Karnataka High Court
Sri G N Rajanna vs Smt Sakamma on 26 September, 2022
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.S.A.NO. 1116 OF 2015 (PAR)
BETWEEN:
SRI G N RAJANNA
SON OF NINGE GOWDA, 46 YEARS,
RESIDING AT GOWDAHALLI VILLAGE,
K SHETTIHALLI HOBLI,
SRIRANGAPATNA TALUK-571415.
...APPELLANT
(BY SRI.ABHINAY.Y.T, ADVOCATE FOR SRI.BYREGOWDA.N,
ADVOCATE)
AND:
1. SMT. SAKAMMA
WIFE OF NAGARAJU, 51 YEARS,
KENGARAKOPPALU VILLAGE, RAMAPURA POST,
K SHETIHALLI HOBLI,
SRIRANGAPATNA TALUK-571415.
2. SRI NAGARAJU
SON OF DODDAKEMPE GOWDA,
61 YEARS, M SHETIHALLI VILLAGE AND
K SHETTIHALLI HOBLI,
SRIRANGAPATNA TALUK-571415.
3. SRI MALLESHA
SON OF DODDAKEMPE GOWDA,
2
59 YEARS, GOWRIPURA VILLAGE,
K SHETTIHALLI HOBLI,
SRIRANGAPATNA TALUK-571415.
4. SRI KENGE GOWDA
SON OF DODDAKEMPE GOWDA,
57 YEARS, M SHETTIHALLI VILLAGE AND
K SHETTIHALLI HOBLI,
SRIRANGAPATNA TALUK-571415.
5. SRI KRISHNE GOWDA
SON OF DODDAKEMPE GOWDA,
44 YEARS, M SHETTIHALLI VILLAGE AND
K SHETTIHALLI HOBLI,
SRIRANGAPATNA TALUK-571415.
...RESPONDENTS
(BY SRI.P S DIWAKARA, ADVOCATE FOR R1;
R2 TO R5 ARE SERVED & UNREPRESENTED)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 12.03.2015 PASSED IN
R.A.NO.17/2011 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL
JUDGE & J.M.F.C., SRIRANGAPATTANA, PARTLY ALLOWING THE
APPEAL AND SET ASIDE THE ORDER DATED 18.12.2010 PASSED IN
O.S.NO.18/2008 ON THE FILE OF THE ADDL. CIVIL JUDGE (JR.
DN.) & J.M.F.C., SRIRANGAPATNA.
THIS APPEAL COMING ON FOR FURTHER HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
The captioned second appeal is filed by the defendant No.5 who has purchased the suit schedule property from the defendants.
2. For the sake of brevity, the parties are referred to as per their rank before the Trial Court.
3. The family tree of the parties is as under:
Dodda Kempe Gowda | Ningamma (Wife-Dead) |
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| | | | | Nagaraju Mallesha Kenge Gowda Sakamma Krishne Gowda D1 D2 D3 Plaintiff D4
4. The plaintiff claims to be the daughter of one Dodda Kempegowda and Ningamma. Plaintiff contends that she along with defendant Nos.1 to 4 constitute an undivided joint Hindu family and suit schedule properties are ancestral properties. The present suit is filed alleging that defendant 4 Nos.1 to 4 are intending to sell the suit schedule property and thereby are creating third party rights to deny the legitimate share of the plaintiff in the suit schedule property.
5. On receipt of summons, the defendant Nos.1 to 4 filed written statement and partially denied the averments made in the plaint. However, defendant Nos.1 to 4 admitted that plaintiff has share in the suit schedule property and therefore, tendered no objection to grant share to the plaintiff in the suit schedule properties.
6. The defendant No.5 who was subsequently impleaded filed written statement and stoutly denied the averments made in the plaint. The defendant No.5 contended that there is no cause of action and since suit is filed only in respect of alienated property, the present suit is not maintainable. The defendant No.5 also pleaded that suit is barred by limitation and a specific contention was taken in the 5 written statement indicating that he is the bonafide purchaser for valuable consideration of Rs.1,80,000/-.
7. The Trial Court having examined oral and documentary evidence answered issue Nos.1 to 3 in the affirmative and decreed the suit granting 1/5th share in item No.2. However, Trial Court proceeded to dismiss the suit insofar as item No.1 is concerned.
8. The plaintiff feeling aggrieved by the judgment and decree of the Trial Court in denying share in item No.1 preferred appeal before the Appellate Court.
9. The Appellate Court having independently assessed oral and documentary evidence, however, took a divergent view insofar as alienation made by the plaintiff's mother and brothers. The Appellate Court was of the view that there is absolutely no evidence indicating that sale by plaintiff's mother and brothers i.e., defendant Nos.1 to 4 was for the benefit of the family. The Appellate Court was of the view that 6 there is absolutely no material on record indicating that alienation by defendant Nos.1 to 4 along with mother was for legal necessity. Consequently, Appellate Court having reversed the findings and conclusions recorded by the Trial Court insofar as item No.1 is concerned, proceeded to allow the appeal and suit was decreed even in respect of item No.1 by granting 1/5th share.
10. This second appeal is filed by defendant No.5 questioning the divergent findings.
11. This Court vide order dated 30.06.2016 admitted the appeal on the following substantial questions of law:
"1. Whether the Lower Appellate Court is justified in reversing the judgment and decree of the trial Court decreeing the suit of the plaintiff in respect of item No.1 of the suit schedule properties when it was alienated on 15.4.1998 as per Ex.D.1 even prior to the Hindu Succession (Amended) Act, 2005 which came into force on 9.9.2005 and in view of the proviso to Section 6 of the Hindu Succession Act, 1956 the alienation which is made prior to 20.12.2004 will not be effected?
2. Whether the Lower Appellate Court is justified in reversing the judgment and decree of the trial Court holding that the sale was not legal necessity when the 7 plaintiff has not pleaded and admittedly the alienation was made by the members of the family prior to 20.12.2004?
3. Whether the Lower Appellate Court is justified in reversing the judgment and decree of the trial Court in the facts and circumstances of the present case?"
12. The short point that needs consideration at the hands of this Court is as to whether Appellate Court was justified in granting equal share to the sister. This Court has to also examine as to whether plaintiff who is the daughter is entitled for benefit under Section 6 of Hindu Succession Act when admittedly alienation has taken place on 15.04.1998.
13. As on 1998, the property was lost by the family and entire extent was sold by mother and defendant Nos.1 to 4. As on 15.04.1998 i.e., date of alienation, plaintiff who is the daughter was entitled for a share under Section 8 of Hindu Succession Act. If there was already alienation on 15.04.1998, Appellate Court erred in extending the benefit of 2005 amendment to Hindu Succession Act.
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14. This Court in the case of Smt. P.L.Nanjamma vs. P. Lakshminarayana Raju passed in RFA.No.1142/2007 has dealt with this controversy. If succession had already opened and there is alienation of entire extent, though daughter would assume the status of a coparcener in view of 2005 amendment to Hindu Succession Act, but the conferment of co-parcenery status in itself would not create any right and divest the right which is already created in favour of the purchaser pursuant to registered sale deed executed by family members. In the judgment cited supra, this Court has exhaustively dealt with the rights of a daughter where there is alienation of an ancestral property before 24.12.2004.
15. Admittedly, in the present case on hand, mother and all the sons i.e., defendants herein have alienated the entire extent in item No.1 under registered sale deed dated 15.04.1998. As on 1998, plaintiff being the daughter was only entitled to take share by way of notional partition under 9 Section 8 of Hindu Succession Act. It is in this background, this Court would find that the quantification arrived at by the Appellate Court is palpably erroneous. The defendant No.5 who has purchased the property in the year 1998 would acquire valid right and title. While examining the validity of sale deed in favour of defendant No.5, this Court has to take note of the fact that there is already alienation and if the family has lost property having alienated the same to a stranger, the benefit of 2005 amendment cannot be extended to the present case on hand. The plaintiff being the daughter would be only entitled to take share notionally.
16. This Court having come to conclusion that plaintiff would take share by way of notional partition, let me examine the share that can be allotted to the present plaintiff who is the daughter of Dodda Kempegowda. As on 1998, defendant Nos.1 to 4 being the sons and coparceners would be entitled to take share independently. To carve out share to the daughter by way of notional partition, if notionally share is 10 allotted to her father Dodda Kempegowda, then there will be in all five sharers. In 1/5th share, the widow Ningamma who is also party to the sale deed dated 15.04.1998, the present plaintiff herein and four brothers together would take equal share. So if 1/5th share is redistributed among six sharers, plaintiff will get 1/30th share and Ningamma will get 1/30th share while defendant Nos.1 to 4 will take 1/5 + 1/30.
17. In view of the above said findings, the substantial question of law No.(i) framed by this Court has to be answered in the negative by holding that Appellate Court erred in awarding equal share to the daughter. In view of my findings recorded on substantial question of law No.(ii), the other substantial questions of law do not survive for consideration.
18. For the foregoing reasons, I pass the following:
ORDER
(i) The second appeal is allowed in part; 11
(ii) The sale deed executed by widow of propositus Dodda Kempegowda and defendant Nos.1 to 4 is valid to the extent of fifth defendant's vendors legitimate share. The plaintiff is entitled for 1/30th share in the suit item No.1;
(iii) Draw preliminary decree accordingly.
Sd/-
JUDGE CA