1

IN THE HIGH COURT OF , DHARWAD BENCH DATED THIS THE 4 TH DAY OF FEBRUARY 2016 BEFORE THE HON’BLE MRS. JUSTICE B.V. NAGARATHNA R.S.A. NO. 1058/2002 BETWEEN:

1. SRI. GOVINDAPPA HANAMAPPA @ HANAMANTAPPA UPPAR, AGE: 45 YEARS, OCC.: AGRIL, R/O , TQ: , DISTRICT: .

2. SMT. BHIMAVVA W/O HANAMAPPA @ HANAMANTAPPA UPPAR, AGE: MAJOR, OCC.: HOUSEHOLD WORK, R/O YADRAVI, TQ: SAUNDATTI, DISTRICT: BELGAUM.

3. SMT. YALLAVVA W/O NAGAPPA TYAPI, AGE: MAJOR, OCC.: HOUSEHOLD WORK, R/O YADRAVI, TQ: SAUNDATTI, DISTRICT: BELGAUM. - APPELLANTS (BY SRI. I.G. GACHCHINAMATH, ADVOCATE)

AND:

1. SMT. AVVAKKA W/O GANAPATEPPA LINGADAL SINCE DECEASED BY HER LRS.

1(A). SMT. MALLAVVA W/O HANUMANTAPPA BAJERI, AGED ABOUT 65 YEARS, OCC.: HOUSEHOLD WORK, R/O HANUMAGERI ONI, SAUNDATTI, TQ: SAUNDATTI, DIST.: BELGAUM.

1(B). SMT. PARVATEVVA W/O FAKIRAPPA UPPAR, AGED ABOUT 63 YEARS, OCC.: HOUSEHOLD WORK, R/O , TQ: SAUNDATTI, DIST.: BELGAUM. 2

1(C). SRI. BALAPPA S/O GANAPATEPPA LINGADAL @ NINGADAL, AGED ABOUT 61 YEARS, OCC.: AGRICULTURE, R/O RAMAPUR SITE EXTN, SAUNDATTI, TQ: SAUNDATTI, DIST.: BELGAUM.

1(D). MUDUKAPPA S/O GANAPATEPPA LINGADAL @ NINGADAL, AGED ABOUT 59 YEARS, OCC.: AGRICULTURE, R/O KATRAL, TQ: SAUNDATTI, DIST.: BELGAUM.

1(E). SMT. KENCHAVVA W/O PAVADEPPA BANDROLLI, AGED ABOUT 57 YEARS, OCC.: HOUSEHOLD WORK, R/O UGARGOL, TQ: SAUNDATTI, DIST.: BELGAUM.

1(F). SMT. SHIVAKKA W/O BASAPPA CHANNANNAVAR, AGED ABOUT 55 YEARS, OCC.: HOUSEHOLD WORK, R/O HANUMAGERI ONI, SAUNDATTI, TQ: SAUNDATTI, DIST.: BELGAUM.

1(G). SMT. HANUMAVVA W/O SOMANINGAPPA LINGADAL @ NINGADAL, AGED ABOUT 53 YEARS, OCC.: HOUSEHOLD WORK.

1(H). SRI. CHANDRASHEKAR S/O SOMANINGAPPA LINGADAL @ NINGADAL, AGED ABOUT 47 YEARS, OCC.: AGRICULTURE.

1(I). SRI MARUTI S/O SOMANINGAPPA LINGADAL @ NINGADAL, AGED ABOUT 43 YEARS, OCC.: AGRICULTURE

1(J). SRI RAJU S/O SOMANINGAPPA LINGADAL @ NINGADAL, AGED ABOUT 41 YEARS, OCC.: AGRICULTURE.

1(K). SRI GANAPATI S/O SOMANINGAPPA LINGADAL @ NINGADAL, AGED ABOUT 39 YEARS, OCC.: AGRICULTURE. 3

1(L). SMT. BHIMAVVA W/O HANUMANTHAPPA GUGGARI, AGED ABOUT 25 YEARS, OCC.: HOUSEHOLD WORK.

1(M). SMT. RENAVVA S/O VITTAL KALKUTRI, AGED ABOUT 23 YEARS, OCC.: AGRICULTURE.

1(G) to 1(M) ARE ALL RESIDENTS OF NEAR AMBA BHAVANI TEMPLE, RAMAPUR SITE, SAUNDATTI, TQ: SAUNDATTI, DIST.: BELGAUM.

2. SMT. SATEVVA W/O BHARAMAPPA UPPAR @ HIREGANNAVAR SINCE DEAD BY HER LRS.

2(A). SRI NAMDEV S/O BHARAMAPPA UPPAR @ HIREGANNAVAR, AGED ABOUT 55 YEARS, OCC.: AGRICULTURE, R/O JAVOOR, TQ: NAVALGUND, DIST.: DHARWAD.

2(B). VENKAPPA S/O BHARAMAPPA UPPAR @ HIREGANNAVAR, AGED ABOUT 45 YEARS, OCC.: AGRICULTURE, R/O JAVOOR, TQ: NAVALGUND, DIST.: DHARWAD.

3. SMT. PARVATEVVA W/O FAKIRAPPA UPPAR, AGE: MAJOR, OCC.: HOUSEHOLD WORK, R/O KATRAL, TAL: SAUNDATTI, DIST.: BELGAUM.

4. HANAMANTAPPA S/O FAKIRAPPA UPPAR, AGE: MINOR, R/O KATRAL, TAL: SAUNDATTI, DIST.: BELGAUM.

5. DODDARAMAPPA S/O FAKIRAPPA UPPAR, AGE: MINOR, R/O KATRAL, TAL: SAUNDATTI, DIST.: BELGAUM.

6. VITHAL S/O FAKIRAPPA UPPAR, AGE: MINOR, R/O KATRAL, TAL: SAUNDATTI, DIST.: BELGAUM.

7. KASHAVVA D/O FAKIRAPPA UPPAR, AGE: MAJOR, R/O KATRAL, TAL: SAUNDATTI, 4

DIST.: BELGAUM.

8. KAREVVA D/O FAKIRAPPA UPPAR, AGE: MAJOR, R/O KATRAL, TAL: SAUNDATTI, DIST.: BELGAUM.

9. YALLAPPA S/O RAMAPPA UPPAR, SINCE DECEASED BY HIS LRS.

9(A). SRI KALLOLEPPA S/O YALLAPPA UPPAR, AGED ABOUT 55 YEARS, OCC.: AGRICULTURE, R/O MANIKERI, TQ: SAUNDATTI, DIST.: BELGAUM.

9(B). JNANADEV S/O YALLAPPA UPPAR, AGED ABOUT 45 YEARS, OCC.: AGRICULTURE, R/O KATRAL, TQ: SAUNDATTI, DIST.: BELGAUM.

10. FAKIRAPPA S/O YALLAPPA BHAIRANNAVAR, AGE: MAJOR, OCC.: AGRI, R/O KATRAL, TQ: SAUNDATTI, DIST.: BELGAUM.

11. SMT. SAVAKKA W/O GOVINDAPPA UPPAR, SINCE DECEASED BY HER LRS.

11(A) SMT. MALLAVVA W/O HANUMANTAPPA BAJERI, AGED ABOUT 65 YEARS, OCC.: HOUSEHOLD WORK, R/O HANUMAGERI ONI, SAUNDATTI, TQ: SAUNDATTI, DIST.: BELGAUM.

11(B) SMT. PARVATEVVA W/O FAKIRAPPA UPPAR, AGED ABOUT 63 YEARS, OCC.: HOUSEHOLD WORK, R/O KATRAL, TQ: SAUNDATTI, DIST.: BELGAUM.

11(C) SRI BALAPPA S/O GANAPATEPPA LINGADAL @ NINGADAL, AGED ABOUT 61 YEARS, OCC.: AGRICULTURE, R/O RAMAPUR SITE EXTN., SAUNDATTI, TQ: SAUNDATTI, DIST.: BELGAUM.

11(D) SRI D. MUDUKAPPA S/O GANAPATEPPA LINGADAL 5

@ NINGADAL, AGED ABOUT 59 YEARS, OCC.: AGRICULTURE, R/O RAMAPUR SITE EXTN., SAUNDATTI, TQ: SAUNDATTI, DIST.: BELGAUM.

11(E) SMT. KENCHAVVA W/O PAVADEPPA BANDROLLI, AGED ABOUT 57 YEARS, OCC.: HOUSEHOLD WORK, R/O UGARGOL, TQ: SAUNDATTI, DIST.: BELGAUM.

11(F) SMT. SHIVAKKA W/O BASAPPA CHANNANNAVAR, AGED ABOUT 55 YEARS, OCC.: HOUSEHOLD WORK, R/O HANUMAGERI ONI, SAUNDATTI, TQ: SAUNDATTI, DIST.: BELGAUM.

11(G) SMT. HANUMAVVA W/O SOMANINGAPPA LINGADAL @ NINGADAL, AGED ABOUT 53 YEARS, OCC.: AGRICULTURE,

11(H) SRI. CHANDRASHEKAR S/O SOMANINGAPPA LINGADAL @ NINGADAL, AGED ABOUT 47 YEARS, OCC.: AGRICULTURE,

11(I) SRI. MARUTI S/O SOMANINGAPPA LINGADAL @ NINGADAL, AGED ABOUT 43 YEARS, OCC.: AGRICULTURE,

11(J) SRI. RAJU S/O SOMANINGAPPA LINGADAL @ NINGADAL, AGED ABOUT 41 YEARS, OCC.: AGRICULTURE,

11(K) SRI GANAPATI S/O SOMANINGAPPA LINGADAL @ NINGADAL, AGED ABOUT 39 YEARS, OCC.: AGRICULTURE,

11(L) SMT. BHIMAVVA W/O HANUMANTHAPPA GUGGARI, AGED ABOUT 25 YEARS, OCC.: HOUSEHOLD WORK.

11(M) SMT. RENAVVA S/O VITTAL KALKUTRI, AGED ABOUT 23 YEARS, OCC.: AGRICULTURE,

11(G) TO 11(M) ARE ALL RESIDENTS OF NEAR AMBA BHAVANI TEMPLE, RAMAPUT SITE, SAUNDATTI, 6

TQ: SAUNDATTI, DIST.: BELGAUM.

11(N) SRI. NAMDEV S/O BHARAMAPPA UPPAR @ HIREGANNAVAR, AGED ABOUT 55 YEARS, OCC.: AGRICULTURE, R/O JAVOOR, TQ: NAVALGUND, DIST.: DHARWAD.

11(O) SRI. VENKAPPA S/O BHARAMAPPA UPPAR @ HIREGANNAVAR, AGED ABOUT 45 YEARS, OCC.: AGRICULTURE, R/O JAVOOR, TQ: NAVALGUND, DIST.: DHARWAD.

11(P) SMT. PARVATEVVA W/O FAKIRAPPA UPPAR, AGE: MAJOR, OCC.: HOUSEHOLD WORK, R/O KATRAL, TQ: SAUNDATTI, DIST.: BELGAUM.

11(Q) HANUMANTAPPA FAKIRAPPA UPPAR, AGE: MAJOR, R/O KATRAL, TQ: SAUNDATTI, DIST.: BELGAUM.

11(R) DODDARAMAPPA FAKIRAPPA UPPAR, AGE: MAJOR, R/O KATRAL, TQ: SAUNDATTI, DIST.: BELGAUM.

11(S) VITHAL FAKIRAPPA UPPAR, AGE: MAJOR, R/O KATRAL, TQ: SAUNDATTI, DIST.: BELGAUM.

11(T) KASHAVVA D/O FAKIRAPPA UPPAR, AGE: MAJOR, R/O KATRAL, TQ: SAUNDATTI, DIST.: BELGAUM.

11(U) KAREVVA D/O FAKIRAPPA UPPAR, AGE: MAJOR, R/O KATRAL, TQ: SAUNDATTI, DIST.: BELGAUM. - RESPONDENTS (BY SRI. H.M. DHARIGOND, ADVOCATE FOR R1(A,C,E & F), SRI LINGARAJ MARADI, ADVOCATE FOR R1(D), SRI HANAMANT R. LATUR, ADVOCATE FOR R2(A,B), BHARATHI G. BHAT AND RUDRESH S.H. 7

ADVOCATES FOR R9A, NOTICES TO R1(B,H,J,K,L AND M), R9B & R10 ARE SERVED, SERVICE OF NOTICES TO R1 (G & I) IS HELD SUFFICIENT, R11 DIED ISSUELESS AND HER LRS ARE 11A-11U)

THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 20.09.2002 PASSED IN R.A. NO. 12/1998 ON THE FILE OF THE CIVIL JUDGE (SR. DN.), SAUNDATTI, PARTLY ALLOWING THE APPEAL AND MODIFYING THE JUDGEMENT AND DECREE DATED 18.9.98 PASSED IN O.S. NO. 185/1989 ON THE FILE OF THE CIVIL JUDGE (JR. DN), SAUNDATTI & ETC.

THIS REGULAR SECOND APPEAL COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

JUDGMENT

1. The defendants in O.S. No. 185/1989 have preferred this second appeal, assailing judgment and decree of the

Civil Judge (Sr. Dn.), Saundatti, dated 20.09.2002 passed in R.A. No. 12/1998, by which, judgment and decree of the

Civil Judge (Jr. Dn.), Saundatti, in O.S. No. 185/1989 was modified.

2. For the sake of convenience, the parties shall be referred to, in terms of their status before the trial Court.

3. Respondent nos.1 and 2 filed a suit seeking partition and separate possession of their share and also for 8

declaration that the partition decree effected in F.D.P. No.

1/1978 dated 13.09.1982 is not binding on their share.

According to the plaintiffs, defendant no.1 is their sister, respective husbands of defendant nos.3 and 5, namely,

Hanumanthappa and Fakirappa, (since deceased) were their brothers. Their father was Govindappa who died in the year 1947 leaving behind him his widow Karewwa who also died in the year 1963. The suit schedule properties shown as A, B and C are the landed properties, ‘D’ schedule is open space allotted to the family of the plaintiffs and defendants under a rehabilitation scheme as their family property was submerged in River Malaprabha

Reservoir Project in the year 1972.

After the death of Govindappa, his two sons,

Hanumanthappa and Fakirappa being the coparceners, managed the joint family properties. Hanumanthappa died in the year 1962 leaving behind defendant nos.2 to 4 as his legal heirs. Fakirappa died in the eyar 1981 leaving behind him defendant nos. 5 to 10 as his legal heirs. 9

Defendant nos.6 to 10 are minors and are represented by

their mother and natural guardian defendant no.5.

That during her lifetime, widow of Govindappa, i.e.,

Karevva, was given ‘C’ schedule property towards her

maintenance which is evidenced by M.E. no. 406 dated

10.05.1962. She died in the year 1963. After her death

plaintiffs have 1/5 th share each in the ‘C’ suit property and branch of Hanumanthappa and Fakirappa have 1/5 th share

each in the property shown as A, B and D schedule.

Plaintiffs have 1/9 th share each after taking into consideration notional partition. There was no partition between plaintiffs and their brothers, Hanumanthappa and

Fakirappa. But, defendant nos.2 to 10 have obtained a collusive decree and pursuant to that F.D.P. No. 1/1978 was concluded with a view to deprive the legitimate share of the plaintiffs in the suit schedule properties without their knowledge. The plaintiffs requested the defendants to set aside illegal partition effected between them but the defendants did not accede to their request. Mediation through elders also failed. On the other hand defendants 10

intended to alienate some of the suit properties in order to deprive plaintiffs of their legitimate share. Hence, plaintiffs filed the suit seeking partition and separate possession of their shares.

Defendant no.1 is the sister of the plaintiffs who is also entitled to a share but she has been misguided by the other defendants and she has not joined with the plaintiffs. Hence, she has been arrayed as defendant no.1.

After filing of the suit defendants alienated the suit schedule properties to defendant nos.11 and 12. Hence, they have been impleaded as parties to the suit. Plaintiffs prayed for grant of 1/5 th share each to the ‘C’ schedule property and 1/9 th share in rest of the properties.

4. On service of suit summons and Court notices defendants appeared through their counsel. Defendant no.2 filed written statement which was adopted by defendant nos.1, 3 and 4. Defendant nos.5 to 10 did not choose to file any written statement. Defendant nos.11 and 12 have jointly filed the written statement. 11

Defendant nos.1 to 4 contended that the genealogy given by the plaintiffs is incomplete. The defendants denied entire case of the plaintiffs except the fact that

Karewwa was given land towards her maintenance. That, after the death of Karewwa said land reverted back to her sons, i.e., Hanumanthappa and Fakirappa. That, plaintiffs have no interest in the suit properties, as succession opened after the death of the original propositus.

Govindappa died in the year 1947. Plaintiffs cannot claim any share in the suit schedule properties as they were vested with the legal representatives of deceased

Govindappa then. Plaintiff’s rights have been extinguished by lapse of time after the death of Karewwa in the year

1963 as no suit was filed seeking a claim in ‘C’ schedule property. Hence, suit of the plaintiffs is barred by time. It is further contended that defendants had filed O.S. No.

21/1970 against the deceased Fakirappa and the same was decreed on merits, they entered into a compromise in the execution proceedings in order to save time and to take possession of their respective shares. Plaintiffs were 12

fully aware of these facts and they remained silent.

Therefore, their claim now is not bonafide. It is further contended that the defendants have perfected their title by way of adverse possession over the suit properties and particularly after the death of their mother Karewwa.

Therefore, they contended that the suit be dismissed along with costs.

Defendant nos.11 and 12, the purchasers have contended that they are bonafide purchasers of suit properties bearing R.S. Nos. 33/2A and 39/2A for a valuable consideration, that the suit is barred by time.

The plaintiffs have not included the movable properties and therefore the suit is to be dismissed. Alternatively they contended that in case the Court is to held that plaintiffs are entitled for a share, then partition may be effected in the remaining properties of the defendants excluding the lands purchased by them. They also sought for dismissal of the suit with costs. 13

5. On the basis of the rival pleadings, the trial Court framed the following issues and additional issues for its consideration.

1) Whether plaintiffs prove that suit schedule A.B.C.D. properties are ancestral joint family properties? 2) Whether the plaintiffs prove that they are in joint possession and enjoyment of the suit properties? 3) Whether the plaintiffs prove that decree in O.S. No. 21/70 is obtained behind their back and not binding on them? 4) Whether defendants prove that suit schedule ‘C’ land reverted back to Hanumanthappa after the death of Karewwa in 1963? 5) Whether the claim of the plaintiffs is within time? 6) Whether plaintiffs are entitled for the shares as claimed by them? 7) Whether the Court is having pecuniary jurisdiction? 8) Whether defendants are entitled for compensatory costs as prayed for? 9) Whether the Court fee paid is sufficient? 10) What decree or order? 14

ADDL. ISSUES:

1) Whether the plaintiffs prove that the sale deeds in favour of Defendants 11 and 12 are null and void and not binding on them? 2) Whether Defendants 11 and 12 prove that they are bonafide purchasers for valid consideration of Sy. No. 33/2A and 39/2A? 3) Whether Defendants 2 to 4 and 5 to 10 prove that they have become owners of the suit property by way of adverse possession?

In support of their case plaintiffs examined plaintiff no.1. Avvakka, as P.W.1. They produced seven documents which were marked as Ex.P.1 to Ex.P.7. Defendants examined five witnesses. They relied upon 39 documents which were marked as Ex.D.1 to Ex.D.39. On the basis of the evidence on record the trial Court answered issue nos.1 to 3, 5 and 6 and additional issue no.1 in the affirmative and issue nos. 4, 8 and additional issue nos.2 and 3 in the negative. The trial Court held that issue nos.7 and 9 did not survive for consideration. It decreed the suit in the following terms. 15

“The suit of the plaintiffs is decreed with costs. It is hereby declared that the plaintiffs are having 1/9 th share in the suit schedule A.B.D properties and 1/5th sahre each in the suit schedule ‘C’ properties. Deft. No. 1 who is the sister of plaintiffs 1 and 2, has not appeared contested her claim. Hence, her share is not declared. The sale deed executed by Deft. No. 2 in favour of Deft. No. 12 in respect of suit land – R.S. No. 39/2A dated 4-7- 1989 is hereby set aside as not binding on the shares of the plaintiffs in that property. Another sale deed executed by Deft. No. 2 in favour of Deft. No. 11 in respect of the suit land – R.S. No. 33/2A dated 4-7-1989 is hereby set-aside as not binding on the shares of the plaintiffs in that property. The partition in respect of suit schedule A.B.C. lands are to be effected as per Sec. 54 of C.P.C. by the Deputy Commissioner or by any Gazette Assistant to him. A commissioner may be appointed by the Court to effect partition in respect of the suit schedule ‘D’ properties and separate possession of the shares of the plaintiffs is to be handed over to them.” - - -

A direction was issued to draw a preliminary decree in the above terms.

6. Being aggrieved by the judgment and decree of the trial Court dated 18.09.1998 defendant nos.2 to 4 16

preferred R.A. No. 12/1998 before the first appellate

Court, which, after hearing the learned counsel for the

respective parties framed the following points for its

consideration.

1) Whether trial Court is correct in holding that the suit properties are the ancestral joint family properties of plffs and defts? 2) Whether the trial court is correct in holding that the suit is not barred by time and that the appellants have not become the owners of the suit properties by adverse possession? 3) Whether the trial Court is correct in granting share the deceased plff No:2 who died during the pendency of the suit? 4) Whether there are grounds to interfere with the Judgment and decree of the trial Court? 5) What order or decree? - - - It answered point nos.1 and 2 in the affirmative, point no.4 partly in the affirmative and point no.3 in the negative and partly allowed the appeal in the following terms. 1. The appeal is partly allowed. 2. In view of the circumstances of this case, the parties are directed to bear their own costs throughout. 17

3. The Judgment and decree of the trial court is modified and following preliminary decree is passed:- a) It is declared that the plff has got 1/4 th share in the schedule C property and 1/8 th share in Schedule A, B, D properties. b) Further it is declared that the sale deed executed in favour of deft. No. 11 and 12 in respect of suit lands Sy. No. 39/2A and 33/2A is not binding on the plffs’ share. c) Further it is declared that the Judgement and decree passed in FDP No: 1/78, dtd: 13.9.1982 is not binding on the plffs share. d) The partition in respect of the agriculture lands shall be effected as provided U/S 54 of CPC. e) Draw preliminary decree accordingly. - - -

7. Being aggrieved by the judgment and decree of the first appellate Court defendant nos.2 to 4 have preferred this second appeal. This appeal was admitted by this

Court on 06.08.2004 to consider the following substantial questions of law:

1) Whether Courts below are justified in raising presumption that the suit properties are joint family properties? 18

2) Whether the Courts below are justified in rejecting the plea of adverse possession in terms of the pleadings in the case on hand? - - - 8. I have heard learned counsel for the appellants and learned counsel for respondent no.1 (A, C, E and F) who are the main contesting respondents. The other plaintiff in the suit, Savakka, was divorced and died issueless. I have perused the material on record as well as the original records.

9. It is contended on behalf of the appellants that the first appellate Court as well as the trial Court were not right in decreeing the suit of the plaintiffs and granting the plaintiffs a share in the suit schedule properties. It is contended that Govindappa had died in the year 1947, prior to the enforcement of the Hindu Succession Act, 1956

(for short ‘1956 Act’ for brevity) and that the law prior to that has to be applied, i.e., Hindu Women’s Right to

Property Act, 1937 (for short ‘1937 Act’ for brevity) applicable in the erstwhile British including Bombay 19

Province within which the properties are located. As per that Act the shares had to be determined but the first appellate Court as well as the trial Court have applied the

1956 Act and have erroneously computed the shares in the suit property. He further contended that A, B and D schedule properties are agricultural lands in respect of which partition had to take place under the provisions of

1937 Act but the Courts below have applied 1956 Act. As far as ‘C’ schedule property is concerned, the same was granted to Karewwa, widow of the original propositus

Govindappa and on her death which occurred in the year

1963 her sons and daughters were entitled to equal share in the said properties. The Courts below have not taken note that by virtue of Section 14 of 1956 Act, the right, title and interest of Karewwa in ‘C’ schedule properties had enlarged to be her absolute property.

10. He also submitted that plaintiff no.2 is dead. She was divorced and she died issueless and her share in the suit schedule properties would have to be divided among 20

the other members of the family. That the first appellant herein who was defendant no.2 in the suit has alienated certain properties and therefore the interest of the purchasers who are defendant nos.11 and 12 in the suit have to be protected. The trial Court and the first appellate Court were not right in holding that the alienation made by defendant no.2 in favour of defendant nos.11 and 12 were not binding on the plaintiffs. He therefore contended that the substantial questions of law which have been framed in this appeal would require a modification and after reframing the substantial questions of law the appeal could be disposed.

11. Learned counsel for respondent no.1 (A,C,E and F) supporting the judgment and decree of the first appellate

Court contended that the substantial questions of law no.1 raised by this Court would have to be answered in favour of the respondent-plaintiffs and the substantial question of law no.2 could be answered by holding that the defendants who are the purchasers under a registered sale deed could 21

not have raised the plea of adverse possession. He, of course fairly submitted that learned counsel for the appellants is right in his submission with regard to the modification of the shares to be made, having regard to the fact that suit schedule properties are joint family properties. He therefore, submitted that the appeal may be disposed by re-framing suitable substantial questions of law, if necessary.

12. Having heard learned counsel for the parties I am of the considered view that the substantial questions of law which have been raised by this Court require modification.

As far as substantial question of law no.1 is concerned, it is an admitted fact that the suit properties are joint family properties. Therefore, that question was not required to be raised and answered. Secondly, the plea of adverse possession would also not arise in the instant case as the purchasers purchased them are under registered sale deeds and are in possession of the said items. That being the case the plea of adverse possession would not arise at 22

all. Therefore, in lieu of the substantial questions of law

raised supra the following substantial questions of law

would now arise.

1) Whether the Courts below were right in granting the shares to the plaintiffs in respect of ‘A, B and D’ schedule properties without applying 1937 Act as the original propositus Govindappa died in the year 1947? 2) Whether the Courts below were right in not taking into consideration the fact that ‘C’ schedule property, which was granted to Karewwaa, mother of the plaintiffs, in lieu of maintenance had enlarged into her absolute estate under the 1956 Act and on her death in the year 1963 had to be inherited under the provisions of 1956 Act by her legal heirs? 3) Whether on account of the death of plaintiff no.2-Savakka who was divorced and who died issueless, her share in the suit schedule properties would have to be redivided amongst her legal heirs? - - - 13. The relationship between the parties is not in dispute. The genealogy is as under: 23

Govindappa (expired in the year 1947)

Karevva (expired in the year 1963)

Avakka Savakka Sattevva Hanumanthappa Fakirappa plaintiff-1 divorced Defendant died on 1962 died on 1981 lady died No.1 issueless –plaintiff no.2 Bhimavva Parvatevva defendant No.2 defendant no.5 Hanumanthappa defendant no. 6 Doddaramappa defendant no. 7 Govindappa Vittal Defendant No.2 Defendant no. 8 Kashavva Defendant no. 9 Kavevva Defendant No. 10 Yellavva Defendant No. 4

14. Govindappa was the original propositus. He died in the year 1947 leaving behind his widow Karewwaa, who died in the year 1963 and three daughters, namely,

Avvakka, Sawakka and Satyawwa and two sons namely

Hanumanthappa and Fakirappa. Hanumanthappa died in the year 1962 and Fakirappa died in the year 1981.

Plaintiff no.2 Savakka is also dead. She was divorced and she died issueless. It is also not in dispute that the suit schedule properties are ancestral joint family properties. 24

Another aspect of the matter which is undisputed is that ‘C’ schedule property was given to Karewwaa for her maintenance in the year 1962, prior to her death. She died in the year 1963. When Govindappa, the original propositus died in the year 1947 succession opened. At that time, the 1956 Act has not been enacted. Therefore, the 1937 Act was applicable. Section 3 (2) of the 1937 Act reads as under:

“3 (1) xxxx 3 (2) When a Hindu governed by any school of Hindu law other than the Dayabhaga school or by customary law dies having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of sub-section (3), have in the property the same interest as he himself had. 3(3) Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu woman's estate, provided however that she shall have the same right of claiming partition as a male owner.” 25

15. Sub Section 2 of Section 3 of the 1937 Act states that; when a Hindu governed by any school of Hindu Law other than the Dayabhag School or by customary law dies having at the time of his death an interest in a Hindu joint family property, his widow shall, subject to the provisions of sub-section (3), have in the property the same interest as he himself had. Sub Section 3 of Section 3 of the 1937

Act states that; any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu Woman's estate, provided however that she shall have the same right of claiming partition as a male owner.

16. On a conjoint reading of sub Section 2 and 3 of

Section 3 of the 1937 Act what emerges is that the right, title and interest of a male Hindu in joint family property would devolve on his widow. In other words, she would step into the shoes of her deceased husband and all her rights vis-à-vis the said share would be similar to what her husband could have had in the joint family properties. She 26

could also claim partition just as a male coparcenar.

Therefore, when Govindappa died in the year 1947 under

Section 3 of the 1937 Act his widow Karewwa, succeeded

to the estate of Govindappa along with her two sons,

Hanumanthappa and Fakirappa to an extent of 1/3 rd share

each. Thus, in schedule ‘A, B and D’ properties Karewwaa

and her two sons had 1/3 rd share each. By the time she

died in the year 1963, the 1956 Act was in force. Under

Section 14 of the 1956 Act her 1/3 rd share in the joint family property became her absolute property. Section 14 of 1956 Act reads as under:

14. Property of a female Hindu to be her absolute property.— (1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner. Explanation.—In this sub-section, “property” includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, 27

and also any such property held by her as stridhana immediately before the commencement of this Act. (2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.

Thus what was known as the widow’s estate and on the death of the widow would have been succeeded by her reversioners has been set at naught by enforcement of

Section 14 of the 1956 Act. Therefore, 1/3 rd share of

Karewwaa have to be redivided between her three daughters and two sons in which event they would each get 1/15 th share in ‘A, B and D’ properties. Therefore, the substantial question of law no.1 is answered accordingly.

17. As far as ‘C’ schedule property is concerned, that was given to Karewwa for her maintenance prior to her death. As already noted she died in the year 1963 her right to ‘C’ schedule property which was only limited to her 28

life which was her life estate has got enlarged on account

of Section 14 of the 1957 Act. The right to maintenance of

Karewwaa is a pre-existing right. The Hon’ble Supreme

Court in the case of V. Tulasamma & Ors vs V. Sesha

Reddi (Dead) By L.Rs (AIR 1977 SC 1944) has

categorically held that, where a woman has a pre-existing

right in the joint family properties and on coming into force

of 1956 Act, in terms of Sub Section 1 of Section 14 of the

Act her limited or restricted right gets enlarged into her

absolute right. Therefore, in respect of ‘C’ schedule

property, on the death of Karewwaa in the year 1963, her

legal heirs, namely, her three daughters and two sons

have succeeded equally to an extent of 1/5 th share each.

Accordingly, substantial question of law no.2 is answered.

18. The third aspect of the matter is with regard to the manner in which the shares of plaintiff no.2 would have to be now divided as she is dead. She was a single lady and died issueless. She had succeeded to ‘A,B,D and C’ schedule properties as noted above. As per Section 15 29

(2)(a) of the 1956 Act, property of a female Hindu dying intestate shall devolve according to the rules set out in

Section 16 of the 1956 Act. Section 15 of the 1956 Act reads as under:

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 30

daughter) not upon the other heirs referred to in sub- section (1) in the order specified therein, but upon the heirs of the husband.

On a reading of Section 15 it is noted that Savakka did not have children or husband as she was divorced.

Heirs of her husband would not be entitled to the suit schedule properties. Her parents had predeceased her.

Heirs of her father are her brothers and sisters who are the parties in this matter. Sub Section 2 of Section 15 starts with a non obstante clause. It states that, 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

As already noted, her brothers and sisters who are parties in the suit are the heirs of her father who would succeeded to her share in the suit properties in terms of 31

Section 15 of the Act. Therefore, Section 16 of the Act is

not applicable. The heirs of the father are determined in

terms of Section 8 of the Act, which reads as under:

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.

Class-1 heirs include the sons and daughters who are none other than brothers of deceased Savakka, who would also include the legal heirs of predeceased son.

Thus Savakka, Satyawwa and branch of Hanumantappa and Fakirawwa jointly succeed to the share of Savakka in the suit properties. Accordingly, living sisters and brothers of deceased Savakka shall be entitled to 1/4 th share each 32

in the share of Savakka in the joint family properties. In

view of the above, substantial question of law no. 3 is

accordingly answered.

As far as purchasers of the suit properties are

concerned, the first appellate Court has held that the sale

deeds dated 04.07.1989 are not binding on the plaintiffs.

They have not assailed that portion of the decree before

this Court. But, it is observed that the alienation made by

the first appellant herein in the suit schedule properties to

defendant nos.11 and 12 shall be valid to the extent of the

share of the first appellant that is defendant no.2 in the

suit. Those are the aspects which are to be taken into

consideration in the final decree proceedings.

In the result, the judgment and decree of the Court

below is modified in the following manner.

Plaintiff no.1 and defendant no.1 shall be each

entitled to 5/60 th share in ‘A, B and D’ schedule properties.

They shall be entitled to 1/5 th share each in the ‘C’ schedule properties. 33

The branch of Hanumanthappa and Fakirappa shall be entitled to 25/60 th share each in ‘A, B and D’ properties and shall be entitled to 1/5 th share each in the ‘C’ schedule properties.

Liberty is also reserved to defendant nos.11 and 12 to seek separate possession of those items of properties which they have purchased from defendant no.2 when the said properties are allotted to defendant no.2 to the extent of the share of defendant no.2 in the said properties. In other words, the interest of defendant nos.11 and 12, purchasers may be protected by allotting the extent properties which have been purchased by them from defendant no.2 within the extent he is entitled to in the said properties.

In the result, judgment and decree of the first appellate Court is modified in the above terms and the appeal is partly allowed.

Parties to bear their respective costs. 34

In view of disposal of the appeal, I.A. No. 1/2015

does not survive for consideration and is ordered to be

filed.

Sd/- JUDGE bvv