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2014 DIGILAW 908 (KAR)

Chandramma v. Anjinamma

2014-10-16

H.G.RAMESH

body2014
JUDGMENT H.G.RAMESH, J. (Oral): 1. This second appeal is by the plaintiffs. Their suit for declaration that they are the owners of the plaint ‘B’ schedule properties and that the registered will dated 3rd October 1981 executed by one Veeragara Obamma bequeathing the plaint ‘B’ schedule properties in favour of the defendant is null and void and for grant of permanent injunction restraining the defendant from interfering with the plaintiffs’ possession of the aforesaid properties was dismissed by the Trial Court by its judgment dated 14th October 2008. The said judgment is confirmed by the first Appellate Court by its judgment dated 30th March 2009 which is impugned herein. Concurrent findings by both the Courts. 2. I have heard Ms. Vidya, learned counsel appearing for the appellants and Mr. V.M. Sheelavant, learned counsel who appeared as Amicus Curiaeas the respondent remained unrepresented. Perused the judgments and the records of the two Courts below. 3. The sole contention urged by the learned counsel for the appellants plaintiffs is that the registered will dated 3rd October 1981 Ex.D.2 executed by Veeragara Obamma in favour of the defendant is not valid in law as she had no disposable interest in respect of the plaint ‘B’ schedule properties which is bequeathed under the will, in view of the unregistered settlement deed dated 30th May 1953 Ex.P.2 executed between Veeragara Obamma and Siddamma, both of whom were widows of the two sons of Basamma. It is stated that as per the said settlement deed, Veeragara Obamma was given only life interest in the plaint ‘B’ schedule properties, and hence, she had no right to bequeath the plaint ‘B’ schedule properties under the will Ex.D.2. In support of her contention, she relied on subsection (2) of Section 14 of the Hindu Succession Act, 1956 (‘the Act’). 4. In the context of the contention urged in this appeal, it is relevant to refer to the following undisputed genealogy of the plaintiffs: Basamma (mother) (dead) Rajappa (son) (dead) Sidappa (son) (dead) Siddamma (widow) (dead) Veeragara Obamma (widow) (dead issueless on 21.02.2005 Chandramma Rathnamma Sharanappa Basamma Maruthi (Plaintiff No.1) (Married) (Plaintiff No.2) (Married) (Plaintiff No.3) [Note: Veeragara Obamma had executed the will dated 3rd October 1981 Ex.D.2 in favour of the Defendant Anjinamma who is her foster daughter.] It is not in dispute that the plaint ‘B’ schedule properties originally belonged to Basamma, the mother-in-law of Veeragara Obamma. 5. 5. Mr. V.M.Sheelavant, learned Amicus Curiae submitted that subsection (2) of Section 14 of the Act is not applicable to the facts of this case as it will apply to cases only where property is acquired by a female Hindu for the first time without any preexisting right in the property. 6. In the context of the question raised, it is relevant to refer to Section 14 of the Act which reads as follows: “14. Property of a female Hindu to be her absolute Property.(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Explanation. In this subsection, “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhan a immediately before the commencement of this Act. (2) Nothing contained in subsection (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.” 7. The settled legal position is that subsection (2) of Section 14 applies to cases where property is acquired by a female Hindu for the first time without any preexisting right and the terms of the document under which the property is acquired prescribe a restricted estate in the property. Where, however, the property is acquired by a female Hindu by virtue of a preexisting right, such an acquisition would not be within the scope and ambit of subsection (2) of Section 14 of the Act, even if the document allotting the property prescribes a restricted estate in the property. 8. Where, however, the property is acquired by a female Hindu by virtue of a preexisting right, such an acquisition would not be within the scope and ambit of subsection (2) of Section 14 of the Act, even if the document allotting the property prescribes a restricted estate in the property. 8. It is not in dispute that Veeragara Obamma who was a widow was having a limitedestatein the plaint ‘B’ schedule properties prior to the commencement of the Act and as such was possessing the plaint ‘B’ schedule properties as a limited owner. It was not a new right conferred on Veeragara Obamma for the first time by the settlement deedEx.P.2. The contention of the appellants’ counsel that the settlement deed Ex.P.2 dated 30th May 1953 executed prior to the commencement of the Act restricted alienation of the plaint ‘B’ schedule properties and hence, it invalidates the will Ex.D.2 dated 3rd October 1981 cannot be accepted in view of subsection (1) of Section 14 of the Act. Subsection (2) of Section 14 of the Act relied upon by the learned counsel for the appellants has no application to the facts of the present case as Veeragara Obamma had limited estate in the plaint ‘B’ schedule properties prior to coming into force of the Act as also prior to execution of the settlement deed Ex.P.2. As the limited estate possessed by Veeragara Obamma in the plaint ‘B’ schedule properties became an absolute estate after coming into force of the Act in view of Section 14(1) thereof, she got disposable interest in respect of the plaint ‘B’ schedule properties and therefore, the bequeath made by her under the registered willEx.D.2 in favour of the defendant cannot be said to be invalid in law. 9. I find no legal infirmity in the judgments of the two Courts below. The determination made by both the Courts is in accordance with Section 14 of the Act. In my opinion, no substantial question of law arises for determination in this second appeal. No ground to admit the appeal. The appeal is accordingly dismissed. Appeal dismissed.