Karnataka High Court
Smt Jagavathi G Salian vs Smt Kamalakshi R Suvarna Since Dead By ... on 10 June, 2024
Author: V Srishananda
Bench: V Srishananda
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NC: 2024:KHC:20375
RSA No. 2337 of 2010
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF JUNE, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
REGULAR SECOND APPEAL NO.2337 OF 2010 (DEC/INJ)
BETWEEN:
SMT. JAGAVATHI G. SALIAN
AGED ABOUT 86 YEARS
D/O. LATE SEETA BAI
RESIDING AT TASHKENT HOUSE
NEAR LIGHT HOUSE, KAUP POST
PADU VILLAGE, UDUPI TALUK
UDUPI DISTRICT.
...APPELLANT
(BY SRI K. PRASANNA SHETTY, ADVOCATE)
AND:
1. SMT. KAMALAKSHI R SUVARNA
SINCE DEAD BY HER LRS
Digitally
signed by 1(a) SMT. LEELAVATHI UMANATH
MALATESH AGED ABOUT 56 YEARS
KC D/O. LATE KAMALAKSHI R SUVARNA
Location: R/AT NO.3, SUNDAR PRASAD
HIGH
COURT OF SANEGURUJI NAGAR
KARNATAKA NAVGHAR ROAD, MULUND EAST
MUMBAI-400 081.
2(b) SRI. RAVINDRA R SUVARNA
AGED ABOUT 54 YEARS
S/O. LATE KAMALAKSHI R SUVARNA
R/AT NO.B-107, VIKAS TOWERS
MOGRA VILLAGE, ANDHERI EAST
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RSA No. 2337 of 2010
MUMBAI-400 069.
1(c) SMT. SUMATHI D POOJARY
AGED ABOUT 52 YEARS
D/O. LATE KAMALASKHI R SUVARNA
R/AT FLAT NO. 16, 3RD FLOOR
GOLDEN ARCH, NEAR SJAMTJO ASHARAM
BORIVILI WEST, MUMBAI-400 103.
1(d) SRI DINESHCHANDRA R SUVARNA
AGED ABOUT 46 YEARS
S/O. LATE KAMALAKSHI R SUVARNA
JEEVAN TERRACE, FLAT NO.11
JEEVAN BIMA NAGAR, BORIVILI WEST
MUMBAI-400 003.
2. SRI VISHWANATHA KAUP
DEAD
S/O. LATE SEETHA BAI
R/AT EKTA APARTMENTS
AL/5, BUILDING 19, ROOM NO.1
SECTOR - 17, IROLI, THANA DISTRICT
MUMBAI.
2(a) SMT. YASHODHA V.
AGED ABOUT 70 YEARS
W/O. LATE VISHWANATHA KAUP
R/AT MOTI CO-OPERATIVE HOUSING SOCIETY
FLAT NO.5, 1ST FLOOR
OPP: SHIVAJI HOSPITAL, THANE-BELAPUR
KALWA (W) THANE-400 605.
2(b) SMT. LATHA SUDHAKAR
AGED ABOUT 45 YEARS
W/O. SUDHAKAR
OM SAI SHRADA CHS
R.NO. A-201, SHASTRI NAGAR
KALWA-NAKA
KALWA (W) THANE-400 605.
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RSA No. 2337 of 2010
2(c) SMT. MOHITA NAVEEN
AGED ABOUT 43 YEARS
W/O. NAVEEN
OM AMRUIT PARK
SAHAKARI GRAH NIRMAN SANSTHA
R.NO. B-307, IIIRD FLOOR
SHASTRI NAGAR
KALWA (W) THANE-400 605.
2(d) SMT. KAVITHA KIRAN
AGED ABOUT 40 YEARS
W/O. KIRAN
OM AMRUIT PARK
SAHAKARI GRAH NIRMAN SANSTHA
R.NO. B-307, IIIRD FLOOR
SHASTRI NAGAR
KALWA (W) THANE-400 605.
3. SMT. BHAVANI A KOTIAN
AGED ABOUT 68 YEARS
D/O. LATE SEETHA BAI
R/AT NO.11, KAVERI BUILDING
ROAD NO.3, CHADDA NAGAR CHAMBUR
MUMBAI-400 089.
...RESPONDENTS
(BY SRI M. D. RAJKUMAR, ADVOCATE FOR
SRI SHARAN K. J., ADVOCATE FOR R1-B,C,D;
R3-SERVED;
VIDE ORDER DATED:14.12.2022 NOTICE TO R2(A) AND R2(B)
ARE SERVED BY WAY OF PAPER PUBLICATION;
R2(A), R2(B), R2(C), R2(D) SERVED)
THIS RSA FILED UNDER SEC.100 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 1.6.2010 PASSED IN
R.A.NO.36/2002 ON THE FILE OF THE ADDL. SENIOR CIVIL
JUDGE, UDUPI, ALLOWING THE APPEAL AND SETTING ASIDE
THE JUDGMENT AND DECREE DATED 28.2.2002 PASSED IN
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RSA No. 2337 of 2010
O.S.NO.235/1999 ON THE FILE OF THE PRL. CIVIL JUDGE
(JR.DN) UDUPI.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard Sri K. Prasanna Shetty, learned counsel for the
appellant and Sri Sharan K.J., appearing on behalf of Sri
M.D.Rajkumar, counsel for legal representatives of respondent
No.1. Legal representatives of respondent No.2 were served
and unrepresented. Respondent No.3 was also served and
unrepresented.
2. The present appeal came to be admitted on the following
substantial question of law which reads as under:
i) Whether the Ist Appellate Court is justified in law in
interpreting the Will dated 20-11-1940 at Ex.D-24 holding that
the testator has given absolute estate over the suit schedule
properties in favour of the legatee, Smt. Seetha Hengsu,
though only a life estate is given in her favour and such an
interpretation is against the intention and wish of the testator,
in view of the law laid down by the Hon'ble Supreme Court of
India in the decision reported in AIR 1990 S.C 2201 ?
ii) Whether the 1 Appellate court is justified in law by holding
that the expressions in the Will to enjoy the properties from
generation to generation of her children are not the words of
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limitation in the absolute interest created in favour of the
legatee, without looking into the entire recitals of the Will
dated 20-11- 1940 (Ex.D-24), whereby the testator has made
his intentions very clear in unequivocal terms that the legatec,
Seetha Hengsu has no right to alienate or create any charge
over the properties either privately or through the court during
her life time and in such an event her children are entitle to
succeed to the properties at once?"
3. Facts of the case which are utmost necessary for disposal
of the second appeal are as under:
One Annnu Poojary was the owner of the suit schedule
properties. He had two children namely; Seetha Hengasu and
her brother by name Vishwanath. Taking note of the fact that
Vishwanath was not physically fit, Annu Poojary executed a
registered Will in favour of Seetha Hengasu, creating a life
interest in Seetha Hengasu and thereafter the properties are to
be enjoyed by the children of Seetha Hengasu equally.
4. Later on, Seetha Hengasu said to have executed a Will on
28.01.1972 which was registered in the office of the Sub-
Registrar, bequeathing the entire suit property in favour of her
only son namely; Vishwanatha Kaup, who is the second
respondent in the second appeal.
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5. Jagavathi G.Salian being the daughter of Seetha
Hengasu, questioned the power of Seetha Hengasu executing a
Will in favour of Vishwanatha Kaup by filing the suit in
O.S.No.235/1999, seeking a declaration that there is a want of
capacity and therefore, the Will is void and consequential
injunction from interfering with the possession of the suit
schedule property by the plaintiff and the other two daughters
of Seetha Hengasu namely; Kamalakshi R.Suvarna and Bhavani
A.Kotian.
6. Suit was contested by Vishwanatha Kaup, who was the
legatee under the Will executed by Seetha Hengasu referred to
supra and on contest, suit came to be decreed holding that the
Seetha Hengasu did not possess the right to execute the Will in
favour of Vishwanatha Kaup alone as she enjoyed only limited
interest in the Will executed by Annu Poojary which is nothing
but the life interest.
7. Being aggrieved by the same, legatee under the Will
executed by Seetha Hengasu namely; Vishwanatha Kaup, filed
an appeal before the First Appellate Court in R.A.No.36/2002.
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8. Learned judged in the First Appellate Court after securing
the records and hearing the parties in detail, reversed the
judgment of the trial Court and dismissed the suit of the
plaintiff holding that the Will executed by Annu Poojary in
favour of Seetha Hengasu, the property in the hands of Seetha
Hengasu would become absolute property in terms Section 14
of the Hindu Succession Act.
9. Being aggrieved by the same, the plaintiff is before this
Court.
10. This Court while admitting the appeal has framed the
substantial question of law on 27.03.2012.
"The appeal is admitted on the following substantial
question of law:
"Whether the lower Appellate Court was
justified in interpreting the term "¸ÀAvÀw ¥ÁgÀA¥ÀgÀå
and ªÀÄPÀ̼À ¸ÀAvÀw ¥ÁgÀA¥ÀgÀå" as making no difference
to entitle the legatee under the Will Ex.D.24 to
an absolute estate?
Admit. Call for records.
Paper books dispensed with."
11. During the pendency of this appeal, original legatee
namely; Vishwanatha Kaup died and his legal representatives
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were brought on record and they were served and
unrepresented.
12. Sri Sharan K.J., learned counsel represents
Smt.Kamalakshi R.Suvarna has supported the case of the
plaintiff. Bhavani A.Kotian, another sister of the appellant
served with the notice of the appeal remained absent.
13. Having heard the arguments of Sri K. Prasanna Shetty,
this Court bestowed its attention to the relevant aspects of the
matter.
14. The pleadings and material evidence on record would go
to show that there is no dispute that the suit properties
belonged to Annu Poojary and it was his self acquired property.
The Will executed by Annu Poojary in favour of Seetha Hengasu
is not in dispute. Moreover, it is registered Will.
15. On close scrutiny of the said Will, it is crystal clear that
Annnu Poojary has created only life interest in favour of Seetha
Hengasu and there was a restriction on power of alienation and
enjoyment of the property that was under bequeath in the Will
executed by Annu Poojari in favour of Seetha Hengasu.
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16. Therefore, the legal question now would be whether the
Will executed by Annu Poojary in the hands of Seetha Hengasu
could be treated as absolute property in terms of Section 14 of
the Hindu Succession Act.
17. In this regard, this Court for ready reference culls out
Section 14 of the Hindu Succession Act which reads as under:
"14. PROPERTY OF A FEMALE HINDU TO BE HER ABSOLUTE
PROPERTY :(1) Any property possessed by a female Hindu,
whether acquired before or after the commencement of this
Act, shall be held by her as full owner thereof and not as a
limited owner.
Explanation.--In this sub-section, "property" includes both
movable and immovable property acquired by a female
Hindu by inheritance or devise, or at a partition, or in lieu of
maintenance or arrears of maintenance, or by gift from any
person, whether a relative or not, before, at or after her
marriage, or by her own skill or exertion, or by purchase or
by prescription, or in any other manner whatsoever, and also
any such property held by her as stridhana immediately
before the commencement of this Act.
(2) Nothing contained in sub-section (1) shall apply to any
property acquired by way of gift or under a will or any other
instrument or under a decree or order of a civil court or
under an award where the terms of the gift, will or other
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instrument or the decree, order or award prescribe a
restricted estate in such property."
18. On careful reading of Sub Section (2) of Section 14 of the
Hindu Succession Act, it is crystal clear that in case of gift or
Will, the conditions that have been imposed in the gift deed or
the Will, will have to be adhered by the donee or the legatee as
per the wish of the executor of the gift deed or the Will in strict
sense.
19. In other words, the acquisition as contemplated under
Section 14 (1) of the Hindu Succession Act, except in case of
gift and Will alone, the property will have to be considered as
the absolute property of the woman. But, in case of Will or
Gift, woman, who possess that property is always enjoys the
property, subject to the conditions that have been imposed in
the Will or the gift deed as the case may be. Resultantly, the
property in the hands of that female legatee would not become
absolute property by operation of Section 14 (1) of Hindu
Succession Act and always such property will have to be
enjoyed subject to the conditions that have been imposed in
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gift or the Will as is contemplated under Section 14 (2) of
Hindu Succession Act.
20. When Section 14 (2) of Hindu Succession Act itself is very
clear that the property would not become the absolute property
in the hands of the female legatee, the learned Judge in the
First Appellate Court applying Section 14 of Hindu Succession
Act and then holding it that the property in the hands of Seetha
Hengasu has become the absolute property and therefore, she
had every power to alienate the suit property in favour of her
children namely; Vishwanatha Kaup is valid and thereby
dismissing the suit thus calls for interference by this Court in
this appeal.
21. Learned counsel for the appellant in this regard also
placed on record the judgments of the Hon'ble Apex Court in
the cases of Jogi Ram v. Suresh Kumar and others reported
in (2022) 4 SCC 274, Sadhu Singh v. Gurdwara Sahib
Narike and others reported in AIR 2006 SCC 3282, Sharad
Subramanyan v. Soumi Mazumdar and others reported in
AIR 2006 SC 1993, Gaddam Ramakrishnareddy and
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others v. Gadda Rami Reddy, reported in AIR 2011
Supreme Court 179.
22. Applying the principles of law enunciated in the aforesaid
decisions to the case on hand and also on close reading of
Section 14 (2) of Hindu Succession Act, what Seetha Hengasu
possessed under the Will executed by Annu Poojary was only a
life interest and not alienate the property. Further, in the Will
executed by Annu Poojari itself there is a recital that after
receiving the property by Seetha Hengasu, it is to be enjoyed
by all the children of deceased Seetha Hengasu equally.
23. Under such circumstances, the limited interest that has
been created by Annu Poojari in his Will in favour of Seetha
Hengasu had only created a life interest in favour of Seetha
Hengasu and that has been enjoyed by her. There is no power
of alienation nor the power of bequeath vested in Seetha
Hengasu by virtue of Will executed by Annu Poojary.
24. Accordingly, substantial question raised above is
answered in favour of appellant. Resultantly, the order of the
First Appellate Court needs to be set aside and order of the
learned trial Judge needs to be restored.
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Hence, the following:
ORDER
(i) Regular Second Appeal is allowed.
(ii) The judgment and decree passed by Principal
Civil Judge (Jr.Dn), Udupi in O.S.No.235/1999 is
hereby restored by setting aside the judgment
and decree passed by Additional Senior Civil
Judge, Udupi in R.A.No.36/2002.
(iii) No order as to costs.
Sd/-
JUDGE
MR
