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2001 DIGILAW 195 (KAR)

Hanumamma v. M. T. Ramalingaiah

2001-02-27

V.GOPALA GOWDA

body2001
JUDGMENT V. Gopala Gowda, J.— This appeal is filed by the 2nd claimant challenging the legality and validity of the order dated 25.2.2000 passed by the II Additional District Judge in LACA 203 of 1989 in confirming the order dated 16.3.1987 passed by the I Additional Civil Judge and C.J.M., Mysore, urging various legal contentions. 2. The parties are referred to as per their rank in the reference Court. 3. The brief facts of the case are that the land measuring 9 acres 9 guntas of dry land in Sy. No. 11/2 and .07 guntas of garden land in Sy. No. 11/1 in all measuring 9 acres and 16 guntas in Sy. No. 11 of Devanur Village was acquired by the Special Land Acquisition Officer, City Improvement Board, Mysore, for formation of house sites by issuing a preliminary notification dated 7.8.1968 and the possession of the land was taken over by the erstwhile CITB, Mysore, on 24.10.1981. The first claimant filed claim petition before the reference Court seeking compensation contending that the land in Sy. No. 11/2 consisting of two items of the property namely 9 acres 2 guntas of dry land and 07 guntas of garden land totally 9 acres 9 guntas was the joint family property of his father eversince he had purchased the same through a registered sale deed dated 21.6.1942; that during partition in the year 1947, vide registered partition deed dated 25.8.1947 the property in question fell to his share; that since then he has been in exclusive possession and enjoyment of the said land till the possession of the property was taken over by the erstwhile CITB. The 2nd claimant appeared as objector claiming to be the exclusive owner of the property in question on the ground that pursuant to the judgment and decree passed by the learned Civil Judge at Mysore in O.S. No. 8 of 1950-51 dated 31.8.1951 marked as Exs.P.32 and P.33 respectively wherein the alienation made by her mother in favour of the father of the first claimant was challenged by her contending that she is entitled to succeed to the property as the reversioner as her mother had a limited interest upon the property in question pursuant to the Hindu Succession Act, 1956 was enacted and it was held that the sale contracted by her mother was not binding on her except the extent of Rs. 700/- which should be paid by her to the father of the first claimant after the death of her mother. Therefore, she contended that the first claimant has no right upon the property in question for claiming compensation. Since there was a dispute with regard to the claim in respect of the land in question, the land acquisition officer made reference to the learned I Additional Civil Judge and Chief Judicial Magistrate, Mysore, which is a reference Court and the case was numbered as LAC No. 119 of 1982. The reference Court held that first claimant is the owner of Sy. No. 11/2 measuring 9.02 guntas dry and .07 guntas of garden land and he is entitled for the compensation in respect of the same and since he had not claimed any interest in respect of .07 guntas, the 2nd claimant was held to be entitled for compensation. Being aggrieved by the said order, the 2nd claimant preferred LACA No. 203 of 1989 on the file of the II Additional District Judge at Mysore. After hearing, the said appeal also came to be dismissed confirming the order passed by the reference Court. Being aggrieved by the said order, the 2nd claimant-appellant has preferred this second appeal urging various legal grounds. 4. Heard the learned Counsel appearing for the respective parties and perused the impugned order. 5. After hearing, the said appeal also came to be dismissed confirming the order passed by the reference Court. Being aggrieved by the said order, the 2nd claimant-appellant has preferred this second appeal urging various legal grounds. 4. Heard the learned Counsel appearing for the respective parties and perused the impugned order. 5. The reference Court on the basis of the material evidence on record has held that the first claimant has established his ownership and possession over the land in question from 22.8.1947 with reference to the partition deed Ex.P.1 which was being more than 30 years old and the oral evidence of PW-1 adduced on behalf of the first claimant and further with reference to Exs.P-2 to P-8 and Ex.P-12 and 13 the revenue receipts for the year 1947-48, 1947-48, 1951-52, 1952-53, which disclosed the payment of the land revenue by first claimant for several years including that of the year 1975 and Ex.8 P.9 to P.11 the patta books supported by the oral testimony of PW-1; Ex.P.17 the record of right wherein the name of the first claimant was mutated on the basis of the partition deed Ex.P.1 which is supported by Ex.P.18 and considering the reply made by the Special Tahsildar, Land Reforms on 29.9.1981 as per Ex.P.15 on an application made by the first claimant enquiring regarding the application made under Section 48A of Karnataka Land Reforms Act in respect of the land in question and also the encumbrance certificate as per Ex.P.16, the reference Court has held that the first claimant has established his title and interest upon the property and that he has been in possession and enjoyment of the property in question subsequent to the family partition till the possession of the same was taken over by the erstwhile CITB. Further considering the claim of the 2nd claimant that she has vested right in the property acquired as a reversionary, with reference to the judgment and decree in O.S. No. 8 of 1950-51 has held that the said judgment is not binding on the first claimant as he was not a party tot he said proceedings and the same cannot be subjected to the said judgment and decree merely because he is the son of Dodda Thammaiah-Defendant in that suit because by then PW-1 was a separated member of the joint family under the registered partition Ex.P-1. With reference to the contention of the second claimant that the first claimant was a representative of his father, the reference Court has held that the said contention does not hold good because partition had taken place in the year 1947, about three years prior to the institution of the suit; that when once the partition takes place in a Hindu Joint Family the status of the coparcener is severed and he becomes an independent entity and has no connection whatsoever as a coparcener in the joint family or has any interest in the joint family property of other coparceners. 6. The learned Counsel for the 2nd claimant has made hectic efforts to show that the said findings are erroneous in law for the reason that the father of first claimant was a party to the original suit proceedings in the year 1950; that he has not pleaded in the written statement that there was a family partition and therefore he was not interested in the land bearing Sy. No. 11; that in this view of the matter, the interest of the father of the first claimant was effectively depended by his late father as he is the representative of the property and it is permissible under Section 146 of Code of Civil Procedure. I have examined this contention. The reference Court on the basis of the material evidence on record and on the undisputed facts namely that there was a partition in the year 1947 as per Ex.P.1; the suit was instituted in the year 1950 i.e. subsequent to the partition has held that merely because the father of the first claimant has not taken up a plea that there was a partition and Sy. No. 11 has fallen to the share of first claimant and therefore he is not interested with the original suit proceedings would not take away the right accrued in favour of the first claimant in respect of the property in question. No. 11 has fallen to the share of first claimant and therefore he is not interested with the original suit proceedings would not take away the right accrued in favour of the first claimant in respect of the property in question. The finding recorded though does not state so in many sentences, while assigning its reasons the reference Court has considered the submission made on behalf of the 2nd claimant with reference to Ex.P-1 the partition deed which was of the year 1947 and subsequent record of rights, index of lands and katha which stood in the name of the first claimant from the year 1947 onwards and has held that the same would clearly establish the fact that the first claimant has been in possession and enjoyment of the property in question as the owner of the same in his individual right as absolute owner and he did claim his right upon the property through his father as contemplated under Section 146 of Code of Civil Procedure. Therefore, the contention that the first claimants father has represented him in the earlier original suit proceedings in O.S. No. 8 of 1950-51 is wholly untenable in law and as such the submission made by the learned Counsel on behalf of the second claimant that the judgment and decree Exs.P-32 and 33 are binding upon the first claimant cannot be accepted as the same is untenable in law for the reasons recorded by the reference Court, the first appellate Court and also by this Court. Further contention that defective title of the property in question was passed to the father of the first claimant and as such the first claimant cannot have a better title and right upon the property is also untenable in law and this Court cannot accept this submission when the property of the joint family was effectively enjoyed by the first claimant after the family partition for the reason that the status of the joint family was severed the moment Ex.P-1 came into existence and therefore the submission made by the learned Counsel on behalf of the second claimant that the father of the first claimant had a defective title and therefore he would not get better title upon the property in question is considered by the Courts below and this Court and I find no merit in this contention in view of the findings recorded by the Court below on the basis of the evidence on record and the law laid down in this regard and further the Courts below have also recorded a categorical finding holding that first claimant has perfected his title to the property by adverse possession. The reference Court at Paragraph 14 with reference to the law laid down on the point reported in AIR 1948 Bom 232 with regard to the exparte decree and the dismissal of the original suit No. 138 of 1954 has held that the 2nd claimant had no vested reversionary right over the acquired lands since her mother who was the previous owner, though with limited interest and considering the fact that from the date of the filing of the written statement in the later suit in O.S. No. 138 of 1954 the first claimant is in possession and enjoyment of the land for more than 12 years till it was taken possession by the Government, the reference Court has held that the first claimant has also perfected his title by way of adverse possession and the further contention of the 2nd claimant that she was minor at the time of dismissal of the suit in O.S. No. 138 of 1954 and as such the same is not binding on her has been rejected by the reference Court. On an appeal filed by the 2nd claimant, the first appellate Court referring to the issues framed by the reference Court and also considering the evidence on record has recorded its finding concurring with the findings of the reference Court. Either the second claimant or her mother should have taken legal steps against the first claimant in respect of the property in question immediately after the written statement was filed in the said suit. Undisputedly, they did not take any legal steps against the first claimant and therefore the second claimant and her mother have lost their right if any upon the property in question. 7. The learned Counsel for the appellant has placed reliance upon the judgment of the Apex Court in AIR 1999 SC 656 particularly at Paragraph 11 to show that prior to Hindu Succession Act, 1956 the mother of the 2nd claimant/appellant had the limited right; therefore, the alienation of the property by her mother is without authority of law and therefore the sale of the property has been rightly set aside by the competent Civil Court as per the judgment and decree in O.S. 8 of 1950-51 as per Exs.P-31 and 32 at the instance of the 2nd claimant that though the first claimant has been in possession his right is limited right to enjoy the during the lifetime of the widow and that therefore the reference Court should have taken into consideration this important aspect of the matter with reference to Section 14(1) of the Hindu Succession Act, 1956. Further reliance is placed upon the Full Bench judgment of the Patna High Court in 1955 Patna 581 with reference to Section 14 wherein interpreting the phrase "possessed by" has laid down a law at paragraph (7) that the expression "any property possessed by a female Hindu" occuring in Section 14 must be broadly interpreted in the context of the language of the Sub-section and must be taken simply to mean "any property owned by a female Hindu" at the date of the commencement of the Act and submitted that Section 14(1) has no application to the facts of this case as the alienation made by the appellant's mother was totally impermissible in law which has been rightly considered by the learned Judge in O.S. No. 8 of 1950-51 and that this material evidence has not been taken into consideration cannot be accepted. The law laid down with reference to the facts of the said case is not applicable to the facts of this case having regard to the fact that a categorical finding has been recorded by the Courts below on the basis of severance of status of joint family of first claimant way back in the year 1947 as per Ex.P-1, the claimant has been in possession as the owner of the property right from that date till the date of acquisition of the land. Hence, the contentions urged placing reliance upon the aforesaid judgment are misconceived and this Court cannot accept the same. Further reliance placed upon the Full Bench judgment of this Court in 1964 (1) Mys LJ 261 & C. Masilamani Mudaliar and Others Vs. The Idol of Sri Swaminathaswami Swaminathaswami Thirukoli and Others, (1996) 3 AD SC 250 that the first claimant was in the permissive possession; therefore the question of applying Section 14(1) of the Hindu Succession Act has no application to the facts of this case and the reliance placed upon the aforesaid case deals with the permissive possession whereas in this case it is not the permissive possession but the first claimant has been in possession and enjoyment as an ostensible owner of the property in question. Further the Apex Court in C. Masilamani Mudaliar and Others Vs. The Idol of Sri Swaminathaswami Swaminathaswami Thirukoli and Others, (1996) 3 AD SC 250 following the law laid down by the Constitutional Bench judgment in the case of S.R. Bommai and others etc. etc. Vs. Union of India and others etc. etc., AIR 1994 SC 1918 and considering the preamble of the Constitution and the fundamental rights of citizens under Articles 13, 14 and 15 of the Constitution and the provisions of the Hindu Succession Act, 1956; considering the human dignity which is part of human rights and the United Nations declarations of 1986, has succinctly laid down the law regarding the nature of right of Hindu women under Section 14(1) Explanation Part thereunder and held that the right of a Hindu Women is unlimited. In view of the law laid down by the larger Bench of the Apex Court the reliance placed upon the decision in 1999 (2) SCC 699 by the learned Counsel for the second claimant/appellant is wholly untenable in law and the same is devoid of merits and therefore the submission made in this regard cannot be accepted by this Court. For the reasons stated supra, the findings of Courts below do not call for interference with by this Court. In my considered view, the judgment and decree passed by the Courts below are in conformity with the law laid down under the provisions of the Act. Therefore, the appeal must fail and accordingly, this appeal is dismissed.