Karnataka High Court
Smt. Prabharatana @ Nirmala vs Basavantappa S/O. Malleshappa ... on 8 December, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
1 RFA No. 100099 of 2017
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 08TH DAY OF DECEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE H.P.SANDESH
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO. 100099 OF 2017
BETWEEN:
1. SMT. PRABHARATNA @ NIRMALA
W/O. BASAVARAJ GANAMUKHI,
AGE: 63 YEARS, OCC: HOUSEHOLD,
R/O: BYALI ONI, HUBBALLI,
DIST: DHARWAD.
YASHAVANT 2. SMT. SHANTAVEERAMMA @ GIRIJA
NARAYANKAR
W/O. CHANNAVEERAPPA MURASHILLIN,
AGE: 60 YEARS, OCC: HOUSEHOLD,
Digitally signed R/O: NAGAVARAPALYA, BENGALURU.
by YASHAVANT
NARAYANKAR
Date: 3. SHANKARAPPA S/O. PRABHAPPA HUDED,
2023.12.11
11:40:47 AGE: 58 YEARS, OCC: PVT. JOB,
+0530
R/O: BASAVA NAGAR, DHARWAD,
DIST: DHARWAD.
4. BASAVARAJ S/O. PRABHAPPA HUDED,
AGE: 55 YEARS,OCC: PVT. JOB,
R/O: BASAVESHWAR NAGAR, GADAG,
DIST: GADAG.
5. CHANDRASHEKAR S/O. PRABHAPPA HUDED,
AGE: 52 YEARS, OCC: PVT. JOB,
R/O: BENGALURU, NOW AT MUSCAT,
SULTANATE OF OMAN.
6. SMT. DRAKSHAYINI @ NEELAMMA
W/O. KOTRESH JINAKERI,
AGE: 49 YEARS, OCC: HOUSEHOLD,
R/O: UMASHANKAR NAGAR, RANEBENNUR,
DIST: HAVERI.
2 RFA No. 100099 of 2017
7. MAHESHWARAPPA S/O. PRABHAPPA HUDED,
AGE: 46 YEARS, OCC: PVT. JOB,
R/O: HALIAVU, RAGHAVENDRA LAYOUT, BENGALURU.
...APPELLANTS
(BY SRI. DINESH M. KULKARNI, ADVOCATE)
AND:
1. BASAVANTAPPA S/O. MALLESHAPPA MINAJAGI,
SINCE DECEASED BY HIS LRS
1.(A) SMT. NAGARATNA W/O. BASAVANTAPPA MINAJAGI,
AGE: 72 YEARS, OCC: HOUSEHOLD,
R/O: H.NO.249/3A/3B,
BASAVESHWARA NAGAR,
NEAR SIDDI VINAYAKA TEMPLE,
GADAG, DIST: GADAG.
1.(B) SMT. SHARADA W/O. SHANKARAPPA ITAGI,
AGE: 50 YEARS, OCC: HOUSEHOLD,
R/O: C/O. SMT. NAGARATANA W/O. BASAVAPPA MINAJAGI,
H.NO.249/3A/3B, BASAVESHWAR NAGAR,
NEAR SIDDI VINAYAKA TEMPLE,
GADAG, DIST: GADAG.
...RESPONDENTS
(BY SRI. C.S. SHETTAR, ADVOCATE FOR R1(A) AND R1(B))
THIS REGULAR FIRST APPEAL FILED UNDER ORDER 41 RULE 1 OF
CODE OF CIVIL PROCEDURE, PRAYING TO SET ASIDE THE JUDGMENT AND
DECREE PASSED BY THE ADDITIONAL SENIOR CIVIL JUDGE, GADAG, IN
O.S.NO.58/2015, DATED 15-12-2016, AND DECREE THE SUIT AS PRAYED
FOR, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND RESERVED
ON 16.11.2023 COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS
DAY, RAMACHANDRA D. HUDDAR, J., DELIVERED THE FOLLOWING:
3 RFA No. 100099 of 2017
JUDGMENT
The appellants being aggrieved by the dismissal of their suit in
O.S.No.58/2015 dated 15.12.2016 by the Additional Senior Civil
Judge, Gadag (for short "Trial Court") have preferred this appeal.
2. For the purpose of disposal of this appeal, the following
genealogy mentioned by the plaintiffs in the appeal memo, plaint and
written statement of the defendants is necessary to be taken note of
for appreciating their claims and contentions:
Karabasappa Rachappa
Malleshappa (Dead) Murigeppa (Dead) Shankrappa Siddamallappa
Malleshappa (Died - 1938)
= Paravva (Died-2004)
Irravva Basavantappa (D.1/R.1)
= Nagarathna [R1(a)]
Sharada
Prabharatna Shantaveeramma Shankarappa Basavaraj Chandrashekar Drakshayini Maheshappa
(Plt.1) (Plt.2) (Plt.3) (Plt.4) (Plt.5) (Plt.6) (Plt.7)
3. For the sake of convenience, the parties herein are
referred to as per their rank before the Trial Court.
4. As per the genealogy, Karabasappa and Rachappa were
the brothers. Both are no more. Karabasappa had two sons by name
Malleshappa and Murigeppa. Malleshappa died issueless. Murageppa
died leaving behind his wife-Paravva, who also died in the year 2004.
In the wedlock between Murigeppa and Paravva, they had two children
by name Iravva and Basavanthappa. Iravva is no more. Plaintiffs 1 to
7 are the sons of said Iravva. Basavanthappa the another son of
Murigeppa is the defendant. During the pendency of this appeal, he
died and his legal representatives are brought on record as
respondents 1(a) and 1(b) and accordingly, cause title of the appeal
memo came to be amended.
5. The plaintiffs filed the suit against defendants seeking the
relief of partition and separate possession in the suit schedule
properties by metes and bounds. It is stated by the plaintiffs that the
suit schedule properties are the agricultural lands situated in Survey
No631/4 measuring 6 acres 17 guntas and Survey No.630/D
measuring 4 acres 26 guntas situated at Gadag District. The suit
schedule house property is bearing CTS No.249/A/3A and CTS
No.249/3B situated at Basaveshwar Nagar, Gadag. The suit schedule
properties are the ancestral properties of plaintiffs and defendant. The
propositus Malleshappa was the owner of the suit schedule properties
and was in possession of the same. After his demise, his wife-Paravva
and daughter-Iravva and son-Basavanthappa inherited the said
properties. After death of Paravva, her children Iravva and the present
defendant succeeded to the said properties. After death of Iravva, it is
the plaintiffs, who succeeded to the said properties.
6. It is alleged by the plaintiffs that, the plaintiffs and
defendant are in joint possession and enjoyment of the suit schedule
properties. Till date no partition has taken place by metes and bounds.
It is alleged that, now relationship between the plaintiffs and
defendant is strained. Taking advantage of his name appearing in the
revenue records, the defendant during his lifetime was trying to
alienate the suit schedule properties to harass the plaintiffs and engulf
the share of the plaintiffs for himself. When the plaintiffs demanded to
effect partition and give their half share, there was a flat denial by the
defendant and hence, the plaintiffs were constrained to file the present
suit before the Trial Court seeking the aforesaid reliefs.
7. Pursuant to the suit summons, original defendant
appeared before the Trial Court and resisted the suit of the plaintiffs
by filing his detail written statement.
8. The entire averments made in the plaint have been denied
by the defendant. It is contended that the propositus-Malleshappa died
much prior to the Hindu Women's Right to Property Act, 1938 (for
short '1938 Act'). Neither the wife of propositus nor the mother of
plaintiffs-Iravva inherited or devolved any of the schedule properties in
any manner. It is contended that suit schedule properties are the
ancestral properties of Malleshappa. This fact is admitted. But it is
contended that plaintiffs have no cause of action to file the present
suit. There were two brothers by name Karabasappa and Rachappa in
the family of the defendants. Karabasappa had two sons by name
Malleshappa and Murigeppa. Rachappa had two sons by name
Siddamallappa and Shankarappa. After the demise of the aforesaid
two brothers Karabasappa and Rachappa, their children could not live
together and had made registered partition deed in the year 1922. The
said partition has taken place in between the sons of Karabasappa by
name Malleshappa and Murigeppa and sons of Rachappa by name
Siddamalappa and Shankarappa in their respective joint family
properties.
9. It is contended that the elder son of Rachappa by name
Shankarappa who was son of first wife of Rachappa took his separate
share about 25 years back. Karabasappa's sons i.e. Malleshappa and
Murigeppa and the second son of Rachappa by name Siddamallappa
were coparceners in the family. Murigeppa's son by name Mallappa
died in the year 1938 leaving behind his son by name Basavanthappa
i.e. defendant. When his father died, the defendant was just three
months old and was under the care and custody of his mother-
Paravva. It is further contended that, partition took place between
Malleshappa, Siddamallappa, Murigeppa and Basavanthappa in the
year 1947. In the said partition, the suit schedule properties were
allotted to the share of the defendant. To that effect, mutation entry
was certified by the revenue authorities in the year 1947 itself.
Therefore, the said Paravva or Iravva, when the said partition took
place, were not the coparceners. They cannot claim any share in the
suit schedule properties as there was no existence of coparcenary right
either to Paravva or to Iravva, the mother of the plaintiffs. Therefore,
they cannot claim any share in the suit schedule properties. The
mother of the plaintiffs has no right or interest in the suit schedule
properties. It is further contended that, as Malleshappa died prior to
1938, the mother of the plaintiffs, who was born in the year 1936
cannot claim any share under the Shastrik Hindu law. They cannot be
termed as coparceners to claim share in the suit schedule properties.
Therefore, for all these reasons, it is prayed by the defendant to
dismiss the suit of the plaintiffs.
10. Based on the rival pleadings, the Trial Court framed in all
six issues. They read as under:
ISSUES
1. Whether the plaintiffs prove that suit schedule
properties are joint family properties of themselves
and defendants and are available of partition?
2. Whether the plaintiffs further prove that they are
entitled to get ½ share in the suit schedule
properties?
3. Whether the defendant proves that the prior partition
as pleaded in written statement?
4. Whether the defendants further prove that suit is
barred by limitation as pleaded in written statement?
5. Whether the plaintiffs are entitled to the relief as
sought for?
6. What order or decree?
11. To prove the case of the plaintiffs, the plaintiff No.3 by
name Shankarappa entered the witness box and examined as PW1 and
got marked documents as per Ex.P1 to Ex.P5 and closed the plaintiffs'
side evidence.
12. To rebut the evidence of the plaintiffs, the defendant
himself, during his lifetime entered the witness box and examined as
DW1 and got marked documents as per Ex.D1 to Ex.D7 and closed the
defendant's evidence.
13. Having heard the arguments and on perusal of the records,
the Trial Court answered issue No.2 and 5 in the negative and issue
No.3 and 4 in affirmative. Issue No.1 was unanswered. Ultimately
dismissed the suit of the plaintiffs. This is how the appellants-plaintiffs
are before this Court challenging the said judgment in this appeal.
14. Heard the arguments of Dinesh M Kulkarni, the learned
counsel for the appellants and also Sri.C.S.Shettar, the learned
counsel appearing for respondents 1(a) and 1(b) and perused the
records.
15. It is submitted by the counsel for the appellants in addition
to the facts of the case that, the judgment of the Trial Court is
contrary to law and facts of the case. The Trial Court has failed to take
notice of Ex.D1, which is relevant in the present case. It is further
submitted that there was no material before the Trial Court to show
that Malleshappa died in the year 1938 but reliance was placed by the
Trial Court on Ex.D6. There is no justification in applying Article 110 of
the Indian Limitation Act to dismiss the suit of the plaintiffs. It is
contended that the Trial Court has committed error in not awarding
share to the plaintiffs as claimed. The plaintiffs are legitimately entitled
for share as they are children of Iravva. Hence, he prays for allowing
the appeal and set aside the impugned judgment by decreeing the suit
of the plaintiffs. In support of his submissions, he has relied upon the
following judgments:
i) In Smt. Nanjamma v. Smt. Akkayamma and
others1.
ii) In Shivalingappa v. Smt. Gouramma2.
16. As against this submission, the learned counsel for
respondents Sri.C.S.Shettar with vehemence submits that, Malleshppa,
as per the case of the plaintiffs, is the propositus. But the genealogical
tree mentioned by the plaintiff is absolutely false. He made available
the genealogical tree at the time of arguments and submits that,
Karabasappa and Rachappa were the original propositus being the
ancestors of Malleshappa. This Malleshappa is the son of Murigeppa.
Malleshappa died in the year 1938 and Paravva died in the year 2004.
In the wedlock of Malleshappa and Paravva, the mother of the plaintiff
i.e. Iravva and the defendant-Basavanthappa were born. According to
2015 (1) Kar.L.R.(Civ) 673 (DB)
1998 (2) Kar.L.J. (Civ) 71 (DB)
the plaintiffs, Iravva died in the year 2012. Her date of birth was
15.06.1936. According to the counsel for defendant, this
Basavanthappa was born about three months prior to death of his
father-Malleshappa. In the year 1947, there was partition in between
all the ancestors of the defendant and in the said partition, the suit
schedule properties were allotted to the share of the defendant.
Therefore, as per the provisions of the Hindu Women's Right to
Property Act, neither Paravva nor Iravva had any preexisting right
over the suit schedule properties and they cannot claim any share in
the suit schedule properties as a matter of right. The suit schedule
properties are the properties, which were allotted to the share of the
defendant in the year 1947 as per the mutation entry. Iravva cannot
be considered as coparcener to the family of the defendant at any
point of time. Therefore, it is submitted that the Trial Court has rightly
dismissed the suit of the plaintiffs. In support of his submission, he
has relied on the following judgments.
i) In M.Sivadasan (Dead) through Lrs. And others
v. A. Soudamini (Dead) through LRs and
others3.
ii) In Balwantrao Shinde and others v. Chhabubai
Balawantrao Shinde and others4.
2023 SCC Online SC 1078
(2023) 1 SCC 212
iii) In Vineeta Sharma v. Rakesh Sharma and
others5.
17. We have given our anxious consideration to the arguments
advanced by both the sides and perused the materials on record. In
view of rival submissions of both the sides, the following points would
arise for our consideration:
i) Whether Trial Court has committed any illegality or
perversity in dismissing the suit of the plaintiffs?
ii) If so, whether the plaintiffs have made out any
grounds to decree their suit as prayed for?
iii) Whether the judgment and decree passed by the Trial
Court requires interference by this Court?
iv) What order?
18. So far as genealogical tree stated supra is not in dispute.
As far as oral evidence is concerned, plaintiff No.4 has deposed before
the Trial Court in line of contents of the plaint averments. According to
his evidence, all these plaintiffs are claiming half share of their mother
Iravva from defendant No.1. PW1 has deposed ignorance regarding his
mother's birth on 15.06.1936 and so also her marriage in the year
1956. Even he has deposed ignorance before the Court that there was
a partition in between the children of Karabasappa and Rachappa in
(2020) 9 SCC 1
the year 1922 by way of registered partition deed. According to him,
he came to know that, Malleshappa died in the year 1959-60. It was
informed by his mother about the death of Malleshappa i.e. father of
original defendant and Iravva. He has not seen any document to that
effect. Even he deposed ignorance before the Court that, during the
year 1947 Malleshappa, defendant and Siddamallappa effected a
partition of their common properties. He admits that, suit schedule
properties were allotted to the share of the defendant in the year 1947
in the partition. He further states that, during the lifetime of his
mother and grandmother, no suit was filed seeking partition by his
mother, but there was demand to effect partition.
19. On perusal of the evidence of this PW1 and the
suggestions so directed to him, it do establishe that, in the year 1947
there a was partition in between Basavanthappa, being minor,
represented by his mother as minor guardian-Paravva, who was alive
and other ancestors of Malleshappa. That means, schedule properties
were allotted to the share of Basavanthappa in the said partition of
1947, when Paravva was alive. Evidently, she died in the year 2004.
20. The plaintiffs have produced the documents in the shape of
Ex.P1 to Ex.P4, the RTC extract and property extracts. The contents or
particulars of these documents are not disputed by the defendants.
Ex.P5 is the power of attorney empowering PW1 to give his evidence.
21. The DW1-Basavanthappa Menajagi i.e. original defendant
has deposed before the Trial Court during his lifetime in line with the
contents of his written statement. He specifically contended that,
there was a partition in the year 1947 and at that time, he was minor
and he was represented by his mother-Paravva. Even he speaks with
regard to the partition effected in between Rachappa's children in the
year 1924 etc. In unequivocal terms, he admits that, whatever the
properties for which his father was entitled were allotted to his share
in the year 1947. At that time he was minor. Thus, when
Basavanthappa i.e. original defendant was allotted a share in the year
1947, his mother represented him. In the year 1947, as per the
provisions of the Hindu Women's Right to Property Act, the mother had
no right in the properties and had limited rights only.
22. Learned counsel for the plaintiffs submits that, in view of
the provisions of the Hindu Succession Act, now the said Iravva, the
mother of the plaintiffs, has got half share in the schedule properties
and therefore, the plaintiffs are entitled for the same, whereas the
counsel for the defendants submits that, it is not so. He submits that,
in view of the strict provisions of the Hindu Succession Act, now the
prevailing law does not permit the plaintiffs to claim any share in the
suit schedule properties.
23. The learned counsel for the plaintiffs relied upon some
judgments of our own High Court which are stated supra.
24. On scrupulous reading of the citations submitted by the
counsel for the plaintiffs, the facts of this case are quite different than
the facts of the said judgments. If the said judgment relied upon by
the learned counsel for the plaintiffs in the case of Shivalingappa v.
Smt.Gouramma, referred to supra, there is a question with regard to
the allotment of share to the plaintiff based upon the adoption. But it
is not so in this case. Basavanthappa was the direct son of Paravva. So
as per the provisions of 1937 Act, the question of allotting share to a
widow arose in the said case. So also in the second judgment, in the
case of Nanjamma v. Akkayamma, referred to supra, in view of the
judgment in Vineeta Sharma's, referred to supra, whatever the
principles laid down in the said judgment are merged in Vineeta
Sharma's case. So, therefore, as the facts of the case are different to
the facts of the said case, now it cannot be stated that the said
citations have full application to the facts of this case.
25. As against this submission, the counsel for the defendants
relied upon the aforesaid judgments wherein it is laid down in
Gulabrao Balawantrao Shide, referred to supra that, when
properties acquired in lieu of maintenance, there must be pleadings
and evidence. Here, in this case, the suit schedule properties were
ancestral lands and when Malleshappa died in the year 1938, he left
behind his wife-Paravva and son-Basavanthappa and even a daughter-
Iravva. As per the provisions of 1937 Act, during lifetime of
Malleshappa, either Paravva or Iravva had no right in the properties.
Even Iravva had no pre-existing right over the properties in question.
After demise of Malleshappa, Paravva being his wife had a pre-existing
right to claim maintenance under the provisions of Hindu Women's
Right to Property Act. So, even Paravva till 1956 had no absolute right
in the properties left behind Malleshappa as per the provisions of
Hindu Women's Right to Property Act. That means, she had a limited
right over the properties in question to enjoy the properties.
Therefore, the first judgment stated supra has no application to the
present facts of this case.
26. The judgment in M.Shivasadan's case, referred to supra,
rendered by the Hon'ble Supreme Court of India, specifically speaks
with regard to the property of a female Hindu to be her exclusive
property. Section 14 of the Hindu Succession Act has been applied in
this judgment, wherein in paragraph 3 of the said judgment it was
held that,
"the property originally belonged to Sami Vadiyar. On his death
in the year 1942, it devolved on his male successor son
Sukumaran". Rights of the property are being claimed presently
by the progenies or daughters of Sami Vadiyar, through their
mother Choyichi, who was the widow of Sami Vadiyar. The claim
of the plaintiff was that Choyichi died in the year 1962 had a
right, though a limited right under the Hindu Mitakshara Law as
well as by virtue of Hindu Women's Right to Property Act, 1937
which blossomed into full-fledged right under Section 14(1) of
the Hindu Succession Act, 1956. This argument of the counsel for
the plaintiff was rejected by the Trial Court."
27. In this case, Malleshappa died in the year 1938. Hindu
Succession Act came into force in the year 1956. Paravva had pre-
existing right to claim maintenance from her son. That means, she had
a limited right over the property in question. In view of Section 14(1)
of the Hindu Succession Act, whatever limited right she had in the
properties, by operation of Section 14(1) of the Hindu Succession Act,
blossoms into absolute right over the property. Section 14(1) of the
Hindu Succession Act read as under:
"14(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."
28. The land mark judgment on this provision of law is
enumerated in the case of V.Tulasamma and others v. Shesha
Reddi (dead) by LRs6. On reading of this judgment it shows that, by
operation of section 14(1) of Hindu Succession Act, in a case of
present nature, when a female Hindu by virtue of pre existing right of
maintenance, if she is possessing the property, then her limited
interest enlarges into absolute estate. For better appreciation, it is just
and proper to incorporate the principles laid down in the said
judgment, which reads as under:
Hindu Succession Act, 1956 - Sections 14(1) and (2) - Section
14(2) is in the nature of a proviso to Section 14(1), and must be
construed strictly without impinging on the amplitude of Section
14(1) - Section 14(1) applies to properties granted to a female
Hindu in virtue of a pre-existing right of maintenance - Section
14(2) applies when property is granted to a female Hindu for the
first time without any pre-existing right
(1977) 3 SCC 99
Interpretation of Statutes - Statute must be read as a whole - Bill
may be referred to for interpreting Act
Words and Phrases Possessed' and 'any property' meaning of -
'Restricted estate' not same as of limited interest
The appellant claimed maintenance out of the joint family properties in
the hands of the respondent who was her deceased husband's brother.
The husband had died in 1931. The claim was decreed and in execution of
the decree, a compromise was arrived at allotting certain properties to
the appellant for her maintenance and she was only given a limited
interest in those properties without any power of alienation. The appellant
continued to be in possession and after the Hindu Succession Act, 1956,
came into force she leased out the properties. The respondent filed a suit
for a declaration that the alienations were not binding on him and could
remain valid only till the lifetime of the appellant. The appellant claimed
that she had become a full owner under Section 14(1) of the Act, but the
trial Court decreed the suit on the ground that her interest was not
enlarged in view of Section 14(2). The first appellate Court reversed the
decree, but the High Court, in second appeal, restored the decree in the
respondent's favour.
Allowing the appeal the Supreme Court Held:
Per P. N. Bhagwati and R. S. Sarkaria, JJ.
(1) Section 14(1) is wide in its scope and ambit. It says that any
property possessed by a female Hindu, whether acquired before or after
the commencement of the Act, shall be held by her as full owner. The
words 'any property' are large enough to cover any kind of property, and
the Explanation says that property would include both movable and
immovable property acquired by a female Hindu by inheritance or devise,
or at a partition, or in lieu of maintenance, or by arrears of maintenance,
or by gift from any person, whether a relatives Before, at or after
marriage, or by her own skill or exertion, or by purchase or by
prescription, or in any other maneer whatsoever, and also any such
property held by her as stridhana immediately before the commencement
of the Act. The Words possessed of mean the state of owning or having
in one's hand or power. It need not be actual or physical possession or
personal occupation of the property but may be possession in law. It can
be even constructive possession in any form recognised by law provided
that she has not parted with her rights and is capable of obtaining
possession of the property.
(Para 68)
Gommalapura Taggina Matada Kotturaswami v. Setra Veeravva (1959)
Supp 1 SCR 178;S.S. Munna Lal v. S.S. rajkumar, (1962) Supp 3
SCR 418 and Mangal Singh v. Rattno, AIR 1967 SC 1786, referred
to.
(2) Section 14(2) provides that 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 term of the gift, or will or other instrument or
decree, order or award prescribe a restricted estate in such property. This
provision is in the nature of a proviso or exception to sub-section (1). It
excepts certain kinds of acquisition of property by a Hindu female from
the operation of sub-section (1) and being in the nature of an exception
to a provision which is calculated to achieve the social purpose of bringing
about a change in the social or economic position of woman in Hind
Society, it must be construed strictly so as to impinge as little as possible
on the broad sweep of the ameliorative provision contained in sub-section
(1).
(Pars 69)
(3) Moreover, it is an elementary rule of construction that no
provision of a statute should be construed in isolation but it should be
construed with reference to the context and in the light of other
provisions of the Statute so as far as possible, to make a consistent
enactment of the whole statute. Sub section (2) must, therefore, be read
in the context of sub-section (1) so as t leave as large a scope for
operation as possible to sub-section (1).
(Para69)
(4) Sub-section (2) cannot therefore be interpreted in a
manner which would rob sub-section (1) of its efficacy and deprive a
Hindu female of the protection sought to be given to her by sub-section
(1). The language of sub-section (2) is apparently wide to include
acquisition of property by a Hindu female under instrument etc. where
such instrument etc. prescribes for her a restricted estate and this would
apparently cover a case of property given to her under sub-section (1)
with limited interest for her in the property. But that would virtually
emasculate sub-section (1) and the Explanation (1) to it would be
rendered meaningless because, a large number of cases where property
is given to a Hindu female at a partition or in lieu of maintenance under
an instrument, order award would be excluded from the operation of the
beneficial provision in s section (1), since in most of such cases, where
property has been allotted to a Hindu female prior to the Act, there would
be a provision in consonance the customary Hindu law prescribing a
limited interest in the property allotted: and in property allotted
subsequent to the Act, it would be the easiest thing to provide that the
Hindu female shall only have a limited interest and the make a mockery
of sub-section (1). That could not have been the intention of the
legislature and therefore, sub-section (2) must be confined to cases
where property is acquired by a Hindu female for the first time as a grant,
without any pre-existing right under a gift, will, instrument, decree, order
or award, the terms of which prescribe a restricted estate in the property.
That this is the legislative intendment is also made clear by the
circumstances that the Hindu Succession Bill referred to acquisition of
property by a Hindu female under gift or will only and it was only
subsequently, in the Act, that other modes of acquisition were added.
Where, however, property is acquired by a Hindu female at a partition or
in lieu of maintenance, it is in virtue of acquisition right and such an
acquisition would not be within the scope sub-section (2), but within the
scope of sub-section (1).
(Paras 69 and 70)
Badri Prasad v. Smt. Kanso Devi, (1969) 2 SCC 586 and Nirmal Chand v.
Vidya Wanti, (1966) 3 SCC 628, followed.
(5)(a) It is settled law that widow is entitled to maintenance out
of her deceased husband's estate irrespective of whether that estate is in
the hands of his male issue or is in the hands of his coparcener. This right
to be maintained is not a jus in rem unless the right has ripened into a
charge against specific property, but it is certainly a jus ad rem, that is, a
right against the joint family property. Therefore, where specific property
is allotted to her in lieu of her claim to maintenance, the allotment would
be in satisfaction of her jus ad rem, namely, the right to be maintained
out of the joint family property. The widow would be getting the property
invirtue of her pre-existing right, the instrument giving the property being
merely a document effectuating such pre-existing right and not making a
grant of the property for the first time without any antecedent right or
title.
(Para 71)
29. In Vineeta Sharma's case, referred to supra, also it is
held as under:
"A. Family and Personal Laws-Hindu Succession Act, 1956-S.6 las
substituted by the Hindu Succession (Amendment) Act, 2005
w.e.f. 9-9-2005]-Daughter's right in coparcenary property under
substituted S. 6 of the HS Act, 1956 - Daughter born before date
of enforcement of the 2005Amendment Act - Held, has same
rights as daughter born on or after the amendment - Non-
requirement of coparcener father to be alive on date of coming
into force of the said amendment, explained
- Held, if daughter is alive on date of enforcement of Amendment Act,
2005 i.e. 9-9-2005, she becomes a coparcener with effect from date of
Amendment Act (i.e. 9-9-2005) irrespective of whether she was born
before the said amendment - Provisions in substituted S. 6 of the HS Act
confer status of coparcener on daughter born before or after the
amendment in the same manner as son with same rights and liabilities-
Rights under substituted S. 6 can be claimed by daughter born prior to
the amendment, with effect from date of amendment (9-9-2005) with
saving of past transactions as provided in proviso to 5.6(I) r/w S.6(5) of
the HS Act
- Further held, since right in coparcenary of daughter under the
substituted S. 6 is by birth, it is not at all necessary that father of
daughter should be living as on date of coming into force of the
amendment - Daughter now being a coparcener with effect from date
coming into force of the of amendment, can claim partition, which is a
necessary concomitant of coparcenary - Existence of coparcenary on date
of coming into force of the amendment is essential to enable the daughter
of a coparcener to enjoy rights conferred on her - In case living
coparcener dies after date of coming into force of the amendment,
inheritance is not by survivorship but by interstate or testamentary
succession as provided in substituted S. 6(3)"
30. This Iravva is the daughter of Malleshappa and Paravva
and sister of original defendant-Basavanthappa. These plaintiffs are
the children of Iravva. So, when the plaintiffs' mother was recognized
by Manu as heir, then her children are entitled for share.
31. Hence, by applying the provisions of Hindu Women's Right
to Property Act, 1937, we find that Paravva being the widow of
Malleshappa had a preexisting right over the property. When the
partition has taken place in the year 1947, the original defendant was
minor and she was representing as minor guardian. So, merely
because Paravva had limited right, that does not mean that Paravva
had no share in the properties. After advent of Hindu Succession Act,
1956 as per the latest judgment of the Hon'ble Supreme Court of India
(stated supra) her limited right blossoms into absolute right. That
means, only the legal heirs who are entitled for share is Paravva and
Basavanthappa. By applying notional partition, if the shares are
calculated, Paravva would get half share and Basavanthappa would get
half share in the properties in question. After demise of Paravva, as
the properties were inherited from Malleshappa, Iravva being the
daughter of Malleshappa, would get half share in the properties left by
Paravva. That means, in half notional share in the properties left by
Paravva, she will get half of the properties and remaining half share
goes to Basavanthappa i.e. original defendant. That means, in the
entire properties, the original defendant-Basavanthappa would be
entitled to 3/4th share, whereas the children of deceased-Iravva,
together would get 1/4th share in the schedule properties by metes
and bounds. In view of this position of law, it can be stated that the
learned Trial Court has committed error in dismissing the suit of the
plaintiffs.
32. As per the provisions of the Hindu Law, succession under
Mithakshara law speaks of who are heirs according to Smrities. The
Smriti says, Gouthama, Apasthamba, Boudhayana, Vasistha, Manu,
Vishnu, Yagnyvalkya, Narada, Brahaspati, Katyayan, Devala are the
heirs according to the Smrities.
33. Before the Hindu Women's Right to Property Act, two
systems are assimilated in this respect by the Hindu Women's Right to
Property Act, 1937, which has repealed the rules of Mitakshara and
Dayabhaga as to make a Mitakshara widow succeed to the
coparcenery property of her husband in the partable property of the
joint family and, along with his male issue, a separate property, and
enable a Dayabhaga widow to succeed along with a male issue in all
cases. Prior to 1937, under Hindu Law governed by Mitakshara School
of Law, a Hindu widow is entitled to claim maintenance from out of the
joint family property of her husband/coparcener. In 1937 the Hindu
Women's Right to Property Act was passed bringing about a change in
the rights of a woman. It confers for the first time a share in the joint
family property equivalent to that of her husband though she is not
entitled to claim partition or file a suit of partition, when partition of
joint family is effected she is entitled to a share.
34. Though it is argued by the counsel for defendants that
plaintiffs are not entitled for any share in the suit schedule properties
by virtue of the provisions of Hindu Women's Right to Property Act
1937 as well as the Hindu Succession Act, but in view of strict
provisions of Hindu Women's Right to Property Act 1937, then
prevailing, and also the provisions of Hindu Succession Act, Paravva
having succeeded to the properties, she had pre-existing right over the
property in question i.e., she has got limited right in the property as
discussed above. Therefore, by virtue of operation of Section 14(1) of
the Hindu Succession Act, plaintiffs are entitled for share in the suit
schedule properties by metes and bounds.
35. As discussed supra, Paravva being the wife of Malleshappa,
being a widow of Malleshappa was having right in the property under
provisions of Hindu Women's Right to Property Act to a limited extent
of half share and whatever the right the Malleshappa would get during
his lifetime, she was entitled for that share as stated supra. So, as a
widow, Paravva, is heir to her husband so also Basavanthappa. Her
son Basavanthappa equally inherits property of Malleshappa.
Therefore, if all these factual features put together coupled with
position of law, the plaintiffs together are held entitled to only 1/4th
share in the suit schedule properties by metes and bounds and
defendants-respondents together are entitled to 3/4th share in the suit
schedule properties by metes and bounds.
36. In view of discussions made above on various points for
consideration, we find that the Trial Court has committed a factual and
legal error in dismissing the suit of the plaintiffs. Therefore, the
judgment and decree of the Trial Court requires interference by this
Court. The Trial Court has committed error in dismissing the suit of the
plaintiffs. The plaintiffs have made out a case for decreeing their suit
by holding that they together are entitled to 1/4th share of Iravva by
metes and bounds. To this extent, the judgment of the Trial Court is
required to be modified. Accordingly, the points for consideration in
this appeal are answered in the affirmative. Resultantly, we pass the
following:
ORDER
i) The appeal filed by the appellants-plaintiffs is
allowed.
ii) The judgment and decree dated 15.12.2016 in
O.S.No.58/2015 passed by the Additional Senior
Civil Judge, Gadag is hereby set aside.
iii) Consequently, the appellants-plaintiffs together are
held entitled for share 1/4th of Iravva in the suit
schedule properties by metes and bounds.
iv) The defendants together are held entitled for 3/4th
share of original defendant-Basavanthappa in the
suit schedule properties by metes and bounds.
v) Looking to the relationship of the parties, there shall
be no order as to costs.
vi) There shall be preliminary decree accordingly.
vii) Send back the Trial Court Records along with copy
of this judgment.
Sd/-
JUDGE
Sd/-
JUDGE
YAN
