Yadavrao vs Prabhakarrao

P.B. Varale, J—Heard the learned Counsel appearing for the parties.

With the consent of the learned Counsel appearing for the parties, the application is taken up for final hearing by admitting the same.

By the present revision application, the applicant-original defendant had challenged the order passed by the learned Civil Judge Senior Division, Nagpur, dated 18/12/2013 on application [Exh. 10] in Special Civil Suit No. 872/2013.

The brief facts giving rise to the present application can be summarized as follows:

The original plaintiff-Prabhakarrao Nimbalkar (the non-applicant before this Court) is the husband of one Pushpatai. Pushpatai is the daughter of one Kusumtai, who succeeded the properties left by her father Sadashiv along with other two sisters. Sadashiv expired on 16/04/1959 and the properties left by Sadashiv were mutated in the name of his wife Shantabai. The husband of Kusumtai and the father of Pushpatai namely Ajabrao left their company in the year 1957. Pushpatai was married to one Babarao Kene. Babarao Kene expired in the year 1986. There was no issue to Pushpatai from the said wedlock i.e. with Babarao. Pushpatai was residing with the present applicant i.e. the defendant in suit, in his house and she was remarried to Prabhakar Nimbalkar i.e. the plaintiff in the suit. From second marriage also, there was no issue to Pushpatai. Kusumtai, the mother of Pushpatai, executed power of attorney in favour of the present applicant-original defendant on 29/05/2003. Pushpatai expired on 16/10/2013. Thereafter the mother of Pushpatai viz. Kusumtai expired on 19/11/2013. Certain properties were given to the present applicant by Kusumtai through will-deed and certain properties were sold to some person by Kusumtai during her lifetime. Pursuant to the sale transactions in favour of several persons, their names were mutated in the revenue record and those persons are in possession of the said property. The non-applicant Prabhakarrao filed Special Civil Suit No. 872/2013 on 20/11/2013 claiming his right over the property as a sole heir of Pushpatai i.e. his wife. The plaintiff Prabhakarrao issued notice to those persons in whose favour the sale-deeds were executed along with the plaint of the suit. Prabhakarrao also filed application seeking injunction. The applicant-defendant appeared in the matter and moved an application under Section 9-A read with Order VII Rule 11 of the Code of Civil Procedure for framing of preliminary issue about non-maintainability of the the suit. It was also submitted by the applicant that the suit filed by the plaintiff is untenable on the ground of under valuing the suit. The applicant also raised the ground viz. the applicant was holding a valid power of attorney on the date of execution of the sale-deeds. The other ground raised by the applicants is that the plaintiff sought decree without impleading necessary party to the persons to whom the property was already sold. The learned Civil Judge Senior Division, Nagpur by order dated 18/12/2013 rejected the application submitted at the instance of the present applicant and also allowed the temporary injunction application filed by the non applicant-plaintiff.

Learned Counsel Mr. Khapre for the applicant in his detailed submission submitted that the suit filed by the plaintiff-Prabhakarrao Nimbalkar was based on the twisted facts and the said suit was untenable on more than one legal grounds, and the learned Court below without considering these grounds, only with a mechanical approach and by passing the reference that the applicant before this Court and the defendant in the suit raised mixed question of facts and law, rejected the application. Mr. Khapre, the learned Counsel for the applicant, by inviting my attention to the family tree along with the list of the properties placed on record, submitted that all the daughters of Sadashiv would be entitled for 1/8th share in the property of Sadashiv, who was the sole coparcener and died on 16/04/1959. He further submitted that Shantabai would be entitled for 1/8th share and in addition to that share, she is also entitled for half share in the property, being widow of Sadashiv. He submitted that Vimaltai and Shashikala, the other unmarried daughters of Sadashivrao, expired in the year 1982 and 1988 respectively and as such Kusumtai and Shantabai would be entitled for their share. Mr. Khapre, by referring to the provisions of the Hindu Succession Act, submitted that after the death of Shantabai, Kusumtai was the sole owner of the property. It was the submission of Mr. Khapre that in view of Sections 14 and 15 of the Hindu Succession Act, as Pushpatai, who died prior to opening of the succession, Kusumtai was an absolute and exclusive owner of the property. Thus, the submission of Mr. Khapre in short was looking with any angle on the backdrop of the facts, Prabhakarrao i.e. the plaintiff, husband of Pushpatai had no right whatsoever over the property and as such Prabhakarao having no locus and the suit filed by the Prabhakarrao is untenable on the face of the facts. Mr. Khapre, the learned Counsel for the applicant then submitted that Kusumtai was residing with the applicant and the applicant, who was a valid power of attorney holder for Kusumtai and certain property was sold by Kusumtai in her lifetime and the name of these purchasers were mutated in the revenue record, as such a right was created in favour of those purchasers over the said property. The submission of Mr. Khapre is, in such a situation, these persons were necessary party in the suit filed by the plaintiff seeking declaration, possession and injunction over the property. The plaintiff, who was aware of these facts, failed to implead these persons as party to the suit, as such non-joinder of the necessary party also made the suit untenable. It was the further submission of Mr. Khapre that though the material viz. the sale-deed, shows the value of the property to the tune of Rs. 1,69,05,000/-, the plaintiff valued the suit property at the rate of Rs. 11,656/- and paid the court fees of Rs. 1,730/-. His submission was, considering the sale-deed and the amount of Rs. 1,69,05,000/- the plaintiff, who was to pay much more court fees i.e. the full court fee, had paid less court fees though the claim of plaintiff is for ownership and possession, and as such on this ground also the suit was untenable. He further submitted that the plaintiff, who claims in the suit that he is the holder of irrevocable power of attorney executed by Smt. Pushpatai in his favour authorizing him to file suit, had not placed the said document at the time of filing of the suit. Mr. Khapre further submitted that the learned Lower Court without considering all these aspects, which goes to the root of the matter, only on a mechanical consideration that too on an erroneous consideration that the applicant i.e. the defendant had raised mixed question of facts and law, rejected the application and committed a grave error. Mr. Khapre, the learned Counsel for the applicant placed reliance on the following judgments in support of his submission:

Neelawwa Sarawari (since deceased by her L.R. Irappa Sarwari) Vs. Bhimappa Lakamoji and Others, AIR 2006 Kar 260 : (2006) ILR (Kar) 2744 : (2006) 5 KarLJ 481 : (2006) 4 KCCR 1997 .

Bhagat Ram (Dead) by L.Rs. vs. Teja Singh (Dead) By L.Rs., reported in 2002 (Supp.) Bom. C.R. 753.

V. Dandapani Chettiar Vs. Balasubramanian Chettiar (Dead) by Lrs. and Others, (2003) 4 CTC 122 : (2003) 3 JT 81 : (2003) 6 SCALE 167 : (2003) 6 SCC 633 : (2003) 2 SCR 371 Supp .

Bhagat Ram (Dead) Vs. Teja Singh, AIR 1999 SC 1944 : (1999) 157 CTR 50 : (1999) 237 ITR 364 : (1999) 4 JT 589 : (1999) 2 SCALE 446 : (1999) 4 SCC 86 : (1999) 2 SCR 358 : (1999) AIRSCW 1626 : (1999) 3 Supreme 479 .

Radhika (Smt) Vs. Aghnu Ram Mahto, (1996) 1 DMC 46 : (1998) 232 ITR 898 : (1995) 1 JT 18 : (1995) 109 PLR 243 : (1994) 4 SCALE 273 : (1994) 5 SCC 761 : (1994) 3 SCC 761 : (1994) 3 SCR 207 Supp : (1995) 1 UJ 56 .

Per contra, Mr. Shukla, the learned Counsel for the non-applicant order passed by the Court below. Mr. Shukla submitted that the Court below observed that the defendant raised mixed question of facts and law. He submitted that as the plaintiff was not aware of the sale-deeds, the so called purchasers were not impleaded as party to the proceedings. He further submitted that as the plaintiff had not prayed any relied for cancellation of the sale-deed and the plaintiff paid the court fees as per the value of the land and assessment of the property, there was no question of payment of the court fees as submitted by the defendant and the grounds raised that the suit was under valued is unsustainable. It is the further submission of Mr. Shukla that in view of the amendment in the Hindu Succession Act, the right was accrued in favour of Pushpatai, the daughter of Sadashiv and the wife of the plaintiff, and as there was no partition in the family, Pushpatai, who had a right to alienate the property, accordingly alienated the property to her husband i.e. the plaintiff, and the plaintiff, being the owner of the property, filed the suit. Mr. Shukla, in support of his submission, placed reliance on the following judgments:

Ganduri Koteshwaramma and Another Vs. Chakiri Yanadi and Another, AIR 2012 SC 169 : (2011) 6 CTC 102 : (2011) 11 JT 483 : (2011) 4 RCR(Civil) 916 : (2011) 11 SCALE 467 : (2011) 9 SCC 788 : (2011) 12 SCR 968 : (2011) 6 UJ 4060 .

Omprakash and Others Vs. Radhacharan and Others, (2009) 6 JT 329 : (2009) 7 SCALE 51 : (2009) 15 SCC 66 : (2009) 7 SCR 1007 : (2009) 5 UJ 2341 .

Rohit Chauhan Vs. Surinder Singh and Others, (2013) 5 ABR 910 : (2013) 7 AD 611 : AIR 2013 SC 3525 : (2013) 4 CTC 539 : (2013) 4 PLR 662 : (2013) 4 RCR(Civil) 40 : (2013) 9 SCALE 433 : (2013) 9 SCC 419 .

Heard the learned counsel appearing for the parties at length and with the assistance of the parties, I have gone through the material placed on record.

As stated above, the applicant has placed on record the family tree and the gist of the properties sold by Shantabai and alienated to the applicant i.e. the defendant. As this chart is not seriously disputed by the non-applicant, it will be useful for our purpose for the backdrop of relationship between the parties and details of the properties at a glance.

On the backdrop of these facts, perusal of the chart and the copy of the plaint placed on record, it reveals that the plaintiff, who is the husband of Pushpatai, though claims that he is the holder of irrevocable power of attorney executed by Pushpatai in his favour, the said document was not placed along with the plaint nor it finds placed in the list of documents submitted along with the plaint. It also reveals that though it is alleged in the plaint that the defendant by taking advantage of ill-health of late Kusumtai disposed of the same property, no details of such disposal were placed on record. The material placed on record further shows that by filing application on 18/02/2014, a permission is sought to join certain purchasers of the property as proposed defendants in the suit. The documents placed on record further shows that an application is filed on 28/02/2014 seeking amendment in the plaint to the nature that the plaintiff being a poor person and unable to pay the court feed over the value of the suit property i.e. Rs. 50.00 lakhs and this fact came to the knowledge of the plaintiff after filing of the suit, he be permitted to prosecute the suit as indigent person as the plaintiff being a retired government servant and having no independent source of income except his pension. In view of this fact, there is a merit in the submission of Mr. Khapre, the learned Counsel for the applicant that the non-applicant i.e. the plaintiff had approached the learned Court below by filing a suit having certain basic lacunae and the applicant i.e. the defendant raised his objection by filing application under Section 9-A read with Order VII Rule 11 of the Code of Civil Procedure. The learned Counsel Mr. Khapre was right in submitting that as these issues were going to the root of the matter, making the suit filed by the plaintiff untenable and unsustainable as submitted by the applicant herein and the defendant before the Lower Court, the learned Lower Court ought not to have brushed aside these facts observing that these were the mixed issues of facts and law and they cannot be considered as preliminary issues.

Mr. Khapre, the learned Counsel for the applicant placed reliance on the judgment in the matter of Neelawwa Sarawari (since deceased by her L.R. Irappa Sarwari) Vs. Bhimappa Lakamoji and Others, AIR 2006 Kar 260 : (2006) ILR (Kar) 2744 : (2006) 5 KarLJ 481 : (2006) 4 KCCR 1997 , He invited my attention to the observation of the Hon''ble Karnataka High Court, wherein the similar claim as like the defendant was raised on the backdrop of Sections 15 and 16 of the Hindu Succession Act and the same was rejected by the High Court of Karnataka.

After the death of Neelawwa, 3rd defendant has raised a contention with regard to the right of Irappa to claim share out of the properties of Kallappa and Shivawwa. Considering the subsequent developments, this Court is of the opinion that there was no necessity for the trial Court to give its finding on the other issues since the appellant cannot claim a share in all the suit properties. If the legal representatives of Neelawwa cannot claim a share and suit for partition itself is not maintainable, there is no necessity for the trial Court to give its findings on other issues. If the Court is of the opinion that the suit of the plaintiff is maintainable, then only the Court can give its findings on other issues. When the suit itself can be disposed of on preliminary issue, there is no necessity for the Court to give its findings on other issues. In the circumstances, point No. 1 is held against the appellant.

Then the next point to be considered by this Court is whether the appellant is entitled to claim a share in the suit properties by virtue of Sec. 15(1)(a) r/w Sec. 16 of the Act. It is not in dispute that the appellant Irappa was the husband of the plaintiff Neelawwa. It is also not in dispute that Irappa and Neelawwa had no issue and that the appellant Irappa alone is the sole legal heir of deceased Neelawwa. The suit properties are the properties inherited by Neelawwa from her parents. Sec. 15 of the Act deals with the general rules of succession in the case of a female Hindu. It is not in dispute that Neelawwa died intestate. In view of the death of Neelawwa without executing a testament, property has to be devolved firstly upon the sons and daughters (including the children of any predeceased son or daughter) and the husband, secondly upon the heirs of the husband, thirdly upon the mother and father, fourthly upon the heirs of the father and lastly upon the heirs of the mother. From the reading of the above section, it is clear that this section would apply to a property held by a deceased female who died intestate. But sub-section (2) of Sec. 15 of the Act clearly envisages that if any property inherited by a female Hindu from her parents, shall devolve in the absence of any son or daughter of the deceased (including the children of any predeceased son or daughter) and not upon the other heirs referred to in sub-section (1) in the orders specified therein, but upon the heirs of the father. Similarly, if a female Hindu inherited the property from her husband or from her father-in-law, shall devolve upon the heirs of the husband in the absence of a children. From reading of sub-section (2) of Sec. 15 of the Act, it is clear to the Court that arguments advanced by the counsel for the appellant cannot be accepted and the appellant Irappa can be treated as a successor provided the suit properties were the self-acquired properties of Neelawwa. Admittedly, suit properties were inherited by Neelawwa from her parents. This Court has to consider the provisions of Sec. 15(2)(1)(a) of the Act. Therefore, arguments advanced by the counsel for the appellant cannot be appreciated by this Court. In the circumstances, point No. 2 has to be held against the appellant.

The observation relied on paragraphs 10 and 11 were heavily relied by the learned Counsel for the applicant.

Mr. Khapre also relied on the judgment of the Apex Court in the matter of Bhagat Ram v. Teja Singh, reported in 2002 (Supp.) Bom. C.R. 753 and the said observation of the Apex Court reads thus:

We do not think that the law laid down by the learned Single Judge in the abovesaid decision is correct. Even if the female Hindu who is having a limited ownership becomes full owner by virtue of Section 14(1) of the Act, the rules of succession given under sub-section (2) of section 15 can be applied. In fact, the Hindu Succession Bill, 1954 as originally introduced in the Rajya Sabha did not contain any clause corresponding to sub-section (2) of section 15. It came to be incorporated on the recommendations of the Joint Committee of the two Houses of Parliament. The reason given by the Joint Committee is found in Clause 17 of the Bill, which reads as follows:

"While revising the order of succession among the heirs to a Hindu female, the Joint Committee have provided that, properties inherited by her from her father reverts to the family of the father in the absence of issue and similarly property inherited from her husband or father or father-in-law reverts to the heirs of the husband in the absence of issue. In the opinion, of the Joint Committee such a provision would prevent properties passing into the hands of persons to whom justice would demand they should not pass."

The source from which she inherits the property is always important and that would govern the situation. Otherwise persons who are not even remotely related tot he person who originally held the property would acquire rights to inherit that property. That would defeat the intent and purpose of sub-section (2) of section 15, which gives a special pattern of succession.

Then Mr. Khapre, the learned Counsel for the applicant relied on the judgment of the Apex Court in the matter of V. Dandapani Chettiar Vs. Balasubramanian Chettiar (Dead) by Lrs. and Others, (2003) 4 CTC 122 : (2003) 3 JT 81 : (2003) 6 SCALE 167 : (2003) 6 SCC 633 : (2003) 2 SCR 371 Supp , particularly paragraphs 10 and 11, which reads thus:

Sub-section (2) of Section 15 carves out an exception in case of a female dying intestate without leaving son, daughter or children of a pre-deceased son or daughter. In such a case, the rule prescribed is to find out the source from which she has inherited the property. If it is inherited from her father or mother, it would devolve as prescribed under Section 15(2)(s). If it is inherited by her from her husband or father-in-law, it would devolve upon the heirs of her husband under Section 15(2)(b). The clause enacts that in a case where the property is inherited by a female from her father or mother, it would devolve not upon the other heirs, but upon the heirs of her father. This would mean that if there is no son or daughter including the children of any pre-deceased son or daughter, then the property would devolve upon the heirs of her father. Result would be if property is inherited by a female from her father or her mother, neither her husband or his heirs would get such property, but it would revert back to the heirs of her father.

In the present case, it is not disputed that Rajathiammal died intestate without leaving any son or daughter or children of pre-deceased son or daughter. Hence, the property would devolve on the heirs of her father. It is contended that she got the property because of the compromise decree and, therefore, the property is not inherited by her from her father or mother. This submission, in our view, is without any substance. She was daughter of Sivabagyammal and, therefore, she was entitled to inherit the property of her maternal grandmother as her mother had expired. As some dispute was raised by the other heirs, a suit was filed. In that suit, rights of Rajathiammal were recognized and compromise decree was passed in her favour. Result is she got the property as daughter of her mother. That means, she got the property not from her husband or father-in-law, but from her mother side. In that state of affairs, the heirs of her father, that is, heirs of S.V. Venugopala Chettiar would be entitled to inherit her property in view of Section 15(2)(a) of the Act.

Mr. Shukla, the learned Counsel for the non-applicant relied on the judgments of the Apex Court in the matters of Omprakash and Others Vs. Radhacharan and Others, (2009) 6 JT 329 : (2009) 7 SCALE 51 : (2009) 15 SCC 66 : (2009) 7 SCR 1007 : (2009) 5 UJ 2341 , and Rohit Chauhan Vs. Surinder Singh and Others, (2013) 5 ABR 910 : (2013) 7 AD 611 : AIR 2013 SC 3525 : (2013) 4 CTC 539 : (2013) 4 PLR 662 : (2013) 4 RCR(Civil) 40 : (2013) 9 SCALE 433 : (2013) 9 SCC 419 . There cannot be any dispute on the proposition of law reflected in these judgments, more particularly the observations that the coparcenary property means the property which consists of ancestral property and a coparcener would mean a person who shares equally with others in inheritance in the estate of common ancestor. The Apex Court further observed that "coparcenary" is a narrower body than the joint Hindu family and before the commencement of the Hindu Succession (Amendment) Act, 2005, only male members of the family used to acquire by birth an interest in the coparcenary property. The learned Counsel Mr. Shukla made an attempt to take help from the aforesaid reported judgments on the backdrop of the factual aspects reflected in the present matter i.e. the plaintiff is urging a claim in the suit through his deceased wife Pushpatai, who expired prior to death of her mother Kusumtai and Kusumtai, who by a registered document declared the applicant as her power of attorney and in her lifetime alienated certain properties under the will to the applicant and certain properties were alienated to the purchasers in whose favour a right was created. The plaintiff filed the suit without placing the material document, such as power of attorney as claimed by him to his wife Pushpatai and without impleading the purchasers of the property and the applicant i.e. the defendant as the necessary parties and by raising this material ground on the backdrop of the submission that the suit is untenable, the learned Court below, without considering the material aspect on the ground that these are the mixed issues of facts and law, rejected the application, and as such the order passed by the learned Court below dated 18/12/2013 is untenable and in my opinion, the same deserves to be interfered with by this Court.

The order passed by the learned Civil Judge Senior Division, Nagpur, dated 18/12/2013 impugned in the application is quashed and set aside.

The application is allowed and disposed of accordingly.