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Smt Seetha S Shetty Vs. Mr B Vijayadas Adyanthaya - Court Judgment

LegalCrystal Citation
CourtKarnataka High Court
Decided On
Case NumberRSA 2131/2016
Judge
AppellantSmt Seetha S Shetty
RespondentMr B Vijayadas Adyanthaya
Excerpt:
.....and39years, respectively, all are r/at bajpe guttu house, p.o.bajpe-574142, mangalore. aged about39years aged about45years, 64. smt. mangala hegde65 smt. manjula66 master. nihal67 master harshal hegde aged about21years, children of late ramayya naik, aged about16years, minor by guardian mother mangala hegde, all are r/at koornadu guttu house, koornadu village and post-574153, via mudipu, bantwal taluk. 9 68. the special land acquisition officer, kiadb, bykampady mangalore-575011.69. mrs. amitha rai70 mrs. pramitha rai aged about59years w/o late b.praveen rai aged about34years d/o late b.praveen rai both are residing at essel house, bejai new road, bejai, mangalore-575004. respondents (by sri m.vishwajith rai, adv. for r1 to r6, r10 to r15, r17 to r27 & r38.) this appeal is filed under.....
Judgment:

1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE29H DAY OF JANUARY2020BEFORE THE HONBLE MR.JUSTICE N.S.SANJAY GOWDA R.S.A.NO.2131/2016BETWEEN :

S/O LATE MEENAKSHI ADYANTHAYA, HINDU, AGED ABOUT79YEARS, R/AT KAPU-574 106, UDUPI TALUK. SMT. SEETHA S.SHETTY, AGED ABOUT69YEARS, W/O LATE SADANANDA S.SHETTY, RESIDING AT BAJPE GUTTU HOUSE, BAJPE, MANGALORE-575 014. APPELLANT (BY SRI. S.VITTAL SHETTY , ADVOCATE) AND:

1. MR.B.VIJAYADAS ADYANTHAYA, 2.

3. SHRI B. NAVEENDAS ADYANTHAYA, S/O LATE MEENAKSHI ADYANTHAYA, HINDU, AGED ABOUT71YEARS, R/AT NEAR STATE BANK OF INDIA, AJJARAKADU, UDUPI-576 101. SHRI B.VINAYADAS ADYANTHAYA, S/O LATE MEENAKSHI ADYANTHAYA, HINDU, AGED ABOUT77YEARS, R/AT NEAR STATE BANK OF INDIA, AJJARAKADU, UDUPI-576 101. 2 SMT. SHAKUNTHALA SHETTY, W/O LATE KITTANNA SHETTY, AGED ABOUT84YEARS, R/AT ASHRAYA, JODUKATTE, UDUPI-576 101. SHRI. B.BHAGAVANDAS ADYANTHAYA, S/O LATE MEENAKSHI ADYANTHAYA, HINDU, AGED ABOUT69YEARS, R/AT ASHRAYA, JODUKATTE, UDUPI-576 101. SHRI. KAUSHIK SHETTY, SMT. SARAYU SHETTY, 4.

5. 6.

7. 8.

9.

10. SHRI SHARAN SHETTY, 11. SMT.PUSHPA SHENAVA, 12. SMT. SROJINI N.HEGDE, KUM. RISHIKA SHETTY, WIFE AND CHILDREN OF VIVEK SHETTY, HINDUS, AGED ABOUT5129 & 25 YEARS, RESPECTIVELY, ALL ARE R/AT, PUSHPAK, KRISHNAPURA CROSS ROAD, SURATHKAL-575014. MANGALORE SHRI, CHETHAN SHETTY, CHILDREN OF LATE VATSALA, HINDUS, AGED51& 49 YEARS RESPECTIVELY, R/AT PANCHAVATI, KANKANADY, KALPANE ROAD, MANGALORE-575 002. W/O LATE BHASKER SHENAVA, HINDU, AGED ABOUT70YEARS, R/AT PUSHPAK, KRISHNAPURA CROSS ROAD, SURATHKAL-575 014. MANGALORE. D/O LATE NAGAMMA SHEDTHI, HINDU, AGED ABOUT87YEARS, R/A ASHRAYA, JODUKATTE, UDUPI-576 101. 3 D/O LATE PADMAVATHI SHEDTHI, D/O LATE NAGAMMA SHEDTHI, HINDU, AGED ABOUT84YEARS, R.AT AHRAYA, JODUKATTE, UDUPI-576 101.

13. SMT. VARIJA R.HEGDE, 14. SMT. HEMAVATHI SHETTY, 15. SHRI. CHITHARANJAN SHETTY, 16. SMT. SHASHIKALA S.SHETTY, 17. MISS PREETHI SHETTY, 18. VISHWAS, WIFE AND CHILDREN OF S/O HEMAVATHI SHETTY, HINDUS, AGED ABOUT81& 55 YEARS, RESPECTIVELY, BOTH ARE RESIDING AT BAJPE GUTTU HOUSE, BAJPE POST-574 142. MANGALORE. SANTHOSH KUMAR SHETTY, HINDUS, AGED ABOUT56 29 & 24 YEARS, RESPECTIVELY, ALL ARE RESIDING AT YENMOORU KATTA HOUSE, YEDAMANGALA POST-574 221. SULLIA TALUK.

19. SHRI. K.RADHAKRISHNA RAI, S/O LATE K. LAXMINARAYANA RAI, HINDU, AGED ABOUT53YEARS, RESIDING AT YENMOORU KATTA HOUSE, YEDAMANGALA POST-574 221. SULLIA TALUK.

20. SMT. SHYAMALA D.SHETTY, 21. KUMARI. DISHA, 4 WIFE AND CHILDREN OF DIVAKAR SHETTY, HINDUS, AGED ABOUT51 19 & 24 YEARS, RESPECTIVELY, ALL ARE RESIDING AT PADMA, N.G.O COLONY, 6TH CROSS76BADAGUBETTU, BAILOOR, UDUPI-574 102. WIFE AND SON OF LATE B.CHENNAYYA BHANDARY, HINDUS, AGED ABOUT69& 48 YEARS, RESPECTIVELY, BOTH ARE RESIDING AT BAJPE, GUTTU HOUSE, P.O BAJPE-574 142. MANGALORE.

22. MASTER. SUHAS, 23. SMT. UMAVATHI C.BHANDARY, 24. MR. JEEVANANDAS BHANDARY, 25. SMT. RANJANI S.BHANDARY, 26. MR. B.DAYAKARA BHANDARY, 27. SMT. CHANCHALA R. NAIK.

28. GANESH NAIK, 29. MR. SOMANATH NAIK, S/O LATE KRISHAN BHANDARY, HINDU, AGED ABOUT72YEARS, R/AT GANESH NILAYA, KATEEL-574 148. MANGALORE. W/O LATE B.SUDHAKAR BHANDARY, HINDU, AGED ABOUT69YEARS, R/AT601 6TH FLOOR, HIGH GROOVE APARTMENTS, BEJAI CHURCH ROAD, BEJAI, MANGALORE-575 004. WIFE AND CHILDREN OF LATE RAMAYYA NAIK, HINDUS, AGED ABOUT70 47, 43 YEARS, 5 RESPECTIVELY ALL ARE RESIDING AT KOORNADU, GUTTU HOUSE, KOORNADU VILLAGE AND POST-574 153. VIA MUDIPU, BANTWAL TALUK.

30. SHRI. RAMAKANTH SHETTY, 31. SMT. LAXMI HEGDE, 32 SMT. BABY, WIFE AND CHILDREN OF LATE SADANANDA S.SHETTY, HINDUS, MAJORS, R/AT BAJPE GUTTU HOUSE, BAJPE-574 142. MANGALORE.

33. SHRI. VIKRAM SHETTY, S/O B. SHAKUNTHALA K.SHETTY, HINDU, AGED ABOUT51YEARS, R/AT BAJPE GUTTU HOUSE, BAJPE POST-574 142. MANGALORE.

34. SMT. SUJATHA ADAPA, 35. SHRI BALAKRISHAN SHENAVA, 36. SHRI. PRATHAP, 37. SMT. SUNILA, 38. SHRI RAVINDRA, 39. SHRI. SHODHAN, 40. SHRI. SURENDRA, 41. SHRI. HARINDRA, 6 RESPONDENTS NO.34 TO41ARE WIFE AND CHILDREN OF LATE PADMANABHA SHENAVA, HINDUS, MAJORS, ALL ARE RESIDING AT; DEVASYA HOUSE, KANDAVARA, KAIKAMBA-574151; MANGALORE. D/O SUSHEEL N.HEGDE42 SMT. KAMINI HEGDE43 SHRI. RAMOLA HEGDE44 SHRI. SHARINA HEGDE NO.43 & 44 ARE CHILDREN OF KAMINI HEGDE.

45. NALINI46 RESHMA WIFE AND DAUGHTER OF LATE KIRAN HEGDE, HINDUS, AGED ABOUT7439,29,67 & 34 YEARS RESPECTIVELY, ALL ARE R/AT BAJPE GUTTU HOUSE, BAJPE-574142, MANGALORE. D/O JAYARAMA SHENAVA, HINDU, AGED ABOUT44YEARS, R/AT RAI BANGLA KOMBETU, PUTTUR-574201.

47. SMT. PRAFULLA SHETTY, 48. SMT. B.MALLIKA S.BALLAL, 49. MR. B.KISHAN BALLAL D/O SAROJINI N.HEGDE750. MR. B.RENUKA BALLAL NO.49 & 50 ARE CHILDREN OF B.MALLIKA S.BALLAL, HINDUS, AGED ABOUT64 35 & 34 YEARS RESPECTIVELY, ALL ARE R/AT ASHRAYA, JODUKATTE, UDUPI-576101. D/O SAROJINI N.HEGDE51 B.SUREKHA RAI52 MISS. PALLAVI RAI53 ROSHANI RAI54 MR. TAJ SHETTY, NO.52,53 AND54ARE CHILDREN OF SMT. B.SUREKHA RAI, HINDUS, AGED ABOUT6139,47 & 34 YEARS RESPECTIVELY, ALL ARE RESIDING AT ASHRAYA JODUKATTE, UDUPI-576101.

55. SMT. NAYA R.SHETTY D/O VARIJA R. HEGDE56 SHRI JAYASHANKER SHETTY57 SHRI NEELKANT SHETTY58 SMT. SUKALATHA R.SHETTY NO.56 AND57ARE CHILDREN OF NAYA R.SHETTY, HINDUS, AGED ABOUT6431 & 28 YEARS, RESPECTIVELY, ALL ARE RESIDING AT ASHRAYA JODUKATTE, UDUPI-576101. 8 WIFE AND CHILDREN OF LATE RAVISHANKER SHETTY, HINDUS, AGED ABOUT5423 AND19YEARS, RESPECTIVELY, ALL ARE R/AT BAJPE GUTTU HOUSE, BAJPE-574142, MANGALORE.

59. MR. RAHUL60 MR. ROHIT61 SHRI KRISHNAPRASAD BHANDARY62 SHRI HARIPRASAD BHANDARY63 SMT. VANISHREE CHILDREN OF LATE B.CHINNAYYA BHANDARY, HINDUS, AGED ABOUT4441 AND39YEARS, RESPECTIVELY, ALL ARE R/AT BAJPE GUTTU HOUSE, P.O.BAJPE-574142, MANGALORE. AGED ABOUT39YEARS AGED ABOUT45YEARS, 64. SMT. MANGALA HEGDE65 SMT. MANJULA66 MASTER. NIHAL67 MASTER HARSHAL HEGDE AGED ABOUT21YEARS, CHILDREN OF LATE RAMAYYA NAIK, AGED ABOUT16YEARS, MINOR BY GUARDIAN MOTHER MANGALA HEGDE, ALL ARE R/AT KOORNADU GUTTU HOUSE, KOORNADU VILLAGE AND POST-574153, VIA MUDIPU, BANTWAL TALUK. 9 68. THE SPECIAL LAND ACQUISITION OFFICER, KIADB, BYKAMPADY MANGALORE-575011.

69. MRS. AMITHA RAI70 MRS. PRAMITHA RAI AGED ABOUT59YEARS W/O LATE B.PRAVEEN RAI AGED ABOUT34YEARS D/O LATE B.PRAVEEN RAI BOTH ARE RESIDING AT ESSEL HOUSE, BEJAI NEW ROAD, BEJAI, MANGALORE-575004. RESPONDENTS (BY SRI M.VISHWAJITH RAI, ADV. FOR R1 TO R6, R10 TO R15, R17 TO R27 & R38.) THIS APPEAL IS FILED UNDER SECTION100OF THE CPC., AGAINST THE JUDGMENT AND DECREE DATED:29.09.2016 PASSED IN RA.NO.67/2014 ON THE FILE OF THE IV ADDL. DISTRICT AND SESSIONS JUDGE, D.K.MANGALURU., DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED:

10. 03.2014 PASSED IN OS. No.117/2007 ON THE FILE OF THE II ADDL. SENIOR CIVIL JUDGE, MANGALORE, D.K. THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

10. JUDGMENT The 1st defendant, being aggrieved by the decree of possession granted to the 29 plaintiffs, is in appeal.

2. The undisputed facts leading to filing of this second appeal are as follows:

2. 1 The Kavaru (branch of family) of one Venkamma and her children belonging to Bajpe Guttu family effected a partition of the family properties under a registered partition deed dated 05.01.1953. 2.2 Under the said partition, properties of Bajpe Guttu family were divided amongst the members of the kavaru as per the provisions of Madras Aliyasantana Act, 1949 (hereinafter referred to as the 1949 Act). 2.3 By virtue of the partition, Venkammas sons namely Narayana Shetty, Ramanna Shetty and Subbayya Shetty, being nissanthathi kavarus, were granted a life interest in different properties. 11 2.4 Ramanna Shetty was granted life interest in respect of item No.3 of the schedule to said partition deed. 2.5 Ramanna Shetty passed away on 01.02.1977, by which time, the Hindu Succession Act, 1956 (hereinafter referred to as the 1956 Act) had come into force.

3. On the death of Ramanna Shetty in 1977, his sister Nagamma Shedthis daughter Meenakshi Shedthi and the other sister Padmavathi Shedthi, claiming to be Yejamanthis, filed a suit in O.S.No.129/1977 against Sadananda Shetty, the son of Ramanna Shetty, seeking for possession.

4. O.S.No.129/1977 was, however, dismissed on the ground that all the legal heirs were not made parties and an appeal filed against the said suit was also dismissed for non prosecution.

5. Thereafter, the plaintiffs filed the suit for possession against the legal heirs of Ramanna Shetty, i.e., his son Sadanand Shettys wife. In other words, the suit was filed against the daughter-in-law and grandchildren of Ramanna Shetty. 12 6. The suit was filed on the premise that they were the nearest santathi kavaru and on the death of Ramanna Shetty, his life interest created under the partition deed dated 05.01.1953 had come to an end and as per the terms of the partition deed and the provisions of the 1949 Act, the property would stand reverted to them.

7. In the interregnum, Ramanna Shettys son, who was the husband of the 1st defendant, had filed an application seeking for conferment of occupancy rights on the ground that he was a tenant of the suit property. However, the said application had been rejected by the Land Tribunal. Thus, the defendants husband was laying a claim on the suit property, not as the legal heir of Ramanna Shetty, but as the tenant of Ramanna Shetty.

8. This suit was contested by the defendants. The defendants admitted the execution of the partition dated 05.01.1953 and the life interest created in favour of Ramanna Shetty. They, however, contended that on the enactment of the 1956 Act, the life interest created in favour of Ramanna 13 Shetty would not devolve under the 1949 Act and revert back to the kutumba, but would devolve under the 1956 Act to Sadananda Shetty, the only son of Ramanna Shetty i.e., the husband of defendant No.1 and father of defendants 2 to 4.

9. They stated that Sadananda Shetty, by virtue of succeeding to the property as the sole legal heir, had executed a Will dated 11.11.1999 in favour of defendants 1 and 2 and by virtue of this Will, they had become the absolute owners of the property on the death of Sadananda Shetty on 17.02.2001.

10. They also took up the plea that the suit was hit by the principles of res judicata and that the suit was barred by limitation.

11. After a full fledged trial, the Trial Court proceeded to decree the suit by holding that on the death of Ramanna Shetty in 1977, the life interest created in his favour had come to an end and the property would stand reverted to the nearest santhathi kavaru as per the terms of the partition deed and also by the provisions of the 1949 Act. 14 12. The Trial Court also held that the suit was not hit by the principles of res judicata as the earlier suit had been dismissed on the ground that all the legal heirs had not been made parties in the said suit, whereas in the present suit, all the legal heirs of the respective santhathi kavaru had been made parties and they were entitled to seek for possession under the partition deed dated 05.01.1953 and also under the provisions of the 1949 Act.

13. This decree for possession was confirmed by the Appellate Court.

14. Hence, this second appeal.

15. Learned counsel for the appellant contended for the following reasons that the decree for possession could not have been granted: i) On the enactment of Hindu Succession Act in 1956, the succession to the properties would be governed by the 1956 Act and not by the 1949 Act. 15 ii) As the 1956 Act did not provide for reversion of life interest rights to the nearest santhathi kavaru, the properties would necessarily have to be succeeded to by the legal heirs of the person who possessed a life interest and it would not revert back to the nearest santhathi kavaru. iii) The life interest created over the suit properties under the partition in favour of Ramanna Shetty would enlarge into an absolute estate and the same devolve on the legal heirs of Ramanna Shetty and they would thus become the absolute owners of the same. iv) The plaintiffs right of reversion was only a right of expectation and not a legal right and hence could not be enforced; v) vi) The suit for possession was barred by limitation. The plaintiffs were not the heirs of the nearest santhathi kavaru. 16 vii) The decision of this Court in the case of RATHNAVATHI Vs SARASWATHI ADAPPA passed in RFA.No.1672/2007 dated 19.09.2013 was challenged before the Apex Court and the same could not, therefore, be considered as a precedent. 15.1 In support of the above contentions, he has placed reliance on the following judgments: i) ii) iii) SUNDARI & OTHERS Vs. LAXMI & OTHERS AIR1980SC198 RATNAMALA Vs. STATE OF MYSORE & OTHERS1968(1) MYS.L.J.

599; RAMANNA RAI & ANOTHER Vs. JAGANNATHA & OTHERS AIR1982KAR270 iv) GUMMANNA SHETTY & OTHERS Vs.NAGAVENIAMMA AIR1967SC1595 v) vi) BHAVANI SHEDTHI & OTHERS Vs. LALITHA ALVA & OTHERS19741) KAR.L.J.

41; ANIL KUMAR NEOTIA & OTHERS Vs. UNION OF INDIA & OTHERS - (1988) 2 SCC587 17 vii) LAXMI & OTHERS Vs. SEETHAMMA & OTHERS AIR1994KAR368 16. On the contrary, learned counsel for the contesting respondents contended that in view of the Division Bench ruling of this Court in Rathnavatis case referred to supra, the contention that the interest over the properties would devolve as per the 1956 Act was untenable and the suit would have to be decreed in the light of the admitted fact that only a life interest had been granted to predecessor of defendants 1 to 4.

17. I have considered the submissions of the learned counsel for both parties and also perused the materials on record.

18. It is not in dispute that the suit properties were the subject matter of a partition deed Ex.P1. The said partition deed was executed on 05.01.1953 i.e., 3 years before the enactment of the 1956 Act and would thus be governed by the 1949 Act. 18 19. It is the admitted case of all the parties to the suit that they are governed by the Aliyasanthana law and are thereby governed by the provisions of the 1949 Act.

20. It is to be noted that one of the salient features of the Aliyasanthana law was the impartibility of property and descent in the lines of females, until the 1949 Act was enacted.

21. The 1949 Act, as per its preamble, is an act to define and amend in certain respects, the law relating to marriage, maintenance, guardianship, intestate succession, family arrangement and partition, applicable to persons governed by the Aliyasanthana law and it is not an act to codify or consolidate the entire Aliyasanthana law.

22. In other words, the 1949 Act seeks to define certain aspects of the law and seeks to amend the law in certain respects.

23. In so far as partition was concerned, by the 1949 Act, the earlier principle of impartibility was relaxed and the 19 law provided for partition under Chapter VI of the Act i.e., Sections 35 to 37.

24. Section 35 confers the right on the kavaru to claim a partition and Section 36 provides for ascertainment of shares at a partition.

25. Since the present case deals with a partition of the year 1953, the ascertainment of shares under Section 36 would be relevant.

26. Section 36 mandates that any kavaru (branch of family) entitled to partition would be allotted a share in the kutumba properties in accordance with the provisions of sub- section (2).

27. Sub-section (2) details the manner of division in respect of a kutumba, which has four generations living and in other cases, where four generations are not living at the time of partition. 20 28. Sub-section (3) stipulates that if any kavaru taking a share is a nissanthathi kavaru, it shall have only a life interest in the properties allotted to it.

29. However, it provides that if the kutumba from which it separates has at least one female member who has not completed the age of fifty years, or where the kutumba breaks up into a number of kavarus at the partition, if at least one of such kavarus is a santhathi kavaru and if there is no such female member or santhathi kavaru, the kavaru shall have an absolute interest in the properties allotted to it.

30. Sub-section (4) stipulates that life interest of nissanthathi kavaru in the properties allotted to it at a partition would become absolute, if the kutumba ceases to have among its members a female who has not completed the age of fifty years or if all the kavarus into which the kutumba broke up, whether at the same or at the subsequent partition, becomes nissanthathi kavarus.

31. Sub-section (5) governs the right of the members to whom the properties are allotted at a partition. The said 21 provision states that the properties allotted to a nissanthathi kavaru at a partition in which it had only a life interest shall devolve upon the kutumba or where the kutumba has broken up into a number of kavarus, upon the nearest santhathi kavaru.

32. In the instant case, it is not in dispute that under the partition deed dated 05.01.1953, only a life interest had been created in favour of Ramanna Shetty. Thus, it cannot be disputed that on the death of Ramanna Shetty in the year 1977, his life interest would come to an end.

33. However, according to the appellant, the life interest in the properties would be governed by the provisions of the 1956 Act and not by the 1949 Act and since they being Class-I heirs, were bound to succeed to the same absolutely.

34. According to the learned counsel for appellant by virtue of the overriding provisions of Section 4 of 1956 Act, the provisions of 1956 Act would prevail over the 1949 Act and since the 1956 Act does not recognize the concept of reversion of the life interest to the nearest santhathi kavaru, 22 it will have to be held that life interest would stand enlarged into an absolute right in favour of the person granted life interest and this absolute right over the property would also devolve on to his legal heirs.

35. In my view, this argument of the learned counsel is unacceptable, as it is in direct conflict with the decision of this Court in Ratnavatis case.

36. The Division Bench of this Court in Ratnavatis case has clearly held that when the properties have already been divided prior to the commencement of the 1956 Act amongst the members of a kutumba and a life interest has already been allotted in favour of nissanthathi kavaru in such a partition, the nissanthathi kavarus would only continue to enjoy the property in a limited manner during their life time. This Court has clearly held that life interest granted in favour of nissanthathi kavaru under the partition prior to 17.06.1956 would not automatically enlarge into an absolute interest and would not devolve upon the personal heirs after coming into force of the 1956 Act. 23 37. In fact, this Court has also considered the decision rendered by the Apex Court in Sundaris case and has stated that the decision of the Apex Court in relation to Section 7(2) of the 1956 Act would be applicable only with regard to undivided interest of a Hindu governed by Aliyasantana law and the provisions of Section 17 of the 1956 Act which make Sections 8, 10, 15 and 23 applicable with certain modifications would provide for succession of the separate property of a Hindu male or female governed by Aliyasantana law. The Division Bench has also laid down that the provisions of the 1956 Act do not have a retrospective effect and the estate if already vested prior to coming into force of the 1956 Act would not be governed by the 1956 Act. In my view, the ratio laid down in this decision squarely applies to this case also.

38. In the instant case, admittedly Ramanna Shetty was conferred with a life interest under the partition deed dated 05.01.1953 and thus, as a necessary consequence Ramanna Shetty would only be entitled to enjoy the property during his life time. On the death of Ramanna Shetty, the 24 property would have to necessarily revert back to the nearest santhathi kavaru and the same would never devolve upon his legal heirs, as it was never his property to begin with.

39. It is to be stated here that under the 1956 Act, a limited interest granted to a Hindu female would stand enlarged into an absolute estate. However, no such enlargement of a limited right into an absolute right can be extended to a male who has been granted a life interest under the 1949 Act.

40. It is also to be stated here that the 1949 Act did not stand repealed on the enactment of the 1956 Act.

41. However, by virtue of Section 7(2) of the 1956 Act, when a Hindu governed by the 1949 Act, died after the commencement of the Act, his undivided interest in the property of a kutumba or kavaru would devolve by testamentary or intestate succession under the provisions of the 1956 Act and not under the 1949 Act.

42. In fact, the effect of Section 7(2) of the 1956 Act was that the heirs of a Hindu governed by the Aliyasantana 25 Law would be entitled to a share only in respect of the undivided interest of their predecessor, on his or her death and that person by himself i.e., the predecessor could not have taken the property in a partition and enjoyed the same.

43. It is to remedy this situation, the 1949 Act was amended by Karnataka Act No.1 of 1962 and Section 34A and Section 37A was inserted.

44. Section 34A clearly stated that the provisions of the Sections 35, 36 and 37 would apply to every partition of properties of a kutumba or kavaru effected before the commencement of the Amending Act 1 of 1962 and the provisions of Section 37A of the 1949 Act would govern the partition of properties of a kutumba or kavaru after the commencement of the Karnataka Act No.1 of 1962.

45. Thus, it is clear that every partition effected before the commencement of the Act No 1 of 1962 was protected by the Legislature.

46. The effect of this amendment would be two fold. 26 47. The properties which were undivided after the 1956 Act came into force would be governed by Section 37A of the 1949 Act and the properties divided prior to the 1956 Act coming into force would be governed by Sections 34, 35 and 36 of the 1949 Act. In other words, the partitions effected prior to 1956 were expressly meant to be governed by the 1949 Act.

48. The consequential effect of this amendment would also be that the interest created under the 1949 Act would not be obliterated or nullified by the 1956 Act and the same would also not be governed by the 1956 Act.

49. In other words, the properties which were subjected to a partition prior to the 1956 Act would continue to be governed by the 1949 Act.

50. Thus, on the death of Ramanna Shetty, the life interest created in his favour under the partition deed dated 05.01.1953 i.e., the partition effected prior to the 1956 Act would come to an end and the property in which a life interest had been created in his favour would revert back to 27 the nearest santhathi kavaru and the property would not devolve on his legal heirs.

51. The defendants, being legal heirs of Ramanna Shetty, would thus secure no right over the properties in which only a life interest had been created in favour of Ramanna Shetty under the partition deed dated 05.01.1953 (Ex.P.1).

52. I am, therefore, of the view that the decree of the Trial Court as affirmed by the Appellate Court in granting possession to the plaintiffs who are the members of nearest santhathi kavaru on the cessation of the life interest of Ramanna Shetty on his death and the consequential reversion, cannot be found fault with.

53. The contention of the appellant that suit was barred by limitation cannot also be accepted. The suit properties herein are properties belonging to the kavaru and the question of a person holding a life interest or anybody claiming under him setting up adverse title would never arise. A suit for possession would always be maintainable on the 28 death of a person in whose favour a life interest had been created. It is to be mentioned here that apart from the person holding a life interest, no other person would acquire a right over the properties, muchless his legal heirs.

54. It is also to be stated here that the son of Ramanna Shetty i.e., the husband of the 1st defendant - appellant herein claimed that he was a tenant under his father Ramanna Shetty and thus, the question of setting up adverse possession would never arise.

55. In view of the reasons stated above, I am of the opinion that there is no question of law, much less a substantial question of law which arises for consideration in this appeal. Appeal is, therefore, dismissed. PKS Sd/- JUDGE


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