L. Venkatesh Reddy vs H Lakshmaiah Reddy
2022 Latest Caselaw 475 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 12TH DAY OF JANUARY 2022

                       BEFORE

       THE HON'BLE MR.JUSTICE ASHOK S. KINAGI

     WRIT PETITION NO.25858 OF 2018 (GM-CPC)

BETWEEN:

       L. VENKATESH REDDY,
       S/O LATE H. LAKSHMAIAH REDDY,
       R/AT NO.39/24,
       THIMMA REDDY ROAD,
       APPAREDDY PALYA,
       INDIRANAGAR,
       BENGLAURU - 560 038.
                                        ...PETITIONER

(BY SRI.ABHISHEK PATIL, ADVOCATE)


AND:

       H. LAKSHMAIAH REDDY,
       SINCE DEAD BY HIS PROPOSE LRs:

1.     SMT. JAYALAKSHMAMMA,
       AGED ABOUT 65 YEARS,
       W/O LATE H. LAKSHMAIAH REDDY,
       R/AT NO.1/1, THIMMA REDDY ROAD,
       APPAREDDYPALYA, INDIRANAGAR POST,
       BENGLAURU - 560 038.

2.     SMT. L. MANJULA,
       AGED ABOUT 43 YEARS,
                          2




     D/O LATE H. LAKSHMAIAH REDDY,
     W/O P. GOPAL REDDY,
     PRESENTLY R/AT NO.90/2,
     15TH CROSS, APPAREDDYPALYA,
     INDIRANAGAR POST,
     BENGLAURU - 560 038.

3.   SMT. L. CHANDRAKANTHI,
     AGED ABOUT 41 YEARS,
     D/O LATE H. LAKSHMAIAH REDDY,
     W/O. N. SURESH BABU,
     R/AT KUDLU VILLAGE,
     SARJAPURA HOBLI, ANEKAL TALUK.

4.   L. PURUSHOTHAM REDDY,
     AGED ABOUT 39 YEARS,
     S/O LATE. H. LAKSHMAIAH REDDY,
     R/AT NO.1/1, THIMMA REDDY ROAD,
     APPAREDDYPALYA, INDIRANAGAR POST,
     BENGLAURU - 560 038.

5.   L. RAGHURAM REDDY,
     S/O LATE. H. LAKSHMAIAH REDDY,
     R/AT NO.1/1, THIMMA REDDY ROAD,
     APPAREDDYPALYA, INDIRANAGAR POST,
     BENGLAURU - 560 038.
                                    ... RESPONDENTS

(BY SRI. K.M. JAGANNATH, ADVOCATE FOR R-2 TO R-5;
    R1 IS SERVED)

     THIS WRIT PETITION IS FILED UNDER ARTICLE 227
OF THE CONSTITUTION OF INDIA PRAYING TO QUASH
THE ORDER DATED 31.05.2018, ON I.A.NO.2, PASED BY
THE COURT OF I ADDL. SENIOR CIVIL JUDGE, BENGALURU
RURAL DISTRICT, BENGALURU IN F.D.P.NO.57/2015, AT
                                  3




ANNEXURE-J        AND   CONSEQUENTLY      DISMISS    I.A.NO.2
FILED BY THE RESPONDENT NO.2 UNDER ORDER XXII
RULE 3(1) OF CPCP ON THE FILE OF THE I ADDL. SENIOR
CIVIL        JUDGE,   BENGALURU       RURAL     DISTRICT   IN
F.D.P.NO.57/2015.


        THIS WRIT PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B; GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
                           ORDER

The petitioner being aggrieved by the order

dated 31.05.2018 on I.A.No.2 passed in

F.D.P.No.57/2015 by the 1st Additional Senior Civil

Judge, Bengaluru Rural District, Bengaluru, has filed

this writ petition.

2. Brief facts leading rise to filing of this

petition are as under:

That the mother of the petitioner Smt.Guramma

had purchased the suit property under a registered

sale deed dated 14.11.1959. After her demise,

petitioner's name was effected and entered vide

M.R.No.4/1989-90 with due consent of his father -

H.Lakshmaiah Reddy and he became the owner and in

possession of the same. The father of the petitioner,

in collusion with the revenue officials, got the revenue

records mutated for the joint names of himself and

the petitioner vide M.R.No.40/2002-03 without the

knowledge of the petitioner. The petitioner being

aggrieved by the revenue records, filed a suit in

O.S.No.1083/2005 before the Trial Court seeking for

the relief of declaration of ownership and permanent

injunction. The Trial Court vide judgment and decree

dated 06.01.2009 dismissed the suit of the petitioner.

The petitioner being aggrieved by the judgment and

decree passed by the Trial Court, preferred an appeal

in R.A.No.46/2009 before the Principal District Judge,

Bengaluru Rural District. The Appellate Court vide

judgment and decree dated 29.08.2009, allowed the

appeal and decreed the suit of the petitioner and

moulded the relief of declaration into a partition suit

and declared that the petitioner is a owner of half

share in the plaint schedule property and father of the

petitioner - H.Lakshmaiah Reddy was declared as a

owner of half share in the plaint schedule property.

The petitioner being aggrieved by the order passed in

R.A.No.46/2009, preferred Second appeal in

R.S.A.No.1500/2009 before this Court. This Court

vide judgment and decree dated 08.09.2010, allowed

the second appeal and set aside the judgment and

decree passed in R.A.No.46/2009. The respondents

filed a review petition in R.P.No.398/2010 before this

Court. This Court vide order dated 25.11.2010

dismissed the review petition. The respondents being

aggrieved by the judgment and decree passed in

R.S.A.No.1500/2009 have preferred an SLP in Civil

Appeal Nos.3725-3726/2015 before the Hon'bel Apex

Court. The Hon'ble Apex Court vide judgment dated

17.04.2015, allowed the appeal and set aside the

judgment and decree passed by this Court and

restored the judgment and decree passed by the

Lower Appellate Court.

2.2. The father of the petitioner H.Lakshmaiah

Reddy and Respondents No.2 to 5 herein filed a Final

Decree Proceedings in FDP.No.57/2015. During

pendency of the FDP proceedings the respondent

H.Lakshmiaiah Reddy i.e., the father of the petitioner

died and the respondents No.2 to 5 filed an

application seeking permission to bring the mother of

respondents No.2 to 5 Smt.Jayalakshmamma the

second wife of deceased H.Lakshmaiah Reddy as legal

representative on record. The said application was

opposed by the petitioner by filing a detailed

objection. The Trial Court after hearing the parties,

allowed the application and permitted the

Smt.Jayalakshmamma wife of the deceased

H.Lakshmaiah Reddy to come on record as legal

representative of deceased H.Lakshmaiah Reddy as

Petitioner No.1(a) therein. Hence, the petitioner being

aggrieved by the order passed on I.A.No.2 has filed

this writ No.

3. Heard the learned counsel for the

petitioner.

4. Learned counsel for the petitioner submits

that the application filed by respondents No.2 to 5 is

not maintainable. He submits that the proposed legal

representative is not a wife of the deceased

H.Lakshmaiah Reddy therein. He further states that

she is not a legal representative of deceased

H.Lakshmaiah Reddy. He further submits that the

succession was opened after the death of mother of

the petitioner i.e., Guramma. He further submits

that as per Section 15(2)(a) of the Hindu Succession

Act, the petitioner is the only successor to the

property, but not deceased H.Lakshmaiah Reddy. He

further places reliance on the judgments of the

Hon'ble Apex Court in the case of SEETHALAKSHMI

AMMAL -vs- MUTHUVENKATARAMA IYENGAR

AND ANOTHER reported in [1998 (5) SCC 368] and

DAYA SINGH (DEAD) THROUGH L.Rs. AND

ANOTHER -vs- DHAN KAUR reported in [1974 1

SC Page No.700]. He further submits that the Trial

Court has committed an error in passing the

impugned order. He further submits that the

petitioner alone is entitled for the properties left by

the deceased mother of the petitioner Guramma.

Hence, he submits that the respondents are not

entitled for any share in the suit schedule property.

He further submits that the Trial Court has committed

an error in passing the impugned order. Hence, on

these grounds, he prays to allow the writ petition.

5. Per contra, learned counsel for the

respondents submits that the provision of Section

15(1) applies to the present case, as the suit of the

petitioner came to be decreed and the First Appellate

Court has moulded the relief and declared that the

petitioner is entitle for half share in the plaint suit

property and father of the petitioner is also entitle for

half share in the plaint suit property. It is submitted

that the father of the petitioner and other respondents

have filed Final Decree Proceedings. During pendency

of FDP proceedings the father of the petitioner

H.Lakshmaiah Reddy died leaving behind his wife

Smt.Jyalakshmamma, the proposed legal

representative. He further submits that the proposed

legal representative is entitled for a share in the suit

schedule property as per Section 8 of the Hindu

Succession Act. He also submits that the mother of

the petitioner Guramma has not inherited the property

from her father or from her father-in-law or from her

husband. He further submits that the mother of the

petitioner has purchased the property. He submits

that the provision of Section 15(2) does not apply to

the present case in hand and he submits that Section

15(1)(a) applies. The Lower Appellate Court applying

Section 15(1)(a) has moulded the relief and awarded

a share to the father of the petitioner - deceased

H.Lakshmaiah Reddy. He further submits that the

Trial Court was justified in passing the impugned

order. He submits that there is no error committed

by the Trial Court in passing the impugned order.

Hence, on these grounds, he prays to dismiss the writ

petition.

6. Perused the records and considered the

submissions made by the learned counsel for the

parties.

7. In order to consider the contentions of the

learned counsel for the parties, it is necessary to

consider some of the provisions of the Hindu

Succession Act, which are extracted below:

"Section 3(1)(f) "heir"--means any person, male or female, who is entitled to succeed to the property of an intestate under this Act;

Section 3(1)(g) "intestate"--a person is deemed to die intestate in respect of property of which he or she has not made a testamentary disposition capable of taking effect;

Section 8 - General rules of succession in the case of males.--The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter--

(a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;

(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule;

(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and

(d) lastly, if there is no agnate, then upon the cognates of the deceased.

Section 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.

(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.

Section 15 - General rules of succession in the case of female Hindus.--

(1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,--

(a) firstly, upon the sons and daughters (including the children of any pre- deceased son or daughter) and the husband;

     (b) secondly,    upon   the   heirs   of   the
     husband;

(c) thirdly, upon the mother and father;

(d) fourthly, upon the heirs of the father; and

(e) lastly, upon the heirs of the mother.

(2) Notwithstanding anything contained in sub- section (1),--

(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father; and

(b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband.

Section 16. Order of succession and manner of distribution among heirs of a female Hindu.--The order of succession among the heirs referred to in section 15 shall be, and the

distribution of the intestates property among those heirs shall take place according to the following rules, namely:-- Rule 1.--Among the heirs specified in sub-section (1) of section 15, those in one entry shall be preferred to those in any succeeding entry and those included in the same entry shall take simultaneously. Rule 2.-- If any son or daughter of the intestate had pre- deceased the intestate leaving his or her own children alive at the time of the intestate's death, the children of such son or daughter shall take between them the share which such son or daughter would have taken if living at the intestate's death. Rule 3.--The devolution of the property of the intestate on the heirs referred to in clauses (b), (d) and (e) of sub- section (1) and in sub-section (2) to section 15 shall be in the same order and according to the same rules as would have applied if the property had been the father's or the mother's or the husband's as the case may be, and such person had died intestate in respect thereof immediately after the intestate's death."

8. As per the above provisions, the definition

of "heir" means any person, male or female, who is

entitled to succeed to the property of an intestate.

Sofar as Section 8 is concerned the same deals with

General Rules of succession in case male Hindu for

dying intestate which shall devolve upon the legal

heirs specified in the schedule. Section 14 deals with

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. Section 15 deals with the

property of a female Hindu, when the property of

female Hindu dying intestate, shall devolve according

to the rules set out in Section 16. Section 16 deals

with the order of succession and manner of

distribution among heirs of a female Hindu.

9. Now coming to the facts of the case,

admittedly the suit property was purchased by

Guramma on 14.11.1959. The petitioner is the son

and H.Lakshmaiah Reddy is the husband of deceased

Guramma. The said Guramma died leaving behind

the petitioner and her husband H.Lakshmaiah Reddy.

After the demise of Guramma, H.Lakshmaiah Reddy

married one Smt.Jayalakshmamma i.e., the proposed

legal representative of deceased H.Lakshmaiah Reddy.

The deceased H.Lakshmaiah Reddy made an

application to the revenue authority to mutate the

joint names of himself and the petitioner in the suit

schedule property. The revenue authorities after

following the procedure, passed the order effecting

mutation in the joint names of himself and the

petitioner. The petitioner filed a suit in

O.S.No.1083/2005 for the relief of declaration of

ownership and permanent injunction. The Trial Court

dismissed the suit filed by the petitioner. The

petitioner being aggrieved by the judgment and

decree passed by the Trial Court filed an appeal in

R.A.No.46/2009. The First Appellate Court moulded

the relief and granted relief of partition and separate

possession and held that the petitioner and his father

i.e., deceased H.Lakshmaiah Reddy are entitled for

half share each in the suit property and they shall

workout their rights in the Final Decree Proceedings.

The petitioner being aggrieved by the judgment and

decree passed in R.A.No.46/2009 preferred second

appeal in R.S.A.No.1500/2009 before this Court. This

Court allowed the appeal and set aside the judgment

and decree passed by the First Appellate Court and

consequently decreed the suit of the petitioner as

prayed for. The respondents filed a review petition in

R.P.No.398/2010. The said review petition came to

be dismissed by this Court. The respondents

aggrieved by the same preferred Civil Appeal before

the Hon'ble Apex Court, the Hon'ble Apex Court

allowed the appeal filed by the respondents and set

aside the judgment and decree passed in the second

appeal and consequently restored the judgment and

decree passed by the First Appellate Court. After the

disposal of Civil Appeal, the respondents filed a Final

Decree Proceedings in FDP No.57/2015 for drawing up

of the final decree. During pendency of the FDP

proceedings H.Lakshmaiah Reddy died on 01.09.2017

and respondents No.2 to 5 filed an application

I.A.No.2 to bring Smt.Jayalakshmamma wife of

deceased H.Lakshmaiah Reddy on record as legal

representative of deceased Lakshmaiah Reddy. The

said application was opposed by the petitioner. The

Trial Court after hearing the parties, allowed the

application.

10. It is not in dispute that the suit property

was purchased by deceased Guramma under the

registered sale deed dated 14.11.1959 and it is also

not in dispute that the said property has inherited by

Guramma. As per Section 14(1) of the Hindu

Succession Act, 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. In the

present case, Guramma was the absolute owner of the

suit schedule property under the registered sale deed

dated 14.11.1959. After her demise i.e., as per

Section 15(1) of the Hindu Succession Act, the

property of a female Hindu dying intestate shall

devolve firstly, upon the sons and daughters and the

husband.

11. Admittedly, in the present case, the

petitioner is the son and deceased H.Lakshmaiah

Reddy is the husband of deceased Guramma. The

property left by deceased Guramma shall devolve

upon the petitioner and her husband deceased

H.Lakshmaiah Reddy. The Lower Appellate Court,

considering Section 15(1)(a) has moulded the relief

and converted the suit for declaration into partition

and separate possession and granted a share and held

that the petitioner and deceased H.Lakshmaiah Reddy

are entitled for half share each in the plaint schedule

property and they shall workout their rights, in the

light of the FDP proceedings. In the instant case,

Section 15(2) does not apply as Section 15(2) applies

to (a) any property inherited by a female Hindu from

her father or mother shall devolve, in the absence of

any son or daughter of the deceased; (b) any property

inherited by a female Hindu from her husband or from

her father-in-law shall devolve, in the absence of any

son or daughter of the deceased.

12. In the present case, deceased Guramma

has not inherited any property either from her father

or mother or from her husband or from her father-in-

law. Further, the petitioner being the son and

deceased H.Lakshmaiah Reddy being the husband, the

said property devolves upon the petitioner and

deceased H.Lakshmaiah Reddy as per Rule (a) of Sub-

Section 1 of Section 15. Hence, Sub-Section 2 of

Section 15 will not apply to the present case in hand.

13. Whether the respondent No.1 -

Smt.Jayalakshmamma is the legal representative of

deceased H.Lakshmaiah Reddy is to be considered.

As per the definition of Section 3(1)(f) "heir" means

any person, male or female, who is entitled to succeed

to the property of an intestate under this Act.

Admittedly,       in      the     present      case,     deceased

H.Lakshmaiah                Reddy              married            to

Smt.Jayalakshmamma,                   the     proposed          legal

representative, after the death of Guramma.                      The

proposed      legal      representative       falls    within    the

definition of "heir". Further, as per Sub-Section 11 of

Section 2 of the Code of Civil Procedure "Legal

Representative" means a person who in law

represents the estate of a deceased person, and

includes any person who intermeddles with the estate

of the deceased and where a party sues or is

prosecuted in a representative manner by the person

to whom the estate is transferred upon the death of

the party so suing or sued.

14. In the present case, the father of the

petitioner i.e., deceased H.Lakshmaiah Reddy was

allotted half share in the suit property. He died

intestate leaving behind proposed legal heir i.e.,

Smt.Jayalakshmamma. The estate of deceased

devolves on the legal heir on the death of the party.

The legal heir/s are entitled for estate of the deceased

H.Lakshmaiah Reddy. The proposed respondent falls

within the definition of "Legal Heir" and as per the

first schedule, the widow is a Class-I

heir. The proposed legal heir is the wife of deceased

H.Lakshmaiah Reddy. She being the Class-I heir is

entitled for the estate of the deceased H.Lakshmaiah

Reddy as per Section 8 and right to sue survives to

the proposed legal heir in law. As observed above,

she represents the estate of her deceased husband.

The Trial Court after considering the material on

record, was justified in passing impugned order.

15. It is also contended by the learned counsel

for the respondents that the petitioner filed a suit in

O.S.No.659/2007 challenging the registered Gift

Deed. The said suit came to be dismissed on

07.02.2019 and petitioner preferred an appeal in

R.F.A.No.842/2019. This Court dismissed the appeal

filed by the petitioner vide judgment and decree dated

07.11.2019. As rightly contended by the learned

counsel for the respondents, Sub-Section 2 of Section

15 is not applicable to the case in hand.

16. Learned counsel for the petitioner has

placed reliance on the judgment of the Hon'ble Apex

Court in the case of SEETHALAKSHMI AMMAL -vs-

MUTHUVENKATARAMA IYENGAR AND ANOTHER

reported in [1998 (5) SCC 368]. The said

judgment is not applicable to the present case in

hand, as the issue involved in the said decision is

under the category of Clause (b) of Sub-Section 1 of

Section 15. Thereafter, the suit for declaration was

filed and First Appellate Court has moulded the relief

and granted half share in the suit property to

deceased H.Lakshmaiah Reddy. The proposed

respondent is claiming the estate of deceased

Lakshmaiah Reddy and succession was open after the

death of H.Lakshmaiah Reddy.

17. Learned counsel for the petitioner has

also placed reliance on the judgment of Hon'ble Apex

Court in the case of DAYA SINGH (DEAD)

THROUGH L.Rs. AND ANOTHER -vs- DHAN KAUR

reported in [1974 1 SC Page No.700], wherein the

Hon'ble Apex Court has held that on the death of

limited owner, succession opens and would be decided

on the basis of last male owner died on that day.

18. In the present case, as observed above,

the property was purchased by Guramma and she

died leaving behind the petitioner and her husband

H.Lakshmaiah Reddy. She was the full owner of the

suit property as on the date of her death. The said

property devolves upon the petitioner and

H.Lakshmaiah Reddy. After the demise of

H.Lakshmaiah Reddy, proposed legal representatives

succeeds to the estate of deceased H.Lakshmaiah

Reddy. The Trial Court was justified in recording that

the legal representatives has succeeded to the estate

of the deceased H.Lakshmaiah Reddy. Hence, I do

not find any grounds to interfere with the impugned

order in exercise of the supervisory power under

Article 227 of the Constitution of India. Accordingly,

the writ petition is dismissed.

SD/-

JUDGE

GRD