Research › Search › Judgment

Karnataka High Court · body

2010 DIGILAW 652 (KAR)

Sangappa v. M. M. Sidamma

2010-05-27

D.V.SHYLENDRA KUMAR, N.ANANDA

body2010
Judgment :- 1. Appeal filed under section 96 of the C.P.C by the seventh defendant in O.S. No. 117/2001, on the file of the II Addl. Civil Judge (Sr. Dn.), Davanagere. The suit was by the first respondent, who was the plaintiff in the suit, arraying the legal representatives of her elder brother by name M.M. Doddabasappa as defendants 1 to 7, being the wife and children respectively of M.M. Doddabasappa. 2. Case of the plaintiff was that one Murugendrappa son of Maganahalli Sangappa, was the propositus of the family, who owned several properties; that he had two children namely M.M. Siddamma, the plaintiff and one M.M. Doddabasappa, her elder brother, who was no more at the time of filing the suit, and therefore, the plaintiff had impleaded the said M.M. Doddabasappa’s wife and children as defendants 1 to 7 and had filed the suit seeking judgment and decree for dividing the family properties and to allot her share as under:- “Claim:- The plaintiff has filed the suit against the defendants for the relief of partition and separate possession of her legitimate share in the suit schedule properties for permanent injunction, restraining the defendants claiming under them from alienation of the suit schedule properties by way of sale, gift, lease or any other mode of transfer, for further mesne profits and for court and such other reliefs.” 3. The suit was contested by defendants 1 and 7 and the first defendant having died during pendency of the suit, defendants 2 to 7 who also constituted legal representatives, to represent the estate of deceased first defendant, have doubled up in this capacity also. 4. Though the first defendant had entered appearance through his counsel has not filed his written statement. The seventh defendant alone filed written statement and contested the suit, while defendants 2 to 6 remained unrepresented and were placed exparte. 5. Defendant No.7 did not dispute the relationship and the number of members in the family as indicated by the plaintiff. The father of plaintiff namely Murugendrappa died during the year 1941 (as indicated at paragraph 7 of the judgment), leaving behind his wife Shivagangamma, daughter- Siddamma (plaintiff) and father of defendants 2 to 7 and husband of defendant No.1 – M.M. Doddabasappa. 6. The father of plaintiff namely Murugendrappa died during the year 1941 (as indicated at paragraph 7 of the judgment), leaving behind his wife Shivagangamma, daughter- Siddamma (plaintiff) and father of defendants 2 to 7 and husband of defendant No.1 – M.M. Doddabasappa. 6. It was the case of the defendants that while family was joint one and partition took place during September, 1984 and the plaintiff had full knowledge of the partition and she had been married to one Chandraiah prior to the partition and therefore in the partition, no share had been allotted to the plaintiff. 7. It is also pleaded that the plaintiff had sold the suit item No. 4 property to one Shankaraiah Basaiah Yogimath, leading to further litigation in the form of O.S. No. 212/2001 by the purchaser etc. On such pleadings, Defendant No. 7 prayed for dismissal of the suit. 8. In the wake of such pleadings, the trial Court framed the following issues:- 1) Whether plaintiff proves that the suit schedule properties are the joint family properties? 2) Whether defendant proves that the plaintiff has married before the partition deed? 3) Whether the defendant proves that the suit of plaintiff is bad for non-joinder of necessary parties? 4) Whether the plaintiff is entitled for the share in the suit schedule properties? If so, what is the share? 5) What Order or decree? 9. Parties went to trial on such issues. On behalf of the plaintiff, R. Chandraiah and R. Narasimha Swamy have been examined as PWs1 & 2 respectively. The documentary evidence comprising of Ex.P.1 to Ex.P.10 in the form of RTC extract, khatha extracts, F.I.R., charge sheet, wedding card of original plaintiff, a letter of correspondence and positive photos were marked on behalf of the plaintiff. 10. On behalf of contesting defendant No.7, he himself deposed as DW1. Documentary evidence being Ex.D.1 to Ex.D.4, significant Ex.D.1 – Partition Deed, Ex.D.2 to Ex.D.4 - property extracts and enquiry report, which constitute copies of the documents taking subsequent developments to the partition. 11. The learned Judge of the trial Court on examination of such evidence and after considering the arguments advanced on behalf of the parties, answered issues 1 & 4 in the affirmative and issues 2 & 3 in the negative and against the defendants, falsifying the defence set up by them. 12. 11. The learned Judge of the trial Court on examination of such evidence and after considering the arguments advanced on behalf of the parties, answered issues 1 & 4 in the affirmative and issues 2 & 3 in the negative and against the defendants, falsifying the defence set up by them. 12. In the result, learned trial Judge decreed the suit by granting 1/3rd share in suit schedule item Nos. 1 to 4 and 40 shares in suit schedule item No.5, though factually such was not the relief sought for by the plaintiff. It is aggrieved by the said judgment and decree, the appellant has filed this appeal. 13. Though the matter has come up for orders regarding furnishing of process fee etc., in respect of unserved respondents 3, 5 & 6 and steps to be taken in respect of deceased second respondent, we find all these will be an exercise in futility for the reason that defendant No.7, the present appellant was the only contesting defendant before the trial Court and the only person to prosecute this appeal. During pendency of the suit, plaintiff died issueless and her husband came on record as legal representative of plaintiff and had continued the suit. 14. The question as to whether the plaintiff is entitled to 1/3rd share or not at all is the question raised by the appellant before us. The plaintiff died during pendency of the suit. During pendency of the suit, plaintiff died issueless and her husband came on record as legal representative of plaintiff and had continued the suit. 14. The question as to whether the plaintiff is entitled to 1/3rd share or not at all is the question raised by the appellant before us. The plaintiff died during pendency of the suit. Therefore, we find entire exercise made by the trial Court was an exercise in futility for the reason that the plaintiff while had sued for partition being a female member of the joint family and she having died even during pendency of the suit i.e., on 17.11.2004 and her husband having come on record as legal representative in terms of the order made by the trial Court on 15.02.2005 and the suit having been continued by the legal representative of the plaintiff i.e., by her husband, we find whole exercise is futile for the simple reason that admittedly without dispute, original plaintiff having no children nor begotten a son or daughter, provisions of sub-section (2) of section 15 of the Hindu Succession Act, 1956 (for short, ‘the Act’) applies to the situation and out come is that the joint family property, even if it should have come to the plaintiff, on her death, not leaving behind a daughter or a son reverts to the heirs of her father, which is the situation that emerged in this case when the original plaintiff died. 15. Nothing survived in the suit for the reason that the share even if the plaintiff got any, would have reverted to the defendants. When such is the legal position, the legal representative of the deceased original plaintiff i.e., the husband of deceased plaintiff could have neither continued the suit as representing the estate of the original plaintiff as nothing remained had in the estate nor can he claim any right in respect of the properties, which would have come to the original plaintiff from out of the joint family property as her legitimate share in the suit schedule properties. While the original plaintiff having died not having left a son or a daughter, right in respect of joint family properties comes to an end, which cannot be inherited by the sole surviving husband in the wake of embargo placed under sub-section (2) of section 15 of the Act. For ready reference, we quote section 15 of the Act:- “15. While the original plaintiff having died not having left a son or a daughter, right in respect of joint family properties comes to an end, which cannot be inherited by the sole surviving husband in the wake of embargo placed under sub-section (2) of section 15 of the Act. For ready reference, we quote section 15 of the Act:- “15. General rules of succession in the case of female Hindus – (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,- a. Firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband; b. Secondly, upon the heirs of the husband; c. Thirdly, upon the mother and father; d. Fourthly, upon the heirs of the father; and e. Lastly, upon the heirs of the mother. (2) Notwithstanding anything contained in sub-section (1),- a. Any property inherited by a female Hindu from her father or mother 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 father; and 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 pre-deceased 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. 16. It is for this reason, we have rejected the request of learned counsel Sri.N.Shankar Narayan Bhat to grant some time to make further submissions after receiving instructions from his client on the factual aspects. The mere fact that during the arguments, learned counsel appearing for both the parties have submitted that section 8 of the Mysore Hindu Law Women’s Rights Act, 1933 is applicable to determine the right of original plaintiff, the learned trial Judge without application of mind should not have decided the right of original plaintiff in terms of section 8 of the Mysore Hindu Law Women’s Rights Act, 1933, are all not of any significance as this is not a situation where section 8 of the Mysore Hindu Law Women’s Rights Act, 1933 is attracted. 17. 17. We also find from the impugned judgment that the plaintiff is alleged to have sold one of the joint family properties even prior to the institution of the suit and the purchaser of the said property is not made as a party to the suit. 18. The original plaintiff had also sought for allotment of 40 shares in suit item No.5 named as Sri Basaveshwara Ginning and Decorticating Factory. The Original plaintiff has not produced any document to show that the family held any shares or particular number of shares in Sri Basaveshwara Ginning and Decorticating Factory. 19. The learned trial Judge, without noticing the provisions of section 15 of the Hindu Succession Act, 1956 and by wrongly applying section 8 of Mysore Hindu Law Women’s Rights Act, 1933, which is not at all applicable to the facts and circumstances of the instant case, decreed the suit. Therefore, we find the approach of the learned trial Judge is erroneous and the impugned judgment and decree are not sustainable. 20. Therefore, we allow this appeal on technical grounds and set aside the judgment and decree passed by the trial Court and the suit is dismissed. Parties to bear their own costs.