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2010 DIGILAW 330 (KAR)

Gangamma v. Maheswaraiah

2010-03-17

ANAND BYRAREDDY

body2010
Judgment :- Heard the Counsel for the parties. The parties are referred to by their rank before the trial Court for the sake of convenience. 2. The appellant was the plaintiff before the trial court. The suit was for a declaration that the plaintiff along with her adopted son were the owners of the suit property and to restrain the defendants from interfering with their possession. It was the case of the plaintiff that one Adivappaiah of Bagenal Village, Chitradurga Taluk and District, had two sons, Muddappaiah and Gowrappaiah. Adivappaiah had died 60 years prior to the suit. He and his sons had constituted a Hindu coparcenary. Muddappaiah was married to Gowramma and the plaintiff was the wife of Gowrappaiah. Both the couples did not beget any children. Muddappaih had died 30 years prior to the suit and Gowrappaiah died in 1972 while remaining joint in status. In the year 1975, Gowramma the widow the Gowrappaiah also died. Gangamma, the plaintiff had adopted one Siddalingaswamy with the consent of Gowramma and other relatives after the death of her husband. Therefore, the only living members of the erstwhile co-parcenery, after the death of Gowramma were Gangamma and Siddalingaswamy. The plaintiff Gangamma contended that since Siddalingaswamy, a qualified medical practitioner was in Government service, she was in possession of the suit property and was cultivating the same. The plaintiff complained that the defendants who are residents of Yolagodu, 48 kilometres away from Bagenal, where the suit properties are and who are total strangers to the joint family were seeking to interfere with the property and hence, the suit. The defendants had entered appearance, filed their written statement and raised a counter-claim. The plaint averments were denied as not being wholly true. It was however claimed that after the death of Muddappaiah, the two widows namely, Gowramma, and Gangamma divided the family properties under an oral partition and that the properties described in the schedule to the written statement were claimed to have fallen to the share of Gowramma. It was claimed that the first defendant was Gowramma’s brother’s son and that he had looked after the welfare of Gowramma after she was widowed. Therefore, out of love and affection towards him, she had bequeathed the properties described in the schedule to the written statement, under an unregistered will dated 20.11.1965. It was claimed that the first defendant was Gowramma’s brother’s son and that he had looked after the welfare of Gowramma after she was widowed. Therefore, out of love and affection towards him, she had bequeathed the properties described in the schedule to the written statement, under an unregistered will dated 20.11.1965. It was claimed that the first defendant and his sons, defendants 2 to 5 were in possession and were cultivating the same. It was denied that the plaintiff or the sixth defendant (the adopted son of Gangamma and later transposed as plaintiff no.2) had any right over the properties held by them. It was also denied that Siddalingaswamy was the adopted son of Gangamma. By way of a reply, the plaintiff denied that there was a partition or that Gowramma had bequeathed her undivided share of the property to the first defendant. It was asserted that the plaintiff and the sixth defendant above are in possession of the suit property. The trial court framed the following issues on the above pleadings: “1. Whether the plaintiffs prove that after the deaths of Muddappaiah his wife Gowramma and after the death of Gowrappaiah they have succeeded to the suit schedule properties? 2. Whether the plaintiffs prove that they are in lawful possession of the suit schedule properties on the date of suit? 3. Whether the defendants prove that after the death of Muddappaiah his wife Gowramma and Gowrappaiah divided the family properties orally in the year 1960, in that partition and written statement schedule properties false to the share of Gowramma? 4. Whether the defendants prove that out of love and affection Gowramma executed a last unregistered WILL dated 20.11.1996 in favour of defendant No.1 in respect of written statement schedule property? 5. Whether the defendants prove that the defendants No.1 is in lawful possession of the written statement schedule property on the date of suit? 6. Who is causing obstruction to whom? 7. Whether the plaintiff are entitled for a relief of declaration and permanent injunction? 8. Whether the defendants are entitled a relief of declaration and permanent injunction? 9. To what order or decree?”. Additional issue: “1. 6. Who is causing obstruction to whom? 7. Whether the plaintiff are entitled for a relief of declaration and permanent injunction? 8. Whether the defendants are entitled a relief of declaration and permanent injunction? 9. To what order or decree?”. Additional issue: “1. Whether the plaintiffs prove that the second plaintiff is the adopted son of the first plaintiff with the consent of the deceased Gowramma?” The trial court answered the additional issue no.1 in the negative, on the ground that the adoption of the second plaintiff by the first plaintiff was not shown to be in accordance with the provisions of the Hindu Adoption and Maintenance Act, 1956. It was held that the alleged oral partition was not proved. It was also held that the first defendant had filed to prove the execution of the will by Gowramma. Issue no.1 was answered in the affirmative and it was also held in answering Issue no.2 that plaintiff no.1 was in possession of the suit properties. The claim of the defendants to possession was negative. The relief of declaration and injunction was granted in favour of plaintiff no.1. In an appeal by the defendants, the First Appellate Court framed for itself the following points for consideration: “(i) Whether the plaintiff/respondents proves that they are the owners in possession of the suit schedule property? (ii) Whether the plaintiff/respondent No.1 proves that the adoption of plaintiff No.2 by plaintiff No.1 is proved? (iii) Whether the defendant proves that there was oral partition between Gowrappaiah and Gowramma in the year 1960 i.e., oral partition, in which the properties mentioned in the written statement were fallen temporary injunction the share of Gowramma? (iv) Whether the Gowramma’s right to half share in suit schedule property remains? (v) Whether the judgment of the trial court requires interference? (vi) What order?” The First Appellate Court held that the adoption of plaintiff no.2 by plaintiff no.1 was not established and that the will of late Gowramma propounded by defendant no.1 was not proved. However, the Court concluded that the plaintiff no.1 Gangamma had a right over only half share of the suit property and that there was no partition as between Gowrappaiah and Gowramma as averred by the defendants. That Gowramma was entitled to half-share in the suit property and since she was dead, her legal heirs would be entitled to the same. However, the Court concluded that the plaintiff no.1 Gangamma had a right over only half share of the suit property and that there was no partition as between Gowrappaiah and Gowramma as averred by the defendants. That Gowramma was entitled to half-share in the suit property and since she was dead, her legal heirs would be entitled to the same. The present second appeal is filed by plaintiff no.1 being aggrieved by the finding of the first appellate Court that she is entitled to only a half-share in the suit property, when there are no legal representatives of Gowramma or any other surviving members of the joint family. It is contended that in the face of the finding of both the courts below, that there was no partition in the joint family during the life time of Gowramma and her alleged will also not having been proved, the first appellate court has committed an error of law. The substantial question of law framed by this Court at the time of admitting this appeal are as follows: 1. “Whether the lower Appellate Court was justified in modifying the judgment in modifying the judgment and decree of the Trial Court despite concurring as well as coming to its own conclusion that the defendants had not proved the Will at Ex.D1? 2. Whether in the facts and circumstances of the case, the Lower Appellate Court could have modified the judgment and decree of the Trial Court only on the ground that the share of the defendants as legal representatives cannot be denied. Since the suit in question was not one for partition and was a suit for declaration by the plaintiff?” The second substantial question of law is incorrectly framed as the lower Court has not held that the defendants were entitled to a share. Hence it is reframed as follows in keeping with the judgment of the Lower Appellate Court and the rival contentions: “2. Whether in the facts and circumstances of the case, the lower appellate Court could have held that the plaintiff no.1would not be entitled to the undivided share of the joint family property which had devolved on Gowramma, after Gowramma’s demise, and that it should revert to Gowramma’s legal representatives?” The further substantial question of law on which the counsel were heard at length is: “3. What is the legal position as regards devolution of Gowramma’s undivided share vis-a-vis the provisions of the Hindu succession Act, 1956? 3. The Counsel for the appellant would submit that it is not in dispute that the two widows, Gowramma and Gangamma, were the only surviving members of the joint family. (The finding as to plaintiff no.2 not being the adopted son of plaintiff no.1, having become final) There was no partition of the properties either during the life time of their husbands or during the life time of Gowramma. Muddappaiah, the husband of Gowramma had died intestate and in terms of Section 8 of the Hindu Succession Act, 1956 (hereinafter referred to as ‘the Act’ for brevity), the property devolved on Gowramma as a Class-I heir. But as it continue to be held jointly with Gangamma – her undivided share did not become her absolute property. Hence, after the death of Gowramma, who died intestate, the property devolves upon the heirs of the husband, in terms of Section 15(1)(b) of the Act. Therefore, it is contended that the property devolved on Gangamma who is the sole surviving heir of Gowramma’s husband. 4. Per contra, the counsel for the respondents contends that immediately upon the death of Muddappaiah, his share of the property devolved on Gowramma as her absolute property in terms of Section 14 of the Act. And on Gowramma’s death, even if Section 15(1)(b) is applied, it cannot be said that Gangamma can claim as her husband’s heir. Further, it is contended that it is only relevant to ascertain the heirs of the husband in terms of section 15(1)(b) at the time of the female Hindu’s death since succession would open only then. In this regard reliance is placed on the decision in the case of Seethalakshmi Ammal vs. Muthu Venkatarama Iyengar, Air 1998 SC 1692 . It is further contended that the defendant no.1 being the brother’s son of late Gowramma would claim as the heir of Gowramma’s father in terms of Section 15(1)(d) and therefore, could certainly claim as succeeding to the estate of late Gowramma. It is contended that any finding or observation to the contrary by the first appellate court could be raised by the respondent in this very appeal even without having final any cross-objection. It is contended that any finding or observation to the contrary by the first appellate court could be raised by the respondent in this very appeal even without having final any cross-objection. In this regard, reliance is placed on the case of Manasa Housing Cooperative Society Limited vs. Marikallaiah, AIR 2006 Karnataka 273. 5. By way of reply, the counsel for the appellant would point out that though the undivided share in the property devolved on Gowramma, it would have been her absolute property upon partition of the same. Even otherwise, if Section 15(1)(b) is applied, plaintiff no.1 would be a Class-II heir of Gowramma claiming as the brother’s widow of Gowramma’s husband under Class II –VI of the Schedule to the Act. And it is further contended that in terms of Section 15(2)(b) of the Act, which reads as follows: “(b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband.” Thus, any claim by defendant no.1 cannot claim precedence over plaintiff no.1. In any event, the vague assertion of the respondents has been negative by both the courts below. It is also pointed out that the law on this point is settled by the Supreme Court in the case of Bajya vs. Gopika bai, Air 1978 SC 793 followed by a Division Bench judgment of this court in Nageshwar Adiga vs. Kaveramma, ILR 1988 Kar. 860. 6. In the light of the above contentions, and proceeding on the basis that there was no partition of the joint family properties, and the two widows of the two brothers being the sole survivors, the answer to the question as to how the property of one of the widows dying intestate would devolve is answered by the apex Court as well as this court in the above noted judgments. As can be seen from Sub-section (1) of Section 15 of the Act, the property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16. Rule 3 of Section 16 reads as follows: “Rule 3. As can be seen from Sub-section (1) of Section 15 of the Act, the property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16. Rule 3 of Section 16 reads as follows: “Rule 3. - the devolution of the property of the intestate on the heirs referred to in clauses (b), (d) and (e) of sub-section (1) and in sub-section (2) to section 15 shall be in the same order and according to the same rules as would have applied if the property had been the father’s or the mother’s or the husband’s as the case may be, and such person had died intestate in respect thereof immediately after the intestate’s death.” And as can be seen from Section 15(2)(b), any property inherited by a female Hindu from her husband shall devolve in the absence of a son or daughter not upon the heirs referred to in sub-section (1) in the order specified therein but upon the heirs of the husband. Rule 3 of Section 16 state that the devolution, in respect of property falling under 15(2)(b), shall be as if the property had been the husband’s and the husband had died immediately after the intestate’s death. As pointed out by the apex Court in Bajya vs. Gopikabai, that once it is found that a case falls under 15(2)(b), the deeming fiction envisaged under Rule 3 of Section 16 is attracted and it is to be deemed as if the husband had died intestate immediately after the female intestate’s death and Section 8 will come into operation on that basis. The reference to the case of Seethalakshmi Ammal vs. Muthu Venkatarama Iyengar is not relevant. That was a case where the daughter-in-law was claiming to have succeeded to the property on the death of her mother-in-law. She was found to be a heir of her father-in-law in terms of Section 15(1)(b) read with Class-I of the Schedule to the Act. In the instant case on hand, when Rule 3 of Section 16 is applied, in terms of Section 8 read with Class-II-VI of the Schedule to the Act, plaintiff no.1 would be a heir of the husband of Gowramma and the entire suit property devolves on her. In the instant case on hand, when Rule 3 of Section 16 is applied, in terms of Section 8 read with Class-II-VI of the Schedule to the Act, plaintiff no.1 would be a heir of the husband of Gowramma and the entire suit property devolves on her. The defendants not having been held entitled to claim the suit property even as the legal representatives of late Gowramma are hardly in a position to contend or urge any case to lay claim to the suit property. The contention of the Counsel for the respondents that legal contentions to question the findings of the first appellate Court could be urged without filing cross-objections by reference to the decision of this Court in Manasa Housing Co-operative Society Limited case is also not tenable as can be seen from the tenor of the observations and the views expressed by this Court following he view expressed by the Apex Court. “From the reading of these provisions, it is clear that the Appellate Court has power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as part of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross-suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees. This provision make it abundantly clear that the defendants, who have not filed appeal or cross-objection against the findings on issue Nos.1 and 2 can challenge those findings while supporting the judgment and decree in their favour. This provision make it abundantly clear that the defendants, who have not filed appeal or cross-objection against the findings on issue Nos.1 and 2 can challenge those findings while supporting the judgment and decree in their favour. This is also the view of this Court in the case of M/s Sikka-N-Sikka Engineering Private Limited v. Cargo Transports, reported in ILR 1992 Kant 1421, wherein a Division bench of this Court has observed as under: “A close reading of the provisions reveals that it is open to the respondent in the appeal to support the decree passed by the trial Court without filing a cross-objection or appeal challenging the finding recorded against him but it is not possible to hold that it would be permissible for the respondent to have that portion of the decree reversed which has denied the relief claimed by the plaintiff in the suit without preferring cross-objection or appeal. Of course, out of the several issues framed in the suit relating to the same relief, if some are answered in favour of the plaintiff and some are answered against him and the decree is passed in favour of the plaintiff on the basis of the findings recorded on the issues in favour of the plaintiff, it would be open to the plaintiff in the appeal preferred by the defendants to challenge the correctness of the findings recorded against him on such of those issues which relate to the same relief in order to support the decree passed in his favour.” Similar is the view of the Apex Court in the case of Ravinder Kumar Sharma v. State of Assam, reported in AIR 1979 SC 1371, wherein the Hon’ble Supreme Court has held as under (para 22): “respondent-defendant in an appeal can without filling cross-objection can attack the adverse finding upon which a decree in part has been passed against the respondent, for the purpose sustaining the respondent, for the purpose sustaining the decree to the extent the lower-Court had dismissed the suit against the defendant-respondents. The filing of cross-objection after 1976 Amendment is purely optional and not mandatory.” Hence, in the light of the above the substantial questions of law are answered to state that the first appellate Court was in error in modifying the judgment and decree of the trial Court. The filing of cross-objection after 1976 Amendment is purely optional and not mandatory.” Hence, in the light of the above the substantial questions of law are answered to state that the first appellate Court was in error in modifying the judgment and decree of the trial Court. The first Appellate Court was not right in law in holding that the property of Gowramma does not devolve on plaintiff no.1. The third question is answered herein above. Accordingly, the judgment and decree of the first appellate court cannot be sustained. The appeal is allowed. The judgment and decree of the First Appellate Court is set aside. The suit is decreed as prayed for in favour of plaintiff no.1.