CHANNABASAYYA A/F. PARAMESHWARAYYA KARASTHAL v. ANNAPURNAVVA W/O. PARAMESHWARAYYA KARASTHAL

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AGE: 68 YEARS,

OCC: AGRICULTURE and HOUSEHOLD WORK, R/O. HAVANUR, TQ and DIST: HAVERI.

2. PARAVATEVVA,

W/O PARAMESHWARAYYA KARASTHAL,

AGE: 75 YEARS, OCC: HOUSEHOLD WORK,

R/O.HAVANUR, TQ and DIST: HAVERI.

3. HALAMMA,

D/O. PARAMESHWARAYYA KARASTHAL,

AGE: 36 YEARS, OCC: HOUSEHOLD WORK,

R/O.HAVANUR,

TQ and DIST: HAVERI. … RESPONDENTS

(BY SHRI N P VIVEKMEHTA, ADV.FOR R1,

SHRI B.M.PATIL, ADV. FOR R2,

RESPONDENT NO.3-SERVED)

THIS APPEAL IS FILED UNDER SECTION 96 READ WITH

ORDER 41, RULE 1 OF CPC 1908, AGAINST THE JUDGMENT AND

DECREE DATED 25.10.2013 PASSED IN O.S.No.126/2006 ON THE

FILE OF THE SENIOR CIVIL JUDGE, HAVERI, DECREEING THE SUIT

FILED FOR PARTITION.

THESE APPEALS COMING ON FOR FINAL HEARING AND THE

SAME HAVING BEEN HEARD AND RESERVED ON 22.06.2021, THIS

DAY, R.DEVDAS J. DELIVERED THE FOLLOWING:

COMMON JUDGMENT

R.DEVDAS J.,:

A divided son, whether would be entitled to seek a share in the father's property or whether only the undivided would succeed to such property is the question that seeks consideration in these Regular First Appeals.

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2. The undisputed facts are that on 27.04.1971 Channabasayya was adopted by Parameshwarayya with due ceremonies. During the year 1976, Channabasayya filed O.S.No.38/1976 seeking declaration that he is the adopted son of Parameshwarayya and his two wives, Annapurnavva and Parvatevva and further sought for partition and separate possession of his 1/3^rdshare in the ancestral properties. The parties to the suit filed a compromise petition and as per the compromise petition, the relationship between the parties was admitted, more particularly, that Parameshwarayya had two wives and since no issues were born out of the wedlock, they adopted Channabasayya on 27.04.1971 with due ceremonies. Further, during May, 1971, the parties had entered into an oral partition and as per the said partition, the properties were divided and allotted. The suit was accordingly decreed by diving the joint family properties of Parameshwarayya into two. Five items of agricultural properties and a house situated in Havanur village panchayath limits bearing No.668 were allotted to the share of Channabasayya. The rest of the properties were retained by Parameshwarayya and his two wives as their joint share. Parameshwarayya died on

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14.10.1991. Thereafter, Parvatevva filed the instant suit in O.S.No.126/2006 against Annapurnavva claiming partition and separate possession in the suit schedule properties which are the properties that remained with Parameshwarayya and his two wives as per the compromise decree in O.S.No.38/1976. During the course of the suit proceedings, Channabasayya and one Halamma, i.e., the 3^rdrespondent herein filed an impleading application and came on record while Channabasayya contended that being the only son of Parameshwarayya, he too is entitled for a share, Halamma contended that she is the naturally born daughter of Parameshwarayya and Annapurnavva.

3. In the written statement filed by Annapurnavva, she claimed to be the first wife of Parameshwarayya and on the other hand, Parvatevva also claimed to be the first wife and that Halamma, was born out of the wedlock between Parvatevva and Parameshwarayya. In the matter of establishing the paternity of Halamma, documentary evidence such as birth certificate issued by the Birth and Death Register on 04.03.2006 at Ex.D.16, SSLC marks card Ex.D.17 and

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ration card at Ex.D.18 were produced and marked before the Court. However, Channabasayya, on his part had produced copies of the judgment in O.S.No.76/1994 along with copy of the deposition of Parvatevva to the effect that since no child was born out of the wedlock of Parameshwarayya and Parvatevva, she brought one orphan girl from Guttal police station and they treated the girl as their daughter. The trial Court, therefore, proceeded to reject the contention of Halamma and Parvatevva that Hallamma was the naturally born daughter of Parameshwarayya and Parvatevva. All the additional issues raised consequent to the written statement filed by Halamma have been answered against Halamma.

4. While answering additional issue No.4 - whether the 2^nddefendant Channabasayya proves that he has half share in the suit schedule properties as pleaded in his written statement, the trial Court has come to a conclusion that Ex.D.1 to Ex.D.6 which are sale deeds executed by Parvatevva and Annapurnavva in favour of various persons, go to show that after the death of Parameshwarayya, Parvatevva and Annapurnavva continued to be in joint possession of the suit

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schedule properties and Channabasayya has not produced any document in proof of his possession of the suit schedule properties. The trial Court has also gone to the extent of holding that since Channabasayya had not produced any documentary proof of the adoption ceremony, coupled with the fact that there is no documentary proof of his being in joint possession of the suit schedule properties, along with Parvatevva and Annapurnavva and since he has taken his entire share as per the compromise decree in O.S.No.38/1976, it was held that Channabasayya cannot claim any share in the suit schedule properties. Consequently, the suit filed by Parvatevva is decreed holding that she is entitled for half share in the suit schedule properties.

5. Aggrieved by the impugned judgment and decree, the adopted son Channabasayya and Annapurnavva have filed two separate appeals and both the appeals are heard and disposed of by this common judgment.

6. Regular First Appeal No.100028/0214 is filed by Channabasayya assailing the judgment and decree of the trial Court. The main contention urged on behalf of the appellant

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is that as per the compromise decree entered into between the parties in O.S.No.38/76, the fact that the appellant is the adoptive son, has been admitted by the plaintiff-Parvatevva on one hand and Parameshwarayya and Annapurnavva on the other hand. Therefore, it is submitted that when the legal status and relationship between the parties were admitted before a competent Court of law, question of re-consideration of such issues would not arise. Secondly, it was submitted that even if Channabasayya had divided himself from the joint family, nevertheless, he continues to be the only son of Parameshwarayya. Therefore, it is submitted that in terms of Section 8 of the Hindu Succession Act, 1956, Channabasayya is entitled for an equal share along with Parvatevva and Annapurnavva in the suit schedule properties.

7. Learned counsel would further submit that the trial Court has also erred in granting half share of the suit schedule properties to the plaintiff and has said nothing about the remaining half share. The learned counsel would submit that it cannot be inferred that the remaining half would go to Annapurnavva. As an alternative submission, the learned

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counsel for the appellant would also submit that in terms of Section 6 of the Hindu Succession Act, if notional partition is applied, the appellant is entitled to 1/3^rdshare in the share of the father, Shri Parameshwarayya.

8. Per contra, learned counsel for respondent No.1/Annapurnavva submits that when once it is admitted and proved by evidence on record that during the life time of Parameshwarayya, his adopted son Channabasayya had filed a suit for partition and the joint family properties were divided by allotting a specific share to Channabasayya, he stands separated/divided from the joint family. Therefore, in terms of sub Section (2) of Section 6 (B) of the Karnataka State Amendment of the Hindu Succession Act, 1956, since the appellant herein had separated himself from the co-parceners before the death of Parameshwarayya, the appellant is precluded from claiming a share in the interest of Parameshwarayya. In order to buttress his contention, learned counsel places reliance on a decision of the Allahabad High Court in the case of DEBI MANGAL PRASAD SINGH

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VS. MAHADEO PRASAD SINGH reported in (ILR 1912 ALL

234).

9. At this juncture, learned counsel for the appellant would draw the attention of this Court to Article 341 of the Principles of Hindu Law by Mulla. The learned counsel would point out that the decision cited by the learned counsel for the 1^strespondent is not applicable after coming into force of the Hindu Succession Act, 1956. It is submitted that although the earlier view was that on the death of a father leaving self acquired property, an undivided son takes such property to the exclusion of a divided son, however, since Section 8 of the Hindu Succession Act, 1956, abolishes the distinction between a divided son and an undivided son in the matter of inheritance of self acquired property, the decision cited by the learned counsel for the appellant is not applicable. The learned counsel for the appellant has also filed a memo dated 21.06.2021 at the end of his argument stating that the appellant Channabasayya gives up the contention that Annapurnavva is the first wife of Parameshwarayya and supports the judgment of the trial Court that Annapurnavva is

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the second wife of the deceased Parameshwarayya and that the appellant restricts his claim only to the extent of his share, as an adopted son of the deceased Parameshwarayya for which he is entitled under law. Consequently, the submission of the learned counsel for the appellant is that at any rate, the appellant, being the son of Parameshwarayya, the previous partition does not destroy the filial relation nor the rights of inheritance incidental to such relation and therefore, the appellant is entitled atleast for 1/3^rdof the share out of the father's share in the suit schedule property. It is submitted that if a notional partition had taken place just before the death of Parameshwarayya, he would be entitled for 1/3^rdof the share in the suit schedule properties and therefore, the appellant being the divided son is now entitled for 1/3^rdshare in such share of the father.

10. On the face of it, it appears as if this question is mundane and there may be any number of authoritative decisions throwing light on the contentious issue. However, surprisingly, both the learned counsel submitted that there were not many decisions of recent origin on this point.

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11. Before delving into this question, it is necessary to consider whether the trial Court was right in coming to a conclusion that the plaintiff-Parvatevva is the legally wedded wife of Parameshwarayya and her marriage with Parameshwarayya having been conducted in the year 1941, Parvatevva is the first wife of Parameshwarayya and therefore, Annapurnavva has no legal status of a legally wedded wife having regard to the provisions of the Hindu Marriage Act, 1955 and therefore, Annapurnavva was denied any share in the suit schedule properties.

12. As rightly submitted by the learned counsel on both the sides, the factum of Parameshwarayya having two wives having been admitted in a Court of law, in a previous round of litigation, the said question cannot be reopened for consideration. The decision of the trial Court in that regard requires to be held as perverse and is liable to be set aside. In the light of the said position, we are required to proceed on the basis of the division of properties in terms of the decree passed in O.S.No.38/1976.

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13. Now, therefore, the question is - whether after the death of Parameshwarayya, his two widows-Parvatevva and Annapurnevva who remained joint and enjoyed the immovable properties jointly along with Parameshwarayya are only entitled for a share in the joint family properties or whether Channabasayya, the divided son is also entitled for a share and if so, to what extent?

14. We have gone through the decision in Debi Mangal Prasad Singh (supra) and we find that the question there was - whether immovable property obtained by a Hindu widow on partition of the joint family property under the Mitakshara Law, is part of her streedhan in the narrow sense of that word, indicating her separate property or peculium which passes on her death to her own heirs or is merely part of streedhan in the wider sense. Therefore, not much light is thrown on the issue that has fallen for consideration in this case. On the other hand, a Full Bench of the Madras High Court in the case of VIRAVAN CHETTIAR VS. SRINIVASACHARIAR reported in AIR 1921 MAD 168 while considering a question as to whether on the death of a Hindu male, his self-acquired

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property devolves upon the sons by survivorship or inheritance, has dealt with the issue raised in the present case. The main issue therein was whether succession certificate was required to be obtained by a person claiming debts or debt in the property of the deceased, not only by succession, but under any title whatsoever. Per majority, it was held that the succession of the undivided son by inheritance was recorded as beyond doubt. It was noticed that the Privy Council in BALWANT SINGH VS. RANI KISHORE reported in (1898) 20 All. 267, which had noticed the text of the Mitakshara dealing with the rights of the sons in their father's self-acquisitions that though immoveables or bipeds have been acquired by a man himself, a gift or sale of them should not be made without convening all the sons. They who are born and they who are yet unbegotten and they who are still in the womb, require the means of support. No gift or sale should therefore be made, was held as only a moral percept and not a rule of law capable of being enforced in a matter of self-acquisitions of a male Hindu. It was held that the son acquires no legal rights over his father's self- acquisitions by reason of the text of the Mitakshara, his right

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is imperfect one incapable of being enforced at law. It was held that co-parcenary and survivorship imply the existence of co-ownership and of rights of partition enforceable at law and a mere moral injunction can hardly be the foundation of a legal right. The contention that sons acquire a right by birth in the father's self-acquired property was rejected by holding that, "he is his father's son, and if his father does not dispose of, it will come to him; but is it anything more than a Spes?"

So far as a father's self-acquisitions are concerned, the son, though undivided, has only spes successionis and he stands in relation to that property in the same position as heir under Hindu Law. The very essence of the distinction between Apratibandha and Sapratibandha daya is the existence of an interest in the son in respect of properties got by his father. The Full Bench noticed and approved the decision in the case of NANA TAWKER VS. RAMACHANDRA TAWKER reported in (1909) 32 MAD 377, where it was held that under the law of Mitakshara the self-acquired property of a father is taken by his undivided sons to the exclusion of a divided son.

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15. In the case of NARASIMHA RAO VS. NARASIMHAN reported in AIR 1932 MAD 361, it was noticed that the question that was answered in the affirmative in Nana Tawker Vs. Ramachandra Tawker (supra) was referred to a Bench for re-consideration on the grounds that some doubt has been thrown on the correctness of that decision in a later Madras case, and it has been expressly dissented from by the Chief Court of Oudh. It was also noticed that the later Madras case in Vairavan Chettiar's case (supra) dissents from Nana Tawker on one point, but it does not dissent from it on the material point as to the exclusion from inheritance to the father of divided by undivided sons.

16. The decision in the case of FAKIRAPPA VS. YELLAPPA reported in AIR 1930 OUDH 77 and the commentary in Mayne's Hindu Law was noticed. It was noticed that a grandson who had sued his grandfather and uncles for a partition, obtained a decree as to all the joint property, but failed as to a part which was held to be the separate property of the grandfather. On the death of the grandfather, he brought a fresh suit for a share of this,

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contending that by descent it had become joint property. This was perfectly true, but the answer to the plaintiff was that he was no longer a member of the co-parcenary. On the grandfather's death his interest in the joint property passed to the remaining co-parceners by survivorship. His own separate property passed to his united sons as heirs and in their hands became an addition to the joint property, in which the divided grandson had no interest. In other words, it was held that the separate property becomes part of the joint property in the hands of the heirs and, as a divided member no longer belongs to the co-parcenary and has no interest in its property, he can take no share in it.

17. A Full Bench of the Allahabad High Court in the case of GANESH PRASAD VS. LALA HAZARI LAL AND OTHERS reported in AIR (29) 1942 ALL 201, noticed the earlier decisions that the succession of the male issue is by right of survivorship to joint estate and must be confined to sons who are united co-parceners and cannot include a separated son; the succession to a joint estate goes by survivorship to the co-parceners and the separated

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sons/grandsons cannot be regarded as co-parceners with the grandfather at the time of his death; a partition once made must be presumed to be final and complete. To hold otherwise would be to open the door to a flood of litigation, for in every case a separated son can always putforth the suggestion that a portion of his father's property was self- acquired. The Court also noticed the argument that if sons have by birth an interest in their father's self-acquisitions, and if at the time when a son separates himself there are such self acquisitions in existence, then inasmuch as at partition, the son cannot obtain any share of the self-acquisitions, he would be entitled on the death of the father to regard them as property of which he could demand a share in the same way as if due were ordinary coparcenary property which, for some reason or other, had been omitted from the original partition. The answer is that while theoretically the sons have an interest by birth in their father's self-acquisitions, still, as the father can dispose of those acquisitions at his pleasure they are not coparcenary property in the ordinary sense, and it is only the latter property that can form the subject of partition. After obtaining on partition his share of all the divisible

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property, the separating son loses all the rights which he had as a member of the coparcenary and it was only as a member of the coparcenary that he had by birth an interest in his father's self-acquisitions. All the right that remains to him with regard to his father's property is the right by virtue of his sonship to inherit in the absence of undivided sons. The specific question that was considered was whether the divided son has any right of inheritance where undivided sons exist at the father's death. It was held that there is no text of the Mitakshara which directly distinguishes between the right of inheritance of an undivided and of a divided son. Argument and counter argument stating that the proposition that undivided sons will have preference is so obvious that there was no necessity to state it and on the other hand it is contended that in the absence of any text to the contrary divided and undivided sons must be held to have an equal right of inheritance by virtue of their relationship with their father, for it is this which determines their right to the property, was considered. The Full Bench noticed the commentary in Sarvadhikari's "Hindu Law of Inheritance"

where it was provided that sons legally separated from their

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father have not, on his death, any claim to inherit his property with a son not separated. Thus, where a father separates from his sons, an after-born son alone inherits the share which his father took on partition as well as any wealth acquired by the father subsequent to partition. The commentary on similar lines in Sarkar's "Hindu Law", Edition 7 at page 494 was also noticed. An argument regarding the different posts in the two Schools of Law i.e., Dayabhaga and the Mitakshara were also heard and considered. It was held in that regard that there was no difference or distinction as regards succession of self-acquired property in the two Schools of Law.

18. The declaration of Sarasvati Vilas to the effect that the son born after partition shall divide with such of the brothers as lived in reunion with the father after partition - and that where father has two or three or many sons and is divided with some and undivided with others, property acquired by him shall be divided after his death only among his undivided sons, was also noticed. The Full Bench noticed a common thread running in all the Shastric texts that the self- acquired property of the father divided from his sons goes

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entirely to the son born after that partition. Those born before have been declared to have no right over it. Per majority, it was concluded that a son born after separation inherits the father's self-acquired property to the exclusion of divided sons. Re-united sons share this preference with such after born son over divided sons. There is sufficient reason for giving a preference to the joint sons over the divided sons who are not members of the coparcenary.

19. Similarly, a Division Bench of the Allahabad High Court, Lucknow Bench, in the case of RAM DEI VS. GYARSI

reported in AIR (36) 1949 ALLAHABAD 545 which was cited by the learned counsel Shri Vivek Mehta, it was held that:

" If the father dies as a member of a joint Hindu family with his sons and grandsons, leaving self- acquired and ancestral property, the property in the hands of the sons and grandsons in which they have acquired interest by birth is joint family property, and they must hold it as joint owners without specification of shares. If the sons and grandsons have already separated in the lifetime of the father, then there being no joint family, the paternal estate that is inherited by them can be held by them only as co- owners. If the father was joint with some of his sons

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and grandsons and separated from the others, the property both self-acquired and ancestral belonged to the joint family of which the father was a member. On the death of the father there can, therefore, be no question of his separated sons or grandsons getting a share in the same."

20. Answering the question referred to the Full Bench, it was held that the self-acquired property of a Hindu father which his sons who were joint with him get on his death is in their hands joint family property. As between the sons and their descendants, it is subject to all the incidents of a coparcenary.

21. A Division Bench of the Madras High Court had an occasion to consider the position after the Hindu Succession Act, 1956, came into force. In the case of

M.D.R.RANGANATHA VS. M.D.T.KUMARASWAMI reported in AIR 1959 MADRAS 253, in the same position, the right of a widow having regard to the Hindu Women's Right to Property Act, 1937, was also considered. The decisions a fortiori were also considered and it was held that the separated property got by Hindu father at partition of the joint family properties with his sons does not become coparcenary

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property in the hands of his divided sons, who had separated from him during his life time and therefore, after his death, each son takes the property as a tenants in common and not as joint tenants. It was canvassed before the Madras High Court that the decision of the Full Bench in VIRAVAN CHETTIAR B (supra) may have to be reconsidered in view of the observations in subsequent decisions and therefore, reference to Full Bench was also sought. But, the Division Bench held that the decision in VIRAVAN CHETTIAR

withstood the test of 37 years and the Court was satisfied that it does not deserve to be referred to a Fuller Bench and the ruling of the Full Bench cannot be doubted. The distinction sought to be drawn by the learned counsel seeking reconsideration, was answered by stating that to ascertain the extent of the son's right in and to a particular property belonging to the father, it is absolutely necessary to determine whether that property is paithamaha or swayarjita. This dichotomous division is fundamental. According to Hindu law (and in this there is no difference between the Dayabhaga and the Mitakshara) property must be one or the other. This division is not only mutually exclusive. It must also be

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exhaustive. You cannot leave out a property as not falling in either category, because how then will you determine the extent of the son's right in such property?" As there is no coparcenary in modern law between the Hindu father and his undivided sons regarding his self-acquired properties, as held in Kattamanachiar Vs. Rajah of Sivaganga, 9 Moo Ind Application 539 (PC), it is of importance to note that even regarding such self-acquired property the undivided son, even though he may not be the oldest or next son, will take the entire self-acquired property to the exclusion of his father. When it was further urged that the right of representation was inherited in a son, even if divided, the Division Bench held that the Hindu Law, like all other laws, is not always consistent or logical, and, sometimes, it is difficult to reconcile all the principles into one grand principle. The Division Bench went to hold that when once there has been a division, though there has been still a continuation of filial relationship between the father and the sons, the divided sons have ceased, beyond any doubt, to be the members of the coparcenary and they do not have any more right to the property by birth. That right by birth has been settled by the partition and in respect of

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that property which has fallen to the share of the father it is beyond comprehension as to how exactly the divided sons could still lay a claim co-extensive with that of the father or any of his undivided sons. That was the position under the Shastric uncodified and codified Hindu Law.

22. Now, coming to the question as to whether the Hindu Succession Act, 1956, has brought about any change in this regard. It can be seen that when the Act was brought into force in the year 1956, in Explanation (2) to Section 6 of the Act, it was provided that the Section was not to be construed as enabling a person who had separated himself from the co-parcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein. The State amendment was brought about by Karnataka Act 23/1994, where, under Section 6-B which dealt with interest to devolve by survivorship on death, Explanation (2) as found in Section 6 was once again provided for. However, on commencement of the Hindu Succession (Amendment) Act, 2005, Explanation (2) has been deleted. The State Amendment, however, continues and consequently, the Explanation (2) can be made applicable only to the

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particular Section i.e., Section 6-B which deals with the devolution of interest of a female Hindu who dies after commencement of the Hindu Succession (Karnataka Amendment) Act, 1990. Section 6-B provides that where a female Hindu dies after the commencement of the Hindu Succession Act (Karnataka Amendment) Act, 1990, having at the time of her death an interest in Mitakshara coparcenary property, her interest in the property shall devolve by survivorship upon the surviving members of the coparcenars and not in accordance with the Act. However, the proviso to Section 6-B provides that if the deceased (i.e., a female Hindu) had left any child or child of a predeceased child, the interest of the deceased in the property shall devolve by testamentary or intestate succession as the case may be under the Act and not by survivorship. Explanation (2) further qualifies the proviso by stating that before the death of the deceased (female Hindu) if a person had separated himself or herself from the coparcenars, such person or any of his or her heirs shall not claim on intestacy a share in the interest referred to therein.

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23. The submission of the learned counsel for the appellant appears to be the correct position, that since Explanation-2 has been deleted from the original provision and what is left in the State amendment as explanation is only referable to Section 6-B, which does not deal with succession to the property of a male Hindu dying intestate, there is no impediment for the appellant to claim a share in his father's property, in terms of Section 8 of the Act.

24. In terms of Section 8, on the death of Parameshwarayya, the coparcenars' property held in the hands of Parameshwarayya, Parvatevva and Annapurnavva, jointly, by a notional partition shall be divided into three shares, one share each for Parameshwarayya, Parvatevva and Annapurnavva. However, in the share of Parameshwarayya, the two widows and his son Channabasayya shall get 1/3^rd each. Since Channabasayya had separated himself from the joint family during the life time of his father, taking his separate share, he would not be entitled to seek a share at the time of effecting the notional partition. However, at the time of distribution of the property belonging to

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Parameshwarayya, in accordance with Section 8, his son Channabasayya and two widows who are the Class-I heirs as per the schedule are entitled for equal share in the separate property of Parameshwarayya. Consequently, Channabasayya will be entitled for 1/9^thof the suit schedule properties, whereas Parvatevva and Annapurnavva shall be entitled for 4/9^theach in the suit schedule properties. Accordingly, both the appeals are allowed in part.

25. A preliminary decree of 4/9^thshare in favour of the plaintiff-Parvatevva shall be drawn. As and when Channabasappa and Annapurnavva file separate valuation slip and pay the Court fee, they shall be entitled for a preliminary decree as stated above.

The impugned judgment and decree passed by the trial Court is accordingly modified.

Ordered accordingly.

(Sd/-)

JUDGE

(Sd/-)

JUDGE

Jm/-