Karnataka High Court
Vithabai W/O Prabhu Melkeri vs Laxman S/O Malkappa Kamble on 18 July, 2023
Bench: N.S.Sanjay Gowdapresided Bynssgj
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RSA No. 7046 of 2010
C/W RSA No. 7047 of 2010
RSA No. 7136 of 2010
RSA No. 7137 of 2010
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 18TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR. JUSTICE N.S.SANJAY GOWDA
REGULAR SECOND APPEAL NO. 7046 OF 2010 (PAR/POS)
C/W
REGULAR SECOND APPEAL NO. 7047 OF 2010
REGULAR SECOND APPEAL NO. 7136 OF 2010
REGULAR SECOND APPEAL NO. 7137 OF 2010
RSA NO.7046/2010
BETWEEN:
VITHABAI W/O PRABHU MELKERI
AGE: 74 YEARS, OCC: HOUSEHOLD,
R/O H.NO.18-143 NEAR SBH BANK,
WADI, TQ. CHITTPUR,
Digitally signed by
RAMESH MATHAPATI DIST.KALABURAGI.
Location: HIGH COURT
OF KARNATAKA
DEAD BY LRS.
...APPELLANT
(BY SRI A.M.NAGRAL, ADVOCATE)
AND:
1. LAXMAN S/O MALKAPPA KAMBLE
AGE: 64 YEARS, OCC: RETD. RAILWAY EMPLOYEE
R/O H.NO.123/4, RAILWAY COLONY
WADI, TQ.CHITTAPUR
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RSA No. 7137 of 2010
DIST.KALABURAGI-585101
1A. BANGAREMMA @ BANGARAWWA
W/O LAXMAN KAMBLE
AGE: 55 YEARS, OCC: HOUSEHOLD
R/O H.NO.123/4 RAILWAY COLONY,
WADI, TQ. CHITAPUR,
DIST.KALABURAGI.
1B. ESHWAR S/O LAXMAN KAMBLE
AGE: 48 YEARS, OCC: TC IN RAILWAY
R/O H.NO.123/4, RAILWAY COLONY,
WADI, TQ. CHITTAPUR
DIST. KALABURAGI.
2. BHIMASHANKER S/O RAMCHANDRA
AGE: 37 YEARS, OCC: LIFT OPERATOR
R/O H.NO.3821, TRIMURTHY NAGAR
HINDI COLONY PUNE
(MAHARASHTRA STATE)
(AMENDMENT BY THE ORDER OF
HON'BLE COURT DATED 3.7.23.
2A. SMT SANGEETA W/O LATE BHEEMASHANKAR
AGE: 53 YEARS, OCC: HOUSEHOLD
2B. SRI BHARATI S/O LATE BHEEMASHANKAR
AGE: 33 YEARS, OCC: PRIVATE SERVICE
2C. SIMPLE D/O LATE BHEEMASHANKAR
AGE: 28 YEARS, OCC: STUDENT
2D. SAPNA D/O LATE BHEEMASHANKAR
AGE: 22 YEARS, OCC: STUDENT
ALL ARE R/O NO.3821,
TRIMURTHY NAGAR, HINDI COLONY,
PUNE
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RSA No. 7046 of 2010
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RSA No. 7137 of 2010
3. THE SENIOR VICE PRESIDENT
ACC COMPANY, WADI (JN)
TQ.CHITTAPUR, DIST.GULBARGA
4. THE BRANCH MANAGER
LIFE INSURANCE CORPORATION OF INDIA LTD.,
DB-II, JEWARGI CROSS
GULBARGA.
...RESPONDENTS
(BY SRI. ANANTH S. JAHAGIRDAR, ADVOCATE FOR R1(A) &
R1(B); SRI NARESH V. KULKARNI, ADVOCATE FOR R2;
NOTICE TO R3 & R4 ARE SERVED; V/O DATED 03.07.23 LR'S
OF DECEASED APPELLANT IN RSA 7136/10 & 7137/10 ARE
TREATED AS LR'S OF DECEASED R2)
THIS RSA IS FILED U/S. 100 OF CPC PRAYING TO SET
ASIDE THE JUDGMENT AND DECREE DATED 13.10.2009
PASSED BY THE III ADDL. DISTRICT JUDGE AT GULBARGA IN
R.A.NO.220/2008, BY MODIFYING THE JUDGMENT AND
DECREE DATED 25.09.2008 BY THE COURT OF CIVIL JUDGE
(SR.DN) AT CHITTAPUR IN O.S.NO.107/2003, BY DISMISSING
THE SUIT.
RSA NO.7047/2010
BETWEEN:
VITHABAI W/O PRABHU MELKERI
AGE: 74 YEARS, OCC: HOUSEHOLD,
R/O H.NO.18-143 NEAR SBH BANK,
WADI, TQ. CHITTPUR,
DIST. KALABURAGI.
...APPELLANT
(BY SRI A. M. NAGRAL, ADVOCATE)
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C/W RSA No. 7047 of 2010
RSA No. 7136 of 2010
RSA No. 7137 of 2010
AND:
1. LAXMAN S/O MALKAPPA KAMBLE
AGE: 64 YEARS, OCC:RETD. RAILWAY EMPLOYEE
R/O H.NO.123/4, RAILWAY COLONY
WADI, TQ.CHITTAPUR
DIST.KALABURAGI-585101
DEAD BY LRS.
1A. BANGAREMMA @ BANGARAWWA
W/O LAXMAN KAMBLE
AGE: 55 YEARS, OCC: HOUSEHOLD
R/O H.NO.123/4 RAILWAY COLONY,
WADI, TQ. CHITAPUR,
DIST.KALABURAGI.
1B. ESHWAR S/O LAXMAN KAMBLE
AGE: 48 YEARS, OCC: TC IN RAILWAY
R/O H.NO.123/4, RAILWAY COLONY,
WADI, TQ. CHITTAPUR
DIST. KALABURAGI.
2. THE UNION OF INDIA
THROUGH ITS DIVISIONAL RAILWAY MANAGER
PERSONAL BRANCH, CENTRAL RAILWAY
SOLAPUR (MAHARASTRA STATE)
3. BHIMASHANKER S/O RAMCHANDRA
AGE: 40 YEARS, OCC: LIFT OPERATOR
R/O H.NO.3821, TRIMURTHY NAGAR
HINDI COLONY, PUNE
(MAHARASHTRA STATE)
3A. SMT SANGEETA W/O LATE BHEEMASHANKAR
AGE: 53 YEARS, OCC: HOUSEHOLD
3B. SRI BHARAT S/O LATE BHEEMASHANKAR
AGE: 33 YEARS, OCC: JOB
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3C. SIMPLE D/O LATE BHEEMASHANKAR
AGE: 28 YEARS, OCC: STUDENT
3D. SAPNA D/O LATE BHEEMASHANKAR
AGE: 22 YEARS, OCC: STUDENT
ALL ARE R/O NO.3821,
TRIMURTHY NAGAR, HINDI COLONY,
PUNE.
...RESPONDENTS
(BY SRI ANANTH S. JAHAGIRDAR, ADVOCATE FOR R1(A) &
R1(B); SRI MANVENDRA REDDY, ADVOCATE FOR R2;
SRI NARESH V. KULKARNI ADVOCATE FOR R3; V/O DATED
03.07.23 LR'S OF DECEASED APPELLANT IN RSA.7136/10 &
RSA.7137/10 ARE TREATED AS LR'S OF DECEASED R3)
THIS RSA IS FILED U/S. 100 OF CPC PRAYING TO SET
ASIDE THE JUDGMENT AND DECREE DATED 13.10.2009
PASSED BY THE III ADDL. DISTRICT JUDGE AT GULBARGA IN
R.A.NO.221/2008, BY MODIFYING THE JUDGMENT AND
DECREE DATED 25.09.2008 BY THE COURT OF CIVIL JUDGE
(SR.DN) AT CHITTAPUR IN O.S.NO.96/2004, BY DISMISSING
THE SUIT.
RSA NO.7136/2010
BETWEEN:
1. BHIMASHANKAR S/O RAMACHANDRA
SINCE DECEASED BY LRS.
1A. SMT SANGEETA W/O LATE BHEEMASHANKAR
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RSA No. 7137 of 2010
AGE: 53 YEARS, OCC: HOUSEHOLD
1B. SRI BHARAT S/O LATE BHEEMASHANKAR
AGE: 33 YEARS, OCC: PRIVATE JOB
1C. SIMPLE D/O LATE BHEEMASHANKAR
AGE: 28 YEARS, OCC: STUDENT
1D. SAPNA D/O LATE BHEEMASHANKAR
AGE: 53 YEARS, OCC: HOUSEHOLD
ALL ARE R/O NO.3821,
TRIMURTHY NAGAR, HINDI COLONY,
PUNE.
...APPELLANTS
(BY SRI. NARESH V. KULKARNI, ADVOCATE )
AND:
1. LAXMAN S/O MALKAPPA KAMBLE
AGE: 62 YEARS, OCC: RETIRED RAILWAY EMPLOYEE
R/O Q.NO.123/4 RB-1RAILWAY COLONY
WADI (JN) TQ. CHITTAPUR
DIST. KALABURAGI
1A. SMT BANGARAMMA W/O LAXMAN
AGE: 56 YEARS, OCC: HOUSEHOLD
R/O H.NO.1-891/80/2B/116,
BHAGYALAXMI NAGAR, NEAR SAIMANDIR,
KALABURAGI-4
1B. SMT SAKUBAI W/O SHIVARAYA
AGE: 52 YEARS, OCC: HOUSEHOLD
R/O H.NO.11, RAJMAHAL LAYOUT
NEAR HIGH COURT, RING ROAD
KALABURAGI-4
1C. ESHWAR S/O LAXMAN
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AGE: 48 YEARS, OCC: RAILWAY EMPLOYEE
R/O H.NO.RB-1/123/H, RAILWAY COLONY
WADI-585225
1D. SMT PARVATI @ SANGEETA
W/O BHIMASHANKAR
AGE: 45 YEARS, OCC: HOUSEHOLD
R/O TRIMURTI NAGAR, HINDI COLONY
NO.176/4-72, HADAPSAR
BAKRENAGAR, PUNE-412308
1E. SMT SARASWATI @ RAJSHREE
W/O KAMALAKAR, AGE: 42 YEARS,
OCC: HOUSEHOLD R/O H.NO.2/910/46
OMNAGAR, II BLOCK NEAR
ARVIND ASHRAM, SEDAM ROAD,
KALABURAGI-5
2. VITHABAI W/O PRABHU MELKERI
AGE: 65 YEARS, OCC: HOUSEHOLD,
R/O ACC COLONY WADI (JN)
TQ. CHITTAPUR
DIST. KALABURAGI
3. THE SENIOR VICE-PRESIDENT
ACC COMPANY, WADI (JN),
TQ. CHITTAPUR
DIST. KALABURAGI.
4. THE BRANCH MANAGER
LIFE INSURANCE CORPORATION OF INDIA LIMITED,
DBH, JEWARGI CROSS,
KALABURAGI.
...RESPONDENTS
(BY SRI ANANATH S. JAHAGIRDAR, ADVOCATE FOR R1(A) TO
R1(E); SRI A.M.NAGARAL, ADVOCATE FOR R2;
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RSA No. 7137 of 2010
NOTICE TO R3 IS SERVED; SRI UDAY P. HONGUNTIKAR,
ADVCOATE FOR R4)
THIS RSA IS FILED U/S. 100 OF CPC PRAYING TO SET
ASIDE THE JUDGMENT AND DECREE IN R.A.NO.220/2008
PASSED BY THE 3RD ADDL. DISTRICT JDUGE AT GULBARGA
DATED 13.10.2009 AND PLEASED TO RESTORE THE JUDGMENT
AND DECREE OF THE TRAIL COURT IN O.S.NO.107/2003
PASSED BY THE CIVIL JUDGE (SR.DN) AT CHITTAPUR.
RSA NO.7137/2010
BETWEEN:
1. BHIMASHANKAR S/O RAMACHANDRA
SINCE DECEASED BY LRS.
1A. SMT SANGEETA W/O LATE BHEEMASHANKAR
AGE: 53 YEARS, OCC: HOUSEHOLD
1B. SRI BHARAT S/O LATE BHEEMASHANKAR
AGE: 33 YEARS, OCC: PRIVATE JOB
1C. SIMPLE D/O LATE BHEEMASHANKAR
AGE: 28 YEARS, OCC: STUDENT
1D. SAPNA D/O LATE BHEEMASHANKAR
AGE: 53 YEARS, OCC: HOUSEHOLD
ALL ARE R/O NO.3821,TRIMURTHY NAGAR,
HINDI COLONY, PUNE.
...APPELLANTS
(BY SRI NARESH V. KULKARNI, ADVOCATE)
AND:
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1. LAXMAN S/O MALKAPPA KAMBLE
AGE: 69 YEARS, OCC: RETIRED RAILWAY EMPLOYEE
R/O Q.NO.123/4 RB-1RAILWAY COLONY
WADI (JN) TQ. CHITTAPUR
DIST.KALABURAGI
1A. SMT BANGARAMMA W/O LAXMAN
AGE: 56 YEARS, OCC: HOUSEHOLD
R/O H.NO.1-891/80/2B/116,
BHAGYALAXMI NAGAR, NEAR SAIMANDIR,
KALABURAGI-4
1B. SMT SAKUBAI W/O SHIVARAYA
AGE: 52 YEARS, OCC: HOUSEHOLD
R/O H.NO.11, RAJMAHAL LAYOUT
NEAR HIGH COURT, RING ROAD
KALABURAGI-4
1C. ESHWAR S/O LAXMAN
AGE: 48 YEARS, OCC: RAILWAY EMPLOYEE
R/O H.NO.RB-1/123/H, RAILWAY COLONY
WADI-585225
1D. SMT PARVATI @ SANGEETA
W/O BHIMASHANKAR
AGE: 45 YEARS, OCC: HOUSEHOLD
R/O TRIMURTI NAGAR, HINDI COLONY
NO.176/4-72, HADAPSAR
BAKRENAGAR, PUNE-412308
1E. SMT SARASWATI @ RAJSHREE
W/O KAMALAKAR, AGE: 42 YEARS,
OCC: HOUSEHOLD R/O H.NO.2/910/46
OMNAGAR, II BLOCK NEAR
ARVIND ASHRAM, SEDAM ROAD,
KALABURAGI-5
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2. VITHABAI W/O PRABHU MELKERI
AGE: 65 YEARS, OCC: HOUSEHOLD,
R/O ACC COLONY WADI (JN)
TQ. CHITTAPUR
DIST. KALABURAGI
3. THE UNION OF INDIA
THROUGH ITS DIVISIONAL
RAILWAY MANAGER, PERSONAL BRANCH
CONTROLLER, RAILWAY
SOLAPUR, MAHARASTRA.
...RESPONDENTS
(BY SRI. ANANATH S. JAHAGIRDAR, ADVOCATE FORR 1(A) TO
R1(E); SRI A.M. NAGRAL, ADVOCATE FOR R2;
SRI MANVENDRA REDDY, ADVOCATE FOR R3)
THIS RSA IS FILED U/S. 100 OF CPC PRAYING TO SET
ASIDE THE JUDGMENT AND DECREE IN R.A.NO.221/2008
PASSED BY THE 3RD ADDL. DISTRICT JUDGE AT GULBARGA
AND PLEASED TO RESTORE THE JUDGMENT AND DECREE OF
THE TRAIL COURT IN O.S.NO.96/2004 DATED 25.09.2008
PASSED BY THE CIVIL JUDGE (SR.DN) AT CHITTAPUR.
THESE APPEALS, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. On 05.11.2021, Laxman instituted a suit in O.S.
No.107 of 2003 against (i) his sister Vithabai, (ii) his
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brother Naganath (@ Nagendra), (iii) the employer of his
deceased brother-Babu i.e., ACC Limited and also (iv) the
Life Insurance Corporation from which his brother--
deceased Babu had insured his life.
2. It was stated that Malkappa--the propositus had six
children i.e., Ramachandra, Laxman (plaintiff), Babu,
Naganath (defendant No.1), Vithabai (defendant No.2)
and Maremma.
3. It was also stated that Ramachandra--the eldest son
had died without any issues and Babu--the third son had
also died unmarried.
4. O.S. No.107 of 2003 was filed by Laxman seeking for
(i) a share in the monetary benefits that accrued on
account of the death of his brother--Babu, from his
employer--M/s. ACC Limited, (ii) for a share in the house
property and (iii) for a share in the LIC Policies. Laxman
claimed that he was entitled to half a share while his other
brother--Naganath was entitled to the other half share.
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5. During the pendency of this suit, his other brother--
Naganath also died without any issues. This resulted in
filing of another suit in O.S. No.96 of 2004 on 06.08.2004
by Laxman. In this suit, the service benefits of Naganath
was the subject matter of the suit.
6. Thus, two suits were filed by Laxman seeking to
succeed to half of the estate of Babu and Naganath.
7. During the pendency of these two suits,
Bhimashankar--the son of Maremma i.e., the sister of the
deceased Babu and Naganath--sought to implead himself
on the ground that he also had a share and he was
accordingly impleaded as defendant No.5 and defendant
No.3 respectively in the two suits.
8. It was the case of Laxman that he had succeeded to
the half extent of the suit properties (in both suits)
whereas it was the case of his sister--Vithabai / defendant
No.1 in O.S. No.107 of 2003 that she was also entitled to
a share.
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9. In the suit, Bhimashankar--son of Maremma and the
nephew of the deceased, also claimed a share.
10. The Trial Court disposed of both O.S. No.107 of 2003
and O.S. No.96 of 2004 by separate orders passed on the
same day.
11. In O.S. No.107 of 2003, the Trial Court held that
Laxman was entitled to 1/3rd share in all the properties
and at the same time, Vithabai and Bhimashankar were
also entitled to 1/3rd share each.
12. In O.S. No.96 of 2004 also, the Trial Court held that
Laxman was entitled to 1/3rd share and Vithabai and
Bhimashankar were entitled to 1/3rd share.
13. Vithabai--defendant No.1, preferred an appeal
against both the judgments.
14. The Appellate Court, by separate orders passed on
the same day (13.10.2009), allowed the appeals of
Vithabai and held that only Laxman and Vithabai were
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entitled to half a share in the service benefits, LIC policies
and in the property of Babu and in the service benefits of
Naganath.
15. Being aggrieved by the said judgments, RSA
Nos.7046 of 2010 and 7047 of 2010 have been preferred
by Vithabai and RSA Nos. 7136 of 2010 and 7137 of 2010
have been filed by Bhimashankar.
16. These appeals have been admitted to consider the
following Substantial Questions of Law:
In RSA No.7046/2010:
i) Whether the Courts below are justified in
decreeing the suit of the plaintiff, though
the defendant No. 1 in her written
statement specifically contended that, the
plaintiff separated from the joint family in
the year 1962 itself, and he ousted from
the joint family. On this aspect, no issues
were framed, nor appreciated that the
plaintiff will not be entitled for any share
in the suit property?
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ii) Under Article 110 of the Limitation Act
contemplates that, person excluded from
a joint family property to enforce a right
to a share therein, limitation of 12 years
when exclusion become known to the
plaintiff. From the available records, prima
facie discloses that, the plaintiff was not
living with the joint family and a specific
case was made out in the written
statement that, he separated from the
joint family in the year 1962 itself, and
filed the suit in the year 2003?
iii) The trial Court recorded a finding that, the
suit property was not purchased by the
plaintiff, even though the suit was
decreed?
iv) The trial Court without any material to prove
that, the suit properties were the joint
family property and without any material
to show that, he is living with the
deceased Babu, the trial Court decreed
the suit, the lower appellate Court
modified the decree by allotting half
share?
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v) The Lower Appellate Court without assessing
the oral and documentary evidence, come
to conclusion that, the plaintiff is entitled
for half share in the suit schedule
property?
In RSA No.7047/2010:
" i) Whether the Courts below are justified in
decreeing the suit of the plaintiff, though
the defendant No.1 in her written
statement specifically contended that, the
plaintiff separated from the joint family in
the year 1962 itself, and he ousted from
the joint family. On this aspect, no issues
were framed, nor appreciated that the
plaintiff will not be entitled for any share
in the suit property?
ii) Under Article 110 of the Limitation Act
contemplates that, person excluded from
a joint family property to enforce a right
to share therein, limitation of 12 years
when exclusion become known to the
plaintiff. From the available records,
prima facie discloses that, the plaintiff
was not living with the joint family and a
specific case was made out in the written
statement that, he separated from the
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joint family in the year 1962 itself, and
filed the suit in the year 2004?
iii) The trial Court without any material to
prove that, the suit properties were the
joint family property and without any
material to show that, he is living with
the deceased Naganath, the trial Court
decreed the suit, the lower appellate
Court modified the decree by allotting
half share in the service benefits of the
deceased Naganath?
iv) The Lower Appellate Court without
assessing the oral and documentary
evidence, came to conclusion that, the
plaintiff is entitled for half share in the
suit schedule property? "
In RSA No.7136/2010:
" Whether the reasoning of the Appellate
Court in carving out the relief inspite of
death of Nagendra-defendant No.2 and
thereby altering the share is in
accordance with law? "
In RSA No.7137/2010:
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" Whether the Appellate Court was right
in rejecting the claim of the defendant
No.3 in O.S. No.96/2004 for declaration
of his share inspite of admission on he
being son of Ramachandra? "
17. At the outset, it has to be stated here that in both
the suits, the entitlement to succeed to the estate of Babu
and Naganath was to be determined.
18. Since, both Babu and Naganath had died without
being married and without any issues, the succession
would be governed by Section 8 of the Hindu Succession
Act, 1956, according to which, the property of both of
them would devolve firstly upon their Class-I heirs and in
the absence of any Class-I heirs, the same would devolve
on the relatives specified in Class-II of the Schedule.
19. Admittedly, since there are no legal heirs as specified
in Class-I, the properties of Babu and Naganath would
devolve on the relatives specified in Class-II. The relatives
specified in Class-II, by virtue of Section 9 of the Hindu
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Succession Act, would devolve in the order specified i.e.,
the relatives specified in the first entry would succeed to
the exclusion of the second entry and so on.
20. In Class-II, the relatives specified in the first entry is
admittedly not available. In the second entry, the brother
and sister are included, thereby meaning that a brother
and sister would succeed to the properties of a Hindu male
to the exclusion of the other relatives specified in entries
(III) to (IX).
21. In the instant case, since Laxman is admittedly the
brother and Vithabai is admittedly the sister of Babu and
Naganath, only they would succeed to the properties of
Babu and Naganath by virtue of entry (II) of Class-II.
22. Bhimashankar, being the son of Maremma--the sister
of both diseased, would not be entitled to succeed since he
would fall in entry (IV) of Class-II.
23. As per Section 9 of the Hindu Succession Act, since
the relatives specified in entry (II) would succeed to the
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exclusion of the other relatives specified in entries (III) to
(IX), it is obvious that Bhimashankar would not be entitled
to claim a share.
24. It is also stated at the Bar that his mother--
Maremma died in the year 1996 i.e., much prior to the
death of Babu and Naganath.
25. It has to be stated here that the crucial date for
determination of succession would be the date of death of
Babu and Naganath i.e., 14.01.2003 and 13.06.2004
respectively, on which date, their sister--Maremma was
not alive.
26. In this view of the matter, the Appellate Court was
justified in holding that only Laxman and Vithabai would
be entitled to half a share each in the suits schedule
properties.
27. As far as the questions of law are concerned, in a
case of succession to the property of a Hindu male dying
intestate, the question of ouster from a joint family would
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NC: 2023:KHC-K:5484
RSA No. 7046 of 2010
C/W RSA No. 7047 of 2010
RSA No. 7136 of 2010
RSA No. 7137 of 2010
not arise at all. The succession to a property happens on
the death of a Hindu male and it has no relation to his
being a member of the joint family.
28. In that view of the matter, the questions of law
framed in the present appeals would not arise for
consideration.
29. It is held that Laxman through his legal
representatives would be entitled to half a share of the
properties left behind by Babu and Naganath; and Vithabai
would be entitled to succeed to the other half of the
properties of Babu and Naganath.
30. The second appeals are dismissed accordingly.
Sd/-
JUDGE
RK
