Karnataka High Court
Nagappa S/O Jatta Naik vs Smt. Madevi W/O Manjunath Naik on 21 June, 2024
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NC: 2024:KHC-D:8497
RSA No. 100164 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 21ST DAY OF JUNE, 2024
BEFORE R
THE HON'BLE MR JUSTICE C.M. POONACHA
REGULAR SECOND APPEAL NO. 100164 OF 2018 (PAR-)
BETWEEN:
NAGAPPA S/O JATTA NAIK
AGE: 53 YEARS, OCC: AGRICULTURE,
R/O: HUCHANNAMANE, HERADI,
KAIKINI VILLAGE, TQ: BHATKAL,
DIST: KARWAR.-581320
...APPELLANT
(BY SRI K.L.PATIL, ADVOCATE AND SRI.S.S.BETURMATH,
ADVOCATE)
AND:
1. SMT. MADEVI W/O MANJUNATH NAIK
AGE: 55 YEARS, OCC: NOT KNOWN,
R/O: GULPIYAVARA MANE, SONARAKERI,
MAVALLI-I VILLAGE, TQ: BHATKAL,
DIST: KARWAR.-581320.
Digitally signed
by SAROJA 2. SRI. JATTA S/O BACHA NAIK
HANGARAKI AGE: 67 YEARS, OCC: NOW KNOWN,
Location: HIGH
COURT OF 3. SMT. NAGAMMA W/O MASTAPPA NAIK
KARNATAKA
DHARWAD AGE: 42 YEARS, OCC: NOW KNOWN,
BENCH
DHARWAD 4. SMT. MADEVI W/O TIMMAYYA NAIK
AGE: 40 YEARS, OCC: NOW KNOWN,
5. SMT. IRAMMA W/O SUBRAMANYA NAIK
AGE: 38 YEARS, OCC: NOW KNOWN,
6. SRI. ANNAPPA S/O JATTA NAIK
AGE: 36 YEARS, OCC: NOW KNOWN,
7. SRI. NAGESH S/O JATTA NAIK
AGE: 34 YEARS, OCC: NOW KNOWN,
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NC: 2024:KHC-D:8497
RSA No. 100164 of 2018
(NOTE: RESPONDENT NO.2 TO 7 ARE
LEGAL REPRESENTATIVES OF LATE SMT. NAGAMMA JATTA
NAIK AND RESIDENTS OF KODSAL, KAIKINI VILLAGE,
TQ. BHATKAL, DIST. KARWAR-581320)
...RESPONDENTS
(BY SRI DINESH M. KULKARNI, ADVOCATE FOR R1,
NOTICE ISSUE TO R2 TO R7 ARE SERVED BUT UNREPRESENTED)
THIS RSA IS FILED U/SEC.100 OF CPC, PRAYING TO SET
ASIDE THE JUDGMENT AND DECREE DATED 05.12.2017 PASSED BY
SENIOR CIVIL JUDGE AND JMFC, BHATKAL IN R.A.NO.76/2017, BY
CONFIRMING THE JUDGMENT AND DECREE DATED 15.03.2017
PASSED BY ADDITIONAL CIVIL JUDGE, BHATKAL, IN
O.S.NO.06/2015.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present second appeal is filed under Section 100 of the Code of Civil Procedure, 19081 by the defendant No.1 challenging the judgment and decree dated 05.12.2017 passed in R.A.No.76/2017 by the Senior Civil Judge and JMFC, Bhatkal2 and the judgment and decree dated 15.03.2017 passed in O.S.No.6/2015 by the Additional Civil Judge, Bhatkal3, whereunder the suit for partition has been dismissed by the Trial Court and the 1 Hereinafter referred to as the 'CPC' 2 Hereinafter referred to as the 'First Appellate Court' 3 Hereinafter referred to as the 'Trial Court' -3- NC: 2024:KHC-D:8497 RSA No. 100164 of 2018 First Appellate Court allowed the appeal of the plaintiff, decreed the suit and it has been ordered that the plaintiff, defendants No.1 and 2 are entitled to 1/3rd share each in the suit 'A' schedule properties.
2. The parties herein are referred to as per their status before the Trial Court for the sake of convenience.
3. It is the case of the plaintiff that the plaintiff, defendants No.1 and 2 are the members of Hindu Undivided Family. That the suit lands were personal lease hold properties of late Jatta Naik and after his death his wife Smt.Subbi applied for grant of suit 'A' schedule properties before the Land Tribunal, Bhatkal as minor guardian of defendant No.1 who was the only male member of the family and thereafter the Land Tribunal granted suit 'A' schedule properties in favour of Smt.Subbi as minor guardian as per order bearing No.9464 dated 02.11.1982. That the mutation entries were made in terms of the order of the Land Tribunal. That the plaintiff and defendants are joint owners of the -4- NC: 2024:KHC-D:8497 RSA No. 100164 of 2018 suit properties and the same has not been denied. That since demand for partition made by the plaintiff was refused, the suit for partition was filed.
4. The defendant No.1 entered appearance and filed written statement contending that the plaintiff has no right to seek partition in the suit properties. That the plaintiff was born prior to coming into force of Hindu Succession Act, 19564 and hence she is not a coparcener. That the plaintiff got married prior to coming into force of the Land Reforms Act, 19615 and hence has no right in the suit properties granted by the Tribunal, as she was not a member of the family at the point of time when the suit properties were granted by the Land Tribunal. That the Land Tribunal granted suit properties in favour of the defendant in his individual name and he is in actual possession and enjoyment of suit properties and that they are the absolute properties of the defendant No.1. Hence, the defendants sought for dismissal of the suit. 4 Hereinafter referred to as the 'Act of 1956' 5 Hereinafter referred to as the 'Act of 1961' -5- NC: 2024:KHC-D:8497 RSA No. 100164 of 2018
5. Defendants No.2(a to f) adopted the written statement of defendant No.1. The Trial Court consequent to the pleadings of the parties, framed the following issues:
"ISSUES
1. Whether the plaintiff proves that suit 'A' schedule properties are the personal lease hold properties of Late Jatta Shaniyar Naik?
2. Whether the plaintiff proves that she is entitled for partition and separate possession of 1/3rd share in shit schedule properties?
3. What order or decree?"
6. The plaintiff is examined as PW.1. Exs.P.1 to P.6 were marked in evidence. The defendant No.1 was examined as DW.1. Exs.D.1 to D.5 were marked in evidence. The Trial Court by its judgment and decree dated 15.03.2017 dismissed the suit. Being aggrieved, the plaintiff preferred R.A.No.76/2017. The defendants entered appearance before the First Appellate Court and -6- NC: 2024:KHC-D:8497 RSA No. 100164 of 2018 contested the same. The First Appellate Court framed the following points for consideration:
"POINTS
1. Whether the appellant established that suit schedule properties are the joint family properties of plaintiff and defendants?
2. Whether the appellant established that she is entitle for 1/3rd share in the suit schedule properties?
3. Whether the impugned judgment and decree requires to be interfered with?
4. What order or decree?"
7. The First Appellate Court by its judgment and decree dated 05.12.2017 allowed the appeal, set aside the judgment and decree passed by the Trial Court and decreed the suit by holding that the plaintiff, defendants No.1 and 2 are entitled to 1/3rd share each in the suit properties. Being aggrieved, the defendant No.1 has preferred the present second appeal. -7-
NC: 2024:KHC-D:8497 RSA No. 100164 of 2018
8. Learned counsel for the appellant/defendant No.1 contends that the plaintiff being born prior to coming into force of the Act of 1956, is not entitled for a share in the suit properties. Further, she contends that the plaintiff being a married daughter and having married prior to coming into force of the Act of 1961, is not entitled to a share in the suit properties. Hence, she seeks for allowing of the above appeal. In support of her contentions, she relies on the Division Bench judgment of this Court in the case of Nimbavva and Others vs. Channaveerayya and Others6.
9. Per contra, learned counsel for the respondent No.1/plaintiff submits that having regard to the judgment of the Hon'ble Supreme Court in the case of Vineeta Sharma vs. Rakesh Sharma and Others7 even if the plaintiff was born before coming into force of the Act of 1956, she is entitled for a share in the suit properties. Further, with regard to the contention that the plaintiff 6 2015 (1) KCCR 205 (DB) 7 (2020) 9 SCC 1 -8- NC: 2024:KHC-D:8497 RSA No. 100164 of 2018 was married before coming into force of the Act of 1961, having regard to the Division Bench judgment of this Court in the case of Sri.Arvind and Another vs. mt.Sunanda and Others8, which has also taken into consideration in the Division Bench judgment of this court in the case of Nimbavvva6, as also having regard to the Division Bench judgment of this Court in the case of Girija and Others vs. Ramanagouda an Others9, the First Appellate Court has rightly decreed the suit and granted 1/3rd share. Hence, he sought for dismissal of the present second appeal.
10. The submissions of both the learned counsels have been considered and the material on record has been perused.
11. It is forthcoming that the Trial Court by noticing Section 2(12) of the Act of 1961 has held that the plaintiff being a married daughter will not come under the definition of 'family' as enumerated in Section 2(12) and 8 Judgment dated 13.01.2020 passed in RFA No.100149/2014 9 2022 (4) KCCR 3076 (DB) -9- NC: 2024:KHC-D:8497 RSA No. 100164 of 2018 the said Act of 1961 being a special enactment would prevail over the Act of 1956. That the plaintiff having been born on 01.05.1956 prior to coming into force the Act of 1956, having regard to the Division Bench judgment of this Court in the case of Pushpalatha N.V. vs. Padma and Others10, she is not entitled to a share in the suit properties.
12. However, the First Appellate Court upon re- appreciation of the oral and documentary evidence on record, noticed that the mother of the defendants filed application before the Land Tribunal as minor guardian of the defendant No.1. That at the time of the grant of the suit properties, the defendant No.1 was a minor and the same was granted in the name of his mother. Further, it was noticed that the defendant No.1 was the only male member of the family who was a minor at the time of grant. The defendant No.2 was the elder daughter of the propositus Sri.Jatta and the plaintiff was the younger 10 ILR 2010 KAR 1484
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NC: 2024:KHC-D:8497 RSA No. 100164 of 2018 daughter. That the plaintiff was married in the year 1972. Hence, the First Appellate Court has recorded a finding that the daughters of Sri.Jatta and Smt.Subbi were in possession of the suit properties and that the suit properties were not granted to the defendant No.1 on his own and hence the suit properties are the exclusive properties of the defendant No.1 and it belongs to the joint family. Hence, the First Appellate Court recorded a finding that the suit properties belong to the plaintiff and the defendants.
13. Further, the First Appellate Court has noticed the Full Bench judgment of this Court in the case of Booda Poojary vs. Thomu Poojarthy11 as well as Division Bench judgment of this Court in the case of Nimbavva6 as also a Co-ordinate Bench judgment of this Court in the case of Kamala and Others vs. Smt.Lingamma Hengsu and Others12 and allowed the appeal filed by the plaintiff, set aside the judgment and 11 ILR 1992 KAR 1359 (FB) 12 2002 (2) Kar.L.J. 456
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NC: 2024:KHC-D:8497 RSA No. 100164 of 2018 decree passed by the Trial Court and decreed the suit and held that the plaintiff, defendants No.1 and 2 are entitled to 1/3rd share each in the suit properties.
14. With regard to the contention of learned counsel for the appellant that the plaintiff was married prior to coming into force of the Hindu Succession Amendment Act and hence she is not entitled to a share in the suit properties, it is relevant to note that a three Judge bench of the Hon'ble Supreme Court in the case of Vineeta Sharma7 has held as follows:
"137. Resultantly, we answer the reference as under:
137.1. The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after the amendment in the same manner as son with same rights and liabilities.
137.2. The rights can be claimed by the daughter born earlier with effect from 9-9-2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition
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NC: 2024:KHC-D:8497 RSA No. 100164 of 2018 which has taken place before the 20th day of December, 2004.
137.3. Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9-9-2005.
137.4. The statutory fiction of partition created by the proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about of the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share e of deceased coparcener when he was survived by a female heir, of Class I as specified in the Schedule to the 1956 Act or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed, the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal."
(emphasis supplied)
15. With regard to the contention put forth on behalf of the appellant that having regard to the judgment in the case of Nimbavva6 the plaintiff is not
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NC: 2024:KHC-D:8497 RSA No. 100164 of 2018 entitled to be awarded a share in the suit properties, it is relevant note the following:
i. It was held in the case of Nimbavva6 that the married daughters do not fall under the definition of 'family' as per Section 2(12) of the Act of 1961. Further, Section 24 of the Act of 1961 was noticed that where a tenant dies, the landlord shall be deemed to have continued his tenancy to the heirs of such tenant and it was held that the married daughter will not be entitled to a share in respect of the land granted under the provisions of the Act of 1961;
ii. However, the Hon'ble Supreme Court in the case of N.Padmamma and Others vs. S.Ramakrishna Reddy and Others13 has held as follows:13
(2015) 1 SCC 417
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NC: 2024:KHC-D:8497 RSA No. 100164 of 2018 "15. ............ The question here is whether the grant of such rights is for the benefit of one of the members of the joint family or for all the heirs left behind by Ramachandra Reddy. Our answer to that question is in favour of the appellants. In our opinion, the grant of such occupancy rights in favour of respondent no.1 was for the benefit of all the legal heirs left behind by Ramachandra Reddy. Reliance upon Lokraj's case (supra), therefore, is of no assistance to the respondents. We are also of the view that the decision in Lokraj's case (supra), does not correctly apply the earlier decision of this Court in Bhubaneshwar Prasad Narain Singh's case (supra). With utmost respect to the Hon'ble Judges who delivered the decision in Lokraj's case, the law was not correctly laid down, if the same was meant to say that even in the absence of a plea of ouster, a co-heir could merely on the basis of grant of the occupancy rights in his name exclude the other co-heirs from partition of the property so granted."
(emphasis supplied) iii. A Division Bench of this Court in the case of Arvind8 noticed the judgment of the Hon'ble
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NC: 2024:KHC-D:8497 RSA No. 100164 of 2018 Supreme Court in the case of N.Padmamma13 and also noticed Section 2(12) and Section 24 and held as follows:
"26. In the case on hand, the property in question was admittedly cultivated by Sri Narasimha Venkatesh Kamat as a tenant and he filed an application seeking grant of occupancy rights and the occupancy rights were indeed granted to Sri Narasimha Venkatesh Kamat. Thus the lands that vested in the Government were divested in favour of Sri Narasimha Venkatesh Kamat thus creating a fresh right, title and interest and therefore, these lands became the absolute properties of Sri Narasimha Venkatesh Kamat. He having died intestate on 01.04.1989, there cannot be any doubt that his successors, who are the plaintiffs. and the defendant Nos.1 to 6 are entitled to an undivided 1/9th share in the suit schedule properties by operation of Section 8 of the Hindu Succession Act. The defendant Nos.2 and 3 / appellants herein were unable to show any provision in the KLR Act that determined the succession of the lands in question after the death of Sri Narasimha Venkatesh Kamat. As a matter of fact, there is no provision delineating the mode of
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NC: 2024:KHC-D:8497 RSA No. 100164 of 2018 succession to the lands that are conferred on tenants under the KLR Act and the only substantive provision that determines succession to such properties is section 8 of the Hindu Succession Act, 1956, which is a central legislation."
(emphasis supplied) iv. A Division Bench of this Court in the case of Girija9 has noticed the amended Section 6 as per the Hindu Succession Amendment Act, 2005 as also Section 2(12) of the Act of 1961 and held that the partition has to be effected under the provisions of the Act of 1956; v. The judgment rendered by the Division Bench of this Court in the case of Arvind8 has been followed by Co-ordinate Benches of this Court in the case of Ishwar (deceased) vs. Smt.Jattamma and Others14 and 14 Judgment dated 24.05.2023 passed in RSA No.100212/2017
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NC: 2024:KHC-D:8497
RSA No. 100164 of 2018
Smt.Sharavva and Others vs.
Smt.Channabasamma and Others15;
vi. It is relevant to note that the Division Bench of this Court in Arvind8 has also referred to the earlier judgment of this Court in the case of Nimbavva6.
16. In view of the discussions made above, it is clear that the reliance placed by the learned counsel for the appellant on the Division Bench judgment in the case of Nimbavva6 will not aid the case of the appellant since subsequent Division Bench of this Court in the case of Arvind8 by relying on the judgment of the Hon'ble Supreme Court in the case of N.Padmamma13 has held that the succession of properties granted under the provisions of the Act of 1961 will devolve as per the provisions of the Act of 1956.
15 Judgment dated 13.10.2023 passed in RSA No.100252/2023
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NC: 2024:KHC-D:8497 RSA No. 100164 of 2018
17. In view of the aforementioned, the First Appellate Court has rightly reappreciated the case of the parties, allowed the appeal filed by the plaintiff and decreed the suit by awarding 1/3rd share each to the plaintiff, defendants No.1 and 2. The said judgment of the First Appellate Court is just and proper.
18. The appellant has failed to demonstrate that any substantial question of law arises for consideration in the above appeal. Hence, the above appeal is dismissed as being devoid of merit at the stage of admission itself.
Sd/-
JUDGE SH CT:GSM List No.: 1 Sl No.: 34