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Karnataka High Court

Smt Sharanavva W/O Mudakanagouda ... vs Sharanagouda S/O Mudakanagouda Goudra on 18 December, 2025

Author: R.Devdas

Bench: R.Devdas

                             -1-
                                       RFA No.100447 of 2023
                                   C/W RFA No.100509 of 2023




IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

     DATED THIS THE 18TH DAY OF DECEMBER, 2025
                         PRESENT

           THE HON'BLE MR. JUSTICE R.DEVDAS
                                                         R
                           AND
     THE HON'BLE MR. JUSTICE B. MURALIDHARA PAI
         REGULAR FIRST APPEAL NO.100447/2023 C/W
     REGULAR FIRST APPEAL NO.100509/2023 (DEC/INJ)
IN RFA NO.100447/2023:

BETWEEN:

1.     SMT. SHARANAVVA,
       W/O. MUDAKANAGOUDA GOUDRA,
       AGE: 48 YEARS, OCC: AGRICULTURE,
       R/O. HIREKOPPA-582102, TQ: RON, DIST: GADAG.

2.     ESHWARA S/O. DEVAPPA ABAMALAGI,
       AGE: 41 YEARS, OCC: AGRICULTURE,
       R/O. CHIKKAMYAGERI-583 236,
       TQ: YELBURGA, DIST: KOPPAL.
                                               -   APPELLANTS
(BY SRI. CHETAN MUNNOLI, ADVOCATE)

AND:

1.     SHARANAGOUDA,
       S/O. MUDAKANAGOUDA GOUDRA,
       AGE: 27 YEARS, OCC: AGRICULTURE.

2.     HANUMAGOUDA,
       S/O. MUDAKANAGOUDA GOUDRA,
       AGE: 26 YEARS, OCC: AGRICULTURE.

3.     BHIMANAGOUDA,
       S/O. MUDAKANAGOUDA GOUDRA,
       AGE: 25 YEARS, OCC: AGRICULTURE.
                              -2-
                                       RFA No.100447 of 2023
                                   C/W RFA No.100509 of 2023




4.     SMT. NIMBAVVA,
       W/O. MUDAKANAGOUDA GOUDRA,
       AGE: 53 YEARS, OCC: AGRICULTURE,

       ALL ARE R/O. HIREKOPPA-582102,
       TQ: RON, DIST: GADAG.
                                            -   RESPONDENTS
(NOTICE TO RESPONDENTS IS SERVED)

     THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96
OF CPC 1908 AGAINST THE JUDGMENT AND DECREE DATED
26.02.2021 PASSED IN O.S.NO. 62/2015 ON THE FILE OF THE
SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS,
RON, PARTLY DECREEING THE SUIT FILED FOR DECLARATION
AND PERMANENT INJUNCTION, PARTITION AND ETC.

IN RFA NO.100509/2023:
BETWEEN:

1.     SMT. SHARANAVVA,
       W/O. MUDAKANAGOUDA GOUDRA,
       AGE: 48 YEARS, OCC: AGRICULTURE,
       R/O. HIREKOPPA-582102, TQ: RON, DIST: GADAG.

2.     ESHWARA S/O. DEVAPPA ABAMALAGI,
       AGE: 41 YEARS, OCC: AGRICULTURE,
       R/O. CHIKKAMYAGERI-583 236,
       TQ: YELBURGA, DIST: KOPPAL.
                                                -   APPELLANTS
(BY SRI. CHETAN MUNNOLI, ADVOCATE)

AND:

1.     SHARANAGOUDA,
       S/O. MUDAKANAGOUDA GOUDRA,
       AGE: 27 YEARS, OCC: AGRICULTURE.

2.     HANUMAGOUDA,
       S/O. MUDAKANAGOUDA GOUDRA,
       AGE: 26 YEARS, OCC: AGRICULTURE.
                            -3-
                                     RFA No.100447 of 2023
                                 C/W RFA No.100509 of 2023




3.   BHIMANAGOUDA,
     S/O. MUDAKANAGOUDA GOUDRA,
     AGE: 25 YEARS, OCC: AGRICULTURE.

4.   SMT. NIMBAVVA,
     W/O. MUDAKANAGOUDA GOUDRA,
     AGE: 53 YEARS, OCC: AGRICULTURE,

     ALL ARE R/O. HIREKOPPA-582102,
     TQ: RON, DIST: GADAG.
                                           -   RESPONDENTS

(NOTICE TO RESPONDENTS IS SERVED BUT UNREPRESENTED)


     THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96

OF CPC 1908 AGAINST THE JUDGMENT AND DECREE DATED

26.02.2021 PASSED IN O.S.NO. 62/2015 ON THE FILE OF THE

SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS,

RON, PARTLY DECREEING THE SUIT FILED FOR DECLARATION

AND PERMANENT INJUNCTION, PARTITION AND ETC.


     THESE REGULAR FIRST APPEALS HAVING BEEN HEARD AND

RESERVED ON 03.12.2025, COMING ON FOR 'PRONOUNCEMENT

OF JUDGMENT' THIS    DAY, THE COURT PRONOUNCED THE

FOLLOWING:


CORAM:   THE HON'BLE MR. JUSTICE R.DEVDAS
         AND
         THE HON'BLE MR. JUSTICE B. MURALIDHARA PAI
                                  -4-
                                           RFA No.100447 of 2023
                                       C/W RFA No.100509 of 2023




                         CAV JUDGMENT

(PER: THE HON'BLE MR. JUSTICE R.DEVDAS) These two regular first appeals are filed at the hands of the defendants in O.S. No. 62/2015 and the counter claim raised at the hands of the defendants in the same suit, being aggrieved of the impugned judgment and decree passed by the learned Senior Civil Judge & JMFC, Ron.

2. For the sake of convenience, the parties shall be referred to in terms of their ranking before the trial Court.

3. The suit is filed by the three children of Mudukanagouda and his alleged wife Smt.Nimbavva against defendant No.1 Smt. Sharanavva who claims to be the first wife of Sri Mudukanagouda and against defendant No.2, the purchaser and brother of defendant No.1, seeking a declaration that the plaintiffs are the full owners of the suit schedule properties and consequently injunct the defendants from interference with the suit schedule -5- RFA No.100447 of 2023 C/W RFA No.100509 of 2023 property; further to declare the sale deeds executed by defendant No.1 in favour of defendant No.2 in respect of items No.1, 2 and 3 of the suit schedule property as void and not binding on the share of the plaintiffs; further to declare that the plaintiffs along with defendant No.1 have 1/5th share each in the suit schedule properties.

4. It is the contention of the plaintiffs that plaintiff No.4 Smt.Nimbavva married Sri Mudukanagouda in his residence at Hirekoppa village and out of the wedlock plaintiff No.1 was born on 10.05.1996, plaintiff No.2 was born on 27.06.1998 and plaintiff No.3 was born on 16.01.2000. It is contended that Mudukanagouda had an illicit relationship with defendant No.1 and therefore she is not the legally wedded wife of Sri Mudukanagouda and therefore she had no right to sell items No.1 to 3 of the suit schedule property in favour of defendant No.2. It is contended that since she had no right to deal with the properties, the sale deeds executed by defendant No.1 in -6- RFA No.100447 of 2023 C/W RFA No.100509 of 2023 favour of defendant No.2 are not valid and they are void in law.

5. Defendant No.1 entered appearance and filed written statement contending that the claim of the plaintiffs is untenable. It is contended that defendant No.1 is the legally wedded wife of Sri Mudukanagouda and she got married to him about 29 years ago, but they had no issues. In this regard there were constant fights between Mudukanagouda and defendant No.1 and defendant No.1 was ill treated for the reason that she was not able to bear a child for Mudukanagouda. It is contended that Mudukanagouda had illicit relationship with plaintiff No.4 and even if plaintiffs No.1 to 3 are born to Mudukanagouda and plaintiff No. 4, in law, they are illegitimate children of Mudukanagouda and therefore the plaintiffs cannot claim equal rights with defendant No.1. Moreover, in the year 2003 defendant No.1 filed O.S. No. 126/2003 before the learned Civil Judge at Ron seeking maintenance against her husband Mudukanagouda. Although Mudukanagouda -7- RFA No.100447 of 2023 C/W RFA No.100509 of 2023 entered appearance in the suit, he neither filed written statement nor contested the matter. However during the course of the suit Mudukanagouda gave an application and made a statement before the revenue authorities to transfer the khata in respect of items No.1 to 3 of the suit schedule properties in favour of defendant No.1. Consequently, by mutation order bearing No. MR No. 9/ 2003-04 dated 18.03.2004, the revenue records pertaining to items No.1 to 3 of the suit schedule were transferred in the name of defendant No.1. Thereafter defendant No.1 filed a memo and withdrew the suit on 16.09.2006.

6. It is contended that Mudukanagouda died on 08.06.2008. Defendant No.1 sold items no.1 to 3 of the suit schedule properties to defendant No.2 on 31.01.2015, 01.01.2015 and 02.02.2015 respectively, for a sum of Rs.4,88,000/-, Rs.4,60,0000/- and Rs.1,66,000/- respectively. It was further contended that the plaintiffs have no right to raise a challenge to the sale and transfers -8- RFA No.100447 of 2023 C/W RFA No.100509 of 2023 made by defendant No.1 in favour of defendant No.2, as defendant No.1 became the absolute owner of all the suit schedule properties after the death of Mudukanagouda.

7. Defendant No.2 also filed written statement adopting the contentions of defendant No.1. It was further contended by defendant No. 2 that he was a bonafide purchaser of the suit schedule items No.1 to 3 and therefore the same were not available for partition, either for the plaintiffs or for defendant No.1. It was contended that defendant No.2 got the revenue records mutated in his name on the strength of the registered sale deeds and he was in lawful possession, cultivating the suit items No.1 to 3.

8. The trial Court framed the following issues and additional issues, based on the pleadings and the counter claim made by defendant No.1.

RFA No.100447 of 2023 C/W RFA No.100509 of 2023

ISSUES

1. Whether the plaintiffs prove that, the plaintiff No.4 is the legally wedded wife and plaintiff No.1 to 3 are the legitimate children of Mudakanagouda Goudar?

2. Do they further prove that, the sale deed dated 31.12.2015 and 02.02.2015 executed by the defendant No.1 in favour of defendant No.2 are null and void?

3. Whether the plaintiffs prove, their absolute ownership and exclusive possession over the schedule properties?

4. Whether the plaintiffs further prove, the alleged obstruction of defendants?

5. Whether the defendant No.2, proves that, he is bonafide purchaser?

6. Whether the plaintiffs are entitled for declaration and injunction?

ADDITIONAL ISSUES

1. Whether the defendant No.1 proves that, she is the legally wedded wife of Mudakanagouda Goudar?

2. Whether the defendant No.1, further proves that, properties shown in item No. 1(a) to 1(c) in the plaint, were given to her by her husband, in lieu of her maintenance under family settlement?

3. Whether the defendant No.1 proves, her absolute ownership and possession over the properties shown in the counter claim?

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C/W RFA No.100509 of 2023

4. Whether the defendant No.1 proves, the obstruction made by the plaintiffs?

5. Whether the defendant No.1 further proves that, suit is barred under the provisions of C.P.C. and Specific Relief Act, as contended in para No.2 of the written statement?

6. Whether the defendant No.1 proves the suit is barred by limitation?

7. Whether the suit is not properly valued?

ADDITIONAL ISSUE

9. Whether the defendant No.1 proves that, the suit filed by the plaintiff is not maintainable?

9. Insofar as the issue regarding who is the legally wedded wife of Mudukanagouda, the trial Court accepted the contention of defendant No.1 that she had filed a suit against Mudukanagouda seeking maintenance and Mudukanagouda never contested the matter, denying the fact that defendant No.1 is his wife. On the other hand, revenue entries were mutated on the basis of the application given by Mudukanagouda in respect of items No.1 to 3 of the suit schedule in favour of defendant No.1, in the year 2004, during the lifetime of Mudukanagouda.

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C/W RFA No.100509 of 2023 Mudukanagouda never challenged the mutation entries made in favour of defendant No.1 till his death in the year 2008. It was held by the trial Court that these two documents have presumptive value in the eye of law and therefore the plaintiffs not having disproved the said fact, the issue was answered in favour of defendant no.1 and the trial Court held that defendant No.1 is the legally wedded wife of Mudukanagouda.

10. Insofar as the issue regarding the sale and transfer of items No.1 to 3 at the hands of defendant No.1 in favour of defendant No.2 is concerned, the trial Court held that when admittedly only revenue entries were transferred in favour of defendant No.1 and no registered instrument was executed by Mudukanagouda in favour of defendant No.1, which is the requirement of law, the transfers though made under registered instruments by defendant No.1 in favour of defendant No.2, such transfers do not legitimately confer ownership or title in favour of defendant No.2. In that view of the matter, the trial Court

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C/W RFA No.100509 of 2023 proceeded to declare that the three sale deeds executed by defendant No.1 in favour of defendant No.2 are void and they do not legitimately transfer any title or interest in favour of defendant No.2.

11. Insofar as the rights of the plaintiffs and defendant No.1 in respect of the suit schedule properties are concerned, the trial Court held, having regard to Sec.16 of the Hindu Marriage Act, 1955 and the law declared by the Apex Court, plaintiffs No.1 to 3 being the children born to Mudukanagouda, they should be treated as legitimate children and they will have equal share along with defendant No.1 in the suit schedule properties. Consequently, the suit is decreed by the trial Court granting 1/4th share each to plaintiffs No.1 to 3 and defendant No.1, in all the suit schedule properties, except property bearing VPC No. 8 of Hirekoppa village, since the plaintiffs failed to prove that the said property belonged to the deceased Mudukanagouda. The suit and the counter claim is dismissed as against the said immovable property

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C/W RFA No.100509 of 2023 bearing VPC No. 8 of Hirekoppa village. The counter claim of defendant No.1 in all other respects is also dismissed. Consequently, defendants No.1 and 2 have filed these two regular first appeals, raising a challenge to the impugned judgment and decree passed by the trial Court.

12. Although notice is served on the respondents/ plaintiffs, there has been no representation. These two appeals are heard exparte.

13. Learned counsel Sri Chetan Munnoli, appearing for the defendants submitted that the trial Court, having accepted the contention of defendant No.1 that she had filed a suit in the year 2003 against Mudukanagouda claiming maintenance and having accepted the fact that the revenue entries pertaining to items No.1 to 3 were mutated in favour of defendant No.1 at the instance of Sri.Mudukanagouda, items No.1 to 3 of the suit schedule, defendant No.1 became the full owner of the three items of the suit schedule properties by virtue of Sec. 14 of the

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C/W RFA No.100509 of 2023 Hindu Succession Act, 1956. It is submitted that sub Sec.

(1) of Sec. 14 provides that any property possessed by a Hindu female, whether acquired before or after the commencement of the Act, they shall be held by her as full owner thereof and not as a limited owner. Learned counsel would therefore submit, while placing reliance on V.Tulasamma & Ors. Shesha Reddy reported in (1977) 3 SCC 99, since defendant No.1 was admittedly possessed with items No.1 to 3 of the suit schedule, she acquired absolute interest over those properties. Further, since defendant No.1 has exercised her full rights over items No.1 to 3 of the suit schedule properties and sold them in favour of defendant No.2, the sale transactions are legal and cannot be held as void.

14. Learned counsel would further submit that although Mudukanagouda inherited the suit schedule properties from his ancestors and he had no issues, nevertheless the trial Court fell in error in applying Sec. 8 of the Hindu Succession Act in the present context, while deciding the

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C/W RFA No.100509 of 2023 rights of the parties. Learned counsel submitted that since Mudukanagouda inherited the properties from his ancestors, Sec. 6 is required to be applied in deciding the rights of the parties in respect of the other items barring items No.1 to 3 of the suit schedule. Learned counsel submitted that in terms of the Explanation to sub Sec. (3) of Sec. 6, a notional partition should be made as if it took place immediately before the death of Mudukanagouda, between Mudukanagouda and defendant No.1, since she is the only other Class-I legal heir. Applying the said provision, at the partition Mudukanagouda gets half the share and the other half goes to defendant No.1.

15. Further, applying the law as declared by the Hon'ble Supreme Court in the case of Revanasiddappa & Anr. Vs. Mallikarjun & Ors. Reported in (2023) 10 SCC 1, plaintiffs No.1 to 3 will get an equal share along with defendant No.1 in the share that fell to Mudukanagouda. In that view of the matter, learned counsel submits that plaintiffs No.1 to 3 along with defendant No.1 are entitled

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C/W RFA No.100509 of 2023 for 1/4th share each in items No.4 to 7 of the suit schedule properties. Defendant No.1 should be declared as the absolute owner of items No.1 to 3 and the sale made by defendant No.1 in favour of defendant No.2 in respect of items No.1 to 3 should be held valid.

16. Heard learned counsel Sri Chetan Munnoli for the appellants/ defendants No.1 and 2 and perused the appeal memos and the trial Court records.

17. The defendants as well as the plaintiffs have accepted the decision of the trial Court regarding the legitimacy of the marriage between Mudukanagouda and defendant No.1 and the trial Court has rightly applied the law as laid down by the Apex Court that since plaintiffs No.1 to 3 are born to Mudukanagouda and plaintiff No. 4 outside the legitimate wedlock, plaintiffs No.1 to 3 are entitled for a share from out of the share of Mudukanagouda. This Court has also noticed the fact that the plaintiffs have claimed 1/5th share, thereby admitting

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C/W RFA No.100509 of 2023 the rights of defendant No.1 to the suit schedule properties.

18. The disputed issue is regarding items No.1 to 3, the right of defendant No.1 in respect of those properties and the legitimacy of the sales made by defendant No.1 in favour of defendant No.2.

19. There can be no doubt that as per Sec. 18 of the Hindu Adoptions & Maintenance Act, 1956, a Hindu wife is entitled to be maintained by her husband during her lifetime. Further, applying Sec. 14 of the Hindu Succession Act, 1956, any property "possessed" by a Hindu female, shall be held by her as full owner thereof and not as a limited owner. Sub Sec. (2) of Sec. 14 however makes a distinction of such properties acquired by a female Hindu by way of gift or under a Will or any other instrument or under a decree or order of a civil Court or under an award where the terms of the gift, Will

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C/W RFA No.100509 of 2023 or other instrument or the decree, order or award prescribe a restricted estate in such property.

20. Having regard to the undisputed facts, that defendant No.1 filed a suit in the year 2003 against her husband Mudukanagouda seeking maintenance and the fact that Mudukanagouda did not contest the matter and that the suit was withdrawn in the year 2006 by filing a memo, it is clear that there was no decree passed by the Civil Court. The question therefore is whether the mutation entry made in favour of defendant No.1, even if it is at the instance of Mudukanagouda, during the pendency of the suit, in the year 2004, would amount to defendant No.1 acquiring lawful possession over items No.1 to 3 of the suit schedule.

21. We have perused the decision of the Apex Court in Tulasamma (supra) where the word 'possessed by' used by the Legislature in Sec. 14(1) have been analyzed and it was held that the widest possible amplitude should be

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C/W RFA No.100509 of 2023 given to the word and it should be construed as a state of owning a property even though the owner is not in actual or physical possession of the same. It was held that where a widow gets a share in the property under a preliminary decree, it should be deemed that the widow has acquired interest. It was held that the Hindu female's right to maintenance is not an empty formality or an illusory claim being conceded as a matter of grace and generosity, but is a tangible right against property which flows from the spiritual relationship between the husband and the wife and is recognized and enjoined by pure Shastric Hindu Law. However, it was held that such a right may not be a right to property but it is a right against property and the husband has a personal obligation to maintain his wife and if he or the family has property, the female has the legal right to be maintained therefrom. It was held that if a charge is created for the maintenance of a female, the said right becomes legally enforceable.

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C/W RFA No.100509 of 2023

22. The enunciation of the provision regarding maintenance stressing on the husband's personal obligation to maintain his wife, coupled with the admitted fact that there was a no decree passed by the Civil Court in the suit filed by defendant No.1 against Mudukanagouda, the mere transfer of revenue records regarding items No.1 to 3 in favour of defendant No.1 cannot be said to have conferred full rights on defendant No.1. At best, such an action on the part of Mudukanagouda in favour of defendant No.1, may only create a charge for maintenance of defendant No.1 out of items No.1 to 3.

23. We therefore uphold the decision of the trial Court, having regard to reliance placed on many judgments including Yallapu Uma Maheshwari and Another Vs. Buddha Jagadeeswararao and Others reported in (2015) 16 SCC 787, where it was held that Sec. 17 (1) of the Registration Act, mandates that any document, which has the effect of creating and taking away the rights

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C/W RFA No.100509 of 2023 in respect of an immovable property, must be registered and Sec. 49 of the Act, imposes bar on the admissibility of an unregistered document and deals with the documents that are required to be registered under Sec. 17 of the Act. The trial Court is right in its opinion that mere transfer of record of rights by Mudukanagouda in favour of defendant No.1 in respect of items No.1 to 3 will not confer absolute rights in favour of defendant No.1 to deal with the property. It would have been a different situation, had Mudukanagouda gifted the properties or settled the same by way of registered instruments. It was legally permissible for Mudukanagouda to have disposed of the properties, since he was the sole coparcener.

24. However, we accept the contention of the learned counsel for defendants No.1 and 2 that the trial Court fell in error in applying Sec. 8 of the Hindu Succession Act in the present case. When admittedly the suit schedule properties were inherited by Mudukanagouda from his ancestors, and succession to such properties opened up

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C/W RFA No.100509 of 2023 after the death of Mudukanagouda, Sec. 6 would apply and a notional partition should be made between Mudukanagouda and defendant No.1, since defendant No.1 is the only Class-I heir of the Schedule. In this regard, it would be profitable to notice the decision of a Division Bench of the Bombay High Court (Nagpur Bench), in the case of Controller of Estate Duty Vs. P.G. Chaware (1992 SCC Online Bom 624), where several decisions of the Apex Court including N.V.Narendranath Vs. C.W.T. (1969) 1 SCC 748 was noticed, where the Supreme Court had an occasion to examine the question as to whether, under the Hindu System of Law, a joint family may consist of a single male member along with his wife and daughters? It was held that there is no dispute in regard to the legal proposition, that in a joint Hindu family, the wife who is a member is entitled to get a share as and when a partition is effected. The only restriction is that she herself is not entitled to claim a partition.

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C/W RFA No.100509 of 2023

25. Similarly, in Contoller of Estate Duty Vs. Alladi Kuppuswamy reported in (1977) 3 SCC 385 the Apex Court held that once a Hindu widow is held to have a coparcenary interest, then there would be no difficulty in treating her as a member of the Hindu Coparcenary in which case, her interest could be easily valued according to the relevant provision of Sec.39 of the Estate Duty Act. Further, having regard to Explanation 1 of the un- amended provision of Sec. 6 of the Hindu Succession Act, the Apex Court in Gurupad Khandappa Magdum Vs. Hirabai Khandappa Magdum and Others reported in (1978 3 SCC 383) held as follows:

"Explanation 1 to section 6 resorts to the simple expedient, undoubtedly fictional, that the interest of a Hindu Mitakshara coparcener 'shall be deemed to be' the share in the property that would have been allotted to him if a partition of that property had taken place immediately before his death. What is, therefore, required to be assumed is that a partition had in fact taken place between the deceased and his coparceners immediately before his death. That assumption, once made, is irrevocable. In other words, the assumption having been made once for the purpose of ascertaining the share of the deceased in the

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coparcenary property, one cannot go back on that assumption and ascertain the share of the heirs without reference to it. The assumption which the statute requires to be made that a partition had in fact taken place must permeate the entire process of ascertainment of the ultimate share of the heirs, through all its stages. To make the assumption at the initial stage for the limited purpose of ascertaining the share of the deceased and then to ignore it for calculating the quantum of the share of the heirs is truly to permit one's imagination to boggle. All the consequences which flow from a real partition have to be logically worked out, which means that the share of the heirs must be ascertained on the basis that they had separated from one another and had received a share in the partition which had taken place during the lifetime of the deceased. The allotment of this share is not a processual step devised merely for the purpose of working out some other conclusion. It has to be treated and accepted as a concrete reality, something that cannot be recalled just as a share allotted to a coparcener in an actual partition cannot generally be recalled. The inevitable corollary of this position is that the heir will get his or her share in the interest which the deceased had in the coparcenary property at the time of his death, in addition to the share which he or she received or must be deemed to have received in the notional partition."

26. We are therefore of the considered opinion that all the suit schedule properties except item No. 8 bearing VPC

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C/W RFA No.100509 of 2023 No. 8 of Hirekoppa village should be considered for share between plaintiffs No.1 to 3 and defendant No.1. However, since Sec. 6 is applicable, on notional partition between Mudukanagouda and defendant No.1, one half share in all the properties shall belong to defendant No.1 and in the remaining half, plaintiffs No.1 to 3 and defendant No.1 shall have 1/4th share each.

27. At this juncture we feel it is our duty to bring to the notice of the concerned, our observations, having found that the amended provision of Sec.6, pursuant to the 2005 amendment, leaves room for confusion, insofar as the rights of a Hindu widow and mother are concerned. The un-amended Sec.6, more particularly the first proviso, by reference to class-1 heirs of the Schedule, ensured a share at a notional partition to a widow and mother of the deceased along with son; daughter, etc. However, the amended Sec.6 does not contain reference to class-1 heirs of the Schedule. The Hon'ble Apex Court, in the case of Vineeta Sharma Vs. Rakesh Sharma & Ors. Reported

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C/W RFA No.100509 of 2023 in (2020) 9 SCC 1, has held that the amended provisions of Sec. 6(1) provide that on and from the commencement of the amendment Act the daughter is conferred the right. Sec. 6(1)(a) makes daughter by birth a coparcener in her own right and in the same manner as the son. Sec. 6(1)(b) confers the same rights to a daughter in the coparcenary property as she would have had if she had been a son. Sec. 6(2) provides that when the female Hindu shall hold the property to which she becomes entitled under Sec. 6(1), she will be bound to follow the rigors of coparcenary ownership, and can dispose of the property by testamentary mode. Regarding Sec. 6(3), it was held that the interest of a Hindu in a coparcenary property shall pass by testamentary or intestate succession and not by survivorship, and there is a deemed partition of the coparcenary property in order to ascertain the shares which would have been allotted to his heirs had there been a partition. It was held that the Explanation to Sec. 6(3) is the same as Explanation 1 to Sec.6 as

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C/W RFA No.100509 of 2023 originally enacted. Sec. 6(4) makes a daughter liable in the same manner as that of a son. It was held that the proviso to Sec. 6(1) and Sec. 6(5) saves any partition effected before 20.12.2004.

28. A plain reading of the amended provision Sec. 6 does not contain a reference to Class-1 heirs of the Schedule. Having regard to the statement of objects and reasons as noticed and explained by the Hon'ble Apex Court in Vineeta Sharma (supra), there can be no manner of doubt that the law makers did not contemplate or intend to take away the rights of a Hindu widow or mother of the deceased, as was provided in the unamended Sec.6. It is by sheer inadvertence, that the other Class-1 heirs such as widow, mother, widow of predeceased son; etc. who find place in Class-1 of the Schedule and their rights flowing in terms of the unamended Sec. 6 have been missed out in the amended provision.

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C/W RFA No.100509 of 2023

29. We find that although sub Sec. (3) of Sec. 6 provides that the interest of a Hindu in the property of a Joint Hindu Family governed by Mithakshara Law, shall devolve by testamentary or intestate succession, as the case may be, 'under this Act' and not by survivorship, that by itself will not protect the rights of the other Class-1 heirs such as widow, mother, widow of predeceased son; etc., unless specific reference is made to Class-1 heirs in the Schedule, in the amended provision.

30. We therefore feel that it is the bounden duty of this Court to draw the attention of the law makers in this regard. Perhaps, a recasting of the provision, with reference to Class-1 heirs of the Schedule is necessary to avoid confusion.

31. Consequently we proceed to pass the following order:

ORDER

1) The appeals are allowed in part with costs;

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C/W RFA No.100509 of 2023

2) The impugned judgment in O.S. No. 62/2015 on the file of the learned Sr. Civil Judge & JMFC, Ron, stands modified. Defendant No.1 is entitled for half share in the suit schedule properties, items No.1 (a) to (j). Plaintiffs No. 1 to 3 along with defendant No.1 are entitled for 1/4th share each in the other half of the suit schedule properties items No.1 (a) to (j).

3) Defendant No. 2 is permitted to work out equities in respect of suit items No. 1(a) to (c) from out of the share declared in favour of defendant No.1.

4) The rights reserved to plaintiffs No.1 to 3 and defendant No.1 regarding property bearing VPC No. 8 of Hirekoppa village remains undisturbed.

5) Decree may accordingly be drawn up.

6) Registry is hereby directed to furnish a copy of this judgment to the Ministry of Law & Parliamentary Affairs, Government of India, New Delhi to enable the Ministry to consider the

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C/W RFA No.100509 of 2023 observations made by this Court in paragraphs No. 27 to 31 and for further action.

  7)     Ordered accordingly.



                                           Sd/-
                                       (R.DEVDAS)
                                          JUDGE


                                   Sd/-
                           (B. MURALIDHARA PAI)
                                  JUDGE
bvv
CT: VH