Allowed

Mahadevi W/O Shivalingappa Khelge v. Smt. Bassamma W/O Shivasharanappa Ramni

Karnataka HC21 Sept 2016RSA/7200/2011

Case brief

AI extract

What is this about?

Second appeal by defendant regarding partition suit. Court held Section 6 of Hindu Succession Act inapplicable as mother was not absolute owner at her death and did not seek cancellation of subsequent sale deed. Appeal allowed and matter remanded to First Appellate Court for amendment and impleadment.

What did the court decide?

Appeal allowed; judgment and decree of First Appellate Court set aside; matter remanded to allow plaintiff to amend plaint and implead parties.

Mahadevi W/O Shivalingappa Khelge Vs Smt. Bassamma W/O… — Partition | Karnataka HC (2016)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA

¶3

KALABURAGI BENCH

¶4

DATED THIS THE 21^ST DAY OF SEPTEMBER 2016

¶5

BEFORE

¶6

THE HON’BLE MRS. JUSTICE B.V.NAGARATHNA

¶7

RSA No.7200/2011 (PAR-POSS)

¶8

BETWEEN :

¶9

MAHADEVI W/O SHIVALINGAPPA KHELGE AGE: 38 YEARS OCC: HOUSEHOLD R/O H.NO.EWS.86 SHANTI NAGAR GULBARGA

¶10

…APPELLANT

¶11

(BY SMT. MAYA T.R. ADVOCATE)

¶12

AND:

¶13

SMT. BASSAMMA W/O SHIVASHARNAPPA RAMNI AGE: 37 YEARS OCC: HOUSEHOLD R/O H.NO.20 ‘KAVERI COMPUTERS’ SHANTI NAGAR GULBARGA …RESPONDENT

¶14

(BY SRI. A. VIJAY KUMAR, ADVOCATE)

¶15

¶16

THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 09.03.2011 PASSED IN R.A. NO.71/2009 ON THE FILE OF THE PRL. CIVIL

¶17

¶18

JUDGE (SR.DN.) AT GULBARGA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 03.04.2009 PASSED IN O.S. NO.75/2007 ON THE FILE OF THE PRL. CIVIL JUDGE (JR.DN.) AT GULBARGA.

¶19

THIS APPEAL COMING ON FOR ADMISSION THIS DAY, COURT DELIVERED THE FOLLOWING:

¶20

JUDGMENT

¶21

Though the appeal is listed for admission, with the consent of the learned counsel on both sides, the appeal is heard finally.

¶22

The defendant in O.S.No.75/2007 has preferred this appeal, assailing judgment and decree of the Prl. Civil Judge (Jr.Dn) Gulbarga, passed in R.A.No.71/2009 by which, the judgment and decree dated 9.03.2011 passed by the Civil Judge (Sr.Dn) Gulbarga in O.S.No.75/2007 dated 03.04.2009 has been set aside and the suit of the respondent-plaintiff has been decreed and it has been held that the plaintiff is entitled to half share in the suit property while the defendant is entitled to other half share.

¶23

¶24

For the sake of convenience, the parties shall be referred to, in terms of the status before the trial Court.

¶25

The respondent-plaintiff filed the suit seeking the relief of partition and separate possession of the suit property, which is a house bearing No.EWS-86 situated at K.H.B Colony, MSK Mill Road, Gulbarga, measuring 11’ x 38’ consisting of four rooms on the ground floor and two rooms on the first floor having two independent and separate electricity connections. It is the case of the plaintiff that defendant is the wife of her brother i.e. her sister-in-law. The Karnataka Housing Board (herein after referred to as ‘housing board’, for the sake of brevity) through its secretary, has entered into a lease-cum-sale agreement on 31.06.1986 in respect of the suit property with plaintiff’s mother. She died on 04.02.2000. The said lease-cum-sale deed was executed by the housing board in favour of the plaintiff’s mother, as she was allotted the suit house pursuant to an application made by her mother. Pursuant to the said lease-cum-agreement plaintiff’s

¶26

¶27

mother was given possession of the suit property and plaintiff and her mother went on paying lease rent as per schedule given by the housing board. That plaintiff’s mother had paid all the arrears due to the housing board and by the time she made an application seeking execution of a sale deed in her favour, she fell ill and was bedridden and died on 04.02.2000. Since the date of allotment, the plaintiff along with her mother and brother came into possession of the suit property. After the death of plaintiff’s husband, plaintiff came over to Gulbarga from Bombay in August 1999 and she started residing in the suit house along with her mother and brother. That, the last installment of Rs.9,000/- towards the cost of house allotted by the housing board, which was due for many years, was paid by the plaintiff through her mother. The plaintiff got constructed two rooms on the ground floor and two rooms on the first floor out of the savings from her income while doing business with her late husband including insurance amount that she had received.

¶28

¶29

According to the plaintiff, after the demise of her mother, plaintiff approached the housing board at Gulbarga to execute the sale-deed in respect of the suit house as all the dues had been paid, but her efforts went in-vain. According to plaintiff, only she and her brother were entitled to get the house registered in their names as they were the only legal heirs of their mother. That, her mother died intestate leaving behind the suit property, which was allotted to her. That, plaintiff was entitled to the suit property along with defendant. The suit property was liable to be partitioned among the plaintiff and defendant and therefore, the defendant was entitle to a share of her late husband. The defendant knowing fully well that the plaintiff is also entitled to half share as a legal heir of her mother, Saraswatibai clandestinely and behind the back of the plaintiff usurped the suit property and also to defeat the rights of the plaintiff she got the suit property in her name in collusion with the officials of the housing board.

¶30

¶31

On coming to know the aforesaid facts, plaintiff approached the defendant on 01.03.2007 and requested for partition and separate possession of the suit house. According to plaintiff, after her marriage for a couple of years, she stayed in Mumbai along with her husband. Later, they settled down in a portion of the house property. The mother of the plaintiff stayed with her, she died in the same house and later plaintiff’s husband died on 15.03.2000. It is the case of the plaintiff that all along she served her mother till the last breath. That the plaintiff is in possession of her half share. That she has also contributed Rs.20,000/- towards the dues paid by her mother towards the allotment of the suit property. The said amount was received by her on account of the death of her husband under Life Insurance Policy. The plaintiff filed an application in July 2006 before the housing board seeking for conveyance of the suit house in her name also but to no avail. Hence, she filed the suit seeking relief of partition and separate possession.

¶32

¶33

In response to the suit summons, the defendant appeared and filed her written statement denying the averments made in the plaint. She averred that plaintiff is residing in a house belonging to Smt.Aliya Begum as a tenant since her return from Bombay to Gulbarga. That Saraswatibai was not absolute owner of the suit property. At the time of her death, admittedly, no sale-deed was executed by the housing board in favour of the Saraswatibai. No right or title was vested with her at the time of her death. The lease-cum-sale deed, which was in the name of Saraswatibai did not convey any right, title or interest in her favour. That, she had no ownership rights in respect of the suit property. Therefore, plaintiff cannot succeed to the suit property by seeking partition and separate possession. That the suit filed was not maintainable. That the housing board, had offered to sell the suit property for consideration of Rs.22,440/- which the defendant accepted to purchase the said amount which included the sital value and cost of construction and supervision of the building by receiving the said amount

¶34

¶35

from the defendant. The Assistant Executive Engineer of the housing board registered the sale-deed in favour of the defendant on 17.02.2007. That by virtue of the sale-deed, the defendant has become the absolute owner in possession of the suit property. Mutation is also effected in the corporation records in her name. That the plaintiff is not entitled to claim partition in the suit property.

¶36

That the plaintiff is not in possession of the suit property. That the plaintiff has suppressed vital facts in the plaint. Plaintiff has not disclosed the filing of the previous suit in respect of the same property in O.S.No.65/2007, which is pending on the file of the Prl. Civil Judge (Jr.Dn) Gulabrga, which was withdrawn by the plaintiff denying that the plaintiff has no right, title or interest in the suit property. Defendant sought for dismissal of the suit by also contending that the suit was also not maintainable by applying Order II Rule 2 of Code of Civil Procedure (CPC). The defendant also contended that Court fee paid was insufficient and that the suit was bad for non-joinder of

¶37

¶38

necessary parties. Hence, defendant sought for dismissal of the suit.

¶39

On the basis of the rival pleadings, the trial Court framed the following issues and additional issues for its consideration:

¶40

(1) Whether plaintiff proves that, she contributed funds alongwith her mother for allotment of suit property by KHB?

¶41

(2) Whether plaintiff further proves that, she is entitled for half share in the suit property along with defendant?

¶42

(3) Whether plaintiff proves that, she is in possession of half portion of the suit property alongwith the defendant?

¶43

(4) Whether defendant proves that, herself is the absolute owner in possession of the suit property?

¶44

(5) Whether plaintiff is entitled for the relief sought-for?

¶45

(6) What order or decree?

¶46

¶47

Additional issues dated 16.08.2008:

¶48

(1) Whether the plaintiff further proves that the suit property measures to the extent of 11’ x 38’ consisting of 4 rooms on the ground floor and 2 rooms on the first floor having 2 independent and separate electric connections?

¶49

(2) Whether the plaintiff further proves that she was being called as Basamma in her parental house and as Bhagyashree in her husband’s house?

¶50

(3) Whether the suit of the plaintiff is barred or not maintainable under Order II Rule 2 of CPC?

¶51

(4) Whether the Court fee paid is insufficient?

¶52

(5) Whether the suit of the plaintiff is bad for non-joinder of necessary party?

¶53

In support of her case, plaintiff examined herself as

¶54

PW.1 and two other witnesses as PWs.2 and 3, she produced 87 documents which were marked as Exs.P1 to 87. The defendant examined herself as DW.1 and another

¶55

¶56

witness was examined as DW.2, the defendant produced 7 documents which were marked as Exs.D1 to D7.

¶57

On the basis of the said evidence, the trial Court answered issue Nos.1 to 3 and issue No.5 and additional issue Nos.1, 3 and 5 in the negative; it answered issue No.4 and additional issue Nos.2 and 4 in the affirmative and dismissed the suit by directing the plaintiff to pay deficit Court fee in respect of the suit property under Section 35 (1) of the Karnataka Court fees and Suit Valuation Act, 1958, as observed while answering additional issue No.4 in the affirmative.

¶58

Being aggrieved by the dismissal of the suit, the plaintiff preferred R.A.No.71/2009 before the First Appellate Court, which, on hearing the learned counsel for the parties, raised the following points for its consideration;

¶59

(1) Whether the plaintiff proves that she is having rightful half share in the suit schedule property?

¶60

¶61

(2) Whether plaintiff further proves that the suit property is allotted to her mother?

¶62

(3) Whether the respondent/defendant proves that suit is not maintainable?

¶63

(4) Whether the appellant proves that the impugned judgment passed by the trial Court is erroneous and against the principle of law?

¶64

(5) Whether the appellant has made out grounds to interfere with the impugned judgment?

¶65

(6) What order?

¶66

The First Appellate Court answered point Nos.1, 2, 4 and 5 in the affirmative and point No.3 in the negative and decreed the suit filed by the plaintiff by setting aside the judgment and decree of the trial Court holding that the plaintiff is entitle to half share in the suit property while the defendant is entitled to the remaining half share. Being aggrieved by the judgment and decree of the First Appellate Court, the defendant has preferred this second appeal.

¶67

¶68

I have heard learned counsel for the appellant and learned counsel for the respondent and perused the material on record and also original records, which have been summoned by this Court.

¶69

Appellant’s counsel contended that the First Appellate Court was not right in decreeing the suit on the basis of Section 6 of the Hindu Succession Act, 1956 (herein after referred to as ‘Act’ for brevity) as amended by Act (39 of 2005). Elaborating the said contention, she submitted that in the first place the relief sought by the respondent-plaintiff was in respect of the suit property which was allotted to the mother of the plaintiff and mother-in-law of defendant and therefore Section 6 of the Act was not at all applicable. She further contended that, plaintiff’s mother, Saraswatibai was in possession of the suit property as an allottee from the housing board pursuant to a lease-cum-sale deed agreement dated 31.06.1986. Saraswatibai died on 04.02.2000. On the date of her death the suit property was not standing in the

¶70

¶71

name of Saraswatibai as she was not the absolute owner of the suit property. At best, she could have been considered to be a lessee of the housing board and she had a right to seek conveyance of the suit property in her name had she survived the completion of the lease period. Therefore , as on the date of death of Saraswatibai the suit property was not standing in her name, there was no question of the plaintiff succeeding to the suit property as the legal heir of her mother.

¶72

She further contended that the housing board conveyed the suit property to the defendant, who had paid the balance amount that had to be paid for getting the house allotted in her name. The sale deed was executed in the name of defendant by the housing board on 17.02.2007 and since then, the defendant has been the owner in possession of the suit property. If at all the plaintiff had any claim on the suit property as a legal heir of Saraswatibai then she had to first seek cancellation of the sale deed dated 17.02.2007. In the absence of

¶73

¶74

seeking such a relief, the suit for partition and separate possession was not maintainable. She contended that the First Appellate Court was not right in decreeing the suit and therefore substantial questions of law would arise in this appeal and therefore the appeal may be heard and allowed in favour of the appellant.

¶75

Per contra, learned counsel for the respondentplaintiff supporting the judgment of the First Appellate Court contended that there is no dispute that plaintiff’s mother, Saraswatibai was the lessee under the lease-cumsale agreement dated 31.06.1986 in respect of the suit property. That agreement was not executed only in the name of Saraswatibai, in the event of her death, her legal representatives including the plaintiff were entitled to continue as lessee and seek conveyance in their names. On the death of Saraswatibai, that ought to have been done by the housing board by executing the conveyance in the name of plaintiff also as she is one of the legal heirs of Saraswatibai, her mother. The same has not being done

¶76

¶77

and the housing board conveying the suit property in the name of defendant only on 17.02.2007, gave rise to cause of action and the plaintiff sought partition and separate possession of the suit property as an heir of Saraswatibai.

¶78

He further contended that the defendant ought to have informed the plaintiff about the conveyance to be made by the housing board, in which event, the name of the plaintiff also would have been included in the sale deed executed by housing board on 17.02.2007 as a legal heir of Saraswatibai, plaintiff’s mother, in which event the suit property could have been divided between the legal heirs of Saraswatibai subsequently. The same not having been done, plaintiff is entitled to seek partition and separate possession of the suit property. He submitted that no substantial question of law would arise in the appeal and therefore the appeal may be dismissed in-limine .

¶79

Having heard learned counsel for the parties and on perusal of the original record, I am of the view that the

¶80

¶81

following substantial questions of law would arise in this appeal;

¶82

(1) Whether the First Appellate Court was right in holding that the plaintiff was entitled to half share in the suit property in view of the amendment made to Section 6 of the Hindu Succession Act, 1956?

¶83

(2) Whether plaintiff could have sought for partition and separate possession of the suit property in the absence of seeking the relief of cancellation of sale-deed dated 17.02.2007?

¶84

The appeal is admitted to consider the aforesaid substantial questions of law.

¶85

21. From the detailed narration of facts and contentions,

¶86

it is noted that the relationship between the parties is not in dispute. The plaintiff is the daughter of Saraswatibai in whose name the lease-cum-sale agreement was executed by housing board on 31.06.1986 and the defendant is her sister-in-law the widow of her brother, Shivalingappa, son of Saraswatibai. It is also not in dispute that during the

¶87

¶88

pendency of the lease-cum-sale agreement executed by housing board in favour of Saraswatibai on 31.06.1986, the latter died on 04.02.2000. Further, as on that date, the suit property had not yet been conveyed by the housing board in favour of Saraswatibai. Saraswatibai had only a right of conveyance in her name, if she had survived till the lapse of time fixed under the lease-cum-agreement and on payment of all dues to the housing board. The fact remains that on 04.02.2000, there was no conveyance made by the housing board in favour of Saraswatibai. Therefore, when she died, she was not the owner of the suit schedule property.

¶89

As already noted, she had a right to seek conveyance of the suit property in her name but what is necessary to note is the fact that the lease-cum-sale deed agreement dated 31.06.1986 also incorporated that on the demise of the lessee, her legal heirs would be entitled to her rights that would emanate under the said document. Therefore, the legal heirs and Saraswatibai including the

¶90

¶91

plaintiff were entitled jointly to seek conveyance in their favour, if all dues that were to be paid to the housing board had been paid. Therefore, the First Appellate Court was not right in invoking Section 6 of the Hindu Succession Act, as amended in the year 2005 to come to the conclusion that plaintiff was entitle to half share in the suit property. The reasons for the same are not far to see. In the first place, Section 6 of the Act does not apply to succession in the case of a female Hindu, it applies in the case of male Hindu governed by Mitakshara law. Secondly, under Section 14 of the said Act deals with property of female Hindu to be her absolute property. The meaning of property described under Section 14, reads as under;

¶92

14. Property of a female Hindu to be her absolute property.—

¶93

(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

¶94

¶95

Explanation.—In this sub-section, “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.

¶96

(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.

¶97

If a female Hindu who is possessed of property dies intestate then her property, according to the rules set out in Section 15 of the Act, shall devolve firstly, upon the

¶98

¶99

sons and daughters (including the children of any predeceased son or daughter) and the husband. Therefore, if Section 14 of the Act is to apply then the suit schedule property must be construed to be the absolute property of the female Hindu dying intestate. In such an event the rule of Succession would apply. But on the date when Saraswatibai died on 04.02.2000, as already noted, the suit property did not stand in her name, she was not absolute owner of the property. At best, she could seek conveyance in her name on payment of all dues to the housing board. Therefore, the plaintiff could not have sought for division of the suit property on the premise that she was a legal heir to Saraswatiba,i her mother, when the suit property did not belong to her mother at all on the date of her death. In the circumstances, the suit filed for partition and separate possession on the premise that the suit schedule property belonged to Saraswatibai was not the relief that plaintiff could have sought. Also Section 6 of the Act was not at all applicable. Hence, the first

¶100

¶101

substantial question of law is answered in favour of the appellant herein.

¶102

As far as second substantial question of law is concerned, on a reading of the lease-cum-agreement dated 31.06.1986, it is noted that the said agreement is not merely in favour of lessee but also would include interalia, the heirs of lessee. The said agreement was entered into by the housing board with Saraswatibai who was the lessee on the date of her death i.e. on 04.02.2000 and her legal heirs continued to be the lessees. Therefore, her legal heirs had the right to seek conveyance in their names on the demise of Saraswatibai, which undoubtedly included the plaintiff. But the events that transpired subsequent to the demise of Saraswatibai are that the housing board without ascertaining as to whether there were other legal heirs of Saraswatibai conveyed the suit property only in the name of the defendant. The housing board has not informed the plaintiff about the proposed conveyance to the plaintiff. Secondly, the defendant did

¶103

¶104

not have a right to seek conveyance of the suit property only in her name from the housing board. The plaintiff was kept in the dark about the conveyance made by the housing board in favour of the defendant on 17.02.2007. In the circumstances, the plaintiff ought to have also sought the relief of cancellation of the sale deed dated 17.02.2007 executed by housing board in favour of the defendant and then sought for partition and separate possession of the suit property by seeking addition of her name also in the sale deed to be executed afresh by the housing board. In the circumstances, the First Appellate Court could not have overlooked the fact that conveyance had been made by housing board in favour of the defendant exclusively and that defendant under the conveyance sale deed dated 17.02.2007, had become the owner of the suit property and thereby simply granted relief of partition and separate possession to the plaintiff.

¶105

At this stage, learned counsel for the respondent submits that plaintiff may be permitted to amend the

¶106

¶107

plaint and also implead the necessary parties to the plaint and seek a comprehensive relief as otherwise the plaintiff will be precluded from filing a fresh suit. There is no objection as such to such a request made by respondent’s counsel.

¶108

In the circumstances, the following further

¶109

substantial question of law would arise;

¶110

“Whether the appeal has to be remanded to the First Appellate Court in order to enable the respondent-plaintiff to seek all reliefs that she is entitled to seek in the suit and also to permit her to implead necessary parties to the suit?

¶111

Having given the answers to substantial questions of

¶112

law Nos.1 and 2 and keeping in mind the fact that dismissal of the suit of plaintiff, at this stage on answering the aforesaid questions would deprive of an opportunity of plaintiff to seek all necessary reliefs, which she ought to have sought while filing the suit, out of which, this appeal arises, and keeping in mind the interest of both sides, in

¶113

¶114

my view, substantial question of law No.3 would have to be answered in favour of the respondent by permitting the respondent-plaintiff to seek amendment of her plaint in order to ensure that all necessary reliefs are sought by her and also to implead the parties to the suit for that purpose or otherwise she would be precluded in law from filing a fresh suit. Hence, the matter would have to be remanded to the First Appellate Court. In the circumstances, the judgment and decree of the First Appellate Court is set aside. The matter is remanded to the First Appellate Court. As parties are represented by their respective counsel, the parties are directed to appear before the First Appellate Court on 26.10.2016, without expecting any separate notice to be issued to them from that Court.

¶115

The respondent is permitted to file her application seeking amendment of plaint and also another application for impleadment of necessary parties to the suit. If the said applications are filed, the First Appellate Court shall consider them, without reference to the law of limitation.

¶116

¶117

The appellant herein would be entitled to file her additional written statement to the amendment sought by the plaintiff. The First Appellate Court shall raise appropriate issue that would arise on the amended plaint and written statement filed to the said amended plaint and dispose of the appeal after recording evidence, if any on both sides and giving an opportunity to both sides, in accordance with law.

¶118

In the result, appeal is allowed in the aforementioned terms.

¶119

Parties to bear their respective costs.

¶120

Registry is directed to forward the lower court records forthwith to the concerned First Appellate Court/Lower Appellate Court for the aforesaid purpose.

¶121

Sd/JUDGE

¶122

msr

Mahadevi W/O Shivalingappa Khelge v. Smt. Bassamma W/O Shivasharanappa Ramni

Case brief

What is this about?

What did the court decide?

Mahadevi W/O Shivalingappa Khelge v. Smt. Bassamma W/O Shivasharanappa Ramni

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Nagangouda S/O Lingappa Police Patil Vs Mallikarjun S/O Mallappagouda B.Police Patil

Shahshikant S/O Lingappa Jogi Vs Suryakant S/O Lingappa Jogi and Ors.

The Assistant Executive Engineer (Elec) Anr. Vs Smt. Madivalawwa W/O Hanamappa Kambali

Sri Erappa S/O Amarappa Vs Peddappa S/O Hosgeppa and Ors.

Kallappa Vs Saibanna

Yenkamma W/O Sharanappa Yalavar Vs Shivakumar S/O Ambruth