Karnataka High Court

Mrs Swarnalatha Gupta vs Mr Vijay Prakash @ Putta Prakash on 5 July, 2022

Bench: S.R.Krishna Kumar

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 5TH DAY OF JULY, 2022

                         BEFORE


     THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR


       REGULAR FIRST APPEAL NO. 1642 OF 2019
BETWEEN:

1.    MRS SWARNALATHA GUPTA
      W/O.MR.VSV GUPTA,
      AGED ABOUT 65 YEARS
      RESIDING AT TILAK STORES,
      ASHOKA ROAD, SIDLAGATTA AND ALSO AT,
      NO.741, 1ST FLOOR, 1ST MAIN BSK 2ND STAGE,
      BENGALURU-560070

2.    MR V S V GUPTA
      S/O.LATE V.SURYA NARAYANA SETTY,
      AGED ABOUT 74 YEARS,
      RESIDING AT TILAK STORES,
      ASHOKA ROAD,
      SIDLAGATTA AND ALSO AT
      NO.741, 1ST FLOOR, 1ST MAIN, BSK 2ND STAGE,
      BENGALURU-560070.
                                            ..APPELLANTS
(BY SRI. RAJAGOPALA NAIDU, ADVOCATE)

AND:

1.    MR VIJAY PRAKASH @ PUTTA PRAKASH
      @PRAKASH PUTTA,
      AGED ABOUT 51 YEARS,
      S/O.LATE PUTTA VENKATESHAIAH,
      RESIDING AT FLAT No.B, Door No.14/9,
      SRI.RAGHAVENDRA APARTMENTS,
      1ST FLOOR, 5TH CROSS, WILSON GARDEN,
      BENGALURU.-560 027
                                  2




2.    MRS LAKSHMI SRINIVAS
      W/O.M.V.SRINIVASA MURTHY,
      AGED ABOUT 50 YEARS,
      R/A: No.2652, 5TH MAIN, KUMARASWAMY LAYOUT,
      2ND STAGE, BENGALURU-560 078
      AND ALSO R/A: `SHANTHI DHAMA'
      3RD MAIN, 6TH CROSS,
      ANJANI WEST EXTENSION,
      CHINTAMANI -563 125.

                                              ..RESPONDENTS
(BY SRI.R.ABHINAV, ADVOCATE FOR R-1,
    SRI.G.R.MOHAN, ADVOCATE FOR R-2)

     THIS RFA IS FILED UNDER ORDER 41 RULE 1 R/W
SECTION 96 OF CPC AGAINST THE ORDER DATED 15.04.2019
PASSED IN P&SC NO.152/2014 ON THE FILE OF THE I
ADDL.CITY CIVIL AND SESSIONS JUDGE, BENGALURU
ALLOWING THE PETITION FILED UNDER SECTION 372 OF THE
INDIAN SUCCESSION ACT.


      THIS RFA COMING ON FOR ORDERS THIS DAY, THE
COURT DELIVERED THE FOLLOWING:


                          JUDGMENT

This appeal is directed against the impugned order

dated 15.04.2019 passed in P & SC No.152/2014, whereby

the said petition filed by respondent No.2 against

respondent No.1 was allowed by the trial court, thereby

directing issuance of succession certificate in relation to

the movables of deceased Aravinda Putta @ Aravinda

Kumar jointly and equally in the ratio 50:50 in favour of

both respondents.

2. Heard Sri.Rajagopala Naidu, learned counsel for

the appellants, Sri.R.Abhinav, learned counsel for

respondent No.1 and Sri.G.R.Mohan, learned counsel for

respondent No.2.

3. The material on record discloses that

respondents 1 and 2 are the brother and sister

respectively of deceased Arvinda Putta @ Aravinda Kumar,

who expired in a road traffic accident that occurred on

23.06.2012, in which his wife Smt.Reena Putta and their

children Nisha Putta and Nitish Putta also expired. The

aforesaid petition was filed by respondent No.2 (petitioner

before the trial court), the sister of Arvinda Putta against

respondent No.1 (respondent before the trial court),

brother of Arvinda Putta, inter alia contending that the

subject properties were owned and possessed by late

Aravinda Putta @ Aravinda Kumar at the time of his death,

upon which, the respondent Nos. 1 and 2 being his brother

and sister succeeded to the same as his class-II heirs and

were entitled to issuance of succession certificate jointly in

their favour. The respondent No.2 examined herself as

PW-1 and Exs.P1 to P18 were marked. The respondent

No.1 did not adduce any oral evidence; however,

documentary evidence at Exs.R1 to R6 were marked on his

behalf.

4. After hearing the parties, the trial court came to

the conclusion that the subject properties were owned and

possessed by late Aravinda Putta @ Aravinda Kumar at the

time of his death and upon his demise, the respondents

herein who were his siblings / class-II heirs under Section

8 of the Hindu Succession Act, 1956 (for short 'the said Act

of 1956') were entitled to half share (50% share) in the

subject properties and accordingly, proceeded to pass the

impugned order issuing succession certificate in favour of

respondents 1 and 2 to the extent of their half share /

50% share each in the subject properties.

5. The present appeal has been filed by the

appellants, who contend that they are none other than the

parents of Smt.Reena Putta, wife of the deceased Aravinda

Putta @ Aravinda Kumar, who also expired in the very

same road accident that occurred on 23.06.2012.

6. In addition to reiterating the various contentions

urged in the appeal and referring to the material on

record, learned counsel for the appellants submit that

Aravinda Putta @ Aravinda Kumar was older than his wife

Smt.Reena Putta and in view of the presumption available

in Section 21 of the said Act of 1956, which envisages that

in the case of simultaneous deaths, the older person is

presumed to have died earlier, it has to be presumed that

Aravinda Putta @ Aravinda Kumar predeceased his wife

Smt.Reena Putta, albeit in the same accident and upon his

demise, the subject properties devolved upon Smt.Reena

Putta and upon her demise subsequently, the subject

properties devolved upon her parents, the appellants

herein who became entitled to the subject properties

absolutely and to the exclusion of the respondents herein.

It is therefore contended that the impugned order and

judgment and decree passed by the trial court deserves to

be set aside.

6.1 The appellants further contend that during the

proceedings before the trial court, they have filed an

application under Order 1 Rule 10(2) CPC seeking

impleadment in the instant P & SC No.152/2014, which

was rejected by the trial court and consequently, the

appellants have no other option but to approach this Court

by way of the present appeal.

7. Per contra, learned counsel for the respondents

jointly submit that neither the time of death of Aravinda

Putta @ Aravinda Kumar and Smt.Reena Putta nor Section

21 of the said Act of 1956 are relevant or material for the

purpose of deciding the issue in controversy between the

parties. In this context, it is submitted that even assuming

that Smt.Reena Putta is presumed to have died

subsequent to Aravinda Putta @ Aravinda Kumar, upon her

demise, the subject properties which were acquired by her

from her husband would devolve upon his heirs as

provided under Section 15(1)(b) and 15(2)(b) of the said

Act of 1956 and not upon the appellants, who are the

parents of deceased Smt.Reena Putta. It is therefore

submitted that the appellants do not have any manner of

right, title, interest or possession over the subject

properties and the appeal is liable to be dismissed.

8. I have given my anxious consideration to the rival

contentions and perused the material on record.

9. The only question that arises for consideration in

the present appeal is, as to whether the appellants being

the parents of the deceased Smt.Reena Putta have any

right over the subject properties involved in P & SC

152/2014, upon the demise of Aravinda Putta @ Aravinda

Kumar and their daughter Smt.Reena Putta and their

minor children?

10. The material on record discloses that it is an

undisputed fact that in the fatal road accident that

occurred on 23.06.2012, Aravinda Putta @ Aravinda

Kumar, his wife Smt.Reena Putta and their minor children

Nisha Putta and Nitish Putta expired simultaneously.

Section 21 of the said Act of 1956 provides for a

presumption that in the case of simultaneous deaths,

unless the contrary is proved, the younger person(s) is

presumed to have died subsequent to the death of the

older person in the accident. The appellants place

reliance upon this provision in order to contend that since

Smt.Reena Putta is presumed to have died subsequent to

the death of Aravinda Putta @ Aravinda Kumar, the

subject properties devolved upon her and on her demise,

her parents viz., the appellants herein succeeded to the

subject properties. However, the said contention is

opposed by the respondents, who contend that Smt.Reena

Putta died earlier to Aravinda Putta @ Aravinda Kumar.

11. In my considered opinion, neither the

presumption under Section 21 of the said Act of 1956 nor

the issue / question as regards the time of death of

Aravinda Putta @ Aravinda Kumar and Smt.Reena Putta

are relevant or germane to decide the issue in controversy

involved in the present appeal with regard to entitlement

of the subject properties. In this context, it is relevant to

extract Section 15 of the said Act of 1956, which reads as

under:-

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.

12. A plain reading of Section 15(1)(b) r/w Section

15(2)(b) is sufficient to indicate that even assuming that

Smt.Reena Putta died subsequent to Aravinda Putta @

Aravinda Kumar, since she acquired / inherited the subject

properties from her husband and not from her parents viz.,

the appellants herein, the subject properties would devolve

upon the heirs of her husband i.e., the heirs of Aravinda

Putta @ Aravinda Kumar and not upon the heirs of

Smt.Reena Putta. Under these circumstances, I am of the

considered opinion that in the light of the undisputed fact

that the subject properties originally belonged to Aravinda

Putta @ Aravinda Kumar and in view of Section 15(1)(b)