Karnataka High Court
Ushabai D/O Subbabhat Negalur vs Balachandra S/O Subbabhat Negalur on 14 August, 2025
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NC: 2025:KHC-D:10307
RSA No. 100238 of 2021
HC-KAR
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 14TH DAY OF AUGUST, 2025
BEFORE
THE HON'BLE MR. JUSTICE G BASAVARAJA
REGULAR SECOND APPEAL NO. 100238 OF 2021 (PAR)
BETWEEN:
1. USHABAI D/O. SUBBABHAT NEGALUR
AGE: 79 YEARS,
OCC: RETIRED GOVT. SERVANT
HOUSEHOLD WORK,
R/O: GUTTAL,
TQ. AND DIST. HAVERI-581106.
2. UDAYBHARATI D/O. SUBBABHAT NEGALUR
AGE: 67 YEARS, OCC: HOUSEHOLD WORK,
R/O: GUTTAL,
TQ. AND DIST. HAVERI-581106.
3. SINDHU D/O. SUBBABHAT NEGALUR
AGE: 65 YEARS, OCC: HOUSEHOLD WORK,
R/O. GUTTAL,
Digitally signed by
MALLIKARJUN
TQ. AND DIST. HAVERI-581106.
RUDRAYYA
KALMATH
Location: HIGH
...APPELLANTS
COURT OF
KARNATAKA
DHARWAD BENCH
(BY SRI NAGARAJ APPANNANAVAR, ADVOCATE.)
Date: 2025.08.19
10:47:14 +0530
AND:
BALACHANDRA S/O. SUBBABHAT NEGALUR
AGE: 71 YEARS,
OCC: AGRICULTURE AND PVT. DOCTOR,
R/O. GUTTAL, NOW AT KANAVALLI,
TQ. AND DIST. HAVERI-581106
...RESPONDENT
(BY SRI N.P.VIVEKMEHTA, ADVOCATE.)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF THE CIVIL PROCEDURE CODE, 1908, PRAYING TO SET ASIDE
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NC: 2025:KHC-D:10307
RSA No. 100238 of 2021
HC-KAR
THE JUDGMENT AND DECREE DATED 20.12.2018, PASSED IN
R.A.NO.19/2017, ON THE FILE OF THE I ADDITIONAL DISTRICT AND
SESSIONS JUDGE, HAVERI AND THE JUDGMENT AND DECREE DATED
28.01.2017, PASSED IN O.S.NO.62/2013, ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE AND CHIEF JUDICIAL MAGISTRATE,
HAVERI, BY ALLOWING THIS APPEAL AND ETC.,.
THIS APPEAL COMING FOR FINAL HEARING THIS DAY,
JUDGMENT IS DELIVERED THEREIN AS UNDER:
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE G BASAVARAJA) This Regular Second Appeal is preferred by defendants No.1 to 3, against the judgment and decree dated 28.01.2017, passed in O.S.No.62/2013, on the file of Principal Senior Civil Judge and CJM, Haveri ('trial Court' for short), and the judgment and decree dated 20.12.2018, passed in R.A.No.19/2017, on the file of I Additional District and Sessions Judge, Haveri ('First Appellate Court' for short).
2. The brief facts leading to this appeal are that, the respondent Balachandra had filed a suit for partition and separate possession of the property against the defendants. The suit of the plaintiff was partly decreed and the trial Court has held that the plaintiff is entitled for -3- NC: 2025:KHC-D:10307 RSA No. 100238 of 2021 HC-KAR partition and separate possession of 5/8th share by metes and bounds in item Nos.1 to 3 of suit schedule A properties i.e., VPC No.1638, VPC No.1641 and VPC No.1634 of Guttal Gram Panchayat and the suit of the plaintiff for the rest of the suit schedule A properties, which are moveable properties and counter claim of defendants No.1 to 3 was dismissed. Being aggrieved by this judgment and decree passed by the trial Court, the present appellants have preferred appeal before the I Additional District and Sessions Judge, Haveri, in Regular Appeal No.19/2017. The same came to be dismissed on 20.12.2018. Being aggrieved by this judgment and decree of both the Courts, the appellants have preferred this Regular Second Appeal.
3. Upon hearing the arguments, this Court, vide order dated 04.12.2023, has framed the following substantial question of law.
"Whether the Courts below were justified in allotting the notional shares to the plaintiff and defendant contrary to the law declared by -4- NC: 2025:KHC-D:10307 RSA No. 100238 of 2021 HC-KAR the Apex Court in the case of Vineeta Sharma vs. Rakesh Sharma and others reported in (2020) 9 SCC 1?"
4. I have heard the arguments of learned counsels appearing for both the sides.
5. Learned counsel for appellants would submit that the relationship between the parties has not been disputed. It is also not in dispute that the properties are ancestral properties of appellants and the respondent. In view of the decision of the Hon'ble Apex Court in the case of Vineeta Sharma vs. Rakesh Sharma and others, reported in ILR 2020 KAR 4370, the appellants are entitled for equal share. Accordingly sought for modification of the judgment and decree passed by the trial Court by allowing this appeal.
6. As against this, learned counsel for respondent would submit that for the first time before this Court the appellants have raised this new plea. Both the Courts have properly appreciated the evidence on record and passed -5- NC: 2025:KHC-D:10307 RSA No. 100238 of 2021 HC-KAR the judgment and decree, which does not warrant interference of this Court and sought for dismissal of the appeal.
7. In paragraph No.129 of the Vineeta Sharma case (supra), the Hon'ble Apex Court has answered the reference as under:
129. Resultantly, we answer the reference as under:
(i) The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.
(ii) 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 which had taken place before 20th day of December, 2004.
(iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.
(iv) The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or -6- NC: 2025:KHC-D:10307 RSA No. 100238 of 2021 HC-KAR disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class-I as specified in the Schedule to the Act of 1956 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.
(v) In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory ecognized mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a Court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a Court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.
130. We understand that on this question, suits/appeals are pending before different High Courts and subordinate courts. The matters have already been delayed due to legal imbroglio caused by conflicting decisions. The daughters cannot be deprived of their right of equality conferred upon them by Section 6. Hence, we request that the -7- NC: 2025:KHC-D:10307 RSA No. 100238 of 2021 HC-KAR pending matters be decided, as far as possible, within six months.
In view of the aforesaid discussion and answer, we overrule the views to the contrary expressed in Prakash v. Phulavati and Mangammal v. T.B. Raju & Ors. The opinion expressed in Danamma @ Suman Surpur & Anr. V. Amar is partly overruled to the extent it is contrary to this decision. Let the matters be placed before appropriate Bench for decision on merits.
8. In view of the decision of the Hon'ble Apex Court stated supra, both the trial Court and the First Appellate Court were not justified in allotting notional shares to the plaintiff and defendants contrary to the law declared by the Hon'ble Apex Court. Hence, I answer the substantial question of law in the negative and I proceed to pass the following:
ORDER
i) The appeal is allowed in part.
ii) The judgment and decree dated 28.01.2017, passed in O.S.No.62/2013, on the file of Principal Senior -8- NC: 2025:KHC-D:10307 RSA No. 100238 of 2021 HC-KAR Civil Judge and CJM, Haveri and the judgment and decree dated 20.12.2018, passed in R.A.No.19/2017, on the file of I Additional District and Sessions Judge, Haveri, are set aside and modified as under:
iii) The appellants/defendants No.1 to 3 before the trial Court are entitled for partition and separate possession of 1/4th share each by metes and bounds in item No.1 to 3 of schedule A properties i.e., VPC No.1638, 1641 and 1634 of Guttal Gram Panchayat.
iv) Draw decree accordingly.
v) Send a copy of this judgment and decree along
with records to the concerned Courts.
Sd/-
(G BASAVARAJA) JUDGE MRK CT-CMU LIST NO.: 1 SL NO.: 97