Karnataka High Court
Smt.Gouravva W/O Buddanagouda vs Suvarna W/O Shivanand Gudadari @ on 23 October, 2024
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NC: 2024:KHC-D:15432
RFA No. 3065 of 2009
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 23RD DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO. 3065 OF 2009 (DEC-)
BETWEEN:
1. SMT.GOURAVVA W/O. BUDDANAGOUDA
NAGANAGOUDAR,
AGED ABOUT 78 YEARS,
OCC: HOUSEHOLD,
R/O: HARLKATTI,
SAUNDATTI TALUK, ]
BELGAUM DISTRICT.
PIN - 590001.
2. SMT. SANGAVVA W/O. MALAKAJIGOUDA PATIL,
AGED ABOUT 34 YEARS,
OCC : HOUSEHOLD,
R/O: HARLKATTI,
SAUNDATTI TALUK,
BELGAUM DISTRICT.
PIN - 590001.
GIRIJA A
BYAHATTI ...APPELLANTS
(BY SRI. UMESH P. HAKKARAKI, ADV FOR SRI. N.DINESH RAO,
Location:
ADV)
HIGH
COURT OF
KARNATAKA
AND:
1. SMT. SUVARNA
W/O. SHIVANAND GUDADARI @
NAGANAGOUDAR,
AGED ABOUT 31 YEARS,
OCC: AGRICULTURE & HOUSEHOLD WORK,
R/O: HARALAKATTI,
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NC: 2024:KHC-D:15432
RFA No. 3065 of 2009
SAUNDATTI TALUK,
BELGAUM DISTRICT.
PIN - 590001.
2. LAXMI D/O. SHIVANAND GUDADARI @
NAGANAGOUDAR
AGED 2 YEARS,
OCC: NIL.
3. YASHODHA D/O. SHIVANAND
GUDADARI @ NAGANAGOUDAR,
AGED ABOUT 19 YEARS,
OCC : STUDENT,
R/O: HARALAKATTI,
SAUNDATTI TALUK,
BELGAUM DISTRICT
PIN - 590001.
...RESPONDENTS
(BY SRI. B. V. SOMAPUR, ADVOCATE FOR R-1 & R-3;
R-2 IS MINOR R/BY R-1)
THIS RFA FILED U/S.96 OF CIVIL PROCEDURE CODE,
1908 PRAYING TO ALLOW THIS APPEAL, BY SETTING ASIDE
THE JUDGMENT AND DECREE DATED 09.07.2009 IN
O.S.NO.56/2004 PASSED BY THE LEARNED CIVIL JUDGE
(SR.DN), SAUNDATTI IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC-D:15432
RFA No. 3065 of 2009
CORAM: THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
ORAL JUDGMENT
This appeal is against a decree for partition. The Trial
Court held that the gift deed dated 17.07.2004 executed
by defendant No.1-Gouravva in favour of defendant No.2-
Sangavva does not bind the share of the plaintiffs and
accordingly granted partition in respect of 1/4th share of
the suit properties. The admitted genealogy is as under:
Buddanagouda
(Died)
Gouravva-Wife
(Defendant No.1)
Mallavva - Daughter
(Defendant No.1)
Shivanand Sangavva
(Died) (Defendant No.2)
Girijavva - 1st Wife Shiddavva - 2nd Wife
(Died) (Plaintiff No.2)
Yashodha-Daughter Laxmi-Daughter
(Plaintiff No.3) (Plaintiff No.2)
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2. One Buddanagouda was a propositus, he died
in the year 1951 as evidenced in Ex.P9 M.E.No.870. At the
time of his death, he was survived by his wife Gouravva-
the defendant No.1 and daughter Mallavva. As per the law
prevailing then, name of Gouravva is entered in the
property records of the properties left behind by
Bhdhanagouda and M.E.No.870 is certified.
3. Mallavva- the daughter of Buddanagouda died
on 03.01.2003. She was survived by two children namely,
Shivanand and Sangavva.
4. Sangavva, the daughter of Mallavva is the
second defendant. Shivanand the son of Mallavva died on
05.06.2004 and Shivanand had two wives, Girijavva and
Shiddavva. Girijavva, the first wife died on 28.05.1992.
After her death, he married Shiddavva-the second wife
and the said Shiddavva is the plaintiff No.1. Shiddavva's
daughter from Shivanand, Laxmi is plaintiff No.2. Plaintiff
No.3-Yashoda is the daughter of Shivanand from his first
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wife Girijavva. The suit is filed against Gouravva and
GoUravva's grand daughter Sangavva.
5. The suit is filed on the premise that the
properties are ancestral properties and Gouravva-the wife
of propositus Buddanagouda could not have executed a
gift deed in the year 2004 in respect of the properties
which she inherited from her husband. Thus, it is the
contention of the plaintiffs that the gift deed is not binding
on the share of plaintiffs and accordingly, they prayed for
partition of 1/4th share.
6. The defendants contested the suit. Gouravva-
the defended No.1 who has executed a gift deed in favour
of her grand daughter Sangavva admitted the execution of
the gift deed and justified the execution of gift deed dated
17.07.2004. Defendant No.2-Sangavva claimed absolute
right over the property based on the gift deed.
7. The Trail Court framed following issues:
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I. Whether the plaintiffs prove that the gift deed
dated 17.07.2004 executed by defendant No.1 in
favour of defendant No.2 is not binding on their
share?
II. Whether the plaintiffs prove that they are in
joint possession and enjoyment of suit
property along with the defendants?
III. Whether the plaintiffs are entitled for
possession and separate possession of half
share in the suit properties?
IV. Whether the defendants prove that the
plaintiffs have to put the amount of
Rs.1,25,000/- kept as FD in the name of
plaintiff No.3 in a common hotch-pot to claim
their share?
V. What Order or Decree?
8. The Trial Court has concluded that the suit
properties are the joint family properties and defendant
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No.1 could not have executed a gift deed in favour of
defendant No.2. Accordingly, the suit is decreed.
9. Learned counsel appearing for the
defendants/appellants would contend that the suit
properties are not ancestral properties. The suit properties
originally belonged to Buddanagouda and he died in the
year 1951 i.e., before the commencement of Hindu
Succession Act, 1956 and on his death, his wife would
acquire a limited estate under the Hindu Women's Right to
Property Act, 1937 and after the commencement of Hindu
Succession Act, 1956 under Section 14(1) widow would
acquire absolute right over the property and she was
competent to execute a gift deed in the year 2004 to a
person of her choice.
10. It is his further submission that she has
executed a gift deed on 17.07.2004 and the same is duly
registered and duly attested and defendant No.2-her
grand daughter (daughter of Mallavva) has accepted the
gift and she has acquired absolute ownership over the
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properties. He would further submit that the Trial Court
committed an error in holding that the suit properties are
the ancestral properties despite Buddanagouda died in the
year 1951 before the commencement of Hindu Succession
Act, 1956. He would further contend that the daughter of
Buddanagouda does not acquire any right over the
property as she did not inherit the properties of
Buddanagouda who died in the year 1951.
11. Learned counsel for the plaintiffs/respondents
would contend that the properties admittedly belonged to
Buddanagouda and after his demise, his wife and
daughter will acquire right over the properties jointly and
this being the position, wife of Buddanagouda could not
have executed the gift deed in respect of entire properties
and the said gift deed does not bind the share of the
plaintiffs.
12. He would also contend that the Trial Court has
rightly taken note of all these factors and has concluded
that the mother could not have executed a gift deed in
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respect of entire properties and thus, he would pray for
dismissal of the appeal.
13. The following points arise for consideration:
i. Whether the appellants establish that wife of
Buddanagouda inherited the property in the
year 1951 and thereafter, she acquired
absolute right over the property under Section
14(1) of Hindu Succession Act, 1956 and she
was competent to execute the gift deed in
favour of defendant No.2?
ii. Whether the execution of gift deed dated
17.07.2004 is established?
iii. Whether the Trial Court is justified in passing
a decree for partition in favour of the
plaintiffs?
14. As already noticed, Buddanagouda is the
propositus of the family. He died in the year 1951. This
averment is found in the plaint at paragraph No.3 and
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evidenced in Exhibit P3. The Trial Court concluded that
after the death of Buddanagouda in 1951, the property
devolved on Gouravva, his wife and Mallavva, his
daughter. However, the said finding is incorrect. The
Trial Court, it appears applied law of Succession in terms
of Section 8 of The Hindu Succession Act, 1956. The said
Act is prospective in operation. When Buddanagouda died
in 1951, The Hindu Succession Act of 1956 was not yet
enacted. Thus the properties would devolve upon the
widow as per the un codified Shastric Hindu Law. Under
the said Shastric Hindu Law, when a male died leaving
behind a widow and a daughter, the daughter would not
inherit the property of the male Hindu. On the other
hand, the widow would inherit the property as a limited
owner under the Hindu Women's Right to Property Act,
1937. In terms of Section 3, the widow would acquire
limited estate to enjoy the property till her death and after
her death, the property would go to the reversioner.
However, after the commencement of The Hindu
Succession Act, 1956, the limited estate of widow acquired
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on or after the commencement of The Hindu Succession
Act, 1956 would enlarge into an absolute estate under
Section 14(1) of the said Act.
15. In this case, admittedly Gouravva is the widow
of deceased Buddanagouda, who died in 1951. Thus,
after his death, Gouravva inherited the limited estate
under the Hindu Women's Right to Property Act, 1937.
Later by operation of operation of Section 14(1) of The
Hindu Succession Act, 1956, the limited estate of
Gouravva blossomed into the absolute estate and
Gouravva became the absolute owner of the properties.
Thereafter, Gouravva executed a registered gift deed in
favour of her grand daughter Sangavva, who is defendant
No.2.
16. The suit is filed during the lifetime of
Gouravva and Gouravva is arrayed as defendant No.1. In
the said suit, the plaintiffs contended that Gouravva being
the joint owner, could not have executed the gift deed in
respect of the entire property. Gouravva contested the
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suit so also the donee - Sangavva. Defendants took a
stand that the gift deed is validly executed, duly
registered, duly attested and duly acted upon and prayed
for dismissal of the suit.
17. However, the Trial Court has come to the
conclusion that Gouravva is not the absolute owner of the
suit properties and Gouravva being the joint owner, could
not have executed a gift deed in favour of defendant No.2.
Accordingly, the suit is decreed granting share in favour of
the plaintiff.
18. Since the daughter of Gouravvva viz. Mallavva
did not inherit the properties after the death of her father
in 1951, the properties do not become the joint properties
of Gouravva and Mallavva. The properties are the
exclusive properties of Gouravva because of operation of
Section 15(1) of The Hindu Succession Act, 1956.
19. As far as proof of gift deed is concerned, as
already noticed, the gift deed is duly registered and duly
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attested. More than anything else, the donor herself was a
party to the suit and in the written statement she has
admitted the execution of the gift deed and Gouravva is
examined as DW-5 and in her evidence also she has
admitted the execution of the gift deed.
20. Moreover the plaintiffs cannot question the
validity of the gift deed as the plaintiffs have no locus
since the properties exclusively belonged to Gouravva.
Gouravva has admitted the execution of the gift deed.
21. These aspects have not been considered by
the Trial Court at all. The Trial Court committed an error
in holding that the suit schedule properties are the
ancestral properties which in fact is incorrect as
Buddanagowda died in 1951.
22. For the aforementioned reasons, this Court is
of the view that the impugned judgment and decree
passed by the Trial Court are to be set-aside. The suit of
the plaintiffs is to be dismissed.
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23. Hence the following:
ORDER
(i) Appeal is allowed.
(ii) The judgment and decree dated 09.07.2009 on
the file of Civil Judge (Sr.Dn.), Saundatti in
O.S. No.56/2004 are set-aside.
(iii) Suit in O.S. No.56/2004 on the file of the Civil
Judge (Sr.Dn.), Saundatti is dismissed
(iv) No order as to cost.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
RKM, BRN
CT:ANB
