Karnataka High Court
Ahalya vs Ramananda Varamballi on 18 December, 2024
Author: S.G.Pandit
Bench: S.G.Pandit
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF DECEMBER, 2024
PRESENT
THE HON'BLE MR JUSTICE S.G.PANDIT
AND
THE HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO. 1187 OF 2006 (PAR)
C/W
REGULAR FIRST APPEAL NO.1188 OF 2006 (SP)
REGULAR FIRST APPEAL CROB No.24 OF 2010
IN R.F.A No.1187 OF 2006
BETWEEN:
RAMANANDA VARAMBALLI
S/O LATE SHANKARNARAYANA VARAMBALLI
AGED 58 YEARS
R/O PADU GARADI MANE
VARAMBALLI VILLAGE
BRAHMAVARA POST
UDUPI TALUK AND DISTRICT-576 104
...APPELLANT
(BY SRI. K. SANATHKUMAR SHETTY, ADVOCATE)
AND:
1. AHALYA
AGED.59 YEARS
2. MEERA
AGED 55 YEARS
3. JAYASHREE
AGED 52 YEARS
ALL ARE DAUGHTERS OF
LATE SHANKARANARAYANA VARAMBALLI
HOUSEWIFES
R/O P.V. RAO'S COMPOUND
2
KOLAMBE, CHANTHAR VILLAGE
POST BRAHMAVARA
UDUPI TALUK AND DISTRICT-576 104
...RESPONDENTS
(BY SRI. R.V. JAYAPRAKASH, ADVOCATE FOR R1 TO R3)
THIS RFA FILED U/S.96 OF CPC AGAINST THE JUDGMENT
AND DECREE DT.28.1.2006 PASSED IN O.S.NO.116/1983 ON
THE FILE OF THE PRL. CIVIL JUDGE (SR.DN), UDUPI, PARTLY
DECREEING THE SUIT FOR PARTITION.
IN RFA No. 1188 OF 2006
BETWEEN:
RAMANANDA VARAMBALLI
S/O LATE SHANKARANARAYANA VARAMBALLI
AGED ABOUT 58 YEARS
R/O PADU GARADI MANE
VARAMBALLI VILLAGE
BRAHMAVARA POST
UDUPI TALUK AND DISTRICT
...APPELLANT
(BY SRI. K. SANATHKUMAR SHETTY, ADVOCATE)
AND:
1. AHALYA
AGED 59 YEARS
2. MEERA
AGED 55 YEARS
3. JAYASHREE
AGED 52 YEARS
4. MAHALAXMIAMMA
W/O LATE SHANKARANARAYANA VARAMBALLI
AGED 78 YEARS
RESIDENT OF NANCHAR VILLAGE
UDUPI TALUK AND DISTRICT
SINCE DECEASED BY LRs
RESPONDENTS NO.1 TO 3
(ALREADY ON RECORD)
3
RESPONDENTS NO.1 TO 3 ARE
DAUGHTERS OF
LATE SHANKARANARAYANA VARAMBALLI
HOUSEWIFES
R/O P.V. RAO'S COMPOUND
KOLAMBE, CHANTHAR VILLAGE
POST BRAHMAVARA
UDUPI TALUK AND DISTRICT
...RESPONDENTS
(BY SRI. R.V. JAYAPRAKASH, ADVOCATE FOR R1 TO R3;
R4 DEAD, R1 TO R3 ARE LRS OF DECEASED R4)
THIS RFA IS FILED U/S 96 OF CPC AGAINST THE
JUDGEMENT AND DECREE DT.28.01.2006 PASSED IN
O.S.NO.332/1986 ON THE FILE OF THE PRL.CIVIL JUDGE
(SR.DN.) UDUPI, DISMISSING THE SUIT FOR SPECIFIC
PERFORMANCE.
IN RFA.CROB No. 24 OF 2010
BETWEEN:
1. AHALYA
D/O LATE SHANKARANARAYANA VARAMBALLI
AGED ABOUT 62 YEARS
HOUSE HOLD
R/O P.V. RAO'S COMPOUND AT
KOLAMBE, CHANTAR VILLAGE
BRAHMAVARA
UDUPI TALUK AND DISTRICT
PIN-576 104
2. MEERA
D/O LATE SHANKARANARAYANA VARAMBALLI
AGED ABOUT 59 YEARS
HOUSE HOLD
R/O P.V. RAO'S COMPOUND AT
KOLAMBE, CHANTAR VILLAGE
BRAHMAVARA
UDUPI TALUK AND DISTRICT
PIN-576 104
3. JAYASHREE
D/O LATE SHANKARANARAYANA VARAMBALLI
AGED ABOUT 55 YEARS
4
HOUSE HOLD
R/O P.V. RAO'S COMPOUND AT
KOLAMBE, CHANTAR VILLAGE
BRAHMAVARA
UDUPI TALUK AND DISTRICT
PIN-576 104
ALL THE CROSS OBJECTORS ARE
REPRESENTED BY THEIR GENERAL POWER
OF ATTORNEY HOLDER
SRI. B. SUBRAYA VARAMBALLI
S/O LATE NARASIMHA VARAMBALLI
R/O TRIPURA VIHAR, SALIKERI
VARAMBALLI VILLAGE
BRAHMAVAR POST
UDUPI TALUK & DISTRICT
PIN:576 101
...CROSS OBJECTORS
(BY SRI. R.V. JAYAPRAKASH, ADVOCATE)
AND:
RAMANANDA VARAMBALLI
S/O LATE SHANKARANARAYANA VARAMBALLI
AGED ABOUT 60 YEARS
R/A PADUGARADI MANE
VARAMBALLI VILLAGE
BRAHMAVARA POST
UDUPI TALUK AND DISTRICT
PIN:576 104
...RESPONDENT
(BY SRI. K. SANATHKUMAR SHETTY, ADVOCATE)
THIS RFA.CROB IS FILED U/O-XLI, RULE-22, OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 28.06.2006
PASSED IN O.S.116/1983 ON THE FILE OF THE PRL. CIVIL
JUDGE, (SR. DN.), UDUPI, PARTLY DECREEING THE SUIT FOR
THE PARTITION AND SEPARATE POSSESSION.
THESE RFAs AND RFA.CROB HAVING BEEN RESERVED
FOR JUDGMENT COMING ON FOR PRONOUNCEMENT OF THIS
DAY, RAMACHANDRA D. HUDDAR J., DELIVERED/
PRONOUNCED THE FOLLOWING:
5
CORAM: HON'BLE MR. JUSTICE S.G.PANDIT
AND
HON'BLE MR. JUSTICE RAMACHANDRA D. HUDDAR
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR) The above captioned two Regular First Appeals i.e., Crob.24/2010 in RFA No.1187/2006 to decide the claim of the plaintiffs and contention of defendant no.1 in OS No.116/1983 and RFA No.1188/2006 to decide the claim of the plaintiff and contentions of defendants in OS No.332/1986.
2. Parties to these appeals are referred to as per their rank before the trial Court in a main suit i.e., in OS No.116/1983 for convenience.
3. Plaintiffs and defendant no.1 in the aforesaid suit being aggrieved and dissatisfied with the common judgment and decree dated 28th January 2006 passed by the Prl.Civil Judge (Sr.Divn.), Udupi in OS No.116/1983, 332/1986 and 255/1988 are before this Court and so far as judgment in OS No.255/1988 is concerned is not challenged before this Court.
6
The brief and relevant facts as set out by the plaintiffs in OS No.116/1983 are as follows:
4. It is evident from the pleadings of the parties in all of the aforementioned suits that the genealogical tree pertaining to the status of the parties to these appeals is shown as below:
GENEOLOGICAL TREE Shankaranarayana Varamballi (Died on 30-09-1971) Laxmiamma Sumathi @ Mahalaxmiamma (2nd Wife) (1st wife) - (2nd Deft) [Died in 1953] Ahalya Meera Jayashree Ramananda (Daughter) (Daughter) (Daughter) Varamballi (Pltff No.1) (Pltff No.2) (Pltff No.3) (Son) - (Deft No.1)
5. The aforesaid OS No.116/1983 was filed by the plaintiffs therein seeking partition and separate possession of their alleged 7/12th share in the suit schedule property. According to them, one Shankaranarayana Varamballi was the propositus who died on 30.9.1971. He had two wives by name Laxmiamma alias Mahalaxmiamma (the first wife) arrayed as defendant no.2 in the suit (who died 7 during the pendency of the suit). The second wife Sumathi, died in the year 1953. In the wedlock between Shankaranarayana and Sumathi, four children are born and they are plaintiff nos. 1 to 3 and defendant no.1 , as stated in the cause-title of the plaint. This genealogical tree is not disputed by both sides.
6. It is the specific case of the plaintiffs, that deceased Shankaranayrayana Varamaballi acquired the family properties in Dakshina Kannada District as per the Final Decree proceedings passed in OS 161/1961 by the Sub-Court of Mangaluru. He also acquired the landed properties in Kerala as per the terms of the final decree in a partition suit filed before the Sub-Court, Aleppi, in OS No.154/1957. On the advent of the Karnataka Land Reforms Act, the tenanted lands of the family in Dakshina Kannada District stood vested in the State Government. The family of the plaintiffs and defendant no.1 were constrained to receive compensation from the State Government. With regard to landed properties situated in Kerala, the position was different. It is stated by the plaintiffs that the family of Shankaranarayana continued to 8 enjoy their right to collect the rent arrears from the tenants subject to conditions.
7. Plaintiffs had confidence in Defendant no.1 being their brother who used to take care. Plaintiff nos. 1 and 2 are married and plaintiff no.3 remained unmarried.
8. It is stated that, prior to 28.9.1974, these plaintiffs empowered defendant no.1 as their power of attorney to represent them and take care of their interest with regard to properties situated in Kerala. Because of that power of attorney, defendant no.1 appears to have collected a huge amount by way of rent arrears. It is alleged that, on 30.5.1983, by practicing fraud upon the plaintiffs, the first defendant, by misrepresenting them, brought up a 'Karar' stated to have been signed by the plaintiffs and defendant no.1. The said document is an unregistered document and is not admissible in evidence. It is alleged that the said 'Karar' is not acted upon and none of the clauses in the said 'Karar' were satisfied by the defendant no.1. It is alleged that, in the said 'Karar', this defendant no.1 got included the properties owned by 9 the maternal grandmother Laxmiamma, as well as the properties standing in the name of defendant no.1. But they were not parties to the said Karar. Even the first defendant got allotted more portions for himself, like "Garadi Mane." The second defendant acquired 1/15th share in the family properties upon the death of her husband Shankaranarayana. Because of the conduct of the defendant no.1, these plaintiffs issued notice to the defendant no.1. on 5.9.1983 and called upon him to effect partition and separate possession of the family properties and allot them their legitimate share by metes and bounds. Despite receipt of the said notice, defendant no.1 did not comply with the contents of the notice. Therefore, the plaintiffs filed a suit seeking the relief of partition and separate possession of their share in their family properties.
9. In the suit, defendant no.1 appeared and admits the relationship with the plaintiffs but, denies the rest of the assertions made in the suit by filing written statement. The first defendant asserts that, both himself and his father (Shankaranarayana) acquired rights in the 10 properties in their individual capacities. First defendant claims that, he is entitled for 6/10th share in the property, not the 4/10th share as claimed by the plaintiffs. The second defendant, according to the defense, is entitled to maintenance from the properties listed in Execution Case No. 121/1970. The first defendant contends that, the parties involved (including the plaintiffs) had agreed to settle the dispute through settlement, in the presence of two senior advocates, B.Y. Holla and H.S. Kedlaya, on 30th May 1983 (as per the agreement marked as Ex.D1). He claims that, this settlement was binding on plaintiffs. He further asserts that, Laxmiamma acknowledged receiving of consideration related to the settlement, as evidenced by the accounts provided to her. The settlement provided for the registration of the partition deed after some specified period. The first defendant emphasizes that, the plaintiffs were aware of the settlement and had participated in the agreement (Ex.D1). Since the plaintiffs were parties to this agreement, it is contended they cannot now seek a fresh partition, as it would be in violation of the terms of the Ex.D1. The first defendant highlights that he spent 11 sufficient money on the marriages of plaintiff nos. 1 and 2 and their maintenance until their marriage.
10. It is further contended that, the second defendant died leaving behind a registered Will dated 3.2.1992 which was duly executed by her in a sound state of mind in favour of first defendant bequeathing all her undivided interest in the joint family properties. Therefore, plaintiffs are not entitled for any share as claimed. He prayed to dismiss the suit.
11. In OS No. 332/1986, the first defendant in the main suit is seeking specific performance of an agreement for partition (referred to as Ex.D1 or the "Karar") entered into between himself and the plaintiffs on 30th May 1983. The first defendant reiterates that, both he and the plaintiffs are children of Shankaranarayana Varamballi (who had a second wife by name Sumathi). The first defendant claims that, the properties possessed by Shankaranarayana Varamballi were acquired by him through a final decree in OS No. 161/1961 (a previous suit), which was passed in the Sub-Court, Mangalore and 12 the Sub-Court, Aleppi. According to the first defendant, Shankaranarayana's share in the properties has been inherited by the second defendant and himself, while the plaintiffs have no right to claim their right in the same. The first defendant asserts that, he has spent a substantial amount of money on the maintenance of the plaintiffs as well as the marriage expenses of plaintiff nos. 1 and 2. The first defendant emphasizes that, the agreement dated 30th May 1983 (Ex.D1), which is described as an agreement of partition, should be enforced. The primary relief sought in this suit is decree for the specific performance of this agreement Ex.D1. It is contended that, since the plaintiffs are parties to the agreement Ex.D1, he seeks a legal declaration to ensure that the partition takes place as per the agreed terms.
12. In response to the suit summons, defendants 1 to 3 (i.e., plaintiffs in OS No. 116/1983) appeared and filed their written statement contending that, the partition agreement was fraudulently obtained. They never agreed to its terms and conditions. The defense of defendant in this suit rests on claims of fraud, misrepresentation, and 13 non-compliance of the terms of agreement. They further contend that, the plaintiff is not entitled to the relief sought and requested to dismissed the suit.
13. Based upon the rival pleadings of both the parties, the learned trial Court framed issues in OS No.116/1983 and 332/1986 as under:
(i) Whether the first defendant proves that the properties in Kerala and Dakshina Kannada Districts were acquired by him and Shankaranarayana Varamballi in equal shares on their own individual right?
(ii) Whether the first defendant proves that the deceased had incurred huge debts and they are to be met out from his shares of the properties?
(iii) Whether suit is bad for partial partition?
(iv) Whether plaintiffs prove that "B" and "C"
schedule properties are available for division?
(v) What is the correct annual income from plaint "A" schedule properties?
(vi) Whether first defendant proves that the
plaintiffs are liable to account for, as
contended in para 7 of the written statement? 14
(vii) Whether plaintiffs prove that Karar is brought about by fraud or misrepresentation?
(viii) Whether valuation made for the purpose of Court fee and jurisdiction is proper?
(ix) To what shares, the plaintiffs are entitled to?
(x) Whether plaintiffs are entitled for the suit claim?
(xi) Whether first defendant is entitled for compensatory costs under Sec.35-A CPC?
(xii) What order or decrees?
Addl. Issue:
(i) Whether the 1st defendant proves that deceased 2nd defendant has executed a registered will dated 3.2.1992 in his favour?
14. All the aforesaid suits were consolidated together, common evidence is recorded, common arguments were heard and common judgment was passed.
15. To substantiate the case of the plaintiffs, their power of attorney by name B.Subraya Varamballi entered the witness box as PW.1 and got marked Ex.P1 to P22 and closed plaintiffs evidence. To rebut the evidence of 15 plaintiffs, defendant no.1 entered the witness box as DW.1 and also examined three witnesses by name B.Y.Holla, Narayana Poojary and Dayananda Nayaka as DW2 to 4 and got marked Ex.D1 to D4 and closed defendant's evidence.
16. The learned trial Court on hearing the arguments of both sides and on evaluation and assessment of evidence, passed the impugned judgment and decree. The operative portion of the order reads as under:
"O.S.No.116/1986 is decreed in part. Plaintiff Nos.1 and 2 are each entitled for 1/15th shares, plaintiff No.3 and defendant No.1 are entitled for 6/15 and 7/15 share respectively in the plaint 'A' and 'C' schedule properties.
Their claim is regard to 'B' schedule properties is dismissed.
Draw a preliminary decree in O.S. No.116/83 accordingly.
O.S. No.332/1986 is dismissed.
O.S. No.255/1988 is decreed as prayed for."16
17. The common decision rendered in the aforementioned suits is currently contested by the appellants and cross-objectors before this Court. The trial Court records are secured.
Submission of counsel for appellant-defendant No.1
18. The learned counsel for the appellant-defendant No.1 strongly argues that while the relationship between the parties and the status of the properties are acknowledged, the parties are bound by the terms of agreement dated 30.5.1983, which is evidenced by Ex.D1. This agreement, according to the counsel, was signed by all the plaintiffs and defendant No. 1, and as such, the only appropriate course of action for the parties is to get executed a registered partition deed based on the terms of this agreement. The counsel further contends that the plaintiffs, being aware of the contents of Ex.D1, cannot now deny its validity or terms. He would further assert that, PW1, who is the power of attorney holder, is the primary instigator behind filing the suit for partition and is, in fact, ignorant about the actual facts of the case. In his view, since the plaintiffs have refrained from testifying 17 PW1's testimony, holds no legal value and should not be considered. Additionally, the counsel highlights the testimony of DW1 i.e., the defendant-appellant, who explicitly stated that the plaintiffs and defendant No. 1 had a clear understanding of Ex.D1. This agreement was signed in the presence of the plaintiffs' senior and reputable advocates from Udupi, thus reinforcing its legitimacy. The counsel argues that since the dispute concerning the partition was already settled under Ex.D1, the plaintiffs cannot now seek a new partition. Therefore, the terms of Ex.D1 should be enforced. Finally, the counsel would submit that, there was a delay in executing the partition as per Ex.D1, which led defendant No. 1 to file a suit for specific performance (OS No. 332 of 1986) in the Court of the Principal Senior Civil Judge, Udupi. Despite this, the trial court dismissed the suit in OS No. 332/1986 and ruled in favor of OS No. 116/1983, which the appellant-defendant No. 1 contends was erroneous, as the trial court failed to appreciate the evidence from the attesting witnesses to Ex.D1 and the testimony of DW1. 18
19. In support of his submission, the learned counsel for appellant/defendant no.1 took us through evidence of PW.1 and DWs 1 to 4 at length and also the documents relied upon by both the parties. He relied upon the following judgments:
(i) Rudrawwa v. Balawwa & Another - 1967(1) MLJ
(ii) Bishundeo Narain and Another v. Seogeni Rai and Other - 1951 SCC 447 - 1951 SCC Online SC 34
(iii) Ram Charan Das v. Girja Nandini Devi and Others, 1965 SCC OnLine SC 17
(iv) Maturi Pullaiah Alias Naga Pullaiah and Another v. Maturi Narasimham and Others 1966 SCC OnLine SC 91
(v) S. Shanmugam Pillai and Others v. K. Shanmugam Pillai and Others, (1973) 2 SCC 312
(vi) M.N. Aryamurthy and Another v. M.D. Subbaraya Setty (Dead) through LR and Others, (1972) 4 SCC 1
(vii) M. Gnanasambandam (since deceased), S/o.
Late A. Muthiah and 3 others. [Applicants 2 to 4 brought on record as L.Rs: of the deceased first applicant as per order dated 8.8.2007 in Appln. No. 5539 of 2007] v.
M. Raja Appar, S/o. Late A. Muthiah, No. 1 (Old No. 16), Singra Street, T. Nagar, Chennai-600017 and 4 others - 2009 SCC OnLine Mad 465 19
(viii) Sodhi Transport Co. and Others v. State of U.P., and Others - (1986) 2 SCC 486
(ix) Bihar State Electricity Board, Patna and Others v. M/s. Green Rubber Industries and Others - (1990) 1 SCC 731
(x) Iswar Bhai C. Patel Alias Bachu Bhai Patel v.
Harihar Behera and Another - (1999) 3 SCC 457
(xi) Sarwan Singh v. State of Punjab - (2003) 1 SCC 240 Submission of counsel for respondents-plaintiffs:
20. The learned counsel for the respondents-
plaintiffs, Sri R.V. Jayaprakash, counters the submissions made by the appellant-defendant No. 1 and refutes all the assertions raised in his favor. According to plaintiffs' counsel, defendant No. 1, being the brother of the plaintiffs, was in a fiduciary relationship with them. The plaintiffs had placed their trust and confidence in defendant No. 1. The counsel argues that, defendant No. 1 took advantage of this trust by committing fraud upon the plaintiffs, created Ex.D1 the agreement in question. Furthermore, the counsel highlights that, the terms of Ex.D1 were not even adhered to by defendant No. 1, undermining its validity. The counsel asserts that, the 20 plaintiffs are not required to specifically plead and prove fraud, as the fiduciary relationship between the parties itself raises a presumption of undue influence and fraud. He relies on Section 111 of the Indian Evidence Act, 1872, which relates to presumptions in cases involving fiduciary relationship. He would submit that, this provision supports the argument that the plaintiffs' claim of fraud is valid due to the nature of their relationship with defendant No. 1. Additionally, the counsel argues that, the plaintiffs, being the daughters of Shankaranarayana, are entitled to equal share in the joint family properties as per the provisions of the Hindu Succession Act particularly in the light of the amendment to Section 6 of the Act in 2005. The amendment recognizes the daughters as coparceners with equal rights in the ancestral property and the counsel submits that this entitles the plaintiffs to a share in the suit properties by metes and bounds. He points out that, despite the pending suit, the plaintiffs' rights to an equal share cannot be denied based on the change in law. Regarding the so-called agreement (Ex.D1), the counsel rejects its enforceability. He argues that defendant No. 1's 21 suit for specific performance in OS No.332/1986 is an afterthought and cannot be upheld. Therefore, he supports the findings of the trial court in decreeing the plaintiffs' suit and dismissing the suit filed by defendant No. 1. In essence, the counsel for the plaintiffs maintains that the plaintiffs are entitled to their rightful share in the property, based on the amended Hindu Succession Act, and that the alleged agreement (Ex.D1) should not be enforced due to the fraudulent manner in which it was created.
21. We have given our anxious consideration to the arguments of both sides and perused the material placed on record.
22. In view of the rival submissions of both sides, the points that would arise for our consideration are:
i) Whether the learned trial Court is justified in ignoring Ex.D1 'Karar' and granting preliminary decree in favour of plaintiffs by passing impugned judgment and decree?
ii) Whether defendant no.1 being the plaintiff in OS No.332/1986 is right in claiming enforcement of agreement Ex.D1 dated 30.5.1983 as claimed by him?22
iii) Whether the judgment and decree of the trial Court require interference by this Court?
iv) What order?
Point Nos. 1 and 2 are discussed together:
23. The core issue in these appeals revolves around whether the learned trial Court was justified in disregarding Ex.D1 "Karar" (agreement) and granting a preliminary decree in favor of the plaintiffs. To address this, it is necessary to first examine certain facts that are agreed upon by both parties in the litigation.
24. It is an undisputed fact that the plaintiffs filed a suit (OS No. 116 of 1983) in the Court of the Principal Senior Civil Judge, Udupi, seeking partition and separate possession of the suit schedule properties. Meanwhile, defendant No. 1 filed a separate suit (OS No. 332 of 1986) against the plaintiffs and others, seeking the enforcement of the agreement marked as Ex.D1 which was a suit for specific performance of the contract. As per the facts presented by the plaintiffs in their plaint, it is admitted that, Shankaranarayana Varamballi acquired certain 23 properties in Dakshina Kannada District through a decree passed by the Civil Sub-Court in Mangaluru. Additionally, Shankaranarayana also acquired properties in the Kerala State under the provisions of the Kerala Land Reform Act, through decrees passed by the Sub - Court in Aleppi. These facts are not in dispute between the parties. The controversy, therefore centres on whether the trial court erred in ignoring the agreement (Ex.D1) that defendant No.1 seeks to enforce and whether it was correct to proceed with granting a preliminary decree for partition in favor of the plaintiffs. The next step would be to delve into the legal implications of Ex.D1, the relationship between the parties, and the relevance of the amendments to the Hindu Succession Act as argued by both sides.
25. The plaintiffs have made specific allegations against defendant No.1, claiming that he, the elder brother, was entrusted with the responsibility of collecting rents from the properties situated in Kerala which were part of the family estate. According to the plaintiffs, defendant No.1 misused this responsibility and misappropriated a significant amount of rent, which had 24 accumulated as arrears. It is further alleged that, prior to 28.9.1974, the plaintiffs had given defendant No. 1 power of attorney to act on their behalf with respect to these Kerala properties. However, the plaintiffs contend that on 30.5.1983, defendant No. 1 took advantage of their trust by fraudulently misrepresenting facts and made them to sign an agreement (Ex.D1), which was a document that the plaintiffs now claim as fabricated or obtained under false pretences. This document is an unregistered agreement, and its validity is disputed as it has not been executed or acted upon in the manner stated. Additionally, the plaintiffs argue that Ex.D1 is flawed because it wrongfully includes the property of their grandmother Laxmiamma, which they claim should not have been part of the agreement. The plaintiffs also point out that defendant No. 1, despite having only a 1/15th share in the family property, took possession of more than his entitlement including the properties of the second defendant (the mother), who had passed away. Before filing their suit for partition, the plaintiffs issued a notice on 5.9.1983, requesting defendant No. 1 to effect partition 25 and provide separate possession of the family properties. Despite receiving this notice, defendant No. 1 did not take any action to divide the property or fulfil their request. whereas, Defendant No. 1, in his defence, justifies the agreement (Ex.D1) as a resolution of the family dispute, which was supposedly agreed upon in the presence of two senior reputed advocates. He argues that the plaintiffs, along with defendant No. 2 (during her lifetime), had agreed to the terms made out in Ex.D1. According to defendant No. 1, since this dispute over the family property was already resolved by the agreement, the plaintiffs are not entitled to seek a fresh partition.
26. The plaintiffs contend that it was obtained through fraud, while the defendant argues it was a fair agreement, and thus, they claim that the matter is already settled. The trial court's decision to grant a preliminary decree for partition suggests that, it did not accept defendant No. 1's justification regarding Ex.D1 or the claim that the dispute was already resolved through the agreement. The plaintiffs' insistence on their rights to the property under the amended Hindu Succession Act and 26 their claims of fraudulent conduct by defendant No. 1, form the basis for their claim for partition and separate possession.
27. In this case, plaintiffs presented their evidence through P. Subraya Varamballi, who entered the witness box as their power of attorney holder. His testimony aligned with the contents of the plaint and supported the plaintiffs' case. He categorically stated that, the so-called agreement (Ex.D1) had not been implemented or properly acted upon, and that no partition of the family properties had taken place. According to him, there was no partition at all in the family properties, which contradicts the defendant No. 1's claim that a settlement was reached through Ex.D1. Subraya Varamballi, in his deposition, relied on a series of documents, marked as Ex.P1 to Ex.P17, to substantiate his evidence. These documents were introduced to support the plaintiffs' claims and to challenge the validity of Ex.D1. Despite being thoroughly cross-examined by defendant No. 1's counsel who conducted a detailed and exhaustive cross-examination Subraya Varamballi remained consistent in his testimony. 27 He emphasized that the plaintiffs never agreed to the contents of Ex.D1 and had not signed it voluntarily or knowingly. Furthermore, in the cross-examination, it was revealed that until 1990, Subraya Varamballi acted as the power of attorney for the plaintiffs managing their legal and property matters. After that period, the plaintiffs themselves pursued their respective suits. This information could serve to highlight that, even if Subraya Varamballi was acting on their behalf at some point, it was only with the plaintiffs' consent and his actions were in line with their interests.
28. While the defendant no.1 relies heavily on Ex.D1 as the basis for enforcing the agreement, the plaintiffs have countered this by presenting a consistent narrative through PW1's testimony and supporting documents. The absence of objections to the documents presented by the plaintiffs further strengthens their case demonstrating that the properties in question are located in two States which must be considered in the partition proceedings.
28
29. The plaintiffs rely on a notice they issued to Defendant No.1 on September 5, 1983, which is marked as Ex.P18. This notice called upon Defendant No.1 to initiate partition of the family properties and allot the respective shares. The notice was duly served on Defendant No.1, as evidenced by the postal acknowledgment marked Ex.P19. The receipt of this notice by Defendant No.1 is not disputed. Additionally, Defendant No.2 (Laxmiamma, now deceased) also issued a notice to Defendant No.1, marked as Ex.P22. The contents of this notice are similarly not denied by Defendant No.1.
30. Defendant No.1 provided oral evidence by entering the witness box as DW.1. He admitted his relationships with the plaintiffs, himself, and Defendant No.2. He acknowledged that Plaintiff Nos. 1 and 2 are married while Plaintiff No.3 is unmarried. According to DW.1, he spent substantial amount on the marriages of Plaintiff Nos.1 and 2. DW1 also admitted about collecting rent from the family's landed properties and receiving compensation for properties vested in the Government, which were subsequently granted to respective tenants 29 under the Kerala Land Reforms Act. This indicates that DW.1 acted in a fiduciary capacity concerning the plaintiffs, handling substantial sums from rent and compensation related to the tenanted properties. On oath, DW.1 expressed his willingness to abide by the terms of Ex.D1 which he claims to be a valid agreement. However, the plaintiffs dispute Ex.D1 alleging that it was never acted upon and that they did not agree to its terms. The plaintiffs assert that Defendant No.1 procured their signatures on Ex.D1 styled as a "Karar" or agreement, through fraud and misrepresentation.
31. The case primarily hinges on the interpretation of Ex.D1. A detailed examination of Ex.D1 reveals that certain properties were allotted to the plaintiffs while most of the properties were retained by Defendant No.1. Since the plaintiffs dispute the validity of Ex.D1, it cannot be assumed that they have accepted it. Consequently, the burden of proving the contents and validity of Ex.D1 lies on Defendant No.1. Defendant No.1 examined DW2, P. Yogeshwara Holla, a Senior Advocate who claims to have been present when Ex.D1 was executed. DW.2 testified 30 that another advocate, H.S. Kedlaya, was also present during the preparation of Ex.D.1. He identified other documents, including Ex.D3, and confirmed his signature on Ex.D1, stating that he signed it at in advocate's office in Udupi. However, under cross-examination, DW.2 admits that, he does not know who instructed for the preparation of Ex.D1, the basis for drafting it, or its intended purpose. He stated that he signed Ex.D.1 simply because the scribe asked him to sign. This testimony weakens Defendant No.1's defence as DW2, despite being a witness to Ex.D1, demonstrated ignorance about its contents and the reasons for its execution. As such, DW2's evidence does not help to establish Ex.D1 as a valid and binding document in support of Defendant No.1's case.
32. DW.3 Narayana Poojari was examined by Defendant No.1 regarding the injunction obtained by the plaintiffs against Defendant No.1. He deposed that, the plaintiffs had filed a suit against Defendant No.1 and that an appeal is currently pending before the Appellate Court. DW.3 also acknowledged that there is ongoing litigation between himself and PW1, one of the plaintiffs. This raises 31 the possibility that DW3's testimony against the plaintiffs may have been influenced by his personal disputes with PW1, a factor that cannot be entirely ruled out.
33. DW.4 Dayananda Nayak was examined as a witness to Ex.D4, a document presented by Defendant No.1 to demonstrate that Mahalaxmiamma, during her lifetime, executed a Will bequeathing her properties to Defendant No.1. However, documents Ex.P20 and Ex.P22 reveal that Mahalaxmiamma had issued notices to Defendant No.1 questioning his actions. These notices indicate the lack of trust in Defendant No.1 making it highly improbable that she would have executed a Will in his favor. Therefore, the testimonies of DW.2 to DW.4 fail to substantiate the defense of Defendant No.1 in any meaningful way. This concludes the review of the factual aspects presented by both sides.
34. To interpret Ex.D1, reference must be made to the provisions of the Indian Evidence Act to evaluate its genuineness, validity, and whether it grants Defendant No.1 the right to enforce it. Defendant No.1 has admitted 32 that Ex.D1 is an agreement, and the schedule properties mentioned therein include family properties located in both Karnataka and Kerala. Counsel for Defendant No.1 argues that the main relief sought in the suit for specific performance hinges on the existence of the agreement with its specific terms and conditions ensuring that it does not violate Section 29 of the Indian Contract Act, 1870 (which addresses agreements void for uncertainty). A close reading of Ex.D1 reveals that it includes obligations to be performed by Defendant No.1. Notably, Condition Nos. 9, 10, 11, and 12 impose specific responsibilities on Defendant No.1 including the payment of money and compliance with the terms and conditions of agreement. These conditions highlight the obligations Defendant No.1 was required to fulfil under Ex.D1. For better appreciation, these conditions are incorporated as under:
"9. ºÉÆgÀV¤AzÀ §gÀvÀPÀÌ ºÀtUÀ¼À£ÀÄß ªÀ¸ÀÆ®Ä ªÀiÁqÀ®Ä AiÀiÁ ¸À®èvÀPÀÌ ºÀtUÀ¼À£ÀÄß ¸À°è¸À®Ä 1£Éà AiÀĪÀ£Éà ¸ÀA¥ÀÆtð dªÁ¨ÁÝgÀ£ÁVgÀĪÀÅzÀjAzÀ D ¨Á§ÄÛ 2jAzÀ 4£ÉÃAiÀĪÀgÀÄ AiÀiÁªÀ ªÁådåzÀ°èAiÀiÁzÀgÀÆ ¸ÉÃgÀ¨ÉÃPÁzÀ ¸ÀAzÀ¨sÀðzÀ°è CªÀgÀÄ 1£ÉÃAiÀĪÀ£À eÉÆvÉ ¸ÉÃgÀvÀPÀÌzÀÄÝ AiÀiÁ CzÀPÉÌ vÀPÀÄÌzÁzÀ ºÀPÀÄÌ ¥ÀvÀæªÀ£ÀÄß §gÀPÉÆqÀvÀPÀÌzÀÄÝ. CzÀjAzÁV 1£ÉÃAiÀĪÀ¤UÉ AiÀiÁªÉÇAzÀÆ vÉÆAzÀgÉAiÀiÁUÀPÀÆqÀzÀÄ ºÁUÀÆ 2jAzÀ 4£ÉÃAiÀĪÀjUÉ AiÀiÁªÉÇAzÀÆ dªÁ¨ÁÝj ©Ã¼ÀPÀÆqÀzÀÄ.
10. ªÁgÀA§½î UÁæªÀÄzÀ ¸À,£ÀA§æ 141-8 £ÀAd 0.48 ¸ÉAmïì£À°è ªÀPÀÌ°UÉ ºÉÆÃzÀ 0-45 ¸ÉAlÄì ºÉÆÃUÁÛ «ÄPÀÄ̽zÀ 0-03 ¸ÉAlÄì ¸ÀÛ¼ÀzÀ°è MAzÀÄ PÀ®Äè PÀnÖzÀ PÉgÉ EzÀÄÝ ¸À¢æ ¸ÀÛ¼ÀªÀ£ÀÄß 2jAzÀ 4£ÉÃAiÀĪÀgÀ © ±ÉqÀÆå°UÉ ¸ÉÃj¹AiÀÄzÉ. ¸À¢æ PÉgÉAiÀÄ §UÉÎ gÀÆ. 3,000 33 PÀæAiÀÄ PÀnÖzÀÄzÀjAzÀ D ¨Á§ÄÛ 2jAzÀ 4£ÉÃAiÀĪÀgÀÄ 1£ÉÃAiÀĪÀ¤UÉ gÀÆ.1,850 vÉgÀvÀPÀÌzÁÝVgÀÄvÀÛzÉ.
11. CzÉà jÃw ªÁgÀA§½î UÁæªÀÄzÀ ¸À,£ÀA§æ 145-1 ¥ÀÄAd ¥ÉÊQ 0-30 ¸ÉAlÄì ºÁr ¸ÀÛ¼ÀªÀ£ÀÄß £ÀªÀÄä ¥ÉÊQ 1£ÉÃAiÀĪÀ£À J ±ÉqÀÆå°UÉ «AUÀr¹AiÀÄzÉ. ¸À¢æ ¸ÀÛ¼ÀzÀ ¨Á§ÄÛ gÀÆ. 3,000 PÀæAiÀÄ PÀnÖzÀÄzÀjAzÀ D ¨Á§ÄÛ 1£ÉÃAiÀĪÀ£ÀÄ 2jAzÀ 4£ÉÃAiÀĪÀjUÉ 1,125 vÉgÀvÀPÀÌzÀÄÝ.
12. F PÀgÁgÀÄ FUÀ £ÀªÉÄä®ègÀ ¨ÁQ EgÀĪÀ ªÁådåUÀ¼À°è FUÀ EgÀĪÀ ¸ÁzsÀ£ÉUÀ½UÉ AiÀiÁ E£ÀÄß ªÀÄÄAzÉ 1£ÉÃAiÀĪÀ£ÀÄ ªÀiÁqÀĪÀ ¸ÁzsÀ£ÉUÀ½UÉ ¨sÁzÀPÀªÁUÀ PÀÆqÀzÀÄ. CzÉà jÃw E£ÀÄß ªÀÄÄAzÉ £ÀªÀÄä ªÉÄÃGÉ ªÀiÁqÀ§ºÀÄzÁzÀ AiÀiÁ ªÀiÁqÀĪÀ AiÀiÁªÀ ªÁådåUÀ½UÀÆ 1£ÉÃAiÀĪÀ£ÀÄ AiÀÄÄPÀÛ PÀAqÀ jÃwAiÀÄ°è ªÀiÁqÀĪÀ ¸ÁzsÀ£ÉUÀ½UÉ ¨sÁzÀPÀªÁUÀPÀÆqÀzÀÄ. AiÀiÁ D jÃw ¨sÁzÀPÀªÁUÀĪÀAvÉ 2jAzÀ 4£ÉÃAiÀĪÀgÀÄ ªÀwð¸ÀPÉÆqÀzÀÄ."
35. Defendant No.1 has not demonstrated compliance with the conditions stipulated in Ex.D1. Under the provisions of Section 29 of the Indian Contract Act, 1870, the enforceability of a contract hinges on fulfilling any preconditions outlined in the agreement. This raises the question whether Defendant No.1 can seek relief for specific performance of the contract without first complying with these pre-conditions. The foundation of Defendant No.1's case is the alleged agreement (Ex.D1) entered into on May 3, 1983, between the parties. According to Defendant No.1, the plaintiffs agreed to the terms and conditions of Ex.D1. However, the pleadings and the evidence presented by PW.1 do not specify any clear timeline or deadlines by which Defendant No.1 was required to fulfill these conditions. Ex.D1 mentions some 34 time-bound stipulations, but Defendant No.1 has not complied with them. Therefore, without adhering to these terms, Defendant No.1 cannot claim the right to specific performance of the contract. On the other hand, the plaintiffs deny the existence of any such agreement as described in Ex.D1. Their position is that Defendant No.1, as their elder brother was entrusted with managing family properties and their welfare. He held a power of attorney, overseeing properties located in Kerala collecting rents from tenants, and receiving compensation under the Kerala Land Reforms Act for lands granted to tenants. During cross-examination, PW1 consistently asserted that the plaintiffs never consented to the terms or contents of Ex.D1. This further supports their claim that the agreement was neither valid nor mutually accepted.
36. It is true that DW.2 was examined as an attesting witness to the alleged agreement (Ex.D1). However, as previously noted, DW.2 expressed complete ignorance about the basis for the execution of Ex.D1. He testified that the agreement was prepared at the direction of a scribe and he signed it accordingly. This indicates that 35 the agreement was not entered into with the informed consent of all parties. Furthermore, the agreement has not been acted upon. The plaintiffs issued a notice to Defendant No.1 requesting partition of the family properties. This act clearly demonstrates their non- acceptance of the terms of Ex.D1 and supports their claim that it is a fraudulent document. Notably, Defendant No.1 has not denied receiving this notice. In light of these facts, the provisions of the Indian Contract Act must be applied while interpreting Ex.D1, particularly to assess its genuineness and enforceability. To interpret the validity of Ex.D1, we may draw guidance from Lord Halsbury's statement in Laws of England (Vol. 20, Section 1745), which provides clarity on the legal consequences of contracts induced by misrepresentation, whether fraudulent or innocent. It states:
"Where the representee has been induced by misrepresentation, whether fraudulent or innocent, to enter into a contract or transaction with a representor which, unless and until rescinded, would be binding on the parties, such a contract or transaction is voidable at the option of the representee. This means that the representee, on discovery of the truth, has a right to elect whether he will affirm or disaffirm the contract or transaction, and if he adopts the 36 latter course, is entitled to give notice to the representor of repudiation and demand from him a complete restoration of the status quo. In the event of his demand not being complied with, he may, subject to certain conditions and affirmative defenses, maintain an action or analogous proceedings for the purpose of having the contract or transaction declared void and rescinded by the Court, in which event it is deemed to have been void ab initio."
37. Applying this principle to Ex.D1, if the plaintiffs were induced into the agreement by fraud or misrepresentation, they have the legal right to repudiate it upon discovering the truth. The issuance of a notice to Defendant No.1 requesting partition suggests such repudiation. If proven, this would render Ex.D1 void ab initio, and the Court may declare it as such to restore the original position of the parties.
38. As Indian law is influenced by common law, many principles laid down in English cases have been adopted by the Privy Council and Indian courts, becoming binding precedents. While it is not always necessary to refer directly to English law, the principles articulated in Halsbury's Laws of England and other English decisions can be appropriately applied to the facts of this case. The 37 principle of Restitutio ad integrum, which seeks to restore both parties to their original position, is relevant here. For the representees (plaintiffs) to obtain complete restitution, they must reciprocate by making necessary repayments, retransfers, or reconveyances. However, in this case, Defendant No.1 has failed to fulfil the terms and conditions stipulated in Ex.D1 including obligations such as monetary payments to the plaintiffs and Defendant No.2. Since Defendant No.1 has not complied with these obligations, the instrument styled as a "Karar" (Ex.D1) holds no legal validity. Additionally, the plaintiffs have specifically alleged that Defendant No.1 practiced fraud in obtaining their agreement to Ex.D1, further undermining its legitimacy. Thus, Ex.D1, without compliance and in light of allegations of fraud, cannot be recognized as a valid and enforceable document under the law.
39. The learned author in Bigelow on Fraud (pages 75 to 79) provides a comprehensive analysis of the types of rescission available under the law. According to Bigelow, there are three main classes of cases in which rescission can be achieved, each with its own mode of 38 execution: rescission in Pais, judicial rescission, and rescission by plea (or answer). Bigelow explains that rescission in Pais (extrajudicial rescission) is rarely effective on its own. On the other hand, rescission by plea or answer can be fully effective in certain cases. Judicial rescission, the most formal type, can be divided into two subcategories: one acts as a substitute for rescission in Pais, while the other is employed when acts of repudiation in Pais are insufficient to rescind the contract or restore the original status quo. Judicial rescission, as described by Bigelow, is particularly significant in cases involving fraud. It serves as the remedy for fraud in real estate transfers, according to general common law, and may also apply to fraud in specialty contracts or other agreements where tender and demand are inadequate or impractical. This remedy is also relevant in situations where no tangible exchange has occurred, preventing a typical tender from taking place, yet where an allegation of fraud might not provide sufficient relief without judicial intervention.
40. In the present case, the plaintiffs alleged that Defendant No.1 created the agreement Ex.D1 through 39 fraudulent means, rendering the contract voidable under the Indian Contract Act, 1870. The plaintiffs have exercised their right to unilaterally repudiate the contract by issuing a notice and filing a suit, thus asserting their right to rescind the agreement due to its fraudulent nature. Before analysing, we have to read the provisions of Indian Contract act as under:
"Section 2(1) of the Indian Contract Act, 1870 defines a voidable contract as: "An agreement which is enforceable by law at the option of one or more of the parties thereto, but not at the option of others, is a voidable contract." This provision indicates that if a contract is tainted by fraud, the affected party has the option to either enforce or void the contract. It is their choice, which must be exercised within the framework of the law.
Section 10 states: "All agreements are contracts if they are made by the free consent of parties competent to contract, for a lawful consideration and with a lawful object, and are not hereby expressly declared to be void." This section establishes that for an agreement to be valid, it must be entered into freely by competent parties with lawful consideration and purpose. The presence of fraud undermines the principle of free consent, making the agreement voidable.
Section 14 elaborates that: "Consent is said to be free when it is not caused by coercion and undue influence, fraud, misrepresentation, or mistake." This reinforces 40 that if consent is obtained through fraud, the agreement cannot be considered freely made and is, therefore, not valid as a binding contract unless affirmed by the aggrieved party.
Section 19A states: "When the consent to an agreement is caused by coercion, undue influence, fraud, or misrepresentation, the agreement is voidable at the option of the party whose consent was so obtained. Any such contract may be set aside either absolutely, or if the party who was entitled to avoid it has received any benefit there under, upon such terms and conditions as the court may deem just." This section specifically outlines that a contract obtained through fraudulent means is voidable at the option of the party whose consent was induced by fraud. The aggrieved party has the right to either avoid the contract entirely or seek a remedy that adjusts for any benefit they may have received.
41. As the plaintiffs have alleged fraud, Ex.D1 is a voidable contract as per Section 2(1). Their contention that they never agreed to the terms of Ex.D1 align with Sections 10 and 14 which assert that an agreement without free consent due to fraud is not enforceable. Section 19A further supports the plaintiffs position, establishing that they have the right to repudiate the agreement. The plaintiffs unilateral action in issuing a notice and filing a suit is consistent with their right to avoid the contract, asserting that they never consented to 41 it due to fraudulent misrepresentation. The intention behind Sections 19 and 19A is to protect parties from contracts formed under undue influence or fraud, giving them the power to nullify the agreement and restore the status quo. The plaintiffs' case demonstrates that Ex.D1 is voidable due to the alleged fraud. The contract cannot be enforced as the plaintiffs have not consented freely due to the fraudulent actions of Defendant No.1. The relevant provisions of the Indian Contract Act, when applied to the facts at hand, clearly indicate that the plaintiffs are entitled to seek rescission of Ex.D1 and can have it declared void if their allegations are proven.
42. To address the issue at hand, we need to analyze the facts in conjunction with the relevant legal provisions to determine whether Defendant No.1 can claim specific performance of Ex.D1, and whether the plaintiffs are entitled to their share in the suit properties. Section 92 of the Indian Evidence Act, 1872 is significant when examining the admissibility of oral evidence in relation to written agreements. It generally excludes oral evidence to vary, add, or contradict the terms of a written document. 42 However, Proviso 3 to Section 92 allows oral evidence to be admissible to prove the existence of a separate oral agreement that forms a condition precedent for the obligations under the written document. This implies that if Defendant No.1 wishes to rely on Ex.D1, it must be proved that the document was duly executed, valid, and not tainted by fraud or any other infirmity. The burden of proof lies with Defendant No.1 to establish the validity of Ex.D1. This includes proving that the document was executed in accordance with the law and that the conditions stipulated in it were met. The fact that Ex.D1 is not a registered document raises questions about its enforceability and its status as a valid contract, especially when it is disputed by the plaintiffs.
43. The plaintiffs, acting in good faith and as parties who trusted Defendant No.1 are not required to plead or prove fraud or misrepresentation as a defence if they can demonstrate their genuine belief in the legitimacy of the agreement. In support of this, the Hon'ble Supreme Court has addressed the scope of Section 111 of the Indian Evidence Act, which deals with the presumption of 43 good faith. It has been held that, "if a party acts in good faith, there is no need to prove fraud or misrepresentation unless the other party produces substantial evidence to challenge the integrity of their actions." Defendant No.1 is the appellant and is attempting to claim specific performance of Ex.D1, it is incumbent upon them to provide cogent evidence of the document's execution and validity. If Ex.D1 is not proved to have been executed properly, the question would be whether it is authenticated and enforceable as a valid document. Without proving Ex.D1, Defendant No.1 cannot claim specific performance of the agreement or seek enforcement of any rights arising from it. If Defendant No.1 fails to establish the validity of Ex.D1, the plaintiffs' right to their share in the suit properties remains intact. The plaintiffs' claim for a partition or distribution of the property does not depend on the validity of Ex.D1. In the absence of proof of any binding agreement, the plaintiffs are entitled to assert their rights over the properties as co- owners or beneficiaries, based on their familial relationship and any other evidence demonstrating their claim. The 44 plaintiffs' entitlement to share in the suit properties would stand if Defendant No.1 fails to substantiate the validity of Ex.D1. Defendant No.1 has not proved the due execution of the agreement and he cannot claim relief based on it. As such, the plaintiffs' request for a partition or share in the properties is valid and should be upheld, provided other factors such as their ownership claims, are established.
44. In light of the facts and legal framework provided, it is evident that the plaintiffs, along with Defendant No.1, are all members of a Mitakshara coparcenary under the Hindu law, and that their rights to ancestral property are governed by the relevant provisions of the Hindu Succession Act, 1956, particularly as amended by the Hindu Succession (Amendment) Act, 2005.
45. The Hindu Succession (Amendment) Act, 2005 marked a significant change in the laws concerning the rights of daughters in Mitakshara coparcenary property: 45
Section 6(1) of the Act now states that, from the commencement of the amendment, daughters are treated as coparceners by birth in the same way as sons. This means they have the same rights, liabilities, and status in the coparcenary property.
Daughters have equal rights to inherit, partition, and claim their share in the ancestral property, thereby rectifying the previous gender-based disparity in Mitakshara law.
Section 6(3) further clarifies that when a Hindu dies post-amendment, the property is not devolved by survivorship but by testamentary or intestate succession. This has the effect of treating the coparcenary property as partitioned, with daughters receiving a share equal to that of a son.
46. As per the genealogical tree, it is clear that, Shankarnarayana was the propositus and the plaintiffs, No.1, No.2, No.3, along with Defendant No.1, are his children. Since Defendant No.2 is the second wife, the plaintiffs and Defendant No.1 were born from that union. Under the Hindu Succession (Amendment) Act, 2005, the plaintiffs, being daughters, have an equal status as 46 Defendant No.1 (the son) in the Mitakshara coparcenary. The rights to the ancestral property, therefore, extend equally to the daughters as that of a son.
47. The amendment aims to provide gender parity in the distribution of coparcenary property:
Daughters as Class-I heirs: The Hindu Succession Act, 1956, as amended, places daughters in the same category as sons in Class-I heirs. This means that upon the death of a coparcener, the share of the property is to be distributed equally among all Class-I heirs, including the daughters.
Property held as coparcenary ownership:
Any property a daughter acquires under Section 6(1) is held as coparcenary property, capable of being disposed of by her through testamentary means.
48. The amendment specifies that a partition occurring after the commencement of the Hindu Succession (Amendment) Act, 2005, should be treated as if a partition has already occurred. The share allotted to each coparcener, including daughters, is determined based 47 on what they would have received if a partition had occurred immediately prior to the death of the coparcener. Section 6(5) states that nothing in this section affects partitions made before December 20, 2004, implying that any pre-amendment partitions remain valid and binding.
49. In the present case the plaintiffs, being daughters of Shankarnarayana, are entitled to a share in the coparcenary property along with Defendant No.1, their brother, as per the amended Section 6 of the Hindu Succession Act, 1956. The admission of the genealogical tree confirms their status as co-owners and class-I heirs. Since the amendment to the Act has retrospective application, any claim made by the plaintiffs for partition and inheritance of the property would be supported by the legal provisions ensuring equal rights for daughters in Mitakshara coparcenary property. Thus, in the context of this case, the plaintiffs are entitled to their rightful share of the ancestral property, and any claim to the contrary by Defendant No.1 would need to overcome the clear legal framework established by the amendment to the Hindu Succession Act. As per Vineeta Sharma v. Rakesh 48 Sharma, reported in (2020) 9 SCC 1 it is observed as under:
"60. The amended provisions of Section 6(1) provide that on and from the commencement of the Amendment Act, the daughter is conferred the right. Section 6(1)(a) makes daughter by birth a coparcener "in her own right" and "in the same manner as the son". Section 6(1)(a) contains the concept of the unobstructed heritage of Mitakshara coparcenary, which is by virtue of birth. Section 6(1)(b) confers the same rights in the coparcenary property "as she would have had if she had been a son". The conferral of right is by birth, and the rights are given in the same manner with incidents of coparcenary as that of a son and she is treated as a coparcener in the same manner with the same rights as if she had been a son at the time of birth. Though the rights can be claimed, w.e.f. 9-9-2005, the provisions are of retroactive application; they confer benefits based on the antecedent event, and the Mitakshara coparcenary law shall be deemed to include a reference to a daughter as a coparcener".
50. In light of the provisions of Section 6 of the Hindu Succession Act, 2005 as well as the facts presented in this case, the conclusion that the plaintiffs, being daughters, are entitled to an equal share in the ancestral property. The relevant section of the Act and its interpretation support the claim of the plaintiffs for an equal share with the male coparceners, including 49 Defendant No.1. The proviso to Section 6 affirms that, when daughters become coparceners, they are entitled to an equal share in the property with that of their male counterparts. The law has corrected the discriminatory aspect of the old Mitakshara system by acknowledging the rights of daughters to inherit and share in the coparcenary property equally. The plaintiffs, Nos. 1, 2, and 3, being daughters of Shankarnarayana, are entitled to a share equal to that of Defendant No.1, who is the son. Thus, each plaintiff should be allocated 1/4th of the total share in the suit properties. The assertion by Defendant No.1 that there was a partition does not hold weight as Ex.D1 (the alleged agreement) has not been acted upon or proven as valid. The burden of proof lies with the defendant no. 1 to establish the partition and its legitimacy, which, in this case, appears to be inadequately demonstrated.
51. Though the learned counsel for defendant no.1 relied upon number of citations with due respect to the principles laid down in the said judgment, they cannot be justifiably made applicable to the given facts and circumstances of this case.
50
52. The trial Court awarded 1/15th share to plaintiffs no.1 and 2, 6/15th share to plaintiff no.3 and 7/15th to defendant No.1 respectively. This division is inconsistent with the principles laid down in the Hindu Succession (Amendment) Act, 2005. The trial court's decree appears to be flawed because it does not align with the legislative intent of the amendment which guarantees equal shares to sons and daughters as coparceners in a Mitakshara family. The Defendant No.1 failed to prove the validity of Ex.D1 or a partition that would exclude the plaintiffs' rights. The judgment and decree of the trial Court which awarded unequal shares require modification. The plaintiffs are entitled to receive 1/4th share each and Defendant No.1 shall also be entitled to receive 1/4th share as per the provisions of Section 6 of the Hindu Succession Act, 2005. Thus, the appeals filed by Defendant No.1 in RFA No.1187/2006 and RFA No.1188/2006 are liable to be dismissed and Cross- objection filed by plaintiffs is to be allowed. The trial Court's judgment is to be modified to ensure that the shares in the suit properties are distributed equally among 51 plaintiffs no.1, 2, 3 and Defendant No.1 with each receiving 1/4th share. This decision reinforces the entitlement of daughters as coparceners under the amended Hindu law.
53. Resultantly, we pass the following:
ORDER
(i) Appeals of appellant/defendant No.1 in RFA No.1187/2006 and RFA No.1188/2006 are dismissed.
(ii) RFA CROB No.24/2010 filed by plaintiffs is allowed to the extent of modification of allotment of shares and the judgment and decree passed by the Principal Civil Judge (Sr.Dn.), Udupi in OS No.116/1983 is hereby confirmed in all other respect.
However, there shall be modification in the allotment of shares in favour of plaintiffs and defendant No.1 i.e., plaintiffs no. 1 to 3 each are held entitled to one fourth (1/4th) share in the suit properties and defendant No.1 is also held entitled to his one fourth (1/4th) share in the suit properties by metes and bounds.
52
(iii) There shall be modified preliminary decree in the above terms.
(iv) Looking to the relationship between the parties and also their status, parties are directed to bear their own cost.
(v) Send back the trial Court records along with copy of this judgment forthwith.
Sd/-
(S.G.PANDIT) JUDGE Sd/-
(RAMACHANDRA D. HUDDAR) JUDGE Sk/-