Karnataka High Court
Shekar S/O Hanumanthappa Malapur vs Manikappa S/O Hanumanthappa Malapur on 7 July, 2023
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NC: 2023:KHC-K:5058
RSA No. 7256 of 2009
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 7TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR. JUSTICE C M JOSHI
REGULAR SECOND APPEAL NO. 7256 OF 2009 (PAR/POS)
BETWEEN
1. SHEKHAR,
S/O HANAMANTHAPPA MALAPUR,
SINCE DECEASED BY HIS LR.S
1(A) SMT. LAXMI,
W/O SHEKHAR @ SHEKAPPA,
AGED ABOUT 50 YEARS,
OCC: HOUSEHOLD.
1(B) HANMANTHA,
S/O SHEKHAR,
AGED ABOUT 20 YEARS,
OCC: AGRICULTURE.
1(C) NIKHIL,
S/O SHEKHAR,
AGED ABOUT 16 YEARS,
Digitally signed by
SOMANATH OCC: STUDENT,
PENTAPPA MITTE
Location: HIGH COURT
OF KARNATAKA
UNDER GUARDIAN OF NATURAL MOTHER
SMT. LAXMI, W/O SHEKHAR.
ALL ARE R/O: CHINCHOLI,
TQ: CHINCHOLI,
DIST. KALABURAGI.
2. SHARANAPPA,
S/O HANAMANTHAPPA MALAPUR,
AGED ABOUT 38 YEARS,
OCC: AGRICULTURE.
3. MALLAPPA,
S/O HANAMANTHAPPA MALAPUR,
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RSA No. 7256 of 2009
AGED ABOUT 36 YEARS,
OCC: AGRICULTURE.
4. LAXMIBAI,
W/O HANAMANTH MALAPUR,
AGED ABOUT 75 YEARS.
ALL ARE R/O: CHINCHOLI,
CHINCHOLI TALUKA,
GULBARGA DISTRICT,
PIN-585 307.
..APPELLANTS
(BY SRI MANVENDRA REDDY, ADVOCATE)
AND
1. MANIKAPPA,
S/O: HANAMANTHAPPA MALAPUR,
AGED ABOUT 44 YEARS,
OCC: GOVT SERVANT & AGRICULTURE,
R/O CHINCHOLI, CHINCHOLI TALUK,
GULBARGA DISTRICT-585 307.
DEAD BY LRS:
1(A) ZARANAMMA
W/O. LATE MANIKAPPA MALAPUR,
AGED ABOUT 50 YEARS,
OCC: HOUSEHOLD (WIFE).
1(B) SANTHOSH,
S/O. LATE MANIKAPPA MALAPUR,
AGED ABOUT 26 YEARS,
OCC: AGRICULTURE (SON).
1(C) SURYAKANALA,
D/O. LATE MANIKAPPA MALAPUR,
AGED ABOUT 19 YEARS,
OCC: HOUSEHOLD (DAUGHTER).
ALL R/O: CHINCHOLI,
TQ. CHINCHOLI,
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RSA No. 7256 of 2009
DIST. KALABURAGI.
1(D) UMA,
W/O. SHARANAPPA,
AGED ABOUT 28 YEARS,
OCC: HOUSEHOLD (DAUGHTER),
R/O: MARJAPUR,
TQ. & DIST. BIDAR.
1(E) CHANDRAKALA,
W/O. CHANDRAKANTH,
AGED ABOUT 24 YEARS,
OCC: HOUSEHOLD,
R/O: AALGUD,
TQ. & DIST. KALABURAGI.
2. SMT. KASTURI BAI,
W/O LATE BHEEMANNA,
AGED ABOUT 50 YEARS.
3. DHULAPPA,
S/O LATE BHEEMANNA,
AGED ABOUT 36 YEARS.
4. MANJULA,
W/O LATE BHEEMANNA,
AGED ABOUT 25 YEARS.
5. NAGENDRA,
S/O LATE BHEEMANNA,
AGED ABOUT 22 YEARS.
ALL ARE R/O: PROPER CHINCHOLI,
CHINCHOLI TALUKA,
GULBARGA DISTRICT,
PIN-585 307.
...RESPONDENTS
(BY SRI GANESH NAIK, ADVOCATE FOR R2 TO R5;
NOTICE TO R1(A), R1(B), R1(C) ARE SERVED;
SERVICE OF NOTICE ON R1(D) HELD SUFFICIENT V/O
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RSA No. 7256 of 2009
DATED 29.10.2018;
SERVICE OF NOTICE TO R1(E) IS HELD
SUFFICIENT V/O DATED 06/07/2018)
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE
DATED 30.07.2009 PASSED IN RA NO.26/08 ON THE FILE OF
THE CIVIL JUDGE (SR.DN) CHINCHOLI, ALLOWING THE APPEAL
AND SETTING ASIDE THE JUDGMENT AND DECREE DATED
18-7-2008 PASSED IN OS NO.69/06 ON THE FILE OF THE I
ADDL.CIVIL JUDGE (JR.DN.) CHINCHOLI.
THIS APPEAL HAVING BEEN HEARD THROUGH PHYSICAL
HEARING/VIDEO CONFERENCE AND RESERVED FOR JUDGMENT
ON 23.03.2023, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY THROUGH VIDEO CONFERENCING AT
BENGALURU, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This Regular Second Appeal is filed against the divergent findings by the Trial Court and the First Appellate Court in OS No.69/2006 by the learned I Additional Civil Judge (Jr.Dn), Chincholi and in RA No. 26/2008 by the learned Civil Judge (Sr.Dn) Chincholi, whereby the suit filed by the plaintiff for partition came to be decreed. The defendants are in appeal before this Court.
2. The parties would be referred to as per their ranks before the Trial Court for the sake of the convenience. -5-
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3. Brief facts are as below:
The genealogical tree of the family of the plaintiff and defendants is not in dispute. The propositus of the family Hanmantappa had four sons and two daughters, namely; Bheemanna (who is now represented by defendant Nos. 4 to 7), Manikappa- the plaintiff, Shekhar-
defendant No.1, Sharanappa-defendant No.2 and Mallappa-defendant No.3 and two daughters, namely Droupadi and Narasamma.
4. The plaintiff-Manikappa contended that his two sisters i.e. Droupadi and Narasamma were given in marriage long back and since they were given money and gold at the time of the marriage, they are not made as parties to the suit. It was contended that due to the misunderstanding between the women folk of the family, there was a family arrangement and they were residing separately by making divisions in the house property. For the purpose of eking out their livelihood, even though, there was no partition between them, the brothers were -6- NC: 2023:KHC-K:5058 RSA No. 7256 of 2009 living separately by making an arrangement enjoying separate portions of lands. Plaintiff demanded the partition in the suit schedule properties and the defendants refused to effect the partition. Therefore, he was constrained to file a suit for partition in respect of the suit schedule properties. He claim that there shall be six shares and to allot one such share to him.
5. The defendant Nos. 4 to 7 contended that there was no partition and they also sought for partition in the suit schedule properties and share may be allotted to them as they represent the son of propositus Hanmantappa, i.e. Bheemanna.
6. The defendant Nos. 1 to 3 are sons and defendant No.8 happens to be the mother of the plaintiff and defendant Nos.1 to 3. They contended in the written statement that the relationship between the parties and the nature of the properties is admitted and they have denied the contention of the plaintiff that there was no -7- NC: 2023:KHC-K:5058 RSA No. 7256 of 2009 partition in the joint family properties. They admit that the suit schedule properties were owned by Hanamantappa and as such, they are the ancestral properties of the plaintiff and defendants. They contended that in the year 1997-98 in the presence of the villagers, there was a partition between the plaintiff and defendants and the memorandum of partition was also written and signed by all the parties. They contended that in pursuance to the partition, the lands were divided and they started enjoyment of the properties independently and separately. They narrate the manner in which the partition was effected in the joint family properties and they contend that though the mutation entries had been effected in respect of the properties belonging to defendant Nos. 1 to 3 and 8, the mutation was not effected in respect of the properties which were allotted to plaintiff and defendant Nos. 4 to 7. It is contended that the defendant Nos. 1 to 3 and 8 got mutation order in their names relating to lands allotted to them but the plaintiff and defendant Nos.4 to 7 had not made any attempt to get the mutation effected in -8- NC: 2023:KHC-K:5058 RSA No. 7256 of 2009 their name. Therefore, they contended that the suit is not maintainable and the same be dismissed with costs.
7. On the basis of the above pleadings, the Trail Court framed the following issues and they were answered as below:
1 Whether the plaintiff proves that the suit Affirmative properties are ancestral joint family properties of the parties in the suit? 2 Whether the defendant No.1 to 3 and 8 Affirmative prove that already there was a partition between the parties to the suit in the year 1997-98 as contended in the Para No.2 of the written statement?
3 Whether the plaintiff is entitled for any Negative share? If so to what share?
4 Whether the defendants prove that this Negative court has no pecuniary jurisdiction to try this suit?
5 What order or decree? As per the final order
8. Before the Trial Court, the plaintiff has been examined as PW1 and two witnesses were examined on his -9- NC: 2023:KHC-K:5058 RSA No. 7256 of 2009 behalf as PWs- 2 and 3 and Exs.P1 to P8 were marked. Defendant No.1 got himself examined as DW1 and two witnesses were examined on their behalf as DWs- 2 and 3 and Exs.D1 to D6 were marked.
9. The Trial Court in view of the affirmative finding on Issue Nos. 1 and 2 and negative finding on issue No.3 and 4, dismissed the suit.
10. As against the said judgment, the plaintiff preferred RA No.26/2008 before the First Appellate Court. The plaintiff contended that the judgment and decree of the Trial Court was against the law, facts and oral evidence and the documentary evidence were not properly appreciated by the Trial Court and the alleged partition between the parties was not proved by the defendants.
11. After hearing the arguments, the First Appellate Court, framed following points for its consideration and answered them as below:
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NC: 2023:KHC-K:5058 RSA No. 7256 of 2009 1 Whether contesting defendant No.1 to 3 and In the 3/ respondents No.1 to 3 and 8 prove that negative already actual and final partition is effected between legitimate sharers in the family properties as contended by them? 2 Whether judgment and decree of the trial In the court is against to the law, factual aspects Affirmative and oral as well as documentary evidence? 3 What decree or order? As per the final order
12. The First Appellate Court allowed the appeal and decreed the suit of the plaintiff. While decreeing the suit, the First Appellate Court also took note of the fact that two sisters of the plaintiff and defendant Nos. 1 to 3, namely, Droupadi and Narasamma are entitled for share and carved out their share also. It was decreed that the plaintiff is entitled for 9/48 share in the suit properties and defendant Nos. 4 to 7 together are entitled for the similar shares.
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13. As against the said judgment, the defendant Nos.1 to 3 and 8 have approached this Court in second appeal.
They contend that the First Appellate Court has ignored the clear admission of the plaintiff regarding the earlier partition in the year 1997-98 during the course of his evidence. They contended that the First Appellate Court has made much of the fact of mutation and held that the mutation will be effected only after the due procedure of publishing the same and giving sufficient opportunity to the affected parties and no such procedure was followed by the revenue authorities, and therefore, the mutation entries ipso facto does not show any partition. They also contended that the First Appellate Court completely discarded the evidence of the witnesses, who deposed on behalf of the defendants and spoke about the partition which had been effected. They also contended that the said partition in the year 1997-98 was acted upon and the parties were enjoying the properties and accordingly,
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NC: 2023:KHC-K:5058 RSA No. 7256 of 2009 mutation entries were also effected in the revenue records. It was contended that the First Appellate Court erred in holding that the admission of the plaintiff regarding earlier partition is a stray sentence and but on the other hand it was clear admission in the evidence. It was contended that if at all the plaintiff is aggrieved by the partition in the presence of the panch, he should have approached the Court immediately as prudent man and instead he approached the Court after 9 years after the said partition.
14. On the basis of the above contentions, this Court has admitted the appeal to consider the following substantial question of law:
"Whether the lower Appellate Court was justified in reversing the judgment and decree passed by the learned Trial Judge on the ground that the defence of prior partition is not evidenced by document?"
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15. The Trial Court records have been secured and on issuance of notice, the respondent No.1 and respondent Nos. 2 to 5 have appeared through their counsel.
16. During the pendency of the appeal, the appellant No.1 and respondent No.1/plaintiff died and their legal representatives were brought on record vide order dated 31-5-2022.
17. The arguments by learned counsel appearing for the appellants and the learned counsel appearing for the respondents were heard.
18. The moot question that was canvassed is, whether the First Appellate Court was justified in reversing the judgment and decree passed by the Trial Court on the ground that the defence of prior partition was not properly considered. Evidently, there are divergent findings and therefore, the question whether there was a partition between the plaintiff and defendants is to be looked into by this Court.
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19. The learned counsel for the appellants submit that the Trial Court dismissed the suit for partition, on the ground that there was earlier partition as evidenced by the deposition of the parties before the Court as well as the mutation entries which had been effected pursuant to the partition in the year 1997-98. He submitted that the First Appellate Court has ignored the fact that in the cross- examination of PWs 2 and 3, it was elicited that they did not know anything about the partition effected and they had confined to the affidavit filed as examination- in- chief. He submits that PW1 in his cross- examination has also clearly deposed that there was division in the properties and enjoyment of the properties was separate. Therefore, he contends that the categorical admission of PW1 in the cross-examination was not properly appreciated by the First Appellate Court. When the parties admit that the possession was separate for long time and they enjoyed it separately, such separate enjoyment attains the status of the partition. He submits that unsettling it could not be proper and when the parties are living separate for a
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NC: 2023:KHC-K:5058 RSA No. 7256 of 2009 longer time with separation in food, worship and estate, it is an indication of a partition. It is contended that, if the Trial Court had come to the conclusion on the basis of the evidence, unless such appreciation of the evidence was perverse and illegal, it could not have been interfered by the First Appellate Court. Therefore, he contends that the First Appellate Court has erred in holding that there was no partition and as such, the judgment of the Trial Court may be restored.
20. Per contra, learned counsel appearing for respondent No.1-plaintiff submits that the cross- examination of PW1 could not have been inferred to be a proof of partition. He contends that the plaintiff pleaded that due to the differences among the women folk in the family, the house property was divided and they were living separate. He submits that the properties were not divided, however, certain arrangement were made for eking out their livelihood and there is no such partition by metes and bounds. It is contended that, the defendants
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NC: 2023:KHC-K:5058 RSA No. 7256 of 2009 categorically contend that there was an oral partition and later the memorandum of partition was reduced into writing. When they contend that there exists a document styled as 'Memorandum of Partition', it was incumbent upon the defendants to produce such cogent material. He contends that the evidence led by the defendants is not consistent. It is pointed out that at one stretch the defendants contend that there was an oral partition in the year 1997-98 which is also their pleadings. But in the evidence, DW1 as well as the witnesses of the defendants have contended that there was a partition through the document. It is not their contention that the partition was oral and it is not evidenced that the partition was oral and later memorandum of partition was reduced into writing. The evidence and pleadings are contrary to each other and therefore, the First Appellate Court is justified in decreeing the suit.
21. It is also submitted that the alleged admission of PW1 can only be a stray sentence and the alleged
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NC: 2023:KHC-K:5058 RSA No. 7256 of 2009 admission has to be understood in the context of the contention of the plaintiff that even though there is no partition, the enjoyment and cultivation of the lands was separate according to the convenience and it was only an arrangement and it was not a partition by metes and bounds. Further he submits that the alleged mutation entry indicating the partition had not been effected in the year 1997-98 when the alleged partition took place. He submits that when the defendants tried to make the mutation entries claiming that there was a partition in the year 1997-1998, the plaintiff came to know about such mutation entries and immediately, he has filed the suit in the year 2006. He points out that there was no such mutation entry as per the alleged partition from the years 1998 to 2006. Hence, he vehemently contended that the judgment of the First Appellate Court is proper and correct and no interference is required.
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22. In the light of the above contentions, the substantial question of law raised by this Court is to be answered.
23. The bone of contention between the parties is, whether there was a partition in the year 1997-1998 and such prior partition had been proved. The Trial Court in its judgment has come to the conclusion that the enjoyment of the properties was separate and it was long standing and there were mutation entries in respect of some of the suit properties. It was observed by the First Appellate Court that, the defendant Nos. 1 to 3 and 8 had contended that there was an oral partition and later it was reduced into writing. It observes that in the mutation entries as evidenced by the record of rights, the lands are standing in the names of the respective parties. It observes that, except survey No.60E, all other properties had been mutated as per the alleged partition of the defendants. It was only the plaintiff and the defendant Nos. 4 to 7 who had not got effected their mutation entries. It observes
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NC: 2023:KHC-K:5058 RSA No. 7256 of 2009 that they did not give any application to the concerned authority to mutate their names in the revenue records and therefore, it was due to their fault. Ultimately, it comes to the conclusion that since the revenue records are made in the names of defendant Nos. 1 to 3 and 8, defendants had proved the previous partition and therefore, it dismissed the suit.
24. On perusal of the judgment of the First Appellate Court, it looked into the pleadings of the parties and it notices the meaning of the admission and how an admission has to be appreciated. Thereafter, it comes to the conclusion that the cross-examination of PW1 cannot be inferred to be categorical admission. It has also relied on the decision in the case of Puttanna Shetty by LRs Vs. Padma Shetty by LRs and others1. It further notices that the mutation entries cannot be a proof of partition. It also notices that the defendants contended that there was an oral partition and it was reduced into writing but they 1 2007(3) KCCR 2107
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NC: 2023:KHC-K:5058 RSA No. 7256 of 2009 had not produced such memorandum of partition before the Court. It also notices that initially, the defendants contended that the memorandum of partition was somewhere misplaced and they may be permitted to produce the same before the Court at later point of time. However, when the evidence was led, they changed their version and said that the original memorandum of partition was with the plaintiff. Therefore, the First Appellate Court came to the conclusion that the previous partition had not been proved. It also noticed that the mutation entries were in respect of the properties which were divided among defendant Nos. 1 to 3 and 8. There were no such mutation entries in pursuance to the alleged partition, so far as the properties which were allotted to plaintiff and defendant Nos. 4 to 7. Therefore, it has concluded that the plaintiff and defendant Nos. 4 to 7 had not consented for the alleged partition and moreover, the defendants had failed to prove the said partition by metes and bounds. On this ground, it concluded that there was no such previous
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NC: 2023:KHC-K:5058 RSA No. 7256 of 2009 partition as contended by the defendants and as such, decreed the suit.
25. It is pertinent to that while decreeing the suit the First Appellate Court has taken note of the fact that the plaintiff and defendant Nos. 1 to 3 have two sisters by name Droupadi and Narasamma and therefore, it came to the conclusion that they are also entitled for a share. Therefore, First Appellate Court considered the notional partition during the life time of father of plaintiff and defendant Nos. 1 to 3 and calculated the share among the coparceners and thereafter, in the share that has to be allotted to the father of the plaintiff, a share was allotted to the said Droupadi and Narasamma. It is relevant to note that the said Droupadi and Narasamma had not been arrayed as parties to the suit. The First Appellate Court or the Trial Court did not delve upon the question whether the sisters of the plaintiff are also necessary parties to the suit.
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26. It is settled law that cessation of the commonality is not conclusive of proof of the partition, merely by the reason that the members are separated in food and residence for their convenience and separate residences at different places due to service or otherwise does not show the partition. Several acts of the parties, though not conclusive proof of partition may lead to a conclusion in conjunction with various other facts. Such separate occupations of the portions or divisions of the joint family properties cannot be a conclusive proof of the partition. It is to be noted that, prior to the amendment of Section 6 of the Hindu Succession Act, the oral partition was an acceptable one. Subsequent to the amendment of Section 6 of the Hindu Succession Act, the intent of the Legislature is to see that the oral partition is to be discouraged and cannot be easily accepted.
27. The inference of the partition under the Hindu Law has to be on the basis of the intention of the parties. It is significant to note that when there is an intention to
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NC: 2023:KHC-K:5058 RSA No. 7256 of 2009 severe from the joint family status among the parties, the joint family severs. The joint family properties as it stood on the date of such severance have to be divided by metes and bounds. The severance of the status may take place from the date of filing the suit also if that is the intention of the parties. However, a decree is necessary for working out the results of the partition and there may be change of rights during the pendency of the suit for allotting the definite share till the final decree is passed.
28. In the case on hand, the partition as contended by the defendant No.1 to 3 and 8 took place somewhere in the year 1997-98. It is in their pleadings that it was an oral partition and later a memorandum of partition was reduced into writing. The date of such memorandum of partition is also stated in their written statement. The manner in which the partition had taken place in the year 1997-98 in the presence of the villagers by name Mogalappa, Nagendrappa, Bhimasha etc., is also stated in the written statement. Two of such witnesses to the
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NC: 2023:KHC-K:5058 RSA No. 7256 of 2009 partition were examined by them as DWs 2 and 3. In their testimony, they had stated that they were present at the time of the partition and a document was written in their presence and as per the partition the parties were in possession of the properties. In the cross-examination, they had stated that the plaintiff and the defendant Nos. 4 to 7 had received the Survey No.60E equally and they had to divide 3 acres each among themselves and they did not effected the mutation entry. The evidence of DWs 2 and 3 shows that, when the partition took place, a document was prepared on the same day and original was given to the plaintiff. They say that Xerox copy was given to the remaining parties, including the defendants.
29. It is evident that though the defendants contended that they had copy of the memorandum of partition, they did not make any efforts to prove such document as secondary evidence. In the pleadings, they laid a foundation that they had misplaced it and they will produce the original later. However, at the later point of
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NC: 2023:KHC-K:5058 RSA No. 7256 of 2009 time, they did contend that the original was given to the plaintiff and on that basis they did not take steps to prove the said memorandum of partition. The alleged memorandum of partition was not subsequent, but it was in the year 1998 itself. Therefore, if the partition was effected through an instrument, it should have been registered compulsorily. If the partition was not effected by way of a registered partition deed, such document through which partition was effected cannot be admissible in evidence. Therefore, for the best reasons known to the defendants, they did not venture into proving the said Xerox copy of the memorandum of partition. If really if it was a memorandum of partition, they could have proved it as secondary evidence.
30. The Apex Court in its decision in the case of Vineeta Sharma Vs. Rakesh Sharma2, notes that the intent of the legislature is only to accept the genuine partition that might have taken place under the prevailing 2 (2020)9 SCC 1
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NC: 2023:KHC-K:5058 RSA No. 7256 of 2009 law. The partition is not set up as a false defence and any such oral partition is to be rejected out rightly. Therefore, the change in the stance of the Legislatures needs to be borne in mind while appreciating the facts involved in the case. Therefore, it is evident that when the defendants contended that there is a memorandum of partition they should have proved it and if it is a document of partition, the question is subject to the admissibility and relevance of the document produced. These two aspects have not been met with by the defendants in a manner known to law.
31. The contention of the plaintiff is that, though the enjoyment of the properties is separate it was due to an arrangement among the parties. He does not contend that the properties are still being cultivated jointly. He admits that there was a division, but such division is only an ad- hoc arrangement. It appears that the defendants 1 to 3 and 8 have got effected the mutation entry among themselves so far as the properties enjoyed by them and asked the plaintiff and defendant Nos. 4 to 7 to get the
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NC: 2023:KHC-K:5058 RSA No. 7256 of 2009 mutation entry effected by dividing survey No.60E equally among the plaintiff and the father of defendant No. 4 to 7 i.e., Bheemanna. Under these circumstances, it is evident that the mutation entry contended by the defendants as a proof of partition was also not complete in all respects.
32. The perusal of the documents produced by the defendants show that Survey No.51E, 120E 121E were standing in the name of Bhimmanna and thereafter, the defendant Nos. 1 to 3 and 8 got those properties mutated in their name. The mutation entry at Ex.D1 do not show that it was pursuant to the partition. This document also shows that the wife of Bheemanna i.e., Kasthuribai and the plaintiff had refused to receive the notice. It is also relevant to note that the revenue authorities have effected the mutation entries without the consent of the plaintiff and defendant Nos. 4 to 7. Obviously, the mutation entry was in the year 2005. Therefore, it is evident that the alleged previous partition in the year 1997-98 did not take effect till the year 2005 when the mutation entries were
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NC: 2023:KHC-K:5058 RSA No. 7256 of 2009 effected. Obviously, the revenue records and the mutation entry do not whisper anything about the partition.
33. The above circumstance also shows that the mutation entry as per Ex.D1 and D2 was not long standing mutation entry. If at all the partition had taken place in the year 1997-98 the mutation entry came into effect in the year 2005 and immediately thereafter, in the year 2006, plaintiff has filed the suit for partition. Therefore, it cannot be said that, as per the alleged oral partition, the enjoyment was separated by metes and bounds and the parties had divided their properties when they started living separate in the year 1997-98. The alleged partition cannot be a partition which stood the test of time and the separate enjoyment for considerably long time, as argued by the learned counsel for the appellants. Living separate for a long time without separation of food, worship and estate cannot be partition by metes and bounds. A separation may be in respect of food and worship. If the separation is also in respect of the estate for longer time
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NC: 2023:KHC-K:5058 RSA No. 7256 of 2009 and without any interruption, continuous, genuinely it could attain the status of the partition. In the case on hand, though the alleged partition as per the defendants was in the year 1997-98 they were not entered in the revenue records till the year 2005. It is also evident from Ex.D1 that the plaintiff and defendant Nos. 4 to 7 had refused to give effect to the alleged partition. Moreover, such memorandum of partition has not been proved. It may be true that PWs 2 and 3 participated in the talks of the partition, but such partition was not accepted by plaintiff and defendant Nos. 4 to7. Therefore, the First Appellate Court was justified in holding that the defence of prior partition is not proved.
34. This takes me to the next question, whether the sisters of the plaintiff and defendant Nos. 1 to 3 were necessary parties and the share given to them is just and proper?
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35. Evidently, the date of the death of father of the plaintiff and defendant Nos. 1 to 3 i.e., Hanmantha is not available on record. The date of marriage of the sisters of the plaintiff i.e. Droupadi and Narasamma is also not on record. All the parties to the suit did not feel that they should be arrayed as party defendants. It is not known whether the sisters of the plaintiff and defendant Nos. 1 to 3 were within the knowledge of the present suit for partition. During the pendency of this appeal, the provisions of Hindu Succession Act have under gone change. Section 6 of the Hindu Succession Act has been amended and by virtue of the decision in Vineeta Sharma's case referred supra, the daughters of a Hindu propositus are also coparceners in the family. Therefore, when they are the coparceners, they have a right in the property. Only if the father of the plaintiff and defendant Nos. 1 to 3 died prior to 1956, the provisions of the Hindu Succession Act, 1956 could not have been applied.
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36. The decision of the Apex Court in Vineeta Sharma's case has laid down a quietus to the issue as to whether the amendment brought to the Hindu Succession Act is prospective or retrospective. In para 137 of the said judgment, the Apex Court has held that the provisions contained in the substituted Section of 6 of Hindu Succession confer the status of the coparcener on the daughter before or after the amendment in the same manner as the son with the same joint family liabilities. Therefore, since the right in coparcenery is by birth, it is not necessary that the father of the female coparcener should be living on the date of when the amendment was brought into effect. It was also held that the statutory fiction of the notional partition created by the proviso to Section 6 of the Hindu Succession Act, was only for the purpose of ascertaining the share of the deceased coparcener when he was survived by a female heir. Therefore, the Apex Court has held that the concept of the notional partition is no more applicable.
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37. It is an established fact that, in the case on hand the partition had not taken place in a manner known to law. The partition claimed by the defendant Nos. 1 to 3 and 8 has not been proved as required under law. Therefore, by virtue of the amendment to Section 6 of the Hindu Succession Act, the sisters of the plaintiff and defendant Nos. 1 to 3, i.e., Droupadi and Narasamma are also entitled for equal share. Under these circumstances, when the said Draupadi and Narasamma are not parties to the lis herein, there is no reason not to permit them to be impleaded in the final decree proceedings. When both the parties admit that Droupadi and Narasamma are their sisters, it cannot be ignored. Hence, the First Appellate Court was justified in allotting share to the said Droupadi and Narasamma.
38. In view of the aforesaid discussions, the substantial question of law is answered in the affirmative to the effect that the First Appellate Court was justified in reversing the judgment of the Trial Court on the ground
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NC: 2023:KHC-K:5058 RSA No. 7256 of 2009 that the prior partition is not evidenced by not only the document, but also otherwise.
39. It is necessary to note that by considering the notional partition as per the law that existed prior to the decision in Vineeta Sharma's case, the First Appellate Court had calculated the shares. Post to Vineeta Sharma's case, the shares are to be divided equally. Therefore, the plaintiff(now represented by his LRs), defendant Nos. 1 to 3, Droupadi and Narasamma, the defendant No.8 and defendant No. 4 to 7, who are representing the brother of the plaintiff Bheemanna are entitled for equal share in the suit properties. The shares of the parties required to be modified accordingly. Hence, the following:
ORDER
(i) The appeal is dismissed.
(ii) The judgment and decree passed by the First Appellate Court in RA No.26/2008 on 30-07-2009 directing the partition is upheld. However, the shares are modified.
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NC: 2023:KHC-K:5058 RSA No. 7256 of 2009
(iii) The plaintiff (now represented by his LRs) and defendant Nos. 1 to 3 and 8, Droupadi and Narasamma are entitled for 1/8th share each in the suit schedule properties. The defendant Nos. 4 to 7 together are entitled for 1/8th share in the suit schedule properties.
(iv) The Trial Court is at liberty to vary the shares after impleading Droupadi and Narasamma in Final Decree Proceedings, if required. But it shall be only after hearing Droupadi and Narasamma.
(v) Draw preliminary decree accordingly.
Sd/-
JUDGE tsn* Sl No.: 3