Karnataka High Court
Sri B S Basavarajiah vs Smt B S Shanthamma on 22 April, 2022
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF APRIL, 2022
BEFORE
THE HON'BLE MR.JUSTICE R.NATARAJ
REGULAR SECOND APPEAL CROB. NO.3 OF 2020 (PAR)
(IN REGULAR SECOND APPEAL NO.490/2018)
C/W
REGULAR SECOND APPEAL NO.490 OF 2018 (PAR),
REGULAR SECOND APPEAL NO.491 OF 2018 (PAR)
IN RSA CROB. NO.3/2020:
BETWEEN:
SMT. B.S.SHANTHAMMA
D/O LATE B.S. SHIVANNA
W/O RENUKARADHYA
AGED ABOUT 55 YEARS,
R/AT BYANDAHALLI
DASANAPURA HOBLI
KADABAGERE POST -562 130
BANGALORE NORTH TALUK
PRESENTLY R/AT
FLAT NO.2208, 16TH BLOCK,
JANAPRIYA TOWNSHIP,
KADABAGERE POST -562 130
BENGALURU NORTH TALUK
BENGALURU RURAL DISTRICT.
...CROSS OBJECTOR
(BY SRI. V.F.KUMBAR, ADVOCATE)
AND:
1. SRI. B.S.BASAVARAJAIAH
S/O LATE B.S. SHIVANNA
AGED ABOUT 72 YEARS,
2
R/AT BYANDAHALLI VILLAGE,
KADABAGERE POST-562 130
DASANAPURA HOBLI
BENGALURU NORTH TALUK
2. SRI. B.S. RAJASHEKARAIAH
S/O LATE B.S. SHIVANNA
AGED ABOUT 70 YEARS,
TEACHER, D.B. CHOWDAHALLI
SOMANAHALLI HIGHER
PRIMARY SCHOOL
BANGALORE
PRESENTLY R/O FLAT NO.299
BLOCK, JANAPRIYA TOWNSHIP
KADABAGERE AT POST
DASANAPURA HOBLI
BENGALURU NORTH TALUK
BENGALURU RURAL
DISTRICT-562 130
3. SRI. B.S. SHIVARUDRAIAH
S/O LATE B.S. SHIVANNA
AGED ABOUT 67 YEARS,
R/AT BYANDAHALLI VILLAGE,
DASANAPURA HOBLI
KADBAGERE POST-562 130
BANGALORE NORTH TALUK
BENGALURU RURAL DISTRICT
4. SMT. JAYAMMA
D/O LATE B.S. SHIVANNA
W/O CHENNAPPA I.C.
AGED ABOUT 68 YEARS,
R/AT ESAVANAHALLI VILLAGE,
THYAMAGONDLU HOBLI
DODDABELLE POST-562 130
BANGALORE RURAL DISTRICT
5. SMT. NAGARATHNA
D/O LATE PAPANNA
3
AGED ABOUT 61 YEARS,
R/AT HOUSE NO.344
8TH 'C' MAIN,
3RD CROSS ROAD, 3RD BLOCK,
BASAVESHWARANAGAR
BANGALORE-560 086
...RESPONDENTS
(BY SRI. V. VISWANATH SABARAD, ADVOCATE FOR
RESPONDENT NO.1;
SRI. G.S.BALAGANGADHAR, ADVOCATE FOR RESPONDENT
NO.4;
SMT. KALPANA P.V., ADVOCATE FOR RESPONDENT NO.2;
NOTICE SERVED ON RESPONDENT NO.3;
VIDE ORDER DATED 08.04.2021 SERVICE OF NOTICE TO
RESPONDENT NO.5 IS DISPENSED WITH)
THIS RSA.CROB IS FILED UNDER ORDER XLI RULE 22 OF
THE CODE OF CIVIL PROCEDURE, 1908, AGAINST THE
JUDGMENT AND DECREE DATED 14.08.2017 PASSED IN R.A
NO.225/2013 ON THE FILE OF THE IX ADDITIONAL DISTRICT
AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT,
BENGALURU, PARTLY ALLOWING THE APPEAL AND MODIFYING
THE JUDGMENT AND DECREE DATED 31.08.2013 PASSED IN
O.S NO.319/2009 (O.S. OLD NO.2035/2005) ON THE FILE OF
THE SENIOR CIVIL JUDGE AND JMFC., AT NELAMANGALA.
IN RSA NO.490/2018:
BETWEEN:
SRI. B.S. BASAVARAJIAH
S/O LATE B.S. SHIVANNA,
NOW AGED ABOUT 70 YEARS,
R/O BYANDAHALLI VILLAGE,
DASANAPURA HOBLI,
4
BANGALORE NORTH TALUK,
BANGALORE DIST-562130.
...APPELLANT
(BY SRI. VISWANATH SABARAD, ADVOCATE)
AND:
1. SMT. B.S. SHANTHAMMA
W/O RENUKARADHYA
D/O LATE B.S.SHIVANNA
AGED 53 YEARS,
PRESENTLY R/O FLAT NO.2208,
16TH BLOCK, JANAPRIYA TOWNSHIP,
KADABAGERE,
AT POST: DASANAPURA HOBLI,
BANGALORE NORTH TALUK
BENGALURU DIST.-562130
2. SRI. B.S. RAJASHEKARAIAH
S/O LATE SHIVANNA
AGED 68 YEARS,
PRESENTLY R/O FLAT NO.2208,
16TH BLOCK, JANAPRIYA TOWNSHIP,
KADABAGERE,
AT POST: DASANAPURA HOBLI,
BANGALORE NORTH TALUK
BENGALURU DIST.-562130
3. SRI. B.S. SHIVARUDRIAH
S/O LATE B.S. SHIVANNA
AGED 65 YEARS
R/O BYANDAHALLI VILLAGE
DASANAPURA HOBLI
BANGALORE NORTH TALUK,
BANGALORE DIST-562130
4. SMT. JAYAMMA
W/O CHANNANNA
D/O LATE B.S. SHIVANNA
AGED 66 YEARS.
R/AT ESAVANAHALLI VILLAGE
THYAMAGONDLU HOBLI,
5
DODDABELE POST
NELAMANGALA TALUK
BENGALURU DIST-562123
5. SMT. P. NAGARATHNA
W/O LATE PAPANNA
AGED 59 YEARS
R/O NO.944, 8TH 'C' MAIN,
3RD CROSS, 3RD BLOCK,
BASAVESHWARANAGARA
BENGALURU-86
...RESPONDENTS
(BY SRI. V.F. KUMBAR, ADVOCATE FOR RESPONDENT NO.1;
SMT. KALPANA P.V., ADVOCATE FOR RESPONDENT NO.2;
NOTICE IS SERVED ON RESPONDENT NO.3;
SRI. G.S.BALAGANGADHAR, ADVOCATE FOR RESPONDENT
NO.4;
VIDE ORDER DATED 08.04.2021 SERVICE OF NOTICE TO
RESPONDENT NO.5 IS DISPENSED WITH)
THIS RSA IS FILED UNDER SECTION 100 OF THE CODE
OF CIVIL PROCEDURE, 1908 AGAINST THE JUDGMENT AND
DECREE DATED 14.08.2017 PASSED IN R.A.NO.225/2013 ON
THE FILE OF THE IX ADDITIONAL DISTRICT AND SESSIONS
JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, PARTLY
ALLOWING THE APPEAL AND MODIFYING THE JUDGMENT AND
DECREE DATED 31.08.2013 PASSED IN O.S.NO.319/2009 (O.S.
OLD NO.2035/2005) ON THE FILE OF THE SENIOR CIVIL JUDGE
AND JMFC., NELAMANGALA.
IN RSA NO.491/2018:
BETWEEN:
SRI.B.S. BASAVARAJIAH
S/O LATE B.S. SHIVANNA,
NOW AGED ABOUT 70 YEARS,
6
R/O BYANDAHALLI VILLAGE,
DASANAPURA HOBLI,
BANGALORE NORTH TALUK,
BANGALORE DISTRICT-562130
...APPELLANT
(BY SRI. VISWANATH SABARAD, ADVOCATE)
AND:
1 . SMT. B.S. SHANTHAMMA
W/O RENUKARADHYA,
D/O LATE B.S. SHIVANNA,
AGED 53 YEARS,
PRESENTLY R/O. FLAT NO.2208,
16TH BLOCK, JANAPRIYA TOWNSHIP,
KADABAGERE,
AT POST: DASANAPURA HOBLI,
BANGALORE NORTH TALUK,
BANGALORE DISTRICT-562130
2 . SRI. B.S. RAJASHEKARAIAH
S/O. LATE SHIVANNA,
AGED 68 YEARS,
PRESENTLY R/O. FLAT NO.2208,
16TH BLOCK, JANAPRIYA TOWNSHIP,
KADABAGERE,
AT POST: DASANAPURA HOBLI,
BANGALORE NORTH TALUK,
BENGALURU DISTRICT-562130
3 . SRI. B.S. SHIVARUDRIAH
S/O. LATE B.S. SHIVANNA,
AGED 65 YEARS
R/O. BYANDAHALLI VILLAGE,
DASANAPURA HOBLI,
BANGALORE NORTH TALUK,
BANGALORE DISTRICT-562130
4 . SMT. JAYAMMA
W/O CHANNANNA,
D/O LATE B.S. SHIVANNA,
AGED 66 YEARS
7
R/AT ESAVANAHALLI VILLAGE,
THYAMAGONDLU HOBLI,
DODDABELE POST,
NELAMANGALA TALUK,
BENGALURU DISTRICT.
5 . SMT. P. NAGARATHNA
W/O. LATE PAPANNA,
AGED 59 YEARS,
R/O NO.944, 8TH 'C' MAIN,
3RD CROSS, 3RD BLOCK,
BASAVESHWARANAGARA,
BENGALURU-86.
...RESPONDENTS
(BY SRI. V.F. KUMBAR, ADVOCATE FOR RESPONDENT NO.1,
SMT. VANITHA V.M., ADVOCATE FOR RESPONDENT NO.2,
NOTICE SERVED ON RESPONDENT NO.3,
SRI.G.S.BALAGANGADHAR, ADVOCATE FOR RESPONDENT NO.4,
VIDE ORDER DATED 18.01.2022, SERVICE OF NOTICE TO
RESPONDENT NO.5 IS DISPENSED WITH)
THIS RSA IS FILED UNDER SECTION 100 OF THE CIVIL
PROCEDURE CODE, 1908, AGAINST THE JUDGMENT AND
DECREE DATED 14.08.2017 PASSED IN R.A.NO.240/2013 ON
THE FILE OF THE IX ADDITIONAL DISTRICT AND SESSIONS
JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, PARTLY
ALLOWING THE APPEAL AND MODIFYING THE JUDGMENT AND
DECREE DATED 31.08.2013 PASSED IN O.S.NO.319/2009 ON
THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC,
NELAMANGALA.
THESE RSA CROB. AND REGULAR SECOND APPEALS ARE
COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED
THE FOLLOWING:
8
JUDGMENT
RSA No.490/2018 and RSA No.491/2018 are filed by the defendant No.1 in O.S. No.319/2009 (old No.2035/2005) challenging the Judgment and Decree dated 31.08.2013 passed therein by the learned Senior Civil Judge and JMFC., Nelamangala (henceforth referred to as 'the Trial Court') as well as the Judgment and Decree dated 14.08.2017 passed by the IX Additional District and Sessions Judge, Bengaluru Rural District, Bengaluru, (henceforth referred to as 'the First Appellate Court') in R.A. No.225/2013 and R.A. No.240/2013 respectively.
2. RSA.Crob.No.3/2020 in RSA No.490/2018 is filed by the plaintiff in O.S. No.319/2009 challenging the Judgment and Decree of the Trial Court as well as the Judgment and Decree of the First Appellate Court in R.A. No.225/2013 in so far as it related to modifying the share of the plaintiff in suit schedule item Nos.2, 6, 14 and 23.
3. The Trial Court held that the plaintiff is entitled to 1/5th share in the suit schedule properties excluding suit 9 item Nos.1, 6, 13 and 23. The First Appellate Court modified it and held that the plaintiff is entitled to 1/5th share each in suit item Nos.1, 3, 4, 5, 7, 8, 9, 10, 12, 16, 17 and 18 and 1/20th share in the share of her father in suit item Nos.2, 13, 14, 15, 19 to 22 and 24. However, it dismissed the suit of the plaintiff in respect of suit item Nos.6, 11 and 23. It declared that the sale deed relating to suit item No.1 executed by defendant No.1 in favour of defendant No.5 was not binding on the share of the plaintiff and defendant Nos.2 to 4.
4. The parties shall henceforth be referred to as they were arrayed before the Trial Court. The appellant in both RSA No.490/2018 and RSA No.491/2018 was the defendant No.1 while the cross-objector in RSA.Crob.No.3/2020 was the plaintiff before the Trial Court. Respondent Nos.2 to 5 in RSA No.490/2018 and RSA No.491/2018 were defendant Nos.2 to 5 before the Trial Court.
10
5. Initially, the plaintiff filed the suit in O.S. No.2035/2005 before the Court of the Civil Judge (Sr. Dn.), Bangalore (Rural) District, Bangalore, against defendant Nos.1 to 4. Subsequently, the suit was transferred from the said Court to the Court of Civil Judge (Senior Division) and JMFC., Nelamangala, and renumbered as O.S. No.319/2009. On an application filed by the plaintiff, Defendant No.5 was impleaded in the suit in terms of the Order dated 27.03.2007.
6. The plaintiff claimed that she and the defendant Nos.1 to 4 were members of a joint family, being the sons and daughters of late Sri B.S. Shivanna and Smt. Honnagangamma. She claimed that her father, Sri B.S.Shivanna, died in the year 1981. After the death of Sri B.S. Shivanna, Smt. Honnagangamma became the kartha of the family and looked after the same until her death in 1987. The defendant No.1 took over the reigns of the joint family as the kartha as well as the suit properties that were ancestral and belonged to the joint family. The 11 plaintiff claimed that there was a dispute amongst the defendant Nos.1 to 4 which forced them to have a separate kitchen, but there was no actual division in the family. The defendant Nos.1 to 4 were acting detrimental to the interest of the plaintiff inasmuch as the suit item No.1 which was acquired out of the joint family funds in the name of defendant No.1 was alienated in favour of the defendant No.5 (stated as 4th defendant in the plaint) on 12.08.1996 without the notice, knowledge and consent of the plaintiff. Therefore, she prayed for partition and separate possession of her share in the suit schedule properties.
7. The defendant No.1 contested the suit by filing his written statement. The defendant No.1 denied that the suit properties were the ancestral properties. He contended that after the death of his father, his mother, Smt. Honnagangamma, was managing the properties. He denied that due to differences in the family, the parties had set up separate kitchen. The defendant No.1 claimed 12 that he never managed the affairs of the joint family. He contended that during 1985, all the members started living separately. He alleged that the marriage of the defendant No.4 was performed during the lifetime of his father Sri B.S. Shivanna and she was residing with her family at Esuvanahalli. The plaintiff was also married off in the year 1990 and she was residing with her husband. On 23.05.1974, the defendant No.1 purchased the suit item No.1 from out of his own funds and alienated it to Smt. P. Nagarathna in terms of a sale deed dated 12.08.1996 (stated as 12.09.1996 in the written statement). He alleged that neither the plaintiff nor the other defendants had any right over the suit item No.1. The defendant No.1 alleged that the suit was filed at the instance of the defendant No.2 who was a teacher who exhorted the plaintiff to file the suit. He alleged that there was an oral partition in the family in the year 1985 itself and therefore, prayed for dismissal of the suit.
13
8. The defendant No.5 remained ex parte before the Trial Court.
9. In the additional written statement of the defendant No.1, he contended that even if the suit properties were ancestral, the plaintiff was not entitled for any share in suit item No.1 as it was alienated in 1996, long before coming into force of the Hindu Succession (Amendment) Act, 2005 (for short 'the Act of 2005'), which saved alienations prior to 20th December 2004. He alleged that the plaintiff had not approached the Court with true facts.
10. The defendant Nos.2 to 4 in their written statement admitted the relationship between the parties and that the suit properties were the joint family ancestral properties. They admitted that all the members were in joint possession and were entitled for a share in the suit schedule properties along with the plaintiff. They claimed that the suit item No.1 was also the property of the joint 14 family which was sold by defendant No.1 to defendant No.5 without their consent.
11. Based on these rival contentions, the Trial Court framed the following Issues:
"1.Whether the plaintiff proves that suit schedule properties are ancestral, joint family property of parties?
2. Whether the plaintiff proves that herself and defendants are in common enjoyment of the suit schedule property?
3. Whether the 1st defendant proves that suit item No.1 is his self-acquired property?
4. Whether the 1st defendant proves that oral partition during 1985 between plaintiff and the defendants and are enjoying their properties?
5. To what relief the parties are entitled?"
12. The plaintiff was examined as PW.1 and she marked documents as Exs.P1 to P25. The defendant No.1 was examined as DW.1 and he marked documents as Exs.D1 to D5.
15
13. Based on the oral and documentary evidence, the Trial Court held that in respect of the suit properties other than items No.1, 6, 13 and 23, there was no dispute that they were the joint family properties of the plaintiff and defendant Nos.1 to 4.
14. In so far as suit item No.1, namely the property in Sy.No.78/1 measuring 02 acres 38 guntas, it held that the mutation register extract (Ex.P3) disclosed that it was purchased by the defendant No.1 from Sri Narasimhaiah on 19.06.1974. However, the sale deed dated 19.06.1974 was not produced before the Trial Court. Even otherwise, the mutation register extract (Ex.P4) showed the properties of Sri. B.S. Shivanna which did not include suit item No.1 and the RTC extract (Ex.P25) indicated that the said property was sold to defendant No.5 - Smt. P. Nagarathna in terms of the sale deed, certified copy of which is at Ex.P24. The Trial Court held that the documents clearly established that the suit item No.1 was purchased by the defendant No.1. It held that 16 when the plaintiff disputed that suit item No.1 was the self acquisition of defendant No.1, the plaintiff was bound to establish the same. It held that the material available on record clearly established that the suit item No.1 was the self acquisition of defendant No.1. Hence, it held that the suit item No.1 was the self acquisition of defendant No.1 which was not available for partition.
15. In so far as suit item No.13, namely the property in Sy. No.74/2 measuring 11 guntas, the Trial Court held that the plaintiff had not produced any document to show its existence and therefore, held that the property was not available for partition.
16. In so far as suit item No.6, namely, the property in Sy. No.81/5 measuring 20 guntas, it held that the mutation was not brought out in the name of any of the family members. But, the name of khatedar was shown as Smt. Puttarudramma in column No.9 of the RTC and in the cultivator's column, the name of Sri B.S.Shivanna was shown. The Trial Court held that the 17 plaintiff did not produce any document to establish that the said property belonged to the joint family.
17. In so far as suit item No.23, namely, the property in Sy. No.17/3 measuring 0.04 guntas, the Trial Court held that the property did not exist as it was bifurcated as Sy. Nos.17/3A, 17/3B and 17/3C. It held that the revenue records did not indicate that this property belonged to the family of the plaintiff and a mere entry of the name of Sri B.S.Shivanna in column No.9 of the RTC of this survey number did not establish that it was a joint family property. In so far as suit item No.25, the property in Sy.No.24/5 measuring 23 guntas, a memo was filed by the plaintiff to delete the said property. Therefore, the Trial Court decreed the suit in part and declared that the plaintiff is entitled to 1/5th share in the suit schedule properties excluding item Nos.1, 6, 13 and 23.
18. Being aggrieved by the aforesaid Judgment and Decree, the defendant No.1 filed R.A. No.225/2013 while the plaintiff filed R.A. No.240/2013 before the First 18 Appellate Court in so far as it related to refusal to grant her share in suit item Nos.1, 6, 13 and 23.
19. The First Appellate Court secured the records of the Trial Court, heard the learned counsel for the parties and framed the following points of consideration:
"1. Whether the plaintiff proves that suit schedule properties are ancestral and joint family properties, she and defendants are in joint possession and enjoyment of the same?
2. Whether the first defendant proves that suit item No.1 is his self acquired property?
3. Whether he further proves the oral partition as contended in para-8 of his written statement?
4. Whether the plaintiff is entitled for the relief of partition?
5. Whether the judgment and decree of the trial court is based upon the proper appreciation of law and fact and interference of this court is necessary?
6. What order or decree?"
20. The First appellate Court by its common Judgment dated 14.08.2017, allowed both the appeals in part and in modification of the Judgment and Decree dated 19 12.08.1996 passed by the Trial Court in O.S. No.319/2009, it held that the plaintiff and defendant Nos.1 to 4 are entitled to claim 1/5th share each in the suit item Nos.1, 3, 4, 5, 7, 8, 9, 10, 12, 16, 17 and 18 and that the defendant Nos.1 to 3 and their father are entitled to claim 1/4th share each in suit item Nos.2, 13, 14, 15, 19 to 22 and 24. Further, it held that the plaintiff and defendant Nos.1 to 4 are entitled to claim 1/20th share each in the 1/4th share of their father in suit item Nos.2, 13, 14, 15, 19 to 22 and
24. The First Appellate Court held that the sale deed executed by the defendant No.1 in respect of suit item No.1 in favour of defendant No.5 was not binding on the share of the plaintiff and defendant Nos.2 to 4 and dismissed the suit in respect of suit item Nos.6, 11 and 23.
21. The First Appellate Court while arriving at the above conclusion held that the succession opened in the year 1981 when the propositus Sri B.S.Shivanna died and therefore held that the plaintiff and defendant No.4 were not entitled to any share in suit item Nos.2, 13, 14, 15, 19 20 to 22 and 24 since they were the ancestral properties of the family. It therefore held that the plaintiff and defendant Nos.1 to 4 were entitled to the 1/20th share each in the notional share of their father in respect of suit item Nos.2, 13, 14, 15, 19 to 22 and 24. In so far as suit item Nos.6, 11 and 23 are concerned, it held that there was nothing to establish that they were the properties of the joint family.
22. Being aggrieved by the aforesaid Common Judgment and separate Decree in R.A. No.225/2013 and R.A. No.240/2013, the defendant No.1 has filed RSA No.490/2018 and RSA No.491/2018 respectively. The plaintiff has filed her cross-objection (RSA.Crob.No.3/2020) in RSA No.490/2018 challenging the Judgment and Decree of the First Appellate Court dated 14.08.2017 in R.A. No.225/2013 in so far as it relates to refusal to grant share in suit item Nos.2, 6, 14 and 23.
21
23. R.S.A. No.490/2018 and R.S.A. No.491/2018 were admitted on 05.03.2019 and 06.12.2021 respectively to consider the following substantial questions of law:
i) Whether allotment of share by the First Appellate Court to the plaintiff and defendants is in accordance with Section 6 of the Hindu Succession Act, 1956?
ii) Whether the finding of the First Appellate Court that plaint schedule item No.1 is ancestral property of the plaintiff and defendants suffers perversity?
R.S.A. Crob. No.3/2020 was admitted on 06.12.2021.
24. The learned counsel for the defendant No.1 submitted that the suit was filed by the plaintiff claiming to be a coparcener in the light of provisions of the Hindu Succession (Amendment) Act, 2005 which saved all alienations prior to 20th December, 2004. He submitted that in view of the above, the alienation of suit item No.1 by the defendant No.1 to the defendant No.5 on 12.08.1996 was binding not only on the plaintiff but also on the defendant Nos.2 to 4. In so far as allotting equal 22 share to the plaintiff, the learned counsel submitted that the propositus died in the year 1981 and therefore, the law of succession as it prevailed at that point in time, excluded daughters from claiming as coparceners. He contended that the plaintiff was entitled only for a share in the notional share of the propositus Sri. B.S.Shivanna.
25. Per contra, the learned counsel for the plaintiff submitted that the suit was filed on 02.09.2005 and Section 6 of the Hindu Succession Act, 1956 was substituted by Act No.39 of 2005 with effect from 09.09.2005 and by virtue of the judgment of the Apex Court in Vineeta Sharma v. Rakesh Sharma and Others [(2020) 9 SCC 1], the plaintiff is entitled to claim as coparcener in respect of the suit properties. He submitted that the Judgment and Decree of the First Appellate Court in so far as it relates to the share of the plaintiff in suit item Nos.2, 13, 14, 15, 19 to 22 and 24 calls for interference. In so far as suit item Nos.6, 11 and 23 are concerned, the learned counsel submitted that the 23 First Appellate Court ought to have decreed the suit in so far as these properties are concerned and must have directed the Court drawing the final decree to decide the question as to whether they were available for partition. He contended that suit item No.6 was granted to the propositus by the Land Tribunal, Nelamangala, which proceedings attained finality in W.A.No.4232/1995 disposed off on 10.07.1996. He claimed that suit item Nos.2, 14 and 23 were purchased by the propositus on 06.05.1974 and were his self acquisition. The learned counsel was unable to bail out the plaintiff from the binding effect of the sale deed dated 12.08.1996 executed by the defendant No.1 in favour of defendant No.5 in view of the same being saved. It may be yet another fact that the said sale deed did not bind the other defendant Nos.2 and 3 who were not signatories to it. However, since they did not challenge the Judgment and Decree passed by the Trial Court, the same is not considered. 24
26. I have perused the records of the Trial Court and the First Appellate Court and their respective Judgments. I have also considered the submissions advanced by the learned counsel for the parties and the grounds urged in their respective appeal/s and cross- objection.
27. It is evident from the plaint that the plaintiff claimed that all the suit properties were ancestral and were held by joint family. The defendant No.1 stated that the suit item No.1 was acquired by him out of his own funds and that there was no contribution of any funds of the joint family. However, he did not disclose how the other suit properties came into the possession of the family. He further stated that after the death of his father, his mother was managing the affairs of the family. Contrarily, he specifically contended that the other items of the suit properties were inherited and were partitioned amongst the plaintiff and defendant Nos.1 to 4 long after. The defendant Nos.2 to 4 also claimed that the suit 25 properties were ancestral properties possessed by the joint family. It was only at the cross-examination of PW.1 that the following suggestions were made at the instance of defendant No.1:
"It is not true to suggest that I have also included some other properties in the suit schedule.
3. It is not true to suggest that item No.13 of the suit schedule property is not in existence. It is not true to suggest that I have not produced document in respect of the Item No.11 and 13 of the suit schedule properties. It is not true to suggest that the revenue record of Item No.6 is standing in the name of Putta Rudramma. It is true to suggest that in Ex.P9, name of one Putta Rudramma finds place. Ex.P22 finds the name of one Chandrashekaraiah, who is not our family members."
28. PW.1 deposed further in his cross-examination that "It is true to suggest that in the year 1996 the defendant No.1 had sold suit item No.1 in favour of defendant No.4."
26
29. In his further cross-examination, PW.1 deposed as follows:
"5. It is not true to suggest that the property in Sy.No.17/3 is not in existence. I do not know as to whether the Sy.No.17/3 is sub divided into three Sy.Nos. as Sy.No.17/3a, 17/3b and 17/3c. I do not know as to whether the Sy.No.17/3a, 0-05 guntas and Sy.No.17/3b, 0-08 guntas of properties are standing in the name of Chandrashekaraiah, Sy.No.17/3c measuring 0-03 guntas standing in the name Chikkashivaiah son of Siddappa. It is true to suggest that Chandrashekaraiah and Chikkashivaiah are not our family members.
6. It is not true to suggest that I have not produced document to show that Sy.No.17/2 item No.24 of the suit schedule property is our family property. It might be true that Item No.25 in Sy.No.24/5 of property belonging to Chandrashekaraiah. It is not true to suggest that I have filed a false suit by claiming the share in other properties. It is not true to suggest that there is no contribution to the 1st defendant from the joint family to purchase the Item No.1 of the suit schedule property."27
30. DW.1 did not mention in his chief examination that suit item Nos.6 and 11 were not the properties of the family. In his cross-examination, he deposed as follows:
"I do not know whether or not item No.6 is standing in the name of my father. It is true to suggest that item No.24 is standing in the name of my grand father. It is true to suggest 11 guntas of land in Sy.No.74/2 is standing in joint names."
31. A perusal of the exhibits marked by the plaintiff indicates that Exs.P5 to 21 and 25 are the extracts of RTC in respect of suit item Nos.2 to 10, 12, 14, 15, 16, 17, 18, 23, 24 and 1 respectively.
32. Amongst the above RTC extracts, Exs.P6, P7, 8, 10, 11, 12, 13, 14, 16, 17, 18 and 19 are RTC extracts for the year 2003-04 which relate to suit item Nos.3, 4, 5, 7, 8, 9, 10, 12, 15, 16, 17 and 18 respectively. In the said RTCs., the names of Smt. Honnagangamma (the mother of the plaintiff and defendant Nos.1 to 4), Sri B.S.Basavarajaiah (defendant No.1), Sri B.S.Rajashekharaiah (defendant No.2) and Sri 28 B.S.Shivarudraiah (defendant No.3) are reflected in column No.9.
33. Further, RTC extracts as per Ex.P5 and Ex.P15, which relate to suit item No.2 and suit item No.14 respectively for the year 2003-04, reflect the name of Sri B.S.Shivanna, the father of the plaintiff and defendant Nos.1 to 4 / propositus, in column No.9.
34. A perusal of Ex.P9, extract of RTC for the year 2003-04 concerning suit item No.6 discloses that the name of Smt.Puttarudramma is mentioned in column No.9.
35. Ex.P20 - RTC extract issued by the Village Accountant, Machohalli Village Panchayat, for the year 1978-79 relates to 16 guntas of land in Sy. No.17/3 of Machohalli, Dasanapura, portion (0.04 guntas) of which is suit item No.23. It shows the names of Sri Chikkashantappa and Sri B.S.Shivanna (propositus) in column No.9 and in column No.12, the name of Sri B.S. Shivanna is shown as 'cultivator' in respect of 0.04 guntas of land in the said survey number.
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36. Ex.P21 is RTC extract in respect of suit item No.24 for the year 2003-04 and reflects the name of Sri Doddashantappa (grandfather of the plaintiff and defendant Nos.1 to 4) in column No.9. Ex.P25 is a RTC extract, which relates to suit item No.1 and shows the names of: Smt. P. Nagarathna (defendant No.5); Sri B.S.Basavarajaiah (defendant No.1) and Government in column No.9.
37. Therefore, there is a genuine doubt whether suit item Nos.1, 6, 11 and 23 were the joint ancestral properties of the family. Except the above, all the other properties, namely, suit item Nos.2, 3, 4, 5, 7, 8, 9, 10, 12 to 22 and 24 are the properties of the family which are available for partition. Suit item No.1 was not available for partition as it was sold prior to the Act of 2005 coming into force.
38. Now, coming to the question whether the plaintiff is entitled to claim by survivorship or whether she is entitled for a share in the notional share allotted to her 30 father, though defendant No.1 claimed that all the members started living separately, there is no evidence that the properties were partitioned orally. Therefore, the family continued to be joint. The Hon'ble Apex Court in Vineeta Sharma (referred supra) held as follows:
"137. Resultantly, we answer the reference as under:
137.1 The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after the amendment in the same manner as son with same rights and liabilities.
137.2 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 which had taken place before the 20th day of December, 2004.
137.3 Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.
137.4 The statutory fiction of partition created by the proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The 31 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 1956 Act 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.
137.5 In view of the rigour of provisions of the Explanation to Section 6(5) of the 1956 Act, a plea of oral partition cannot be accepted as the statutory recognised 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 (sic effected) 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 outrightly.
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 32 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.
In view of the aforesaid discussion and answer, we overrule the views to the contrary expressed in Prakash v. Phulavati [(2016) 2 SCC 36] and Mangammal v. T.B. Raju [(2018) 15 SCC 662]. The opinion expressed in Danamma v. Amar is partly overruled to the extent it is contrary to this decision. Let the matters be placed before appropriate Bench for decision on merits."
39. In view of the above, the plaintiff was entitled to claim as a survivor of her father in all the properties except item Nos.1, 6, 11 and 23. This Court cannot reject the claim of the plaintiff in so far as suit item Nos.6, 11 and 23 and considers it appropriate to allow the plaintiff / defendant Nos.2 to 4 to prove in the final decree that the said properties belonged to the family.
In that view of the matter, RSA No.490/2018 and RSA No.491/2018 are allowed in part. Consequently, it is declared that the plaintiff is not entitled for any share in 33 suit item No.1. The RSA Cross Objection No.3/2020 is allowed in part and it is declared that the plaintiff is entitled to 1/4th share in all the suit properties except item Nos.1, 6, 11 and 23. The plaintiff / defendant Nos.2 to 4 are however at liberty to prove in the Final Decree Proceedings that suit item Nos.1, 6, 11 and 23 belong to the family and are available for partition in which event the plaintiff and defendant Nos.1 to 4 would be entitled to an equal share in the said items also.
Parties to bear their own costs.
I.A. No.3/2020 filed by the Cross-objector in RSA.Crob. No.3/2020 does not survive for consideration and the same stands disposed off.
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JUDGE sma 34 RSA.CROB NO. 3/2020 Connected Cases: RSA NO. 490/2018, RSA NO. 491/2018 IN THE HIGH COURT OF KARNATAKA AT BENGALURU [SMT B.S.SHANTHAMMA VS. SRI B.S.BASAVARAJAIAH AND OTHERS] RNJ 12.08.2022 (VIDEO CONFERENCING / PHYSICAL HEARING) ORDER ON 'FOR BEING SPOKEN TO' The learned counsel for the cross-objector in RSA Crob.No.3/2020 has moved a memo pointing out certain mistakes in the judgment dated 22.04.2022.
A perusal of the judgment dated 22.04.2022 discloses that there are certain inadvertent errors, which are required to be corrected. Consequently, following order is passed.
ORDER
"In 6th line of paragraph No.39 of the
judgment, instead of words "defendant Nos.2 to 4", it shall be read as "defendant Nos.1 to 4". Similarly, in the 3rd line at page No.33, instead of "1/4th" it shall be read as "1/5th". In the 4th line at page No.33, instead of words "defendant Nos.2 to 4", it shall be read as "defendant Nos.1 to 4". In the 6th line at page No.33, instead of words "item Nos.1, 6, 11 and 23", it shall be read as "item Nos.6, 11 and 23".
35RSA.CROB NO. 3/2020 Connected Cases: RSA NO. 490/2018, RSA NO. 491/2018 This order shall be read in conjunction with the judgment dated 22.04.2022.
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JUDGE PMR List No.: 1 Sl No.: 1