Siddagangamma vs Lakkamma
2022 Latest Caselaw 12628 Kant

                             1


   IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 28TH DAY OF OCTOBER, 2022

                         BEFORE

            THE HON'BLE MRS. JUSTICE M G UMA

    REGULAR SECOND APPEAL NO. 1296 OF 2011 (PAR)

BETWEEN:

SIDDAGANGAMMA
AGED ABOUT 49 YEARS
W/O LATE BHEEMAIAH
R/O AJJAGONDANAHALLI
KORA HOBLI, TUMKUR
TALUK AND DISTRICT.
DEAD BY LRS.
SMT SHOBHA
D/O HANUMANTHARAYAPPA
AGED ABOUT 36 YEARS
RESIDENT OF VENKATESHPURA
SIRA GATE, TUMKUR.
                                               ... APPELLANT

(BY MR: G.S. BALAGANGADHAR, &
    MR: T.B. PRABHUSHEKARA, ADVOCATES)

AND:

1. LAKKAMMA
   AGED ABOUT 61 YEARS
   D/O. LATE SIDDALINGAPPA
   R/O CHIKKATHIMMANAHALLI
   DODDERI HOBLI
   MADHUGIRI TALUK
   TUMKUR DISTRICT.

2. SOWBHAGYAMMA
   AGED ABOUT 41 YEARS
   W/O. LATE BHEEMAIAH
   D/O. SAHADEVAPPA

3. GOWRAMMA
   W/O. SAHADEVAPPA
                                 2


AGED ABOUT 56 YEARS
RESPONDENTS 2 AND 3 ARE THE
R/O AJJAGONDANAHALLI
KORA HOBLI, TUMKUR
TALUK AND DISTRICT.
                                           ... RESPONDENTS

(BY MR: B.K. MANJUNATH, ADVOCATE FOR R1
    MR: PRAVEEN KUMAR RAIKOTE, ADEVOCATE FOR R3
    V/O DATED. 3/9/2022 R-2 DECEASED.)

      THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 17.03.2011 PASSED IN
R.A.NO.419/2009 ON THE FILE OF THE PRESIDING OFFICER, FAST
TRACK COURT-III, TUMKUR, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 04.11.2008
PASSED IN O.S.NO.124/2000 ON THE FILE OF THE II-ADDL. CIVIL
JUDGE, (JR. DN.) AND JMFC, TUMKUR.


     THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 05.09.2022 COMING ON FOR PRONOUNCEMENT OF
ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                        JUDGMENT

The appellant - defendant No.1 has preferred this

appeal being aggrieved by the judgment and decree dated

04.01.2008 passed in OS No.124 of 2000 on the file of the

learned II Additional Civil Judge (Jr.Dn.) and JMFC, at

Tumakuru (hereinafter referred to as 'the Trial Court' for

brevity), decreeing the suit of the plaintiff for partition and

separate possession and allotting her 1/3rd share in the suit

schedule properties by metes and bounds, which was

confirmed by the judgment dated 17.03.2011 passed in RA

No.419 of 2009 (old No.41 of 2008) on the file of the learned

Fast Track No.III at Tumakuru (hereinafter referred to as 'the

First Appellate Court' for brevity).

2. For the sake of convenience, parties are referred

to as per their status and rank before the Trial Court.

3. Brief facts of the case are that, the plaintiff filed

OS No.124 of 2000 against defendant Nos.1 to 3 for

declaration that the plaintiff is having 4/9th share in the suit

schedule properties and for separate possession of the same.

The schedule appended to the plaint consists of (i) land

bearing Sy.No.29/1 of Ajjagondanahalli of Bellavi Hobli,

Tumakuru Taluk measuring 3.37 acres, (ii) the land bearing

Sy.No.147/3 of Kora Amanikere, Kora Hobli, Tumakuru Taluk

measuring 28 guntas, (iii) land bearing Sy.No.75/3 of

Ajjagondanahalli, Bellavi Hobli, Tumakuru Taluk measuring

1.23 acres and (iv) the house property bearing K.No.70/70

situated at Ajjagondanahalli Village, Bellavi Hobli, Tumakuru

Taluk measuring East to West 24 feet, North to South 32 feet

with mud roof.

4. It is the contention of the plaintiff that she is the

unmarried daughter of one Siddalingappa and Siddamma.

The said Siddalingappa and Siddamma have begotten one son

by name Bheemaiah and another daughter by name

Gowramma, who is defendant No.3. Bheemaiah had two

wives by name Siddagangamma who is defendant No.1 and

Sowbhagyamma - defendant No.2. Bheemaiah pre-deceased

his two wives who were not having any issues. It is

contended that the plaintiff and defendants are the co-

parceners in the Hindu undivided family and were in joint

possession and enjoyment of the suit properties. The plaintiff

being unmarried daughter of the propositor Siddalingappa is

having equal right as that of deceased brother Bheemaiah.

Defendants were not ready and willing to effect partition and

to give legitimate share to the plaintiff. Hence, she filed the

suit for partition and separate possession.

5. On service of notice, defendant No.1 appeared

before the Court and resisted the suit by filing written

statement denying all the contention taken in the plaint. It is

contended that defendant No.1 is the legally wedded wife of

deceased Bheemaiah, who is the son of Siddalingappa. The

second defendant is posing herself as second wife of

Bheemaiah without there being any right. She was never

married to Bheemaiah and she is not his wife. It is contended

that Bheemaiah has raised loan of Rs.1,00,000/- for the

purpose of leveling and improving the suit schedule properties

and also to keep up the family. It is this defendant who

cleared the loan with interest. The plaintiff and other

defendants are not having any manner of right, title or

interest over the property and therefore, prayed for dismissal

of the suit.

6. Defendant No.2 filed the written statement

admitting that the plaintiff is unmarried daughter of

Siddalingappa. It is contended that before the death of

husband of defendant No.2, plaintiff got item No.3 in the

plaint schedule and relinquished her right over the same.

Since then she is residing separately. Since the plaintiff

relinquished her right, title or interest over the suit properties

and since the defendants have improved the suit properties

by spending huge sum of money, the plaintiff is not entitled

for any relief. Accordingly, she prays for dismissal of the suit.

7. Defendant No.3 has also appeared before the

Court and filed the written statement admitting the contention

taken by the plaintiff regarding relationship between the

parties. But, however, denied the contention of the plaintiff

that she is one of the co-parceners and that she is in

possession and enjoyment of the suit properties. It is

admitted that the plaintiff is unmarried daughter of

Siddalingappa and contended that defendant Nos.1 and 2 are

the wives of deceased Bheemaiah. It is also contended that

during the life time of Bheemaiah, item No.3 of the schedule

was given to the plaintiff towards her maintenance.

Bheemaiah used to cultivate the land and used to give the

proceeds to the plaintiff. After the death of Bheemaiah,

defendant Nos.1 and 2 were willing to get the properties in

their names which was opposed by the plaintiff and defendant

No.3. Thus, it is contended that since item No.3 is already

given to the plaintiff towards her maintenance, she is not

having any right, title or interest over item Nos.1 and 2 of the

suit properties. Accordingly, she prays for dismissal of the

suit.

8. Defendant No.1 filed additional written statement

specifically denying that the plaintiff remained unmarried and

for that, she is entitled to the share of the suit properties.

Therefore, prays for dismissal of the suit.

9. On the basis of these pleadings, the Trial Court

framed the following issues and additional issue as under:

"1. Whether the plaintiff proves that herself and defendants are co-parceners and the suit schedule properties are ancestral and joint family properties of the plaintiff and defendants?

2. Whether plaintiff is entitled for the relief sought for?

3. Whether first defendant proves that the second defendant is not the legally wedded wife of Bheemaiah and the daughter of defendant No.3?

4. What order or decree?"

Additional issue:

1. Whether second defendant proves that the plaintiff has got released from the joint family by taking item No.3 towards her share?"

10. The plaintiff examined herself as PW1 and got

examined one witness as PW2 and got marked Exs.P1 to P10

in support of her contention. Defendant No.1 examined

herself as DW1 and got marked Exs.D1 to D6 in support of

her defence. The Trial Court after taking into consideration all

these materials on record answered issue Nos.1 and 2 in

Affirmative and issue No.3 and additional issue No.1 in

Negative and decreed the suit of the plaintiff granting 1/3rd

share over the suit properties to the plaintiff.

11. Being aggrieved by the same, defendant No.1

preferred RA No.419 of 2009 before the First Appellate Court

which came to be dismissed. Thus, the appellant - defendant

No.1 is before this Court.

12. Heard Sri G S Balagangadhar and Sri T B

Prabhushankar, learned counsel for the appellant and Sri B K

Manjunath, learned counsel for respondent No.1, Sri Praveen

Kumar Raikote, learned counsel for respondent No.3. Perused

the materials including the Trial Court records.

13. During the pendancy of the appeal, the appellant

Siddagangamma died and one Smt Shobha, filed the

application IA.2 of 2016 under Order 22 Rules 3, 10 and 11

read with Section 151 of CPC to implead her as legal

representative of the deceased appellant. The said application

was allowed by this Court vide order dated 18.03.2019

holding that applicant is entitled to be impleaded to prosecute

the appeal, but no further rights would accrue in her favour. It

is also held that the rights of the parties are kept open as

they were.

14. Learned counsel for the impleaded appellant

submitted that when IA.No.2 of 2016 was filed under Order

22 Rules 3, 10 and 11 read with Section 151 of CPC to

implead her as legal representative of the deceased sole

appellant, an enquiry was ordered to be held regarding her

contention and accordingly, an enquiry was held by the

learned Registrar (Judicial) of this Court. Oral evidence was

recorded and a report is also filed before the Court. The

deceased appellant had executed the Will in favour of the

present appellant assigning right, title, interest over the suit

properties in her favour and therefore, she is entitled to

prosecute the appeal. It is stated that the original appellant

No.1 died on 25.10.2016 leaving the present appellant as her

only legal representative.

15. Learned counsel for the appellant further

submitted that the plaintiff has not pleaded nor proved the

date of death of the propositor i.e., Siddalingappa. The

evidence on record discloses that he died much prior to the

advent of Hindu Succession Act, 1956. Therefore, the plaintiff

is not entitled for any share. Defendant No.1 who was the

original appellant was the wife of Bheemaiah, who is the son

of Siddalingappa. Therefore, she would succeed to the interest

of Bheemaiah which was assigned in favour of the present

appellant and therefore, the suit of the plaintiff is to be

dismissed.

16. Learned counsel also submitted that even if it is to

be held that the plaintiff is entitled for any share, the same

would not be more than 1/6th share in the properties that are

left by Siddalingappa and not in properties which had fallen to

the share of Bheemaiah.

17. Learned counsel placed reliance on the decision of

Mrs.Mary Joyce Poonacha Vs M/s K T Plantations

Private Limited1, to contend that an enquiry as

contemplated under Order XXII Rule 5 is summary in nature,

only to enable the person to represent the estate of the

deceased. Placing reliance on this decision, learned counsel

contended that since summary enquiry was held in this case

through Registrar (Judicial) as per order of this Court, the

appellant is representing the estate of the deceased defendant

No.1 who in turn succeeded to the interest of her husband

Bheemaiah - the son of propositor Siddalingappa. Therefore,

the plaintiff is not entitled for any claim and the interest of

defendant No.1 is devolved on the present appellant and

accordingly, he prays for allowing the appeal as prayed for.

18. Per contra, learned counsel for respondent No.1

opposing the appeal contended that it is a simple suit for

partition and separate possession. The Trial Court decreed

the suit of the plaintiff. Regular Appeal filed by defendant

No.1 came to be dismissed. The relationship between the

parties are not in dispute. It is also not in dispute that

propositor Siddalingappa was the owner of suit properties and

he left behind him the plaintiff, defendant No.3 and

ILR 1996 KAR 833

Bheemaiah as his children. Therefore, the Trial Court was

right in allotting 1/3rd share in favour of the plaintiff. There

are no reasons to interfere with the impugned judgment and

decree passed by the Trial Court and confirmed by the First

Appellate Court.

19. Learned counsel further submitted that the

present appellant has no manner of right, title or interest over

the suit properties and she has not succeeded to the interest

of deceased defendant No.1, as a legatee under the Will. The

order dated 18.03.2019 passed by this Court discloses that

she was impleaded only for a limited purpose for representing

the estate of the appellant in the appeal. The order makes it

very clear that except representing the original appellant, she

has not acquired any further right. It is also made clear that

the execution of Will in question was never considered by this

Court while allowing IA.2 of 2016. The rights of the parties

were kept open and therefore, the present appellant is not

entitled for any relief.

20. Learned counsel places reliance on the decision of

Jaladi Suguna (deceased) through LRs. Vs Satya Sai

Central Trust and Others2, to contend that filing of the

application and bringing legal representatives on record is

only to represent the estate of the deceased. Determination

of the question as to who could be the legal representatives of

the deceased under Order XXII Rules 4 and 5 will be for a

limited purpose to represent the estate of the deceased for

adjudication of the case. But it will not confer any right over

the property in favour of the such legal representatives.

Therefore, learned counsel submits that since the present

appellant was brought on record for a limited purpose, she

has to prove her claim over the suit properties and execution

of Will in her favour by instituting a separate suit and cannot

seek any relief in the present suit. Hence, he prays for

dismissal of the appeal in limine.

21. Learned counsel for defendant No.3 submits that

he would adopt the arguments addressed by the plaintiff-

respondent No.1 and prays for dismissal of the appeal.

22. The appeal was admitted vide order dated

23.04.2019 and the following substantial questions of law

were formulated:

(2008) 8 SCC 521

"1. Whether the plaintiff is entitled for 1/3rd share or 1/6th share as per Section 6 of the Hindu Succession (Amendment) Act, 2005 and in view of the decisions of the Hon'ble Apex Court?

2. Whether the judgment and decree passed by the Courts below are legal, just and proper?"

23. The substantial questions of law were formulated

vide order dated 23.04.2019. No substantial question of law

was raised with regard to the right of the appellant as legatee

under the Will said to have been executed by the original

appellant Siddagangamma. It is pertinent to note that by

order dated 18.03.2019, on the application filed by the

present appellant under Order XXII Rules 3, 10 and 11 read

with Section 151 of CPC, to bring her on record as the legal

representative of the deceased appellant, this Court

specifically held that the appellant has no additional rights to

the prejudice of the respondents. It is also held that the

rights and obligation of the appellant neither swelled nor get

distorted. The rights of the parties were kept open and it is

held that the genuineness of the Will said to have been

executed by the original appellant is not the subject matter of

the order. With these observations, the application came to

be allowed and the appellant was impleaded to represent the

estate of the deceased appellant. This order is never

challenged by the appellant. Therefore, now the appellant

cannot contend that since she is impleaded as the legal

representative of deceased Siddagangamma by allowing her

application, the Will put forth by her is proved in accordance

with law.

24. The Hon'ble Apex Court in Jaladi Suguna

(supra), considered a similar situation and held in para 15 as

under:

"15. Filing an application to bring the legal representatives on record, does not amount to bringing the legal representatives on record. When an LR application is filed, the court should consider it and decide whether the persons named therein as the legal representatives, should be brought on record to represent the estate of the deceased. Until such decision by the court, the persons claiming to be the legal representatives have no right to represent the estate of the deceased, nor prosecute or defend the case. If there is a dispute as to who is the legal

representative, a decision should be rendered on such dispute. Only when the question of legal representative is determined by the court and such legal representative is brought on record, can it be said that the estate of the deceased is represented. The determination as to who is the legal representative under Order 22 Rule 5 will of course be for the limited purpose of representation of the estate of the deceased, for adjudication of that case. Such determination for such limited purpose will not confer on the person held to be the legal representative, any right to the property which is the subject-matter of the suit, vis-à-vis other rival claimants to the estate of the deceased."

25. On facts, in para 20 of the said judgment the

Hon'ble Apex Court made it clear that the determination as to

representation of the estate of the deceased will be only for

the purposes of the appeal pending before the High Court and

will not in any way affect the rights of the claimants to the

estate of the deceased or the adjudication of any dispute

among them in any independent proceedings. Therefore, it is

clear that the present appellant impleaded vide order dated

18.03.2019 is so impleaded only to represent the estate of

the deceased appellant Siddagangamma, but such

impleadment will not give her right to succeed to the estate of

the deceased.

26. Learned counsel for the appellant placed reliance

on the decision of this Court in Mrs Mary Joyce Poonacha

(supra). But the finding of the said case will not help the

appellant in any manner as it is held in para 13(A) and 14 as

under:

"13(A). It is well settled that the enquiry contemplated under Order 22 Rule 5 is only summary in nature and an order under the Rule does not finally determine the rights of parties. An order under Order 22 Rule 5 will only enable a person to represent the estate in the Suit and to make the adjudication therein binding on the estate. The mere appointment of a person as a legal representative for the purpose of further prosecution of the Suit will not conclusively establish his right to the property. It is also clear that an order appointing a person as the legal representative for the Suit will not have the effect of deciding that he is the heir of the deceased party or that his title to the property is declared.

14. The controversy between the parties about the legality and validity of the Wills claimed by defendants 2 and 3 are to be determined in separate proceedings in that behalf and the mere recognition of the second defendant as the legal representative of the deceased first defendant cannot confer any right to enforce the Will nor is the third defendant precluded from contending in an appropriate proceedings that there was no such Will or that it was vitiated by any other circumstances. It is also clear that the recognition of the second defendant as the legal representative will not preclude the third defendant from proving the Will and enforcing the same in a separate proceedings if he is otherwise entitled to. The second defendant is recorded as the legal representative only for the purpose of this Suit to represent the Estate and nothing more. It is needless to state and to once again repeat that the recognition of the second defendant as the legal representative of the first defendant is only for the purpose of the Suit to represent the Estate and that, by that alone, no other legal right is conferred on her which will have to be determined in other proceedings if there is any dispute in regard to that between the parties. Accordingly, I feel that the second

defendant has to be recorded as the legal representative of the first defendant and I do so".

27. Therefore, I hold that the appellant herein is

impleaded only to represent the estate in this appeal, but not

to succeed to the estate of the deceased as legatee under the

Will.

28. The materials placed before the Court disclose

that testator Siddalingappa had three children. One of the

son Bheemaiah died issueless, leaving behind his wives i.e.,

defendant Nos.1 and 2. The present appellant claims to be

the legatee under the Will said to have been executed by

Siddagangamma, the first wife of Bheemaiah. Apart from

Bheemaiah, Siddalingappa had two daughters i.e., the plaintiff

Lakkamma and defendant No.3 Gowramma.

29. In view of the decision of the Hon'ble Apex Court

in Vineeta Sharma Vs Rakesh Sharma and Others3, the

provisions contained in substituted Section 6 of the Hindu

Succession Act, 1956, confers status of co-parceners on the

daughter born before or after amendment in the same

AIR 2020 SC 3717

manner as son, with same rights and liabilities. Such right in

co-parcenery is by birth and it is not necessary that the father

should be living as on 09.09.2005. The Apex Court also made

it clear that the provisions of substituted Section 6 of the Act

is to be given full effect to. Notwithstanding that a

preliminary decree has been passed the daughters are to be

given share in coparcenery equal to that of a son in pending

proceedings for final decree or in an appeal. That being the

position of law, the plaintiff is entitled for equal share in the

suit property i.e., 1/3rd share and not 1/6th share.

30. The Trial Court as well as the First Appellate Court

on appreciation and re-appreciation of the materials on

record, recorded a consistent finding that the plaintiff is

entitled for 1/3rd share in the suit schedule property by metes

and bounds. I do not find any reason to hold that the findings

of the Trial Court and the First Appellate Court are either

perverse or against the materials placed on record or against

the settled proposition of law. Therefore, the impugned

judgment and decree passed by both the Courts is liable to be

confirmed. Accordingly, I answer the substantial questions of

law in favour of the plaintiff and against the defendants.

31. Hence, I proceed to pass the following:

ORDER

The appeal is dismissed with costs.

The judgment and decree dated 04.01.2008 passed in

OS No.124 of 2000 on the file of the learned II Additional Civil

Judge (Jr.Dn.) and JMFC, at Tumakuru, is hereby confirmed.

Registry to send back the Trial Court records along with

copy of the judgment.

Sd/-

JUDGE

*bgn/-