Karnataka High Court
Narappa Gouda And Ors. vs Tulasawwa And Ors. on 19 December, 2008
Equivalent citations: AIR 2009 KARNATAKA 180, 2009 (5) AIR KANT HCR 80, 2009 A I H C 3177, (2010) 1 MARRILJ 267, (2009) 84 ALLINDCAS 682 (KAR), (2009) 4 KCCR 2352
Bench: S.R.Bannurmath, Subhash B.Adi
-3- Age: Minor, pep by his father as Guardian the Respondent No. 1.
4. Anand Gouda.
S} o. Naraaappa Gouda Patii, Age; Mirzor, mp by his father as Guaxxiian the Respondent No. 3.
5. Smt. Suvaxnasvwa K. Bapalazeédi . C/0. K. Boopalraddi, Occ:A.A.0.'"-. A R10' H,No,95, T. ' Johisar Gui, I-iospet Road; _ ' _V ~ 1 ._ p Hma , Bellamy Dist1'i¢.:}:';"~. ..,_ REEEPCENDENTS [By Sri. F'. H. Goth1dndi;'&'§dv,f::i*"R~;S; V' Sri. V. T. Rayaraddi, Adv. ,i"<)_1f AA R.F.A.No.734/ 1997- 'ai111dTer "section 96 0f CPO, against the order 19.108,}.Si9'f-,ii1W€f}7S."Nk:§.10/'94 on the file of the :9 AddL_C.ivfl;'1J11c2g€. (E?g1'.E)ix{!1;._1 M. at Dhatwad, decreeing the sigit "f<)1*_Vpa1"-t;i*Fi<$i3.Ve*i:c."'._' ' R;F';A9.,.i§IV<3.7SS*f; 1.9%'? "is tinder Section 96 of CPC, against': the oxiiér Dt;.19;QE§;.199?f in O.S.No.10/94 on the file: of thc:-: I" f§dcfl..C3i:ui1J.i1a1gé:. V{S:_.L}.ivn.) Dhazwad, decreeing the suit for p8I'fifiC}I1"€%'tG.' V --
, ~Thcse"4":'Li3p1:za.};s been heard and msexvcd for juégz3:;:en"t and cdvming 911 for Pmnouncement of Judwent this .' V. ~d;:1y,~-- SIJBE-111.8!-I ADIVE', éelivemd the following:
sJJI_.D_.G_H_E_H_'£ _ appeals arise out of the judgment and decéee, f<}§s.1~ro,10/1994 dated 199 August 1997 on ma %%%.9j999t':;:e99u.;;§kw Aciditional cm: Judge (Sr.Dn.), Qharwad. f%;.F'.}S.No.734f1997 is by the defendants --- 1 to 4, .'v§.F.A.No.755/ 1997 is by the plaimzifl". V' - A I}:%tfen.:1ar1t:~2 -4-
2. Parties will be I'ef€:I'z'ed to as per their ranking in the trial court.
3. Suit is one for partition possession of 1/631 share by mates and '
4. Plaintiff is the mother ¢:f%c1«.=%:fe::c:ént%%1*4s£;. 3;
Defendant N082 to 4 are Adcferzclsrytfiii'; Thd' V genealegy of the famiiy isas ur1ciéif:--
Venkaisagoigda Pg11:i.1ff A . _ (P1'0_p9situs._ai1cad) '*-- ~ ' Ttflasawwa {PIE V " V' Néfapdpagoupia Dcfb I Suvarna 3_f0_ (daughter) W/0 V Patti} V .. yrsjpositus" deft-5 V _V 3/iankazlagouda Patil Venégaxmgoucia V' gfimiagouda " """ " Defendaz1t--3 Ammd Gouda Defendant-4 veg:¢a.m;g§;1aa§gm died on 24.1.3964, leaving behind the ' -"'--'Vwifs, defendant N951 ~--~ son and defendant N515 --« "..§i.:-1x;1igh.:t;erV.s After the éeath of Venkanagouda Patil, ssd¢mam No.1 relinquished his right, title and interest ' "uover the suit property in favour of his than minor sons -- -5- defendant Nos.2 to 4 by means of mutation entry No.2507. Accordingly, the names of defendant Nos.2 to_;4V_:
mutated in the record of rights both to lands and the house properties. '" entry in the record of rights, defendant N'os.t2 made as party to the suit.
5. Plaintiff atteeefe defendant No.5 grew chiily, cotton. in the suit property. the capacity of the advantage of the age -he tried to evict her from the suit are joint family properties _ and thereis noV"partit:io:11 and, despite her repeated request separate possession of her share, tot 4 are neither partlfioning the suit _ . ' s.pro;a;§1+.ie~s;:¢i allowing her to take her crop gown on the Ptatnee claimed 1/em share for herself and for No.5.
6. Defendant No.1 on his behalf and also on behalf of defendants-2 to 4 -~ minor children filed written if -5- statement. Defendants admitted the relationship of the parties. I-iowever, he alleged mat, defendant married about 18 to 20 years back and at _ marriage, she was gven 15 tholas pf gold -" V» cash towards her share in the and aileged that, she has noiight, and * suit property. Further .. T_ and defendant No.5 I}€V€I'V€.i'1...};'L'tiVI;iV,f%C€.:i' 1101' they have any right in alleged that, plaintiff ass a suit far partit:i'ox_1_. property. Defendants denied fine V
7. V"B_;-f1saci ?:>._I:.{'éfheiifiléadixxgs, the trial court framed . Athca fuijosgifig issues; _____ H .
' 1. the suit filed by the plamtjf is X iazmeihér the plamtifihas got share in the suit .. prgrpenies? ffso, to what extent?' Whether the defendant N05 has got share in the suit properties? lfso, to what extent? '£55,
4. Whether dqfenclcmt No.5 proves that the land S£No.338 measuring 2 acres 26 guntas qf Nalvadivfllageandopenspam mecmtfor -7- backyard, is also joint family property of plaintfi and defendams?
5. Whether Krisfmagouda
5. To what relief} pzaintgyis entitled? A
7. What decree or order?
8. Before the examined as PW~1; defe1ida1if'=!§G.1 got' mad' as DW51, he also DVWS-2 and
3. Plaimifi' defendants did not V.
9. judganents reported in 111.12 iégyee of RAMACIMNDRA BHIEiAI§£fi_ ----us- SUSHILA AND OTHERS 0i11_Ver"jL1.'c'?.@:.eeI:ts of this Court and the Apex that "widow can main!/am' a suit for l 3011 and alse held that the plaintiff is _ entitled share in the suit schedule preperty. V' Sri.V.T.Rayaraddi, learned Counsel appearm g V. fee? the defendantswl to 4 submitted that, the plaintifi' " the submitted that, plaintifi' being a No. 1, she alone has filed a suit for are co-parcenery properties. He further :."s;ub1:.Iii;tted that, in View of the admitted facts, the suit is maintainabie. He further submitted that, after the death of Venkanagouda, the suit properties are being a mother, she on her own cannot maintain a suit fer partition in respect of co-parcenery property, she. share only when partition takes place parceners. In this regard, he rei_i_ed_on the' Article 316 of Hindu Law by mother cannot compel a L' remain united, if the piace mideen the sons, she is entitled .4 submitted that, neither are entitled to sons, who have a right to sis" as they choose. As a wife entitled for maintenance, but she is _I1ot'ientit1e§:i--_ to--._seek partition. In this regard, he pa: has admitted that, the suit schedule transferred to the katha of defendant No.1 and thereafter /' .19.
share in the interest, which her husband had at the time of his death in the co-pareenery property, dep:er:1d_s~»._on determination of share in her husband's' husbaI1d's own, in the 00- arcene .""ro" ,7.S0n"
«. , .. V? ---; »' daughter and widow are Inentjoned "Class,-"I..heii"~V'dit1Vithe scheduie. In case of >a dd one has to '1ma@'ne the.§t21ter'o1°V adldidttie prior to the death of the propesittls, ' -of co--pareenery property has hetween deceased and other as if the partition has of the husband, wife could hut when notional partition takes. p1ace"iittie.,§':1'ier tofthe death of the husband of the dwefild be entitled to a share along with tom husband and further she is also entitled to share of husband.
Ad He also relied on a Full Bench decision of ' Berebay High Court reported in AB 197 5 Bombay 257 in '4 mthe matter of SUSHILABAI RAMCHANDRA KULKARNI ----vs- NARAYANRAO GOPALRAO DESHPANDE 65 OTHERS mld submitted that. the right. conferred upon the mother -13- between mother and son. Mother being the widow and entitled for a share on the notional partition place imznediately prior to the death of Patil. The provisions of Hindu l,avgHdo not _:fo'r pa1'ti'n'oI1 by a widow against onl5«;'».1soI;;e..:' A
13. Though u-1a1 found 'théztt Wpiaintitf is entitied for coij'sid'e1ing the determination of not considered, to what AI-Vie submitted that, in View of place prior to the death defendant No.1 and Venkataeigouoa share each i.e., 1/ 3 each. The 5};/"3fd of éeceesed Venkanagouda Paitil is again :AA9_j::;r)xngstvV"""t;1'1e plaintifi", defendant No.1 and i.e. each will get 1/9th share each and acoordir:1§g13I';"p1ajntifi' would be entitled to 419th share. He ' ' * fL1:ther"" "submitted that, the plaintifi' has filed an tatjpiieatiozz for amendment of the plain: to claim 4/931 ' instead of 3/631 share. He submitted that, it is only a correction of extent of share and does not require any evidence. ' a" M'
-;3-
14. In the light of the rived contentions, the points that arise for consideration in these apmals are:
2') Whether widow can suitfor partition against V' ' 1
ii) Whether she W..mat.;h...o..?
15. A 4' i dispute. Plaintiff is I§0th.ef'" at tiefi;-nci§a:z:t ixio.1 and defendant No.5, defenciéVnt'V' children of defendant No. property. It is also not in V. plaintifi" namely, Ven1{an.§;g{ifid§:V:'V:1:;%ti1VVV' in i iii96§4 leaving behind wife, ciefeiidaiit !'No.V1 ' vdeferidant No.5 -- daughter. Except defeiiélaiat vI'~1'o. there is no other co-parcener at the fiiiiig thevsuit. Under the Hindu Law, Wife or parfifion or division as Kong as the co--- Z _ pmtetlers to remain undivided. The co---parce3:1ers to remain undivided. In this case, there is no :eo~parce11e*r, who wants to remain undivided. The T ffquestien as to whether widow can. maintain a suit fer The relationship betibeen time.
-14- parfition was considered by this Court in a decision reported in ILR 1997 Kar 40 (supra). and this followed the earlier decision. The Apex Court a reported in AIR 1967 so 272 in thefi1'atir.er'..éof.; A' ISSER --v$- SABUJPARI AND oryeivsiiiés aiseii¢ensiLié:sédv.;e as regard to the right of Wido1vVS~.to S The said matter has in a judgment reported in in the matter of SHIVALlIVC2¢{iPP;%3:i1. the Gujarat High Court in a 1974 GUJARAT 23 in the ' J:f:.'¥fV JAGDISHCHANDRA Imwosriazvxgk OTHERS and so also by the orisggiiigh AIR: 1990 ORISSA 155 in the matter or was-iSR1mT1 DEIAND OTHERS.
.i€_7:.'~§s_I'f',A;.I::lé3»I1&iTI}:(}i1 to proviso to Section 6 of Hindu ~v,.,_"Sueeession Act 1956, provides for notional partition, as if has taken place ijttle before the death of h K propositus i.e., Venkzmagouda Paul in this case.
17. In the light of the proviso to Section 6, which contains the formuia for fixing the share of the claimant -15- and the explanation contains the formula for dedpcting the share of the deceased (Venkanagouda application of proviso in the absence of any document, p1ai.ntifl'---- the widoxv, it ' deceased propositus, all being Ciaees-I:%" it simultaneously take equal
18. As regards to the share of the plaintiff Vexpianation (1) to Section 6 which contains a fomlula H for of the deceased, pmvidedfei little before the death of Venka.t3agoiicia' by a share to the deceased, as if V' "the place and share is aliottd to him. Qiie the state of things in which little prior to the Venkanagouda 3Pati1, the partition would be 'eiIected',._.i'ifenkanagouda Patil and defendant Ned though not being a e0--parceI1er was not entitled to .. eimand partition yet in the partition between A V Venkanagouda Patii and defendant No.1, she would be -55- entitled to receive share equal to that 01' a sen and this is clear from the Cemmentary in Mullafis 1-Iindu Edition para-403 and 350. Since the notie:-;1'a1«' takes place little prior to the death of V' in which event, plaintifi gets ' paxfitien and further she beepmee.ef1fit1e<i"%'tev:4(;1aij31 v partjfion. As on the said ,_ T_ schedule property is divided, Patil will get one share, son get. will also get one Patj} further undergeee defendant No. 1 end i;*e.L&,"ie1_;e 3rd is divided into 2/9th each that meaiasu," £3,/VV".3'§h.'4V" to piainfifl, she would be _ meeee 2e 4 Initially me plajntifi has claimed '1 the suit schedule properties, however, (.1urj:1' Veg' at' these appeals, an application is I_filed' ' be flee learned Couneel for the plainfifi for i~fei;:ue'a=sdneent of pamgmphs--*?, 10, 12(1) of the pie:-at correcting 1/6th share as 4/931 share. This Conn by its erder dated 2.9.2085 has diretxed I.A.I/2005 .17- seeking permission to amend the plaint be considered along with the main matter.
19. No doubt, the plaintifi' has menfione§§..Vi;§?§'§;1t;V_she is enfitled to 1/ 6:31 share in those paragz*aphss;:«.Iiti*s%?;§7':§I§:'°,i*¢.__ law, she is entitled to 1/3"1 share; alqng with . son in a notional partitian and Vieatitied . for share in the hz1sband's »f,,'1'iei._je3;1_np3jt:atioI§' is opposed, however, e_pnside1?Lng:tI1e»Lad.1i1i'ttegi gelationship between the parties, share to which the plaintiff 'epinion ma: the applicaticn of working out of the it" for further evidence.
Aecordmgi3i,Vw.eVVé11e§; to amend the plaint. In vie;vee.,of'e:ne ea}ne_,____'plainfifi' is entitled for 4/gm share, 'defengia:1{ is entitied for 4/ gm share and defendant :~3o%.5' is ' éngifléa for 1/9&1 share in the suit schedule