Karnataka High Court
Ms Ademma D/O Late Amarappa vs Mrs Shivanamma W/O Late Adeppa on 26 August, 2022
Author: M.G.S.Kamal
Bench: M.G.S.Kamal
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 26TH DAY OF AUGUST, 2022
BEFORE
THE HON'BLE MR.JUSTICE M.G.S.KAMAL
RSA NO.7162/2009 (PAR)
BETWEEN
MS. ADEMMA D/O LATE AMARAPPA
AGED ABOUT: 43 YEARS,
R/O:DONAMARADI VILLAGE
MALLADAGUDDA POST,
MANVI TALUK, DIST: RAICHUR-584123.
...APPELLANT
(BY SRI SHIVANAND PATIL, ADVOCATE)
AND
1. MRS. SHIVANAMMA
W/O LATE ADEPPA
AGED ABOUT: 37 YEARS,
C/O: NAGAREDDAPPA POLICE PATIL,
BAGALAWADA VILLAGE
TQ: MANVI, DIST: RIACHUR-584123.
2. MRS.AMARAMMA W/O LATE THAYANNA
AGED ABOUT: 52 YEARS,
R/O; DONAMARADI VILLAGE
MALLADAGUDDA POST,
TQ: MANVI, DIST: RAICHUR-584123.
3. MRS.GUNDAMMA W/O SHIVAMMA
AGED ABOUT: 47 YEARS,
R/O:HIRE HANAGI VILLAGE
TQ:MANVI, DIST: RAICHUR-584123.
2
4. MR.BANAPPA PATIL
S/O.THIPPANNA PATIL
AGED ABOUT: 33 YEARS,
R/O:DONAMARADI VILLAGE
MALLADAGUDDA POST
TQ:MANVI, DIST: RAICHUR-584123.
5. MRS.AMBUJA W/O GURURAJ BAICHABAL
AGED ABOUT: 34 YEARS,
C/O:BANNAPPA PATIL
R/O:RENUKA NILAYA#1-11-264,
NIJALINGAPPA COLONY, RAICHUR.
DIST: RAICHUR-584101.
6. MS.BHARATHI D/O LATE ADEPPA
AGED ABOUT: 16 YEARS
MINOR REP. BY HER
MOTHER & NATURAL GUARDIAN
RESPONDENT NO.1 MRS.SHIVANAMMA
C/O:NAGAREDDAPPA POLICE KPATIL
BAGALAWADA VILLAGE
TQ:MANVI, DIST: RAICHUR-584123.
...RESPONDENTS
(BY SRI. S..BASAVARAJ, SR.COUNSEL FOR
SRI.P G YATNAL, ADVOCATE FOR R1;
SRI G.B. YADAV, ADVOCATE FOR R2 & R3
SRI.SHIVAKUMAR KALLOOR, ADVOCATE FOR R5
NOTICE TO R4 SERVED;
R6 IS MINOR U/G RESPONDENT NO.1)
THIS RSA FILED U/S 100 OF CPC AGAINST THE
JUDGMENT AND DECREE DTD:21.4.2009 PASSED IN
R.A.NO.11/2007 ON THE FILE OF THE PRINCIPAL DISTRICT
JUDGE AT RAICHUR, PARTLY ALLOWING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DTD:22.12.2006
PASSED IN O.S NO.268/2001 ON THE FILE OF THE ADDL.CIVIL
JUDGE (SENIOR DIVISION), RAICHUR.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
The present appeal by the appellant/plaintiff No.2 aggrieved by the judgment and order dated 21.04.2009 passed in R.A.No.11/2007 on the file of Principal District Judge at Raichur (for short 'the First Appellate Court'), in and by which the first appellate Court while partly allowing the appeal modified the judgment of the trial Court dated 22.12.2006 passed in O.S No.268/2001 on the file of Additional Civil Judge (Senior Division), Raichur (for short 'the trial Court').
2. The brief facts of the case are that; one Amarappa the original propositus passed away leaving behind his wife Tayamma-the plaintiff No.1 and three daughters namely Amaramma-defendant No.2, Gundamma-defendant No.3, Ademma-plaintiff No.2 and a son Adeppa who passed away leaving behind his wife Shivanamma and daughter Bharathi, defendant Nos.1 and 6 respectively. That the suit schedule properties are ancestral, coparcenery and joint family properties. The plaintiff Nos.1 and 2, defendant Nos.1, 2 and 3 being the 4 legal heirs of Amarappa and Adeppa respectively are entitled for share in the suit schedule properties. That plaintiff Nos.1 and 2 being the coparceners were entitled for 1/5th equal share in the suit schedule properties. That defendant No.1 who was earlier residing in the joint family left the village and residing at Bagalwad village in her husband's house and was not co-operating with the plaintiffs and also not accounting for the family income from the joint family properties. The plaintiffs therefore requested for the partition and separate possession of the properties. That the plaintiffs came to know that defendant No.1 had obtained mutation of her name in the revenue records without the knowledge of the plaintiffs constraining them to approach the Court. Defendant No.1 has sold portion of suit schedule property to defendant Nos.4 and 5.
3. Upon service of summons defendants appeared before the trial Court. Defendant No.1 for herself and for defendant No.6 filed written statement denying the existence of joint family and also denying the fact of 5 plaintiff No.2 and defendants 2 and 3 being the coparceners. Defendant Nos.2 and 3 supported the case of the plaintiffs. Defendant No.4 denying the case of the plaintiffs contended that he purchased Sy.No.10/A measuring 3 acres 16 guntas and Sy.No.76/A measuring 5 acres 20 guntas from defendant No.1. He also made a counter claim that in the event of the Court coming to the conclusion regarding the rights of the plaintiffs, defendant No.4 be allotted the share of defendant No.1. Defendant No.5 in her written statement denied the case of the plaintiffs and contended that she purchased 5 acres 22 guntas in Sy.No.76/A and 3 acres 16 guntas Sy.No.10/A from defendant No.1 under registered deed of sale and made counter claim that similar to that of defendant No.4.
4. Based on the pleadings, the trial Court framed the following issues for its consideration;
(a) Whether the plaintiff Nos.1 and 2 prove that they are the successors and joint family members of plaintiffs and defendants? 6
(b) Whether the plaintiffs prove that the plaintiff No.2 is co-parcener and member of the joint family?
(c) Whether the defendant No.1 proves that, they have sold the suit property bearing Sy.No.173 of Malladagudda village and purchaser is the necessary party?
(d) Whether defendant No.1 proves that Bharathi D/o: Adeppa is necessary party to the suit?
(e) Whether the plaintiffs are entitled to get share in the suit property? If so what is their share?
(f) What order or decree?
Additional Issue:
Whether defendant Nos.4 and 5 are
entitled to get confirm their sale under equity?
5. Plaintiff No.2 has been examined as PWs.1 and two witnesses as PWs.2 and 3 and exhibited 6 documents marked as Exs.P1 to P6. Defendant No.1 has been examined as DW.1 while defendant No.5 has been examined as DW.2 and one Amaresh has been examined as DW.3 and exhibited 35 documents marked as Exs.D1 to D.35.
6. On appreciation of the evidence, the trial Court answered issue Nos.2 and 3 in the negative, issue Nos.1 7 and 5 and additional issue in the affirmative and consequently decreed the suit holding that plaintiff Nos.1 and 2 are entitled to get 1/10th share in the suit schedule properties. Aggrieved by the same, plaintiffs filed appeal in R.A.No.11/2007 before the First Appellate Court.
7. Considering the grounds urged in the said appeal, the First Appellate Court framed the following points for its consideration;
(i) Whether the correct share for which the plaintiffs and defendant Nos.1 to 3 are entitled to in the suit schedule properties in accordance with relevant law which is applicable to the facts of the case?
(ii) Whether the Court below is justified in recording the finding on Addl. issue in the affirmative?
(iii) Whether the impugned judgment and decree of the trial Court requires any interference by this Court?
(iv) What order?
8. While dealing with point No.1 at paragraph No.20 of the impugned judgment, the First Appellate Court taking note of the change of law in Hindu Succession Act, held as under;
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After carefully going through the provisions of law of Hindu Succession Act referred to by the parties and also the decision relied upon by both sides, this Court is of the opinion that the contention of the counsel for defendant Nos.1, 5 and 6 has got merits because the Hon'ble Supreme Court in the decision of Sheeladevi and Others Vs. Lalchand and another reported in 2007 (2) Civil Law Journal-364, has dealt with amended Hindu Succession Act, 2005 in which it has been held that the said Act indisputably would prevail over the old Hindu Law, but the effect of provisions of Hindu Succession Act, 2005 would have no application and sub-section (1) of Section 6 of Hindu Succession Act governs the law relating to succession on the death of a co-parcener in the event of heirs are only male descendents, but the proviso creates an exception and keeping in view of the law laid down by the Hon'ble Supreme Court when succession opens prior to amended provisions coming into force, the amended provisions will not apply and concluded that in the case on hand the said rulings would apply and the contention that the daughters would have equal share in the property was not accepted and thereafter affirmed the finding of the trial Court which determined the share by making notional partition as on the date of death of Amarappa by giving half share to Amarappa and half share to his son Adeppa. Thereafter 9 half share of late Amarappa was divided and distributed equally amongst his class-I heirs i.e. widow, three daughters and one son i.e. 1/5th share each. However, in view of death of plaintiff No.1, during the pendency of appeal modified the said shares and thereby held that plaintiff Nos.2 and 3 will be entitled to 1/8 th share each in the suit schedule properties and defendant No.1 would be entitled to 5/8th share in the suit schedule properties.
9. As regards the defendant Nos.4 and 5 the First Appellate Court confirmed the finding of the trial Court on additional issue framed thereunder regarding the entitlement of defendant Nos.4 and 5 under equity. With these observations and reasoning the First Appellate Court partly allowed the appeal by modifying the shares of the parties. Being aggrieved by the aforesaid finding, the present appeal by the plaintiff No.2.
10. This Court by order dated 01.03.2010 admitted the appeal to consider the following substantial question of law;
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"Whether the Courts below were justified in non-suiting the plaintiffs on the ground that the plaintiffs are entitled for a share in their father's property which would run contrary to the Central Enactment of Hindu Succession (Amendment) Act, 39 of 2005?
11. Sri.Shivanand Patil, learned counsel for the appellant reiterating the grounds urged in the memorandum of appeal submitted that the issue raised in this present appeal is no longer a res-integra in view of the law laid down by the Hon'ble Apex Court in Vineeta Sharma Vs. Rakesh Sharma and Others, reported in (2020) 9 SCC. He further submits that factual and legal aspect of the matter having been completely covered in the said decision of the Hon'ble Supreme Court, the entitlement of the plaintiffs for equal share in the suit properties cannot be denied.
12. Sri.S.Basavaraj, learned Senior Counsel for the respondent No.1 on the other hand submits that before applying the law laid down by the Hon'ble Supreme Court in the case of Vineeta Sharma (supra), a distinction needs 11 to be drawn to find out if the joint family status amongst the members continued even after filing of the suit. Learned Senior Counsel referring to the commentaries of Mulla's Hindu Law, note 325, which provided as to how the partition is to be effected, and also referring to a decision of the Hon'ble Supreme Court in the case of M.Venkataramana Hebbar (Dead) by Lrs. Vs. M.Rajagopa Hebbar and Others, reported in (2007) 6 SCC 401, submitted that very filing of the suit by the plaintiffs in the year 2001 indicated, in an unequivocal terms, their intention of severance from the joint family status thereby the very character of being members of coparcenery came to an end. He further submits existence of joint family status and coparcenery is sin-quo-non for application of provisions of the Hindu Succession (Amendment) Act, 39 of 2005. That in the absence of existence of a joint family/coparcenery, benefit of amendment cannot be extended. He submits that this is the distinguishing factor with regard to the application of law laid down by the Hon'ble Supreme Court. 12
13. Learned Senior Counsel further relied upon the judgment of the Hon'ble Supreme Court in the case of Veerayee Ammal Vs. Seeni Ammal reported in (2002) 1 SCC 134, bringing home the point with regard to scope of consideration of substantial question of law as envisaged under Section 100 of CPC. He submits that the present appeal would not give rise to any substantial question of law warranting interference considering there existed no joint family/co-parcener properties.
14. Sri.P.G.Yatnal, learned counsel appearing for the defendant No.6 submitted that the interest of defendant No.6 has not been taken care by her mother defendant No.1, in which her entitlement in the suit property has been deprived and the sale made by defendant No.1 in favour of defendant Nos.4 and 5 was not in her interest and would not be binding on her.
15. Heard the learned counsel for the parties. 13
16. The substantial question of law framed in the present appeal falls within a very narrow compass giving no scope for consideration of anything other than application of law as laid down by the Hon'ble Supreme Court in the Vineeta Sharma's case. Wherein, while dealing elaborately with all possible circumstances and issues arising in the cases of partition including the one which is being raised in the instant appeal, the Apex Court has summed up the law at paragraph No.137.1 to 137.5 of the said judgment as under;
137.1. The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on a 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 09.09.2005 with saving as in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before the 20th day of December, 2004.
137.3. Since right in coparcenery is by birth, it is not necessary that father of coparcenery should be living as on 09.09.2005.
137.4. The statutory fiction of partition created by the proviso to Section 6 of the Hindu 14 Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenery. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was surviving 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 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 coparcenery equal to that of a son in a pending proceedings for final decree or in an appeal.
137.5 In view of the rigor of provisions of Explanation to Section 6(5) of 1956 Act, a plea of oral partition cannot be accepted as the statuary recognized mode of partition effected by a deed of partition duly registered under the provisions of Registration Act, 1908 or effected by a decree of Court.
17. Thus, the aforesaid categorical clarification provided by the Hon'ble Supreme Court would answer all the contentions raised by the learned Senior counsel appearing for respondents. Mere filing of the suit or expression of intention to separate would not change the status or character of a co-percener property or would not deprive the daughter of equal share lest that would run contrary to the intention of the legislature conferring the 15 vested rights by birth on the daughters in the coparcenery properties. Filing of suit by daughters/female members is assertion of their birth right recognized under the statute. Therefore, the contention raised by the learned Senior counsel for the respondent No.1 cannot be accepted.
18. As regards the rights of the purchasers, the finding given by the trial Court and the First Appellate Court warrants no interference inasmuch as the sale deeds executed by defendant No.1 in favour of defendant Nos.4 and 5 would bind only to the extent of share of defendant No.1 in the suit properties. Defendant Nos.4 and 5 are therefore entitled to seek equity only against the property which would fall to the share of defendant No.1. The said sale deeds are not binding on the plaintiffs and defendant Nos.2 and 3.
19. In view of the above, the following;
ORDER
(a) The appeal in RSA No.7162/2009 is allowed. 16
(b) Plaintiff No.2, defendant Nos.2 and 3 being daughters of deceased Amarappa are entitled to 1/4th share each in the suit schedule properties. Defendant Nos.1 and 6 being wife and daughter of Adeppa, who was the son of deceased Amarappa, together are entitled 1/4th share in the suit schedule properties.
(c) The judgment and decree dated 22.12.2006 passed in O.S.No.268/2001 by the trial Court and the judgment and order dated 21.04.2009 passed in R.A.No.11/2007 by the First Appellate Court is modified to the aforesaid extent.
(d) Defendant Nos.4 and 5 are entitled to seek equity against the 1/4th share of defendant Nos.1 and 6.
Sd/-
JUDGE MKM/MSR