Karnataka High Court
Smt Renukadevi vs Smt Jayamma on 20 April, 2022
Bench: G.Narendar, M.G.S. Kamal
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF APRIL, 2022
PRESENT
THE HON'BLE MR.JUSTICE G.NARENDAR
AND
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
REGULAR FIRST APPEAL NO. 105 OF 2022 (PAR-INJ)
BETWEEN:
1 . SMT. RENUKADEVI
D/O THIMMARAYAPPA K.
W/O ANANTHARAM
AGED ABOUT 60 YEARS
2 . SMT. GAYATHRIDEVI
D/O THIMMARAYAPPA K.
W/O LATE SHIVANNA
AGED ABOUT 60 YEARS
3 . SMT PREMA
D/O THIMMARAYAPPA K.
W/O DODDAHANUMANTHAIAH
AGED ABOUT 55 YEARS
ALL R/AT THALAGHATAPURA
UTTARAHALLI HOBLI
BENGALURU SOUTH TALUK - 560 062.
....APPELLANTS
(BY SRI. T.H.AVIN, ADVOCATE FOR
SRI. SUBHAS CHANDRA BOSE, ADVOCATE)
2
AND:
1. SMT. JAYAMMA
D/O LATE CHENNAPPA
AGED ABOUT 65 YEARS
SRI. JAYARAMA
S/O LATE CHANNAPPA
(SINCE DECEASED BY HIS LRS)
2. SANTHOSH
S/O LATE JAYARAM
AGED ABOUT 40 YEARS
3. PRADEEP
S/O LATE JAYARAMA
AGED ABOUT 36 YEARS
4. SRI. JANARDHANA
S/O LATE CHANNAPPA
AGED ABOUT 68 YEARS
5. SRI. CHANDRASHEKARA
S/O LATE CHANNAPPA
AGED ABOUT 53 YEARS
6. SRI. RAJASHEKAR
S/O LATE CHANNAPPA
AGED ABOUT 62 YEARS
7. SRI THIMMARAYAPPA
S/O LATE THIMMARAYAPPA
AGED ABOUT 85 YEARS
THIMMARAJU
S/O LATE THIMMARAYAPPA
(SINCE DECEASED BY LRS)
8. YOGESH
3
S/O LATE THIMMARAJU
AGED ABOUT 25 YEARS
9. SRI. RAVISHANKAR
S/O LATE THIMMARAYAPPA
AGED ABOUT 62 YEARS
10 . SRI. MANJUNATHA
S/O THIMMARAYAPPA
AGED ABOUT 47 YEARS
11 . SRI MANJUNATHA
S/O LATE MUNISWAMAPPA
AGED ABOUT 48 YEARS
12 . SRI RAMESH
S/O LATE MUNISWAMAPPA,
AGED ABOUT 36 YEARS
ALL ARE R/AT THALAGHATATAPURA
UTTARAHALLI HOBLI
BENGALURU SOUTH TALUK - 560 062.
13 . KEEPEL PURVANKARA
DEVELOPMENT PRIVATE LIMITED
A COMPANY INCORPORATED UNDER
THE COMPANIES ACT, 1956
HAVING ITS OFFICE AT
NO 21/30, GRAIG PARK LAYOUT,
M G ROAD,
BENGALURU - 560 001.
REPRESENTED BY ITS AUTHORIZED
SIGNATORY
....RESPONDENTS
(BY SMT. MARSHA GOVEAS, ADVOCATE FOR
SRI. TEJAS S.R, ADVOCATE FOR C/R13)
4
THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 OF CPC AGAINST THE JUDGMENT AND
DECREE DATED:23.08.2021 PASSED ON IA NO.3 IN
O.S.NO.599/2011 ON THE FILE OF THE III ADDITIONAL
SENIOR CIVIL JUDGE, BENGALURU (R) DISTRICT,
BENGALURU, ALLOWING I.A.NO.3 FILED UNDER ORDER 7
RULE 11(A) AND (D) READ WITH SECTION 151 OF CPC.
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, M.G.S.KAMAL J, DELIVERED THE FOLLOWING:
JUDGMENT
Present appeal is filed by the plaintiffs aggrieved by the Order dated 23.08.2021 passed in O.S.No.595/2011 on the file of III Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru (hereinafter referred to as the 'Trial Court') in and by which, the trial Court allowing the application filed by the defendant No.12 under Order 7 Rule 11 (a) and (d) read with Section 151 of CPC rejected the plaint on the grounds of same not disclosing the cause of action and also hit by proviso to Section 6(1) of Hindu Succession Act, 1956 (hereinafter referred to as the 'Act, 1956'). 5
2. The plaintiffs filed the above suit seeking relief of partition and separate possession and consequential relief of permanent injunction contending inter alia that the suit schedule property belong to one Sri.Kariyanna the original propositus, who had three sons, namely, Sri.Channappa, Sri.Thimmarayappa and Sri.Muniswamappa. That the plaintiffs and the defendants are the grand children of Sri. Kariyanna through his aforesaid sons. Thus, the plaintiffs and the defendants constituted a Hindu joint family and the suit schedule properties had remained within the family without any partition between the parties. That despite a demand by the plaintiffs, defendants did not partition the property constraining the plaintiffs to file suit seeking their share in the suit schedule property.
3. Defendant No.12 filed an application under Order 7 Rule 11 (a) and (d) of CPC, seeking rejection of the plaint on the grounds that it did not disclose any 6 cause of action and the same was barred in view of the proviso to Section 6(1) of the Act, 1956. The trial Court by the impugned order allowed the said application and rejected the plaint. Aggrieved by the same, the plaintiffs are before this Court.
4. Learned counsel for the plaintiffs/appellants submits;
(a) that the plaint averments contain material facts necessary to formulate the complete cause of action disclosing a clear right to sue accrued in favour of the plaintiffs as such the cause of action was not illusory one.
(b) that a suit for partition is an incident attached to the jointly held property and is a running cause of action and when the co-owner does not want to keep his share undivided with other co-owner is entitled to seek for division, which the trial Court has lost sight of. 7
(c) that the trial Court erred in holding that the plaintiffs learnt about the alienation made by the defendants-Sri.Channappa and Sri. Muniswamappa on 22.02.2011 though the plaintiffs have not pleaded as to when and in whose favour sale deed was executed and whether or not sale deeds were registered. That in the absence of such details, the trial Court erred in concluding that the suit is required under proviso to Section 6 (1) of the Act, 1956.
(d) That the daughters under the amended Act, 1956, are entitled to claim rights retrospectively as held by the Apex Court in the case of Vineeta Sharma vs. Rakesh Sharma and others reported in AIR 2020 SC 3717. As such, the order passed by the trial Court is illegal and requires to be set aside.
8
5. Learned counsel for the respondents justifying the order passed by the trial Court brings to the attention of this Court the averments made by the plaintiffs at paragraph 7 of their plaint with regard to the alienation of suit schedule properties by Sri.Channappa and Sri.Muniswamappa and thus submits that the plaint averments categorically disclose the knowledge of the plaintiffs regarding suit schedule properties having been alienated prior to the cut off date prescribed under the Proviso to Section 6(1) of the Act, 1956. Hence, seeks for dismissal of the suit.
6. Learned counsel for the appellants/plaintiffs fairly submits that the plaintiffs do not dispute the alienation of the suit schedule properties by Sri.Channappa and late Muniswamappa prior to the cut off date mentioned in the proviso to Section 6(1) of the Act, 1956. However, he insist that in view of the law laid down by the Apex Court in the case of Vineeta Sharma (supra) the daughter's right to claim share in 9 the coparcener property has been recognized and therefore, the trial Court ought not to have rejected the plaint.
7. Heard learned counsel for the parties. Perused the records.
8. It is not in dispute that the suit schedule properties have been alienated prior to the cut off dates provided under the Proviso to Section 6(1) of the Act, 1956. The Apex Court in the case of Vineeta Sharma (Supra) has held that the daughter is treated as a coparcener in the same manner as a son by birth with the same rights in coparcenary property and liabilities. However, the proviso of sub-section (1) contains a non obstante clause providing that nothing contained in the sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of the property which had taken place before 20.12.2004....... The rights can be claimed by the daughters 10 born earlier with effect from 09.09.2005 with Savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.
9. In the instant case, the suit schedule properties have been sold in the year 1995-96 which is prior to 20.12.2004 being the cut off dates provided under the proviso and the suit instituted by the plaintiffs is of the year 2011, which has rightly held by the trial Court is hit by a proviso to Section 6(1) of the Act, 1956 warranting rejection of the plaint. Though the plaintiffs have not given the details of alienation, but have specifically pleaded so, in paragraph 7 of the plaint. The trial Court at paragraphs 18 and 19 of its order has taken note of these aspects of the matter and has read the said paragraph with the plaint documents namely, the records of rights produced by the plaintiffs in which the alienation of the year 1995- 96 are reflected and the same is not disputed by the 11 plaintiffs. In that view of the matter, no infirmity or illegality can be found in the order passed by the trial Court warranting interference. Hence, the appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE RU