Smt Puttagowramma Since Dead By ... vs Sri K Thimmaiah
2022 Latest Caselaw 8631 Kant

                          1


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 13TH DAY OF JUNE, 2022

                       BEFORE

        THE HON'BLE MR. JUSTICE M.I.ARUN

            RSA NO.3105 OF 2006 (PAR)
BETWEEN:

1.    SMT PUTTAGOWRAMMA
      SINCE DEAD BY LRS

A.    SRI.NANJUNDAIAH SINCE
      DECEASED BY HIS LRS

a)    SRI. N. SOMASHEKAR
      AGED ABOUT 44 YEARS

b)    SMT. N. LALITHA
      AGED ABOUT 42 YEARS

c)    SRI. N. JAYASHANKARA
      AGED ABOUT 40 YEARS

d)    SMT. N. GEETHA
      AGED ABOUT 38 YEARS

(e)   SMT MEENAKUMARI
      AGED ABOUT 36 YEARS

      1A (a) TO (e) ARE THE SONS
      AND DAUGHTERS OF
      LATE N. NANJUNDAIAH

B.    SRI. SRINIVASAIAH
      SINCE DEAD BY
                            2


a)     WIFE SMT SHARADAMMA

b)     SMT CHANDRAKALA
       AGED ABOUT 35 YEARS

c)     SMT TRIVENI
       AGED ABOUT 33 YEARS

d)     SMT ROOPA
       AGED ABOUT 31 YEARS

e)     SRI NAGARAJU
       AGED ABOUT 28 YEARS

f)     SRI GANGADHARA
       AGED ABOUT 26 YEARS

       (a) IS THE WIFE AND (b) TO
       (f) ARE THE CHILDREN OF LATE
       SRINIVASAIAH

C.     SMT PUTTANANJAMMA
       MAJOR D/O LATE PUTTAGOWRAMMA

       SINCE DECEASED APPELLANTS NO.1(A)(a) TO (e)
       AND 2A(a) TO (f) AND D ARE THE LRS.

D.     SRI NANJUNDASWAMY MAJOR
       S/O LATE PUTTAGOWRAMMA

       ALL ARE R/O NO 697, N S ROAD
       DEVARAJ MOHALLA MYSORE - 570 001

                                       ... APPELLANTS
(BY SRI.Y. K. NARAYANA SHARMA, ADV.)

AND:

1.     SRI K THIMMAIAH
       MAJOR S/O LATE KALEGOWDA
                         3


     SINCE DECEASED BY LRS.

a)   SRI. P. T. RAMACHANDRA
     S/O LATE K. THIMMAIAH
     MAJOR,

b)   SRI. P. T. SRINIVASA
     S/O LATE K. THIMMAIAH
     MAJOR

     RESPONDENT NOS.1(a) AND (b)
     ARE R/AT PARASAYYANAHUNDI
     NACHANAHALLI POST
     MYSORE TALUK
     MYSORE DISTRICT - 570 008

c)   SMT. P. T. GAYATHRI
     D/O LATE K. THIMMAIAH
     W/O SRI. H. R. NARAYANA
     MAJOR, R/AT HOMMARAGALLI
     HAMPAPURA HOBLI
     H.D.KOTE TALUK
     MYSORE DISTRICT - 571 125

d)   SMT.P.T. ALAMELU
     D/O LATE K. THIMMAIAH
     W/O SRI. SRINIVAS, MAJOR
     R/AT ANDANI CIRCLE
     VIDYARANYAPURAM
     MYSORE - 570 008

e)   SMT. P. T. KAMAKSHI
     D/O LATE K. THIMMAIAH
     W/O SRI. SIDDEGOWDA
     MAJOR, R/AT M.SHETTYHALLI
     ANJANEYA SWAMI TEMPLE ROAD
     SRIRANGAPATNA TALUK
     MANDYA DISTRICT - 573 201

2.   SMT. ALAMELAMMA, MAJOR
                         4


     W/O LATE H K RAMACHANDRAIAH
     SINCE DECEASED BY LRS.

a)   SRI. H. R. KENGE GOWDA
     S/O LATE H.K.RAMACHANDRAIAH &
     LATE ALAMELAMMA
     AGED ABOUT 73 YEARS

b)   SRI.H. R. NARAYAN
     S/O LATE H. K. RAMACHANDRAIAH &
     LATE ALAMELAMMA
     AGED ABOUT 70 YEARS

c)   SRI. H. R. SRINIVAS
     S/O LATE H. K. RAMACHANDRAIAH &
     LATE ALAMELAMMA
     AGED ABOUT 59 YEARS

d)   SRI. H. R. GOVINDARAJ
     S/O LATE H. K. RAMACHANDRAIAH &
     LATE ALAMELAMMA
     AGED ABOUT 55 YEARS

     RESPONDENT NO.2(a) TO (d) ARE
     R/AT HOMMARAGALLI, HAMPAPURA POST
     H.D.KOTE TALUK, MYSORE DISTRICT - 571 125

e)   SMT. H.R.SAVITHRAMMA
     D/O LATE H. K. RAMACHANDRAIAH &
     LATE ALAMELAMMA
     W/O SRI. S. PUTTASWAMY
     AGED ABOUT 65 YEARS
     R/AT NAGARANA HALLI
     SRIRANGAPATNA TALUK
     MANDYA DISTRICT - 573 201

f)   SMT. H. R. MAHALAKSHMI
     D/O LATE H. K. RAMACHANDRAIAH &
     LATE ALAMELAMMA
     W/O SRI. S. PUTTASWAMY
                            5


     AGED ABOUT 63 YEARS
     D.NO.655 E & F BLOCK
     KUVEMPU NAGAR
     MYSORE - 570 023

g)   SMT. H. R. INDIRAMMA
     D/O LATE H. K. RAMACHANDRAIAH &
     LATE ALAMELAMMA
     AGED ABOUT 57 YEARS
     R/AT HOMMARAGALLI
     HAMPAPURA POST
     H.D.KOTE TALUK
     MYSORE DISTRICT - 571 125

3.   SMT. PUTTANANJAMMA
     MAJOR, W/O LATE SUBBANNA
     R/AT HOMMARAGALLI
     HAMPAPURA POST
     H.D.KOTE TALUK
     MYSORE DISTRICT - 571 125
                                       ... RESPONDENTS

(BY SRI. PRADEEP NAIK K., ADV. FOR R1(B);
    SRI. A. LOURDU MARIYAPPA, ADV. &
    SRI. S. N. DEVARAJU, ADV. FOR R2(D);
    R1(A), R1(C) TO R1(E), R2(A) TO R2 (C),
    R2(E) TO R2 (G) AND R3 - SERVED AND
    UNREPRESENTED)

     THIS RSA IS FILED UNDER SECTION 100 READ
WITH ORDER XLI R 1 OF CPC., AGAINST THE JUDGMENT
AND DECREE DATED 3.8.2006 PASSED IN R.A.NO.5/1995
ON THE FILE OF THE III ADDL.DISTRICT JUDGE, MYSORE,
DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 21.11.1994 PASSED IN
OS.NO.229/1987 OF THE FILE OF THE PRL. CIVIL JUDGE,
MYSORE.
                                       6


     THIS RSA COMING ON FOR HEARING THIS DAY, THE
COURT THROUGH VIDEO CONFERENCE DELIVERED THE
FOLLOWING:
                           JUDGMENT

Aggrieved by the judgment and decree dated

21.11.1994 passed by the Principal Civil Judge, Mysuru in

O.S.No.229/1987 and the judgment and decree dated

03.08.2006 passed by III Additional District Judge at

Mysuru in R.A.No.5/1995, the plaintiffs in the original suit

have preferred this second appeal.

2. For the sake of convenience, the parties are referred

to as per their status before the trial court.

3. The plaintiffs are children of one Puttagowramma

who was the sister of one Kalegowda and the defendants

are the legal heirs of the said Kalegowda. The properties

in question belong to one Ugregowda who was the father

of late Puttagowramma and late Kalegowda and two other

children. The plaintiffs have filed the instant suit on the

ground that upon the demise of Ugregowda,

Puttagowramma, Kalegowda and their two other sisters

constituted a joint family and the properties of Ugregowda

were joint family properties and that Puttagowramma

being one of the four siblings, the plaintiffs being her

children, are entitled to 1/4th share in the properties of

Ugregowda and the same has been unfairly denied to

them.

4. The defendants, upon service of summons, have

appeared before the trial court and contested the suit and

though they admit the relationship have denied any right

in favour of the plaintiffs.

5. The trial court based on the pleadings framed the

following issues for consideration:

"(1) Whether plaintiff prove that they are entitled to partition and possession - of 1/4th share in the suit schedule properties?

(2) Whether the enquiry regarding mesne profits should be entitled?

(3) Whether defendants prove that plaintiffs have already got their shares in family partition?

(4) What reliefs, if any, are parties entitled?"

6. The plaintiffs, in order to prove their case, have

examined one witness and got marked the documents as

Exs.P1 to P19 and the defendants have examined one

witness and they have not got marked any documents.

7. Based on the pleadings and the evidence let in, the

trial court has answered the aforementioned issues in the

following manner:

            "No.1:        No
            No.2:         Does       not      survive   for
                          consideration
            No.3:         Amended issue is answered as
                          does not arise for consideration
            No.4:         As per the order below"

8. Upon answering the issues, the trial court has

dismissed the suit filed by the plaintiffs.

9. Aggrieved by the judgment and decree passed by

the trial court in O.S.No.229/1987, the plaintiffs therein

preferred R.A.No.5/1995 on the file of the III Additional

District Judge, Mysuru.

10. The First Appellate Court framed the following points

for consideration:

"1) Whether joint family and joint family properties existed or were existing on the date of suit?

2) Whether relief of partition barred by time if joint family properties (some) exists?

3) Whether suit is bad for non-joinder of necessary parties?

4) What order or decree?"

It has answered the aforementioned issues for

consideration in the following manner:

            Point No.1:          In negative
            Point No.2 & 3:      In affirmative
            Point No.4 :         As per final order, for the
                                 following

      Accordingly,    the   regular     appeal    also    has     been

dismissed by confirming the judgment and decree of the

trial court in O.S.No.229/1987. Aggrieved by the same,

the instant second appeal has been filed.

11. At the time of admission of the appeal, the following

substantial questions of law have been framed by this

Court for consideration:

"1. Whether the Courts below have erroneously come to the conclusion that Smt. Puttagowramma did not have a share in the properties left behind by her father and in that regard, whether the Courts below properly appreciated the legal position including the amendment made to Section 6 of the Hindu Succession Act?

2. Whether the Lower Appellate Court was justified in coming to the conclusion that even otherwise the suit was barred by limitation and not maintainable for not impleading the necessary parties when the same was neither pleaded nor was an issue for consideration before the Trial Court?

3. Whether in such a circumstance even if the Lower Appellate Court was of the view that the aspect relating to limitation and non- joinder was to be considered, whether it had erred in not remanding the matter after framing the issues?"

12. Heard the learned counsel for the appellants and the

learned counsel appearing for respondent nos.1(b) and

2(d).

13. The findings on the aforementioned substantial

questions of law are as follows:

Substantial question of law no.1: In negative

Substantial question of law no.2: In affirmative

Substantial question of law no.3: In negative

Substantial question of law No.1

14. Both the trial court and the First Appellate Court

have come to the conclusion that the propositor

Ugregowda died in the year 1939. Thereafter, Kalegowda

died in the year 1942 and the mother of the plaintiffs

Puttagowramma died in the year 1976. The said facts are

not in dispute. The plaintiffs are claiming right over the

properties on the ground that their mother

Puttagowramma inherited the same upon death of

Ugregowda in the year 1939 and that she was denied

partition though there was always a joint family and she

had a right over the joint family properties. In the year

1939, the law which governed rights of women in old

Mysuru region was the Karnataka Hindu Law Women's

Rights Act, 1933 (for short 'the Act').

15. Section 4 of the Act reads as follows:

"4. Order of Succession: (1) The succession to a Hindu male dying intestate shall, in first place, vest in the members of the family of the propositus below, and in the following order:

(i) the male issue to third generation;

      (ii)    the widow;
      (iii)   daughters;
      (iv)    daughter's sons;
      (v)     the mother;
      (vi)    the father;
      (vii)   widows of predeceased sons;
      (viii) son's daughters;
      (ix)    daughter's daughter
      (x)     brothers of the whole blood;
      (xi)    brothers of the half blood;
      (xii)   sons;   sons'   daughters,    sons'   daughters'

sons, sons' daughter' daughters, daughters' sons' sons, daughter's sons; daughters, daughters' daughters' sons and daughters' daughters' daughters' daughters.

(xiii) widows of predeceased grandsons and great grandsons.

(2) On failure of the family of the propositus, the succession shall pass to the family of the father of the propositus mentioned below, and in the following order;

(i) brothers' male issue to the second generation;

(ii)    sisters;
(iii)   half sisters;
(iv)    sister's sons;
(v)     half sister's sons;
(vi)    the father's mother;
(vii)   the father's fathers;
(viii) step - mothers;
(ix)    brother's widow;
(x)     brother's daughters;
(xi)    sister's daughters;

(xii) father's brothers of the whole blood;

(xiii) father's brothers of half blood;

(xiv) brother's son's daughters' brother's daughter's sons; brothers' daughters' daughters. Sisters' sons' son, sisters' sons' daughters, sisters' daughters' sons, and sisters' daughters' daughters;

(xv) widows of brothers' male issue to the second generation.

(3) On failure of family of the father the propositus, the succession shall pass to the family of the paternal grandfather, and next thereafter to the family of the paternal great grandfather, the members of each family ranking among themselves in the same relative family order as the members

corresponding to them in the family of the father.

(4) On failure of families of paternal ancestors to the third degree as above, the succession shall pass to the maternal ancestors to the third degree and their respective families, one after the other, and under the same Rules mutates mutandis as to relative order within each such family as are applicable to the families of the paternal ancestors. (5) The members (where there are more than one) of each of the groups indicated above by Roman numerals and of the groups corresponding to them under sub-section (3) and (4) shall among themselves, take simultaneously and in equal shares (per capita), provided that the male issue of the propositus shall take according to stock (per stripes).

(6) Every reference to the son of a female relative in this section shall be read as excluding a son adopted after the death of such female relative."

Accordingly, upon a hindu male dying intestate, if

there was a male issue he would inherit the property to the

exclusion of the daughters and in the instant case,

Kalegowda has inherited the property of Ugregowda to the

exclusion of Puttagowramma. Furthermore, Kalegowda

has died in the year 1942 and thereafter his legal heirs

have inherited the property. Furthermore, there has been

alienation of a portion of the properties which is not in

dispute. Further, there has been a partition amongst the

legal heirs of Kalegowda in the year 1972 which is also not

in dispute. The trial court and the First Appellate Court, on

appreciation of the evidence on record, have come to the

conclusion that Puttagowramma was neither part of the

joint family nor she ever demanded rights over the

properties immediately after the death of her father within

the limitation period. The courts below have also come to

the conclusion that though the plaintiffs pleaded that

Puttagowramma was being given paddy and agricultural

produce as her share from the joint family properties, they

have failed to establish the same. In the absence of there

being a joint family and the law which governed the rights

of Puttagowramma on the demise of Ugregowda under the

Karnataka Hindu Law Women's Rights Act, 1933, question

of applicability of Section 6 of the Hindu Succession Act

does not arise and the courts below have properly

appreciated the legal position and the laws applicable to

the instant case. For the said reason, the first substantial

question of law as mentioned above is answered in the

negative by holding that there is no error committed by

the courts below in appreciating the legal position.

Substantial question of law No.2

16. The plaintiffs also have raised a contention that the

succession is not limited to Section 4 of the Act but is also

governed by Section 8 of the Act which reads as under:

"8. Certain females entitled to shares to 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 of predeceased undivided sons and brothers who have left no male issue shall be entitled to share with them.

(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 them.

(c) Sub-section (a) and (b) shall also apply mutates mutandis to a partition among other co- parcenary in a joint family.

(d) Where joint family property passes to a single coparcener 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 we were alive would receive as his share:

(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, all of them jointly and the term "son" includes a step-son as also a grandson and great grandson, and the provisions of this section relating to the mother shall be applicable mutates mutandis to the paternal grandmother and great grand mother.

(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 share as allotted to the male and assigning there from the proper fractional shares to the female relatives.

(5) Each of the female relatives referred in sub- section (1) shall be entitled to have her 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 is entitled to a share in any property is one capacity of relationship shall not be entitled to claim a further or additional share in same property in any other capacity."

The plaintiffs have contended that Puttagowramma

had a right over the properties of Ugregowda as per

Sections 8(1)(d) and 8(2)(c) of the Act. Firstly, no

evidence is let in to show that Puttagowramma was

married when Ugregowda died. It is the categorical finding

of both the courts below that there was no joint family

which included Puttagowramma and that no evidence is let

in to show that she was being given paddy and other

agricultural produce from the joint family properties and

also no evidence is let in to show that she ever demanded

partition of the joint family properties immediately after

the demise of Ugregowda in the year 1939. For the said

reasons, the First Appellate Court framed the second point

for consideration about limitation and has answered that

the suit is barred by limitation. Admittedly,

Puttagowramma had other siblings and their legal heirs

have not been made parties. Hence, the First Appellate

court came to the conclusion that necessary parties have

not been impleaded. Upon the trial court and the First

Appellate Court coming to the conclusion that there was no

joint family involving Puttagowramma and she was

excluded from the same upon the demise of Ugregowda,

the cause of action arises in the year 1939 and the suit is

of the year 1987 and as per law of limitation as it existed

then and in the present, the suit is barred by limitation and

the courts below are justified in coming to the conclusion

that the suit is barred by limitation and it is also bad for

non-joinder of necessary parties and accordingly,

substantial question of law no.2 is answered in the

affirmative.

Substantial question of law no.3

17. After reappreciation of the pleadings and the

evidence let in, the First Appellate Court came to the

conclusion that the plaintiffs, in law and on facts are not

entitled to any reliefs. As claimed by them, there was no

necessity for remanding the matter back to the trial court

in respect of limitation and non-joinder of necessary

parties. It would have been a mere waste of time as given

the facts and circumstances of the case, there is no

evidence required to be let in under the law of limitation

and accordingly, substantial question of law no.3 is

answered in the negative.

18. For the aforementioned reasons, there is no error

committed by the trial court or the First Appellate Court

and the appeal being devoid of merits is hereby dismissed.

Sd/-

JUDGE hkh.