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2023 DIGILAW 659 (KAR)

Basalingawwa v. Ramanna

2023-04-21

K.S.HEMALEKHA

body2023
JUDGMENT 1. The present second appeal by the plaintiffs Nos.1(a) to 1(c) assailing the concurrent findings of the Courts below dtd. 23/6/2018 in R.A. No.2/2014 on the file of the Additional Senior Civil Judge and JMFC, Mudhol confirming the judgment and decree dtd. 1/1/2014 in O.S. No.274/2007 on the file of the Additional Civil Judge, Mudhol. 2. The parties herein are referred to as per their ranking before the trial Court for the sake of convenience. 3. The original plaintiff, one Smt. Basalingawwa filed the said suit seeking the relief of declaration and consequential injunction contending that the original propositus Sri Timmappa @ Timmanna died in the year 1997 leaving behind his wife - original plaintiff and children namely Ramanna - defendant No.1, Bhimappadefendant No.2 and deceased Laxman as his legal heirs. It is contended that the elder son Ramanna was given in adoption to one Hanamanth Hugar and the said Ramanna has severed from the family. It is stated that after the death of the original propositus, all the properties owned by the propositus were inherited by the plaintiff and her children. It is further stated that the said Laxman had married defendant No.3-Sarojini, but later on, due to uncordial relationship between Laxman and defendant No.3-Sarojini, there was divorce as per the customs prevailing in their community and that deceased Laxman had divorced defendant No.3 in the presence of elders. That defendant No.4 is no way concerned with the deceased Laxman, but she is claiming herself to be the wife of deceased Laxman and defendant No.5 is the daughter of deceased Laxman through defendant No.4. It is stated that after divorce with defendant No.3, deceased Laxman, at no point of time, had married defendant No.4. During the lifetime of Laxman, there was a partition between Laxman and his brothers on 16/6/1998 and in the partition, the suit schedule properties have fallen to the share of deceased Laxman. That the plaintiff being the mother and class-I heir of deceased Laxman, has inherited the properties of the deceased Laxman alone and that defendant Nos.3 to 5 have no right, whatsoever nature, over the suit schedule properties. 4. During the pendency of the suit, plaintiffBasalingawwa expired and her children who were the original defendant Nos.3 to 5 sought for transposition as plaintiffs and claimed right under the original plaintiff. The said application was rejected. 4. During the pendency of the suit, plaintiffBasalingawwa expired and her children who were the original defendant Nos.3 to 5 sought for transposition as plaintiffs and claimed right under the original plaintiff. The said application was rejected. However, the said order was challenged before this Court in W.P. No.63557/2012, which came to be allowed with a direction to transpose the original defendant Nos.3 to 5 as plaintiffs as the applicants have claimed their rights through a Will in their favour and the original defendant Nos.3 to 5 were transposed as plaintiff Nos.1(a) to 1(c). 5. The present defendant Nos.3 to 5, who were the original defendant Nos.6 to 8, pursuant to the issuance of summons and after transposition, have become defendant Nos.3 to 5 and they had already filed written statement as defendant No.6 and the written statement was adopted by defendant Nos.7 and 8. Then defendant Nos.6 to 8 are the present defendant Nos.3 to 5 in the suit. 6. The contention of defendant Nos.3 to 5 (original defendant Nos.6 to 8) is, denial of the plaint in toto and contended that the names of the defendants have been wrongly shown. It is specifically contended that deceased Laxman had married defendant No.3 and denied that the customary divorce had taken place between the deceased Laxman and defendant No.3- Sarojini. The averments in the plaint denying the relationship of defendant Nos.3 to 5 with that of deceased Laxman is specifically denied by the defendants. 7. Defendant No.3 specifically averred that she is the legally wedded wife of the deceased Laxman. Though several proceedings were initiated between deceased Laxman and defendant No.3, there is no dissolution of their marriage as contended by the plaintiffs. 8. The defendants specifically averred that they are the exclusive owners of the suit schedule properties after the death of Laxman. 9. The Trial Court, on the basis of the pleadings of the parties, framed the following: ISSUES (1) Whether the plaintiff 1(a) to (c) prove that deceased Smt. Basalingawwa has executed a will on 30/02/2002 in their favour and as such they have become the absolute owner of the suit schedule property? (2) Whether the plaintiff No-1(a) to (c) prove that, the relationship of defendant No-3 is already ceased in view of customary divorce as being alleged ? (3) Whether the defendant No-4 and 5 proves their relationship with deceased Laxman ? (2) Whether the plaintiff No-1(a) to (c) prove that, the relationship of defendant No-3 is already ceased in view of customary divorce as being alleged ? (3) Whether the defendant No-4 and 5 proves their relationship with deceased Laxman ? (4) Whether the defendants No.3 to 5 prove that this court has no pecuniary jurisdiction to try this suit as marked value is more than Rs.20, 00, 000.00? (5) Whether the plaintiff No.1 (a) to (c) prove that they are in lawful possession and enjoyment of suit schedule property? (6) Whether the plaintiff No.1(a) to (c) prove the alleged interference by the defendants 3 to 5 ? (7) Whether the plaintiff No. 1(a) to (c) are entitled for declaration and injunction as sought for? Reframed issue No.1 as per order dtd. 16/8/2013 Issue No.1: Whether the plaintiffs 1(a) to (c) prove that, they have become natural legal heirs of decease plaintiff No.1 of smt. Basavalingawwa and as such they have become the absolute owners of the suit property? 10. In order to substantiate their claim, original plaintiff examined herself as PW.1 and the other three witnesses as PWs.2 to 4 and got marked documents at Exs.P-1 to P-12. On the other hand, defendant No.3 examined herself as DW.1 and one independent witness as DW.2 and got marked documents at Exs.D-1 to D10. 11. The trial Court, on the basis of the pleadings, oral and documentary evidence held that: (i) plaintiff Nos.1(a) to 1(c) have failed to prove that they have become the absolute owners of the suit schedule properties; (ii) plaintiff Nos.1(a) to 1(c) have failed to prove the relationship of defendant No.3 has already been ceased in view of customary divorce with deceased Laxman and by its judgment and decree dismissed the suit of the plaintiffs. Aggrieved by which, the plaintiffs preferred regular appeal before the first appellate Court. The first appellate Court framed the following points for consideration: POINTS (1) Whether the plaintiffs i.e., plaintiff Nos.1(A) to 1(C) prove that, they are owners of suit schedule properties by way of natural legal heirs of deceased Basalingavva? (2) Whether the judgment and decree passed by the lower court is illegal and against law and it requires interference by this Court? 12. (2) Whether the judgment and decree passed by the lower court is illegal and against law and it requires interference by this Court? 12. The first appellate Court on re-appreciation of the material on record held that, plaintiff Nos.1(a) to 1(c) have failed to prove that they are the owners of the suit schedule properties and confirmed the judgment and decree of the Trial Court. Aggrieved by the concurrent findings of the Courts below, the present appeal is preferred by plaintiff Nos.1(a) to 1(c). 13. Heard the learned counsel for the appellant and perused the material on record including the judgment and decree of the Courts below. 14. Sri Guru I.Gachchinamath, learned counsel for the appellants would contend that: (i) the judgment and decree of the Courts below in dismissing the suit is unsustainable since the Courts below have lost sight of the specific case of the appellant that defendant No.3 has given customary divorce to the deceased Laxman and that defendant Nos.4 and 5 are not related to the deceased Laxman and the Courts below have erred in rejecting the suit of the plaintiffs; (ii) the original plaintiff being the mother of the deceased Laxman was the class-I heir of deceased Laxman and on her death, plaintiff Nos.1(a) to 1(c) are the legal heirs of deceased original plaintiff and they are entitled for share in the suit schedule properties as class-I heirs; (iii) when the Courts below, having come to the conclusion that plaintiff Nos.1(a) to 1(c) are the legal heirs of deceased Basalingawwa, are not justified in dismissing the suit of the plaintiffs claiming rights in the suit schedule properties. (iv) the plaintiff Nos.1(a) to 1(c) claimed their rights by inheritance and also by way of Will dtd. 30/2/2002 executed by the deceased original plaintiff. 15. The appellants have challenged the concurrent findings of the Courts below regarding the dismissal of the suit and the entitlement of the plaintiffs' right as absolute owner of the suit schedule properties. The original plaintiff filed the suit for declaration and consequential relief of injunction. The original plaintiff is the mother of the deceased Laxman. The plaint avers that there was a partition effected between the legal heirs of original propositus and the suit schedule properties fell to the share of the deceased Laxman in the said partition. The relationship between the plaintiffs and the deceased Laxman is not in dispute. The original plaintiff is the mother of the deceased Laxman. The plaint avers that there was a partition effected between the legal heirs of original propositus and the suit schedule properties fell to the share of the deceased Laxman in the said partition. The relationship between the plaintiffs and the deceased Laxman is not in dispute. It is the specific stand of the plaintiffs that Laxman has divorced defendant No.3- Sarojini as per the customs prevailing in Lingayat community. 16. To prove that there is a customary divorce of Laxman with defendant No.3, the plaintiff has relied on the evidence of PWs.1 to 4. Other than the said evidence, no material is placed by the plaintiffs to evidence that there is divorce by way of a Court decree. 17. The parties being Hindus are governed by the Hindu Law and the Hindu Marriage Act, 1955 ("the Act" for short) applies to persons who are Hindu by religion. Sec. 13 of the Act envisages as under: "13 Divorce.-(1) Any marriage solemnised, whether before or after the commencement of this Act, may, on a petition presented by either the husband or the wife, be dissolved by a decree of divorce on the ground that the other party- (i) has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse; or (ia) has, after the solemnisation of the marriage, treated the petitioner with cruelty; or (ib) has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition; or (ii) has ceased to be a Hindu by conversion to another religion; or (iii) has been incurably of unsound mind, or has been suffering continuously or intermittently from mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. (iv) has been suffering from a virulent and incurable form of leprosy; or (v) has been suffering from venereal disease in a communicable form; or (vi) has renounced the world by entering any religious order; or (vii) has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of it, had that party been alive; (1A) Either party to a marriage, whether solemnised before or after the commencement of this Act, may also present a petition for the dissolution of the marriage by a decree of divorce on the ground- (i) that there has been no resumption of cohabitation as between the parties to the marriage for a period of one year or upwards after the passing of a decree for judicial separation in a proceeding to which they were parties; or (ii) that there has been no restitution of conjugal rights as between the parties to the marriage for a period of one year or upwards after the passing of a decree for restitution of conjugal rights in a proceeding to which they were parties. (2) A wife may also present a petition for the dissolution of her marriage by a decree of divorce on the ground, - (i) in the case of any marriage solemnised before the commencement of this Act, that the husband had married again before such commencement or that any other wife of the husband married before such commencement was alive at the time of the solemnisation of the marriage of the petitioner: Provided that in either case the other wife is alive at the time of the presentation of the petition; or (ii) that the husband has, since the solemnisation of the marriage, been guilty of rape, sodomy or bestiality; or (iii) that in a suit under Sec. 18 of the Hindu Adoptions and Maintenance Act, 1956 (78 of 1956), or in a proceeding under Sec. 125 of the Code of Criminal Procedure, 1973 (2 of 1974) or under the corresponding Sec. 488 of the Code of Criminal Procedure, 1898 (5 of 1898), a decree or order, as the case may be, has been passed against the husband awarding maintenance to the wife notwithstanding that she was living apart and that since the passing of such decree or order, cohabitation between the parties has not been resumed for one year or upwards; or (iv) that her marriage (whether consummated or not) was solemnised before she attained the age of fifteen years and she has repudiated the marriage after attaining that age but before attaining the age of eighteen years. 13A. Alternate relief in divorce proceedings.-In any proceeding under this Act, on a petition for dissolution of marriage by a decree of divorce, except in so far as the petition is founded on the grounds mentioned in clauses (ii), (vi) and (vii) of sub-sec. (1) of Sec. 13, the court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation. 13B. (1) of Sec. 13, the court may, if it considers it just so to do having regard to the circumstances of the case, pass instead a decree for judicial separation. 13B. Divorce by mutual consent.-(1) Subject to the provisions of this Act a petition for dissolution of marriage by a decree of divorce may be presented to the district court by both the parties to a marriage together, whether such marriage was solemnized before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), on the ground that they have been living separately for a period of one year or more, that they have not been able to live together and that they have mutually agreed that the marriage should be dissolved. (2) On the motion of both the parties made not earlier than six months after the date of the presentation of the petition referred to in subsec. (1) and not later than eighteen months after the said date, if the petition is not withdrawn in the meantime, the court shall, on being satisfied, after hearing the parties and after making such inquiry as it thinks fit, that a marriage has been solemnized and that the averments in the petition are true, pass a decree of divorce declaring the marriage to be dissolved with effect from the date of the decree." In light of Sec. 13 of the Act, a petition can be presented either by a husband or by a wife to dissolve the marriage by a decree of divorce under the proviso as mentioned in the said Sec. and in the absence of any Court decree for divorce, any amount of evidence by the plaintiff to prove the customary divorce cannot be construed as dissolution of marriage and the plaintiffs 1(a) to 1(c) have miserably failed to prove that the marriage of deceased Laxman and defendant No.3 has been dissolved by a decree of divorce. 18. 18. Learned counsel for the appellants also contended that the original plaintiff is the class-I legal heir of deceased Laxman and as per Sec. 8 of the Hindu Succession Act, on the death of the male coparcener as per the schedule mother being the class I heir is entitled for a share and on the death of the original plaintiff class I heir, the plaintiff Nos.1(a) to 1(c) are the legal heirs of deceased Laxman and as such, they are the owners of the suit schedule properties. 19. The other line of the argument of the learned counsel for the appellant is that the original plaintiff during her lifetime has bequeathed the suit schedule properties in favour of plaintiff Nos.1(a) to 1(c) by executing a Will and the trial Court has not at all considered issue No.1 framed in proper perspective. 20. Perusal of the judgment of the trial Court would reveal that issue No.1 was reframed in light of the contentions of the plaintiffs that they are the natural heirs of deceased original plaintiff-Basalingawwa and they have become the absolute owners of the suit schedule property and thus, the contention of learned counsel for the appellant is not acceptable as issue No.1 was reframed and held that the plaintiff No.1(a) to 1(c) have failed to prove that they have become absolute owners of the suit schedule property on the death of the deceased Baslingawwa-original plaintiff. 21. The main contention of learned counsel for the appellant is that on the death of Laxman, the plaintiff being the mother and class I heir of the deceased Laxman has inherited the properties of deceased Laxman and that the plaintiffs alone can inherit the properties and defendant Nos.3 to 5 have no right whatsoever nature in respect of the suit schedule property and on the death of Baslingawwa-original plaintiff, her children who were defendant Nos.3 to 5 in the original plaint and on transposition as plaintiffs can claim their rights through Baslingawwa. Sec. 8 of the Hindu Succession Act, 1956, if a Hindu male dies intestate, the property shall devolve firstly upon the class-I heir being the son, daughter, widow and mother and in the present case, the original plaintiff was the mother of the deceased Laxman and that defendant No.3 is the widow of the deceased Laxman and on the death of the original plaintiff, the present plaintiff Nos.1(a) to 1(c) are brought on record as natural legal representatives of the original plaintiff and the present plaintiff Nos.1(a) to 1(c) are the brothers of deceased Laxman and on the death of the original plaintiff, they are the legal heirs of Laxman. The appellants who are plaintiff Nos.1(a) to 1(c) are the brothers of deceased Laxman and there being already partition as contended by the plaintiffs themselves, the plaintiffs cannot contend that on the death of deceased Laxman, they are the owners of the suit properties as legal representatives of the deceased original plaintiff No.1 and they are the absolute owners of the suit schedule property. 22. It is also stated by the appellants that defendant No.3 having been divorced by a customary divorce is not entitled to be termed as widow and entitled for share in the property left by the deceased Laxman. This Court has already answered that by way of customs, there cannot be a divorce between Hindus, in the absence of any decree for divorce, defendant No.3-Sarojini is the wife of deceased Laxman and on the death of deceased Laxman, the original plaintiff and his wife-defendant No.3 are the only class-I heir of deceased Laxman. The Trial Court and the first appellate Court have considered the pleadings, oral and documentary evidence on record and the proposition of law to come to the conclusion that the plaintiff Nos.1(a) to 1(c) cannot be considered as the owners of the suit schedule properties as legal heirs of the deceased original plaintiff. The fact that the deceased Laxman had acquired the suit schedule property in a partition and on his death, in light of Sec. 8 of the Hindu Succession Act, 1956, defendant No.3 is the only remaining class-I heir and not plaintiff Nos.1(a) to 1(c) as contended by the appellant-plaintiffs. 23. The fact that the deceased Laxman had acquired the suit schedule property in a partition and on his death, in light of Sec. 8 of the Hindu Succession Act, 1956, defendant No.3 is the only remaining class-I heir and not plaintiff Nos.1(a) to 1(c) as contended by the appellant-plaintiffs. 23. The manner in which, the Courts below have considered the entire material on record, this Court is of the considered view that the Courts below were justified in dismissing the suit of the plaintiffs and there arises no substantial question of law and accordingly, the judgments and decrees of the Courts below do not warrant any interference in the hands of this Court. Accordingly, this Court pass the following: ORDER (I) The second appeal filed by the plaintiff Nos.1(a) to 1(c) is hereby dismissed. (II) The judgment and decree of the Courts below are hereby confirmed. No order as to costs.