Karnataka High Court
Smt Jayamma vs N Bettegowda on 17 November, 2023
Author: V Srishananda
Bench: V Srishananda
-1-
NC: 2023:KHC:41350
RFA No. 1116 of 2007
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
REGULAR FIRST APPEAL NO. 1116 OF 2007 (PAR)
BETWEEN:
1. SMT. JAYAMMA,
W/O LATE THIMMEGOWDA,
MAJOR,
SANTHEMALA, BANNUR TOWN,
T.N.PURA TALUK - 571 124.
2. SMT. GOWRAMMA,
D/O LATE THIMME GOWDA,
W/O SIDDEGOWDA,
MAJOR,
MEGALLAKOPPALU VILLAGE,
BANNUR HOBLI,
T.N.PURA TALUK - 571 124.
...APPELLANTS
Digitally
signed by R (BY SRI.S.RAJESH FOR SRI.S.B.MUKKANNAPPA, ADVOCATE)
MANJUNATHA
Location:
HIGH COURT AND:
OF
KARNATAKA
1. N. BETTEGOWDA,
S/O MAJOR SEERAMANA
LATE NINGEGOWDA,
BEEDANAHALLI VILLAGE,
BANNUR HOBLI,
T.N. PURA TALUK,
MYSORE - 571 124.
'
-2-
NC: 2023:KHC:41350
RFA No. 1116 of 2007
2. T. RANGASWAMY,
MAJOR,
S/O LATE THIMMEGOWDA,
3. T. JAYARAMU,
MAJOR,
S/O LATE THIMMEGOWDA,
4. SMT. PADMAVATHI,
MAJOR,
D/O LATE THIMMEGOWDA,
RESPONDENT Nos.2 to 4 ARE
RESIDENT OF SANTHEMALA,
BANNUR TOWN,
T.N. PURA TALUK,
MYSORE -571 124.
5. SMT. BHAGYAMMA,
AGED ABOUT 40 YEARS,
D/O LATE THIMMEGOWDA,
W/O NAGENDRA,
R/O D.NO. 644,
MYSORE - BANNUR ROAD,
AT ALANAHALLI GATE,
OPP TO CHURCH,
MYSORE - 570 012.
...RESPONDENTS
(BY SRI. G. JAYASHREE &
SRI.RAVINDRA H. BY LAW NEST ASSOCIATES
FOR R1, ADVOCATE,
R2, R3, R4 AND R5 - SERVED)
THIS RFA IS FILED U/S 96 R/W ORDER 41 RULE 1 OF
CPC AGAINST THE JUDGEMENT AND DECREE DT.31.01.2007
PASSED IN O.S.NO.39/2005 ON THE FILE OF THE CIVIL JUDGE
-3-
NC: 2023:KHC:41350
RFA No. 1116 of 2007
(SR.DN.) T.NARASIPURA, PARTLY DECREEING THE SUIT FOR
PARTITION AND SEPARATE POSSESSION.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard learned counsel for the appellants and learned counsel for the respondents.
2. The present appeal is filed challenging the validity of the judgment and decree passed in O.S.No.39/2005 dated 31.01.2007 on the file of Civil Judge (Senior Division) T. Narasipura, Mysore District.
3. Facts in brief, which are utmost necessary for disposal of the appeal, are as under:
Plaintiff filed a suit for partition seeking 1/6th share in the following properties (herein referred to as suit schedule properties):
(1) Survey Number 359/2, measuring 0-18gts of dry land, situated at Bannur village, T.Narasipura taluk, bounded on -4- NC: 2023:KHC:41350 RFA No. 1116 of 2007 East by : Road, West by : Channel, South by : lands of Ha.Thimmegowda., North by : Item No.3 of the suit schedule property.
(2) Survey number 174/5A, measuring 0-36gts of dry land, situated at Chamanahalli village, Bannur rural, T.Narasipura Taluk bounded on East by : Old Grama Tane West by : Land of Kullamana Rangegowdana South by : land of Chikka Venkategowda.
North by : Lands of Busigowda sons.
4. In the case on hand, one Thimme Gowda is the common propositus and he held the suit properties for and on behalf of his family. He married to one Jayamma and had five children viz., T.Rangaswamy, T.Jayaramu, Smt.Gowramma, Smt.Bhagyamma and Smt.Padmavathi.
5. Sri. Thimme Gowda, said to have died in the year 2002. After the death of Thimme Gowda, the demand for partition was made and it was not accepted. Therefore, -5- NC: 2023:KHC:41350 RFA No. 1116 of 2007 plaintiff filed a suit seeking his 1/6th share in the suit schedule property.
6. Upon service of suit summons, defendant Nos.5 and 6 entered appearance and filed separate written statement, while plaintiff No.1 denied the plaint averments in toto. Defendant Nos.5 and 6 filed a written statement sailing with the plaintiff and sought for their share to be carved out.
7. Based on the rival contentions of the parties, learned Trial Judge framed following issues and one additional issue:
1. Whether the plaintiff proves that she and defendants 4 to 6 are the daughters and defendants 2 and 3 are the sons of late Thimmegowda?
2. Whether the plaintiff proves that suit schedule properties are the absolute properties of her father, late Thimmegowda?
3. Whether the defendant no.1 proves that, the 2nd and 3rd defendants and their father had partitioned their entire family properties during the lifetime of their father?
4. Whether the 1st defendant proves that land measuring 4 ½ guntas each in sy.no.359/2p-pl -6- NC: 2023:KHC:41350 RFA No. 1116 of 2007 and in sy.no.359/20-p2 was fallen to the share of the 2nd defendant in the above said partition?
5. Whether 1st defendant further proves that the 2nd defendant has sold out 4 ½ guntas of land fallen to his share in sy.no.359/2p-pl in his favour through the registered sale deed dated 26.12.2001 for his legal necessity?
6. Whether the 1st defendant proves that the 2nd defendant has mortgaged 4 ½ guntas of land in sy.no.359/2p-p2 in his favour through the registered mortgage deed dated 26.12.2001?
7. Whether there is cause of action for the plaintiff to file this suit?
8. Whether the plaintiff is entitled for partition if so, at what rate?
9. Whether the plaintiff is entitled for further mesne profits?
10. What order or decree?
Addl.Issue No.1:
Whether the defendants 5 and 6 prove that they are entitled for partition? If so, at what rate?
8. In order to prove the case of the plaintiff, plaintiff got examined herself as P.W.1 and one Venkatesh was examined as P.W.2. On behalf of plaintiff's, 11 documents were marked and exhibited as Ex.P.1 to Ex.P.11 -7- NC: 2023:KHC:41350 RFA No. 1116 of 2007 comprising of certified copy of mutation, certified copy of the sale deed, certified copy of lease deed, two notices, postal acknowledgment and registered postal receipts.
9. On behalf of the defendants, Padmavathi and Gowramma, who are the daughters of Sri.Thimme Gowda got examined as D.W.1 and D.W.2 and defendant No.1 - N. Bettegowda, who is the subsequent purchaser of one of the items of the suit property to the extent of 4 1/2 guntas is examined as D.W.3. On behalf of defendants, 12 documents were marked and exhibited as Exs.D.1 to D.12 comprising of registered sale deed, registered mortgage deed, copies of mutation, copies of RTC, reply notice, postal acknowledgement and notice.
10. Sons of Sri.Thimme Gowda namely Rangaswamy and Jayaramu did not chose to lead the evidence.
11. Among the sons of Thimme Gowda, it is Rangaswamy, who sold the property in favour of -8- NC: 2023:KHC:41350 RFA No. 1116 of 2007 defendant No.1 to the extent of 4 ½ guntas vide Ex.P.2 - Sale deed.
12. On conclusion of recording of the evidence, learned Trial Judge heard the parties in detail and after considering the oral and documentary evidence on record in a cumulative manner, decreed the suit of the plaintiff as under:
"Suit is hereby decreed in part with costs.
Plaintiff, defendants 2 and 3, and defendant no.6 are each entitled for 1/5th share + 1/30th share in the suit schedule property by metes and bounds, whereas, defendants 4 and 5 are entitled for 1/30th share each in the suit schedule properties by metes and bounds. The share of defendant no.2 is ordered to be equated to the alienation made by him in favour of defendant no.1 under Ex.D1 and D2 as far as possible. There shall be a separate enquiry regarding future mesne profits as observed while answering issue no.9.
Draw preliminary decree accordingly.
13. Being aggrieved by the same, defendant Nos.4 and 5 have preferred the present appeal on the following grounds:
-9-
NC: 2023:KHC:41350 RFA No. 1116 of 2007 The learned Judge erred in applying section 6 of the Hindu succession Act, 1956, in order to assign portions of Suit schedule property to the Legal heirs of Late Thimmegowda even after coming to a conclusion that the said properties are absolute properties of Late Thimme Gowda, by way of answering issue No. 2 framed in 0.3. No. 39/2005 in the affirmative.
Issue No. 2 reads framed by the learned judge in 0.8. no. 39/2005 reads as follows:
ISSUE NO. 2: Whether the plaintiff proves that suit schedule properties are absolute properties of her father, Late Thimme Gowda?
This issue is answered in the affirmative by the learned Civil Judge.
The learned judge erred in not applying section 8 of the Hindu succession Act, 1956 in order to partition the property of deceased Thimme Gowda equally among the Appellants and the Respondent nos. 2-5 herein who are all Class I heirs of the said Late Thimme Gowda.
The Gene logical tree of late Thimme Gowda is as hereunder:
Thimme Gowda = Jayamma (1/6)
(Died in Feb. 2002) (A - 1)
________________________________________________________________ T. Rangaswamy T.Jayaramu Smt. Smt. Smt. 1/6(R-2) 1/6(R-3) Gowramma Bhagyamma Padmavathi 1/6 (A-2) 1/6 (R-5) 1/6 (R-4) The learned judge has erred in saving the transactions of registered sale and mortgage dated 26.12. 2001 in respect of lands
- 10 -
NC: 2023:KHC:41350 RFA No. 1116 of 2007 measuring 4 ½ acres each in Sy Nos. 359/2 P- P1 and 359/2 P-P2 respectively, on the ground that the provision to Sec. 6 (1) of the Hindu succession Act, 1956 as amended by Act. No. 39 of 2005 does not invalidate Exhibit D1 and D2 He has failed to appreciate that in respect of properties belonging absolutely to late Tjhimme Gowda, section 6 of the Hindu Succession Act would have no applicability at all and that for assigning the respective shares of a property belonging to a Hindu male, Section 8 of the Hindu Succession Act had to be applied.
The learned civil judge has failed to appreciate that once he has come to the conclusion that the suit schedule properties are absolute properties of late Thimme Gowda, the father of the Appellant No.2 and Respondent nos. 2-5 herein, in view of Sec. 6 (a) of Transfer of property Act, 1882, execution of registered Sale Deed in respect of 4% A of land in Sy. NO. 359/2 P-p1 (Exhibit D1) and also execution of registered mortgage deed in respect of 4% A of Land in Sy. No. 359/2P-P2 (Exhibit D-2) by Respondent No. 2 in favour of Respondent No. 1 is illegal and hence both the documents are null and void, and that the 24 respondent had no right title or interest in order to transfer the said properties in favor of the I respondent during the life time of the said Thimmegowda (who died in Feb 2002). The learned judge failed to appreciate the fact that even if he had come to the conclusion that the suit schedule properties are joint family properties belonging to Late Thimme Gowdas' family, in view of the Amendment Act No. 39 of 2005, to Hindu Succession Act, the partition had to be in accordance with the Amended section no. 6 and hence Appellant No. 2 would get a share equal to that of
- 11 -
NC: 2023:KHC:41350 RFA No. 1116 of 2007 Respondent nos. 2-4 not withstanding the fact that she was married prior to 1994, since from the date of coming into force of the Central Amendment Act, Karnataka Act 23 of 1994 inserting sections 6A to section 6C would automatically cease to operate. The learned judge erred in not considering the fact that even if he comes to the conclusion that the suit schedule properties are joint family properties, in view of the amendment act No. 39 of 2005, the suit schedule property would devolve upon the Appellants and defendants in the following manner. a. On a deemed partition, Thimme Gowda and all his 5 children (The Appellant No. 1 and respondent No. 2) being the coparceners would get 1/6th share each b. 1/6th share of late Thimme Gowda would devolve upon the Appellants and 24 Respondent equally each being a Class I heir and hence each of them would get 1/36th share in suit schedule property.
In the result the shares would be as follows:
i. Appellant No. 2 and Respondent nos. 2-5 would get 1/6 + 1/36th share in the suit schedule property.
ii. Appellant No. 1 would get 1/36th share in the suit schedule property.
Viewed from any angle, the judgment and decree dated 31.1.2007 passed in O.S.No.39/2005 by the Civil Judge (Sr. Dn) T.
- 12 -
NC: 2023:KHC:41350 RFA No. 1116 of 2007 Narasipura is erroneous in law and is liable to be modified, by this Hon'ble court.
There is no other litigation either in past or in present in respect of the subject matter of the suit
14. Sri.S.B.Mukkannappa, learned counsel for the appellant reiterating the grounds urged in the appeal memorandum, vehemently contended that the case is now governed by principles of law enunciated in Vineeta Sharma V. Rakesh Sharma reported in (2020) 9 SCC 1 and sought for modification of sharing pattern. Relevant portion of the said judgment reads as under:
"74. The argument raised that if the father or any other coparcener died before the 2005 Amendment Act, the interest of the father or other coparcener would have already merged in the surviving coparcenary, and there was no coparcener alive from whom the daughter would succeed. We are unable to accept the submission because it is not by the death of the father or other coparcener that rights accrue. It is by the factum of birth. It is only when a female of Class I heir is left, or in case of her death, male relative is left, the share of the deceased coparcener is fixed to be distributed by a deemed partition, in the event of an actual partition, as and when it takes place as per the proviso to unamended Section 6. The share of the surviving coparcener may undergo change till the actual partition is made. The proviso to Section 6 does
- 13 -
NC: 2023:KHC:41350 RFA No. 1116 of 2007 not come in the way of formation of a coparcenary, and who can be a coparcener. The proviso to Section 6 as originally stood, contained an exception to the survivorship right. The right conferred under substituted Section 6(1) is not by survivorship but by birth. The death of every coparcener is inevitable. How the property passes on death is not relevant for interpreting the provisions of Section 6(1). Significant is how right of a coparcener is acquired under Mitakshara coparcenary. It cannot be inferred that the daughter is conferred with the right only on the death of a living coparcener, by declaration contained in Section 6, she has been made a coparcener. The precise declaration made in Section 6(1) has to be taken to its logical end; otherwise, it would amount to a denial of the very right to a daughter expressly conferred by the legislature. Survivorship as a mode of succession of property of a Mitakshara coparcener, has been abrogated with effect from 9-9-2005 by Section 6(3).
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 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."
- 14 -
NC: 2023:KHC:41350 RFA No. 1116 of 2007
15. Per contra, Smt.Jayashri, learned counsel representing the purchaser, who has purchased one of the items of the suit property to the extent of 4 ½ guntas from Rangaswamy contended that the alienation made by Rangaswamy should to be protected by resorting to the proviso of Section 6 of Hindu Succession Act and sought for dismissal of the appeal.
16. Other respondents have failed to contest the appeal on merits.
17. In view of the rival contentions of the parties, following points would arise for consideration:
1. Whether the sharing pattern needs modification in view of principles of law enunciated in Vineeta Sharma V. Rakesh Sharma reported in (2020) 9 SCC 1?
2. If so, whether the impugned judgment needs interference of this Court to that extent?
3. What order?
- 15 -
NC: 2023:KHC:41350 RFA No. 1116 of 2007
18. In the case on hand, there is no dispute as to the relationship among the parties. So also, the alienation made by Rangaswamy in favour of defendant No.1 in respect of portion of the suit property measuring 4 ½ guntas.
19. Admittedly, Sri.Thimme gowda died interstate in the year 2002.
20. In view of the principles of law settled in the case of Vineeta Sharma V. Rakesh Sharma reported in (2020) 9 SCC 1, soon before the death of Thimme Gowda, if there is a notional partition, Thimme Gowda and his five children would get 1/6th share.
21. After the death of Thimme Gowda, his 1/6th share is to be divided amongst his wife and five children in equal shares, whereby, Jayamma would get 1/36th share and all his children - Rangaswamy, Jayarama, Bhagyama, Gowramma and Padmavathi would get 1/6th + 1/36th share.
- 16 -
NC: 2023:KHC:41350 RFA No. 1116 of 2007
22. By the time the impugned judgment came to be passed, the case of Vineeta Sharma V. Rakesh Sharma reported in (2020) 9 SCC 1 has not been decided and reported. Therefore, learned Trial Judge based on the principles of law that was governing the field of succession has passed the impugned judgment. The same needs now interference by this Court, following the principles of law enunciated in the case of Vineeta Sharma V. Rakesh Sharma reported in (2020) 9 SCC 1 as referred to supra.
23. However, insofar as the alienation made by Rangaswamy in favour of N.Bette Gowda is concerned, it is always open for defendant No.1 to seek for equitable partition by requesting the Court to allot the same to the share of Rangaswamy, which has been purchased by defendant No.1.
24. If any such request is made by defendant No.1, the Trial Court while considering such request of defendant
- 17 -
NC: 2023:KHC:41350 RFA No. 1116 of 2007 No.1 in the final decree proceedings, may pass appropriate and suitable orders.
25. In view of the foregoing discussions, point Nos.1 and 2 are answered in the affirmative. REG.POINT NO.3:
26. In view of the findings of this Court on point Nos.1 and 2, following:
ORDER i. Appeal is allowed.
ii. Impugned judgment and decree passed in O.S.No.39/2005 dated 31.01.2007 on the file of Civil Judge (Senior Division) T.Narasipura, Mysore District is modified by granting 1/6th + 1/36th share to plaintiff and for Jayamma, who is the wife of Thimme gowda is entitled to 1/36th share and remaining children of Thimme
- 18 -
NC: 2023:KHC:41350 RFA No. 1116 of 2007 Gowda are entitled to 1/6th + 1/36th share.
iii. Office is directed to pass a modified decree.
iv. No order as to costs.
Sd/-
JUDGE
KAV
List No.: 1 Sl No.: 36