Karnataka High Court
Rathnamma vs K V Hanumantha Reddy on 26 March, 2008
Equivalent citations: AIR 2009 (NOC) 1060 (KAR.), 2009 (1) AIR KANT HCR 417 2009 A I H C 1209, 2009 A I H C 1209, 2009 A I H C 1209 2009 (1) AIR KANT HCR 417, 2009 (1) AIR KANT HCR 417
Author: D.V.Shylendra Kumar
Bench: D.V.Shylendra Kumar
....w...... Iufll nnmunannn nzun x,uuAIbs§V..£.%?;r* KAKNAIAKA REGH COURT OF KARNATAKA l-HGH COURT OF KARNATAKA %-HG!-Q CGURT OF KARNATAKA H1611 COUR M...
s1jJAé'H'A, A 135! seam' or KARNMAKA £¥FlAlfl3A14)RflE_g~'*"'"x Dated this the 26?" day of ._ 3 THE HOWBLE MR J§:sfi':cE'----3;_iv sHj?£EiiDR.§';:§t:$tAn Regular Second '}i:z9..;;§:e-<2_l Hz} Between:
SMT, RATHNAMMA, MAJQR, = -- V W /0 LATE CH£KKANN.%,:V SMT. LEELAVATIEK; ' MAJOR, _ ' D/O LATE CH1I{KA"N}§A;'1.;::;:_. ~ V SMT. soUn3i»§.AG&'A, MAJOR, D/O LATE c:-11V1V<sizj§N_i\:;.«,.,::"'-- SMT. LALITHAMMA. " V 7 MAJOR, 41::/<3 LATE CHVEKKANVEJA, M'A..JC',R;" . 'A D/c>...mrE €}§iKI{A.1§NA;
V ' SRI. NA-GENDRA' 3 7.
5;; _G.C. NA<GE:sIDre:A' PRASAD, _. '_--~.'_MAJ_.DR, S/OVLETE CHIKKANNA, ALLARE RESIDENT OE' KAL'L.Ui:).£sz1L.1.AGE,
- KA;'§B£: I-IOBLI, GQWREESIDANUR TALUK, §i.{)LA§42 DISFRECT.
APPELLANFS [By Sri. Y. K. Narayana Shanna, A<:{v.,] 3 purchased from the husband of first plaintiff,'-Svho also acted as guardian of plajmtifis to 6 -« plaintiffs 2 to 5 being daught_6:rs._and_'ei§:t1§;'.';Vpiéi3;i:tifi"e- the sen -~ and are entitied for of '»posf§es_§ion of ' "
;2/srd of the suit tpmpm .§§?tttt':..;eensequeIrtiai rights etc. , that jud,grz1ent.ta1'ttI_:deeree reversed by the iower appeilette of 1983, on the file of cot:_11;f: o§'_ Chikkaballapur in terms which is questioned in are seeking to get over ' of the iower appellate Court and for restore.t§otr,t:f that had been granted in their V. _ A? and for such purpose this second Z few facts leading to the above appeal are that:
'V V' we 'T<3;:1e H'Cthikkanna had inherited an extent of 5 acre 23
2 ergimtes of ag-icuitural land in Sy No 372 of eangasnadm " Gowtébidanur taluk, 313:1 a family partition that had taken piace amongst his brothers. This property had """""" "" """"""""""" "M" '-'~"'*"'f_?t-wt unxmumm men com? 05 KARNATAKA HIGH COURT or KARNATAKA HIGH COURT or KARNAYAKA HIGH come uumu V?" mmnmm. mum LIOURIA or mxmmm mes COURT on KARNATAKA more COURT or KARNATAKA i-HG!-I comer op mmmnm HIGH com 6 and interest to claim a share in the stlji-.44's(;hed1;1e prope;~t};; that the defendant, after " the property, effected considerable..,,i111prove1I1etits;= ti1atve.Vthe:;*e-..L was I10 cause of acfion; that suit _''is" "
limitation and not t:er;ai3Ie_§;11._1awA'a:t;ci Vtherefo1"e pteaded. for dismissal of the suit}.
-4. In the of the trial court has frameefi "
V gofove the suit property is T' - _ x"j;the"f:;paft.» and "pa'£r"cel of their ancestral V' ' Hindu fatmtly?
4' - Do prove that after the death of _;;'-Si '--wife of Late Chikkdnna he was V"£iying with vices and to meet out his addiwed vices he executed Cl nominal deed to the defendant without delivering V " pessession to him?
: '};Does the defendant proves that he purchased the suit property from deceased Chvkkanna and his vendor sold it for the legal necessities and to discharge debts of thefdmily?
Does he fiuther prove that he has improved the suit property by way of spending huge amount on the suit property for better cultivation?
uuwn: vr axnswenrnzun 35:02'! KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COUR gm" L 9 Whether eh Plarirttgf Nagendra Chikkanna was barn prior to themexeeutéon of the sale deed dated 14.£i.z9?3ee.jby _ Chikkanna in favour ofdefe:f:_<_:1an.t?iV'_e.'V. ' Pzaintgjrs 1 to 5 are enezzed fo=r._V and separate possessiém; of the'1'.r_,'$hares.ii:j the suit properly in 1:.-iew of see. .8(1)(c".'.) "of Hindu Women_'$~...Right3 to 'Act, 1937?
whetheefrhe V1ereitzed to challenge d_ee_d.udclted 14.5.1973 executed... C father of p1§lint0fS so. i'n"~favow' cf the A iyvdr-;§;-'er;edant?1_ ' e ' wdeed executed by "j;Chikkafine- in fcwoiar of the defendant is V' ' bénczing' plaintzjfs?
- sale deed is nominal, ~ Vj"rc:11;-ciuierii " and hence liable to be set»- the plaintifi"s are entitled to claim ' partition and separate possession of "their 2/ 3"' shares in the suit property? Whether the judgment and decree of the lower court is capricious, illegal and without application of material fam and that it is liable to be set-aside?
What order?
. _..__ *_ .-_ ....-....1....--.
1 1 was remanded to lower appellate court, it took the View mat the date of birth of sixth p£e'i;iIitlflf%§3oIi'v--r:;v'en in terms of the extract from the .mhoo}_-14e'o'o15%iv.x£%a$_'abozit»oi'xe year two and odd morlths aflfer t;?je* sip-zliih' plaintiff will have no to tfaxisaetion and it was also held {l_1e.._»p1'o'*éi'sio.1A1 Section 8 of I-Ii11<iu Womerfsv Act, 1937 is not attracted" l and with this the appe1la'{e"" ha§3..___ that the sale transaction ........oA nunmnu-uu-\ -mm t.Uua<"r or KARNATAKA HIGH COURT or KARNMAKA men COURT or KARNATAKA HIGH cow was for legal .vI1eces:'$i¥:y"'°and'aoeorclmglf the appeal was allowed.
I}. V It is aggrieved l:;§;i_V_Vil5lisvjudg11ent and decree passed b5,,:'theV:1ow_er court, the plaintiffs have filed this; . eeconcil " T . __ ' ' ' ~ agiagitzixag this appeal, this court had V' H following question of law as arising for defezaligzjation in this second appeal:
......... 'nil :u-uuwu-ur\l\I1 mun \.uunt us:1£AKNAlI'\l<.A HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA E-HG!-I COUR1 15 President, the yrovisions of Section 6A, 6C as ineerted by the Karnataka Amendment prevail in the State of Kagmataka anti »theref01*e.::jw»dti1ci eVu:ge"
the peuntifis 2 to 5, who are' thed'aughtei'e ef"nthe,e_$renc{or*' Chikkailna, are to be ttfeated eon, the sense, these daughters as the male (:o--parceners and taken birth at the time 01" the sale have every' right to qttestienitheittt. s it was not for a legal claim that when once it is transaction was not for legal rleceseitggv {Q "extent of their share in the sale 5:e_:t1"a;fi1:saetionV'dee--snot bind them and are therefore entitied ' " to :22 ,_t1®12§i"z¢;tion to this effect. Provisions of Section 6A to t' Qftizliarnataka Amendment Act read as under:
" "6A. Equal rights to daughter in ca' parcenary property. - Notwithstanding anything contained in section 6 of this Act} --
(a) in a joint Hindu family govemed by Mitakshara law, the daughter of Ct eo-
parcener shall by birth become :21 co~-- V-u\J'IJi\! W nanlunannn nmrr: waxy. «qr mmnmm men COURT or KARNATAKA HIGH count or KARNATAKA men COURT or KARNMAXA HIGH com 16 pare-ener in her own right in thersdme manner as the son and have rights in the co-paroenary property' would have had gr she had beenfa "son inclusive of the right _--'to""cf;a.irh fby'; "
survivorshlgo and zshallbe ':subjeet-- same liabilities andédisa;bi£ities"in thereto as thereon,' (12) at a partition iriettch Joint HirLdugFa1nily the "property ' 3.'-salt" be so divided to allot Vteo. daughter the same share as allaiéibie to __c1. ecu.' Provided .__that' A the '.SFI{11*'£-2:"1,l)}iiCz7;'t "a predeceased son or _'ddaghter would have got at; had been alive at thetime; of t.F:e..p2:otiticn, shall be allotted to the " Sn-rzriietngiifi-child» of sy§c.~'2~ predeceased son or of sfunhpredeoeased__da;t¢ghter,' 'Provided the share azzotabze to the predecec;zeed--._chzZd of the predeceased son or of _§ 2 ea predeceased daughter, vouch child had been V ._ai.€ve at time of the partition, shall be _A dllodtted to the child of such predeceased child . V"-of predeceased son or of such predeceased ddugtiter, as the case may be;
fe) any property to which a female Hindu becomes entitled by virtue of the provisions of clause (a) shall be held by her with the incidents of co-pamenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of 17 being disposed of by her by will or testamentary disposition,'
(d) nothing in clause (b) shall daughter married prior to o:*"to a which had been?' ejfectea -:iae._fore._V the commencement of if-.Iir:tlu" » ._ 1 (Karnataka Arnendrrierit}..Act, 1990. "
GB. Interest to by ézuirlziorlsihip on death.-_. When_a-- I~Iiriciti."diés after the corrtnterioemeiitt , "Qf the Hindu Successlioit T '(KL1rf::atakci_ Amendnient} Act, 1990, hapir'zg_at__the death an Vi3'1terest;_' in' ' '<2. Mitahsluzzra oo«-paroenary A 'interest property shall ; V "devotee 'surtlitzorship upon the 'isaruiving. "members; of the oo-paroenary eeee e. _ A:'Land::ljr2ot'*eyaca¢rdenoe with this Act:
Providedtthat .ifi't}}eV_.deoeased had left any child or ohilclof preedeceased child, the interest of _ the=.clecease«:_l the Mitalcshara co-paroertary it property shall devolve by testamentary or intestate' "suooessr'on, as the case may be, _ antler this Act and not by suruivorshfp. uuwn: ur NM ' nmauauxn rub!-I £..UlJ IlT KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COUE 4"{1)*F&'or" the purposes of this section the " ifzterest of female Hindu Mitalcshara oo~ paroener shall be deemed to be the share in the prweriy that would have been allotted to her if a partition of the property had taken place immediately before her death, irrespective of whether she was entitled to claim partition or not. 5 Wu." V? mmnmm mum x..;uu:u.- or mxwmmm 1-use COURT oI= KARNATAKA HIGH COURT or KARMMAKA mes COURT as KARNATAKA HIGH com (2) 18 {2} Nothing contained in the provisoto (1) section shall be construed as V. person who, before the death 'of deceased had separated" p or ~ _ heme? fmm the w-parvenary; aftyesof 't his or her heirs to on 7 share in the interest refer'red 'to"ther*eth;*~ , 1 1 Ptwferenflalttriigégt " L' in certain _ Where,' tifier of Hindu Sumessioht Amendment) Act, 1990 H "interest immovable pvpropertyi «1;';"~..'Vt'ér/gtestrzte or in any oft'---by him or her, ' "-whether'--.soiely'* _or in conjunction with 1 £z'eifoives"huni:1er sections 6A or 68 ";;;tpo'i3." 'or and any one of V"ew::h'heirs"prep:2ses to transfer his or her V interest property or business, the
- cthei'"._shall have a preferential right to. _c[:,oquire" the interest proposed to be "tmr":.sferrez:Z. which any interest in of deceased may be », Ltransferredweurider .si;e;_b4-sectiorz (1 ) shall, in 7 _ the absence of agreement between "the parties; be_determined by the court, being made to it in this 4jbe}hH,i:;!'; "am; if any person proposing to _tzcqu._ire, interest is not witling to acquire": it for the consideration so oietemzizied, such person shall be liabie to costs of or incidentczi to the 20 provision which carves out an exception to tI1.e».pi'oVisien of Section (SA, operating in a situation \vh.:i§i'e' __"d~ai;:ghter had got married or partitienkied ta}{€11" to the amended Act came into force vi;;a';,..191"ior BC': K394, Sm' Sharme would submit ' tite_ the partition does notJ__app1y 'p;'_esen't* facts, there is no actual partitiofigiihowitii the exclusioll of the appliesstbiiitg' of to daughters is concezyxietfi iwciieid.:_----d1*.aw"-" attention to a single Bench .._,..nm .......u..". .ww..»m nnurs noun: or KARNATAXA men COURT or KARNATAKA HIGH COURT or KARNATAKA men coma' decision of vs GUNDAPPA 4790}, indicatmg that the provieion iexe1t1tiVi;tg'.;:jg;e§-'§3,pp1icabflity of Section 6A to '£0 the commencement of the Act T. to be void, the provision ¢'a1'mot ope4fateV.aeo'iV'now and therefore all daughters can " t:--leiin__"~the 1'e'ii,;f;-*3' in the suit and to the extent their e:i.titl_em_ent$Tfor a share in the co~pareeI1ar§;' property, the sieie frerjsaction in question does not bind them and a Q/,
- -.,.....b.A ,..: ......nnu-uxn mun uuux: ur KAKNAIRKA HIGH COURT OF KARNATAKA HIGH COURT 0;': §(AgNA1'A;(A mg" C-OUR; 38
provisions of Section 6!: of the Karnataka figetakagnending the central Act. While it is true that _VIa'§%*, if has taken piace during the pendency"ofe;:
to be applied and the decisiozg ngeie '¢ase:¢r&s['oos;§;z:§eDfit¥t [supra], relied tlporz Rt %Ie;a;i*£1ed counsei for the ..appe]lé;tits--p1¢e§j11.ttfi's:._is_tii defmiteiy an authority for the same reason the central _ 2 exmended the parent Act, the cannot escape the applicabfiity 'J1't'j-.}','?'I'('_3S('.'.'I'"'1"L""':"Si{".11£{1Li()I1.
33. 'A Vf['4I1eI*e of understanding the impact of V» the xiatetr afiendment. One is that the state was to the provisions of Section E: to the ~. Act. Though the state amendment is one supplementing the provisions of Section 6 of "V x goarent central Act, are sought to prevai} over the »' jgirovisions of Section 6 of the parent central Act, in View of the I101}-aabsem; clause at the very begknlmg of Section 6A, as introduced by the state Act and that the amended state 40 difference to this. The later central having virtually substituted the origginal Sectioifé' fizarent central Act and being a»A.>V§ater'."'ceI.fi1'S§'V:legielatieil, necessarily has to prevail arid the 'c'sté:te"~.tXct"iias }'iei{§.. "
One possibility as in substitution of the earliett: Ot':t11e,.€parent central Act and if the parent central Act itszeif is atitomaticaliy goes. the state amendment bei11g'vi1t: Asupfilement to the provisions of Sevctricii 6 weentral Act, the impact of the state axzqerltiinerlteil Section 6 of the parent central theV"e1'i'eet of the iater centre} enactment both will ' * """'b'A ,'A"~'.,.: """""'"""\H WWW wumu ur AAKNAIAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COUR?
have t:'e__h'e ,EX8fi1§.fl€ti;~,._ V Que if the non--0bstam: clause contained ef the State Amended Act is only with 2 original Section 6 in the parent centrai '._'ACt»» Section 6 in the parent centre} Act itseif Vthefzmg now {undergone a change, this is no more fig 44 can co--exist without any conflict i.e. iI1...ti1e'c..eve:1t of rep11g:na;r1c};-* not arising between the m:¢i Iaxéf$~,. law can operate in its own spelt gut ar€:zi"a1ic'i in force. The provisions of A1'tic;Ie~254._ Operate"---.e{?e_n situation where there law 'niade by the state 1egi9;I;att1reAe.ténti-.ti1e nnion..Hpat'1iament, even when they are .enactments. It is afortiaratfye in Vvitttffich is made by the par1ian1en>t,V ijetatetttttegisiatme supplements act," the assent of the President tiilvvthe modifies or amends the provision.
-- ---~----.3-A ,..V'.: nr-u\I1r'urII\P'l ruun KAJUKI U!' RAKNAJAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COUR1
39. __In 'V epresei1t._V_Vu tease, all variations of the a1ne'n_d:neI1ts the Hindu Succession Act, 1956 Therefore, it can be generaily once a later amendment to Section 6 netent Act is effected by 21 central legislation, Z 'taionettsnould prevail and the ezarlier state amendment V Xfa11t.c1na.ttica11jv' yields to the central legislation, Wm" w mmmnm mm-I uumum nummzrnm men comm OF KARNATAKA HIGH COUR1' or KARMATAKA men COURT 0? KARNATAKA Him coua 50 recorded by the iearned judge of the lower appeiiete court were Wrong and the very findings as court are right i.e. on the iss__ue of 1€:'ge1" h_a§\{ri.*1g' not been proved for effecting the tfa1'isae!:§<5n, nei%erfi'ieiess," J the plaintiffs i.e. the of having no right to q1.}€S'£:j;()¥:- light of the provisions of Sectibiih' central Act, as amended the suit has to fail and dismissed, confirming the i'L?ie"'i'oi¢ver appeliate court, though for Faxfies to bear their respective crisis.
i K 3d/'-:
Judgé