IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF JULY 2019 BEFORE THE HON’BLE Mr. JUSTICE N.K.SUDHINDRARAO REGULAR SECOND APPEAL No.713 OF 2006 BETWEEN:
Smt.Shanthamma Dead, by his Legal representatives, a) Sri.Prabhakar @ Prabha, S/o.Srinivas, Aged about 36 years, R/at Chattenahalli, Devalapura Post, Dudda Hobli, Hassan Taluk, Hassan District.
b) Sri.Yogesh.S, S/o.Srinivas, Aged about 34 years, R/at Chattenahalli, Devalapura Post, Dudda Hobli, Hassan Taluk, Hassan District. ...Appellants (By Sri.K.N.Nitish, Advocate for Sri.K.V.Narasimhan, Advocate) AND:
1. Smt.Lakshmamma @ Manjamma Since dead by her Legal representatives, a) Sri.Thimmegowda, S/o.Nanjegowda, Kindipura Village, Kasaba Hobli, Hassan District-573 201.
b) Smt.Sharadamma, W/o.Devegowda, D/o.Nanjegowda, R/at Siddeshwaraswamy Nilaya, 9th Cross, Hemavathi Nagar, Hassan.
c) Smt.Leela, W/o.Jairam, D/o.Nanjegowda, R/at No.150, Vriksha Nilaya, Hunasikere Road, Hassan.
d) Smt.Sakamma, W/o.Ramegowda, D/o.Nanjegowda, G.Mailahalli, Dudda Hobli, Dyavalapura Post, Hassan District.
e) Smt.Jayalakshmi, W/o.Rangegowda, R/at D.R.A. Quarters, Near Chamundi Temple, Hassan.
Both are R/at No.109, 6th Main, 2nd Cross, 3rd Phase, J.P.Nagar, Bangalore – 560 078.
2. Smt.Ashwathama, W/o.Rajegowda, Aged about 68 years, r/of Kindipura Village, Kasaba Hobli, Hassan Taluk, Hassan District-573 201. …Respondents (By Sri.S.Thejeshwara, Advocate for R1(a), Sri.Sunilkumar.P.Bangari, Advocate for Sri.M.N.Madhusudhan, Advocate for R2; v/o Court order dated 29.11.2012; R1(E) service held sufficient;
R1(B-D) are served and unrepresented) This RSA is filed under Section 100 of CPC against the judgment and decree dated 15.12.2005 passed in R.A.No.259/2005 on the file of the Addl. S.J., and P.O, Fast Track-III, Hassan, partly allowing the appeal and confirming the judgment and decree dated 2.1.2004 passed in O.S.No.400/95 on the file of the Prl.C.J (Jr.Dn.) and JMFC, Hassan.
This appeal having been heard and coming on for Dictation, this day, the Court delivered the following:-
JUDGMENT This appeal is directed against the Judgment and Award dated 15.12.2005 passed by the learned Sessions Judge and Presiding Officer, Fast Track Court-III at Hassan, wherein R.A.No.259/2005 came to be allowed-in-part and the Judgment and Decree dated 02.01.2004 of the trial Court in O.S.No.400/1995 came to be confirmed in so far as declaration of title and injunction. Judgment relating to relief of partition and separate possession came to be set aside.
2. In order to avoid over-lapping and confusion, the parties are referred in accordance with their rankings as held by them before the Trial Court.
3. O.S.No.400/1995 came to be filed by the plaintiffs seeking declaration that they are the lawful owners of the suit scheduled property hence, they sought for permanent injunction, a decree of partition and separate possession of their half share over the suit scheduled property in the alternative and to declare that the orders of the Assistant Commissioner is void and not binding upon their right, title and interest over the suit properties.
4. Defendant resisted the claim of the plaintiffs and contended that the suit is not maintainable in law or on facts. She admitted the relationship between them but denied that the husbands of the plaintiffs’ were residing in the suit scheduled property as an ill atom son-in-law. She denied that the plaintiffs as he absolute owners and are in possession of the suit property. She contended that the properties are ancestral properties of her father-in-law Puttegowda and after his death, the properties were looked after by her mother-in-law as she was the guardian of her husband. The plaintiffs have got entered their names as legal heirs but the defendant has preferred an appeal before the Tahsildar, Hassan and has ordered to enter the name of the defendant along in the record of rights of the properties and the appeal preferred by the plaintiffs before the Assistant Commissioner came to be dismissed.
5. On the basis of the pleadings of the parties, the trial Court framed the following issues:-
(1) Whether the plaintiffs prove that the plaint schedule properties belonged to Puttegowda and his wife Dyavamma and after marriage of plaintiffs they continued to live with their parents along with their husband?
(2) Whether the plaintiffs prove that they became sole legal heirs of their parents and have acquired full ownership and possession of schedule properties and in possession of them?
(3) Whether the plaintiffs prove about obstructions caused by defendant to their peaceful possession and enjoyment of the schedule properties?
(4) Whether the plaintiffs are entitled for the relief of declaration as claimed by them?
(5) Are they entitled for the relief of permanent injunction?
(6) What order or decree?
ADDITIONAL ISSUES:
“In the alternative, Whether the plaintiffs prove that suit properties are their ancestral property and they got share in it?”
6. To substantiate the contentions taken up in the suit and to prove the above issues and the additional issues, the plaintiff No.1 was examined as PW 1 and examined 4 witnesses on their behalf as PWs.2 to 5 and got marked Exs.P.1 to 3 documents. On the other hand, the defendant was examined as DW.1 and Exs.D1 to 21 documents were marked for the defendant.
7. The suit came to be dismissed on 02.01.2004 by the learned Principal Civil Judge and JMFC Court-II, Hassan. The Judgment and the decree was questioned by the 1st plaintiff in regular appeal in R.A.No.259/2005 before the Additional Sessions Judge and Presiding Officer, Fast Track-III at Hassan. However, Plaintiff No.2 - Ashwathamma has not preferred appeal against the said Judgment and order.
8. Thus, it is the 1st plaintiff who challenged the Judgment and Decree passed by the trial Court in R.A.No.259/2005 and the said appeal came to be allowed- in-part on 15.12.2005, which is challenged before this Court in this Regular Second Appeal by the appellant/defendant. The genealogical tree is not disputed by the parties. It is as under:
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1. ±ÁAvÀªÀÄä (ªÀ 48) ªÀÄPÀ̽®è 2. ¸Á«vÀæªÀÄä (ªÀ 30) ªÀÄPÀ̽®è J°ègÀÄvÁÛgÉ UÉÆwÛ®è £À£Àß ¸ÀªÀÄPÀëªÀÄ ªÉÄîÌAqÀ ªÀA±ÀªÀÈPÀëªÀÅ £À£ÀßzÁVzÀÄÝ ¸ÀvÀåªÁVgÀÄvÀÛzÉ ±ÁAvÀªÀÄä 9. The eldest members are co-parceners of first degree. Puttegowda and Dyavamma are spouses and Manchamma, Ashwathamma and Hanumanthegowda are their children. The first two being the daughters and the third one Hanumanthegowda is the son. His wife is one Shanthamma. The suit schedule properties are situate at Mugalur village, Kasaba Hobli, Hassan taluk. The Plaintiffs No.1 and 2 are the sisters of said Hanumanthegowda who died issueless 18 years ago. Shanthamma-the defendant is the wife of the said Hanumanthegowda.
10. The properties originally belonged to Puttegowda. Thereafter, plaintiffs being the daughters and Dyavamma being the widow of Puttegowda and Hanumanthegowda being the son of Puttegowda, succeeded to the suit schedule properties. The plaintiffs claim that the defendant Shanthamma left the marital house after the death of her husband and settled in Hassan. She was never in possession of the schedule property at any point of time. Being the daughter-in-law of the family of Puttegowda, it is claimed by the plaintiff that defendant Shanthamma is not entitled for any share in the property. Such being the state of affairs, due to instigation by certain persons, she filed application before the revenue authorities for confirmation of khata of the suit schedule property in her favour and a wrong order came to be passed by the revenue authorities in favour of the said Shanthamma. Appeal was preferred by the plaintiffs against the said order before the Assistant Commissioner which came to be dismissed.
11. The reliefs sought by the plaintiffs are as under:
(a) The Plaintiffs pray that the Hon’ble Court be pleased to declare that they have become the lawful owners of the Schedule properties or on the alternative the Hon’ble Court be pleased to grant a decree for partition and possession of ½ share in the Suit Schedule Properties in favour of the Plaintiffs.
(b) To grant a decree against the Defendant for Permanent Injunction not to interfere with the peaceful and enjoyment of the Schedule properties by the Plaintiffs.
(c) To grant a decree for Permanent Injunction restraining the Defendant not to alienating or otherwise dispose off the Schedule properties in favour of others.
(d) To declare that the Orders of the Assistant Commissioner dated 08/09/1995 in R.A. 1794-95 on his file in void and not binding on the Plaintiffs as for as their right, title and interest of the Schedule properties.
(e) To grant such other reliefs as the Hon’ble Court deems fit to grant in the circumstances of the case.
Therefore, plaintiffs claimed that as the defendant Shanthamma made attempts to sell the property and that she has to be restrained.
12. The defendant Shanthamma filed her written statement and contented that the suit was not maintainable.
13. According to her, suit schedule properties are ancestral by nature and originally belonged to her father-in-law Puttegowda and after his death, it was inherited/succeeded by Puttegowda’s wife as a guardian for Hanumanthegowda.
14. The said Hanumanthegowda is none other than the husband of the defendant. The defendant also takes shelter under the order passed by the Assistant Commissioner in the appeal. Her claim over the schedule property is solidified by the order passed by the Assistant Commissioner wherein the transfer of katha of the schedule property was confirmed in her name.
15. It is under these circumstances, the matter went up for trial and the learned trial Judge recorded oral evidence of P.Ws.1, 2 and 5 on behalf of the plaintiff and D.W.1-Shanthi on behalf of the defendant, Exs.P.1 to P.3 were exhibited on behalf of the plaintiffs and Exs.D.1 to 18 on behalf of the defendant.
16. In his judgment, the learned trial Judge on 2nd January 2004, dismissed the suit. Being aggrieved of the same, the Plaintiff No.1 preferred appeal before the learned Additional Sessions Judge and Presiding Officer, Fast Track Court-III At Hassan. The learned First Appellate Judge, on 15th December 2005, allowed the appeal in part and confirmed the Judgment regarding declaration and injunction. Among the prayers, the portion of Judgment relating to partition was set aside.
17. Suit of the plaintiff relating to partition and separate possession stood decreed. Further, the share of the plaintiffs came to be defined as half and that was made available for partition. Under these circumstances, the appeal came to be preferred before this Court and it was admitted on 12.08.2009.
18. The substantial questions of law framed by this Court on 12.08.2009 are as under:
i) Whether the decree of the Lower Appellate Court granting half share in the suit schedule property to the plaintiffs is in accordance with the provisions of Section 8 of Karnataka Hindu Law Rights Act, 1933?
ii) Whether the Lower Appellate Court is justified in declaring the share of the 2nd plaintiff though she had not challenged the Judgment and Decree of the Trial Court dismissing the suit?
Additional substantial question framed on 08.03.2019 is as follows:
“Whether a person claiming to be a legatee under the Will is entitled to resist and succeed the suit for partition of the properties that were held by the testator – Hanumanthegowda who is dead and issueless?”
19. Learned counsel for the appellant would submit that after the death of Puttegowda, the family was lead by his son Hanumanthegowda who pre- deceased his mother Dyavamma. The rights of the defendant are not properly assessed and adjudicated in the Judgment and Decree passed by both the Courts. Learned counsel also would submit that the plaintiffs have no right over the schedule property as the schedule properly admittedly belonged to Puttegowda, father of plaintiffs and one Hanumanthegowda and the joint family existed very long back that too decades earlier to passing of Hindu Succession Act, 1956 and consisted of only two members, viz., Puttegowda and his son Hanumanthegowda. Learned counsel would further submit that upon the death of Puttegowda, the joint family was reduced to a sole surviving member in the form of Hanumanthegowda. It was further submitted, Hanumanthegowda, son of Puttegowda predeceased his mother and it is stated that he died during 1975. Upon his death, Shanthamma, the appellant before this Court and the sole defendant before the trial Court succeeded to the entire estate of the family.
20. At this stage, it is necessary to clarify that upon the death of Hanumanthegowda, who was the sole surviving coparcener (absolute owner) the defendants inherited all the properties as exclusive legal heir.
21. Learned counsel for the appellant also submits that the plaintiffs being the daughters of Puttegowda further, considering the existence of joint family and its disruption happened by virtue of the death of Puttegowda in the year 1944, the question of considering the share or partition for daughters more particularly, the married daughters would not arise and also so far as Dyavamma is concerned, she had only a limited right over the property, at the time of disruption of joint family.
22. Sri. Sunil Kumar P. Bangari, learned counsel appearing for the respondent No.2 – Ashwathamma would submit that absolutely there is no question of rightlessness for the plaintiff No.2, whom he is representing. It was submitted by learned counsel that plaintiff No.2 stands at par with plaintiff No.1 Lakshamma and brother Hanumanthegowda, who are no more. Thus it is strenuously submitted that, in case properties are divided and when it matters sharing, the plaintiff No.2 who stand at par is entitled for half share in the daughter’s property and nothing else.
23. Further submission of the learned counsel for the appellant – Shanthamma, W/o. Hanumanthegowda is that Shanthamma deserted the marital house after the death of her husband – Hanumanthegowda and abandoned her presence in the family and she was not in possession of any of the scheduled properties. It is also submitted that having terminated all and every relationship and interests in the joint family, Shanthamma is no more entitled for any share, whether undivided or separate one in the suit schedule property. Further it is submitted that by virtue of death of Puttegowda long back, the family was continued by Dyavamma W/o.Puttegowda and Hanumanthegowda. However, since the de-linking of Shanthamma and the death of Dyavamma in the year 1990, it is, as simple, that the property of a Hindu family be succeeded by heirs, which includes plaintiffs 1 and 2. It is necessary to make a mention that this joint family consisted two male members being father and son viz., Puttegowda and Hanumathegowda and the existence of joint family is stated to be of the year even earlier to 1944, which are the suit schedule properties, are admitted to be under the ownership and possession of Puttegowda.
24. At the same time, the concept of joint family consisting of Puttegowda and Hanumanthegowda is not disputed and upon the death of Puttegowda the devolution of property is by survivorship. Devolution of property after the death of Puttegowda was further more serious after the death of Hanumanthegowda became disputed.
25. Even in this connection Sri Nitish, learned counsel for the appellant would submit that the year of death of Puttegowda is not disputed and would submit that since Puttegowda died during the year 1944 the provisions of the Hindu Succession Act, 1956, has no application.
26. Further learned counsel would rely on Section 4 of Hindu Law, Women’s Rights Act, 1933 it provides for order of succession in the matter relating to inheritance of properties. It is necessary to make a mention of the same, which reads as under :-
“4. Order of succession.- (1) The succession to a Hindu male dying intestate shall, in the first place, vest in the members of the family of the propositus mentioned below, and in the following order.- … (i) the male issue to the third generation;
(ii) the widow;
(iii) daughters;
(iv) daughters’ sons;
(v) the mother;
(vi) the father;
(vii) widows of predeceased sons;
(viii) sons’ daughters;
(ix) daughters’ daughters;
(x) brothers of the whole blood;
(xi) brothers of the half blood;
(xii) sons’ sons’ daughters, sons daughters’ sons, sons’ daughters’ daughters, daughters’ sons’ sons, daughters’ sons’ daughters, dsughters’ daughters’ sons, and daughters’ daughters’ daughters;
(xiii) widows of predeceased grandsons and great-grandsons.
(2) On failure of the family of the propositus, the succession shall pass to the family of the father of the propositus mentioned below, and in the following order.-
(i) brothers’ male issue to the second generation;
(ii) sisters;
(iii) half sisters;
(iv) sisters’ sons;
(v) half sisters’ sons;
(vi) the father’s mother;
(vii) the father’s father;
(viii) step-mothers;
(ix) brothers’ widows;
(x) brothers’ daughters;
(xi) sisters’ daughters’ (xii) father’s brothers of the whole blood’ (xiii) father’s brothers of the half blood;
(xiv) brothers’ sons’ daughters, brothers’ daughters’ sons, brothers’ daughters’ daughters, sisters’ sons’ sons, sisters’ sons’ daughters, sisters’ daughters’ sons, and sisters’ daughters’ daughters;
(xv) widows of brothers’ male issue to the second generation.
(3) On failure of the family of the father of the father of the propositus, the succession shall pass to the family of the paternal grandfather, and next thereafter to the family of the paternal great-grandfather, the members of each family ranking among themselves in the same relative order as the members corresponding to them in the family of the father.
(4) On failure of the families of paternal ancestors to the third degree as above, the succession shall pass to the maternal ancestors to the third degree and their respective families, one after the other, and under the same rules mutatis mutandis as to relative order within each such family as are applicable to the families of the paternal ancestors.
(5) The members (where there are more than one) or each of the groups indicated above by Roman numerals and of the groups corresponding to them under sub- sections (3) and (4) shall among themselves, take simultaneously and in equal shares (per capita), provided that the male issue of the propositus shall take according to stock (per stripes).
(6) Every reference to the son of a female relative in this section shall be read as excluding a son adopted after the death of such female relative.”
27. Insofar as the Act of 1933 is concerned, it contemplates that a person, who is a Hindu by religion in any of its form and when the matter of succession of a Hindu, more particularly, when the heirs or successors included a family property, it is necessary the succession of the property is not to all, but to those who are mentioned in the said provision of the said Act. Further, for the sake of comparative study the Schedule under the Hindu Succession Act, 1956 and to various legal heirs are worth to mention, which is as follows:
“THE SCHEDULE HEIRS IN CLASS I AND CLASS II CLASS I Son; daughter; widow; mother; son of a pre-deceased son; daughter of a pre- deceased son; son of a pre-deceased daughter; daughter of a pre-deceased daughter; widow of a pre-deceased son; son of a pre-deceased son of a pre- deceased son; daughter of a pre-deceased son of a pre-deceased son; widow of a pre- deceased son of a pre-deceased son; [son of a pre-deceased daughter of a pre-
deceased daughter; daughter of a pre- deceased daughter of a pre-deceased daughter; daughter of a pre-deceased son of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased son] Class II I. Father.
II. (1) Son’s dauther’s son, (2) son’s daughter’s daughter, (3) brother, (4) sister.
III. (1) Daughter’s son’s son, (2) daughter’s son’s daughter, (3) daughter’s daughter’s son (4) daughter’s daughter’s daughter.
IV. (1) Brother’s son, (2) Sister’s son, (3) brother’s daughter, (4) sister’s daughter.
V. Father’s father; father’s mother.
VI. Father’s widow; brother’s widow.
VII. Father’s borhter; father’s sister.
VIII. Mother’s father; mother’s mother.
IX. Mother’s brother; mother;s sister.”
There cannot be succession under the Act of 1956, on the one hand, and the uncodified Hindu Law on the other.
28. By virtue of the Act of 1933, the succession is stated in the order, wherein the first entry eliminates the rest. In the absence of first designated relative in the first entry. The second entry relative would be entitled to the estate. In this connection the joint family property is as it existed as on 1944, when Puttegowda died, the relatives who are alive are as mentioned of the first degree, are the wife – Dyvamma, Son – Hanumanthegowda, unmarried 1st daughter – Lakshmamma and unmarried 2nd daughter – Ashwathamma.
29. Among the above said persons the applicable provisions as per Section 4 of the Karnataka Hindu Law, Women’s Right Act, 1933 i.e., male issue, who fall within the 3rd degree is Hanumanthegowda being natural son of Puttegowda. He gets vested rights over the property as the property devolving upon a sole survivorship coparcener gets transformed in nature by being the self acquired property of such sole survivorship coparcener.
30. Another development in the case would be that the property devolved upon Hanumanthegowda, as there could not have been a joint family among ladies families or between a male and a female. The only male member was Hanumanthegowda. Thus he has the last laugh.
31. Another important development in the case is death of Hanumanthegowda, the son of Puttegowda and Dyvamma. He is reported and admitted to be dead during the year 1975.
32. The significant aspect that is to be taken into consideration is after the Hindu Succession Act 1956, coming into force, it provides for intestate succession of the properties of both male and female. It is in this connection, Sections 8 and 15 of the Act are worth to be mentioned here :-
“8. General rules of succession in the case of males – The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter – (a) firstly, upon the heirs, being the relatives specified in class I of the Schedule;
(b) secondly, if there is no heir of class I, then upon the heirs, being the relatives specified in class II of the Schedule;
(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and (d) lastly, if there is no agnate, then upon the cognates of the deceased.
9. ……XXXX……….
10. ……XXXX……….
11. ……XXXX……….
12. ……XXXX……….
13. ……XXXX……….
14. ……XXXX……….
15. General rules of succession in the case of female Hindus – (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in Section 16,-
(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and (e) lastly, upon the heirs of the mother.
(2) Notwithstanding anything contained in sub-section (1), -
(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father; and (b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section(1) in the order specified therein, but upon the heirs of the husband.”
and it is in adherence to Schedule I of the Act of 1956. Under these circumstances, when Hanumanthegowda died, the survivors were mother – Dyavamma and sisters Lakshmamma and Ashwathamma, regard being had to the fact that Hanumanthegowda died issueless.
33. Further the Act applicable for succession to the estate of Hindu male on his death are to be inconsonance with the provisions of Hindu Succession Act, 1956.
34. In compliance of the provisions of the said Act among the survivorships left behind by Hanumanthegowda are one Dyavamma –mother, Respondent No.1 – Lakshmamma, Sister, Respondent No.2 – Ashwathamma, Sister. Class I heirs in the schedule to the Hindu Succession Act, 1956 is as under :-
THE SCHEDULE Heirs in Class I and Class II Class I Son; daughter; widow; mother; son of a predeceased son; daughter of a predeceased son; son of a predeceased daughter; daughter of a pre-deceased daughter; widow of a predeceased son; son of a predeceased son of a predeceased son; daughter of a predeceased son of a predeceased son; widow of a predeceased son of a predeceased son [ son of a pre- deceased daughter of a pre-deceased daughter; daughter of a pre-deceased daughter of a pre-deceased daughter; daughter of a pre-deceased son of a pre- deceased daughter; daughter of a pre- deceased daughter of a pre-deceased son].
Class II I. Father.
II. (1) Son’s daughter’s son, (2) son’s daughter’s daughter, (3) brother, (4) sister.
III. (1) Daughter’s son, (2) daughter’s son’s daughter, (3) daughter’s daughter’s son, (4) daughter’s daughter’s daughter.
IV. (1) Brother’s son, (2) sister’s son, (3) brother’s daughter, (4) sister’s daughter.
V. Father’s father; father’s mother.
VI. Father’s widow; brother’s widow.
VII. Father’s brother; father’s sister.
VIII. Mother’s Father; mother’s mother.
IX. Mother’s brother; mother’s sister. Explanation – In this Schedule references to a brother or sister do not include references to a brother or sister by uterine blood.”
35. The relatives among the Class I heirs insofar as the present case, who inherit simultaneously are respondent No.1 – Widow Shanthamma, respondent No.2 – the Mother Dyavamma and the eliminated relatives were Lakshmamma and Ashwathamma (plaintiffs) being the sisters of Hanumanthegowda, who fall in Entry No.2 of Class II heirs in schedule to Hindu Succession Act, 1956. Such being the case, it is necessary to point out that Dyavamma is the mother of Hanumanthegowda.
36. Thus, the inheritance of the property invariably in favour of the mother – Dyavamma and Shanthamma would be in two equal proportion. Further Dyavamma, mother of Hanumanthegowda, Lakshmamma and Ashwathamma died in the year 1990.
37. The rules of succession according to Hindu Succession Act, 1956, would be applicable to succession to the estate of a female, who dies intestate, which is governed by Section 15 of the Act as stated above. It is in this connection learned counsel for the plaintiff would submit that the share of Dyvamma, get succeeded by her heirs from maternal side.
38. However, learned counsel for the defendant in this connection would submit that under Section 15 of the Hindu Succession Act, 1956, the share of Shantamma goes to the co-heir relatives, who are legal heirs from the side of her husband and in the circumstances, it is only the plaintiffs 1 and 2. In this connection, it is necessary to point out there is also another aspect that is grouped in the form of a Will said to have been executed by the said Shanthamma in favour of the appellant No.1(a) and 1(b) – Prabhakar.
39. Sri. Sunil Kumar P. Bangari, learned counsel for respondent No.2 would submit that as the property was vested in the name of Shanthamma, which was inherited from her husband in terms of Sections 8 and 15 of the Hindu Marriage Act, 1956, which came to be accepted and the reasons are already assigned, it is necessary to analyse the subsequent development of the claim of appellants 1 (1) and 1(b). The said persons Prabakar and Yogesh contended that they are the legatees under the Will executed by Shanthamma in respect of the schedule property forming the subject matter of the case. The date of death of appellant-Shanthamma took place on 30.12.2016. During the proceedings before the Court in the present regular second appeal the application was filed by the said appellant Nos.1(a and b) claiming that they are the legatees, who have bequeathed the schedule property by its erstwhile owner Smt. Shanthamma through the Will dated 21.12.1995. The appellant Nos.1(a) and (b) were allowed to come on record by this Court vide order dated 19.06.2017. In the circumstances, the domain of this Court is to assign answers to the substantial questions of law and granting of shares of Shanthamma to the appellant Nos.1(a) and (b), who claim as legatees or allowing the share of Shanthamma to be inherited by plaintiff Nos.1 and 2. It is to be noted that the scope of the suit is partition and appellant Nos.1(a) and (b) have come on record to represent Shanthamma, who is said to be maternal aunt of the said appellant. Insofar as the order dated 19.06.2017, allowing the appellants to come on record, the appellants 1(a) and 1(b) were permitted to come on record as legal representatives. There is vast difference between the legal representatives and legal heir. Thus the point that arises for consideration before this Court is entitlement of share of Shanthamma and if that is to be succeeded that is left open for nature of succession whether testamentary or intestate. Thus the scope of the succession comes through the shares of property as it devolves between the parties stands as under :-
Puttegowda died in the year 1944 by virtue of the law being enforced in the form of Women’s rights, the entire estate was succeeded by Hanumanthegowda and also he becomes sole survivorship – coparcener.
40. Hanumanthegowda died during the year 1975 wherein his estate devolved as per schedule I to Hindu Succession Act, 1956, between Dyavamma – the mother and Shanthamma – the widow. (50% in equal proportion). Further Dyavamma died in the year 1990. Thus half share was already vested with Shanthamma upon the death of her husband. During the year 1990 Dyavamma died and her share of property is to be inherited again by Class I heirs, who are plaintiff No.1 – Lakshmamma (Late) Ashwathamma and widowed daughter-in-law – Shanthamma. The share of Shanthamma would be half share from her husband and 1/3rd share of the share of Dyavamma. Insofar as rights of legal heirs of appellant Nos.1(a) and 1(b), their partition has to be considered for representing the estate of Shanthamma as was claimed as natural legal heirs, but not as legatees. Regard being had to the fact that the Will is said to be established as per law, moreover, the partition being preliminary decree proceedings the shares of each party entitled for partition are being demarcated and insofar as the entitlement to the share of Shanthamma to be adjudicated in final decree proceedings by the trial Court subject to the validity and enforcement of the Will as to competency and the validity of the executant - the testatrix 41. Thus in the light of the above discussion and reasons assigned, this Court is of the opinion, that both the Trial Court and the First Appellate Court erred in the matter. The trial Court erred in dismissing the suit in O.S.No.400/1995 and the Appellate Court in calculating the shares in two equal proportion. The judgment and decree passed by the First Appellate Court is to be set aside in its present form and the same is to be modified. Hence the substantial questions of law and additional substantial questions of law are answered accordingly.
42. For the foregoing reasons, the appeal is partly allowed. The judgment and decree dated 15.12.2005 passed in R.A.No.259/2005 is set aside.
The appellants would be entitled to 1/6th share each and the defendant would be entitled to 4/6th share in the property in question.
The entitlement to the share of legatee – appellants would be subject to enquiry as stated above.
Sd/- JUDGE BNV/ NG*