Karnataka High Court
Smt. Rathnamma vs Sri.Narayanaswamy on 28 February, 2023
Author: N.S.Sanjay Gowda
Bench: N.S.Sanjay Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF FEBRUARY 2023
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
R.F.A.No.714/2009(PAR)
C/w
R.F.A.CROB.No.7/2010
In R.F.A.No.714/2009
BETWEEN:
1. SHRI.NARAYANASWAMY,
S/O LATE KRISHNA REDDY,
AGED ABOUT 42 YEARS,
R/AT 6THCROSS,LAKSHMI LAYOUT,
MENEKOLALU, MARATHALLI POST,
BENGALURU - 560 037.
2. SHRI.RAJASHEKAR REDDY,
S/O LATE KRISHNA REDDY,
AGED ABOUT 42 YEARS,
R/AT 6TH CROSS, LAKSHMI LAYOUT,
MENEKOLALU, MARATHALLI POST,
BENGALURU - 560 037.
... APPELLANTS
(BY SRI.ASHOK.B.PATIL, ADVOCATE)
AND:
1. SMT.RATHNAMMA,
W/O LATE GURUMURTHY REDDY,
SINCE DECEASED BY HER LRs.,
2
1(a) SRI.G.NARAYANASWAMY,
SINCE DECEASED BY HIS LRs.,
1(a)(i) SMT.KANTHA.K.Y
W/O LATE G.NARAYANA SWAMY,
AGED 60 YEARS,
R/AT No.56, 5TH B CROSS,
OMBR LAYOUT,
CHIKKA BANASAWADI,
BENGALURU - 560 043.
1(a)(ii) SRI.ARVIND.N,
S/O LATE G.NARAYANA SWAMY,
AGED 33 YEARS,
R/AT No.56, 5TH B CROSS,
OMBR LAYOUT,
CHIKKA BANASAWADI,
BENGALURU - 560 043.
1(a)(iii) SMT. AKILA.N.,
D/O LATE G.NARAYANA SWAMY,
W/O VIJAY KUMAR.H.N.,
AGED 32 YEARS.,
R/AT No.9, NEAR RAMA TEMPLE,
CARMELARAM POST,
HALANAYAKANAHALLI,
BENGALURU - 560 035.
1(b) SRI.KRISHNA REDDY,
S/O LATE GURUMURTHY REDDY,
SINCE DECEASED BY HIS LRs.,
1(b)(i) SMT.ANITHA,
W/O LATE G.KRISHNA REDDY,
AGED ABOUT 56 YEARS,
R/AT No.56, 5TH B CROSS,
OMBR LAYOUT, CHIKKA BANASAWADI,
BENGALURU - 560 043.
1(b)(ii) SRI.SUNIL REDDY.K.
S/O LATE G.KRISHNA REDDY,
3
AGED ABOUT 30 YEARS,
R/AT No.56, 5TH B CROSS,
OMBR LAYOUT, CHIKKA BANASAWADI,
BENGALURU - 560 043.
1(b)(iii) SRI.VIJAY REDDY.K.,
S/O LATE G.KRISHNA REDDY,
AGED ABOUT 28 YEAS,
R/AT No.56, 5TH B CROSS,
OMBR LAYOUT, CHIKKA BANASAWADI,
BENGALURU - 560 043.
1(c) SMT.KOUSALYA,
D/O LATE GURUMURTHY REDDY,
AGED ABOUT 60 YEARS,
R/AT No.56, 5TH B CROSS,
OMBR LAYOUT, CHIKKA BANASAWADI,
BENGALURU - 560 043.
1(d) SMT. ANUSUYA,
D/O LATE GURUMURTHY REDDY,
SINCE DECEASED BY HIS LRs.,
1(d)(i) SRI.ANIL KUMAR,
S/O KODANDA REDDY,
AGED ABOUT 35 YEARS,
R/AT No.56, 5TH B CROSS,
OMBR LAYOUT, CHIKKA BANASAWADI,
BENGALURU - 560 043.
1(d)(ii) SRI.ARUN REDDY,
S/O KODANDA REDDY,
AGED ABOUT 33 YEARS,
R/AT No.56, 5TH B CROSS,
OMBR LAYOUT, CHIKKA BANASAWADI,
BENGALURU - 560 043.
1(e) SMT.RADHA,
D/O LATE GURUMURTHY REDDY,
AGED ABOUT 52 YEARS,
R/AT No.56, 5TH B CROSS,
4
OMBR LAYOUT, CHIKKA BANASAWADI,
BENGALURU - 560 043.
1(f) SRI.RAMESH REDDY,
SINCE DECEASED BY HIS LRs.,
1(f)(i) SMT. ROOPA,
W/O RAMESH REDDY,
AGED ABOUT 42 YEARS,
R/AT No.56, 5TH B CROSS,
OMBR LAYOUT, CHIKKA BANASAWADI,
BENGALURU - 560 043.
1(f)(ii) SMT.VENNILA R.REDDY,
D/O RAMESH REDDY,
AGED ABOUT 26 YEARS,
R/AT No.56, 5TH B CROSS,
OMBR LAYOUT, CHIKKA BANASAWADI,
BENGALURU - 560 043.
1(f)(iii) BHARATH R.REDDY,
S/O RAMESH REDDY,
AGED ABOUT 18 YEARS,
R/AT No.56, 5TH B CROSS,
OMBR LAYOUT, CHIKKA BANASAWADI,
BENGALURU - 560 043.
1(g) SRI.G. RAJENDRA REDDY,
SINCE DECEASED BY LRs.,
1(g)(i) SMT.CHAYA
W/O LATE G.RAJENDRA REDDY,
AGED ABOUT 40 YEARS,
R/AT No.56, 5TH B CROSS,
OMBR LAYOUT, CHIKKA BANASAWADI,
BENGALURU - 560 043.
1(g)(ii) MASTER ESHWAR R.REDDY,
S/O LATE G.RAJENDRA REDDY,
AGED ABOUT 9 YEARS,
R/AT No.56, 5TH B CROSS,
5
OMBR LAYOUT, CHIKKA BANASAWADI,
BENGALURU - 560 043.
1(g)(iii) MASTER DAKSHA R REDDY,
S/O LATE G.RAJENDRA REDDY,
AGED ABOUT 8 YEARS,
R/AT No.56, 5TH B CROSS,
OMBR LAYOUT, CHIKKA BANASAWADI,
BENGALURU - 560 043.
2. SMT. JAYAMMA,
SINCE DECEASED BY LRs.,
2(a) SRI.NAGARAJA REDDY,
S/O VEERAPPA REDDY,
AGED ABOUT 32 YEARS,
R/AT KOTTANUR VILLAGE,
MOUNT ST.JOSEPH COLLEGE POST,
BENGALURU - 560 038.
2(b) SMT. INDRAMMA,
W/O ANJINAPPA,
AGED ABOUT 54 YEARS,
2(c) SMT. SUGANA,
W/O HANUMANTHA REDDY,
AGED ABOUT 50 YEARS,
2(d) SMT. NIRMALA,
W/O HANUMANTHA REDDY,
AGED ABOUT 48 YEARS,
2(e) SMT.SARASWATHAMMA,
W/O GOPALA REDDY,
AGED ABOUT 46 YEARS,
R-2(b) TO R-2(e)
R/AT No.89, NEAR ST.JOSEPH'S COLLEGE,
SHANKARNAGAR CIRCLE, KOTHANUR,
BENGALURU - 560 086.
6
2(f) SMT.RENUKA,
W/O LATE CHANDRASHEKARA REDDY,
AGED ABOUT 44 YEARS,
R/AT No.13, KEMPAPURA,
YEMMLUR POST,
BENGALURU - 560 037.
2(g) SMT.PRABHAVATHI,
W/O KRISHNA REDDY,
AGED ABOUT 42 YEARS,
R/AT No.CHIKKANEKKUNDI,
VIA VARATUR, MUTHASANDRA POST,
BENGALURU - 560 087.
2(h) SMT.SHOBHA,
W/O SRINIVAS REDDY,
AGED ABOUT 30 YEARS,
R/AT No.22, BASAVANAPURA VILLAGE,
ELECTRONIC CITY POST,
BENGALURU - 560 100.
2(i) SRI.K.N.KODANDA REDDY,
S/O LATE K.N.NARAYANA REDDY,
AGED ABOUT 58 YEARS,
2(j) SMT.K.PUNITHA,
W/O N.NARASIMHA MURTHY,
AGED ABOUT 36 YEARS,
2(k) SRI.K.BABU,
S/O KODANDA REDDY,
AGED ABOUT 33 YEARS,
2(l) SRI. SUNIL REDDY,
S/O KODANDA REDDY,
AGED ABOUT 31 YEARS,
R-2(g) TO (k) ARE
R/AT No.12, KEMPAPURA,
YEMMLUR POST,
BENGALURU - 560 037.
7
3. SMT. VIMALA,
W/O SUBBARAMA REDDY,
AGED ABOUT 54 YEARS,
R/AT MENEKOLALU,
LAKSHMI LAYOUT, 6TH CROSS,
MARATHALLI POST,
BENGALURU - 560 037.
4. SMT.KANAKA,
W/O JANARADHANA REDDY,
R/AT LAKSHMI LAYOUT, 6TH CROSS,
NEAR GANESH PROVISIONS,
MENEKOLALU VILLAGE,
MARATHALLI POST,
BENGALURU- 560 037.
SINCE DEAD BY LRs.,
4(a) JAGANATH REDDY,
S/O REDDAPPA REDDY,
4(b) SHRI MOHAN,
S/O LATE KANAKA,
AGED ABOUT 27 YEARS,
4(c) KUM. KAVYA,
D/O LATE KANAKA,
AGED ABOUT 24 YEARS,
ALL ARE R/AT LAKSHMI LAYOUT,
6TH CROSS, MONNEKOLLALA,
BANGALORE - 560 037.
5. SMT.SUGUNA,
W/O KRISHNA REDDY,
AGED ABOUT 50 YEARS,
R/AT RAYASANDRA,
SARJAPURA HOBLI,
HUSKUR POST, ANEKAL TALUK.
6. SMT. SHANTHAMMA,
W/O RAGHAVENDRA REDDY,
8
AGED ABOUT 48 YEARS,
R/AT LAKSHMI LAYOUT,
6TH CROSS, NEAR GANESH PROVISIONS,
MENEKOLALU, MARATHALLI POST,
BENGALURU - 560 037.
... RESPONDENTS
(BY SRI. T.N.VISHWANATHA, ADVOCATE FOR R-1(a)(i) &
R-1(a)(iii) to R-1(g)(iii) & R-2(a TO l);
VIDE ORDER DATED:12.08.2013, APPEAL AGAINST
R-4 IS ABATED;
R-3, R-4(a), R-4(b), R-4(c), R-5 & R-6 ARE SERVED
AND UNREPRESENTED)
THIS APPEAL IS FILED UNDER SECTION 96 OF CPC,
AGAINST THE JUDGMENT AND DECREE
DATED:21.04.2009 PASSED IN O.S.No.408/2005 ON THE
FILE OF THE XXXVIII ADDITIONAL CITY CIVIL JUDGE,
BANGALORE, PARTLY DECREEING THE SUIT FOR
PARTITION AND SEPARATE POSSESSION AND MESNE
PROFITS.
In R.F.A.CROB.No.7/2010
BETWEEN:
SMT.RATHNAMMA,
W/O LATE GURUMURTHY REDDY,
AGED ABOUT 76 YEARS,
R/AT No.5, CHIKKBANASAVADI,
OMBR MAIN ROAD,
BANGALORE - 560 043. ... CROSS OBJECTOR
(BY SRI. H.M.SHIVALINGAIAH, ADV.)
AND:
1. SRI.NARAYANASWAMY,
S/O LATE KRISHNA REDDY,
AGED ABOUT 42 YEARS,
R/AT 6TH CROSS, LAKSHMI LAYOUT,
9
MUNEKOLALU VILLAGE,
MARATHHALLI POST,
BANGALORE - 560 037.
2. SRI.RAJASHEKAR REDDY,
S/O LATE KRISHNA REDDY,
AGED ABOUT 40 YEARS,
R/AT 6TH CROSS, LAKSHMI LAYOUT,
MUNEKOLALU VILLAGE,
MARATHHALLI POST, BANGALORE - 560 037.
3. SMT. JAYAMMA,
SINCE DECEASED BY LR.,
3(a) SRI.NAGARAJA REDDY,
S/O VEERAPPA REDDY,
AGED ABOUT 32 YEARS,
R/AT KOTTANUR VILLAGE,
MOUNT SENT JOSEPH COLLEGE POST,
BANGALORE - 560 038.
4. SMT VIMALA,
W/O SUBBA RAMA REDDY,
AGED ABOUT 54 YEARS,
R/AT 6TH CROSS, LAKSHMI LAYOUT,
MUNEKOLALU VILLAGE,
MARATHHALLI POST,
BANGALORE - 560 037.
5. SMT. KANAKA,
W/O JANARDHANA REDDY,
DEAD BY HER LRs.,
5(a) SRI. JAGANNATH REDDY,
S/O REDDAPPA REDDY,
AGED ABOUT 53 YEARS,
5(b) SRI. MOHAN,
S/O JAGANNATH REDDY,
AGED ABOUT 29 YEARS,
10
R-5(a) & R-5(b) ARE
R/AT 6TH CROSS, LAKSHMI LAYOUT,
MUNEKOLALU VILLAGE,
MARATHHALLI POST,
BANGALORE - 560 037.
5(c) SMT.A.KAVYA,
W/O SUNDEEP,
AGED ABOUT 26 YEARS,
R/AT No.90, OODY VILLAGE,
MAHADEVAPURA POST,
NEAR ABT PARCEL SERVICE,
BANGALORE - 560 048.
6. SMT.SUGUNA,
W/O KRISHNA REDDY,
AGED ABOUT 50 YEARS,
R/AT RAYASANDRA,
SARJAPURA HOBLI,
HUSKUR POST, ANEKAL TALUK.
7. SMT. SHANTHAMMA,
W/O RAGHAVENDRA REDDY,
AGED ABOUT 48 YEARS,
R/AT 6TH CROSS,
LAKSHMI LAYOUT, MUNEKOLALU VILLAGE,
MARATHHALLI POST,
BANGALORE - 560 037.
... RESPONDENTS
(BY SRI. ASHOK.B.PATIL, ADVOCATE FOR R-1 TO R-2;
R-3(a), R-4, R-5(a), R-5(b), R-5(c), R-6 AND R-7
ARE SERVED AND UNREPRESENTED)
THIS R.F.A. CROB IS FILED IN R.F.A.No.714/2009
FILED UNDER ORDER 41, RULE 22 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED:21.04.2009 PASSED IN
O.S.No.408/2005 ON THE FILE OF THE XXXVIII
ADDITIONAL CITY CIVIL JUDGE, BANGALORE PARTLY
DECREEING THE SUIT FOR PARTITION AND SEPARATE
POSSESSION.
11
THIS APPEAL ALONG WITH R.F.A. CROB HAVING
BEEN HEARD AND RESERVED FOR JUDGMENT ON
24.01.2023, COMING ON FOR PRONOUNCEMENT THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This appeal and the cross objection arise out of a decree of partition granted by the Trial Court in favour of Rathnamma and Jayamma against their brother Krishna Reddy.
2. One Ramaiah Reddy had one son called Krishna Reddy and two daughters Rathnamma and Jayamma.
3. Rathnamma and Jayamma instituted the suit seeking for partition and separate possession of nine agricultural properties, which were all situate at Munekolalu Village, Varthur Hobli, Bengaluru South Taluk against the legal heirs of their only brother Krishna Reddy.
4. It was their case that the suit properties were acquired by their grandfather Muniyappa who had three sons namely Papaiah Reddy, Ramaiah Reddy and Sidda Reddy. They stated that there was a partition effected by 12 way of a registered Partition Deed on 26.10.1969 between the branch of their father Ramaiah Reddy (represented by their brother Krishna Reddy) and the branch of Papaiah Reddy (their uncle).
5. It may be pertinent to state here that the registered Partition Deed dated 26.10.1969 contains a recital that the third son of Muniyappa i.e., Sidda Reddy had got himself separated and had also executed a Relinquishment Deed dated 26.10.1969 along with his son and therefore, the joint family constituted only the remaining two sons of Muniyappa namely Papaiah Reddy and Ramaiah Reddy (father of the plaintiffs).
6. They stated that after the partition, they continued to be the members of a Hindu undivided joint family along with their brother Krishna Reddy and his wife and children. It was stated that since they and the branch of their brother had succeeded to the share of their father, who had died intestate, they were each entitled to 1/3rd share and despite demands being made to their brother during his life time, the properties had not been 13 partitioned. They stated that even after his death, though several requests were made, the partition was not effected and they were, therefore, constrained to file a suit.
7. The wife and children of Krishna Reddy had been arrayed as defendants 1 to 7. The wife of Krishna Reddy namely Jayamma and their two sons namely Narayanaswamy and Rajashekar Reddy entered appearance and contested the suit by filing a written statement.
8. They stated that Rathnamma and Jayamma had each received a sum of Rs.2,00,000/- from their brother Krishna Reddy in 1982 and had released their share in the suit properties in favour of Krishna Reddy and thus, the joint family status stood terminated and extinguished on that day itself.
9. They admitted the relationship as stated by Rathnamma and Jayamma, but they contended that the joint family stood extinguished in the year 1982 itself and Rathnamma and Jayamma being 77 and 72 years and 14 having been married and settled down with their respective families 50 years ago, they would not be entitled to contend that they constituted a Hindu undivided joint family. They stated that Krishna Reddy had exclusively succeeded to the share of Ramaiah Reddy under the registered Partition Deed dated 26.10.1969 and the suit for partition in respect of these properties was not maintainable. They also stated that after the receipt of Rs.2,00,000/-, Rathnamma and Jayamma had executed a Release Deed dated 30.12.1982 and having received their share and having executed the Release Deed, they had no right to seek for partition and thus, the suit was liable to be dismissed.
10. The Trial Court framed four issues.
11. On behalf of the plaintiffs, plaintiff No.1 - Rathnamma was examined as P.W.1 and got eight documents admitted in evidence and marked as exhibits.
12. On behalf of defendants, defendant No.6 - Narayanaswamy was examined as D.W.1 and two more 15 witnesses were examined as D.W.2 and D.W.3 and no document was marked on their behalf.
13. The Trial Court, on assessment of the evidence adduced before it, came to the conclusion that Rathnamma and Jayamma had proved that the suit properties were joint family properties and they were entitled to 1/6th share. The Trial Court also held that Jayamma (wife of Krishna Reddy) and her sons had failed to establish that Rathnamma and Jayamma (sisters of Krishna Reddy) had received a sum of Rs.2,00,000/- each from Krishna Reddy and had executed a Deed of Relinquishment thereby relinquishing their right and interest in the suit properties.
14. Being aggrieved by this judgment and decree, Narayanaswamy and Rajashekar Reddy, the 6th and 7th defendants are in appeal.
15. Rathnamma, the 1st plaintiff has also filed cross objections challenging the judgment and decree contending that she ought to have been granted 1/3rd 16 share i.e., an equal share as her brother and the grant of 1/6th share by the Trial Court was improper.
16. During the hearing of the appeal, Narayanaswamy and Rajashekar Reddy filed an application seeking for amendment of the written statement and also made two applications seeking to produce additional documents.
17. By way of amendment, they sought to amend the written statement to contend that item Nos.1, 6, 7 and 9 of the suit schedule were the self acquired properties of Sidda Reddy, their uncle and the third son of their grandfather Muniyappa and this Sidda Reddy had executed a Will dated 25.05.1985 in respect of the above mentioned suit properties and had bequeathed the same to them. They stated that Sidda Reddy had passed away on 19.10.1994, but they were unaware of the Will and they thereafter discovered the Will only in the year 2013 and they had also filed a petition seeking for probate of the said Will and the Civil Court had in fact allowed the petition by an order dated 19.08.2014 and since this order of the Probate Court was an order in rem, it would, 17 therefore, bind all the persons including Rathnamma and Jayamma. They, therefore, stated that the claim of Rathnamma and Jayamma over suit item Nos.1, 6, 7 and 9 was untenable. They also sought to contend that item No.8 had been purchased by their father under the Sale Deed dated 09.05.1963 and therefore, they had no right to claim a share in their property.
18. This Court, on consideration of the said applications, came to the conclusion that the proposed amendment related to the events leading to discovery of the Will and therefore, allowed the applications for amendment. This Court also allowed the applications filed for production of additional documents.
19. This Court, after considering the contentions of both the parties, framed the following additional issue and remitted the matter to the Trial Court:
"Whether the defendants No.6 and 7 prove that Ramaiah Reddy died as on 03.03.1952 and consequently, if he had died on 03.03.1952, what would be the rights and 18 privileges of the parties in determining their respective shares?
20. This Court directed the Trial Court to give its finding after the evidence was rendered and Jayamma and Rathnamma were permitted to file their objections to the amended written statement.
21. Pursuant to the said order, the Trial Court permitted the parties to adduce evidence and after considering the evidence adduced, it has recorded a finding that Narayanaswamy and Rajashekar Reddy had failed to prove that Ramaiah Reddy had died prior to 03.03.1952.
22. On receipt of this finding, this appeal has once again been posted for hearing.
23. Sri Ashok B.Patil, learned counsel appearing for Narayanaswamy and Rajashekhar Reddy contended that Rathnamma and Jayamma had not stated in the plaint the date on which Ramaiah Reddy died and this, being a material fact, the absence of which, would vitiate their entire claim.
19
24. He contended that having regard to the age of Rathnamma and Jayamma, it was clear that they were born in the early 1930's, but, they had not stated when they got married and when their brother Krishna Reddy died and this was a suppression of a material fact.
25. He contended that the preponderance of probabilities established the fact that the date of death of Ramaiah Reddy which had been stated in Ex.D1 as 03.03.1952 would have to be accepted. He contended that since Ramaiah Reddy had died prior to 1952, the question of applying the Hindu Succession Act, 1956 (for short, hereinafter referred to as "the 1956 Act") and thereby granting a share from the share of Ramaiah Reddy or by applying Hindu Succession (Amendment) Act, 2005 (for short, hereinafter referred to as "2005 Amendment Act") and granting an equal share would not arise. He contended that since the suit had been filed prior to the coming into force of 2005 Amendment Act, the same cannot be applied in the present case. 20
26. He contended that only if Ramaiah Reddy died after 1956, Rathnamma and Jayamma would be entitled to any share and since it had been established that he died prior to 1952, the question of granting them a share would not arise.
27. Learned counsel also contended that since Rathnamma and Jayamma were married prior to the 1956 Act coming into force, they could not claim to be the members of the joint family comprising of their father Ramaiah Reddy and their brother Krishna Reddy and they could never thus claim to be the coparceners.
28. It was his contention that the Release Deed of the year 1982, which is referred to in the written statement, only indicated that Ramaiah Reddy had made a concession and treated them as a joint family members and in the light of the well established principle of law that a coparcener of the joint family cannot be created by a contract or concession, the question of treating them as coparceners would never arise.
21
29. He also contended that even it is assumed that Rathnamma and Jayamma were the members of a joint family, the partition of the year 1969 and the Release Deed of the year 1982 would only result in disruption of the joint family status and that would be the starting point of limitation to file a suit for partition. However, the suit was filed only in the year 2005 and having regard to the fact that Krishna Reddy died in the year 1992, the suit was clearly barred by limitation as per Article 110 of the Limitation Act, 1963.
30. He also submitted that since Rathnamma and Jayamma were married, the question of them constituting a Hindu undivided joint family would never arise and since they never claimed for partition, despite being aware of the registered partition of the year 1969, their claim for partition made in the year 2005 was wholly illegal.
31. Learned counsel further submitted that this was an attempt by the sisters i.e., Rathnamma and Jayamma to extort money after having already received Rs.2,00,000/- from their brother Krishna Reddy in the year 1982. He 22 submitted that the Court should take cognizance of the fact that even married daughters, who had been married long prior to 2005 Amendment Act were abusing the 2005 Amendment Act and filing suits only to extort money from their brothers and their father and this approach should be repelled and nipped in the bud.
32. Sri T.N.Vishwanath, learned counsel appearing for Rathnamma and Jayamma contended that in the light of the clear and unequivocal admission in the written statement that Krishna Reddy and his two sisters constituted a Hindu undivided joint family till 1982, that was by itself conclusive proof of the fact that Rathnamma and Jayamma were indeed coparceners and therefore, they were entitled to an equal share. He laid emphasis on the fact that the wife and children of Krishna Reddy clearly stated that the joint family status was terminated and vanished in the year 1982 itself and this also indicated that the joint family continued till the year 1982.
33. He also contended that since an unregistered Release Deed was set up to contend that sisters of 23 Krishna Reddy had relinquished their share, in the light of the fact that under the 2005 Amendment Act, only a registered instrument of partition could be pressed into service to deprive a coparcener of her share, the Trial Court was justified in decreeing the suit.
34. He submitted that the decree of the Trial Court granting 1/6th share was, however, incorrect. He submitted that in the light of the decision in the case of VINEETA SHARMA VS. RAKESH SHARMA - (2020) 9 SCC 1, Rathnamma and Jayamma were entitled to an equal share i.e., 1/3rd share in the properties since there were only three coparceners and also because it was admitted that all the properties were ancestral properties.
35. Learned counsel sought to highlight the fact that Narayanaswamy and Rajashekar Reddy had in fact filed a petition under Section 276 of Indian Succession Act, 1925 seeking for grant of probate of a Will dated 25.05.1985 which was stated to have been executed by Sidda Reddy, the younger brother of Ramaiah Reddy i.e., their paternal uncle. He stated that this setting up of a Will of Sidda 24 Reddy dated 25.05.1985 was basically to defeat the claim of Rathnamma and Jayamma by trying to contend that item Nos.1, 6, 7 and 9 were the self acquired properties of Sidda Reddy.
36. He stated that the four lands which were the subject matter of the Will were in fact item Nos.1, 6, 7 and 9 in the suit and though both of them admitted that these properties had been allotted to Krishna Reddy in the partition of the year 1969, nevertheless, they sought to contend that these were the self acquired properties of Sidda Reddy and he was, therefore, entitled to make a bequest. He stated that this glaring contradiction in their stand as to the nature of the property was proof of the fact that they were basically trying to get over their admission in the written statement.
37. It was further stated that the pendency of the suit was deliberately suppressed in the Probate proceeding and a false statement was also made that there was no other legal proceeding pending in respect of the lands which were the subject matter of the Probate proceeding 25 and only the sons of Sidda Reddy had been made the respondents. It was stated that this filing of a petition setting up title in Sidda Reddy and securing a probate of Will was a clear indication of the fact that every attempt was made to defeat the entitlement of Rathnamma and Jayamma to secure a share in the suit properties. He submitted that this conduct of Narayanaswamy and Rajashekar Reddy in putting forth contradictory pleas was itself adequate to dismiss the appeal.
38. After the matter was heard at length over a couple of days and judgment was reserved, an application was filed by Narayanaswamy and Rajashekar Reddy to produce additional evidence. The additional evidence that was sought to be produced was registered Partition Deed dated 01.10.2001 entered into between themselves on the premise that it was a relevant document for the complete adjudication of the appeal. In the affidavit, it was stated at paragraphs 8 and 9 as follows:
"I state that, we did not comprehend the significance of the said document at the time of filing the written statement. I am advised to state 26 that, the said document assumes significance having regard to the amendment to the Section 6 of the Hindu Succession Act, by Act No.39 of 2005, with effect from 09-09-2005. I am further advised to state that, having regard to the Proviso to the amended Section 6(1) of the Hindu Succession Act, the case set up by the plaintiffs cannot be countenanced.
I state that, the document of additional evidence now sought to be produced is relevant for decision of the above appeal and this Hon'ble Court may be pleased to permit the same. I further state that, despite due diligence we were unable to produce the same before the trial court as we were not properly advised. Hence, the accompanying application."
39. This application was stoutly opposed by the learned counsel appearing for Rathnamma and Jayamma. They contended that in the year 2014, the sons of Krishna Reddy had made an application to amend the written statement and sought to contend that the date of death of Ramaiah Reddy would have to be ascertained for the proper disposal of the appeal and at that time, they were aware of the fact that there existed the so called Partition Deed executed amongst themselves. It was stated that 27 even after the matter was remanded to the Trial Court where liberty had been reserved for the parties to produce evidence, no attempt had been made to produce this Partition Deed of the year 2001 and this indicated that there was complete lack of diligence.
40. It was contended that though the execution of the Partition Deed was within the direct knowledge of Narayanaswamy and Rajashekar Reddy, the same was not even attempted to be produced right from 2001 till 2023 and therefore, the provisions of Order XLI Rule 27 CPC could not be invoked to seek for their production.
41. Before proceeding to consider the matter on merits, it would be necessary to consider the application filed for additional evidence i.e., production of registered Partition Deed dated 01.10.2001.
42. Rathnamma and Jayamma filed the suit seeking for partition way back in January, 2005. This Partition Deed which was stated to be of the year 2001 was already available with Narayanaswamy and Rajashekar Reddy, who were the only parties to the Partition Deed. However, 28 for the reasons best known to them, they chose to keep this document with themselves for the past 22 years.
43. During the pendency of the suit, they also set up a plea that there was a Will executed in their favour by their uncle Sidda Reddy and they had also initiated proceedings in the year 2013 in P & SC.No.397/2013. In this Will that they set up, a plea was put forth that, Sy.Nos.70/2, 72/4, 60/1 and 237/1 (item Nos.1, 6, 7 and 9 of the suit schedule properties) were the self acquired properties of Sidda Reddy. If these properties were indeed the self acquired properties of Sidda Reddy, the question of these properties being the subject matter of the registered Partition Deed of the year 2001 would not arise. It is to be kept in mind that the Will was dated 25.05.1985 and the proceedings were initiated only in the year 2013. If both of them admitted that they were the self acquired properties of Sidda Reddy, the question of including them in a partition amongst themselves on the premise that it was their ancestral properties, was clearly an attempt to usurp the properties for themselves or at least ensure 29 that the share of Rathnamma and Jayamma in these properties were denied.
44. The fact that this registered Partition Deed never saw the light of the day from 2001 till 2023 i.e., for a good 22 years, during which period the suit for partition was pending clearly goes to show that this document was entered into for some ulterior motive.
45. The basic requirement to invoke Order XLI Rule 27 CPC and to permit production of additional evidence is that the party seeking to produce the additional evidence was unable to produce the evidence despite due diligence on his part to secure the evidence or that the party discovered the evidence subsequently.
46. As noticed in the affidavit, Narayanaswamy and Rajashekar Reddy did not state that they were unaware of the existence of this document and in fact, they cannot also say so because they are the only signatories to the Partition Deed. Both of them were also contesting this suit for partition right from the year 2005 and their siblings and their mother were merely sailing along with the plea 30 that their aunts had relinquished their share by accepting Rs.2,00,000/- from their father. In fact, the basic and material fact that they had to disclose was that they had entered into a partition even before the suit had been filed. Looking at their conduct, it is clear that in all probability, they had created this document amongst themselves to deprive their siblings of a share in the property.
47. In the affidavit filed in support of the application, they in fact state that they did not comprehend the significance of the document. This averment by itself goes to show that the document was very much in their possession and yet they did not make any attempt to produce the same. Thus, the fundamental requirement of "due diligence" to invoke Order XLI Rule 27 of CPC is not available to them.
48. The further fact that this Partition Deed was not even mentioned in the petition for probate filed by them would also go to show that they were suppressing material facts. If, in the probate proceedings, they stated 31 that the four properties in that petition were the self acquired properties of Sidda Reddy, they obviously could not have partitioned it, unless they had obtained a probate and yet by entering into the partition much prior to the filing for the probate, they were essentially trying to usurp the properties that was not theirs.
49. It must also be borne in mind that the Partition Deed would be relevant only if it was admitted that the properties were ancestral properties and they were not amenable to a partition after the 2005 amendment by virtue of it being a registered document. The purpose of protecting the properties from the purview of the 2005 amendment is only to ensure that the coparceners who had already divided their properties prior to the 2005 amendment are not prejudiced and matters which have already been settled should not be unsettled.
50. In this case, when the brothers contend that some of the properties were the self acquired properties of their uncle Sidda Reddy and set up a bequest in their favour, they cannot contend that these properties were ancestral 32 properties and were protected from the 2005 amendment by virtue of the registered Partition Deed that had been executed amongst themselves in respect of these properties. In this view of the matter, there is absolutely no justification to entertain the application - I.A.1/2023 filed for additional evidence and the same is, therefore, rejected.
51. From the arguments advanced by the learned counsel for both parties, the only point that arises for consideration is:
Whether Rathnamma and Jayamma had established that the suit properties were coparcenary properties and they were entitled for an equal share by their birth in the coparcenary family?
52. The case put forth by Rathnamma and Jayamma was that the suit properties were their ancestral properties and they along with their brother Krishna Reddy succeeded to the share of their father Ramaiah Reddy under the registered Partition Deed dated 26.10.1969, which had been effected between the 33 children of their uncle Papaiah Reddy and their brother Krishna Reddy.
53. It was their case that they had continued to be the members of the Hindu undivided joint family along with their brother Krishna Reddy. Thus, they set up the plea that they were part of a Hindu undivided joint family comprising of their brother Krishna Reddy and themselves and this continued even after the death of their brother Krishna Reddy.
54. The wife and children of Krishna Reddy, in their written statement admitted that Rathnamma and Jayamma along with their brother Krishna Reddy had constituted a Hindu undivided joint family. They, however, contended they had released their share by receiving a sum of Rs.2,00,000/- under the Release Deed dated 30.12.1982. The fact that they admitted that Rathnamma and Jayamma released their share in favour of Krishna Reddy after receiving a sum of Rs.2,00,000/- in 1982 would, by itself, go to show that there was indeed a Hindu undivided joint family comprising of Krishna Reddy and 34 his two sisters, notwithstanding the fact that the sisters had been married a long time ago. The effect of this admission that they released their share by accepting Rs.2,00,000/- cannot be minimised or ignored because they also go on to state in the written statement that the joint family status stood terminated and the joint family vanished in the year 1982 itself. In the light of this clear admission that the joint family continued to exist till 1982, it becomes very clear that the properties in question were coparcenary properties and the sisters were also considered as being a part of the coparcenary. In the light of this admitted position of the brother and his two sisters forming a coparcenary, by virtue of 2005 Amendment Act, they would also become entitled to an equal share in the coparcenary properties by reason of their very birth in the coparcenary.
55. It is to be stated here that this entitlement of the females for an equal share in the coparcenary property can be denied only if the property had been alienated or subjected to a partition under registered instrument. According to Krishna Reddy, after the partition effected 35 between him and his cousins (i.e., his father's brother children), he and his sisters continued to be a joint Hindu undivided family at least until 1982. Admittedly, there was no registered instrument executed amongst this coparcenary i.e., between Krishna Reddy and his two sisters partitioning the coparcenary properties. There is also no alienation or disposition of the coparcenary properties. As stated above, the partition set up by the sons of Krishna Reddy cannot deprive them of a share in the coparcenary properties since they actually set up a plea that item Nos.1, 6, 7 and 9 were the self acquired properties of Sidda Reddy and he had bequeathed the properties in their favour. As a consequence, the entitlement of Rathnamma and Jayamma for an equal share in the suit properties by virtue of 2005 Amendment Act as interpreted in Vineeta Sharma's case cannot be denied.
56. An argument was, however, advanced that Ramaiah Reddy, father of the plaintiffs and Krishna Reddy had died on 03.03.1952 and therefore, the 1956 Act would itself be inapplicable. In my view, the date of death of Ramaiah 36 Reddy would be of very little significance for the purpose of determination of the entitlement of Rathnamma and Jayamma in this case. This is because the admitted position of the parties is that the coparcenary continued despite the registered Partition Deed entered into between Ramaiah Reddy's son and Papaiah Reddy's sons in the year 1969. Even, if it is assumed that Ramaiah Reddy died in the year 1952, the fact that his son and his daughters along with his brother's sons continued to be joint until they got themselves separated under the registered Partition Deed of the year 1969, would lead to an inference that the coparcenary existed even after the 1956 Act came into force. This, thus renders the date of Ramaiah Reddy's death irrelevant.
57. The argument of Sri Ashok B.Patil, learned counsel appearing for Narayanaswamy and Rajashekar Reddy that the suit for partition was barred by limitation under Article 110 of the Limitation Act cannot be accepted. Article 110 of the Limitation Act would apply in a situation where a party is excluded from enforcing a share in the joint family property. This Article cannot govern the period of 37 limitation to institute a suit for partition. It is settled law that there is no limitation prescribed for filing a suit, simply because, the coparcenary properties continue to be in the joint ownership and joint possession of the coparceners and it is for them to decide as to when they should terminate their joint ownership and seek for separation.
58. An argument is also advanced that by virtue of the death of Ramaiah Reddy prior to 1952, the succession would have been under the Mysore Hindu Women's Right to Property Act, 1933 (for short, "the 1933 Act") and the married daughters of Ramaiah Reddy would get no share at all. It is to be noticed here that this position would be attracted only if there was no subsisting coparcenary or that the coparcenary stood terminated. However, as noticed above, even according to the wife and sons of Krishna Reddy, the coparcenary continued right upto 1982 and thus the question of applying the 1933 Act would never arise.
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59. Sri. Ashok B.Patil, learned counsel, however, relied upon the judgment of the Apex Court in the case of COMMISSIONER OF INCOME TAX, MADHYA PRADESH, NAGPUR Vs. SETH GOVINDRAM SUGAR MILLS - AIR 1966 SC 24 to contend that a female member of a joint Hindu family could not be a coparcener and the Manager of the family. It may be relevant to state here that the said decision was in relation to the traditional law that a female member of the family could not be construed as a coparcener. However, by virtue of 2005 Amendment, the law has declared that even a daughter would be a coparcener and may be subject to the same rights and obligations as that of a son.
60. Learned counsel also relied upon the judgment of the Apex Court in the case of STATE BANK OF INDIA Vs. GHAMANDI RAM (DEAD) THROUGH GURBAX RAI - 1969 (2) SCC 33 to contend that a coparcenary under the Mitakshara School is a creature of law and cannot arise by acts of parties. This decision was also rendered by the Apex Court in relation to the traditional law about coparcenary Mitakshara School. However, as already 39 stated above, by virtue of 2005 Amendment, the law itself has declared that a daughter would be a coparcener and would be entitled to a coparcenary by birth in her own right and in the same manner as a son and hence, even by law, a coparcenary has been created, which includes a daughter in the same manner as a son.
61. Learned counsel also relied upon the judgment in the case of STATE OF MAHARASHTRA Vs. NARAYAN RAO SHAM RAO DESHMUKH AND OTHERS - (1985) 2 SCC 321 to contend that only males who acquire by birth an interest in the joint family can be members of the coparcenary or coparceners. This decision was rendered prior to 2005 Amendment and would therefore be inapplicable. As stated above, by reason of 2005 Amendment, every daughter is considered a coparcener by birth in the same manner as a son and hence, the reliance on the said judgment would be of no avail.
62. Learned counsel also relied upon the decision in the case of COMMISSIONER OF INCOME TAX, BIHAR-II, RANCHI Vs. SANDHYA RANI DUTTA - (2001) 3 SCC 420 40 to contend that Hindu females cannot by themselves form a Hindu undivided family and that it requires the presence of a male for the purpose of constitution of a Hindu undivided family.
63. In the instant case, the wife and children of Krishna Reddy themselves admitted that Krishna Reddy and his two sisters along with them constituted a joint Hindu family till 1982 and it was only in the year 1982 that the joint family status was extinguished. It is, therefore, clear that in the instant case, it was beyond dispute that there existed a joint Hindu family comprising of Krishna Reddy and his sisters, till the death of Krishna Reddy and thereafter, Krishna Reddy's wife and children and their aunts (sisters of Krishna Reddy continued as a joint Hindu family and as a coparcenary. This was in fact the plea that the wife and children of Krishna Reddy themselves took in the written statement and thus the existence of a joint family right upto 1982 was an admitted fact.
64. Learned counsel also relied upon the judgment in the case of ARSHNOOR SINGH Vs. HARPAL KAUR AND 41 OTHERS - (2020) 14 SCC 436. However, this judgment would actually run contrary to the argument advanced by him. The Apex Court in the said case has stated as follows:
"7.6 If succession opened under the old Hindu law i.e. prior to the commencement of the Hindu Succession Act, 1956, the parties would be governed by Mitakshara law. The property inherited by a male Hindu from his paternal male ancestor shall be coparcenary property in his hand vis-à-vis his male descendants up to three degrees below him. The nature of property will remain as coparcenary property even after the commencement of the Hindu Succession Act, 1956."
It should be noticed here that it was the case of the sons of Krishna Reddy that succession had acted upon under the Old Hindu Act i.e., prior to the commencement of 1956 Act. According to the ratio laid down in the said decision, the property inherited by a male prior to 1956 would be a coparcenary property vis-à-vis his male descendants. It had also been declared that the nature of the property would remain as a coparcenary even after 1956 Act. Since it is the admitted plea of the sons of 42 Krishna Reddy that their grandfather died in 1952 (prior to 1956) and as a consequence if the 1956 had no application, the resultant position would be that the property would continue to be a coparcenary property. As a further consequence, if the property by virtue of the said ratio continues to be a coparcenary property even after 1956 Act came into force, it is but inevitable that 2005 Amendment Act which conferred equal right in daughters would be attracted on this coparcenary property.
65. As a result of the above discussion, it becomes clear that on the death of Ramaiah Reddy, his son Krishna Reddy and Papaiah Reddy continued to be joint and this coparcenary was divided only in 1969 as amongst the two of them and according to the plea of Krishna Reddy's wife and children, they along with Krishna Reddy and his sisters continued to be joint till Krishna Reddy's sisters allegedly executed a Release Deed in the year 1982. It is thus clear that even according to the case set up by Krishna Reddy's wife and children, the family was joint till 1982 and the two sisters of Krishna Reddy allegedly 43 relinquished their rights over the coparcenary property only in 1982. Since the relinquishment is admittedly not through registered instrument, the same cannot be taken into account even if it is assumed to be true and in law, the property would continue to be a coparcenary property. As a further consequence, the female daughters of Ramaiah Reddy would have a right to seek for partition and would be entitled to an equal share in the coparcenary property.
66. The registered Partition Deed of the year 1969 presupposes the fact that the coparcenary existed even after the 1956 Act came into force in 1956. If the coparcenary existed after the 1956 Act came into force and coparcenary properties were subjected to a partition and Krishna Reddy was allotted a share in this coparcenary properties, the properties, would as a necessary consequence, continue to possess the character of a coparcenary property by virtue of it being a coparcenary property in the hands of Krishna Reddy. Consequently, his sisters Rathnamma and Jayamma, by virtue of 2005 Amendment Act, would also be coparceners 44 and would be entitled to an equal share. Thus, the entitlement of Rathnamma and Jayamma for an equal share, having regard to the fact that the suit properties were indeed coparcenary properties not only when 1956 Act came into force, but also continued to be so after 1969 partition, cannot be denied.
67. The Trial Court, however, has committed an error in applying the theory of notional partition and holding that Ramaiah Reddy had ½ share and Krishna Reddy had ½ share and as a consequence, Rathnamma and Jayamma would be entitled to 1/6th share i.e., 1/3rd share from the ½ share of Ramaiah Reddy. Having regard to the 2005 Amendment Act and having regard to the further fact that the property in the hands of Krishna Reddy was a coparcenary property, Krishna Reddy and his sisters i.e., Rathnamma and Jayamma would each be entitled to 1/3rd share. Consequently, the suit of Jayamma and Rathnamma would have to be decreed holding that each of them are entitled to 1/3rd share.
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68. It is to be stated here that though Jayamma has not filed any Cross Objection, it would necessary to award her 1/3rd share in the same manner as being awarded to her sister Rathnamma and her brother Krishna Reddy in exercise of powers under Order XLI Rule 33 of CPC.
69. Accordingly, the appeal filed by Krishna Reddy's wife and children is dismissed. The cross objection filed by Rathnamma is allowed in part. It is hereby held that Rathanamma and Jayamma would be entitled to 1/3rd share each in the suit properties and the wife and children of Krishna Reddy would be entitled 1/3rd share.
Sd/-
JUDGE PKS