Karnataka High Court
Smt. R. Padmavathi Bai W/O ... vs Chaitra D/O Chandrashekhar on 5 October, 2023
Bench: Anant Ramanath Hegde
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NC: 2023:KHC-D:11826
RFA No. 100405 of 2017
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 5TH DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO. 100405 OF 2017 (FDP-)
BETWEEN:
1. SMT. R. PADMAVATHI BAI
W/O B.BASAVARAJ
AGE: 43 YEARS,
OCC: HOUSEWIFE/ SINECURE,
R/O: C/O: VEERESHAIAH HOUSE,
NEAR CHANDRAMOULESHWAR TEMPLE,
AMARAVATHI, HOSPET-583273,
DIST: BALLARI.
2. RAJANI
D/O B.BASAVARAJ
AGE: 27 YEARS, OCC: STUDENT,
R/O: C/O: VEERESHAIAH HOUSE,
NEAR CHANDRAMOULESHWAR TEMPLE,
Digitally
signed by
VIJAYALAXMI
VIJAYALAXMI M BHAT
AMARAVATHI, HOSPET-583273,
DIST: BALLARI.
M BHAT Date:
2023.10.07
12:20:57
+0530
3. MARUTI
S/O B.BASAVARAJ
AGE: 20 YEARS, OCC: STUDENT,
R/O: C/O: VEERESHAIAH HOUSE,
NEAR CHANDRAMOULESHWAR TEMPLE,
AMARAVATHI, HOSPET-583273,
DIST: BALLARI.
4. SRISHA @ SRISGA
S/O B.BASAVARAJ
AGE: 18 YEARS, OCC: STUDENT,
R/O: C/O: VEERESHAIAH HOUSE,
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RFA No. 100405 of 2017
NEAR CHANDRAMOULESHWAR TEMPLE,
AMARAVATHI, HOSPET-583273,
DIST: BALLARI.
5. SAI KIRAN
S/O B.BASAVARAJ
AGE: 17 YEARS, OCC: STUDENT,
SINCE MINOR R/BY HIS NATURAL
MOTHER APPELLANT-1.
...APPELLANTS
(BY SRI. DINESH M KULKARNI, ADVOCATE)
AND:
1. CHAITRA
D/O CHANDRASHEKHAR
AGE: 16 YEARS, OCC: STUDENT,
2. ANJINI
D/O CHANDRASHEKHAR
AGE: 14 YEARS, OCC: STUDENT,
SINCE RESPONDENTS NO.1 AND 2 ARE
MINORS R/BY THEIR NATURAL
MOTHER RESPONDENT NO.3.
3. SHIVAGANGAMMA
W/O CHANDRASHEKHAR
AGE: 34 YEARS, OCC: HOUSEWIFE,
R/O: C/O: LAKSHAMAMMA,
W/O LATE SHIVARAMAPPA,
2ND WARD, MALAPANAGUDI,
HOSPET-583273,
DIST: BALLARI.
HONNURAMMA
W/O LATE HONNALAPPA
SINCE DECEASED R/BY APPELLANTS AND
RESPONDENTS.
4. SHANKARAMMA
W/O LATE PAKKIRAPPA
AGE: MAJOR,
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RFA No. 100405 of 2017
R/O: 2ND CROSS, NEAR ZANDAKATTA,
PATEL NAGAR, HOSPET-583273,
DIST: BALLARI.
CHANDRASHEKHAR
S/O LATE B.PAKKIRAPPA
SINCE DECEASED R/BY APPELLANTS AND
RESPONDENTS.
5. LAKSHMI W/O KUMARSWAMY
AGE: 47 YEARS,
R/O: T.B.BOARD QUARTERS,
T.B.DAM, HOSPET TALUKA-583273,
DIST: BALLARI.
6. LALITHA W/O VASU
OCC: (KSRTC BUS CONDUCTOR) "SINCURE"
AGE: 43 YEARS, R/O: PATEL NAGAR,
2ND CROSS, NEAR ZANDAKATTA,
HOSPET-583273, DIST: BALLARI.
...RESPONDENTS
(SRI. HANUMANTHAREDDY SAHUKAR, ADVOCATE FOR R4 & R5;
R3 AND R6-NOTICE SERVED;
R1 AND R2 MINORS REPRESENTED BY R3)
THIS RFA IS FILED UNDER ORDER 41 RULE 1 OF CPC.,
READ WITH SEC.96 OF CPC., AGAINST THE JUDGMENT AND
DECREE DTD: 29.08.2016 PASSED IN FDP NO.17/2011 ON THE
FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND JUDICIAL
MAGISTRATE FIRST CLASS, HOSAPETE, ALLOWING THE PETITION
TO DRAW FINAL DECREE.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RFA No. 100405 of 2017
JUDGMENT
The final decree drawn in FDP No.17/2011 on the file
of the Principal Senior Civil Judge, Hospet, is the subject
matter of this appeal under Section 96 of the Code of Civil
Procedure.
2. This appeal is by the plaintiffs-petitioners in
final decree proceedings referred to above. The final
decree proceeding is initiated pursuant to the preliminary
decree in O.S.No.12/2008 on the file of the Principal
Senior Civil Judge, Hospet. The plaintiffs' suit was decreed
in part. The suit is dismissed in respect of item No.1
property. It is further declared that defendant No.1 is
entitled for ½ share in item No.2 property.
3. Item No.1 property which is an open site
bearing No.43, plot No.15 in 3rd Ward, Patel Nagar,
Hospet, measuring 51X19 sq.ft., Item No.2 property is a
residential house bearing Door No.old: 437, New 692/A
measuring 24 ft. east-west and 35 ft. towards north-south
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RFA No. 100405 of 2017
situated in Sy.No.38 at 3rd Ward, Patel Nagar, 2nd Cross,
Hospet.
4. During the pendency of the final decree
proceedings referred to above, defendant No.1 -
Honnuramma died. She died intestate. In the preliminary
decree referred to above, the suit in respect of item No.1
property is dismissed on the premise Honnuramma is the
owner of the property.
5. After the death of Honnuramma, an application
is filed by the petitioners before the final decree
proceedings Court to allot the share of Honnuramma in
favour of the branch of Basavaraj, branch of
Chandrashekar, the daughter-in-law-Shankaramma (wife
of Pakkirappa) and Lakshmi and Lalitha-the children of
Pakkirappa.
6. Based on the said application, the final decree
Court effected the division of the properties and
Honnuramma's property is also divided by allotting the
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RFA No. 100405 of 2017
share to Shankaramma- her daughter-in-law, the children
and the wife of Basavaraj and children, wife of
Chandrashekar and Lakshmi and Laitha-the daughters of
Pakkkirappa.
7. Aggrieved by the final decree drawn by the
Court, the plaintiffs are in appeal.
8. The learned counsel for the appellants
Sri Dinesh M.Kulkarni would submit that Shankaramma-
the daughter-in-law does not inherit the property of
Honnuramma as the Honnuramma's estate would devolve
on the Class I heirs of Honnuramma and Shankaramma is
not the Class I heir. Thus, the trial Court erred in allotting
the share to Shankaramma as one of the legal
representatives of the deceased Honnuramma. Thus, he
would submit that the judgment and decree passed by the
final decree Court have to be modified and share of
Honnuramma has to be allotted afresh by treating the
heirs of Basavaraj, heirs of Chandrashekar and Lakshmi
and Lalitha as the heirs of the deceased Honnuramma.
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RFA No. 100405 of 2017
9. In support of his contentions, he would refer to
Section 15(1) of the Hindu Succession Act, 1956.
10. Sri Hanumanthareddy Sahukar, learned counsel
for the respondents would urge that the allotment of the
property after the death of Honnuramma is based on the
application filed by the petitioners-appellants and having
consented for allotting the share to Shankaramma-the
wife of Pakkirappa, the appellants are estopped from
raising a contention that Shankaramma is not the heir.
Thus, he would urge that the appeal is to be dismissed.
He would also submit that after the allotment of property,
Shankaramma has also made certain changes in the
property by investing huge amount and as such, equity
does not lie in favour of the appellants, who by their
conduct and representation made Shankaramma to
believe that she is also entitled to inherit the property of
Honnuramma.
11. This Court has considered the contentions
raised at the Bar.
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RFA No. 100405 of 2017
12. Though the contentions raised that
Shankaramma has invested huge amount and renovated
the property allotted to her share, no documents are
placed before the Court as to when such renovation is
made and to what extent, such renovation is made so as
to preclude the appellants from claiming legitimate share
in the property as the Class I heirs of deceased
Honnuramma. It is also relevant to note that after the
death of Honnuramma, who died intestate, Honnuramma's
estate would devolve only on Class I heirs. The succession
cannot take place based on the representation of the
parties. So there cannot be any estoppel against law. This
being the position, this Court is not in a position to accept
that Shankaramma also inherited the property after the
death of Honnuramma.
13. Though the application is filed by the present
appellants with a prayer to allot the share of Honnuramma
to all the Class I heirs and also Shankarammma, the
misunderstanding of law relating to succession cannot be a
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RFA No. 100405 of 2017
ground for the trial Court to pass an order in favour of
Shankaramma. This being the position, this Court is of the
view that the property of Honnuramma, namely, item No.1
property and ½ share in item No.2 property which is
declared to be property of Honnuramma shall devolve on
the heirs of Basavaraj, heirs of Chandrashekar, Lakshmi
and Lalitha.
14. Hence, the final decree drawn by the Court is
set aside and it is required to be drawn afresh by treating
heirs of Basavaraj, heirs of Chandrshekar, and Lakshmi's
and Lalitha as the Class I heirs of Honnuramma.
15. It is noticed that item No.1 property is a vacant
site and item No.2 property is a residential house and in
terms of the preliminary decree passed by the Court in
O.S.No.12/2008, Shankaramma is also entitled to certain
share in half portion of item No.2 property. The final
decree Court shall make an endover to adjust the equities
in favour of Shankaramma to allot the share to
Shankaramma as far as possible in the residential house.
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RFA No. 100405 of 2017
This equity can be adjusted possibly by allotting a bigger
portion to the plaintiffs in the vacant place in item No.1
property, in lieu of larger share in item No.2 property.
With these observations made above, the impugned
judgment and decree are modified.
16. Hence, the following:-
i. The appeal is allowed in part.
ii. The judgment and decree in FDP
No.17/2011 on the file of the Principal
Senior Civil Judge, Hospet, are set aside.
iii. Parties are directed to appear before the
trial Court on 31.10.2023 without awaiting
for any notice.
iv. Though it is stated that improvement is
made after allotment of portion of the
residential house, no documents are
placed before this Court. However, liberty
is given to respondent no.4-
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RFA No. 100405 of 2017
Shankaramma to produce materials
before the final decree Court to establish
the claim relating to improvement, if any.
Sd/-
JUDGE
VMB
