said fact was independently established to the satisfaction of the court, the grant of the property would be subject to the restrictions contained therein, either by way of a transfer, gift or testamentary disposition. Learned Counsel also distinguished the three cases cited by the learned Counsel for the appellant that in 113 each, the circumstances clearly indicated that the testamentary disposition was in lieu of the right of maintenance of the female Hindu. We think that this contention is well merited and needs to be upheld."
60. In the above case factual matrix was entirely different namely, there was no specific issue raised regarding the nature of property. The trial court treated the suit as one for partition though the suit was for declaration. In that view of the matter I am of the considered view that said judgment would not be of any assistance to the appellants since in the instant case the plaintiff himself has raised a plea in paragraph 9 of the plaint (though denied by the defendant). On the basis of said plea, issue No.14 as extracted hereinabove was framed. It is to be further noticed that plaintiff himself has produced the said deed dated 16.01.1951 which came to be marked as Exhibit P-2 and on the strength of the said document evidence have been tendered by both parties and the recitals in the said document has been relied upon by the plaintiff and as such it is too late in the day to contend that trial court should not have examined the said document that too without framing 114 an issue. As such the exercise undertaken by the trial court in this regard cannot be found fault with and contention raised in this regard by appellant deserves to be rejected and accordingly it is rejected.
REG: RIGHT OF RESIDENCE AND MAINTENANCE
61. The pivotal issue in the instant case revolves around Exhibit P-2 namely, an agreement dated 16th January, 1951 executed by Smt.Rani Puttamma Nagati (third wife of Sri.K.J.V.Naidu) and her daughter Smt.Jayalakshmi (8th defendant) in favour of Sri. K.J.V.Naidu i.e., husband of Rani Puttamma and father of 8th defendant whereunder the relationship between the parties therein is admitted. In order to provide separate maintenance and residence for them in terms of the decree passed in O.S.28/1930 on the file of the sub-court, Chittor as modified by decree of the High Court, Madras, in A.S.370/1931 and as further modified by the compromise decree in O.S.20/1948 on the file of the sub-court, Chittor, said agreement has been entered into between the parties. 115
62. The learned advocates appearing for the parties have relied upon the recitals in the said deed to buttress their respective contention namely, appellants have contended that under the said document right of residence is not given and it is only a right of maintenance and these two are separate, independent and distinct and as such sub- section (2) of Section 14 is attracted and not sub-section (1) of Section 14. Per contra, learned senior counsel appearing for 8th defendant has asserted that plaintiff himself has produced the said document and recitals therein would clearly go to indicate that in recognition of a pre-existing right of the third wife of Sri.K.J.V.Naidu and to provide for separate maintenance and residence to her said deed came to be executed and when the property is acquired by a female in lieu of her maintenance it would fall under section 14(1) and contends that in the instant case Smt.Rani Puttamma Nagati had a pre-existing right to maintenance under the decree passed by a Competent Court and as such the contention of the appellants has to be negatived. 116
63. In order to consider the rival contentions raised by the respective learned advocates it would be necessary and apt to extract the very recitals of the said agreement Ex.P-2 which would be relevant for the purposes of adjudication of the contentions raised and as such they are extracted herein below:
"3. WHEREAS the second and the third party have been living together, and away from the first party, and the first party has been providing separate - maintenance and residence for them in terms of the decree in O.S.No.28 of 1930 on the file of the Sub Court, Chittoor, as modified by the decree of the High Court, Madras in A.S.No.370 of 1931 and as further modified by the compromise decree in - O.S.No.20 of 1948 on the file of the Sub Court, Chittoor;
6. WHEREAS the second and the third party have requested the first party to make a combined provision for their maintenance and residence as hitherto, and to grant and assign to them, as and for the maintenance of the second party till her life time and as and for the maintenance of the third party till her marriage, a share of the compensation money payable by the Government in respect of the Impartible Estate of Kangundi taken over by the Government under the Madras Act XXVI of 1948 as subsequently amended, and the first party has agreed thereto;117
"7. NOW the parties hereto mutually agree with each other as follows:--
(a) The first party hereby grants and assigns to the second and the third party, and the second and the third party shall in virtue of the said grant and assignment be entitled to an one fourth share in the first party's share of the amounts to be deposited by the Government in the Office of the Estates Abolition Tribunal, as and by way of payment of advance compensation, final compensation, additional compensation and Interim payments in terms of and under the appropriate provisions of the Madras Act XXVI of 1948 as subsequently amended, in respect of the Impartible Estate of Kangundi, as described notified and taken over by the Government on the 7th September, 1950, under G.O.Ms.No.2216 Revenue dated 11-8-
1950.
(e) The second party till her life time and the third party till her marriage shall have a right to reside in the Bungalow and premises known as "Kangundi House" in Benson Cross Road, Bangalore Cantonment, Subject to the payment by them of the Municipal and Local taxes and rates thereon; provided that in the event of the second and the third party being dispossessed of any part of the said bungalow and premises by the son, and grandson by the predeceased son of the first party or their successors-in-interest successfully claiming right to share in the same, the second and the third party's right to residence shall thenceforth be confined to the first party's share in the said bungalow and premises subject to the payment by them of the appropriate share of the Municipal and Local taxes and rates thereon; and the second and the third party shall not by reason of such 118 dispossession be entitled to any further or other additional provision for their residence or for the payment of any sum, either in a lump or periodically in lieu thereof, or on the said account. The second and the third party shall have no right to alienate or encumber the said Bungalow and premises or any portion thereof in any manner whatsoever and on the demise of the second party the said bungalow and premises or the first party's share therein, as the case may be, shall revert to and form part of the estate of the first party.
64. A reading of clause 3 extracted hereinabove would indicate that 8th defendant and her mother were living together at "Kanagundi House" even prior to and also as on 16.01.1951 i.e., away from the first party therein i.e., Sri.K.J.V.Naidu. It would also clearly indicate that first party had been providing separate maintenance and residence to them in terms of the decree passed in O.S.28/1930 and thereafter modified in appeal A.S.No.370/1931 by High Court, Madras and further modified by compromise decree in O.S.20/1948. It would also indicate that properties scheduled to the Compromise Petition was part of the compromise decree passed in O.S.No.20/1948 which formed part of impartiable estate of Sri.KJV Naidu. Obviously when such properties are part of a 119 decree, a right is vested to the party to enforce it. However, those properties came to be taken over by the Government of Madras under the provisions of Madras Estates (Abolition and Conversion into Ryotwari) Act XXVI of 1948 w.e.f 07.09.1950. This subsequent event perforced the parties to enter into an arrangement and as such 8th defendant and her mother requested late Sri.K.J.V.Naidu to make a combined provisions for their maintenance and residence as was provided thereto. Thus, right of 8th defendant and her mother over the suit schedule property did not emerge for the first time under Ex.P-2 and it was a pre-existing right which blossomed and got crystalised through deed dated 16.01.1951 Ex.P-2.
65. A right of maintenance would include food, clothing and shelter. In other words right of maintenance also includes right of residence. One cannot be divorced from the other. Even under the deed Exhibit P-2 it is agreed to by the first party therein namely deceased Sri.K.J.V.Naidu that he had been providing his third wife and daughter maintenance and residence in terms of the compromise 120 decree passed in O.S.No.20/1948. When a property is given in lieu of maintenance for the wife to reside therein, it would fall within the four corners of right of maintenance which also includes right of residence. At this juncture it would be appropriate to note the Judgment of the Hon'ble Supreme Court in the case of Mangat Mal (dead) and anr Vs Smt.Punnidevi (dead) and others reported in AIR 1996 SC 172 wherein it has been held as under:
"18. Maintenance, as we see it, necessarily must encompass a provision for residence. Maintenance is given so that the lady can live in the manner, more or less, to which she was accustomed. The concept of maintenance must, therefore, include provisions for food and clothing and the like and take into account the basic need of a roof over the head. Provision for residence may be made either by giving a lump sum in money, or property in lieu thereof. It may also be made by providing, for the course of the lady's life, a residence and money for other necessary expenditure. Where provision is made in this manner, by giving a life interest in property for the purposes of residence, that provision is made in lieu of a pre-existing right to maintenance and the Hindu lady acquires far more than the vestige of title which is deemed sufficient to attract Section 14(1)."
"19. We are supported in the view that we take by Mulla's Hindu Law (Sixteenth Edition) which sets out the position in law prior to the Act. The Manager of a joint Mitakshara family is under a 121 legal obligation to maintain all male members of the family, their wives and their children. On the death of any one of the male members he is bound to maintain his widow and his children. The obligation to maintain these persons arises from the fact that the Manager is in possession of the family property (para 543). An heir is legally bound to provide, out of the estate which descends to him, maintenance for those persons whom the late proprietor was legally or morally bound to maintain (para 544). A wife is entitled to be maintained by her husband, whether he possesses property or not. When a man with his eyes open marries a girl accustomed to a certain style of living, he undertakes the obligation of maintaining her in that style (para 554). A widow who does not succeed to the estate of her husband as his heir is entitled to maintenance out of his separate property as well as out of property in which he was a coparcener at the time of his death (para 559). A Hindu widow is, in the absence of special circumstances, entitled to reside in the family dwelling house in which she lived with her husband (para 562). The maintenance to be allowed to a widow should be such an amount as will enable her to live consistently with her position as a widow, with the same degree of comfort and reasonable luxury as she had in her husband's house, unless there are circumstances which affect, one way or the other, her mode of living there. In determining the amount of maintenance the Court should have regard, inter alia, to the provision and status of the deceased husband and of the widow and the reasonable wants of the widow, including not only the ordinary expenses of living, but what she might reasonably expend for religious and other duties incidental to her station in life (para 566). Where an undivided family consists of two or more 122 males, related as father and son or otherwise, and one of them dies leaving a widow, she is entitled to reside in the family dwelling house in which she lived with her husband. If the house is sold by the surviving coparceners without necessity, the sale does not affect her right, and the purchaser cannot evict her until another suitable residence is found for her (para 573). A widow who is entitled to maintenance may sue, inter alia, for a charge on a specific portion of her husband's estate for her maintenance and residence (para 579)."
"20. The Hindu Adoption & Maintenance Act, 1959, was enacted to amend and codify the law relating to adoptions and maintenance among Hindus, and it defines maintenance in Section 3(d) to include "(i) in all cases, provision for food, clothing, residence, education and medical attendance and treatment."
(Emphasis supplied)
66. As noticed from the above dicta laid down by the Apex Court maintenance must necessarily encompass a provision for residence. If a Hindu women was put in possession of a property pursuant to or in recognition of a right to maintenance and said right of residence conferred therein cannot be divorced from the word `maintenance' and it cannot be read disjunctively. But on the other hand both these words are required to be read conjunctively. In the instant case Exhibit P-2 would indicate that a specific 123 provision for separate residence had already been made to 8th defendant and her mother by late Sri. K.J.V.Naidu as could be seen from the recital in clause 3 which is to the effect "the first party has been providing separate maintenance and residence for them in terms of the decree in O.S.28/1930......." Which would clearly indicate that said residential accommodation had been provided to them in lieu of maintenance. In view of the same contention of Sri.Shanmukhappa, learned counsel appearing for appellants that right of maintenance is distinct from right of residence cannot be accepted.
In the background of aforestated discussion let me adjudicate the points formulated hereinabove. RE: POINT NO.1 AND 2:
67. Appellants have contended that Smt.Rani Puttamma was conferred right of residence in "Kanagundi House" for the first time under Ex.P-2 and as such it would fall under sub-section (2) of Section 14 of Hindu Succession Act, 1956. Whereas 8th defendant contended that Smt.Rani Puttamma Nagati had a pre-existing right in suit schedule 124 property and as such her claim would fall under section 14(2) of the Act. Since section 14(1) and 14(2) of the Hindu Succession Act has been pressed into service by 8th defendant and appellants respectively to substantiate their respective contentions and to examine the same it would be necessary to extract section 14 of the Act. As such section 14 of Hindu Succession Act, 1956 is extracted herein below:
14. Property of a female Hindu to be her absolute property.--(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation.--In this sub-section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, 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.
125(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.
68. A reading of sub-section (1) of Section 14 would indicate that 'any property possessed' by a wife or a widow and given to her in lieu of her maintenance, would ripen into full estate after coming into force of Hindu Succession Act and she becomes absolute owner thereof. Any property possessed by a Hindu Female irrespective of how it was acquired becomes her absolute property after coming into force of the Act by operation of Section 14(1). Sub-section (1) has to be read along with the Explanation. When so read provisions of sub-section (1) can be said to be applicable if any of the conditions contained in Explanation is attracted to the facts of the case. The section has to be read as a whole and it would depend upon the facts of each case. Whether in a given case the claim is covered under sub- 126 section (1) or sub-section (2) varies from case to case. The crucial words in sub-section (1) of Section 14 are:
"possessed" and "acquired". These words has been used in its widest possible connotation and it may be either actual or constructive or any form recognised by law. The words used in sub-section (1) namely "any property possessed by a female Hindu, whether acquired before or after the commencement of this Act" was the subject matter of consideration by the Hon'ble Apex Court in the case of Gummalapura Taggina Matada -Kotturu Swamy Vs Setra Veeravva and others reported in AIR 1959 SC 577 and it has been held as under:
"11. In the case before us, the essential question for consideration is as to how the words "any property possessed by a female Hindu, whether acquired before or after the commencement of this Act " in S. 14 of the Act should be interpreted. Section 14 refers to property which was either acquired before or after the commencement of the Act and that such property should be possessed by a female Hindu. Reference to property acquired before the commencement of the Act certainly makes the provisions of the section retrospective, but even in such a case the property must be possessed by a female Hindu at the time the Act came into force in order to make the provisions of the section applicable. There is no 127 question in the present case that Veeravva acquired the property of her deceased husband before the commencement of the Act. In order that the provisions of s. 14 may apply to the present case it will have to be further established that the property was possessed by her at the time the Act came into force. It was the case of the appellant that the estate of Veerappa was in actual possession of the second defendant and not Veeravva at the relevant time. On behalf of the respondent it was urged that the words "possessed by" had a wider meaning than actual physical possession, although physical possession may be included in the expression. In the case of Venkayamma v. Veerayya (S) AIR 1957 Andh-Pra 280; Viswanatha Sastri J. with whom Satyanarayana Raju J. agreed, expressed the opinion that "the word 'possessed' in S.14 refers to possession on the date when the Act came into force. Of course, possession referred to in S.14 need not be actual physical possession or personal occupation of the property by the Hindu female- but may be possession in law. The possession of a licensee, lessee or a mortgagee from the female owner or the possession of a guardian or a trustee or an agent of the female owner would be her possession for the purpose of S.14. The word "possessed" is used in S.14 in a broad sense and in the context possession means the state of owning or having in one's hands or power. It includes possession by receipt of rents and profits". The learned Judges expressed the view that even if a trespasser were in possession of the land belonging to a female owner, it might conceivably be regarded as being in possession of the female owner, provided the trespasser had not perfected his title. We do not think that it is necessary in the present case to go to the extent to which the learned Judges 128 went. It is sufficient to say that "possessed" in S. 14 is used in a broad sense and in the context means the state of owning or having in one's hand or power. In the case of Gostha Behari v. Haridas Samanta, (S) AIR 1957 Cal 557 at p 559, P. N. Mookherjee J. expressed his opinion as to the meaning of the words "any property possessed by a female Hindu" in the following words:-
"The opening words in" property possessed by a female Hindu obviously mean that to come within the purview of the section the property must be in possession of the female concerned at the date of the commencement of the Act. They clearly contemplate the female's possession when the Act came into force. That possession might have been either actual or constructive or in any form recognised by law, but unless the female Hindu, whose limited estate in the disputed property is claimed to have been transformed into absolute estate under this particular section, was at least in such possession, taking the word " possession" in its widest connotation, when the Act came into force, the section would not apply."
In our opinion, the view expressed above is the correct view as to how the words "any property possessed by a female Hindu" should be interpreted. In the present case if the adoption was invalid, the full owner of Veerappa's estate was his widow Veeravva and even if it be assumed that the second defendant was in actual possession of the estate his possession was merely permissive and Veeravva must be regarded as being in constructive possession of it through the second defendant. In this situation, at the time when the Act came into force, the property of Veerappa must be regarded in law as being possessed by Veeravva."
129It has been held in the above judgment the words "any property possessed by a female Hindu whether acquired before or after commencement of the Hindu Succession Act refers to possession on the date when Act came into force. As to whether `physical possession' alone has to be included in the expression `possession' was analysed and held that possession referred to in section 14 need not be actual physical possession or personal occupation of the property by the Hindu female but may be possession in law.
69. Hon'ble Apex Court, in the case of Sudh Ram and another V/s Gauri Shankar and another (AIR 1968 SC
365) has held as under:
"5. We are unable to agree with Mr. Chatterjee that restrictions on the right of the male members of a Hindu joint family form the bed- rock on which the law relating to joint family property under the Hindu Law is founded. Under the Law of the Mitakshara as administered in the territory governed by the Maharashtra and the Madras Schools and even in the State of Madhya Pradesh, a Hindu coparcener is competent to alienate for value his undivided interest in the entire joint family property or any specific property without the assent of his coparceners. A male member of a 130 Hindu family governed by the Benares School of Hindu Law is undoubtedly subject to restrictions qua alienation of his interest in the joint family property but a widow acquiring an interest in that property by virtue of the Hindu Succession Act is not subject to any such restrictions. That is however not a ground for importing limitations which the Parliament has not chosen to impose."
70. The above said Judgment was considered by the Apex Court in the case of Munnalal Vs Rajkumar reported in AIR 1962 SC 1493 and was held that in the light of the scheme of the Act and its avowed purpose it would be difficult without doing violence to the language used in the enactment, to assume that a right declared in property in favour of a person under a decree for partition is not a right of property. It further held that if under a preliminary decree the right in favour of a Hindu male is to be regarded as property the right declared in favour of a female Hindu must also be regarded as such. It has been further held that a right declared in a estate by a preliminary decree would be regarded as property, and there is nothing in the context in which section 14 occurs or in the phraseology used by the legislature to warrant the view that such a right declared in 131 relation to the estate of a joint family in favour of a Hindu widow is not a property within the meaning of Section 14. It has held by the Hon'ble Apex Court in the said judgment to the following effect:
"(15) This Court in G. T. M. Kotturuswami v.
Setra Veeravva, 1959 Supp (1) SCR 968: (AIR 1959 SC 577), held that "The word "possessed" in S. 14 is used in a broad sense and in the context means the state of owning or having in one's power". The preliminary decree declared that Khilonabai was entitled to a share in the family 'estate and the estate being with the family of which she was a member and in joint enjoyment, would be possessed by her. But counsel for Rajkumar submitted that under the preliminary decree passed in the suit for partition the interest of Khilonabai in the estate was merely inchoate, for she had a mere right to be maintained out of the estate and that her right continued to retain that character till actual division was made and the share declared by the preliminary decree was separated to her:
on her death before actual division the inchoate interest again reverted to the estate out of which it was carved. Counsel relied upon the judgment of the judicial committee in Pratpamull Agarwalla v. Dhanabati Bibi, 63 Ind App 33: (AIR 1936 PC 20) in support of his plea that under the Mitakshara law, when the family estate is divided a wife or mother is entitled to a share, but is not recognised as the owner of such share until the division of the property is actually made, as she has no pre-existing right in the estate except a right of maintenance. Counsel submitted that this rule of Hindu law was not 132 affected by anything contained in S. 14 of the Hindu Succession Act."
"16. By S. 14 (1) the Legislature sought to convert the interest of a Hindu female which under the Sastric Hindu law would have been regarded as a limited interest into an absolute interest and by the explanation thereto gave to the expression property the widest connotation. The expression includes property acquired by a Hindu female by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever. By S.14(1) manifestly it is intended to convert the interest which a Hindu female has in property however restricted the nature of that interest under the Sastric Hindu law may be into absolute estate. Pratap mull's case, 63 Ind App 33- (AIR 1936 PC 20) undoubtedly laid down that till actual division of the share declared in her favour by a preliminary decree for partition of the joint family estate a Hindu wife or mother, was not recognized as owner, but that rule cannot in our judgment apply after the enactment of the Hindu Succession Act. The Act is a codifying enactment, and has made far reaching changes in the structure of the Hindu law of inheritance, and succession. The Act confers upon Hindu females full rights of inheritance, and sweeps away the traditional limitations on her powers of dispositions which were regarded under the Hindu law as inherent in her estate. She is under the Act regarded as a fresh stock of descent in respect of property possessed by her at the time of her death. It is true that under the Sastric Hindu law, the share given to a Hindu widow on partition between her sons or her 133 grandsons was in lieu of her right to maintenance. She was not entitled to claim partition. But the Legislature by enacting the Hindu Women's Right to Property Act, 1937 made a significant departure in that branch of the law: the Act gave a Hindu widow the same interest in the property which her husband had at the time of his death, and if the estate was partitioned she became owner in severalty of her share, subject of course, to the restrictions on disposition and the peculiar rule of extinction of the estate on death actual or civil. It cannot be assumed having regard to this development that in enacting S.14 of the Hindu Succession Act, the Legislature merely intended to declare the rule enunciated by the Privy Council in Pratapmull's case, 63 Ind App 33: (AIR 1936 PC
20). Section 4 of the Act gives an overriding effect to the provisions of the Act. It enacts "Save as otherwise expressly provided in this Act-
(a) any text, rule or interpretation of Hindi law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act :
(b) x xx Manifestly, the legislature intended to supersede the rules of Hindu law on all matters in respect of which there was an express provision made in the Act. Normally a rights declared in an estate by a preliminary decree would be regarded as property, and there is nothing in the context in which S. 14 occurs or in the phraseology used by the Legislature to warrant the view that such a right declared in relation to the estate of a joint family in favour of a Hindu widow is 134 not property within the meaning of S. 14. In the light of the scheme of the Act and its avowed purpose it would be difficult, without doing violence to the language used in the enactment, to assume that a right declared in property in favour of a person under a decree for partition is not a right to property. If under a preliminary decree the right in favour of a Hindu male be regarded as property the right declared in favour of a Hindu female must also be regarded as property. The High Court was therefore, in our judgment, in error in holding that the right declared in favour of Khilonabai was not possessed by her, nor are we able to agree with the submission of the learned counsel for Raj Kumar that it was not property within the meaning of S.14 of the Act."
71. The reading of section 14 as a whole in the background of the above case laws it would clearly indicate that if the acquisition of the property by a female Hindu can be related to her antecedent right or interest in the property then, such an acquisition although as a limited owner or an acquisition of property in a limited sense will confer absolute ownership on her, on and from the day the Hindu Succession Act, 1956 coming into force or in other words the limited right of Hindu female would blossom into full-fledged right in the property. If however the acquisition of property cannot have any connection or relation to any kind of 135 antecedent right or interest in the property of the female Hindu and such acquisition is conditioned by a restrictive clause she will not become the absolute owner but would be governed by the restrictive clause. The right of a Hindu widow or wife to get maintenance out of the joint family properties is an indefeasible right; yet it is a right and she does not get maintenance either by way of gratis or by way of charity. She gets it as her right under the Hindu law. If she is put in possession of certain property either in satisfaction of that right or in discharge of the said obligation or in furtherance of meeting such obligation of maintenance as ordered by a competent court of law she cannot be held to be tresspasser though she enters possession of the property acquiring a limited ownership in it. Even in a given situation if the restrictive clause is there in the instrument or deed conferring a limited right on her it gets blossomed into full- fledged right by virtue of sub-section (1) and she becomes the full or absolute owner of the property. Thus, if the acquisition of properties is referrable to a pre-existing right or interest in the property the limited ownership becomes 136 full fledged ownership on coming into force of the Act. If however such right is not referrable to any pre-existing right or interest in the property and if the acquisition is by way of gift or under a Will or any other instrument or under a decree or order of a Civil Court or under an award where the terms of the gift, Will or other instrument or decree or order or award prescribe a restricted estate in such property, the restricted estate conferred thereunder for first time would continue as such and it would not get enlarged or it will not blossom into an absolute right on Hindu Succession Act, 1956 coming into force.
72. In this background of Legal Matrix let me now examine the facts on hand. It is not in dispute that deceased Sri.K.J.V.Naidu had five wives and 8th defendant's mother was his third wife. The third wife and his daughter 8th defendant had filed a suit in O.S.28/1930 on the file of sub- Court, Chittor for maintenance. Same came to be decreed which was challenged by the said Sri.K.J.V.Naidu in appeal in A.S.NO.370/1931 which admittedly came to be dismissed. Subsequently, the said Sri.K.J.V.Naidu filed a suit 137 O.S.No.11/1938 for modification of the terms and conditions imposed under the judgment and decree passed in O.S.No.28/1930. However, said suit was also dismissed. The first son of Sri.K.J.V.Naidu namely, Sri Subbarayalu Naidu had filed a suit in O.S.No.16/1938 on the file of Sub- Court, Chittor for maintenance out of imparitable estate of KJV Naidu and it was decreed in part by allotting "thotti house" in the Palace of Kuppam. Likewise, second son Sri.Ramappa Naidu had also filed a suit in O.S.No.24/1943 for partition of joint family properties which came to be decreed under which certain amount of maintenance and another portion of Kuppam Palace was granted to him.
73. The above said Sri.K.J.V.Naidu filed O.S.No.20/1948 against his third wife Rani Puttamma Nagathi for varying and reducing the rates of maintenance as decreed in O.S.NO.28/1930 and said suit was compromised. It is not in dispute that under the judgment and decree passed in O.S.No.28/1930 which subsequently came to be modified by a compromise decree in O.S.No.20/1948, certain villages were given as maintenance to third wife Smt.Rani 138 Puttamma and her daughter. Subsequently, during April 1949, Madras State (Abolition and Conversion into Ryotwari) Act, 26 of 1949 came into force abolishing Zamindari Estates. As such, an agreement came to be entered into between deceased Sri.K.J.V.Naidu on the one hand as 'first party' and Smt.Rani Puttamma Nagati and her daughter Smt.Jayalakshmi (8th defendant) on the other hand as 'second party' vide agreement dated 16.01.1951 which came to be marked as Ex.P-2. The recitals found at clause (3) and (4) of the said agreement would make it abundantly clear as to the circumstances under which said agreement came into existence. At the cost of repetition and for immediate reference these two clauses are extracted herein below:
3 WHEREAS the second and the third party have been living together, and away from the first party, and the first party has been providing separate - maintenance and residence for them in terms of the decree in O.S.No.28 of 1930 on the file of the Sub Court, Chittoor, as modified by the decree of the High Court, Madras in A.S.No.370 of 1931 and as further modified by the compromise decree in - O.S.No.20 of 1948 on the file of the Sub Court, Chittoor;
4 WHEREAS the Villages specified in the schedule to the said compromise decree in O.S.No.20 of 139 1948 have been taken over by and vested in the Government of Madras by and under the provisions of the Madras Estates (Abolition and Conversion into Ryotwari) Act XXVI of 1948 with effect from the 7th September, 1950 and in terms of the said compromise decree, on the taking over of the said villages by the Government as aforesaid, a revised arrangement for the maintenance of the second and the third party has to be made by consent or through Court;"
While analyzing as to whether right of residence was distinct from right of maintenance in the foregoing Paragraphs, I have already held that 8th defendant and her mother have been living together in the suit schedule property 'Kanagundi House' even at the time of agreement dated 16.01.1951 - Ex.P-2 came into force and as such it has been held that right of maintenance includes right of residence. In fact, as noticed from Ex.P-2 itself it would indicate that 8th defendant and her mother were residing in the suit schedule property even prior to Ex.P-2 coming into existence. In fact, the said Sri.K.J.V.Naidu himself has admitted that he had been providing his wife Smt.Rani Puttamma and his daughter Smt.Jayalakshmi 'maintenance' and 'residence' in terms of the decree which can be found from clause (3) of Ex.P-2 itself. At this juncture, contention 140 of Sri Shanmukhappa can be examined namely, whether Rani Puttamma Nagathi and her daughter acquired right over the property for the first time as a grant without any pre-existing right and as such, sub-section (2) of Section 14 is attracted or by virtue of a pre-existing right or interest in the property created in their favour, the said document came into force, so as to attract sub-section (1) of section 14 of the Hindu Succession Act, 1956.
74. There cannot be any dispute to the proposition that sub-section (2) of section 14 must be read as a proviso or exception to sub-section (1) of section 14 and its operation must be confined to cases where the property is acquired for the first time as a grant without any pre-existing right. If Hindu female had any pre-existing right or interest in the property, the inter position of any instrument will not affect the operation of sub-section (1) of section 14 and the property will be held by the female as her absolute property.
75. Reading of clause 7(e) of Ex.P-2 it would clearly indicate that by virtue of the right vested with Smt.Rani 141 Puttamma and 8th defendant acquired by them under a judgment and decree passed in O.S.No.20/1948 and enforcing their right of 'residence' and 'maintenance' said agreement Ex.P-2 came into existence which was also on account of certain subsequent events namely, Abolition of Estates and as such, separate arrangement had to be made for their maintenance and residence. Thus, in recognition of the pre-existing right in favour of these two persons which they had acquired under the decree passed in O.S.No.20/1948 and for varying the terms of said compromise decree said agreement Ex.P-2 came into existence.
76. As noticed from Ex.P-2 namely Clause 7(e) the second party therein i.e., Smt.Rani Puttamma Nagati has a right to reside in "Kanagundi House" (suit schedule property) and they have also been permitted to pay the municipal and local taxes. The said right flows from the decree that was passed in O.S.28/1930 which subsequently ended in a compromise decree being passed in O.S.No.20/1948. It can also be noticed that right of residence has been made 142 absolute and only in the event of they being dispossessed of any part of the bungalow and premises either by the son or grandson of the predeceased son of Sri.K.J.V.Naidu or their successors-in-interest claiming right to share in the same, then only the second and third party (Rani Puttamma and eighth defendant) right to the said house would get confined to the first party's share (Sri.K.J.V.Naidu's share) and not otherwise. In other words if there is no dispossession or if there is no claim by either of these persons then their right over suit schedule property would be absolute. It would also indicate that before 1956 Act coming into force, if the sons or grandsons of Sri KJV Naidu had claimed any right over the suit schedule property, then the right of Smt.Rani Puttamma would have got confined or restricted to 1/3rd share only namely, to the extent of share that Sri KJV Naidu would have become entitled to on partition of impartible estate. On account of other properties of Sri KJV Naidu being available to the members of the family, they did not chose to object the possession and enjoyment of suit schedule property by Smt.Rani Puttamma and her daughter. On Act coming into 143 force with effect from 17.06.1956 the contingency clauses in Ex.P-2 got wiped out. Admittedly at no point of time successors-in-interest of Sri.K.J.V.Naidu have either dispossessed Smt.Rani Puttamma and her daughter or have taken partial possession of the bungalow. This would clearly indicate that the right of residence granted in "Kanagundi House" to Smt.Rani Puttamma and her daughter the 8th defendant was absolute. This fact is also fortified from further recital found in the said clause i.e., 7(e) wherein it has been clearly agreed that these two persons would not be entitled to claim any further or other additional provision for their residence or for the payment of any sum either in a lump or periodically in lieu thereof or on the said amount. In other words it is this property alone which has been given to them. It is also to be further noticed that right of alienation by these two persons has been curtailed and it is this clog which curtails the right of ownership was removed by operation of law i.e., on introduction of Section 14(1) of Hindu Succession Act, 1956.
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77. The Hon'ble Supreme Court has examined under what circumstances a Hindu woman would be entitled to claim right in the property allotted to her in lieu of maintenance and whether said limited right would get blossomed into a full -fledged right. On analysis of authorities and the Shastric Hindu Law their Lordships have held that Hindu Woman's right to maintenance is a personal obligation so far as husband is concerned and it is his duty to maintain her even if he has no property and if he has property then the right of the widow to maintenance becomes an equitable charge on his property and any person who succeeds to the property carries with it the legal obligation to maintain the widow. It was further held that widow's right to maintenance is not a right to property but it is undoubtedly a pre-existing right in the property and it was further held that right to maintenance is undoubtedly a pre- existing right which existed in the Hindu Law even before the passing of Act of 1937 or the Act of 1946. While summarizing the legal conclusions it has been held if a charge is created for the maintenance of a female, the said 145 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 or confirms the pre-existing rights. The dicta laid down in the case of SMT.TULASAMMA & OTHERS vs SESHA REDDY (DEAD) BY LR's. reported in (1977) 3 SCC 99 read as under:
"20. Thus on a careful consideration and detailed analysis of the authorities mentioned above and the Shastric Hindu Law on the subject, the following propositions emerge with respect to the incidents and characteristics of a Hindu woman's right to maintenance:
(1) that a Hindu woman's right to maintenance is a personal obligation so far as the husband is concerned, and it is his duty to maintain her even if he has no property. If the husband has property then the right of the widow to maintenance becomes an equitable charge on his property and any person who succeeds to the property carries with it the legal obligation to maintain the widow, (2) though the widow's right to maintenance is not a right to property but it is undoubtedly a pre-
existing right in property, i.e. it is a jus ad rem not jus in rem and it can be enforced by the widow who can get a charge created for her maintenance on the property either by an agreement or by obtaining a decree from the civil court:
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(3) that the right of maintenance is a matter of moment and is of such importance that even if the joint property is sold and the purchaser has notice of the widow's right to maintenance, the purchaser is legally bound to provide for her maintenance;
(4) that the right to maintenance is undoubtedly a pre-existing right which existed in the Hindu Law long before the passing of the Act of 1937 or the Act of 1946, and is, therefore, a pre- existing right;
(5) that the right to maintenance flows from the social and temporal relationship between the husband and the wife by virtue of which the wife becomes a sort of co-owner in the property of her husband, though her co-ownership is of a subordinate nature; and (6) that where a Hindu widow is in possession of the property of her husband, she is entitled to retain the possession in lieu of her maintenance unless the person who succeeds to the property or purchases the same is in a position to make due arrangements for her maintenance."
"29. In Badri Pershad v. Smt. Kanso Devi the prepositor died in 1947 leaving behind five sons and a widow. Soon after his death disputes arose between the parties and the matter was referred to an arbitrator in 1950. The arbitrator in his award allotted shares to the parties wherein it was stated that the widow would only have widow's estate in those properties. While the widow was in possession of the properties, the Act of 1956 came into force and the question arose whether or not she became full owner of the property or she only had a restricted interest as provided in the grant, namely, the award. This Court held that although the award had given a restricted estate, but this was only a 147 narration of the state of law as it existed when the award was made. As the widow, however, inherited the property under the Hindu Women's Right to Property Act, her interest became absolute with the passing of the Act of 1956 and she squarely fell within the provisions of Section 14(1) of the Act. It was further held that the mere fact that the partition was by means of an award would not bring the matter within Section 14(2) of the Act, because the interest given to the widow was on the basis of a pre-existing right and not a new grant for the first time. This Court observed as follows"
The word "acquired" in sub-section (1) has also to be given the widest possible meaning. This would be so because of the language of the Explanation which makes sub-section (1) applicable to acquisition of property by inheritance or devise or at a partition or in lieu of maintenance or arrears of maintenance or by gift or by a female's own skill or exertion or by purchase or prescription or in any manner whatsoever. Where at the commencement of the Act a female Hindu has a share in joint properties which are later on partitioned by metes and bounds and she gets possession of the properties allotted to her there can be no manner of doubt that she is not only possessed of that property at the time of the coming into force of the Act but has also acquired the same before its commencement."
"62. We would now like to summarise the legal conclusions which we have reached after an exhaustive considerations of the authorities mentioned above on the question 148 of law involved in this appeal as to be interpretation of Section 14(1) and (2) of the Act of 1956. These conclusions may be stated thus:
(1) The Hindu female's right to maintenance is not an empty formality or an illusory claim being conceded as a matter of grace and generosity, but is a tangible right against property which flows from the spiritual relationship between the husband and the wife and is recognised and enjoined by pure Shastric Hindu Law and has been strongly stressed even by the earlier Hindu jurists starting from Yajnavalkya 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 property, the female has the legal right to be maintained therefrom. 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 or confirms the pre-existing rights.
(2) 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. (3) Sub-section (2) of Section 14 is in the nature of a proviso and has a field of its 149 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 inconsistent with the main provision.
(4) Sub-Section (2) of Section 14 applies to instruments, decrees, awards, gifts etc. which create independent and new titles in favour of the females for the first time and has no application where the instrument concerned merely seeks to confirm, endorse, declare or recognise pre-existing rights. In such cases a restricted estate in favour of a female is legally permissible and Section 14(1) will not operate in this sphere. Where, however, an instrument merely declares or recognises a pre-existing right, such as a claim to maintenance or partition or share to which the female is entitled, the sub-section has absolutely no application and the female's limited interest would automatically be enlarged into an absolute one by force of Section 14(1) and the restrictions placed, if any, under the document would have to be ignored.
Thus where a property is allotted or transferred to a female in lieu of maintenance or a share at partition, the instrument is taken out of the ambit of sub-section (2) and would be governed by Section 14(1) despite any restrictions placed on the powers of the transferee.
(5) The use of express terms like "property acquired by a female Hindu at a partition", "or in lieu of maintenance", "or arrears of maintenance", etc in the 150 Explanation to Section 14(1) clearly makes sub-section (2) inapplicable to these categories which have been expressly excepted from the operation of sub-section (2).
(6) The words "possessed by" used by the Legislature in Section 14(1) are of the widest possible amplitude and include the state of owning a property even though the owner is not in actual or physical possession of the same. Thus, where a widow gets a share in the property under a preliminary decree before or at the time when the 1956 Act had been passed but had not been given actual possession under a final decree, the property would be deemed to be possessed by here and by her and by force of Section 14(1) she would get absolute interest in the property. It is equally well settled that the possession of the widow, however, must be under some vestige of a claim, right or title, because the section does not contemplate the possession of any rank trespasser without any right or title.
(7) That the words "restricted estate" used in Section 14(2) are wider than limited interest as indicated in Section 14(1) and they include not only limited interest, but also any other kind of limitation that may be placed on the transferee.
"67. The short question that arises for determination in this appeal is as to whether it is sub-section (1) or sub-section (2) of Section 14 of the Hindu Succession Act, 1956 that applies where property is given to a Hindu female in lieu of maintenance under an instrument which in so many terms restricts the nature of the interest 151 given to her in the property. If sub-section (1) applies, then the limitation on the nature of her interest are wiped out and she becomes the full owner of the property, while on the other hand, if sub-section (2) governs such a case, her limited interest in the property is not enlarged and she continues to have the restricted estate prescribed by the instrument. The question is of some complexity and it has evoked wide diversity of judicial opinion not only amongst the different High Courts but also within some of the High Courts themselves. It is indeed unfortunate that though it became evident as far back as 1967 that sub-sections (1) and (2) of Section 14 were presenting serious difficulties of construction in cases where property was received by a Hindu female in lieu of maintenance and the instrument granting such property prescribed a restricted estate for her in the property and divergence of judicial opinion was creating a situation which might well be described as chaotic, robbing the law of that modicum of certainty which it must always possess in order to guide the affairs of men, the legislature, for all these years, did not care to step in to remove the constructional dilemma facing the courts and adopted an attitude of indifference and inaction, untroubled and unmoved by the large number of cases on this point encumbering the files of different courts in the country, when by the simple expedient of an amendment, it could have silenced judicial conflict and put an end to needless litigation. This is a classic instance of a statutory provision which, by reason of its inapt draftsmanship, has created endless confusion for litigants and proved a paradise for lawyers. It illustrate forcibly the need of an authority or body to be set up by the Government or the Legislature which would constantly keep in touch with the adjudicatory authorities in the 152 country as also with the legal profession and immediately respond by making recommendations for suitable amendments whenever it is found that a particular statutory provision is, by reason of inapt language or unhappy draftsmanship, creating difficulty of construction or is otherwise inadequate or defective or is not well conceived and is consequently counter-productive of the result it was intended to achieve. If there is a close inter- action between the adjudicatory wing of the State and a dynamic and ever-alert authority or body which responds swiftly to the drawbacks and deficiencies in the law in action, much of the time and money, which is at present expended in fruitless litigation, would be saved and law would achieve a certain amount of clarity, certainty and simplicity which alone can make it easily intelligible to the people."
"69. Now, sub-section (2) of section 14 provides that nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property. This provision is more in the nature of a proviso or exception to sub-section (1) and it was regarded as such by this Court in Badri Pershad v. Smt. Kanso Devi(1). It excepts certain kinds of acquisition of property by a Hindu female from the operation of sub-section (1) and being in the nature of an exception to a provision which is calculated to achieve a social purpose by bringing about change in the social and economic position of women in Hindu society, it must be construed strictly so as to impinge as little as possible on the broad sweep of the 153 ameliorative provision contained in sub-section (1). It cannot be interpreted in a manner which would rob sub-section (1) of its efficacy and deprive a Hindu female of the protection sought to be given to her by sub-section (1). The language of sub-section (2) is apparently wide to include acquisition of property by a Hindu female under an instrument or a decree or order or award where the instrument, decree, order or award pre-scribes a restricted estate for her in the property and this would apparently cover a case where property is given to a Hindu female at a partition or in lieu of maintenance and the instrument, decree, order or award giving such property prescribes limited interest for her in the property. But that would virtually emasculate sub-section (1), for in that event, a large number of cases where property is given to a Hindu female at a partition or in lieu of maintenance under an instrument, order or award would be excluded from the operation of the beneficent provision enacted in sub-section (1), since in most of such cases, where property is allotted to the Hindu female prior to the enactment of the Act, there would be a provision, in consonance with the old Shastric law then prevailing, prescribing limited interest in the property and where property is given to the Hindu female subsequent to the enactment of the Act, it would be the easiest thing for the dominant male to provide that the Hindu female shall have only a restricted interest in the property and thus make a mockery of sub-section (1). The Explanation to sub-section (1) which includes within the scope of that sub-section property acquired by a female Hindu at a partition or in lieu of maintenance would also be rendered meaningless, because there would hardly be a few cases where the instrument, decree, order or award giving property to a Hindu female at a 154 partition or in lieu of maintenance would not contain a provision prescribing restricted estate in the property. The social purpose of the law would be frustrated and the reformist zeal underlying the statutory provision would be chilled. That surely could never have been the intention of the Legislature in enacting sub-
section (2). It is an elementary rule of construction that no provision of a statute should be construed in isolation but it should be construed with reference to the context and in the light of other provisions of the statute so as, as far as possible, to make a consistent enactment of the whole statute. Sub-section (2) must, therefore, be read in the context of sub- section (1) so as to leave as large a scope for operation as possible to sub-section (1) and so read, it must be confined to cases where property is acquired by a female Hindu for the first time as a grant without any pre-existing right, under a gift, will, instrument, decree, order or award, the terms of which prescribe a restricted estate in the property. This constructional approach finds support in the decision in Badri Prasad's case (supra) where this Court observed that sub-section (2) "can come into operation only if acquisition in any of the methods enacted therein is made for the first time without there being any pre-existing right in the female Hindu who is in possession of the property". It may also be noted that when the Hindu Succession Bill 1954, which ultimately culminated into the Act, was referred to a Joint Committee of the Rajya Sabha, clause 16(2) of the Draft Bill, corresponding to the present sub- section (2) of section 14, referred only to acquisition of property by a Hindu female under gift or will and it was subsequently that the other modes of acquisition were added so as to include acquisition of property under an 155 instrument, decree, order or award. This circumstance would also seem to indicate that the legislative intendment was that sub-section (2) should be applicable only to cases where acquisition of property is made by a Hindu female for the first time without any pre-existing right a kind of acquisition akin to one under gift or will. Where, however, property is acquired by a Hindu female at a partition or in lieu of right of maintenance, it is in virtue of a pre-existing right and such an acquisition would not be within the scope and ambit of sub-section (2), even if the instrument, decree, order or award allotting the property prescribes a restricted estate in the property."
But for sub-section (1) of the Act whereunder the legislature intended that limited ownership of a Hindu female should be changed into full ownership, a female Hindu who acquires right as a limited owner of the property would not have become full owner. The object of the section is to extinguish the limited estate to that of a full owner with all powers of disposition and to make the estate heritable by her own heirs and not to be reverted back to the heirs of the last male holder.
78. Sub-section (2) of Section 14 as held in Tulsamma's case by Apex Court is more in the nature of a proviso or an exception to sub-section (1). It can come into 156 operation only if acquisition in any of the modes indicated therein is made for the first time without there being any pre-existing right. As already noticed hereinabove in the instant case Smt.Rani Puttamma and her daughter had a pre-existing right over the properties belonging to Sri.K.J.V.Naidu by virtue of judgment and decree passed in O.S.28/1930 and further modified by the compromise decree in O.S.20/1948 and they were already residing in the suit schedule property by virtue of such pre-existing right and under Exhibit P-2 they were allowed to continue to reside in the suit schedule property as enumerated therein. Hence, it cannot be construed that a right is created in favour of these two persons for the first time in respect of suit property under Ex.P-2 so as to take away their right from the sweep of sub-section (1) of section 14. In fact the Hon'ble Supreme Court has examined the words "any property possessed by a female Hindu" as also the word "possessed" and held that it includes actual as well as constructive possession and the word "possessed" is to be understood in the broad sense in the following Judgments:
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(1) MANGAL SINGH AND OTHERS V/S SHRIMATHI RATTNO AND ANOTHER ((1967) 3 SCR 454: AIR 1967 SC 1786) "6. It is significant that the Legislature begins s.
14(1) with the words "any property possessed by a female Hindu" and not "any property in possession of a female Hindu". If the expression used had been "in possession of" instead of "possessed by", the proper interpretation would probably have been to hold that, in order to apply this provision, the property must be such as is either in actual possession of the female Hindu or in her constructive possession. The constructive possession may be through a lessee, Mortgagee, licensee, etc. The use of the expression "possessed by" instead of the expression "in possession of', in our opinion, was intended to enlarge the meaning of this expression. It is commonly known in English language that a property is said to be possessed by a person, if he is its owner, even though he may, for the time being, be out of actual possession or even constructive possession. The expression "possessed by" is quite frequently used in testamentary documents, where the method of expressing the property, which is to pass to the legate, often adopted is to say that "all property I die possessed of shall pass to..........." In such documents, wills, etc., where this language is used, it is clear that whatever rights the testator had in the property would pass to the legate, even though, at the time when the will is executed or when the will becomes effective, the testator might not be in actual, physical or constructive possession of it. The legate will, in such a case, succeed to the right to recover possession of that property in 158 the same manner in which the testator could have done. Stroud in his Judicial Dictionary of Words and Phrases, Vol. 3, at p. 2238, has brought out this aspect when defining the scope of the words "possess" and "Possessed". When dealing with the meaning of the word "possession", Stroud defines "possession" as being in two ways, either actual possession or possession in law. He goes on to say that "actual possession is when a man enters in deed into lands or tenements to him descended, or otherwise. Possession in law is when lands or tenements are descended to a man, and he has not as yet really, actually, and in deed, entered into them." In Wharton's Law Lexicon, 14th Edn., at p. 777 the word "possession" is defined as being equivalent to 'the state of owning or having a thing in one's own hands or power." Thus, three different meanings are given; one is the state of owning, the second is having a thing in one's own hands, and the third is having a thing in one's own power. In case where property is in actual physical possession, obviously it would be in one's own hands. If it is in constructive possession, it would be in one's own power. Then, there is the third case where there may not be actual, physical or constructive possession and, yet, the person still possesses the right to recover actual physical possession or constructive possession; that would be a case covered by the expression "the state of owning". In fact, elaborating further the meaning of the word "possession", Wharton goes on to say that "it is either actual, where a person enters into lands or tenements descended or conveyed to him; apparent, which is a species of presumptive title where land descended to the heir of an abator, intruder, or disseisor, who died seised; in law, when lands, etc., have descended to a man, and he has not 159 actually entered into them, or naked, that is, mere possession, without colour of right." It appears to us that the expression used in s.14(1) of the Act was intended to cover cases of possession in law also, where lands may have descended to a female Hindu and she has not actually entered into them. It would of course, cover the other cases of actual or constructive possession. On the language of s. 14(1), therefore, we hold that this provision will become applicable to any property which is owned by a female Hindu, even though she is not in actual, physical or constructive possession of that property."
"7. Section 14(1) came up for interpretation in various cases before a number of High Courts, and was considered by this Court also in several cases. In none of those cases, however, did the question directly arise as to whether s. 14(1) will be applicable, if the female Hindu is out of actual, physical or constructive possession and the property happens to have been wrongfully taken into possession by a trespasser. Most of those cases were cases where the female Hindu had either alienated her rights by a, deed of transfer or had made a gift, and it was only incidentally; that, in some of those cases, comments were made on the question whether s.14(1) of the Act will be attracted or not in cases the female Hindu had been dispossessed by a trespasser."
"8. So far as this Court is concerned, the earliest case is that of Gummalpura Taggina Matada Kotturuswami v. Setra Veeravva and others (1). Dealing with the scope of S. 14(1) of the Act in that case, this Court cited from a decision of Viswanatha Sastri, J. in Gaddam Venkavamma 160 v. Gaddam Veerayya (2) , and noticed the fact that in that case it was held that the word "possessed" is used in s. 14 in a broad sense and, in the context, possession means the state of owning or having in one's bands or power. It was -also noticed that the learned Judges of the Andhra Pradesh High Court in that case had expressed the view that even if a trespasser were in possession of the land belonging to a female owner, it might conceivably be regarded as being in possession of the female owner, provided the trespasser had not perfected his, title. Since in that case this Court was not concerned with a situation where a trespasser had actually dispossessed the female owner, the Court went on to hold: "We do not think that it is necessary in the present case to go to the extent to which the learned Judges went. It is sufficient to say that "possessed" in s. 14 is used in a broad sense and, in the context, means the state of owning or having in one's hand or power." Thus, in that case decided by this Court, the broad meaning of the word "possessed' was accepted as even including cases where the state of owning the property exists. Learned counsel for the appellants, when bringing to our notice the views expressed by this Court in that case, also drew our attention to another part of the judgment, where this Court remarked:
"Reference to property acquired before the commencement of the Act certainly makes the provisions of the section retrospective, but even in such a case, the property must be possessed by a, female Hindu at the time the Act came into force in order to make the provisions of the section applicable. There is no question in the present case that Veerawa acquired the property of her deceased husband before the commencement of the Act. In order 161 that the provisions of s. 14 may apply to the present case, it will have to be further established that the property was possessed by her at the time the Act came into force."
Learned counsel, from these words, tried to draw an inference that this Court had laid down that s. 14(1) will only apply to cases where the property was possessed by the Hindu female at the commencement of the Act. We do not think that any such interpretation can be placed on the words used by this Court. Section 14(1) covers any property possessed by a female Hindu, whether acquired before or after the commencement of the Act. On the face of it, property acquired after the commencement of the Act by a female Hindu could not possibly be possessed by her at the commencement of the Act. This Court, when it made the comments relied upon by learned counsel, was, in fact, concerned with a case of a female Hindu, who had acquired the right to the property before the commencement of the Act, but was alleged to be no longer possessed of it because of having adopted a son before the commencement of the Act. It was in these circumstances that the Court in that particular case was concerned with the question whether the female Hindu case was co was possessed of the property in dispute or not at the time the Act came into force. The Court was not laying down any general principle that -s. 14(1) will not be attracted at all to cases where the female Hindu was not possessed of the property at the date of the commencement of the Act. In fact, there are no words used in s.14(1) which would lead to the interpretation that the property must be possessed by the female Hindu at the date of the commencement of the Act. It appears to us that the relevant date, on which the female Hindu should be possessed of the property in dispute, must 162 be, the date on which the question of applying the provisions of S. 14(1) arises. If, on that date, when the provisions of this section are sought to be applied, the property is possessed by a female Hindu, it would be held that she is full owner of it and not merely a limited owner. Such a question may arise in her own life- time or may arise subsequently when succession to her property opens on her death. The case before us falls in the second category, because Smt. Harnam Kaur was a limited owner of the property before the commencement of the Act, and the question that has arisen is whether Smt. Rattno was entitled to succeed to her rights in this disputed property on her death which took place in the year 1958 after the commencement of the Act."
(2) GUMMALAPURA TAGGINA MATADA KOTTURU SWAMI V/S SETRA VEERAVVA AND OTHERS (AIR 1959 SUPREME COURT 577) "11. In the case before us, the essential question for consideration is as to how the words "any property possessed by a female Hindu, whether acquired before or after the commencement of this Act " in a. 14 of the Act should be interpreted. Section 14 refers to property which was either acquired before or after the commencement of the Act and that such property should be possessed by a female Hindu. Reference to property acquired before the commencement of the Act certainly makes the provisions of the section retrospective, but even in such a case the property must be possessed by a female Hindu at the time the Act came into force in order to make the provisions of the section applicable. 163 There is no question in the present case that Veeravva acquired the property of her deceased husband before the commencement of the Act.
In order that the provisions of s. 14 may apply to the present case it will have to
be further established that the property was possessed by her at the time the Act came into force. It was the case of the appellant that the estate of Veerappa was in actual possession of the second defendant and not Veeravva at the relevant time. On behalf of the respondent it was urged that the words "possessed by" had a wider meaning than actual physical possession, although physical possession may be included in the expression. In the case of Gaddam Venkayamma v. Gaddam Veerayya (1) Viswanatha Sastri, J., with whom Satyanarayana Raju, J., agreed, expressed the opinion that "the word ' possessed' in s. 14 refers to possession on the date when the Act came into force. Course, possession referred to in s. 14 need not be actual physical possession or personal occupation of the property by the Hindu female-but may be possession in law. The possession of a licensee, lessee or a mortgagee from the female owner or the possession of a guardian or a trustee or an agent of the female owner would be her possession for the purpose of s. 14. The word" possessed "is used in s. 14 in a broad sense and in the context possession means the state of owning or having in one's hands or power. It includes possession by receipt of rents and profits." The learned Judges expressed the view that even if a trespasser were in possession of the land belonging to a female owner, it might conceivably be regarded as being in possession of the female owner, provided the trespasser had not perfected his title. We do not think that it is necessary in the present case to go to the extent to which the 164 learned Judges went. It is sufficient to say that possessed" in s. 14 is used in a broad sense and in the context means the state of owning or having in one's hand or power. In the case of Gostha Behari v. Haridas Samanta (2), P. N. Mookherjee, J., expressed his opinion as to the meaning of the words " any property possessed by a female Hindu " in the following words:-
"The opening words in" property possessed by a female Hindu obviously mean that to come within the purview of the section the property must be in possession of the female concerned at the date of the commencement of the Act. They clearly contemplate the female's possession when the Act came into force. That possession might have been either actual or constructive or in any form recognised by law, but unless the female Hindu, whose limited estate in the disputed property is claimed to have been transformed into absolute estate under this particular section, was at least in such possession, taking the word " possession " in its widest connotation, when the Act came into force, the section would not apply-".
In our opinion, the view expressed above is the correct view as to how the words "any property possessed by a female Hindu" should be interpreted. In the present case if the adoption was invalid, the full owner of Veerappa's estate was his widow Veeravva and even if it be assumed that the second defendant was in actual possession of the estate his possession was merely permissive and Veeravva must be regarded as being in constructive possession of it through the second defendant. In this situation, at the time when the Act came into force, the property of Veerappa must be regarded in law as being possessed by Veeravva.
165
79. Keeping the principles enunciated in Tulasamma's case it has to be examined in the instant case whether Smt.Rani Puttamma and her daughter 8th defendant Smt.Jayalakshmi, had acquired any pre-existing right in the suit schedule property. As already noticed hereinabove the recitals of the deed dated 16.01.1951 Exhibit P-2 would clearly indicate that deceased K.J.V.Naidu had suffered a Judgment and decree passed in O.S.28/30 by the Sub-Court Chittor which later culminated in a compromise decree in O.S.20/1948. By virtue of certain lands situated in the villages over which these two persons had right under the decree, having been taken over and vested in the Government of Madras under Madras Estates (Abolition and Conversion into Ryotwari) Act XXVI of 1948 it cannot be held or construed that these two persons did not have a pre- existing right over the property of Sri.K.J.V.Naidu. It is also to be noticed that at the time of execution of Exhibit P-2 said Rani Puttamma and her daughter 8th defendant were already residing in the suit schedule property. It is this pre-existing right which came to be recognized under Exhibit - P-2 by 166 deceased K.J.V.Naidu. It is not in dispute that Smt.Rani Puttamma and her daughter Smt.Jayalakshmi (eighth defendant) had acquired right of maintenance under the Judgment and decree passed in O.S.28/1930 which came to be modified by compromise decree in O.S.20/1948 and by virtue of same they were residing in the suit schedule property. Villages allotted to them under the compromise decree was part of the impartible estate of KJV Naidu and said impartible estate also included suit schedule property. That right possessed by them got crystalised into a right of possession being recognised under Exhibit P-2 or in other words their antecedent right of maintenance got crystalised under Exhibit P-2. The intention of the parties can be clearly gathered from the recitals of Exhibit P-2. Thus, when the right of female Hindu can be related or traced to her antecedent right or interest in the property then such acquisition though as a limited owner or the acquisition in a limited sense will get blossomed into absolute ownership on and from the day Act coming into force. If however acquisition of the property cannot be correlated to any 167 antecedent right or interest in the property of the female Hindu, then such acquisition or right would be conditioned by restrictive clause and she will not become the absolute owner but will be governed by the restrictive clause. The right of a Hindu female to get maintenance out of joint family properties is an indefeasible right and this is what is unfolded in the present factual matrix as aforestated. As already discussed herein above the one and the only conclusion that could be drawn is that Smt.Rani Puttamma and Smt.Jayalakshmi had acquired a right under the compromise decree passed in O.S.No.20/1948 and in lieu of maintenance awarded under the said Judgment and decree the suit schedule property was possessed by them as on the date of Exhibit P-2 coming into existence and thereafter with the commencement of Hindu Succession Act, 1956 with effect from 17.06.1956, her limited ownership blossomed into a full ownership. One another contention raised by Sri Shanmukhappa, learned counsel appearing for appellants is that since there was no partition of impartible estate of Sri KJV Naidu between himself and his two sons and if deemed 168 partition is assumed or construed, then Smt.Rani Puttamma Nagathi would be entitled to claim only from the share of Sri KJV Naidu i.e., 1/3rd and as such, her right over the suit schedule property would also restrict itself to the said extent. Though said argument looks attractive same cannot be accepted inasmuch as, the intention of the legislature can be gathered from reading of Section 14 in its entirety and it nowhere suggests that ownership of female Hindu would only be to the extent of her husband's share in the joint family properties and if it were to be so, the legislature itself would have expressed so in the Act itself.
80. It is also the contention of Mr.Shanmukhappa, learned counsel appearing for appellants that principles laid down by Apex Court in the case of GADDAM RAMAKRISHNAREDDY & OTHERS vs GADDAM RAMIREDDY reported in (2010)9 SCC 602 would be squarely applicable to the facts of the present case on the ground that under a deed dated 16.01.1951 - Ex.P-2 for the first time a right is created in favour of Smt.Rani Puttamma and her daughter Jayalakshmi - 8th defendant and as such sub 169 section (2) of Section 14 of the Hindu Succession Act would be applicable. He has brought to the notice of the Court paragraphs 24, 25, 26 & 28 of the said judgment. They are extracted below:
"24. The law in this regard has been crystallized in V. Tulasamma's case and the same has been consistently followed over the years. The ratio of the said decision in simple terms is that if a Hindu woman had any existing interest in a property, howsoever small, prior to the enactment of the Hindu Succession Act, 1956, the same would blossom into a full- fledged right by virtue of the operation of Section 14(1) thereof. On the other hand, if such a right was so acquired for the first time under an instrument, after the Act came into force, the provisions of Section 14(2) of the above Act would be attracted and would not convert such a right into a full- fledged right of ownership of the property.
25. In the instant case, Pullareddy created a life interest in favour of his wife, Sheshamma, in respect of the plaint schedule property, but also gifted the property in question to the Respondent No.1 herein, G. Ramireddy, who was then a minor. The principal object of the Deed of Gift executed by Pullareddy was that the property should ultimately go to G. Ramireddy, the Respondent No.1 herein. The question which we have to consider in this case is whether in view of the intervention of the Hindu Succession Act in 1956, after the execution of the Deed of Gift, can it be said that the gift intended in favour of G. Ramireddy stood 170 extinguished by operation of Section 14(1) of the Act?
26. The consistent view which has been taken by this Court since the decision in V. Tulasamma's case is that the provisions of Section 14 (1) of the Hindu Succession Act, 1956 would be attracted if any of the conditions contained in the Explanation stood fulfilled. If, however, a right is created in a Hindu female for the first time in respect of any property under any instrument or under a decree or order of a Civil Court or under an award, where a restricted estate in such property is prescribed, the provisions of sub- section (1) of Section 14 would have no application by virtue of sub- section (2) thereof.
27. At this stage it would be worthwhile to set out the relevant portion of the Deed of Gift executed by Pullareddy, marked Exhibit A-11 in the suit and extracted in the judgment of the Trial Court. The same reads as follows:
"As I have great affection towards my wife and my minor son Rami Reddy and believe that they will look after me with all comforts, I hereby make an arrangement that hereafter my wife Sheshamma shall enjoy as she likes, the income from the lands which stand in my name, in Patta No.8 situated at Maddula Parva Village and in Patta No.354 situated at Muchanapalli village shown in the Schedule below, without any right to alienate the said land to any one or to give the said land on long lease and after the death of my wife, my minor son Rami Reddy shall get possession of my land along with his share of land and 171 enjoy the same with an absolute right thereon."
28. The aforesaid provision has been considered by both the Courts below which have concurrently held that the life-estate created by Pullareddy in favour of Sheshamma was not in lieu of her maintenance as she was already managing the properties in question and in no uncertain terms it was the Donee's desire that the said properties should ultimately go to his son Ramireddy, the Respondent No.1 herein. Once that is established, apart from other surrounding circumstances, the immediate fallout is that Sheshamma's rights in the properties came to be governed by sub-section (2) of Section 14 of the Hindu Succession Act, 1956, and her right does not blossom into an absolute estate as contemplated under sub- section (1)."
Perusal of the above judgment would indicate that original propositus Sri G Pulla Reddy partitioned the properties between himself and his two sons in the year 1947 into three equal shares and were separately enjoyed by them. On 21.12.1952 said Pulla Reddy executed a registered deed of gift giving limited right of enjoyment of properties during the life time of his wife Smt.Seshamma , and right of alienation and reminder was vested in favour of his minor 172 son Sri G Ramireddy. It was stated that after Smt.Seshamma's death, properties would devolve on Sri G Ramireddy. Said Seshamma is said to have executed the deed of relinquishment in respect of 1.89 acres in revenue Sy.Nos.93/2 & 1/1 and also executed two sale deeds in favour of one Mukkala Chenna Reddy and Vintha Ramakoti Reddy in respect of the properties gifted under the gift deed. She is also said to have executed a gift deed on 17.02.1972 in favour of her grand children through another son i.e., G Picha Reddy bequeathing the properties received by her through gift deed dated 21.12.1952 referred to supra.
81. On account of alienations made by Smt.Seshamma, her son Sri G Ramireddy filed a suit O.S.No.17/1975 against his mother Seshamma and the purchasers for declaration that sale deeds executed by her mother did not affect his rights in the properties. Said suit on contest came to be decreed and sale deeds executed by Smt.Seshamma in favour of Sriyuths Mukkala Chenna Reddy and Vintha Ramakoti Reddy came to be declared as invalid on the ground that she did not have absolute right. 173 Seshamma expired on 09.10.1991 and thereafter Sri G Ramireddy filed a suit against defendants for a direction to the defendants to put him in possession and for mesne profits in O.S.No.111/1991. Defendants appeared and amongst several pleas raised, a specific plea raised was that Smt.Seshamma had a pre-existing right of maintenance in the properties of Sri G Pulla Reddy created under the Gift deed dated 21.12.1952 blossomed into a absolute right under Section14 (1) of the Hindu Succession Act 1956. this was negatived by the Courts below and was affirmed by the Apex Court for the reason that gift was not executed in lieu of maintenance and intention of the executor was clear from gift deed namely mother was acting as a care taker of minor son and as such Section 14(2) of Hindu Succession Act, 1956 is attracted. This decision is relied upon by appellants to contend that principles laid down therein is applicable to facts of the present case.
82. Facts on hand is quite different from the facts which were present in Ramakrishna Reddy's case referred to supra. In the said case, original propositus Pulla Reddy had 174 executed a gift vesting the property in favour of his minor son G Ramireddy by giving a life interest in favour of his wife Smt.Seshamma. She did not have any right of alienation. Said right of enjoyment was not created by the executor in favour of his wife in recognition of her right of maintenance. On the other hand, in the instant case, it can be noticed that Rani Puttamma Nagati, mother of 8th defendant who was the third wife of KJV Naidu had filed a suit in O.S.No.28./1960 in the Sub Court, Chittor along with her daughter - 8th defendant for maintenance and residence and on obtaining a decree for maintenance out of the said impartible estate and bunglow Kanagundi House namely, suit property in which she was residing came to be further recognised and in recognition of her right acquired under decree, she was entitled to reside in the said bunglow subject to payment of municipal and local taxes and rights therein and it has been held in Ex.P-2 that only in the event of they being dispossessed of any part of the said bunglow and premises by son, grandson of the predeceased son of KJV Naidu or their successors in interest successfully claiming right to 175 share in the same which has been created therein, in such event only the right of Smt.Rani Puttamma and her daughter Jayalakshmi - 8th defendant would be confined to the extent of share of KJV Naidu only. In other words, it would indicate that only in the event of any of the other legal heirs of KJV Naidu were to either dispossess Rani Puttamma and Jayalakshmi from suit property and claiming share over the suit property, then alone the right of these two persons namely Rani Puttamma and Jayalakshmi would got restricted or confined only to the extent of share of KJV Naidu as otherwise, their right is absolute and unfettered. Thus, deed dated 16.01.1951 - Ex.P-2 came into existence in view of the fact that in O.S.No.28/1960 decree had been obtained by them for maintenance and residence and it related to the impartible estate of KJV Naidu. Said decree was confirmed by the High Court of Andhra Pradesh in A.S.No.370/1931 and admittedly, suit filed by KJV Naidu in O.S.No.11/1938 for modification of terms and conditions of said decree also came to be dismissed. In view of certain villages specified in the decree came to be vested with the 176 Madras State by virtue of promulgation of Act abolishing Zamindari estates and as such, terms of compromise decree in suit O.S.No.20/1948 to 22/1948 was sought to be modified as a revised arrangement for the maintenance of the said persons. In this background, deed in question i.e., 16.01.1951 Ex.P-2 came into existence. Thus, in the instant case, right over the suit property is not created for the first time in favour of Smt.Rani Puttamma and it is traceable to the right created under judgment and decree passed in O.S.No.28/1930. Whereas in Seshamma's case, under a gift deed executed by Pulla Reddy in favour of his minor son Ramireddy a limited right of enjoyment of the properties were given to Smt.Seshamma and not in lieu of maintenance and as such she did not possess any right and as such, it was not construed as a limited right getting blossomed into a absolute right. It is in this background, Hon'ble Apex Court came to the conclusion that Section 14(2) was applicable and not Section 14(1). As noticed herein above, right to the suit schedule property in the instant case, of Smt.Rani Puttamma being traceable to the judgment and decree 177 passed in O.S.No.28/1930, later culminating in compromise decree in O.S.No.20/1948 which resulted in the birth of deed dated 16.01.1951 Ex.P-2 whereunder her right came to be recognised over suit schedule property and she was permitted to reside in the said property as limited owner. Thus, by operation of law namely, Section14 (1) of the Hindu Succession Act, 1956 coming into force with effect from 17.06.1956 her limited right got enlarged or blossomed into a full fledged right with absolute ownership. It is also to be further noticed that it was agreed between Sri KJV Naidu and Rani Puttamma that by virtue of such right of residence which was being recognised was out of the impartible estate of KJV Naidu and by virtue of provision made to her under Ex.P-2 her right over remaining properties of the impartible estate of KJV Naidu stood relinquished, which in effect means that her right of residence in suit property alone vested in her favour and the rights she had in respect of other properties of KJV Naidu stood relinquished. Explanation to sub-section would also clarify this position namely, where property is acquired by a female hindu either 178 in lieu of maintenance or arrears of maintenance would also enter the domain of subsection (1) of Section 14 and only in the event of the ingredients of explanation is not to be found or gathered from either oral or documentary evidence, then alone Courts would proceed to examine as to whether such claim would fall under sub section (2) of section 14. If search in this regard were to stop at, sub section (1) there is no need or necessity to probe further. In view of the aforesaid discussion, I am of the view that judgment in GADDAM RAMAKRISHNAREDDY's case would not assist the appellants in the present case.
83. In that view of the matter point No.1 formulated herein above has to be held in the affirmative and by virtue of the same point No.2 has also be answered in the affirmative as a consequence of answering point No.1 in the affirmative. They are accordingly answered in favour of 8th defendant.
RE: POINT NO.3:
84. One of the main contentions raised by learned counsel appearing for 8th defendant is that the suit in 179 question has been filed for partial partition and as such, the suit is not maintainable. In support of his contention, he has relied upon the following judgments whereunder it has been held:
1) MANJAYA MUDALI & ANOTHER vs SHANMUGA MUDALI AND SEVEN OTHERS. (DECIDED ON 05.12.1913)-
(1915) ILR 38 MADRAS 684) "5. When a co-parcener alienates his share in certain specific family property, the alienee does not acquire any interest in that property. He can only enforce his rights in a suit for partition.
In dividing the family properties the Court will, no doubt, set apart for the alienating co- parcener's share the property alienated if that can be done without any injustice to the other coparceners, and such property, if it is so set apart, may be given to the alienee as the transferee of such coparcener. But this is only equity and the alienee is not, as of right, entitled to have the property so allotted. If such property is not so set apart, then the alienee would be entitled to recover that property which was allotted to his vendor for his share, though it may not be the property that was alienated in his favour. The property allotted will take the place of the property which has been alienated to him so far as he is concerned."
2) SRI. TUKARAM V/S SRI. SAMBHAJI & ORS. -(ILR 1998 KAR 681) "19. It has been contended by the Learned Counsel for the appellants that the finding of the 180 I Appellate Court to the effect that the suit by one of the co-parceners for partition with respect to one of the items of the Joint Hindu Family property is maintainable in the special circumstances is not proper. During the course of the order, the Appellate court has observed that Section 261 of Mulla Hindu Law 15th Edn. At pages 351 and 352 makes it clear that non- alienating co-parceners are entitled in Bombay, Madras and Allahabad to sue the purchaser for partition of the alienated property without bringing a suit for a general partition. In the present case on hand all the non-alienating co- parceners have not filed the suit. The mere fact that the other non-alienating co-parceners viz., defendants-7 to 9 did not join the plaintiff in filing the suit is not material. The right of non- alienating co-parcener in Bombay area does not depend upon the whims and fancies of remaining no-alienating co-parceners who for reasons best known to them may not join the plaintiff in filing suit. Patna and Andhra Pradesh High Courts held that one of the several no- alienating co-parceners cannot sue the purchaser for his own share of the alienated property. It has been observed by the I Appellate Court the law applicable in Bombay area does not prohibit the suit by one of the several no- alienating co-parceners. The I Appellate Court considered the ruling in AIR 1983 SC 124 wherein it has been held that a purchaser can be impleaded even when decree for partition of agricultural lands is pending before the Collector for effecting partition. But it is not the case in the present it. In ILR 1989 Kar 1895 it is held that a partition suit should comprise of all the available properties, as far as possible. That decision has been distinguished by the I Appellate Court as that was not a case of no- alienating co-parceners filing a suit for partition 181 of alienated property. The view that has been taken by the I Appellate Court cannot be stated to be a correct one in the circumstances of the case. It is to be seen that the plaintiff, defendant-1 and defendants-7 to 15 are the members of Joint Hindu Family. There is no partition by metes and bounds of the family properties. The present suit is filed in respect of the suit land only. There are other lands in other villages and also other house properties which have not been included in the suit which are admittedly the joint family properties. It has been observed in Mulla's Hindu Law- 13th Edn. regarding the rights of purchaser of co-parceners interest. It has been stated that the no-
alienating co-parceners Are entitled in Bombay, Madras and Allahabad to sue the purchaser for partition of the alienated property without bringing a suit for general partition. It sis to be noted that in AIR 1984 AP 84 it has been held that normally a suit instituted for partition should be one for partition of the entire joint family properties and all the interested co-sharers should be impleaded. The suit of partition of specified items can only be an exception. In the present case on hand, the 1st defendant has alienated the suit land in favour of defendants-2 to 6. the 1st defendants is the member of the Joint Hindu Family. As already stated that the family has got other several lands and house properties which are the joint family properties. It has been contended by the Learned Counsel or the alieness while allotting the share to defendant-1 in the family properties equitable rights of purchasers on partition has to be considered and those rights can be considered only when all the joint family properties are included in the suit for partition. Otherwise, it would be difficult to apply principles of equitable partition. The 182 inclusion of all the joint family properties in the instant suit for partition was necessary and without bringing all the joint family properties into the hotch-pto, the suit for partition of the shares of the members of the joint family in one property which amounts to partial partition is not maintainable. This contention in the circumstances of the case, has force and the same has to be upheld. The reason being, the present suit ahs been filed by one f the no- alienating co-parceners of the joint family property. The suit has been filed by the no- alienating co-parceners with respect to the only property which has been alienated. This is not a suit for general share of the plaintiff to be worked out if all the joint family properties had been included in the schedule then, at a partition, the share of the 1st defendant would have been worked out in order to give equitable relief to the alienees also as they have purchased the property by the 1st defendant. In that view of the matter, the present suit filed by the plaintiff without including all the joint family properties and which prejudices the rights of the alienees who have also been impleaded as parties to the suit, in the circumstances of the case, has to be held that the suit filed by the plaintiff for partial partition without including all the joint family properties is bad in law. The finding given by the trial Court with respect to the sixth issue has to be maintained and the finding given by the I Appellate Court that the suit is maintainable without including all the joint family properties cannot be held to be proper in the circumstances of the case. Hence, the finding of the A Appellate Court holding that the suit of the plaintiff for partial partition is maintainable should be set aside and the finding of the Trial Court with respect to the sixth issue that the suit is bad for non--joinder of necessary 183 properties to be included in the suit has to be upheld.
TUKARAM GOVIND NAGANVAKAR (DECEASED) BY LR's AND ANOHTER V/s STATE OF KARNATAKA AND OTHERS- (2001(4) KAR.L.J. 505) "8. It is not disputed xxxx takes place. However, as rightly pointed out by Sri.Kothawale, the purchaser of an undivided share of a member of the joint family will not become a member of the joint family and he will not be entitled to be in joint possession along with other members of the joint family in respect of the joint family properties. He does not acquire any interest in the property purchased by him. He neither becomes a tenant in common with the members of the family, nor is he entitled to joint possession with them. His right is only to seek for general partition and separate possession of the joint family property. In my view xxx family property".
The same view is expressed by the Division Bench of the Madras High Court in the case of V.C.Thani Chettiar, supra. In the said decision, at paragraph 5 of the judgment, the court observed thus:
"Before we deal with the question as to which Article of the Limitation Act applies to a case like the present, it is useful to examine the position and the rights of persons like the plaintiffs who purchase a share of some of the coparceners of a Hindu family. The purchaser cannot claim to be put in possession of any definite piece of family 184 property. He does not even acquire any interest in the property sold. He does not become a tenant-in-common with the members of the family. He is not entitled to joint possession with them. He has only an equity to work out his rights by means of a partition standing in his vendor's shoes. The alienee's suit for partition must be one for partition of the entire property and not for the partition of any specific item of or interest in the family property. Such a suit, however will not be technically on a par with a suit for partition filed by a coparcener. Such a suit would not have the necessary effect of breaking up the joint ownership of the members of the family in the remaining property nor that corporate character of the family."
The Supreme Court in the case of Smt.Kailash Pati Devi, supra, has observed thus:
"The purchaser of joint family property from a member of a joint Hindu family may have the right to file a general suit for partition against the members of the joint family and, indeed, that may be the proper remedy for him to adopt to effectuate his purchase."
It is also useful to refer to the observations made in Sri.N.R.Raghavachariar's Hindu Law-Principles and Precedents, Ninth Edition, at page 10, which read as hereunder:
"A person who purchases an undivided share of a coparcener cannot claim to be put in possession of any piece of family property. He does not even acquire any interest in the property sold nor does he become a tenant-in- common with the members of the family, nor is 185 he entitled to joint possession with them. His claim is only to an equity to work out his right by means of a general partition by standing in the vendor's shoes and not to a partition of any specific item of or interest in the family property."
In the judgment rendered by Division Bench of High Court of Madras in the matter of MANJAYA MUDALI, their Lordships have compared the joint family concept with law of partnership and held that a member of a joint family cannot, any more than a partner, introduce a stranger into the community and the Division Bench came to a conclusion that in such situation the remedy of a litigant would be to seek for partition by bringing the entire properties belonging to the joint family for partition and not a specific property or a share in the said property.
85. In TUKARAM's case, a co-ordinate Bench of this Court was examining the conclusion arrived at by the First Appellate Court that suit being maintainable for partial partition without including all the joint family properties and held as same to be bad in law and as such, the finding of first appellate Court came to be reversed. 186
86. Yet again, a Co-ordinate Bench of this Court in TUKARAM GOVIND's case, held that purchaser of an undivided share of a member of the joint family will not become a member of the joint family and he will not be entitled to be in joint possession along with other members of the joint family in respect of the joint family properties. This Court has taken note of the view expressed by the Division Bench of the Madras High Court in the case of V.C.TANICHETTIYAR & ANOTHER vs DAKSHINAMURTHY MUDALIAR & OTHERS reported in AIR 1955 MADRAS 288 wherein Division Bench had come to a conclusion that purchaser cannot claim to be put in possession of any definite piece of family property and he does not acquire any interest in the property sold nor he becomes a tenant-in- common with the members of the family and he would not be entitled to joint possession. It is also held that his right would be circumscribed to seek for partition of his vendor's share and not necessarily same property. Division Bench of the Madras High Court was of the view that partition must be one for partition of entire property and not for partition of 187 a specific item of/or interest in the family property. In other words, purchaser steps into the shoes of his vendor who is member of a joint family and when such an exercise is undertaken, he cannot claim for partial partition since his rights in the portion of the property said to have been purchased is circumscribed by the rights of the member of the joint family.
87. In this background, the facts on hand requires to be examined. Plaintiff admit in the plaint that during the life time of Sri. K.J.V.Naidu, his son namely, KJV Ramappa Naidu had become divided in his status as also the second defendant's father KJV Subbarayulu Naidu. It is further admitted that there was no separation by metes and bounds. In other words, plaintiff admits that there is no division of joint family properties by metes and bounds. In fact, on the basis of the plea put forward by 8th defendant about maintainability of suit, trial Court had framed issue No.(1) & (2) in this regard and answered the same in the negative. The findings recorded by trial Court on these two issues are at paragraphs 25 & 27. The judgment and decree passed in 188 O.S.No.1/1968 which came to be produced and marked as Ex.P-3 would indicate only certain properties belonging to the joint family of Sri.K.J.V.Naidu was subject matter of said suit. Admittedly all those properties which belonged to the joint family have not been included in the present suit. It is also intriguing to note that plaintiff themselves admit that suit schedule property is a joint family property amongst other properties belonging to the family of Sri. K.J.V.Naidu. To repel this contention, Sri. Shanmukhappa, learned counsel appearing for appellant has contended no plea has been raised regarding partial partition in the written statement filed by the defendant and when it is already contended that partition has taken place, such a plea cannot be allowed to be raised at this stage and even otherwise, rights of the parties are determined by a preliminary decree and if some of the properties are not included in the preliminary decree, it can be included in the final decree proceedings. In support of said submission, he has relied upon the following judgment:
(1) S.SATNAM SINGH & Ors. Vs SURENDER KAUR & Anr.- (AIR 2009 SC 1089) 189 "16. Before adverting to the rival contentions of the parties, it must be kept in mind the principle that ordinarily a party should not be prejudiced by an act of court. It must also furthermore be borne in mind that in a partition suit where both the parties want partition. A defendant may also be held to be a plaintiff. Ordinarily, a suit for partial partition may not be entertained. When the parties have brought on records by way of pleadings and/or other material that apart from the property mentioned by the plaintiff in his plaint, there are other properties which could be a subject matter of a partition, the court would be entitled to pass a decree even in relation thereto."
The Hon'ble Apex Court was considering an issue as to whether appellate Court has a suo motu power to amend the decree to rectify mistake committed by the trial Court, particularly when the property was subject matter of the pleadings and it has been specifically held that power of amendment, "in a case of this nature" would not only be dependent on the power of the Court but also on the principle that a Court will always be ready and willing to rectify the mistake it has committed.
88. In the instant case, as noticed herein above, plaintiffs themselves admit that there was no division of joint 190 family properties and Ex.P-4 would also reflect as to what are all the properties that was belonging to joint family. The purchaser namely, plaintiff having stepped into the shoes of joint family member and they having not chosen to file comprehensive suit for partition of joint family properties and attempting to seek their right enforced on the ground that they have purchased a portion of a share belonging to a member of the joint family, such suit for partial partition would not be maintainable since even the partition which he seeks is based on equity and not as of right. There may be an instance where the member of the joint family who has alienated his undivided share may be allotted a different portion or altogether a different property and the recourse left open to the purchaser is to follow the right acquired by such member of a joint family contending that it has to enure to his benefit since alienation has already taken place. It is this right alone to which the subsequent purchaser would be entitled to and thus far and no further. 191
89. In the light of the aforesaid discussions made above, point No.3 formulated above is to be held in the negative.
RE: POINT NO.(4) & (5) In view of the discussion made hereinabove, I am of the considered view that the trial Court was justified in dismissing the suit filed by the plaintiff and also rejecting the claim of defendants-9 to 13 and defendants 31 to 35 for partition of the suit schedule property. The findings recorded by the Court below do not suffer from any error either on facts or on law which calls for interference at the hands of this Court in exercise of appellate jurisdiction.
Hence, following judgment is passed:
JUDGMENT
1) Appeals are hereby dismissed.
2) Judgment and decree passed in O.S.No.1949/1980 by the XXVIII Addl.City Civil & Sessions Judge, Mayohall Unit, Bangalore dated 29.01.2002 is hereby affirmed.192
3) Parties to bear their respective costs.
4) Registry to draw the decree accordingly.
Sd/-
JUDGE *sp/SBN