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2007 Supreme(Kar) 261
Karnataka High Court
Judges : N.Kumar
THILLIAMMAL - Appellant
Versus
THANDAVATNURTHY - Respondent
R. F. A 516 Of 1995
Decided On : 04/12/2007
Advocates Appeared :
KRISHNA KUMAR, N.VASUDEVA, S.V.RAGHAVACHAR, Tarakaram Associates, V.Tarakaram
Headnote:MYSORE HINDU LAW WOMEN’S RIGHTS ACT, 1933 - Sections 18 &11 [N. Kumar, J] Hindu women’s Right to property - Whether absolute or limited ownership - Female heir inheriting property from another female or male - Held, Insofar as Hindu living in the Princely State of Mysore, after Mysore Act came into force on 1.1.1934, the law of Mitakshara applicable to the persons in the area, stood amended or modified by the provisions of this Act. The property taken by inheritance by a female member from another female and property taken by inheritance by female from her husband or a son or from male relative became her stridhana property, subject to an exception that when there is a daughter or a daughter’s son alive at the time the property is so inherited in which event what she inherited is only a limited estate. However, Section 21of the said Act provides, on the termination of the limited estate of female owner the property comprised in such estate, shall pass to the person who at the time is the next heir of the last full owner. Section 4 of the Act deals with order of succession when a Hindu male dies intestate, the male issue to the third generation succeeds through the said estate to the total exclusion of all others. If there is no male issue, it is the widow who succeeds the estate. In the absence of the widow, it is the daughter who succeeds to the estate. Therefore, under Section 11 on the death of the widow the next heir of the last true owner namely the daughter succeeds to the estate as the absolute owner. In the instant case, the Widow, after the death of her husband in 1894 took a limited estate in the schedule property. On the passing of the Act, the position did not change under the Act also, widow took a limited e4state in the schedule property she was the absolute owner and not a limited owner. Purchaser under the sale deed acquired absolute title to the suit property. Therefore, as the estate possessed by ’U’ was not a limited estate, on her death the question of the said limited estate reverting back to reversioners did not arise.
INDIAN SUCCESSION ACT, 1925 - Section 5: [N. Kumar, J] Succession to immovable property in India - Indian Succession Act, 1925, has no application to Hindus in the matter of succession and inheritance , as they are governed by their personal law, Hindu Law. In the light of personal law, the word domicile has to be construed in the context of a person migrating from region of India which is governed by a particular school of Hindu law, to another region which is governed by another school of Hindu law. However, if a person shifts his residence from a place which is also governed by the law of Mitakshara, there is no change of domicile or migration, as understood in the context of law of succession. In such circumstances the question of finding out the intention of the person, who changed his residence, whether he wanted to give up the law which was applicable to him at the place of his original residence and he wanted to embrace and have the benefit of the law which was applicable to the province to which he migrated would not arise.
( 2 ) THE plaintiffs claim thai, they are the owners of the property bearing Nos. 51, 51a to K (old), New No. 131 situated at veerapillay Street, Civil Station, Bangalore, which is hereinafter referred to as the "schedule properties. " They claim title to the said properties having inherited the same from Sri gangadhara Mudaliar, who is the husband of the first plaintiff and father of the plaintiffs 2 and 3 The said Sri Gangadhara Mudaliar died on 15-5-1970. In the plaint they have set out the geneological tree. The said Gangadhara mudaliar is the last male member of the family. He would be the Bandhu of Sri periaswamy.
( 3 ) THE specific case pleaded by the plaintiffs' is that the schedule property belongs to sri Periaswamy. He died in 1894. Smt. Unnamalaiammal, the daughter of periaswamy had a life interest in the schedule property. She died on 30-7-1964 at Bangalore. On her death, as she was a limited owner, the title to the schedule property reverted to the plaintiffs, who are the revisioners. As Smt. Unnamalaiammal had alienated the property in favour of one Natesha Mudaliar on 7-8-1943 who died leaving behind the defendants 1 to 4, the said alienation did not bind them to any extent whatsoever. The other defendants, namely, defendants No. 5,6,6 (a) to 6 (d) and 21 claim this property through natesha Mudaliar being alienees, and those alienations are also not binding on the plaintiffs. It is contended that the said Natesha mudaliar had mortgaged the property to defendant No. 5. In pursuance to the decree obtained by defendant No. 5 schedule property was ordered to be brought to sale as per orders passed in O. S. No. 28/1962. As the said alienation are not binding on the plaintiffs, they called upon the defendants 1 to 4 by way of legal notice to hand over possession to them. They have also claimed mesne profits at the rate of Rs. 500/- per month for three years. It is alleged that during the pendency of the suit, defendants 1 to 4 through their general Power of Attorney Sri G. Sundar rajan had alienated the part of the suit property in favour of the 6th defendant-Sri M. K. Yousuff and the remaining part to the 23rd defendant-Sri S. M. Anwar Pasha and have delivered physical possession of a portion to them. Defendants 7 to 22 are the tenants in occupation of several portions of the suit building ever since the filing of the suit in the year 1973. Some of the tenants filed a petition under S. 19 of the Karnataka Rent Control Act, 1961 for deposit of rent. To the said proceedings they had made the first plaintiff and General Power of Attorney holder of defendants 1 to 4 as parties contending that as both of them were claiming to be landlords and demanding payment of rents, they sought permission of the Court to deposit the amount in the Court. By order dated 13-11-1978, the court passed an order directing them to deposit the rent in the Court till the real landlord is ascertained. Accordingly, for some time they deposited the money and thereafter they have stopped making deposits. They have set out in the plaint the suit filed by defendant no. 6 for arrears of rent, as well as for eviction against the various tenants and contend that the 6th defendant has no right to initiate such proceedings. Defendants 7 to 9 and 12 had filed O. S. No. 10690-1984 on the file of the Additional City Civil Judge, Civil Station, bangalore, against the 6th defendant and in the said suit an order of temporary injunction was passed against him restraining him from demolishing or damaging the said tenements or in any way interfering with the peaceful occupation of the said plaintiffs. The plaintiffs are entitled to claim a declaration that the alienation made in favour of late Natesha mudaliar and
