JUDGMENT
Huluvadi G. Ramesh, J.
1. This second appeal is by the plaintiffs being aggrieved by the judgment and decree passed by the Civil Judge (Sr. Dvn.), Arsikere in RA 22/1997 confirming the judgment and decree passed by the Munsiff, Arsikere in OS 213/1989 and dismissing the appeal filed by the plaintiffs.
2. According to the plaintiffs, one propositus Mallappashetty had two children by name Kotappa and Mallamma. Kotappa had a son by name Papanna who died issueless and a daughter by name Gurusiddamma who had a son by name Honnappa. Mallappashetty bequeathed the property in favour of Gurusiddamma. The said Gurusiddamma pre-deceased Honappa who also died issueless. This Mallappashetty’s daughter Mallamma i.e., Gurusiddamma’s paternal aunt had two sons by name Veerabhadrappa and Parmeshappa. Veerabhadrappa and Parmeshappa are the plaintiffs claiming the suit property inherited by Honappa son of Gurusiddamma in whose favour the property was bequeathed by Mallappashetty.
3. According to the plaintiffs, the defendants i.e. the 1st defendant is said to have entered into an agreement of sale with Honappa in respect of the suit property which measures 3.33 acres and the said Honappa had died issueless. It appears in turn the 1st defendant is said to have sold half share of the property to the 2nd defendant without there being a right of acquisition of title by him. According to the 1st defendant, he is said to be in possession by virtue of the sale agreement and thereafter he sold half share of the property in favour of 2nd defendant. The same has been challenged by the plaintiffs by filling a suit for declaration and possession before the Munsiff, Arsikere.
4. The Trial Court although has held that the defendants failed to prove possession by virtue of the agreement and also failed to prove adverse possession and further stating that the suit is maintainable as not barred by time, has dismissed the suit of the plaintiffs holding that as per Section 15 of the Hindu Succession Act, plaintiffs are not entitled for the property. Before the Civil Judge (Sr. Dvn.), Arsikere, in appeal, while confirming the judgment and decree of the Trial Court, the same came to be dismissed. Contending that the plaintiffs are related to Honnappa through his mother Gumsiddamma as cognates, this second appeal is filed by raising substantial question of law.
5. At the time of admission, the following substantial question of law was raised – ‘after the death of Honnappa whether the property devolves upon the plaintiffs under Section 8 of the Hindu Succession Act’.
6. Heard the counsel for the appellants. Although notice has been served on the respondents, none appears nor are they represented.
7. It is the submission of the appellants’ counsel that it is not Section 15 of the Hindu Succession Act that applies to the case but, Section 8. Plaintiffs being related to Honnappa through his mother Gurusiddamma and Gurusiddamma’s father and the plaintiffs mother are brother and sister. As such, as cognates they are entitled to succeed to the property in the absence of any Class I or II heirs. It is also submitted by him that Kotappa s/o Mallappashetty although had a son by name Papanna, he also died issueless and Gurusiddamma also died and on her death, Honnappa succeeded who also died issueless having not married and he entered into an agreement. Both the Courts below have held that since the defendants are not in possession of the property, they are not entitled to claim possession. Accordingly it was argued that plaintiffs being the cognates are entitled for the suit properties.
8. It is seen the property in question – Sy. No. 99/1 measuring 3.33 acres is situate at Agrahara Village of Banavara Hobli, Arsikere Taluk. The 1st defendant claims to be the intended purchaser by way of an executed contract. The 2nd defendant is said to be the person in whose favour half of the suit property is sold based on the agreement held by the 1st defendant. There is a finding of the Trial Court as to issue 3 that does defendant prove that he is in possession of the plaint schedule property under an agreement to sell dated 29.10.66 and 28.3.67, executed by Honnappa’, and the said issue has been held in the negative as a matter of fact finding. Even in appeal before the Lower Appellate Court by the plaintiff; the same finding is given but, there is no challenge to the said finding by the defendants. The Lower Appellate Court was also of the view that since the whereabouts of Honnappa were not known for more than seven years, it has to be held as a Civil death and that it was difficult to believe that Honnappa had executed a sale agreement in favour of the 1st defendant. Further, there is also a finding by the Lower Appellate Court that, there is an entry in the records in the name of the lst defendant and the 1st defendant based on that entry, has sold half of the property in favour of 2nd defendant and it has disapproved this transaction. It was also of the view that in spite of the same, the possession held by the defendant cannot be denied. In this regard, the finding of the Trial Court while answering the issue regarding limitation is that, the suit filed by the plaintiffs is for declaration and possession and it has also noted that at the time of filing of the suit by the plaintiff, the defendant is said to have pleaded possession for six years and not twelve years and on the basis of this finding, it appears, the Lower Appellate Court might have come to the conclusion that defendants are in possession. Only on the ground that the plaintiffs are not the legal representatives of Gurusiddamma, the Trial Court relying on Section 16 of the Hindu Succession Act, dismissed the suit of the plaintiffs. The Lower Appellate Court concurred with the finding of the Trial Court on this aspect and it was also of the view that both the plaintiffs are the sons of paternal aunt of Gurusiddamma and stating that they are not related, their claim came to be dismissed.
9. At this juncture, it is argued by the appellants’ counsel that as per Section 8 of the Hindu Succession Act they are cognates and also related to late Honnappa through Gurusiddamma and as such, they are entitled to the property in the absence of any claim by any of the Class I or Class II heirs of Honnappa. A reading of Section 8 and 12 of the Act makes it clear that as a matter of preference when a male dies intestate, the property shall devolve according to the provisions, firstly on Class I heirs; secondly if there are no Class I heirs, then upon Class n heirs as is specified in the Schedule; thirdly if there are no Class I and n heirs, then upon the agnates and; lastly if there are no agnates, then upon the cognates. The order of succession among agnates and cognates is provided under Section 12 of the Act which reads:
Section 12: The Order of succession among agnates or cognates, as the case may be, shall be determined in accordance with the rules of preference laid down hereunder –
Rule1 – of two heirs, the one who has fewer or no degrees of ascent is preferred.
Rule 2 – Where the number of degrees of ascent is the same or none, that heir is preferred who has fewer or no degrees of descent.
Rule 3 – Where neither heir is entitled to be preferred to the other under Rule 1 or Rule 2 they take simultaneously.
10. The suit property is shown to have been bequeathed by Mallappashetty in favour of his grand daughter i.e., the daughter of Kotappa. The property is now being inherited by Honnappa the son of Gurusiddamma. Although Gurusiddamma died, it appears that Honnappa was not heard for more than seven years and as such, it was declared as civil death. The question now is, as a matter of preference whether the plaintiffs would be entitled to the suit property or whether the defendants would acquire right. Under the agreement entered into between the 1st defendant and late Honnappa, it appears there is no such complete contract i.e., sale transaction has taken place except the sale agreement of which 1st defendant is said to be in possession and half share of it has been sold by him to the 2nd defendant. It also seen that such an execution of the agreement has not been proved as a matter of fact finding by the Courts below.
11. As per Section 12 of the Hindu Succession Act, the plaintiffs are the cognates i.e., they are related to the deceased only by a degree of ascent i.e. through father’s sister’s son and as such they are in preference to defendants who are aliens to the family of Gurusiddamma and they would not be entitled to a declaration and possession as per Section 8, 12 and 13 of the Hindu Succession Act. When once it is held that defendants have also failed to prove any such agreement between themselves and Honnappa and there is no challenge to the said finding, they are not entitled for possession as the agreement itself is not proved and plaintiffs being relatives of Honnappa through their mothers’ father as cognates, are entitled for the suit property.
12. For the foregoing reasons, while answering the substantial question of law raised accordingly, the appeal is allowed. The finding of both the Courts below in so far as the claim of the plaintiffs is concerned, is set aside. The suit is decreed as prayed for. Defendants are hereby directed to hand over possession of the suit property in favour of the plaintiffs. Parties to bear their own costs.
