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2023 DIGILAW 980 (KAR)

Sarojini v. Shashidhar Madiwalappa Uppin

2023-08-16

ANANT RAMANATH HEGDE

body2023
JUDGMENT 1. The plaintiffs are the appellants who have invoked Sec. 96 of the Code of Civil Procedure, 1908. 2. To appreciate the facts, it is necessary to refer to the genealogy of the parties, which is as under: Veerappa Maharudrappa Uppin (Dead)=Basamma (Dead) Sidmallappa Madiwalappa Died 3/3/1989 Died 4/6/1982 =Shakuntala =Manutai (Died 1/9/97) (Died 4/12/1996) Bharat Shashidhar Shivakumar Swarnalata Died 5/2/69 (Deft 1) Died 4/7/2000 (Deft-8) =Sarojini =Sudha =Rajeshwari (Plff-1) (Deft-2) (Deft 5) Nivedita Nikhil Shailesh Ajay Alpana (Plff-2) (Deft-3) (Deft-4) (Deft-6) (Deft-7) 3. Certain admitted facts are as under: a) The 1st respondent of this appeal - Shashidhar, who is the son of Madiwalappa Uppin, filed a suit for partition in O.S.No.67/1970, on the file of the Principal Civil Judge (Sr.Dn.), Belagavi. The present plaintiffs/appellants were parties to the said suit. On 14/9/1971, the said suit ended in a compromise. In terms of the settlement arrived at, among the parties to the said suit, Madiwalappa Uppin was allotted the properties bearing CTS No.3536 of Belagavi and lands bearing Rs. No.4/2, 4+5, 4/7+3 of Deshnur, Tal: Bailhongal and land bearing Rs. No.138 measuring 4 acres 15 guntas in Bailhongal; wife of Madiwalappa namely, Manutai was allotted the properties bearing CTS Nos.4021/B and 4021/A, which are later renumbered as CTS no. 4021/A1, 4021/A2 of Belagavi. Manutai was also allotted CTS Nos.3602 and 3603 of Bailhongal; the present appellants/plaintiffs were allotted the properties bearing CTS Nos.3600 and 3601 of Bailhongal and CTS No.594 of Belagavi. b) On 4/6/1982, Madiwalappa died leaving behind his wife Manutai and the sons namely, Shashidhar respondent No.1 and Shivakumar - predecessor of respondents No.5 to 8, and the plaintiffs, as his heirs. The Plaintiffs are the wife and the daughter of Bharat, the pre deceased son of Madivalappa. c) The present appellants/plaintiffs filed a suit in 268/1984 before Civil Judge Belgaum, against M/s. M. M. Uppin, a partnership firm and the partners of the said firm. The suit ended in a compromise on 24/11/1984. In the said suit, the present appellants, who were the plaintiffs, were given certain amount as their share in the partnership firm. The compromise decree also reveals that the amount is paid to the plaintiffs to make good their claim relating alleged inadequate share given while entering settlement in O.S.No.67/1970. The suit ended in a compromise on 24/11/1984. In the said suit, the present appellants, who were the plaintiffs, were given certain amount as their share in the partnership firm. The compromise decree also reveals that the amount is paid to the plaintiffs to make good their claim relating alleged inadequate share given while entering settlement in O.S.No.67/1970. In the said compromise, recorded in O.S. No.268/1984, Sidmallappa Veerappa Uppin was allotted a share in the properties bearing CTS Nos.682B/1 and 682B/2 of Raviwar Peth, Belagavi and CTS No.415/B of Tilakwadi, Belagavi. He died on 3/3/1989 leaving behind his wife Shakuntala. d) On 4/12/1996, Manutai, the wife of Madiwalappa Uppin died. Shakuntala, wife of Sidmallappa Uppin died on 1/9/1997 leaving behind the appellants and respondents No.1 to 8 and Shivakumar as her class II heirs. On 4/7/2000, Shivakumar Madiwalappa Uppin died leaving behind respondents No.5 to 7 as his legal heirs. e) The suit in O.S.No.93/2002 is filed by the present respondent No.3 against his parents and his brother respondent No.4. The said suit was settled on 18/4/2002. Admittedly, present appellants/plaintiffs are not parties to the said suit. f) Plaintiffs on 11/1/2007, filed a suit in O.S.No.17/2007 before the Senior Civil Judge, Belagavi, seeking declaration that the compromise decree passed in O.S.No.93/2002 is not binding on the plaintiffs, and claimed 1/4th share in the suit schedule properties on the premise that they inherited properties of Siddamallappa as well as the properties of Manutai, the wife of Madiwalappa Uppin. g) Defendants No.1 to 3 contested the suit. They took a stand that Sidamallappa's and Manutai's properties did not devolve upon the plaintiffs, as the plaintiffs have relinquished their right over the said properties by taking their value of the share as per clause No.6 in the compromise decree passed in O.S.No.268/1984. In addition, it is contended that Siddamallappa executed a Will bequeathing all his properties in favour of defendants No.1 to 3. 4. The trial Court held that, in view of clause No.6 of the compromise decree, the plaintiffs do not inherit the properties of Siddamallappa and Manutai and dismissed the suit. Aggrieved by the judgment and decree, the plaintiffs are in appeal. 5. Heard Sri. Sangram Kulkarni, the learned counsel for the appellants and Sri. Shreevatsa S. Hegde, the learned counsel for respondents No.1 to 3. 6. Aggrieved by the judgment and decree, the plaintiffs are in appeal. 5. Heard Sri. Sangram Kulkarni, the learned counsel for the appellants and Sri. Shreevatsa S. Hegde, the learned counsel for respondents No.1 to 3. 6. The learned counsel for the appellants would submit that, the finding that the plaintiffs have taken their share in the suit properties or surrendered their right in respect of the properties mentioned in compromise decree is not tenable as such a finding is contrary to Sec. 6(a) of the Transfer of Property Act, 1882. 7. It is further urged that, as the succession opened after the death of Siddamallappa, and Manutai, under the Hindu Succession Act, 1956, the plaintiffs along with others jointly inherited the suit properties of Sidamallappa as Class-II heirs and the properties of Manutai as Class I heirs. 8. The learned counsel appearing for respondents No.1 to 3 with all vehemence would submit that, the terms of the compromise decree passed on 24/11/1984 will not enable the plaintiffs' in claiming share in the suit properties held by Sidamallappa and Manutai. Referring to the history behind the settlement and the compromise decree he would contend that, though the plaintiffs had taken their share in the family properties in terms of the compromise recorded in O.S.No.67/1970, and without admitting the plaintiff's claim that settlement recorded in O.S No.67/1970 is inequitable, the defendants paid a substantial sum to the plaintiffs in a settlement recorded in the decree passed in O.S.No.268/1984. The plaintiffs, on receipt of substantial sum, have surrendered all their rights in respect of the properties held by the defendants and such surrender includes the right to succeed to the properties of Sidamallappa and Manutai. He would further urge the terms of the compromise recorded in O.S.No.268/1984 is to be construed taking into consideration all the attending circumstances. 9. Elaborating the submissions, Sri.Shreevatsa relying on the judgment of the Hon'ble Supreme Court in the case of KARPAGATHACHI AND OTHERs. VS. NAGARATHINATHACHI, AIR 1965 SC 1752 , urged that it is permissible for the parties to surrender their right of succession and such an arrangement or surrender is not contrary to Sec. 6(a) of the Transfer of Property Act, 1882. 10. Learned counsel Sri. Shreevatsa appearing for the respondents placed heavy reliance on the judgment of the Hon'ble Apex Court in the case of ELUMALAI @ VENKATESAN & ANOTHER VS. 10. Learned counsel Sri. Shreevatsa appearing for the respondents placed heavy reliance on the judgment of the Hon'ble Apex Court in the case of ELUMALAI @ VENKATESAN & ANOTHER VS. M. KAMALA AND OTHERS, 2023 (1) SCR 261 . 11. It is also urged by him that defendants 1 to 3 in the written statement have taken a stand that Sidamallappa executed a Will in favour of defendants 1 to 3. It is urged that Will was produced before the trial Court, as it was misplaced and now it is traced and an application is filed under Order XLI Rule 27 of the Code of Civil Procedure, seeking permission to produce the same. Hence, he would submit that the contesting respondents should be given a fair opportunity to prove the Will. 12. In his reply Sri. Sangram Kulkarni, for the appellants, submits that, the alleged Will is concocted, and it is produced for the first time before this Court and before the trial Court no reference is made to the date of the Will and no particulars are provided in the written statement relating to the alleged Will. It is also his contention that, after the death of Sidamallappa, who died in the year 1989, one more suit was filed in O.S.No.93/2002 and in the said suit, no reference is made to the alleged Will executed by Sidamallappa. Thus, it is urged that no justifiable reasons are made out to allow the production of the Will. 13. Learned Counsel for the appellants urged that in Karpagathachi's case supra, the right to succession is surrendered by two widows who mutually agreed to surrender their right to succeed each other's properties in case they survive the other, and it amounts to surrender for consideration as both of them had right in their respective properties. In this case, as on the date of the decree dtd. 24/11/1984, the plaintiffs did not have any right over the properties allotted to the defendants 1 to 3. 14. The following points arise for consideration: a. Whether the settlement arrived at between the parties in O.S.No.268/1994 on the file of Senior Civil Judge, Belagavi can be construed as a bar for the plaintiffs to claim right under succession, after the demise of any of the defendants in the suit in O.S.No.268/1994? 14. The following points arise for consideration: a. Whether the settlement arrived at between the parties in O.S.No.268/1994 on the file of Senior Civil Judge, Belagavi can be construed as a bar for the plaintiffs to claim right under succession, after the demise of any of the defendants in the suit in O.S.No.268/1994? b. Whether the respondents have made out a case for production of additional documents namely, the Will dtd. 21/1/1985 alleged to have been executed by late Sidamallappa Veerappa Uppin? 15. In this case, both the parties are relying on the compromise decree passed in O.S.No.268/1994 in support of their respective claim. Hence it is necessary to refer to the relevant terms of the compromise decree. 16. The paragraphs No.3 and 6 of the said compromise decree read as under: "3. Since the plaintiffs are not concerned or interested in any of the movable or immovable properties with the defendants, they hereby expressly agree that nothing remains due to them either towards their share in any of the family properties - movable or immovable, or towards the amounts due to them in any of the firms to which the defendants are parties as per details given in the plaint. 6. The plaintiffs shall have no claim whatsoever against defendants 2 to 6 or any of the business concerns run by them on any count or in any of the family properties allotted to their share." 17. The question before this Court is whether the clauses in the decree can be construed as surrender of right in all the properties. The respondents contend that the rights are surrendered and such a course is permissible in view of the law laid down in the case of ELUMALAI @ VENKATESAN supra. Admittedly, in the said judgment, one Mr.Chandran, the son of Sengalani Chettiar, executed a release deed in favour of Sengalani Chettiar, assuring that he will not claim any right in the property of Sengalani Chettiar. Admittedly, the property exclusively belonged to Sengalani Chettiar when the release deed was executed. In other words, his son Chandran had no right over the property when he executed the release deed assuring that he will not make any further claim in the property. It is relevant to note that the release deed was executed for a consideration. Admittedly, the property exclusively belonged to Sengalani Chettiar when the release deed was executed. In other words, his son Chandran had no right over the property when he executed the release deed assuring that he will not make any further claim in the property. It is relevant to note that the release deed was executed for a consideration. The Hon'ble Apex Court in the aforementioned case also placed reliance on the judgment of the Apex Court in the case of GULLAM ABBAS VS. KHAZI KAYAM ALI AND OTHERS, AIR 1973 SC 554 . 18. Even in the case of Gullam Abbas supra, the Court has taken into consideration the release deed executed by the two sons of the owner of the property, who after receiving consideration amount, assured that they will not make any further claim in the property. Since consideration was transferred, the court took a view that the person who made a representation that he will not make any further claim for share in the property is estopped from claiming any right based on succession after such representation. 19. On perusal of the compromise decree referred to above, it is apparent that the plaintiffs claim in respect of the partnership firm is settled in the said case. In addition, the plaintiffs' claim in respect of the inadequate share given in the earlier compromise is also settled. The terms of the compromise would not indicate that the plaintiffs have given up their right to claim succession, for consideration, on the demise of any of the parties to the suit. The terms of the settlement extracted above do not indicate that the plaintiffs have surrendered the right of succession. The terms of the compromise decree do not reveal that the consideration is passed by the defendants, in favour of the plaintiffs, for having surrendered right to claim succession. Thus, the defendants' claim that the plaintiffs cannot seek share in the properties of Shakuntala the wife of Siddamallappa and Manutai is in the teeth of Sec. 6(a) of the Transfer of property Act, 1872. 20. As far as the contention of the counsel for respondents No.1 to 3 based on the judgment of Karpagathachi supra, it is to be noticed that, in the said case, husband died in 1924 leaving behind two widows, who jointly inherited the properties of the husband. 20. As far as the contention of the counsel for respondents No.1 to 3 based on the judgment of Karpagathachi supra, it is to be noticed that, in the said case, husband died in 1924 leaving behind two widows, who jointly inherited the properties of the husband. These co-widows entered an arrangement where they agreed to divide the properties which they jointly inherited. The Apex Court held that such division is permissible. It further held that in such a division, they can agree not to claim right of survivorship which they possessed before the division, and such an arrangement is not contrary to Sec. 6 (a) of the Transfer of property Act, 1872. The relevant portion of the said judgment reads as under: "The interest of each widow in the properties inherited by her was property, and this property together with the incidental right of survivorship could be lawfully transferred. Sec. 6(a) of the Transfer of Property Act prohibits the transfer of the bare chance of the surviving widow taking the entire estate as the next heir of her husband on the death of the co-widow, but it does not prohibit the transfer by the widow of her present interest in the properties inherited by her together with the incidental right of survivorship. The widows were competent to partition the properties and allot separate portions to each, and incidental to such an allotment, each could agree to relinquish her right of survivorship in the portion allotted to the other." (Emphasis added) It can be noticed that when the arrangement that took place between the two widows both widows had existing rights in the properties including right to succeed on the death of the other. Both agreed to divide the properties and agreed to relinquish the right to succeed each other. What is to be noticed in the said case is there is a transfer of consideration as both widows had joint rights in the property including right to survive each other. Whereas, in the settlement recorded in O.S.No.268/1984, no consideration is passed in favour of the plaintiffs for the alleged surrender of the right to succeed to the property of the defendants. Hence, the ratio in the case of Karpagathachi supra does not apply. 21. Whereas, in the settlement recorded in O.S.No.268/1984, no consideration is passed in favour of the plaintiffs for the alleged surrender of the right to succeed to the property of the defendants. Hence, the ratio in the case of Karpagathachi supra does not apply. 21. As far as the plea of estoppel raised by Sri.Shreevatsa, it is also relevant to note that the defendants have not raised a plea of estoppel in their written statement. Though it is urged that the plea of estoppel can be inferred from the written statement, on careful consideration of the written statement, this Court is of the view that no such plea is raised. 22. The succession opened after the demise of Shakuntala in 1997 and after the demise of Manutai in 1996. In the absence of any document evidencing surrender of the right to claim succession, for consideration, in respect of the properties of Shakuntala and Manutai, this Court cannot hold that clauses No. 3 No.6 in the decree in O.S.No.268/1984 operate as a bar to the plaintiffs to claim share in the properties left behind by Shakuntala and Manutai. 23. The respondents No.1 to 3 before this Court have filed an application on 19/6/2023 invoking Order XLI Rule 27 of the Code of Civil Procedure, seeking permission to produce the alleged Will dtd. 21/1/1985, executed by Siddamallappa. This application is opposed by the appellants. This Court is of the view that the claim based on the alleged Will cannot be entertained in this appeal. However same may be adjudicated in a separate proceeding if initiated by defendants No.1 to 3. Hence, no opinion is expressed on the said Will. The application seeking production is rejected with a liberty to defendants 1 to 3 to establish their claim based on alleged Will, in accordance with law. 24. The trial Court has not considered the case in the light of Sec. 6(a) of the Transfer of Property Act, 1881 and erroneously concluded that the plaintiffs are not entitled to claim share in the properties held by Sidammallappa and Manutai. For the aforementioned reasons, the impugned judgment and decree are liable to be set aside and accordingly set aside. 25. Hence the following: ORDER i. Appeal is allowed. ii. Judgment and Decree dtd. 28/3/2011 passed in O.S.No.17/2007 are set aside. iii. For the aforementioned reasons, the impugned judgment and decree are liable to be set aside and accordingly set aside. 25. Hence the following: ORDER i. Appeal is allowed. ii. Judgment and Decree dtd. 28/3/2011 passed in O.S.No.17/2007 are set aside. iii. Consequently, the suit of the plaintiffs is decreed holding that the plaintiffs have 1/4th share in the properties left behind by Manutai, namely, CTS No.4021/A (now renumbered as 4021/A1 and 4021/A2) and 4021/B of Belagavi, and CTS No.3602 and 3603 of Bailhongal; and 1/4th share in the properties left behind by Shakuntala, (inherited after the demise of Sidammallappa) namely, CTS No.682B/1 and 682B/2 of Raviwar Peth, Belagavi and CTS No.415/B of Tilakwadi, Belagavi. iv. The plaintiffs are entitled to initiate final decree proceedings for division of the properties by metes and bounds. v. The plaintiffs are also entitled to past profits from 1/1/2004 till the delivery of actual possession of the properties, to be worked out in final decree proceedings. vi. This decree in respect of the properties of Sidammallappa shall be subject to the claim of the defendants No.1 to 3 based on alleged Will of Sidammallappa dtd. 21/1/1985, if established in any proceeding initiated in this behalf. However it is made clear that the final decree proceeding if initiated, shall not be stayed, if defendants No.1 to 3 initiate any proceeding based on the alleged Will. The final decree and any subsequent proceeding shall be subject to the decision in a proceeding if any initiated based on the alleged Will of Siddamallappa. vii. Application at I.A.No.1/2023 for production of alleged Will dtd. 21/1/1985 referred to above is dismissed with a liberty to file an appropriate proceeding based on the said Will. Since this Court has not expressed anything on the merits of the alleged Will dtd. 21/1/1995, all contentions of both the parties on the alleged Will are kept open. viii. No order as to cost.