Karnataka High Court
Shivagangavva W/O Kallanagouda ... vs Mahadevappa Fakkirappa Shigli on 15 December, 2022
Author: Suraj Govindaraj
Bench: Suraj Govindaraj
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RFA No. 100288 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 15TH DAY OF DECEMBER, 2022
PRESENT
THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
REGULAR FIRST APPEAL NO. 100288 OF 2017 (PAR/POS-)
BETWEEN:
1. SHIVAGANGAVVA @ PARVATEVVA
W/O KALLANAGOUDA BISANALLI
AGE: 60 YEARS, OCC: AGRICULTURE,
R/O: MANNANGI, TQ: SAVANUR, DIST: HAVERI.
2. GIRIJAVVA,
W/O SHANKRAPPA KAGGANNAVAR,
AGE: 56 YEARS,OCC: AGRICULTURE,
R/O: ADRAHALLI, TQ: SHIRAHATTI, DIST: GADAG.
...PETITIONERS
(BY SRI. V R PATIL, ADVOCATE)
AND:
1. MAHADEVAPPA FAKKIRAPPA SHIGLI
AGE: 72 YEARS, OCC: AGRICULTURE,
R/O: ISHWARANAGAR
SUJATA
SUBHASH
PAMMAR
LAXMESHWAR, TQ: SHIRAHATTI,
DIST: GADAG-582116.
Digitally signed
by SUJATA
SUBHASH
PAMMAR 2. IRAPPA S/O FAKKIRAPPA SHIGLI
Date:
2022.12.15
15:24:45 +0530 AGE: 69 YEARS, OCC: AGRICULTURE,
R/O: YALAVATTI, TQ: SHIRAHATTI,
DIST: GADAG-582116.
3. SHIVAPPA FAKKIRAPPA SHIGLI
AGE: 67 YEARS, OCC: AGRICULTURE,
R/O: PAMP CIRCLE LAXMESHWAR,
TQ: SHIRAHATTI, DIST: GADAG-582116.
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RFA No. 100288 of 2017
4. VEERABADRAPPA S/O GUNDAPPA SHIGLI
AGE: 62 YEARS, OCC: AGRICULTURE,
R/O: YALAVATTI, TQ: SHIRAHATTI,
DIST: GADAG-582116.
5. SMT.NEELAVVA W/O VEERABADRAPPA SHIGLI
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O: YALAVATTI, TQ: SHIRAHATTI,
DIST: GADAG-582116.
6. SMT.ANUPAMA W/O SHIVAPPA SHIGLI
AGE: 55 YEARS, OCC: HOUSEHOLD,
R/O: YALAVATTI, TQ: SHIRAHATTI,
DIST: GADAG-582116.
7. GANGADHAR BASAPPA TURAKANNAVAR
AGE: 50 YEARS, OCC: AGRICULTURE,
R/O: YALAVATTI, TQ: SHIRAHATTI,
DIST: GADAG-582116.
8. GANESH BASAPPA TURAKANNAVAR
AGE: 48 YEARS, OCC: AGRICULTURE,
R/O: YALAVATTI, TQ: SHIRAHATTI,
DIST: GADAG-582116.
...RESPONDENTS
(BY SRI. SANGRAM S. KULKARNI FOR R1-R8, ADVOCATE)
---
THIS RFA IS FILED UNDER SEC. 96 READ WITH ORDER
41 RULE 1 OF CPC.,1908, AGAINST THE JUDGMENT AND
DECREE DTD:22.04.2017 PASSED IN O.S.NO.107/2010 ON THE
FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, GADAG,
SITTING AT LAXMESHWAR, DISMISSING THE SUIT FILED FOR
PARTITION AND SEPARATE POSSESSION.
THIS APPEAL HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT ON 09.12.2022, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, SURAJ
GOVINDRAJ J. PRONOUNCED THE FOLLOWING:
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RFA No. 100288 of 2017
JUDGMENT
1. The appellants who are the plaintiffs in O.S.N.o.107/2010 are before this Court aggrieved by the judgment and decree dated 22.04.2017 passed by the Addl.Senior Civil Judge, Gadag sitting at Lakshmeshwar (hereafter referred to as 'the trial Court', for short).
2. O.S.No.107/2010 had been filed for partition, the plaintiffs claiming 1/3rd share in the suit schedule properties. The said suit came to be dismissed by the trial Court with costs.
3. The parties are referred to by their ranking before the trial Court for easy reference.
4. The case of the plaintiffs is that;
4.1. One Veerabhadrappa was the propositus who had three children namely, Fakirappa, Mallappa -4- RFA No. 100288 of 2017 and Gundappa. Mallappa had a daughter by name Neelavva of whom the plaintiffs are the daughters.
4.2. Fakirappa expired leaving behind his sons defendants No.1, 2 and 3. Gundappa expired leaving behind his son defendant No.4. 4.3. It is contended that the suit schedule properties were under the ownership of Veerabhadrappa and subsequent to his death the said properties came to be enjoyed by Fakirappa, Mallappa and Gundappa as joint owners. Fakirappa having expired on 27.07.1955, Mallappa having expired on 02.01.1977 and Gundappa also having expired subsequently.
4.4. The sons of Fakirappa, namely, defendants No.1, 2 and 3 succeeded to his property. The daughter of Mallappa namely, Neelavva succeeded to his property. The son of -5- RFA No. 100288 of 2017 Gundappa namely, defendant No.4 succeeded to his property. Alleging that upon the expiry of Neelavva, the plaintiffs have succeeded to her share and as such, partition in respect of the share of Neelavva was sought for.
4.5. While praying so, it was contended that the sale executed by Neelavva in favour of defendants No.1 and 3 was illegal and not binding since there was no family and legal necessity for such sale.
5. Defendant No.3 filed written statement denying all the contentions raised by the plaintiffs. It is contended that;
5.1. There was partition between Fakirappa, Mallappa and Gundappa, in pursuance of which respective mutation entries were made. 1/3rd of the properties falling to the share of Mallappa was succeeded to by Neelavva, the mother of -6- RFA No. 100288 of 2017 the plaintiffs and accordingly mutation entry No.3317 and 1412 were made showing her as the joint owner and consequently necessary entries were also made in the record of rights. 5.2. This being made a long ago, the said properties wear sold by Neelavva as under:
5.2.1. Through a registered sale deed dated 11.12.1992, 1/3rd share in R.S.No.81/1 to Mahadevappa Fakkirappa Shigali (defendant No.1) for a sum of Rs.1,25,000/-
5.2.2. Through a registered sale deed dated 11.12.1992, 1/3rd share in R.S.No.188/2 and R.S.No.45/1 to Gundappa Veerabhadrappa Shigli (defendant No.4) for a consideration of Rs.1,50,000/--7-
RFA No. 100288 of 2017 5.2.3. Through a registered sale deed dated 31.12.1992, 1/3rd share in R.S.No.466/1 to Gundappa Veerabhadrappa Shigli and Mahadevappa Fakirappa Sigli (defendants No.1 and 4) for a consideration of Rs.1,20,000/-. 5.3. In pursuance of the same mutation entry No.3324 was made in the name of defendant No.1, mutation entry No.3325 was made in the name of defendant No.4, mutation entry No.4352 was made in favour of defendants No.1 and 4 jointly.
5.4. In pursuance of the said sale deeds, the said Neelavva stood disowned and dispossessed of her 1/3rd share which had been bought over by defendants No.1, 3 and 4.-8-
RFA No. 100288 of 2017 5.5. On that basis, it is contended that Neelavva having sold her properties during her lifetime and the said properties being her individual property, the plaintiffs did not have any share in the properties.
6. None of the Other defendants filed the written statement.
7. On the basis of the pleadings on record the trial Court framed the following issues:
7.1. Whether the plaintiffs prove that the suit schedule properties are joint family properties and they are in joint possession and enjoyment of the same?
7.2. Whether the plaintiffs further prove that they are entitled 1/3rd share in the suit properties by metes and bounds?
7.3. Whether the plaintiffs prove that the sale deeds executed in favour of defendants No.1 to 3 are illegal and not binding upon their share?
7.4. Whether the defendants prove that the suit is hit by non-joinder of necessary parties?
7.5. Whether the defendants prove that Smt.Neelavva was absolute owner of her 1/3rd share in the suit properties?-9- RFA No. 100288 of 2017
7.6. Whether the defendants prove that the said Neelavva for her legal necessity alienated her 1/3rd share in favour of Mahadevappa Shigli, Gundappa Shigli for valuable consideration by executing regiatered sale deeds in respect of suit schedule properties on 11.12.1992 and 31.12.1992 as contended in the written statement?
7.7. Whether the defendants prove that when the plaintiffs are not in joint possession they ought to have paid necessary court fee on the market value mentioned in the respective sale deeds?
7.8. Whether the plaintiffs are entitled for the relief as sought for?
7.9. What order or decree?
8. The trial Court answered the above issues as under:
Issue No.1 : In the negative
Issue No.2 : In the negative
Issue No.3 : In the negative
Issue No.4 :Does not survive for
consideration
Issue No.5 : In the affirmative
Issue No.6 : In the affirmative
Issue No.7 : In the affirmative
Issue No.8 : In the negative
Issue No.9 : As per final order.
9. Though the plaintiffs and the defendants led their evidence, we are of the considered view that, in the present matter what is of relevance is the nature of
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right of Neelavva and whether the sale made by Neelavva is proper or not. For that purpose there would be no requirement of re-appreciation of the evidence on record, the same being a legal issue..
10. Though the plaintiffs lay a claim on the properties in terms of Section 6 of the Hindu Succession Act, 1956 (hereinafter referred to as 'the HSA' for short), what is to be seen is whether the said provision would apply to the present facts or not.
11. Admittedly, the property belonged to Veerabhadrappa, the grandfather of Neelavva, that is to say that Neelavva succeeded to the property on her maternal side through her father. The plaintiffs also claim right through their maternal side through Neelavva, their mother.
12. The property in issue is not a joint family property or coparcenery property, the Karta being the husband of Neelavva. In other words, the plaintiffs are not
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RFA No. 100288 of 2017 claiming the properties of their father, but are claiming right in the property of their mother.
13. It is not in dispute that Veerabhadrappa having expired, the joint family properties devolved on Fakirappa, Mallappa and Gundappa at 1/3rd each. Mallappa having expired, his 1/3rd share devolved on Neelavva and Neelavva sold her 1/3rd share in favour of defendants No. 1, 3 and 4 in the year 1992.
14. Section 14 of the Hindu Succession Act, 1956 (HSA) reads as under:
14. Property of a female Hindu to be her absolute property.--
(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
Explanation.--In this sub-section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.
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RFA No. 100288 of 2017 (2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.
15. Perusal of the said provision indicates that, any property possessed by a female Hindu whether acquired before or after the commencement of the Act will be held by her as full owner. The explanation provides the manner of acquisition and makes it applicable to both movable and immovable properties. The manner of acquisition covering inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any manner whatsoever. Though omnibus provision at the end of the provision, 'in any other manner whatsoever' would be sufficient to cover any other manner of acquisition by the female Hindu. The
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RFA No. 100288 of 2017 explanation deals with the acquisition of property "at a partition", that is to say, if a female Hindu gets any right, title, interest or property at a partition, the said property would be her absolute property with absolute right to deal with the same.
16. In the present case, admittedly there being a partition between Neelavva and defendants No.1 to 4, 1/3rd share of Mallappa came to Neelavva, that is to say that the acquisition of title of Neelavva was under a partition which was recorded in the mutation entry.
17. Be that as it may, looked at from any angle, the properties stood in the name of Neelavva and irrespective of the manner of acquisition in terms of Section 14 of the HSA, the said property became her absolute property. There being three registered sale deeds dated 11.12.1992 and 31.12.1991 as per Exhibits D1, D2 and D3 and Neelavva having sold her
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RFA No. 100288 of 2017 absolute property, over which she had absolute interest, no one can question the said sale.
18. The contention of the plaintiffs is that, Neelavva could not have sold the property since there is no family necessity. Once a female Hindu gets an independent right over the property, for sale of such property, there is no justification of family necessity or otherwise which is required to be given by a female Hindu.
19. The property being her absolute property, she can deal with the same in any manner that she deems fit and sell the same at her discretion and such sale cannot be restricted on the basis of family necessity or otherwise.
20. The aspect of family necessity is brought about to impose restriction on a Karta of a joint family, where the Karta being a male member is holding the property in trust and he is debarred from selling the
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RFA No. 100288 of 2017 property for otherwise than family necessity. That restriction cannot apply to a female Hindu under Section 14 of the HSA, who acquires title to a property which becomes her absolute property in terms of Section 14 of the HSA.
21. The contention of the plaintiffs is that, the amendment is made to Section 6 the HSA would enure to the benefit of the plaintiffs and they would also have to be given a right in the property of their mother as a coparcener. They would acquire a right by birth in the property of their mother which she has received from her father or grandfather.
22. The contention is that, the property derived by a female Hindu post the amendment to Section 6 of the HSA would become the joint family property of the said female Hindu and her children. The children having the same rights in the joint family property held by the female Hindu as that held by a male Hindu.
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RFA No. 100288 of 2017
23. Section 14 of the HSA has been dealt with hereinabove and makes it clear that any property of a female Hindu would be her absolute property. Section 6 of the HSA as it stood originally, did not recognize any right of a female Hindu in the coparcenary property. It is only on account of the amendment which came into effect from 09.09.2005, that a daughter of a coparcener would by birth become coparcener in her own right, in the same manner as sons and have the same rights in the coparcenery property as would be available to a son.
24. The copercenery property which is referred to under Section 6 of the HSA is the property of the father where she would become a coparcener. The property referred to in Section 6 of the HSA is not that of a female Hindu. Sub-section (2) of Section 6 provides a right to a female Hindu who succeeds in terms of Sub-section(1) of Section 6 to any coparcenery property, to dispose of the same by
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RFA No. 100288 of 2017 testamentary disposition, thereby again reinforcing the view that the property acquired by a female Hindu will become her own individual property since no testamentary disposition can be made by a joint family property or ancestral property or coparcenary property.
25. Thus on reading of Sub-section (2) of Section 6 of Hindu Succession Act in conjunction with Section 14 of the Hindu Succession Act, it is clear that any property succeeded to or devolved or derived for the benefit of a female would became her individual property and a coparcenary or joint family cannot be created by or under her.
26. Thus the submission made in this regard by the plaintiff is required to be rejected.
27. Now by applying the provision of Section 6 and Section 14 of the HSA, Neelavva having derived title to the property and the said property being her
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RFA No. 100288 of 2017 individual property and she having sold the same under three sale deeds at Exhibits D1, D2 and D3 on to defendants No.1, 3 and 4 in the year 1992 11.12.1992 and 31.12.1992, the plaintiffs cannot claim any right in the said properties by filing a suit let alone in the year 2001.
28. Neelavva being the absolute owner of the properties had every right to deal with the same which she has done and the said transaction being valid and binding on all parties, the plaintiffs cannot claim any right, title or interest in the same.
29. Thus, the finding of the trial Court being proper and correct it is not required any interference. Observation
30. This however bring us to the dichotomy in the Hindu Succession Act inasmuch as in the joint family property succeeded to by a male Hindu, his children would have a right by birth, however in a joint family
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RFA No. 100288 of 2017 property succeeded to by a female Hindu, her children would not have a right by birth. The restriction imposed upon a male Hindu in transferring the property only for family necessity does not apply to a female Hindu.
31. What is to be seen is that, whether it is a male Hindu or female Hindu, each of them derives title to the property from their respective fathers or grandfathers. Thus the property is not one acquired by them, but is one which devolves on them either by succession or by partition or the like.
32. Section 15 of the Hindu Succession Act deals with rules of succession inasmuch as sub-section (1) of Section 15 states that, whenever a female Hindu dies intestate, the same shall firstly devolve upon sons and daughters secondly upon heirs of husband, thirdly upon mother and father, fourthly upon heirs of father and lastly upon heirs of mother, but however subject to sub-section (2) of Section 15,
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RFA No. 100288 of 2017 which mandates that, if any property is inherited by a female Hindu by her father or mother, the same shall devolve in the absence of her son or daughter not upon the other heirs referred to in sub-section (1), but upon the heirs of her father. That is to say that, if a property devolves upon a female Hindu from her father, unless she has a direct lineal descendant, the property would be succeeded to by the heirs of the father.
33. Similarly, in terms of clause (b) of sub-section (2) of Section 15 of the Hindu Succession Act, if the property is inherited by a female Hindu from her husband, then in the absence of any direct lineal descendant, the same would devolve upon the heirs of her husband, wherein her parents would not have any right.
34. Both under clauses (a) and (b) of sub-section (2) of Section 15 of the Hindu Succession Act, the rights of lineal descendants of female Hindu are protected,
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RFA No. 100288 of 2017 when the female Hindu dies intestate. This of course applies to intestate succession and does not prevent or impose any fetters on the female Hindu to deal with such properties during her lifetime, which fetter applies to a male Hindu.
35. Therefore, in our considered opinion there is a need to reconcile the position so as to safeguard the interest of the female Hindu who succeeds to any property of her father or grandfather, so as to protect the interest of the children in the same manner as the protection given to the property succeeded to by a male Hindu. More so, for the reason that the said female Hindu may also have daughters/sons and their interest is also required to be protected.
36. By way of the amendment which has come about to Section 6 of the Hindu Succession Act, though the right of the female Hindu is protected, the right of her children is not protected. Thus, any property
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RFA No. 100288 of 2017 succeeded to by a female Hindu from her father or grandfather or derived through partition would have to be deemed to constitute a joint family between herself and her children. The Legislature and the Law Commission are requested to look into this aspect.
37. In view of the above we pass the following:
ORDER The appeal stands dismissed.
Sd/-
JUDGE Sd/-
JUDGE gab List No.: 1 Sl No.: 1