Karnataka High Court
Veerangouda S/O Bharamanagouda vs Indira Revadi W/O Bharatesh on 11 January, 2017
Author: S.Sujatha
Bench: S.Sujatha
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 11TH DAY OF JANUARY, 2017
BEFORE
THE HON'BLE MRS. JUSTICE S.SUJATHA
R.S.A.NO.5458/2011 (PART. AND SEP. POSSN)
BETWEEN:
SRI VEERANGOUDA S/O BHARAMANAGOUDA,
AGE: 65 YEARS, OCC: AGRICULTURE,
R/O KOPPAL
NOW AT UNICON AVENUE,
NEAR LAXMI TEMPLE, VIDYANAGAR,
HUBLI 580 025. ... APPELLANT
(BY SRI GIRISH YADWAD FOR
SRI V P KULKARNI, ADV.)
AND
1. SMT.INDIRA REVADI W/O BHARATESH,
AGE: ABOUT 37 YEARS, OCC: HOUSEHOLD,
R/O MANGALORE, TQ: YELABURGA,
KOPPAL.
2. RAURI RAMU S/O MUTHAIAH,
AGE: ABOUT 28 YEARS, OCC: AGRICULTURE,
R/O HYDERABAD, NOW R/O AT KOPPAL,
MARISHANTAVEERNAGAR,
KOPPAL 583 231.
3. SMT.MANJULA W/O VINOD,
AGE: 32 YEARS, OCC: HOUSEHOLD,
R/O VIDYANAGAR, HUBLI,
DHARWAD 580 001.
4. SMT.SHARADA W/O ANILKUMAR B.J. PATIL,
AGE: 47 YEARS, OCC: HOUSEHOLD,
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R/O 3RD FLOOR, PADMASHREE NILAYA,
H.NO.8, SHANTI COLONY, VIDYANAGAR,
R/O HUBLI, TQ: HUBLI,
DHARWAD 580 001. ... RESPONDENTS
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 08.04.2011
PASSED IN R.A.No.96/2009 ON THE FILE OF THE PRESIDING
OFFICER, FAST TRACK COURT-I, AT KOPPAL, DISMISSING THE
APPEAL FILED AGAINST THE JUDGMENT DATED 25.08.2009
AND THE DECREE PASSED IN O.S.No.91/2006 ON THE FILE OF
THE CIVIL JUDGE (SR.DN.) AT KOPPAL, PARTLY DECREEING
THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY
THE COURT, DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is directed against the judgment and decree dated 08.03.2011 passed by the Fast Track Court-I, Koppal, (lower appellate court) in R.A.96/2009 whereby the judgment and decree passed in O.S.No.91/2006 by the Court of Civil Judge, (Sr.Dn.), Koppal, (trial court) is confirmed.
2. For the sake of convenience, the parties are referred to as per their ranking before the trial court.
3. Briefly stated the facts are, plaintiff filed a suit against the defendants in O.S.No.91/2006 for the relief 3 of partition and separate possession of half share in the suit properties and to declare that the sale deed dated 05.01.2015 executed by defendant No.1 in favour of defendant No.2 does not bind the plaintiff's half share and for permanent injunction to restrain defendant Nos.1 and 2 from alienating the suit schedule property. The subject matter of the suit property is the agricultural land bearing Sy.No.268/2, measuring 5 acres and a house property in M.B.No.5-2-172, 5-2-173 and 5-2-174 situated at Koppal town limits.
4. The plaint averments are, the plaintiff and defendants No.3 and 4 are the daughters of 1st defendant. The 1st defendant had a son by name Mahaveer who died as bachelor on 25.01.2006. The suit properties being ancestral joint family properties, the defendant No.1 had sold item No.1 of the suit schedule property without the consent of the plaintiff in favour of defendant No.2 on 05.01.2006 under a registered sale 4 deed. The marriage of the plaintiff had taken place on 07.05.1996, at Mangalore in Koppal taluk. As there was no partition in the family, the plaintiff sought for partition. The 1st defendant had opposed the claim of the plaintiff. Defendant No.2 was placed exparte, defendant No.3 remained absent, defendant No.4 appeared through his advocate and adopted the written statement filed by defendant No.1. It was contended by defendant No.1 that the suit properties was sold for a valuable consideration of Rs.10,00,000/- and suit schedule properties are the self acquired properties of the 1st defendant. Hence, the consent of other members of the family does not arise. On the basis of the pleadings, eight issues were framed by the trial court. To prove the case, the plaintiff herself got examined as PW-1 and a witness was examined as PW-2 and got marked the documents at Ex.P.1 to Ex.P.8. Defendant No.1 has been examined as DW-1. After appreciating the evidence on record, the trial Court partly decreed 5 the suit holding that the plaintiff is entitled for 1/4th share in the suit properties by meets and bounds and it was declared that the sale deed No.2084/05-06 dated 05.01.2005 does not bind the plaintiff to her 1/4th share. Further, defendant Nos.1 and 2 are permanently restrained from alienating the suit house and suit land. Aggrieved by the same, defendant No.1 preferred R.A.No.96/2009 before the lower appellate court. The lower appellate court after re-appreciating the evidence on record dismissed the appeal with costs to plaintiff. Aggrieved by the same, the defendant No.1 is in second appeal.
5. Sri Girish Yadwad, the learned counsel appearing for the appellant assailing the impugned judgment and decree would contend that the courts below without appreciating the evidence on record properly, erroneously had come to the conclusion that the suit schedule properties are the joint family properties and 6 granted 1/4th share to the plaintiff. It was contended that the plaintiff is the daughter of defendant No.1 and she married even before the coming into force of the amendment to the Hindu Succession Act, 1956, and hence she is not entitled to 1/4th share in the suit schedule property. The learned counsel placing reliance on the judgment of the Hon'ble Apex Court in the case of UTTAM VS. SAUBHAG SINGH AND OTHERS (AIR 2016 SC 1169) would contend that the suit for partition filed by the plaintiff was not maintainable as the ancestral property ceased to be joint family property on the death of the grand father of the plaintiff in the year 1974. The joint family property which was ancestral property in the hands of father of defendant No.1 and other co-parcenaries devolved by succession under Section 8 of the Hindu Succession Act, 1956 and such being the case, the courts below entertaining the partition suit and allotting 1/4th share in the suit properties is wholly untenable.
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6. Having heard the learned counsel for the appellant and perusing the material on record, it is manifestly clear that the plaintiff is the daughter of defendant No.1. The material evidence on record indicates that the suit properties are ancestral Hindu Joint Family properties. Both the courts below after appreciating the evidence, had recorded finding of fact that the suit properties are the ancestral Hindu Undivided Joint family properties among plaintiff, defendant No.1, defendant No.3 and defendant No.4 devolved upon family of plaintiff and defendant No.1 from their ancestor Sri Bharama Gowda. The Hindu Succession Amendment Act, 2005, came into force with effect from 09.09.2005. Irrespective of marriage date of a daughter, this Act is applicable. The object of the Amendment Act, 2005 (39/2005) is to give equal right to daughters in the Hindu Mithakshara co-parcenary property as the sons have. By virtue of the said amended enactment, 8 there is no discrimination between a son and a daughter. Thus, it should be construed that plaintiff, defendant No.1, defendant No.2 and defendant No.3 formed an undivided Hindu joint family possessing suit properties as they are joint family properties. No partition or division had taken place regarding the suit properties prior to 20th December 2004. Considering the material evidence on record, both the courts below held that the suit properties belonged to the Hindu joint family consisting of the plaintiff and defendants. By virtue of the Hindu Succession Amendment Act, 2005 decreed the suit of the plaintiff allotting 1/4th share in the suit schedule properties by means and bounds and declared that the sale deed No.2084/05-06 dated 05.01.2005 does not bind the plaintiff to her 1/4th share. On appeal by the defendant No.1, the same came to be confirmed on re-appreciation of evidence. The appreciation of evidence by the Courts below is not 9 perverse or no flaw can be found in the findings recorded by the courts below.
7. As regards the judgment in Uttam's case supra, referred by the learned counsel for the appellant, it is the judgment rendered by Hon'ble Apex Court in the context of the death of one Sri Jagannath Singh in 1973, the joint family property which was ancestral property in the hands of Sri Jagannath Singh and other co-parcenars devolved by succession under Section 8 of the Hindu Succession Act. The ancestral property seems to be the joint family property on the date of death of Jagannath Singh. As such, the other co- parcenars and his widow held the property as tenants in common and not as joint tenants. In such circumstances, on the date of birth of the appellant therein being 1977, subsequent to the death of Sri Jagannath Singh, the said ancestral property, not 10 being joint family property, the suit for partition of such property was held to be not maintainable.
8. But, in the present facts of the case, the original propositus Sri Bharama Gouda died in the year 1974. The plaintiff was born prior to the death of the said Sri Bharama Gouda. The plaintiff acquired the rights over the co-parcenary properties by birth and as such, the said judgment relied upon by the learned counsel is not applicable to the facts of the present case.
9. As per the judgment of Hon'ble Apex Court in the case of PRAKASH AND OTHERS VS. PHULAVATHI AND OTHERS (ILR 2015 KAR 5329), the requisite factor to be examined for the applicability of the Amendment Act 2005 is whether the plaintiff was a living daughter of living co-parcenar as on 09.09.2005 irrespective of when such daughters are born. The Hon'ble Apex Court has categorically held that the Amendment Act, 2005 is applicable to living daughters 11 of living co-parcenars as on 09.09.2005 irrespective of when such daughters are born.
10. In the present case, the plaintiff was the living daughter of the living co-parcenar as on 09.09.2005 and as such, the Amended Act, 2005 is applicable to the facts of the present case and the courts below have rightly allotted 1/4th share in the suit properties to the plaintiff which cannot be found fault with. As such, the sale deed No.2084/05-06, dated 05.01.2005 executed by defendant No.1 in favour of defendant No.2 does not bind the plaintiff to her 1/4th share. No substantial question of law arises for consideration in this appeal. Accordingly, the appeal stands dismissed.
Sd/-
JUDGE jm/-