Karnataka High Court
Gangaiah vs Doddadundaiah And Ors., on 6 February, 2010
Author: Ravi Malimath
Bench: Ravi Malimath
IN THE HIGH COURT OF KARNATAKA AT B£\:NG'f3;_LC:3RE____V.' .
DATED THIS THE 6*" DAYZOAFV "r*E5Té,uARS{:"2Q1;v0-7=
PRESENT"-9'
THE HON'BLE w;.3usT'1'cAE.;'*LGEQPALA' GOWDA
A-9E}ANQ;_
THE 'BLE ri._J"LJsT:(:E" TiA'v'i MALIMATH
1111 'FIRS;§T---APPE'A'L"VNO.187 OF 1994
REGujL'AE«.EVI*Rs'TTT.AEPEAL NO.522 OF 1998
REGuLArVi'EI%R$TATPP'EAL...L1i1o.187 OF 1994
' Ga'rega'vi.a'h
S/0 Do.a'é..ada4'rTd.vaJah
Aged abopfffc-3 5.9 years,
Occ; AgV_r-icuVi..t=u ri st,
R/a 'rianeghapura Vliiage,
Kasabafiobfi,
Neiarnangaia Taluk,
" _B~a,n_g.-'alore District.
(By Sr: D.Nagaraj, Advocate)
"APPELLANT
4.
AND:
S/0 Late Eraiah
Aged about 82 years.
1. Doddadundaialn } Vide courtordc--r».rjated::?.«08
The 1 57 .re'Sponde"njt.,4_v_
2. Lokesh 22' \
Adopted S/0 late A-rzgdanappa.
Aged about 20 ye'a..r_s"}«-- " V
3. Gangamma _ .. g g
W/0 late Ao.d'avnap[§a ' _ .
Chikkadundaéyah 5.. "4; «.Sl!*sé.Ce"d'ece'ased by LRS
S/o Eraiah ---- "'*::, "'--.amend'e'd'-yide court order
Major, _ l'4.lygda_ted_'3.12.O8
OCCZ Agrl<:.ult'urlst.' " _
4(a) Smt. Laksllrlr-n_ar*:1naa_ A
(5)
W/o ;Chll§kadVundVi'a'l1'
'Sri reg; gifia
as/or lateS~rP'Cliik_kadundalah
ya - yea rs.
Srl BY ra,.p'pa.lA A
I S/o latesri Chikkadundaiah
V"/xged about 65 years.
SVr'i-Arlédana ppa
Sjfo late Sn" Chlkkadundaiah
" Aged about 60 years.
residing at l-lanchipura
V\g_/léllage, Kasaba Hobll
the V-.-~e"s;;onde,nts. _2"t'c_l 4,-S.(al')*;
To 2§(e)_.,. Ltogl 7._a'r:d 'tr:-e A
Appellarrt. are treated as
_/"\.__
Neiamangala Taluk.
Bangalore District.
5.
Smt. Chikkabyramma
W/o Siddappa
R/a Budihal,
Nelmangala Taluk,
Bangalore District.
5(a) Siddappa '
(D)
(C)
S/o late Dodda Ka$ri_a'p'pa
Major in Age. ..
Ramaiah l'}1i:~*'
s/o §S'ri"3iVd'*d'aV'ooa-:_g_ _ _
Aged..Vab..0i;i:t 37 ye-a~rs;.r " V
a_vSmt._A l;a;k_<sha'3m .
'o/o siadapfpayi '
Aged' about 30 yé'a_rs".
8 mt. .Gowr'a'm ma
D/o VSidda'p«p.a.....v
K S/0'-Sjiddappa
Aged'-about 24 years.
Aged' about 27 years.
3.é'e.,tl"ia'.i arna
AlVgEgthe"respondent 5(a) to S(e)
Are"~R/a Budihal, Nelamangala
=.Ta.*e.l'<, Bangalore District.
Smt. Dundamma
W/o Siddappa
Aged about 57 years,
R/a Lakkenahalli Vilfage,
LE"-is 1a re :b.rofught: go it
Aged about 60 years, n as peryco-urt order dated
-1_o.11"..2_0o3 = 1 i
Kulavanahaiii Post,
Nelamangala Taluk,
Bangalore District.
Smt. Chennamma
W/0 Dasappa
Aged about 37 years, _
Hanchipura Viltage,Kasab-ajrréobli
Nelamangaia Taluk,
Bangalore Distréct.» _
Smt. Lakshmamma' '_
W/o Séddappa
Aged about.:38_yea'rs,
R/a Kem;fjtin';;aoah'aétléf
SandeFx'i'PE*Ja. "|»>'oS_Vt_,V _
NeIama.r1g:3I'a_ TaI"u'i<._,V o_ "
Bang--aI.Qre. D:'§E:-.3réct:--.. '-
Smt. 'Chik.kanfi'ma= _ '
W/o' irate Byrapoa _ _
Major}-Ejianchtpu'rr.a'Vifiage,
_Neiamang-a'la"Tatu'%<,
pg a ixo re Di'St.I.'.i.Ct;
.«.H.M'§Sid«va:a'ppa
SA"/o. fiage Mu-myappa
"=Major',-- jj
"-.,OC(::'Agricuiturist
1. I.
12.
R,/alflanchipura
Neiamangaia "Faluk,
AA '*-Bangalore District.
Rangasamaéah
Major,
Occ:Agriculturist.
Gangamma
Major,
OCC:AgriCu!turiSt.
13.Krishnappa @ Kittappa
Major 7
Occ:Agricu!turist.
14. Puttaramaiah,
Major,
Occ:Agr}cu!tu rist.
15. Nagaraja _
Major , '
Occ:Agricolt:ori.st. '
All are son,-5"o'H,at-E-'LGovi_n.da~~5.aH7_ '
A1! are R/av _Ef/iai!_Ia'rabanavTadi._ ,
Kasaba Ho.b_|'r,;. Né':E3iama"nga.!a Ta*.u!,:v,"'
Bangalore _DEst_ri_c_t)~._
16. Smt; .,E__ak,shm_arnma"-._ "
W/o Cr':-i.[<kadundajahfi'
R/-Va ,,Hanci1.ipu'ra Viiiage,
'i'*J,eIarnanga|a' T.a.lu.3<,
._ "Bara{;a!or.e. District.
. 'S/o Myfiasiavaradya
'~Age_d'a,b-out 45 years
Mallarabanavadi
., _ Kasaba Hobli,
V V Nelamangafa Taluk,
Now at Sri Belimate Mahasamsthana
No.5, Belimata Road,
Bangalore ~-- 560 044. ...RESPONDENTS
[(By M/s S.B./Associates, Advocates for R3, R4, 8,16
Sri K.Kantharaja, Advocate for R2
E/4*"
..5...
Sri B.S.Govindaswamy, Sri B.Aswathaiah
Advocate for R1, R5(a-e), R7,
Sri M.N.Krishna Murthy for R9, R12~R15,
Sri T.R.Rangaraju & Associates, Advocate
Sri E5.R.Vishwanath, Advocate for R7, " ;.
R«--11 Rangasamaiah, Sri Shanmukappa, Advo,catei.,_'
For R10, Sri S.i\iagaraj, Advocate for R5(b.--d-9., '
Sri Aswathaiah, Advocate for R4(a'~>t:i)~]., " '
*>i<>1'<
ThS RFAifled undersecUooV96wfi cPc,egew§ttheK
judgnwent arui decree dated 25.3 94, na cxs No 276/89,
passed by the City Civii 3udge,"vBar1ga|ore,._Apartlygdecreeing
the suit for partétiorj a|i.ot'rne:nt"'-~of 1/3""? share and
declaration. -- --. v
RFAJVO.522[19Q§; !&J R ti'
BETVQEEN;
Lokesh'_"_ ';_~»<
Adopted is/.o iate ._ A
Anddflappa ." A A
Aged aboqt 20"y'ea.rS«,v
.R/ta Hafachiepora Viliage
' ,N€!ama'rig:va,la"Taluk,
.B.anga.lo~:e Df£st--:*ict. ,..APPELLANT
(A611. S{'§"F'3,,t<'8AfithafajU, Advocate)
flangaiah
S/o Doddadundaiah
Aged about 57 years,
Occ: Agricufture,
R/at Hanchipur Viilage,
Kasaba Hobii,
D/o Siddappa
Aged about 36 years.
(d) Smt. Gowramma
D/o Sri Siddappa
Aged about 33 years.
(e) Sri Seetharama
S/0 Sn" Siddappa
Aged about 30 years. V
AH are respondent No.-g4"to'r4yE
Resident of Btidihai', .
Neiamangaia Taiuk,_?' ' .
BangaioreVDistrict.{. '
5. Smt.
W/o Na~:"ay*'a.r1_aV-pita' _
Aged abou.t__b,~S year_se.'=_j g_
R/avv--ALa'-kkanana-IitdV.iiiVaege; '
KuJuvan'ayha'EE.iV_Past, __ "
Neiamangayia Taluk;
6. .S:mVt.33'Chenna'mm_a.
A 'W/o="Dasa_ppa
_"*Aged'abo_u"t .35 years,
' .ge.Han_Cti.£i3"L_:r'a.=.,Viiiage,
'Kasaba'e'r--Hogbii,
..;\ieiar.:~.ar!ii;;aia Taiuk,
Bangalore District.
=Lakshmamma
We/o Siddappa
V. Aged about 36 years,
R/a Kempalinganahaiii,
Sandekoppa Post,
Neiamangala Taiuk,
Bangaiore District.
10.
11.
Smt. Chikkamma
W/o late Byrappa
Major,
Nanchipura Village,
Nelarnangala Taluk,
Bangalore District.
E-l.M.Sidciappa
S/o late Muniyappa
Major,
Occ: Agrlculturist _
Resident of I-lanchipur_a'
Nelamangala TaluE<,,....__'-. 'V
Bangalore .Djstrict;,
Rangasl/Val*:1a'ia'l5:__ V
Major,' Al Ti
OCC: P«QrlicLJi'tlJ't,c5§ '
Ganglamma ' _
Agecl: Ma,='.or"*
'~E)C;:__}' Ag ru cAU"l't=.!..!ii.St~.
A 12..
Maj.O«r.,
Kr%shna«p@5a__@ Kkttappa
"Occzl Ag rlt-Lnltu re.
13:"
Putttra ramaia h
Maj.o"r,
ll '~QCC2 Agriculturist.
Nagaraju
Major,
Occ:Agricu|turist.
Respondents No.10 to 14
._10._
S/o Eate Govindaiah
Residents of Maiiarabanavadi
Kasaba HobEi,
Neiamangaia Taiuk,
BangaEore District. 1
15.Srht. Lakshmamma
W/o Chikkadundaiah
Major,
R/o Hanchipura ViE.Eage V,
Neiarhangaia Taiuk,'I:3.angaio.re" D_istr~--:.;t.
16.PaEenetra V H
S/o M.Basa.\/a.rady;a , _ _
Aged about {:_.,3'yee1~.rs,€, "
MailaraEia"na\}*a€J--i,'V »
Kasaba_,Ho:__bti_, V _' ,_
Neia-noang_aia'1Ia_iu*i<_,V
Now at i'S~fi_..Bei'i?mata"'Mahasamsthana,
iaangai'or.e. * 2 ' ...RESPONDENTS
(By Sri E§.AswatVhaiah,"Advocate for R2, 3, 5-7 & 15,
Sri ,S...Nagar'a,i.,, Advocate for R4(a,c, d 8: e)
2 irihisjdir2;éA Nci,s22.1998 fieid under section 96 of cpc,
.Vagainsvt 'thve-Judgment and Decree dated 26.3.94, passed
on Q6. i\io.2.7'-W89, on the file of the Pri.Civii Judge (Rurai)
Bangaiore,'j_DeCreeing the suit for partition etc.,
>i<>i<*
These RFAS after having been heard and reserved for
'gjL'idg'ment on 22-01-2010 by RAVI MALIMATH J., the
judgment has been pronounced today,
'\£/C"
.., 11 ..,
JUDGMENT
Being aggrieved by the Judgment & decre'e»'d.ated 26-3-1994 passed in O.S.No.276/1989 by _tilejVVP..r_i:i'i»lt:i:pa.i Civil Judge (Rural), Bangalore partly decre.ei'n_:gV.Vt'li~Ae:'suit» partition, the plaintiff seeking cotnpleitej;de.;r'et'a--lh: of. as prayed for has filed REA__No.i'8.?f1994uV.al--ri'd::d.efe;n.d'an:t'g No.2 has filed RFA No.522/i"99_8' seekingjdismiissal of the suit. V l l V if if
-. ' The'fparlt.iye's.;s'h---ail 'hereinafter be referred to by their ra hike the isTnes.4 ;'piaintirf filed O.S.No.276/1989 before the '-Phnicip'alu.".Ciy'i::l"'judge, Bangalore seeking for partition and ail.otrn'e.nt.'oVf1/3"' share in the suit schedule properties; for f'a*decla"ration that the alienation made by the 1" defendant hinlfavour of defendants 5 to 8 by way of gift and the sales 'win favour of defendants No.10, 16 and the father of P"""""""
-12, defendant Nos.11 to 15 are nulE and void and;no't;ti.i__ndi._ng., among other consequentiai retiefs.
3. The case of the _pEain'tif_f'fis th_at5:th'e scheduie properties are jointV'Vi'fa_rnih,r pro-pe'rit'iVes hirnseif, his father defendant'N_o'...1 namely the deceased husband I\;'ot.:.'3'AA;»5..'iilefendant No.1 is the father «.:f"'ii.e"'--deceased husband of defendant. an:o't.ne;r"'hrotnerVof the first defendant. daughters of defendant No.1 and the sisters Defendant No.2 is the son of the pEain"tiffwih'o h-aszhbeen adopted by defendant No.3. ' péfeindantflfiio.wfismoutside the family and the purchaser of onef ' properties. The father of defendants 11 to 15*-...__ha\(e~ purchased two items of suit schedule properties from 1*" defendant and the 16"' defendant is the wife uh'-..o'f._t..he 4"' defendant having purchased one of the suit .i"v.._,,_s§chedute properties from the 9"' defendant. Being var _13....
purchasers of suit scheduie properties they have been arrayed as defendants 10 to 16.
4. The piaintiff contends that the joint famiiy properties and since'-._no:;'pa.r'titirQn-W'as'"effecte , he and Andanappa nameiy,'fVth.e. husbandsoffVdefen.cJan3t being the sons of de_fendant___i:E\i-oi,1-,."heiisientitied to 1/3"' share out of the _sc:hei.j'uVie"v--properties. He further contends that the prQ.pe'.-tiies bei"n_g" the gift deeds executed 5 to 8 by defendant No.1 are nuii"a.nd.void.a7_F'u.r_t'her, that the safe deeds executed .2! b_*y-idefendant"EiJ'o,.y_1miri favour of defendant No.10, in favour ' ;.Vo'f--ithe_'fat'hVe'rof defendant Nos. 11 to 15 and in favour of "d.e'fendaén't--:_ are nuii and void since ancestral property cannotcbeéfaiienated.
-.5". The defendants contented that the plaintiff is not
--..V"e.n.'titied to 1/3"' share in the suit scheduie properties and B/\.»----=--~ _.14_.
that the gift deed as weil as the sale deeds;"e'><'e;u._te'd_.vin_ favour of various defendants are valid in law..,\ V
6. The triai Court onV.eeQnsider_in'g the contentions raised and as many as 14 issues partly that the plaintiff is entitled for 1/7"' suit schedule properties thiatlfthge' piva'Vi'nt*i--ff:Ahas failed to prove that his 'defendant was given in that the adoption is obtained _by_frau_d ~-a'nd_'"-nslisrfepresentation; that there was no partition ..,and' lconwsequentiy the question of an °-indepehdentigpossession over the respective shares does /_no.t'Via;-.Ese_p%.vfofatfonsideration; that the gift made by the def~e_nda.ii~t_iu\F'.oA.f1 in favour of his daughters, defendants 5 to are binding on the plaintiff to the extent of his share, A -.,b'u~t tiinding to the extent of the share of defendant No.1; _that the sales in favour of defendant No.10, in favour of the father of defendants 11 to 15 and in favour of wm»
-15..
defendant No.16 is for legal necessity and on the plaintiff; that the plaintiff is share out of the properties givenlto the sale effected in respect_of_ Sy.fNor}3,/3 i;3.vt%riVVe,l:year:'; having been effected on 'th:es'uit':'being filed beyond a period 0*' 19VaA9,VAVVthe suit is barred by limitationA_SOi:._Afaiflasyg t'hi.g'".fggg§«:\/ey Number is concerned 'that----~iV:the suit schedule properties. 7 sharers namely, the _0fhmp|aintiff, that is the 13:
defendiangt; ythei.y_y\ii.ff'\e.'o"f._:p'lia'intiff's brother that is the 3"
defendant uand 'the d'au§Jhters of defendant No. 1, that is . dVefeVndia"ntsi.S to fffff "Hence, the plaintiff is entitled for 1/7"' Vvshgare' in-~t.vhefrne~ntioned suit schedule properties. Being aggrieved by the Judgment & decree dated l26i=3&--1§94 passed in O.S.No.276/1989 by the Principal Judge (Rural), Bangalore partly decreeing the suit for "partition, the plaintiff seeking complete decretal of the suit as prayed for has filed RFA No.18?/1994 and defendant We .....16_ No.2 has filed RFA l\lo.522/1998 seeking dis_rrii's«s'a_~l'._'_of suit. A A 3 Regarding RFA.No.522/L1:.'99$4gA ;.
8. Sri H.Kantharaj, |earn,fei§,couVns--el"for the appellant/defendant No'.'2 contends that the impugned erroneous on facts and is§lia~b:ie.to contends that the trial Court' that he is not the adopted"so'n;i<)'.r has wrongly read Ex.P-- 1, narh.e|v,_ The trial Court, therefore, committe'd"~.an" errorA~--i.ri"d»iscarding E><.P--1 and erroneously Co._rjt:lud,ed.._thatVlthve---«adoption has not been proved. He, t~he'i'efo-re,flsoihtehds that the adoption having been validly pro'ved,.t'he_Judgment 8: decree is erroneous and requires to beset aside by reversing the finding on Issues 2 & 3.
9. We have perused the records and heard Sri B. Aswathaiah, Sri Nagaraj, M/s. Legal Combat, learned WW» .....]_")'.......
counsel appearing for the contesting respo;n'de.'n_t.s,:.5'?:fh*e% learned counsei appearing for the respon.de.nt's.,d'efend impugned Eudgment & decree and subm;itu'th'at' a.n'd~w is no error committed by th.e,_triaE "Court in,»"'i9ec.o_rdini?g finding of fact on contentiouivsxissuge aiftetfigavbpreciation of the evidence on recordH'':«. ' i 3
10. 'a:i3:o'e!Ja:nt/€2"5: the naturai son of the ptaintihg that the husband of the 3" died within one month of his men-;_sage 'tetabtéfiifgg.,..tg,'§;q;'nd his wife nameiy, the 3""
defendanth" Eieing issueless the 3"' defendant requested the' Volé"iiiti"f€,_to givemhis son namely, the 2"" defendant in adiooti~<in...and'-éccordingty an adoption ceremony was heid. Aipart ,__'f'ron'.i~"Athe piaintiffs testimony, P.W.2 who is an atgtestorihto Ex.P.1 has been examined. The 2"" defendant
-..vnam.ue!y, the adopted son having attained majority during .,,_.t§he pendency of the suit has been examined as D.W.7. The scribe to EEx,P--1, namely, the Advocate has been Wrw
-13..
examined as D.W.9 and yet another attesting witness Shivanna has been examined as D.W.8.
:1. P.W.1 has stated in his""evidencelthat,'after theft' registration of Ex.P~1 nameiy home and in the evening' t.h'e~~._%custorna'rv 'cer'e:m'o'nv was heid wherein food wasoffere-d** to_:'th'et,'friends-an.d: reiatives. However, on reading of "'rii_it».,L'reveais that the ceremony waseperforrgnedi iija; th,e'~h'o._use".early in the morning after:._:9.OO'_A ceremony and after iunch was taken,"E_x';P,--l' and registered. However, accoirdigng to a"ndvD.W.2, untii the registration of the ,do'curn'e'ntV,'i~no ceremony was heid. Therefore, the recitals Vin.i-the.,V'docurne:nt are contrary to the evidence on record. i3A.V\/.2,___w'i1.o.3'has attested the deed, has stated in his cross"
.,eV>,<,ami'n-ation that he was outside the office of Sub- é"i.V'R'egistrar and does not know about the ceremony in = ....connection with the adoption. The other attesting witnesses D.W.8 states, that when the deed was registered @A-~
-19..
no ceremony was conducted at all nor was'-t..rie.:fbo_y'_ delivered to the custody of the 3" defencla--nt;i:~.,[§";llV.49V thev Advocate who prepared Ex.P--i deed was prepared by him bu-t__.he awasnot the adoption took place or tah'ea..aa:ce:reran=.ony was conducted. The 19' 9rand--father of the adopted son__does of P.W.1. He has categorigcavllvpdheniged that t.he:av2f""defendaht was given in adoption.' eiicited in his cross» examination to'._di_sb9elieve~ his statement. 51.2}, afurthera, the defendant No.3 and the aA"'adVoptive'fmot.her haasmévery clearly stated that her LTM was aathe*'document by the plaintiff by telling her that-._her__v'sign'ature was required for transferring the katha her name, but on the contrary it was misused as an _ad'o»ptiorr deed. Defendant No.3 who is stated to have ..t_ai:<en the child in adoption negates the adoption. That, 'neither she intended the adoption nor did the adoption Q?/<~
- 20 __ take place. Hence, the evidence of defendant No.3 falsifies the existence of the adoption deed. These statements of D.W.2 has not been shaken in the cross EXE1F11lFl:afi'E*l:.O'i:7iV:.E1,ljld there is nothing to disbeiieve her statemen--,t:.:'* entire case of the plaintiff was th-lat' there:wasfa.r;'V'a'd.}§:ptilo_,n by defendant No.3 and when thleyydtefelndafiitvii'iiiilofii does not support the adopVtiiC):..f;l"i*~..thehtrial' rightlyiff disbelieved the adoption.
3:13. '_'T'i'i5.e-VVevi3d,ence'~of D._W.7 namely, the adopted son i.e., def.end,antii._No'.'2"having attained majority was exa;i*i'i--iin,ed, ucannot be accepted since he was aged only years' when the alleged adoption ceremony 'took ffience, his evidence cannot be relied upon. Fortjhci aforesaid reasons, we have no hesitation to hold~.tVh'at the plaintiff has failed to prove the adoption and .con~sequent!y defendant No.2 cannot be held to be the adopted son of defendant No.3. We find no error Qt,j{\,.._ we ....21__ committed by the trial Court in passing Judgment & decree. No other content.io.nsi_vhaye._ belenu advanced. Hence we are of the cionsiidgeteldsgpxfiew. 'that Vtherle is no error committed by tVh'e.4_\trial"C_ourt that fc;ruany", interference. Hence RFA No4I5_l?;2,fV19'9V'€3--'betngigdevoid of merit is liable to be disrn-issed.§V. .
RegardEhDgv--. RFi§A§'i$i;tig~§'#.8.?';<V:':t_994 .ASTr'ii_Vl.E'):i'%l:agar.aj,._:vl'ear'nedrcounsel appearing for the appeiiant/piaiiitir-r._i'n..ri;--ré_;i:t-.ho.187/1994 contends that the trial Court.'_Vcomrn.i_tted" error in partly decreeing the suit lesser share_____than what he is entitled to and hence ' yilnteerf--eVrence"'is_called for. He contends that he is entitled to '']../'3"'' the suit schedule property; that the trial Cou:.tV"'c.on14'mitted an error in holding that Sy.No.127 fallen it ito*~.._the share of Chikkamma and Ganga Hanumakka ]bet:ame their absolute property in view of Section 14 of the ' Hindu Succession Act,; that the claim of Sy.No.3/3 was wrongly rejected as being barred by limitation; that the VA"
__22__ gift deeds executed in favour of defendants in law. He, further contends that in terms..Q'f'*~»Sxect:io.n the Hindu Succession Act as none of the daughters nameiy, Vdefendantsr are", entitled to any share. In wheretoffie reéies on the decisions reported ir'*rA..4_._t"r:;e GEETHA AND OTHERS reported. int2oo.9§_6)"'S,ce..':99; MPRITHVIRAJ AND oTr«:i:§s";:jirivs. AND OTHERS reported in, *2f}'Q8 SHEELA DEVI AND omizies'vie;i;A.t_ciiA~N:D«.'AND_~ANOTHER reported in (2006) 8 scc"3_8'1;r Sr?itV.iiiFxi\;|'Ji9i'i§7ii?i.A AND ANOTHER v. sTATE or i<Ai3NA_TAi<A~..AND' ohiiizes reported in 1999 (2) Kai".L.J. HAe'Vfu_rt'her contends that no ancestra! property could be to defendants 5 to 8 nameiy, the daughters and A A_th'e~refore, the gift deeds are nuli and void and not binding Vigon him. Further, that the saie deeds executed in favour of defendants No.10, 16 and the father of defendants 11 to 15 and are mi! and void and not binding on him. WA"
-23..
He contends that Act No.39/2005 i.e.,tarjtneatneedeadii Section 6 of the Hindu Succession-.Act benefit of by the defendants 5 "tad 8ti"tne'ta Act is appiicable only to catseswhere the .pa-§titi_:o'n"'i"ias not"
been effected or opened pprii-otrtto thee Atmen-dmiient Act of 2005. in the instantBca'se,"'siVn'c:e v'*;At:a'i'ti.tion has opened much priorppvtoljigzprovisions are not applicabiej." ettxt/'ten in so far as the Karnataka.Ameh3dme'n'tA'--namei',I,'éection 6--A of the Hindu Succession Concerned sub~Section(d) is app|icabiVe'~-ohviyptto t'iJos«e~tt'daughters who were not married prior the Ka'r'na_t.a.ka Amendment Act of 1990 or when a '.-partit'ion=:h.ad---_not taken piace. In the instant case, .'de'fendariV'ti'j__hEi1oVs. 5 to 8 had married much prior to the Act, 1990 and since the partition has aiready A iopeined prior to the amendment, the daughters are not entitled to any share.
Q1/3/("'* ......24.......
15. Sri B.Aswathaiah, learned counsel ap~pe'a.r_i__r{g,h:f'or respondents 1, SA to E and Respondent impugned Judgment and submits tihaitj; no inteiréferegincgeis cailed for. Sré M.Shiva;:p_a, learned senior' clounseig appearing for the counsel applieaiting 9, 12, 15 8t 17 namely, of the suit schedule property, su,t1niii_'ts, been effected for the legal 33nece.s's:iW'\éndjhence are not open for pa " the trial Court has categloricalAiAy;'._co.ntie' that the sales effected are fo'r..._lgéQia|' findings are based on the matericai evidence "on record and there is no error themtrial Court in holding so. Hence, the _saleAs'~eff,ecte'd-:"for family and legal necessity are valid and bi'ndiri'g'orithe plaintiff. He defends the findings of the trial t. Court*'and submits that the sale deeds have to be held in ""._Vt"erms of legal necessity. In support of his case he places reliance on the Judgments in the case of SUBODHKUMAR 8:
OTHERS VS. BHAGWANT NAEVEDEORAO MEHETRE & VA"
__25......
OTHERS reported in AIR 2007 SC 1324 and SUGALABAI vs. GUNDAPPA A.MARADI.....;§i\i.o'CA./jotHr#iF<:su"~.,_ reported in ILR 2007 KARNATAKZA 4790;. '1' 'V V'
16. Heard counsei for thge"~.parties.__andgrefetred' to the" V record of the triai Court.
17. The.--t:ria_| that the sate of defendant No.1 effected in 16 and the father of defenidants the iegai necessity of the famiiy. VVI'ra.._t%he iig-htiof pieadings and evidence, the triai that"def.er':dant No.1 was a decent agricuitorist, ' w4o'ri§'ed"'hard to maintain his famiiy; there was no .'evdi'denceV--V't1jWast he was a drunkard, a gambler, or having any extra~hji_aritai retationship. That he acquired a large A informer of properties for the benefit of the famiiy and was Vigcompeiied to seli some of them for the soie purpose of famiiy necessity. The necessity occasioned was the marriage of the daughters of the 15' defendant and certain VV:-r
-26..
family debts. The trial Court disbelieved the _the plaintiff that it was the plaintiff who_....I?§'rfo':5rifie.d marriage of his sisters namely} de_fe'njda.nt1s_'5h:"to~.,,:L8'VV§rl;d therefore the sale of certa.in.4_prop'e.rty by sdvéfendlantj was not for legal necessity.V"l'i'£.3._Vn auppreciautiozn of material evidence the trial and held that the sale__deeds_._.e:Xecu'téd: of defendant l\ios.10, 11 to 15 are for legal riec€e.5vsi?t_y;»'«.'Van'd The plaintiff has also to the defendant No.1 under ltheA:.l:/'A'Iln:_an{l:Ls""Abolition Act by the Deputy Cornmissiolnerylfolr Irzarris is the self acquired property of .. ..... ..
.."'Tthie:*dAefendant No.1 has categorically stated that the .. i.a.nds'rg"ranted in his favour is not his self acquired property the property of the joint family. Hence in view of the admission made by the 15' defendant, the lands granted to him by the Deputy Commissioner are held as joint family 094»----~ ......2""i'__ properties. Even though defendant No.1 soughi.,tou~.g'_a'i'.i1Jby the plea of the plaintiff, the defendant to treat the said properties as the joiintifoyrtiilygg conduct of the defendant N.o..3_. is inreal te.rrns..Vagairistihisg interest. If the intention of No-..1'::weretéotherwise, nothing prevented remaining properties also, .~..pVl&.AAi'.I'gj;Vrefendant No.1 is bonafide. are for famiiy and legal. the fact that even though the properties are self acquiredyéby No.1, they being offered as _ Vi' properties by the defendant joint" faxm-ily is avriwadditional reason to hold that the sales Leffected-«._by.ii'V-d--efendant No.1 were purely and clearly for fa'miiy_i'and7' legal necessity. Under these circumstances we .. hold that the sale deeds executed by defendant No.1 were "'~,_VVfor"'not his personal benefit but soleiy on behalf of the "ffamily for legai necessity. We do not find any error corrirnitted by the trial Court in recording the finding of fact vie ..23..
on the contentious issue and accordingiy we....a_?firrn;~Vti1Ve finding that the saie deeds executed by defe'n.dainA_t-Néoi1-in V' favour of Defendant No.10, 16 and 'de§e'n"dai'ét 11 to 15 are for the legal necessity;-A
18.(a) Sri Nag_avr_aj,jlelarnedficetunselllylaooearing for the appeiiantAwcontendgs"'._thla_tl of the Hindu Succession has': to the case on hand. He: partitéonlhaving opened prior to 2005:» th--'eWpvrovisi.ons of Section 6 has no apipficgation.»._.éi§ie'--tu'i=t_h-'e;'"'contends that the provisions of Seetivon 644A-.Ana'rf3ei'§r, the "Hindu Succession (Karnataka _Areen'td:'ment) ActiWi«99O" states that nothing contained in I entitle a daughter married prior to or to a Apa.rtitg_i_»onD: which has been effected before the agcgonwnden-cement of Hindu Succession (Arnendment)Act «S1-9330, ta claim an equal share to that of a son. He submits that the Karnataka Amendment Act,199O is repugnant to Section 6 of the Hindu Succession Act, 2905 namely, Act Ofikr
-29., No.39/2005 enacted by the Parliament. There'f--o.'r_jey__'_'to' _,.t'l:..e extent of repugnancy namely, to of exclusion of the daughters commencement of the Higndo Su'cce'ssEoncV.A.ct:'1é99Q,.'"theg Central Amendment Act will no llaipolicatlon. Hence since the daugghters ltheucoming into force of the l<ar._nataka...Anflenlhdncten§y,,y§cAtli'V_.il§:.9O and in view of the C3'e'nAtra_l' the daughters namely twllllllévlrlgotlhave any share in the jol ntfifamtly' o_e'rtEes:f"'~« .
Section )(a') -{ea-.d"s».a7S follows: --
"6__(1) from the commencement of the A_ '«H-l.nd~-:l__Succession (Amendment) Act, 2005, in A iol.::"1t Hindu Family governed by the .l\:'ll'i:t~alw.<shara law, the daughter of a coparcener rd;shail,~ 'A (a) ............ ..
(13) ............. ,.
(C) ...................... .. "
QC&.....
..30M
b) The Act makes it clear that Section 6;l's----a_,pp'l_ica,_b'ie to all daughters by birth. It therefore applicability of the Section is not are born subsequent to ther'a,__mending'* Act sail: to all daughters born prior to also',4i"~..._V'lhe having been enacted in order:_t'o~ rem.o}rei"theu:d'i~sparltyl between the sons and the d_aught,e..rs:'_wohujlidigg viewed from such an the object of the Parliarnent..,.yya4.s;*',to to daughters who are Ac-t,H'the Act would have been clear in those :_4"ln,'oii'J'ever, that is not the case. The arniendigng 2A'ctV_V'refers. to all such daughters and is not to the daughters born only after the date of ._a~nnen'di'i--:.g_ For these reasons, this contention urged by the le.a'rri-ed counsel for the appellant is unsustainable.
c) The contention of repugnancy of Section 6 of the V';Hinclu Succession Act, 2005, the Act 39/2305 namely, the Act enacted by the Parliament to Section 6--A(d) of the Karriataka Amendment Act 1990 is unsustainable. The ajlc
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Amending Act 39 of ZOOS was enacted after the Karnataka Amendment Act 1990 came into force. Section is an amendment brought about by the State. an amendment brought about by Pariia.m.e_:n~tV.':~A.lTh'e lllelgallfl position is that, whenever there ispja; r'epuAgn_a'ri€;y:p,:'Vto[Vthe'.,, extent of the repugnancv thielact Parliament would have to relitiance on the Constitution Bench l--lo'n'tA>wie Supreme Court reported in 8'§VV.8'x5{.'iigi_];<ARuNANIoHI vs. UNIQN proposition of law. Hence, on the questionof r'e.péu=tjAria:_ncv"'w'e have no hesitation to hold that the'Centrait-.AVmend.i'ngTAct 39/2005 overrides Section of 6- ofithejvi'iiarnatallita State Amendment Act 1990 and hence of enactment of the Central Act 39/2605, it-he pr:~ovlipsions of Section 6--A of the Karnataka Amendment AA TAct.qh.a:ve no application.
d) The further contention is that the application of F Act 39/2065 is prospective from the date of the said r_..._...
enactment and not retrospective. Therefore, the F a I _.32....
daughter to ciaim an equai share would arise;"o'r"iiiy'_~ffonj the date of the amending Act. Therefore,_.~th,e'f.pro.Qis.ions"
Section 6 of Act 39/2oos havefino:.agpplic.atio'n--.t'o~5t.h_eu:.{§aise "
on hand. We are unable to' accept' conttve'n'ti,o_ri. 6(1) of the Act clearly referlslylétoj. so far applicability is concerned, by i.".Atho.s'ei"'i.situations wherein disposition or partition or testamentary"A'§1~.§..§po.s::.i;idn""of'.:_"a:..VVpwrofigrty had taken piace prior to 20--12~2004. In the _' there is no testamentary dispoxsitiV_o'nor has been effected prior to the cut~o.ff date.-. _H'e'nceV,' the contention of the learned counsei .Vfo'rV.thef' p'"e~tjitioner""that the provisions of Section 6(1) are njotfvaVppVl"icai'ble to the present case is unsustainable. M'-oreo_ver,..:'~"Act 39/2005 has been enacted during the .gpend'ei-icy of these proceedings. As held in a catena of «W._"d»ecisions, any iaw enacted would stand applicable in its xienforcement even to pending proceedings. Since the present proceedings were pending at the time of the VA"
-33."
enactment of Act 39/2005, the provisions of the amending Act 39/2005 would be appiicable to the instant cas'e";.y
e) It was further contended that the p.rf0\J_i_'Sri_0"Fi;3 of the amending Act 39/2005 shoufd be such cases where disposition~~o_r4 a.l'ienvation'"in_cuEu'cl_VinV§:;i. partition or any testamentary before 20"' December, ItA"is__Lh_erefo'i:e""c~ontended that since the partition hasibeer-1. openedfoin. filing the suit, theii;pro_vision.s"poi?the4La~njend*Eng Act are not appficable. We are ur..abEe t'oiv..acc'ept'~.i:'he"said contention. The proviso to Section 6.2subV--'S'ecti'onv(1) would read that the sub-Section ."Vs'hail""'lriot'affect invalidate any disposition or alienation V '«.i'_.1clu-tl:i'n§} any" partition or testamentary disposition prior to '20"'..__'December, 2004. There is no material placed on .. Virecord' to show that a partition between the family irmembers had taken pface earlier to 20.12.2004. The 2' partition is sought to be effected by virtue of the instant suit. Therefore, the material on record wouid not disciose err "34- a prior partition of the joint Consequently, the contention that in to Section 6 of the amending Act no application to the Vpr.e.sent"'._case unsustainable in law. Tthveretorpwe, fr. 'partition or testamentary disposi_t:;«-oynta'i<.»e'n.1placeA prior to the amending Act,' the 6 will have no application:_: "p-rior to the cut off date will not Act of 2005. In the _nou"prior partition the provisions of Sec't.lon _6(':t)_ b4e'--«.app'"licable. 19.2' Itis-._co.nt'e.--nded that Survey Number 127 has I?':.é'er1:'.,:.Q£\{ei1 9"' defendant Chikkamrna and one ':aéC:angva:_"ilfiiantu-makka namely, the wife of the brother of .'td'e?endant l'§}o.1 and hence this land is liable for partition. The contention is unsustainable. Survey No.12? has been _c}i'v_en to defendant No.9, namely, the wife of the younger Vtgbrother of 1" defendant and Ganga Hanumakka in the WA"
9', Hence _35_ earstwhiie family of the father of defendant No.1. Hence, from that onwards the property has become theepsoiute property of defendant N09, and hence no péa.rtiti,o'n.'"ofthis property could be made.
20. However, it can bevseeny ti-i'at'VV'So.-.ryey .4i'_\iprf:.bers. 23 measuring 1 acre 11 guntas measuring 13 guntas have:"a,ipso b'ee_n'giyren""..t'c5"'defendant No.9 and Ganga E-Ianumaia-ka:"as"i~ife inte're.st..5E Therefore, defeiwdariti"iviNo_,,9V3'.,ari.d:"'~f§_anga Hanumakka are entitled to en}oy'.t_he., saidty\:o:_4"p_rLop'erties during their iife time and aftercywhiciiii-the'two' properties wouid be iiable for partition. \.?v*e,_.are ofmthe considered View that so far as Survey I V '«.iNLii'n=i.i):'er:' 37/2 are concerned the same are not iiable for pa'it§t~ion during the iife time of defendant No.9 and _ _('3an'g---a Hanurnakka. Thereafter, the properties wiil devoive 9' "--i:-°:"terrns of the present decree. 'V/C"
.. 35 ..
21. The Suit ciaim for Survey No.3/3 of 'A5-Scheduie property has been filed during the year_;§iS9i.'na'meéy beyond period of 12 years from the date oif_:isaiVe..i"fhei.isaiiie.._V was affected on 4.6.1962. Hen;:'e',i s'o«f_ai.j as s:u"rvey"P§k«'urnberj'. 3/3 is concerned, the suit is ci:'ie_arl.y barre_.d"»by iii--ri'i'i~taition and hence the suit ciaimyvas, rejec--teid»».s'o fazriiais Survey number 3/3 is co,ri"cernedff" theisaiei effected in' favour of 10"' defendantiiv/'nth Survey Number 3/3 was t;.indi._ng. t«hAe'viii.'p.lai'ntiff. We find no error committ_eti5bvy_ythe t~:7ia"i«.§_jourjt on this issue. The same is in accordancye iwi_th-..i'avvI'».__'Hence the finding of the triai court on this issue_ is confirmed.
suit scheduie properties and the iands 'g._ran__t'ed,i'.:i3y the Deputy Commissioner are heéd to be the _ ancestrai properties. Being ancestral properties the father V"-namely, defendant No.1 had no authority in éaw to execute V the gift deeds of those properties. Ancestral properties in iaw carmot be gifted. Hence we have no hesitation to hoéd <W~ .....37.....
that the gift deeds executed by defendant No.1 in favour of defendant Nos.S to 8 are null and void and'»._ar.e not binding on the share of the plaintiff. Howe§\_'/"e'r,-«'..'_tV--h_f:e__V':s-game would be binding so far as share concerned. However, having ihelcliithatll'defendant-s__ 5a;_to 88"' are entitled to an equal share to that' of ar.'s'o'n,»:4eVach§ oneof defendants 5 to 8 are enftitlfedu to "1,1:7f_": share in the ancestral propertvv 'éExeci:iti~~n'g.l'Court while executing the decree and while...alljotti--ngga_177f"V"sh"a"re to each of the defendants7'._-V5___ _' take into consideration the possession defendants 5 to 8 by virtue of the gift .8 deeds and shall accordingly apportion the farmas possible to the possession of the lands if virtue of the gift deeds.
F'or';tl"i'e aforesaid reaso ns:
g 8' xi) RFA No.522/1998 is dismissed.
2) RFA No.187/1994 is partly allowed as follows:
888"
__38_._
a) The suit is partly decreed the appe|lant--plaintiff is entitled to 1/7"' share.--'..'::"
Defendant i\ios.1, 3,V~5',""E«,.y7,--'_48 arei'V:each~.e~nt'itiedj to 1/7*' share.
b) The lands grantye_dVVi'»to'wadefendant i\%:§o.1 by the Deputy Comnnissione-rV.."ar.e'-.heiid.t'o"--lj'e.:palr1cestraE properties. S't§;i>f"§1jS'd'i'S'n'(H.éSed in so far as Sy.No.3/3 of 'A.'_ stljedu lgTp::§ concerned.
'd__)'The=.sa'~!..e- executed by defendant No.1 in favour oi.Vd~eferida:it No.10, defendant No.16 and in favour .V«V'o'fV.tb'i:e f'a~t_Ejer ovimdefendant No. 11 to 15 are valid and it appeliantwplai ntiff.
" Survey No.12? of 'A' schedule property is declared it 'r..to'*.-'be the absolute property of defendant No.9 and hence not liable for partition.
Q6?/<"
-39..
r) Survey No.23 and 37/2 are not liableifc}£1'pa'rtiauu:jio.n during the lifetime of Defendant _-:\lo'.9i:'_':andv".VCaaVng"a_h"-- é-lanumakka. Thereafter they shai|:;'de.voivlel 'in:"terVrv"r:i"s..Adithis order.
g) The gift d'e-elder leyxeycgitéédfEjiyfilefendant No.1 in favour of defenvdantl"i'\i'os["'3"to'-,8' .a'.re:clejclared as null and void and_ pfypeiiaynltepiaintiff. However, the1.:Execult§n-:3fioui*t.L'i's..VV__dlrected, that while executing the decre'e.__a'nid vvhile'A'aoi3«.or'ti'oning 1/7" share to each of the defendants'-.3V't'o'18 shall apportion the lands to the share of defendants 5 to 8 to the extent held by them V-'.irtueV.A'Cif.--:"the gift deeds given to them by defendant No.1..__v'as-oagiainst their respective 1/7"' share. If inspite of .. Vuapportioning the lands under the gift deed towards their "'rindividual 1/7"' share if any excess land remains, the same V/<"'