JUDGMENT
V.G. Sabhahit, J.
1. This appeal by the defendants is directed against the judgment and decree passed by the learned Additional Civil Judge (Sr. Dn.), Hubli, in R.A. No. 120/1993, dated 16-12-2002, allowing the appeal and modifying the judgment and decree passed by the learned Munsiff and JMFC, Kundagol, in O.S. No. 165/1989 dated 28-8-1993.
2. The brief facts of the case with reference to rank of the parties before the trial Court are as follows :–
The schedule properties comprise of 4 landed properties and 2 house properties belonging to Bharamappa who died on 18-8-63, leaving behind his wife Madhavva (the original plaintiff), daughters viz., Shankaravva and Neelavva, defendant Nos. 2 and 3 respectively and a son Mahaveer who died on 13-4-86, leaving behind his wife (defendant No. 1) and his mother Madhavva, and Madhavva died on 10-10-94. The trial Court after considering the entire material on record held that the plaintiff is entitled to 5/12th share in the schedule properties and negatived the contention of the defendants and decreed the suit accordingly. The trial Court held that the plaintiff would be entitled to her own 1/3rd share in the notional partition and as on the death of Bharamappa who died on 18-8-63, the plaintiff and defendants 1 to 3 would be entitled to 1/12th share each and, therefore, the plaintiff would be entitled to 5/12th share in the suit properties i.e., the plaintiff is entitled to her own 1/3rd share in the notional partition and 1/4th share in the share of Bharamappa i.e., 1/12th share and accordingly, entitled to 5/12th share. Being aggrieved by the said judgment and decree, the plaintiff filed Regular Appeal. The defendants did not chose to file an appeal. During the pendency of the appeal before the first appellate Court, Madhavva (the original plaintiff) died and an application was filed by Sidhartha alias Anilkumar to come on record as a legal representative of Madhavva/the appellant claiming that he is her adopted son and that Madhavva had also executed a Will in his favour and, therefore, he has succeeded to the entire share of property of Madhavva. An application was also filed for leading additional evidence. The application seeking permission to come on record as a legal representative was allowed and the applicant was permitted to lead additional evidence and thereafter, P.Ws. 4 to 7 were examined and D.W. 3 was also examined and Exhibits P18 to P27 were got marked during the evidence recorded by the first appellate Court. The first appellate Court” by its judgment dated 16-12-2002 held that the first respondent is not entitled to inherit the suit property as she remarried and in view of provisions of Section 2 of the Hindu Widow Remarriage Act, 1856, she is not entitled to succeed to the property and the plaintiff is entitled to 10/12th share and accordingly, held that the legal representative would succeed to the said 10/12th share to which the original plaintiff is entitled and accordingly, allowed the appeal by modifying the judgment and award passed by the trial Court. Being aggrieved by the said judgment and decree passed by the first appellate Court, this appeal is filed.
3. This appeal was admitted on 9-6-2004 for consideration of the following substantial questions of law :–
“1. Whether the allotment of the shares by the first appellate Court is in conformity with Section 24 of the Land Reforms Act, 1961?
2. Whether denial of share to the daughter-in-law to whom the trial Court granted the share placing reliance upon Section 8 read with Schedule-1 on the ground that she got remarried subsequent to the judgment and decree of the trial Court is correct?”
4. Heard the learned Counsel appearing for both the parties.
5. It is the contention of the learned Counsel for the appellants that the finding of the first appellate Court that the legal representative of Madhavva (the original plaintiff) is entitled to succeed to her 5/8th share in the suit property is perverse and arbitrary as there is no finding regarding the contention of the legal representative that he is the adopted son of Madhavva and that he has succeeded to her right under the Will executed by her in his favour. It is also clear from the material on record that an interlocutory application had been filed under Order 41, Rule 27 seeking permission to lead evidence before the first appellate Court and the said application was allowed and additional evidence has been adduced before the first appellate Court. However, there is no finding by the first appellate Court regarding adoption of respondent No. 1(a) herein by Madhavva and execution of the Will in his favour. Accordingly, the following substantial question of law also arises for consideration in this appeal.
“3. Whether the finding of the first appellate Court that the legal representative/respondent No. 1 (a) herein is entitled to succeed to the right of Madhavva (the original plaintiff) without giving a finding regarding his adoption and execution of Will propounded by him, is arbitrary and illegal?”
6. I have heard the learned Counsel for the parties on the aforesaid substantial question of law.
7. The learned Counsel appearing for the appellants submitted that grant of occupancy right was for the benefit of the family. He further submitted that the first appellate Court has erred in holding that the daughter-in-law (the first defendant) is not entitled to succeed to the suit property in view of the provisions of Section 2 of the Hindu Widow Remarriage Act, 1856, as the same is contrary to the provisions of the Hindu Succession Act as Mahaveer died on 13-4-1986 leaving behind defendant No. 1 and in view of the provisions of the Hindu Succession Act which clearly provides that remarriage on the date when the succession opens would be a disqualification and since defendant No. 1 was not remarried on the date when the succession opened on the death of her husband i.e., on 13-4-1986, the first appellate Court was not justified in holding that she is not entitled to any share in the suit schedule properties. The learned Counsel further submitted that the first appellate Court could not have held that the legal representative of Madhavva (the original plaintiff) is entitled to 5/8th share without giving a finding regarding his adoption and succession of the property of Madhavva under the Will executed by her as propounded by the L.R. who claims to be the adopted son, and in the absence of such findings, the legal representative and defendant Nos. 2 and 3 who are the daughters of Madhavva (original plaintiff) would also succeed to her 5/8th share. On the other hand, the learned Counsel appearing for the legal representative of Madhavva (the original plaintiff) submitted that the application for leading additional evidence was allowed by the first appellate Court and the application to come on record as a legal representative was also allowed and, therefore, the contention of the appellants’ counsel that in the absence of any finding by the first appellate Court regarding adoption and execution of the Will would not enable defendants 2 and 3 to claim share in the suit property to which the original plaintiff is entitled.
8. I have considered the contentions of the learned Counsel for the parties and I have been taken through the oral and documentary evidence adduced by the parties before the trial Court as also the first appellate Court and the material on record including the proceedings before the first appellate Court.
9. All the substantial questions of law are considered together since they are interconnected and to avoid repetition. Accordingly, I answer the substantial questions of law as follows :–
SUBSTANTIAL QUESTION OF LAW NO. 1
This question of law does not arise as the findings arrived at by the trial Court negativing the contention of the defendants has neither been challenged by the defendants by filing an appeal or cross-objections nor contended before the first appellate Court.
SUBSTANTIAL QUESTION OF LAW NO. 2
In the Negative–
SUBSTANTIAL QUESTION OF LAW NO. 3
In the Affirmative as per the final order for the following reasons :–
It is clear from the perusal of the material on record that the defendants did not prefer any appeal or cross-objection being aggrieved by the judgment and decree passed by the trial Court negativing the contention that the conferment of occupancy right would enure to the benefit of other members of the family. But, an appeal was filed by the plaintiff before the first appellate Court and, therefore, the question as to whether the allotment of share by the first appellate Court is in conformity with Section 24 of the Land Reforms Act or not does not arise for consideration among the parties in this appeal and accordingly, substantial question of law No. 1 is answered. The finding of the first appellate Court that the first defendant who is the wife of the predeceased son of Madhavva is not entitled to succeed to the suit properties in view of the provisions of Section 2 of the Hindu Widow Remarriage Act, 1856, is clearly erroneous as it is clear from the material on record that admittedly, the husband of the first defendant Mahaveer died on 13-4-86 i.e., after the Hindu Succession Act, 1956 came into force and in view of Section 4 of the Hindu Succession Act, the provisions of the said Act will have overriding effect over any other law in force immediately before the commencement of the Act and there is a specific provision made in the Hindu Succession Act as per Section 24 regarding certain widows remarrying. Section 24 of the Hindu Succession Act, 1956 reads as follows :
“24. Certain widows remarrying may not inherit as widows– Any heir who is related to an intestate as the widow of a pre-deceased son, the widow of a pre-deceased son of a per-deceased son or the widow of a brother shall not be entitled to succeed to the property of the intestate as such widow, if on the date the succession reopens, she has remarried.”
10. In view of the aforesaid specific provision under the Hindu Succession Act, it is clear that the provisions of Section 2 of the Hindu Widow Remarriage Act, 1856, relied upon by the first appellate Court has no force of law and as per Section 4 of the Hindu Succession Act, 1956, the said Act overrides the provisions of law prior to its commencement. It is clear that for disqualification, the widow should have remarried when the succession opens and the succession would open on the death of the husband and in the present ease, the succession opened on 13-4-86, the date on which the husband of the first defendant died and it is not disputed that on 13-4-86, the first defendant was not remarried. Therefore, the finding of the first appellate Court that in view of the provisions of Section 2 of the Hindu Widow Remarriage Act, 1856, the first defendant is not entitled to succeed to the suit properties is clearly illegal and contrary to the provisions of Section 24 of the Hindu Succession Act and hence, the same is liable to be set aside and accordingly, I answer the substantial question of law No. 2 in the negative. It is not in dispute that the schedule properties were joint family properties. The share to which Madhavva (the original plaintiff) would be entitled to has been correctly calculated by the first appellate Court as it is clear from the admitted facts that Bharamappa died on 18-8-63 (i.e., after coming into force of the Hindu Succession Act) leaving behind his Wife Madhavva, two daughters and a son and, therefore, in view of Section 6 of the Hindu Succession Act, if there was notional partition between Bharamappa on the date of his death, the property has to be divided between Bharamappa and his son Mahaveer and since in a partition between father and son, the mother will have a share, all the three i.e., Bharamappa, Madhavva and their son Mahaveer would be entitled to 1/3rd share each and out of 1/3rd share of Bharamappa, his wife and children will succeed as they are Class-1 heirs and defendants 2 and 3 gets 1/12th share each and Madhavva and Mahaveer gets 1/3 + 1/12 = 5/12 share each. Mahaveer predeceased his mother as he died on 13-4-86 leaving behind his wife-Aruna alias Savita, defendant No. 1 and his mother-Madhavva (the original plaintiff) and since both of them are Class-1 heirs, they will succeed to 5/12th share of Mahaveer in the suit properties and, therefore, Madhavva and defendant No. 1 will get 5/24th share each. Therefore, the share to which Madhavva (the original plaintiff) would be entitled to is 5/12 + 5/24 = 15/24 (i.e. 5/8) share and defendant No. 1 would get 5/24th share and, defendants 2 and 3 would be entitled to 2/24th share and, therefore, it is clear that the finding of the first appellate Court that the original plaintiff Madhavva is entitled to 5/8th share and not 5/12th share as decided by the trial Court is correct. However, so far as the finding of the first appellate-Court that the respondent who has come on record as a legal representative is entitled to succeed to 5/8th share of Madhavva is clearly perverse and arbitrary. Sri Siddarth alias Anilkumar, the legal representative of Madhavva (the original plaintiff) claims that he is her adopted son and that she had executed a Will in his favour as propounced by him. The first appellate Court allowed the legal representative to lead additional evidence and the additional evidence has been adduced as the material on record clearly shows that Exhibits P18 to 27 were got marked and P.Ws. 4 to 7 were examined and D.W.3 was also examined. However, while considering the question as to who succeed to 5/8th share of Madhavva (the original plaintiff), the first appellate Court has not given any finding as to whether the legal representative has proved that he is the adopted son of Madhavva and he has succeeded to her right by virtue of Will executed by her which he has propounded. The findings on the questions a to whether the legal representative is the adopted son of Madhavva and succeeds to 5/8th share of Madhavva in view of the Will propounded by him is essential as the same would decide the question as to who succeeds to the right of Madhavva and, therefore, it would be a substantial question which would decide the lis between the parties as to who succeeds to 5/8th share of Madhavva. The legal representative would succeed to 5/8th share of Madhavva (the original plaintiff) only if he proves the execution of Will by her in his favour, failing which the defendants 2 and 3, the daughters of Madhavva would succeed to her 5/8th share in suit property. In the absence of any finding to that effect, it is clear that the finding given by the first appellate Court that the legal representative would be entitled to the share of Madhavva is clearly perverse and arbitrary for non-consideration of the essential question as to whether the legal representative has proved that he is the adopted son of Madhavva (the original plaintiff) and he has succeeded to her property by virtue of the Will executed by her in his favour. Therefore, it is clear that the finding of the first appellate Court that the legal representative would succeed to the right of Madhavva without giving a finding on his adoption and execution of Will propounded by him cannot be sustained and mere fact that he is brought on record as a legal representative of Madhavva would not prove his adoption and execution of Will as he is not a natural heir of Madhavva and claims to be the adopted son and beneficiary under the Will propounded by him. Accordingly, I answer the substantial question of law No. 3 in the Affirmative. In view of the fact that the first appellate Court being a final Court on the question of law has failed to give findings on the additional evidence recorded regarding adoption and due execution of Will propounded by the legal representative of Madhavva (the original plaintiff), it is clear that the matter is liable to be remitted back to the first appellate Court with a direction to give a finding on the claim made by the legal representative that he is the adopted son of Madhavva and would succeed to the property of Madhavva and decide the matter in accordance with law.
11. Accordingly, I pass the following :–
ORDER
The Regular Second Appeal is allowed in part. The judgment and decree passed by the learned Additional Civil Judge (Sr. Dn.), Hubli in R.A. No. 120/1993, dated 16-12-2002 insofar as it relates to the finding that Madhavva (the original plaintiff) is entitled to 5/8th share in the schedule property is confirmed. The finding of the first appellate Court that the defendant No. 1 is not entitled to succeed to schedule properties is set aside and she is also entitled to succeed to schedule properties in accordance with law. The judgment passed by the first appellate Court that the appellant herein is entitled to 10/12th share is set aside. The matter is remitted back to the first appellate Court with a direction to consider the contention of the legal representative that he is the adopted son and that he succeeds to 5/8th share of property of Madhavva in view of execution of Will in his favour after considering the additional evidence produced before it and dispose of the appeal in accordance with law by giving a finding on the said question of fact. The order of status quo which was in course throughout this appeal shall be in force during the pendency of the appeal before the first appellate Court. The parties are directed to appear before the first appellate Court on 5-10-2005 to seek further instructions. The first appellate Court is directed to dispose of the appeal within six months from the date of receipt of a copy of this order and the lower Court records. L.C.R. shall be transmitted to the first appellate Court, forthwith.