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2020 DIGILAW 815 (KAR)

Susheela v. B. U. Ummaiaha And Others

2020-04-16

NATARAJ RANGASWAMY

body2020
JUDGMENT 1. This Regular Second Appeal is filed by the defendant No.2 in the suit challenging the Judgment and Decree dated 01.06.2011 passed by the Civil Judge (Sr.Dn.) at Virajpet in O.S.No.84/2006 and the concurring Judgment and Decree dated 30.09.2013 passed by the II Additional District Judge, Kodagu, Sitting at Virajpet in R. A. No.63/2011. 2. For the sake of convenience, the parties shall henceforth be referred to as they were arrayed before the Trial court. The appellant was the defendant No.2 while the respondents were the plaintiffs and the defendant No.1 and 3 respectively. 3. The suit filed by the plaintiff indicates the following family tree of the plaintiffs and the defendants: 4. It is stated that the suit properties were originally owned and possessed by the propositus Sri.Kuttappa and upon his death the suit properties were held by Belliappa and Kariappa and thereafter by Utthaiah and Muthanna. It is stated both Utthaiah and Muthanna are dead and that the plaintiffs are staking their claim to the share of their father Utthaiah. It is alleged that the claim of the plaintiffs for partition of the suit properties was turned down by the husband of the defendant No.2 and therefore they filed the present suit for partition. 5. The defendants 2 and 3 filed their written statement contending that amongst Kodavas, the female heirs were not entitled to an equal share in the suit properties and could not claim on par with males. They also claimed that a custom amongst Kodavas did not allow any share to a married daughter and thus the plaintiffs were not entitled to any share. It is contended that the husband of defendant No.2 celebrated the marriages of the plaintiff and the defendant No.4 by spending huge sums of money and that they were given gold jewels and other articles equivalent to their share in the property. Thus the defendants 2 and 3 contended that the plaintiffs are estopped from claiming a share in the suit property. The husband of defendant No.3 namely Ganapathi was in possession of the property bearing Survey No.23/A2 measuring 3 acres of wet land, Survey No.23/3 measuring 25 cents of coffee land and Survey No.22/2 measuring 6.25 acres of coffee land along with a house therein and a labour line house. The husband of defendant No.3 namely Ganapathi was in possession of the property bearing Survey No.23/A2 measuring 3 acres of wet land, Survey No.23/3 measuring 25 cents of coffee land and Survey No.22/2 measuring 6.25 acres of coffee land along with a house therein and a labour line house. It is stated that the aforesaid properties was bequeathed by said Ganapathi in favour of third defendant in terms of a testament dated 27.06.2005 and after the death of Ganapathi, the 3rd defendant became the sole and absolute owner of the suit property. Therefore it is contended that there is no cause of action to file the suit and the plaintiffs were never in possession of the suit property. They further claimed that the plaintiffs father Uthappa had sold 3 acres of land in Survey No.22/2 of Hanchinadu village in terms of a Registered Sale Deed dated 28.07.1969 in favour of Mandepanda Uthaiah of Hanchinadu village. Therefore it is contended that the plaintiffs are not entitled to any claim in the suit schedule properties. They also contended that the purchasers of Survey No.22/2 of Hanchinadu village were not arrayed as parties to the suit and they further contended that the suit was not properly valued. 6. The plaintiffs filed their Rejoinder contending that they were not aware of the sale deed in the year 1969 in respect of Survey No.22/2. Thus they contended that the alleged sale deed, if any, should be ignored. 7. Based on the aforesaid rival contentions, the Trial Court framed the following issues:- '1. Whether plaintiffs prove that suit schedule properties are joint family properties of them and the defendants and they have been in deemed joint possession of the suit schedule properties? 2. Whether plaintiffs prove that plaintiff No.1 has got 1/3rd share in the suit schedule properties? 3. Whether defendant No.3 proves that he has given valuable gold jewelrys to the plaintiffs and defendant No.2 and 4 in lieu of their share as contended in Para 2 of her W/S? 4. Whether plaintiffs are entitled to the relief sought for? 5. What Decree or order?' 8. Before the Trial Court the plaintiff No.2 was examined as P.W.1 and she marked Exhibits P1 to P5. The Defendant No.2 was examined as D.W.1 and she marked Exhibits D1 to D7 and closed her side. 4. Whether plaintiffs are entitled to the relief sought for? 5. What Decree or order?' 8. Before the Trial Court the plaintiff No.2 was examined as P.W.1 and she marked Exhibits P1 to P5. The Defendant No.2 was examined as D.W.1 and she marked Exhibits D1 to D7 and closed her side. The Trial Court on appreciation of the evidence and in view of the fact that the plaintiffs were staking claim to their fathers share in the suit schedule property, decreed the suit and held that the plaintiffs are entitled for half share in the suit schedule properties. The Trial Court further held that there was nothing to prove that the father of the plaintiffs had sold 3 acres of land in Survey No.22/2 of Hachinadu village. The Trial Court also held that the purchaser of the land bearing Survey No.22/2 was not a proper and necessary party for the disposal of the suit and therefore rejected the contention of the defendants 2 and 3. 9. Being aggrieved by the aforesaid Judgment and Decree, the defendant No.2 filed appeal in R.A. No.63/2011 before the First Appellate Court. The First Appellate Court chronicled the admitted fact that the suit properties were ancestral properties which belonged to the plaintiffs and the defendants. The First Appellate Court also held that there was no partition in the family of the plaintiffs and the defendants by metes and bounds and the suit properties were in joint possession of the plaintiffs and the defendants and thus held that the plaintiffs were indeed entitled to half share in the suit schedule properties. The First Appellate Court also held that there was nothing on record to show that the father of the plaintiffs had sold 3 acres of Survey No.22/2 as per Exhibit-D1. The First Appellate Court also held that the purchaser of the said property was not a necessary and proper party for the adjudication of the dispute and hence dismissed the first appeal was and confirmed the Judgment and Decree of the Trial Court. 10. The defendant No.2 feeling aggrieved by the aforesaid Judgment and Decree of the Trial Court and the First Appellate Court, has filed this Regular Second Appeal. 11. 10. The defendant No.2 feeling aggrieved by the aforesaid Judgment and Decree of the Trial Court and the First Appellate Court, has filed this Regular Second Appeal. 11. The learned counsel for the defendant No.2 submitted that the issue as to whether the plaintiffs being the female coparceners by virtue of the Hindu Succession (Amendment) Act, 2005 were entitled to succeed to a per capita share or not, is in consideration before the Full Bench of the Apex Court in the case of Vineetha Sharma v. Rakesh Sharma in Civil Appeal No.32601/2018. He contended that the Apex Court in the case of Mangammal v. T.B.Raju reported in (2018) 1 KAR LR 598 (SC) , has held that the plaintiffs would not be entitled to a share in the suit properties as co-parceners, but at the most could be entitled to maintenance and marriage expenses. In addition, he placed on record the Judgment of the Apex Court in the case of Prakash v. Phoolavathi reported in (2016) 2 SCC 36 . 12. Further, the learned counsel relied on the Judgments reported in (1974) 1 SCC 675 , (1996) 11 SCC 259 , (2007) 13 SCC 565 , (2014) 2 SCC 269 and AIR 2015 SC 2270 to contend that revenue entries established a prior partition. It is the contention of the defendant No.2 that the revenue entries in the record of rights clearly indicated the partition of the suit properties amongst the father of the plaintiffs and the father of the defendants. Therefore, the revenue records would stand testimony to the above fact. 13. The learned Counsel also placed reliance on the Judgment of this Court reported in the Judgment of the Apex Court in the case of Monnanda Nanaiah v. Balladichanda Caveriamma reported in ILR 1985 KAR Page 1599 , to contend that there was a custom which was prevalent amongst the Kodava community, wherein the daughter lost right of inheritance in the fathers property on getting married. 14. While answering the contentions raised by the defendant no.2, it is true that the Apex Court in Vineeta Sharma v. Rakesh Sharma , considering the conflict of opinion in the case of Prakash v. Phulavathi reported in 2016 (2) SCC 36 and Danamma v. Amar 2018(3) SCC 343 relating to the interpretation of Section 6 of the Hindu Succession (Amendment) Act, 2005, had referred the issue to a larger bench. However, the facts of the present case are not akin to the facts that were involved in the case of Prakash or Danamma. In the present case, the plaintiffs were claiming their fathers share in the suit properties and were not claiming as co-parceners. It cannot be doubted that the father of the plaintiffs had an undivided half share in the suit properties and the plaintiffs have claimed that share as the legal heirs. Moreover, the plaintiffs were all married and thus could not be members of the joint family. 15. In so far as the contention that the revenue records disclosed a prior partition between the father of the plaintiff and the defendants, it is now more than well settled that entries in revenue records do not amount to a severance of status. It is for the parties to establish by credible evidence that there was an equitable partition. In the present case, except the self serving statement that ther was a partition, I do not find any material on record to indicate that there was ever a severance of status between the father of the plaintiffs and father of the defendants. 16. As regards the last contention that a custom prevailed amongst Kodavas which dis-inherits a married woman from claiming a share in the ancestral properties. It is indisputable that the parties to the suit were Hindus and were governed by the Hindu Succession Act, 1956. Section 4 of the Hindu Succession Act, 1956 conferred an overriding effect of the Act and is extracted below: Section 4: Save as otherwise expressly provided in this Act a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act. 17. 17. It is also apposite to refer to Section 13 of the Indian Evidence Act, 1872 which delineates the facts that are relevant when a right or custom is in question and is extracted below: Section 13: Where the question is as to the existence of any right or custom, the following facts are relevant a) any transaction by which the right or custom in question was created, claimed, modified, recognized, asserted or denied, or which was inconsistent with its existence; b) particular instances in which the right or custom was claimed, recognized or exercised or in which its exercise was disputed, asserted or departed from. 18. The reliance on the Judgment of the Apex Court in Monnanda Nanaiah v. Balladichanda Caveriamma reported in ILR 1985 KAR Page 1599 is misplaced as a perusal of this judgment would indicate that the Apex Court had considered the question as to the existence of such a custom and held that the appellant therein had failed to prove such a custom. Even if such a custom prevailed, then in view of the over riding effect of the Hindu Succession Act, 1956, such a custom had to yield up and the succession was to be governed only in accordance with the Hindu Succession Act, 1956. In this regard, it is profitable to refer to the Judgment of the Apex Court in the case of Atma Singh v. Gurmej Kaur reported in 2017 (9) SCC 325 and the relevant portion is extracted below: 'Section 4 of the Hindu Succession Act, 1956 has given an overriding effect to the said 1956 Act to any other law in force immediately before the commencement of the 1956 Act in so far as it is inconsistent with any of the provisions contained in the 1956 Act. Thus, even if for arguments sake it is accepted that Section 2 of the Hindu Widows Remarriage Act, 1856 has any cascading effect on the right of widow, the same shall be treated to have been overridden by virtue of Section 8 read with the Schedule provided under the Hindu Succession Act, 1956.' 19. Thus, even if for arguments sake it is accepted that Section 2 of the Hindu Widows Remarriage Act, 1856 has any cascading effect on the right of widow, the same shall be treated to have been overridden by virtue of Section 8 read with the Schedule provided under the Hindu Succession Act, 1956.' 19. When the defendant no.2 set up a custom contrary to the provisions of the Hindu Succession Act, 1956, the defendant No.2 ought to have placed on record the transactions and the evidence which indicate that such a custom ever existed and such a custom was an exception to the general rules of succession as prescribed in the Hindu Succession Act, 1956. Therefore the argument that such a custom existed cannot be accepted. 20. On a perusal of the plaint averments and the evidence adduced, it is evident that the plaintiffs were claiming their fathers share in the suit property and the Trial Court and the First Appellate Court have rightly held that the plaintiffs were entitled to half share in the suit schedule properties. In so far as the claim of the defendant no.2 that the father of the plaintiffs had sold the property bearing Survey No.22/2 measuring an extent of 3 acres, the final decree court may examine the same and if it is found that this property was sold by the father of the plaintiffs not to meet any legal necessities, then it is upto the Final Decree Court to apportion the property sold by the father of the plaintiffs to the share of the plaintiffs in the final Decree proceedings. 21. In the absence of any material to show that the plaintiffs were sufficiently compensated in lieu of their share, the Judgment and Decree of the Trial Court and the First Appellate Court are proper and correct and therefore do not call for any interference by this Court. Hence this Regular Second Appeal is devoid of merits and the same is dismissed. Consequently all pending applications in the above appeal stand disposed off.