Karnataka High Court
Smt Ramakka vs Smt. Thanamma Since Deceased By Legal ... on 6 June, 2013
Bench: N.Kumar, B.Sreenivase Gowda
®
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 6TH DAY OF JUNE, 2013
PRESENT
THE HON'BLE MR.JUSTICE N. KUMAR
AND
THE HON'BLE MR.JUSTICE B SREENIVASE GOWDA
R.F.A. NO.2116 OF 2010
C/W
R.F.A. NO.2117 OF 2010
IN R.F.A. NO.2116 OF 2010
BETWEEN:
1. SMT RAMAKKA
W/O LATE GOVINDAPPA
AGED ABOUT 70 YEARS.
2. PURUSHOTHAM
S/O LATE GOVINDAPPA
AGED ABOUT 41 YEARS
3. RAVI
S/O LATE GOVINDAPPA,
AGED ABOUT 38 YEARS.
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4. BHAGYAMMA,
D/O LATE GOVINDAPPA
AGED ABOUT 52 YEARS.
5. SMT HEMAVATHI
D/O LATE GOVINDAPPA
AGED ABOUT 50 YEARS.
6. SMT LALITHAMMA
D/O LATE GOVINDAPPA
AGED ABOUT 47 YEARS.
7. SMT YASHODAMMA
D/O LATE GOVINDAPPA
AGED ABOUT 45 YEARS.
8. SMT. GEETHA
D/O. LATE GOVINDAPPA
AGED ABOUT 43 YEARS.
ALL ARE R/AT NO.157
1ST CROSS
BASAVESHWARA TEMPLE STREET
CHOLANAYAKANAHALLI
R T NAGAR POST
BANGALORE - 560 032 ... APPELLANTS
(By Sri Y. R. SADASHIVA REDDY, ADV.)
AND
SMT. THANAMMA
SINCE DECEASED BY LEGAL HEIR
1. P SRINIVAS
S/O LATE PAPANNA
AGED ABOUT 54 YEARS
-3-
R/AT NO.105, 3RD FLOOR,
GAYATHRI RESIDENCY,
2ND CROSS, CENTRAL EXCISE LAYOUT,
BHOOPASANDARA, R M V II STAGE, BANGALORE-
560094.
2. SMT GOWRAMMA
W/O PAPANNA
AGED ABOUT 70 YEARS
R/AT GOWRI NILAYA
HEBBAL, BANGALORE - 560 024.
3. SMT ASWATHAMMA,
W/O. T MUNIYAPPA
AGED ABOUT 65 YEARS
R/AT NO.2, KOLANDAPPA GARDEN
GAJENDRANAGAR, ANEPALYA
AUDGODI POST, BANGALORE-560 030.
4. SMT SUSHEELAMMA,
W/O SEETHARAMAIAH
AGED ABOUT 63 YEARS
R/AT NO.73, 1ST CROSS
SULATHANPALYA, R T NAGAR POST
BANGALORE - 560 032.
SMT PILLAMMA
W/O. LATE MUNIYELLAPPA,
SINCE DEAD
LRS ARE ALREADY ON RECORD
5. SRI MUNIYALLAPPA
S/O LATE MUNIYALLAPPA
AGED ABOUT 65 YEARS
R/AT GUDDADAHALLI,
R T NAGAR POST,
BANGALORE.
-4-
SMT VENKATAMMA
W/O DODDAKRISHNAPPA
SINCE DEAD
LRS ARE ALREADY ON RECORD
6. A. K. VENKATESH
S/O DODDAKRISHNAPPA
AGED ABOUT 53 YEARS
R/O ANAGONDANAHLLI,
MADI MALLASANDRA POST,
VIA KADUGODI, HOSKOTE TALUK,
BANGALORE-560 067.
7. K. LASHMINARAYANA
S/O. DODDAKRISHNAPPA
AGED ABOUT 51 YEARS
R/AT ANANGONDANAHALLI,
MADI MALLASANDRA POST,
VIA KADUGODI,
HOSKOTE TALUK,
BANGALORE-560067.
8. CHANDRAPPA
S/O. DODDAKRISHNAPPA
AGED ABOUT 49 YEARS
R/AT ANAGONDANAHALLI
MADI MALLASANDRA POST,
VIA KADUGODI, HOSKOTE TALUK
BANGALORE-560067.
9. SMT JAYAMMA
W/O KOLANDAPPA
AGED ABOUT 62 YEARS
R/AT KOLANMDAPPA GARDEN
ADUGODI POST
BANGALORE-560030
-5-
10. SMT SARASAMMA
W/O MUNISWAMAPPA
AGED ABOUT 55 YEARS
R/AT DOOR NO.479,
AMARJYOTHI LAYOUT
CHOLANAGAR, 1ST CROSS,
R T NAGAR POST,
BANGALORE - 560 032.
11. SMT PARVATHAMMA
W/O SHAMANNA,
AGED ABOUT 52 YEARS,
R/AT ANAGONDANAHALLI,
MADI MALLASANDRA POST,
VIA KADUGODI, HOSKOTE TALUK,
BANGALORE-560067
12. MANJUNATH,
S/O LATE VEERABHADRAPPA
@ SHAMANNA,
AGED ABOUT 48 YEARS,
R/AT NO.4, 1ST MAIN,
HEBBAL,
BANGALORE-560024 ...RESPONDENTS
(By Sri. SRI. O. SHIVARAM BHAT, ADV. FOR R.1, R.2
SRI. M. NARAYANA REDDY, ADV. FOR R.3,
SRI. V. LAKSHMINARAYANA, ADV. FOR R.4,
SRI. C. GOWRISHANKAR, ADV. FOR R.5,
SRI. G. CHANDRASHEKARAIAH, ADV. FOR R.6 - R.8,
SRI. SRI. H. S. SATISH KUMAR, ADV. FOR R.9,
M/S. ACC ASSOCIATES, ADVS. FOR R.10, R.11,
SRI. B. L. NANDAKUMAR ASSOCIATES, ADVS. FOR R.12
SRI. M. C. NARASIMHAN ASSOCIATES, ADVS. FOR
PROPOSED R.13, R.14, R.15, R.16, R.17, R.18, R.20, R.22,
R.24, R.25, R.26, R.27, R.28, R.31, R.32.
SRI. SRINIVASA RAGHAVAN OF INDUS LAW, ADV. FOR
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IMPLEADING PROPOSED R.33,
PROPOSED R.19, R.21, R.23, R.29, R.30 - SERVED)
THIS RFA IS FILED UNDER SECTION 96 OF CPC,
AGAINST THE JUDGMENT AND DECREE
DATED:18.10.2010 PASSED IN O.S.2640/1988 ON THE
FILE OF THE I ADDL.CITY CIVIL & SESSIONS JUDGE,
BANGALORE CITY (CCH.NO.2), PARTLY DECREEING THE
SUIT FOR PARTITION AND SEPARATE POSSESSION.
IN R.F.A. NO.2117 OF 2010
BETWEEN:
1. SMT RAMAKKA
W/O LATE GOVINDAPPA
AGED ABOUT 70 YEARS.
2. PURUSHOTHAM
S/O LATE GOVINDAPPA
AGED ABOUT 41 YEARS
3. RAVI
S/O LATE GOVINDAPPA,
AGED ABOUT 38 YEARS.
4. BHAGYAMMA,
D/O LATE GOVINDAPPA
AGED ABOUT 52 YEARS.
5. SMT HEMAVATHI
D/O LATE GOVINDAPPA
AGED ABOUT 50 YEARS.
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6. SMT LALITHAMMA
D/O LATE GOVINDAPPA
AGED ABOUT 47 YEARS.
7. SMT YASHODAMMA
D/O LATE GOVINDAPPA
AGED ABOUT 45 YEARS.
8. SMT. GEETHA
D/O. LATE GOVINDAPPA
AGED ABOUT 43 YEARS.
ALL ARE R/AT NO.157
1ST CROSS,
BASAVESHWARA TEMPLE STREET,
CHOLANAYAKANAHALLI,
R T NAGAR POST,
BANGALORE - 560 032 ...APPELLANTS
(By Sri Y . R. SADASHIVA REDDY, ADV.)
AND
1. SRI. MUNIYELLAPPA @ APPASWAMY
S/O LATE MUNIYELLAPPA
AGED ABOUT 65 YEARS
R/AT NO.197, GOVINDAPPA GARDEN
GUDDADAHALLI, R T NAGAR POST,
BANGALORE - 560 032.
2. SRI MANJUNATH
S/O LATE PADMAMMA
AGED ABOUT 48 YEARS
R/AT. NO.197, GOVINDAPPA GARDEN,
GUDDADAHALLI, R.T. NAGAR POST,
BANGALORE - 560 032.
-8-
SMT VENKATAMMA,
SINCE DEAD BY LRS
W/O. T. MUNIYAPPA.
3. A. K. VENKATESH
S/O. LATE DODDAKRISHNAPPA
AGED ABOUT 53 YEARS
R/AT. ANAGONDANAHALLI
MADI MALLASANDRA POST,
VIA KADUGODI, HOSKOTE TALUK
BANGALORE-560 067.
4. K LAKSHMINARAYANA
S/O DODDAKRISHNAPPA
AGED ABOUT 51 YEARS
R/AT ANAGONDANAHALLI
MADI MALLASANDRA POST,
VIA KADUGODI, HOSKOTE TALUK
BANGALORE-560 067.
5. CHANDRAPPA
S/O DODDAKRISHNAPPA
AGED ABOUT 49 YEARS
R/AT ANAGONDANAHALLI
MADI MALLASANDRA POST,
VIA KADUGODI
HOSKOTE TALUK,
BANGALORE - 560 067.
6. SMT JAYAMMA
W/O KOLANDAPPA
AGED ABOUT 62 YEARS
R/AT KOLANDAPPA GARDEN
ADUGODI POST,
BANGALORE - 560 030. ...RESPONDENTS
(By Sri. C. GOWRI SHANKAR, ADV. FOR R.1,
SRI. B. L. NANDAKUMAR ASSOCIATES, ADVS. FOR R.2,
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SRI. C. CHANDRASHEKARAIAH, ADV. FOR R.3 TO R.5,
SRI. SATHISH KUMAR H.S. ADV. FOR R.6)
THIS RFA IS FILED UNDER SECTION 96 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED
18.10.2010 PASSED IN O.S.5075/2000 ON THE FILE OF
THE I ADDL.CITY CIVIL & SESSIONS JUDGE, BANGALORE
CITY (CCH.NO.2), PARTLY DECREEING THE SUIT FOR
PARTITION AND SEPARATE POSSESSION.
These appeals coming on for Orders, this day, the
Court, N. KUMAR J., delivered the following:
JUDGMENT
These two appeals are preferred against the common judgment and decree passed in O.S.No.2640/1988 and O.S. No. 5075/2000 decreeing the suit of the plaintiffs.
2. For the purpose of convenience, the parties are referred to as they are referred to in the original suit.
3. O.S.No.2640/1988 is filed by Smt. Thanamma and her daughters against Smt. Pillamma and her son Muniyallappa and the legal heirs of her another son
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Govindappa who are defendants 3 to 5. Defendants 6 and 7 are the daughters of Pillamma. The tenth defendant - Manjunath is the son of yet another daughter of Pillamma by name Padmamma who died prior to the filing of the suit. Defendants 8 and 9 are the daughters of the first plaintiff. Defendants 11 to 15 are the daughters of Govindappa. The other defendants are the alienees from both Muniyallappa and Govindappa.
4. The subject matter of these suits are agricultural land, garden land and grape vine yard, which are more particularly described in the schedules 'A' 'B' and 'C'. The property described in the `B' schedule are lands situate in khaneshumari number.
5. The case of the plaintiffs is, one Arasikuttappa is the propositor. He had two sons by name Chinnanna and Muniyellappa. Muniyellappa had two wives, Smt. Pillamma
- the first defendant and Smt. Thanamma - the first plaintiff.
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Pillamma had two sons by name Govindappa and Muniyellappa and two daughters by name Venkatamma and Jayamma. Thanamma had five daughters by name Gowramma, Narayanamma, Saraswathamma, Susheelamma and Parvatamma. Yet another daughter of Pillamma by name Padmamma is no more and her son is Manjunath.
6. The further case of the plaintiffs is, they are all members of Hindu Undivided Family. There was a partition in the year 1941 between Chinnanna and Muniyallappa. Muniyallappa died in the year 1945, leaving behind two wives and their children. After the death of Muniyallappa, his eldest son Govindappa started to manage the affairs of the joint family. His name was entered in the village records. Plaintiff No.1 did not have any male issue. Her position was rendered helpless and she had to struggle even for her survival. After the death of Govindappa, all the income from the properties is enjoyed by the defendants, i.e. defendant No.1 - Pillamma along with her sons and daughters.
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Plaintiff No.1 has been virtually driven out of her family house and presently she is staying along with her eldest daughter Smt. Gowramma. Plaintiffs have been in joint possession of the schedule properties as members of the Hindu undivided family. The joint family has got several immovable properties which are fully described in the plaint schedule. All these properties are ancestral properties. They are situated in three villages. In para 6 of the plaint the plaintiffs have clearly set out the survey numbers. Six survey numbers are situated at Cholanayakanahalli, seven survey numbers in Guddadahalli and six survey numbers in Hebbal. Out of these lands, Sy.No. 69/2 measuring 2 acres 4 guntas was a tenanted land which was cultivated by the joint family. This land belongs to the joint family though the occupancy rights were conferred in the name of Govindappa. Sy.No. 2/2 measuring 28 guntas and Sy.No.2/3b measuring 2 acres 27 guntas situated in Guddadahalli are purchased by Govindappa who was managing the affairs of the family, from out of the income of the joint family properties.
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Therefore, all the properties are ancestral properties belonging to the Hindu undivided family and the plaintiffs have got share in these properties under the Hindu Succession Act, 1956. As per the genealogy, late Muniyellappa and his brother late Chinnanna would get half share each in the entire joint family properties. In the half share which were to fall to the share of Muniyellappa, the plaintiff No.1 being the widow of Muniyellappa would have got 1/4th share on notional partition. Plaintiff Nos. 1 to 6, namely the widow and daughters of Muniyellappa would get equal share along with other heirs of Muniyellappa in the 1/4th share fallen to the share of Muniyellappa. The plaintiffs have been deprived of their legitimate share in the joint family properties. When their request was not acceded to, they got issued a legal notice calling upon the defendants to give their share in the joint family properties. They neither sent any reply nor gave their share. Therefore, they are constrained to file these suits for partition and separate
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possession of their legitimate share in all the plaint schedule properties.
7. Defendants 1 and 2 filed their written statement. Their case is, the first plaintiff by taking some share in the property in the year 1963 left the village and started to live with her eldest daughter and enjoyed her father's property. No contribution has been made thereafter either towards the family or to the property. Therefore she ceases to have any right, title or interest over the family properties. The brother of the second defendant who had the active help and so also the financial help of second defendant performed the marriages of the daughters of first plaintiff. After their marriages, the first plaintiff left the village for the upliftment of her daughters with the properties of her father. Now the value of the properties has increased in and around the village of Guddadahalli due to formation of layouts by the Bangalore Development Authority. Even though she has not contributed anything towards the family, now she has come
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up with her daughters with a false, frivolous and vexatious suit. Properties mentioned in para 6 of the plaint have been divided among the family members during the life time of Muniyellappa itself and therefore the suit for partition is not maintainable. When the plaintiff left the family in the year 1963 after the partition of 1943, she has no locus standi to seek for partition of the ancestral property. The land granted to Govindappa by the Land Reforms Tribunal is not a joint family property, that is, the properties acquired by the defendant Nos. 1 and 2 and Govindappa. Therefore, it is not an ancestral property.
8. Even though the plaintiffs are not entitled to any share in the property, however on humanitarian consideration, the second defendant has given some property to the plaintiffs by executing some documents, after filing of the suit and not with any other intention. The plaintiffs have agreed to withdraw the suit, after receiving some properties from the second defendant, they did not act upon their
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promise. Naturally the second defendant is also bent upon to go back from his promise and to contend that the plaintiffs have no legal right or sanctity to seek partition. When the first plaintiff and her daughters are out of possession of the properties for more than 25 years, they have lost any right which they had in the property. The valuation done is not proper. Therefore, they sought for dismissal of the suit.
9. Defendant No.3, the widow of Govindappa filed a separate written statement. She has denied all the allegations. She admits that Chinnanna and Muniyellappa are brothers and Muniyellappa predeceased his elder brother Chinnanna. She denies after the death of Muniyellappa, Govindappa started to manage the affairs of the family. It is her specific case that, after the death of Muniyellappa, Chinnanna and Govindappa were divided in the year 1941 and as such, they do not constitute a Hindu undivided family. The said partition was oral. Since then they are
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residing separately and the revenue records are in their joint names. She denies that after the death of Govindappa, all the income of the properties is enjoyed by them. It is her specific case, when the first plaintiff is not at all a family member, there is no relationship between the plaintiffs and the defendants and therefore the plaintiffs are not in joint possession of these properties as alleged members of undivided family. The first plaintiff - Thanamma was married to one late Pachanna @ Chikka Pachanna, a native of Hoskote Taluk. After his death, she returned to her father's house at Hebbal along with her daughters and residing there permanently. Late Muniyellappa had married Smt. Pillamma, who is none other than the elder sister of the first plaintiff, since there was no support of any male person to Thanamma. Muniyellappa in his capacity as brother-in-law, has been supporting and assisting her on humanitarian consideration as she was his sister-in-law. She is a permanent resident of Hebbal with her father late Chinnanna. She had no right to demand partition of the
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properties of Govindappa and therefore, the suit is bad in law. After the death of Muniyellappa, there was an oral partition between Chinnanna and Govindappa in the year 1941. Afterwards in the year 1958, there was a partition between Govindappa and his brother Muniyellappa @ Appuswamy. In the said partition, half share has fallen to the share of Govindappa. Therefore, the brothers are in possession of their respective share. Sy.No. 69/2 is a tenanted land. It was cultivated by late Govindappa in his individual capacity and therefore it was granted in his name and none else has any right in the said property. She has also referred to the properties purchased by Govindappa during his life time in his name. He has been paying kandayam, his name is entered in the revenue records and he is in exclusive possession and enjoyment of the said properties. Therefore, the plaintiffs have no right in the said properties. Plaintiffs are total strangers and therefore she sought for dismissal of the suit.
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10. The tenth defendant also filed a written statement contesting the claim. He did not dispute the relationship between Muniyellappa and Thanamma. In reply to para 4 of the plaint, in the written statement he has clearly set out that Thanamma and Pillamma are the two wives of late Muniyellappa and the children born to each of them are also clearly set out. He refers to a suit O.S.No. 5075/2000 filed by Muniyellappa and contends, he is entitled to 1/10th share in the said property.
11. O.S.No. 5075/2000 is a suit filed by defendants 2, 6, 7 & 10 against defendants 3, 4, 5, & 11 to 15 who are the wife and children of Govindappa. In other words, this suit is between the branch of Muniyellappa who is the second son of Late Muniyellappa against the elder son of Muniyellappa i.e., Govindappa's branch. The plaintiffs in O.S. No.2640/1988 who represent the branch of Tanamma are not made parties to the suit. Similarly, Smt.Pillamma the first wife of Muniyellappa is also not made as party to the
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said suit. Their relationship set out in the above suit is reiterated in the plaint. After referring to the ancestral properties belonging to the family which existed prior to 1945 before the death of Muniyellappa, it is stated, the other properties shown in the schedule have been acquired out of the joint family funds and in the name of the Karta of the family - Govindappa after he became major. The said properties though standing in the name of Govindappa, they are also joint family properties. As on the date of death of Muniyellappa - husband of the first plaintiff, the husband of the first defendant Govindappa was then around 12 years of age. The mother Smt. Pillamma was the person in charge of the joint family and its properties. No sooner Govindappa became major, in the year 1951-52 he started managing the property as Kartha of the Joint Family. By that time, plaintiffs 3 and 4 in O.S.No.5075/2000 had already been married. Govindappa married Smt. Ramakka, in and around 1957. The joint family continued with the marriage of first plaintiff in O.S.No.5075/2000 in the year 1972. The
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two brothers were amicably carrying on the agricultural operations in the various items of the properties left behind by their father with the sisters also being provided every now and then 'arashina - kumkuma' for Ugadi and other festivals. The sister of the first plaintiff, the mother of the second plaintiff and plaintiffs 3 and 4 were also contributing their might and efforts for the agricultural operations as the entire community was of that background. The mother of the second plaintiff - Smt. Padmamma died in the year 1961 and then her husband married another lady. The second plaintiff was brought up by the first plaintiff. The first defendant and her husband Govindappa till he was alive, lived as joint family members. Even now, the second plaintiff is with the first plaintiff for the purpose of residence. Govindappa expired in the year 1987. First plaintiff became the Kartha of the two branches of the family. During the life time of Govindappa, Govindappa and plaintiff No.1 have acquired item No. 6 in the 'A' schedule property, item Nos. 4, 5 and 6 in `B' schedule property and item No.3 in `C'
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schedule property and in 'D' schedule khaneshumari No. 16 and 43. Some of the properties of the joint family mentioned in the schedule had been acquired by the Bangalore Development Authority for its public purpose. In the matter of acquisitions, the Special Land Acquisition Officer of Bangalore Development Authority has deposited compensation after the proceedings have culminated with the Bangalore Development Authority taking possession. They are now pending before the City Civil Court. The properties purchased by Govindappa in his own name are properties which have been acquired from the joint family income and they are purchased with the efforts of the said Govindappa, his brother and the first plaintiff and plaintiffs 3 and 4. The matter was known to one and all. Before his death, Govindappa had promised to share the properties with others i.e. brothers and sisters. However, it did not materialize as he died by cardiac arrest. The first defendant has clandestinely transferred the khatha in her name. The mother of the first plaintiff and mother-in-law of the first
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defendant who is a widow entitled for a share in the property under the Hindu Women's Rights to Property Act, 1937. There is no partition in the joint family even to this day. The same appears to be a mistake. The amount of compensation deposited in the City Civil Court belongs to all of them. The second plaintiff authorized the first plaintiff to withdraw the money and accordingly the share of the second plaintiff was duly paid, even though he was not a party to the said proceedings. The first plaintiff is entitled to 2/5th share and plaintiffs 2 to 4 are each entitled to1/15th share in the suit schedule properties. Plaintiffs and defendants are in joint possession of the properties. On the allegation that late Muniyellappa the father of the first plaintiff had also married a lady by name Thanamma, she and her daughters have filed a suit in O.S.No. 2640/1988. The said suit is in no way concerned with the disposal of the present suit. When the plaintiffs requested for their share, it was denied. Therefore, they were constrained to file the suit for partition and separate possession. In fact the defendants did not file
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any written statement. It was taken as closed. When an attempt was made to file written statement, their request was rejected. They were constrained to file writ petition before this Court in W.P. No.16713/2010. This Court by an order dated 03.06.2010 directed to treat the written statement filed by the defendants (in O.S. No.5075/2000), in O.S.No.2640/1988 as written statement in O.S. No.5075/2000. The said written statement is also extracted above in detail. As both the suits were pending in the very same Court, the subject matter of the properties are the same and as all the parties are before the Court and the issues are common, the trial Court conducted a common trial.
12. On the aforesaid pleadings, the trial Court has framed as many as 10 issues in O.S.No.2640/1998 which are as hereunder:
1. Whether the genealogy given by plaintiffs is correct?
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2. Whether defendants 8 to 14 prove the division in the year 1941 as contended?
3. Whether defendants 8 to 14 prove the division between themselves in the year 1958 as contended?
4. Whether the plaintiffs prove that all the suit properties are joint family properties?
5. Whether the plaintiffs prove that they and the defendants are the members of Hindu Undivided family?
6. Whether the sixth defendant is entitled to 1/10th share?
7. Whether the valuation of the suit is not proper and Court fee paid is insufficient?
8. Whether the plaintiffs are entitled to partition and separate possession of their share?
9. What is the share of the plaintiffs?
10. To what order?"
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13. The issues in O.S.No.2640/1988 are treated as issues in the suit O.S.No.5075/2000 also, based on the memos filed by the parties.
EVIDENCE
14. The plaintiffs in order to substantiate their claim in O.S.No.2640/1988, examined one Srinivas as P.W.1. 88 documents were marked as Exs.P.1 to P.88. On behalf of the defendants Muniyellappa was examined as D.W.1. The first defendant did not step into the witness box. Her children were examined. In all, four witnesses were examined on behalf of the defendants. They also produced 66 documents which were marked as Exs.D.1 to D.66.
FINDINGS OF THE TRIAL COURT
15. The trial Court on appreciation of the aforesaid oral and documentary evidence on record, held that the geneology given by the plaintiffs is correct. The first plaintiff
- Smt. Thanamma proved that she is the legally wedded wife of deceased Muniyellappa. The plaintiffs have proved that all
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the suit properties are joint family properties. They further proved that plaintiffs and defendants are members of the Hindu undivided family. It held, the sixth defendant is entitled to 1/60th share and it held plaintiff No.1 is entitled to 1/6th share, plaintiffs 2 to 4 and defendants 8 and 9 are entitled to 1/60th share each in the suit properties.
Accordingly, Muniyellappa - the plaintiff No.1 in O.S.No.5075/2000 was also held to be entitled for partition and separate possession of 5/12th share in the suit schedule properties and accordingly decreed the suit.
16. Aggrieved by the said judgment and decree of the trial Court, the first defendant and her children in O.S.No.2640/1988 have preferred these two appeals.
RIVAL CONTENTIONS
17. Sri Y.R.Sadashiva Reddy, the learned Counsel appearing for the appellants, assailing the impugned judgment and decree of the trial Court contended, when the
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status of the first plaintiff as second wife of Muniyellappa was specifically denied, though she was alive till 2004, she did not step into the witness box to speak about her marriage. None of her daughters entered the witness box to speak about the marriage. P.W.1 - grand son has no personal knowledge about the marriage. In the cross examination, he has categorically stated that he has no document to show the marriage between the first plaintiff and Muniyellappa. In the birth certificates of plaintiffs 2 to 6, their father's name is not shown and therefore with this evidence on record, the marriage of Thanamma with Muniyellappa is not proved. But still the trial Court ignoring this material on record has recorded a finding that she is the second wife of Muniyellappa which is erroneous and requires to be set aside.
18. Secondly he contended, under the Shastric Hindu law which was in force prior to the coming into force of the Hindu Succession Act, 1956, a widow and daughters
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had no right in the ancestral property. Muniyellappa having died in the year 1945, his widow and daughters had no right in the property as he had left behind two sons who were co-
parceners along with their father and by survivorship, the share of Muniyellappa was inherited by them and therefore the plaintiffs acquired no right in the schedule properties.
Even otherwise, it is only at a partition, the widow and unmarried daughters were entitled to a share under the provisions of the Hindu Law Women's Act, 1933.
19. Thirdly he contended, the properties which stood in the name of Govindappa were all his self acquisitions under registered sale deeds out of his own income and therefore the plaintiffs are not entitled to any share in the said properties. Lastly he contended, Govindappa was cultivating the said land as a tenant. He filed Form No.7 in his independent capacity which was granted to him and it was not a grant for and on behalf of the joint family and therefore, plaintiffs have no right in the said properties.
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20. For the aforesaid reasons he submits, the trial Court without properly appreciating the material on record, without looking into the statutory provisions, committed a serious error in decreeing both the suits filed for partition.
In fact in the suit filed by Muniyellappa for partition, the factum of partition in the year 1987 which he had pleaded in the very suit was suppressed. When it is his case that in the year 1987 there was a partition, he could not have filed a suit for partition suppressing the said fact in the year 2000.
For the aforesaid reasons, he wanted the judgment and decree to be set aside and both the suits to be dismissed.
21. Per contra, Sri. V.Lakshminarayana, the learned Counsel appearing for the daughters of the third defendant contended, under the provisions of the Hindu Law Women's Rights Act, 1933, for the first time right to a share was conferred on the unmarried daughters under the statute.
The said right conferred under the said Act is not repealed or taken away under the provisions of the Hindu Succession
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Act, 1956. The said right is saved by Sec. 6 of the General Clauses Act, even if it is to be held that with the passing of the 1956 Act, such a right is not available to them after 1956. Even otherwise, the right conferred under Sec. 8 of the Act of 1933 is held to be limited, by virtue of Sec. 14 of the Hindu Succession Act, the said limited right got enlarged into an absolute right and therefore, seen from any angle, the plaintiffs are entitled to a share in all the schedule properties. In so far as the marriage of the first plaintiff with Muniyellappa is concerned, it is an admitted fact that she is the sister of the first wife - Pillamma. She lived with Muniyellappa in the same house. Five children were born.
The other members of the family who have filed written statement in this case have categorically admitted that she is the second wife. The third defendant who is disputing her marriage is a total stranger. In fact it is the specific case of Muniyellappa that in the property which has fallen to his share in the 1987 partition, he formed sites and gave sites to these plaintiffs who in turn have sold the said properties.
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Therefore it is too late in the day for them to contend that she is not the wife, and to expect them to prove her marriage that has happened nearly 60 years back. It is an attempt to avoid the giving her legitimate share. The trial Court on appreciation of the oral and documentary evidence on record has categorically recorded a finding that she is the second wife, which finding is based on legal evidence and does not call for interference.
22. Sri O.Shivaram Bhat, learned Counsel, contended, in view of the amendment to the Hindu Succession Act in the year 2005 substituting new section and conferring daughters the right of co-parceners, the daughters would be entitled to equal share with the sons as co-parceners as no partition has taken place, which is evident by a registered partition deed as required under law.
During the pendency of this appeal, applications are filed for impleadment of purchasers of the sites which were formed in the schedule property. It is not in dispute, all these
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purchases are during the pendency of this suit. Therefore, the said sale deeds are hit by the doctrine of lispendense.
Since applications are filed in appeal, they were also to be heard. It is their case that admittedly there is a partition between Govindappa and Muniyellappa branch and they are the persons who have purchased the property from Muniyellappa's share. Muniyellappa had an arrangement with the plaintiffs which is evident from Ex. P.30 and therefore, their interest is to be protected at the time of effecting actual partition.
POINTS FOR CONSIDERATION
23. In the light of the aforesaid facts and rival contentions, the points that arise for our consideration in this appeal are as under:
1. Whether the finding recorded by the trial Court that the first plaintiff is the second wife of late Muniyallappa calls for interference?
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2. Whether plaintiffs are entitled to any share in the schedule properties?
3. Whether the properties which are standing in the name of Govindappa which he has acquired under registered sale deeds are his self acquired properties or joint family properties having been acquired out of the nucleus of the joint family properties?
4. Whether the land granted to Govindappa in pursuance of Form No.7 filed before the Land Tribunal is his personal property or joint family property?
POINT NO.1:
24. The specific case pleaded by the plaintiffs is, the first plaintiff Thanamma and the first defendant Pillamma are the wives of late Muniyellappa. Thanamma and Pillamma are sisters. Pillamma is the first wife, whereas,
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Thanamma is the second wife. Plaintiffs-2, 3 and 4 and defendants-8 and 9 are the daughters of Muniyellappa born through Thanamma. Thanamma, after the death of her husband started residing with Gowramma the second plaintiff as she was not looked after by the first defendant and her sons. However, plaintiffs and defendants constituted a Hindu Undivided Family. Thanamma, as the wife of late Muniyellappa has a right to the suit schedule property.
25. It was contended on behalf of the defendants that Thanamma was married to one Pachanna of Hosakote and that defendants-2 to 5 and defendants-8 and 9 are the children of that Pachanna through the first plaintiff. It is their further case that as Thanamma had no support of any male person, Muniyellappa in his capacity as brother-in-law was supporting and assisting her on humanitarian consideration as she was his sister-in-law. Accordingly she was staying with him along with her children. It is in this
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background, we have to find out from the evidence on record, whose version is believable.
26. Though Thanamma was alive when the trial commenced, she did not step into the witness box, probably due to her old age. On behalf of the plaintiffs, they have examined the son of second defendant, Srinivas, who was aged 40 years as on the date he gave evidence in the year 1998. He has deposed that Muniyeallappa had two wives by name Pillamma and Thanamma. All the suit schedule properties belong to Chinnanna and Muniyellappa, sons of Arisikuttappa. Plaintiffs-2 to 5 are the daughters of Thanamma and Muniyeallappa. Pillamma has got four issues. There was no partition between Chinnanna and Muniyellappa by metes and bounds. Thanamma was residing with Gowramma, plaintiff No.2, as she was not looked after by defendant No.1 and her sons. The income derived from all the suit schedule properties is being enjoyed by the first defendant and her sons. Plaintiff No.1 and her
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daughters are entitled to get ½ share out of the properties that falls to the share of Muniyellappa. In the cross- examination he has deposed that he does not know whether Muniyellappa died in 1945. He does not know in which year Muniyellappa married Pillamma and Thanamma. He admits in his cross-examination that it is true that defendant No.1 was the first wife and plaintiff No.1 was the second wife of late Muniyellappa. He does not know the date of marriage of defendant No.1 and plaintiff No.1 with Muniyellappa. He does not know for what reason Muniyellappa got married to plaintiff No.1. Both of them are sisters. Thanamma had no male issues. There is no document to show the marriage between the first plaintiff and Muniyellappa. Thanamma is the younger sister of Pillamma. He has deposed that first plaintiff herself told him that her marriage with Muniyellappa took place in Anjaneyaswamy Temple of Kodigehalli. The first plaintiff was aged 84 or 85 years old on the date of Ex.P-30. He denied the suggestion that first plaintiff has executed power of attorney in his favour
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because she is disabled due to old age. Again in the cross examination, on behalf of defendants-3 to 5, he has deposed that first plaintiff and first defendant are sisters. First defendant is elder to first plaintiff. He does not know as to when marriage of first defendant took place. Her marriage took place about 65 years ago. He does not know whether the marriage of first defendant took place in the year 1922 during the lifetime of Arasikuttappa. His grand mother told him that marriage of the first plaintiff took place about 62 years ago. He was told that marriage of first plaintiff was celebrated by Arasikuttappa. Their marriage was celebrated in Anjaneyaswamy Temple of Kodigehalli. He has denied the suggestion that he does not know about the marriage of Thanamma and her husband. He has no document to show that Thanamma was the wife of Muniyellappa. He has denied the suggestion that first plaintiff was not the wife of Muniyellappa. He has denied the suggestion that Thanamma had husband by name Pachhanna of Hoskote Village. He admits that plaintiffs-2 to 4 and defendants-8
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and 9 are the children of first plaintiff. He has not produced any document before the Court to show that the first plaintiff had married Muniyellappa. He admits that he has not produced any document to show that plaintiffs-2 to 4 and defendants-15 and 16 are children of Muniyellappa. This is all the evidence of plaintiffs, in support of their contention that the first plaintiff is the wife of deceased Muniyellappa.
27. On behalf of defendant-Muniyellappa, second defendant was examined as D.W-1. In the examination in chief, he has deposed that his father Muniyellappa had two wives by name Thanamma and Pillamma, who are sisters. Thanamma was married to his father after his mother Pillamma was married, and had children. Thanamma and his daughters are the plaintiffs in the suit. Plaintiffs-4 and 6 Saraswathamma and Parvathamma had been transposed as defendants. His father died on 12.10.1945, while he was in his mother's womb. He was born on 16.01.1946. In the cross examination, he has categorically admitted that it is
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true to say that his father married the sisters Pillamma and Thanamma. He is his son through his first wife. Plaintiffs are the children of Thanamma. His mother Pillamma had another son by name Govindappa and two daughters by name Venkatamma and Jayamma and another daughter Padmamma, who is no more. All the properties belong to Arasikuttappa, his grand father. He admits that in the portion of 1 acre 20 guntas, he has formed sites and also given sites to the children of plaintiffs, which in turn they have sold. During the lifetime of his mother itself, his father married Thanamma. Accordingly, he was leading life with both the wives. Till 1965 even after the death of his father in the year 1945, both his mother and her another sister Thanamma continued to live jointly, along with their respective children. He heard that after eight years of the marriage of his mother, his father had married Thanamma. There was eight years difference in the age between his mother and her sister Thanamma. At the time of death of his father Muniyellappa, the marriage of only the elder
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daughter of Pillamma took place. Because other children of Pillamma were minors at the time of death of his father.
28. D.W-2, the 10th defendant-Chandraprakash and son of 8th defendant admits in his cross examination that the deceased first defendant and the deceased first plaintiff were the sisters in full blood. Those two had married one Muniyellappa. Thanamma had children by name Gowramma, Aswathamma, Saraswathamma, Susheelamma and Parvathamma. Pillamma had two sons and three daughters. Pillamma had a son by name Govindappa. Govindappa had five daughters and two sons. Daughters are by name Bhagyamma, Hemavathi, Lalitha, Yashoda and Geetha. It is true that Muniyellappa died leaving behind his wives and children i.e., five children by first wife and five children by second wife.
29. Fourth defendant Purushotham is examined as D.W-3. He has denied the relationship. In his cross
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examination, he has deposed that they have not at all produced any document in the Court to show that Thanamma is the wife of one Pachanna of Hoskote as contended by them. He has denied the suggestion that to deny the share of Thanamma, who is the first plaintiff, they have created a false story that she is the wife of Pachanna. He admits that Thanamma was residing at Hebbal along with her children. He does not know the details of the family members and the father's name of Pachanna of Hoskote. He does not know the elderly members of Pachanna including his family members. He heard that Pachanna was the husband of Thanamma and therefore on the basis of that oral say, he was deposing before the Court that Pachanna was the husband of Thanamma. He admits that he does not know who is the husband of Thanamma. He denies the suggestion that Muniyellappa married Pillamma and Thanamma, who are sisters.
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30. 5th defendant by name Ravi was examined as D.W-4. He denies that the first plaintiff is the wife of Muniyellappa. He asserts that she is the wife of one Late Pachanna @ Chikka Pachanna of Hoskote Village.
31. From this evidence on record it is clear that no documentary evidence is produced to show that the first plaintiff is the wife of late Muniyellappa. In this regard it is to be noticed that the suit itself is filed in the year 1988 and parties were giving evidence in the year 1998 and the marriage of the first defendant took place in the year 1922. If few years thereafter the marriage of 1st plaintiff with Muniyellappa had taken place in the temple, in the absence of any invitation cards printed, to expect the plaintiffs to produce any documentary evidence 60 years after the incident, is unreasonable. However, the question is as to whether the oral evidence on record proves the relationship. It is not in dispute between the parties that first plaintiff and the first defendant are sisters and the first defendant being
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elder. It is also not in dispute that the first plaintiff along with her children lived with Muniyellappa during his lifetime under the same roof. It is also on record that Muniyellappa died in the year 1945 and even after his death both these sisters with their children continued to live under a common roof till the year 1965. The second defendant, the son of Muniyellappa through Pillamma in his examination in chief categorically admits that the first plaintiff was married to his father and the plaintiffs are the children of Muniyellappa through the first plaintiff. It is also on record that in the oral partition when the properties were divided by metes and bounds, in the property which had fallen to their share, they have formed sites and they have given sites to the first plaintiff's daughters. It is only when the suit was filed seeking for partition and separate possession of their legitimate share in the properties, not only the relationship between Muniyellappa and the first plaintiff is denied, it is specifically contended that the first plaintiff is the wife of one Pachanna of Hokote. However absolutely no particulars of
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the said marriage, no particulars of the family of Pachanna nor any document showing that the first plaintiff is the wife of Pachanna and plaintiffs are the children born to Pachanna is produced. The evidence on record also shows that Govindappa the eldest son of Muniyellappa after the death of his father became the Kartha of the family and he has performed the marriage of the first plaintiff's daughters.
32. The aforesaid evidence on record clearly establishes that the first plaintiff lived with her daughters under the same roof where Muniyellappa was residing with the first defendant and her children. Even after the death of Muniyellappa, all of them continued to live together till 1965, for nearly 20 years after the death of Muniyellappa. Govindappa, the eldest son of Muniyellappa became the Kartha of the family after the death of Muniyellappa and after attaining majority, managed the family, performed the marriages of all the daughters of Thanamma. When sites were formed in the joint family properties, sites have been
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given to these daughters. The admission by the second son of Muniyellappa clinches the whole issue. He admits that the first plaintiff is the second wife of Muniyellappa and other plaintiffs are the children of Muniyellappa through Thanamma. He admits that they all lived together as joint family members and they continued to live in the family house after the death of Muniyellappa in 1945 till 1965. It is only thereafter the first plaintiff is living with her eldest daughter. The case put forth by other defendants that the first plaintiff was married to one Pachanna of Hoskote is not substantiated by any evidence. It is also to be remembered that Thanamma is not a stranger. She is the younger sister of the first defendant. The marriage of the first defendant took place and thereafter Muniyellappa married first plaintiff. Thanamma lived under a common roof with Muniyellappa and it is during the said cohabitation, all the daughters were born. The evidence on record shows that the marriage took place in Anjaneya Swamy Temple. On the date the suit was filed, she was aged 80 years and because
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of her ill health, she could not step into the witness box. Merely because no documentary evidence is produced in proof of the marriage, which took place about 60 years prior to the filing of the suit, it cannot be said that marriage is not proved. The normal course of human conduct is to be kept in mind coupled with the fact that in 1920s and 1930s, especially among the rural folk, this concept of printing invitation cards was not prevalent. Even persons who were present at the time of marriage could not be examined because of lapse of time. It is in those circumstances, what the Court could look into is only the circumstantial evidence. It is in this context, the evidence on record coupled with the admission of D.W-1, the second son of Muniyellappa who has categorically admitted that the first plaintiff is the second wife of his father and other plaintiffs were all born to his father through Thanamma and Thanamma is none other than the younger sister of his mother Pillamma, and that the first plaintiff and her daughters lived in the family with his father and subsequently continued to live under the care
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and protection of the first defendant and after attaining majority, under the protection of her eldest son Govindappa, clearly establishes the fact that the first plaintiff is the second wife of late Muniyellappa.
33. The Apex Court in the case of BADRI PRASAD vs. DEPUTY DIRECTOR OF CONSOLIDATION AND OTHERS (1978) 3 SCC 527 held that a strong presumption arises in favour of wedlock where the partners have lived together for a long spell as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of legal origin. Law leans in favour of legitimacy and frowns upon bastardy. The Court further observed that if men and women who live as husband and wife in society are compelled to prove, half a century later, by eye-witness evidence that they were validly married, few will succeed. There have been various other judgments of this Court holding where a man and a woman live together for long years as husband and wife then a presumption arose in
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law of legality of marriage existed between the two, though the presumption is rebuttable.
34. The trial Court which had the opportunity of observing the demeanor of the witnesses, on appreciation of oral evidence on record, has rightly held that the genealogy produced in the case is correct and the first plaintiff is the second wife of Muniyellappa. As the said finding is based on legal evidence, we do not see any justification to interfere with the said finding of fact.
35. Therefore we hold that plaintiffs have proved that the first plaintiff is the second wife of Muniyellappa and the plaintiffs-2 to 5 and defendants-8 and 9 are the children of Muniyellappa through Thanamma, the first plaintiff. POINT NO.2:
36. The case of the plaintiffs is when Muniyellappa died in the year 1945, by virtue of the provisions of the
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Hindu Women's Rights Act of 1933 the first plaintiff widow of Muniyellappa and her five daughters who were all unmarried at that point of time acquired a share in all the joint family properties at a partition. The said right acquired by them is not taken away by the Hindu Succession Act, 1956 and therefore the plaintiffs are entitled to a legitimate share under the said Act. In order to appreciate this contention, it is necessary to look in to the provisions on which reliance is placed.
37. There were many schools of Hindu Law in the country. The law of succession in different parts of India depends upon the school of Hindu Law prevailing in that part. The Hindus who are governed by their personal law, the law of domicile. Under the Mitakshara School of law, no female in Mysore had a right to share in the joint Hindu family property. Prior to 1933, females inheriting the property from a male took limited estate, according to all the schools of Hindu Law. Females who take a limited or
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restricted estate in the property inherited by them were called limited heirs. The right of Hindu woman in a joint Hindu family was confined to maintenance, residence and marriage expenses. Therefore, prior to Act of 1933 neither the wife nor the daughters had any right in the joint family properties. Statutes enacted from time to time modified the Hindu Law to some extent. It is in this back ground the Act of 1933 was enacted conferring certain rights on certain females a share in the joint family property at a partition.
38. The Hindu Law Women's Rights Act 1933 (Mysore Act X of 1933) (for short hereinafter referred to as "the Act") for the first time enlarged her rights. The Act was enacted amending the Hindu Law as to the rights of women and in certain other aspects. The said Act came into force from 1st January, 1934 in the Princely State of Mysore and from 08.05.1946 in the Civil and Military Station, Bangalore. Section 2 of the Act makes it clear that it applies to persons who but for the passing of this Act, would have been subject
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to the law of Mitakshara in respect of the provisions contained therein. Nothing contained in the said Act shall be deemed to affect the rules or incidents of the Hindu Law which are not inconsistent with the provisions of the Act. Section 3(d) of the Act deals with women's full estate. Section 4 of the Act defines the order of succession and it sets out the members of the family who would be entitled to succeed to a Hindu male dying intestate. Section 8 for the first time conferred on certain females a share in the coparcenary/ joint family properties at a partition. The said Section reads as under:-
"Section 8: Certain females entitled to shares at partition:-
(1 (a)At a partition of joint family property between a person and his son or sons, his mother, his unmarried daughters and the widows and unmarried daughters his predeceased undivided sons and brothers who have left no male issue shall be entitled to share with them.
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(b) At a partition of joint family property among brothers, their mother, their unmarried sisters and the widows and unmarried daughters of their predeceased undivided brothers who have left no male issue shall be entitled to share with them.
(c) Sub-sections (a) and (b) shall also apply mutates mutandis to a partition among other co-
parceners in a joint family.
(d) Where joint family property passes to a single co-parcener by survivorship, it shall so pass subject to the right to shares of the classes of females enumerated in the above sub-sections. (2) Such share shall be fixed as follows:-
(a) In the case of the widow, one-half of what her husband, if he were alive, would receive as his share;
(b) In the case of the mother, one-half of the share of a son if she has a son alive, and, in any other case one-half of what her husband, if he were alive, would receive as his share;
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(c) in the case of every unmarried daughter or sister, one-fourth of the share of a brother if she has a brother alive, and, in any other case, one- fourth of what her father, if he were alive, would receive as his share;
Provided that the share to which a daughter or sister is entitled under this section shall be inclusive of, and not in addition to, the legitimate expenses of her marriage including a reasonable dowry or marriage portion.
(3) In this section, the term "widow" includes, where there are more widows than one of the same person all of them jointly, and the term "mother" includes a step -- mother and, where there are both a mother and a step-mother, all of them jointly and the term "son" includes a step- son as also a grandson and a great grandson; and the provisions of this section relating to the mother shall be applicable mutates mutandis to the paternal grandmother and great grandmother. (4) Fractional shares of the females as fixed above shall relate to the share of the husband, son, father or brother as the case may be and their value shall be ascertained by treating one
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share as allotted to the male and assigning therefrom the proper fractional shares to the female relatives.
(5) Each of the female relatives referred to in Sub-section (1) shall be entitled to have here share separated off and placed in her possession. Provided always as follows: -
(i) No female relative shall be entitled to a share in property acquired by a person and referred to in Section 6, so long as he is alive;
(ii) No female whose husband or father is alive shall be entitled to demand a partition as against such husband or father, as the case may be;
(iii) A female entitled to a share in any property in one capacity of relationship shall not be entitled to claim a further or additional share in the same property in any other capacity
39. The object of Section 8 of the Act was to confer larger rights on females by giving them a share in the joint family property. Section 8 envisages two different
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circumstances in which that right is to accrue to them. The first circumstance is when there is a partition of a joint family property between coparceners and the other is even though there is no partition, the entire joint Hindu family property passes to a single male owner. In both the cases the Act envisages that the property may lose its character of coparcenary property, because the coparcenary body may cease to exist on partition or on survival of a single male member of the family. The purpose of Section 8 was to safeguard the interests of female in such contingencies, where the coparcenary property were to disappear either by partition or by survival of a sole male member. In other words a coparcenary took care of the interests of certain categories of female heirs, such as mother, unmarried daughters, widows and unmarried daughters of their predeceased undivided sons and brothers, who have left no male issue, though they had no share in the coparcenary property. Their maintenance, residence, and marriage expresses were taken care of by the coparcenary. If the
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coparcenary property were to lose its character as coparcenary property, then their interest is seriously affected. Therefore, a right to a share was conferred on those female members, if the coparcenary were to disappear, thus enlarging their limited right, in those circumstances enumerated in Section 8 of the Act, into an absolute right.
40. A reading of the aforesaid provisions makes it clear that, no female whose husband or father is alive shall be entitled to demand a partition as against such husband or father, as the case may be. The reason being under the Hindu Law a father is expected to take care of his daughter till her marriage. After her marriage her husband is expected to take care of her. Thus her interest is fully protected Therefore, she has no right to file a suit against her father or husband for partition during their life time. However, at a partition of joint family properties between a person and his son or sons, his mother, unmarried daughters and the widows and unmarried daughters of
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predeceased undivided sons and brothers, who have left no male issue were also entitled a share along with them. Similarly at a partition of joint family properties among brothers, their mother, unmarried sisters and the widows and unmarried daughters of predeceased undivided brothers who have left no male issue are entitled to share with them. In the case of a sole surviving coparcener, there is no scope for partition. In such event clause (d) of Section 8 provides that the joint family property passes on to the surviving coparcener by survivorship, subject to the right to shares of the classes of females enumerated in the sub-sections (a), (b) and (c). Therefore, for the first time under Act of 1933 the widow, mother, unmarried daughters were conferred a share in the joint family property subject to condition that they are entitled to a share only at partition. The right of females under clauses (a), (b) & (c) of section 8(1), therefore, only arises at a partition between the male co-parceners forming the joint Hindu family. When the co-parcenary property passes to a sole surviving coparcener, provision has been
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made in clause (d) of Section 8(1). This clause, in protecting the rights of females, had necessarily to give females the right to share in the coparcenary property even if there be no partition at all, because, on passing of property to a sole surviving coparcener, there could not possibly be any partition sought by the male members of the coparcenary body. The right conferred by clause (d) is, therefore, an independent right and not connected with the rights granted to the females under clauses (a), (b) & (c). The females who are to get benefit are all those to whom a right to a share in the joint family property would have accrued if there had been a partition either under clause (a), or clause (b) or clause (c). The language of clause (d) has to be interpreted as laying down that right to shares will vest in all females of the joint Hindu family who would have possibly received the right to a share if at any earlier time there had been partition in the family in any of the three manners laid down in clauses (a), (b) and (c). It is significant that clause (d) gives a right independent of a partition and its
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scope should not be restricted by assuming a partition. The object of clause (d) is to give to all females entitled to maintenance from the co-parcenary property a right to claim a share in the joint family property instead of a right to maintenance, and that is why reference is made in it to all the females enumerated' in clauses (a), (b) and (c). Clauses (a) and (b) refer to four classes of females, viz, the mother, the widow. the unmarried daughter and the unmarried sister. All these four classes of females are within clause (d).
41. Sub-Section (2) of Section 8 deals with a share of such female heirs. It is one half of what the male sharer would get whether it be by way of inheritance or succession. The actual share which a female becomes entitled to under clauses (a), (b), (c) or (d) has to be ascertained with reference to subsection (2) of section 8.
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42. Sub-section (3) provides that, if there are more widows than one, or if there are more mothers than one and the term mother includes step-mother, then all of them i.e. all widows, all mothers would get one share as against two shares of a male sharer. Sub-section (3) of Section 8 in which the scope of the words "widow", "mother", and "
son" is enlarged and which, in addition, lays down that the provisions of this whole section relating to the mother are to apply mutatis mutandis to the paternal grandmother and great grandmother.
43. These provisions were one subject matter of interpretation before the Apex Court in the case of Nagendra Prasad vs Kempananjamma reported in AIR 1968 SC 209 which reads as under:
"It is, however, to be noticed that Section 8, in conferring rights on females, envisages two different circumstances in which that right is to accrue to them. The first circumstance is when there is a partition of the joint family
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property between any co-parceners, and the other is when, though there is no partition, the entire joint Hindu family property passes to a single male owner. It is in both these cases that the Act envisages that the property may lose its character of co-parcenary property, because the co-parcenary body may cease to exist on partition or on survival of a single male member of the family. It seems that the purpose of Section 8 was to safeguard the interests of females in such contingencies where the co-parcenary property is to disappear either by partition or by survival of a sole male member. The legislature seems to have felt that, in such circumstances, it was not safe to leave the females entitled to maintenance, etc, at the mercy of the individuals who may receive property on partition or at the mercy of the individual in whom absolute rights in the property might vest as a result of sole survivorship. For the first contingency, when there is a partition, provision was made in clauses (a), (b) & (c) of sub-section (1) of Section 8 under which a right was granted to the females to ask for separation of their shares if the male members decided to have a partition. Unless the
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male members themselves sought a partition, it was not considered necessary to grant any right to the females themselves to ask for partition, because the property could not lose its character as co-parcenary property until the male members of the family sought partition. The right of the females under clauses (a), (b) &
(c) of section 8(1), therefore, only arises at a partition between the male co-parceners forming the joint Hindu family.
4) For the second contingency, when the co-
parcenary property passes to a sole survivor, provision has been made in clause (d) of Section 8(1). This clause, in protecting the rights of females, had necessarily to give to the females the right to the share in the coparcenary property even if there be no partition at all, because, on the passing of the property to a sole survivor, there could not possibly be any partition sought by the male members of the coparcenary body. This right conferred by clause (d) is not, therefore in any way dependent on any partition being sought, or on any right accruing to the females earlier under clauses (a), (b) and (c). The latter three clauses relate to the right arising and
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being exercised simultaneously at the time of a partition between the male members of the co- parcenary body, while the right under clause (d) has been given for those cases when there can be no partition at all. The right conferred by clause
(d) is, therefore, an independent right and not connected with the rights granted to the females under clauses (a), (b) & (c). In these circumstances, it appears to us that, when determining the scope of the right under clause
(d), there is no need to envisage on assumed partition and there is no justification for holding that clause (d) must be interpreted on the basis of an assumed partition between the sole surviving member of the family and the co- parcener who immediately pre-deceased as a result of whose death the property passed to the sole survivor.
5) The reference to clauses (a), (b) & (c) in clause (d) seems to have created an impression that such a partition must be assumed in order to determine the rights of the females accruing to them under clause (d). It is true that the language in which clause (d) is expressed is a little ambiguous, but it seems to us that the
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reference to clauses (a), (b) and (c) in clause (d) is for the sole purpose of determining all the females who are to get benefit under that clause. The females who are to get benefit are all those to whom a right to a share in the joint family property would have accrued if there had been a partition either under clause (a), or clause
(b) or clause (c).
6) The scheme of section 8(1), thus, is that if there is a partition as envisaged in clause (a), the females mentioned in that clause only get a right to the share in the property. If there is a partition between male members mentioned in clause (b), then the right to the share accrues to the females mentioned in that clause. Clause
(c) is wider, because it does not specifically enumerate the females who are to get a share. Clause (c) only lays down that clauses (a) and (b) are to apply mutatis mutandis to a partition among other co-parceners in a joint family.This language itself means that, even though under clause (c) a partition will be between members of a joint family who are not related to each other in the manner given in clauses (a) and (b), yet the females who are to receive a share are to be
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ascertained with reference to clauses (a) & (b). Under clause (a), a partition envisaged is between a person and his son or sons, and the females who are to receive a share are is mother, his unmarried daughters and the widows and unmarried daughters of his predeceased undivided sons and brothers who have left no male issue. The question arises how the females entitled to a share in clause (c) are to be ascertained with reference to this clause when the partition is not between a person and his son or sons. Clause (c) clearly applies only to a case where the partition is between members of the family not related in the manner laid down in clause (a), and yet the ascertainment of the females who are to receive a share at that partition is to be by reference to clause (a). The same applies when the partition under clause (c) is between persons not related in the manner envisaged in clause (b) and yet the females mentioned in clause (b) are to be ascertained for the purpose of being granted the share mentioned in clause (c).An example may be taken. Supposing there is a partition between, a person and his brother's son. In such a case,
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clause (c) lays down that the females entitled to a share are to be ascertained by reference to clauses (a) and (b). The result is
that, in such a case, by applying clause (a), the females entitled would be the mother, the unmarried daughters, the widows and unmarried daughters of predeceased undivided sons and brothers of both the uncle as well as the nephew. Similarly, in ascertaining the females by reference to clause (b) in such a partition, the females included will be the mothers, the unmarried sisters, the widows and unmarried daughters of the predeceased undivided brothers of both the uncle and the nephew.
7. This example makes it clear that the scope of ascertainment of the females who are to receive a share under clause (d) must be very wide, because clause (d) mentions that when the joint family property passes to a single co- parcener by survivorship, the right to shares is vested in all the classes of females enumerated in all the three clauses (a), (b) and (c). That being the position, we do not think that clause (d) can be interpreted narrowly as giving a right to only those females who happen to be
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related to one or the other of the last two male co-parceners in the manner laid down in clauses
(a) and (b). In fact, the language of clause (d) has to be interpreted as laying down that right to shares will vest in all females of the joint Hindu family who would have possibly received the right to a share if at any earlier time there had been partition in the family in any of the three manners laid down in clauses (a), (b) and (c). This intention can only be given effect to on the basis that clause (d) does not restrict itself to finding out females on the basis of an assumed partition between the last two male co-parceners. It is significant that clause (d) gives a right independently of a partition and we do not see why its scope should be restricted by assuming a partition. The reference to the earlier clauses in this clause must be held to be restricted to the sole purpose of ascertainment of the females falling under clauses (a), (b) and (c), and once they are ascertained, it has to be held that each one of them becomes entitled to a share under this clause. The object of clause (d) is to give to all females entitled to maintenance from the co-parcenary property a right to claim a
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share in the joint family property instead of a right to maintenance, and that is why reference is made in it to all the females enumerated' in clauses (a), (b) and (c). Clauses (a) and (b) refer to four classes of females, viz, the mother, the widow. The unmarried daughter and the unmarried sister. All these four classes of females are within clause (d). The actual share which a female becomes entitled to under clauses (a), (b), (c) or (d) has to be ascertained with reference to subsection (2) of section 8. Further, in ascertaining the females to whom rights accrue to shares in the joint family property either on partition under clauses (a), (b) or (c), or on passing of the property to a sole survivor under clause (d), effect has to be given to sub-section (3) of Section 8 in which the scope of the words "widow", "mother", and " son" is enlarged and which, in addition, lays down that the provisions of this whole section relating to the mother are to apply mutatis mutandis to the paternal grandmother and great grandmother. Consequently, when the classes of females entitled to shares under clause (d) are to be ascertained and it is to be found out whether
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mother mentioned in clause (a) or clause (b) is entitled to a share, the persons included in the expression "mother" would be a "step-mother"
and, further, the provision conforming the right on the mother would also confer the right on paternal grandmother and great grandmother, because clauses (a) and (b), which relate to a mother, are to be applicable mutatis mutandis to paternal grandmother and great grandmother also. It is clear that, on this interpretation of clause (d) read with clauses (a) (b) and (c) and sub-section (3) of Section 8, the decision given in the present case by the High Court is correct and the respondent is a person entitled to a share as held by that Court. As the widow of Mendappa, a co-parcener, she was clearly entitled to a one fourth share."
44. As stated by the Apex Court in the aforesaid decision the object behind this provision is on partition, the property may lose its character of coparcenary property, because the coparcenary body may cease to exist on partition or on survival of a single male member of the
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family. Therefore, to safeguard the interest of females in such contingencies where the coparcenary property is to disappear either by partition or by survival of a sole male member, the legislature seems to have felt that, in such circumstances, it was not safe to leave the females entitled to maintenance, etc. at the mercy of the individuals who may receive property on partition or at the mercy of the individual in whom absolute rights in the property might vest as a result of sole survivorship. However, unless the male members themselves sought a partition, it was not considered necessary to grant any right to the females themselves to ask for partition, because the property could not lose its character as coparcenary property until the male members of the family sought partition. Therefore, from the language employed in the aforesaid section, the aforesaid female heir does not acquire any right on the death of a coparcener or their birth in the joint family. Their right accrues only at a partition or when the entire property goes to the hands of the sole surviving member by survivorship.
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It is on that date, if the daughter is unmarried she is conferred a right. However, the mother as well as widow would be entitled to a share at a partition.
45. It was contended that as no partition took place between the sons of Muniyellapa till 1956 till passing of the Hindu Succession Act, 1956 the rights of the parties is to be worked out under 1956 Act. Therefore, the parties are entitled to seek a share by virtue of Section 8 of Hindu Law Women's Rights Act, 1933 or in the alternate they would be entitled to a share by virtue of Section 6 of 1956 Act.
46. In order to appreciate these arguments it is necessary to look into the provisions of 1956 Act. The Hindu Succession Act, 1956 was enacted by the Parliament to amend and codify the law relating to intestate succession among Hindus. On the day the said law was enacted the Karnataka Hindu Law Women's Rights Act, 1933 and Hindu Women's Rights to Property Act, 1937 were in force giving
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certain rights to Hindu females. As that was found inadequate the 1956 Act came to be passed. By passing of the said Act Section 31 repealed the Hindu Law of Inheritance 1929 and the Hindu Womens Rights to Property Act, 1937 (for short hereinafter referred to as `the Act of 1937'. However, by reason of Section 6 of the General Clauses Act of 1897, the repeal by Section 31 did not in any way affect the rights already acquired by the widows under the Hindu Womens Rights to Property Act, 1933. Subsequently, by The Repealing and Amending Act of 1960, the enactments specified are repealed to the extent mentioned in the fourth column thereof in the Schedule. In the 4th column of the First Schedule, as against the Hindu Succession Act, 1956 (for short hereinafter referred to as the `1956 Act'), `Section 31' is mentioned. Therefore, by the said Repealing and Amending Act, Section 31 of the 1956 Act was repealed. However, the repeal of Section 31 of the 1956 Act shall not be understood as reviving the two Acts, which were already repealed, by virtue of which the right has accrued.
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However, Section 4 of the 1956 Act gave an overriding effect to the 1956 Act both in respect of any text, rule or interpretation of Hindu law as well as any other law in force immediately before the commencement of the said Act. Section 4 of the 1956 Act reads as under:
4. Overriding effect of Act:-
(1) Save as otherwise expressly provided in this Act,-
(a) any text, rule or interpretation of Hindu 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) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus insofar as it is inconsistent with any of the provisions contained in this Act.
(2) For the removal of doubts it is hereby declared that nothing contained in this Act shall be deemed to affect the provisions of any law for
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the time being in force providing for the prevention of fragmentation of agricultural holdings or for the fixation of ceilings or for the devolution of tenancy rights in respect of such holdings.
47. In the instant case, the parties are all residents of Bangalore, which was a part of Princely State of Mysore. Similarly all the properties are situated within the Princely State of Mysore and therefore, the said Act of 1937 has no application to the facts of this case. It is the Act of 1933, which is applicable. Act of 1933 is not repealed by any Act. It is in force. However, by virtue of Section 4 of the 1956 Act, though the said law was in force immediately before the commencement of the 1956 Act, it shall cease to apply to Hindus insofar as it is inconsistent with any of the provisions contained in this Act. Reliance is placed on Section 8 of the 1956 Act to claim equal rights. The opening words of Section 8 provides that "The property of a male Hindu dying intestate......" i.e., after the commencement of the Act. Similarly Section 6 of the Act, on which reliance is
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placed before the amendment of 2005 categorically stated, when a male Hindu dies after the commencement of this Act, how the devolution of interest in coparcenary property accrues. Therefore, the condition precedent for the application of the 1956 Act is, a male Hindu should die after the commencement of the Act, otherwise the said Act has no application.
48. In the instant case Muniyellappa died in the year 1945 i.e., before the commencement of the Act in 1956. Therefore, the said law has no application. As aforesaid, the right claimed by these plaintiffs is under Section 8 of the 1933 Act. A right under Section 8 of the 1933 Act does not accrue on the death of a Hindu Male as in the case of 1937 Act where by virtue of Section 3 of the 1937 Act devolution of property happens on the death of Hindu Male. Under Section 8 of 1933 Act, the right to property accrues to females mentioned therein at a partition. Therefore, if a female heir is denied a share at a partition between the father and the
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sons or between sons or when a sole surviving coparcener inherits the coparceners property, then a cause of action arises to the female under Section 8 of the 1933 Act. At that point of time, the right to a share at a partition is conferred on the mother, widow and the unmarried daughter. Therefore, consciously, married daughters are not given share at a partition because she is married and the husband is alive and he is expected to take care of her as is clear from the proviso to Section 8 of the 1933 Act. As the 1956 Act does not deal with a share to a female heir at a partition, 1956 Act has no overriding effect insofar as Section 8(a)&(b) of 1933 Act is concerned. Therefore, the rights conferred on a female under Section 8(a)&(b) of the 1933 Act is intact.
49. The first partition pleaded was between Muniyellappa and his brother Chinnanna, coparcenors in the year 1941 where Muniyellappa got half of the ancestral properties. On the day Muniyellappa got the properties at a partition, he had two sons Govindappa and Jr. Muniyellappa
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born. Therefore, the property, which fell to the share of Muniyellappa at a partition in the year 1941 belongs to Muniyellappa and his two sons. During the life time of Muniyellappa, there was no partition. He died in the year 1945. On his death whatever share he had in the coparcenary property devolved by survivorship to his two sons Govindappa and Jr.Muniyellappa. On his death, the female heirs acquired no rights to the said property. It is the case of Govindappa's widow that there was a partition between Govindappa and Jr.Muniyellappa in the year 1955. But it is the case of Jr.Muniyellappa that the partition took place in the year 1987. The Trial Court, on appreciation of the evidence on record has categorically held that the partition of the year 1955 pleaded by the 3rd defendants is not established. In fact issues 2 and 3 are deleted, the reason being that when the partition took place in the year 1955 or in 1987, admittedly, the plaintiffs were not parties to the said partitions. Therefore, the partitions would in no way affect the rights of the plaintiffs. On the contrary those
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partitions shall confer right on the plaintiffs, which has not been given to them. Whether the partition took place in the year 1955 or in the year 1987, under the 1933 Act, the 1st plaintiff's mother and other plaintiffs if, they were unmarried on that day, were entitled to a share. The evidence on record shows that by the year 1955 all the daughters were married. Therefore, the daughters of the 1st plaintiff are not entitled to a share in the joint family properties by virtue of Section 8 of the 1933 Act. However, the 1st plaintiff, the step mother, the second wife and the widow of Muniyellappa is entitled to a share in the partition. She died in the year 2004 and therefore, her daughters are entitled to her share and are entitled to prosecute the suit. Therefore, the finding of the Trial Court that unmarried daughters are also entitled to a share by virtue of Section 8 of the 1933 Act is ex-facie illegal, as, on the date of partition, they were all married. However, the finding that the 1st plaintiff-the second wife is entitled to a share is correct and is upheld.
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POINT No.3:
50. In the schedule to the plaint, the properties situated in three villages are separately set out as A, B & C schedule property. Insofar as the Schedule `D' property is concerned, they are vacant houses, which are in Kaneshumari numbers and situated in Cholanayakanahalli village, R.T. Nagar Post, Bangalore - 560 032. It is not in dispute between the parties that item Nos. 1, 2, 3, 4 & 5 of the `A' schedule properties and item Nos. 1, 2 & 3 of `B' Schedule properties and item Nos. 1, 2, 4 & 5 of `C' Schedule properties of Sy.No.14/1, 17, 16 & 43 with house and vacant land in `B' schedule properties are all ancestral properties. The evidence on record shows that after the death of Muniyellappa, his first wife Pillamma was managing these properties. However, after her first son Govindappa attained majority, he took over the management of all the properties and he was in management of all these properties till his death. The evidence on record also discloses that all of them lived together in their family house. The family owns several
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properties and they were comfortably living. From the income derived from these properties, the first plaintiff's daughters were married and the entire income from the joint family properties was in the hands of the eldest son Govindappa. In this background, we have to appreciate the case of self acquisition by the 3rd defendant. Item No.4 of `A' Schedule property was purchased in the name of Govindappa under a registered sale deed dated 10.08.1959 as per Ex.D5. Another portion of the same land was acquired under a registered sale deed dated 10.06.1985 as per Ex.D2. Item No.5 of the `A' schedule property was acquired under a registered sale deed dated 19.04.1969 as per Ex.P3. Item No.7 of the `B' Schedule was acquired under a registered sale deed dated 23.09.1992 as per Annexure `D5'. Similarly, Ex.D6 is the Form-10 issued in respect of lands which was also acquired in and around the time of acquisition of item No.5 of the `A' schedule property. Govindappa died in the year 1987. When these properties were purchased somewhere between 1952-1960 and when he was the Kartha
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of the joint family and in possession of the entire Joint Family funds, in the absence of any evidence produced by defendant No.3 to show what is the source from which he acquired the property, the only inference that could be drawn is all these properties though acquired in the name of Govindappa, they were acquired by him in the capacity as Kartha of the family out of the Joint Family Funds.
51. The learned Counsel submits that it is settled law that when the property stands in the name of a member of a Joint Family, the presumption is that it belongs to him exclusively. It is for the person, who claims it to be a Joint Family Property to plead and prove the factum of the said property having been acquired from the Joint Family nucleus. In the instant case, there is no evidence to show the Joint Family nucleus or the Joint Family property was yielding any income out of which the properties were acquired and therefore, the finding recorded by the Trial Court that they were all acquired by the Joint Family funds
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is unsupported by any legal evidence and requires to be set- aside. There is no quarrel with the said legal position, but there is an exception. When the acquisition is by the Kartha in his name, the other family members, who are kept out of the Management cannot be expected to adduce evidence in Court to show that the said property was acquired out of the Joint Family Funds. The Apex Court in the case of Mallesappa Bandeppa Desai and another V/s. Desai Mallappa alias Mallesappa and another reported in AIR 1961 SC 1268 at para 15 has held as under:
".......where a manager claims that any immovable property has been acquired by him with his own separate funds and not with the help of the joint family funds of which he was in possession and charge, it is for him to prove by clear and satisfactory evidence his plea that the purchase money proceeded from his separate fund. The onus of proof must in such a case be placed on the manager and not on his coparcenors........"
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52. Therefore, the burden is on the 3rd defendant and her children to prove that these properties, which they claim to be the self-acquired properties of Govindappa were acquired out of the separate funds of Govindappa and not from the income of the Joint Family Properties, which were in his hands. Defendant No. 3 did not enter the witness box. Her sons, who have been examined in the case, have no personal knowledge of these purchases. In fact these purchases were made even prior to their birth. The evidence produced is hearsay evidence and not admissible. Therefore, the Trial Court was justified in the facts of the case and in the light of the material placed on record, to come to the conclusion that these acquisitions in the name of Govindappa were out of the Joint Family Funds. We do not see any infirmity in the said finding, which calls for interference.
POINT No.4:
53. Insofar as the grant of land bearing Sy.No.69/2 situated at Hebbal village, Bangalore North Taluk, Bangalore
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measuring 2 acres 4 guntas by the Land Tribunal by its order dated 04.07.1979 in LRF case No.774/74-75 is concerned, admittedly, on the day Govindappa filed an application for grant of land, he was the Kartha of the Joint Family. The evidence on record shows that the said land was cultivated from the time of his father. The entire family was cultivating the land. Therefore, as a Kartha, he filed Form No.7 requesting for grant of occupancy rights and it was granted in his name. In the light of the aforesaid un- impeaching evidence on record, it cannot be said that it was Govindappa, alone was the tenant of the land and therefore, it is not a Joint Family property. The finding recorded by the Trial Court even on this aspect is based on legal evidence and does not call for any interference. Therefore we do not see any substance in the said contention also.
54. In the other suit O.S.No.5075/2000 is concerned, Muniyellappa the second son is seeking partition and separate possession of his half share on the ground that
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there is no partition in the family. He has been examined in this case and he has also been cross-examined. It is therefore, the 3rd defendant has taken a specific stand that, as there was a partition in the year 1955 itself between Govindappa and Muniyellappa the suit for partition is not maintainable. However, in the cross-examination of Muniyellappa, it has been elicited as under:
'£ÀªÀÄä vÀAzÉ ¦¼ÀîªÀÄä ªÀÄvÀÄÛ vÁ£ÀªÀÄä JA§ ¸ÀºÉÇÃzÀjAiÀÄgÀ£ÀÄß ªÀÄzÀĪÉAiÀiÁVzÀÄÝgÀÄ JAzÀgÉ ¸Àj. £Á£ÀÄ £À£Àß vÀAzÉAiÀÄ ªÉÆzÀ®£É ¥Àw߬ÄAzÀ d¤¹zÀ ªÀÄUÀ. ªÁ¢UÀ¼ÀÄ vÁ£ÀªÀÄä£À ªÀÄPÀ̼ÀÄ JAzÀgÉ ¸Àj. £À£ÀUÉ £À£Àß vÁ¬Ä ¦¼ÀîªÀÄä £Á£Àß®èzÉ E£ÉÆߧ⠪ÀÄUÀ UÉÆëAzÀ¥Àà ªÀÄvÀÄÛ E§âgÀÄ ºÉtÄÚ ªÀÄPÀ̼ÀÄ ªÉAPÀlªÀÄä ªÀÄvÀÄÛ dAiÀĪÀÄä EzÁÝgÉ. ¸ÁQë ¸ÀévÀB £ÀÄrAiÀÄÄvÁÛgÉ £ÀªÀÄä vÁ¬ÄAiÀÄ E£ÉÆߧ⠪ÀÄUÀ¼À ¥ÀzÀݪÀÄä ªÀÄgÀtºÉÇA¢zÁݼÉ. zÁªÁ ¸ÀévÀÄÛUÀ¼ÀÄ ªÀÄÆ®vÀB Cj¹ÃPÀÄlÖ¥Àà¤UÉ ¸ÉÃjzÀÄÝ JAzÀgÉ ¸Àj. ¸ÁQë ªÀÄÄAzÀĪÀgÉzÀÄ £ÀÄrAiÀÄÄvÁÛgÉ zÁªÁ ¸ÀévÀÄÛUÀ¼À°è PÉ®ªÀÅ ¸ÀévÀÄÛUÀ¼ÀÄ £ÀªÀÄä vÁvÀ¤UÉ ¸ÉÃjzÁÝVzÉ E£ÀÄß PÉ®ªÀÅ ¸ÀévÀÄÛUÀ¼À£ÀÄß £Á£ÀÄ ªÀÄvÀÄÛ £À£Àß CtÚ ¸ÉÃj ¸ÀA¥Á¢¹zÀ ¸ÀévÀÄÛUÀ¼ÁVzÉ. CgÀ¹ÃPÀÄlÖ¥Àà£À ªÀÄgÀt £ÀAvÀgÀ DvÀ£À SÁvÉAiÀÄ°èzÀÝ J¯Áè D¹ÛUÀ¼ÀÄ £ÀªÀÄä vÀAzÉAiÀÄ ºÉ¸ÀjUÉ §A¢zÀÄÝ JAzÀgÉ ¸ÀjAiÀÄ®è. DzÀgÉ D J¯Áè ¸ÀévÀÄÛUÀ¼ÀÄ CgÀ¹ÃPÀÄlÖ¥Àà£À E§âgÀÄ
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ªÀÄPÀ̼À £ÀªÀÄä vÀAzÉ ªÀÄvÀÄÛ a£ÀßtÚ£À ºÉ¸ÀjöUÉ §A¢zÉ. a£ÀßtÚ¤UÉ ªÀÄvÀÄÛ £ÀªÀÄä vÀAzÉAiÀÄ £ÀqÀÄªÉ ªÀiËTPÀªÁV «¨sÁUÀªÁVzÉ. D ¸ÀzÀj «¨sÁUÀzÀ C£Àéj £ÀªÀÄä vÀAzÉAiÀÄ ¥Á°UÉ §A¢zÀÝ ¸ÀévÀÄÛUÀ¼É®èªÀÅ vÀzÀ£ÀAvÀgÀ £ÀªÀÄä vÀAzÉAiÀÄ ºÉAqÀwAiÀÄgÀÄ ªÀÄvÀÄÛ ªÀÄPÀ̽UÉ §A¢zÉ JAzÀgÉ ¸Àj. £ÀªÀÄä vÀAzÉAiÀÄ PÁ®£ÀAvÀgÀ £À£Àß CtÚ UÉÆëAzÀ¥Àà£À ºÉ¸ÀjUÉ SÁvÉUÀ¼ÀÄ §zÀ¯ÁªÀuÉUÉÆArzÉ JAzÀgÉ ¸Àj. £ÀªÀÄä ¸ÀºÉÇÃzÀgÀ UÉÆëAzÀ¥Àà FUÀ E®è.
'£ÀªÀÄä vÀAzÉAiÀÄ ¸ÀévÀÄÛUÀ¼ÀÄ ªÀiËTPÀªÁV «¨sÁUÀ ªÀiÁqÀ®ànÖzÉ. £ÁªÀÅ ªÀiËTPÀªÁV ªÀiÁrPÉÆAqÀ «¨sÁUÀzÀ°è ªÁ¢UÉ AiÀiÁªÀÅzÉà ¸ÀévÀÄÛ PÉÆnÖ®è. zÁªÁ ¸ÀévÀÄÛUÀ¼À£ÀÄß CgÀ¹ÃPÀÄlÖ¥Àà¤AzÀ £ÁªÀÅ ¥ÀqÉzÀ ¸ÀévÀÄÛUÀ¼ÁzÀÝjAzÀ CªÀÅUÀ¼À°è ªÁ¢UÀ½UÉ ¸ÀºÀ ¥Á®Ä PÉÆqÀ¨ÉÃPÉAzÀgÉ ¸ÀjAiÀÄ®è. MAzÀ£Éà ªÁ¢ FUÀ ¸ÀĪÀiÁgÀÄ 95 ªÀµÀðQÌAvÀ®Æ ºÉaÑ£ÀªÀgÀÄ.'
55. In the examination-in-chief on 10.07.2003 he has stated that they effected an oral partition. In that oral partition, no share is given to the plaintiffs. The relevant portion of the evidence reads as under:
"It is false to suggest that in the year 1940 all the schedule properties were divided into two equal shares between Chinnanna and
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Muniyellappa, but Witness volunteers that, the said Division took place in the year 1941. It is false to suggest that the properties, which fell to the share of Muniyellappa have been divided equally by myself and my brother Govindappa in the year 1955. But Witness volunteers that in the year 1987 all the new properties and old properties were divided between myself and Govindappa.
In the property item No.1 of the suit property, Sy.No.48/1 of Cholanayakanahalli measuring totally 3 acres 12 guntas out of that 1 acre 26 guntas fell to my share and 1 acre 26 guntas was fallen to the share of Govindappa. It is true that after the death of Govindappa, his wife and children were sold only 20 guntas out of 1 acre 20 guntas in favour of one Belliyappa. It is true that in my portion of 1 acre 26 guntas I have formed sites and also given the sites to the children of plaintiff and accordingly, the plaintiffs have sold the sites and I have also sold some of my sites.
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It is true that in Sy.No.3/3 item No.4 in total extent 3 acres 32 guntas, out of which 1 acre 16 guntas fell to the share of Chinnanna and 1 acre 16 guntas have fallen to the share of Muniyellappa. It is true that the portion which has fallen to the share of Muniyellappa i.e., 1 acre 16 guntas out of Sy.No.3/3, myself and Govindappa divided equally. It is true that the portion which has fallen to my share in 1 acre 16 guntas, I have formed sites and still I have retained the sites and it is true that in the said sites, I have given some sites to the plaintiff's children. It is false to suggest that in the ancestral properties, which were fallen to the share of Muniyellappa, myself and my brother Govindappa are divided equally.
It is true that in Sy.No.64/2 Item No.5 of Cholanayakanahalli, 3 & ½ guntas was fallen to the share of Chinnanna and 3 & ½ guntas was fallen to the share of Muniyellappa. It is false to suggest that 3 & ½ acres of land in Sy.No.64/2 which has fallen to the share of Muniyellappa, myself and my brother Govindappa divided equally, but Witness volunteers that the entire 3 & ½ guntas was given to me.
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It is true that in item No.1 of Sy.No.5 of Guddadahalli measuring 2 acres 35 guntas, out of which 1 acre 16 & ½ guntas fell to the share of Chinnanna and another 1 acre 16 & ½ guntas fell to the share of Muniyellappa. It is false to suggest that in 1 acre 16 & ½ guntas which fell to the share of Muniyellappa, myself and Govindappa divided equally, but Witness volunteers entire 1 acre 16 & ½ guntas was given to me.
It is true that in the portion which has fallen to my share in Sy.No.6/9 of Guddadahalli village, I have constructed four big houses and 12 small houses. It is true that in O.S.No.5075/2000, I have not stated that I have constructed four big house and 12 small houses.
56. Therefore, from the evidence on record, it is clear that the case of Muniyellappa, plaintiff in O.S.No.5075/2000 is that in the year 1987 there was a partition in the family and properties have fallen to his share and in that property, he has developed and formed sites, gave some sites to the
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children of plaintiff Thammanna in OS No.2640 of 1988 and retained some sites and he has put up constructions. Therefore, his contention in the suit that there was no partition in the family and his brother's children declined to grant him a share and therefore, he was constrained to file a partition is ex- facie false. It is settled law that once there was a partition in the family the suit for partition is not maintainable. Therefore, there is no substance in the said suit.
57. However, one thing that emerges from the aforesaid evidence is that 1987 partition is not reflected by way of a written document. It was an oral one. There appears to be small dispute regarding the extent, which has fallen to their share in the said partition. It also discloses that there is no division by metes and bounds between the plaintiffs and defendants in O.S. No. 5075/2000 in the properties which fell to their father's share and his uncle's share i.e., Chinnanna. They seem to be enjoying those
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properties even to this day without proper bifurcation. As the said partition is effected without considering the share to which plaintiff No.1 is entitled, it does not bind the plaintiff in OS No.2640 of 1988to any extent. The said properties are to be re-partitioned. That is the reason probably the Trial Court has decreed both the suits. Therefore, once the rights of the parties are determined in those proceedings, the actual property to which they are entitled to, has to be worked out in the final decree proceedings.
58. It is brought to our notice that it is not in dispute that some other items of the property have been the subject matter of acquisition by the BDA as well as by the KIADB. Not only properties are taken, acquired, compensation are deposited in Court and in some cases, even the compensation amount has been withdrawn. Therefore, it was contended by the appellant's counsel that there cannot be a decree for partition in the sites which was the subject matter of acquisition.
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59. He is right to the extent that in those proceedings the Civil Court cannot effect partition and give share to the parties in respect of these properties. But the said properties are now in the form of money, which is in Court deposit. When once in terms of the preliminary decree, a final decree is drawn declaring the share in the properties to which the parties are entitled to, certainly, the properties which are now converted into money also have to be taken into consideration, shares have to be allotted and equity have to be adjusted. Therefore, we do not see any merit in this contention.
60. Similarly, it was contended that even the plaintiffs in OS No.2640 of 1988 have been given sites as well as lands. If it is so, then, the property to which the plaintiffs are entitled to in pursuance of the decree, in addition to what they have already been given, also should be taken into consideration in deciding their share in the property and allotment of their share in the FDP. It is also
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submitted that during the pendency of the proceedings and in some case, after the filing of the appeal, properties have been alienated. Those persons, who have purchased the property pendente lite have filed applications to come on record. As they were not parties in the Trial Court, it is not necessary to implead them in these proceedings. However, their presence is not necessary for this Court to decide and determine the share of the members of the Joint Family. Once the shares of the members of the family are determined in these proceedings, it is at the time of giving effect to the shares in the FDP, they should be heard in the matter. Therefore, in the FDP to be initiated by any of the parties for determination of their respective share in the property, all these purchasers shall be impleaded and in their presence, the share may be allotted so that their interest also, if necessary, can be taken note of. Now the question is:
What is the share to which the parties are entitled to?
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61. Sub-Section(2) of Section 8 of the Act deals with the shares to which these female heirs are entitled. In the case of widow, one half of which her husband, if he were to alive would receive as a share. It has no application to the facts of this case. Clause (b) deals with the case of mother, one half of the share of a son, if she has a son alive and in any other case one half of what her husband, if he were to alive would receive as his share.
62. In the instant case, Muniyellappa has left behind two sons. Two sons are entitled to equal share. It is half of that son's share to which the mother is entitled to. In other words, if each son is entitled to two shares the mother is entitled to one share. In the instant case there are two mothers. The 1st defendant is the first wife and plaintiff is the second wife. Sub-Section (3) of Section 8 provides the term 'mother' includes a step mother and when there are both, a mother and a step mother, all of them jointly would
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be entitled to one share. Therefore, one share to be allotted to mother, is to be shared by the 1st plaintiff and the 1st d0.efendant. Therefore, in terms of the aforesaid provision out of 4/10th share, Govindappa's Branch will be entitled to four shares and Muniyellappa would be entitled to four shares. Thus the 1st plaintiff would be entitled to 1/10th share. To this extent, the judgment and decree of the appellate court requires to be modified. Hence, we pass the following order:
(a) Appeal is partly allowed.
(b) The plaintiff's suit in O.S.No.2640/1988 is
partly allowed and O.S.No.5075/2000 is
consequently dismissed.
(c) The 1st plaintiff in O.S.No.2640/1988 is entitled
to 1/10th share.
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(d) The 1st plaintiff in O.S.No.2640/1988 died during the pendency of the proceedings.
Therefore, her daughters, 2nd plaintiff Smt. Gowramma and 3rd plaintiff Smt. Ashwathamma, 4th plaintiff Smt.Susheelamma and 8th defendant Smt.Sarasamma, and 9th defendant Smt.Parvathamma would be entitled to equal share in 1/10 share of the first plaintiff.
(e) Smt. Pillamma the 1st defendant also died during the pendency of the proceedings, who is entitled to 1/10th share.
(f) Defendant No.3, the widow of Govindappa and her children and Smt. Pillamma are entitled together to the 4/10th share of Govindappa.
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(g) Sri Muniyellappa, the 2nd defendant is entitled to 4/10th share in the schedule property
(h) The said share of Smt. Pillamma would devolve on her heirs as per Section 15 of the Hindu Succession Act, 1956.
Parties to bear their own costs.
Sd/-
JUDGE Sd/-
JUDGE Mgn/vb/sps