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2015 DIGILAW 429 (KAR)

Kallappa v. Hussainsab Fakirsab Agasar

2015-04-15

S.N.SATYANARAYANA

body2015
JUDGMENT : 1. The plaintiffs in O.S. No. 215/2002 on the file of III Addl. Civil Judge (Jr. Dn.), Dharwad, has come up in this second appeal impugning the concurrent finding of both the Courts below in dismissing their suit for declaration and granting only the relief of permanent injunction with respect to suit schedule property. 2. The brief facts leading to this second appeal are that the plaintiff no.1 is the widower of Smt. Channavva and plaintiffs 2 to 4 are the children of plaintiff and deceased Channavva. Admittedly the suit schedule property is the property of Channavva which was given to her by her biological mother Smt. Rajbi. The relevant facts which are to be referred at this stage is that the 1st plaintiff’s wife Channavva earlier belonged to Islamic religion and her maiden name was Hasanbi and she was the daughter of Rajbi. Admittedly the suit property was originally belonged to 1st plaintiff’s mother-in-law Rajbi. When Rajbi’s daughter Hasanbi got converted to Hinduism and got married to 1st plaintiff, her mother Rajbi transferred the suit schedule property in favour of her daughter Hasanbi @ Channavva by giving a wardi that the suit schedule property is transferred to the name of her daughter. 3. Thereafter it is seen that the said property continued to be the property of Channavva Nee Hasanbi until her death. After the death of Channavva succession opened for title to the suit property. The plaintiffs 1 to 4 herein being the husband and children of Channavva have come up in O. S. No. 215/2002 for the relief of declaration that they are the legal heirs of deceased Channavva and as such they have succeeded to suit property under the provisions of Hindu Succession Act, 1955. 4. It is seen that earlier the 1st defendant in the original suit namely Hussainsab Fakirsab Agasar who claims to be the brother of Hasanbi tried to claim the suit property seeking transfer of khata in his name. It is seen that he al so initiated a proceedings in O. S. No. 388/1998 on the file of Civil Judge (Jr. Dn.), Dharwad, seeking relief of declaration that he being the closest relative of deceased Channavva Nee Hasanbi, the suit schedule property would devolve upon him and not on other persons. It is seen that he al so initiated a proceedings in O. S. No. 388/1998 on the file of Civil Judge (Jr. Dn.), Dharwad, seeking relief of declaration that he being the closest relative of deceased Channavva Nee Hasanbi, the suit schedule property would devolve upon him and not on other persons. It is seen that in the said suit though he admitted that Hasanbi was converted into Hindu religion and renamed as Channavva, he did not implead the husband and children of Channavva in the said suit. In the said suit though the husband and children of deceased Channavva filed an application seeking permission to get themselves impleaded, the same was rejected and consequently the suit of the plaintiff Hussainsab Agasar was decreed in his favour by decreeing O.S. No. 388/1998. 5. It is thereafter the present suit is filed by the appellants herein seeking declaration that they are the legal heirs of deceased Channavva and as such they have succeeded to the suit schedule property. In the said suit they have impleaded the plaintiff in O.S.No.388/1998 and contended that the judgment which is obtained by him behind their back would not enure to his benefit. It is seen that in the said suit the 1st defendant entered appearance and filed written statement denying that the plaintiffs have right to succeed to the property based on Rule 223(1) of Mohammedan Law governing succession and inheritance. Based on the pleadings of both the parties in the said suit the trial Court framed the following issues. ISSUES (i) Whether the plaintiffs prove that they are the surviving legal heirs of deceased Hasanbi @ Channawwa? (ii) Whether the plaintiffs prove that the defendant no. 1 is causing obstruction to their peaceful enjoyment and wahiwat of suit schedule property? (iii) Whether the defendant no. 1 proves that the suit of the plaintiffs is hit by res-judicata? (iv) Whether the plaintiffs are entitled for the relief as sought for? (v) What order or decree? ADDITIONAL ISSUES (i) Whether the suit of the plaintiffs is suffering from non joinder of necessary parties as contended by defendant no. 2? (ii) Whether the plaintiffs prove that they have inherited the suit property of deceased Hasanbi @ Channawwa and they are the absolute owners of suit property? (v) What order or decree? ADDITIONAL ISSUES (i) Whether the suit of the plaintiffs is suffering from non joinder of necessary parties as contended by defendant no. 2? (ii) Whether the plaintiffs prove that they have inherited the suit property of deceased Hasanbi @ Channawwa and they are the absolute owners of suit property? (iii) Whether the plaintiffs prove that they are in possession of the suit property on the date of filing of the suit? 6. After recording evidence of both the parties the trial Court proceeded to answer the 1st and 2nd issues in the affirmative in favour of the plaintiff and 3rd issue in the negative. However when it comes to the relief, the trial Court partly decreed the suit only in respect of permanent injunction based on the possession and enjoyment of the suit property by plaintiffs 1 to 4. So far as declaration of title is concerned, it was declared that suit property was property of Rajbi and while answering additional issues the right of inheritance and the point for non joinder of issues are concerned they were answered in the negative and however the possession of plaintiffs over the suit property as on the date of the suit is answered in the affirmative. Consequently by granting the relief of permanent injunction against defendant no. 1 who is plaintiff in earlier suit O.S.No.388/1998, the suit of the plaintiff for the relief of declaration was rejected. 7. Being aggrieved by the same, the plaintiffs in the original suit preferred an appeal in R. A. No. 112/2004 on the file of I Addl. Civil Judge (Sr. Dn.), Dharwad, wherein the lower appellate Court on re-appreciation of the grounds and also the finding of the tri al Court on issues, framed the following points for consideration. POINTS (i) Whether the trial Court judgment and decree calls for any interference from this Court? (ii) What order? 8. The only point which was framed to consider which was whether the judgment and decree passed by the tri al Court requires interference was answered in the negative and thereby the judgment and decree of the trial Court was confirmed. Being aggrieved by the concurrent finding of both the Courts below in rejecting the plaintiff’s prayer for the relief of declaration, this second appeal is preferred by the plaintiffs in the original suit. Being aggrieved by the concurrent finding of both the Courts below in rejecting the plaintiff’s prayer for the relief of declaration, this second appeal is preferred by the plaintiffs in the original suit. When this second appeal was heard for admission, the same was admitted to consider the following substantial question of law. SUBSTANTIAL QUESTION OF LAW Whether the Court below was justified in declining the relief of declaration of plaintiff’s right to succeed to suit property when they are declared as the only legal heirs of deceased Hasanbi @ Channavva? 9. The admitted facts in this proceedings is that the 1st plaintiff’s wife and mother of plaintiffs 2 to 4 namely Channavva earlier belonged to Islamic Religion and her previous name was Hasanbi. It is al so not in dispute that she is the daughter of one Rajbi who was earlier owner of suit schedule property. The material available on record would disclose that Channavva predeceased her mother Rajbi. That means to say at the time of death of Channavva, Rajbi was alive. Rajbi conveyed the suit schedule property in favour of Channavva by giving a wardi before the revenue authorities and declaring her intention to convey the suit schedule property in favour of her daughter Channavva and thereby the suit property was registered in the name of Channavva in the revenue records and she continued to be the owner of suit schedule property till the date of her death. 10. When Channavva died, she died as a Hindu leaving behind the suit property as property of her estate. Therefore the succession would automatically open under the provisions of Hindu Succession Act to which Channavva belong to at the time of her death. Therefore under Section 15 of the Hindu Succession Act it is the plaintiffs who are entitled to be declared as the legal heirs of deceased Channavva and as such they would succeed to her estate. In fact the trial Court while answering issue no. 1 has accepted this legal proposition. Though it has accepted this legal proposition, it has misled itself to believe as if the property, which is in dispute is the property of Rajbi who died subsequent to death of Channavva and succession to the said property has opened under Mohammedan Law. Therefore the 1st respondent who is the nearest relative of Rajbi would be entitled to succeed to the same. Therefore the 1st respondent who is the nearest relative of Rajbi would be entitled to succeed to the same. This finding of the trial Court is erroneous both on facts and also in law. 11. In that view of the matter it is clearly seen that though the trial Court while accepted the plaintiffs as legal heirs of deceased Channavva, wrongly declined to hold them as successors to suit schedule property thereby restricting the relief only in granting the relief of permanent injunction based on the possession of suit schedule property by them at the time of death of Channavva and consequently declined to declare them as successors to the suit property as legal heirs of deceased Channavva. In fact this error which is committed by the tri al Court is not rightly appreciated by the lower appellate Court while re-appreciating the pleadings, oral and documentary evidence available on record. Consequently the error which was committed by the tri al Court is reiterated by the lower appellate Court. 12. In that view of the matter, this Court while answering the substantial question of law in the negative against the defendants and in favour of the plaintiffs in the original suit would declare that the suit property which was the absolute property of deceased Channavva was available to her estate to be succeeded by her legal heirs namely plaintiffs 1 to 4 in the trial Court and appellants 1 to 4 herein as her husband and children. 13. In that view of the matter, this Court feel that the judgment and decree passed by both the Courts below in declining the relief of declaration to plaintiff is required to be set aside and in addition to the relief of injunction that is already granted by the trial Court and confirmed by the lower appellate Court, the right to seek declaration of title to them in the suit property is al so required to be granted and accordingly by setting aside the negative finding of both the Courts below regarding title, the suit of the plaintiff is decreed in its entirety holding that they are the absolute owners as legal heirs of deceased Channavva @ Hasanbi. This second appeal is allowed accordingly.