Karnataka High Court
Smt. Shanthamma @ Ammayamma vs Sri. Nanjunda Reddy on 23 September, 2020
Author: N S Sanjay Gowda
Bench: N.S.Sanjay Gowda
WP.15096/2015
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF SEPTEMBER 2020
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
W.P.No.15096/2015(GM-CPC)
BETWEEN:
SMT.SHANTHAMMA @ AMMAYAMMA,
D/O LATE KULLA REDDY,
W/O KRISHNA REDDY,
AGED ABOUT 73 YEARS,
R/AT BENDIGANAHALLI VILLAGE,
NERALURU POST, ATTIBELE HOBLI,
ANEKAL TALUK-562 106,
BENGALURU URBAN DISTRICT.
(SENIOR CITIZENSHIP BENEFIT NOT CLAIMED)
... PETITIONER
(BY SRI.M.S.VARADARAJAN, ADVOCATE)
AND:
1. SRI. NANJUNDA REDDY,
S/O LATE KULLA REDDY,
AGED ABOUT 65 YEARS,
R/AT YADAVANAHALLI VILLAGE,
ATTIBELE HOBLI,
ANEKAL TALUK-562 106,
BENGLAURU URBAN DISTRICT.
2. SRI.SHIVANNA, S/O LATE KULLA REDDY,
AGED ABOUT 61 YEARS,
3. SRI. NARAYANA REDDY,
S/O LATE KULLA REDDY,AGED ABOUT 43 YEARS
WP.15096/2015
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4. SRI.RAMASWAMY REDDY,
S/O LATE KULLA REDDY,
AGED ABOUT 46 YEARS,
5. SMT. CHOWDAMMA
W/O KULLA REDDY,
AGED ABOUT 93 YEARS,
RESPONDENT No.2 TO 5 ARE
DR/AT YADAVANAHALLI VILLAGE,
ATTIBELE HOBLI,
ANEKAL TALUK-562 106,
BENGALURU URBAN DISTRICT.
6. SMT. KANTHAMMA,
W/O NARAYANA REDDY,
D/O LATE KULLA REDDY,
AGED ABOUT 64 YEARS,
R/AT KITHAGANAHALLI VILLAGE,
BOMMASANDRA POST,
ATTIBELE HOBLI,
ANEKAL TLAUK-562 106
BENGALURU URBAN DISTRICT.
7. SMT. SUNANDAMMA,
W/O CHINNASWAMY REDDY
@ VENKATASWAMY REDDY,
D/O LATE KULLA REDDY,
AGED ABOUT 59 YEARS,
R/AT NERIGA VILLAGE,
KOOGUR POST, SARJAPURA HOBLI,
ANEKAL TALUK-562 106.
BENGALURU URBAN DISTRICT. ... RESPONDENTS
(BY SRI. S.SREEVATSA, SENIOR COUNSEL FOR SRI.
T.N.VISWANATHA, ADVOCATE FOR C/R-1, SRI.
V.NAGAREDDY, ADVOCATE FOR R-2, SRI. B.N.
PRAKASH ADVOCATE FOR R-3 AND R-4, SRI.
V.ANANDA, ADV FOR R-6 AND R-7, R-5 IS SERVED
AND UNREPRESENTED)
WP.15096/2015
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THIS PETITION IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO SET ASIDE THE
ORDER DATED:18.03.2015 PASSED IN F.D.P.4 OF 2011 ON
THE FILE OF THE PRINCIPAL CIVIL JUDGE, ANEKAL
DISMISSING THE PETITIONER'S APPLICATION FOR
AMENDMENT OF THE PRELIMINARY DECREE(ANNEXURE-A)
AND ALOOW THE SAID APPLICATION AS PRAYED FOR BY
ALLOWING THIS WRIT PETITION AND ETC.
THIS PETITION COMING ON FOR PRELIMINARY
HEARING IN 'B' GROUP THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
1. Sri Nanjunda Reddy, the 1st respondent herein filed a suit for partition in O.S.No.169/1997. The said suit was filed against his brothers namely Sri Shivanna, Sri Narayana Reddy and Sri Ramaswamy Reddy (respondents 2, 3 and 4 herein) and also against his mother Smt.Chowdamma and his sisters Smt.Shantamma, Smt.Kantamma and Smt.Sunandamma.
2. The said suit ended in a decree under which Sri Nanjunda Reddy granted 1/4th share. The preliminary decree WP.15096/2015 4 granted in O.S.No.169/1997 was initially set aside in R.A.No.302/2003 and this Court in R.S.A.No.852/2008 restored the decree of the Trial Court. Thus, as per the order of this Court, Sri Nanjunda Reddy, the plaintiff became entitled for 1/4th share.
3. Thereafter, Sri Nanjunda Reddy initiated proceedings to draw up a final decree in FDP No.4/2011. In the final decree proceedings, his sister Smt.Shantamma, petitioner herein made an application for enlarging her share on the premise that she was entitled to the benefit of the amendment to the Hindu Succession Act. In other words, she contended that she was entitled to the same share as her brother. The Trial Court, by the impugned order, has rejected the said application on the ground that it was bound by the decree passed in the trial Court which was confirmed in R.S.A.No.852/2008.
4. Learned counsel for the petitioner contended that in view of the latest judgment of the Apex Court in the case of VINEETA SHARMA VS. RAKESH SHARMA AND OTHERS - 2020(2) Kar.L.R.161 (SC), the petitioner who is a daughter WP.15096/2015 5 would have to be considered as a coparcener by birth and she would have to be granted the same share as that of a son. He also contended that since the final decree was yet to be drawn up, it was permissible in law to enlarge the share in accordance with the amendment to the Hindu Succession Act.
5. Learned counsel for the respondents, on the other hand, contended that since the judgment passed by this Court in R.S.A.No.852/2008 has been accepted and no claim was made even in the second appeal which was in fact decided after the Hindu Succession Act was amended, the petitioner had lost her right to claim for enlarging her share.
6. Learned counsel for the respondents also contended that the judgment of the Apex Court could not be applied to the facts of this case since the petitioner had been born prior to 1956 and in the judgment rendered by the Apex Court, the case was related to a daughter who was born after 1956.
7. It cannot now be in dispute that a preliminary decree can be varied depending on the subsequent events that have unfolded after passing of the preliminary decree. It cannot also be in dispute that as per the decision of the Apex Court WP.15096/2015 6 referred to supra, a daughter would be entitled to get the same share as that of a son in respect of coparcenary property. In fact, the Apex Court, in the decision referred to supra has directed that all such matters which are pending will have to be decided expeditiously.
8. As regards the contention of the learned counsel for the respondents regarding the date of birth of the petitioner is concerned, in my view, the date of birth of a daughter whether it is before 1956 or after 1956 would be of no relevance since the Apex Court has held in the case referred to supra that a daughter by birth becomes a coparcener. If a daughter by birth becomes a coparcener, she would be entitled to the same share as that of a son and no discrimination can be made on the basis of her date of birth.
9. Since the final decree is yet to be drawn up, in my view, the order of the Trial Court cannot be sustained and by virtue of the judgment rendered by the Apex Court, the petitioner herein would be entitled to seek for amendment of the preliminary decree and consequently for enlargement of her share.
WP.15096/20157
10. As a result, the impugned order is set aside and the application filed by the petitioner seeking for amendment of the decree and for allotment of a share in terms of Section 6A of the Hindu Succession Act, 2005 is allowed.
Writ Petition is accordingly allowed.
Sd/-
JUDGE PKS