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2013 Supreme(Kar) 700
KARNATAKA HIGH COURT
B.S. Patil, J.
M.G. Papanna - Appellant
Versus
Smt. Jayalaxmamma since deceased by LRs and Others - Respondents
Regular First Appeal No. 429 of 2003 connected with Regular First Appeal No. 506 of 2003
Decided on: 31.10.2013
In RFA No. 429 of 2003
Sri S.P. Shankar, Senior Counsel for Sri H.M. Manjunatha, for Appellant;
Sri K.V. Narasimhan, for Respondent-1; Respondents-2-6 Served.
In RFA No. 506 of 2003
Sri G.S. Bhat and N.K. Kantharaju, for Appellants;
Sri K.V. Narasimhan, for Respondent-1; Sri S.P. Shankar, Senior Counsel for Respondent-2.
Headnote:HINDU SUCCESSION ACT, 1956 - Section 6, Explanation 2 & 14 (1): [B.S. Patil, J] Suit for declaration of title and declaring sale deed as void and for injunction - Plaintiff mother of D-1 (son) - D-2 to 5 are the children of D-1 - D-6 is the purchaser of portion of the suit property - Plaintiffs claim that she and her husband got property on partition (panchayat palupatti) for their maintenance and on the death of her husband, she is the absolute owner, that alienation of portion by D-1 in favour of D-6 is void - Defendant-1 contended that the property is ancestral, that he is in possession, that he is paying maintenance to plaintiff and that portion of property was sold to D-6 for family necessity - Trial Court decreed the suit and declared that the sale deed executed by D-1 to D-5 in favour of D-6 is not binding on plaintiff - Consequential relief of injunction was also granted - Defendants preferred appeal - Held, Trial Court was justified in looking into Ex-P-7 (panchayat palupatti) though it is not registered for purpose of finding out the nature of right given to the plaintiff. In the absence of any intention expressed either by Kuntegowda or by the other parties to the document that the entire property, upon the death of Kundegowda shall be retained by Jayalaxmamma towards her maintenance, question of applying the provision contained in Section 14(1) of the Act to hold that once Kuntegowda died, the right vested in the plaintiff for her maintenance gets blossomed into provisions contained under Section 14(1) of the Act, it is necessary to establish that the female Hindu possessed the property, whether acquired before or after the commencement of the Act. In the facts of the present case, it cannot be said the Jayalaxamamma had acquired the property. There is nothing in the document Ex. P.7 to show that either before or after Kuntegowda death the property was to serve as source of maintenance for the wife i.e, Jayalaxmamma. Hence, the right that Jayalaxmamma acquires in the property upon the death of her husband is the right to succeed to the same along with other heirs of Kuntegowda. The property was not given to her for her maintenance. The trial Court by wrongly construing the provisions contained in Explanation 2 to Section 6 of the Hindu Succession Act, as it stood earlier to amendment has held that the other heirs particularly, defendant No.1 herein who is the son of Kuntegowda is excluded from the right to succeed to the property left behind by his father as he had separated from the family earlier. The exclusion contemplated under Explanation 2 to Section 6 of the Hindu Succession Act comes into operation when the coparcenary continues to exist after one of the members separates from the family by taking his share. In the instant case, there is no coparcenary in existence. The father and the sons have separated from the family. The property left behind by husband of plaintiff will devolve by succession under Section 8 of the Hindu Succession Act, 1956 in favour of his heirs i.e., widow and children. As the plaintiff has not hazard the exercise of referring to the exact share to which each one of them are entitled.
B.S. Patil, J.
These two appeals arise out of the judgment dated 13.01.2003 passed by the learned Principal Civil Judge (Sr.Dn.), Srirangapatna, in O.S. No. 43/1996.
2. R.F.A. No. 429/2003 is filed by defendant No. 6 in O.S. No. 43/1996. Whereas, R.F.A. No. 506/2003 is filed by defendants 1 to 5. The suit was filed by deceased plaintiff-respondent No. 1 in both these appeals seeking a declaration that the Sale Deed dated 27.06.1996 executed by defendant 1 to 5 in favour of defendant No. 6 in respect of 36 acres of land in Sy. No. 26 of Mogarahalli Village in Srirangapatna was null and void and not binding on the plaintiff. A further declaration was sought by the plaintiff that she was the absolute owner of the plaint schedule property apart from seeking a restraint order against the defendants by way of decree of permanent injunction from interfering with her possession and enjoyment.
3. The relationship between the parties is not in dispute. The plaintiff is the mother of defendant No. 1. Defendant Nos. 2 to 5 are her grandchildren being the sons of defendant No. 1. Defendant No. 6 is the purchaser of the property from the 1st defendant under a registered Sale Deed dated 27.06.1996.
4. The case of the plaintiff was that there was a division in the family property during the life time of her husband - Kuntegowda by way of Panchayath Palu Patti dated 02.09.1968 and in the said partition/division, the suit schedule land fell to the share of the plaintiff and her husband. Plaintiffs husband died during the year 1982. Upon his death, she came in possession of the property as absolute owner thereof. Her son the 1st defendant secured illegal entries in his name in respect of the said property which led to the plaintiff filing an appeal before the Assistant Commissioner. As the 1st defendant and his children without having any right over the suit property were asserting their right over the property and as defendants 1 to 5 sold a portion of the suit schedule property in favour of the 6th defendant by executing a registered Sale Deed dated 27.06.1996, plaintiff was constrained to file the suit seeking a declaratory relief and also for permanent injunction.
5. The suit was resisted by the defendants. Defendants 1 to 5 filed joint written statement. Whereas, defendant No. 6 filed separate written statement resisting the suit. Defendants 1 to 5 contended that the suit schedule property was the ancestral property. The schedule property was allotted to the share of Kuntegowda and his wife for their maintenance. However, the possession of the property was continued with the 1st defendant who was paying maintenance to his parents. Upon the death of Kuntegowda, the 1st defendant went on paying the maintenance. The sale of 36 acres of land was effected for the family benefit of the 1st defendant and that the plaintiff had absolutely no right, title or interest in or over the suit schedule property much less its possession. He further contended that upon the death of Kuntegowda, his four sons including the 1st defendant and five daughters who had interest in the property ought to have been arrayed as parties and therefore, the suit was bad for non-joinder of necessary parties. The 6th defendant, on his part, contended that he has purchased only a portion of the land comprised in Sy. No. 26/ 1A which was sold for family necessity and that he was a bonafide purchaser in good faith.
6. Based on the pleadings, the Trial Court framed the following issues :
1. Whether the plaintiff proves that the suit schedule property is the self-acquired property of her husband Kuntegowda?
2. Whether she further proves that the suit schedule property fell to the share of herself and her husband in a Panchayath Palu Patti dated 2/9/68?
3. Whether she further proves that she is the absolute owner of the suit schedule property by virtue of the Palu Patti?
4. Whether she further proves that she is in lawful possession of the suit schedule property as on the date of sui
