Karnataka High Court
Basawwa W/O Basappa Baligar vs Satteppa Nilappa Itnal on 26 July, 2024
1
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 26TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR. JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 2620 OF 2007
C/W
REGULAR SECOND APPEAL. CROB NO. 54 OF 2012
IN RSA NO. 2620 OF 2007
BETWEEN
SATTEPPA NILAPPA ITNAL,
AGE: MAJOR, OCC: AGRICULTURE,
RESIDIENT OF BILAKUNDI,
TALUK: GOKAK-591307.
DIST: BELGAUM.
...APPELLANT
(BY SRI DINESH M. KULKARNI, ADVOCATE)
AND
BASAWWA W/O BASAPPA BALIGAR,
AGE: 44 YEARS, OCC: HOUSEHOLD WORK,
R/O BILAKUNDI-591307.
TALUK: GOKAK, DIST: BELGAUM.
...RESPONDENT
(SHRI VITTAL S. TELI, ADVOCATE)
THIS RSA IS FILED U/S.100 OF CPC, PRAYING TO SET ASIDE THE
JUDGMENT AND DECREE PASSED IN O.S.NO.378/1998 PASSED BY THE
ADDITIONAL CIVIL JUDGE, (JR.DN.), GOKAK, DATED 15.12.2001 AND
JUDGMENT AND DECREE PASSED BY PRL. CIVIL JUDGE (SR.DN.),
2
GOKAK IN R.A.NO.17/2002, DATED 06.09.2007 IN SO FAR AS
SCHEDULE-A' PROPERTY IS CONCERNED AS NUL AND VOID.
IN RSA.CROB.54/2012
BETWEEN
BASAWWA W/O BASAPPA BALIGAR,
AGE: 44 YEARS, OCC: HOUSEHOLD WORK,
R/O BILAKUNDI-591307.
TALUK: GOKAK, DIST: BELGAUM.
...CROSS OBJECTOR
(BY SRI VITTHAL S. TELI, ADVOCATE)
AND
SATTEPPA NILAPPA ITNAL,
AGE: MAJOR, OCC: AGRICULTURE,
RESIDIENT OF BILAKUNDI,
TALUK: GOKAK-591307.
DIST: BELGAUM.
...RESPONDENT
(SRI. DINESH M.KULKARNI, ADVOCATE)
THIS RSA.CROB IS FILED U/O 41 RULE 22 OF CPC, PRAYING TO
SET ASIDE THE JUDGMENT AND DECREE PASSED IN O.S.NO. 378/1998
PASSED BY THE ADDITIONAL CIVIL JUDGE (JR.DN.), GOKAK, DATED
15.12.2001 AND JUDGMENT AND DECREE PASSED BY PRL. CIVIL JUDGE
(SR.DN.), GOKAK IN R.A.NO.17/2002, DATED 6TH SEPTEMBER 2007 IN
SO FAR AS SCHEDULE-A' PROPERTY IS CONCERNED.
THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 25.07.2024 COMING ON FOR 'PRONOUNCEMENT OF
JUDGMENT' THIS DAY, THE COURT DELIVERED THE FOLLOWING:
3
JUDGMENT
The present second appeal is filed under Section 100 of Code of
Civil Procedure, 19081 by defendant No.2 challenging the
judgment and decree dated 06.09.2007 passed in R.A.
No.17/2022 by the Prl.Civil Judge (Sr.Dn.), Gokak2 and the
judgment and decree dated 15.12.2001 passed in OS
No.378/1998 by the Addl. Civil Judge (Jr.Dn.) Gokak3 whereunder
the suit for partition has been partly decreed by the trial Court
holding that the plaintiff is entitled for 1/11th share in the suit
properties and the first appellate Court in the appeal filed by
defendant No.2 has modified the share and also held that
defendant No.1 is entitled to 2/11th share and defendant Nos.2
and 3 are entitled to 4/11th share.
2. The Cross objection is filed by the plaintiff seeking for
an equal share.
3. For the sake of convenience, the parties herein are
referred as per their rank before the Trial Court.
Hereinafter referred to as 'CPC'
Hereinafter referred to as the 'first appellate Court'
Hereinafter referred to as the 'Trial Court'
4. It is the case of the plaintiff that propositus Laxmappa
had two sons viz., Nilappa and Sateppa. That Sateppa was
unmarried and he died without any legal heirs. That the plaintiff
is the daughter of Nilappa, defendant Nos.2 and 3 are his sons.
5. It is the further case of the plaintiff that defendant No.3 has
gone in adoption to one Basavva who is a stranger to the family of
plaintiff and defendants. That defendant Nos.2 and 3 are addicted
to bad vices and in order to protect her legitimate share, the
plaintiff sought for partition which was denied. That plaintiff and
defendants were jointly cultivating the land and out of joint
income nucleus, other properties are purchased. Hence, the
plaintiff filed a suit for partition.
6. The defendants entered appearance and contested the suit. It
was contended that defendant No.3 had gone in adoption to
Satteppa who is the younger brother of Nilappa and he has got ½
share in the suit properties and defendant Nos.1 and 2 have got
their share in the suit properties. It is further contended that out
of the properties involved in the suit, only block Nos.30 and 343a
are the ancestral properties and they are most infertile lands and
the income derived from these lands are not sufficient to
purchase the other properties. That defendant Nos.2 and 3 along
with their sons have purchased the properties out of their income.
That the properties at Sl. Nos.1, 3, 5, to 7 are the exclusive and
self acquired properties of defendant Nos.2 and 3 as also the
schedule 'B' properties are self acquired properties of Defendant
Nos.2 and 3.
7. It is further contended that the father of the plaintiff
and defendant Nos.2 and 3, Nilappa died on 03.03.1950. Hence
plaintiff was not entitled to a share since the provisions of Hindu
Succession Act, 19564 are not applicable in the year 1950. That
the plaintiff has not included all the properties in the suit. Hence,
the defendants sought for dismissal of the suit.
8. Consequent to the pleadings of the parties, the trial Court
framed the following issues for consideration:
i) "Whether the plaintiff proves that suit
properties are Joint Hindu Family
properties of herself and defendants?
ii) Whether the plaintiff proves her joint
possession over suit properties with
defendants?
Hereinafter referred to as 'Act, 1956'
iii) Whether defendants prove that landed
properties Sl.No.1,3,5 to 7 and house
property are their self-acquired properties?
iv) Whether the suit is bad for not bringing all
the joint family properties in single
hotchpot?
v) Whether the plaintiff is entitled for the
relief of partition & separate possession as
sought for?
vi) What Decree/order?"
9. Plaintiff examined herself as PW.1. Two witnesses
have been examined as PWs.2 and 3. Exs.P1 to P15 have been
marked in evidence. Defendant No.2 is examined as DW.1 and
got examined two witnesses as DWs.2 and 3. Exs.D1 to D76 have
been marked in evidence. The trial Court by its judgment and
decree dated 15.12.2001 has decreed the suit and passed the
following order:
"Suit is hereby decreed as under:
Plaintiff is entitled for 1/11th share in
the suit properties and she is entitled for
separate possession thereof by way partition
by metes and bounds.
No order as to costs."
10. Being aggrieved, defendant No.2 preferred R.A.
No.17/2002. The plaintiff entered appearance before the first
appellate Court and contested the same. The first appellate Court
framed the following points for consideration:
"i. Whether the plaintiff proves that all the
suit schedule properties are the joint Hindu Family
properties of herself and the defendants?
2. Whether the plaintiff is entitled for share in
the suit schedule properties?
3. Whether the defendants prove that the
properties at Sl.Nos.1, 3 5 to 7 of schedule 'A' and
House property at schedule 'B' are their self-
acquired properties?
4. Whether the plaintiff is entitled for
partition and separate possession of her share in
the suit properties?
5. Whether the judgmetn and decree of the
trial Court is erroneous and requires interference
from this Court?
6. What order or decree?"
11. The first appellate Court by its judgment and decree
dated 06.09.2007, allowed the appeal in part and passed the
following order:
"The Regular Appeal preferred by the
appellant U/O 41 R.1 of CPC is allowed in
part.
The Plaintiff/respondent No.1 is
entitled for 1/11th share in the landed
properties only described in schedule 'A'.
Further the plaintiff is entitled for partition
and separate possession of her 1/11th share
in the suit schedule 'A' properties as per
Sec.54 of C.P.C.
Further the defendant No.1 is entitled
for 2/11th share and defendants 2 and 3 are
entitled for 4/11th share each in the suit
schedule 'A' properties. Further the
defendants 1 to 3 are entitled for equal share
in the suit schedule 'B' house properties.
Draw decree accordingly."
12. Being aggrieved, the present second appeal is filed.
This Court vide order dated 02.08.2012 admitted the appeal and
framed the following substantial questions of law:
"i) Whether the first respondent/plaintiff
would be entitled to a share in the suit
properties, when her father Neelappa died
prior to coming into force of the Hindu
Succession Act, 1956?
ii) Whether the first respondent/plaintiff is
entitled to her share by virtue of Section 8 of
the Mysore Hindu Law Women's Rights Act,
1933?"
12.1 This Court vide order dated 23.07.2024 admitted the Cross
objection and framed the following substantial questions of law:
i) Whether both the Courts erred in not
granting equal share to the plaintiff in the suit
properties having regard to Section 6 of the
Hindu Succession (Amendment) Act, 2005.
13. Leaned counsel for the appellant/defendant No.2
Sri Dinesh M. Kulkarni, assailing the judgments passed by the
trial Court and the first Appellate Court vehemently contends that
the father of the plaintiff and defendant Nos.2 and 3 having been
died in the year 1950, the provisions of the Act, 1956 will not
apply and the plaintiff will not entitle to her share. Further it is
contended that the plaintiff also not entitled to her share under
the provisions of the Hindu Law Women's Rights Act (Karnataka)
(Act 10 of 1933)5.
14. Per contra, learned counsel for respondent/plaintiff Sri
Vittal M. Teli submits that for the purpose of determining the
share, the death of the father of plaintiff and defendant Nos.1 and
2 is not relevant and instead the birth of the plaintiff it is relevant.
Further, in support of the cross objection he submits that the
plaintiff is entitled to share in the suit property.
15. Both the learned counsels have relied on various
judgments which shall be referred to in the course of this
judgment to the extent that the same are necessary for
adjudication of the issues that arise for consideration.
16. The submissions made by both the learned counsels
have been considered and the material on records including the
records of the trial Court and the first Appellate Court have been
perused.
17. The relationship of the parties is undisputed.
Admittedly, the father of the plaintiff and defendant Nos.2 and 3
namely, Nilappa died on 3.3.1950 prior to coming into force of
the Act of 1956.
18. The trial Court while considering issue No.5 that since
the father of plaintiff and defendant Nos.2 and 3 having died prior
Hereinafter referred to as the Act of 1933
to coming into force the Act of 1956, held that the plaintiff is not
entitled to share under the Act of 1956, but was entitled to share
under Section 8(1)(b) of the Act of 1933. Hence, the trial Court
awarded 1/11th share in the suit property.
19. The first appellate Court held that, the plaintiff was
entitled to a share under Section 8(1)(b) of the Act, 1933 and
hence held as follows:
"Looking to the principles of the above decisions it is
clear that in the present case the plaintiff was
unmarried on the date of death of her father and
provisions of Sec.8(1)(b) of Act 33 are applicable to
her. Further As per Sec. 14 (1) of Hindu Succession
Act she is entitled to a share in the suit properties.
Therefore considering the evidence of both the
parties, the suit schedule properties are the joint
family properties and the plaintiff is deemed to be in
joint possession of her share. Therefore as per the
provisions of Act. 33 defendants 2 and 3 will get
equal share, defendant No.1 will get one half share
and plaintiff will get one fourth share what the
defendants 2 and 3 will get. Therefore the plaintiff
will get, 1/11th share, defendant No.1 will get 2/11th
share and defendants 2 and 3 will get 4/11th share
each in the suit schedule 'A' landed Properties. The
suit schedule 'B' is the house property and plaintiff
has already married and residing in her husbands
house. Therefore she is not entitled for share in the
house property. Hence I answer points 1 & 2 in the
affirmative and point No.3 in the negative.
20. It is forthcoming that the Hon'ble Supreme Court in
the case of Eramma Vs. Veerupana and Others6 relied upon by
the learned counsel for the appellant held as follows:
4. There is nothing the language of this section to
suggest that it has retrospective operation. The
words "The property of a male Hindu dying
intestate'' and the words "shall devolve"
occurring in the section make it very clear that
the property whose devolution is provided for by
that section must be the property of a person who
dies after the commencement of the Hindu
Succession Act. Reference may be made, in this
connection, to S.6 of the Act which states:
"When a male Hindu dies after the
commencement of this Act, having at the time of
his death an interest in a Mitakshara
comparcenary property, his interest in the
property shall devolve by survivorship upon the
AIR 1966 SC 1879
surviving members of the coparcenary and not in
accordance with this Act:
Provided that if the deceased had left him
surviving a female relative speficied in class I of
the Schedule of a male relative specified in that
class who claims through such female relative,
the interest of the deceased in the Mitakshara
coparcenary property shall devolve by
testamenrary or interstate succession as the case
may be under this Act and not be survivorship.
5. It is clear from the express language of the
section that it applies only to coparcenary
property of the male Hindu holder who dies after
the commencement of the Act. It is manifest
that the language of S.8 must be construed in the
context of S.6 of the Act. We accordingly hold
that the provisions of S.8 of the Hindu Succession
Act are not retrospective in operation and where a
male Hindu died before the Act came into force
i.e., where succession opened before the Act,
Section.8. of the Act will have no application.
(emphasis supplied)
21. Further, a Co-ordinate Bench of this Court in the case
of Annamma V. Pattamma7 considering the devolution under
the Act of 1933 has held as follows:
18. According to me, even if Sections 6(2) and 4
read with Section 3(j) of the Act are read together,
by virtue of chinnappa Mudaliar's death (1) the
succession will be, only in the order as mentioned
in Section 6(2) of the Act viz., male or female and
not male and female, Secondly, order of succession
shall be, in case, a male dies intestate, succession
is first by son who excludes widow. If son is dead,
widow succeeds and if both are dead then
daughter, Widow excludes daughter and if son and
widow are absent then daughter succeeds.
(emphasis supplied)
22. The fact situation that in the present case is
undisputed that propositus Nilappa died on 03.03.1950. Having
regard to the settled position of law as aforemtntioned and in view
ILR 1991 KAR 1696
of the admitted position that Nilappa was survived by his sons i.e.,
defendant Nos.2 and 3, even under the Act, 1933, the plaintiff will
not be entitled to any share in the suit property.
23. Although it is the vehement contention of the leaned
counsel for the respondent-plaintiff relying on the judgment of the
Hon'ble Supreme Court in the case of Vineeta Sharma Vs.
Rakesh Sharma and others8, as well as a co-ordinate Bench of
this Court in the case of Banappa S/o. Basappa Angol (died
rep. by his legal representatives) and another Vs.Smt.
Gangavva W/o. Mahaveer Mutagi9, having regard to the
settled proposition of law as held in the case of Eramma6, the
father of the plaintiff and defendant Nos.2 and 3 having been died
in the year 1950 prior to coming into force the Act, 1956, the
question of the plaintiff being entitled to a share in his property
does not arise. The case of Vineeta Sharma8 has application to a
case where succession opens after the Act of 1956 comes into
force.
24. In the present case, upon the death of Nilappa, the
joint family of the plaintiff and defendants came to end and
AIR 2020 SC 3717
succession having opened, prior to coming into force of the Act of
1956, the question of the plaintiff being entitled to a share under
the Act of 1956 does not arise.
25. Considering as to whether the plaintiff is entitled to a
share under the Act of 1933 in view of the clear interpretation as
to the manner of devolution of the share as contemplated under
the Act of 1933, having regard to the fact that judgment of this
Court in the case of Amramma defendant Nos.2 and 3 who are
the sons of Nilappa are alive, it is clear that they succeed to the
share of their fathers and the plaintiff is not entitled to a share.
26. Various others factual aspects have been also noticed
i.e., with regard to the adoption of defendant No.3 are also
putforth. However, the said aspect would not arise since
defendant No.3 is stated to have died on 25.05.2018.
27. Further, the contention as to whether all the suit
properties are ancestral properties or self acquired properties also
will not arise for adjudication in view of the clear position of law
as noticed above.
R.A. No.4219/2013- DD 14.08.2023 - High Court of Karnataka, Dharwad Bench
28. Hence, the substantial questions of law Nos.1 and 2
framed in RSA No.2620/2007 are answered in the Negative. In
view of the same, question of answering the substantial question
of law framed in cross objection No.54/2012 does not arise.
In view of the aforementioned, the following order is
passed:
ORDER
i) RSA No.2620/2007 is allowed and RSA CROB
No.54/2012 is dismissed;
ii) The judgment and decree dated 06.09.2007
passed in R.A. No.17/2022 by the Prl.Civil
Judge (Sr.Dn.), Gokak is set aside;
iii) The judgment and decree dated 15.12.2001
passed in OS No.378/1998 by the Addl. Civil
Judge (Jr.Dn.) Gokak is set aside;
iv) O.S.No.378/1998 on the file of the Addl. Civil
judge (Jr.Dn.), Gokak is dismissed.
v) Parties to bear their respective costs.
Sd/-
JUDGE
BS
