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Judgment
N. Kumar, J—This is a plaintiffs'' regular first appeal challenging the Judgment and Decree of the trial Court which has dismissed their suit for partition and separate possession holding that they are not entitled to a share in the schedule properties.
For the purpose of convenience, the parties are referred to as they are referred to in the original suit. The subject matter of the suit is 23 items of agricultural lands which are more particularly described in the schedule to the plaint and hereinafter referred to as the schedule property.
One late Bettegowda was the propositus. He had three daughters namely Smt. Ammavva, Smt. Sakamma and Smt. Lakshmi and son by name Cheluvaiah. The plaintiffs are children of the said Smt. Lakshmi. Cheluvaiah was the first defendant who died during the pendency of the suit and therefore his legal representatives were brought on record. Second defendant is Smt. Sakamma and defendants 3, 4, and 5 are her children. Ammavva had no issues.
The case of the plaintiffs is, after the death of Bettegowda, his son first defendant took over the management of the schedule properties but he failed to give any account or share to their mother. He got purchased properties for the other two daughters Smt. Ammavva and Smt. Sakamma. The first defendant has been appropriating the income derived from the schedule property which belongs to the joint family. Late Bettegowda died after prolonged illness. At the time of his death, he had liquid cash and gold ornaments and also property. Till the death of their mother, defendant No. 1 was promising to give share. Their mother died in a very pathetic condition on 23.11.1993 leaving behind them as the only legal heirs. Plaintiffs are deemed to be in joint possession of the suit schedule properties.
Though the plaintiffs have share in the properties of late Bettegowda, defendant No. 1 has been refusing to comply with the demand of the plaintiffs and he is wasting and mismanaging the properties and also not maintaining any accounts regarding the income derived from the suit schedule properties. Therefore, they got issued a legal notice dated 7.5.1996 claiming a share in the schedule properties. The defendant sent an evasive reply denying their right. Therefore, they are constrained to file the suit for partition and separate possession of their legitimate share in the plaint schedule properties.
After service of summons, first defendant has filed a detailed written statement. The defendant did not deny the relationship pleaded in the plaint. It is contended, the suit is not maintainable. Plaint has been forged by plaintiff No. 1 and by collusion with plaintiffs 3 and 5, plaintiffs 2, 4 and 6 have not given any instructions to prepare the plaint and to file the suit and the signatures were forged. The said IAs were allowed by this Court by an order dated 10.7.1998 and the suit against plaintiffs 2, 4 and 6 were dismissed. The said order has been upheld by the High Court in CRP 2860, 2861 and 2489/98. Therefore, the suit filed by the remaining plaintiffs is not maintainable. There is no cause of action for the suit.
The specific case pleaded by the first defendant is, plaintiffs are the grand children of late Bettegowda through his daughter Laxmi from his 2nd wife late Kalamma. Bettegowda died in the year 1941 leaving behind him his wives Hombalamma and Kalamma, three daughters Ammavva, Sakamma and Lakshmi and a son Cheluvaiah, the first defendant. When Bettegowda died, his daughters had no right in the property as the Hindu Succession Act, 1956 came into force on 17.6.1956. The legal position is, after the death of their father, Smt. Laxmi had no right to any property in the family, her children - plaintiffs also get no right and cannot claim any property left by late Bettegowda. Smt. Hombalamma, W/o. Bettegowda died after two years from the date of death of Bettegowda. Smt. Kalamma wife of Bettegowda also had no right. If she had any right, she had given it up under a document dated 23.10.1941 which is registered as document No. 52/40 at the Office of Sub-Registrar, Virajpet. Smt. Hombalamma, first wife of Bettegowda died within two years after the death of late Bettegowda. Smt. Kalamma did not possess any right either limited or absolute with regard to the suit schedule property which could have been made as an absolute right of deceased Kalamma by the provisions of Sec. 14 of Hindu Succession Act, 1956.
Defendant No. 1 was a minor aged about 7 years at the time of death of his father Bettegowda. He was under the care and custody of his mother Kalamma. She was managing the schedule property on behalf of the first defendant. She had no say in the matter till he attained majority. Item No. 1 to 19 except 9 of the properties mentioned in suit schedule properties are properties inherited by these defendants which was confirmed through the document. Therefore, said document item No. 9 is the property which was exchanged with the property which was obtained through inheritance and through the above stated document. Item No. 20 is the self acquired property of defendant No. 1. Item Nos. 21 to 23 are the properties granted to late Kalamma and defendant No. 1 by Revenue Department. The right of Kalamma in the said properties have been transferred to her son defendant No. 1 during her life time. Therefore, there remains no property in the suit schedule over which the mother of the plaintiffs had any right. All other allegations in the plaint were denied and he sought for dismissal of the suit.
Defendant Nos. 3 and 5 have filed their written statement reiterating all the allegations in the written statement of first defendant and they also contend that the suit is not maintainable. Plaintiffs have no right in the schedule properties and therefore, suit is liable to be dismissed.
On the aforesaid pleadings, the trial Court framed the following issues and one additional issue as under:
"1. Whether plaintiffs prove that their joint possession in respect of the schedule properties?
Do they prove their share in the suit schedule properties?
Do they entitle for the relief of partition and separate possession in the suit schedule properties?
Do they entitle for mesne profits?
Do defendants prove that suit is not maintainable in this form?
Do they prove that Court fee paid by the plaintiff is not correct?
What order or a decree?"
The plaintiffs in order to substantiate their case, examined 3rd plaintiff and first plaintiff as P.W. 1 and P.W. 2 respectively and produced four documents which were marked as Ex. P1 to P4. Sri V.C. Thammaiah and Sri V.C. Subramani sons of first defendant were examined as D.W. 1 and D.W. 2 and they produced 15 documents which were marked as Ex. D1 to D15.
The trial Court on appreciation of aforesaid oral and documentary evidence on record held that the plaintiffs have failed to prove that they are in joint possession of the schedule properties. They have failed to prove that they have share in the suit schedule properties. They are not entitled to the relief of partition and separate possession. They are not entitled to mesne profits. Defendants have proved that the suit is not maintainable and therefore, the suit came to be dismissed.
Aggrieved by the said Judgment and Decree of the trial Court, the plaintiffs have preferred this regular first appeal.
The learned counsel for the appellant assailing the Judgment and Decree contends, on the death of Bettegowda, the mother of plaintiffs Smt. Lakshmi being a daughter was entitled to a share at a partition and therefore, after the death of Lakshmi, plaintiffs are entitled to a share in the schedule properties. The trial Court has not properly appreciated this aspect and has committed a serious error in dismissing the suit of the plaintiffs as not maintainable.
Per contra, learned counsel appearing for defendant-respondents contended admittedly the schedule properties are all joint family properties/ancestral properties. Sri Bettegowda died in the year 1940. Under the provisions of the Hindu Women''s Rights to Property Act, 1937 which was available to the parties, on the day of death of Bettegowda, the law conferred a right of partition only to the widow which was a limited right and daughters were not given any right in the said enactment. Therefore, on the death of Bettegowda, Smt. Lakshmi, his daughter had no right in the schedule properties. Therefore, on the death of Smt. Lakshmi, the question of her children seeking a share in the schedule properties would not arise and the trial Court was justified in dismissing the suit as not maintainable.
In the light of the aforesaid rival contentions, the point that arise for our consideration in this appeal is:
"What was the right Smt. Lakshmi-the daughter of late Sri Bette Gowda had on the death of her father in respect of schedule properties which the plaintiffs have inherited from their mother?"
The schedule properties are all situated in Chennangi Village, Virajpet Taluk, Kodagu District. Section 3 of the Hindu Women''s Rights to Property Act, 1937 reads as under:
Devolution of Property: (1) When a Hindu governed by the Dayabhaga school of Hindu Law dies intestate leaving any property and when a Hindu governed by any other school of Hindu Law or by customary law dies intestate leaving separate property his widow or if there is more than one widow, all his widows together shall subject to the provisions of sub-section (3), be entitled in respect of which he dies intestate to the same share as a son:
Provided that the widow of a predeceased son shall inherit in like manner as a son if there is no son surviving of such predeceased son, and shall inherit in like manner as a son''s son if there is surviving a son or son''s son of such predeceased son:
Provided further that the same provision shall apply mutatis mutandis to the widow of a predeceased son of a predeceased son.
(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 and 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) Any interest devolving on a Hindu widow under the provisions of this section shall be the limited interest known as a Hindu women''s estate, provided however that she shall have the same right of claiming partition to a male owner.
(4) The provisions of this section shall not apply to an estate which by a customary or other rule of succession or by the terms of the grant applicable thereto descends to a single heir or to any property to which the Indian Succession Act, 1925, applies. Xxxxx ... ...
Xxxxx ... ....
It is clear from the said provision, in particular sub-section (2), when Bettegowda died, having at the time of his death interest in the 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. In other words, on the date of death of Bettegowda, he was a member of joint family and also coparcener constituting himself and son, first defendant herein. If on his death partition had taken place; the share which would have been allotted to Bettegowa is to be allotted to his widow. The said enactment did not confer any right on the unmarried daughters of Bettegowda. Even the right conferred on the widow as is clear from sub-section (3) is limited interest known as Hindu Womens'' Estate. It is on record, his widow Smt. Kalamma executed a registered relinquishment deed dated 23.10.1941 relinquishing her interest in the schedule properties. In fact she did not claim any share and the entire property was given to the first defendant. Therefore, the first defendant being a sole surviving coparcener became the absolute owner of the schedule property. Notwithstanding the right given under the aforesaid Act to a widow, no right was conferred on the daughters. Smt. Lakshmi did not get any right in the said property on the death of Bettegowda. Therefore, she did not put forth any claim during her lifetime. Therefore, after the death of Smt. Lakshmi, the suit is filed by the plaintiffs claiming to enforce the right of Smt. Lakshmi in the property which they have inherited. The trial Court, on proper appreciation of facts and the law governing the same, rightly held, as Lakshmi had no right in the property, plaintiffs have no right in the property and therefore, the suit filed for partition is not maintainable. Accordingly, the suit came to be dismissed.
In the light of the aforesaid discussions, we are of the view, the trial Court, on a proper appreciation of the facts and the law on the point, rightly dismissed the suit. Therefore, no case for interference is made out.
There is no merit. Hence, the appeal is dismissed.