Judgment:
1. The appellants are defendants in the trial Court. They have challenged the judgment and decree of the District Judge, Anantapur, dated 19-2-1988 passed in AS 137 of 1982. By the impugned judgment and decree, the appellate Court set aside the judgment and decree of the District Munsif, Rayadurg, dated 31-3-1982 passed in OS 40 of 1981 and consequently decreed the plaintiffs suit for partition and for separate possession. It is in these circumstances, the defendants have approached this Court. I will be referring to the parties as per the ranking assigned in the trial Court.
2. Learned Counsel, appearing for the appellant, strenuously submitted that the impugned judgment and decree are liable to be set aside, both on question of fact and law. He further submitted that the plaintiff could not derive any title to the property after the death of her father Obanna (alias Obulesappa) in the year 1941. He further submitted that wife of Obanna by name Nagamma also admittedly died in the year 1950 very much prior to the Hindu Succession Act of 1956. In these circumstances, the plaintiff could not succeed to the property since the entire property, according to Hindu Law, wentto the branch of Narasimhappa, by survivorship and succession. Therefore, plaintiffs suit could not have been decreed for partition.
3. Learned Counsel, appearing for the respondents contended that the appellate Court has rightly decreed the suit. He elaborated the argument contending that Obanna died in the year 1941 and after his death, his wife Nagamma had rights under Hindu Women's Right to Property Act (ActNo.8 of 1937). Consequent to her death in year 1950, the plaintiffs succeeded to her property to the extent of the share of Obanna. Therefore, the appellate Court rightly decreed the suit by setting aside the judgment and decree of the trial Court. He further submitted that the appeal has no merits and the same is liable to be dismissed.
4. In order to appreciate the rival contentions, I think it appropriate to note the facts of the case. From the pleadings or record, it is clear that it is an admitted fact that Obanna, the father of the plaintiff and Narasimhappa, the grandfather of D1 and D2 were brothers. Obannna died in the year 1941 and he was succeeded by his widow Nagamma. Nagamma also died in the year 1950, leaving behind the plaintiff Kemply Venkatamma, and another daughter by name Narasamma. Narasamma also died leaving behind her son Hanumanthappa (defendant No.3 herein). As I have stated, Obanna had a brother by name Narasimhappa. He died leaving behind his son Chinna Obanna and D1 and D2 are the sons of Chinna Obanna. Chinna Obanna also died in the year 1946. On the basis of these facts, the plaintiff filed a suit for partition between herself, Hanumanthappa, M.P. Obanna D1 and Siddappa-D2 contending that she has 1/4th share in the property, whereas defendants contended that after the death of Obanna in the year 1941, the property being a coparcenery property was succeeded by his brotherNarasimhappa by survivorship. It was succeeded by Chinna Obanna. Chinna Obanna had a sister by name Mallappagari Lakshmamma. She also died issueless. Hence defendants 1 and 2 have succeeded to the property after the death of Chinna Obanna in the year 1946. Accordingly, the defendants 1 and 2 are the owners and possessors of the same. They have not given any share or any money towards the alleged share of the plaintiff in the Tamarind trees situated in the suit land. Defendants also denied the right title interest of the plaintiff and they further contended that the plaintiffs' were never in possession or contructive possession of the suit property along with the defendant and accordingly they prayed for the dismissal of the suit, and further contended that as the plaintiff had no right to the partition in the family property, the present suit for partition was liable to be dismissed.
5. The plaintiff examined herself as PW1. She also examined PWs.2, 3 and 4 to show her possession and interest in the property. She got marked. Ex.A1 resettlement register of Rayadurg (Extract) and Ex.A2 dated 20-9-1980 registered cover. They mainly relied upon the resettlement register (Extract) of Rayadurg vide Ex.A1. On the other hand, the defendant No.1 was examined himself as DW1 and he also examined DWs,2, 3, 4, and 5 to show the possession of the defendants. He got marked Ex.B1 dated 1-6-1956 Cist receipt and Ex.B2 dated 6-6-1972 another Cist receipt and Ex.B3 dated 19-2-1963 mortgage deed for Rs.1,800/-. The trial Court, on appreciation of the entire evidence on record, both oral and documentary, dismissed the plaintiffs suit. But, the appellate Court, on re-appreciation of the entire evidence, decreed the plaintiffs suit regarding her 1/4th share in the property. In these circumstances, the defendants have approached this Court by way of Second Appeal.
6. I should note at this stage itself that the trial Court held that on the admitted facts, the plaintiff could not succeed to the property according to the Hindu Law. I think it appropriate to extract that part of the judgment as under :
'The main point for consideration in this suit is to decide as to whether plaintiff and late Narasamma would suceed to the 1/2 share of Kudligi Chinna Oblesu after death of Nagamma the wife of Chinna Obulesu, It is contended on behalf of Counsel for defendant Sri S.Narasimha Rao, that under the provision relating to undivided co-parcenery interest in Hindu Law, it is to be held that the share of Kudligi Chinna Obulesu, father of plaintiff would devolve on father of D1 and D2 after death of Nagamma but plaintiff and her sister cannot succeed and therefore the point of succeeding to the property of Chinna Obulesu by the plaintiff after death of Nagamma does not arise and therefore D1 and D2 are entitled to sell to D4 under Ex.B1 with reference to the relevant provision I hold that the plaintiff and her sister cannot succeed to the property along with her sister to the share of property of Kudligi Chinna Obulesu after the death of his wife Nagamma. In the absence of succession obviously the plaintiff cannot have any right in suit schedule property to an extent of 1/4th share as claimed by the plaintiff. Hence, I hold that the plaintiff is not entitled for partition and separate possession of l/4th share in suit schedule property. I decide this issue in favour of defendants and against plaintiff.'
7. The appellate Court, in its judgment in paragraph 9, noticed the finding of the trial Court regarding the principles of Hindu Law applicable to the facts of this case, but refused to consider the above observation of the trial Court only on theground that the defendant did not take a plea in the written statement regarding the position of the law relied upon by the trial Court. But, from the written statement, I find that the second defendant clearly stated that:
'The plaintiffs father had nothing to do with the 'A' Schedule property, and he left Rayadurg more than fifty years ago, and was living at Kudligi in Kamataka State, and this defendant had not even seen him.'
The defendant denied the allegation that the plaintiffs mother was enjoying half share in the suit schedule property after the death of her husband. Even after the death of plaintiffs mother, plaintiff never enjoyed any share in the 'A' schedule property and the plaintiff was living at Rayadurg and her husband was working as a servant in the shop of late Papanna Shelly in Rayadurg. The plaintiffs husband also died about six years ago, and the plaintiff never claimed any share in the suit property nor she was given any amount representing the usufruct of the Tamarind trees standing in the land. They claimed exclusive ownership and possession of the property after the death of the father by paying Cist for all these years. They further contended that the plaintiff has no right to demand partition and there is no cause of action. From this written statement, it is clear that the defendants denied the right of the plaintiff for partition. The defendant pleaded all the necessary facts though they did not plead the principles of law applicable to the facts of the case. It is an established principle of law that all the principles of law need not be stated either in the plaint or the written statement. But, the Courts have got to see what are the principles of law applicable to the facts either admitted or proved in a particular case. The trial Court, on the facts proved, held that according to the principles of law applicable to the facts of this case,neither the plaintiff nor her mother could succeed to the property. The appellate Court in all fairness of things should have considered the position of the law applicable to the facts of this case. Thus, the appellate Court has definitely misdirected itself in not applying the principles of Hindu Law, and in not 'repelling the reasons assigned by the trial Court for non-suiting the plaintiffs.
8. So far as the relationship of the parties is concerned, DW1 has admitted that Obulesam or Obanna was the father of the plaintiff, and he had a brother by name Narasimhappa, the grandfather of the defendant. He stated that defendants 1 and 2 are the brothers, and one Mallappagari Lakshmakka, was the paternal aunt of his father, but she died issueless. They also admitted that the father of the plaintiff died 40 years ago leaving his wife Nagamma and Nagamma also died 30 to 35 years ago prior to filing of the suit, leaving behind Venkatamma, the plaintiff, and the deceased Narasamma. Narasatnma also died about 15 years back and defendant No.3 is her son. There is no dispute as to the identity of the property. The defendant denied any possession of the plaintiff either constructive or actual, and according to them, the patta was transferred in the name of Defendant Nos. 1 and 2 in the year 1953 and they have paid the Cist as per Exs.B1 and B2. The defendants also relied upon Ex.B3 mortgage deed to show that they mortgaged the property for Rs.1.800/- on 19-2-1963 and they have been enjoying the property exclusively. DWs.2, 3, and 4 have corroborated the version of DW1, as held by the appellate Court itself. It cannot be disputed that Ex.A1 produced by the plaintiff is extract of resettlement register, but the year in which the entry is made is not mentioned in Ex.A1. Ex.A1 shows the name of M. Lakshmamma, Narasimhappagari Sanna Obanna, and Chinna Obulesu, regarding survey No.380-A. It is certified as true copy by Tahsildar. From thesethings, it is possible to conclude that originally Obulesu alias Obanna, and his brother Narasimhappa, and the son of Narasimhappa, were living together. Even Lakshmakka also lived with them. According to the defendant, there was no partition of the family at any point of time. In fact, the present suit by plaintiff was for partition only on the ground that there was no partition at any point of time between their father and his brother. On the basis of these facts, whether the plaintiff would be entitled to partition of the suit property, is the point that is required to be considered by me ill thisappeal.
9. The fact that the plaintiffs father Obanna, and Narasimhappa were members of the joint family, and this property in question was inherited by them from their ancestors is admitted. Admittedly, the plaintiffs father Obanna, died in the year 1941 leaving behind his widow Nagamma and two daughters by name K. Venkatamma and Narasamma. By virtue of Hindu Women's Right to property Act, the deceased Nagamma had a limited right in the property. Under Section 3(3) of the said Act, Nagamma, as Hindu widow, had the limited interest known as Hindu Women's Estate, and she had a right of claiming partition as a male owner and this Nagamma died in the year 1950, as member of Joint family. Then, the ancillary question that arise for my consideration would be as to what happened to the life interest the deceased Nagamma got as on the date of her death in the year 1950. At that time, the Hindu Succession Act, 1956 had not come into force, and in fact, it came into force only in the year 1956. If Nagamma were to died after 1956, Section 15 of the Hindu Succession Act would have enabled the plaintiff to succeed to the property. But unfortunately, for the plaintiff, Nagamma died in 1950 only and at that time, there was no law enabling the daughter to succeed to the property of either father or mother andwhatever the interest Nagamma had, would devolve upon other coparceners of the property. Since there was no partition before the death of Nagamma, her husband's interest which she had in the property, also would not get crystallised. Having regard to these circumstances, the only legal consequence would be that her limited interest automatically devolved upon the heirs of Narasimhappa, her husband's brother. In other words, Chirma Obanna, being one of the coparceners of the family, succeeded to the property. And after the death of Nagamma, the share of Chirma Obanna stands enlarged. Consequently, the said properly would be succeeded by D1 and D2 as coparceners. Admittedly, even Chinna Obanna, the father of the defendants 1 and 2 died in the year 1946, and if that is so, defendants 1 and 2 being the grandsons of Narasimhappa, were the coparceners in the family and they succeeded to the property by virtue of their birth as sole surviving coparceners. The consequent legal position would be that the plaintiff, as the daughter of either Nagamma or Obanna, could not succeed to the property as per the law as it stood in the year 1950.
10. On the basis of her Hindu Women's Estate, Nagamma could not become even a coparcener, though on the basis of the right of her husband as a coparcener, she could seek partition. But the fact remains that she did not seek any partition until her death.
11. The Hon'bte Supreme Court in Potti Lakshmi Perumallu v. Potti Krishnavenamma, : [1965]1SCR26 , has clarified the nature of her estate, she has inherited under Hindu Women's Rights to property Act of 1937 as follows :
'... The various decisions to which we have adverted rest on the view that the interest which the law has conferred upon the widow is a new kind of interestthough in character it is what is commonly known as the Hindu Widow's Estate. This interest is in substitution of her right under the pre-existing Hindu law to claim maintenance. The decisions also recognise that though the widow does not, by virtue of the interest given to her by the new law become a coparcener she being entitled to claim partition of the joint family property is in the same position in which her deceased husband would have been in the matter of exercise of that right. That is to say, according to those decisions her interest is a fluctuating one and is liable to increase or decrease according as there are deaths in or additions to the members of the family or according as there are accretions to or diminutions of the property. In our opinion these decisions lay down the taw correctly. To hold, as contended for by Mr. Desai and as would appear from the two decisions upon which reliance was placed by him before us Jadaobai v. Puranmal, ILR 1944 Nag. 832 = AIR 1944 Nag. 243 and Siveshwar Pradsad v. Har Narain, ILR 23 Pat. 760 = AIR 1945 Pat. 116, would mean that whenever a coparcener in a Hindu joint family dies leaving a widow a disruption takes place in the family. For, unless a disruption is deemed to take place, it would not be possible for the widow's share to be crystallised. The argument of Mr.Desai, however, is that the words in the Act 'his widow shall, subject to the provisions of subsection (3) have in the property the same interest as he himself had' can only mean the interest which the deceased coparcener had at the moment of his death and the words 'shall be the limited interest known as a Hindu woman's estate' show that the nature of her interest was to be the same as already recognised by the Hindu law. The Legislature did not, he says, intend to create a new kind of interest nor to make her a coparcener. Undoubtedly shedoes not become a coparcener, though her interest in the family property is to be the same as that of her deceased husband except that in extent it is to he that of a Hindu widow.'
12. From the above law laid down the Hon'ble Supreme Court, it is clear that Hindu Women's Estate recognised her pre-existing Hindu law right to claim maintenance, and the legislature did not intend to create a new kind of interest in her favour nor intended to make her to become a coparcener, though her interest in the family property is to be the same as that of her deceased husband, except that it becomes the estate of a widow. If the widow also died without there being any partition during her life time, the coparceners rights of her husband would automatically stand devolved upon the other surviving coparceners of the family.
In other words, whatever the rights Nagamma had as a widow under Hindu Women's Rights to Property Act, do not stand in abeyance to be inherited by the plaintiff after the commencement of the Hindu Succession Act, 1956. But, they devolve upon the other surviving coparceners.
13. The Hon'ble Supreme Court in Satrughan Isser v. Subujpari and others, : [1967]1SCR7 ruled as under :
'.....If the widow after being introduced into family to which her husband belonged does not seek partition, on the termination of her estate her interest will merge into the coparcenery property.'
From the law declared by the Supreme Court in the above judgment, it is clear that if the widow dies without seeking any partition of her estate under the Hindu Women's Rights to Properly Act, herinterest would merge into the coparcener property.
14. Admittedly, the defendants father Chinna Obanna died in the year 1946, and the other surviving coparceners would be defendant Nos.1 and 2. Therefore, having regard to this position of Hindu Law only, the trial Court rightly held that the plaintiff could not get any rights by succession either from her deceased father or from her mother and as such, she could not claim partition in the suit schedule property. But, the appellate Court, without considering this position of law, decreed the suit only on the ground that this question of law was not raised in the written statement. It discussed other evidence regarding other aspects which are almost admitted by both sides except that the defendants claim that they were owners in possession of the property being successors to their father. As far as the plaintiff is concerned, she has not produced any evidence to show that she was in possession or in constructive possession along with the defendants after the death of her mother in the year 1950. Having regard to these circumstances, the trial Court dismissed her suit and in view of the principles of the law applicable to the facts of this case, the appellate Court could not have allowed her appeal. In this view of the matter, the judgment and decree of the appellate Court cannot be sustained. Accordingly, I pass the order as under:
The appeal is allowed and the judgment and decree of the appellate Court is set aside by restoring that of the trial Court. The parties shall bear their own costs.