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2003 DIGILAW 920 (KAR)

PARVATHAMMA v. KAMALAMMA

2003-11-04

K.L.MANJUNATH

body2003
K. L. MANJUNATH, J. ( 1 ) THIS appeal is by the plaintiff. The plaintiff filed a suit against the respondents seeking partition and separate possession of share in all the plaint schedule properties. One Paruvegowda of Shashivala village of Arasikere taluk had two sons by name, Basavegowda and Malle-gowda. Mallegowda had a wife by name Marulamma and that the plaintiff is the only daughter of Mallegowda and Marulamma. Respondents-defendants are the legal representatives of the other son of Paruvegowda, namely, Basavegowda. According to the plaint averments, Mallegowda died 50 years prior to the institution of the suit. The suit is instituted in the year 1993. Therefore, it has to be presumed Mallegowda died in the year 1943 and that three years later to his death his widow Marulamma also died having behind her the plaintiff as her sole legal heir. After the death of Mallegowda and Marulamma, his brother Basavegowda continued to be in possession of all the joint family properties and was managing the properties as a karta of the family till his death and thereafter the defendants are managing the suit schedule properties. Therefore, the plaintiff requested the Court to allot half share in all the suit schedule properties. ( 2 ) THE defendants contested the case by filing a detailed written statement. In the written statement, the relationship between the parties was admitted. According to the defendants, Mallegowda died in the year 1932 leaving behind him his widow-Marulamma and plaintiff. According to them within six months thereafter his widow Marulllam also died. Except the properties situated in Rudrapura village of Tiptur taluk, the defendants admitted the remaining suit properties as ancestral properties. According to them, the plaintiff's marriage was performed in a grand scale in lieu of her share, therefore she is not entitled to claim any share in the properties and requested the Court to dismiss the suit. Based on the above pleadings, the following issues were framed by the trial Court : ( 3 ) BEFORE the trial Court, the plaintiff's son Chidananda Murthy has been examined as Power of Attorney Holder of the plaintiff. In addition to that, the plaintiff has relied upon the evidence of one Chennabasappa and Mehaboob who have been examined as P. Ws. 2 and 3. The plaintiff has also relied upon Exs. P-1 to P-24. In addition to that, the plaintiff has relied upon the evidence of one Chennabasappa and Mehaboob who have been examined as P. Ws. 2 and 3. The plaintiff has also relied upon Exs. P-1 to P-24. On behalf of the defendants, the 1st defendant Kamalamma has been examined as D. W. 1. In addition to that the defendants also have examined three more witnesses as D. W. 2 to D. W. 4 and have relied upon Exs. D-1 to D-14. The trial Court after appreciating the evidence adduced by the parties, held that Mallegowda died in the year 1941 and that the father of the defendants Basavegowda was the karta of the joint family, since the father of the plaintiff died in the year 1941, the plaintiff is entitled to claim a share as per the Mysore Hindu Law Women's Rights Act, 1933 and further held that the properties situated in Rudrapura village were also purchased out of the joint family income. Applying the provisions of the Mysore Hindu Law Women's Rights Act, 1933, the trial Court held that immediately after the death of Mallegowda, his widow Marulamma succeeded to half of the share to be allotted in favour of Mallegowda and that the plaintiff being his daughter was entitled to 1/4 of Mallegowda's share and ultimately the suit of the plaintiff decreed by holding that she is entitled to 1/8 share in all the joint family properties. Being not satisfied with the Judgment and decree of the trial Court, the present appeal is filed by the plaintiff. ( 4 ) ACCORDING to the learned counsel for the appellant, the Mysore Hindu Law Women's Rights Act, 1933, is not applicable to the facts and circumstances of this case and that the parties are governed by the Hindu Succession Act 1956 and contends that the plaintiff being the only daughter of Mallegowda and Marulamma is entitled to half share in all the plaint schedule properties. Alternatively he contends that even if the Mysore Hindu Law Women's Rights to Property Act, 1933, is made applicable to the facts and circumstances of the case, the plaintiff-appellant is entitled to claim 3/8 share in all the joint family properties. Admittedly, the mother of the plaintiff died after the death of her father. There is no dispute in regard to the death of Mallegowda and his wife Marulamma. Admittedly, the mother of the plaintiff died after the death of her father. There is no dispute in regard to the death of Mallegowda and his wife Marulamma. Therefore, he contends that the plaintiff being the only daughter of Marulamma is entitled to succeed to the share of Marulamma also. Therefore, he requests this Court to set aside the Judgment and decree passed by the trial Court and modify the same in accordance with law. ( 5 ) PER contra, Sri V. T. Rayareddi, appearing for the respondents supporting the Judgment of the trial Court contends that the parties are not covered by Hindu Succession Act 1956 and are governed by the Mysore Hindu Law Women's Rights Act, 1933. He further contends that even though Marulamma was entitled for half of Mallegowda's share, her share cannot be considered as her absolute property or as Streedhan property. She was only a limited owner till her death and that after her death the properties will revert back to Basava-gowda, the other brother of deceased Mallegowda. Therefore, he requests this Court to dismiss the appeal. ( 6 ) HAVING heard the counsel for the parties, the following questions will arise for consideration of this Court : (1) When a co-parcener died in the year 1940 or 1941 leaving behind him his widow and a daughter, whether the parties are governed by the Hindu Succession Act, 1956 or the Mysore Hindu Law Women's Rights Act, 1933? (2) Whether a limited share of widow will revert back to her brother-in-law or to her daughter? ( 7 ) IT is not in dispute that the Mysore Hindu Law Women's Rights Act, 1933 has come into force on the 1st day of January, 1934 and received the assents of his Highness, the Maharaja on the 20th day of June, 1933. The Hindu Secession Act, 1956 has come into force on 17-6-1956. Therefore, it is clear that the parties are governed by the provisions of Mysore Hindu Law Women's Rights Act, 1933. ( 8 ) THEN the only question that remains for consideration of this Court is whether the plaintiff will succeed to the share of Marulamma after her death. It is not in dispute that Marulamma, the widow of Mallegowda had not become the absolute owner of the properties which were to be allotted to her under notional partition. ( 8 ) THEN the only question that remains for consideration of this Court is whether the plaintiff will succeed to the share of Marulamma after her death. It is not in dispute that Marulamma, the widow of Mallegowda had not become the absolute owner of the properties which were to be allotted to her under notional partition. The rights of Marulamma in the suit schedule properties cannot be considered as a Streedhan property as she was not the only legal heir of Mallegowda, as he had a daughter. Further, the plaintiff herein cannot claim an absolute ownership in regard to the properties allotted to her at a partition. Her ownership has to be considered as a limited ownership. The question is on the termination of the limited estate of a female what will happen to the properties allotted to a female owner. Section 21 of the Mysore Hindu Law Women's Rights Act, 1933 reads as hereunder :"section 21 Succession on termination of limited estate :- When the termination of the limited estate of a female owner, the property comprised in such estate shall pass to the person who at the time is the next heir of the last full owner. "from this it is clear that on the termination of limited estate of a female owner, the property comprising any such estate shall pass to the person who at the time is the next heir of the last full owner. Mallegowda was the last full owner in the instant case. When the inheritance open he had a widow and daughter, therefore widow took the properties as a limited owner. The succession open to the daughter after the widow took as a full owner. Similarly, after the death of Marulamma in view of Section 21 of the Act, the plaintiff will inherit to the said properties. As contended by Sri V. T. Rayareddi, the defendants father namely, late Basevegowda, the brother of Mallegowda will not get any right over the properties allotted to the widow of Mallegowda. ( 9 ) THE Trial Court without discussing the rights of the plaintiff in regard to the share of her mother has decreed the suit declaring that she is entitled to claim only 1/8 share without considering her right in respect of the properties of Marulamma. ( 9 ) THE Trial Court without discussing the rights of the plaintiff in regard to the share of her mother has decreed the suit declaring that she is entitled to claim only 1/8 share without considering her right in respect of the properties of Marulamma. In view of Section 21, it has to be held that in addition to the properties allotted to the plaintiff by the Trial Court, the appellant plaintiff is also entitled to claim the share of her mother Marulamma. ( 10 ) IN the circumstances, the Judgment and decree of the trial Court are required to be modified by Holding that instead of 1/8 share, the appellant plaintiff is entitled to 3/8 share in all the plaint schedule properties. ( 11 ) IN the result, the appeal is allowed in-part by holding that the plaintiff appellant is entitled to 3/8 share in all the plaint schedule properties. In the circumstances, parties to bear their costs. Appeal allowed. --- *** --- .