Purnima Prakash Pattanshetti vs Manjunath Naganagouda Kulkarni

H.G. Ramesh, J.—Heard the learned counsel for the respective parties.

These appeals are filed being aggrieved by the judgment and decree of the I Addl. District and Sessions Judge, Dharwad, sitting at Hubli, in O.S. Nos. 6/2012 and 5/2011, respectively.

O.S. No. 5/2011 is filed by one of the daughters of Naganagouda against the other family members and O.S. No. 6/2012 is filed by one Manjunath S/o. Naganagouda Kulkarni. The suits are for declaration and partition and also for issuance of letter of administration in favour of the plaintiff in O.S. No. 5/2011.

The suit properties are claimed to be residential building and open space in plot Nos. 46 and 47 in the eastern portion of CTS No. 4311, situated at Vidyanagar, Hubli with the boundaries mentioned in the suit. Originally O.S. No. 5/2011 was filed for issuance of probate that was converted into a suit by entertaining the I.A. filed.

The case of the appellant in these two appeals is that the suit property was the self acquired property of Naganagouda Kulkarni, the father of the plaintiffs and the defendants. The suit was contested. As per the plaintiffs in O.S. No. 5/2011 though it is self acquired property of their father and in turn their mother Shantadevi executed a registered will in her favour, as such she became the owner and she is entitled for right, title and interest in the residential building bearing CTS No. 4311, plot no. 46, Vidyanagar, Hubli, under the will said to have been executed by her mother Shantadevi in her favour on dated 19.3.1999. However it is stated that she bequeathed all her right, title and interest in the remaining property equally to all her 11 children. It is stated, in the year 1961 the father of the plaintiff had constructed a house in plot No. 46 in CTS No. 4311 and breathed his last during 1977. On his death, the name of his wife Shantadevi has been, entered as the absolute owner and she was in exclusive possession and enjoyment since 1977. Further it is stated, Shantadevi during her life time executed a will on 18.6.1996 and subsequently revoked the same for various circumstances and change in her views and on 23.1.1999 she had put forth her wishes and decision in the presence of her five children calling them to fulfill the same and also communicated the same to other children who were staying away from her. In pursuance of the change in her views, she executed another will on 19.3.1999 and got the subsequent Will also registered in the Sub-Registrar''s Office, Hubli and this was in furtherance of her wishes and fulfillment of the same put forth before her children on 23.1.1999. It is stated that the second Will dated 19.3.1999 was duly executed by Shantadevi in the presence of two attesting witnesses who had subscribed their signatures in the presence of testator and after examining the health condition of Shantadevi by a qualified senior consultant physician with regard to status of mind. It is stated that Shantadevi by virtue of the said will dated 19.3.1999 bequeathed all her rights, title and interest in the residential building bearing CTS No. 4311, plot no. 46, vidyanagar, Hubli, along with the furniture and her personal belongings in her favour and to enjoy the said properties as the absolute owner after the death of the executant. She has also bequeathed all her right, title and interest in the remaining property equally to all her 11 children excluding the plaintiff since she had become the absolute owner of the eastern portion of the property bearing CTS No. 4311 given to her under the said Will. It is also stated in the said Will that after completion of education of the children of her 4th son by name Manjunath who is defendant no. 5, he has been permitted to stay in the first floor of the building which is bequeathed to the plaintiff. The said Shantadevi died on 13.9.2005 while under treatment in Vivekananda General Hospital leaving behind the plaintiff and the defendants. The Will dated 19.3.1999 executed by Shantadevi is her last will and also it is registered one. The plaintiff moved an application before the ADLR, requesting for making necessary mutation entries in her name in the said property in the concerned registers on the basis of the registered Will executed by her on coming to know that Manjunath had also moved an application before the ADLR on 5.11.2005 requesting for mutating all the legal heirs of the deceased Shantadevi in respect of the concerned property register relating to the said property. The ADLR having expressed his inability to mutate the names of the parties, intimated the parties to approach the Civil Court for obtaining necessary orders for considering their applications. Accordingly, she approached the Civil Court by filing a petition seeking letter of administration based on the registered Will dated 19.3.1999 executed in her favour by her mother and in favour of other defendants.

This Manjunath shown as defendant no. 5 in the suit in O.S. No. 5/2011 has filed his written statement stating that the provisions of Indian Succession Act is not applicable. The plaintiff has not properly described the suit property. It is contended that the property is comprised in CTS No. 4311, CTS extension ward measuring 120'' x 90'' situated at Vidyanagar, Hubli, consisting of plot Nos. 46 and 47. There is a residential building on plot No. 46 and plot No. 47 is an open site, where ''samadhi'' of the father of this respondent Naganagouda Kulkarni exists since 9.3.1977 and it is built by black granite stone and is surrounded by coconut, mango and jack fruit trees which covers the entire plot no. 47. This samadhi is of great emotional, sentimental value to the family. It is also stated that the entire property is worth Rs. 75,00,000/-. It is further contended that it is the self acquired property of Naganagouda which he had; acquired under the registered sale deed dated 20.5.1963 and it was developed by Naganagouda out of own money and while he was alive, he had left behind a Will duly executed by him on 15.4.1974, while he died on 9.3.1977. It is further contended that in the Will it is made clear that his eldest son Umesh though was given in adoption, but still he is entitled for a share in the property. Similarly he had also made known in his Will that his five daughters soon after their marriage shall lose their absolute rights in the property acquired by him and has specifically and definitely made it clear that the said property is a joint family property of only his sons who are seven in number. It is also further stated that at the time of construction of house it was named in the name of his wife Shantadevi. Because of short of funds, he had to avail loan to the tune of Rs. 18,000/- from his second son-Manohar who was a Gazetted Officer in the Government. As per the wish expressed in the Will of Naganagouda, he wanted that the name of Shantadevi be entered in the CTS record as the owner after his death. Therefore, after his death, name of Shantadevi came to be entered in the records with respect to suit property, but not as an absolute owner. Smt. Shantadevi, plaintiff and defendants have lived in the suit house till the death of Shantadevi on 13.9.2005 and property remained as joint family of the plaintiff and defendants and as such, Shantadevi continued in possession as absolute owner of the suit house. Wishes of the father in the Will has been acted upon by the plaintiff as well as defendants. It is further contended that as per the Will of their father, plaintiff and defendants jointly held the property along with their mother till her death and she cannot be in possession of the property in any way as absolute owner and it should be distributed among her heirs i.e., 7 sons viz., defendants 1 to 3 and 5 to 8. It is further contended that as the mother of the plaintiff and defendants did not had absolute ownership over the suit property, she could not have right to alienate the same, however, Shantadevi executed a Will in favour of plaintiff in O.S. No. 5/2011.

In O.S. No. 6/2012 similarly it is pleaded as is stated in the written statement filed in O.S. No. 5/2011. The same has been controverted by the plaintiff in O.S. No. 5/2011. With the above pleadings, the trial Court framed as many as ten issues for consideration in O.S. No. 5/2011 and in O.S. No. 6/2012 nearly eleven issues were raised. The trial Court after enquiry has observed that Ex. D-1 discloses that after the death of Naganagouda, the property exclusively belongs to his wife Shantadevi but she cannot sell or dispose of in any way as she likes detriment to the shares of all her seven sons though it is declared that after his death the house should be entered in the name of his wife Smt. Shantadevi for which his second son Manohar should have no objection because it stands in his name for purely loan purposes and that all the married daughters with their children, if any are always welcome to stay in the building existing on the suit property belonging to him enjoying the fruits of the trees including coconuts and all the daughters should be kept well satisfied according to the means existing to them of the widowed mother. Therefore, the intention of the declarant was to see that his wife Smt. Shantadevi should make use of the said property during her lifetime for the living of herself and the unmarried daughters by taking the help of sons or sons-in-law in letting out the portion of the property and utilising the rent amount for their living along with the pension amount for her existence befitting his position and status. Thus, on examining the provisions of Section 14 of Hindu Succession Act and also entertaining Ex. D-1, the trial Court opined that Ex. D-1 creates a limited interest in the estate of the deceased executant of the said document in favour of his wife Smt. Shantadevi which falls within the purview of Section 14(2) and not under Section 14(1) of Hindu Succession Act. It further opined that Ex. D-8 which is said to have been executed by Smt. Shantadevi in favour of plaintiff in O.S. No. 5/2011 is without authority and ordered for treating plaintiff and defendants as Class-1 heirs stating that Naganagouda has not left any Will behind him, as such property is said to be in the hands of the successors by way of inclusion and accordingly, ordered for 1/12th share to be made available to both plaintiff and defendants in O.S. No. 5/2011 and O.S. No. 6/2012. Against this, these two appeals are filed.

Heard the learned counsel for respective parties.

The argument of the learned counsel for the appellant in both these appeals is that trial Court having noted the fact that property left in the hands of Shantadevi is her absolute estate and though limited interest is created in her favour as a life interest, having regard to the wordings in Ex. D-1, it depict the fact of absolute right under Section 14(1) of Hindu Succession Act and thus it may be treated as absolute property of Shantadevi, and as such provisions of Section 14(1) applies and not Section 14(2) of Hindu Succession Act and accordingly contended that the suit filed by the plaintiff in O.S. No. 5/2011 ought to have been decreed. He also submitted that the Will at Ex. D-8 executed in favour of plaintiff in O.S. No. 5/2011 by Shantadevi is to be acted upon and she has to be conferred with title and accordingly sought for allowing the suit by setting aside the judgment and decree passed by the trial Court.

It is further submitted by the learned counsel for the appellant that on reading of Ex. D-1, the entire contents refers to the fact that Shantadevi is the absolute owner of suit property in view of Section 14(1) of Hindu Succession Act as she became absolute owner by virtue of intention of the testator though for limited interest and also the very fact that it was the intention of the testator that name of the house has to be kept in the name of Shantadevi would also indicate the fact that Shantadevi is in absolute possession of the suit property and the Will executed in favour of this plaintiff has to be acted upon.

The learned counsel appearing for respondents submitted that rightly the trial Court has held that plaintiff has no absolute interest in the property and accordingly property has been made available for partition by looking into the contents of Ex. D-1. In the absence of any testament, except Ex. D-1 which is in the form of conveyance of general intention of Naganagouda, Ex. D-1 has to be seen so and not to be acted upon. Even though life interest is conferred on Smt. Shantadevi, but she cannot alienate the property as Section 14(2) of the Act applies in the case on hand and not Section 14(1) of the Act and also the Will executed in favour of plaintiff in O.S. No. 5/2011 has came into existence in suspicious circumstances and accordingly contended relying upon the authorities reported in the judgment of Apex Court and other High Courts that the trial Court has passed an order allotting 1/12th share to each of the parties which is proper and correct, as such there shall not be any interference in the order passed by both the Courts below.

In the light of the arguments advanced by learned counsel appearing for both parties, the points that arise for consideration are:

"1. Whether trial Court is justified in holding that the plaintiff and defendants together are entitled for 1/12th share each?

Whether the finding of the trial Court that the eldest son who went in adoption has also been allotted one share is correct?

As per the contention of the parties, whether Section 14(1) or Section 14(2) of Hindu Succession Act applies has been rightly assessed by the trial Court or not?

What order?"

The trial Court on detail discussion, clubbed both the suits filed by one of the daughter of Naganagouda i.e., plaintiff in O.S. No. 5/2011 for issuance of letter of administration in favour of the plaintiff in respect of suit schedule properties and another by defendant No. 5 in O.S. No. 5/2011 in O.S. No. 6/2012 for partition and declaration. Of course, O.S. No. 5/2011 is filed based on the alleged Will said to have been executed in her favour by Shantadevi vide Ex. D-1. The trial Court observed that Smt. Shantadevi became absolute owner of the entire property as such whatever is bequeathed in favour plaintiff in O.S. No. 5/2011 vide Ex. D-1 should be after the death of Shantadevi. As such, Section 14(2) of the Act applies as Shantadevi has been conferred with the absolute right as per the intention of Naganagouda. Although it is tried to contend by the parties that only male members are entitled and not the female members, in this situation, the document Ex. D-1 cannot be accepted for all practical purposes, except to know the intention of Naganagouda who is the sole owner of the property. Subsequently, by virtue of the document Ex. D-1, Naganagouda sought to speak that after his death, the property shall be vested in the hands of his wife Shantadevi and after the death of Shantadevi, it shall be enjoyed as a whole by all the children including male and female children instead of property being divided. Hence, after the death of Naganagouda, the property has to be conferred on Shantadevi and then to his children according to law i.e., Hindu Succession Act. Of course, rightly the trial Court relying upon Ex. D-1 tried to allocate share i.e., 1/12th share to each of the parties. But the question remains that whether Shantadevi is entitled for one share in the property on the ground that she has only limited interest. In the fact situation, Section 14(2) of the Act is not applicable in view of the fact that she has been conferred with the right to enjoy the property. According to Section 14(1) of the Hindu Succession Act, 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. Hence, Shantadevi is also entitled to have one share along with her children viz., sons and daughters. May be that 1/12th share is made by the trial Court on the preponderance of probabilities that the eldest son who had been given in adoption also has to be given one share in the family and he is also entitled for one share because he had also contributed amount towards construction of building from out of his savings even though he went in adoption to another family and also it was the wish of the late Naganagouda.

In view of the above, I am of the opinion that all the sons, daughters and mother-Shantadevi are entitled for 1/13th share each in the suit schedule properties. Out of 13 shares, one share of Smt. Shantadevi shall be made available to the plaintiff in O.S. No. 5/2011 as the Will which is said to have been executed by Shantadevi is proved by examining the attesting witness. Hence, all the children of Naganagouda are entitled for 1/13th share, except the plaintiff in O.S. No. 5/2011 who is entitled for 2/13th share in the suit properties.

So far as graveyard is concerned wherein tomb has been build as per the wish expressed by Naganagouda himself during his lifetime, that should be preserved as such and even the trial Court has also considered that aspect. So far as remaining area of graveyard is concerned, the same cannot be treated as a place of graveyard. Only an extent of 10'' x 10'' could be treated as graveyard where tomb is there and the remaining area shall be divided among the parties. So far as other suit immovable properties are concerned the same can be divided among brothers and sisters as per one share to each and also one more share to mother of the parties. So far as plaintiff in O.S. No. 5/2011 is concerned, as she has been bequeathed the share of Smt. Shantadevi, she is entitled for 2/13th share and personal belongings including furniture and jewels etc., of Shantadevi as per the Will, as Will is duly proved. So far as plaintiff in O.S. No. 6/2012 is concerned, he is entitled to 1/13th share. It is also made clear that an extent of 10'' x 10'' in R.S. No. 47 i.e., graveyard area is to be preserved retained by putting up a compound wall as a matter of sentiment. It is further made clear that, so far as partition of the property is concerned, it can be sold for reasonable price acceptable by both plaintiff and defendants, as per the market value and amount could be shared among themselves as mentioned above or else plaintiff could go for execution. Further, if any of the sharers are interested in giving up their share to other sharers, they can do so.

While answering the points raised accordingly, Appeals are allowed. However, the division of property or selling of property with an understanding arrived at by the parties shall be completed within three months from the date of receipt of copy of this order.

No order as to costs.