Karnataka High Court
Sri H P Chikkarama Reddy vs Smt Kanthamma on 14 September, 2020
®
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF SEPTEMBER, 2020
BEFORE
THE HON'BLE MR.JUSTICE M.I.ARUN
C.R.P. NO.431 OF 2014
BETWEEN:
1. SRI. H. P. CHIKKARAMA REDDY
S/O PILLA REDDY
AGED ABOUT 70 YEARS
R/AT NO.23/1, 2ND CROSS
3RD MAIN, WARD NO.14
BOMMANAHALLI
BENGALURU - 560 068
2. SMT. C. BHARATHI
W/O SRI. M. RAMAKRISHNA REDDY
AGED ABOUT 42 YEARS
R/AT NO.667, "SRIKUTEERA"
H.S.R.LAYOUT, SECTOR-II
BENGALURU - 560 102 ... PETITIONERS
(BY SRI. HARISH H.V., ADVOCATE;
SRI. N.K.RAMESH, ADVOCATE FOR P-2)
AND:
1. SMT. KANTHAMMA
W/O SRI. RAJAPPA REDDY
D/O KOTHANOOR NARAYANA REDDY
AGED ABOUT 57 YEARS
R/AT NO.9/A, MAIN ROAD
GARE BAVI PALYA ROAD
HONGASANDRA
BENGALURU - 560 068
2
2. SRI. KOTHANOOR NARAYANA REDDY
S/O LATE NANJUNDA REDDY
AGED ABOUT 85 YEARS
3. SMT. PILLAKKA
W/O SRI.KOTHANOOR NARAYANA REDDY
AGED ABOUT 81 YEARS
4. SRI. B. N. MUNI REDDY
S/O SRI.NARAYANA REDDY
AGED ABOUT 65 YEARS
5. SRI. B.M.SRINIVASA
S/O SRI. B.N.MUNIREDDY
AGED ABOUT 35 YEARS
6. SRI. B.M.SHRIDHAR
S/O SRI.B.N.MUNIREDDY
AGED ABOUT 32 YEARS
7. SRI. B.M.NAVEEN
S/O B.N.MUNIREDDY
AGED ABOUT 30 YEARS
RESPONDENT NOS.2 TO 7
ARE R/AT BELLANDUR VILLAGE
VARTHUR HOBLI, BENGALURU
EAST TALUK, BENGALURU - 560 102
8. SMT. KOMALAMMA
W/O H.A.GOPAL REDDY
D/O NARAYANA REDDY
AGED ABOUT 61 YEARS
R/AT NO.2261, 2ND CROSS
22ND MAIN ROAD
HSR LAYOUT, 1ST SECTOR
BENGALURU - 560 102
3
9. SMT. RADHAMMA
W/O SRI. G.RAMA REDDY
D/O KOTHANOOR NARAYANA REDDY
AGED ABOUT 59 YEARS
R/AT NO.13/1, SOMASUNDARA PALYA
AGARA POST, H.S.R.II SECTOR
BENGALURU - 560 102
10. SMT. PRAMILAMMA
W/O N.VENKATESH REDDY
D/O NARAYANA REDDY
AGED ABOUT 54 YEARS
R/AT DEVARA CHIKKANA HALLI
MAIN ROAD, CHAMUNDESHWARI
NAGAR, BEGUR POST
BENGALURU - 560 068
11. SMT. VIJAYAMMA
W/O SRI. KODANDA REDDY
D/O NARAYANA REDDY
R/AT NO.2, 1ST CROSS
BELLANDUR VILLAGE
BELLANDUR POST
BENGALURU EAST TALUK
BENGALURU - 560 102
12. M/S D.S.R. CONSTRUCTIONS
REP. BY ITS PARTNER
SRI. D. SUDHAKAR REDDY
S/O SRI. D. SUBBRAMI REDDY
AGED ABOUT 63 YEARS
HAVING THEIR OFFICE AT NO.1056
1ST FLOOR, 2ND 'B' CROSS
3RD BLOCK, 80 FEET ROAD
KORAMANGALA
BENGALURU - 560 034
13. SRI. G.SATISH
S/O LATE B.V.GURUMURTHY REDDY
AGED ABOUT 43 YEARS
4
R/AT NO.54/1, M.H.COLONY
BELLANDUR VILLAGE
BELLANDUR HOBLI
BENGALURU EAST TALUK
BENGALURU - 560 102
14. M/S NARAYANA E-TECHNO SCHOOL
AND P.U.COLLEGE
SITUATED IN SY.NO.85/4
BELLANDUR VILLAGE
BENGALURU EAST TALUK
BENGALURU - 560 102
BY ITS CHAIRMAN
DR.P.NARAYANA ... RESPONDENTS
(BY SRI. K.B.S.MANIAN, ADV. FOR R1;
SRI. M.U.POONACHA, ADV. FOR R2 TO R7;
R8, R9, R10, R13 & R14 ARE SERVED;
NOTICE TO R12 IS DISPENSED WITH
VIDE ORDER DATED 06.01.2015;
NOTICE IS ISSUED TO R11)
THIS CIVIL REVISION PETITION IS FILED UNDER
SECTION 115 OF CODE OF CIVIL PROCEDURE, 1908
PRAYING TO SET ASIDE THE ORDER DATED 25.10.2014
PASSED BY XXII ADDL.CITY CIVIL AND SESSIONS JUDGE AT
BENGALURU (CCH-7) IN O.S.NO.7425/2011 AND
CONSEQUENTLY ALLOW THE APPLICATION I.E. IA NO.2/2012
FILED UNDER ORDER 7 RULE 11(a) AND (d) OF CPC AND
DISMISS THE PLAINT INSOFAR AS IT RELATES TO ITEM
NOS.9 AND 10 OF THE SUIT ITEMS ARE CONCERNED.
THIS CIVIL REVISION PETITION COMING ON FOR
HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:
5
ORDER
Heard the learned counsel for the parties.
2. Aggrieved by the order dated 25.10.2014 passed by XXII Additional City Civil and Sessions Judge, Bengaluru (CCH-7) on I.A.No.2/2012 in O.S.No.7425/2011, the petitioners, who are defendant Nos.13 and 14 in the original suit and the applicants in the said application, have filed this revision petition.
3. The case of the petitioners is that the properties measuring 2 acres 19 guntas in Sy.No.34/9 and 39 guntas in Sy.No.34/10, both situated at Junnasandra Village, Varthur Hobli, Bengaluru East Taluk were properties of one Smt.Pillakka - defendant No.2 in the original suit and respondent No.3 herein.
4. On 06.02.2003, there was a registered partition among the family members of Smt.Pillakka. The parties to the partition were respondent No.2, who is the husband of Smt.Pillakka, respondent No.3, who is Pillakka herself and respondent No.4, who is the son of respondent Nos.2 and 3. 6 The properties in question by virtue of the said partition fell to the share of respondent No.4 - B.N.Muni Reddy. On the same day, there was a further partition between respondent No.4 - B.N.Muni Reddy and his sons and the properties in question fell to the share of respondent No.7 - B.M.Naveen. Petitioner No.1 purchased the properties from respondent No.7 - B.M.Naveen by way of a registered sale deed dated 22.11.2004. Thereafter, he gifted the properties in favour of petitioner No.2, who is his daughter, by way of a registered gift deed dated 02.09.2009.
5. Respondent No.1 herein filed O.S.No.7425/2011 contending that she is the daughter of respondent Nos.2 and 3 herein and that the properties which are the subject matter of this revision petition along with several other properties are joint family properties. She along with respondent Nos.8, 9 and 10, who are also daughters of respondent Nos.1 and 2 also have a right over the said properties in addition to respondent Nos.2, 3 and 4 herein. In spite of it, respondent Nos.2, 3 and 4 behind the back of respondent Nos.1, 8, 9 and 10 entered into a registered partition deed on 7 06.02.2003 partitioning the properties among themselves excluding respondent Nos.1, 8, 9 and 10, which is illegal. She contends that she is entitled to 1/7th share in all the suit schedule properties including the properties which are the subject matter of this revision petition and sought for partition of the same and consequently sought for a declaration that the two partition deeds dated 06.02.2003 registered on 27.02.2003, the sale deed executed by respondent No.7 in favour of petitioner No.1 on 22.11.2004 and the gift deed dated 02.09.2009 executed by petitioner No.1 in favour of petitioner No.2 in respect of the properties in question as null and void and not binding on her.
6. The petitioners herein who are defendant Nos.13 and 14 in the original suit have filed their written statement and also made an application under Order VII Rule 11 (a) and (d) of the Code of Civil Procedure and sought for rejection of the plaint in so far as defendant Nos.13 and 14 i.e., petitioners herein are concerned. 8
7. The contention of the petitioners is that the plaintiff i.e., respondent No.1 has claimed a right in the properties purchased by them on the ground that they are joint family properties and she has a right in the properties by virtue of Section 6 of the Hindu Succession Act. It is the specific contention of the petitioners that the amendment to Hindu Succession Act came into force on 09.09.2005, making a daughter an equal coparcener as that of a son. However, if any partition had taken place prior to the amendment as per Section 6(5) by way of a registered partition, then in that event, she cannot question what has been already partitioned. In the instant case, the registered partitions took place on 06.02.2003 which were duly registered on 27.02.2003, which is much earlier to amendment of Section 6 of the Hindu Succession Act coming into force and the properties in question fell to the share of respondent No.7 and petitioner No.1 purchased the same from respondent No.7 on 22.11.2004, which is also prior to the amendment coming into force and thereafter, he gifted the same to his daughter-petitioner No.2 herein. Thus, the partition and the 9 sale having taken place prior to the amendment coming into force, the plaint is barred by law as respondent No.1 i.e., the plaintiff has no right whatsoever upon the properties in question. On the said grounds, the petitioners filed an interlocutory application under Order VII Rule 11(a) and (d) of CPC. The trial Court dismissed the said interlocutory application.
8. Aggrieved by the same, the petitioners preferred CRP No.431/2014 before this Court challenging the impugned order dated 25.10.2014. The said revision petition was dismissed on 09.01.2015.
9. Aggrieved by the same, the petitioners approached the Hon'ble Supreme Court by way of Civil Appeal No.14364/2015 (arising out of SLP (C) No.8253/2015), wherein after hearing the parties, the Hon'ble Supreme Court passed an order as under:
"1. Leave granted.
2. In view of the judgment of this Court dated 16th October, 2015 in Civil Appeal No.7217/2013 in the case of Prakash & Ors. Vs. Phulavati & Ors., the impugned order is set aside and the appeal is 10 remanded to the High Court for a fresh decision on merits in accordance with law.
3. Parties shall appear before the High Court for further proceedings on 4th January, 2016.
4. The appeal is allowed with no order as to costs. Pending application, if any, stands disposed of."
Thus, as could be seen from the above order of the Hon'ble Supreme Court, the matter is remanded back with a direction to decide the same in the light of the decision of the Hon'ble Supreme Court in the case of PRAKASH AND OTHERS VS. PHULAVATI AND OTHERS dated 16.10.2015 in Civil Appeal No.7217/2013.
10. Sri Harish H.V., learned counsel for the petitioners has placed reliance upon the decision of the Hon'ble Supreme Court in the case of PRAKASH AND OTHERS VS. PHULAVATI AND OTHERS reported in (2016) 2 SCC 36. Paragraphs 14, 17, 18, 22 and 23 of the said judgment read as under:
"14. The contention raised on behalf of the appellants and the other learned counsel supporting 11 the said view is that the 2005 Amendment was not applicable to the claim of a daughter when her father who was a coparcener in the joint Hindu family died prior to 9.9.2005. This submission is based on the plain language of the statute and the established principle that in absence of express provision or implied intention to the contrary, an amendment dealing with a substantive right is prospective and does not affect the vested rights. If such a coparcener had died prior to the commencement of the Amendment Act, succession opens out on the date of the death as per the prevailing provision of the succession law and the rights of the heirs get crystallized even if partition by metes and bounds does not take place. It was pointed out that apparently conflicting provision in the Explanation to Section 6(5) and the said section was required to be given harmonious construction with the main provision. The Explanation could not be read in conflict with the main provision. The main provision of Section 6(1) confers right of coparcener on a daughter only from commencement of the Act and not for any period prior to that. The proviso to Section 6(1) also applies only where the main provision of Section 6(5) applies. Since Section 6(5) applies to partition effected after 20.12.2004, the said proviso and the Explanation also applies only when Section 6(1) applies. It is also submitted that the Explanation was merely a rule of evidence and 12 not a substantive provision determining the rights of the parties. Date of a daughter becoming coparcener is on and from the commencement of Act. Partitions effected before 20.12.2004 remain unaffected as expressly provided. The Explanation defines partition, as partition made by a registered deed or effected by decree of a court. Its effect is not to wipe out a legal and valid partition prior to the said date, but to place burden of proof of genuineness of such portion on the party alleging it. In any case, statutory notional partition remains valid and effective.
17. The text of the amendment itself clearly provides that the right conferred on a "daughter of a coparcener" is "on and from the commencement of the Hindu Succession (Amendment) Act, 2005."
Section 6(3) talks of death after the amendment for its applicability. In view of plain language of the statute, there is no scope for a different interpretation that the one suggested by the text of the amendment. An amendment of a substantive provision is always prospective unless either expressly or by necessary intendment it is retrospective. In the present case, there is neither any express provision for giving retrospective effect to the amended provision nor necessary intendment to that effect. Requirement of partition being registered can have no application to statutory 13 notional partition on opening of succession as per unamended provision, having regard to nature of such partition which is by operation of law. The intent and effect of the amendment will be considered a little later. On this finding, the view of the High Court cannot be sustained.
18. The contention of the respondents that the amendment should be read as retrospective being a piece of social legislation cannot be accepted. Even a social legislation cannot be given retrospective effect unless so provided for or so intended by the legislature. In the present case, the legislature has expressly made the amendment applicable on and from its commencement and only if death of the coparcener in question is after the amendment. Thus, no other interpretation is possible in view of the express language of the statute. The proviso keeping dispositions or alienations or partitions prior to 20.12.2004 unaffected can also not lead to the inference that the daughter could be a coparcener prior to the commencement of the Act. The proviso only means that the transactions not covered thereby will not affect the extent of coparcenary property which may be available when the main provision is applicable. Similarly, Explanation has to be read harmoniously with the substantive provision of Section 6(5) by being limited to a transaction of partition effected after 20.12.2004. Notional partition, by its very nature, is 14 not covered either under the proviso or under sub- section (5) or under the Explanation.
22. In this background, we find that the proviso to Section 6(1) and sub-section (5) of Section 6 clearly intend to exclude the transactions referred to therein which may have taken place prior to 20.12.2004 on which date the Bill was introduced. Explanation cannot permit reopening of partitions which were valid when effected. Object of giving finality to transactions prior to 20.12.2004 is not to make the main provision retrospective in any manner. The object is that by fake transactions available property at the introduction of the Bill is not taken away and remains available as and when right conferred by the statute becomes available and is to be enforced. Main provision of the amendment in Sections 6(1) and (3) is not in any manner intended to be affected but strengthened in this way. Settled principles governing such transactions relied upon by the appellants are not intended to be done away with for period prior to 20.12.2004. In no case statutory notional partition even after 20.12.2004 could be covered by the Explanation or the proviso in question.
23. Accordingly, we hold that the rights under the amendment are applicable to living daughters of living coparceners as on 9.9.2005 irrespective of when such daughters are born. Disposition or 15 alienation including partitions which may have taken place before 20.12.2004 as per law applicable prior to the said date will remain unaffected. Any transaction of partition effected thereafter will be governed by the Explanation."
11. The above decision of PRAKASH AND OTHERS VS. PHULAVATI AND OTHERS has been partly overruled in the case of VINEETA SHARMA vs. RAKESH SHARMA AND OTHERS reported in 2020 SCC ONLINE SC 641. Paragraphs 106, 107, 109, 110, 129 and 130 of the said judgment read as under:
"106. In the instant case, the question is different. What has been recognized as partition by the legislation under section 6, accordingly, rights are to be worked out. This Court consistently held in various decisions mentioned above that when the rights are subsequently conferred, the preliminary decree can be amended, and the benefit of law has to be conferred. Hence, we have no hesitation to reject the effect of statutory fiction of proviso to section 6 as discussed in Prakash v. Phulavati (supra) and Danamma (supra). If a daughter is alive on the date of enforcement of the Amendment Act, she becomes a coparcener with effect from the date 16 of the Amendment Act, irrespective of the date of birth earlier in point of time.
In Ref. Section 6(5)
107. The Explanation to Section 6(5) provides that for the purposes of Section 6, 'partition' means effected by any registered partition deed or effected by a decree of a court. It is pertinent to mention that Explanation did not find place in the original Amendment Bill moved before the Rajya Sabha on 20.12.2004. The same was added subsequently. In the initial Note, it was mentioned that partition should be properly defined, leaving any arbitrary interpretation, and for all practical purposes, the partition should be evinced by a registered public document or have been affected by a decree of a court. In a case partition is oral, it should be supported by documentary evidence. Initially, it was proposed to recognize the oral partition also, in case the same is supported by contemporaneous documentary evidence. The intention was to avoid any sham or bogus transactions in order to defeat the rights of coparcener conferred upon daughters by the Amendment Act, 2005. In this regard, Note for Cabinet issued by the Legislative Department, Ministry of Law and Justice, Government of India, suggested as under:
"As regards sub section 5 of the proposed new section 6, the committee vide 17 paragraph has recommended that the term "partition" should be properly defined, leaving any arbitrary interpretation. Partition for all practical purposes should be registered have been effected by a decree of the Court. In case where oral partition is recognized, be backed by proper documentary evidence. It is proposed to accept this recommendation and make suitable changes in the Bill."
109. The Cabinet note made on 29.7.2005 with respect to 'partition' is quoted hereunder:
"5.2 In this connection it may be noted that the amendments made in the Hindu Succession Act, 1956 by the States of Andhra Pradesh, Karnataka, Maharashtra and Tamil Nadu and the Kerala Joint Hindu Family System (Abolition) Act, 1975 will be superseded by any subsequent Central enactment containing provisions to the contrary as the Central legislation will prevail over the State enactments by virtue of operation of doctrine of repugnancy enunciated in article 254 of the Constitution. Innumerable settled transactions and partitions which have taken place hitherto will also become disturbed by the proposed course of action. Further, there could be heartburning from the majority of the Hindu population. In the circumstances, it is proposed that we may remove the distinction between married and unmarried daughters and at the same time clearly lay down that alienation or disposition of property made at any time before the 20th day of December, 2004, that is, the date on which the Hindu Succession (Amendment) Bill, 2004 was introduced in the Rajya Sabha will not be affected or invalidated.18
Consequential changes are also suggested in sub-section (5) of proposed section 6."
110. Section 6(5) as proposed in the original Bill of 2004 read thus:
"(5) Nothing contained in this section shall apply to a partition, which has been effected before the commencement of the Hindu Succession (Amendment) Act, 2004."
129. Resultantly, we answer the reference as under:
(i) The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.
(ii) The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition th which had taken place before 20 day of December, 2004.
(iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.
(iv) The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the 19 actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class-I as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.
(v) In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognized mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected out rightly.
130. We understand that on this question, suits/appeals are pending before different High Courts and subordinate courts. The matters have already been delayed due to legal imbroglio caused 20 by conflicting decisions. The daughters cannot be deprived of their right of equality conferred upon them by Section 6. Hence, we request that the pending matters be decided, as far as possible, within six months."
Placing reliance on the above two decisions of the Hon'ble Supreme Court, the petitioners state that as the partition deeds in question and the sale deed in favour of petitioner No.1 were executed prior to coming into force of the amended Section 6 of the Hindu Succession Act, 1956, respondent No.1 has no right, title or interest over the properties in question and consequently, the suit is barred by law and the plaint ought to have been rejected by the trial Court.
12. Section 6 of the Hindu Succession Act, 1956 prior to 09.09.2005 read as under:
"6. Devolution of interest in coparcenary property.-When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by 21 survivorship upon the surviving members of the coparcenary and not in accordance with this Act:
Provided that, if the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.
Explanation 1.-For the purposes of this section, 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 the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
Explanation 2.-Nothing contained in the proviso to this section shall be construed as enabling a person who had separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein."22
13. The State Amendment of Karnataka had introduced Sections 6-A, 6-B and 6-C to Hindu Succession Act with effect from 30.07.1994. Section 6-A read as under:
"6A. Equal rights to daughter in co-parcenary property.- Notwithstanding anything contained in section 6 of this Act-
(a) in a joint Hindu family governed by Mitakshara law, the daughter of a co-parcener shall by birth become a co-parcener in her own right in the same manner as the son and have the same rights in the co-parcenary property as she would have had if she had been a son inclusive of the right to claim by survivorship and shall be subject to the same liabilities and disabilities in respect thereto as the son;
(b) at a partition in such a joint Hindu family the co-parcenary property shall be so divided as to allot to a daughter the same share as is allotable to a son:
Provided that the share which a predeceased son or a predeceased daughter would have got at the partition if he or she had been alive at the time of the partition, shall be allotted to the surviving child of such 23 predeceased son or of such predeceased daughter:
Provided further that the share allotable to the predeceased child of a predeceased son or of a predeceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such predeceased child of the predeceased son or of such predeceased daughter, as the case may be;
(c) any property to which a female Hindu becomes entitled by virtue of the provisions of clause (a) shall be held by her with the incidents of co-parcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by will or other testamentary disposition;
(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, 1990.24
The said amendment was in operation till the amendment to the Hindu Succession Act made by the Parliament, which came into effect on 09.09.2005.
14. Thus, for the purpose of State of Karnataka, the daughters had equal rights in coparcenary property even prior to the Parliament amending Section 6 which came into effect from 09.09.2005. Nevertheless, daughters married prior to the amendment were excluded from the coparcenary rights. The said restriction is removed by the amendment passed by the Parliament.
15. The decisions of the Hon'ble Supreme Court referred to by the petitioners considered those transactions in which the daughters had no right over the property prior to the amendment made by the Parliament came into force. By virtue of the said decisions, the daughters cannot prefer a suit for partition, in the event if they had no right over the property prior to the amendment coming into force and the property was alienated prior to amendment coming into force. The above decisions of the Hon'ble Supreme Court do 25 not bar the daughters from instituting a suit for partition, if as per prevailing law, prior to amendment she had a right over the property. In the instant case, the partitions took place by virtue of two partition deeds dated 06.02.2003. The sale took place on 22.11.2004. If respondent No.1 had no right over the properties in question by virtue of Karnataka Amendment which came into effect on 30.07.1994, then, on the ground that partition and sale took place prior to 09.09.2005, she would not get any right over the properties. But, if she had a right over the properties due to Karnataka Amendment which introduced Section 6-A to Hindu Succession Act, which was in force till it was eclipsed by the Central Amendment, in that event, she can maintain a suit for partition. The pleadings in the plaint do not reveal whether respondent No.1 had a right over the properties by virtue of the Karnataka Amendment or not. It merely states that she has a right over the properties and behind her back, the partition was effected by respondent Nos.2, 3 and 4 herein and thereafter, between respondent Nos.4, 5, 6 and 7 herein and subsequently, the properties were sold to 26 petitioner No.1 by respondent No.7 and thereafter gifted to petitioner No.2 by petitioner No.1 herein and thus, the same are bad in law.
16. The issue as to whether the properties in question are the self acquired properties of Smt. Pillakka or the joint family properties and whether respondent No.1 has no right, title or interest over the same is a matter of trial. Based merely on the pleadings in the plaint, it is not possible to hold that respondent No.1 had no right over the properties in question when the partitions dated 06.02.2003 or sale dated 22.11.2004 took place. For the aforementioned reasons, I pass the following:
ORDER The revision petition filed under Section 115 of the Code of Civil Procedure is dismissed.
Notwithstanding dismissal of the revision petition, it is made clear that any observation made by this Court is limited to the extent of disposing the civil revision petition and does not 27 come in the way of parties to urge their respective contentions in the light of specific issues that may be framed by the trial Court.
Taking into consideration that the suit is of the year 2011, the trial Court shall dispose of the suit as expeditiously as possible and the parties shall co-operate for the disposal of the suit.
No order as to costs.
This Court places its appreciation on the able assistance rendered by Sri. Harish H.V., learned counsel for the petitioners in revision petition.
Registry is directed to send the trial Court records.
Sd/-
JUDGE NR/-