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2005 DIGILAW 853 (KAR)

Deveerawwa v. Gangawa

2005-12-19

V.G.SABHAHIT

body2005
JUDGMENT V.G. Sabhahit, J.—This appeal by the Defendants-17 to 21 is directed against the judgment and decree passed by the Court of District Judge, Haveri in R.A. No. 14 of 2001 (Old No. 3 of 1996) dated 31.1.2003 reversing the judgment and decree passed by the Civil Judge and Prl. J.M.F.C., Ranebennur in O.S. No. 60 of 1989 dated 13.12.1995 dismissing the suit of the plaintiffs.The He first appellate Court has decreed the suit of the Plaintiffs by holding that Plaintiffs-1 and 2 along with Defendants-18 to 21 are entitled to equal share in the land bearing R.S. No. 2/1/1 of Aladakatte covered under Ex.P-9; that the Plaintiffs and Defendants-18 to 21 are also entitled to a share, each, out of half share, in land bearing R.S. No. 28/4C/1, covered under Ex.P-11; that the Plaintiffs-1 and 2 along with Defendants-18 to 21 are entitled to equal share out of 1/3rd share in land bearing R.S. No. 28/3 covered under Ex.P-10; that the Plaintiffs-1 and 2 and Defendants-18 to 21 are entitled to share, each, out of 1/5th share, out of 50% of total area of land bearing R.S. No. 28/4C/2 of Aladakatte. Further, Plaintiffs-1 and 2 and Defendants-18 to 21 are entitled to a share, each, out of half share, in land bearing R.S. No. 10/2 of Aladakatte and further Plaintiffs-1 and 2 and Defendants-18 to 21 are entitled to equal share in house property bearing VPC Nos. 6A, 7B, 31 and 40 of Aladakatte. 2. The essential facts leading up to this appeal with reference to the rank of the parties before the trial Court are as follows: Plaintiffs-1 and 2 filed the suit for partition and separate possession of their 8/42 share in the suit schedule properties and for costs. It is averred in the plaint that Kallappa was the propositor. He died in the year 1950 leaving behind his wife Gurushantavva who died in the year 1968 and her five sons and two daughters became her legal heirs. Chennappa died leaving behind his wife - Gangavva - first Plaintiff and daughter Indravva - second Plaintiff. Eshwarappa is Defendant No. 11 in the suit and his son Iranagouda is the Defendant No. 16. Basanagouda is Defendant No. 12. Rudragouda is Defendant No. 13. Iravva is Defendant No. 14 and Chandavva is Defendant No. 15. Chennappa died leaving behind his wife - Gangavva - first Plaintiff and daughter Indravva - second Plaintiff. Eshwarappa is Defendant No. 11 in the suit and his son Iranagouda is the Defendant No. 16. Basanagouda is Defendant No. 12. Rudragouda is Defendant No. 13. Iravva is Defendant No. 14 and Chandavva is Defendant No. 15. Malleshapa died in the year 1977 leaving behind his wife Mahalingavva - Defendant No. 1 and Defendants-2 to 10 are her children. It is averred in the plaint that the second son of Kallappa - Chennappa died in the year 1979 and first Plaintiff is his wife and second Plaintiff is his daughter. It is averred that marriage of the first Plaintiff with Chennappa was held on 16.5.1949 in the presence of parents of Chennappa. The father of first Plaintiff by name Halappa comes from Magod village in Ranebennur Taluk and is residing in his father-in-law's house at Aladakatti in Hirekerur Taluk after marrying Oje Eravva. Uncle of the first Plaintiff is residing in Battikoppa village, Hirekerur Taluk and it is he who arranged the marriage of first Plaintiff with Chennappa. The first Plaintiff was born on 5.6.1935 and since Plaintiff No. 1's father was residing in his father-in-law's house, his surname was called as Kallimani but his real surname is Basanagoudra. The second Plaintiff was born on 12.5.1955 in Aladakatti village and her name is entered in the birth register. It is further averred that Defendant No. 17 is not the legally wedded wife of Chennappa and Defendants-18 to 21 are not the sons of deceased Chennappa. In order to deprive the share of the Plaintiffs, Defendants-2, 3, and 11 to 13 colluded with Defendant No. 17 and got entered her name in respect of the suit schedule properties and also entered into nominal sale deed of the year 1980. Plaintiffs objected to the same and the Plaintiffs had filed R.T.S. appeal in this regard. Defendants have created the entries in order to deprive of the Plaintiffs' 8/42 share in the suit schedule properties. Further, Defendants have falsely alleged that first Plaintiff has become a 'sanyasi' and a devotee of Devi Yellamma and therefore the suit. 3. The suit was resisted by the Defendants. Defendant No. 13 filed written statement contending that the suit is not maintainable. Further, Defendants have falsely alleged that first Plaintiff has become a 'sanyasi' and a devotee of Devi Yellamma and therefore the suit. 3. The suit was resisted by the Defendants. Defendant No. 13 filed written statement contending that the suit is not maintainable. He denied the relationship of the first Plaintiff as wife of the deceased Chennappa and also denied that second Plaintiff is the daughter of the said Chennappa; that Defendant No. 17 is the legally wedded wife of Chennappa and Defendants-18 to 21 are the children of deceased Chennappa. He has also denied the averment made in the plaint that Sy. No. 22/1 is the property of Kallappa. It is further averred that Gurushantavva who is the wife of Kallappa did not die in the year 1968 but died in the year 1965-66. 4. Defendants-17, 18, 20 and 21 filed written statement denying the relationship of Plaintiffs-1 and 2 with deceased Chennappa. They admitted the fact that Malleshappa died in the year 1977. They had also denied the marriage of first Plaintiff with Chennappa in the year 1949 and about her explanation regarding Kallimani address. It is further averred that Defendant No. 17 lived with Chennappa as wife; that Defendants-18 to 21 are born to them; that when the marriage of Defendant No. 17 was held, no other person had married said Chennappa; that during the life time of Chennappa, he gave vardy to enter the name of Defendant No. 18 in respect of the properties and Chennappa used to cultivate the properties which has come to his share and after the death of Chennappa, Defendant No. 17 has been making wahivat of the properties of Chennappa and therefore, Plaintiffs are not entitled to any share in the suit schedule properties and the suit is liable to be dismissed. 5. The trial Court framed appropriate issues on the above said pleadings. On behalf of the Plaintiffs, Plaintiff No. 1 was examined as PW 1 and also examined PW 2 and got marked the documents Exs. P-1 to P-42. On behalf of the Defendants, Defendant No. 2 was examined as DW 1 and Defendant No. 17 was examined as DW 2 and also examined D Ws 3 to 7 and got marked the documents Exhibits-D-1 to D-25. P-1 to P-42. On behalf of the Defendants, Defendant No. 2 was examined as DW 1 and Defendant No. 17 was examined as DW 2 and also examined D Ws 3 to 7 and got marked the documents Exhibits-D-1 to D-25. The trial Court, after considering the contention of the parties and the material on record, held that first and second Plaintiffs have failed to prove that they are the legal heirs of deceased Chennappa and answered other issues except issue No. 7 against the Plaintiffs and answered issue No. 7 by holding that Defendants have proved that there was partition during the life time of Malleshappa and Chennappa in the year 1980 and accordingly, dismissed the suit of the Plaintiffs. 6. Being aggrieved by the said judgment and decree, Plaintiffs preferred R.A. No. 14/2001 (Old No. 3/1996). The first appellate Court, by judgment dated 31.1.2003 reversed the judgment and decree passed by the trial Court and held that Plaintiff No. 1 has proved that she is the wife of Chennappa and Plaintiff No. 2 is the daughter of Plaintiff No. 1 and Chennappa. It further held that Plaintiffs are entitled to a half share in the schedule properties and further held that Defendant No. 17 has failed to prove that she is the legally wedded wife of Chennappa; however, it is proved that Chennappa and herself were living as husband and wife and Defendants-18 to 21 are illegitimate children of Chennappa and wherefore, in view of the provisions of Section 16 of the Hindu Marriage Act, 1955 they are deemed to be legitimate sons and accordingly, held that Plaintiffs and Defendants-18 to 21 are entitled to half share in the properties described in the judgment. Accordingly, it decreed the suit of the Plaintiffs by judgment dated 31.1.2003. 7. Being aggrieved by the said judgment and decree, Defendants 17 to 21 have preferred this appeal which was admitted on 25.7.2003 for consideration of the following substantial questions of law: (1) Whether the finding of the appellate Court that the first Appellant is not the legally wedded wife is perverse and contrary to the evidence on record ? (2) Whether the first appellate Court committed an error in allotting half share to the Plaintiffs-Respondents and that the Plaintiffs-Respondents are eligible for a lesser share according to law. 8. (2) Whether the first appellate Court committed an error in allotting half share to the Plaintiffs-Respondents and that the Plaintiffs-Respondents are eligible for a lesser share according to law. 8. I have heard the learned Counsel appearing for the parties on the above said questions of law. Learned Counsel for the Appellants submitted that according to the contention taken by Defendant No. 17, first Plaintiff renounced the worldly affairs and became a 'sanyasi' and Chennappa and Defendant No. 17 are living as husband and wife; that the Courts below are not justified in holding that Defendant No. 17 has failed to prove that she is the legally wedded wife. Learned Counsel further submitted that calculation of shares to which the Plaintiffs are entitled to in the schedule property is erroneous. The learned Counsel submitted that in view of the provisions of Karnataka Amendment Act No. 23 of 1994 to Section 6 of the Hindu Succession Act, 1956 the unmarried daughters are also to be treated as co-partners and wherefore, in the share to be allotted in the notional partition, they are also entitled to a share; that Defendant No. 18 being an illegitimate son, who is deemed to be legitimate son under the provisions of Section 16 of the Hindu Marriage Act, 1955 is also entitled to his own share in the notional partition; and that calculation made by the first appellate Court holding that they are entitled to half share is clearly erroneous. The learned Counsel has relied upon the decision of Andhra Pradesh High Court in S. Narayana Reddy and others Vs. S. Sai Reddy, AIR 1990 AP 263 wherein it is held that in a suit for partition of the joint family property where preliminary decree was passed for ascertaining share of the parties, statutory changes made by Amendment Act conferring equal rights on unmarried daughters in a coparcenary property can be considered before passing of final decree. He has also relied on the decision of the Madras High Court in M. Shanmugha Udayar Vs. Sivanandam and Others, AIR 1994 Mad 123 wherein the same principle has been reiterated. The learned Counsel has also relied upon the decision of the Hon'ble Supreme Court wherein the decision rendered by the Andhra Pradesh High Court in S. Narayana Reddy v. S. Sai Reddy has been confirmed. 9. Sivanandam and Others, AIR 1994 Mad 123 wherein the same principle has been reiterated. The learned Counsel has also relied upon the decision of the Hon'ble Supreme Court wherein the decision rendered by the Andhra Pradesh High Court in S. Narayana Reddy v. S. Sai Reddy has been confirmed. 9. On the other hand, learned Counsel appearing for the Respondent s-Plaintiffs submitted that the Courts below have rightly held that Defendant No. 17 has failed to prove that she is the legally wedded wife of Chennappa and wherefore, the said finding on the pure question of fact, is justified, having regard to the material on record and as there was no dissolution of marriage between Chennappa and Gangavva - first Plaintiff, the question of holding that Defendant No. 17 is legally wedded wife of Chennappa does not arise. Learned Counsel further submitted that the Karnataka Amendment Act No. 23/1994 wherein Section 6A has been inserted in place of Section 6 of the Hindu Succession Act, 1956 clearly shows that the said provisions pertaining to Sections 6A, 6B and 6C are not retrospective and what is to be considered for ascertaining the share of the deceased Chennappa is the share to which he was entitled immediately before his death in the year 1979 when the Act had not come into force and the said date does not get postponed and wherefore, provisions of the Karnataka Amendment Act No. 23 of 1994 is not applicable. Learned Counsel further submitted that in view of provisions of Section 16(3) of the Hindu Marriage Act, Defendants 18 to 21 would be entitled to the share in the property of their father - Chennappa. If there was partition immediately before the death of Chennappa, Defendant No. 18 would not be entitled to any share. In support of his contention, he has relied on the decision of this Court in Rangappa and Ors. v. R. Siddaramappa and Ors. ( 2004 (2) KCCR 1161 ). Learned Counsel has also relied upon the decision of the Hon'ble Supreme Court in Jinia Keotin and Ors. v. Kumar Sitaram Manjhi and Ors. (2003 SAR 101) wherein the Hon'ble Supreme Court has laid down that so far as succession or inheritance by children deemed to be legitimate under Section 16 of the Act, are concerned to the properties of the parents only. 10. v. Kumar Sitaram Manjhi and Ors. (2003 SAR 101) wherein the Hon'ble Supreme Court has laid down that so far as succession or inheritance by children deemed to be legitimate under Section 16 of the Act, are concerned to the properties of the parents only. 10. In reply, learned Counsel appearing for the Appellants submitted that decision relied upon by the learned Counsel for the Respondents in the case of Rangappa v. Siddaramappa and Ors. ( 2004 (2) KCCR 1161 ) has been overruled by the Division Bench of this Court in Smt. Sarojamma and Others Vs. Smt. Neelamma and Others, ILR (2005) KAR 3293 and it has been held in the said decision that once the illegitimate children are deemed to be legitimate in view of the provisions of Section 16 of the Hindu Marriage Act, 1955 the question of restricting their claim as held by this Court in Rangappa's case does not arise as it has not laid down the correct law. 11. I have considered the contentions of learned Counsel appearing for the parties with reference to the material on record and the decisions cited by learned Counsel appearing for the parties and I answer the substantial questions of law as follows: (1) in the negative; (2) in the affirmative; The Plaintiffs are entitled to 8/18th share and not 1/2 share as decreed by the first appellate Court for the following reasons: Re: Substantial Question of law (1): 12. It is the case of the Plaintiffs that Plaintiff No. 1 is the wife of Chennappa and Plaintiff No. 2 is the daughter born to Plaintiff No. 1 and Chennappa. According to the Plaintiffs, Defendant No. 17 is not the legally wedded wife of Chennappa. However, according to Defendant No. 17, she is also the legally wedded wife of Chennappa and Defendant Nos. 18 to 21 are born out of the said wedlock with Chennappa. Both the Courts below have concurrently held that Defendant No. 17 has failed to prove that she is the legally wedded wife of Chennappa. It is clear from the perusal of the material on record that Defendant No. 17 does not dispute the marriage of Plaintiff No. 1 with Chennappa. However, what is contended by Defendant No. 17 is that Plaintiff No. 1 became 'sanyasi' and renounced the world and therefore, Chennappa married Defendant No. 17. It is clear from the perusal of the material on record that Defendant No. 17 does not dispute the marriage of Plaintiff No. 1 with Chennappa. However, what is contended by Defendant No. 17 is that Plaintiff No. 1 became 'sanyasi' and renounced the world and therefore, Chennappa married Defendant No. 17. Both the Courts below have rightly held that Defendant No. 17 has failed to substantiate the contention that she is the legally wedded wife as there was already a marriage subsisting between Chennappa and Gangavva - first Plaintiff which has not been dissolved and the said finding on the pure question of fact is justified and cannot be said to be perverse or arbitrary. Accordingly, I answer the substantial question of law in the negative. Re: Substantial Question of Law (2): 13. It is clear from the perusal of the judgment passed by the first appellate Court that the first appellate Court has held that Plaintiffs-1 and 2 are wife and daughter of Chennappa; Defendant No. 17 has failed to prove that she is the legally wedded wife of Chennappa; however, she has proved that Chennappa had illicit relationship with her and Defendants-18 to 21 were born out of the said relation and wherefore, in view of Section 16 of the Hindu Marriage Act, 1955 Defendants-18 to 21 should be deemed to be the legitimate children for the purpose of succession to the property of their father-Chennappa. It is not in dispute that schedule property is the ancestral property and in view of Section 6 of the Hindu Succession Act, 1956 the share of Chennappa in the schedule property as per notional partition as required under Explanation (1) to Section 6 of the Hindu Succession Act, 1956 has to be worked out and as per the said explanation, the interest of Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not. Wherefore, it is clear that the date on which notional partition has to be worked out has been stated in unambiguous terms as the share to which he was entitled if the partition of the property had taken place immediately before his death. Wherefore, it is clear that the date on which notional partition has to be worked out has been stated in unambiguous terms as the share to which he was entitled if the partition of the property had taken place immediately before his death. In the present case, Chennappa died on 3.1.1979 and at that time, the provisions of Karnataka Amendment Act No. 23/1994 had not come into force. It is clear from the provisions of Karnataka Amendment Act 23/1994 that Section 6A and 6B of the Hindu Succession Act, 1956 have been inserted by receiving the assent of the President on 28.7.1994. 14. The decision of the Andhra Pradesh High Court relied on by the learned Counsel appearing for the Appellants in the case of Narayana Reddy v. S. Sai Reddy which was affirmed by the Hon'ble Supreme Court in S. Sai Reddy v. S. Narayana Reddy and the decision of the Madras High Court in M. Shanmugha Udayar's case, are not helpful to the Appellants in the present case, as it is clear from the Karnataka Amendment Act No. 23/1994 that the same is not retrospective. In the above said decisions, Hon'ble Supreme Court was considering the case wherein there was a suit for partition and in the said case, even though preliminary decree has been passed declaring the right of parties regarding share to which they are entitled to in the scheduled property, no final decree had been passed allotting the share by metes and bounds. Wherefore, Hon'ble Supreme Court held that since the suit for partition was pending as final decree proceedings had not been passed, subsequent event of Andhra Pradesh Amendment Act which is similar to the Karnataka Amendment Act No. 23 of 1994 would be applicable. However, in the present case, what is to be ascertained is the share to which Chennappa would have been entitled if there was a partition immediately before his death on 3.1.1979 and this date would not get postponed and therefore, the question of applying the provisions of Karnataka Amendment Act No. 23 of 1994 which was not made retrospective would not be applicable to the facts of the present case for the purpose of ascertaining the share to which Chennappa would have been entitled if there had been partition immediately before his death on 3.1.1979. Accordingly, I hold that there is no merit in the contention of the learned Counsel appearing for the Appellants that provisions of Karnataka Amendment Act No. 23 of 1994 would be applicable and unmarried daughters should also be treated as coparceners and shall be entitled to the share in the notional partition to be worked out in the share of Chennappa. 15. In view of the above said finding, next question that is required to be considered is as to whether what would be the share of Chennappa if there was a partition immediately before his death on 3.1.1979. In view of the decision of the Division Bench of this Court cited by learned Counsel appearing for the Appellants in Smt. Sarojamma and Ors. v. Smt. Neelamma and Ors. wherein the Division Bench of this Court has held that the decision cited by learned Counsel appearing for the Respondents in the case of Rangappa and Ors. v. Siddaramappa and Ors. does not laid down a good law as it is clear from the provisions of Section 16 of the Hindu Marriage Act, 1955 that once the illegitimate children are deemed to be legitimate, necessary consequences would follow and wherefore, if there was partition immediately before the death of Chennappa on 3.1.1979, Chennappa and Defendant No. 18 - Lokappa would be entitled to half share and since the parties are governed by Bombay School of Hindu Law having regard to the fact that properties are situated in Haveri District which was formerly in the Bombay State before Re-organisation, if there was a partition between father and son, the wife - first Plaintiff would also be entitled to a share equal to that of the son. Therefore, Chennappa, first Plaintiff and Lokappa - Defendant No. 18 would each be entitled to 1/3rd share and share of Chennappa would devolve upon his heirs by succession under the Hindu Succession Act and since he died leaving behind Plaintiffs-1 and 2 and Defendants-18 to 21, each one of them would be entitled to 1/8th share. Wherefore, Plaintiff No. 1 being the wife of Chennappa, is entitled to 1/3rd share which she would have got in the notional partition and 1/18th share in the share of her husband-Chennappa. Plaintiff No. 2 being the daughter of the first Plaintiff and Chennappa would be entitled to 1/18th share and therefore, Plaintiffs together would be entitled to 8/18th share. Wherefore, Plaintiff No. 1 being the wife of Chennappa, is entitled to 1/3rd share which she would have got in the notional partition and 1/18th share in the share of her husband-Chennappa. Plaintiff No. 2 being the daughter of the first Plaintiff and Chennappa would be entitled to 1/18th share and therefore, Plaintiffs together would be entitled to 8/18th share. Defendant No. 18 - Lokappa would be entitled to 7/18th share, having 1/3rd share in the notional partition and 1/18th share in the share of Chennappa, and Defendants-19 to 21 being children of Chennappa, would be entitled to 1/18th share and therefore, Defendants-18 to 21 would be entitled to 10/18th share. Wherefore, it is clear that findings of the first appellate Court that Plaintiffs and Defendants-18 to 21 are entitled to 1/2 share is clearly erroneous and contrary to law and the same is liable to be modified by holding that Plaintiffs are entitled to 8/18th share and Defendant No. 18 is entitled to 7/18th share and Defendants-19 to 21 are entitled to 1/18th share each. Accordingly, I answer the substantial question of law and pass the following order: 16. The appeal is allowed in part. The judgment and decree passed by the first appellate Court in R.A. No. 14 of 2001 (Old No. 3 of 1996) dated 31.1.2003, in so far as it relates to calculation of share of Plaintiffs and Defendants-18 to 21 is modified by holding that Plaintiff No. 1 is entitled to 7/18th share, Plaintiff No. 2 is entitled to 1/8th share in the suit schedule properties, Defendant No. 18 is entitled to 7/18th share and Defendants-19 to 21 are entitled to 1/18th share each in the suit schedule properties. The judgment and decree passed by the first appellate Court in all other respects is affirmed. There shall be no order as to costs having regard to the facts and circumstances of the case.