Karnataka High Court
Smt Renuka vs Mr.V Muniraju on 28 February, 2020
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF FEBRUARY, 2020
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH
REGULAR FIRST APPEAL NO.350 of 2015
BETWEEN:
SMT RENUKA
W/O ASHOKA
D/O M VENKATAPPA,
AGED ABOUT 33 YEARS,
R/AT DYAVASANDARA VILLAGE,
HARAGADDE POST, JIGANI HOBLI
ANEKAL TALUK - 562 106.
...APPELLANT
(BY SMT. S.B.LAKSHMI, ADVOCATE)
AND:
1 . SRI V.MUNIRAJU
S/O LATE MR.VENKATAPPA,
AGED ABOUT 35 YEARS
2 . MR.SRINIVAS
S/O LATE MR.VENKATAPPA,
AGED ABOUT 31 YEARS,
RESPONDENTS 1 TO 2 ARE
RESIDING AT BILEKAHALLI VILLAGE,
B.G.ROAD, BEGUR HOBLI,
BENGALURU SOUTH - 560 076.
2
3. SRI B V ERAPPA
S/O LATE VALAPPA,
AGED ABOUT 51 YEARS,
R/AT NO.200, BSV COMPLEX,
BILEKAHALLI LAYOUT,
B G ROAD,
BENGALURU - 560 076.
...RESPONDENTS
(BY SHRI MITUN G.A., ADVOCATE FOR R3;
R1 AND R2 - SERVED AND UNREPRESENTEDS)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION
96 OF THE CODE OF CIVIL PROCEDURE AGAINST THE
JUDGMENT AND DECREE DATED 24.11.2014 PASSED IN OS
NO.4615 OF 2008 BY THE XVII ADDITIONAL CITY CIVIL AND
SESSIONS, JUDGE, BENGALURU (CCH-16), DISMISSED THE
SUIT FOR PARTITION AND SEPARATE POSSESSION.
THIS APPEAL COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This Regular First Appeal is directed against the judgment an decree dated 24th November, 2014 passed in OS No.4615 of 3 2008 passed by the XVII Additional City Civil and Sessions Bengaluru. This appeal is preferred by the plaintiff.
2. For the sake of convenience, the parties in this appeal are referred to their status before the Trial Court.
3. The brief facts of the case are:
Plaintiff has filed a suit for partition and separate possession of her one-fifth share in the suit schedule property by metes and bounds and also sought for mense profits and for award of costs of the suit.
4. Plaintiff is the daughter of original defendants No.1 and 2, and the defendants No.3 and 4 are the brothers of the plaintiff. During the pendency of the suit the parents of the plaintiff and the defendants, viz. defendant No.1 and 2, died.
5. The genealogical tree of M Venkatappa, is as hereunder: GENEALOGICAL TREE M. VENKATAPPA) NARAYANAMMA (DEAD) V. Muniraju Renuka V. Srinivasa 4
6. Plaint averments are that the plaintiff along with defendants No.1 to 4 herein constitute a joint family and are coparceners and governed by Hindu Law of Mitakshara school. The plaintiff states that the suit schedule property is an ancestral property of the first defendant and her Uncle (brother of defendant No.1-Venkatappa) and by virtue of the decree passed in the partition suit in OS No.797 of 2003 before the Additional City Civil and Sessions Judge, Bangalore, the defendant No.1 herein has inherited the property from his deceased father as the said suit came to be disposed of in terms of the compromise petition filed before the trial Court in OS No.797 of 2003. Thereafter, final decree proceeding was drawn and the decree was registered on 30th October, 2003 and 14th November, 2003 before the Sub-Registrar. Bangalore South Taluk. In the said partition deed, suit schedule property has fallen to the share of first defendant herein. The Plaintiff and the defendants No.2 and 3 were not parties to the said partition decree. However, the defendants No.1 to 4 have sold an unit to an extent of 30 x 40 5 feet of vacant land to the fifth defendant by way of registered sale deed dated 26th November, 2004. Plaintiff states that the defendants No.1 to 4 have no right or title to sell the aforementioned property without the consent of the plaintiff and as such the alleged sale deed dated 26th November, 2004 effected by the defendants No1. to 4 infavour of the defendant No.5 is not binding on the plaintiff. It is further averred in the plaint that the plaintiff has got equal share, right and title insofar as suit schedule property is concerned along with the defendants No.3 and 4. Even assuming that the property being sold by defendants No.1 and 2, as mentioned above, the said sale deed is not binding, as the said sale deed was executed without the consent of all the members of the joint family including her interest in the family, and in view of the same, the plaintiff had convened panchayat at Bilekahalli village during first week of June, 2008 in the house of defendants. However, defendants No.1 to 4 have refused to effect the partition by metes and bounds, and as such, she was constrained to file suit for partition and separate possession in OS No.4615 of 2008 before the Trial Court.
6
7. In response of the issuance of suit summons, the defendants have appeared through their counsel. Defendants No.1 and 2 have filed written statement stating that the defendants No.1 to 4 did not perform the marriage of the plaintiff, as the plaintiff's marriage was a love marriage and the entire family was against the marriage, and as such, the plaintiff is not entitled for any share in the joint family property. Defendant No.2 further states that defendants No.2 to 4 are in joint possession and enjoyment of suit schedule property and the fifth defendant is not in possession of suit schedule property, and therefore, the second defendant sought for dismissal of the suit. Defendants No.3 and 4 have not filed the written statement before the Trial Court. The fifth defendant has filed written statement denying the plaint averments with regard to share of the plaintiff in the joint family of late M. Venkatappa (Defendant No.1). The main contention of the fifth defendant is that the first defendant has colluded with the plaintiff during the panchayat, as such, in order to settle the family dispute between the plaintiff as well as the defendants No.1 to 4, the fifth defendant has agreed to pay Rs.10,000/- to the plaintiff on 7 humanitarian ground. However, since the plaintiff has made a claim for Rs.1,00,000/-, accordingly, the fifth defendant in order to put an end to the dispute, agreed to pay and accordingly has paid Rs.1,00,000/- before the witnesses of the said consent letter (oppige patra) and pursuant to the same, she has executed a consent letter (oppige patra) dated 27th July, 2007 and has agreed that she would relinquish her right, title and interest over suit schedule property. The fifth defendant further submits that the suit, which is filed by the plaintiff, is a collusive suit only to deprive his legitimate right over the suit schedule property and accordingly sought for dismissal of the suit.
8. On the basis of pleadings, the Trial Court has framed the following issues:
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(2) zÁªÉ ¸ÀévÀÛ£ÀÄß ¢:26-11-2004gÀAzÀÄ 5£Éà ¥Àw æ ªÁ¢UÉ ªÀiÁgÁl ªÀiÁqÀĪÁUÀ 1 jAzÀ 4£Éà ¥Àw æ ªÁ¢UÀ½UÉ AiÀiÁªÀÅzÉà MqÉvÀ£z À À ºÀPÀÄÌ »vÁ±ÀQÛ EgÀ°®èªA É zÀÄ ªÁ¢ gÀÄdĪÁvÀÄ¥Àr¹zÁݼA É iÉÄÃ?
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æ ªÁ¢ vÁ£ÀÄ zÁªÉ ¸ÀéwÛ£°
À è ¥ÁæªÀiÁtÂPÀ
RjâzÁgÀ£A
É zÀÄ gÀÄdĪÁvÀÄ¥Àr¹zÁÝ£A
É iÉÄÃ?
(5) ªÀÄzsÀåPÁ°Ã£À ¯Á¨sPÀ ÁÌV «ZÁgÀuÉUÉ DzÉò¸À§ºÀÄzÉ?
(6) K£ÀÄ DzÉñÀ CxÀªÁ rQæ?
9. The plaintiff has examined herself as PW1 and got marked exhibits P1 to P4. The defendants No.1 to 4 have not adduced any evidence. The fifth defendant was examined as DW1 and got marked documents as Exhibits D1 to D5. The Trial Court, on appreciation of evidence, has answered issues No.1 and 4 in the affirmative. However, with regard to issues No.2, 3 and 5 has answered in the negative and accordingly dismissed the suit. Being aggrieved by the judgment and decree dated 24th November, 2014, passed by the Trial Court, the appellant has preferred the instant appeal.
10. I have heard the learned counsel for the appellant as well as the learned counsel for respondent No.3 (defendant No.5). Respondents No.1 and 2 are served and remained absent.9
11. The learned counsel for the appellant contends that the Registered sale deed dated 26th November, 2004 (Exhibit P2) executed by defendants No.1 to 4 with the fifth defendant is not binding on her as the sale deed came to be executed prior to 20th December, 2014, as the amendment to Section 6 of the Hindu Succession Act (hereinafter referred to as 'the Act'), came into force and in view of the said amendment, the plaintiff is entitled for her share in the joint family property of her father as a coparcener. The learned counsel for the appellant further submits that, the suit schedule property has fallen to the share of the first appellant by way of compromise decree passed in OS No.797 of 2003 and as such the suit schedule property is an ancestral property of the plaintiff and in view of the same, she being the legal heir of the Hindu Mitakshara joint family and as such the share of the plaintiff is crystalised as that of the son of the family. The learned counsel further submits that in view of Section 6 of the Hindu Succession (Amendment) Act, 2005, the plaintiff became the coparcener and she has equal right with that of the son in the joint family of defendant No.1 and thereby the alienation or partition through decree, even before the date of 10 amendment Act came into force and all such transactions are void to the extent of her share in the suit schedule property. To buttress the said submission, the learned counsel for the appellant places reliance on the judgment in the case of GANDURI KOTESHWARAMMA AND ANOTHER v. CHAKIRI YANADI AND ANOTHER reported in (2011)9 SCC 788. The learned counsel further submits that she has disputed the execution of the consent letter (oppige patra)-Exhibit D5 and states that she has not signed the document, however, she is aware of the fact that the defendants No.1 to 4 have sold the suit schedule property in favour of defendant No.5, and therefore, the learned counsel for the appellant submits that the Trial Court has not properly appreciated the evidence on record and the law relating to the application of Section 6 of the Hindu Succession (Amendment) Act, 2005, insofar as the daughters in the joint family property.
12. Per contra, Sri G.D. Ashwathnarayana, the learned counsel appearing for the respondent No.3 (defendant No.5), submitted that the sale deed Exhibit P2 was made on 26th 11 November, 2004. The amendment to Section 6 of the Hindu Succession Act, came into force after the execution of sale deed and in view of the law declared by this court in Regular First Appeal No.1507 of 2012 disposed of on April, 8 2014 in the case of ANJANAMMA AND OTHERS v. G. GOPALAPPA AND OTHERS, suit is liable to be rejected. He further pointed out that, Section 6 of the Hindu Succession Act, came into effect from 9th September 2005 and it has been held to be retrospective in operation, however, proviso to said provision has saved or shall not affect any dispossession of the property which had taken place before 20th December, 2004. The purpose of the proviso added to Section 6 of the Hindu Succession (Amendment) Act, is to protect the interest of third parties who have purchased the property from joint family members for valuable consideration and who are bonafide purchasers and in view of the same, the learned counsel for the respondent No.3 submitted that the trial judge had taken into consideration the law declared by this Court and the Hon'ble Supreme Court with regard to interpretation of Section 6 of the Act and accordingly submits that the impugned 12 judgment and decree of the Trial Court does not call for interference by this Court.
13. Having taken note of the arguments advanced by the learned counsel for the parties, the points that arise for consideration are
(i) whether the Trial Court is justified in dismissing the suit of the appellant; and
(ii) whether the sale deed dated 26th November 2004 is hit by Section 6 of the Hindu Succession Act?
14. It is an undisputed fact that the relationship between the parties are not disputed by either of the parties. Plaintiff and Defendants No.3 and 4 are the children of the defendants No.1 and 2. The first defendant has acquired the suit schedule property by virtue of a compromise decree drawn in OS No.797 of 2003 before the Additional City Civil Judge, Bangalore, between the first defendant and his brother as joint family members. Thereafter, a final decree was registered on 31st October, 2003 and the same came to be registered before the Sub-Registrar on 14th November, 2003 and in view of the same, 13 the suit schedule property, as per the partition deed, had fallen to the share of the first defendant and as such, the suit schedule property is the ancestral property of the first defendant herein. It is also not disputed that the defendants Nos.1 to 4 herein have executed a registered sale deed dated 26th November, 2004 in respect of the suit schedule property in favour of defendant No.5. The only contention raised by the plaintiff is that though she is a member of the joint family of defendant No.1 and also she has not signed the registered sale deed dated 26th November, 2004 and as such, the alienation of the suit schedule property made in the said sale deed Exhibit P2 in favour of the defendant No.5 is not binding on her and she is having right of succession in respect of the suit schedule property as per amendment brought in to Section 6 of the Hindu Succession Act.
15. Section 6 of the Hindu Succession Act, 1956, by a new provision vide 2005 Amendment Act, reads as follows:
"6. Devolution of interest in coparcenary property.-14
(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;
(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 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 15
(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.
(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-grandson" shall be deemed to refer to the son, grandson or great-grandson, 16 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."
16. The 1956 Act is an Act to codify the law relating to intestate succession among Hindus. The new Section 6 of the Act provides for parity of rights in the coparcernary property among male and female members of a joint Hindu family. The intention of the legislature has now conferred substantive right in favour of the daughters. In view of the declaration of Section 6 to the Act that the daughter shall have the said rights and liabilities in the coparcenary property as she would have been a son is unambiguous and unequivocal and in view of the amendment therein, the daughter is entitle to a share in the ancestral property as a coparcener as if she had been a son.
17. The language employed in Section 6 of the Amendment Act is very clear and the right accrued to a daughter 17 in the property of a joint Hindu family governed by Mitakshara Law is absolute except in the circumstances provided in proviso to Section 6(i) of the Act. In view of the amendment to Section 6 of the Act, "partition" means any partition made by execution of a deed of partition fully registered under the Registration Act, 1908 over a partition effected by a decree of a Court. In other words, the legal position is settled that, partition of a Hindu family can be effected by two modes, viz. (i) by a registered instrument of partition; and (ii) by a decree of court. The Hon'ble Supreme Court in the case of S. SAI REDDY v. S. NARAYAN REDDY reported in (1991)3 SCC 647 has considered the matter pertaining to partition as under:
".........A partition of the joint Hindu family can be effected by various modes, viz., by a family settlement, by a registered instrument of partition, by oral arrangement by the parties, or by a decree of the court. When a suit for partition is filed in a court, a preliminary decree is passed determining shares of the members of the family. The final decree follows, thereafter, allotting specific properties and directing the partition of the immovable properties by metes and bounds. Unless and until the final decree is passed and the allottees of the shares are put in possession of the respective property, 18 the partition is not complete. The preliminary decree which determines shares does not bring about the final partition. For, pending the final decree the shares themselves are liable to be varied on account of the intervening events. In the instant case, there is no dispute that only a preliminary decree had been passed and before the final decree could be passed the amending Act came into force as a result of which clause (ii) of Section 29-A of the Act became applicable. This intervening event which gave shares to respondents 2 to 5 had the effect of varying shares of the parties like any supervening development. Since the legislation is beneficial and placed on the statute book with the avowed object of benefiting women which is a vulnerable section of the society in all its stratas, it is necessary to give a liberal effect to it. For this reason also, we cannot equate the concept of partition that the legislature has in mind in the present case with a mere severance of the status of the joint family which can be effected by an expression of a mere desire by a family member to do so. The partition that the legislature has in mind in the present case is undoubtedly a partition completed in all respects and which has brought about an irreversible situation. A preliminary decree which merely declares shares which are themselves liable to change does not bring about any irreversible situation. Hence, we are of the view that unless a partition of the property is effected by metes and bounds, the daughters cannot be deprived of the benefits conferred by the Act. Any other view is likely to deprive a 19 vast section of the fair sex of the benefits conferred by the amendment. Spurious family settlements, instruments of partitions not to speak of oral partitions will spring up and nullify the beneficial effect of the legislation depriving a vast section of women of its benefits."
18. In view of the law declared by the Hon'ble Supreme Court in the above case, the partition that the legislature has in mind is, undoubtedly, a partition completed in all respects and which has brought about irreversible situation. In the present case, admittedly, the suit schedule property is the ancestral property of defendant No.1, having acquired the same by virtue of decree passed in OS No.797 of 2003. In view of the same, the finding recorded by the Trial Court with regard to issue No.1 is just and proper.
19. A perusal of the entire evidence on record and the pleadings put-forth by the parties would clearly indicate that the question is of very narrow compass. The Trial Court having taken note of the entire case on merits and on appreciation of evidence on record has clearly stated that the fifth defendant is a bonafide purchaser of the suit schedule property. The perusal of 20 the recital to Exhibit D1 would clearly establish the fact that the defendants No.1 to 4 have sold the suit schedule property to meet their family necessities and also to purchase some other property, and in the instant case, particularly, though they have represented before the trial Court, the defendants No.1 to 4 have not chosen to file written statement nor have adduced any evidence before the Trial Court which would probabalise the factum that they had sold the property in favour of defendant No.5 to meet their legal necessity. The contesting parties in the suit are plaintiff and defendant No.5; and on re-appreciating the entire materials on record, I am of the considered opinion that that the fifth defendant has proved that he is a bonafide purchaser of the suit schedule property for valuable consideration. Accordingly, the trial Court has properly appreciated the entire pleadings and evidence on record and the finding recorded with regard to issue No.4 cannot be faulted with by this Court.
21
20. Now, the only question that remains to be answered is whether the sale deed dated 26th November 2004 vide Exhibit P2 is hit by Section 6 of the Hindu Succession Act?
21. The interpretation to proviso to Sub-Section (5) of Section 6 of the Act came up before the Hon'ble Supreme Court in the case of PRAKASH AND OTHERS v. PHULVATI AND OTHERS reported in (2016)2 SCC 36 wherein the Hon'ble Supreme Court has held as follows:
18. ...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 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 22 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.
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, 23 2004 on which date the Bill was introduced. Explanation cannot permit reopening of partitions which were valid when effected. Object of giving finality to transactions prior to 20th December, 2004 is not to make the main provision retrospective in any manner. The object is that by fake transactions available property at the introduction of the Bill is not taken away and remains available as and when right conferred by the statute becomes available and is to be enforced. Main provision of the Amendment in Section 6(1) and (3) is not in any manner intended to be affected but strengthened in this way. Settled principles governing such transactions relied upon by the appellants are not intended to be done away with for period prior to 20th December, 2004. In no case statutory notional partition even after 20thDecember, 2004 could be covered by the Explanation or the proviso in question.
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 Civil Appeal No.7217 of 2013 etc. date will remain unaffected. Any transaction of partition effected thereafter will be governed by the Explanation."
22. It is also notable to have the benefit of the law declared by the Hon'ble Supreme Court in the case of DANAMMA 24 @ SUMAN SURPUR AND ANOTHER v. AMAR AND OTHERS reported in (2018)3 SCC 343 wherein the Hon'ble Suprme Court has reiterated about disposition of properties of the joint family property pursuant to amendment to Section 6 of the Act.
23. The aforesaid two judgments of the Hon'ble Supreme Court was again followed by Hon'ble Supreme Court in the case of MANGAMMAL ALIAS HULASI AND ANOTHER v. T.B. RAJU and others reported in (2018)15 SCC 662 wherein the Hon'ble Supreme Court, at paragraphs 16 and 20 of the judgment has held as follows:
" 16. It is pertinent to note here that recently, this Court in Danamma @ Suman Surpur & Anr. Vs. Amar & Ors, 2018 (1) Scale 657 dealt, inter-alia, with the dispute of daughter's 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 25 share in ancestral property or not? In such circumstances, in our view, Prakash & Ors. (supra), would still hold precedent on the issue of death of coparcener for the purpose of right of daughter in ancestral property. Shortly put, only living daughters of living coparceners would be entitled to claim a share in the ancestral property.
20. At this juncture, we would like to make it clear that any sale which made to Respondent Nos. 2 & 3 in pursuance of two sale deeds dated 03.04.1996 and
24.08.1998 respectively shall not be disturbed anymore. In lieu of the same, the appellants shall be entitled to their legitimate share, if any, which belonged to them in such properties and which had been sold through sale deeds from Respondent No. 1 by way of money or some other property of the same amount."
24. The Division Bench of this Court in the case of ANJANAMMA AND OTHERS v. G. GOPALAPPA AND OTHERS made in RFA No.1507 of 2012 disposed of on 08th April, 2014, at paragraph 11 of the judgment has held as follows:
"11. Section 6(1) of the Act for the first time confers status of a coparcener on a daughter and she is entitled to a right in coparcenery property as that of a son. However, the said amendment came into effect from 09.09.2005. It has been held to be retrospective in operation. But, the proviso to the said provision makes it 26 clear that nothing contained in this subsection shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before 20th day of December 2004. The proviso is introduced in order to protect the interest of third parties who have purchased the properties from the joint family members for valuable consideration and who are bonafide purchasers. Therefore, though a daughter is conferred a right of a coparcener by birth it dates back to her date of birth, the proviso takes away that right to the extent it is provided for, that is, if prior to 20.12.2004 a joint family property or coparcenery property is alienated by coparcener or joint family members under a registered deed, such alienation is not in any way affected by the right conferred on a daughter under sub-section (1) of Section 6 of the act. In the instant case, defendant Nos.1 to 3 as coparceners have sold the schedule property in favour of defendant Nos.4 to 7 under a registered sale deed dated 23.03.1993, that is, prior to the coming into force of the amended provision. On the date the amended provision came into force there was no joint family in existence and there was no coparcenery in existence. Therefore, though the daughter is conferred right of a coparcener there cannot be any coparcenery without a property. As there was no property in the joint family on the date when Section 6 of the Act came into force the daughter has no right."27
25. Having regard to the exposition of law made by the Hon'ble Supreme Court as well as the Division Bench in the matters stated supra and on application of said ratio to the present case, wherein the fifth defendant has purchased the suit schedule property prior to 20th December, 2004 and as such, the alienation is made on 26th November, 2004 by the defendant No.1 to 4 herein in favour of defendant No.5 is valid and as such, the said registered deed dated 26th November, 2004 is saved under the proviso to amended Section 6 of the Act and in view of the same, the Trial Court having consciously dealt with the law relating to proviso to Section 6 of the Act, has rightly negatived the issue No.2. In that view of the matter, the judgment of the Hon'ble Supreme Court in the case of GANDURI KOTESHWARAMMA AND ANOTHER v. CHAKIRI YANADI AND ANOTHER reported in (2011)9 SCC 788 relied upon by the learned counsel for the appellant is not applicable to the facts of the present case. Hence, I do not find any infirmity in the judgment and decree passed by the Trial Court. Hence the following:
28
ORDER
1. Appeal is dismissed.
2. Judgment and Decree dated 24th November, 2014 passed in OS No.4165 of 2008 by the XVII Additional City Civil and Sessions Judge, Bengaluru is confirmed.
Sd/-
JUDGE lnn