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2001 DIGILAW 157 (KAR)

GUJAMMA v. PUNDALIKAPPA PUNDALIKRAO DIED BY L. RS

2001-02-16

V.GOPALA GOWDA

body2001
GOPALA GOWDA, J. ( 1 ) THIS second appeal is filed by the plaintiffs challenging the correctness of the judgment and decree of the first appellate court passed in ra No. 8/95 dated 25. 1. 1997 in setting aside the judgment and decree passed by the prl munsiff at bidar in os 456/89 dated 7. 1. 1995 urging that two substantial questions of law would arise for consideration of this court to exercise its power under Section 100 CPC. ( 2 ) THE rank of the parties is referred to in this judgment asdescribed in the plaint in original suit for the sake of convenience. ( 3 ) THE brief necessary facts for the purpose of considering and answering the rival contentions urged by the learned counsel on behalf or patties and also substantial question of law framed by this court are stated as hereunder: the plaintiffs filed original suit in old No. 69/87 on the file of the addl. Civil judge, bidar which was subsequently came to be transferred to the prl. Munsiff bidar and renumbered as os 456/89 for partition and separate possession of their half share in a and b schedule properties and for joint possession and enjoyment of their half share by granting judgment and decree in their favour and sending the same to the deputy commissioner for partition by metes and bounds. The claim of the plaintiff is that, they are the real sisters and daughters of late hanumanthappa who was the elder brother of defendant. Their father died during the year 1929 leaving behind him their mother late gundamma and his son eranna and the plaintiffs. It is the case of the plaintiffs that their father late hanumanthappa was a joint family member and a and b schedule properties are joint ancestral properties of hanumanthappa. After his death, his only son eranna died leaving behind his mother Smt. Gundamma and the plaintiffs. Their mother also died in the month of January 1987. It is contended by them that they are members of joint hindu undivided family and therefore they are joint owners in possession of suit schedule property. After the death of their father their mother late gundamma was in possession of the properties in question as no partition had taken pface and i. e. how they got common interest on undivided share in the suit schedule properties. After the death of their father their mother late gundamma was in possession of the properties in question as no partition had taken pface and i. e. how they got common interest on undivided share in the suit schedule properties. After the death of gundamma, they filed aforesaid suit for partition for the reason that their attempt for partition with the defendant for their respective shares went in vain as he had refused to do so on 10. 3. 1987. ( 4 ) THE defendant filed written statement traversing the plaint averments disputing the claim of the plaintiffs however, the relationship between the plaintiffs and him was not disputed. It was also not disputed that hanumanthappa died about 60 years back. He has also further admitted stating that his brother hanumanthappa died leaving behind the plaintiffs and their brother erranna and mother gundamma. It is further stated that defendant maintained the plaintiffs and their mother gundamma. Further, defendant performed the marriages of plaintiffs and gundamma was also maintained till her death. It was further contended that, after marriage of the plaintiffs they have no concern with the family of defendants and further stated that defendant's another brother ganapathi also died 40 years back. It is denied that the suit schedule properties are ancestral properties. Further denied that, the mother of plaintiffs was not the joint owner in possession of the properties, she was a widow of the joint family without any right in the suit properties. ( 5 ) ON the basis of said pleadings, the trial court framed sixiss ues. The case went for trial. On behalf of plaintiffs the witnesses pws 1 and 2 were examined and exhibits p1 - p4 were marked. On benalf of defendant, three witnesses dws 1 to 3 were examined and documents d1 to d7 were marked. ( 6 ) THE trial court, on appreciation of undisputed facts and material evidence on record has answered issue no. 1 at paragraph-10 to 16 in the affirmative, issue no. 2 at paragraph-17 to 27 in the affirmative. Issue no. 3 at paragraph 28 to 29, issue no. 4 at paragraph-30, issue no. 5 at paragraph-37 and issue no. 6 at paragraph-32 in the affirmative and passed a judgement and decree granting the relief of half share of the lands mentioned in the a and b schedule properties except sy. Nos. 73, 74 and 228. Issue no. 3 at paragraph 28 to 29, issue no. 4 at paragraph-30, issue no. 5 at paragraph-37 and issue no. 6 at paragraph-32 in the affirmative and passed a judgement and decree granting the relief of half share of the lands mentioned in the a and b schedule properties except sy. Nos. 73, 74 and 228. ( 7 ) AGGRIEVED by the said judgment, the defendant filed regular appeal under Section 96 CPC before the prl. Civil judge at bidar in ra 8/95 questioning the correctness of the findings and the reasons assigned in the judgment passed by the trial court urging various legal grounds. The first appellate court on the basis of rival contentions urged in the appeal formulated three points for its determination at paragraph-8 of the impugned judgment and the same have been answered. The point no. 1 is answered in the negative by recording its reasons at paragraph 10-14. The point no. 2, is answered in the affirmative by recording its reasons at paragraph 15 holding that the judgment and decree of the trial court is not legal and same is required to be interfered with by it in exercise of i:s appellate jurisdiction and power. The point no. 3 is answered in favour of defendant by setting aside the judgment and decree of the trial court by recording the finding by the first appellate court holding that the same is erroneous in law by assigning its reasons in support of its findings. ( 8 ) THE correctness of the above judgment is challenged in this second appeal by the plaintiffs urging that the substantial questions of law would arise for consideration. This court on 7. 4. 1997 as required under proviso to sub-section (5) of Section 100 CPC has formulated the following two substantial questions of law for its consideration:1. Whether the first appellate court has erred in holding that the property possessed by gundamma, after the death of her husband, did not become her absolute property under Section 14 (1) of the hindu succession Act, 1956? 2, whether the first appellate court erred in holding that late pundalikappa succeeded to the entire joint family properties by survivorship? Whether the first appellate court has erred in holding that the property possessed by gundamma, after the death of her husband, did not become her absolute property under Section 14 (1) of the hindu succession Act, 1956? 2, whether the first appellate court erred in holding that late pundalikappa succeeded to the entire joint family properties by survivorship? ( 9 ) THE learned counsel for appellant-plaintiffs Sri manikappa patil and Sri niranjan for the defendant have elaborately advanced the arguments for and against the above substantial questions of law placing reliance upon the findings and the reasons assigned by the trial court in favour of plaintiffs and placing reliance upon the findings recorded on points 1 and 2 in the impugned judgment contending that the first appellate judge was perfectly justified in reversing the judgment of the trial court holding that the suit schedule properties are not the joint family properties for the reason that the plaintiffs' father died about 60 years back leaving behind their mother late gundamma and his son eranna who died subsequently in the year 1986. Therefore, they are not the joint owners of the property for the reason that, their mother did not have any right upon the property in question including the right of maintenance either under the Provisions of the hindu womens right to properties Act, 1937 or hindu law or under Section 14 (1) of the hindu succession Act, 1956 (in short 'the act of 1956' ). In support of his submission, the learned counsel for defendant submits that the first appellate court's judgment is based on law laid down by this court reported in 1973 (2) mys. Law journal 267 upon which much reliance is placed by the first appellate court while setting aside the findings on the issues and answered in favour of plaintiffs by the trial court and also placed reliance upon the judgment of Supreme Court reported in AIR 1985 SC 995, AIR 1996 SC 146 and the judgment of this court reported in llr 2000 kar 3695 in support of the proposition that, the detendant was sole surviving co-parcener. Therefore, after the death of the plaintiffs father, their mother did not get the right to enjoyment of the properties for her maintenance of her own right. Therefore, her right is only limited under Section 14 (1 ). Explanation part of hindu Succession Act 1956. Therefore, after the death of the plaintiffs father, their mother did not get the right to enjoyment of the properties for her maintenance of her own right. Therefore, her right is only limited under Section 14 (1 ). Explanation part of hindu Succession Act 1956. Therefore after her death, the plaintiffs are not entitled for partition of the properties in question. These contentions are examined keeping in view the law laid down by the apex court on Section 14 (1) of the act of 1956 and the right of maintenance conferred upon the plaintiff's mother late gundamma and the law declared by the apex court in the case reported in AIR 1987 SC 492 wherein the apex court has approved the judgment of gujarath high court reported in AIR 1973 guj 227 interpreting Section 14 (1) of the act of 1956 with regard to limited estate of a hindu widow prior to commencement of the act and further placed reliance upon the judgment of the apex court reported in c. Mosalamani Mudaliar and others VS. The Idol of Sri Swaminathaswamy interpreting Section 14 (1) and (2) of the act 1956. ( 10 ) WITH reference to the abovesaid rival contentions, this court has to answer whether the impugned judgment passed by the first appellate court in setting aside the judgment and decree of the trial court is in accordance with law or not and further whether the substantial questions of law as framed by this court would arise for consideration. To answer these questions, it is necessary for this court to refer to the findings recorded by the trial court. ( 11 ) ON the basis of undisputed facts and material evidence on record, the trial court has answered the issue no. 1 by recording its findings by assigning valid and cogent reasons holding that the suit schedule properties except sy. nos. 73, 74 and 228 are ancestral properties of late hanumanthappa. I have carefully gone through the material evidence on record, pleadings to findout whether the findings of the trial court on issue no. 1 are correct or not. The trial court has given valid and cogent reason while answering the issue no. 1 holding that the contention of the plaintiffs that their father hanumanthappa was the brother of deceased defendant pundalikappa is not in dispute. 1 are correct or not. The trial court has given valid and cogent reason while answering the issue no. 1 holding that the contention of the plaintiffs that their father hanumanthappa was the brother of deceased defendant pundalikappa is not in dispute. Further defendant pundalikappa admit that hanumanthappa died as a member of joint family leaving him, plaintiffs, their mother gundamma and a son eranna, the defendant has contended that schedule a and b properties are not the ancestral properties. It is his further contention that the land bearing sy. nos. 73, 74 and 228 of markhal village were belonging to nagamma- sister of the defendant and that the defendant got these properties from his sister. Further ex. d3, d4 and d5 produced by the defendant show that nagamma was the pattedar of sy. nos. 73, 74 and 228. With reference to appreciation of evidence on ex. pw. 1 in respect of properties in the name of nagamma who died after the death of hanumanthappa the father of plaintiffs, it has been held that said properties cannot be treated as ancestral properties and joint family properties. ( 12 ) AFTER perusing the findings and reasons recorded in the judgment of the trial court on issue no. 1, I am of the considered view that the said findings are based on evidence on record holding that the properties in question are held to be joint family properties of the father of plaintiffs hanumanthappa and the defendants respect of which, the shares have been given in favour of plaintiffs. On issue no. 2, placing reliance upon the judgment of the apex court and this court which are referred to at paragraph-17 the trial court has held on the basis of admitted facts stated in the written statement at paragraphs 2 and 3 it is rightly held that, after the death of plaintiffs' father hanumanthappa, their mother gundamma continued in joint family. The marriage of plaintiffs was celebrated by the defendant. Till their marriage they were maintained by the defendant and even after the death of gundamma they were looked after by the defendant. The marriage of plaintiffs was celebrated by the defendant. Till their marriage they were maintained by the defendant and even after the death of gundamma they were looked after by the defendant. With reference to the rival contentions urged by the parties, the trial court has recorded its finding holding that, after the Provisions of hindu women's right to property Act, 1937 came into force, the plaintiff's mother gundamma succeeded to the share of her husband as limited owner as she is entitled for maintenance in law. After the hindu Succession Act of 1956 came into force, under Section 14 (1), her right of maintenance has become the absolute unlimited right of ownership of her husbands property. Therefore, the trial court has recorded its finding after considering the law laid down by the apex court and this court in the case referred to at paragraph-17 of the trial court holding that the mother of plaintiffs' late gundamma succeeded to the property of her husband as absolute and unlimited owner. Therefore, the plaintiffs being the daughters as class-l heir are entitled to succeed to the said share of their father inherited through their mother. The said findings are based not only on the basis of material evidence but also in conformity with law laid down by the apex court on the question of law. ( 13 ) THE trial court has laid more emphasis on Section 14 (1) of the act of 1956 in this regard stating that, "any property possessed by a female hindu before or after the commencement of the act 1956, shail be held by her as full owner thereof and not as a limited owner. "referring to various decisions of the Supreme Court, the trial court in paragraph -18 has held that where a limited female owner succeeds to an estate, the succession to that estate on her death after 1956 will have to be decided on the basis of the date of death of the full owner". Further it has been held that a hindu widow hold the property in lieu of her maintenance as a limited owner is enlarged fo an absolute owner and into the full ownership of her after coming into force of the hindu Succession Act of 1956. ( 14 ) THE apex court in the case of c. Mosalimani Mudaliar VS. Further it has been held that a hindu widow hold the property in lieu of her maintenance as a limited owner is enlarged fo an absolute owner and into the full ownership of her after coming into force of the hindu Succession Act of 1956. ( 14 ) THE apex court in the case of c. Mosalimani Mudaliar VS. Idol of Sri Swaminathaswamy has considered the constitutional bench judgment reported in the case of S. R. Bommai VS. Union of India and it has laid down the law keeping in view the preamble of the constitution and articles 13 and 14 of the Constitution of India and the relevant aspect namely human dignity, it has clearly laid down the law at paragraph 14, which relevant portion of the said judgment is extracted as hereunder. "the basic structure permeates equality of status and opportunity. The personal laws conferring inferior status on women is anathema to equality. Personal laws are derived not from the Constitution but from the religious scriptures. The laws thus derived must be consistent with the Constitution lest fundamental rights. Right to equality is a fundamental right. Parliament, therefore, has enacted Section 14 to remove pre-existing disabilities fastened on the hindu female limited her right to property without full ownership thereof. The discrimination is sought to be remedied by Section 14 (1) enlarging the scope of acquisition of the property by a hindu female appending an explanation with it. " ( 15 ) THE decision in the above judgment would makes itabundantly clear that the plaintiff's mother gundamma after the death of her husband had the right of maintenance and that right has become unlimited under the Provisions to Section 14{1) and explanation part thereunder of the act of 1956. Therefore, the trial court, on proper appreciation of admitted facts and the law on the relevant points which issues has been rightly answered in favour of plaintiffs against the defendant and granted decree. ( 16 ) THE first appellate court, while assigning the reasons on the point no. Therefore, the trial court, on proper appreciation of admitted facts and the law on the relevant points which issues has been rightly answered in favour of plaintiffs against the defendant and granted decree. ( 16 ) THE first appellate court, while assigning the reasons on the point no. 1 framed by it, at paragraph-12 it has referred to the Provisions of Section 212 and 213 of old hindu law by mulla and Section 34 of the hindu law under chapter iv and interpreting Section 43 with reference to its application to hindu women's right to property Act, 1937 applicable to hyderabad area placing reliance on the division bench of this court reported in 1973 (2) Mysore law journal 267 but, has ignored the law laid down by the full bench of this court reported in AIR 1976 kar 217 and also the judgment of apex court reported in AIR 1987 SC 1493 which has been extensively considered by the trial court while answering the first point against plaintiffs and in favour of defendant holding that the suit schedule properties are not joint ancestral properties. The said finding recorded by the first appellate court while answering point no. 1 is contrary to the law laid down by the apex court and full bench of this court referred to supra and also the judgment of gujarath high court and jammu and kashmir high court and also is contrary to Section 14 (1} of the act of 1958. Therefore, the submission made by Sri manikappa patil, the learned counsel for plaintiff-appellants is well founded and same must be accepted as correct and answer the substantial question of law no. 1 in favour of plaintiffs. On the other hand, the contentions of the learned counsel for respondent-defendant Mr. niranjan has to be rejected in view of decisions referred to above. In my considered view, the findings and the reasons recorded by the trial court are legal arid valid as the same are in conformity with the law laid "down by the apex court and under the Provisions of Section 14 (1) of the hindu succession Act, 1956. niranjan has to be rejected in view of decisions referred to above. In my considered view, the findings and the reasons recorded by the trial court are legal arid valid as the same are in conformity with the law laid "down by the apex court and under the Provisions of Section 14 (1) of the hindu succession Act, 1956. ( 17 ) FOR the reasons stated supra, the second substantial questions of law must also be answered in favour of plaintiffs as the first appellate court has committed a grave error in setting aside the legal and valid findings and the reasons assigned by the trial court in the judgment and decree in favour of plaintiffs by applying the Provisions of the hindu law and the division bench judgment of this court. Further, keeping in view the law laid down by the apex court reported in AIR 1996 SC 1697 where the Supreme Court has extensively considered the preamble of constitution, fundamental rights and directive principles of state policy, human rights declaration adopted on 4th december 1986, this court is of the view that, the trial court has assigned valid and cogent reason in answering the issues in favour of plaintiffs. Therefore, the first appellate court has gravely erred in setting aside a well reasoned judgment and decree of the trial court and it has further erred in recording its findings which are contrary to the law laid down by the apex court and this court and also contrary to Section 14 (1) of the act of 1956. Therefore, the second substantial question of law also would arise for consideration of this court in this second appeal for the reason that the first appellate court has erred in law in setting aside the findings of the trial court which are in favour of the plaintiff and therefore the first appellate court also erred in holding that the defendant is entitled to succeed to the properties in question. Accordingly, the same is answered in favour of plaintiffs. Therefore, the impugned judgment and decree of the first appellate court in setting aside a well considered and reasoned judgment of the trial court is bad in law. ( 18 ) FOR the foregoing reasons, i deliver the following judgment: the appeal is allowed. Impugned judgment of the first appellate court is set aside. The judgment of the trial court is restored.