Skip to content


Dilip Kumar Alias Srinivas and anr. Vs. Damodar Narayanrao Rammangudkar and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Family
CourtKarnataka High Court
Decided On
Case NumberR.S.A. No. 893 of 2003
Judge
ActsHindu Succession Act, 1956 - Sections 15, 15(1), 15(2) and 16
AppellantDilip Kumar Alias Srinivas and anr.
RespondentDamodar Narayanrao Rammangudkar and ors.
Appellant AdvocateV.M. Madhava Reddy, ;Kenchegowda and ; Harish Shetty, Advs.
Respondent AdvocateJayavittal Rao Kolar, Adv. for Respondent No. 2 and ;Suresh S. Deshpande, Adv. for Respondents 1
DispositionAppeal dismissed
Cases ReferredC) and V. Dhandapani Chettiar v. Balasubramanian Chettiar (dead
Excerpt:
- motor vehicles act (59 of 1988)section 147 & karnataka motor vehicles rules, 1989, rule 100: [c.r. kumaraswamy, j] liability of insurer claimant, a police constable sustained injuries when rashly driven canter dashed goods vehicle in which he was travelling he was in uniform and was returning home after attending his duty in police station held, rule 100 gives some privilege to policemen to travel in goods vehicle. plea by insurer that there is no coverage in respect of policemen travelling in goods vehicle, being gratuitous passenger is not tenable in view of protection of rule 100. section 168: [c.r. kumaraswamy, j] quantum of compensation claimant, policemen sustaining injuries in accident being a policeman, he can take treatment in recognised hospital and get medical..........intent of the legislature is clear that the property, if originally belonged to the parents of the deceased-female, should go to the legal heirs of the father. so also under clause (b) of sub-section (2) of section 15, the property inherited by a female hindu from her husband or her father-in-law, shall also under similar circumstances, devolve upon the heirs of the husband. it is the source from which the property was inherited by the female, which is more important for the purpose of devolution of her property.similarly in the case of dhandapani chettiar ilr 2004 kar 771 relied upon by the learned counsel for the appellants, the female hindu the deceased in the said case had no children and wherefore, section 15(2) of the act has been made applicable and wherefore, having regard to the.....
Judgment:

V.G. Sabhabhit, J.

1. This appeal by defendants 1 to 7 is directed against the judgment and decree passed by the Court of the Dist. Judge, Gulbarga in R.A. No. 17/01 dated 30-6-2003 dismissing the appeal and cross-objections preferred by the defendant No. 2 and confirming the judgment and decree passed by the Court of the Addl. Civil Judge (Sr. Dn.), Gulbarga, in O.S. No. 203/ 1995 dated 10-8-2001 wherein the suit of the plaintiff is partly decreed by holding that the plaintiff is entitled to partition and separate possession of 1/12th share in the suit schedule house bearing 1-3-185 situated at Chincholi and in suit lands measuring 21 acres 11 guntas both situated at Doulatpur village in Chincholi Taluk and dismissing the suit of the plaintiff for partition and separate possession in respect of the suit land in Sy. No. 125 measuring 4 acres 27 guntas and for the relief of future mesne profits of the suit properties and further ordering that defendants 2 to 5 are also entitled to partition and separate possession of their 1/12th share each in the house property and the suit lands in Sy. Nos. 18 and 19 of Doulatpur village.

2. The essential facts of the case leading up to the filing of this appeal with reference to the rank of the parties before the trial Court are as follows:

The plaintiff filed O.S. 203/95 on the file of the Addl. Civil Judge (Sr. Dn.), Gulbarga, seeking for partition and separate possession of his 1/9th share in the suit schedule properties by metes and bounds and for mesne profits.

It is averred in the plaint that the suit properties are the joint family properties consisting of himself and the defendants and the plaintiff is entitled for partition and separate possession of his share in the suit schedule properties. The plaintiff has succeeded to the property after the death of mother Sonubai first wife of Narayan Rao defendant No. 6. It is averred in the plaint that Sonubai died long back leaving behind defendant No. 1. After the death of his first wife, defendant No. 6 married Smt. Leela Bai. Plaintiff, defendants 2 to 5 and one Sunitha and Pradeep are born out of the wedlock of said Leelabai with defendant No. 6. The two children of Leelabai i.e. Sunitha and Pradeep died at the age of 22 and 7 years respectively. Defendant No. 6 owned suit properties which are ancestral properties and undivided Hindu joint family properties. Defendant No. 6 had no right to alienate the suit schedule property by way of mutation and defendants 1 and 6 in collusion with other defendants are bent upon grabbing the property depriving the share of plaintiff and plaintiff is entitled to 1/9th share in the suit schedule property.

The suit was resisted by the defendants. Defendants 2 to 5 filed written statement admitting the case of the plaintiff in total and averred that they may also be awarded share in the suit schedule properties by passing a decree in their favour. Defendants 1 and 7 filed the written statement admitting the relationship among the parties as averred in the plaint, but contended that the suit house and the suit lands Sy. Nos. 18 and 19 are the properties belonging to de-ceased-Sonubai mother of the defendant No. 1 and she inherited the same from her parents as she was the only daughter to her parents and hence contended that the mother of the defendant No. 1 was exclusive owner of the suit house and the suit lands Sy. Nos. 18 and 19 and after the death of Sonubal, defendant No. 1 had become the absolute owner of the suit schedule property and the plaintiff and other defendants have no share in the suit schedule properties and further contended that after the death of Sonubai, defendant No. 1 was totally neglected by his father-defendant No. 6 and tailed to attend the marriage of defendant No. 1 with defendant No. 7 and the defendant No. 1 is in exclusive possession and enjoyment of the suit house and suit lands bearing Sy. Nos. 18 and 19 and plaintiff and defendants have no share in the suit properties and wherefore, the suit is liable to be dismissed.

The trial Court framed appropriate issues on the basis of the pleadings and the relief sought for in the suit.

On behalf of the plaintiff, the plaintiff was examined as P.W 1 and also examined P.W. 2 and got marked Exhibits P1 to P9. On behalf of the defendants, defendant No. 7 was examined as D.W. 1 and also examined D.W.'s 2 and 3 and got marked Exhibits D1 to D53.

The trial Court after considering the contentions of the parties and the material on record, held that the plaintiff has proved that he is entitled to share in the property belonging to Sonubai and defendants 1 to 7 have failed to prove that defendant No. 1 is the absolute owner of the schedule proper -ties and further, held that the plaintiff is entitled to 1/12th share in the suit schedule properties, but however, held that the plaintiff has failed to prove that he has his share in Sy. No. 125, measuring 4 acres 27 guntas and the said property belongs to defendant No. 1 and accordingly, decreed the suit of the plaintiff by ordering that the plaintiff is entitled to 1/12th share in the suit house bearing No. 1-3-185 situated at Chincholi and in the suit lands Sy. No. 18 measuring 28 acres 11 guntas and Sy. No. 19 measuring 21 acres 11 guntas both situated at Doulatpur village in Chincholi Taluk and dismissed the suit of the plaintiff in respect of Sy. No. 125 measuring 4 acres 21 guntas and for the relief of future mesne profits vide its order dated 10-8-2001. Being aggrieved by the said judgment and decree, defendants 1 and 7 preferred R.A. No. 17/1 and the defendant No. 2 being aggrieved by the rejection of the prayer for mesne profits, preferred cross-objections and the first appellate Court by judgment dated 30-6-2003 dismissed the appeal and the cross-objections and being aggrieved by the said judgment and decree, the defendants 1 to 7 have preferred this appeal which was admitted on 28-6-2005 for consideration of the following substantial question of law:

Whether the judgment and decree passed by the Courts below is contrary to the provisions of Section 15(2) of the Hindu Succession Act?

I have heard to the contentions of the learned Counsel for the parties on the abovesaid substantial question of law.

3. The learned Counsel for the appellants submitted that the Courts below have erred in ascertaining the share of the plaintiff with reference to Section 15(1) of the Hindu Succession Act (for short 'the Act') and submitted that defendant No, 1 being the son of Sonubai has become the absolute owner of the property after her death in view of the provisions of Section 15(2) of the Act. The learned Counsel submitted that the provisions of Sub-section (2) of the Act is a non obstante provision as it begins with the word 'notwithstanding anything contained in Sub-section (1) and in the absence of son or daughter of the deceased, property inherited by the female from her father or mother will devolve upon the heirs of her father or mother and the property inherited by the female from her father-in-law would devolve upon the heirs of the husband and in case there is son, he would become the absolute owner of the property in view of the provisions of Section 15(2) of the Act. In support of his contention he has relied upon the decisions of the Hon'ble Supreme Court in Bhagat Ram (deceased by LRs) v. Teja Singh (deceased by LRs), reported in : [2001]252ITR324(SC) and V. Dhandapani Chettiar v. Balasubramanian Chettiar (dead) by LRs, reported in ILR 2004 Kar 771.

4. On the other hand, the learned Counsel for the respondents-plaintiff submitted that Section 15(1) and (2) of the Act have to be read together and if there is a son or daughter of the deceased, the provisions of Section 15(1) of the Act would apply, and in the absence of son or daughter, is a condition precedent for the application of Sub-section (2) and in both the decisions cited by the learned Counsel for the appellant, the deceased had no issues and wherefore, Section 15(2) of the Act had been made applicable and wherefore, the Courts below have rightly calculated the shares by holding that Section 15(1) of the Act is applicable and as Sonubai has died intestate leaving behind son and husband, the share has been properly calculated and held that the plaintiff is entitled to 1 / 12th share.

5. I have considered the contentions of the learned Counsel for the parties with reference to the material on record.

It is clear from the perusal of the material on record that the fact that property belongs to Sonubai is not in dispute. There is also no dispute that Sonubai died leaving behind son-defendant No. 1 and husband-defendant No. 6 and daughters. The provisions of Section 15 of the Act is extracted below--

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.

It is clear from the provisions of the Sub-sections (1) and (2) of Section 15 of the Act that the section is clear, unambiguous and where the female Hindu has died intestate leaving behind son and husband as in the present case, Section 15(1) would be applicable as it is clear from the provisions of Sub-section (2) of the Act that absence of any son or daughter of the deceased (including children of any pre-deceased son or daughter) is a condition precedent for application of provision of Sub-section (2) of Section 15 of the Act and wherefore, Section 15(1) of the Act would not be applicable to the facts of the present case.

Sub-section (2) of Section 15 of the Act has been enacted, apparently, as it is clear from the provisions of the section that in the absence of son or daughter of the deceased, including the children of the pre-deceased son or daughter, if Section 15(1) of the Act is applied, the property would devolve secondly upon the heirs of the husband and thirdly, upon the mother and father and wherefore, even if the property had been inherited by the female Hindu from her father or mother, the same would devolve upon the heirs of the husband. Wherefore, to overcome the said anamoly and to see that the property inherited by a female Hindu from her father and mother would, in the absence of any son or daughter, devolve upon the heirs of the father and the property inherited by the female Hindu from her husband or from her father-in-law, in the absence of any son or daughter would devolve upon the heirs of the husband, Sub-section (2) has been enacted and wherefore, it is clear that having regard to the admitted facts of the present case, as Sonubai has died intestate leaving behind a son, the provisions of Sub-section (2) of Section 15 of the Act will not be applicable and it would be the provisions of Section 15(1) of the Act that would be applicable. The decisions relied upon by the learned Counsel for the appellants is not helpful in the present case as in Bhagat Ram's case : [2001]252ITR324(SC) , the female Hindu had died intestate and issueless and wherefore, in the absence of son or daughter Sub-section (2) of Section 15 of the Act was made applicable and in the said decision the Hon'ble Supreme Court has observed as follows:

The intent of the Legislature is clear that the property, if originally belonged to the parents of the deceased-female, should go to the legal heirs of the father. So also under Clause (b) of Sub-section (2) of Section 15, the property inherited by a female Hindu from her husband or her father-in-law, shall also under similar circumstances, devolve upon the heirs of the husband. It is the source from which the property was inherited by the female, which is more important for the purpose of devolution of her property.

Similarly in the case of Dhandapani Chettiar ILR 2004 Kar 771 relied upon by the learned Counsel for the appellants, the female Hindu the deceased in the said case had no children and wherefore, Section 15(2) of the Act has been made applicable and wherefore, having regard to the above said provision of Section 15 of the Act, it is clear that there is no merit in the contention of the learned Counsel for the appellants that the Courts below ought to have applied Section 15(2) of the Act and as Sonubai has left behind a son, the property would devolve upon the son only under Section 15(1) of the Act and accordingly, I answer the substantial question of law in the negative and I hold that the judgment and decree passed by the Courts below is not contrary to the provisions of Section 15(2) of the Act and pass the following order:

Appeal is dismissed. The judgment and decree passed by the Court of the Prl. Dist. Judge, Gulbarga, in R.A. No. 17/1 dated 30-6-2003 confirming the judgment and decree passed by the Court of the Additional Civil Judge (Sr. Dn.), Gulbarga, in O. S. No. 203/ 95 dated 10-8-2001 is confirmed. However, there is no order as to costs in this appeal.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //