Karnataka High Court
Shakuntala And Anr vs Nagamma And Anr on 6 November, 2024
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
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RSA No. 200333 of 2022
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 6TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE M.G.S.KAMAL
REGULAR SECOND APPEAL NO. 200333 OF 2022
(PAR/POS)
BETWEEN:
1. SHAKUNTALA
W/O SHIVARAJ PATIL,
AGE: 53 YEARS,
OCC: AGRICULTURE AND HOUSE-HOLD,
R/O. VILLAGE KAMALNAGAR,
TQ. AURAD-B, DIST. BIDAR.
2. KAMALABAI W/O DEVINDRA PATIL,
Digitally signed
by SHIVALEELA AGE: 51 YEARS,
DATTATRAYA OCC: AGRICULTURE AND HOUSE-HOLD,
UDAGI R/O. VILLAGE KAMALNAGAR,
Location: HIGH TQ. AURAD-B, DIST. BIDAR
COURT OF
KARNATAKA ...APPELLANTS
(BY SRI SHARANABASAPPA K. BABSHETTY, ADVOCATE)
AND:
1. NAGAMMA
W/O LATE BANDAPPA CHINCHOLA,
AGE: 84 YEARS, OCC: NIL,
R/O. VILLAGE KAMALNAGAR,
TQ. AURAD -B,
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RSA No. 200333 of 2022
DIST. BIDAR-585326.
2. SANGAMMA
W/O SHANKERAPPA YANGUNDE,
AGE: 57 YEARS, OCC: HOUSE-HOLD,
R/O. VILLAGE KAMALNAGAR,
TQ. AURAD-B,
DIST. BIDAR-585326.
3. BASWARAJ
S/O SHANKERAPPA YANGUNDE,
AGE: 43 YEARS, OCC: ENGINEER,
R/O. VILLAGE KAMALNAGAR,
TQ. AURAD-B,
DIST. BIDAR-585326
...RESPONDENTS
(BY SRI RAVI B. PATIL, ADVOCATE FOR R1 TO R3)
THIS RSA IS FILED UNDER SECTION 100 OF THE CPC,
PRAYING TO, ALLOW THIS APPEAL AND SET ASIDE THE
JUDGMENTS AND DECREE DTD. 5.3.2021, PASSED BY THE
PRINCIPAL DISTRICT AND SESSIONS JUDGE AT BIDAR, IN
R.A.NO.13/2013 CONFIRMING THE JUDGMENT AND DECREE
DTD.6.11.2012 PASSED BY THE ADDITIONAL SENIOR CIVIL
JUDGE AT BIDAR, CAMP AT AURAD-B, IN O.S.NO.2/2008.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE M.G.S.KAMAL
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RSA No. 200333 of 2022
ORAL JUDGMENT
(PER: HON'BLE MR. JUSTICE M.G.S.KAMAL)
Plaintiffs are before this court being aggrieved by the
judgment and decree dated 06.11.2012 passed in
O.S.No.2/2008 on the file of Additional Senior Civil Judge
at Bidar, Camp at Aurad-B (for short 'Trial Court') by
which, the suit for partition filed by the plaintiffs was
partly decreed granting 1/4th share each to the plaintiffs in
suit 'B' scheduled property, while their claim for partition
in suit schedule 'A' property has been rejected. The said
judgment and decree has been confirmed by the judgment
and order dated 05.03.2021 passed in R.A.No.13/2013 on
the file of Principal District and Session Judge, Bidar (for
short 'First Appellate Court').
2. The above suit in O.S.No.2/2008 is filed by the
plaintiffs against their mother-defendant No.1, sister-
defendant No.2 and against defendant No.3 who is the son
of defendant No.2.
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3. Case of the plaintiffs is that;
(a) Plaintiff Nos.1 and 2 and defendant No.2 are the
daughters of defendant No.1. That one Bandeppa was the
father of the plaintiffs and defendant No.2. Plaintiffs,
defendant Nos.1 and 2 are the members of the Hindu joint
family and the suit schedule properties are the joint Hindu
ancestral properties of the plaintiffs and defendant Nos.1
and 2.
(b) That there was a dispute between the
defendant No.1 and her husband-Bandeppa and defendant
No.1 had filed a suit in O.S.No.54/1970 against her
husband seeking relief of maintenance, which ended in a
compromise. In terms of the said compromise, Bandeppa
had agreed to give 5 acres of land in Sy.No.288 (suit
schedule 'A' property) to his wife-defendant No.1 towards
her maintenance during her lifetime. That it was agreed in
the said compromise that after the demise of defendant
No.1 suit schedule 'A' property would revert back to her
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husband- Bandeppa if he was alive or else to his legal
hairs.
(c) It is further contended that the condition was
also imposed on defendant No.1 not to mortgage, gift or
encumber the suit schedule 'A' property in any manner.
Thus, in terms of the said compromise decree, defendant
No.1 was only entitled to maintain herself out of the
income derived there from and she was not entitled to
alienate the same.
(d) That upon the demise of Bandeppa, defendant
No.1 obtained mutation of revenue records in respect of
said land in Sy.No.288 in her name. Defendant Nos. 1 and
2 had created a nominal deed of sale in favor of defendant
No.3, who is none other than the son of defendant No.2.
Defendant No.3 did not derive any title in respect of the
said property. Therefore a relief of declaration to declare
the said deed as null and void was sought.
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(e) It is further contended that the suit schedule
properties are inherited and succeeded by the plaintiffs.
That taking undue advantage of the old age of defendant
No.1, defendant Nos. 2 and 3 have created the said false
deed of sale, while defendant No.1 did not have any
exclusive right to sell the said property and the plaintiffs
were entitled for a share in the said property. That, since
the defendants refused to partition and allot the shares to
the plaintiffs, present suit for partition was filed.
4. Defendant Nos.1 and 3 have filed written
statement admitting the relationship and denying the
plaint averments. Relying upon Section 14 of the Hindu
Succession Act, 1956 it is contended that defendant No.1
became the absolute owner of the suit schedule property.
That she had the pre-existing right of maintenance and
only enforcing the said right the suit in O.S.No.54/1970
was filed and that irrespective of the conditions imposed in
the said decree, she was the absolute owner of suit
schedule 'A' property and sought for dismissal of the suit.
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5. Defendant No.2 filed written statement
admitting the relationship, denying the plaint averments
and contended that defendant No.1 was the absolute
owner of suit schedule 'A' property by virtue of the decree
of maintenance with right to alienate the same in favour of
the person of her choice. It is contended that defendant
No.3 purchased the suit schedule property 'A' for valuable
consideration and he is a bonafide purchaser. It is also
contended that Bandeppa owned another land in
Sy.No.277 standing in the name of plaintiff No.2 and her
husband which was not included in the plaint, as such, suit
was bad for non-inclusion of the other joint family
property. Hence, he sought for dismissal of the suit.
6. Based on the pleading, Trial Court framed the
following issues and additional issues for its consideration;
1. Whether the plaintiffs prove that the suit
properties are their joint family ancestral
properties along with defendant no.1?
2. Whether the plaintiffs prove that the
defendant no.2 has created bogus and
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nominal sale deed dated 26-10-2006 in
respect of suit land in the name of
defendant no.3 and it is against right and
interest of the plaintiffs?
3. Whether the plaintiffs prove that the
defendants are not admitting their
legitimate share in the suit properties?
4. Whether the plaintiffs are entitled for the
relief as prayed for?
5. Whether the suit is valued and court fee
paid is correct?
6. Whether the defendants prove that the
defendant no.1 is the absolute owner of
the suit property by virtue of Section
14(1) of Hindu Succession Act?
7. Whether the defendants prove that the
defendant no.3 is the bonafide purchaser
of suit property?
8. Whether the suit is barred by time?
9. What order or decree?
Addl. Issue No.1) Whether the suit of
property is bad for non-inclusion of property
as alleged by defendants?
7. Plaintiff No.2 examined herself as PW1. Three
witnesses have been examined as PW2 to PW.4. Eight
documents are marked as Ex.P1 to Ex.P8. Defendant No.1
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examined as DW1, twelve documents are marked as
Ex.D1 to Ex.D12.
8. On appreciation of the evidence, the Trial Court
answered issue Nos.1, 3 and 4 partly in the affirmative,
issue Nos. 5, 6, 7 in the affirmative, issue Nos.2, 8 and the
additional issue No.1 in the negative and consequently
decreed the suit in part, granting 1/4th share each to the
plaintiff Nos. 1 and 2 in the suit Schedule 'B' House
property and rejected the suit in respect of suit Schedule
'A' property.
9. Aggrieved by the same, plaintiffs preferred
regular appeal in R.A.No.13/2013 before the First
Appellate Court. Considering the grounds urged, the First
Appellate Court framed the following points for its
consideration;
1. Whether Section 14(1) of the Hindu
Succession Act comes to the aid of
defence raised by the 1st defendant -
Nagamma in respect of suit schedule land
Sy.No.288/2 measuring 5 acres situated
at Kamalnagar, Tq. Aurad-B?
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2. Whether the matter needs to be
remanded as prayed by the
plaintiffs/appellants by interfering with
the judgment and decree of the trial
Court?
3. What Order or decree?
and on re-appreciation of the matter, First Appellate Court
answered point No.1 in the affirmative, point No.2 in the
negative and consequently dismissed the appeal
confirming the judgment and decree passed by the trial
court.
10. Sri.Sharanabasappa K. Babshetty, learned
counsel for the appellants reiterating the grounds urged in
the memorandum of appeal submitted that;
(a) the Trial Court and the First Appellate Court have
misconceived and misconstrued Ex.P5 namely, the
compromise decree passed in O.S.No.54/1970
between their father- Bandappa and defendant No.1.
Referring to the contents of the said document,
learned counsel submit that a specific condition was
imposed on defendant No.1 while giving the land
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detailed suit schedule 'A' property in favor of
defendant No.1 specifying her limited interest in the
said property.
(b) He submits that defendant No.1 had right only
to enjoy the suit schedule 'A' property during her lifetime
and after her demise, if Bandeppa was alive, the said
property was to revert back to said Bandeppa, and if he
was not alive, the said property was to be shared by his
heirs. He submits that in view of this specific condition in
Ex.P5, defendant No.1 could not have alienated the same
in favour of defendant No.3.
(c) He relies upon sub-section (2) of Section 14 of
the Hindu Succession Act, 1956 to contend that since
plaint 'A' schedule property has been given to defendant
No.1 in terms of a "decree", sub-section (2) of Section 14
would apply, excluding it from the purview of sub-section
(1) of section 14.
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(d) He submits that factually and legally the
judgment and decree passed by the Trial Court, confirmed
with the First Appellate Court is erroneous, giving rise to
substantial question of law, requiring consideration at the
hands of this court.
11. Per contra Sri.Ravi B. Patil, learned counsel
appearing for the respondent/defendants submit that by
virtue of Ex.P5, defendant No.1 was allotted schedule 'A'
of the suit property which in the light of explanation to
sub-section (1) of section 14 of the Act, 1956 has become
her absolute property and no conditions could be imposed
deterring her absolute right over the property. He further
submits that once the property which has allotted to
defendant No.1 became her absolute property, she was
entitled under law to deal with the same. Thus, in excise
of her absolute right, she has conveyed the said property
in favor of defendant No.3, who is her grandson and no
illegality, can be found in the same. Hence, he seeks for
dismissal of the appeal.
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12. Heard and perused the records.
13. The short question which is involved in this
matter is as to whether the defendant No.1 became
absolute owner of the suit 'A' schedule property by virtue
of Ex.P5 or she acquired only limited interest as claimed
by the plaintiffs. This issue has been addressed and
adverted to by both Trial court and the First Appellate
Court factually and legally.
14. Perusal of Ex.P5-compromise decree clearly
manifest that the said suit in O.S.No.54/1970 had been
filed by defendant No.1 against her husband-Bandeppa
seeking maintenance at the rate of Rupees 50/- per
month.
15. A compromise had been recorded in the said
suit, which reads as under;
"THIS suit coming on for final disposal before me
V.R.Kabharki: B. A. LL. B. Munsiff Aurad in the
presence of Shri M. S. Kamtikar Advocate for the
plaintiff and Shri Abdual Jabbar Advocate for the
defendant.
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It is decreed the suit of the plaintiff is decreed
as per the following terms of compromise.
(1) That the deft. admits that the plaintiff
is his wedded wife.
(2) That the deft. admits that he will maintain
the plaintiff and the plaintiff and deft.
have arrived at a compromise that the
deft. will give 5 acres of land out of the
Sy. No.288 measuring 15 acres 20
Guntas R/A. Rs.45-73 Ps. situated at
village. Kamalnagar towards east running
north south bounded as follows.
In the East :-. Stream let after that
land of Baswaraj
s/o Shivraj Ghade.
In the West :- Remaining land
Sy.No.288.
In the North :- Land of Sharnappa
Gadge.
In the South :- Land of Ramanna
Shivankar.
This portion of land he will give in her possession
immediately and he fails to hand over the
possession; the platf. will be entitled to get the
possession by executing the decree through court.
(3) That the plaintiff admits that the above
said portion of land measuring 5 acres will be for her
maintenance till her life time. She will not be entitled
to alienate or encumber the land by way of
mortgage-gift and sale etc., She will enjoy the
portion of the land till her life time and after her
death the land will go to the defendant if alive or to
his heirs as the case may be. It is also settled that
the plaintiff shall withdraw her case No.54 of 1970 of
civil Judge's court, Bidar regarding the perpetual
injunction as she has got the land in lie of
maintenance and her daughter smt. Kamalabai is
married".
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16. Referring to condition No.3 extracted
hereinabove, the counsel for the appellants strenuously
submits that the said condition No.3 imposing restriction
on enjoyment of the property by defendant No.1 limits her
rights and that she was not entitled to alienate the
property, except enjoying the same during her lifetime.
She cannot be the absolute owner of the property as she
acquired the same under a "decree". Thus, he submits
that the Trial Court and the First Appeal Court have
misconstrued the said condition to erroneously hold that
the defendant No.1 was the absolute owner of the
property. In justification of the said submission, learned
counsel refers to sub-section (2) of Section 14 of the
Hindu Succession Act, 1956.
17. It is necessary at this juncture to refer to
Section 14.
"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.
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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
instrument or the decree, order or award
prescribe a restricted estate in such property."
18. Perusal of the explanation to sub-section (1) of
section 14 of the Act, makes it clear that property both
movable and immovable acquired by female Hindu in 'lieu
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of maintenance or arrears of maintenance' would be held
by her as full owner thereof and not as a limited owner.
19. There is no dispute of the fact that the
defendant No.1 had filed the above suit in O.S.No.54/1970
in furtherance to her right for maintenance. It is settled
position of law that right of maintenance is inherent and a
pre-existing right of a Hindu woman/wife and if any
property is given in recognition of such right, the same
falls within the explanation given to sub-section (1) of
section 14. In contrast, sub-section (2) of section 14
excludes operation of sub-section (1) in respect of
property acquired by way of gift or under a Will or any
other instrument or under a decree or order of a civil court
for the first time without there being any pre-existing
right.
20. Perusal of Ex.P5 as noted above makes it clear
that the suit schedule 'A' property was allotted or given to
defendant No.1 in recognition of her right for
maintenance, which is clearly covered under explanation
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to sub-section (1) of section 14. The Trial Court and the
First Appellate Court, having taken note of this factual and
legal aspect of the matter, in the considered view of this
court, have come to just conclusion. No grounds are made
out warranting interference. No substantial question of law
either arises in the matter.
Accordingly, appeal is dismissed.
Sd/-
(M.G.S.KAMAL)
JUDGE
RU
CT:PK
