2013 Supreme(Kar) 153

High Court of Karnataka
ARAVIND KUMAR, J.
Vishwaraj, Bangalore & Others
Versus
B.M. Byrappa, Bangalore & Others
R.F.A. No. 611 of 2002 C/W R.F.A. Nos. 612, 613, 711, 712 & 504 of 2002
Decided On : 01-03-2013

Headnote:HINDU SUCCESSION ACT, 1956 - Sections 14(1) & 14(2): [Aravind Kumar, J] Applicability and scope - Suit for partition and separate possession - Defendant and her mother already residing in suit property by virtue of their pre-existing right under a decree of Court - Under a deed they were only allowed to continue to reside in suit schedule property - Held, Where in a suit for partition and possession of suit schedule property when the right of female Hindu can be related or traced to her antecedent right or interest in the property then such acquisition though as a limited owner, or the acquisition in a limited sense will get blossomed into absolute ownership on and from the day Act coming into force. If however, acquisition of the property cannot be correlated to any antecedent right or interest in the property of the female Hindu, then such acquisition or right would be conditioned by restrictive clause and she will not become the absolute owner but will be governed by the restrictive clause. The defendant and her mother lived in suit property away from her father and he was providing separate maintenance and residence to them in terms of decree passed in a suit and further modified by a compromise decree, however, the said properties came to be taken over by State Government under statute, and therefore, parties entered into arrangement under which mother of defendant and defendant were provided combined maintenance and residence, thus, right of defendant and her mother over suit schedule property did not emerge for first time under that deed and it was a pre-existing right which blossomed and got crystallized through deed, their limited right of maintenance would get converted into their absolute right under Section 14(1) and Section 14(2) would not be applicable in such case and suit was liable to be dismissed. Further, at no point of time successors-in-interest of father of defendant have either dispossessed her or her mother or have taken partial possession of the bungalow which would clearly indicate that the right of residence granted in suit house to defendant and her mother was absolute. This fact was also fortified from further recital found in a clause indeed wherein it was clearly agreed that these two persons would not be entitled to claim any further or other additional provision for their residence or for the payment of any sum either in a lump or periodically in lieu thereof or on the said amount. In other words it is this property alone which has been given to them. Further right of alienation by these two persons has been curtailed and it is this clog which curtails the right of ownership was removed by operation of law i.e., on introduction of Section 14(1) of Hindu Succession Act, 1956. In such a case, it could not be said that since there was no partition of impartible estate deceased father of defendant between himself and his two sons and if deemed partition is assumed or construed, then defendant’s mother would be entitled to claim only from the share of deceased i.e. 1/3rd and as such, her right over the suit schedule property would also restrict itself to the said extent. The intention of the legislature can be gathered from reading of Section 14 in its entirety and it nowhere suggests that ownership of female Hindu would only be to the extent of her husband’s share in the joint family properties and if it were to be so, the legislature itself would have expressed so in the Act itself.

       HINDU SUCCESSION ACT, 1956 - Section 14(1): [Aravind Kumar, J] Right of residence and maintenance - Hindu women put in possession of property pursuant to right of maintenance - Held, A right of maintenance would include food, clothing and shelter. In other words right of maintenance also includes right of residence. One cannot be divorced from the other. Maintenance must necessarily encompass a provision for residence. If a Hindu women was put in possession of a property pursuant to or in recognition of a right to maintenance and said right of residence conferred therein cannot be divorced from the word ’maintenance’ and it cannot be read disjunctively. But on the other hand both these words are required to be read conjunctively.

        It was more so, when recitals in deed would clearly indicate that said residential accommodation had been provided to defendant in lieu of maintenance, and therefore, it could not be said that right of maintenance is distinct from right of residence.

       CODE OF CIVIL PROCEDURE, 1908 - Order 14, Rule 3: [Aravind Kumar, J] Effect of non-framing of issue - Suit for partition - Specific averment by defendant in written statement that her mother did not execute document in question -Held, Where it was alleged in a partition suit by plaintiff that as there was specific plea by defendant in the written statement that her mother did not execute document in question, the trial court ought to have framed issue on that point and in absence of such issue, trial court could not have dismissed suit, such plea of plaintiff cannot be accepted when other defendants relied on such documents. When other defendants are sailing with the plaintiff have themselves raised such a plea and when they rely upon the said document and on the basis of said plea an issue having been framed by the trial court they cannot now turn around and contend that in view of said averment made in the plaint having been denied by the defendant, trial court could not have relied upon said document to dismiss the suit. It was more so when in fact such issue was framed.

        Moreover, where the parties go to the trial knowing fully well the rival contentions and have tendered evidence not only in support of their contentions but also by denying the case of other side, it cannot be said that non-framing of a specific issue is fatal to the case or it would vitiate the proceedings and conclusion arrived at.

        Further, when the court finds from the material pleadings that it would give rise for an issue, it would not consider the validity or correctness of the contentions in the pleadings at that stage. A finding is reached on appreciation of evidence, mere failure to frame an issue does not vitiate the judgment particularly when parties have understood the pleadings and tendered their evidence in support or opposing such plea. As such non-framing of an issue recedes to background.

       CODE OF CIVIL PROCEDURE, 1908 - Order 20, Rule 18: [Aravind Kumar, J] Suit for partition and possession - Plaintiff admitted that there was no division of joint family properties by metes and bounds - All properties which belonged to joint family were not included in suit - Plaintiff, a purchaser of portion of share belonging to member of joint family - Held, Such suit for partition would not be maintainable since even partition which he seeks is based on equity and not as of right.