Mallikarjuna T.C. vs Kallamma and Others

This appeal by the plaintiff is directed against the judgment and decree dated 30.9.74 passed by the District Judge, Chitradurga, in RA No. 2 of 1970, on his file, allowing the appeal, on reversing the judgment and decree dated 5.1.70 passed by the Civil Judge, Chitradurga, in OS No. 7 of 1965, on his file, decreeing the suit of the plaintiff as prayed for.

Plaintiff instituted a suit for declaration thai the sale effected by bis mother Savitramma under Ex. D-2 in the year 1946 is not binding on his interest and for possession of the suit properties. The suit was resisted by the defendants contending that the plaintiff had no share in the suit properties and that he has no right to bring the suit at all. The trial Court raised the following issues as arising from the pleadings:

(1) Does the plaintiff prove that he has filed this suit within 3 years after attaining majority?

(2) If not, is the suit in time?

(3) Does the plaintiff prove that hismother became the owner of the suit properties by virtue of inheritance after the death of the plaintiff''s grandmother when admittedly another co-widow namely defendant-3 was alive at the time of the death of his grandmother and is still alive?

(4) If not, is the suit tenable in the present form?

(a) If yes, does defendant-1 prove that the alienation made by the plaintiff''s mother is supported by legal necessity?

(5) Does the plaintiff prove the alleged partition between co-widows of Basappa?

(5A) If yes, has it any effect in the eye of law regarding the nature of the properties in their possession as co-widows?

(6) Does defendant-1 prove that the release deed executed by the plaintiff''s father, as the guardian of the plaintiff, is supported by legal necessity or benefit of the estate?

(7) What decree?

The learned Civil Judge held under the material issues in favour of the plaintiff and, in that view, he decreed the suit of the plaintiff. Aggrieved by the said judgment and decree, defendants 1 and 2 went up in appeal before the District Judge. Chitradurga, in R.A. No. 2 of 1970, on his file. The learned District Judge, in the course of his judgment, raised the following point as arising for his consideration:

"Whether Savitramma alias Shanthamma inherited the suit schedule properties and that they are her "Stridhana" under S. 10(2)(g) of the Mysore Hindu Law Women''s Rights Act, 1933?"

The learned District Judge, reassing the evidence on record, held in the affirmative under that point, concluding that the properties became the absolute Stridhana'' properties of Savithramma under inheritance. In that view, he further held that the alienation was legal and valid and he allowed the appeal after setting aside the judgment and decree of the trial Court. Aggrieved by the same, the plaintiff has come up in the above second appeal before this Court.

The leamed Advocate appearing for the appellant strenuously urged before me that under S. 10(2)(g) of the Mysore Hindu Law Women''s Rights Act 1933, (hereinafter referred to as ''the Act'')'' Savitramma became a limited owner in view of the fact that she had a son at the time of the death of Basappa (the prospositus).

As against that, the learned Advocate appearing for the contending respondents argued supporting the judgment and decree of the learned District Judge.

The sole point, therefore, that arises for my consideration in this appeal is: ''Whether the learned District Judge is justified in holding that Savitramma became the absolute owner when she inherited the suit properties?

A few facts, which are either proved or admitted, are necessary for appreciation of the contention raised before me.

Poojary Basappa had two wives Gangamma and Channamma. Gangamma had a daughter by name Savitramma alias Shanthamma and Savitramma''s son is the plaintiff by name Mnllikarjunappa. Poojary Bapappa died in about the year 1933, leaving behind him Gangamma and Channamma, the two widows and Savitramma the only daughter. Mallikarjunappa was not born on the date of the death of Poojary Basappa. When he died in the year 1933, succession opened under the Act.

Under S. 4 of the Act succession to a Hindu 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) daughter''s sons

When Poojary Basappa died, he left behind two widows. They, therefore, excluded the daughter and inherited the properties.

Under S. 10 of the Act, however, ''Stridhana'' means property of every description belonging to a Hindu female, other than property in which she has, by law or under the terms of an instrument, only a limited estate.

Sub-section (2) of S. 10 of the Act states:

"Stridhana" includes:

(g) property taken by inheritance by a female from another female and property taken by inheritance by a female, from her husband or son, or from a male relative connected by blood except when there is a daughter or daughter''s son of the propositus alive at the time the property is so inherited."

Onthe facts of the present case, at the time of inheritance of Gangammo through Poojari Basappa (her husband), the daughter of the propositus viz., Savithramma alias Shanthamma was alive. Therefore, Gangamma did not take the properties as her ''Stridhana'' properties. She took them as a limited owner. After Gangamma died, however, succession opened under S. 21 of the Act.

S. 21 of the Act reads:

"Succession on termination of limited estate. On the termination of the limited estate of a female owner, the property comprised in such estate shall pass to the person who at the time is the next hair of the last full owner."

The last full owner, in the instant case, was Ptojary Basappa and succession opened to his daughter Savitramma alias Shanthamma alter the widow. Therefore, she took the properties as full owner. Even otherwise, since at the time of the death of Poojary Basappa (the propositus), she had no son alive or born, she could take the properties as full owner.

Therefore, as rightly held by the learned District Judge, Savitramma alias Shanthamma took the properties as full owner. That being so, she had the right to alienate the properties to defendant-1 under Ex. D-2. That is the finding of the learned District Judge. I have no reason to differ.

For reasons discussed above, there is no substance in the contention of the learned Advocate appearing for the appellant that Savithramma alias Shanthamma took the properties as a limited estate and that the plaintiff] appellant could inherit from Savitramma alias Shanthamma as full owner.

In the result, the appeal fails and is dismissed.

No costs.