Dismissed

Smt Kalamma v. Smt K B Dhanalakshmi

Karnataka HC25 Jun 2013MISC.CVL/237/2010

Case brief

AI extract

What is this about?

In a partition suit regarding ancestral property, the High Court of Karnataka held that a widow who remarried after the death of her husband remains entitled to inherit his share in joint family property. The Court ruled that succession opens automatically at the time of death and remarriage does not divest the right, especially as the disqualifying Section 24 of the Hindu Succession Act was omitt

What did the court decide?

The appeal was dismissed; the trial court decree confirming the plaintiff's share in the decedent's property was upheld.

Smt Kalamma Vs Smt K B Dhanalakshmi — Succession and Inheritance | Karnataka HC (2013)

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 25^TH DAY OF JUNE 2013

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BEFORE

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THE HON’BLE MR.JUSTICE S. ABDUL NAZEER REGULAR SECOND APPEAL NO.37/2010 A/W MISC.CVL.NOS.237/2010 & 642/2010 (PAR)

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Between:

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Smt. Kalamma, W/o late Range Gowda, Aged about 60 years.

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2 Smt. Bhagya, D/o late Range Gowda, Aged about 30 years.

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3 Shri Naveen, S/o late Range Gowda, Aged about 26 years.

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4 Shri Paramesh, S/o late Rangegowda, Aged about 24 years.

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5 Sri Prakash, S/o late Range Gowda, Aged about 22 years.

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All are r/a Halli Mysore Hobli, Doddagopanahalli Village, Holenarasipura Taluk, Hassan District – 570 006. …. Appellants. (common)

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(By Sri R.P.Somashekariah, Adv.) And :

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Smt. K.B.Dhanalakshmi, W/o Manjegowda, Aged about 23 years, R/a Kongalabidu Form, Kasabahobli, Halli Mysore Road, Holenarasipura Taluk, Hassan Dist. 570 006. …. Respondent. (common)

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(By Sri R. Nataraj, Adv. - ABSENT Sri G.S.Balagangadhar, Adv. appeared as Amicus Curiae for Respondent.)

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This Regular Second Appeal is filed under Sec.100 of CPC against the judgment and decree dated 12.11.2009 in R.A.No.5/2008 on the file of the Civil Judge (Sr.Dn.), & Addl. CJM, Holenarasipura, etc.

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Misc.Cvl.No.237/2010 is filed under Order 41 Rule 5 of CPC for stay, etc.

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Misc.Cvl.No.642/2010 is filed under Order 41 Rule 27 of CPC for production of additional documents, etc.

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This Regular Second Appeal and Misc.Cvls. coming on for Final Hearing this day, the Court delivered the following:

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JUDGMENT

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This appeal by the defendants is directed against the

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judgment and decree in R.A.No.5/2008 dated 12.11.2009 on the

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file of the Civil Judge (Sr.Dn.) & Addl. CJM, Holenarasipura whereby the judgment and decree in O.S.No.145/2006 on the file of the Civil Judge (Jr.Dn) & JMFC, Holenarasipura has been confirmed.

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The plaintiff filed the suit for partition and separate

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possession of 1/4^th share in the suit schedule properties. It is her case that she was married to Venkatesha on 14.4.2005. Venkatesha

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died on 1.9.2005. After his demise, the defendants neglected to maintain her. They refused to give her a share in the family properties.

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The first defendant filed her written statement, which is

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adopted by defendant Nos.2 to 5. In the written statement, defendants have admitted that the suit schedule properties are their ancestral and joint family properties. They have also admitted their relationship with the plaintiff. It is contended that the plaintiff is not entitled for 1/4^th share in the suit schedule property. The share of late Venkatesha is 1/6^th and 1/6^th share of Rangegowda has to be divided amongst six members. As such, Venkatesha has got 1/6 + 1/36 = 7/36. In view of notional partition between mother Smt.Kalamma and Venkatesha, the share of Kalamma comes to 7/72 (7/36 x ½ = 7/72) and that of Venkatesha is 7/72. In this 7/72, the share of the plaintiff is ½. Hence, the plaintiff is entitled for 7/144^th share (7/72 x ½ = 7/144). They have prayed for dismissal of the suit.

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On the basis of the pleadings of the parties, the trial Court

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has framed the following issues:

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“1. Whether plaintiff proves that cash and ornaments were given to 2^nd defendant at the time of her marriage towards her share in the family properties as contended?

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What is the quantum of share in the properties for which plaintiff is entitled to?

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What decree or order?”

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The plaintiff got herself examined as P.W1. The first

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defendant was examined as D.W1. In her evidence, D.W1 has stated that the plaintiff was remarried to Manju @ Manjegowda during the pendency of the suit. The trial Court has decreed the suit holding that plaintiff is entitled to 50% of 7/36^th share in the suit schedule properties.

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The appeal filed by the defendants challenging the said

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decree was dismissed by the first appellate Court on 12.11.2009 by holding that the defendants have failed to establish the remarriage of the plaintiff. The defendants have filed this appeal challenging the decree of the first appellate Court.

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The appellants have filed an application-

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Misc.Cvl.No.642/2010 under Order 41 Rule 27 of the CPC seeking permission to produce additional evidence. In the affidavit filed in support of the application, 5^th appellant has stated that the appellant was married to Manju @ Manjegowda on 22.12.2006. She has given birth to a male child on 28.12.2008. The appellants were not able to secure the records when the case was pending before the

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trial Court or the first appellate Court.

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The appeal was admitted to consider the following substantial question of law:

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“Whether a Hindu widow is entitled to inherit her deceased husband’s share in the joint family properties after her remarriage?”

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Learned Counsel for the appellants would contend that

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since the plaintiff was remarried after the death of her husband Venkatesha, she is not entitled for any share in the family properties. It is submitted that defendant No.1 in her evidence has brought to the notice of the trial Court the remarriage of the plaintiff. The defendants were not able to produce the documents evidencing her remarriage. They were able to get the birth certificate of plaintiff’s child and other documents after the disposal of the appeal by the first appellate Court. Therefore, the application for production of additional documents may be allowed.

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Learned Counsel for the respondent is not present before

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the Court. Sri G.S.Balagangadhar, learned Counsel has assisted the Court as an amicus curiae. He submits that there is no bar for a Hindu widow to remarry after the death of her husband. It is further submitted that on the death of her husband on 1.9.2005, the succession to the property in favour of his widow has taken effect automatically. Right to succeed to the property is not affected by her remarriage.

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As submitted by the learned Counsel for the appellants,

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D.W1 in her evidence has stated that plaintiff was remarried to Manju @ Manjegowda. The defendants have not produced any documents in support of the said contention. That is why the courts below have disbelieved the statement of the defendants. In my opinion, the documents produced along with the application are necessary for deciding the question in controversy. Therefore, the application-Misc.Cvl.642/2010 is allowed.

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The genealogy of the family is as under:

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GENEOLOGY

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Rangegowda (Propositus) (Dead)

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Kalamma (Wife) (Def. No.1)

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1 2 3 4 5 Venkatesha Bhagya Naveena Paramesha Prakasha (Dead) (Def.No.2) (Def.No.3.) (Def.No.4.) (Def.No.5.)

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Dhanalakshmi

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(Ptf.)

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There is no denial of the relationship between the parties. It is also not disputed that the suit schedule properties are their ancestral and joint family properties. Explanation to Section 6 of the Hindu Succession Act, 1956 (for short ‘Succession Act’) provides for notional partition as if the partition has taken place before the death of the propositus.

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Keeping in mind Section 6 of the Succession Act, the

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trial Court has notionally partitioned the properties of the propositus Rangegowda between his sons, daughters and the widow. Venkatesha was allotted 7/36^th share in the property. Since Venkatesha died leaving behind him his wife (plaintiff), and his mother (defendant No.1), his 7/36^th share has been equally divided between them as they are Class I heirs.

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It is clear from the materials on record that plaintiff has remarried Manjegowda after the death of her husband Venkatesha. Therefore, the question for consideration is whether the remarriage of the plaintiff disentitles her from succeeding her share in the suit schedule properties?

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The Hindu Widow’s Re-marriage Act, 1856 (for short ‘Remarriage Act’) was enacted to remove all legal obstacles to the marriage of Hindu Widows. Section 5 of the Remarriage Act has saved the rights of widow marrying except as provided in Sections

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2 to 4 of the Remarriage Act. Section 2 of the Remarriage Act states that widow’s right in her deceased husband’s property ceases on her remarriage. Hindu Widow’s Remarriage Act was repealed

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on 31.8.1983 by Act No.24/1983.

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Section 24 of the Succession Act lays down a disqualification for succession against the widow of a predeceased son, the widow of a predeceased son of a predeceased son, or the widow of a brother of a Hindu intestate, if such widow has remarried on the date when succession opens. In a case where on the date when succession opens, the said widow did not remarry, she succeeds to the property and her remarriage will not divest her of the property. The plaintiff had not married on the day when the succession had opened. Therefore, she is not disqualified to succeed to her share in her deceased husband’s property. Even otherwise, this Section has been omitted by Hindu Succession (Amendment) Act, 2005 with effect from 9.9.2005.

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The Hindu Marriage Act, 1955 was enacted by Act No.25/1955 to amend and codify the law relating to marriage among Hindus. Section 5 of the said Act lays down the conditions for a Hindu marriage. It states that a marriage may be solemnised between any two Hindus if the condition prescribed therein are fulfilled. One of the conditions for the marriage is neither party should have a spouse living at the time of the marriage. Therefore, a widow has no impediment to remarry under this Section, if she does not contravene any other conditions specified in various other sub-sections.

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Section 4 of the Succession Act gives overriding application to the provisions of the Act and in effect lays down that in respect of any of the matters dealt with in the Act, it seeks to repeal all existing laws, whether in the shape of enactments or otherwise, which are inconsistent with the said Act. This Act has brought about some fundamental and radical changes in the law of succession and the result is that immediately on the coming into

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operation of the Act, the law of succession hitherto applicable to Hindus whether by virtue of any text, rule or interpretation of Hindu law or any custom or usage having the force of law ceases to have effect with respect to all matters expressly dealt with by the Act.

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Section 8 of the Succession Act provides for the general

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rules of succession in the case of males. This Section propounds a new and definite scheme of succession to the property of a male

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Hindu, who dies intestate after the commencement of the Act. From this Section, it is clear that the property of a male Hindu dying intestate devolves firstly upon the heirs, being the relatives specified in Class I of the Schedule; secondly, if there is no heir of Class I, then upon the heirs, being the relatives specified in Class II of the Schedule and lastly, if there is no agnate, then upon the cognates of the deceased.

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Section 10 deals with distribution of property among

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heirs enumerated in Class I. Rule 1 lays down that a widow of the intestate is entitled to take one share, that is, the same share that a son, daughter or mother takes under Rule 2.

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In the present case, the deceased has left behind his widow-the plaintiff and his mother-defendant No.1, who are Class I heirs and they have to equally succeed to 7/36^th share in the property of the deceased. It is well settled that succession never remains in abeyance and takes effect immediately at the exact moment of the death of a person by operation of law. On the death of Venkatesha on 1.9.2005, the succession to the property in favour of his widow and mother took effect automatically. As stated earlier, there is no bar for the plaintiff to remarry after the death of her husband Venkatesha. Therefore, she does not loose her right to succeed to her share in the property of her deceased husband after her remarriage. The trial Court has rightly decreed the suit by holding that the plaintiff and the 1^st defendant equally succeed to

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7/36^th share in the properties of late Venkatesha. This decree has

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been confirmed by the first appellate Court. The substantial question of law is answered accordingly and the appeal is dismissed.

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In view of the dismissal of the appeal as above, Misc.Cvl.No.237/2010 for stay and I.A.No.3/2010 for impleading

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do not survive for consideration. They are accordingly dismissed.

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No costs .

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Sd/JUDGE.

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BMM/-

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*corrected vide Court order dated 26.11.2013.

Smt Kalamma v. Smt K B Dhanalakshmi

Case brief

What is this about?

What did the court decide?

Smt Kalamma v. Smt K B Dhanalakshmi

Case brief

What is this about?

What did the court decide?

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