Karnataka High Court
Mallanagouda S/O. Channabasanagouda ... vs Veeranagouda S/O. Channabasanagouda ... on 3 November, 2017
Author: S.Sujatha
Bench: S.Sujatha
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 3RD DAY OF NOVEMBER, 2017
BEFORE
THE HON'BLE MRS. JUSTICE S.SUJATHA
RSA NO.100451 OF 2015(PAR)
BETWEEN:
1. MALLANAGOUDA S/O. CHANNABASANAGOUDA
PATIL @ HANUMAGOUDRA, AGE: 64 YEARS,
OCC: AGRICULTURE,
R/O. GUNDAGATTI, TQ: HIREKERUR,
DIST: HAVERI-581116.
2. BASANAGOUDA (NOT VEERANAGOUDA)
S/O. CHANNABASANAGOUDA PATIL
@ HANUMAGOUDRA, AGE: 49 YEARS,
OCC: AGRICULTURE,
R/O. GUNDAGATTI, TQ: HIREKERUR,
DIST: HAVERI-581116.
... APPELLANTS
(BY SRI. AVINASH BANAKAR, ADV.)
AND
1. VEERANAGOUDA S/O. CHANNABASANAGOUDA
PATIL @ HANUMAGOUDRA,AGE: 64 YEARS,
OCC: AGRICULTURE & MEDICALS,
R/O. BYADGI, TQ: BYADGI,
DIST: HAVERI-581106.
2. HANUMAKKA @ GOURAMMA,
W/O. SHIDDANAGOUDA HOTTIGOUDAR,
AGE: 70 YEARS, OCC: AGRICULTURE,
R/O. GUNDGATTI, TQ: HIREKERUR,
DIST: HAVERI-581106.
3. NEELAMMA W/O. RUDRAPPA GUDDADAHALLI,
AGE: 65 YEARS, OCC: HOUSEHOLD WORK,
R/O. GUNDGATTI, TQ: HIREKERUR
DIST: HAVERI-581106.
2
4. PARAVVA W/O. SHIVAYOGAPPA GAVIYAPPANAVAR,
AGE: 62 YEARS, OCC: HOUSEHOLD WORK,
R/O. KADENANDIHALLI, TQ: SHIKARIPUR,
DIST: SHIVAMOGGA-577427.
5. MALLAVVA W/O. IRAPPA MADIMANI,
AGE: 55 YEARS, OCC: HOUSEHOLD WORK,
R/O. CHAMENAHALLI,
TQ: & DIST: SHIVAMOGGA -577201.
6. KAMALAMMA W/O. BASAVARAJAPPA VEERAPUR,
AGE: 50 YEARS, OCC: HOUSEHOLD WORK,
R/O. MATTIKOTI, TQ: SHIKARIPUR,
DIST: SHIVAMOGGA -577427.
... RESPONDENTS
(BY SRI. H R GUNDAPPA, ADV. FOR R1-R6)
THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST
THE JUDGEMENT AND DECREE DATED 24.04.2015 PASSED IN RA
NO.4/2014 ON THE FILE OF THE II ADDITIONAL DISTRICT JUDGE
AT HAVERI (SITTING AT RANEBENNUR), DISMISSING THE APPEAL
AND CONFIRMING THE JUDGEMENT AND DECREE DATED
21.12.2013 PASSED IN O.S.NO.55/2011 ON THE FILE OF THE
SENIOR CIVIL JUDGE AND JMFC., HIREKERUR, PARTLY
DECREEING THE SUIT FILED FOR PARTITON AND SEPARATE
POSSESSION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed against the judgment and decree passed in RA No.4/2014 dated 24.04.2015 passed by the II Addl. District Judge at Haveri (Sitting at Ranebennur), whereby the judgment and decree passed in OS 3 No.55/2011 on the file of the Senior Civil Judge and JMFC., Hirekerur is confirmed.
2. With the consent of learned counsel for both the parties, the appeal is taken up for final disposal.
3. For the sake of convenience, the parties are referred to as per their status before the trial court.
4. The plaintiffs preferred a suit in OS No.55/2011 against the defendants seeking partition of the suit schedule properties and separation of the share of the plaintiffs. The plaint averments are that the plaintiffs and defendants 1 and 2 are the brothers. Defendant Nos. 3 to 7 are the sisters of the plaintiffs, who are all married and settled. The plaintiff is the second son of Late Sri.Channa Basavanagouda and Late Smt. Gowramma. Sri. Channa Basavanagouda died on 27.08.1978 and Smt.Gowramma died on 14.01.2001 intestate. The properties mentioned in Schedule A and B of the plaint are devolved on the plaintiffs and defendants as the coparceners. The 4 properties mentioned in the schedule C of the plaint have been purchased out of the savings from the income of the joint family. Hence, the plaintiffs and all defendants have their share in it. On issuance of summons, defendants have appeared and filed separate written statements. On the basis of pleadings, issues were framed. On appreciation of the evidence on record, the trial court decreed the suit. The plaint schedule properties as mentioned in schedule A and B and movables mentioned in the Court Commissioner report are declared as joint family properties. It was held that the plaintiff and defendants are entitled to 1/8 share each in the said suit properties.
5. Being aggrieved by the said judgment and decree, defendant Nos.1 and 2 preferred an appeal in RA No.4/2014, which came to be dismissed confirming the judgment and decree of the trial court.
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6. Being aggrieved by the said judgment and decree of the lower appellate court, this second appeal is preferred by the defendant Nos.1 and 2. The following substantial questions of Law arises for consideration:
a) Whether both the courts below were justified in granting equal share to defendant Nos.3 to 7 by overlooking the amendment to Section 6 of the Hindu Succession Act, 1956 in the co-parcenery property?
b) Whether the judgment and decree passed by the courts below is justifiable in view of the latest judgment of the Hon'ble Apex Court in the case of Prakash V/s Phulavati reported in AIR 2016 SUPREME COURT 769?
7. Heard the learned counsel for the parties and perused the material on record.
8. Learned counsel appearing for both the parties do not dispute that the judgment and decree passed by the courts below requires to be modified as regards the shares of the daughters viz., defendant Nos. 3 to 7 in view of the 6 law declared by the Hon'ble Apex Court in the case of Prakash V/s Phulavati reported in AIR 2016 SUPREME COURT 769. The courts below determined the share of the members of joint family comprising of the plaintiffs and defendants based on the law prevailing at the relevant time i.e., placing reliance on the judgment of this court in the case of Pushpalatha N.V. V/s Padma and others relating to Section 6 of the Hindu Succession (Amendment) Act 2005. Now, the issue relating to the rights of the daughters in coparcenery property based on Section 6(1) of the Hindu Succession Act, more particularly, Amendment Act 2005 has reached finality.
9. In the case of Prakash V/s Phulavathi (supra) wherein, it is categorically held that the rights under the amendment are applicable to living daughters of living coparceners as on 09.09.2005 irrespective of when such daughters are born. Disposition or alienation including partitions which may have taken place before 20-12-2004 7 as per the law applicable prior to the said date will remain unaffected. Any transaction of partition effected thereafter will be governed by the explanation to Section 6(5) as amended. It is held that to get benefit under the amendment Act, all that is required is both the daughter and father should be alive on the date of amendment.
10. In the case on hand, Sri. Channa Basavanagouda, the father of the parties herein died on 27.08.1978. Smt.Gowramma, the mother of the parties herein died on 14.01.2001 i.e., on the date of the amendment to Section 6(1) by amendment Act of 2005 which came into force on 09.09.2005, the father of the parties herein (plaintiffs and defendants) was not alive. Thus, the defendant Nos.3 to 7 being the daughters of late Sri.Channabasana Gouda are not entitled to coparcenery properties in equal share as that of the sons viz., plaintiffs and defendant Nos.1 and 2. Accordingly, the judgment and decree of the courts below requires modification.
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11. The parties herein are governed by the Bombay school of Mithakshara and the shares are allotted keeping the same in mind as under; by notional partition, three sons, father and mother get equal share i.e. 1/5th each. The share of the father shall devolve upon all the legal heirs viz., wife and the children. 1/5th of the share of the father has to be divided among 9 members that will be 15X1/9=1/45. After the death of the mother on 14.01.2001, her share has to devolve upon on her legal heirs viz., three sons and five daughters. Mother's share being 1/5+1/45 i.e., 10/45=2/9 gets devolved upon the eight children. Accordingly, the plaintiff and defendant Nos.3 to 7 are entitled to 1/36 share each (2/9x1/8=1/36).
12. Thus, daughters (defendant Nos.3 to 7) are entitled to 1/36 +1/45= 1/20 each. Sons viz., plaintiff and defendant Nos.1 and 2 are entitled to 1/5 +1/45+1/36=45/180 i.e., 1/4th share each. 9
13. Substantial question of law is answered in favour of the appellants.
14. Accordingly, the judgment and decree is modified as under:
The appeal is partly allowed. The suit of the plaintiffs is partly decreed. The plaint schedule properties mentioned in the schedule A and B and movables mentioned in the Court Commissioners report are joint family properties. The plaintiff and defendant Nos.1 and 2 are entitled to 1/4th share each in the suit properties. Defendant Nos.3 to 7 are entitled to 1/20th share each in the suit properties.
Draw preliminary decree accordingly.
Sd/-
JUDGE hmb