DAKSHAYANAMMA Vs. B SIDDALINGAIAH

JUDGEMENT

(1.) THIS is an appeal by the plaintiff-wife against the defendant-husband being aggrieved by the order passed by the first Appellate Court allowing the appeal and dismissing the suit. The wife had filed a suit for a declaration against the husband in respect of the suit property before the Civil Judge (Junior Division), Arasikere in O. S. No. 301 of 1993.

(2.) THERE is said to be strained relationship between the parties after marriage and as they could not live together, the plain tiff wife dakshayanamma was given a share in lieu of her maintenance. However, as per the compromise entered into between the parties, it appears that in an earlier injunction suit it is stated that she has to enjoy the property during her lifetime i. e. , only a limited estate was created in the suit property. Stating that she is not allowed to enjoy the property peacefully despite her right over the suit property, she is said to have filed a declaratory suit. The suit was contested by the husband siddalingaiah. After a full fledged trial, the Trial Court has raised as many as four issues to the effect whether the plaintiff is the absolute owner of the suit property and whether she is in lawful possession and whether there is interference over her possession. While answering all the three issues, the Trial Court has held that the plaintiff is the owner in possession of the property and there is interference over her enjoyment and as such decreed the suit in her favour by permanently injuncting the defendant/respondent. The Trial Court has referred to the provisions of Section 14 (1) of the Hindu Succession Act, 1956, while declaring that the plaintiff is the absolute owner of the property and has also relied upon the decision in (1990)1 CLT 157 (SC ). Aggrieved by the said judgment, appeal was preferred before the Civil Judge (Senior division), Arasikere by the defendant-husband which came to be allowed. Hence, this appeal is preferred raising substantial questions of law.

(3.) WHILE admitting the appeal, learned brother Shylendra Kumar, J. , has raised the following substantial question of law for consideration for determination: 1. Whether the first Appellate Court was justified in holding that Section 14 (2) of the Hindu Succession Act applies to the case on hand and not Section 14 (1) of the Hindu Succession act? 2. Whether the first Appellate Court had not properly construed the purport of the karar dated 9-1-1985, while recording a finding against the appellant? 3. Whether in the facts and circumstances of the case the first appellate Court was justified in reversing the judgment and decree of the Trial Court?