Bangalore District Court
Smt. Rathnamma vs Sri Gopala Reddy on 9 March, 2020
C.R.P.67 Govt. of Karnataka
Form No.9(Civil)
Title Sheet for
Judgment in Suits
(R.P.91)
TITLE SHEET FOR JUDGMENTS IN SUITS
IN THE COURT OF THE XII ADDL. CITY CIVIL JUDGE, AT
BENGALURU
Dated this the 9th day of March, 2020.
PRESENT: SRI. SATHISHA L.P., B.A.,LL.B.,
XII ADDL.CITY CIVIL & SESSIONS JUDGE
(CCH.No.27), BENGALURU
O.S.No.8477/2014
PLAINTIFFS : 1. Smt. Rathnamma
Aged about 51 years
W/o Sathyanarayana Reddy,
D/o Late Narayana Reddy @
Narayanappa,
Residing at No.002, Maruthi Nilaya
Muni Reddy Layout, 2nd Cross,
White Field Road,
Mahadevapura,
Bengaluru-560 048
2. Sri Mohan Babu Reddy
S/o Late Bhagyamma,
Aged about 37 years
Residing at No.555, 3rd Cross,
Behind B.B.M.P. Office,
Bellandur
Bengaluru-560 103
(By Sri Papi Reddy G., Advocate)
2 O.S.No.8477/2014
VS.
DEFENDANTS : 1. Sri Gopala Reddy,
S/o Late Narayanappa,
Aged about 59 years
Residing at No.58, 6th Cross,
Bellandur Village,
Bengaluru-560 103
2. Sri Venkatesh Reddy
S/o Late Narayanappa,
Aged about 59 years
Residing at No.58, 6th Cross,
Bellandur Village,
Bengaluru-560 103
3. Smt. Lavanya
D/o Late Krishna Reddy,
Aged about 31 years
Residing at Bellandur Main Road,
Behind Dental Clinic,
Bellandur Village,
Opp. Ayyappa Bakery,
Bengaluru-560 103
4. Sri Praveen Kumar,
S/o Late Krishna Reddy,
Aged about 29 years
Residing at Bellandur Main Road,
Behind Dental Clinic,
Bellandur Village,
Opp. Ayyappa Bakery,
Bengaluru-560 103
5. Smt. Manjula
D/o Late Narayanappa,
Aged about 44 years
3 O.S.No.8477/2014
Residing at No.29, 13th Main,
13th 'D' Cross, Kaggadasapura,
C.V. Ramannagar Post
Bengaluru
(By Sri KVS, Advocate)
Date of Institution of the suit : 06.11.2014
Nature of the suit : Suit for Partition
Date of commencement of : 19.06.2017
recording of the evidence
Date on which the Judgment was : 09.03.2020
pronounced
Total Duration Years Months Days
05 04 03
(SATHISHA L.P.)
XII ADDL.CITY CIVIL & SESSIONS JUDGE
BENGALURU CITY
JUDGMENT
This suit is filed by the plaintiffs for the relief of partition and separate possession of plaintiffs 1/6th share each in all the suit schedule properties by metes and bounds and for mesne profits and such other reliefs along with costs. 4 O.S.No.8477/2014
2. The brief facts of the plaintiffs' case is that, plaintiff No.2 is son of deceased Bhagyamma and deceased Bhagyamma, plaintiff No.1, defendants No.1, 2, 5 and father of defendants No.3 and 4 namely Krishna Reddy are the children of Narayanappa and Muniyamma. The said Narayanappa died in the year 1976 and Muniyamma is also no more and she died on 04.03.2007. The said Bhagyamma died on 09.11.1995 leaving behind plaintiff No.2 to succeed to her estate. The plaintiffs and defendants are Hindus by religion and they constitute Hindu Undivided Family jointly owning and possessing the properties specified in the schedule of the plaint. Father of plaintiff No.1, defendant No.1, 2 and 5 and grandfather of plaintiff No.2 and defendants No.3 and 4 namely Narayanappa had acquired the property bearing Sy.No.78/1 measuring 1 acre 2 guntas, Sy.No.32/11 measuring 5 guntas, 32/13 measuring 1 gunta and Sy.No.78/4 measuring 1 gunta of Bellandur village, Varthur Hobli, Bengaluru East Taluk under the family partition took place between him and his brother Shamanna and detailed description of the said properties are referred to as items No.1 to 4 of the 5 O.S.No.8477/2014 plaint schedule properties. Father of the plaintiff No1 died about 33 years back leaving behind his wife and three daughters and three sons. After his death, khatha of the suit schedule properties are mutated in the name of his wife Smt. Muniyamma as per IHC No.4/1986-87. The said Muniyamma died on 09.03.2007 leaving behind the plaintiffs and defendants and thus plaintiffs and defendants are in joint possession and enjoyment of the suit schedule properties as coparceners. There was/is no partition of the joint estate among the plaintiffs and defendants. The khatha of the suit schedule properties are standing in the name of Muniyamma, the mother of plaintiff No.1 from 1986 till today. Now the defendants No.1, 2 and 4 are negotiating to sell the suit properties to make wrongful gain. The suit schedule properties are ancestral properties of the plaintiffs and defendants and they are in joint possession of the same as joint owners. The plaintiffs are having direct and subsisting right and interest over the suit schedule sites. Defendants No.1, 2 and 4 are acting detrimental to the interest of the plaintiffs in respect of the suit schedule properties. The Village Accountant of Bellandur village has 6 O.S.No.8477/2014 informed the plaintiffs that, the defendants are approached the revenue office for change of khatha in their names by producing the death certificate of their mother and they have also applied for 11E sketch, which is necessary for selling the lands. After coming to know the illegal activities of the defendants, the plaintiffs had demanded the defendants No.1, 2 and 4 for equitable partition of the joint estate in the last week of October 2014. Initially they agreed to effect partition in respect of the suit schedule properties. Later on 02.11.2014 the defendants No.1, 2 and 4 have declined to effect partition by dodging the matter for one or the other reasons. The plaintiffs are not interested to continue the joint family as well as suit schedule properties as joint owners. Under these circumstances, plaintiffs seeks to decree the suit by allotting share in the schedule properties.
3. The defendants No.1 and 2 have appeared before Court and filed detailed written statement by denying and disputing the plaint averments. Wherein they have contended that, suit of the plaintiffs is not maintainable either on law or facts 7 O.S.No.8477/2014 of the case. The daughters of Narayanappa did not have any rights in the family properties. Smt. Rathnamma, the plaintiff No.1 had voluntarily conceded the family settlement held within the said family in the year 2002 under which all the family properties have been settled in favour of defendants No.1 and 2 and father of defendants No.3 and 4 late Krishna Reddy and she has also received a sum of Rs.2,00,000/- towards all her rights if any, in respect of the family properties, which has been further confirmed by her in memorandum of family settlement dated 05.08.2002 and acted upon by all the family members. Smt. Bhagyamma, deceased mother of plaintiff No.2 was born in the year 1952 before enactment of Hindu Succession Act in 1956 and she died on 07.11.1995 much prior to coming effect of amended Act of 2005, which is prospective in effect. Hence she did not possess any rights in respect of family properties and even if she had any rights, the same was extinguished when the amended Act came into force. Hence both amongst the plaintiffs are not entitled for any right in respect of the schedule properties, as such the suit is liable to be dismissed.
8 O.S.No.8477/2014
Further it is contended that suit of the plaintiffs is barred by limitation. Defendants No.1 and 2 and late Krishna Reddy, the father of defendants No.3 and 4 were in exclusive peaceful possession and enjoyment of the suit schedule properties ever since the date of demise of late Narayanappa and after the demise of Krishna Reddy, defendants No.1 to 4 have been in exclusive possession and enjoyment of the schedule properties. Smt. Rathnamma and Bhgyamma had been separated from the joint family nucleus more than 30 years prior to the date of the suit and at no point of time the plaintiffs were in physical or constructive possession of the suit schedule properties. Hence there is no meaning in claiming that they are in joint possession of the schedule properties. As such the suit of the plaintiffs could not fit within the purview of Article 35(2) Karnataka Court Fees and Suits Valuation Act. The rights of the properties if any are barred by limitation.
Plaintiff No.1 and Bhagyamma never resided in Bellandur village at any point of time, after their marriage they have been 9 O.S.No.8477/2014 shifted to other place more than 30 years back from the date of the suit. The plaintiffs have fabricated a false story and claimed that they were in joint possession of the suit schedule properties Hence the cause alleged in the plaint is concocted for the purpose filing the suit. There is no cause of action for the suit and the cause if any is also barred by limitation. The plaintiffs are well aware that the suit schedule properties have been settled in favour of defendants No.1 and 2 and father of defendants No.3 and 4 late Krishna Reddy much prior to 2002 and ever since then they have been in exclusive ownership and possession of the suit properties by getting transferred the khatha in the name of their mother till this date. Hence there is no question of their seeking partition and allotting them their separated share in the suit schedule properties as claimed by them, which is a stale claim. The plaintiffs have not valued the suit properly and have not paid court fee sufficiently. The provision of Article 35(2) of Karnataka Court Fees and Suits Valuation Act shall be attracted if and only if the plaintiffs have been in joint possession of the property. The plaintiffs have been separated from the family more than 30 years 10 O.S.No.8477/2014 back. Neither Bhagyamma nor the plaintiffs were in possession of the schedule properties at any point of time and late Krishna Reddy and defendants No.1 to 4 are in exclusive possession and enjoyment of the suit schedule properties after the death of Narayanappa. Hence the provision of Article 35(2) of Karnataka Court Fees and Suits Valuation Act shall not be attracted in any way. On the other hand, the suit is in the nature of declaration and for possession and no way it will fit under Article 35(2) of Karnataka Court Fees and Suits Valuation Act. Hence the suit is liable to be rejected on this ground alone.
It is further submitted that, in the year 1998 there happened to be a family settlement in the joint family under which all the family properties have been settled in favour of defendants No.1 and 2 and Krishna Reddy, the father of defendants No.3 and 4. Under the said family settlement it was mutually decided by all the family members that a sum of Rs.2,00,000/- shall be paid to Smt. Rathnamma, defendant No.1 towards full and final settlement of her right if any in respect of 11 O.S.No.8477/2014 family properties. Accordingly Rathnamma has received a sum of Rs.2,00,000/- for her voluntarily settling all the right in respect of family properties in favour of defendant No.1, 2 and Krishna Reddy. Further memorandum of family settlement dated 05.08.2002 came to be signed by all the said family members including plaintiff No.1, thereby confirming the terms of the said family settlement earlier arrived by them. All the family members have duly acted upon the terms of the said family settlement. Hence plaintiff No.1 cannot shirk from the terms of the said family settlement. Therefore plaintiff No.1 cannot claim any rights on the suit schedule properties.
It is further contended that, during the first week of March 2008 plaintiff No.1 Smt. Rathnamma and her sister Smt. Manjula had come to the house of the defendant No.1 Sri Gopal Reddy along with one Ramaiah Reddy who is the brother-in-law of defendant No.1 and they agitated that the amounts earlier paid to them in respect of joint family properties as stated in the said memorandum of family arrangement dated 05.08.2002 is very 12 O.S.No.8477/2014 less and though they have agreed for the same and accepted the same as full and final settlement, some more additional amount may be paid to them since they are in financial difficulties. Though the said demand was not acceptable for defendant No.1, considering the fact that they are in financial difficulties, defendant No.1 has paid Rs.2,50,000/- each to Smt. Muniyamma and Smt. Manjula by means of cheque No.639858 and 639859 both dated 15.03.2008, Cauvery Grameena Bank. The plaintiff No.1 and Smt. Manjula have received the said amounts as full and final settlement of all their rights, if any in respect of the ancestral properties with a promise that that they shall not claim any rights in respect of ancestral properties in future. Hence plaintiff No.1 cannot turn around and claim further rights in respect of suit schedule properties.
It is further contended that, Smt. Bagyamma, the deceased mother of plaintiff No.2 was born in the year 1952 before enactment of Hindu Succession Act in the year 1956. Hence she cannot claim any rights under the provision of law. Moreover 13 O.S.No.8477/2014 admittedly Smt. Bhagyamma died on 07.11.1995, much prior to coming effect of amended Act of 2005. The said amendment is prospective in effect from 2005. When she did not possess any rights in respect of family properties, even if she has any rights, the same had already extinguished in 2005 when the amended Act came into force. Hence both plaintiffs are not entitled for any rights in respect of the suit schedule properties, as such the suit is liable to be dismissed.
It is further contended by defendants No.1 and 2 that the defendants are not financially sound and they do not have any gainful avocation for life. Defendant No.1 is a handicapped person. Defendants No.1 to 4 compelled to bear expenses for maintaining the suit schedule properties and to pay huge mount of taxes all these years. Except item No.1 of suit schedule properties, all the other properties are of very small extent. Item No.2 is measuring 5 guntas, item No.3 is measuring 1 gunta, and item No.4 is measuring 1 gunta. Item No.1 of the suit schedule property, i.e., Sy.No.78/1 of Bellandur Village measuring 1 acre 2 14 O.S.No.8477/2014 guntas has been acquired by KIADB as early as in 2004 and the defendants No.1, 2 and 4 have arranged to file Writ Petition No.14316/2007 before the Hon'ble High Court of Karnataka, questioning the said acquisition by spending huge amounts. The said Writ Petition is allowed and Writ Appeal No.3087-88/2009 came to be filed by the beneficiary against the said order. The defendants No.1, 2 and 4 have also arranged to defend the said Writ Appeal by spending huge amounts and the writ appeal also came to be dismissed in favour of defendants No.1, 2 and 4 and against the said order in Writ Appeal, Special Leave Appeal (Civil) No.30159-160/2014 has been filed by the beneficiaries, which is still pending for disposal. The plaintiffs never bothered to participate in any of the aforesaid affairs of the family properties nor spend any amounts for the said cases. Hence it is very much clear that all the plaint averments are false. Beside without bothering to contribute for any cause, now the plaintiffs have no locus standi to claim rights in respect of the schedule properties and plaintiffs are not entitled for any relief much less as claimed 15 O.S.No.8477/2014 by them in the suit. Therefore defendants No.1 and 2 have sought for dismissal of the suit
4. Defendants No.3, 4 and 5 have filed memo adopting the written statement filed by defendants No.1 and 2.
5. On the basis of the above pleadings, my predecessor has framed the following issues on 08.11.2016:-
1. Whether the plaintiffs prove that plaintiffs and the defendants constitute a Hindu undivided joint family?
2. Whether the plaintiffs proves that the suit schedule properties are the joint family properties?
3. Whether the defendants prove that there is already a partition in the family as per the family settlement dated 05.08.2002 and the first plaintiff received Rs.2,00,000/- towards her share in the joint family properties?
4. Whether the defendants prove that the right of the 2nd plaintiff has been extinguished by the amended act of Hindu Succession Act 2005?
5. Whether the plaintiffs are entitled for any share in the suit schedule properties?
6. What Order or Decree?16 O.S.No.8477/2014
6. To substantiate the plaint averments, the plaintiff No.1 Rathnamma is examined as P.W.1 and Ex.P.1 to P.7 are marked and by confrontation Ex.P.8 and P.9 are marked. Ex.P.1 is mutation, Ex.P.2 to P.5 are RTCs, Ex.P.6 and P.7 are death certificates, Ex.P.8 is certified copy of written statement filed in O.S.No.558/2016, Ex.P.9 is certified copy of order in W.P.No.14316/2017. On the side of the defendants, defendant No.1 is examined as D.W.1 and Ex.D.1 to D.4 are marked. Ex.D.1 is partition deed dated 05.08.2002, Ex.D.2 and D.3 are index of land of Sy.No.78/1, Ex.D.4 is lease deed dated 07.05.2014.
7. Learned counsel for plaintiffs while submitting his argument has categorically contended that plaintiff No.1 is daughter of Narayanappa and Muniyamma and the relationship between the parties is not disputed and it is also not disputed that the property is ancestral property and in view of the decision rendered by the Hon'ble Court in Danamma's case, she is entitled for equal share and he disputed the partition deed, which is produced at Ex.D.1 by contending that the said document is not 17 O.S.No.8477/2014 registered and hence the same cannot be looked into. With these contentions he seeks to decree the suit and also he relied upon the decisions reported in (2018) 3 SCC 343, (2019) 6 SCC 162, 2011 (3) KCCR 1871 and ILR 1992 Karnataka 3449.
8. On the other hand, learned counsel for defendants has vehemently contended that, plaintiffs are not entitled for share in the suit schedule properties, as there is already a partition as per Ex.D.1 and she is also signatory to the said document and she has received the amount in lieu of her share. When she has signed the document, now she cannot dispute that she is not aware of the contents of the document and he has specifically canvassed the said document has severed the joint status of the family and hence when there is already a partition, the plaintiffs are not entitled for any share. With these contentions he seeks to dismiss the suit.
9. Having heard the arguments and perused the records, now my answers to the above issues are as under:-
Issue No.1: In the affirmative 18 O.S.No.8477/2014 Issue No.2: In the affirmative Issue No.3: In the negative Issue No.4: In the negative Issue No.5: In the affirmative Issue No.6: As per final order, for the following:-
REASONS
10. Issue Nos.1 to 5 :- All these issues are taken together for common discussion, since all the issues are interconnected and interwoven in such a way they should not be separated. Hence all the issues are taken together for common discussion.
11. The plaintiffs are before Court for the relief of partition and separate possession of 1/6th share claiming that plaintiff No.1 is daughter and plaintiff No.2 is grandson, defendant No.1 and 2 are sons, defendant No.5 is daughter and defendants No.3 and 4 are grand children of one Narayanappa and Muniyamma. The suit schedule properties are acquired by the said Narayanappa in the family partition between himself and his brother Shamanna. The plaintiffs further contends that since suit 19 O.S.No.8477/2014 schedule properties are ancestral properties, they are entitled for share as claimed in the suit. Hence they are before Court.
12. On the other hand, defendants No.1 and 2 who have filed written statement taken specific contention that there is already partition as per Ex.D.1 and hence the plaintiffs are not entitled for any share. With these contentions they seek to dismiss the suit.
13. Before considering the merits of the case, I would like to consider the admitted facts in this case. The relationship between the parties are not disputed and the same is admitted. And it is not disputed that suit schedule properties are ancestral properties which are acquired by Narayanappa in the family partition between himself and Shamanna. It is also not disputed that Narayanappa the original propositus died in the year 1976 and Smt Muniyamma, wife of Narayanappa died on 09.03.2007 and father of defendants No.3 and 4 is also no more and the mother of plaintiff No.2 Smt. Bhagyamma is died on 09.11.1995. 20 O.S.No.8477/2014 These are all admitted facts and nobody has disputed about these.
14. Since this is a partition suit, we have to consider the position of law in respect of the present suit. Plaintiff No.1 and 2 are class-I legal heirs, and likewise defendant No.1 to 5 are also class-I legal heirs of Narayanappa and Muniyamma. Plaintiff No.2 is claiming right through his mother Bhagyamma who died on 09.11.1995, which is evidenced as per Ex.P.7 the death certificate. Since both plaintiffs are claming share in the ancestral properties, we have to consider the present position of law in respect of the shares of the daughters. Section 6 of Hindu Succession Act has been amended and as per the decision of the Hon'ble Supreme Court in Prakash vs. Phulavathi case reported in 2015(6) Kar.L.J. 177 (SC), Hon'ble Supreme Court has categorically held that daughters are entitled for equal share only if daughter is alive and father is alive as on the date of commencement of the Hindu Succession Act on 09.09.2005. In clear words "living daughter of a living coparcener as on the 21 O.S.No.8477/2014 commencement of Amendment Act". So the prerequisite to claim the equal share in the ancestral property by the daughter is father must alive as on the date of filing the suit and daughter must also alive as on the date of claiming share.
15. In this case, plaintiff No.1 is daughter and plaintiff No.2 is son of the predeceased daughter who is also a class-I heir. The present suit is filed by the plaintiffs on 06.11.2014. It is undisputed that father Narayanappa, the original propositus has died during the year 1976 and mother of plaintiff No.2 is also died on 09.11.1995. So both Rathnamma and Bhagyamma, the mother of plaintiff No.2 are not entitled for equal share since father of plaintiff No.1 and grandfather of plaintiff No.2, Narayanappa died in 1976. In view of the decision rendered by the Hon'ble Supreme Court in Prakash vs. Phulavathi case, both plaintiffs are entitled for share in notional partition. If notional partition is effected, then defendants No.1 and 2 and father of defendants No.3 and 4 are gets birth rights in the schedule properties and at the same time, plaintiff No.1, mother of plaintiff 22 O.S.No.8477/2014 No.2 through whom he is claiming share and defendant No.5 gets shares in the notional partition through Narayanappa. In the notional partition defendants No.1 and 2 and father of defendants No.3 and 4 and Narayanappa will get 1/4th share each in the schedule properties and plaintiff No.1 and 2 and defendant No.5 will get share in 1/4th share of Narayanappa. Hence if we calculate the share, then defendants No.1 and 2 each will get 7/24th share and defendants No.3 and 4 will get 7/24th share together and plaintiff No.1 will get 1/24th, plaintiff No.2 will get 1/24th and defendant No.5 will get 1/24th share.
16. The contention of the defendants that there was already a partition as per Ex.D.1 cannot be accepted for the simple reason it is unregistered partition deed. Of course the title of the document cannot be taken into consideration, as the Court has to go through the nomenclature of the document. Even otherwise in the entire document Ex.P.1 it is clearly mentioned that properties have been partitioned and it is not the agreement to partition and even in the written statement the defendants 23 O.S.No.8477/2014 No.1 and 2 have taken a specific stand that through Ex.D.1 properties have been partitioned. When the partition is effected, certainly it has to be registered. In the absence of the registration, the same cannot be looked into.
17. Defendant No.1 while arguing has categorically argued that plaintiff No.1 has accepted the money in lieu of her share. I have perused Ex.D.1, in the said document it is clearly mentioned that said amount has been paid as:
"£ÁgÁAiÀÄt¥Àà ¥ÀªÀw EªÀgÀ ¥Àwß ²æêÀÄw ªÀÄĤAiÀĪÀÄä DzÀ £ÀªÀÄUÉ E§âgÀÄ ºÀÉtÄÚ ªÀÄPÀ̽gÀÄvÁÛgÉ. EªÀjUÉ zÉÆqÀØ PÀ£Éß°è UÁæªÀÄPÉÌ ¸ÉÃjzÀ ¸ÀªÉð £ÀA§gÀÄ 71gÀ d«ÄãÀÄ ªÀiÁgÁl ªÀiÁrzÁUÀ 1£Éà ²æêÀÄw gÀvÀߪÀÄä£ÀªjÀ UÉ JgÀqÀÄ ®PÀë ªÀÄvÀÄÛ 2£Éà ²æêÀÄw ªÀÄAdļÀªÀÄä£ÀªÀjUÉ JgÀqÀÄ ®PÀë (MlÄÖ E§âgÀÄ ºÉtÄÚªÀÄPÀ̽AzÀ gÀÆ.4,00,000-00 (£Á®ÄÌ ®PÀë gÀÆ¥Á¬Ä)UÀ¼À£ÀÄß PÉÆnÖgÀÄvÉÛêÉ."
So it means to say that it is paid out of the sale proceeds and nowhere it is mentioned that plaintiff No.1 and defendant No.5 have relinquished share by accepting the said amount. In the absence of clear cut document regarding partition, Ex.D.1 24 O.S.No.8477/2014 cannot be looked into. Hence their contention cannot be accepted that there is already a partition.
18. Regarding joint family status of the parties, there is no document that joint family has been severed, because Ex.D.1 is unregistered document, regarding partition that cannot be looked into and mere residing separately is not a criteria for consideration that there is severance of joint family status unless and until the properties of joint family has been divided through registered document and moreover till today the property stands in the name of deceased Muniyammam which are reflected in Ex.P.2 to P.5, so it cannot be said that joint family is severed. When joint family status is not severed, we can certainly hold that plaintiffs and defendants constitute Hindu Undivided Family and the properties are joint family properties.
19. The learned counsel for plaintiffs who has argued that plaintiffs are entitled for equal share in view of the decision rendered by the Hon'ble Supreme Court in Danamma's case reported in (2018) 3 Supreme Court Cases 343. But the said 25 O.S.No.8477/2014 decision is not applicable to the facts on hand, because Hon'ble Supreme Court in Prakash Vs. Phulavathi case while interpreting amendment to Section 6 of Hindu Succession Act has held that living daughter of a living coparcener is entitled for equal share in the ancestral properties by virtue of the amended Act as on 09.09.2005. When daughter is not entitled for equal share in the ancestral property, it is notional partition has to be effected. The said decision rendered by the Hon'ble Supreme Court in Prakash vs. Phulavathi case is applicable to the case on hand. Danamma case is not a precedent as held by the Hon'ble Supreme Court in Mangammal Alias Thulasi and another vs. T.B. Raju and others reported in 2018 (4) KarL.J. 381 (SC) wherein in para 10 it is held that:
"10 . Moreover, under Section 29-A of the Act, Legislature has used the words "the daughter of a coparcener". Here, the implication of such wording mean both the coparcener as well as daughter should be alive to reap the benefits of this provision at the time of commencement of the Amendment of 1989. The similar issue came up for the consideration before this 26 O.S.No.8477/2014 Court in Prakash and others v. Phulavathi and others (2016) 2 SCC 36, this Court while dealing with the identical matter held at para 23 as under:
"23. Accordingly, we hold that the rights under the amendment are applicable to living daughter of living coparceners as on 9th September, 2005 irrespective of when such daughters are born. It is pertinent to note here that recently, this Court in Danamma alias Suman Surpur and another v. Amar and others, 2018 (1) Scale 657 dealt, inter alia, with the dispute of daughters right in the ancestral property. In the above case, father of the daughter died in 2001, yet Court permitted the daughter to claim the right in ancestral property in view of the amendment in 2005. On a perusal of the judgment and after having regard to the peculiar facts of the Danamma (supra), it is evident that the Division Bench of this Court primarily did not deal with the issue of death of the father rather it was mainly related to the question of law whether daughter who born prior to 2005 amendment would be entitled to claim a share in ancestral property or not? In such circumstances, in our view, Prakash and Others (supra), would still hold precedent on the issue of death of coparcener for the purpose of right of daughter in ancestral 27 O.S.No.8477/2014 property. Shortly put, only living daughters of living coparceners would be entitled to claim a share in the ancestral property."
Similar issue was arose before Chhattisgarh High Court and in a decision reported in 2019 Chhattisgarh 148 (Gannu alias Gaanu Ram ad another vs. Dhanmat Bai and others) wherein also similar view was expressed by the Chhattisgarh High Court.
The another decision relied upon by the learned counsel for plaintiff reported 2011(3) KCCR 1871 (Smt. Laxmbai and others vs. Vaijinath) it is with regard to registration of the partition deed and this decision is applicable to the facts on hand.
The another decision relied upon by the learned counsel for plaintiff reported ILR 1992 KAR 3449 (Ranoji Rao vs. Srinivas Rao) this is also with regard to registration of the partition deed and this decision is applicable to the facts on hand.
20. In the present case it is very much clear that original propositus Narayanappa died during 1976 prior to 28 O.S.No.8477/2014 commencement of amendment of Section 6 of Hindu Succession Act and even mother of plaintiff No.2 was also died on 09.11.1995 prior to commencement of Section 6 of the Amendment Act. Under these circumstances, the decision is clear that plaintiff No.1 and mother of plaintiff No.2, through whom plaintiff No.2 is claiming as entitled for share only in the notional partition, i.e., in the father share, i.e., 1/4th share of Narayanappa. Hence this Court has calculated mentioned share above. Hence issue Nos.1 and 2 are held in the 'affirmative' issue Nos.3 and 4 are held in the 'negative' and issue No.5 as plaintiffs are entitled for share and it is held in the 'affirmative'.
21. Issue No.6:- For the forgoing reasons and in view of my findings on the above issues, I proceed to pass the following:-
ORDER The suit of the plaintiffs is decreed in part.
Plaintiff No.1, plaintiff No.2 and defendant No.5 are entitled for 1/24th share each in the suit schedule properties.29 O.S.No.8477/2014
Defendants No.1 and 2 are entitled for 7/24th share each in suit schedule properties. Defendants No.3 and 4 are together entitled for 7/24th share in the suit schedule properties.
There shall be a separate enquiry for mesne profits.
Looking into the relationship of the parties, parties are directed to bear their own costs.
Draw preliminary decree accordingly.
(Dictated to the Stenographer, transcript thereof corrected, signed and then pronounced by me, in open Court, on this the 9th day of March, 2020.) (SATHISHA L.P.) XII ADDL.CITY CIVIL & SESSIONS JUDGE BENGALURU CITY SCHEDULE
1. All that piece and parcel of the land bearing Sy.No.78/1 situated at Bellandur Village, Varthur Hobli, Bengaluru East Taluk, measuring 1 acre 02 guntas and bounded on the East by: Land of Julabba West by: Land of Muniswamy 30 O.S.No.8477/2014 North by: Land of Bagur Munireddy, South by: Land of Shamanna
2. All that piece and parcel of the land bearing Sy.No.32/11, situated at Bellandur Village, Varthur Hobli, Bengaluru East Taluk, measuring 05 guntas and bounded on the East by: Land of Muniraju West by: Property of Gopala Reddy North by: Road South by: Property of Kottur Gopal Reddy
3. All that piece and parcel of the land bearing Sy.No.32/13, situated at Bellandur Village, Varthur Hobli, Bengaluru East Taluk, measuring 01 gunta and bounded on the East by: Property of Gopala Reddy West by: Road North by: Road South by: Property of Krishna Reddy
4. All that piece and parcel of the land bearing Sy.No.78/4, situated at Bellandur Village, Varthur Hobli, Bengaluru East Taluk, measuring 01 gunta and bounded on the East by: Road West by: Road North by: Ring Road South by: Property of Shamanna Reddy ANNEXURE I. List of witnesses examined on behalf of:31 O.S.No.8477/2014
(a) Plaintiff' side :
P.W.1: Rathnamma
(b) Defendant's side :
D.W.1: Gopala Reddy
II. List of documents exhibited on behalf of :
(a) Plaintiff' side :
Ex.P.1: Mutation Ex.P.2 to RTCs P.5:
Ex.P.6: Death extract Ex.P.7: Death extract Ex.P.8: Written statement in O.S.No.558/2016 Ex.P.9: Certified copy of order in W.P.No.14316/2007
(b) Defendants side :
Ex.D.1: Partition deed dated 05.8.2002
Ex.D.1(a): Signature of P.W.1
Ex.D.1(b) Signature of D.W.1
Ex.D.1(c) Signature of Manjula (defendant No.5)
Ex.D.1(d) Signature of Ramaiah Reddy
Ex.D.2 Index of land of Sy.No.78/1
and D.3:
Ex.D.4: Lease deed dated 07.05.2014.
XII ADDL.CITY CIVIL & SESSIONS
JUDGE, BENGALURU CITY.