Karnataka High Court
Smt T N Susheelamma vs Sri Chirag Raghavendra on 6 October, 2023
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
R
DATED THIS THE 6 DAY OF OCTOBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A. NO.1090/2020 (PAR)
BETWEEN:
SMT. T.N.SUSHEELAMMA
W/O SRI A.A.CHANDRE GOWDA
SINCE DEAD BY HER LRS.
1. SMT. A.C.SAVITHA
W/O SRI A.B.CHANDREGOWDA
AGED ABOUT 51 YEARS
HOUSEWIFE
R/AT MIG-10, II STAGE
GOPAL GOWDA EXTENSION
SHIVAMOGGA. ... APPELLANT
(BY SRI A.MADHUSUDHANA RAO, ADVOCATE)
AND:
1. SRI. CHIRAG RAGHAVENDRA
S/O LATE SANTHOSH
AGED ABOUT 24 YEARS
2. SMT. M.D. PRATHIMA
W/O LATE SANTHOSH
AGED ABOUT 47 YEARS
RESPONDENTS 1 AND 2 ARE BOTH
R/AT C/O SRI M.D.DEVEGOWDA
GUNDAPPA STREET
CHIKKAMAGALURU.
2
3. SRI M.C.NAGESH
S/O CHANNE GOWDA
AGED ABOUT 53 YEARS
R/AT VIDYANAGARA
HESGAL POST
MUDIGERE TALUK
CHIKAMAGALURU.
4. SRI A.A. CHANDREGOWDA
S/O LATE A.M.ANNEGOWDA
AGED ABOUT 75 YEARS
AGRICULTURIST,
R/AT ABACHURU JOGANNANAKERE
VILLAGE, MUDIGERE TALUK
CHIKAMAGALURU DISTRICT. ... RESPONDENTS
(BY SRI. VINOD GOWDA, ADVOCATE FOR C/R1 AND R2;
SRI G.CHANDRASHEKHARAIAH, ADVOCATE FOR R3;
SRI S.D.N.PRASAD, ADVOCATE FOR R4)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 17.01.2020
PASSED IN R.A.NO.70/2017 ON THE FILE OF THE PRINCIPAL
DISTRICT AND SESSIONS JUDGE, CHIKKAMAGALURU, PARTLY
ALLOWING THE APPEAL AND FILED AGAINST THE JUDGMENT
AND DECREE DATED 07.10.2017 PASSED IN O.S.NO.53/2014
ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC,
MUDIGERE.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 26.09.2023 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
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JUDGMENT
The factual matrix of the case of the plaintiffs/respondents
No.1 and 2 in this appeal that suit schedule properties are the
joint family properties of plaintiffs and defendant No.1 who is the
father of deceased Santhosh and plaintiffs are the wife and son
of the deceased Santhosh and they are entitled for share in the
suit schedule properties of ½ share and gift deed executed by
defendant No.1 in favour of defendant No.2 is not binding. It is
also the case of the plaintiffs that sale deed executed in favour
of defendant No.3 by defendant No.2 is also not binding on the
plaintiffs.
2. The defendants appeared and filed written statement
contending that there was a partition during the life time of
deceased Santhosh long back and he had taken money from the
defendants as his share. Out of that money deceased Santhosh
had purchased 16 guntas of land in Sy.No.101/1 of
Jogannanakere Village. The defendants also took the contention
that said property has to be included in the suit in the event that
suit schedule properties are considered as joint family
properties. It is also contended that plaintiff No.2 had remarried
one Paramesh Gangadhar subsequent to the death of said
Santhosh and she is not entitled for share in the suit schedule
properties. The defendant No.3 took the contention that he is the
bonafide purchaser of the suit schedule properties. The Trial
Court having taken note of the pleadings of the plaintiffs and
defendants has framed the issues and allowed the parties to lead
evidence.
3. The wife of deceased Santhosh had examined herself
as PW1 and also examined the first plaintiff as PW2 and got
marked the documents Exs.P1 to P19. Defendant No.1 examined
himself as D.W.1 and subsequent purchaser who is defendant
No.3 also examined himself as D.W.2 and no documents are
produced before the Trial Court. The Trial Court having
considered both oral and documentary evidence comes to the
conclusion that suit schedule properties are joint family
properties and gift deed is not biding on the plaintiffs and also
the sale deed executed by defendant No.2 in favour of defendant
No.3 is also not binding on the plaintiffs and defence which have
been taken by the defendants answered as negative in coming to
the conclusion that there was no partition during the life time of
Santhosh and out of the said share he had purchased the
property and the said property cannot be included for partition
and also comes to the conclusion that remarriage of defendant
No.2 with one Paramesh Gangadhar has not disentitled her right
and comes to the conclusion that plaintiffs are entitled for 1/3rd
share in the suit schedule properties by metes and bounds and
also entitled for mesne profits.
4. Being aggrieved by the judgment and decree of the
Trial Court passed in O.S.No.53/2014, the defendants No.1 and
2 have filed an appeal and the same is numbered as
R.A.No.70/2017 and the First Appellate Court having considered
the grounds urged in the appeal formulated the points whether
the trial Judge has erred in holding that plaintiffs are entitled for
1/3rd share, whether the trial Judge erred in not holding that
Sy.No.101/1 is also a joint family property, whether the trial
Judge has erred in not holding that suit is bad for non-joinder of
necessary party i.e., wife of defendant No.1 is also necessary
party and entitled for share in the suit schedule properties and
whether the judgment of the Trial Court is erroneous, arbitrary
and illegal.
5. The First Appellate Court on re-appreciation of both
oral and documentary evidence comes to the conclusion that the
Trial Court has not committed an error in granting 1/3rd share.
However, the trial Judge reversed the finding of the Trial Court
answering point No.2 as affirmative that Sy.No.101/1 measuring
16 guntas is also a joint family property. The First Appellate
Court comes to the conclusion that suit is not suffers from non-
joinder of necessary party and mother is also not entitled for any
share and Trial Court judgment is modified answering point No.4
as partly affirmative and partly allowed the appeal and held that
appellants No.1 and 2 each are entitled for 1/3rd share and
respondents No.1 and 2 i.e. plaintiffs are also entitled for 1/3rd
share in Sy.No.101/1 measuring 16 guntas and confirmed the
other findings of the Trial Court. Being aggrieved of the
judgment of the First Appellate Court, the present second appeal
is filed by the appellant Smt.T.N.Susheelamma, who is the
mother of the deceased Santhosh and she also passed away
during the pendency of this R.S.A. and hence her daughter has
been transposed as the appellant.
6. The main grounds urged in the appeal is that the
judgment and decrees passed by the Trial Court as well as the
First Appellate Court are highly illegal, arbitrary and unjust and
both the Courts have failed to consider the fact that respondents
No.1 and 2 who are seeking the relief of partition, ought to have
directed to make the appellant as party to the proceedings as
she is the mother of the deceased shareholder and that she is a
necessary party and that she is also entitled to a share in the
share of deceased Santhosh. It is also contend that admittedly
the original appellant herein was not made as party before the
Trial Court and only on an application filed by the original
appellant in this appeal was impleaded as party to the
proceedings. When the First Appellate Court allowed the
application, but failed to consider the fact that mother of the
deceased is also entitled to a share in the property left by her
son Santhosh. It is contend that the original appellant is none
other than the mother of the deceased Santhosh and the suit
being one for partition and separate possession of the share of
late Santhosh and all the legal heirs are necessary parties to the
proceedings and the mother of the deceased is a Class-I heir as
per the schedule to the Hindu Succession Act and she is entitled
to the share of son and widow of the deceased male Hindu. The
First Appellate Court failed to consider the same and erroneously
comes to the conclusion that she is not a co-parcener and
original appellant has not claimed the share as a co-parcener in
the joint family property and as she has claimed that she is the
legal heir of deceased Santhosh and the same has not been
considered by the Trial Court. This Court having considered the
grounds urged in the appeal memo and heard the appellant's
counsel and admitted the appeal. While admitting the appeal this
Court framed the following substantial questions of law that arise
for consideration in this appeal:
i. Whether the First Appellate Court committed an
error in ignoring the fact that the ap herein was a
Class-I heir of deceased Santhosh, and therefore,
was entitled to claim his share along with plaintiffs
in the suit?
ii. Whether the First Appellate Court committed an
error in not allotting appropriate share to the
appellant herein?
and issued notice against the respondents.
The respondents are also appeared and represented
through counsel.
7. The counsel appearing for the appellant has
reiterated the grounds urged in the appeal. The counsel would
vehemently contend that the mother being the Class-I heir of
deceased Santhosh is entitled for a share along with wife and
son of the deceased Santhosh and the First Appellate Court
failed to consider the said fact and both the Trial Court as well as
the First Appellate Court comes to the conclusion that the
mother is not the co-parcener and the very approach of both the
Courts is erroneous.
8. The counsel also vehemently contend that during the
pendency of the appeal the appellant passed away leaving
behind her husband, daughter and also the son of the
predeceased son and hence, the daughter was transposed as
appellant and out of the share of the appellant they are all
entitled for a share in the property and hence to that extent this
Court has to modify the judgment and decree of the Trial Court
as well as the First Appellate Court.
9. The counsel appearing for the respondents in his
argument vehemently contend that when the share of the
mother was not allotted and before allotment of her share she
passed away, the question of granting any share in favour of the
transposed appellant and other her legal heirs does not arise and
they are not entitled for any share in the share of the mother,
since she passed away before the allotment of her share and
hence it does not requires any modification of the judgment and
decree of the Trial Court and hence, prayed this Court to dismiss
the appeal.
10. Having heard the arguments of the appellant's
counsel and also the counsel for the respondents this Court has
to consider the substantial questions of law framed by this Court.
11. I would like to consider both substantial question of
law for consideration in keeping the materials available on record
and also the grounds urged in the appeal, since both are
interconnected.
12. This Court has framed the substantial question of law
for consideration, whether the First Appellate Court committed
an error in ignoring the fact that the appellant herein was a
Class-I heir of deceased Santhosh, and therefore, she was
entitled to claim her share along with plaintiffs in the suit?
13. The second substantial question of law is with regard
to, whether the First Appellate Court committed an error in not
allotting appropriate share to the appellant herein and the said
substantial question of law is also interconnected with the first
substantial question of law.
14. Having considered both substantial questions of law,
whether the mother was a Class-I heir of the deceased Santhosh
and whether the appellant was entitled for a share along with
plaintiffs and hence taken up together both substantial questions
of law.
15. Having considered the material on record, it is not in
dispute that the original appellant Susheelamma is the mother of
the deceased Santhosh and also it is not in dispute that suit
schedule properties are belongs to the joint family and
defendants also took the contention that the property was
purchased in the name of deceased Santhosh, is also the
property of joint family. The said contention was turned down by
the Trial Court, but First Appellate Court reversed the said
finding in coming to the conclusion that the deceased Santhosh
was aged about 19 years at the time of purchasing the property
and he was not having his own independent and separate
income and First Appellate Court answered the point No.2 as
affirmative in coming to the conclusion that the said property is
also a joint family property.
16. I would like to make it clear that here also that the
plaintiffs 1 and 2 have not filed any appeal against the said
finding and hence it is clear that the suit schedule properties as
well as the claim of the defendants is that other property bearing
Sy.No.101/1 to the extent of 16 guntas is also a joint family
property and to that effect now there is no dispute.
17. Now the substantial question of law before the Court
is with regard to the fact that the original appellant is a Class-I
heir of deceased Santhosh and to that effect also there is no
dispute, since under the schedule the mother become the Class-I
heir of deceased Santhosh. Now the question before this Court is
with regard to the subsequent development after filing of the
present second appeal, the mother also passed away.
18. It is also not in dispute that the original appellant
was brought on record before the First Appellate Court on her
application and First Appellate Court while considering whether
she is entitled for a share in the property, while answering point
No.3 formulated whether suit is for non-joinder of necessary
party and whether she is entitled for a share, answered the
same as negative and the very approach of the Appellate Court
is erroneous. Once impleaded as party and she is also a Class-I
heir of the deceased Santhosh, ought not to have answered the
same as negative and she is also a necessary party to the said
suit, since the deceased passed away leaving behind the mother,
wife and son and they are the Class-I heirs of the deceased
Hindu male member of the joint family and the original appellant
herein is also entitled for a share in the property left by the
deceased Santhosh as Class-I heir and the very approach of the
First Appellate Court is erroneous.
19. The First Appellate Court while answering point No.3
mainly concentrated that appellants have not explained how the
mother became co-parcener in the present suit in the family of
parties to the suit, when defendant No.1 is alive.
20. No doubt, defendant No.1 who is the husband of the
original appellant of this appeal is alive and the First Appellate
Court lost sight of the fact that her son Santhosh passed away
prior to filing of the suit and as a result she became Class-I heir,
but the First Appellate Court comes to the conclusion that during
the life time of defendant No.1, in the suit for partition, she
cannot be considered as necessary party. The First Appellate
Court fails to take note of the fact that she became Class-I heir
on account of death of her son. No doubt her husband is alive,
but as soon as her son passed away, she became the Class-I
heir of the deceased son Santhosh and the same was not
considered by the Trial Court and erroneously proceeded that
mother cannot be considered as co-parcener and she cannot
claim any independent share in the ancestral and joint family
properties. The very approach of the First Appellate Court is also
erroneous since the original appellant in this appeal has not
claimed any independent share in the ancestral and joint family
properties as co-parcener and she has claimed the share out of
the share of her son Santhosh who passed away leaving behind
his mother who is the original appellant in this appeal and hence,
the very approach of the First Appellate Court that the original
appellant in this appeal is not a necessary party is erroneous and
also erroneously comes to the conclusion that she is not entitled
for share and the very approach of the First Appellate Court that
during the life time of Defendant No.1 i.e. husband of the
original appellant of this appeal is not entitled for a share is also
erroneous approach and hence this Court has to reverse the said
finding in coming to the conclusion that she is a Class-I heir and
she is also entitled for a share in the property left by her son
being the Class-I heir along with wife of the deceased and also
the son of the deceased.
21. Now the question before the Court is that the original
appellant also passed away during the pendency of this second
appeal leaving behind her husband, her daughter and also son of
the pre-deceased son.
22. The counsel appearing for the appellant also
vehemently contend that, on account of death of original
appellant her legal heirs are entitled for share out of her share
and hence this Court has to modify the judgment and decree of
the Trial Court and First Appellate Court.
23. The counsel appearing for the respondents would
vehemently contend that when the share of the original
appellant was not allotted and she passed away during the
pendency of this second appeal, question of allotting any share
in favour of the legal heirs left behind her does not arise and if
she is alive then this Court ought to have considered her claim
and it is only an enlargement of share among them and already
her husband got 1/3rd share in the suit schedule property and
her daughter also got 1/3rd share and deceased son legal heirs
have also got 1/3rd share and hence it does not require any
modification of the judgment and decree of the Trial Court and
the First Appellate Court.
24. Now the question before this Court whether they are
entitled for share in the property left by the original appellant
and the same enlarges the share of her husband and her
daughter and her grand son i.e. son of the said deceased
Santhosh.
25. It is not in dispute that she is passed away during
the pendency of the appeal and this Court also comes to the
conclusion that she is a Class-I heir of her deceased son
Santhosh and she is also entitled for a share in the property of
her son i.e. 1/3rd share of suit schedule property devolves upon
her son as a co-parcener. But the fact is that she also passed
away during the pendency of this appeal and whether it enlarges
the share of her husband, her daughter and her grand son. It is
also important to note that the Trial Court granted 1/3rd share in
respect of plaintiffs No.1 and 2 as they are the legal
representatives of the deceased Santhosh by collectively.
26. The second plaintiff is wife of the deceased
Santhosh. The son is the first plaintiff of the pre-deceased son
and property is undivided in the Co-parcenary property during
his life time and rightly Trial Court granted 1/3rd share towards
the deceased. It is also important to note that when the son
passed away, the plaintiffs ought to have made the mother as
party to the suit since, she became Class-I heir of the deceased
son, but they have not included her as party to the proceedings,
but voluntarily she has filed an application before the Appellate
Court and the same is allowed. But while considering her claim
the Appellate Court has rejected her claim as discussed above
and this Court already comes to the conclusion that she is
entitled for a share out of 1/3rd share of her son i.e. 1/9th. The
same has to be re-divided among her heirs in view of the
discussion below.
27. It is also important to note that when she passed
away during the pendency of this appeal, this Court has to
invoke Section 15 of the Hindu Succession Act, 1956 i.e. General
Rules of succession in the case of female Hindus: (1) The
property of a female Hindu dying intestate shall devolve
according to the rules set out in Section 16,- firstly, upon the
sons and daughters (including the children of any pre-deceased
son or daughter) and the husband.
28. In the case on hand, defendant No.1 get 1/3 share
as a co-parcener + 1/27 share as a legal heir of his wife, in total
entitled for 10/27. Defendant No.2 who is also entitled for 1/3
share as a co-parcener + 1/27 as legal heir of her mother, in
total she is entitled for 10/27. Plaintiff No.1 who is the son of
pre-deceased son, being the sharer of his father entitled for 1/9
share and as a heir of his grand mother entitled for 1/27 share,
in total he is entitled for 4/27 share and plaintiff No.2 who is the
wife of the deceased Santhosh is entitled for 3/27 share as a heir
of her husband and hence, this appeal requires to be allowed as
claimed by the appellant. Hence, I answer both substantial
question of law as affirmative.
29. In view of the discussions made above, I pass the
following:
ORDER
The appeal is allowed.
The judgment and decree of the Trial Court and the First
Appellate Court are modified granting 10/27 share each to
defendant Nos.1 and 2, 4/27 share to plaintiff No.1 and plaintiff
No.2 is entitled for 3/27 share and to draw the decree
accordingly.
The Registry is directed to send the Trial Court records to
the Trial Court forthwith.
Sd/-
JUDGE
AP
