Karnataka High Court
Smt Mahanthamma vs Sri Chandrappa on 19 January, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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NC: 2024:KHC:2977
RSA No. 1078 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 1078 OF 2018 (DEC/INJ)
BETWEEN:
1. SMT MAHANTHAMMA
W/O M.C.THIPPESWAMY
D/O BASAMMA,
AGED ABOUT 50 YEARS,
AGRICULTURIST,
RESIDING AT GOOLIHOSAHALLI VILLAGE,
HOLALKERE TALUK,
CHITRADURGA DISTRICT.
2. SRI THIPPESWAMY
S/O LATE BASAPPA,
AGED ABOUT 55 YEARS,
RESIDING AT GOOLIHOSAHALLI VILLAGE,
HOLALKERE TALUK,
CHITRADURGA DISTRICT.
Digitally
signed by
SUMA B N 3. SMT. SUNANDAMMA
Location: W/O CHANDRAPPA,
High Court D/O BASAMMA,
of Karnataka AGED ABOUT 50 YEARS,
RESIDING AT NANDANAHOSURE,
HOLALKERE TALUK,
CHITRADURGA DISTRICT.
4. SRI MAHANTESHAPPA
S/O LATE BASAPPA,
AGED ABOUT 50 YEARS,
RESIDING AT GOOLIHOSAHALLI VILLAGE,
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NC: 2024:KHC:2977
RSA No. 1078 of 2018
HOLALKERE TALUK,
CHITRADURGA DISTRICT.
...APPELLANTS
(BY SRI. SIDDAPPA B M.,ADVOCATE)
AND:
1. SRI CHANDRAPPA
DEAD, BY HIS LR'S
1(a)SMT.RUDRAMMA
W/O LATE CHANDRAPPA
AGED ABOUT 70 YEARS,
RESIDING AT GOOLIHOSAHALLI VILLAGE,
HOLALKERE TALUK,
CHITRADURGA DISTRICT.
1(b). SMT. RANGAMMA
D/O LATE CHANDRAPPA,
AGED ABOUT 50 YEARS.
R/O GOOLIHOSAHALLI VILLAGE,
D K HALLI POST,
HOLALKERE TALUK,
CHITRADURGA DISTRICT-577577.
1(c). KENCHAPPA
S/ O LATE CHANDRAPPA,
AGED ABOUT 46 YEARS,
R/O GOOLIHOSAHALLI VILLAGE,
D K HALLI POST,
HOLALKERE TALUK,
CHITRADURGA DISTRICT-577577.
1(d). SMT. ANNAPOORNAMMA
D/O LATE CHANDRAPPA,
W/O SIDRAMAPPA,
AGED ABOUT 44 YEARS,
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NC: 2024:KHC:2977
RSA No. 1078 of 2018
R/O RAMAJOGHALLI VILLAGE,
MADADAKERE POST,
HOSADURGA TALUK,
CHITRADURGA DISTRICT-577527.
1(e). SMT. MEENAKSHAMMA
D/O LATE CHANDRAPPA
W/O MOHAN,
AGED ABOUT 39 YEARS,
R/O GOUNAHALLI VILLAGE AT POST,
HIRIYUR TALUK,
CHITRADURGA DISTRICT-577599.
1 (f). THIPPESWAMY
W/O LATE CHANDRAPPA,
AGED ABOUT 36 YEARS,
R/O GOOLIHOSAHALLI VILLAGE,
D K HALLI POST,
HOLALKERE TALUK,
CHITRADURGA DISTRICT-577577.
1(g). SMT. DEVEERAMMA
D/O LATE CHANDRAPPA,
AGED ABOUT 33 YEARS,
R/O GOOLIHOSAHALLI VILLAGE,
D K HALLI POST,
HOLALKERE TALUK,
CHITRADURGA DISTRICT-577577.
1(h). SMT. DEVEERAMMA
D/O LATE CHANDRAPPA
AGED ABOUT 30 YEARS,
R/O IMANGALA VILLAGE AT POST,
HIRIYUR TALUK,
CHITRADURGA DISTRICT-577599.
2. SMT. CHANDRAMMA
W/O THIMMAPPA,
D/O LATE MADHURE SIDDAPPA,
AGRICULTURISTS,
RESIDING AT GOOLIHOSAHALLI VILLAGE,
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NC: 2024:KHC:2977
RSA No. 1078 of 2018
HOLALKERE TALUK,
CHITRADURGA DISTRICT.
3. SRI BUDIPURADA JAYAPPA
S/O NINGAPPA,
AGRICULTURISTS,
RESIDING AT GOOLIHOSAHALLI VILLAGE,
HOLALKERE TALUK,
CHITRADURGA DISTRICT.
4. SRI THIMMAPPA
S/O NINGAPPA,
AGRICULTURISTS,
RESIDING AT GOOLIHOSAHALLI VILLAGE,
HOLALKERE TALUK,
CHITRADURGA DISTRICT.
5. SRI B. RAJAPPA
S/O BASAPPA
AGRICULTURIST,
RESIDING AT GOOLIHOSAHALLI VILLAGE,
HOLALKERE TALUK,
CHITRADURGA DISTRICT.
SMT. SHIVALINGAMMA
(DIED ON 08.03.2018 AND SINCE HER LRS ARE
ALREADY ON RECORD AS R-7, 8 & 9, THEY ARE NOT
MADE AS PARTIES)
6. SMT. LEPAKSHAMMA
W/O DYAMAPPA
RESIDING AT GOOLIHOSAHALLI VILLAGE,
HOLALKERE TALUK,
CHITRADURGA DISTRICT.
7. SRI MAHANTESH
S/O LATE MAHADEVAPPA
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NC: 2024:KHC:2977
RSA No. 1078 of 2018
RESIDING AT GOOLIHOSAHALLI VILLAGE,
HOLALKERE TALUK,
CHITRADURGA DISTRICT.
8. SRI THIPPESWAMY
S/O LATE MAHADEVAPPA
RESIDING AT GOOLIHOSAHALLI VILLAGE,
HOLALKERE TALUK,
CHITRADURGA DISTRICT.
9. SMT. MANGALA GANGA
W/O M.C. RUDRAMUNI
CDPO, OFFICE OF THE CDPO,
HOLALKERE,
RESIDING AT HOLALKERE TOWN,
HOLALKERE TALUK,
CHITRADURGA DISTRICT.
...RESPONDENTS
(BY SRI. S.C. VIJAYAKUMAR, ADVOCATE FOR RESPONDENT NO.1)
(R2, R4, R5, R6, R7, R8 AND R9-SERVED AND UNREPRESENTED)
THIS RSA IS FILED UNDER SEC.100 OF CPC., TO SET
ASIDE THE JUDGMENT AND DECREE PASSED BY THE LEARNED
I ADDI. DISTRICT & SESSIONS JUDGE, CHITRADURGA IN RA
NO.48 OF 2011 DATED 14.12.2015 SO FAR MODIFYING THE
JUDGMENT AND DECREE PASSED BY THE LEARNED SENIOR
CIVIL JUDGE, HOLALKERE IN O.S.NO.96 OF 2006 DATED
06.06.2011, IN RESPECT OF QUANTIFYING THE SHARE AND
CONFIRM THE JUDGMENT AND DECREE PASSED BY THE
LEARNED SENIOR CIVIL JUDGE, HOLALKERE IN O.S. NO.96 OF
2006 DATED 06.06.2011, BY ALLOWING THIS APPEAL AND
ETC.,
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RSA No. 1078 of 2018
JUDGMENT
The present appeal is filed by One Basamma-the mother of the present appellant seeking relief of partition and separate possession in respect of suit schedule properties consisting of 25 items contending inter-alia that the plaintiff and defendant Nos.1 and 2 constituted Hindu Undivided Joint Family and governed by Mitakshara School of Law as the suit schedule properties belonged to the ancestors of the plaintiffs. That the plaintiff and defendants are the legal representatives of one Madhure Siddappa, after his demise plaintiff and defendants Nos.1 and 2 succeeded to the suit schedule properties and they are in joint possession and enjoyment of the same. That the plaintiff being entitled for 1/3rd share in the suit properties requested defendant Nos.1 and 2 who are her brother and sister respectively for partition, who declined to partition the properties. It is further contended that the defendant No.1 without any exclusive right, title and interest had alienated item Nos.16, 17, 20, 21 and 22 of the suit schedule properties in favour of defendant Nos.3 to 7 under different deeds of sale and that the said sale deeds are not binding on the plaintiff. Since the plaintiff had caused issue of notice and same did not -7- NC: 2024:KHC:2977 RSA No. 1078 of 2018 find any favorable response, plaintiff filed a suit for partition claiming 1/3rd share in the suit schedule properties.
2. In response to the summons defendant Nos.1 to 7 appeared, defendant No.1 filed a written statement denying the plaint averments. It is contended that the suit schedule properties were being enjoyed by one Madhure Siddappa along with one Govindappa and that same was partitioned amongst the defendant No.1 and his children and suit in a O.S.No.59/2002 had also been filed against the plaintiff which was decreed and defendant No.1 has been in possession and enjoyment of the suit schedule properties as absolute owner thereof. That the defendant No.1 has sold item Nos.16, 17, 20, 21 and 22 of the suit schedule properties under different deeds of sale in favour of defendant Nos.5 to 7 for family and legal necessity and the said parties are in possession of the properties. That the suit filed by the plaintiff is only to harass the defendants without there being entitled for any share, right, title and interest.
3. Considering the pleadings, the Trial Court framed the issues and recorded the evidence. After appreciating the pleadings and oral and material evidence, the Trial Court -8- NC: 2024:KHC:2977 RSA No. 1078 of 2018 partially decreed the suit by holding that the plaintiff is entitled for 1/3rd share in suit item Nos.1 to 15, 23 to 25 and 1 acre of land in item No.20 of the suit schedule properties by judgment and decree dated 06.06.2011.
4. Being aggrieved by the same defendant No.1 preferred Regular Appeal in R.A.No.48/2011 before the I Additional District and Sessions Judge, Chitradurga(herein after 'the First Appellate Court') . The First Appellate Court by the judgment and decree dated 14.12.2015 allowed the said appeal by modifying the judgment and decree passed by the Trial Court, whereby it declared the plaintiff being entitled for 1/6th share in item Nos.1 to 15, 23 to 25 and 1 acre of land in item No.20 of the suit schedule properties. Being aggrieved by the same plaintiff is before this Court.
5. This appeal is admitted to consider the following substantial question of law:
Whether the First Appellate Court is justified in facts and circumstances of the case and in the light of law laid down by the Apex Court in the case of Vineetha Sharma Vs Rakesh Sharma and Others reported in (2020) 9 SCC 1 in modifying the judgment and decree -9- NC: 2024:KHC:2977 RSA No. 1078 of 2018 passed by the Trial Court reducing the share of the plaintiff from 1/3rd to 1/6th?
6. At the request and consent of the learned counsel for the appellant as well as counsel for the respondent matter is taken up for final disposal today.
7. Sri. B.M. Siddappa, learned counsel for the appellant reiterating the grounds urged in the memorandum of the appeal submits that, the First Appellate Court grossly erred in interfering with the well considered judgment and decree passed by the Trial Court and further erred in modifying the share declared by the Trial Court, particularly in the light of law laid down by the Apex Court in the case of Vineetha Sharma Vs Rakesh Sharma and Others reported in (2020) 9 SCC 1 that the daughters are held entitled for equal share in coparcenary property. However, he submits that since the alienation in respect of items Nos.16 to 22 have taken place prior to coming into force of provisions of Section 6 of Hindu Succession(Amendment) Act, 2005, he fairly submits that the plaintiff would not press any reliefs in respect of the said items of schedule properties, which have been alienated prior to coming into force of Section 6 of the Act.
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NC: 2024:KHC:2977 RSA No. 1078 of 2018
8. Submission is taken on record.
9. In response, learned counsel for the respondents does not dispute the entitlement of the plaintiff to the extent of 1/3rd share in the remaining suit schedule properties. He further submits on instruction that the respondents have no objection in modifying the decree in terms of the law laid down by the Apex Court in the case of Vineetha Sharma Vs Rakesh Sharma and Others reported in (2020) 9 SCC 1.
10. Submission is taken on record.
11. Heard. Perused the records.
12. Admittedly suit properties are the joint family ancestral properties. Plaintiff, defendant Nos.1 and 2 being the children of Mudhare Sidappa are entitled for 1/3rd share in right, title and interest of the suit schedule properties. However, since item Nos.16 to 22 of the schedule properties have already been sold by the defendant No.1 by deeds of sale dated 29.05.1975, 20.09.1974, 20.07.2004, 03.01.2000 and 19.07.2004 respectively, in view of the proviso to Section 6 of the Hindu Succession (Amendment) Act, 2005, which excludes any alienation of which any alienation made prior to December
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NC: 2024:KHC:2977 RSA No. 1078 of 2018 2004, the said items of the properties subject matter of alienation will not be available for partition.
In that view of the matter, excluding the said items of suit schedule properties, the appellant be entitled for the 1/3rd share in the remaining suit schedule properties as such the judgment and order passed by the Appellate Court is set aside. The judgment and decree passed by the Trial Court is restored and confirmed. Accordingly, appeal is partly allowed.
Sd/-
JUDGE RL