Karnataka High Court
M Narayana vs Smt Ramakka on 21 July, 2008
Author: K.Ramanna
Bench: K.Ramanna
IN THE HEGH COURT OF KARNATAKA AT' BANi%;;§mf:_R£: '%
DATED THIS THE 22" DAY &;%z:.:,v,%«2.m_% I
$*$E:§E*'(}£=5.lfZ
-Tm §«§0N'I%L§f. MR,.J{:'§T§%::€ K ?éA~MfiF'm"25
EE{_.3¥~{JZA§? F}1??;'3":3K%_:"39I%?»4§;?§; 593:, W53/.2:}::.':--..
BEWWEEN:
I
< AN¥): '
M i"-farayaua. _ -
8/0 33116 A ' =
71 yrs. if 'V ' , -3' .
Subbannafl
s; c: latc Mum' Vénkatappa. _'
67 ' V " Appcllsmts
- bot.h°.a1té rfa «Gmflen
A. -Opp; Chanriramma Choultxy
~ Swafifigal' « .....
E'za'13ga3pre~33
V -- Ashok Hamnahalli, Adm;
Razrgaiéika
3 ~ ii?/9 EH Na.rmm.g1pa
, 53"§:rs, rja
Eiiciam I-flfohii
E Hosak-ate Tajuk
¥3ar:gaZo.m Disttrict.
Sakamma
W/0 iatr: M11n.iven}:atapp.a
V4
89 yrs, 213 Grape Garden
Opp: Chandramzna Choultzy;
Sevanagar
Bangalore-33
- since dead, by I...Rs. -'~ :s:t.$1lé11:I.ts V
and respondents- 1,3 "
3 Sapojamma
W/o Ramanna _
65 yrs, r/a Nadavathj V '
Axmagondanahalliflaijli * V'
Hosakotc I
Bangaiem flisttici.
4 Lakshm;ikgnma~.mma.' «. '
Win --Bés:hegi:s*;e*da-- _
162 yrs; 1}€--a_Huska1;*"-.,._ .
ejdam I=I:)bii,"'A}_io.-sa1<<)te__Taluk
Bagggalgm Distfictfi J Respondents
V (By'Srié"3r L Vishwanath, Adv for R-1
1?'?«1,v__$_¢&s. 4 are L.Rs. ofdeceased R-2
R-3 85 4 are served)
" is flied under Section 95 gr cps against
the -.,3'ud.g'n"1ent;= and decree dated 7~3~2()O3 passed in
O.AS.,4No.4349;g-' 1986 on the file of XV Add1.City Civil Judge,
Bangakre decreeing the suit for partition, separate
*..,posee9;e,ie'n, me:-me pmfits, future mesne profits, costs, etc.,.
._ V. ";This appeal having been heard and reserved,
Csmiiig cm for prenouncement this day, the Court
" _'§ie1ivered the following;
'};ir:;r 1/éfishaxf: for masnc pmiits contendiag that herself
_ " to 5 art the sons and daughters of 011: Sri
and 1°' defendant; that their father
% £u;,%giV%%;;;;f03-05w 1924; that after the death of their father they
to the suit schedule property and the same is
joint possession of the plaintiff and defendant 1 in 5
JUDGMENT
The appellants/dcft::1M1da11t N-o_$..l?,__and_*3V u u Cami: have come up with judgment and decree dated 4349/1936 on the file 9f the Judge At Bangalore, declaxing that she is entitle to ,1/6"' property and directing her in possession of pm-pcrty TF3 -- f
2. For the panics will be I'6'f6I'.£'Cd tog fay l;é:fo;'e the triad Court. V' fibzjsf of the case is that, the 1 herein filed a suit for partition of portion of the grape garden was in addition to the shares that were ' other defendants in the said gape garden. ;her case that though a partition was efiect she e , V _ "1:ts:1-'if actuaily put in possession ef the same and the '~,Tciefeixdants I to 3 continued in the possession of the said which consist of grape garden and a together with site bearing 83! no. .59/2' V and 6 guntas situated at Lmgmafepmfifi the deathlef Muniven1§atappe_v:a....;:aeebeyafl;V L' the family properties were tee" ef the family and that in palupatti and declaration made. by defendant befeme the Special" Land Ceiiing is produced. It t that she is the class I heir 'and she is entitle to 1/ 6&1 share 'belonging to the said to the panchayath held, there were _p1'operb2es between the heir of the late garden by malizmg the profit them-on share to the plaintiff, therefore she :4; T. { defendants 2 and 3 calling upon t1u%;m_ to aI1o}'.'v~'§'!?ke§:1f;V i/6~j¥* V share and to pay mcsnc pmfits"V'§3:{1fit. '£111:
defendants have not some sh'2§f'Ae.V vIv"Icncc she filed the suit before partition, sepazate poss€:ss§ir;z"z; profits, costs etc. ' V . A ; ' ' '
4. {lac trial court the defendant. 1 "1 V T : 3 .' ficéparatts written statement admitfing theVVv'F::vlVa€:iQ1 1:=_1aip the plaintiif, however the status _of;.:th¢:jx'as__m¢mber of joint ilamjiy is denied and 1i}3.¢}' ___th{: said earlier partition and disputed the". to be made in a panchayath, it is vcr;;1tent£4~;d.. declaration fiver} to the Special Deputy Urban Land Cc1}1n' ' g is only for maktm' g it the authorities the persons who are interested in 'j and the same cannot be a foundafimtt for the faiaaua" fo dccmcing the suit. It is further contended that 4,---1 they have spent more than Rs. 50,000/--- out of fa umT A V' assets for the marriage of the p1ama°m~'I:hat gxven" shelter at the time when her ' 7.:
it is further contended that agliit' ancestral property and they cgf by SHI'ViVOI'Sh.ip and not by contended that since then: hashpgn joint male members of fl1c_Vfa:v intcntnom to partition t}1é'%jbinf:ifam1?'AV':;:V;;fV'pifl1§¢z'ti£§_"tfi¢ c1a1'm of the piaititzfl is premature: _. 'H:cnor:_: VVtiv;'c*';3'. {of dismissal of the suit.
5. ;x{ %'s}41pp§r:& case of the p1aintifi' she and got marked Ex.P1 to 13. The 3 witnesses and have got marked Ex. court after considering the oral and placed on record and after hearing' ' th3: deemed the suit mm: by the plaintifi' she is entitled to 1/6* share in the SS? and the defendants 2 to 3 to put the plaintiff in filxysical possession of the property marked as 'F' in Ex.P.4 .. 'Q :2'.
-' ;'_ -_o',p7/ within 60 days fiom the date of judgment T' plaititifi" was directed to pay additk§i1'§1 'cc*ni*§ market value of the property.
6. Being aggrieved the up with this appeal mai1§ilf'*q;1 the death of their father appcllmts constitute ¢ and that the fcmalc mcsxxbcxég pmpcrfics only at the time of the co-
Paibencrs, #.§fi;:fit no.1-P1ai11tifi' can not dcmand_,_nart1. %¢mc gins' {fam;'1y pn:;pcr& s. it is further 3that'~-the 'based on a prior partition as such %%:;g¢¢ been filed only for pmsession and not ' VV for .TiiatT::thc suit is filed prior to coming into force fimcnémcnt Hindu Succession Act, therefore the not entitled tr) 116*" share in the joint family That when admittedly there is no m1:i111on by VV and bounds the reliance placed on by the lower court on the cariicr partition dots not arise. It is finthcr X . .::_('__4., Q of loose divisions may take piece, « ail the necessazy ingledieaxtsas laid by law namely the defi:m'te,..iniena§on 'to separate, the mxving out (if s}1.a:fies the «. V' "
physical division separating or handing over or" taking away ' of that share. It is filefotality'-afTtI1ese5 factors alone__ that to~e..m¢' conelusion thafgpartifion fact taken at V' 'I ' In the SANKH vs RAMcHANp3,é. fnean) BY HIS L.Rs AN) oTHeRs'_g§x§:§'v.":V9e9se :a7(g -the Apex Court has held ; 'V _ 'It is now Well established that an :a'gIeemezE1"L all the ooparceners is ";i:iotV'es_senfia1 to the dismptiaon of the joint ~ status, but 3 definite and T' ».1m§§1nbiguous indication of intention by one";-member to separate himmif fmm the and to enjoy his share in severalty . Vwjfllvamoant in law to a division of status.
' .I__t"is immaterial in such a case whether the other members assent or not. Glam the CIt'":CiSi(3iI1 is unequivocally expressed, and clearly intimated to his co--~sl3axers, the right of the coparcener to obtain and possess: the share to which he admittedly is entitled, is unimpeachahkg 10 If however the expxessionf-._:off. % intention is a mere pxetenee or ' there is in the eye of lawfno eepalafison L. the joint family status.'
8. On the other hand vtheu fo_:"VVVtfie VA Iespondent No, I argued that in xthe .a1ueeI;1d3efent to Hindu Succession Act, elf incereectness in the order passedpy aiici prayed for dismissal of
9. for both the parties themfioint that arises for my consiiezatieéxyjs and decree passed by the :5" perverse and capricious?
' _ is no dispute between the es reiationship, it is an admitted fact that the appefleem Ajrespondexats are the children of Ian:
~ and the deceased respondent No.1. The of the appellant is that the plamtfifl respondent H is not a q)-parcener and that the suit property being ._ £E1eir ancestral pmpefty they became cwmers of the same by survivorship md not by inheritance, thus it is contended 5";
~.. ___,//4, , '/ that the plaintifi--rcspondcnt no.1 herein, b suit for partition in the absence ofgi:
male members of the: joint ma %V entitled to sham only in respect father and thus she is noi': of a male member. It is further there is no partition bchvnez} family and that they the joint tlamily properties, 'fgrf 'as premature. To appreciate it is necessary to look into Succession [ Amendment ] as foikywsz '*6; Devolution of intcmst in ' .,§:'Qpa1v.f;c;1a1y pmpcrty:-- (I) On and from the wmmenccment of the Himlu Succession (Arzgéjadmcnt) Act, 2005 in a joint Hindu governed by the Mitaksham law, the " _d_.éu1ghtaer ofa csopamener shall---»-
(a) by birth bccomc a oopamcner in hm' awn right in the same manner as the son;
(b) have the same rights in the coparcezaaxy pmpcrty as she would have bad if she had been a son;
12
(c) be subject to ._ liabilities in coparcenaxy 5,3. of I. .
a son, and any xeztizzvcncc coparccincr shall be tO~._i11<:iude';:a reference to a §1aughte_r_ qfa
- Providéd t11a.4: in this submkectitén 1 or H1-.va11dat€a}~. . d1.-zgggisnton or ..zr«c§1enat1<lg11 m§:_§ud1n'gfany fpartitlon 01' tcsiiamcntaiy dispc>sitio'1i"'of property w1ii<:h_ hadj-1_;ai~:e_fi pL3cc.befo1~e the 20th *day of I1.tvl1cVVi:.::.i$tz§31t_:TVTt::i.-as admittedly thcrc is no partiizionin tfié' gafAa:;§pci1ants and rcspondcnts till day, appcljé11ts------~thcy had no intention to separate at present. However DWJ and 2 adxnitting the right of the plaizltifi"
cvgr and in fact he deposed that they are a share to plainfifi in the share of their father I» 'bi1t' ag was cxprcssctd by the appellants in their cvidcnec T the partitrian is cfibctuw thc plaintiff will sell away her gham, but there is no bonaficics in time said contention of the 1"':
13
counsel for the appellants and the gaxnc is" he "
xejectecl.
12. However there: is no #3 to the declaration .. bcfoi"cVi..tI:ii€-» Commissioner for Urban so also the palupatti and ggkctch 'a.i,a.;1 with the same, but dcxmmcnts are oniy upon and that the posscssioi; of with the appellants even till = appellants, it is only for making_ git' tcffihc vi.-authorities the persons who are property and the same cannot be a foViinVcViaifi{§fi":V4ii::bV_ plaintiif for dccrccing the suit. Even tgfj respondent No.1, she was not put " of the dcmarcatad Qropcrty and that the A were not givzizzg any share to her in the pmfim "th;crt€:f3n. Fm-m the mal and docmncntary evidence placed on ~zv:§cord it is clear that than: was an arrmgcmcnt between tht:
" members of the family to paztitian bat they failed to act up 4,":
.;-,2 _/.
§'.=_ '/r"
i '- /- H 2,; / '> __ "// .
4._}jI'cSt3I2t«1:i:§Cl'f:2 suit.
01:). it, as such in View of the dccizsions thc: "
counsel for the appcflant, referred xi \ that then: is no partition by meats ancfhcliunds V sf appellants and respondents 'l'i11£s2-.Ht'iw anxendmerzt to the Hindu, Szlgccgsiéfi of Section 6 of the Act, the status of a copawcncr and got of the family pmpcrficé share among other schedule property.
Thus thfi :;§e;it'pf herein seeking for partition is plaintiff has every right to jthe trial court witlwut ovnsidcring thc ifizat' is no partition in the f33m11y' of V Vvagpcllafifs fcspondcnts til] day by mates and bounds, " __thc '"s.uit of the p1aint:ifi', directing the appcllazuts to in possession ofthc portion marked as 'F' in which is inecmect and illegal and the same is liable Vbc set aside: and the judgment and dccmc passed by thc /Y
5 ."'= .> max Court is to be mocmcd. The rest ofthc fimdiags _ by the trial Court with regard to additional * ~ by the respondent No.1 / plaintiff ' the same does not require any V
14. For the aforesaid this appeal is allowed in ._ dated 7»-3-saws passed by the 1986 is hereby modfiod it «tiaeéfizainm is entitled to pmtition schedule property.
the parties, there is no #0 " ' .
I}rav§ (1acrcc.A V , aficr payment of adeimo11a' ' 1 «. fiffacg the xcspondcnt no. 1 hcncin.
sal-
Judge 09 1:123 share erf the éeccased as per the said Will. iiuzing fhfi 1;¥€1'}.dCI1C}=' Of this appeal {I116 disclosed about executiorx of Q16? Q16 Further this ceurt exercismg ' cannet accept the will if any j::1*g§t:;af,. .tfi3i'1E3'I"$fC3i:'é3, if any W251 has been €xecui<%{:i"'1L§§{r--it; favour of respondent :1o l, th<%:§z;"rs:.s*.p:31:1tI£ér1**c:§::1 1%) "I;igh.t under the W21} by the contention regard cannot be acceptzizd. 1 regarding payment of additional {3:1Av{1£".t I"«:%c if the respcznécntw-1 has almady _ fee he nczcéd not pay' any """
the LA. is disposed cf.
Sci/':{__ Judge