Karnataka High Court
Smt Shantha @ Pushpa W/O Ashok Reddy ... vs Sri Nagappa Bhajareddy S/O Bheemappa ... on 5 March, 2022
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR.JUSTICE R.NATARAJ
REGULAR SECOND APPEAL NO.877 OF 2006 (PAR)
BETWEEN:
SMT. SHANTHA @ PUSHPA
W/O ASHOK REDDY YERISIMI
AGED ABOUT 29 YEARS,
RESIDING AT YEREKUPPI VILLAGE,
BENAKANAKONDA POST,
RANEBENNUR TALUK-581115.
...APPELLANT
(BY SRI. P.M. GOPI, ADVOCATE FOR
SRI. P.M. SIDDAMALLAPPA, ADVOCATE)
AND:
1. SRI. NAGAPPA BHAJAREDDY
S/.O BHEEMAPPA BHAJAREDDY
AGED ABOUT 58 YEARS,
RESIDING AT YEREKUPPI VILLAGE
BENAKANAKONDA POST
RANEBENNUR TALUK-581115.
2. SMT. RATHNA @ RATNAVVA
W/O HANUMAREDDY
AGED ABOUT 27 YEARS,
RESIDING AT YEREKUPPI VILLAGE
BENAKANAKONDA POST,
RANEBENNUR TALUK-581115.
...RESPONDENTS
(NOTICE SERVED ON RESPONDENT NO.2;
VIDE ORDER DATED 15.11.2018, APPEAL AGAINST
RESPONDENT NO.1 IS ABATED)
2
THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 CPC AGAINST THE JUDGMENT AND DECREE
DATED 21.11.2005 PASSED IN RA.NO.7/2005 ON THE FILE OF
THE DISTRICT JUDGE, DAVANAGERE, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED
04.12.2004 PASSED IN OS.NO.83/2003 ON THE FILE OF THE
CIVIL JUDGE (SR.DN.), HARIHAR.
THIS APPEAL IS COMING ON FOR HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the unsuccessful plaintiff in O.S.No.83/2003 challenging the concurrent finding of fact and law that she is not entitled for a share in the suit schedule properties.
2. The parties shall henceforth be referred as they were arrayed before the Trial Court.
3. The suit in O.S.No.83/2003 was filed for partition and separate possession, contending that Bheemappa Bhaja Reddy was the propositus of a joint family comprised of he and his two sons namely, Hanumappa Bhaja Reddy and Nagappa Bhaja Reddy (defendant No.1). It was stated that after the death of the propositus, his two sons continued to live jointly and both 3 of them were jointly enjoying all the properties of their father. The plaintiff and defendant No.2 are the daughters of defendant No.1.
4. It is contended that the defendant No.1 and his brother partitioned the properties on 06.04.1998 and the defendant No.1 received the suit schedule properties as his share at the partition. She contended that the partition was acted upon by the defendant No.1 and his brother. Based on the said partition, revenue records were transferred. The plaintiff alleged that from the income generated from the agricultural lands at Yerekuppi village, the defendant No.1 purchased the suit item No.1. She therefore, contended that all the suit properties were ancestral and joint family properties of the plaintiff and defendants. Hence, she claimed to be in joint possession and enjoyment of the properties.
5. She alleged that by virtue of the Hindu Succession (Amendment) Act, 2005 (henceforth referred to as 'Act of 2005'), the plaintiff and the defendant No.2 4 were co-parceners with the defendant No.1 and that she was entitled to 1/3rd share in the suit properties. She claimed that her marriage was performed on 28.04.1999, while the marriage of the defendant No.2 was performed in the year 1999. Therefore, she contended that she was entitled to an undivided share in the suit schedule properties. She further contended that defendant No.1 was attempting to alienate the suit schedule item No.1 in favour of Hanumappa Pakeerappa Kattimani and Hanumappa Basappa Doddamani. She, therefore, sought for her share in the suit schedule properties.
6. The suit was contested by the defendant No.1. He admitted the relationship with the plaintiff. However, he stated that the suit item No.1 was purchased by him on 19.04.1974 even before he had married. He claimed that the said property was purchased out of his own income and thus, it was his self-acquisition. He contended that suit item Nos.3 and 4 were granted in favour of the defendant No.1 by Land Tribunal in terms of the order dated 15.05.1976. Therefore, he contended that those properties 5 were his self acquired properties. He alleged that he had spent a sum of Rs.25,000/- for the plaintiff when she was admitted at a hospital for delivery and a sum of Rs.50,000/- for her marriage and Rs.49,000/- for the marriage of the defendant No.2. He contended that if the Court were to hold that the plaintiff was entitled for her share, then she was also liable to bear the liabilities of the family. He contended that his wife was alive and not impleading her was fatal to the suit.
7. Based on these rival contentions the Trial Court framed the following issues:
1) Whether plaintiff proves that the suit schedule properties are joint family properties of plaintiff and defendants 1 & 2?
2) Whether defendant No.1 proves that the suit schedule item No.1, 3 & 4 are his self-acquired properties?
3) Whether defendant No.1 further proves that the suit item No.1 property has been sold in the month of July 2003 for the expenses of hospital of his wife and as well as for the legal necessity of his family in favour of Veerappa Hosalli r/o Yenni Hosalli?6
4) Whether suit is bad for non-joinder of wife of defendant No.1?
5) Whether defendant No.1 further proves that he had made expenses to the plaintiff twice for Rs.25,000-00 at the time of her pregnancy and as well as towards operation and had made expenses of Rs.50,000-00 towards the marriage of defendant No.2 by getting the loan of Rs.49,000-00 from the Syndicate Bank Branch, Ranebennur?
6) Whether plaintiff is entitled for her 1/3rd share in the suit schedule property?
7) What decree or order?
8. The plaintiff was examined as P.W.1 and she marked documents as Exs.P1 to P25. She also examined two other witnesses as PWs.2 and 3. The defendant No.1 was examined as D.W.1 and he marked documents as Exs.D1 to D4.
9. Based on the oral and documentary evidence, the Trial Court held that the plaintiff is not entitled for any share in the suit properties for the following reasons:
1) The suit item No.1 was not the subject matter of partition between the defendant No.1 and his brother 7 in the year 1998. That the suit item No.1 was purchased by the defendant No.1 even before he had married and even before the birth of plaintiff and defendant No.2. Therefore, it was the self-acquisition of the defendant No.1.
2) Suit item Nos.3 and 4 were earlier cultivated by the father of the defendant No.1 and his brother and after his demise, his brother and he were cultivating the said property and after filing Form No.7, the Tribunal had granted those properties in favour of the defendant No.1.
3) The Trial Court held that even though the said property was granted in favour of the defendant No.1, it was granted in favour of the members of the joint family and therefore, these two properties were divided between the defendant No.1 and his brother at the partition in the year 1998 in terms of which, the defendant No.1 received 1 acre 20 guntas in Sy.No.62/2 and 1 acre 20 guntas in Sy.No.62/3A of Yerekuppe village. Therefore, it held that the said property belonged to the defendant No.1 absolutely.
It held that the plaintiff, being the daughter of the defendant No.1, was not entitled to claim a share in the suit properties during the life time of the defendant No.1. Though the mother of the plaintiff was not arrayed as a party in the suit, but yet, it held that the suit cannot be dismissed on that 8 ground. The suit Item No.1 was already transferred to Veerappa Hosalli for the purpose of meeting the legal necessities of the family, namely, to meet the expenses of treatment of the wife of the defendant No.1.
4) That the suit is filed for partial partition since the plaintiff had deliberately not included a residential house. In this regard, the Trial Court considered the applicability of Section 23 of the Hindu Succession Act, 1956 and held that the plaintiff is entitled to claim partition even in the dwelling house also. Nonetheless, the Trial Court held that when the said house was not put into the hotchpot, a suit for partial partition was not maintainable.
10. Being aggrieved by the aforesaid Judgment and Decree, the plaintiff filed R.A No.7/2005.
11. The First Appellate Court secured the records of the Trial Court, heard the counsel for the parties and framed the following points for consideration:
1) Whether the plaintiff has shown that the suit properties are the joint family and ancestral properties?
2) Whether the first defendant has shown that he has incurred debts in connection with treatment 9 of his wife and in that regard he has sold item No.1 of the suit property?
3) Whether the plaintiff is entitled for share in the suit properties?
4) Whether the Judgment and Decree of the Trial Court need interference?
12. The First Appellate Court held that there was no dispute over the fact that Bheemappa Bhaja Reddy was the propositus of the family and that he had two sons namely, the defendant No.1 and his brother - Hanumappa. It also held that both the brothers partitioned the properties in terms of a partition deed dated 06.04.1998. It held that the suit item No.1 was the self-acquisition of the defendant No.1 since the brothers had not mentioned the said property in the partition deed dated 06.04.1998. It held that the suit item No.6 was granted in the name of the defendant No.1. There was no dispute that suit item No.2 was the ancestral property that had fallen to the share of defendant No.1 and item Nos. 3 and 4 were divided between the defendant No.1 and his brother - Hanumappa. It held that suit item No.1 being the self 10 acquisition of the defendant No.1, the plaintiff cannot claim a share during the life-time of the defendant No.1. That the suit item No.1 was sold by the defendant No.1 to meet the medical expenses of his wife which was admitted by the plaintiff in her deposition. It held that though the defendant No.1 had sold the suit item No.1 during the pendency of the suit, he was entitled to alienate the same for legal necessity. It held that the plaintiff was liable to bear the proportionate expenses of Rs.49,157/- which was the balance liability as per Ex.P-18 payable to the Bank.
13. The First Appellate Court held that in view of the amendment to the Hindu Succession (Karnataka) Amendment Act, 1990, the plaintiff was entitled for a share in the suit properties. However, it held that Section 6A to 6C were incorporated in Section 6 of the Hindu Succession (Karnataka Amendment) Act, 1990 and that the daughter of a co-parcener is a co-parcener by birth in her own right in the same manner as that of a son and she would have the same rights in the co-parcenery property. The First Appellate Court relied upon clause (b) of Section 11 6A of the Act of 1990 and held that the plaintiff is not entitled to sue for partition, but was eligible for a share "at a partition". It hence dismissed the appeal and confirmed the Judgment and Decree of the Trial Court.
14. Being aggrieved by the aforesaid Judgment and Decree, the present Regular Second Appeal is filed.
15. This Court secured the records of Trial Court and the First Appellate Court and admitted the appeal to consider the following substantial questions of law:
i) Whether the Courts below are justified in dismissing the suit of the plaintiff/appellant by holding that during the lifetime of the father, female daughter is not having right of claiming partition, when the provision of Section 6 of Hindu Succession Act (Karnataka Amendment) Act provides recognizing the daughters by birth becoming coparceners of the family of her father?
ii) Whether the Courts below are justified in dismissing the suit of the appellant for partition when the properties are substantially established that they are joint family properties?
iii) Whether the Courts below are justified in dismissing the suit of the appellant/plaintiff for 12 partition when the statute provides equal right to the daughters in coparcenery properties as per Section 29-A of Hindu Succession Act, 1956 (Karnataka Amendment Act)?
16. The learned counsel for the plaintiffs submitted that the suit for partition and separate possession of the suit properties was filed in the year 2003 when the Hindu Succession (Karnataka) Amendment Act, 1990 was in force and the suit was disposed off on 04.12.2004. The appeal filed in R.A. No.7/2005 was disposed off on 21.11.2005. The learned counsel relied upon the judgment of the Apex Court in the case of Vineetha Sharma v. Rakesh Sharma and others [AIR 2020 SC 3717] and contended that the provisions of Hindu Succession (Amendment) Act, 2005 was applicable to the case on hand since there was no partition of suit properties. The learned counsel, therefore, submitted that the plaintiffs are entitled for an equitable partition.
17. Per contra, the learned counsel for the defendants submitted that the suit had to be adjudicated 13 based on the extant provisions of law and in the present case the plaintiff was the daughter of defendant No.1 and by virtue of Hindu Succession (Karnataka) Amendment Act, 1990, the plaintiff was not entitled to claim for partition during the life-time of her father.
18. I have considered the submissions made by learned counsel for the parties. I have also perused the records of the Trial Court as well as the Judgment and Decree passed by the Trial Court and the First Appellate Court and also the grounds urged in the Memorandum of Appeal.
19. Under the Act of 1956, the daughters were not entitled to an equal share along with the co-parceners, but were entitled to a share in the notional share of the father. The provisions of Act of 1956 underwent an amendment by virtue of the Hindu Succession (Karnataka) Amendment Act, 1994, which received the assent of the President of India. Consequently, the daughters were exalted to the position of co-parceners who were entitled to an equal 14 share alongwith the sons. However, this was not applicable in cases where -
a) If the daughter was married prior to the year 1994
b) if the properties are already partitioned prior to 1994
20. When the suit in question was filed, the provisions of the Hindu Succession (Karnataka) Amendment Act, 1990 were in force and the Trial Court therefore, applied the law as it stood and disposed off the suit holding that the plaintiffs were not entitled to claim partition in the suit properties. The appeal filed before the First Appellate Court was disposed off on 21.11.2005 by which time the Hindu Succession (Amendment) Act, 2005 came into force and Section 6 of the Act of 1956 underwent a sea change by which the constraints laid on a co-parcener under the Hindu Succession (Karnataka) Amendment Act, 1990 to claim an equal share were removed. Section 6 of the Hindu Succession (Amendment) Act, 2005 reads as follows :
"6. Devolution of interest in coparcenary property.- (1) On and from the commencement of 15 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 16 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
(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 the 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. 17
(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, as the case may be, who was born or adopted prior to the 18 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 or partition effected by a decree of a court."
21. The Apex Court in the case of Prema vs Nanje Gowda and others [AIR 2011 SC 2077] while considering the question whether the provisions of the Hindu Succession (Karnataka) Amendment Act, 1990 were prospective or retrospective and whether it affected the pending proceedings held as follows :
"14. We may add that by virtue of the preliminary decree passed by the trial court, which was confirmed by the lower appellate Court and the High Court, the issues decided therein will be deemed to have become final but as the partition suit is required to be decided in stages, the same can be regarded as fully and completely decided only when the final decree is passed. If in the interregnum any party to the partition suit dies, 19 then his/her share is required to be allotted to the surviving parties and this can be done in the final decree proceedings. Likewise, if law governing the parties is amended before conclusion of the final decree proceedings, the party benefited by such amendment can make a request to the Court to take cognizance of the amendment and give effect to the same. If the rights of the parties to the suit change due to other reasons, the Court seized with the final decree proceedings is not only entitled but is duty bound to take notice of such change and pass appropriate order. In this case, the Act was amended by the State legislature and Sections 6A to 6C were inserted for achieving the goal of equality set out in the Preamble of the Constitution. In terms of Section 2 of the Karnataka Act No.23 of 1994, Section 6A came into force on 30.7.1994, i.e. the date on which the amendment was published. As on that day, the final decree proceedings were pending. Therefore, the appellant had every right to seek enlargement of her share by pointing out that the discrimination practiced against the unmarried daughter had been removed by the legislative intervention and there is no reason why the Court should hesitate in giving effect to an amendment made by the State legislature in exercise of the power vested in it under Article 15(3) of the Constitution."20
22. In view of the changed and settled position of law, the judgments and decrees of the Trial Court and the First Appellate Court holding that a daughter is not entitled to claim partition during the life-time of her father deserves to be set aside. The substantial questions of law framed by this Court are answered accordingly.
23. However, it is relevant to note that the suit Item No.1 was sold by the defendant No.1 to Veerappa Hosalli for the purpose of meeting the medical expenses of wife of defendant No.1. In fact, P.W.1 deposed in her cross-examination as follows :
"£À£Àß vÁ¬Ä fëvÀªÁVzÀÄÝ CªÀ¼ÀÄ CgɺÀÄaÑ DVzÀÄÝ £À£Àß ºÀwÛgÀ ªÁ¸ÀªÁVgÀÄvÁÛ EzÁݼÉAzÀÄ ¸ÁQë ºÉüÀÄvÁÛ¼É. £Á£ÀÄ £À£Àß vÀAV CAzÀgÉ 2£Éà ¥ÀæwªÁ¢ aPÀ̪ÀjzÁÝUÀ £À£Àß vÀAzÉ, vÁ¬ÄAiÉÆA¢UÉ ªÁ¸ÀªÁVzÉÝêÉAzÀÄ ºÉüÀĪÀÅzÀÄ ¤d. £Á£ÀÄ ¸ÀtÚªÀ½zÁÝV¤AzÀ®Æ £À£Àß vÁ¬Ä CgÉ ºÀÄaÑ EzÁݼÉAzÀÄ ºÉüÀĪÀÅzÀÄ ¤d. £À£Àß vÁ¬ÄAiÀÄ£ÀÄß ²ªÀªÉÆUÀÎzÀ D¸ÀàvÉæAiÀÄ°è DgÉÊPÉAiÀÄ ¸ÀA§AzsÀ £À£Àß vÀAzÉ ¸ÉÃjzÀÝgÀÄ CAzÀgÉ ¤d. DUÀ £Á£ÀÄ £À£Àß vÁ¬ÄAiÉÆA¢UÉ £Á£ÀÆ ¸ÀºÀ aQvÉì ¸À®ÄªÁV EgÀÄwÛzÉÝ CAvÀ ¸ÁQë ºÉüÀÄvÁÛgÉ. £À£Àß vÀAzÉ £À£Àß vÁ¬ÄAiÀÄ DgÉÆÃUÀåzÀ ¸ÀA§AzsÀ ¸ÀĪÀiÁgÀÄ 1 ®PÀë gÀÆ¥Á¬Ä RZÀÄð ªÀiÁrzÁÝgÉAvÀ ºÉüÀĪÀÅzÀÄ ¤d. £À£Àß vÀAzÉ ºÀt RZÀÄð ªÀiÁr £À£Àß ªÀÄzÀÄªÉ ªÀiÁrzÁÝgÉAvÀ ºÉüÀĪÀÅzÀÄ ¸ÀjAiÀÄ®è. £À£Àß ªÀÄzÀĪÉUÉÆøÀÌgÀ 21 £À£Àß vÀAzÉ 50,000-00 gÀÆ¥Á¬Ä ºÀt £À£Àß vÀAzÉ RZÀÄð ªÀiÁrzÁÝ£ÉAzÀÄ ºÉüÀĪÀÅzÀÄ ¸ÀjAiÀÄ®è. zÁªÁzÀ LlA £ÀA.1 CgÀ¸À£Á¼ÀÄ UÁæªÀÄzÀ 1 JPÀgÉ 58-ªÀgÉ ¸ÉÃAmïì d«ÄãÀ£ÀÄß £À£Àß vÀAzÉ ¸ÀéAvÀ Rjâ¹zÁÝ£ÉAzÀÄ ºÉüÀĪÀÅzÀÄ ¤d. F D¹ÛAiÀÄ£ÀÄß 1974 gÀ°è £À£Àß vÀAzÉ £À£Àß vÁ¬ÄAiÀÄ£ÀÄß ªÀÄzÀĪÉAiÀiÁUÀĪÀÅzÀQÌAvÀ ¥ÀƪÀðzÀ°è »r¢zÀÝgÀÄ CAvÀ ºÉüÀĪÀÅzÀÄ ¤d."
24. In the present case, the purchaser is not arrayed as a party. However, D.W.1 deposed that he performed the marriage of the plaintiff in the year 1999 and that he had spent a sum of Rs.50,000/- for the marriage. He further deposed that he had spent a sum of Rs.25,000/- for the caesarian delivery of the child of the plaintiff. He deposed that he had spent a sum of Rs.1,00,000/- for the medical expenses of his wife, who was mentally ill. He deposed that in order to meet these expenses, he had agreed to sell suit Item No.1 to Veerappa Hosalli in the year 1999 and thereafter executed a deed of sale conveying suit Item No.1 in the year 2003.
25. Ex.D-4 disclosed that suit Item No.1 was purchased by defendant No.1 on 19.04.1974 i.e., even 22 before he had married. The suit Items No.2 and 3 were granted on 15.05.1976, which is evident from Ex.D-1. Therefore, the contention of the plaintiff that suit Item No.1 was purchased from the income generated from suit Items No.2 and 3 is difficult to accept. Ex.D-4 discloses that defendant No.1 was aged 28 years as on 19.04.1974, and therefore, it is probable that suit item No.1 was purchased out of the income of defendant No.1 and therefore, was his self-acquisition. The defendant No.1 as well as the plaintiff admitted that suit Item No.1 was sold for the purposes of meeting the medical expenses of the mother of the plaintiff as well as to meet the other financial requirements of the family including the expenses of the marriage of the plaintiff etc. Therefore, the plaintiff is not entitled to any share in suit Item No.1. However, she is entitled to an equal share in suit items No.2, 3 and 4 along with defendants No.1 and 2.
26. In that view of the matter, this appeal is allowed in part and the Judgment and Decree passed by the Trial Court in O.S. No.83/2003 as well as the Judgment 23 and Decree of the First Appellate Court in R.A. No.7/2005 are set aside. The suit filed in O.S. No.83/2003 is decreed in part and it is declared the plaintiff, defendants No.1 and 2 are entitled to an equal share in suit Items No.2, 3 and
4. In view of disposal of this appeal, all pending applications, if any, stand disposed off.
Sd/-
JUDGE hnm