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Petitioner: Gopalakrishna (D) By LRS. & ORS. VS Respondent: Narayanagowda (DEAD) By LRS. & ORS.
Court Name: Supreme Court of India Judge(s): Ashok Bhushan, Kuttyil Mathew Joseph Title: Gopalakrishna (D) By LRS. & ORS. vs Narayanagowda (DEAD) By LRS. & ORS. Case No.: Civil Appeal No. 1332 of 2008 Date of Judgment:2019-04-03 Reported As: 2020 P SC 290 Result: Appeals dismissed
JUDGMENT
JUDGMENT K.M. JOSEPH, J. --- 1. This appeal filed by special leave is directed against the judgment dated 28.11.2005 passed by the high Court of Karnataka in Regular Second Appeal Nos. 870/1996 and 871/1996. The High Court, by its impugned judgment. dismissed the appeals and affirmed the judgment of the First Appellate Court which had reversed the decree passed by the Trial Court. The Trial Court decreed- the suits [O.S. No. 68/1985 and 21/1986 (O.S. No..393/75)] filed by the appellants. 2. The case of the appellants is as follows:- One Ramanna was the owner of the properties which are scheduled to the plaint He passed away in 1907. He was married to Jankamma (first wife) who predeceased him. The second wife Seethamma passed away in the year 1938. Through his first Wife (Jankamma) he had a daughter named Venkamma Venkamma passed away in 1910. Venkamma in turn, had a daughter named Jankamma. The appellants before us claimed right to the properties by virtue of sale deeds executed by Jankamma in the year 1955. After the sale executed by Jankamma the father of the first plaintiff and the second plaintiff claimed that they were in possession the suit properties. The respondents filed the suits (bearing O.S, Nos. 21,and 213 of 1955) for declaration of their title and injunction. The said suit was decreed by the Trial Court. The High Court in second appeal set aside the decree of the lower court and confirmed the sale of Jankamma in favour of the first plaintiff's father and the second plaintiff and held that title to the properties could not be decided. It is their case that since Venkamma survived Ramanna, Jankamma became a full owner of the properties and through her under the sale deed, the plaintiffs claimed absolute ownership, and sued for declaration of title, recovery of possession and mesne profits.
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3. The respondents, on the other hand, denied the allegations that Ramanna had a daughter by name Venkamma and Venkamma had a daughter by name Jankamma. The ownership by Jankamma was denied. Seethamma had sold the properties to her brother - Srinivasa Rao. It is the further case of the respondent (defendants) that they purchased property from Siinivasa Rao under registered sale deed dated 13.09.1954 and they are in possession since then. They also claimed adverse possession. They have been found to be in possession right upto the High Court in the earlier proceedings. 4. The Trial Court decreed the suit and found inter alia that Venkamma was the daughter of Ramanna and Venkamma had two daughters by name Patamma and Jankamma. Patamma died and Jankamma alone survived. The Trial Court further proceeded to enquire whether Jankamma had acquired any right in the properties of her grandfather which was alienated to the plaintiffs. The Court referred to the following findings of the High Court in the earlier litigation commenced by the respondents: 17. Now, whether Seethamma independently got any right to acquire the suit property from her husband is a matter to be looked into. Further, this aspect has also been considered by the Hon'ble High Court in S.A. No. 801/60 at page-16. It is observed in the said judgment:- "Now it should be point out that although there is no dispute tha Ramanna left behind him his wife Seethamma, who died in the year 1938, there was a serious controversy in this litigation in regard to the question whether Ramanna had a daughter Jankamma. A question which was even more serious than that was whether Venkamma was alive when Ramanna died in the year 1907 or there about. This question assumes great importance in the context of the finding recorded by the courts below, that Seethamma under the provisions of Mysore Hindu Law Women's Right to property Act became an absolute owner- of the properties of her husband. It is clear from Sec. 10(2)(g) of the Act that she could become absolute owner of these properties, only if Ramanna when he died did not left behind his a daughter or daughter's son. If Venkamma was the daughter of Ramanna and she was alive when Ramanna died, then it becomes clear that Sec. 10(2)(g) of the Act is no application and Seethamma had only a widow's estate and the properties could not become her Sreedhana properties. It was for this purpose to demonstrate that they did not that way become Sreedhana properties of Seethamma that defendants contended that Ramanna left behind him his daughter Venkamma and that venkamma had a child Jankamma, who could convey to the contesting defendants the properties purchased by them. Both the courts have found that Venkamma was the daughter of Ramanna and that finding being a finding on the question of fact has remained undisturbed. They have further found that defendant No.8 is Jankamma, daughter of Venkamma and that finding is equally unassailable for the same reason. 18. While answering issue Nos. 1 and 2, not only I have come to the conclusion that Venkamma survived her further and she was the daughter of Ramanna and she had a daughter by name Jankamma but earlier proceedings between the same parties have also established this fact beyond any shadow of doubt. When Venkamma survived her father, who died in the year 1907, then Seethamma, the 2nd wife of late Ramanna enquiring the properties of her husband could not have been there at all. Because as it is already stated above under Section 10(2)(g) of Hindu Law Women's Right to Properties Act she could not become an absolute owner of the properties of her husband, Ramanna. Because Ramanna had left behind his daughter Venkamma. The said Venkamma died in the year 1910. Leaving behind her daughter by name Jankamma. So under Section 10(2)(g) of the said Act, Seethamma had only a widow's estate but the properties of her husband could not form her Srecdhana properties so in that way any alienations made by 'her in favour of her brother Srinivasa Rao were all illegal." 5. When Venkamma survived her father then Seethamma (the second wife of Ramanna) could not acquire properties of her husband. Reference was made to Section 10(2)(g) of the Mysore Hindu Law Women's Right Act, 1933 (for short 'the State Act'). On finding that Ramanna had left behind her daughter - Venkamma who died in the year 1910, therefore under Section 10(2)(g) of the Act, the widow Seethamma had only widow's estate which could not form her Stridhan properties and therefore any alienation made by her in favour of her
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brother - Srinivasa Rao was illegal. Seethamma was found to have no vested interest in the properties of her husband except having widow's estate. Seethamma herself had not acquired any saleable interest in the properties of her husband - Ramanna. It was observed that in the earlier second appeal that the sale by Srinivas Rao in favour of the respondents could not be sustained and accordingly the sale had been set aside only confirming the decree for permanent injunction against the appellants. The sale of the properties by Jankamma was upheld in the earlier proceedings. On this basis, the sale of properties by Seethamma in favour of her brother was found to be illegal entitling the plaintiffs to declared as owner. 6. The contention of the respondents was that they were in possession and there were also entries in the revenue record to that effect. It was found that the entries in the revenue record would not advance the case of the respondents. The Trial Court proceeded to consider the question whether the possession of the defendants could be found to be adverse and the Court came to the conclusion that the defendants had miserably failed to establish adverse possession. The contention based on limitation was accordingly rejected. Accordingly, on these findings, to suit came to, be decreed declaring the appellants as owners of the scheduled properties and entitled to recover possession of the suit properties and also mesne profits from the respondents. 7. In the first appeal, the Appellate Court inter alia found that the respondents were in possession and if the properties were not recovered within 12 years, then the right to recovery is extinguished as per the decision in [AIR 1972 Mysore 22]. Though the High Court in the earlier round of litigation observed that the question relating to whether Venkamma survived Ramanna or predeceased him has to be decided, the appellants should have approached the Court immediately but they had approached the Court with the delay of beyond 12 years and that too without giving any proper explanation for the delay. It was found that the right of the appellants for recovery of possession on the foot of their acquisition of title by sale from Jankamma on 16.04.1955 accrued on 16,04.1955. The judgment of the High Court in the earlier second appeal delivered on 16.09.1963 did not give rise to any cause of action. Accordingly, the appeals were allowed and the suits were dismissed. Proceedings in the High Court 8. The High Court framed the following substantial, questions of law in R.S.A. No. 870/96 and R.S.A. No, 871/96: R.S.A. No. 870/96 i) Whether the finding of the first appellate Court that the suit is barred by time is without considering the provisions of Section 65 of the Limitation Act of 1963? ii) Whether the finding that the respondents have perfected their title by adverse possession is justified when they have contended that they are the owners of the property by virtue of a registered sale deed? R.S.A:No. 871/96 i) Whether the lower appellate Court was justified in holding that the suit was barred by limitation? ii) Whether the lower appellant court was justified in holding that the respondents acquired title by adverse possession? 9. The High Court came to the following findings after referring to the relationship of the parties. It was found inter alia that during the life time of Jankamma although the properties were sold by Seethamma in favour of his brother Srinivasa Rao but she had not challenged the same, so possession of the properties by the defendants by virtue of sale deed in favour of Srinivasa Rao and by Srinivasa Rao in favour of the respondents remained unchallenged and that would be the starting point of limitation. 10. The transferees from Jankamma namely the appellants moved the Court only in 1975, 1985 and 1986. As per Madras School of Mitakshara Law in a catena of decisions, it is held that at a place other than Bombay State the right of survivorship necessarily is in favour of the widow than the daughter and the grand-daughter. So the alienation . made by Seethamma in favour of Srinivas Rao and by Srinivas Rao to the respondents could not be said to be invalid.
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11. Thereafter, the Court referred to the the State Act' and observed that even under Section 4 as per Section 4(1)(ii) of the State Act, the widow stands in preference to the daughters i.e. the right of widow (Seethamma) is preferable to the right of daughter and Jankamma's position comes only afterwards. Jankamma - the grand daughter is in category (ix) of the aforesaid provision. 12. Such being the position of law, the sale made by Jankamma, grand-daughter of Ramanna, in favour of the appellants, if any, is non est, more so, as noted, since Jankamma had not challenged the earlier sale made by Seethamma in favour of Srinivas Rao. Seethamma although had a limited interest, the- alienation had not been challenged by the reversioners of Ramanna for 50 years. The right of Seethamma stood unchallenged and the alienation made also remained unchallenged. As regards the point relating to limitation, it was found that first of all Jankamma had to challenge the alienation by Seethamma, which was of the year 1913. No special privilege was given in excluding limitation created by the Limitation Act by the observation of the High Court in the earlier second appeals (801/1960 and 819/1960). Since the right of Seethamma had not been challenged by Jankamma, the suits are necessarily barred by time. Thereafter, regarding the adverse possession, this is what the Court held: "As to the point of adverse possession is concerned, it is made clear by the lower appellate court that even after order of declaration has been negatived by this Court in the second appeals 801/60 and 819/60, the suits are belatedly filed by the plaintiffs in the year 1985 and 86 respectively and as such Sreenivas Rao and thereafter, the defendants have acquired right and title to the suit properties by adverse possession. It is needless to say that when necessarily these defendants have set up their right not only for possession, but also by virtue of the sale deed, that finding would not be appropriate." 13. We have heard learned counsel for the parties. Learned counsel for the appellant drew our attention to Section 4 of the State Act and then he further sought support from Section 10 of the Act. Section 10 (2) (g) of the Act reads as follows:- "10.(2) Stridhana includes:- (g) property taken by inheritance by a female from another female and property taken by inheritance by a female from her husband or son, or from a male relative connected by blood except when there is a daughter or daughter's son of the propositus alive at the time the property is so inherited." 14. The appellant's contention is that the High Court has committed a clear error in taking the view that Seethamma - the widow would get an absolute right. It is his contention that as per the definition of Stridhan which undoubtedly is her absolute right, there is an exception carved out in Section 10(2)(g) of the Act. In so far as the properties in question were properties inherited by Seethamma on the death of her husband - Ramanna and at that time the daughter Venkamma was very much alive, therefore, Seethamma would not get an absolute right. In this case the daughter of Ramanna (Venkamma) died only in 1910 which was after the death of Ramanna -- 1907. When succession to the estate of Ramanna in 1907 opened, then Seethamma his widow would inherit the property where the right is only limited to the estate of a widow, On her death, the property would revert back to the reversioners of her late husband - Ramanna. 15. It is his complaint that the High Court has overlooked this vital aspect by not referring to Section 10 of the Act and confining its focus on Section 4 of the State Act. Under Section 4 of the State Act, the widow has priority over daughter and granddaughter. When it was pointed out to the learned counsel for the appellant that since Ramanna died in 1907 and the State Act was not in existence as the Act was passed in 1933, learned counsel for the appellant took up another contention. He contended that under the Mitakshara law which was applicable, the widow was entitled only to a limited estate. He would contend that the position even prior to the passing of the State Act was that the widow did not get absolute estate. 16. Per contra, learned counsel for the respondents would contend that Seethamma had transferred the property in the year 1913. Seethamma died in 1938. If that is so, the suit should have been filed if at all within a period of 12 years from the date on which the alleged right in the reversioners came to be vested namely upon the death of Seethamma in the year 1938. The period of 12 years would run out in 1950. The appellants -
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plaintiffs purchased the property in the year 1955 from Jankamma - grand daughter of Ramanna. Even then the suit was filed by them only after more than 20 years. It is further contended by learned counsel for the respondent that under Mitakshara law applicable in the region in question, the grand daughter was not a heir. Only the daughter of a male upon his death intestate could inherit the property. Therefore, even the limited right attributed to the widow Seethamma would by default become an absolute right. Findings in the earlier Second Appeal 17. The findings in the earlier Second Appeals which emanated from the suits filed by the respondents are as follows: The High Court did not interfere with a finding that the sale deeds executed by Seethamma in favour of Srinivas Rao were genuine. Equally, the High Court affirmed the finding that the respondents in this appeal were in possession of the properties purchased by them. Jankamma was found to be the grand-daughter of Ramanna. Further, the Court proceeded to pose the question whether Venkamma was a daughter of Ramanna and whether she was alive when Ramanna died having regard, to Section 10(2)(g) of the State Act. It was noticed that both the Courts below had found that Venkamma was the daughter of Ramanna and Jankamma was the daughter of Venkamma. It was, however, observed that there were no pleadings as to whether Venkamma survived or predeceased Ramanna. 18. The Court was of the view that the first issue in all the cases was whether Seethamma became absolute owner of the properties of her husband and it was equally true that the processes by which she could become such owner would be by her being alive and there being no surviving child of Ramanna when he died. It was found that the parties did not have the opportunity to produce all evidences in this regard and an investigation was required. The finding that Seethamma became absolute owner of Ramanna's properties was set aside. The Court, however, proceeded to find that the fact that the aforesaid finding was set aside did not mean that the Court held that Seethamma had not become the absolute owner. No opinion was expressed as it was dependent upon the question whether Venkamma was alive when Ramanna died and materials in this regard were insufficient. 19. On this basis, the decree declaring the respondents to be the owners of the property was set aside. The decree restraining the appellants from disturbing the respondents' possession was also affirmed. It may be seen from the judgment of the High Court in the earlier round of litigation that the respondents were found to be in possession. The question relating to title was essentially not decided as is clear from what was found by the High Court. The Court left it open to be decided on the basis that Seethamma would become absolute owner if Venkamma - the daughter of Ramanna had not survived Ramanna. 20. Now we shall proceed to render our findings. Position of a Hindu Widow prior to Hindu Succession Act and the State Act There is no dispute that the parties are governed by the Madras School of Hindu Law. Thereunder, every female who succeeded as a heir whether to a male or a female, took a limited estate in the property inherited by her. As regards widow's estate, this statement is found in Mulla Hindu Law, 23rd Edition. "176. Widow's estate - A widow or other limited heirs is not a tenant for life, but is owner of the property inherited by her, subject to certain restrictions on alienation and subject to its devolving upon the next heir of the last full owner upon her death. The whole estate is for the time vested in her, and she represents it completely. As stated in a Privy Council case, her right is of the nature of a right of property; her position is that of owner; her powers in that character are, however limited; but so long as she is alive no one has any vested interest in the succession." In Jaisri Sahu v. Rajdewan Dubey & Ors. [AIR 1962 SC 83], this Court proceeded to hold that it could not be an inflexible proposition of law that whenever there is a usufructory mortgage, the widow could not sell the property on the ground that it would deprive the reversioners of the right to redeem it. This is what the Court held: ..Such a proposition could be supported only if the widow is in the position of a trustee, holding the estate for the benefit of the reversioners, with a duty cast on her to preserve the properties and pass them on intact to them. That however, is not the law. When a widow succeeds as heir to her husband, the ownership in the properties both legal and beneficial vests in her. She fully represents the estate, the interest of the reversioners therein
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being only spec successiones. The widow is entitled to the full beneficial enjoyment of the estate and is not accountable to any one. It is true that she cannot alienate the properties unless it be for necessity or for benefit to the estate, but this restriction on her powers i not one imposed for the benefit of reversioners but is an incident of the estate as known to Hindu law. It is for this reason that it has been held that when Crown takes the property by escheat it takes it free from any alienation made by the widow of the last male holder which is not valid under the Hindu law vide : Collector of Masulipatam v. Cavaly Venkata 8 Moo Ind App 529(PC). Where, however, there is necessity for a transfer, the restriction imposed by Hindu law on her power to alienate ceases to operate, and the widow as owner has got the fullest discretion to decide what form the alienation should assume. Her powers in this regard are, as held in a series of decisions beginning with Hunooman Persaud v. Mussamat Babooee Mundraj Koonweree, 6 Moo Ind App 393 (PC) those of the manager of an infant's estate or the manager of joint Hindu family." (Emphasis Supplied) 21. In Gogula Gurumurthy & Ors. v. Kurimeti Ayyappa (1975) 4 SCC 458, this Court reiterated the position of a Hindu widow and of greater relevance to us held no one has any vested interest in succession as long as the widow is alive. " A hindu widow is entitled to the full beneficial enjoyment of the estate. So long as she is not guilty of wilful waste, she is answerable to no one. Her estate is not a life-estate, because in certain circumstances she can give an absolute and complete title. Nor is it in any sense an estate held in trust for reversioners. Within the limits imposed upon her, the female holder has the most absolute power of enjoyment and is accountable to no one. She fully represents the estate, and so long as she is alive, no one has any vested interests in the succession. It cannot be predicted who would be the nearest reversioner at the time of her death. It is, therefore, impossible for a reversioner to contend that for any loss which the estate might have sustained due to the negligence on the part of the widow he should be compensated from out of the widow's separate properties. He is entitled to get only the property left on the date of the death of the widow. The widow could have, during her lifetime, for necessity, including her maintenance alienated the whole estate." (Emphasis Supplied) The impact of the State Act of 1933 The State Act that is the Mysore Act of 1933 (as it was when it was passed) came into force on first day of January, 1934. Section 2 reads as follows:- "2. (1) This Act applies to persons who but for the passing of this Act, would have been subject to the law of Mitakshara in respect of the provisions herein enacted. (2) Save as aforesaid, nothing herein contained shall be deemed to affect any rules or incidents of the Hindu Law which are not inconsistent with the provisions of this Act." Thus, the rules or incidents of Hindu law to the extent they were not inconsistent with the Act was to continue to operate. Section (4) of the Act provided as follows:- "4(1) The succession to a Hindu male dying intestate shall, in the first place, vest in the members of the family of the propositus mentioned below, and in the following order:- (i) the widow; (ii) daughters; (ix) daughters' daughters; As far as Section 10 is concerned, the relevant portion reads as follows:- "10(1) "Stridhana" means property of every description belonging to a Hindu female, other than property in which she has, by law or under the terms of an instrument, only a limited estate. 10(2) Stridhana includes:- (g) property taken by inheritance by a female from another female and property taken by inheritance by a female from her husband or son, or from a male relative connected by blood except when there is a daughter or daughter's son of the propositus alive at the time the property is so inherited."
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It is necessary to notice Section 11 also. Section 11 reads as follows:- "11.(1) A female owning stridhana property shall have over it absolute and unrestricted powers both of enjoyment and of disposition inter vivos and by will, subject only to the general law relating to guardianship during minority. (2) Exceptwhen acting as the lawful guardian of his wife, a husband shall have no right to or interest in any portion of his wife's stridhana during her life nor shall he be entitled to control the exercise of any of her powers in relation thereto." Thus, the female owning stridhana…
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