Neelappa S/O Mallappa Vs. Gowramma W/O Ningappa, - Court Judgment

Excerpt:
- sections 8 & 14: [k.n. keshavanarayana, j] suit for partition - one s died intestate leaving behind him his wife and five sons - he had got the suit schedule property as his share in a partition between him and his brothers - wife (widow) made a will in respect of entire property in favour of great grandson, as an absolute owner - she died pending suit for partition -trial court held the property was separate property of s and on his death his wife became the absolute owner and that the will executed in favour of d-5 (great grandson) is valid and dismissed the suit - first appellate court reversed the finding of the trial court and held that all the five sons are entitled to 1/5 share each and that deceased d-1 (widow) was not the absolute owner - second appeal held, since the plaint schedule properties were the separate and exclusive properties of deceased s upon, his intestate death, his properties are inherited by all his class-i heirs as per section 8 of the hindu succession act. even if the original defendant no.1 has enjoyed the plaint schedule properties along with her husband after the partition, she did not acquire any exclusive right over the properties. at best she was entitled to enjoy the same till her lifetime. to a case of this nature, as rightly held by the lower appellate court, section 14 of the hindu succession act has no application. no doubt, as per sub-section (1) of section 14 of the hindu succession act, any property possessed by a female hindu, acquired either before or after commencement of the act, should be held by her as full owner thereof and not as a limited owner, explanation to sub-section explains the term property. according to this section, property includes moveable and immovable properties acquired by a female hindu by inheritance, or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person. whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as streedhana immediately before the commencement of this act. as noticed above, the plaint schedule properties were not inherited by defendant no. 1 nor it was transferred to her by any modes known to law. admittedly, it was allotted to the share of her husband at a partition and her husband died intestate. soon after the death of her husband, the estate left behind by him will have to be shared equally by his class-i heirs as directed by section 8. therefore, the trial court is in error in applying the provisions of section 14 of the hindu succession act to the present case. under these circumstances, the lower appellate court is justified in reversing the judgment of the trial court in this regard. merely because the 5th defendant (great grant son) has successfully established the execution and attestation of the will, it does not ipso-facto establish that he was succeeded to all the properties. the testatrix should have right over the properties bequeathed so that the beneficiary under the will succeeds to the properties. having regard to the fact that the original defendant no.1was not the absolute owner of the properties mentioned under the will, she could not have bequeathed the entire extent of the properties in favour of the 5th defendant under the will. there is no dispute that upon the death of s, defendant no.1 being the widow was entitled to succeed to the properties of her husband along with her sons and daughter. therefore, she succeeded to 1/6th share in the properties left behind by her husband. the question is as to whether she could bequeath her undivided 1/6th share in the plaint schedule properties under a will? section 30 of the hindu succession act, no doubt, empowers an hindu to dispose of the properties by will or other testamentary disposition of any property, which is capable of being so disposed of by him or by her in accordance with the provisions of the indian succession act, 1925. explanation to section 30 explains as to what is the interest of a hindu which can be disposed of by will or other testamentary disposition. according to this explanation, only the interest of a hindu in a mitakshara co-parenary property which can be disposed of by him or her by way of will or other testamentary dispositions. in the case on hand, in the case on hand, it is clear that the plaint schedule properties were not mitakshara coparcenary properties, as according to the contentions of the contesting parities, the plaint schedule properties were the exclusive and separate properties of s having been allotted to him towards his share, under the partition. therefore, section 30 of the hindu succession act has no application to the facts of the case. upon the death of s, original defendant no.1 became entitled to 1/6th share in the plaint schedule properties and each of her children were entitled to similar shares. thus, she became the co-owner along with her children in respect of the plaint schedule properties. her share was definite and only the division by meets and bounds had been postponed. under these circumstances, the submission of the learned counsel for the appellant that the original defendant no.1 could dispose of her undivided 1/6th share in plaint schedule properties by way of a will as provided in section 59 of the indian succession act has great force and deserves to be accepted. therefore, there is no difficulty in holding that the 1st defendant had right to dispose of her undivided 1/6th share in the plaint schedule properties by way of a will. the will of d-1 to the extent of 1/6th share is valid and the four sons and lrs of one son who was deceased will get 1/6th share each. as regards the alienation made by one of the son (plaintiff-4) while effecting partition by metes and bounds to the extent possible the share of plaintiff-4 to be identified in item-b (which he has sold). indian succession act (39 of 1925), section 59:will a testator who is having an undivided interest can dispose of her share by way of a will. section 30 of hindu succession act has no application. section 63: will interpretation testatrix claiming to be the absolute owner of entire property bequeathing in favour of her great grandson finding of the court that she is entitled to 1/6th share held, the will is valid to the extent of her 1/6th share. k.n. keshavanarayana, j.1. this appeal by the third defendant in o.s. no. 85/2002 on the file of the civil judge (jr.dn.), holalkere is directed against the concurrent judgments of the courts below decreeing the suit filed by the respondent-1/plaintiff for partition and separate possession of the suit schedule properties.2. the subject matter of the suit are four items of agricultural lands and two items of house properties situated in chikkayemmiganur village of holalkere taluk. the first defendant kenchappa, second defendant siddappa, third defendant neelappa and one ningappa husband of the plaintiff are brothers being the sons of one mallappa who was the propositus of the family. the said mallappa died leaving behind his four sons. subsequently, the husband of the plaintiff also died leaving behind only his wife viz., gowramma. the plaintiff filed the suit inter alia contending that all the suit schedule properties are the ancestral joint family properties of mallappa and his sons and upon the death of mallappa, his sons continued in the joint family and on death of her husband ningappa, the plaintiff became entitled to the share to which her husband was entitled to. therefore, she is entitled to 1/4th share in all the suit schedule properties and her request made to the defendants to effect partition and deliver separate possession of her share has yielded no result in these circumstances, the plaintiff sought for relief of partition and separate possession of her 1/4th share in the suit schedule properties.3. defendants 1 and 2 in their written statement admitted the case of the plaintiff except stating that they have not refused to effect partition of the suit schedule properties. they admitted that the plaintiff is entitled for 1/4th share and similarly each of the defendants are entitled for 1/4th share in the suit schedule properties as such they have no objection for effecting partition. however, the third defendant in his separate written statement though admitted the relationship of the parties interse and also the nature of the suit schedule properties, he contended that three more items of properties which are described in the schedule to his written statement are also ancestral joint family properties and the plaintiff deliberately has not included them in the suit schedule at the behest of defendants 1 and 2, therefore, he is entitled for a share not only in the suit schedule properties, but also in the properties mentioned in the schedule to his written statement.4. the parties led evidence in support of their contentions. the trial court, on assessment of the oral and documentary evidence held that tire third defendant has not proved by satisfactory evidence that the properties described in the schedule to ms written statement are also joint family properties, therefore, the trial court decreed the suit, and held that the plaintiff is entitled for 1/4th share in the suit schedule properties.5. on appeal by the third defendant, the lower appellate court affirmed the judgement of the trial court. as against these concurrent judgments, the third defendant is before this court in this appeal.6. having heard the learned counsel for the appellant and having perused the records of the courts below, i am of the opinion that the appeal does not involve any question of law much less substantial question of law. the relationship between the parties is not in dispute. it is also not in dispute that the properties described in the schedule to the plaint are all ancestral joint family properties. even the appellant admits that the plaintiff as well as the defendants are entitled for 1/4th share each in the suit schedule properties. he also admits that there was no partition of the properties mentioned in the schedule to the plaint. his only grievance before the trial court was that three more properties which are also ancestral properties have not been included in the suit schedule and that the parties are entitled for share even in those properties. both the courts below have concurrently held that the appellant has not established that the said three properties are also ancestral properties belonging to the family. as such the courts below have held that the parties are not entitled for any share in the said properties. the appellant defendant examined as dw. 1 in his cross examination has made crucial admission as under:thus from the admission made by the appellant, it is clear that three properties mentioned in the schedule are neither ancestral properties nor joint family properties. it is not the contention of the appellant that those properties were acquired by any one of the members of the family from out of the income derived from the joint family properties. in that view of the matter, the courts below have rightly held that the appellant/third defendant has not proved the case set up by him. therefore, the judgments of the courts below does not suffer from any illegality or irregularity. in this view of the matter, i am of the opinion that the appeal lacks merit.7. hence, the appeal is rejected.