Karnataka High Court
Mrs. Susheelamma vs Mrs. Padma on 7 March, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:9541
RSA No. 2251 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 2251 OF 2012 (PAR)
BETWEEN:
1. MRS. SUSHEELAMMA
W/O. LATE SANNALINGEGOWDA,
SINCE DECEASED, IS REPRESENTED BY
HER LRS APPELLANT NO.2 & 3
2. MRS. MEENAKSHI
W/O. GOWDAIAH,
AGED ABOUT 44 YEARS,
3. MRS. H.S. SHOBHA
W/O. JAYANNA,
AGED ABOUT 40 YEARS,
ALL ARE RESIDING AT
HEBBALU KOPPAL VILLAGE,
Digitally signed
by SHARANYA T K.R.NAGARA TALUK
Location: HIGH
COURT OF (AMENDED VIDE COURT ORDER DATED 23.01.2024)
KARNATAKA
...APPELLANTS
[BY SRI. PRITHVIRAJ B.N., ADVOCATE FOR
APPELLANTS NO.2 & 3,
(APPELLANTS NO.2 & 3 ARE LRS OF APPELLANT NO.1,
VIDE ORDER DATED 23.01.2024)]
AND:
1. MRS. PADMA
W/O. LATE H.S. RAVI,
AGED ABOUT 34 YEARS,
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NC: 2024:KHC:9541
RSA No. 2251 of 2012
2. SADESHA
S/O PADMA
AGED ABOUT 16 YEARS,
3. KUM. SAHANA
D/O PADMA
AGED ABOUT 14 YEARS,
RESPONDENTS 2 & 3 ARE MINORS
REPRESENTED BY THEIR NATURAL
GUARDIAN MRS. PADMA,
ALL ARE RESIDING AT
HEBBALU KOPPAL VILLAGE,
K.R. NAGARA TALUK.
...RESPONDENTS
[BY SRI N.BYREGOWDA, ADVOCATE FOR R1
(R2 & R3 ARE MINORS REPRESENTED BY R1)]
THIS RSA IS FILED U/S.100 OF CPC AGAINST THE
JUDGEMENT AND DECREE DTD: 4.7.2012 PASSED IN
R.A.NO.17/2011 ON THE FILE OF SENIOR CIVIL JUDGE AND
JMFC, K.R.NAGAR, ALLOWING THE APPEAL AND MODIFYING
THE JUDGEMENT AND DECREE DTD: 25.6.2011 PASSED IN
O.S.NO.148/2008 ON THE FILE OF CIVIL JUDGE AND JMFC,
KRISHNARAJANAGAR.
THIS APPEAL, COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC:9541
RSA No. 2251 of 2012
JUDGMENT
This matter is listed for admission and I have heard the learned counsel for the appellants and learned counsel for the respondent No.1.
2. The parties are referred to in the original ranking before the Trial Court, in order to avoid confusion and for the convenience of the Court.
3. The suit is filed by mother-in-law and her two daughters against the daughter-in-law, who is arrayed as defendant No.1 i.e., the wife of son of the plaintiff No.1 and also against her two grand-children for the relief of partition and separate possession of the suit schedule properties to the extent of their share in the same.
4. The suit schedule properties are agricultural lands. It is the specific case of the plaintiffs that suit schedule properties are the joint family properties of the plaintiffs and her deceased son H.S. Ravi and they were enjoying the same jointly. The said H.S.Ravi was working as a Teacher in Government Primary School, Hosakoppal and died on -4- NC: 2024:KHC:9541 RSA No. 2251 of 2012 22.02.2008. The plaintiffs submit that defendant No.1, without notice to them got changed the RTC pertaining to the suit schedule properties in her name stating that she has inherited the same from her husband. It is also contended that plaintiffs are also having share in the suit schedule properties. The plaintiffs submit that plaintiff No.1 being the Class-I heir is having share in the properties of H.S. Ravi also. The defendant No.1 has not divided the suit schedule properties by metes and bounds. Hence, they are entitled for a share in the suit schedule properties.
5. In response to the suit claim, the defendant No.1 appeared and filed the written statement contending that plaintiff No.3 is not the member of joint family consisting of plaintiff Nos.1 and 2 and deceased H.S. Ravi. It is contended that plaintiff No.3 was adopted by one H.B. Ramegowda, S/o. Boregowda, when she was aged about one year. As plaintiff No.3 was given in adoption to H.B. Ramegowda, she has lost her right in properties of joint family. The defendant No.1 further contend that suit schedule properties are exclusive properties of defendant No.1 and as such, the plaintiffs are not -5- NC: 2024:KHC:9541 RSA No. 2251 of 2012 having any right, title or interest over the suit schedule properties.
6. The Trial Court having considered the pleadings of the parties, framed the issues whether the plaintiffs prove that they have got 2/4th share in the suit schedule properties, whether the plaintiffs prove that suit schedule properties are joint family properties of plaintiffs and defendants and whether the defendant Nos.1, 2 and 3 prove that the suit schedule properties are individual property of late H.S. Ravi.
7. The Trial Court allowed the parties to lead evidence and accordingly, the plaintiff No.3 has been examined as P.W.1 and she has produced the documents as Exs.P1 to P10 and defendant No.1 examined himself as D.W.1 and examined a witness as D.W.2 and produced the documents as Exs.D1 and D2.
8. Having considered the material on record, the Trial Court, particularly answered issue No.1 as 'partly affirmative', issue No.2 as 'affirmative' and issue No.3 as 'negative and the contention of the defendants was negated and decreed the suit by granting the partition of 17/192nd share in favour of plaintiff -6- NC: 2024:KHC:9541 RSA No. 2251 of 2012 No.1 and 5/16th share each in favour of plaintiff Nos.2 and 3. The defendant No.1 was granted 5/192nd share and defendant Nos.2 and 3 were granted 25/192nd share each in the suit schedule properties. Being aggrieved by the said judgment and decree, an appeal is filed before the First Appellate Court in R.A.No.17/2011. The First Appellate Court also, having re- assessed the material on record, allowed the appeal in part by modifying the share i.e., the plaintiff No.1 is entitled for 17/96th share and plaintiff Nos.2 and 3 each are entitled for 1/8th share in the suit schedule properties. Being aggrieved by the said judgment and decree, the present second appeal is filed by the plaintiffs before this Court and during the pendency of the appeal, the plaintiff No.1 has passed away.
9. The main contention of the appellants/plaintiffs in this appeal is that the First Appellate Court erred in coming to the conclusion that the provisions of Hindu Succession Act has no application to the facts and circumstances of the case, in view of the judgment of the Apex Court in G. SHEKAR VS. GEETHA AND OTHERS reported in 2009 SAR (CIVIL) 609 and totally erred in deciding the allotment of share to the appellant Nos.2 and 3, who are daughters of late -7- NC: 2024:KHC:9541 RSA No. 2251 of 2012 Sannalingegowda. The First Appellate Court totally erred in coming to the conclusion that Sannalingegowda and his son H.S. Ravi were having half share in the suit schedule properties and the very apportionment is erroneous. Hence, it requires interference.
10. Learned counsel for the appellants would contend that suit was filed in 2008 subsequent to amendment and when the Trial Court has held issue No.2 in 'affirmative', in coming to the conclusion that properties are ancestral properties, the Trial Court ought to have granted equal share to all of them and instead, committed an error. The counsel also brought to notice of this Court the admission given by P.W.1 admitting that the property belongs to Sannelingegowda and also no dispute with regard to the relationship between the parties in her admission. It is also the case of the plaintiff before the Trial Court that after the death of late H.S. Ravi, the defendant No.1 got changed the revenue records in her name.
11. Learned counsel for the respondent No.1 also not disputes the relationship between the parties and though the respondent No.1 claims that property exclusively belongs to -8- NC: 2024:KHC:9541 RSA No. 2251 of 2012 husband of the first plaintiff, in order to substantiate the same, no material is placed before the Trial Court and the Trial Court answered issue No.3 as 'negative' and comes to the conclusion that properties belong to the family.
12. Having perused the material on record, the dispute is only with regard to the apportionment is concerned. Admittedly, plaintiff Nos.2 and 3 are son and daughter of Sannalingegowda and the defendant No.1 is daughter-in-law of said Sannalingegowda i.e., wife of his son H.S. Ravi. During the pendency of this appeal, Susheelamma, who is plaintiff No.1 has passed away.
13. Learned counsel for the appellants would submit that during the life time of Susheelamma, she has executed the Will in favour of H.S. Shoba i.e., plaintiff No.3 and this Court cannot decide the same in this second appeal and if any Will is executed in favour of plaintiff No.3, the plaintiff No.3 can agitate the same by producing the document of Will. The only question before this Court is with regard to how much share the parties are entitled to. In view of the admission on the part of defendant No.1 that properties belong to Sannalingegowda and -9- NC: 2024:KHC:9541 RSA No. 2251 of 2012 when Sannalingegowda died intestate leaving behind his wife and three children, the property devolves upon them as 1/4th share and defendant No.1 is entitled for 1/4th share i.e., the share of her husband H.S.Ravi and the plaintiff Nos.1 to 3 are entitled for remaining 3/4th share as wife and two children and both the Courts have lost sight of the fact that they are Class-I heirs of the deceased Sannalingegowda and erroneously proceeded to apportion the properties and the fact that already amendment was brought in 2005 itself and suit is filed in 2008 is not in dispute and the Trial Court ought to have taken note of the said fact into consideration.
14. Now, in view of the judgment of the Apex Court in VINEETA SHARMA AND RAKESH SHARMA & ORS. reported in AIR 2020 SC 3717, the daughter is also entitled for equal share as that of a son. Hence, it is appropriate to award 1/4th share each to the plaintiff Nos.1 to 3 i.e., 3/4th share and defendant No.1 is entitled for 1/4th share and if any testamentary document is executed by plaintiff No.1, as contended by the learned counsel for the respondent No.1 in respect of her share is concerned in favour of plaintiff No.3, the same is subject to production and proving of the document of
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NC: 2024:KHC:9541 RSA No. 2251 of 2012 Will. If Will is not proved, automatically the parties are entitled for equal share in the share of Susheelamma i.e., 1/4th share.
15. Accordingly, the appeal is disposed of modifying the judgment and decree of the Trial Court in above terms.
Sd/-
JUDGE ST List No.: 1 Sl No.: 31