IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 24TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K. SUDHINDRARAO R.S.A.No.196/2014 BETWEEN:
GANGAIAH S/O MUDLIGIRIYAPPA AGED ABOUT 82 YEARS R/O BIDANAGERE VILLAGE HEBBUR HOBLI, TUMKUR TQ. TUMKUR DISTRICT – 572 130.
…APPELLANT (BY SRI VENKATA REDDY S.K, ADVOCATE) AND:
1.VENKATAPPA S/O MUDLIGIRIYAPPA AGED ABOUT 71 YEARS R/O GOWDANAPALYA URDIGERE HOBLI TUMKUR TALUK AND DISTRICT – 572 140.
2.M. GANGAIAH S/O MUDLIGIRIYAPPA AGED ABOUT 69 YEARS 3.VENKATARAMAIAH S/O MUDLIGIRIYAPPA AGED ABOUT 67 YEARS RESPONDENTS -2 & 3 ARE R/O BIDANAGERE VILLAGE HEBBUR HOBLI TUMKUR TQ. & DIST.- 572 130.
4.RAMAIAH S/O MUDLIGIRIYAPPA AGED ABOUT 65 YEARS R/O CHINKAVAJRA VILLAGE KASABA HOBLI, TUMKUR TALUK & DIST. - 572 132.
5.KARIYANNA (AS PER PLAINT & DECREE IN OS 95/99) SINCE DEAD BY LRs (a)LAKSHMAMMA W/O KARIYANNA AGED ABOUT 64 YEARS (b) KRISHNAMURTHY SINCE DEAD BY LRS (i) GOWRAMMA W/O LATE KRISHNAMURTHY AGED ABOUT 50 YEARS (ii) YUVARAJU @ GOWDA S/O LATE KRISHNAMURTHY AGED ABOUT 22 YEARS.
(iii) LAKSMI D/O LATE KRISHNAMURTHY AGED ABOUT 18 YEARS.
(iv) JAYAMMA W/O LATE KRISHNAMURTHY AGED ABOUT 45 YEARS.
(v) SHILPA D/O LATE KRISHNAMURTHY AGED ABOUT 20 YEARS.
RESONDENTS 5 (b) (i) to (v) ARE R/O 1ST CROSS, NEAR KANNADA SCHOOL UPPARAHALLI, TUMKUR-572 102.
(c) LAKSHMIDEVAMMA D/O LATE KARIYANNA AGED ABOUT 44 YEARS (d) MANGALAMMA D/O LATE KARIYANNA AGED ABOUT 42 YEARS (e) NAGARATHNAMMA D/O LATE KARIYANNA AGED ABOUT 39 YEARS RESPONDENTS 5(b) (c) to (e) ARE R/O OPP:SIDDALINGAPPA SHOP SHANIMAHATMA TEMPLE ROAD UPPARAHALLI, TUMKUR- 572 102.
...RESPONDENTS (BY SRI R BHADRINATH, ADVOCATE FOR R1 SRI CHITHAPPA G.M, ADVOCATE FOR R2) THIS RSA IS FILED U/S.100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 07.12.2013 PASSED IN R.A.No.85/2010 ON THE FILE OF THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, TUMKUR DISMISSED THE APPEAL AND CONFIRMED THE JUDGMENT AND DECREE DATED 04.03.2010 PASSED IN O.S.No.95/99 ON THE FILE OF THE PRL.CIVIL JUDGE (SR.DN.) AND CJM, TUMKUR.
THIS RSA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Heard learned counsel for both sides.
Appeal is directed against the judgment and decree passed by the learned II Additional District and Sessions Judge, Tumkur, in R.A.No.85/2010 dated 07.12.2013 wherein the appeal came to be dismissed confirming the judgment and decree passed in OS No.95/1999 dated 04.03.2010 by the learned Principal Civil Judge (Sr.Dn) and CJM Tumkur.
2. In order to avoid confusion and overlapping, the parties are referred in accordance with their ranks and status as held by them respectively before the trial court.
3. To begin with, OS No.95/1999 is filed before the learned Principal Civil Judge (Sr.Dn) and CJM, Tumkur, by one Venkatappa son of Mudligiriyappa, seeking partition and separate possession of suit schedule property therein, claiming that the same is a joint family property, wherein he is a member. The joint family possesses schedule property, wherein its members including the plaintiff is having undivided share.
4. The defendants resisted the claim of the plaintiff by filing their separate written statement.
5. The learned trial Judge was accommodated with the oral evidence of PW1-Venkatappa, DW1- Rangamma, DW2-Venkataravanaiah and documentary evidence of Exs.P1 to P5 and Exs.D1 to Ex.D156.
6. The learned trial Judge considering the oral and documentary evidence and other materials available on file, has decreed the suit of the plaintiff in part and held that he is entitled for partition and separate possession of his 1/7th share in the suit schedule property and dismissed the second relief. Against which, defendant Nos.1 and 2 preferred Regular Appeal before the learned II Additional District and Sessions Judge, Tumkur, in R.A.No.85/2010, which came to be dismissed confirming the judgment and decree passed by the learned trial Judge, which is challenged in this appeal by the 1st defendant.
7. Sri S.K.Venkatareddy, learned counsel for appellant would submit that unnecessary attribution and status of joint family property is made on the schedule property though it does not bear even one incident of the same. He would further submit that Rangamma is the wife of 1st defendant Gangaiah. Rangamma was under no legal disability to buy property nor was she is entitled only for limited estate. The property purchased by her was through an out and out sale deed and there was no necessity or requirement of family subscribing her name to the sale deed. She purchased the same out of the funds that is exclusively belonged to herself and her husband, Gangaiah, 1st defendant. Countering the stand of the 1st respondent/plaintiff in the trial Court, learned counsel would submit that the sole ground urged by the defendants is, while purchasing property, two properties covered under Exs.P1 and P2 were not mortgaged jointly by the defendants and by one Mudligiriyappa. Learned counsel would submit that at no stretch of imagination participation in the mortgage of the property could leave impact on the joint family property as to its identity. It was further submitted that the family was disrupted long back as Venkatappa gone out three decades back.
8. Learned counsel Sri. R. Bhadrinath, for plaintiff/respondent No.1 would submit that neither the first defendant Gangaiah nor his wife Rangamma had exclusive funds to buy the property for themselves and animus of jointness of the family prevailed on the parties. Further, residing under separate roof did not separate them in terms of the properties of the family.
9. This Court while admitting the appeal framed the substantial questions of law on 15.3.2016 as under:
(i) Whether courts below are justified in holding the suit schedule property held by a Hindu Female is not her absolute property, in spite of law under Section 14 of the Hindu Succession Act, 1956, though she is not a coparcener of the alleged joint family?
(ii) Whether Courts below are justified in holding that the suit schedule property held by a female Hindu as a trustee or in fiduciary capacity and the real owner of the suit schedule property is the alleged joint family of the plaintiff and defendants 1,3,4,6 and 7 and the plaintiff can file a suit for partition and separate possession, claiming share in suit schedule property, opposed to Section 4 of the Benami Transaction (Prohibition) Act, 1988?
10. After hearing the parties, I find the additional substantial questions of law are necessary to be framed and the same are framed as under:
(i) When the holdings of the property by a female Hindu is the fact and bone of contention between the parties is, whether the schedule property belongs to joint Hindu family or separate property of the female?
(ii) Whether Section 14 of the Hindu Succession Act applies?
(iii) Whether Section 14 of the Hindu Succession Act bars or vests the partition of the joint family property in case, it is held by the female?
11. It is necessary to place on record that the suit schedule property is one item of garden land bearing Survey No.65, Bidanagere Village, Hebbur Hobli, Tumkur Taluk, measuring an extent of 13 acres 30 guntas, assessed at 19.25 paise bounded by:
East by : PWD Road West by : Land of Gangaiah Eraih and Chikkamma North by : Land of Chikkamma South by: Lands of Venkatappa, Doddayellappa and Lakkanna.
12. In respect of this property, plaintiff claims a share contending that the defendant No.2 Rangamma in whose name property or the sale of the schedule property was effected, because, she is the wife of 1st defendant-Gangaiah. The substance of the claim of the plaintiff is that, joint family existed. Propositus is one Mudligiriyappa, father of the plaintiff and defendant No.1. Wife of Mudligiriyappa is Sakamma. In the suit, Sakamma is defendant No.5. Gangaiah/1st defendant, M.Gangaiah/3rd defendant, Venkataramaiah/4th defendant, Ramaiah/6th defendant and Kariyanna/7th defendant are the off springs of Mudligiriyappa.
13. Rangamma, 2nd defendant is the wife of 1st defendant-Gangaiah. Ramaiah is 6th defendant. The plaintiff claims this property by virtue of his status and claim that the registered sale deed in respect of the suit schedule property was got made in the name of Rangamma, 2nd defendant on 13.6.1973. It is the further claim of the plaintiff that, when the suit schedule property was purchased, it was barren and it is the plaintiff who invested his labour and physical efforts to make the land fertile. The plaintiff and the defendants continued to enjoy the suit schedule property. Plaintiff, his father, and defendant Nos. 1,3,6 jointly raised loan from the Primary Land Development Bank, Tumkur, on 16.1.1974 by mortgaging the schedule property in order to improve the schedule property. The schedule property consisted of mango groves, coconut trees and other fruit yielding trees. As defendant No.1 was trying to alienate the property, plaintiff was compelled to initiate proceedings for partition.
14. On the other hand, 2nd defendant in whose name the sale deed of the schedule property was executed denies the claim and contention of the plaintiff regarding joint-ness of the family or it possessing suit schedule property and that all the members of the family having undivided interest.
15. The defendants stoutly denied of ascribing any quality of joint family status to the schedule property. According to them, 2nd defendant acquired the same with the financial assistance given to her during marriage by her parents. Further, the suit according to the defendants is frivolous and does not have any cause of action. It is the scheme of the defendant No.6 and the plaintiff to knock off the property of the 2nd defendant. It is also stated that there was no necessity for Mudligiriyappa to purchase the suit property in the name of 2nd defendant when his wife-Sakamma and sons are alive. Defendants also claim that the defendants purchased the land bearing survey No.65 to the extent of 11 acres from Ramachandraiah, Divakaraiah, Nagarajaiah and Srinivasaiah sons of Shanubogh Venkatappa under the registered Sale Deed on 13.6.1973 and she also purchased 01 acre 30 guntas of land in the same survey number from Govindaiah and his son Chandraiah. Thus, by narrating the acts of individuality in purchasing the property, the defendants reiterated their contentions.
16. Learned counsel Sri.S.K.Venkatareddy for appellant would submit that provision of Section 14 of the Hindu Succession Act, would come to the support of the defendants as the property held by 2nd defendant was in the nature of sole and exclusive ownership, wherein, others are not entitled. Here, it is necessary to mention Section 14 of the Hindu Succession Act, 1956, which is as under:
“14. Property of a female Hindu to be her absolute property.— 1. Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Explanation.—In this sub-section, “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.
2. Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.
17. In the circumstances of the case, Sub- Section (1) of Hindu Succession Act, 1956, provides for Acquisition whether holding or acquiring of the property by a female whether before or after the commencement of the Act shall be held by her as full owner.
18. It is necessary to make a mention that there was restriction for a women to hold the property absolutely earlier of passing of Hindu Succession Act. Now after the said Act came into force, Sub Sections (1) and (2) provide for certain properties wherein she would be entitled to hold it absolutely and without attaching limited estate with pre existed right. However, it is necessary to analyse, whether Section 14 of the Hindu Succession Act, applies to all kind of property held by female. It did not. Because, in the context and circumstances of the case, the bone of contention between the parties suggest that the suit schedule property was purchased by defendant No.2 Rangamma wife of defendant No.1- Gangaiah on 12.6.1974 as per Sale Deed produced as Ex.P1 and claims the same as self acquired property. It is her brother-in-law, plaintiff raises objections and demanded partition claiming that it is not the exclusive property of Rangamma and on the other hand, it belongs to entire joint Hindu family.
19. The difference of holding of property in this connection would be the property given or granted or allotted to a female Hindu may be questioned by Section 14 i.e. either regarding basing on property or the properties granted with limited grant. It is nobody’s case that Rangamma is incapable of holding properties.
20. It is the claim of the plaintiff that property held by Rangamma is a joint family property in respect of which, her branch of family are also entitled along with the plaintiff and the respective defendants. It is in this background, the property acquired by a female Hindu or granted to her with a limited right stands in different compartment from the properties acquired by her.
21. Insofar as the bone of contention between the parties, the nature of the property is in-dispute not regarding equality with each of the plaintiff and defendants. According to the plaintiff, it is not self acquired property of 2nd defendant. However, according to the defendants it is a separate property. In the circumstances, if it is held as joint family property as claimed by the plaintiff and defendant No.5, it is open for partition. If it is self acquired property of Rangamma, the doors of partition are closed.
22. The appellant cannot take advantage of Section 14 of the Hindu Succession Act, 1956 in the context and circumstances of the case.
23. In this connection, learned counsel for the plaintiff would submit that, two properties highlighted under Exs.P1 and P2 were mortgaged for the purpose of mobilizing the funds to buy the schedule property. Ex.P1 and Ex.P2 were executed respectively by Mudligiriyappa, deceased father of the plaintiff and 1st defendant and another property by Ganagiah, 1st defendant.
24. This stance is refuted by the appellant and the learned counsel would submit that an isolated act of purchase of property by Mudligiriyappa or Gangaiah cannot be deferred to meet the contentions that the entire property belongs to joint family. The point which, the learned counsel wanted to drive is that, mortgaging of property by deceased father or by any of the members of the family by ipso facto do not lace the frame as the joint family property. The schedule property was purchased in the name of 2nd defendant Rangamma and it is also stated the schedule property was also subjected to mortgage to Primary Land Development Bank, Tumkuru on 16.1.1974. As per Ex.P5 this mortgage is executed by plaintiff Venkatapa, 1st defendant Gangaiah, 2nd defendant Rangamma, 6th defendant Ramaiah sons of Mudligiriyappa. It is not necessary that every joint family invariably should possess joint family properties. Conversely, that is not the rule that when a property is in the name of particular member of the family by virtue of blood relationship becomes his own property.
25. There may be joint family property without belonging to them and at the same time, there may be joint family for the sake of blood relationship holding property by members in the capacity of separate and self acquired property.
26. Learned counsel Sri. S.K.Venkatareddy for appellant drew my attention to the evidence of PW1- Venkatappa, wherein, in the cross examination, it is elicited from him that Mudligiriyapa never had properties and there was no ancestral property. When that were to be the case, there is no necessity of executing Ex.P1, by Mudligiriyappa. The acid test of joint family with joint family properties is, the members need not be a residents under common roof or property to be held jointly by all the members.
27. It is a passion or fascination to buy property for joint family and it is privilege of the family either to get the documents registered in the name of the head of the family, or getting the documents registered in the name of any other members of his choice.
28. At the same time, in order to consider the property as joint family it may not be ancestral and at the end of the day, joint family members or coparceners property includes ancestral property and acquisition made by the joint family.
29. When such being the case, the handling activities of the joint family, more particularly, the management of the joint family property is concerned, Ex.P5-mortgage deed of the schedule property plays a predominant role and provide a yardstick to assess the nature of the family.
30. The contribution of other members of the family being required for mortgaging of the schedule property invariably goes to show that the mortgagee bank recognized the right or insisted for participation of all the members of the joint family. It is not as a witnesses, but, as members other than the defendant No.2 and they have signed as mortgagors under the said Mortgage Deed.
31. Here, it is necessary to have a cursory glance of Section 58 of the Transfer of property Act states the term ‘Mortgage’ as under:
“Mortgage” – A mortgage is the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt or the performance of an engagement which may give rise to a pecuniary liability.
32. ‘Mortgage’ is made by a person who has specific interest in the immovable property. That is one of the prime Rule of the Mortgage. But in the circumstances, the fact of joint family or holding of property by joint family cannot be proved with thread bear bifurcation. On the other hand, it is the intention of the parties, their animus in living, approach in handling the properties and accountability proves whether the property is joint family property or otherwise.
33. Another development that came up during the submissions is that, Exs.P1 and P2 are said to be the mortgage deeds and the properties mentioned therein are mortgaged by Mudligiriyappa and defendant No.1. Gangaiah.
34. Learned counsel for plaintiff placed reliance on the decision of the Hon’ble Supreme Court in the case of Shreya Vidyarthi Vs. Ashok Vidyarthi and others ( (2015) 16 Supreme Court cases 46), wherein the Head Notes A and B are as under:
“A. Family and Personal Laws – Hindu Law – Family Property, Succession and Inheritance – Karta/Manager – Who can be and Powers, Rights and Duties of – Hindu widow is not coparcener in undivided family of her husband – Therefore, she cannot act as Karta of that undivided family, however she can act as its manager – Position of Hindu widos remains unaltered even after amendment to Hindu Succession Act, 1956 in 2005 – Manager denotes role distinct from that of Karta – Where male adult died and there is minor coparcener, under such circumstances, joint family does not comes to end – Mother of minor coparcener as legal guardian of minor can act as manager – Words and Phrases – “Karta” and “Manager” – Not synonymous – Hindu Succession Act, 1956,. S.6 B. Family and Personal Laws – Hindu Law – Family Property, Succession and Inheritance – Joint Family Property/HUF Property vis-à-vis Self- acquired Property/Individual Income- Presumption/Burden of proof – Properties purchased out of insurance amount received on account of death of common ancestor – Property assumes character of joint family property – Further, after death of common ancestor family continued to be joint- Allotment of share to plaintiff, justified.”
In the case of Smt.Akkayamma and Another Vs. The State of Karnataka and others (2006 (4) KCCR 2520) wherein Head Note A is as under:
A. “HINDU SUCCESSION ACT, 1956 – Section 14 – KARNATAKA LAND REFORMS ACT, 1961 – Section 48-A – In order to attract provisions of Section 14 of the Hindu Succession Act, it must be established that the female Hindu had a right to the possession of the property in question and that she was in possession of such property, either actually or constructively.
If the female Hindu is merely in possession of the property in question without having any sort of right in it, she cannot be said to have possessed property in question within the meaning of Section 14 of the Hindu Succession Act. The expression used I ‘possessed by a female Hindu’ and not ‘ in the possession of the female Hindu’. The female must have right or interest akin to ownership with a right to possession.
In the present case, it was only Rangaiah, who was in cultivation of the land in question and not his daughter Akkayamma or his son Rangaswamaiah. Hence, held, the order of the Land Tribunal holding that it was Rangaiah only, who was entitled to grant of occupancy right, was correct and was unheld. Further held, Akkayamma never had any right to the possession of the land in question and hence, the argument that she became full owner of the land in question by virtue of Section 14 of the Act was not tenable and was rejected.”
He has also relied on the decision of the Hon’ble Supreme court in the case of K.V.Narayanaswami Iyer Vs. K.V.Ramakrishna Iyer and others (AIR 1965 Supreme Court 289), wherein, Para No.15 reads as under:
“The legal position is well settled that if in fact at the date of acquisition of a particular property the joint family had sufficient nucleus for acquiring it, the property in the name of any member of the joint family should be presumed to be acquired from out of family funds and so to form part of the joint family property, unless the contrary is shown. Vide Amritalal v. Surath Lal, AIR 1942 Cal 553 Appalaswami v. Suryanarayanamurthy, ILR (1948) mad 440:(AIR 1947 PC 189).”
35. Learned counsel for plaintiff would submit that the properties were mortgaged by said Mudligiriyappa and his son Gangaiah. However, the schedule property is only one item of property mentioned in the suit. In the circumstances, if those properties are mortgaged, the plaintiff had to offer accountability as to whether the right of litigation was subsisted or property was sold or disposed of or that go away from the joint family. In this case, no such account is given to the court. On questioning him repeatedly, learned counsel would submit that the plaintiff and the joint family have abandoned the properties and they were not redeemed. Thus, according to the plaintiff, this is the only property and he does not claim any rights over the properties covered under Exs.P1 and P2.
36. Thus, in the overall circumstances, the sum and substance of the case is that, the plaintiff has established his undivided rights over the schedule property and that the suit schedule property stands in the name of 2nd defendant was held by her but belonged to joint family, wherein the plaintiff is having definite interest as held by the learned trial Judge in O.S.No.95/1999 dated 4th March 2010 and confirmed by the learned first appellate Judge in R.A.No.85/2010 by dismissing the appeal. Hence, the substantial questions of law raised in this appeal are answered accordingly.
37. For the foregoing reasons, I find no infirmity or irregularity or lapses in the judgments of the courts below and they do not call for interference. Hence, the appeal is dismissed.
tsn* Sd/- JUDGE