Babita vs Neelavva and Others

S.N. Satyanarayana, J.—The plaintiff in O.S. No. 643/2002 on the file of II Addl. Civil Judge (Jr. Dn.), Belgaum, has come up in this appeal impugning the concurrent finding of both the Courts below in dismissing her suit for partition and separate possession in the suit schedule property by judgment and decree dated 29.1.2005 on the file of II Addl. Civil Judge (Jr. Dn.), Belgaum, which is confirmed by the Court of Addl. District Judge and Fast Track Court-III, Belgaum, in R.A. No. 546/2009 by judgment and decree dated 19.9.2009.

The brief facts leading to this second appeal are that the appellant herein who is the plaintiff in the original suit is daughter of Fakirappa Kadolkar @ Burud through his first wife Neelavva. It is stated that Fakirappa had taken 1st defendant Neelavva as his 2nd wife after the death of plaintiff''s mother Neelavva (incidentally the mother of plaintiff who is first wife and the first defendant, who is second wife of Fakirappa, the names of both of them are Neelavva only). Fakirappa had in all five children in his second marriage with Neelavva the 1st defendant. It is stated that Fakirappa died on 8.5.1995 i.e., after the amendment to Hindu Succession Act coming into force on 30.7.1994. After the death of Fakirappa, plaintiff filed suit in O.S. No. 643/2002 seeking the relief of partition of joint family properties which were standing in the name of her father, seeking 1/7th share to her in the suit schedule property.

In the said suit defendants 1 to 6 who are none other than the step mother, step brothers and sisters of plaintiff entered appearance, filed written statement denying her right to seek share in the suit schedule property on the ground that she was married prior to the amendment of Hindu Succession Act 1994 (Amendment Act) coming into force and as such she has no right to seek a share in the suit schedule property and that the suit properties are available for distribution among themselves who were in the joint family as on the date of amendment act coming into force. In the light of aforesaid pleadings, the trial Court proceeded to frame the following issues.

ISSUES

Whether the plaintiff proves that he is entitled to 1/7th share in the suit property?

Whether the defendants prove that in view of Hindu Succession Act (Karnataka Amendment Act 1990), the plaintiff has no right over the suit property?

Whether the defendants prove that the Court fee paid by the plaintiff is not proper?

Whether the plaintiff is entitled for the relief of partition and separate possession?

Whether the plaintiff is entitled for mesne profits?

What order or decree?

Thereafter the plaintiff adduced evidence as P.W. 1 and got marked 3 documents i.e., death certificate of her father and CTS extract of the suit schedule properties as Exs. P. 1 to P. 3. So far as defendants are concerned, no evidence was adduced and no documents are produced. The trial Court on appreciation of the oral and documentary evidence available on record proceeded to hold the issues framed against the plaintiff so far as her right to seek share in the suit properties under the amended provisions of Hindu Succession Act 1994 and dismissed the suit for partition which was challenged by her in R.A. No. 546/2009 on the file of Addl. District Court and Fast Track Court-III, Belgaum, wherein the lower appellate Court framed the following points for consideration.

POINTS

Whether the impugned judgment and decree is opposed to law and facts of the case?

Whether the impugned judgment and decree needs any interference by this Court?

What order or decree?

Thereafter on re-appreciation of the pleadings and evidence on record and also the judgment of the trial Court, the lower appellate Court proceeded to answer the point for consideration in the negative and dismissed the appeal of the plaintiff for the relief of partition. As against that the present second appeal is filed by the plaintiff in the original suit. When this matter came up for admission, this Court after hearing the appellant has framed the following substantial question of law.

Whether in the facts and circumstances of the case, the Courts below were justified in dismissing the suit holding that the plaintiff is married prior to commencement of Hindu Succession (Amendment) (Karnataka) Act, 1990 and therefore she is not entitled for share in the ancestral property?

Thereafter the trial Court records were secured. In this proceedings though the respondents who are defendants in the original suit are duly served, they have remained un-represented. Hence heard the learned counsel for the appellant, perused the grounds of appeal and as well as the judgments rendered by both the Courts below.

On going through the judgments rendered with reference to the pleadings and oral and documentary evidence adduced by the parties, it is clearly seen that the plaintiff was married much earlier to the Amendment Act to Hindu Succession Act came into force in the year 1994 and as such she was not a member of the joint family of her father Fakirappa at the relevant point of time. Therefore the finding of both the Courts below in holding that she is not a member of the joint family of Fakirappa as she was already married and residing along with her husband in the matrimonial house and dismissing her claim for partition on the strength of amended provisions of the Hindu Succession Act appears to be just and proper.

The learned counsel for the appellant tried to rely upon the judgment rendered by this Court in the matter of Pushpalatha N.V. Vs. V. Padma, Asha N.V., N.V. Tejkumar and N.V. Bahubali (Appi), AIR 2010 Kar 124 : (2010) 2 KCCR 1249 . However this Court is not willing to accept and follow the said judgment for the reason that the said judgment is subjected to appeal in the Apex Court and being stayed, hence following the said judgment to reverse the finding of both the Courts below does not arise. Even otherwise since the partition is sought in respect of only dwelling house it is seen that, as on the date of filing of the suit in 2002 Section 23 of the Hindu Succession Act was still in force, where she could not have sought for partition and separate possession of dwelling house, as there was clear bar under Section 23 of the Act as on the date of suit. In that view of the matter, this court find no justifiable grounds to interfere with the concurrent findings of both the Courts below.

In that view of the matter, this Court find that the question of reversing the said judgments does not arise for consideration in the present set of facts and circumstances. Accordingly this second appeal is dismissed answering the substantial question of law in affirmative.