JUDGMENT
H. Rangavittalachar, J.
1. These two appeals are between the same parties and regarding the same subject matter. Therefore, both of them are disposed of by this common judgment.
2. R.S.A. 6/1997 arises from the suit O.S. 99/1967 while R.S. 7/1997 arises from the suit O.S. 55/1967.
3. O.S. 99/1967 is filed by Smt. Savithri w/o Dhondiba, against Tukaram, Putalabai, Fulabai and others for partition and separate possession of her share in the suit property; while O.S. 55/1967 is filed by Putalabai and Fulabai against Savithri Dhondiba and others for declaration that they are the absolute owners of the suit property having inherited the entire share of their father Hajiba and in the alternative for partition of two-third share in the suit property.
4. The parties are related to each other and their relationship is shown by the genealogical tree stated herein below as stated by the parties before the Court below :
(Plaintiffs 1 and 2 in O.S. 55/1967 and defendants 2 and 3 in O.S. 99/1967).
Dhondiba (Dead)
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Son Son
Hajiba Tukaram
(Died about 2-3 back)
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Wife
(Rajbai (Died about 10 years back)
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Putalbai Fulabai Dhondi wife Savitri
(Plaintiff-1) (Plaintiff-2) (Dead dated 14.2.1967) O.S.
55/1967 Plaintiff O.S. 99/1967
5. According to the genealogical tree the common male ancestor or the propositus is one Dhondiba. He is said to have died in the year 1932 or 1936. He has two sons one Hajiba who is said to have died on 9.8.1963 and another Tukaram. Hajiba’s wife Rajibai died about 10 years prior to the filing of the suit. Hajiba and Rajibai had two daughters Putalabai and Fulabai (plaintiffs in OS. 55/1967 and defendants in O.S. 99/1967) and Dhondiba the son who died on 14.2.1967; Smt. Savithri claims to be the wife of Dhondiba. She filed the suit O.S. 99/1967. As stated the suit properties consists of agricultural land and three houses situated in Aigali village and Telsang village of Athani Taluk. She contended in the suit that the suit properties belong to the joint family of Hajiba and Tukaram on the death of her husband Dhondiba a notional partition has taken place as per Section 6 of the Hindu Succession Act and whatever share her husband was entitled to she has a right to inherit as a Class I heir, that right is denied, therefore, the suit for partition.
6. This suit O.S. 99/1967 was contested by Putalabai, Fulabai and tukaram. They contended that Savithri is not the wife of Dhondiba as no marriage took place in accordance with the Hindu rites and ceremonies. Even otherwise on the date of the alleged marriage of Savithri with Dhondiba, she was only 12 years of old. Such a marriage was not valid in law, therefore, the suit was not maintainable. It was also contended in the alternative that there was a partition between Hajiba and Tukaram in the year 1946 and at partition Tukaram was allotted a share in R.S. No. 366/1 and 366/5 of Aigali village, and about 5 Acres of land in R.S. No. 817 and Survey No. 796 of Telsang village besides a house bearing V.P.C. No. 836/B. Similarly Hajiba was allotted the properties as stated in para 4 of the written statement of Tukaram. After partition each divided party were in possession of their respective share as separate owners and other properties were acquired in their individual capacities. Therefore, all the suit schedule properties cannot be put into the hotch pot and made subject to partition; same was the defence of Putalibai and Fulabai.
7. Apart from taking the above defence, Putalabai and Fulabai in their suit O.S. 55/1967 contended as stated that Savithri was not the wife of Dhondiba and after the death of Dhondiba they alone being the sole survivors of Hajiba entitled to succeed to the entire estate of Hajiba and as such they should be declared as owners or in the alternative their share should be declared as two-third of the entire property.
8. The learned Trial Judge though recorded the evidence in the two suits separately but at the request at the Bar heard common arguments and by his common judgment and decree dated 22.2.1983 dismissed the suit O.S. 55/1967 while decreed the suit O.S. 99/1967 holding that the plaintiff Savithri is the legally wedded wife of Dhondiba and, therefore, was entitled to, to inherit his share of the property.
9. Learned Munsiff also has held that there was no partition between Hajiba and Tukaram. Therefore, the entire suit properties are liable for partition. Thus he has declared the share of Savithri at one-third whereas Putalabai and Fulabai are entitled to one-twelfth each, while Tukaram was entitled to half of the schedule property.
10. Aggrieved by the said judgment and decree, the said Tukaram, Putalabai and Fulabai filed two separate appeals.
11. The learned Appellate Judge after reappraising the evidence by a well considered judgment has agreed with the findings of the learned Munsiff and dismissed both the appeals.
12. These two judgments and decrees are under challenge.
13. At the time of admitting this appeal, this Court as framed the following substantial question of law as arising for consideration.
(a) Whether both the lower Courts were correct in holding about the legality and validity of the Marriage of Savithri with Dhondiba (grandson of propositus Dhondiba) in view of Section 5(vi) of Hindu Marriage Act, 1956; when Smt. Savithri was 12 years old when her marriage took place with Dhondiba ?
(b) Whether both the lower Courts were correct on both the above questions of the legality and validity of the marriage of Savithri with Dhondiba and about the partition between Tukaram and Hajiba and Dhondba and also of their respective self acquisition by mis reading the evidence oral and documentary, in those behalf on record ?
(c) Whether both the lower Courts have correctly appreciated and applied the principles of Hindu Law as to partition in the present cases in the above appeal as enunciated by the Hon’ble Supreme Court in ?
14. Heard the arguments of Mr. Vijaya R. Hanumantagad, learned Counsel for the appellants and Mr. K.B. Adhyapak, learned Counsel for the respondents.
15. In so far as the substantial question of law framed at (a) is concerned, the contention of the learned Counsel for the appellants is that admittedly Savithri was aged 12 years when the alleged marriage took place and in view of Section 5 of the Hindu Marriage Act, 1955 the said marriage is void, if so Savithri cannot maintain the suit. What this contention overlooks is Section 11 of the Hindu Marriage Act. Section 11 of the Hindu Marriage Act declares marriage solemnized after the Act came into force void if it contravenes any of the provisions of Section 5(i)(iv)(v) that is under Section 5(1) when a marriage takes place when one of the spouses is already living; and Section 5(iv) when the marriage is within the prohibited degrees of relationship; under Section 5(v) when the marriage is between sapindas; but Section 11 does not declare the solemnization of the marriage where the parties are below the prescribed age as void; hence even if the contention is accepted it cannot be said that the marriage is void not confirming any rights between the parties. Besides the Apellate Judge has also rejected such a contention when raised before him relying on the decision of the Supreme Court in the case of Smt. Lila Gupta v. Laxmi Narain, AIR 1978 SC 1351, 1978 ( 0 ) BLJR 542,( 1978 ) 3 SCC 258, [ 1978 ] 3 SCR 922. Thus there is no merit in this contention. Hence the substantial question of law is answered, holding both the Courts below were right in holding the marriage of Savithri as valid.
16. In so far as the substantial question of law at No. (b) is concerned, it was contended by the learned Counsel for the appellants that the parties are Kshatriyas and Saptapadi was a necessary custom to be followed for solemnizing a valid marriage. No such saptapadi was performed between Dhondiba and Savithri. Therefore, there is no valid marriage. This contention is already concluded by the earlier proceedings which arose early between the same parties in this very case, by this Court; and the learned Trial Judge referring to the same at para-3 of his judgment has held that this Court had observed that “The factum of marriage of Savithri was not questioned and, the therefore, it was not necessary to set aside the finding on this question”. The fact such a finding is given by this Court is not disputed by the learned Counsel for the appellants; when that is so how the question that has been already concluded in an earlier proceedings between the same parties can be reagitated. I do not think that the appellants are entitled to so reagitate the same.
17. Learned Counsel for the appellants nextly contended that both the Courts were in error in holding that there was no partition between Tukaram and Hajiba. The Appellate Court has given valid reasons at para-52 of its order. It has stated that “Tukaram in his evidence admitted that there is no document evidencing partition and that he did not give any Wardi when the records were destroyed due to the assassination of Mahatma Gandhiji. Even after the alleged partition according to him many of the properties, stood in the joint name of Hajiba and Tukaram”. Besides this, the Appellate Court also has noted the material discrepancies in the evidence of Tukaram regarding the year of partition. It has, therefore, come to the conclusion that Tukaram has failed to prove by any evidence the alleged partition. It is not the case of the appellant that there was evidence regarding partition which the Courts below failed to take into consideration.
18. Hence I do not find any merit in this contention and answer the substantial question of law at (b) that the Courts below were right in holding that there was valid marriage and earlier there was no partition.
19. In so far as the substantial question of law at No. (c) is concerned, both the Courts below have held that having regard to the provisions of Section 6 of the Hindu Succession Act, a deemed partition took place between Dhondiba and his father, Dhondiba being a coparcener is entitled to half the share in the coparcenary property and at the time of the death of his father he also inherits as Class I heir simultaneously and equally with his two sisters and Savithri being the sole widow of Dhondiba is entitled to inherit his entire property as Class I heir under Section 6 of the Hindu Succession Act. This is the right principle of law to be applied. Therefore it cannot be said that the correct principles of Hindu Law is not applied. I do not also find this substantial question of law is also involved for consideration.
20. Learned Counsel for the appellant nextly submitted that having regard to the amended provision of the Hindu Succession Act by the Karnataka Amendment Act, 1990 namely Section 6A(d), the two daughters Putalabai and Fulabai of Hajiba have to be treated as coparceners entitled to equal share with their brother. Therefore, the allotment of shares by the Courts below is not proper.
21. Though such a question was not raised before the Courts below nor this Court has framed any substantial question of law, having regard to the nature of the question being purely legal, I permitted the learned Counsel to make submission in this regard. After a close analysis of Section 6(d) the contention deserves to be rejected.
22. By the Karnataka Amendment Act of 1990, Section 6 of Hindu Succession Act, 1956 was amended by introduction of three sub-sections namely Section 6A, 6B and 6C. This amendment received the assent of the President on 28.7.1994.
23. Section 6A makes a daughter a coparcener entitled to have birth right in the property and also to take the property by survivorship.
24. Section 6A(d) which is relevant for the present purpose is extracted :
“Section 6A. Equal rights to daughter in coparcenary property-Notwithstanding anything contained in Section 6 of this Act-
(d) Nothing in Clause (b) shall apply to a daughter married prior to or to a partition which had been effected before the commencement of Hindu Succession (Karnataka Amendment) Act, 1990.”
25. A reading of Section 6(A) and Section (d) of the Amendment Act manifest that the daughter incurs the disqualification from being a coparcener is the factum of her marriage prior to 1994. The word “or” found in. Section 6(d) is disjunctive, meaning thereby, that a daughter does not become a coparcener under two separate and distinct circumstances one the factum of her marriage taking place prior to 1994 even if her marriage had taken place subsequent to 1994 but partition occurring prior to 1994. In either of the events, she does not become a coparcener.
26. In the facts of this case there is no dispute that Putalabai and Fulabai were married prior to the commencement of the amendment of Section 6A(d) of the Act, their status, therefore, continues to be as Class I heirs and not as coparceners of the family of Hajiba. Hence I do not find any merit in this contention also.
27. For the reasons stated above, this appeal does not involve any substantial question of law raised and also the question of law argued.
28. Appeals, therefore, are dismissed but having regard to the closs relationship of the parties, parties are directed to bear their own costs.
This Regular Second Appeal preferred against the judgment and decree of the Court of the Civil Judge and Asstt. Sessions Judge, Athani in R.A. No. 7/1983, dated 7.9.1996 and confirming those of the Munsiff, Athani passed in OS. No. 99 of 1967 of its file dated the 22nd day of February, 1983 coming on for hearing on the 9th day of March, 2001 in the presence of Smt. Vijaya R. Hanmantgad, Advocate for the appellant and Mr. K.B. Adhyapak for R-1, R-2, 4 to 11 services held sufficient, R-3 served.
And for the reasons stated in the Judgment, it is ordered and decreed that this regular second appeal be and is hereby dismissed.
And it is further ordered and decreed that there shall be no order as to costs in this appeal.
Given under my hand and the seal of this Court, this the 9th day of March, 2001.
