IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 25TH DAY OF FEBRUARY, 2019 Before The Hon'ble Mr. Justice Ravi Malimath And The Hon'ble Mr. Justice B. M. Shyam Prasad Regular First Appeal No. 514 of 2014 Between:
1. KUMARI KESHWINI DAUGHTER OF S. MAHESH AGED ABOUT 23 YEARS.
2. KUMARI OJASHWI DAUGHTER OF S. MAHESH AGED ABOUT 22 YEARS.
BOTH ARE RESIDING AT NO.5 2ND CROSS, THAVAREKERE DIVISION NO. 35, BENGALURU PRESENTLY RESIDING AT CORPORATION NO. 17, 1ST MAIN 1ST CROSS, THAVAREKERE BENGALURU – 560 081.
(BY SRI. D HEMANTH KUMAR ) And:
1. SRI. S. MAHESH AGED ABOUT 49 YEARS SON OF LATE SHIVASHANKER ... APPELLANTS RESIDING AT NO.5 BM 243 HENNUR BANASWADI ROAD 2ND BLOCK BRBR LAYOUT BENGALURU.
SMT. NAGARATHNAMMA DEFENDANT NO.1 SINCE DEAD REPRESENTED BY HER LR RESPONDENT NO.1.
2. SRI. R. PARAMESHWARA AGED ABOUT 69 YEARS SON OF LATE RUDRAPPA RESIDING AT NO. 8 8TH CROSS VICTORIA LAYOUT BENGALURUR – 560 047.
... RESPONDENTS THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF CIVIL PROCEDURE CODE AGAINST THE ORDER DATED 08.01.2014 PASSED IN O.S.NO.6320 OF 2010 ON THE FILE OF THE XX ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU, ALLOWING I.A.NOS.IV AND VI U/O VII R.11(D) READ WITH SECTION 151 CPC.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, B.M. SHYAM PRASAD J., DELIVERED THE FOLLOWING:
JUDGMENT The appellants in O.S.No.6320 of 2010 on the file of the XX Additional City Civil and Sessions Judge, Bengaluru City (for short, ‘Trial Court’), are in this appeal impugning the order dated 08.01.2014. The Trial Court by this impugned order has allowed the applications – I. A. No. IV and I. A. No. VI - filed by the respondent No.2 and respondent No.1 (along with his deceased mother who was party before the Trial Court) under Order VII Rule11 (d) of the Code of Civil Procedure (for short, ‘CPC’) rejecting the appellants’ plaint.
2. The undisputed facts are that three immovable properties described in the plaint schedule (for short, ‘suit schedule properties’) are self-acquired properties of the appellants’ grandfather, who was engaged in business. He purchased these properties in the name of his wife – the deceased defendant No.1 before the Trial Court - under the sale deed dated 22.03.1975. The appellants’ grandfather died on 28.04.2001. On his demise, the appellants’ grandmother and respondent No.1 (appellants’ father) have executed sale deed for one of the suit schedule properties viz., schedule ‘A’ property in favour of respondent No.2 under the sale deed dated 20.02.2010 and they have also executed mortgage deed dated 23.03.2010 in favour of respondent No.2. The appellants’ grandmother died during the pendency of the suit on 14.03.2012.
3. The appellants filed the aforesaid suit in O.S.No.6320 of 2010 for partition asserting that schedule ‘A’ and schedule ‘B’ properties, as well as schedule ‘C’ property, are ancestral properties asserting that the appellants’ grandfather had purchased these properties in the name of their grandmother under the aforesaid sale deed in the year 1975; their grandmother did not have any independent income. On his demise, the properties devolved on to their grandmother and their father, respondent No.1, but these are ancestral properties. The appellants’ father viz., respondent No.1 is given to vices and he is a spendthrift. After the demise of their grandfather, in the panchayath, it was decided that the appellants and their mother could stay in a part of the schedule ‘B’ property and receive rents from the tenants in occupation of other tenements thereof, and as such, the appellants reside in a portion of the schedule ‘B’ property and receive rents from the tenants. In such panchayat, it was also decided that the appellants’ grandmother and respondent No.1 shall continue to reside in one of the tenements in schedule ‘A’ property and receive rents from other tenants in occupation of other tenements in the property and also from tenements in schedule ‘C’ property. The Respondent No.2, who is a close acquaintance of the family, taking undue advantage of the age of the appellants’ grandmother and the wayward ways of the respondent No.1 has obtained the impugned deeds. The appellants have share in these properties and they have not consented for transfers under these deeds. As such, the appellants are entitled for share and for declaration that the impugned deeds are invalid insofar as their respective shares.
4. The respondents filed their separate applications viz., I.A. No. IV and I.A. No. VI respectively for rejection of the plaint under Order VII Rule 11(d) of CPC contending that there was no cause of action for the suit and the suit would stand barred by law inasmuch as the appellants, in the face of admitted facts, cannot assert a right or share in the suit schedule properties. The respondents contended that according to the appellants, on the demise of their grandfather, the suit schedule properties, which were his self- acquired properties, devolved to their grandmother and son, respondent No.1. It is settled law that the self- acquired properties of male, on his demise, devolve on his class- I legal heirs in terms of Section 8 of the Hindu Succession Act, 1956 and in the hands of such Class – I legal heirs, the properties do not partake the nature of ancestral properties. As such, the appellants cannot assert a cause of action for partition or other reliefs asserting that these suit schedule properties are ancestral properties.
5. The Trial Court upon appreciation of the respective contentions, and placing reliance on the decision of this Court in Mrs. Mallika and Others vs. Mr.Chandrappa and Others1 has held that once it is admitted that the suit schedule properties are self- acquired properties of the deceased Shivashanker, the appellants’ grandfather, on his demise, the properties devolve under Section 8 of the Hindu Succession Act, 1956; if the properties devolve under Section 8 in favour 1 ILR 2007 KAR.P.3216 of class-I legal heirs, as in the present case, the legal heirs do not hold such property as absolute properties. As such, the appellants’ suit is without cause of action and barred by law.
6. The learned counsel for the appellants arguing in support of the appeal contended the Trial Court has failed to consider the appellants’ specific contention that the suit schedule properties were purchased by their grandfather in the name of their grandmother, and as such, these were joint family properties. If these circumstances are considered, it would be undeniable that the appellants would have share in these properties. Therefore, the Trial Court should not have rejected the plaint under Order VII Rule 11(d) of CPC.
7. However, the learned counsel for the appellants did not dispute that the appellants have built up their case on the foundational pleading that the suit schedule properties were purchased by their grandfather from out of his income in the name of his wife, appellants’ grandmother; importantly, as is obvious from the reading of the appeal papers, the appellants have not set up a case of joint family. In the light of such foundational pleading, and in the absence of a case of joint family property, it would only follow that the appellants’ grandfather held the suit schedule properties as his self-acquired properties. On his demise, succession to such properties would only be under Section 8 of the Hindu Succession Act, 1956 in favour of his class I legal heirs as contemplated thereunder. The appellants’ grandmother and the respondent No.1, being his class I legal heirs would thus indubitably succeed under Section 8 of the Hindu Succession Act, 1956.
8. In view of the said settled law that a person succeeding to the properties under Section 8 of the Hindu Succession Act, 1956 will hold such properties as his/her absolute property as against inheritance under Section 6 of the Hindu Succession Act, 1956, the Trial Court has rightly concluded that even on admitted facts, the appellants’ suit was liable to be rejected. In the aforesaid circumstances, this Court is of the considered opinion that the appellants have not made out any ground for interference by this Court. Accordingly, the appeal is dismissed.
SD/- SD/-
JUDGE JUDGE SA