Karnataka High Court
Smt Phulavati W/O Manohar Upadhye vs Prakash on 16 April, 2010
Equivalent citations: AIR 2011 KARNATAKA 78, 2011 AIR CC 1194 (KAR), 2011 (2) AIR KANT HCR 121, (2011) 2 KCCR 1248, (2011) 2 HINDULR 561
Bench: D.V.Shylendra Kumar, N.Ananda
IN THE HIGH COURT OF' KARNATAKA.-._'
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 15th DAY OF AP1_?;:I'L'§_>;(J3i_j:(;_1V'1' _
PRESENT,
?
THE HON'BLE MR. C
'C AND
THE HONBLE MR.~at3s1'1.cE N,ANAE\EIDA
Regular Eirs:eAjopéé1 pf 2007
Between: V C V V C
Smt.Phu1aVat1._, Uvpa.dhye,
Aged about 61 years', Household work,
R/0 N=o.ti~...,_ '*$';hiVa;shak,ti--7, "
Pandase _Naga--r,..,Don1b_ii7a1i (East),
Thane District? Mumb.ai-$10060 1 .. Appellant
(By Sri \/C,P,.Ku1I<::arrAn,_SAd'§rocate)
E. /0 Yashwant Upadhye,
Agé_d.__ab'0'ut 57 years, Occ: Business,
R,/0 f3_.l'1Cendigeri Galli,
" PLr;ago1~ Belgaurn--59O 001.
Kumar Mahaveer,
_ S / 0 Prakash Upadhye,
Aged about 33 years,
R/0 Bhendigeri Gaili,
Ar1agol-- Be1gaun1--590 O01.
Kumar Pruthviraj,
S / 0 Prakash Upadhye,
Aged about 32 years,
R/0 Bhendigeri Galli,
Anago1-- Be1gaum--590 O01,"
Smt. Vasanti,
W/0 Annasaheb Upadhyeif.
Aged about 56 years; _V
Occ: Household work,"=_'-3.
R/o Mal. Anagol Mal,
Infront of MetaI'lndu;Stries,.. _
Upadhye Buildi1<2g,3",.. V' 3'
Anag0l-- BeIgaum--59_0
Vishvaeei: Upjaolirlgre,
Occi BL1Si??1eS":?:'
R./9. A'f16"1g'03;;;._ .
,IVr1fro'r:t.fo_f Metal , Industries,
Upadhye 'f§u.iId,i,rig,__ " _
Anagob Belga'urfi---.59'O' oo 1.
Ve.erdhKaVa1,' "
.. / o Annaaahe Upadhye,
A ";Ageo' about 34 years,
* Qcc; 'Bu~sihess,
3/0.4An'ago1.,"'Infront of
" . Metal 'Ifidflstries,
'U pa.__:1hye" Building,
An.ago1~ Belgaum--59O 001.
V Vidya, D / o Annasaheb Upadhye,
"Aged about 33 years,
; Occ: Household,
3 R/o Anagol, Infront of
10.
Metal Industries,
Upadhye Building,
AnagoI- Belgaum-590 001.
Smt. Veenuthe,
W/0 Paclmaraj Basti,
Aged about 60 years,
Occ: Household Work,
153/ o Mahantesh Nagar,
Mal Maruti Extension,' _V
Plot No.1937, Near ' "
Mal Maruti Temple,
Belgaum--59O 00.1.
Smt. Pramila,
W/o Gajal<uma1*"'Up.adllye}--__ 'V2
Aged abou§Z'59 jzea;rs;l _
Occ:_ ,HousAeVh'o1d,_w_o"r1<, V
32, Gomatesh Ma;riz.il 'orafe»s,'
Upsadhyé B1;ilding,j
,Anagol.o§2xte'i1sio4h;.._V _ _«
l3eIgau.m " __
smir.
_ «W/o Manohar Upadhye,
.. Aged about 58..years,
g 'o'--r;~;'c: Household work,
R/02-90?, Chandregiri,
l'\/I.al Mai" u {'1' Extension,
=s~'Be1gaum«59o 001.
3,11.
l Vijayamala,
W/'o Ashok Upaclhye,
ll ; "Aged about 54 years,
V' * ~Occ: Household work,
Paltil Galli,
Anagol-- Be-lgaum--59O O01.
12.
13.
14.
15.
i15A},i'
Agedabout 36 years,
Padrnaraj Payappa Basti,
Aged about 56 years,
Occ: Medical Practitioner,
R/0 Plot No.I937, M.M.Extension,
Near Mal Maruti Temple,
Belgaurn--590 O01.
Manohar, V 3
S / 0 Gangadhar Upadfiye,
Aged about 68 years,
Occ: Pensioner,
R/o 17, Shivas'hanti,«"i " j, t
Pendase Nagar,"= _ "
Dombivali (East), _ .
Dist: Than,e--42,1"'2'OI', '
/fo Upadhye,
Aged about 57 »ye"a':fs,_ Oec: Business,
/9
,M.M.EXt.ensior1,,
iBeIgau111;«59QiO0},'' , P
Sure.ndz.',a,iV' Si/o_ Bio,-ijjabali Upadhye,
, -- Aged ab.out '80 years,
~ Partner of"Yeshowant Metal Industries,
Rf/'o B~h_agya Nagar, Beigaum,
'Be-Igaum--59O O01.
S1i'rA1ti,"i,i:j':'1ii<:ihitra Prithwiraj Upadhye,
Partner of Yeshwantraj 85 Co.,
Raviwar Peth-- Beigaum,
_ "~_.R/o Anagol«~ Belgaum-590 001.
Smt. Geeta, W/0 Prakash Upadhye,
Aged about 62 years,
Partner of M/ s Yeshwant Traders,
Partner of M / s Yeshwant 8.: Co.,
Partner of M / s Yeshwant Raj & Co.,
R/0 Anagol, Be1gaum--59O 001.
18. Prakash, S / o Arjunrao Bandak,
Aged about 53 years, I A _:. _ ._ V
Partner of M / s Yeshwant Traders, " "
Dharwad Road, Belgaum, '' __ ' _ A
Occ: Business, R/o Basvvan Galli, A '
Hosur, Be1gaum~«59O GO '
19. Manohar, S/o.Arji1nraoBVa,:1dal§,
Aged about 68 years,', "
Partner of M /s Yeshw*ant:ATr~aderfs,__C
Dharwad ' Road 'Belgaurmfd. ._ '
Occ: Bu'si'ne'ss,"R/ao ~Basvvari'Ga11i,
I-Ios'_u~r,'~ 00 ii H . ..Respondents
(By Sri. S.N".'Pati'i1,:;:,_Advocate fer...Ri1 to R-3, Smt. I-Iemalekha,
Advocate forf*Sri G;,Balakrishna Shastri, Advocate for R--4 to
R6, R,--7 * service"~..he1d'asi1fficient, Sri Sachin S.I\/Iagadurn,
Advocate for R---._8',~-[Sri'"K.'M'§Nataraj, Advocate for R--12, R-9,
12-11, R--'1:3V, R-1-¢,'dR;i.7v to 12-19 are served, Sri Basavaraj
M.Me--1«r1<i, Advocate for R10, Sri G.R.Andanimath, Advocate
_____
first appeal is filed u/ s 96 CPC against
li:h.e ju'd,grne»ni:~""and decree dt. 14.11.2006 passed in os
No.12/_199':2+e'en the file of the I Addl. Civil Judge (Sr.Dn.),
Be'Igaurn,'p'art1y decreeing the suit and etc.
appeal coming on for orders this day, Shylendra
"ii-A K1;i*f;«ar 3,, delivered the following:
JUDGMENT
The plaintiff in O.S.No.12/1992 the Additional Civil Judge (Senior Division);Belgauin' Jthe appellant in this regular firstjappeal u_nder_': of the Code of Civil Procedure, being'-not fsatiisfiedlvuithl the judgment and decree wherein the plaintiff has met with
2. The;~'appeai fo1"'iac}1i:eving--«tfhe decree in terms of the prayer would have it, fortunes of brightened with the intervening law, partiq'-UA1arly_.ith'e aineridment to Section 6 of the Hindu Sucoossionii.' v-Act' terms of the amendment Act has been brought into effect from governs the field and is applicable to the facts. of__'tl"zei'present case also and which has ensured the V. Vppiistatus of a coparcenar in a coparcenary property in favour ofllitlxe plaintiff, a member of a Hindu joint family, a if 'daughter who had been married for considerable number of 7 properties comprised in as many as seven schedules and Schedu1e«~A comprising 12 items. Schedule 8 comprising 6 items, Schedule«~C comprising 4 items. Such_e'd_Vu1ewD comprising 6 items, Schedule-E Scheduled? comprising 3 items and Sche_duie.{€}b ('::)ii1p1'ic_siiigV'*-- gold ornaments, silver utensils etc,
4. The schedules are arrzinged 'Vito common factor existingin in each of the schedule, with of house properties, B: L' eigriculttimi lands, Scheduiewfl' vacant sites, Scheduled) comp1'isi1ig"iof inovabiessiich as shares and bank. deposits. &_Sc:hVet:§.:uie?EVVconiprising of industrial concerns of the E}:-iiiiily, Sched1_,fie¥"F_'comprising of the trading concerns of the family and comprising of gold jewels, silver articles 'end ot1:1er«;Inovab1es beionging to the family. {TELVtttfirearned Judge of the trial court opined that the Vt.'..._'°;orope1't,ies were not iiable to be shared equaiiy by the V"plairitifi's and defe1ids..nt,s, msiniv corrxprisiizg of brothers, ~ :5 sisters and the wife and children of the cleceaisecl elder brother in the family.
6. For a good measure 21 few more c1efer1da1'1ts,_w.l10_were not immediate members of the faniily. sL.1e__hi. ask "d'efef1-zléiiilt. No.16 Sri Surendra B.Upaclhye w.l.1o__w21sfio'i:f;i I.1V'1Fj3:lI.1Vb'€','l' VC}f_" ' the family of the father of the plei«l11£i_fl,'* was a partner in a family..,i*u.n in.d1;_stry'v~kf1o'wn~ its l\/I/is Yeshwanth Metal Indu,st1'iesw:lel'endaIitsv~..l 9/arid 20 who were also outsiders to the'fainVi.'Ey»'bur»who,i"igure as pa1'i;ne1's in a tradiI1g_e.o11r.:er1'§i of Afalj1_11_ily 'vi*z,., M / s Yeshwanth 'l'mders, l1a1_ciV"ai;V%c.)_ "bee11"a..1fray'ecl as defendants. This would ctonipletes the 211j1f.é1;§fj 'p.fc_.i."rt.i .
7. 4;"l"l'1e suit: on the premise t'l'1at; the plai1it.ii'E' and V. "'rle'l"enCCla.fits1 9, and 12 are the suwiving children of 7one_:- Yes'E":.wat"1~th.~~ Chandrakam: Upadhye and so also his elelesi son' 'A.i_1r£1asal1eb Yeshwarruli Upaciliye who l'1acl died by Q the tlirneiiwthe suit": was filed; but was survivecl by his widow Sm1.;_.. V'&'1Sal"1E.]'li impleacled as «W1 (iel'er1cl21:'1t', and their «'el:i--3_cl_15e:1 iiraple/aclecl as clei'ei'icle.1m.s--5, 6 and 7 anti the iwo sons of the is' defendant Mahaveer arid Pl'itl'}\«'i1'E1j also having been added as defeI1dants--2 and 8. for r.he.oreasoi'i that some of the joint family properties stood in-.l:'l1eir.j';j_éimes but are the properties of the family.
8. It is the case of the plaiiiitilt schedule properties were Chandrakant Upadhye oh hisadcipted mother Srnt. Sunanda Bai. was a member of the Hindu; good number of properties, =i'that"the'--Vi'arr1iolyAlVi2va's hit -by a catastrophe and in the plague epidver'1:':»ie »t1v4'i"ati"ai;_t.eic1{ed the village not only her husband V"Cl"lai'1.dlfakai'iT;._~~:VUpE1dhy(£' but even many of his
---.é_sib1fr£ggsV_h2:gd a'lSov..._.p.e'ris1'1ed and to contimze the family t1';v1Vd'itior2._s"a:ii.d"the lineage, Smt. Sunanda Bai had adopted the plaintiff as a "son and therefore the father of ".'_[','h€ plairitiff having become a member of the family, his "aeh.ild'rrje11 have become entitled to the joim". family properties
--."'ii'1 equal measure. The mother of plaintiff and the husband j'del'er1clants--1 to 4 and defendant.s 9 to 12 ViZ.. ChE1I1'lpE.1l')€1.i No.4903/6, 369 and 266 and land bearing RS No'..._1_76/B to an extent: of 3 acres and 12 gtiritas which \x.re;fié'--V.Weieiiiieilly joint family properties but not in respect. ()f".£':).'[':}1£3-l"_T described in plaint A to F Seh'edu1es. _7i'he'.piaint amended from time to time eiV1".h_e"r-_ for .i'}'_1C'l'L1S'l()ii:_"()f.V'fh(3 properties or for impleading ovtheir _partie.s.'~».e
11. Therefore, a good riumiberivo§7r._iVri't.t:e_n statements had been filed from"t._irhe to time to A"eo_ni.r.,ro}l?ert the avernients of the plaint vfrhie-hr above.
12. Tine. the two brothers and 21 sister.
Chiidren of.._An,naisahAebfor 3. good measure also came up w'ith'~3*.;.av iiC()uI1t(§I'"*{T1_E1j111 and fiied £1 frivolous untenable (minte1=:e1~e1i'n'1'"Claiming 21 sum of Rs.5,00._OOO/- as daimeiges ag'2::in'st afl'thei'r losses.
313. T COL1l1{'.€E'vCI8.iH'1 which was without any rhyme or p.'i'easso_:z:; obviously did not the light. of the day with the ..§i_C§er1da11ts themselves abeuidonirig the cour1te1"--e1aim " without 21 murmur only 'oeeause they realised E11211: even to 'g 12 put fortlz such an Lmrighteous Claim, they have to pay a price in the form of Court fee and the Court fee beingrgiot an insignificant amount. obviously beee1n'1e§'Wl"qilifif i--.___'éiI_1d abandoned their Countenclairn.
14. Defenda.nts~1 to 8 had alscj-:.fil<§_d laddi_:tionaIl~..yi?15i.ttei1.ll statement. It appears the more and more aware of the joint:£arnii.y"pro1aeftie.s, yerith the suit taking its own time step by step improved uporiéthé by amending the plaint, was amended, the de:fendaI1t:3 additional statements. The line of defeneevvwa.slthe,s.ame, but to counter the claims in respéet Of the ad'd.it_i_Qn.al properties. the learned trial Judge framed a good nurnber__v'of,.-'issues some relevant and arising and many ."'----V.i:"re1eva'n*t. and many as ten issues were framed in the _l-_rr1_a'i11"pleadings and seven additional issues due to the ' "'c'ii'f1(3I'1dI1.1(i11l of pleadings.
16. We find that franiing of so me-iny issues \-was wholly unnecessary, for the simple reason that tlief"de'i'enda1'1ts though were in good number and though written statements had not_ seriousiy.oon--tes_teE:i 'esise:--1ti2i}. V facts pleatied by the plaintiff existence of joint family of any independent SOUI:'€§x of "oith'ei"Vvnien1l)ers of the joint family, thougéffhl have been a little enterprisiiigyv'y1zind;A_ytioi.i.lidiniptoxred the business and industiy inactive, particularly the fenjallei' liaving not contributed, much foifthe a1,lg1Tié11fE1HC1'1.€Jftl1€ family assets. 17'. 'f'l~".l€:? xvfii';i;s>1'i_ statenieii-t fiied on 21.07.1992 Contents (if 1, 2 and 3 has virtually made the suit a no as under:
".14. The contents of para No.1 of the plaint if * :._are'"n0t Correct. One Smt. Sun€m.daba.i w/o "=--Chandrai1ath Upadhye was the original propositus of the family. Smt. Suiieindabafs husband and other members died long back in ll?
19. With such set of p1Cé1dl1'1f.___§S and the evidence, the suit. should have been straight away decreecl as sougl1t.__for. But:
there were some minor hiccups and that the p1ain't--i:t'f.herself having given up a claim in respect: of suit gold jewellery, silver ornamemis rnoveal31es»a'nd-- _in__ "fac1':"- the finding being the plaintiff coiuldyhojt. "g_ro4v'e--__henright' in.._ respect of item No.1 in suit,a'Sched't:le?*F' propr;rties the existence suit G--Schedule properties jewellery and silver items being not made :g;olod_".hy'-.sAthe plaintiff and inter alia they went out of the
20. Ei{en._z1rn(}:'1gst,<tl'1ver"ot,lier properties. particularly the Schedule-'F5 4_p1'ope;'tileS infiftespecti of the two t.radir1g_g concerns the trial court. "h.aVving found that the other partners of these "*two"~.tfr21%ding A. c()ncerns were outsiders to the family the partneyrshipiv'can-not. necessarily be characterised as a family except to the extent the father of the _ eplainftiff a share in such firms and that alone was Vj"ncly1y1cled...i"11 the property required to be shared. amongst the _ joint faniily members or legal heirs of the said Yeshwant:
%// iiii is 19 her i'at'her would have got a notional partition of the family properties inimediately prior to his death.
23. In SehedulewC on t.he same premise while 1/28?? share was given in items 1 to 3, in item 4 no shareV.}yfésV"éfii.rei3Vfor the reason that it was the selfiacquired property. brother of the plaintiff. t it it it it 2
24. En Sehedulevf) the suit elaim, giving E/71" share in all theiri:ovables"'si1chf bank deposits.
25. iri. so far é3V:a':'SAeh,e'Chi1e~E', items are concerned. no share was a1lott.ed_ ir1 1 to 3 on the premise that they '_ were'~ise1f4:aeqt1.i1*ed.pifoperties of the brothers of the piaintiff
-.<tie<:_e'as'e.d"Armasaheb and the defendant --Prakash aiiri only ii{fit.e1m No.4, 1/71?? share was given.
1n""Sc:hedu1ewF no share was given and with the .' ;§}.£Vri'1'i't--iff herself having given up her claim in respect of item "No.1, what survives for further Contest in this appeal is. the ~ .. V' parties.
20 plair1tifl's entitlement: to a share in items 2 a:1d_3 of this schedule.
27. in so far as item 2 is céoritternedéf,wh:ie«h is partnership firm in the nameof la/_l/st-Yeshwarfi-Sales, =s_hare"'-- was denied on the premise tl'1a.tit property of the elder deceased Armasaheb. and no item 3. another trading compa11_\:z'.l\('I/s for the reason that while two share each the rem21ir1ir1g_Vvv4"O?/iii' wife of 1.»: defendants P1'akash.._, and the 17"? deferldant in the suit. the denial of share to the plaintiff in schedule properties by the trial court in the aforestatielddriialhiier, the piairitiff is before us in this appeal. A Appeal had been admitted and has been set down for disposal with the consent of the learned counsel for the 21
30. We have heard Sri V.P.Kulka1rr1i, iezzmecl eounsei for p1aihtiff/appellant and Sri S.N.Pati1, iearhed cotinsel for defendahtswl to 3/respondents-1 to 3 and Smt. Hep-:11e.1ek}1a, learned counsel for defe1'1dar1ts--4 to 6 and Sri Andanimatii, learned No.16/respondent No.15. it it V 3'}. Sri Kulkarhi. learned. _4co1:ix1se1A. for.b'.."_'r{jve ° submits that all the suit joirit family properties aritviuhiett, behind by the deceased Upadhye and therefore. the. pi:éi'intift"s.eVps'ta.it shouid have been decreed as sought f0r".e._ aiVsQ"p:e'inted out that the a.me11cimer1i' to Sec:t;»iei1 6 of the,1__F_i_ii1du Succession Act in terms of the 2i:fri£%:1:ii;1_g«.Jg§c_t"'No.39/2005 has only Confirmed the claim of piairitiff iftf'2i.et has reduced the arithmatieai work for 'the Court; ira strictly allotting an equal share to the plaintiff A of giving 21 share only in the share ali0tt.ed to her ix'...WfaVt%her and allotment of 1/28"! share in some of the suit properiiies on the premise of r1et.1'_or1al partition should have fi&/it 2.2 been avoidecl and the plaintiff bein;_;" on 192211' with a male Copar(:e1'1ar on par with her brothers and all "brothers and sisters are erititled to equal shares in the ' ja)ii1.t"f2}mil.y properties and therefore. in respect. of the law mandates this Court should deereée emtitlement ofplair1tiff's 1/"i7"'sha=v1:'ife. A V V
32. With reference to differe'rlt schedules, Sri Khllliélfflli le.21r:neE?l"L'ec5t--1.i}sel' for-.pI;:tintifi' would point out to Ex.Pl 3. salei'»',:Q'3,.1974 executed in favour of the "'t'eeit.als in the sale deed cIe_a1rl_y* in'ci"_i2::ie_ti11gthat it was acquired by the father of the plaiiitiff.»1:l1e'=pf*opeft3{ 'forming part of the joint family p1'opei"i.ie_s amt there no question of property being "(:o:11é3't.1*1.ie"(l i1'1..;1ny other manner" to refuse or deny a share to "'{.l1e_,§jlaj:h.1;'iff V' this property in accordance with law, parti.eL1la1'ly_lijvérith reference to Section 6 of the Hitidu ~..__"Stieees'sio%1 Act as amended by Act No.39 of 2005, erisuring _S'{:£;'.E1,1S of the plaint.if_i" as a c:t()paree1'1a_r. M.//, Ex} L»)
83. l3x.Pl wl'1iei1 indicates £11211. the prope1'ties <'to__inprising the suit". items 1 to 4 werenall acquisitions by *}l1"Cv_._fé1li'l1C1' of the plaintiff and therefore there was no xxreiy of.pVVCl'e'1'i3zii:igf'ta S}'1.':-U6 in favour of the plaintiff. ~
34. in so far as suit item it is pointed out by Sri ttliife sale deed dated 02.05.1938 in respect of the property would indicate belonged to the father of plaintiff should be given 1 _?_'?f So far as items 2. 3, 4, 5 and 6 "a.i,te'i1iion is drawn to Ex.P27._ 28.
29. 30 e111d<:_3l the record of rights in respect of tl1c:s.e.i-piproperties';'*-wlj_i_e].'i indicaiies these properties also stood Vrinltilie 1'-.ig1i'ne..pV<5i7.ilie father of plaintiff'. Sri Kulliarni submits tl'1'a.t. trial Judge has eomniitted an illegality in '.Vigno1'iri.g;" tl'1e evidence on record and drew our attention to Xtlie riianrier in which evidence has been appreciated to ...V"I'f;"f(?%()I'Ci 21 finding at variance with the eviclenee on record and fsiibmits that ii: is 21 perverse firiding and requires correction. /.,~ ' 24
35. So far as the suit S_eheclule--C items a1'eWeo_ri<:_eriied, while in suit items 1 to 3 what is given s-hare, submission is that in these items also pI_2ii1'1.t.iff..is'~enti1Ied" =§o'~~. 1/ 7" share.
36. The learned counsel pleivintiffi.
attention to Ex.P13 21, which is in l\/Iarathi language being EXPI4.
executed by in favour of the father of entitlement on the same logic .. .
37. S'LlllIli".<ffI;I.1v,2 in thils,S'c:hedi1le ViZ.._ an urban immovable 'p1'o]_2'e1:ty_ilC'ifS NoI(38.1../2/B was aciqtiired under 21 1"egisf.ereC1 20.05.1974 executed in favotir of An;iéisé1heb.V'lis:'jeilid Prakash by one Bharma Devappa _444lVQu11dlap}ll)a Vfor a eonsideration of Rs.35,0OO/W. in this the learned counsel would submit that neither l'--._l:llAnet;asal1eb nor Prakash had any iridepenclent source of ('income and the sale consideration was paid from the ine(')me of the joint family bus:'ness e()1'1(:eI'n5. ancl_.t'hereiore it would aLitomat.ically become a joint. family The sale deed also recites that out of consideration of Rs.35,OOO/W a.:~s'ur--n been paid earlier and the paid at the time of execution 'cvifswetle deed;
38. Again in respect"ofhiterié is a property purchased of the father of the share is justified. In respeCtv'dV'ol"V No.32/2/2/4/l our am»:mi(ii41« record of rights in respect: of this i1'1dieaiies that it is in the name dddd Milt is s1.ibrI1i_tt,ed on the lines of the t.hat: all properties were purchased only _ froni=«..Vou.._t' joint family nucleus and there being no A.4é"---VVii;deipeii'(ient income either to deceased Arinasaheb or lei ".""(3_l"(.'4:f{3""}1'(.'i"E"i1'1f, the property obviciusesly is a joint family property "b'ei1'1§§ liable for pariiition E1I1'l.()ll_gSf, the members of the id family. M » 26
39. In so far D~Schedule properties are conee_r.1__ied, the parties liave not joined issue before us. So far g:'s'Sc'hedL1le~ E is concerned. while share is given only in itemi\?o';4"on°the_ premise that it is a joint family property. .shai_'ehis-Tdennieclf' it in items 1 to 3 for the business concerned describecl..,:'st:l'i€rein nameof the members of family<"i,gfl thpeir"i1.i.fii'ivitl.:,ial and they are not joint family counsel for Plaintiff i30i311't'sgpp:j'out::A__A hnnasaheb or 13' Defendant (lid not."V.li'ave'*§i'nv V-i.n--cle"pe'i1clent. source of income and t11€=1'ef"é>r€;Vi5i€Iti~1fififi°"ivs'emitieci for 1/"rm share in. the other t.lireéV;_t:eins ;;.lso_ " i it Schedt1le«F items are concerned.
'1wl:iTil.eV herself did not press her claim in respect _ of item however in respect of item No.2 learned A .44"«--cponnsel plaintiff would submit that the reasoning given trial court that this was 21 selilaequirecl property of
-«..:"tl'1"e children of Annasaheb is <1-.orztrary to evidence on record.
43. It is also subniiiicci melt: the lea1'noci trial J1.-zgige has coiiiriiimed an error in not directirig enquiry mesne profits in favour of piairitiff. A i it
44. On tlle other hand, Sri S.'S»'.'.I?'a'r'ril..«_ respor1d<:m:s--1 to 3 and Smizi.
for 1'es_pondonts--4 to 6 and C()LIESf3] for r(-:sponci<<::'1"t.~.,No.i'5"--Ii21§{:§'vt?ry \/eiierfieritly Lwged thaii the law with regard-liio'°ji;Iie: property and self~acqr1irod ;91'€:g_3értyi:is 'wo']1--:."sV5:_t._t.1féd that selilacquired 131'o;3c=oi't',"§,_(-..s'--. 'of. VjVoi'r-if" ,fa'r::1_i_i'3z ' members are nor ]i:4.1.bl(-2 for pa.ri.i1:io1'1 ai'in_oiIgsi'. ali..1'Tiri{r31E3r:i'ss of the family mcrr<:ly b€(T'dL1S€ ofr:]1€-orcxisi:e11ce"L>i",gr___;(:.ir1t'. family imcieus pr(.)v<':':c;I: ii.i1ai' the 2:rri'e;~:3ric3.§%'1eI\n.rtirziernis oi'So(t1ior1 (3 (I)fil11C Hindu SlE('.C€SSi()1'} Atiiz iéiaoi: 2ipp.i'iCab1e to the present; set of facts and if at ail 'Vibe H215 to be decided applying the provisions of '~.iSs:":oi.i(;r1 E3 as they stood prior to the ainendmcm: by Act of 2005. The leariied counsel woulcl submit" that the V"1ear'ncd J1.:(ig<: of the trial ('OLIH 1'121.=s rig_{i'1t..ly e\:'22.]1.ie_1i:ec.i the 4 t:l'1ai: the pi*ovisi<'nu1s of See1.i_on 6 oi"Hi1'1du SL1(:cessio.ij1 Act as amended by At No.39 of 2005 are not e1;3p].i(:r"2ibie'io the iI1SfE1l"£1' ease. In the above (:it':ed jixdgnieizt, \-vi.ii'h 7*'re1i€§_e i:'o_ facts obtained therein, this COL1l'f.'TA"iV€i'd,.$1131}._:Z:1S§ 'i:}'j1ffTVféifliéf off'. the plaintiff died in the year ».
amencimemi to Section 6' therefore the &1H1€I1dCdi::'LfiVV Vhh"(:,2.1&.1'i.11_s_éVcv§'i1 ease in the wake of sue<:essioh:_ prior to the amelldment. eubmit that such is the factual oh hemd also and therefore, it 18 f)1'1:.]_Vh_'V;i' the date of opening of SL1.(_:eession__ thelt applied Elfld not the law as a1"11e1'1_c£'c::v<ii._hy Aei aNo'1.f39V'of 2005. The learned counsel for the d€fV€.li'CiEliiifs/i"'G$pOl1C}€I"lt submits.t;1'1ai: therefore the plaintiff C'Z1.I1'1"-i1"__()'(jAi'iTi]3.§"O'xi¢'~}'iffI" forttmes in the wake of the ainendment _ to Séetiofri' fikof the Hindu Succession Act by Act No.39 of We have czonsidereel the .<_submissio1'1s macie at the Bar gone t:l1r<)141g}1 the fi1"1(iii1'1;gs of the t1'*ial court. with 31 1'efere1'1('.e to the eviciellce I 01: 1'eC(,)rd and halve examined them in the li_;_;l:'1i of the law on the point.
47. in our considered opinion the following poi11__t_;e would arise for det ermi:'iati01'1: '
(i) Whether the plaintiff is entitled tczfi. all the suit stthecltale ' plaint Seh.edt.11es--A to A V V M {ii} Whether the pleiii-ti:ifE»is .e11--1;.i.tl'et:I"_:Wsliarelin terms of Act amended (ii}a)' = defe11da.nt.s prove that e01'1c:er:'1s vi'/,.. [i] M/ Yeshwant ll/ic-.tal*t.I.11_dust'1'ics [ii] Yeshwzmi, Ageiacies (iii) V'X'vc:~'.;:g'~:i1--\».\re11"1tl'1 and C0. are their self~aCqL1isiti0r1s plaintiff is not entitled to any share in these propeities'?
Vllliiv) Whether delendauiis have proved that suit item N08,} to 4 of A S(§hed1.l1e._ suit item No.1 in B Selledtzle and suit itemsél to 4 1'11 suit C as [O Se11ed1I.Ie. item N<)s.1 to 3 in D S(.:he.d1,11e and item N032 and 3 of F Schedule self-
aecguired properizies of 1-" cic%£'e1}_dl?;:A1.b1'1'*'£';»5_' children of the 15% de_f'e»13_c_1z=11_":t_."21'I'1eif'_'§.He: $'§*.iVI'e.e:
children of deceased ' (V) Vx/heE"he,r the i.1nI;r;1_vgi3..e%d eeill forim;e1"f'ere:{1ee? 9 . T I
(vi) What 01'dev1';?' '
48. Our fi:1d1r_r5;s'.on reasons thereof are as f'c)1l0§xr:%§:.». V . é ' E§eib:'cr '"wid'e.nce on record it has become ne(:e:ss211"y7'f7:4)i" us' t'.0'A'}_1€:'mze.'i't. to the e(md1.1e1e of 1." defendant wh(_)'~1jasj§A'11<.>E' c1i.<'spl,1_ii__£;'.C'i t,h.21t boil} cieeeased Annasaheb and BA. graduates. Yet 18' defenciant has net. document to Show their date of birth to 'VV_»estab1i.sVh3_that they were poseessed of independent income V~.j'tQVae'€1L1ired the afmesaid properties. The 15*' defenciami has aleo not produced {the books of ae(:ountS rc--:1at.i.ng to M/s {J} as Y('2Sh\\-'£11'l1.h I\/Ietal I1"1d1.zstries. 'I'1'1erei'ore, we are left with oral evidence of the parties.
49. The 1*" c1ef'e1'1dzmt: in his evidence M/ s Yeshwarith i\/fetal I11dus1'riesWwas year 195768. He has also deceased Armasaheb was bori-1.._titiritiagtthe arid was elder to the 15* d_ The 131 defendant has that his father Yeshwmith :v.vtVe1'ki11g as a priest and he did_ 111 is contrary to the a\rerments'-- in extracted in para I-4 of this jL]dg1]it?l'_T{' v:=11'1'd' if11._e e.,\'r'iide1'1c.re on 1'e(:ord to the ezffect: that Y{%t%:}i'\i.?.E'11'l'[11 Chz1r1(1raka1'11' Upadhye besides Wiorkingv.,4ei's;'aAipriest was also xxrorl<i1'1g as an eiccsuntarit in tviveyfirmstéfidtiiiltiiati he had at his disposal the properties left deceased Surianda Bai which included house properties, "'-l"_a.r1ds}_« gold and si1ve1' o1'r1arnem':s in good measure. Ir_ii::ide1'1t4al1y' it necessary to stat.e thzit defer'1da1'1ts--i to 3 V' have rziised ail the pieais b(.)t1'1 te1'1z;:bie: and miteriable to M defeat I':he claim of the piaimiff. In the first piace they have Contendeci that du1'i1'1g the lizfetime of their father v'{e.».$"}':\5Vv2-1r1t1"J Ch2md1'a.1<z11'1t1'1 Upzszclilye amd ah-so SLm2mda. w;_;iE3p_a family 211'rar1gerI1e11i. under \v}1ieh éinciep silvel' ornarnems possessecl by S1.11'1a:i1&c1e1:;'_"' amongst the plaimiff and Ch2md1*akam: Upadhye ahd'T--h_ezf_,feiste1's had accepted the same inué" of their claims in the "
50. Dei"eEidV.211i§f5_§ 1. 'f'n'e3p1s($'§p'1eaded that the deceased Yes11\1\ré§1v.11r.I--1' {.7lifitx'i:ti»i,Afé.zliéinj---Up'ac1hye (the1'r father] had left behind VV'<,l_a1ut.c:_(iv.:_'O1.O6.£983 13c:(}1,.1e{.l1i11_g_; the suit '_ sC11_efi1.u:1ef pmpei"!'éc:$__i1'1v f€1\-'()L_1I' of ah the sons. til';-T'__ family z11'1*angement remamed a mere plea wi€.h<>L1t._"th-ezlfe being any proof. in the pleadings it ie stated
1.hVe¢wil1 daEie.d 01.06.1983 said to be exeeutied by f1<1Ve'iz*':fai.h.er "Yesh\>vam:h Cha11ciraI<;a1n': Upzicihye was lost VV"'\x%he1'1 deeeas3e(1 ;'\1ma;~7sal1eb had sllifted his residemte. However. (f.i1.IITii'1§_{ {he (i?()Lz1'sse of e.vider1Ce. 1*" clefencia1'1E, has
1)."! i'J'\ come out with a VC1'Si()1'1 tlriat i.1'ie_\j are p1'ep211'ec.i to produce the will at at 121.1101' stage of the trial which never _4h.a_;p.pieiied. Even in the writreii 2»i1'g11me1'1t1s filed 0151 defenciams-1 to 3 beibre the trial (:Gur1'_, th_e.Veiei'er1ri;;in_ViLssV haxie. 2 reserved their iight. to p1'0dt1<;:e t.heb"'\vii'i_ e\}ei'i'*d_i§ir.i'1ig Viifiiijal decree prcicteetiiiigs. Thus w_e"~~._1'irid V' the .§1e.i'eind'arat';s we're unsuccessful in (3Sf.'c1bliS]f1iI1g'.Ili1C:= eirréiii-gerfiient. much less the will propoundecii
52. The lfk ';jiEtI1:1i_h?.:iS .s0),--1g'i1t.""tE) establish that his br0t.her_.Aniia.siiii:1eh_ »\:é1:a_hat;__e11terprising person and he strart.edVhis i3i.isii=1'€fs.si if)14ir_if.1'i*:rs 'tiwii. so also the 15' defendant. This e(>i'1t..eri.i':imi is ifiij-r}"ie,§f'1j'i' by the avemients of the written "'~._Vsta1.;ei'he::ii ext"1'2ieied____s;1pra; as also from the evidence of 18* LtieigeiiidavritgtWh'eifei1'i he has admitted that his elder brother' Afinéiisaheijiifivéis 21 BA. graduate. He completed his degree yin the year 1.954-55. He liad no previous experience of "--vb:.isi4r1ess in h.ardware. His father and his brother were Vi is Heieing busiriess but he does not know as to who started the business. He has admitteci that business in hardware in to a t1"acli11;,{ ciomniuriity, deceased Yczshwantll Claandrakant Upadliyc included his S(.)l'}S as p'dl'l'.1R?1'$ only to pmvi__cle them suitable zwocation in lilh.
53. The lc2.i1'ried ()()LlI'l.f%'€'.l for clefcI1d2mt.s--l t[O._:3vl.V1a\'f'elrciied. upon a C.l€',(--if,"-3iOr} of tile Si1131*e;':;ie CUlll"'T' in. _"£,l'1_e._V(:ase"'. ofi'. P.S.SA1RAl\/I & ANOTHER vs. --P.'3y.R.AMAyyliRé»g0 ' P'1*SE:Y'"--& OTHERS 1'epc)rt€d in ma 2O0'4l"}f.I.25iF{_ i:>;53_ lWh5er<.'§'i:ri it is held that if no C1()1«/;l1'lbLltiOl'*1~ as l'll:3\=1>.1/ll' 'c:.i,it, of family fund to any part1'1<:rship firm_... c21r3._11Qyt pifgs-timed in law that the family l'1a§;»j 21'§1i1'3'/_ir}ii-iiwistl i114_4Vs1.1'(1h"3"firm and even if an individalal "mcii1'béi=._(5l7.Si;ig:l"r family llas used a part of joint property t.c')*-:§V(n1clL1i.§t.Ai31'§s:.iMi5icss by iiixresting his own Gaming, "S not,'*l»ia.blt-. for pau'i'.it.i01'1 arrmngst other family n1eri1bjei's."i l
54. "l"h..V(-=2 i'i'i$t:aI1t Case not 21 Case \.vh<-Ere. there were no Vt.in1'res4t1nlé11ts at all from out ol'i:l1ct joint family funds. it is IA1AO'f.l2i case where dece;-a:s<:<i Ai'1r1a;isa.l1eb and 1*" defendant "had est:2.1bl.ish<:d b1.1Sl}'lt?E'i5~I« \-*v'il,l"i(){.li any air} from the incame of the joint. family bL1si1'icrSS>. As almzidy m_)i:ice.d. deceased @ 38 Yeshwzmt,l1 C11ar1c11'akau"11. Upa(ii'1ye, the l'a1t.her was the f()t,II'1C1CI' of EVI/st; YesI1\\'z_i_;1£l"1 ?\/ieiai Ii'1c'1ust,ries arid he had established paI't11ers11ip:~; in U"I(':' name of iVi/ Yesh\V.2t11t.h Raj 81 Company and Y(3ShW2iI'1I"II'1 Sales out' of the the joint famiiy. "I'he1"ef0re, ('i(.*1e1'1tia1'1t5 eeI11"i11()t' that properties CTS 1440/D are the prtiperiies of Industries. The SubS(":'(]1E("iVI"{_'-"'~v.fi:i'i'I,1S fretn time to time and Yeshtx.-gm/1t.iisCijjgtglilgtilgiighiitiiUpéitihye was a partner all along in aii As the family belongezjvd tn" t.I'i3,d11i}§_§.._(_'{.)i1'1i'I1L111§1y with ail the junior mem.bers'u0f tI':e_A'jjoirit---.___'i'l':2'iiiiy vi:/,.. A111'12tsz.1l'iet3 and 1*"
defentiaiit: 21SVsi.sti11g§ t:hei:" i';1t_1'1<:i* in the b1.zsi1'1ess. there was "Dr§)éi3e1'i'fY ihthe bt{si1ic'?ss. TI'1€1'€E1ft€E'._ from time to time Vétihe bi'.}1Cl1_fI1§3'1'11b'E'.I'S of ti1e_}oiI1t': family s1;ari;ed difiereht. firms. {tie to note 'é.i'1e?:1. all the fimis S'[lE-':I't€d by the joint
-- family rléenibers had tiie trade name "Ye:-"shwaI1th" which :'s,h'cmr§ that, Yeshwanth. Ci1z'm<ii'a1k2:tI1t' E} §)21(i1'1y€ ]'iaci earned 3. __ ".gC.t)(*3' 1'e13u1'.at.i011 in bUSiI'I('S?-i. b _
55. The deferidamxs 1'12-1\='(_' 21190 $(_)i.1g_§1"1'i. to rely upon the] income tax I'€t,L11'I}S filed i'.)y §.l'1(_'1Ti. "1"1"1c W ciei'e-,~.1"1cig*-._i.1i;~.ii¢;1_S ail along harbouririg an im1>1'cssio1'1 i.1'1ai' partriership firms and the })1i'()})v01'ii~i€'?S:' 2'i¢_;'i<.:V1£,'1v'i'i";='_'c_V'«.. became the properties 01' the 'firm joint family had no share. hi \vh'i'd_s.' oi' Dartriership was S01/1§:Y,1i'~"'i'.l.1:\() bf?'{i'c.1i:k§i*ri'i'i»:j¢d '(ifT'11h€»»i3aSiS of the terms and Conditions and not on the persona} This c:ont,er1ti0r1 is wholly unfer121h1.éwas;. ii--:f1ri$ we1'€ esmablished by Yeshwaritihiii'Cih_;111C€.i':1k':=:zii Kip:-idliye from the joint family busim-:sS'.u "HOVr.Is3V::{r.. Vi1'}'_x'.i'.]IE~'€3 ssL1i3s.eqL:<:t1'ii. firrns established afteij 'Lhe dééltih Of' Y<§'s1'i{i.?z111t1'1 Ch':-1l'1C1I'21kE1l1f Upadhyi? there iiwrefé who did not belong to the joint family. Even claina that: pmpcflicts acquired in the names of Ani;i":»1sa.'i1'<-:b""and W dei'ci1c12m!".. the (:0:'1s'1cEcrat:i0r1 beirlg not 2 afone time but pant. of the C.<)'ns;iciere1ti()11 ilzivixig been "paid ea1'lie1' and the 2'€i"§'1&.1i1"Ei}'1f,;_{ considere1i.i(m being paid at Vche time of <«:xecut.i0n oi" rcgistcéreci sale cieeds. it canrmt be 40 accepted that the property had been acquired wii'.l'1 the help of the individual earnings of the said Ahnasaheb.
56. The learned trial Judge has relied upon a nu-1.nber of decisions to answer the issues in favour of the But the settled position of law member of a joint family has byte investing such income if he _ his business by his i11dividualllli's:l.<:il1sV other members of the joint farhily on such business firm or prope.rt.ies, the income of the business the case on hand. neither A11nasal.1eb*--:i:o1*v 1-**-~_defer1d~ant had any independent source of
-"'~l_Vi1'1c(j;:1f:.eto ipnvest"in....the business. They did not possess special :to--.develop the business without: the aid of the joinftll f«':1I_1l.ll.i_v._A':lT}€I'I}l1)€I'S and Without the guidance and ll"'<.,becontribution of their father Yeshwanth Chandrakant V"i~lb'pa'di_1ye. Therefore, what has been held in the decision of the Supreme in the case of P.S.Sai;:am (supra) is not applicable to the facts of the present. case. V"
57. The record. p2'11'iic'r:.ilz:'1i'ly. l'.l"1c.: wifiiieii sfaierneijii. itself cohcecles that all the pI"(')[)€"I"'l'.l(.?S wem E1('.('{L1lI'C(.l <)i'ily"£l"'o_ri:y011t of tihejoint family m.1c1e1_is axricl 1'10l'l'1iI1g;" el:-se. l'
58. There is no Vi-'Oi'l.l'1\\'l'}ll€ 1'r1cl(:*15e1i(:iei'ii--, CfE.11"flVl'I:}g7?" Vtraeeablei'. to any member of the joimy; l'e'm*ai'ly.:"That lC7:'i€"r3 't.bey'elvdest member after the clrcmisel"'«.§§i'» \'esl'is..y21'i'1IV.= Chandrakant Upadhye. being only v(:'l{_'~;.';:~zi(iei'i_tlAs'<.'i1.i_l;}'i.s i'21il'aerh()l' only for educating him but also lei' .si.;.iV_ift'§i11g*t1'lc[ii'1i.l.ial business as a partner' with =thei:*--. 1C\.%'e1'hi l'c)v1_9'1Ei'is...;Jai*i'ne1*sl'1.ip all funds have flmvri '(lmfiy 'l'l"l'Ol1'l,l.li.fj.' _jQim' i"amily &1SS(.'li.S. though it is sought be Lirgedrm-'I---.__l'5'el'iall' oi' the cle£'encia1nts by their learnt.-dv _c()te1fiseAll'i.m'-11"l':m<'ls l":'<')m c>ut': oi" the joint. family Vpi<Qp"e1'ti"es not gone i1'":lO the i11V<-';rst;n1e1'1t. for purchasing Ct,11'ei' .1A31"C3:l}fJ'f?7'I"'l;lV§3£-Z+"'.ll'} the ::'i;"'i1':1es ('if imtlividual members. Even assLi'n1in_'g'th%1t. to be so. in l"l"1(-. al'>:--;<:;.~i':(:e of ezmy inclependent ,S(3L?:E"'_(.'/C bf income eiiiher ple.;.'1clc*{.:l or p1"o\.-'ed by the inclividual _ rnemlfier of the famiily ii"i:.:i' suciiz g')::'<_)pe1'tiy had been acquired his own inciepe:1clei':i' ez-11'1'1i3'"z_:.: z.111('l not from out of the activities of busirless ;m<§ §m'li1sI"i_fy (..2€11"1.'l.E'd on initially 43 joint family property and is liable to be shared amongst all members of the family in" a partition of the joint family properties.
60. That only leaves us with the question as the amendment to Section 6 of the Hindu Act No.39 of 2005 has any beari11Ag_t'o otherwise. V l H' l y l
61. The law in this regardl_i's.__toollwel1 the judgment of the SL1__preI1'1ey_(::'ll(':)"u_r_t».i_n the'--«ea_se GSEKAR vs. in (2009) 5 sec 99. Any developrhent _ ofxlllawl:_°ihev"itably applies to a pending proceeding and in fact it is not even to be taken as a ll1fet.i*o'spe'eti\te'«applicability of the law but only the law as it being made applicable.
'H62. suit, no doubt, might have been instituted in the it E992 and even assuming that it was four years after _t;'l_i_5:=: demise of Yeshwanth Chandrakant Upadhye, the position so far as the parties are concerned, who are all 44 members of the joint family, in terms of Section 6 as amended by Act No.39 of 2005 is that a female member is, by a fiction of law created in terms of the ame11de'§1.Vpr'ox{ision also becomes a coparcenar and has a right __farrii].y property by birth. They are alsomsharer'"1n'en_ibers*poi"; coparcenary property at par with all male nien1ber's.."Wh?e_n a partition takes place. coparceners sticceed".to'-theyyyproperty in equal measure. Snch is_t.he"'v1eg:»3.1 position_in terms of Section 6 of the E-Iindnt'S1.iccession"'Ac.t.has amended by Act No.39 of 2005_a.n:d..as Si'i'preme Court in the case Thedonly exception carved out to the applicability=._an.i;i- o"p.er'ation of Section 6 of the Hindu S'uccession Act_as'anien'ded by Act No.39 of 2005 being a sit: factual position where there was a partition tL'vhie_ii.S3h'a:Ci..beeVii"eI'iected by a registered partition deed or by V . a decree: of'the Court which has attained finality prior to in terms of subsection (5) to Section 8.
in the present case such being not the factual position, the exception avaiiable under 5-:.ub--section (5) to V /4 ..
Section 6 cannot be called in aid by the defendants and therefore. the liability in terms of the amended provisions operates. It is not neeessaiy for us to mu1t_iply the judgments by going into details or diseussirig.l_V"'other judgments referred to and relied upon counsel for the parties at the pone Supreme Court if clinches the isstte enough for us. as a bii'1di11gllaup:thority to law and dispose of the case asVeleelared"'in_:tha't_
64. So applying the far as all joint family properttesereeonieerried, the plaintiff is entitled to 1/ 7"'! share_ya;nd ~i__i1A'.resp'eet of partnership firms ir1 which l1ad""lvimi'ted share, to the extent of such the pl.aintiff gets 1/ 7"' share and so also her ybrothersli. _and sisters.
Therefore. the judgment and decree of the trial court is .'n'i-odified by allottmg 1/ 791 share to the plaintiff in all joint family properties and assets, except ir1 suit item No.1 of Sehedu_le-E which has been voluntarily given up by the §/, plaintiff in favour of the defendants before the trial court and therefore, we exclude this from the operation of this modified judgment and decree. In respect of other suit itenis, to the extent we have indicated in this the decree stands modified declaring the eiititleirieiit. to 1/7"'? share in respect of all ite'fr1--s.,of5_<A 77*-j share in respect of all iternsjin respect of all items in C 'r""~1'{.V relspectllof all items in D Schedule,.,_p'1 / respectgof all items in E Schedule, in respectfiof the first item heiviiigibeenligiveii tip,-.iVrI~«other two items, while 1/7"? share is given in respect of'sp_iiitpiiteni No.2, it is 1/ 7th share in the 400/q;ovvnei'shi'p,_infiteii1 No.3 held in the name of the wife of ]sl"Edei"eiida:1t Prakash for the reason that this husiiness was established out of the joint family
-- co11ti'ibu,tior1s.
V' Inview of the aforesaid discussion. we answer point ' in favour of the plaintiff except in respect of item No.1 .4 F Schedule property which the plaintiff had given up. 47
67. We answer point No.2 holding that the plaintiff is entitled to 1/71" share in terms of Section 6 of:th'e.ll_Vi~lindu Succession Act as amended by Act No.39 of .
68. We answer No.3 against tl1e'de'fendant,s the judgment calls for interference4__ decree in the aforesaid terms l'a«nd.c()nditior1As.'.=
69. We find from gigiidgment it is very necessary for us" to eilaboratell theljudgment, which has not adhered has gone off at a tangent to the The learned trial Judge has ignored tl1e*-oral, an_dldoei._iment.a1'y evidence to determine the
-"'.._vnatp1're 1:)_1'ope"r'tie.s__..as to whether they were joint family V ovrys-elf--acquired properties. The learned trial Jnclglel :§'epr()ducing the head notes of decisions cited 'Vat the" has not shown any awareness to the legal and in keeping abreast witli the development of The learned trial Judge has ignored the provisions of Section 6 of the Hindu Succession Act as amended by Act 48 No.39 of 2005 which in fact came into effect dt,_1i'il1g the pendency of the suit. Therefore, we hold that judgment calls for interference.
70. The appeal is allowed with <T:_osts.4sfA.fi»
71. T he office is directed .d1'aW of this judgme11t. The trial court h.Vold'laritle1;1qnfiry into the . mesne profits arising itlivlelfprolplerties in which the plaintiff has 1/7"" sha:re'*irift.ernj1's' v_t.h'e:7decree modified by this Court the decree till the date such d-ixjfi-dlledpbyllllrnetes a11d bounds and the plaintiffsI/V73'gshjgrreé"---ils""a1lotted to her. In respect of btisiness coricerris'1/partnerships from the date of decree till. oifvfenditilon of accounts and allotment of 1/7""
ppvla-"i'ntit'f in terms of the decree modified by this Coiirt. ' Safe EEDQE sa/~ Esose Pmg/