Karnataka High Court
Smt. Kempamma vs Sri. M. Gangamara on 16 January, 2020
Bench: B.V.Nagarathna, Jyoti Mulimani
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IN THE HIGH COURT OF KARNATAKA, BENGALURU
DATED THIS THE 16TH DAY OF JANUARY, 2020
PRESENT
THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA
AND
THE HON'BLE MS.JUSTICE JYOTI MULIMANI
R.F.A.No.1652/2019 (PAR)
BETWEEN:
SMT. KEMPAMMA
AGED ABOUT 69 YEARS,
W/O. VAJRAPPA,
D/O. MARAPPA, R/AT NO.75,
MALLATHAHALLI VILLAGE,
NEAR BASAMMA MARILINGAPPA,
KALYANAMANTAPA,
BENGALURU - 560 056. ... APPELLANT
(BY SRI H.R. NARAYANA RAO, ADVOCATE FOR SRI RAJESWARA
P.N., ADVOCATE)
AND:
1. SRI M. GANGAMARA,
AGED ABOUT 62 YEARS,
S/O. LATE MARAPPA,
R/AT JNANAJYOTHI NAGAR,
BENGALURU - 560 019.
2. SRI MUNIYAPPA
AGED ABOUT 60 YEARS,
S/O. LATE MARAPPA,
R/AT NO.75,
MALLATHAHALLI VILLAGE,
NEAR BASAMMA MARILINGAPPA,
KALYANAMANTAPPA,
BENGALURU - 560 056.
3. SMT. LAKSHMAMMA
AGED ABOUT 59 YEARS,
W/O. LATE BETTATHIMMAIAH,
-: 2 :-
R/AT NO.226, DHANALAKSHMI NILAYA,
MALLATHAHALLI LAYOUT,
BALAGANGADHAR NAGAR,
BENGALURU - 560 056.
4. SMT. SARASWATHAMMA,
AGED ABOUT 51 YEARS,
W/O. LATE CHANNAMARE GOWDA,
R/AT NO.105/41, SRI LAKSHMI NILAYA,
NEAR ANJANEYA SWAMY TEMPLE,
MALLATHAHALLI,
BENGALURU - 560 056.
5. SMT. M.S. BHAVANI
AGED ABOUT 58 YEARS,
W/O. SRI D.C. SURESH BABU,
R/AT MIG 5/A, 6TH CROSS,
6TH MAIN ROAD, 2ND STAGE,
KHB COLONY,
OPP. TO AGRAHARADASARAHALLI,
BASAVESHWARANAGAR,
BENGALURU - 560 079. ... RESPONDENTS
(BY SRI H. NARASIMHAMURTHY, ADVOCATE FOR R-1;
SRI KIRAN B., ADVOCATE FOR R-2 TO R-4;
SRI SUBRAMANYA HEGDE, ADVOCATE FOR R-5)
*****
THIS RFA IS FILED UNDER SECTION 96 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 11.03.2019
PASSED ON I.A. IN O.S.NO.4813/2016 ON THE FILE OF THE
XXVII ADDITIONAL CITY CIVIL JUDGE, BANGALORE,
ALLOWING I.A. FILED UNDER ORDER VII RULE 11 OF CPC.,
FOR REJECTION OF PLAINT.
THIS APPEAL COMING ON FOR HEARING ON
INTERLOCUTORY APPLICATION THIS DAY, NAGARATHNA J.,
DELIVERED THE FOLLOWING:-
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JUDGMENT
Though this appeal is listed to consider I.A.Nos.I/2019 and II/2019, on disposal of I.A.No.I/2019, being an application seeking condonation of delay in filing the appeal and on allowing the said application and condoning the delay, with consent of learned counsel on both sides, the appeal is heard finally.
2. The appellant herein was the plaintiff in O.S.No.4813/2016. The said suit was filed by her against defendant Nos.1 to 4, who are none other than her brothers and defendant No.5, who is a purchaser of 'B' schedule property, seeking the following reliefs:-
"Wherefore, the plaintiff most respectfully prays that, this Hon'ble Court be pleased to grant and pass
a) Judgment and decree of partition and award each of the plaintiffs 1/5th shares in the suit schedule properties.
b) Direct the holding of an enquiry into the menses profits and
c) Grant such other order or relief as this Hon'ble Court deems fit to grant -: 4 :- in the circumstances of the case in the interests of justice and equity." The aforesaid reliefs were sought in respect of the following suit schedule properties:-
"SUIT SCHEDULE PROPERTIES SCHEDULE 'A' PROPERTIES All that piece and parcel of the agriculture property bearing Sy.No.67, measuring 01 Acre 36 Guntas of land, situated at Mallathahalli village, Yashawanthapura Hobli, Bangalore North Taluk, Bangalore bounded on:
East by : Road
West by : Property belongs to
Thimmarayappa.
North by : Property belongs to
Patel
Rudrappa.
South by : Property belongs to
Thimmarayappa.
SCHEDULE 'B' PROPERTIES
All that piece and parcel of the agriculture property bearing Sy.No.68/7, measuring 01 Acre 13 Guntas of land, situated at Mallathahalli village, Yashawanthapura Hobli, Bangalore North Taluk, Bangalore bounded on:
East by : Property belongs to
Thimmarayappa.
West by : Property belongs to
-: 5 :-
Venkataramanappa.
North by : Property belongs to
Munihanumaiah.
South by : Ullal Main Road.
SCHEDULE 'C' PROPERTIES
All that piece and parcel of the agriculture property bearing Sy.No.43/1, measuring 31 Guntas of land, situated at Mallathahalli village, Yashawanthapura Hobli, Bangalore North Taluk, Bangalore bounded on:
East by : Property belongs to
Marappa.
West by : Property belongs to
Venkataramanappa.
North by : Property belongs to
Munihanumaiah.
South by : Ullal Main Road.
SCHEDULE 'D' PROPERTIES
All that piece and parcel of the vacant property situated at Mallathahalli village, bearing Site No.10 and 11, Khatha No.1717, Mallathahalli Gramatana, Yashawanthapura Hobli, Bangalore North Taluk, Bangalore, measuring East to West 30 feet and North to South 80 feet bounded on:
East by : Road.
West by : Property No.9 and 12.
North by : Road.
South by : Road.
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SCHEDULE 'E' PROPERTIES
All that piece and parcel of the vacant property situated at Mallathahalli village, bearing Site No.12, Khatha No.1717, Mallathahalli Gramatana, Yashawanthapura Hobli, Bangalore North Taluk, Bangalore, measuring East to West 30 feet and North to South 40 feet. Bounded on:
East by : Property No.11.
West by : Property No.13.
North by : Road.
South by : Property No.13."
3. Briefly stated, the facts are that the
appellant/plaintiff filed the suit seeking the relief of partition and separate possession of the suit schedule properties, which according to the appellant are the joint family properties subsequent to the demise of her father -
Marappa, on 16/11/2012. That the mother of appellant had pre-deceased her father. The suit was filed against her four brothers (their families) and the purchaser -
defendant No.5 of 'B' schedule property.
4. In response to the suit summons and Court notices, defendants appeared, but only defendant No.5 the purchaser of 'B' schedule property filed the written -: 7 :- statement. In addition, she also filed an application under Order VII Rule 11 with respect of 'B', 'D' and 'E' schedule properties of the Code of Civil Procedure, 1908 (CPC), seeking rejection of the plaint by contending that having regard to the dictum of the Hon'ble Supreme Court in the case of Prakash vs. Phulavati [2016 (2) SCC 36] (Prakash vs. Phulavati), the suit is not maintainable. She further contended that on account of non-joinder of parties and having regard to the law of limitation, the suit was not maintainable and that proper Court Fee was also not paid. Therefore, defendants sought for rejection of the plaint. By the impugned order and decree dated 11/03/2019, the plaint has been rejected. Hence, this appeal.
5. We have heard learned counsel for appellant -
plaintiff and learned counsel for caveator respondent No.5 and learned counsel for respondent Nos.1 and 2 to 4 and perused the material on record.
6. Appellant's counsel contended that subsequent to demise of her father on 11/01/2016 the appellant filed the suit seeking partition and separate -: 8 :- possession of her share in the suit schedule properties, which are ancestral and/or joint family properties as plaintiff is entitled to 1/5th share in the suit schedule properties . That having regard to the amendments made to Section 6 of the Hindu Succession Act, 1956 [hereinafter, referred to as "the Act", for the sake of brevity], the appellant is entitled to a share equal to that of her brothers since the father of the appellant died subsequent to 09/09/2005. He contended that in case of Prakash vs. Phulavati, the Hon'ble Supreme Court has categorically pronounced that the said right is prospective in nature and if the demise of the father occurs subsequent to 09/09/2005 and the daughter is also alive on the said date, then she is entitled to the share equal to that of her father. Precisely, in the context of the aforesaid right created under Section 6 of the Act, which has been interpreted by the Hon'ble Supreme Court in Prakash vs. Phulavati, she filed the suit seeking the relief of partition and separate possession and other incidental and ancillary reliefs. That the trial Court has misdirected itself in rejecting the plaint by concluding that the suit did not disclose any cause of action. That the suit was barred -: 9 :- by limitation. That there was mis-joinder of parties and the Court Fee paid was not proper. He contended that trial Court erred in allowing the application under Order VII Rule 11(d) of the Act and rejecting the plaint. He submitted that the impugned order and decree of the trial Court may be set aside and the matter may be remanded for disposal of the suit in accordance with law.
7. Per contra, learned counsel for respondents, particularly, the contesting respondent No.5 supported the order and decree of the trial Court and contended that the suit schedule properties are not available for partition and separate possession. That 'B', 'D' and 'E' schedule properties have been purchased by fifth defendant and that the father, first and second respondents have alienated the other items of the properties and there is no property available with the family for partition and hence, the trial Court was right in rejecting the plaintiff. That there is no merit in this appeal and therefore, the appeal may be dismissed.-: 10 :-
8. Having heard learned counsel for respective parties, the following points would arise for our consideration:-
1. Whether the trial Court was right in rejecting the plaint by invoking Order VII Rule 11(d) of CPC?
2. What order?
9. The detailed narration of facts and contentions above would not call for reiteration. The father of the appellant - plaintiff and respondent - defendant Nos.1 to 4 Marappa died on 11/01/2016 subsequent to the enforcement of the amendment to Section 6 of the Act, which reads as under:-
"6. Devolution of interest in coparcenary property.--(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,--
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
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(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:
Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.
(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition.
(3) Where a Hindu dies after the commencement of the Hindu Succession
(Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the -: 12 :- coparcenary property shall be deemed to have been divided as if a partition had taken place and,--
(a) the daughter is allotted the same share as is allotted to a son;
(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and
(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-
deceased son or a pre-deceased daughter, as the case may be.
Explanation.--For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.
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(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt:
Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect--
(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or
(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted.
Explanation.--For the purposes of clause
(a), the expression "son", "grandson" or "great--: 14 :-
grandson" shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005.
(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.
Explanation.--For the purposes of this section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court." The said section has been interpreted by the Hon'ble Supreme Court in the case of Prakash vs. Phulavati and at paragraph Nos.17 to 23 it has been held as under:
"17. The text of the amendment itself clearly provides that the right conferred on a 'daughter of a coparcener' is 'on and from the commencement of Hindu Succession (Amendment) Act, 2005'. Section 6(3) talks of death after the amendment for its applicability. In view of plain language of the statute, there is no scope for a different interpretation than the one suggested by the text of the amendment. An amendment of a -: 15 :- substantive provision is always prospective unless either expressly or by necessary intendment it is retrospective. In the present case, there is neither any express provision for giving retrospective effect to the amended provision nor necessary intendment to that effect. Requirement of partition being registered can have no application to statutory notional partition on opening of succession as per unamended provision, having regard to nature of such partition which is by operation of law. The intent and effect of the Amendment will be considered a little later. On this finding, the view of the High Court cannot be sustained.
18. Contention of the respondents that the Amendment should be read as retrospective being a piece of social legislation cannot be accepted. Even a social legislation cannot be given retrospective effect unless so provided for or so intended by the legislature. In the present case, the legislature has expressly made the Amendment applicable on and from its commencement and only if death of the coparcener in question is after the Amendment. Thus, no other interpretation is possible in view of express language of the statute. The proviso keeping dispositions or alienations or partitions prior to 20th -: 16 :- December, 2004 unaffected can also not lead to the inference that the daughter could be a coparcener prior to the commencement of the Act. The proviso only means that the transactions not covered thereby will not affect the extent of coparcenary property which may be available when the main provision is applicable. Similarly, Explanation has to be read harmoniously with the substantive provision of Section 6(5) by being limited to a transaction of partition effected after 20th December, 2004. Notional partition, by its very nature, is not covered either under proviso or under sub-section 5 or under the Explanation.
19. Interpretation of a provision depends on the text and the context. Normal rule is to read the words of a statute in ordinary sense. In case of ambiguity, rational meaning has to be given. In case of apparent conflict, harmonious meaning to advance the object and intention of legislature has to be given.
20. There have been number of occasions when a proviso or an explanation came up for interpretation. Depending on the text, context and the purpose, different rules of interpretation have been applied.-: 17 :-
21. Normal rule is that a proviso excepts something out of the enactment which would otherwise be within the purview of the enactment but if the text, context or purpose so require a different rule may apply. Similarly, an explanation is to explain the meaning of words of the section but if the language or purpose so require, the explanation can be so interpreted. Rules of interpretation of statutes are useful servants but difficult masters. Object of interpretation is to discover the intention of legislature.
22. In this background, we find that the proviso to Section 6(1) and sub-section (5) of Section 6 clearly intend to exclude the transactions referred to therein which may have taken place prior to 20th December, 2004 on which date the Bill was introduced.
Explanation cannot permit reopening of partitions which were valid when effected.
23. Accordingly, we hold that the rights under the amendment are applicable to living daughters of living coparceners as on 9th September, 2005 irrespective of when such daughters are born. Disposition or alienation including partitions which may have taken place before 20th December, 2004 as per law applicable prior to the said date will remain -: 18 :- unaffected. Any transaction of partition effected thereafter will be governed by the Explanation."
(underlining by me)
10. On a reading of the same, it becomes clear that if the father and the daughter are both alive as on 09/09/2005 then the daughter has to be construed to be a coparcener for the purpose of succession. In other words, if the father died on or subsequent to 09/09/2005 and the daughter was also alive on the said date, her share in the ancestral/joint family properties would be equivalent to the share that a son would get in the said family. She is construed to be a coparcener having a right by birth in the suit properties. In view of the position of law being clearly enunciated by the Hon'ble Supreme Court and the same being made applicable to the present case, by the plaintiff, it is noted that father of the plaintiff
- Marappa and the plaintiff herein were both alive on 09/09/2005 as Marappa died on 11/01/2016 and thereafter on the refusal of her brothers in granting a partition of the suit schedule properties to her she filed the suit seeking partition.
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11. We do not understand as to how such a suit could be hit by Law of Limitation or there is non-disclosure of cause of action. In this regard, reliance could be placed on the judgment of the Hon'ble Supreme Court in the case of Chhotanben and Anr. vs. Kiritbhai Jalkrushnabhai Thakkar and Ors. [AIR 2018 SC 2447], wherein it has been held that the question as to whether a suit is barred by limitation is a triable issue. Hence, the plaint cannot be rejected on account of non-joinder of necessary or proper parties. Insofar as payment of proper Court Fee is concerned, there must be determination of proper Court Fee in the first instance. Then time has to be granted to the plaintiff to pay the same and non-compliance of the same would result only on rejection of plaintiff. But in the instant case, no such procedure has been followed by the trial Court. On the other hand, trial Court has proceeded on the footing that the suit schedule properties are not available for partition and therefore, the plaintiff ceases to be a coparcener. This is an erroneous inference drawn by the trial Court. Further, the trial Court has also held that the plaintiff in the absence of seeking a declaration that the alienations do not bind her has only sought for -: 20 :- partition and separate possession of the suit schedule property and therefore, the suit is not maintainable.
12. We have closely perused the reasoning of the trial Court which we find is highly erroneous and contrary to the settled positions of law. Infact, in case of Prakash vs. Phulavati the Hon'ble Supreme Court has categorically stated that right to seek a share equal to that of a son would arise to a daughter if the father and the daughter were both alive on 09/09/2005. But ironically, the fifth respondent filed the application seeking rejection of the plaint on the basis of Prakash vs. Phulavati. We do not understand as to how on the basis of the said judgment the plaint could have been rejected in the instant case.
13. In the circumstances, the appeal is allowed and the impugned order and decree of the trial Court is set aside. O.S.No.4813/2016 is restored on the file of the trial Court.
Since the parties are represented by their respective counsel, they are directed to appear before the trial Court on 30-03-2020, without expecting any separate notice -: 21 :- from the said Court. The trial Court shall dispose of the suit in accordance with law.
At this stage, learned counsel for appellant - plaintiff submits that till rejection of the plaint, interim order was operating in her favour and for the purpose of clarity, this Court may observe that the interim order shall continue.
Learned counsel for respondents submitted that indeed there was an interim order operating against the respondents till rejection of the plaint.
Since the suit is restored on the filed of the trial Court, the interim order granted by the trial Court shall be continued until the same is modified by the trial Court or until the suit is disposed, whichever is earlier.
Parties to bear their respective costs. In the circumstances, I.A.No.II/2019 stands disposed in the aforesaid terms.
Sd/-
JUDGE Sd/-
JUDGE *mvs