Sangappa Veerabhadrappa Hasabi vs Shekavva @ Chambavva Kom
2022 Latest Caselaw 2302 Kant

           IN THE HIGH COURT OF KARNATAKA
                   DHARWAD BENCH

       DATED THIS THE 14TH DAY OF FEBRUARY, 2022

                        BEFORE

 THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

               R.S.A.NO.5095/2013 (PAR)

BETWEEN

SANGAPPA VEERABHADRAPPA HASABI,
SINCE DECEASED BY HIS L RS,

1(A)   SHIVAPUTRAPPA SANGAPPA HASABI,
       AGED ABOUT 72 YEARS,
       OCCUPATION: AGRICULTURE,
       RESIDING AT SHIRAGUPPI,
       TALUK: HUBLI-580020.

1(B)   IRAVVA
       WIFE OF SHANTAPPA MISHRIKOTI
       AGED ABOUT 63 YEARS,
       OCCUPATION : HOUSEHOLD MANAGEMENT,
       RESIDING AT RON CHAWL,
       NEAR BULL TEMPLE
       LAXMESHWAR-582 118,
       TALUK: LAXMESHWAR,
       DISTRICT: GADAG.
                                        ...APPELLANTS
(BY    SRI SUNIL DEASI ADV. FOR
       SRI PRAKASH ANDANIMATH
       SRI R.M.BETAGERI, ADVOCATES)

AND

1.     SHEKAVVA @ CHAMBAVVA
       KOM BASAVARAJ HONDANNAVAR,
       AGED ABOUT 55 YEARS,
       OCCUPATION: HOUSEHOLD WORK,
       RESIDING AT BOMMAPUR,
       (PRATHAMSHETTAR ONI),
       HUBLI-580020.
                            2




2.     GANGAVVA
       KOM MAHABALESHWARAPPA JABIN
       AGE: MAJOR,
       OCC: AGRICULTAURE & COOLIE,
       RESIDING AT SHIRAGUPPI,
       TALUK: HUBLI-580020.

2(A)   CHINNAVVA @ UMA
       D/O MAHABALESHWARPPA JABIN
       AGED ABOUT 35 YEARS,
       OCCUPATION: HOUSEHOLD WORK,
       RESIDING AT SHIRAGUPPI,
       TALUK: HUBLI-580020.

2(B)   GURUSIDDAPPA
       SON OF MAHABALESHWARPPA JABIN
       AGED ABOUT 33 YEARS,
       OCCUPATION: COOLIE,
       RESIDING AT SHIRAGUPPI,
       TALUK: HUBLI-580020.

3.     SMT.ANASAVVA
       WIFE OF SHAIKHAPPA JABIN
       AGED ABOUT 65 YEARS,
       OCCUPATION: AGRICULTURE & COOLIE,
       RESIDING AT SHIRAGUPPI,
       TALUK: HUBLI-580020.

4.     PURADIRAPPA TOTAPPA ANGADI
       AGED MAJOR,
       OCCUPATION: AGRICULTURE,
       RESIDING AT SHIRAGUPPI,
       TALUK: HUBLI-580020.

4(A)   SMT.RATNAVVA
       W/O PURADIRAPA ANGADI
       AGED ABOUT 58, YEARS,
       OCCUPATION: HOUSEHOLD WORK,
       RESIDING AT SHIRAGUPPI,
       TALUK: HUBLI-580020.

5.     MURIGEPPA TOTAPPA ANGADI
       BY HIS L.RS.

5(A)   VIJAYA
       KOM VIJAYAKUMAR KALYANSHETTAR,
                                3




       AGED ABOUT 35 YEARS,
       PRESENTLY RESIDING AT
       LAXMESHWAR-582118,
       DISTRICT: GADAG.

5(B)   TOTAPPA
       MURIGEPPA ANGADI
       AGE: MAJOR,
       OCCUPATION: COOLIE,
       RESIDING AT SHIRAGUPPI,
       TALUK: HUBLI-580020.

5(C)   GOURAVVA
       DAUGHTER OF MURIGEPPA ANGADI,
       AGE: MAJOR,
       OCCUPATION: HOUSEHOLD WORK,
       RESIDING AT SHIRAGUPPI,
       TALUK: HUBLI-580020.
       (DELETED)
                                             ... RESPONDNETS

(BY    SRI RAGHAVENDRA A.PUROHIT ADV. FOR R.1
       SRI VEERESH R.BUDIHAL, AV. FOR R.1
       SRI S.V.JOSHI, ADV. FOR C/R1
       NOTICE TO R.2(A), 2(B) 3, 4(A) 5(A) & 5(B) : SERVED.
       APPEAL AGAINST R.3 : ABATED.
       RESPONDENT NOS.5© : DELETED)

       THIS RSA IS FILED UNDER SECTION 100 OF THE CODE
OF CIVIL PROCEDURE, 1908 PRAYING THIS COURT TO SET
ASIDE THE JUDGEMENT & DECREE DATED 31.10.2012 PASSED
IN R.A.NO.144/2009 PASSED BY THE LEARNED II ADDITIONAL
SENIOR CIVIL JUDGE, HUBLI, WHICH HAS SET ASIDE THE
JUDGMENT     AND   DECREE   DATED    03.06.2002   DISMISSING
O.S.NO.886/1992 PASSED BY THE LEARNED III ADDITIONAL
CIVIL JUDGE (JR.DN.), HUBLI.

       THIS APPEAL COMING ON FOR FURTHER HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
                                      4




                            : JUDGMENT :

The captioned regular second appeal is filed by the

legal heirs of defendant No.3 questioning the judgment

and decree of the First Appellate Court passed in

R.A.No.144/2009.

2. Family tree of the respondents-plaintiffs is as

follows:

REVANAPPA RUDRAPPA ANGADI (DIED ON 11.12.1954)

Rudravva Gurushantavva Totappa Cha ndr avva Veerappa B asavva (Died) (die d on (died on 01.07.67) 13. 10.76)

Gouravva wife of Totappa died in the year

Puradeerappa Gurushiddavva S hekha vva Gangavva Murageppa Anasavva (Deft .1) ( died) urf (Plltf.2) (Def.2) (Pltf.2) Chambavva (Pltf.1)

3. The facts leading to the above said case are as

under:

Respondent Nos.1 to 3 filed a suit for partition and

separate possession against their brothers i.e., defendant

Nos.1 and 2 by specifically contending that the suit

residential house is the joint family ancestral property and

it was originally owned by their father namely Revanappa

Rudrappa Angadi. The present suit is filed by alleging that

defendant Nos.1 and 2 without any semblance of right and

behind the back of plaintiffs have sold the suit residential

house in favour of the appellants' ancestor i.e., defendant

No.3 under a registered sale deed dated 17.05.1976. The

respondents-plaintiffs are also seeking redressal of their

grievances in respect of agricultural land which was sold by

brothers i.e., defendant Nos.1 & 2 way back in the year

1954. It is the specific contention of respondent Nos.1 to

3-plaintiff Nos.1 to 3 that on account of ill-treatment by

their husbands' they were compelled to return back their

parental house and they continued to reside at their

parental house at Shirguppi village.

4. It is further pleaded that after the death of

their mother in 1980, defendant Nos.1 and 2 and their

wives have ill-treated the plaintiffs and they have been

driven out of the parental house. Respondents/plaintiffs

further pleaded that, only to deprive their legitimate share

in the suit schedule property, defendant Nos.1 and 2 have

sold residential house bearing VPC Nos.267 in favour of

deceased defendant No.3 and defendant No.3 on the same

day executed another sale deed in favour of defendant

Nos.1 and 2 in respect of VPC No.287.

5. Defendant No.3 who is purchaser of VPC

No.287 contested the proceedings and stoutly denied the

entire averments made in the plaint. Defendant No.3 filed

written statement and specifically contended that plaintiffs

marriage was solemnized about 25 years back and

therefore, they are not residing at Shiraguppi village.

Defendant No.3 further pleaded that he has purchased suit

schedule property bearing VPC No.287 for valuable

consideration of Rs.4,000/-. It was further contended that

pursuant to sale, defendant No.3 and his legal

representatives are in exclusive possession and enjoyment

over the suit schedule property.

6. The trial court having examined oral and

documentary evidence though answered issue No.1 in the

affirmative by holding that suit schedule properties are

joint family ancestral properties of plaintiffs and defendant

Nos.1 and 2, however, while examining issue No.2, the

trial court came to the conclusion that plaintiffs have failed

to prove that sale deed executed by Tottappa who is the

third son of propositus Revanappa dated 28.06.1954 is a

nominal sale in favour of Eshwarappa. While examining

issue No.3, the trial court held that respondents/plaintiffs

have failed to prove that sale deed dated 17.05.1976 in

favour of defendant No.3 is not binding on them. The trial

court having examined material on record has declined to

grant share on the ground that insofar as sale deed dated

28.06.1954 is concerned, it is barred by limitation. While

denying the claim of respondents/plaintiffs in respect of

VPC No297 i.e., Item No.2, the trial court was of the view

that, in view of embargo under Section 23 of the Hindu

Succession Act, the respondents/plaintiffs being married

sisters cannot seek partition unless brothers decide to

effect partition in a dwelling house. Feeling aggrieved by

the dismissal of the suit, the respondents/plaintiffs

preferred an appeal before the first appellate court. The

first appellate court on re-appreciation of oral and

documentary evidence on record decree the appeal filed by

the respondents/plaintiffs only in respect of dwelling house

which was purchased by defendant No.3 on the ground

that Section 23 stood omitted w.e.f. 09.09.2005 by holding

that respondents/plaintiffs are entitled for share in item

No.2 bearing VPC No.267 Item No.2 It is against this

divergent finding, the legal representatives of deceased

defendant No.3 have filed the top noted appeal. The

appeal was heard in admission and was admitted on the

following substantial question of law.

1. Whether the finding of the First Appellate Court that in view of omission of Section 23 of Hindu Succession Act, 2005, the respondents-plaintiffs are entitled for a share in residential house which was sold under a registered sale deed dated 17.05.1976 is perverse and palpably erroneous?

2. Whether the judgment of the First Appellate Court is perverse and contrary to the provisions of Order XLI Rule 30 and 31 of CPC?

7. However, today on examination of the records,

this court would find that infact propositus Revanappa

Rudrappa Angadi died on 11.12.1954 and therefore, one

more substantial question of law would arise in the present

case on hand. It father died on 11.12.1954, the question

that would arise for consideration is whether

respondents/plaintiffs could have maintained present suit

for partition and therefore, additional substantial question

of law is framed and both the counsel have extensively

argued on additional substantial question of law framed

today.

Whether the suit for partition filed by respondents/plaintiffs is maintainable, when it is admitted by the plaintiffs that their father Revanappa Rudrappa Andagi died on 11.12.1954 which was much prior to commencement of Hindu Succession Act, 1956?

8. Heard the learned counsel for the appellants,

learned counsel for the respondents and perused the

material on record.

9. On perusal of averment made in para 1 of the

plaint as well as family tree which is furnished at para 2 of

the plaint, it is forthcoming that propositus Revanappa

died on 11.12.1954. The death of propositus would clinch

the issue in the present case on hand. Though plaintiffs

have admitted in unequivocal terms that their father died

much prior to commencement of 1956 Act, however, both

the parties have virtually contested the proceedings on a

totally different footing. Both the courts below have also

erred in examining the claim of respondents/plaintiffs in

the light of Section 23 of the Hindu Succession Act. The

trial court proceeded to hold that there is an embargo

under Section 23 of the Hindu Succession Act and married

sisters cannot seek partition in a dwelling house unless

brothers choose to effect partition in a dwelling house. The

said finding is also palpably erroneous, because sisters

have shown cause of action to file the present suit is on

account of alienation by brothers in respect of dwelling

house. If suit item No.2 was alienated by defendant Nos.1

and 2 in 1976, this court is unable to understand as to how

Section 23 would have an application. The embargo is,

married sisters cannot enforce partition unless brothers

choose. In the present case, the brothers have opted to

sell the Item No.2 i.e., residential house in 1976, whereas

suit is filed in 1986.

10. It is also borne out from the records and also

from the recitals in Ex.D2 wherein defendant Nos.1 and 2

have sold the suit item No.2 to purchase another property.

In the written statement filed by defendant No.1 and 3,

they have clearly stated that item No.2 was sold and

defendant Nos.1 and 2 infact on the same day purchased

VPC No.287. If these significant details are taken into

consideration, the partition suit filed by sisters alleging

that they were driven out of parental home and defendant

Nos.1 and 2 have sold the residential house and therefore,

it would not bind on their legitimate share is totally

misconceived.

11. In the light of the above said factual matrix, if

the case of respondents/plaintiffs is examined in terms of

additional substantial question of law framed by this court,

then I am of the view that suit filed by the

respondents/plaintiffs seeking share in the suit schedule

property itself was not maintainable. In the family tree

furnished by respondents/plaintiffs, there is no reference

as to when widow of Revanappa died. There are no

pleadings in that regard. Therefore, if father is no more as

on 1956, the respondents/plaintiffs could not have

maintained present partition suit.

12. The Hon'ble Apex Court while interpreting

Section 8 of Hindu Succession Act has held that application

and operation of Section 8 of Hindu Succession Act is

prospective in nature. The Hindu Succession Act, 1956 is a

codifying enactment. It does not merely crystallize or

declare the existing law upon the subject, but deliberately

departs from the law in respect of various matters. It

supersedes prior law, lays down the whole law of

succession in the form of a code and so far it goes, must

be read as a complete enactment. Therefore, in cases

governed by the Act, appeal to any rule of law of

succession previously applicable to Hindus is now

permissible only in respect of matters for which no

provision is made in the Act. Matters affecting succession

expressly saved from the operation of the Act, off-course,

continued to be governed by the previous law, statutory or

otherwise. The language of Section 8 and particularly the

words 'shall devolve' plainly indicate that section is

prospective in its operation. The Apex Court in the case of

Eramma Vs. Veerupana and others1, has held that,

section applies whereon death of a male intestate,

devolution of his property takes place after the

commencement of the Act and does not govern succession

to the property of a male Hindu whose death took place

before the commencement of the Act. In the latter case,

all questions of inheritance would be determined according

to the previous law.

AIR 1966 Supreme Court 1879

13. In the light of the principles laid down by the

Hon'ble Apex Court wherein the application of Section 8

was held to be prospective in nature, in that view of the

matter, father having died much prior to 1956, the entire

ancestral properties vests in surviving male co-parcener

i.e., defendant Nos.1 and 2. Therefore, the present suit

itself was not maintainable. However, voluminous records

are produced, both the parties have contested and have

virtually let in evidence on issues which were not at all

relevant to decide the actual lis between the parties. The

respondents/plaintiffs are liable to be non-suited by taking

cognizance of admitted set of facts in the plaint itself. If

respondents/plaintiffs have themselves admitted that their

father died in 1954, question of claiming share in the suit

schedule property would not arise. In that view of the

matter, the additional substantial question of law framed

today deserves to be answered in the negative.

14. One more aspect needs to be examined by this

court is that, defendant No.3 having verified the records

has purchased item No.2 i.e., VPC No.267 under registered

sale deed. The respondents/plaintiffs have kept quiet for

almost 10 years. Therefore, by their own volition, rights of

defendant No.3 have stood crystallized by passage of time.

If respondents/plaintiffs have kept quiet for almost 10

years, the right crystallized by passage of time cannot be

unsettled. Even on this ground, the respondents/plaintiffs

are not entitled for share insofar as item No.2 is

concerned. Accordingly, the substantial question of law

No.1 is answered in the affirmative and consequently

substantial question of law No.2 is also liable to be

answered in the affirmative and additional substantial

question of law is liable to be answered in the negative.

15. For the forgoing reasons, I proceed to pass the

following :

: ORDER :

The appeal is hereby allowed.

The judgment and decree dated 31.10.2012 passed in R.A.No.144/2009 by the II Additional Senior Civil Judge, Hubli is hereby set aside.

The judgment and decree dated 03.06.2002 passed in O.S.No.886/1992 by the

III Additional Civil Judge, Hubli is hereby confirmed.

Sd/-

JUDGE EM/MBS