AMMAJAMMA Vs. MAHADEVAMMA

JUDGEMENT

(1.) This is plaintiffs second appeal arising out and from judgment and decree dated September 23, 1985, delivered by the District Judge, Tumkur (Sri P.S. Gundawade), allowing the defendant's first regular civil appeal R.A. No. 4 of 1974, from the judgment and decree dated 16-3-1974, delivered by Sri K.P. Kempegowda, Additional Civil Judge, in Original R.A. No. 32 of 1971, setting aside the judgment and decree of the Trial Court and dismissing the plaintiff-appellant's Original Suit No. 32 of 1971, at the Court of Additional Civil Judge, Tumkur.

(2.) The plaintiff-appellant filed the suit for decree for declaration declaring that the plaintiff is entitled to exercise the right of pre-emption, i.e., right of preferential acquisition of suit property under Section 22 of Hindu Succession Act, i.e., Act No. 30 of 1956, in respect of one half share in the suit schedule properties and for further direction to defendant 2, that is, respondent 2, to deliver the possession of Items Nos. 1 and 2 of schedule property to the plaintiff. The plaintiff further claimed a direction to be given to make enquiries as to future mesne profits from the date of the suit under Order 20, Rule 12 of the Civil Procedure Code, for short, 'Code' in respect of Item Nos. 1 to 3, of the suit schedule properties with reference to the share of the plaintiff-appellant. The plaintiff further claimed a decree for permanent injunction restraining the 2nd defendant from interfering with the plaintiffs peaceful possession and enjoyment of the suit property bearing Item Nos. 4 and 5 against the defendants. The properties involved in the suit have been mentioned in detail in the plaint schedule with the boundaries given therein. According to the case of the plaintiff, Udase Gowda, the father of the plaintiff had no male issue and the 1st defendant has been the widow of Udase Gowda and was plaintiffs step mother. According to plaintiffs case, after the death of plaintiffs mother, Udase Gowda married the second time. According to plaintiffs case, after his marriage, plaintiff and her husband-Gujarappa lived with plaintiffs father, who had no male issues. The plaintiffs father, according to the plaintiff died on June 17th, 1961. That after the death of Udase Gowda, the 1st defendant succeeded him as his daughter and at that time, all were living in house Item No. 4 of the schedule. The plaintiff further alleged that on the death of Udase Gowda, plaintiff and defendant 1, became entitled to equal shares in the suit schedule property left by Udase Gowda. Plaintiff claimed herself to be managing the affairs of the property. Plaintiff further alleged that Section 145 of the Criminal Procedure Code, for short, 'Cr.P.C.' proceedings were initiated by the defendants, but, those proceedings were not necessary to be taken, as the plaintiff was in possession of the land through the tenants. Plaintiffs case is that during the proceedings under Section 145, Cr.P.C., the 1st defendant created a deed in favour of the 2nd defendant styled as a gift deed. According to plaintiffs case, a suit was also filed by 1st defendant, namely, O.S. No. 499 of 1964, on the file of Munsiff, Madhugiri, for declaration of her title and for consequential relief of injunction in respect of suit Item No. 4 (the house property). The suit was it appears, later on, withdrawn by the 1st defendant. That plaintiffs case is that defendant 2, had taken the possession of the suit land Item Nos. 1 and 3 illegally and unlawfully sometimes in January, 1965. That according to the plaintiffs case, first defendant had no right to convey or transfer any of the suit properties to the 2nd defendant and the deed styled as gift deed was really a deed of transfer for consideration to a stranger to the family, and as such, the said transaction, plaintiff claimed was in contravention and in violation of provisions of Section 22 of Hindu Succession Act. That as such, plaintiff claimed that as said gift deed was really a transfer for consideration it was invalid being in breach of Section 22 of Hindu Succession Act and so 2nd defendant, did not derive any right, title, interest in the suit schedule properties under the said so called gift deed. Plaintiff claimed himself to be entitled to exercise the preferential right to acquire the property under Section 22 of Act No. 30 of 1956 and prefered the claim to have the recovery of the possession of the suit property Item Nos. 1 to 3 and to be also entitled to retain possession of Item Nos. 4 and 5 of the suit schedule. The plaintiff further alleged that plaintiff is ready and willing to deposit the consideration for which half share of 1st defendant was transferred to 2nd defendant. The plaintiff asserted the value of the suit property, subject-matter of the gift deed to be Rs. 3,000/- and the value of the half share of the plaintiff therein to be Rs. 1,500/-. The plaintiff with the above-mentioned allegations and in the context of the above facts and circumstances, filed the suit for declaration of plaintiffs preferential right of acquisition of suit property subject-matter of the transfer deed made on 25-5-1964, and for other reliefs as mentioned above.

(3.) The defendants 1 and 2, filed their written statement separately and challenged the plaintiffs claim. The defendants as per their written statement asserted that it was false to allege that the plaintiff with her husband was living with her father. The defendant's case is that plaintiff was living with her husband at Hutha Hanumaiahnapalya. The defendant's case is that the 1st defendant lived with her husband, at the time of her husband's death and that first defendant alone had succeeded to the estate of her deceased husband. The plaintiff never lived with defendant 1, at any time after plaintiffs marriage. The defendants denied the possession of the plaintiff over the suit property and asserted that there was no occasion to dispossess the plaintiff from the schedule property, as the plaintiff was not in possession thereof at all. The defendants contended that the 1st defendant executed the gift deed on May 25th, 1964, and that the 1st defendant had a right to convey and to execute the gift deed of the suit property. The defendant 2 was not a stranger. The defendant 1, denied that plaintiff was entitled to any right of pre-emption, or preferential acquisition, instead, asserted that plaintiff was not entitled to claim any such right either under Section 22 of Hindu Succession Act or as right of pre-emption. The defendants further asserted that plaintiff was not entitled to decree for permanent injunction and there has been no cause of action for the suit and on this basis defendant 1, asserted that the plaintiffs suit was liable to be dismissed. The 2nd defendant had also filed the written statement and in his written statement, 2nd defendant asserted that the 1st defendant had every right to give the properties to the 2nd defendant and that gift, i.e., gift deed had not been for any monetary consideration nor for consideration in terms of money or determinabJe in terms of money. The second defendant asserted that he was not a stranger to the family of Udase Gowda. The case of defendant 2, is that the grandfather of 2nd defendant, namely, Arekke Gowda and Udase Gowda were brothers. According to defendants' case, Udase Gowda was the uncle of defendant 2, and the mother of 1st defendant and mother of 2nd defendant were full sisters and that plaintiff had no preferential right to acquire the suit properties the 2nd defendant alleged. The 2nd defendant denied the plaintiffs claim for possession of the suit schedule properties. The 2nd defendant claimed himself to be the owner of the suit properties by virtue of the gift deed dated May 25, 1964, and asserted that plaintiff has not been entitled to question or challenge the gift deed, as such the defendant claimed that the plaintiffs suit was liable to be dismissed.