GURUMALLAPPA Vs. SHIVANAGAMMA

JUDGEMENT

(1.) This second appeal is by defendants 2 to 4 challenging the judgment and decree passed by the Civil Judge, (Sr. Dn.), and CJM, Chamarajanagar, in R.A.No. 5/2003. Brief facts of the case are, plaintiffs 1 to 4 had filed a suit before the Addl. Civil Judge, (Jr. Dn.) and JMFC, Chamarajanagar in O.S.No. 119/1997 seeking for declaration and permanent injunction against defendant No. 1 and other defendants. According to plaint averments, plaintiff No. 1 and defendant No. 1 are the wives of late Basappa. According to the plaintiffs, 1st defendant had no issues through her husband. Plaintiff Nos. 2 to 4 are the children of the 1st plaintiff and late Basappa. Late Basappa had executed a deed of maintenance in favour of 1st defendant on 10.9.1968. Plaintiff Nos. 1 to 4 are the owners in possession in respect of the remaining portion of Sy. No. 47 of Mudnakoodu village and also the absolute owners in respect of remaining portion of the house by virtue of the deed of maintenance executed by late Basappa. It is stated that, the 1st defendant has already alienated some portion of the land measuring 1 acre 27 guntas in favour of defendant Nos. 2 to 4 which according to the plaintiffs, is an illegal transaction and the 1st defendant has no right. Further, it is stated that the 1st defendant is also trying to alienate the remaining portion of the land. Accordingly, stating that the sale deed dated 28.10.1996 executed by the 1st defendant in favour of defendants 2 to 4 is illegal and void, they sought for declaration and permanent injunction. The suit was contested by the defendants wherein it is stated that late Basappa was living with plaintiffs and defendants and since trouble arose, the 1st defendant was given a property, as such, she has got every right over the same. Basappa died leaving the properties. 1st defendant pleads her ignorance as to the alleged maintenance deed and contends that behind her back by playing fraud the plaintiffs have declared themselves as absolute owners, as such, they are not entitled to get the properties.

(2.) Based on the pleadings as many as five issues were raised. After enquiry, the trial court dismissed the suit of the plaintiffs holding that there is a right given to the wife by way of maintenance as per Section 14(1) of the Hindu Succession Act and 1st defendant is the absolute owner of the property mentioned in Ex.P1. As such, the question of seeking declaration and injunction by the plaintiffs against the defendants is not maintainable. As against the said judgment, in the appeal filed by the plaintiffs before the Civil Judge (Sr. Dn.), Chamarajanagar in RA. No. 5/2003, referring to Section 14(2) of the Hindu Succession Act, 1956, (for short 'the Act') the lower Appellate Court has opined that, Section 14(2) of the Act would be applicable to the case on hand and not Section 14(1) of the Act and accordingly, has reversed the finding of the Trial Court and allowed the suit filed by the plaintiffs. Hence this second appeal by the defendants.

(3.) At the time of admission on 31.3.2006 the following substantial question of law was raised for consideration: