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2012 DIGILAW 720 (KAR)

Ushatai v. Housabai

2012-08-25

H.S.KEMPANNA, N.KUMAR

body2012
JUDGMENT N. Kumar, J. 1. This appeal is preferred by the legal representatives of the 1st defendant challenging the judgment and decree passed by the Trial Court which has decreed the suit of the plaintiffs for partition and separate possession. For the purpose of convenience, the parties are referred to as they are referred to in the original suit. 2. The subject matter of the suit is, the agricultural lands and urban properties which are more particularly described in Schedule 'A' & 'B' at the foot of the plaint. Initially, only 'A' Schedule properties were included in the plaint. Subsequently, the properties, which were left out earlier, are included by way of 'B' Schedule properties. 3. Sri. Dattoba Ramachandra Jadhav was the propositus. He had two wives. His first wife is Gangubai and through her he had one son by name Ramachandra and a daughter by name Housabai. Sri. Ramachandra is the 1st defendant and Housabai is the 1st plaintiff in the suit. After the death of Gangubai, Shri Dattoba married Changunabai, the second wife, and through her he had one son by name Sambaji and five daughters by name Shakuntala, Nirmala, Kanchana, Shashikala and Jayashree. Shakuntala, Kanchana and Shashikala are arrayed as defendant Nos. 3 to 5, whereas Nirmala and Jayashree are arrayed as plaintiff Nos. 2 and 3. The 1st defendant died during the pendency of the proceedings. Therefore, his wife Ushatai and daughter and son by name Vidya and Vinayak were brought on record as legal heirs of 1st defendant as defendant Nos. 1(a), 1(b) and 1(c). Defendant Nos. 6 to 9 are the purchasers of some of the items of the properties and therefore, they were impleaded as parties. 4. The case of the plaintiff is Sri. Dattoba Ramachandra Jadhav had two brothers viz., Dhondiba and Narayan. The joint family consisting of Sri. Dattoba, Sri. Dhondiba and Narayan owned ancestral joint family properties. There was a partition between the said three brothers. After the partition, the three brothers were holding the properties fallen to their respective shares as owners thereof. Shri Dattoba Jadhav died on 20.12.1984 leaving behind him the plaintiffs and defendant Nos. 1 to 5 as his legal heirs. After the death of Shri Dattoba, defendant No. 2 and his mother started to contend that there was a partition between Shri Dattoba and his two sons viz., defendant No. 1-Ramachandra and defendant No. 2-Sambhaji. Shri Dattoba Jadhav died on 20.12.1984 leaving behind him the plaintiffs and defendant Nos. 1 to 5 as his legal heirs. After the death of Shri Dattoba, defendant No. 2 and his mother started to contend that there was a partition between Shri Dattoba and his two sons viz., defendant No. 1-Ramachandra and defendant No. 2-Sambhaji. Defendant No. 2 and his mother were contending that during his lifetime Shri Dattoba had executed a Will bequeathing all the properties fallen to his share in their favour. Therefore, defendant No. 1 had filed a suit for partition and separate possession of his share in the properties in O.S. No. 136/1987. In the said suit, present plaintiffs were defendants. The present defendant No. 1, who had filed the suit in O.S. No. 187/1987 had contended in his plaint in the said suit that there was no partition between Shri Dattoba and the present defendant Nos. 1 and 2. The suit in O.S. No. 136/1987 was decreed on 10.09.1981. Aggrieved by the said judgment and decree dated 10.09.1981 in O.S. No. 136/1987, defendant Nos. 2 to 5 preferred a regular appeal before Hon'ble District Court, Belgaum, in R.A. No. 44/1999. The appeal came to be dismissed. Aggrieved by the same, defendant Nos. 2 to 5 preferred a regular second appeal in R.S.A. No. 881/2001 before this Court. By its judgment dated 11.11.2003, this Court had ruled that there was no partition between Shri Dattoba and present defendant Nos. 1 and 2 in the year 1981. It further held as all the properties standing in the name of Dattoba and present defendant Nos. 1 and 2 are liable for partition. Therefore, the plaintiffs requested the defendants to effect partition in the family properties and to give to the plaintiffs their due share in the properties during the 1st week of December, 2004. Their request was declined. Therefore, plaintiffs filed the suit for partition and separate possession. 5. After the service of summons, the 1st defendant entered appearance. He filed a detailed written statement contesting the claim. Their request was declined. Therefore, plaintiffs filed the suit for partition and separate possession. 5. After the service of summons, the 1st defendant entered appearance. He filed a detailed written statement contesting the claim. He contended that the description of the suit properties furnished in the plaint are insufficient and unless and until the boundaries of the suit properties are furnished, the suit properties cannot be identified; the plaintiff have not shown the genealogy of the plaintiffs' and the defendants' family, and unless and until the pedigree of the family of the plaintiffs and defendants are furnished, the suit is not maintainable. It is true that after the death of Shri Dattoba, the defendant No. 2 and his mother started to contend that there was partition between Dattoba and his two sons viz., the present defendant Nos. 1 and 2. They denied the contention of the 2nd defendant and his mother, that Dattoba had executed a Will bequeathing all the properties fallen to his share in favour of defendant No. 2 and his mother. He admitted filing of the suit in O.S. No. 136/1987. He also did not dispute the judgments and decrees passed in O.S. No. 136/1987, R.A. No. 44/1991 and R.S.A. No. 881/2001. The present plaintiffs had not claimed any partition in the suit in O.S. No. 136/1987. They kept quite from 1987 to 2005 for more than 18 years, therefore, the present suit is hopelessly barred by time. The plaintiffs were already given in marriage long ago and they have ceased from the family of Dattoba, therefore, the present plaintiffs are not at all in actual joint possession of the suit properties along with the defendants. Being out of possession of the suit properties, plaintiffs ought to have paid the Court fee on ad valorem value of the suit properties and hence the Court fee paid is insufficient. Plaintiffs have intentionally not included plot No. 14 in the suit. Plot No. 14 is also family property of the plaintiffs and defendants and, unless it is included, the suit is not maintainable. Therefore, he sought for dismissal of the suit. 6. Defendant No. 2 also filed separate written statement. Defendant Nos. 3 to 5 filed a memo adopting the written statement submitted by defendant No. 2. Plot No. 14 is also family property of the plaintiffs and defendants and, unless it is included, the suit is not maintainable. Therefore, he sought for dismissal of the suit. 6. Defendant No. 2 also filed separate written statement. Defendant Nos. 3 to 5 filed a memo adopting the written statement submitted by defendant No. 2. The case of the 2nd defendant is unless and until the boundaries of the suit properties are furnished, the suit is not maintainable; similarly, for want of genealogy, the suit is not maintainable. During the lifetime of Shri Dattoba, he executed a Will when he was in a sound disposing state of mind bequeathing all his properties in favour of defendant No. 2-Shri Sambhaji and his mother-Changunabai. On death of Shri Dattoba, defendant No. 2 and his mother Changunabai have become absolute owners in respect of the properties bequeathed to them as legatees under the Will. Therefore, the plaintiffs cannot claim any share in the suit properties. They are required to pay Court fee under Section 35(1) of the Karnataka Court Fees and Suits Valuation Act. The Court had no jurisdiction to entertain the suit. The present suit is barred under Order II Rule 2 of CPC. The suit is also hit by doctrine of res judicata under Section 11 of CPC. Plaintiffs have not included all the properties in the suit which are standing in the names of the plaintiffs as well as in the name of defendant No. 1. The properties which are not belonging to the family of the members of the suit are also included in the suit, the suit is hopelessly barred by time. 7. During the pendency of the suit defendant No. 1 died; his legal heirs defendant Nos. 1(a) to 1(c) were brought on record. Defendant No. 1(c) filed his additional written statement. He contended that in the suit in O.S. No. 136/1987, the plaintiffs have not made any counter claim for partition; they intentionally omitted to make counter claim and relinquished their rights in the suit properties in the said suit, hence the suit is barred under Order II, Rule 2 of CPC. The other legal heirs adopted the written statement filed by defendant No. 1(c) by filing a memo. The other legal heirs adopted the written statement filed by defendant No. 1(c) by filing a memo. It was further contended though, by way of an amendment, the plaintiffs have included certain properties in the suit, they have not arrayed the so-called purchasers of the said suit properties. The purchasers of plots Nos. 101 and 29 viz., Shri Paras Babulal Paramar is not added in the suit; unless the purchasers of the said two items of the properties are arrayed as parties, no effective and executable decree can be granted by this Court in the suit. 8. The 7th defendant filed a separate written statement. His case is that plot No. 29 was the absolute property of defendant No. 1; he verified the record of rights of plot No. 2 and verified the title deed like sale deed and further verified the possession over the suit property; after verifying himself of all those aspects, he had purchased plot No. 29 for valuable consideration; he is a bona fide purchaser. At the time of purchase, the daughters were not entitled to any share in the coparcenary property during the life time of their father. Thus, the property in plot No. 29 was the absolute property of defendant No. 1. 9. Defendants-1(a) to 1(c) have sold plot No. 29 in favour of defendant-7. In turn, he has sold the same in favour of defendants-8 and 9. Therefore he sought for dismissal of the suit. 10. Defendants-8 and 9 have filed separate written statement reiterating what the 7th defendant has stated. 11. On the aforesaid pleadings, the trial Court framed the following issues and two additional issues: 1. Whether the plaintiffs prove that the suit properties are their joint family properties of the plaintiffs and the defendants? 2. Whether the plaintiffs prove that they are each having 11/72 share in the suit properties? 3. Whether the suit is barred by principles of Res-judicata? 4. Whether the suit is bad for seeking partial partition? 5. Whether the suit is not maintainable? 6. Whether the plaintiff is entitled for the reliefs prayed? 7. What decree or order? Additional Issue No. 1: Whether the suit is barred under Order II, Rule 2(2) of CPC? 3. Whether the suit is barred by principles of Res-judicata? 4. Whether the suit is bad for seeking partial partition? 5. Whether the suit is not maintainable? 6. Whether the plaintiff is entitled for the reliefs prayed? 7. What decree or order? Additional Issue No. 1: Whether the suit is barred under Order II, Rule 2(2) of CPC? Additional Issue No. 2: Whether the defendants No. 7 to 9 prove that the defendants No. 7 to 9 are the bona fide purchasers of those items of the suit properties which are purchased by them? 12. The plaintiffs in order to substantiate their claim examined the husband of the first plaintiff, Babu Rao as P.W.-1 and Ramesh, the power of attorney holder was examined as P.W.-2. They produced 17 documents which are marked as Ex. P-1 to 17. On behalf of respondents, the defendant-1(c) was examined as D.W.-1, 7th defendant-Paras Babulal Shah was examined as D.W.-2 and 8th defendant-Uday Basavaraj Koutanali was examined as D.W.-4. They also produced 25 documents, which are marked as Exs. D-1 to D-25. 13. The trial Court, on appreciation of the aforesaid oral and documentary evidence on record held that the plaintiffs have proved that the schedule properties are joint family properties of plaintiffs and defendants. It held that plaintiff No. 1 is entitled to 60/540th share in the suit properties, plaintiffs-2 and 3 are entitled to 70/540th share in the suit properties. It held that suit is not barred by principles of res judicata, the suit is not bad for seeking partial partition, the suit is maintainable and plaintiffs are entitled to the relief sought for. It also held on additional issue No. 1 that the suit is not barred under Order II, Rule 2(2) of CPC. Defendants-7 to 9 have proved that they are bona fide purchasers for valuable consideration and sold (sic sale) in their favour is not vitiated. 14. Aggrieved by the said judgment and decree of the Trial Court, defendants-1(a) to 1(c) have preferred this appeal. 15. Defendants-7 to 9 have proved that they are bona fide purchasers for valuable consideration and sold (sic sale) in their favour is not vitiated. 14. Aggrieved by the said judgment and decree of the Trial Court, defendants-1(a) to 1(c) have preferred this appeal. 15. The learned Counsel for the appellant assailing the judgment and decree of the trial Court contended that the daughters namely the first plaintiff, second plaintiff and defendant-3 who are born prior to coming into force of Hindu Succession Act, 1956 are treated as coparceners by virtue of Section 6A of the amended Act and are given equal share as that of a son and therefore the judgment and decree to that extent is vitiated. Further the Court below committed serious error in awarding equal share as that of the son to the second wife, Chengunabai. She was only entitled to a share in the share of her husband and therefore to that extent also the judgment is vitiated. Therefore, the allotment of share is illegal and requires to be interfered with. 16. Per contra, the learned Counsel appearing for the daughters submitted that as the law stands today, the daughters who are born prior to 1956 Act, are not conferred the status of coparcener and they fairly conceded that giving an equal share to them as that of the son is not proper. Only in the event the Supreme Court were to hold that they are also entitled to, then they would be entitled to equal share, but as the law stands today, they are not entitled. However, in so far as granting equal share to Chengunabai is concerned, as her husband is already dead and at partition between her husband and his two brothers, all the schedule properties have fallen to his share at partition, she is entitled to equal share as that of the son and the trial Court was justified in granting the said share. Therefore they submits that the decree of the trial Court may be modified only to the extent of reducing the share of the daughters born prior to 1956. 17. In the light of the aforesaid facts and rival contentions, the points that arise for our consideration in this appeal are: "1. Therefore they submits that the decree of the trial Court may be modified only to the extent of reducing the share of the daughters born prior to 1956. 17. In the light of the aforesaid facts and rival contentions, the points that arise for our consideration in this appeal are: "1. Whether the daughters who are born prior to coming into force of Hindu Succession Act, 1956 are entitled to the benefit of Section 6A as amended and are entitled to equal share as that of the son? 2. Whether the widow of Dattoba is entitled to a share equal to that of her son in the joint family property left behind by Dattoba? POINT No. 1 18. This Court in the case of Pushpalatha N.V. Vs. V. Padma & Others reported in 2010 (2) KCCR 1249 , had an occasion to consider this question, wherein it is held as under: "52. This declaration and conferment of right in coparcenary property, a salient and distinguishing feature of a coparcenary property in Mitakshara, is the right by birth. Once daughter is conferred the right of a coparcener, it follows that, she would get a right by birth in the coparcenary property. When the amending act came into force in 2005, naturally the question and a doubt would arise, as to when the daughter would get that right. The Parliament realised this problem and did not want to leave any one in doubt about its intention. It is expressly stated in the section itself that this "right is by birth", leaving no scope for interpretation. This amendment is introduced by way of substitution. The result is, this amended provision is there in the statute on the day it came into force i.e., 17.6.1956. From that day till the amendment Act came into force on 9.9.2005, the daughter of the coparcener was not a coparcener and she became a coparcener only from 9.9.2005. Though her status was so declared on 9.9.2005, she has been given right in the coparcenary property from the date of her birth. It would result in absurdity. Therefore, what the Parliament did was to use the phrase, "on and from the commencement of the Hindu Succession (Amendment) Act, 2005", as the opening words of the Section, thus removing the absurdity. 53. It would result in absurdity. Therefore, what the Parliament did was to use the phrase, "on and from the commencement of the Hindu Succession (Amendment) Act, 2005", as the opening words of the Section, thus removing the absurdity. 53. If the aforesaid opening words were not there in the amended Section and it is inserted by way of substitution, when the right is given to a daughter by birth, such a right would have accrued to her prior to the date of the passing of the Act in 1956 itself. The intention of the Parliament was not to give her rights in a coparcenary property prior to the date of the Act as she had only a limited right in the property, whether ancestral or self acquired property of the father. Therefore, on a proper interpretation it follows that when the status of a coparcener is conferred on the daughter on and from the date of the commencement of the Amendment Act, as the right is given to her by birth, she must have born after 17.6.1956, the day on which the Act came into force. It is only under the Act, her limited estate blossomed into an absolute estate, and got equal rights with the son in the property of her father and mother. 54. The Apex Court in the case of Eramma Vs. Veerupana [ AIR 1966 SC 1879 ] had an occasion to consider whether the Act is prospective or retrospective in operation. After analysing the various provisions of the Act it was held that, there is nothing in the language of Section 8 to suggest that it has retrospective operation. The words "The property of a male Hindu dying intestate" and the words "shall devolve" occurring in the section make it very clear that the property whose devolution is provided for by that section must be the property of a person who dies after the commencement of the Hindu Succession Act. 55. Again after referring to Section 6 of the Act, it was held that, it is clear from the express language of the section that it applies only to coparcenary property of the male Hindu holder who dies after the commencement of the Act. It is manifest that the language of Section 8 must be construed in the context of Section 6 of the Act. It is manifest that the language of Section 8 must be construed in the context of Section 6 of the Act. Accordingly, they held that the provisions of Section 8 of the Hindu Succession Act are not retrospective in operation and where a male Hindu died before the Act came into force i.e., where succession opened before the Act, Section 8 of the Act will have no application. 56. Therefore, it follows that the Act when it was enacted, the Legislature had no intention of conferring rights which are conferred for the first time on a female relative of a coparcener including a daughter prior to the commencement of the Act. Therefore, while enacting this substituted provision of Section 6 also it cannot be made retrospective in the sense applicable to the daughters born before the Act came into force. In the Act before amendment the daughter of a coparcener was not conferred the status of a coparcener. Such a status is conferred only by the Amendment Act in 2005. After conferring such status, right to co-parcenary property is given from the date of her birth. Therefore, it should necessarily follow such a date of birth should be after the Act came into force, i.e., 17.6.1956. There was no intention either under the unamended Act or the Act after amendment to confer any such right on a daughter of a coparcener who was born prior to 17.6.1956. Therefore, in this context also the opening words of the amending section assumes importance. The status of a coparcener is conferred on a daughter of a coparcener on and from the commencement of the Amendment Act, 2005. The right to property is conferred from the date of birth. But, both these rights are conferred under the Act and, therefore, it necessarily follows the daughter of a coparcener who is born after the Act came into force alone will be entitled to a right in the co-parcenary property and not a daughter who was born prior to 17.6.1956." 19. In the light of the aforesaid judgment, the finding recorded by the trial Court that even daughters who are born prior to 17.06.1956 are entitled to the status of a coparcener and consequently entitled to a share in the co-parcenary property equal to that of a son is unsustainable and accordingly, it is hereby set aside. In the light of the aforesaid judgment, the finding recorded by the trial Court that even daughters who are born prior to 17.06.1956 are entitled to the status of a coparcener and consequently entitled to a share in the co-parcenary property equal to that of a son is unsustainable and accordingly, it is hereby set aside. However, they would be entitled to equal share as that of a son in the share to be allotted to their father in the notional partition. POINT No. 2 20. In Hindu Law by Mulla at Section 315 it is stated as under: 315. Widow-mother.--(1) A mother cannot compel a partition so long as the sons remain united. However, if a partition takes place between the sons, she is entitled except in southern India (Madras State) to a share equal to that of a son in the coparcenary property. She is also entitled to a similar share on a partition between the sons and the purchaser of the interest of one or more of them. 21. Therefore, as the properties are situated in Bombay region and the parties are also residing in that region, the Mitakshara Law as applicable to Bombay region, the widow of a coparcener has been conferred a right to a share equal to that of a son in the properties which has fallen to the share of her husband at a partition though she has no right to seek partition. 22. Now the present suit for partition is filed after the death of her husband. The suit is between the daughters and sons. Therefore at a partition between sons and daughters, the widow of the propositus and as the mother of some of the parties to the suit, she is entitled to equal share as that of the son, though the properties which are the subject matter of the suit are coparcenary properties. The suit properties have fallen to the share of Dattobha at a partition between him and his two daughters. In that property, the sons have a right by birth. By virtue of Section 6A of the Act, the daughters who are born subsequent to 1956 are also given the status of coparcener and therefore are entitled to a share in the coparcenary properties equal to that of the son. In that property, the sons have a right by birth. By virtue of Section 6A of the Act, the daughters who are born subsequent to 1956 are also given the status of coparcener and therefore are entitled to a share in the coparcenary properties equal to that of the son. Similarly, the Mitakshara Law as applicable to Bombay region, at that partition, the widow is also entitled to an equal share as that of the son. The only persons who are not entitled to equal share are those unfortunate daughters who are born prior to 1956. Therefore the judgment and decree of the trial Court conferring equal right on the second wife is valid and legal and do not call for interference. 23. In the light of the aforesaid discussion, we have to see what are the shares to which each of the parties are entitled to? Now we have to effect a notional partition, on the date Dattobha died, i.e., 1981. On that day, the sharers were, himself, his second wife Chengunabai, Ramachandra, son through his first wife and a son and three daughters of Chengunabai, who were born subsequent to 1956. Housabai, daughter of Gangubai and Shankuntala, Nirmala, daughters of Changunabai, were born prior to 1956. Therefore they are not entitled to equal share as coparceners. Therefore, the total number of sharers were seven sharers, i.e., each one of them are entitled to 1/7th share, i.e., Dattobha, Changunabai, Ramachandra, Sambaji, Kanchana, Shashikala and Jayashri are entitled to 1/7th share. In 1/7th share of Dattoba, Changunabai, Ramachandra, Housabai, Sambaji and five daughters of Changunabai are entitled to equal share, i.e., 1/9th share in 1/7th share, i.e.. Housabai, Shakuntala and Nirmala are entitled to 1/63rd share, whereas, Changunabai, Ramachandra, Sambaji, Kanchana, Shashikala and Jayashri are entitled to 10/63rd share. Changanabai died on 24.04.1995. Therefore her share of 10/63rd devolves on her sons Sambaji, five daughters in equal share, i.e., 10/378th. Therefore in the ultimate analysis, parties are entitled to the following shares: First defendant-Ramachandra is entitled to 60/378th share. First plaintiff, Housabai is entitled to 6/378th share. Second Defendant-Sambhaji is entitled to 70/378th share. Third defendant-Shakuntala is entitled to 16/378th share. Similarly, second plaintiff-Nirmala is also entitled to 16/378th share. Defendant No. 4-Kanchana and defendant No. 5-Shashikala and third plaintiff-Jayashree would be entitled to 70/378th share. These are the shares to which they are entitled to. First plaintiff, Housabai is entitled to 6/378th share. Second Defendant-Sambhaji is entitled to 70/378th share. Third defendant-Shakuntala is entitled to 16/378th share. Similarly, second plaintiff-Nirmala is also entitled to 16/378th share. Defendant No. 4-Kanchana and defendant No. 5-Shashikala and third plaintiff-Jayashree would be entitled to 70/378th share. These are the shares to which they are entitled to. Hence, we pass the following order: Appeal is allowed in part. We modify the judgment and decree of the trial Court in so far as allotment of share is concerned, as under: (a) 1 st Plaintiff-Housabai 6/378 th share 2 nd plaintiff-Nirmala 16/378 th share 3 rd plaintiff-Jayashree 70/378 th share 1 st defendant-Ramachandra 60/378 th share 2 nd defendant-Sambhaji 70/378 th share 3 rd defendant-Shankuntala 16/378 th share 4 th defendant-Kanchana 70/378 th share 5 th defendant-Shashikala 70/378 th share (b) Parties to bear their own costs.