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2005 DIGILAW 742 (KAR)

SANTOSH v. SARASWATHIBAI

2005-11-15

V.G.SABHAHIT

body2005
( 1 ) THIS appeal by the defendants is directed against the judgment and decree passed by the Court of District. Judge, Bidar, in R. A. No. 32/2000 dated 2-1-2003 allowing the appeal and setting aside the judgment and decree passed by the court of Civil Judge (Sr Dn.), basavakalyana, in O. S. No. 210/1993 dated 11-8-2000 and decreeing the suit of the plaintiff as prayed for, for declaration of title and injunction against the defendants. ( 2 ) THE essential facts of the case leading upto this appeal with reference to the rank of the parties before the trial Court are as follows : the plaintiffs filed the suit for declaration of their title to the schedule property and for permanent injunction against the defendants from interfering with the peaceful possession and enjoyment of the schedule property. The suit schedule property is described as 6 acres 33 guntas of land in sy. No. 73 situated at Khandala village, basavakalyana Taluk. ( 3 ) IT is averred in the plaint that the plaintiffs are the daughters of Sundrabai wife of trimukhrao Patil. Defendant No. 4 is the step mother of the plaintiffs. Defendant No. 3 is the widow of defendant No. 4's son and defendants 1 and 2 are the sons of defendant no. 3. Defendants 1 and 2 were minors and they are under the care and protection of the real mother-defendant No. 3. It is averred in the plaint that Sundrabai was the absolute owner in possession of the schedule property in Sy. No. 73 measuring 6 acres 33 guntas. She was the divided member of the family and she was residing separately from the defendants in House no. 1 -9 situated at Khandala village and the suit land was allotted to her share. The mother of the plaintiffs was cultivating the suit land personally as absolute owner and after her death on 16-10-1992 the plaintiffs being the daughters who are only heirs have succeeded to their property owned by sundrabai. However, since the defendants filed objections before the Village Accountant for entering the name of the plaintiffs and also tried to interfere with the possession and enjoyment of the suit schedule property, the suit was filed for declaration of title and injunction. However, since the defendants filed objections before the Village Accountant for entering the name of the plaintiffs and also tried to interfere with the possession and enjoyment of the suit schedule property, the suit was filed for declaration of title and injunction. ( 4 ) THE suit was resisted by the defendants by filing written statement denying the material averments made in the plaint that sundrabai mother of the plaintiffs was the absolute owner of the schedule property. It is contended that the property was allotted to Sundrabai in compromise decree that was passed in O. S. No. 34/1954 in lieu of her maintenance and as per the terms of compromise decree, the property has reverted back to defendants 1 and 2 in the said suit viz. , defendant No. 4 in the present suit and wherefore, after the death of Sundrabai the property has reverted to defendant No. 4 as per the terms of compromise decree in O. S. No. 34/64 and wherefore plaintiffs do not have any property to inherit as property has reverted as per compromise decree in o. S. No. 34/64 and wherefore the suit is liable to be dismissed. ( 5 ) THE trial Court framed issues on the basis of the above pleading. On behalf of the plaintiffs, the first plaintiff was examined as PW. 1 and also examined PW-2 and got marked Exs. P1 to P29. On behalf of the defendants, third defendant was examined as DW. 1, defendant also examined as DWs. 2 and 35 and got marked Ex. D1 - compromise deed and Exs. D2 to D4. The trial Court after considering the contention of the parties and the material on record answered the issues in favour of the plaintiffs by holding that the property was allotted to sundrabai in lieu of maintenance after coming into force of the Hindu Succession Act (for short 'the Act') and in the compromise decree Ex. D1 itself it is stated that schedule property had been in possession of sundrabai even prior to the said compromise decree in O. S. 34/64 as per Ex. D1 and wherefore the trial Court held that Ex. D1 itself it is stated that schedule property had been in possession of sundrabai even prior to the said compromise decree in O. S. 34/64 as per Ex. D1 and wherefore the trial Court held that Ex. Dl is the compromise decree entered into between the parties which has become final and as per the said compromise decree the property reverts back to defendants 1 and 2 therein and accordingly accepted the contention of the defendants that after the death of Sundrabai the property has reverted to the defendants and accordingly held that plaintiffs did not succeed to the schedule property after the death of Sundrabai as the property reverted to defendant No. 4 as per the terms of the deree passed as per Ex. D1 in O. S. No. 34/64 dated 20-7-64 and accordingly dismissed the suit of the plaintiffs. Being aggrieved by the said judgment and decree the plaintiff's preferred R. A. 32/ 2000 on the file of District Judge, Bidar and the first appellate Court by judgment dated 2-1-2003 held that the trial Court was not justified in holding that the property reverted as per the terms of Ex. D1 in view of the provisions of Section 14 (1) as Section 14 (1) of the Act applies even to the limited estate after coming into force of the Act and in view of the same, the property became the absolute property of Sundrabai and after her death the plaintiffs have succeeded to the schedule property and accordingly reversed the judgment and decree passed by the trial court and decreed the suit of the plaintiffs. Being aggrieved by the said judgment and decree, defendants 1 to 4 have preferred this appeal which was admitted on 11 -7-2003 for consideration of the following substantial questions of law : (1) Whether the finding of the lower ap pellate Court thai the property granted to the plaintiff's mother Smt. Sundrabai in a compromise in O. S. No. 34/64 had ripened into a full state under Section 14 (1) of the hindu Succession Act is bad in law ? (2) Whether the provisions of sub-section (2) of Section 14 applies and that by the terms of compromise the reversion of the property has to take place in favour of defendant No. 4. (2) Whether the provisions of sub-section (2) of Section 14 applies and that by the terms of compromise the reversion of the property has to take place in favour of defendant No. 4. In the alternative whether plaintiff's are entitled to relief of partition alter moulding the relief of partition after moulding the reliefs appropriately to the extent of their entitled share ? ( 6 ) I have heard the learned counsel appearing for the parties on the above said substantial questions of law. ( 7 ) THE learned Senior counsel appearing for the appellants submitted that after coming into force of the Hindu Succession act with effect from 17-6-1956 question of considering limited estate of widow does not arise as widow succeeded to the property as class-1 heir along with other heirs and what would become absolute is the right of the widow which she has to succeed to the property in view of the provisions of the Act and in the present case, on the death of the husband of Sundrabai-Trimukhrao Patil the share to which the Sundrabai was entitled to was only 1/32 as Trimukhrao Patil and his son had half share and in the notional partition Trimukhrao Patil would get half share in the schedule property to which the two widows together with can take 1/16th share and the son and daughters would take 1/16th share and Sundrabai being one of the widows would be entitled to 1/32 share and that would become absolute in view of the provisions of Section 14 of the Act and the right of Sundrabai in the schedule property would not become absolute in respect of the remaining portion of the property and the learned Senior counsel submitted that the first appellate Court was not justified in dismissing the suit of the plaintiffs. In support of his contention, he has relied upon the decisions of the Supreme Court in raghubir Singh v. Gulab Singh ( AIR 1998 sc 2401 ) Kothi Satyanarayana S. Galla sithayya ( AIR 1987 SC 353 ) and the decision of this Court in RSA. No. 213/2000 dated 24-7-2002. the learned counsel further submitted that the question of moulding the relief and granting relief of partition would not arise as all the properties have not been included in the suit. No. 213/2000 dated 24-7-2002. the learned counsel further submitted that the question of moulding the relief and granting relief of partition would not arise as all the properties have not been included in the suit. ( 8 ) ON the other hand, the learned counsel appearing for the respondents submitted that the first appellate Court has rightly held that in view of the fact that property had been given to Sundrabai for maintenance after coming into force of the Hindu succession Act, the property became absolute in view of the provisions of Section 14 (1) of the Act and the same would not be taken out of the said provision merely beause of passing of the decree for permanent injunction under Ex. D1 and therefore the first appellate Court has rightly reversed the judgment and decree passed by the trial court by holding that the limited estate became absolute under Section 14 (1) of the act and Section 14 (2) of the Act is not applicable to the present case. ( 9 ) I have considered the contention of the learned counsel appearing for the parties in the light of the principles laid down by the Hon'ble Supreme Court and this court in the citations relied upon by the learned counsel appearing for the parties and I answer the substantial questions of law as follows : (1) In the negative. (2) In the negative. ( 10 ) IT is clear from the perusal of the material on record that admittedly trimukhrao Patil died after coming into force of the Hindu Succession Act on 17-6-1956 as Trimukhrao Patil died in 1957. It is clear from the pleading of the parties that defendants do not dispute that the schedule property was given to Sundrabai in lieu of her maintenance. However, what is contended by the defendants is that property was given in view of the decree passed under Ex. D1 and as per the said decree. Sundrabai was given only interest during her life time and as per the terms of the deccree, property was to revert to defendants 1 and 2 in the said suit. However, what is contended by the defendants is that property was given in view of the decree passed under Ex. D1 and as per the said decree. Sundrabai was given only interest during her life time and as per the terms of the deccree, property was to revert to defendants 1 and 2 in the said suit. It is well settled that when property is given by way of maintenance after coming into force of the Hindu Succession act and certain conditions are imposed by limiting the right of the beneficiary widow during her life time and reversion clause is included in the decree in view of the provisions of Section 14 (1) of the Act would apply and she would become absolute owner of the property. The question specifically came up for consideration of the Hon'ble supreme Court in Nazar Singh v. Jagjit Kaur (1996) 1 SCC 35 : ( AIR 1996 SC 855 ) wherein the Hon'ble Supreme Court has considered the effect of property given before coming into force of Section 14 (1) of the Act and after corning into force of Section 14 of the act and has held in para 9 as follows :"where, however, the property is given to a female Hindu towards her maintenance after the commencement of the Act, she becomes the absolute owner thereof the moment she is placed in possession of the said property (unless of course, she is already in possession) notwithstanding the limitations and restrictions contained in the instrument, grant or award whereunder the property is given to her. " ( 11 ) IN view of the above said principle laid down by the Hon'ble Supreme Court which is applicable to the facts of the case on all fours, 1 hold that the first appellate court was justified in holding that notwithstanding the reversion clause recited in Ex. D1 in view of the contents of Ex. D1 and the fact that she was already in possession of the property even prior to the decree passed under Ex. D1 as the same was given to her in lieu of her maintenance which is contained in Ex. D1 in view of the contents of Ex. D1 and the fact that she was already in possession of the property even prior to the decree passed under Ex. D1 as the same was given to her in lieu of her maintenance which is contained in Ex. Dl, I hold that finding of the first appellate Court holding that Sundrabai had become the absolute owner of the schedule property in view of the provisions of section 14 (1) of the Act is justified and provisions of Section 14 (2) of the Act is not applicable to the facts of the case and question of molding the relief for partition would not arise in view of the above said finding that Section 14 (1) of the Act was applicable and Sundrabai was absolute owner of the schedule property. It is also clear from the perusal of the material on record that as per the averments made in the plaint, Sundrabai was divided from the family and she was allotted the schedule property and a house and wherefore, question of filing suit for partition by Sundrabai does not arise in respect of other properties. Accordingly, I answer the substantial questions of law and pass the following order: the appeal is dismissed. The judgment and deree passed by the Court of District judge, Bidar in RA. No. 32/2000 dated 2-1-2003 is confirmed. However, there shall be no order as to costs in this appeal. Appeal dismissed. --- *** --- .