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2017 Supreme(Kar) 969
IN THE HIGH COURT OF KARNATAKA KALABURAGI BENCH
K.N. PHANEENDRA, J.
Sri Daulatarao Ramachandra Jadhav Son of Sri Ramachandra Jadhav & Ors. - Appellants
Vs.
Smt. Janabai Anandarao Jadhav & Ors. - Respondents
Regular First Appeal No. 1435 of 2007
Decided On : 10-11-2017
Advocate Appeared:
For the Appellants : Sri D.P. Ambekar
For the Respondents: Sri A. Syed Habeeb
Headnote:HINDU SUCCESSION ACT, 1956 [C.A. NO. 30/1956] - Section 14(1) - Right of female over property - Word 'possessed' used in section 14 (1) is in very broad sense - Woman need not be in actual physical possession or personal occupation of property - It may be possession in law, which may either be actual or constructive.
HINDU SUCCESSION ACT, 1956 [C.A. NO. 30/1956] - Section 14(1) - Right of female over property - Retrospective effect - Section 14(1) providing that Hindu female possessing any property on date of coming into force of Act or acquiring it before or after commencement of Act, shall be full owner thereof and not limited owner - Whether said right acquired before or commencement of Act, is immaterial - Effect of Section 14(1), is retrospective.
HINDU SUCCESSION ACT, 1956 [C.A. NO. 30/1956] - Section 14(1) - Right of female over property - Owner of property delivering possession of property to his wife by ' Thondi Baksheesh' (Oral gift) - 'Thondi Baksheesh' means oral gift or donation or boon given to wife on demand - Wife receiving maintenance during her lifetime by leasing said property - She remaining continuously in possession of property even after Act of 1956 came into force - Property can said to be given to wife by husband in lieu of her maintenance - Wife would be absolute owner of property - She would have alienable right over property.
HINDU SUCCESSION ACT, 1956 [C.A. NO. 30/1956] - Section 14(1) - Right of Hindu female over property - Section 14(1) has very wide and extensive application and has to be read in a comprehensive manner as Act overrides old law governing properties of female. The provision confers full heritable capacity and absolute ownership on female heir. This section dispenses with traditional limitations of conferring limited estate on Hindu female to hold and transmit property. Prior to coming into force of this Act, a woman's ownership of property was hedged in by certain delimitations on her right of disposal and also on her testamentary power in respect of that property and also with reference to her absolute ownership. By virtue of interpretation of provision under Section14 of Act, said barricades have been completely removed and Act presupposes if any property possessed by a Hindu female whether acquired before or after commencement of Act becomes absolute property of the said woman, if the said property was given in recognition of her pre-existing right.
INDIAN CONTRACT ACT, 1872 [C.A. NO. 9/1872] - Section 17 - Execution of gift deed - Plea of fraud - Plaintiff not raising pleadings as to fraud in plaint - Stating it in evidence - No specific material available to draw inference that said deed is not genuine document and forged one - Plea of fraud ,held, not tenable.
INDIAN EVIDENCE ACT, 1872 [C.A. NO. 1/1872] - Sections 68, 69 - Execution of gift deed - Defendant claiming alienation of property by his mother in his favour by execution of gift deed - Plaintiff not specifically denying execution said deed - Defendant need not prove execution of deed by examining attesting witnesses.
TRANSFER OF PROPERTY ACT, 1882 [C.A. No. 4/1882] - Section 123 - Execution of gift deed - Plea of fraud - Plaintiff not raising pleadings as to fraud in plaint - Stating it in evidence - No specific material available to draw inference that said deed is not genuine document and forged one - Plea of fraud ,held, not tenable.
This appeal is preferred against the judgment and decree passed by the Principal Civil Judge (Sr., Dn.,) Bijapur in O.S.No.315/2000 dated 23.03.2007.
2. The Trial Court has decreed the suit of the plaintiffs declaring that the Gift deed dated 22.04.1946 (in the Trial Court’s judgment, Gift deed date is wrongly mentioned as 26.04.1946) made in favour of Smt. Laxmibai from her husband Ramachandra Jadhav. Another Gift deed dated 30.01.1969 (in the Trial Court’s judgment, in several places, the date of gift deed is wrongly mentioned as 03.02.1969) executed by Smt.Laxmibai in favour of the defendant as null and void and not binding on the share of the plaintiffs and further decreeing the suit of the plaintiffs stating that the plaintiffs are entitled for equal half share in the suit schedule property.
3. For the purpose of easy understanding and convenience, the ranks of the parties as per their ranks before the Trial Court.
4. The plaintiffs (defendants herein) are the legal representatives of one Anandarao Jadhav. The said Anandarao Jadhav is none other than the elder brother of the defendants. Both are sons of one Ramachandra Jadhav resident of Bijapur. The deceased-Ramachandra Jadhav had a wife by name Smt. Laxmibai and both of them were blessed with two children by name Anandarao and Doulatarao. As stated above, plaintiffs are the legal representatives of the deceased-Anandarao.
5. The plaintiffs claim that the property bearing CTS No.671/7 measuring 200 square yards of Ward No.V of Bijapur originally belonged to one Kalyani Sripad Mutalik and the same was purchased by Ramachandra Jadhav (father of defendants and Anandarao) under a valid sale deed dated 23.12.1933. After the death of said Ramachandra Jadhav in the year 1957 precisely on 19.11.1957, late Anandarao and defendant-Doulatarao got effected partition in respect of another property of the family bearing CTS 739/2A. The disputed property (suit schedule property) was not partitioned in view of Ramachandra Jadhav and Smt. Laxmibai were residing in the said house with Doulatarao at that particular point of time.
6. Till the death of Anandarao, he was looking after the affairs of the family and there was no occasion for the plaintiffs to look into the matter of the property of the family. During the lifetime of Anandarao, Anandarao was telling that the suit schedule property yet to be partitioned and that defendant was ready and willing to do so but there was no occasion for the plaintiffs to ransack the state of affairs and therefore, there was no partition in respect of the suit schedule property.
7. It is the further contention of the plaintiffs that after the death of Anandarao in the year 1996, the plaintiffs have asked for Anandarao’s share, but the defendant did assert that he would part with the property later. But in spite of repeated requests, he did not part with the property. On the other hand, the plaintiffs suspecting the bonafide of the defendant and got the rumour of the defendant asserting to knock off the property, they were constrained to obtain certified copy of the property extract and they were shocked to know that during the lifetime of Ramachandra Jadhav, he allotted the suit schedule property in favour of late Smt. Laxmibai by way of oral gift deed dated 22.04.1946 without the knowledge of his first son - Anandarao. The defendant taking advantage of the same, got the mutation of the said property in the name of Smt. Laxmibai and thereafter, got another gift deed executed in his favour from Smt. Laxmibai on 30.01.1969 and thereby, made an attempt to knock off the said property. The alleged gift deed dated 30.01.1969 was not within the knowledge of Anandarao during his lifetime. Therefore, the plaintiffs have obtained the copy of the said gift deed dated 30.01.1969 as well as the varadi dated 24.06.1946 and then only came to know about the systematic conspiracy by the defendant to knock off the property particularly, the share of the deceased-Ana
