Karnataka High Court
Smt. S. Asha vs Sri. Arjunappa on 1 February, 2024
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
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RFA No. 1904 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
REGULAR FIRST APPEAL NO. 1904 OF 2017 (PAR)
BETWEEN:
SMT. S. ASHA
W/O LATE NAGARAJA B A
AGED ABOUT 33 YEARS
R/AT BESIDE YOGANARASHIMA TEMPLE
SALIGRAMA K R NAGAR TALUK
MYSORE DISTRICT
...APPELLANT
(BY SRI. KAMALESHWARA POOJARY.,ADVOCATE)
AND:
Digitally signed by 1. SRI. ARJUNAPPA
HEMALATHA A S/O LATE BHEEMA GOWDA
Location: High
Court of AGED ABOUT 77 YEARS
Karnataka SINCE DEAD HIS LRS
ALREADY IN RECORDS
I.E., R3 TO R6.
2. SMT GOWRAMMA
W/O ARJUNAPPA
AGED ABOUT 60 YEARS
SINCE DEAD HER LRS
ALREADY IN RECORDS
I.E., R3 TO R6.
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RFA No. 1904 of 2017
3. SMT SUDHA
D/O ARJUNAPPA,
AGE MAJOR
4. SMT PADMA
D/O ARJUNAPPA,
MAJOR
5. SRI RAMESH
S/O ARJUNAPPA
AGE MAJOR
6. SMT VEENA
D/O ARJUNAPPA
AGE MAJOR
ALL ARE R/AT NO.2332
2OTH CROSS, K R ROAD
BANASHANKARI II STAGE
BENGALURU-70.
...RESPONDENTS
(NOTICE TO R1 TO R6 ARE SERVED
AND UNREPRESENTED)
THIS RFA IS FILED UNDER ORDER 41 RULE 1 READ
WITH SEC.96 OF CPC., AGAINST THE JUDGMENT AND
DECREE DATED 10.08.2017 PASSED IN OS NO.3297/2008
ON THE FILE OF THE XVII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU (CCH.16) DISMISSING
THE SUIT FOR PARTITION AND SEPARAE POSSESSION.
THIS APPEAL, COMING ON FOR FINAL HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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RFA No. 1904 of 2017
JUDGMENT
1. This appeal under Order 41 Rule 1 read with
Section 96 of CPC is filed by the appellant-plaintiff
challenging the judgment and decree dated 10.08.2017
passed by the XVII Addl. City Civil and Sessions Judge,
Bangalore City in O.S.No.3297/2008, whereby the suit
filed by the plaintiff has been dismissed with costs.
2. For the sake of convenience, the parties are
referred to as per their ranking before the Trial Court in
the original suit.
3. Brief facts of the case:
a) The defendant No.1 is the kartha of the joint family
and he had inherited the suit schedule properties. In
fact, the father of defendant No.1, namely, Late Bheema
Gowda had inherited several properties mentioned in the
schedule of the plaint and thereafter, the same was
transferred in the name of defendant No.1, since he was
the eldest son in the joint family and hence, the
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properties stands in the name of defendant No.1 on
behalf of the joint family. Out of wedlock of defendant
No.1 and defendant No.2, Late B.A.Nagaraja (husband
of the plaintiff), defendant Nos.3 to 6 were born. The
marriage of the plaintiff and B.A.Nagaraja was
solemnized on 26.03.1995 at Allamma Kalyana
Mantapa, Vinobha Road, Mysore. Unfortunately,
B.A.Nagaraja met with a road accident on 03.09.1995
and succumbed to injuries on the same day. Thereafter,
plaintiff and defendant Nos.1 and 2 filed a claim petition
before the concerned MACT, Bangalore seeking
compensation. During the pendency of the claim
petition, the plaintiff got remarried on 13.12.1996.
Hence, the Tribunal disallowed the compensation to the
plaintiff and against which, the plaintiff preferred MFA
No.1037/2005 before this Court and this Court was
pleased to allow the said appeal on 08.10.2009. The
further case of the plaintiff is that since the plaintiff has
legitimate share in the suit schedule properties, she
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demanded her share from defendants. Since the
defendants denied her share, she has filed the suit for
partition and separate possession claiming 1/7th share in
the suit schedule properties.
b) On service of suit summons, defendant No.1 filed
written statement and except admitting the relationship
of the parties, he has denied the entire plaint
averments. He contended that suit 'A' schedule property
is his self-acquired property for having acquired the
same by virtue of a grant from BDA; out of his own
earnings and savings from his salary and by availing
loan, he has put construction over the same. In respect
of suit 'B' schedule properties are concerned, they are
his personal properties and in fact the above properties
belonged to one Smt.Mallamma, who is the sister of his
father and she had inturn gifted the same in his favour
through registered gift deed. Since the plaintiff got
remarried, she has no right or interest over the suit
schedule properies.
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c) Defendant Nos.2 and 3 have filed written
statement contending that plaintiff has remarried after
the death of B.A.Nagaraja. They contended that the suit
schedule properties are self acquired properties of
defendant No.1. Hence, the plaintiff is not entitled for
any share in the properties. Accordingly, they sought for
dismissal of the suit.
d) On the basis of the pleadings of the parties, the
Trial Court framed the following issues:
1. Whether the plaintiff proves that the suit is
maintainable as she remarried?
2. Whether the plaintiff is entitled for releifs as
sought for?
3. What order or decree?.
e) To prove the case, the plaintiff has examined her
GPA holder, S.S.Chandrashekar as PW-1 and produced
11 documents, marked as Exs.P-1 to 11. On behalf of
the defendants, defendant No.1 has been examined as
DW-1 and one document has been produced as Ex.D-1.
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On appreciation of oral and documentary evidence, the
Trial Court has answered issue Nos.1 and 2 in the
negative and accordingly dismissed the suit. Being
aggrieved by the same, the plaintiff has filed this
present appeal.
4. The learned counsel for the appellant-plaintiff has
contended that during the pendency of this appeal,
defendant Nos.1 and 2 expired leaving behind the
plaintiff and remaining defendants as their legal
representatives. When the suit was filed, the plaintiff
had claimed 1/7th share in the suit schedule properties
and since defendant Nos.1 and 2 died during the
pendency of this appeal, she is now entitled to 1/5th
share in the suit schedule properties. Secondly, he has
contended that thes husband of plaintiff died on
03.09.1995. After the death of her husband in a road
accident, she got remarried on 13.06.1996. However, on
the date of death of husband of the plaintiff, the
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succession is open and plaintiff has right to claim right in
the suit schedule properties as a family member. He
further contended that in view of Section 4 of the Hindu
Succession Act, 1956, which has a over riding effect on
the provisions of the Hindu Widows' Remarriage Act.
Since the plaintiff got remarried after the death of her
husband, she has right to claim partition in the suit
schedule properties, which belongs to joint family of her
husband and defendants. In support of his contention,
he has relied upon the judgment of this Court in the
case of Aruna @ Savita and Another -v- Madhavva and
others (ILR 2005 KAR 5736) and decision of the Apex
Court in the case of Revanasiddappa and another -v-
Mallikarjun and Others (Civil Appeal No.2844/2011
disposed on 1.9.2023). Hence, he sought for allowing
the appeal.
5. Respondents-defendants are served and
unrepresented.
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6. Heard the learned counsel for the appellant and
perused the judgment and decree of the Trial Court and
original records.
7. After hearing the learned counsel for the appellant,
the point that arises for consideration in this appeal is:
"Whether the Trial Court is justified in
dismissing the suit in the facts and
circumstances of the case?".
4. It is not in dispute that defendant No.1 is the
kartha of the joint family and defendant No.2 is his wife;
defendant Nos.3, 4 and 6 are daughters and defendant
No.5 and B.A.Nagaraja (husband of plaintiff) are the
sons of defendant Nos.1 and 2. It is also not in dispute
that plaintiff was married to Mr.B.A.Nagaraja on
26.03.1995. The said B.A.Nagaraja died in the road
accident on 03.09.1995. He died without any issues.
After his death, plaintiff got remarried on 13.06.1996.
Since the defendants denied to give share to the plaintiff
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in the suit schedule properties, the plaintiff filed the suit
for partition and separate possession claiming 1/7th
share in the suit schedule properties. After hearing the
parties, the Trial Court dismissed the suit. Being
aggrieved by the same, the plaintiff filed this appeal.
During the pendecy of this appeal, defendant Nos.1 and
2 died and hence, the plaintiff is claiming 1/5th share in
the suit schedule properties. The Trial Court has
dismissed the suit only on the ground that the plaintiff
got remarried after the death of her husband and hence,
she is not entitled for any share in the properties. This
finding of the Trial Court is contrary to the provisions of
the Hindu Succession Act. In similar circumstances, this
Court in the case of Aruna @ Savita (supra) (ILR 2005
KAR 5736) has held as follows:
10. In view of the aforesaid specific provision under
the Hindu Succession Act, it is clear that
the provisions of Section 2 of the Hindu Widow
Remarriage Act, 1856, relied upon by the First
Appellate Court has no force of law and as
per Section 4 of the Hindu Succession Act, 1956, the
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said Act overrides the provision of Law prior to its
commencement. It is clear that for disqualification,
the widow should have remarried when the
succession opens and the succession would open on
the death of the husband and in the present case,
the succession opened on 13.4.86, the date on which
the husband of the first defendant died and it is not
disputed that on 13.4.86, the First defendant was not
remarried. Therefore, the finding of the First
Appellate Court that in view of the provisions of
Section 2 of the Hindu Widow Remarriage Act,
1856, the First defendant is not entitled to succeed
to the suit properties is clearly illegal and contrary to
the provisions of Section 24 of the Hindu succession
Act and hence, the same in liable to be set aside and
accordingly, I answer the substantial question of law
No. 2 in the negative. It is not in dispute that the
schedule properties were joint family properties. The
share to which Madhavva (the original plaintiff)
would be entitled to has been correctly calculated by
the First Appellate Court as it is clear from the
admitted facts that Bharamappa died on 18.8.63 (i.e,
after coming into force of the Hindu Succession
Act) leaving behind his wife Madhavva, two
daughters and a son and therefore, in view
of Section 6 of the Hindu Succesion Act, if there was
notional partition between Bharamappa on the date
of his death, the property has to be divided between
Bharamppa and his son Mahaveer and since in a
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partition between father and son, the mother will
have a share, all the three i.e, Bharamappa,
Madhavva and their son Mahaveer would be entitled
to 1/3 share each and out of 1/3 share of
Bharamappa, his wife and children will succeed as
they are Class-1 heirs and defendants 2 and 3 gets
1/12 share each Madhavva and Mahaveer gets 1/3 +
1/12 = 5/12 share each. Mahaveer predeceased his
mother as he died on 13.4.86 leaving behind his
wife-Aruna @ Savitha, defendant No. 1 and his
mother-Madhavva the original plaintiff) and since
both of them are Class-1 heirs, they will succeed to
5/12 share of Mahaveer in the suit properties and
therefore, Madhavva and defendant No. 1 will get
5/24 share each. Therefore, the share to which
Madhavva (the original plaintiff) would be entitled to
is 5/12 + 5/24 = 15/24 (i.e 5/8) share and
defendant No. 1 would get 5/24 share and
defendants 2 and 3 would be entitled to 2/24 share
and therefore, it is clear that the finding of the first
appellate Court that the original plaintiff Madhavva is
entitled to 5/8 share and not 5/12 share as decided
by the Trial Court is correct. However, so far as the
finding of the First Appellate Court that the
respondent who has come on record as a legal
representative is entitled to succeed to 5/8 share of
Madhavva is clearly perverse and arbitrary. Sri
Siddarth @ Anilkumar, the legal representative of
Madhavva (the original plaintiff) claims that he is her
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adopted son and that she had executed a Will in his
favour as propounded by him the First Appellate
Court allowed the legal representative to lead
additional evidence and the additional evidence has
been adduced as the material on record clearly
shows that exhibit P18 to 27 were got marked and
P.Ws 4 to 7 were examined and D.W 3 was also
examined. However, while considering the question
as to who succeeds to 5/8 share of Madhavva (the
original plaintiff), the First Appellate Court has not
given any finding as to whether the legal
representative has proved that he is the adopted son
of Madhavva and he has succeded to her right by
virtue of Will executed by her which he has
propounded. The findings on the questions as to
whether the legal representative is the adopted son
of Madhavva and succeeds to 5/8 share Madhavva in
view of the Will propounded by him is essential as
the same would decide the question as to who
succeeds to the right of Madhavva and therefore, it
would be a substantial question which would decide
the lis between the parties as to who succeeds to 5/8
share of Madhavva. The legal representative would
succeed to 5/8 share of Madhavva (the original
plaintiff) only if he proves the execution of Will by
her in his favour, failing which the defendants 2 and
3, the daughters of Madhavva would succeed to her
5/8 share suit property. In the absence of any
finding to that effect, it is clear that the finding given
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by the First Appellate Court that the legal
representative would be entitled to the share of
Madhavva is clearly perverse and arbitrary for non-
consideration of the essential question as to whether
the legal representative has proved that he is the
adopted son of Madhavva (the original plaintiff) and
he has succeeded to her property by virtue of the
Will executed by her in his favour. Therefore, it is
clear that the finding of the First Appellate Court that
the legal representative would succeed to the right of
Madhavva without giving a finding on his adoption
and execution of will propounded by him cannot be
sustained and mere fact that he is brought on record
as a legal representative of Madhavva would not
prove his adoption and execution of Will as he is not
a natural heir of Madhavva and claims to be the
adopted son and beneficiary under the Will
propounded by him. Accordingly, I answer the
substantial question of law No. 3 in the Affirmative.
In view of the fact that the First Appellate Court
being a final Court on the question of law has failed
to give findings on the additional evidence recorded
regarding adoption and due execution of Will
propounded by the legal representative of Madhavva
(the original plaintiff), it is clear that the matter is
liable to be remitted back to the First Appellate Court
with a direction to give a finding on the claim made
by the legal representative that he is the adopted
son of Madhavva and would succeed to the property
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of Madhavva and decide the matter in accordance
with law.
5. In the case on hand, the plaintiff was married to
Mr.B.A.Nagaraja, who is the son of defendant Nos.1 and
2 on 26.03.1995 and the said Nagaraja died in the road
accident on 03.09.1995. Admittedly, the plaintiff got
remarried on 13.12.1996 after the death of her husband
and the succession was open when Nagaraja died on
03.09.1995 and the plaintiff got remarried only after the
death of her husband.
6. In view of the judgment of this Court and judgment
of the Apex Court cited above, the plaintiff is entitled for
share in the joint family properties. The finding of the
Trial Court that the suit is not maintainable since the
plaintiff got remarried, is unsustainable. Even though
the defendants have filed written statement and denied
that the suit schedule properties are not joint family
properties and they are self acquired properties of
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defendant No.1, the Trial Court has not framed any
issues in that regard.
7. Under the circumstances, the appeal is liable to be
allowed by setting aside the judgment and decree
passed by the Trial Court and matter requires to be
remanded to the Trial Court for reconsideration. Hence,
the following order is passed:
ORDER
a) The appeal is allowed in part.
b) The judgment and decree dated
10.08.2017 passed by the XVII Addl. City
Civil and Sessions Judge, Bangalore City
in O.S.No.3297/2008, is set aside.
c) The matter is remanded to the Trial Court
with a direction to the Trial Court to
reconsider the matter in accordance with
law after giving opportunity to the parties.
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d) The Trial Court is directed to dispose of
the suit as expeditiously as possible, not
later than six months from the date of
recipe of copy of this judgment.
Sd/-
JUDGE
DM
