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Shankaramma and anr. Vs. Madappa and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKarnataka High Court
Decided On
Judge
Reported inAIR1977Kant188; ILR1977KAR1386; 1977(2)KarLJ239
ActsHindu Law Women's Rights Act, 1933 - Sections 8(1) and 14(1)
AppellantShankaramma and anr.
RespondentMadappa and ors.
Appellant AdvocateK. Swami Rao, Adv.
Respondent AdvocateS. Vijayashankar, Adv.
Excerpt:
- land acquisition act, 1894.[c.a. no. 1/1894]. section 28: [n.k. patil, j] statutory benefits executing court declining to grant statutory benefits held, the executing court is not competent to decide the redressal of the grievances. petitioners are to make necessary applications either before the l.a.o., or before the deputy commissioner. it is needless to clarify that the petitioners are entitled for rent or damages for use of the lands by the beneficiary or the competent authority. it is for the petitioners to establish that the possession of lands had been taken much earlier to the issue of preliminary notification. - to that extent, they have an independent right which is vested in them and may be continued to be enjoyed jointly until physical separation takes place. the..........thought that 5/8 share of defendant 1 would cover the properties under ext. d-3 and the remaining suit properties would be sufficient to meet the 3/8 share which the plaintiffs are entitled to. but, it seems to us that the appellate court has committed an error in working out the equitable partition. we find that items 7 to 9 cannot be equated to the plaintiffs' share in items 2 to 6 sold to defendant 3 under exhibit d-5. item 3 measures two acres six guntas; item 4 two acres 24 guntas; item 5 two acres 36 guntas and item 6 is a pucca residential house, whereas item 7 hardly measures 5 guntas; item 3 four guntas and item 9 is undisputedly a dilapidated country tiled house. these particulars are found from the report of the commissioner dated 11-2-1975. the commissioner has also valued.....
Judgment:

partition, and not to be restricted by assuming partition. Therefore, the plaintiffs' interest in the family properties became absolute upon the coming into force of S. 14(1) of the Act and the sole surviving coparcener had no right to alienate it. The absolute property vested in a female member cannot be disposed of by the Kartha of the family.

12. In this context, it may be useful to refer to the view taken by the Bombay High Court in Govindram. Mihamal v. Chetumal Villardas : AIR1970Bom251 . While dealing with the scope of the proviso to S. 6 of the Hindu Succession Act, Deshmukh, J., at page 261 said:

'When an outsider to a joint family gets vested interest in a part of the property, the fact that the share is yet to be worked out and a particular piece of property or share in every piece of property is to be handed over to him or her in lieu of the share, does not seem to be of any consequence. The property of the joint family is at that stage partly vested in members who are already members of the coparcenary and partly in some heirs who have nothing to do with the joint family as such. At any rate, the unmarried daughters, who may be members of the family, inherit the interest by succession under the Hindu Succession Act. and not under the provisions of the Customary Hindu Law. To that extent, they have an independent right which is vested in them and may be continued to be enjoyed jointly until physical separation takes place. With that result following, one thing seems to be clear. The representative character of the Kartha is clearly affected. He cannot represent that property which vests in a person other than a coparcener.'

13. We are therefore of the opinion that the alienation made by defendant 1to the extent of the share of the plaintiffs must be held to be invalid.

14. This takes us to the nature of the relief to be granted to the plaintiffs. As noticed earlier, the appellate Court has dismissed the suit against defendant 3. It has, however, permitted the plaintiffs to retain Items 7 to 9. The appellate Court, perhaps thought that 5/8 share of defendant 1 would cover the properties under Ext. D-3 and the remaining suit properties would be sufficient to meet the 3/8 share which the plaintiffs are entitled to. But, it seems to us that the appellate Court has committed an error in working out the equitable partition. We find that Items 7 to 9 cannot be equated to the plaintiffs' share in Items 2 to 6 sold to defendant 3 under Exhibit D-5. Item 3 measures two acres six guntas; Item 4 two acres 24 guntas; Item 5 two acres 36 guntas and Item 6 is a pucca residential house, whereas Item 7 hardly measures 5 guntas; Item 3 four guntas and Item 9 is undisputedly a dilapidated country tiled house. These particulars are found from the report of the Commissioner dated 11-2-1975. The Commissioner has also valued separately every item of the suit properties. The report further shows that the total valuation of Items 3 to 6 comes to Rs. 44,000 and that of Items 7 to 9 is Rs. 4,500. Items 1 and 2 which were the subject-matter of alienation in favour of defendant 2 has been valued at Rs. 10,000. From these particulars it is seen that the division made by the appellate Court is manifestly inequitable.

15. In the result, and for the reasons stated above, we allow the appeal. While reversing the decree of the Courts below we decree the plaintiffs suit declaring That they are entitled to 3/8 share in all the suit properties and defendants 2 and 3 are entitled to 5/8 share in the properties respectively sold to them. The plaintiffs are also entitled to recover from defendants 2 and 3 the mesne profits attributed to their share from the date of the suit. The plaintiffs are liable to discharge the debts incurred by defendant 1 before 17th June, 1956 in proportion to their share. The trial Court shall work out these details in the final decree to be passed.

16. In the circumstances, we direct that each party shall bear his or her own costs throughout,

17. Order accordingly.


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