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KARNATAKA HIGH COURT
Mohan M. Shantanagoudar and B. Sreenivase Gowda, JJ.
Smt. Rathnavathi and Others – Appellants
Versus
Smt. Saraswathi Adappa and Others – Respondents
Regular First Appeal No. 1672 of 2007
Decided on: 19.9.2013
. HINDU SUCCESSION ACT, 1956 - Section 14: [Mohan M. Shantanagoudar & B. Sreenivase Gowda, JJ] Limited interest in the property possessed by a Hindu female - Held, This provision is applicable to Hindu females only and the same does not have the effect of enlarging the limited estate in the hands of a Hindu male. A Hindu male would continue to hold the limited interest provided to him under the law that was applicable to him during relevant time. If the intention of the legislature was to enlarge the limited interest held by the male into absolute interest, it would have specifically provided so under Section 14 of Hindu Succession Act, as provided for Hindu females.
MADRAS ALIYASANTHANA ACT, 1949 - Section 36(4)(5): [Mohan M. Shantanagoudar & B. Sreenivase Gowda, JJ] Nissanthathi Kavaru - Alienation of property allotted to member of Nissanthathi Kavaru in partition - Held, Section 36(3) of the Act makes it amply clear that a member of Nissanthathi Kavaru, at the time of partition, shall have only a life interest in the properties allotted to him, if the kutumba from which Nissanthathi Kavaru separates has at least one female member who has not completed the age of 50 years. In the matter on hand, undoubtedly, the kutumba from which, Kanthappa Adappa has separated, has at least one female member not completed the age of 50 years. Sub-Section (4) of Section 36 discloses that the life interest of Nissanthathi Kavaru in the properties allotted to it at the partition shall become absolute, if the kutumba concerned ceases to have among its members a female who has not completed the age of 50 or if all the kavarus into which the kutumba broke up, whether at the same or at a subsequent partition become Nissanthathi Kavaru or kavarus. In this matter, admittedly, sub-section (4) of Section 36 is not applicable inasmuch as the kutumba does not cease to have among its members a female who has not completed the age of fifty years. So also, undisputedly, all the kavarus of the kutumba after breaking up have not become Nissanthathi Kavaru. Sub-Section (5) of Section 36 of the Act, states that the properties allotted to a Nissanthathi Kavaru at a partition and in which it has only a life interest at the time of death of the last of its members, shall devolve upon the Kutumba or to the nearest santhathi kavaru as the case may be. Thus, it is clear that the life interest in the properties allotted in favour of Kanthappa Adappa (Nissanthathi Kavaru), after his death shall devolve upon the Kutumba or to the nearest santhathi kavaru as the case may be. In the matter on hand, the claim is made by the defendants that they have got absolute interest over the properties taking the help of Section 7(2) of the Hindu Succession Act, 1956. The plain reading of Section 7(2) of the Hindu Succession Act, 1956 makes it amply clear that Hindu to whom Aliyasanthana Law applies, if dies after the coming into force of Hindu Succession Act, 1956, having undivided interest at the time of his or her death in the property of kutumba or kavavu as the case may be, his or her undivided interest in the property shall devolve by testamentary or intestate succession as the case may be under Hindu Succession Act, 1956, and not under Aliyasanthana Law. Which means that if the kutumba property were to remain undivided at the time of commencement of the Hindu Succession Act 1956, even a member of Nissanthathi Kavaru, who would have otherwise got limited right under the provisions of Madras Aliyasanthana Act, would get absolute interest as per the provisions of Hindu Succession Act 1956. In other words, after coming into force of Hindu Succession Act, 1956 i.e., with effect from 17.6.1956, even a member of Nissanthathi Kavaru would get equal share to the share of a female member, if and only if, the property of Kutumba or kavaru remained undivided as on 17.6.1956. Thus it is clear, if the properties are already divided prior to commencement of Hindu Succession Act among the members of Kutumba and if a life interest has already been allotted in favour of Nissanthathi Kavaru in such partition of Nissanthathi Kavaru, would continue to enjoy the properties in a limited manner during his life time. The life interest granted in favour of Nissanthathi kavaru under the partition prior to 17.6.1956 would not automatically enlarge into absolute interest and devolve upon his personal heirs after coming into the force of Hindu Succession Act 1956. The provision of Hindu Succession Act do not have retrospective effect, thus, the succession which has already opened and the estate if already vested prior to coming into force of Hindu Succession Act in the form of limited interest with the male governed by Aliyasanthana Law, cannot be reopened after coming into force of Hindu Succession Act. In the matter on hand, since Kanthappa Adappa was allotted life interest in the properties as per the law applicable to him and then existed in the partition of 1951, his personal heirs cannot claim absolute ownership over such properties after his death. Section 14 of the Hindu Succession Act cannot be made use of by Hindu males having limited interest. Life interest of a Hindu governed under Aliyasanthana Law allotted in favour of Nissanthathi kavaru under the registered partition deed dated 16.7.1951, (i.e., prior to commencement of Hindu Succession Act) does not enlarge into absolute interest after coming into force of Hindu Succession Act, 1956 and consequently, the natural heirs of such Nissanthathi kavaru are not entitled to succeed to the estate of Nissanthathi kavaru as absolute owners, after the death of Kanthappa Adappa (Nissanthathi kavaru).
Mohan M. Shantanagoudar, J.
This is plaintiffs' appeal against the judgment and decree of dismissal dated 25.10.2006 passed in O.S. No. 300/1998 by the Court of II Additional Civil Judge (Sr.Dn.), Mangalore.
2. The case of the plaintiffs is that plaintiffs 1 to 59 and defendant Nos. 1 to 7 and 9 are the members of Aliyasantana family governed by Aliyasantana law of inheritance; plaintiffs 1 to 46 constitute the members of Kavaru (branch of family) headed by one Korapolu Hengasu. Plaintiffs 47 to 57 and defendant No.9 constitute members of another branch represented by Poovake Hengasu; plaintiffs 58 and 59 belong to the branch of one Veeramma. Defendants 1 to 7 are the wife and children of Nissanthathi Kavaru member by name Kanthappa Adappa. Defendant No. 8 is the purchaser of 'C' Schedule property from Kanthappa Adappa. Since one member of Povakke's branch by name Seetharama was not willing to join as plaintiff, he was arrayed as defendant No.9. One of the sons of Veeramma by name Suresh is stated to be unheard off for more than last 15 years and therefore he is presumed to be dead and is not made as party to the suit.
The partition has taken place in respect of the family properties belonging to the family of late Thimmaju as per the registered partition deed at Ex.P2, dated 16.7.1951; Schedule 'E' properties in the said partition deed came to be allotted to the share of the deceased Kanthappa Adappa, whereas the Schedules 'A' and 'F' properties of the said partition deed came to be allotted to the shares of the deceased Narayana Adappa and Venkappa Adappa respectively. Thus, it is clear that all the three aforementioned persons were allotted separate and distinct shares. All the three, namely Kanthappa Adappa, Narayana Adappa and Venkappa Adappa were genitive brothers and they were members of Nissanthathi Kavaru. In the deed of partition, it is specifically mentioned that the members of Nissanthathi Kavaru, including Kanthappa Adappa would enjoy the properties allotted to their respective shares during their life time and thereafter their respective properties will revert back to the family to the nearest Santhathi Kavaru as the case may be.
Sri Kanthappa Adappa, who was Nissanthathi Kavaru member died on 19.8.1996 leaving behind the first defendant (wife of Kanthappa Adappa) and defendants 2 to 7 (children of Kanthappa Adappa). After the death of Kanthappa Adappa, in the normal course, the properties would have reverted to the family (kutumba), or to the members of nearest Santhathi Kavaru as the case may be. But defendants 1 to 7 did not hand over the possession of the properties allotted in favour of Kanthappa Adappa to the nearest Santhathi Kavaru as specified in the partition deed at EX.P2. According to the plaintiffs, they being the members of nearest Santhathi Kavaru are entitled to the absolute ownership and possession of the properties enjoyed by late Kanthappa Adappa (which are fully detailed in Schedule 'B' of the plaint in O.S. No. 300/1998. It is needless to state that the properties detailed in Schedule 'B' of the plaint are the very properties detailed in Schedule 'E' of the partition deed at Ex.P2). Inspite of the demand of the plaintiffs, defendants 1 to 7 did not hand over the possession of 'B' Schedule properties in their favour. In the meanwhile, deceased Kanthappa Adappa had sold Schedule 'C' property (Sy.No.33/10) (one of the property allotted to Kanthappa Adappa under partition deed at Ex.P2) in favour of defendant No.8. Hence, the suit is filed praying for possession.
According to the plaintiffs, the alienation is invalid and inoperative, inasmuch as the alienor Kanthappa Adappa did not have any alienable interest over the 'C' Schedule property as he had only life interest over the property alienated.
3. The suit is resisted by defendants 1 to 7. Defendants 1, 5 and 7 filed written statement which came to be adopted by defendants 2, 3, 4 and 6. In the written statement, the defendants admit that the
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