Karnataka High Court
Guruprasad S/O. Hanamanth Shabhag vs Saraswatibai W/O. Shrinivas Pai on 11 September, 2025
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2025:KHC-D:11812
RFA No. 4032 of 2012
C/W RFA No. 4055 of 2012
RFA No. 4056 of 2012
HC-KAR
IN THE HIGH COURT OF KARNATAKA,AT DHARWAD
DATED THIS THE 11TH DAY OF SEPTEMBER, 2025
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
REGULAR FIRST APPEAL NO.4032/2012
C/W
REGULAR FIRST APPEAL NO.4055/2012,
REGULAR FIRST APPEAL NO.4056/2012
IN RFA NO.4032/2012:
BETWEEN:
1. SHRI GOVIND
S/O NARAHARI PAI,
AGE: 55 YEARS,
OCC: BUSINESS,
R/O 'SHRI PANDURANG KRUPA'
OPPOSITE R.P.D. COLLEGE,
Digitally signed
TILAKWADI,
by
MALLIKARJUN BELGAUM - 590 006
RUDRAYYA
KALMATH
Location: HIGH
COURT OF
KARNATAKA 2. SMT. APARNA
DHARWAD
BENCH
DHARWAD
W/O GOVIND PAI,
R/O 'SHRI PANDURANG KRUPA'
OPPOSITE R.P.D. COLLEGE,
TILAKWADI,
BELGAUM - 590 006.
..APPELLANTS
(BY SRI. MALLIKARJUNSWAMY B. HIREMATH, ADVOCATE)
-2-
NC: 2025:KHC-D:11812
RFA No. 4032 of 2012
C/W RFA No. 4055 of 2012
RFA No. 4056 of 2012
HC-KAR
AND:
1. SMT. SARASWATI BAI
W/O SHRINIVAS PAI
(SINCE DECEASED BY LRs)
1A. SATISH
S/O SHRINIVAS PAI
SINCE DECEASED BY HIS LRs
1A(i). GEETA
W/O SATISH PAI,
AGED MAJOR,
OCC: HOUSEWIFE,
R/AT ANANT BUILDING, 6TH CROSS,
ADRASH NAHAR HINDWADI,
BELGAUM
1A(ii). SUMEET
S/O SATISH PAI,
OCC: SOFTWARE ENGINEER,
R/AT ANANT BUILDING, 6TH CROSS,
ADRASH NAHAR HINDWADI,
BELGAUM
1A(iii). ANURAG
S/O SATISH PAI,
OCC: SOFTWARE ENGINEER,
R/AT ANANT BUILDING, 6TH CROSS,
ADRASH NAHAR HINDWADI,
BELGAUM
1B. SUDHIR
S/O SHRINIVAS PAI,
AGE: MAJOR,
OCC: DOCTOR,
R/O R/AT ANANT BUILDING, 6TH CROSS,
ADRASH NAHAR HINDWADI,
BELGAUM
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NC: 2025:KHC-D:11812
RFA No. 4032 of 2012
C/W RFA No. 4055 of 2012
RFA No. 4056 of 2012
HC-KAR
1C. SUREKHA
W/O DEVIDAS ACHARYA
AGED MAJOR,
OCC: HOUSEWIFE
R/AT MAHALSA P.NO.17, SYNDICATE BANK,
COLONY LAXMI NAGAR,
GANESHPUR, BELGAUM.
1D. SHARAD
S/O SHRINIVAS PAI,
AGE: MAJOR,
OCC: INDUSTRIALIST,
R/O: MANGO MEDOUIS,
KHANAPUR ROAD,
UDYAMBAG BELGAUM
1E. GIRISH
S/O SHRINIVAS PAI,
AGE: MAJOR,
OCC: INDUSTRIALIST,
R/O: SHRI MAHALASA, 6TH CROSS,
ADARSH NAGAR, HINDWADI,
BELGAUM.
AMENDMENT CARRIED OUT AS PER ORDER DATED
12.02.2025
SMT. GOURI
W/O ANANT SHANBHAG
(SINCE DECEASED BY HER LRs)
2. SHRI. BHALCHANDRA
S/O MURALIDHAR PAI,
AGE: 49 YEARS,
OCC: BUSINESS,
R/O 'SHANTA SADAN'
CTS NO.923 TO 927
OPPOSITE R.P.D. COLLEGE,
TILAKWADI, BELGAUM - 590 006
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NC: 2025:KHC-D:11812
RFA No. 4032 of 2012
C/W RFA No. 4055 of 2012
RFA No. 4056 of 2012
HC-KAR
3. SHRI GURUPRASAD
S/O HANAMANTH SHANBHAG,
AGE: 45 YEARS,
OCC: BUSINESS,
R/O 'SHANTA SADAN'
CTS NO.923 TO 927
OPPOSITE R.P.D. COLLEGE,
TILAKWADI, BELGAUM - 590 006
....RESPONDENTS
(BY SRI. SACHCHIDANAND B. PATIL, ADVOCATE FOR R1(A),
(i TO iii) & R1(c)
SRI. PRADYUMNA G. BHALI, ADVOCATE FOR R1 (B,D,E);
SRI. SHREEVATSA S.HEGDE, ADVOCATE FOR R2 & R3)
THIS RFA IS FILED U/S.96 R/W. ORDER 41 RULE 1 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED: 17.01.2012
PASSED IN O.S.NO.278/2003 ON THE FILE OF THE I ADDITIONAL
SENIOR CIVIL JUDGE, BELGAUM, DECREEING THE SUIT FILED
FOR PARTITION, POSSESSION AND MESNE PROFIT.
IN RFA NO.4055/2012:
BETWEEN:
SHRI GURUPRASAD
S/O HANAMANTH SHABHAG,
AGED: MAJOR,
OCC: BUSINESS,
R/O "SHANTA SADAN",
CTS NO.923 TO 927,
RPD COLLEGE ROAD, TILAKWADI,
BELGAUM
..APPELLANT
(BY SRI. SHREEVATSA SURESH HEGDE, ADVOCATE)
-5-
NC: 2025:KHC-D:11812
RFA No. 4032 of 2012
C/W RFA No. 4055 of 2012
RFA No. 4056 of 2012
HC-KAR
AND:
1. SMT. SARASWATI BAI
W/O SHRINIVAS PAI
SINCE DECEASED BY LRs
1A. SATISH
S/O SHRINIVAS PAI
SINCE DECEASED BY HIS LRs
1A(i). GEETA
W/O SATISH PAI,
AGED MAJOR,
OCC: HOUSEWIFE,
R/AT ANANT BUILDING, 6TH CROSS,
ADRASH NAHAR HINDWADI,
BELGAUM
1A(ii). SUMEET
S/O SATISH PAI,
OCC: SOFTWARE ENGINEER,
R/AT ANANT BUILDING, 6TH CROSS,
ADRASH NAHAR HINDWADI,
BELGAUM
1A(iii). ANURAG
S/O SATISH PAI,
OCC: SOFTWARE ENGINEER,
R/AT ANANT BUILDING, 6TH CROSS,
ADRASH NAHAR HINDWADI,
BELGAUM
1B. SUDHIR
S/O SHRINIVAS PAI,
AGE: MAJOR,
OCC: DOCTOR,
R/O R/AT ANANT BUILDING, 6TH CROSS,
ADRASH NAHAR HINDWADI,
BELGAUM
-6-
NC: 2025:KHC-D:11812
RFA No. 4032 of 2012
C/W RFA No. 4055 of 2012
RFA No. 4056 of 2012
HC-KAR
1C. SUREKHA
W/O DEVIDAS ACHARYA
AGED MAJOR,
OCC: HOUSEWIFE
R/AT MAHALSA P.NO.17, SYNDICATE BANK,
COLONY LAXMI NAGAR,
GANESHPUR, BELGAUM.
1D. SHARAD
S/O SHRINIVAS PAI,
AGE: MAJOR,
OCC: INDUSTRIALIST,
R/O: MANGO MEDOUIS,
KHANAPUR ROAD,
UDYAMBAG BELGAUM
1E. GIRISH
S/O SHRINIVAS PAI,
AGE: MAJOR,
OCC: INDUSTRIALIST,
R/O: SHRI MAHALASA, 6TH CROSS,
ADARSH NAGAR, HINDWADI,
BELGAUM.
AMENDMENT CARRIED OUT AS PER ORDER DATED
12.02.2025
2. SMT. GOURI
W/O ANANT SHANBAG
SINCE DECEASED BY LRs
(RESPONDENT NO.2 IS DEAD, HENCE R1 IS TREATED AS LR,
VIDE COURT ORDER DATED 14.09.2012.)
3. SHRI. GOVIND,
AGE: MAJOR
OCC: BUSINESS
S/O NARAHARI PAI,
R/O "SHRI PANDURANG KRUPA"
OPPOSITE R.P.D. COLLEGE,
TILAKWADI, BELGAUM
-7-
NC: 2025:KHC-D:11812
RFA No. 4032 of 2012
C/W RFA No. 4055 of 2012
RFA No. 4056 of 2012
HC-KAR
4. SMT. APARNA
W/O GOVIND PAI,
AGE: MAJOR,
OCC: HOUSEHOLD WORK,
R/O "SHRI PANDURANG KRUPA"
OPPOSITE R.P.D. COLLEGE,
TILAKWADI, BELGAUM
5. SHRI. BHALCHANDRA,
S/O MURALIDHAR PAI,
AGE: MAJOR,
OCC: BUSINESS,
R/O "SHRI PANDURANG KRUPA"
OPPOSITE R.P.D. COLLEGE,
TILAKWADI, BELGAUM
....RESPONDENTS
(BY SRI. MALLIKARJUN SWAMY B. HIREMATH, ADV. FOR R3 &
R4;
SRI. SHREEVATSA S. HEGDE, ADVOCATE FOR R5;
SRI. SACHCHIDANANDA B. PATIL, ADVOCATE FOR R1(A)
(i TO iii) AND R1(C) AND R1 (B,D,E,);
SRI. PRADYUMNA G. BHATE, ADVOCATE FOR R1(B.D. & E);
R1 IS TREATED AS LR OF DECEASED R2)
THIS RFA IS FILED U/S.96 R/W. ORDER 41 RULE 1 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED: 17.01.2012
PASSED BY THE IN O.S.NO.278/2003 ON THE FILE OF THE I
ADDITIONAL SENIORD CIVIL JUDGE, BELGAUM, DECREEING THE
SUIT FILED FOR PARTITION, POSSESSION AND MESNE PROFIT.
IN RFA NO.4056/2012:
BETWEEN:
SHRI BHALACHANDRA,
S/O MURLIDHAR PAI,
-8-
NC: 2025:KHC-D:11812
RFA No. 4032 of 2012
C/W RFA No. 4055 of 2012
RFA No. 4056 of 2012
HC-KAR
AGED: MAJOR,
OCC: BUSINESS,
R/O "SHANTA SADAN",
CTS NO.923 TO 927,
RPD COLLEGE ROAD, TILAKWADI,
BELGAUM
..APPELLANT
(BY SRI. SHREEVATSA SURESH HEGDE, ADVOCATE)
AND:
1. SMT. SARASWATI BAI
W/O SHRINIVAS PAI
SINCE DECEASED BY LRs
1A. SATISH
S/O SHRINIVAS PAI
SINCE DECEASED BY HIS LRs
1A(i). GEETA
W/O SATISH PAI,
AGED MAJOR,
OCC: HOUSEWIFE,
R/AT ANANT BUILDING, 6TH CROSS,
ADRASH NAHAR HINDWADI,
BELGAUM
1A(ii). SUMEET
S/O SATISH PAI,
OCC: SOFTWARE ENGINEER,
R/AT ANANT BUILDING, 6TH CROSS,
ADRASH NAHAR HINDWADI,
BELGAUM
1A(iii). ANURAG
S/O SATISH PAI,
OCC: SOFTWARE ENGINEER,
-9-
NC: 2025:KHC-D:11812
RFA No. 4032 of 2012
C/W RFA No. 4055 of 2012
RFA No. 4056 of 2012
HC-KAR
R/AT ANANT BUILDING, 6TH CROSS,
ADRASH NAHAR HINDWADI,
BELGAUM
1B. SUDHIR
S/O SHRINIVAS PAI,
AGE: MAJOR,
OCC: DOCTOR,
R/O R/AT ANANT BUILDING, 6TH CROSS,
ADRASH NAHAR HINDWADI,
BELGAUM
1C. SUREKHA
W/O DEVIDAS ACHARYA
AGED MAJOR,
OCC: HOUSEWIFE
R/AT MAHALSA P.NO.17, SYNDICATE BANK,
COLONY LAXMI NAGAR,
GANESHPUR, BELGAUM.
1D. SHARAD
S/O SHRINIVAS PAI,
AGE: MAJOR,
OCC: INDUSTRIALIST,
R/O: MANGO MEDOUIS,
KHANAPUR ROAD,
UDYAMBAG BELGAUM
1E. GIRISH
S/O SHRINIVAS PAI,
AGE: MAJOR,
OCC: INDUSTRIALIST,
R/O: SHRI MAHALASA, 6TH CROSS,
ADARSH NAGAR, HINDWADI,
BELGAUM.
AMENDMENT CARRIED OUT AS PER ORDER DATED
12.02.2025
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NC: 2025:KHC-D:11812
RFA No. 4032 of 2012
C/W RFA No. 4055 of 2012
RFA No. 4056 of 2012
HC-KAR
2. SMT. GOURI
W/O ANANT SHANBAG
SINCE DECEASED BY LRs
(RESPONDENT NO.2 IS DEAD, HENCE R1 IS TREATED AS LR,
VIDE COURT ORDER DATED 14.09.2012.)
3. SHRI. GOVIND,
S/O NARAHARI PAI,
AGE: MAJOR
OCC: BUSINESS
R/O "SHRI PANDURANG KRUPA"
OPPOSITE R.P.D. COLLEGE,
TILAKWADI, BELGAUM
4. SMT. APARNA
W/O GOVIND PAI,
AGE: MAJOR,
OCC: HOUSEHOLD WORK,
R/O "SHRI PANDURANG KRUPA"
OPPOSITE R.P.D. COLLEGE,
TILAKWADI, BELGAUM
5. SHRI. GURUPRASAD,
S/O HANAMANTH SHANBHAG,
AGE: MAJOR,
OCC: BUSINESS,
R/O "SHANTA SADAN",
CTS NO.923 TO 927,
RPD COLLEGE ROAD, TILAKWADI,
BELGAUM
....RESPONDENTS
(BY SRI. MALLIKARJUN SWAMY B. HIREMATH, ADV. FOR
R3 & R4;
SRI. SHREEVATSA S. HEGDE, ADVOCATE FOR R5;
SRI. SACHCHIDANANDA B. PATIL, ADVOCATE FOR R1(A)
(i TO iii) AND R1(C) AND R1 (B,D,E,);
SRI. PRADYUMNA G. BHATE, ADVOCATE FOR R1(B.D. & E);
TREATING R1 AS LRs OF DECEASED R2)
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NC: 2025:KHC-D:11812
RFA No. 4032 of 2012
C/W RFA No. 4055 of 2012
RFA No. 4056 of 2012
HC-KAR
THIS RFA IS FILED U/S.96 R/W. ORDER 41 RULE 1 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED: 17.01.2012
PASSED BY THE IN O.S.NO.278/2003 ON THE FILE OF THE I
ADDITIONAL SENIORD CIVIL JUDGE, BELGAUM, DECREEING THE
SUIT FILED FOR PARTITION, POSSESSION AND MESNE PROFIT.
THESE APPEALS ARE HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT AND COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
CAV JUDGMENT
Regular First Appeals in RFA No.4032/2012 is filed by defendant Nos.2 and 3 and RFA No.4055/2012 filed by defendant No.5 and RFA No.4056/2012 filed by defendant No.4 challenging the judgment and decree dated 17.01.2012 passed in O.S.No.278/2003 on the file of I Additional Senior Civil Judge, Belgaum1, thereby, the suit filed by the plaintiff for partition, possession and mesne profit is decreed with effect that the plaintiff is entitled for ½ share in the suit schedule properties. Further, the decree is to the effect that the sale deeds executed by defendant No.1 dated 18.11.1991, 19.11.1991, 19.11.1991, 1 hereinafter referred to as 'the Trial Court' for short
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NC: 2025:KHC-D:11812 RFA No. 4032 of 2012 C/W RFA No. 4055 of 2012 RFA No. 4056 of 2012 HC-KAR 19.11.1991, 19.03.1993, 19.03.1993, 16.02.1997 and 08.09.2003 are not binding upon the plaintiff's legitimate share.
2. For the sake of convenience and easy reference, the parties are referred to as per their rankings before the Trial Court.
PLAINT:
3. It is the case of the plaintiff as per averments in the plaint that one Anant Mukund Shanbhag is the original propositus. Defendant No.1 is his wife and plaintiff is the only daughter of Anant Mukund Shanbhag and defendant No.1. Anant Mukund Shanbhag given education and performed marriage of the plaintiff during his lifetime. The propositus Anant Mukund Shanbhag was native of Kumata and in the year 1933-34 had came to Belgaum for livelihood and secured a job as waiter in hotel "Darbar". In the year 1940-41, he left the said hotel job and invested his earnings and established his own tea-stall at Tilakwadi, Belgaum under the name and style of "Ramanath Ashram" along with his brother Vaikunth Mukund Shanbhag. He earned good amount of money and gave said hotel to his brother Vaikunth Mukund Shanbhag and invested his own savings and
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NC: 2025:KHC-D:11812 RFA No. 4032 of 2012 C/W RFA No. 4055 of 2012 RFA No. 4056 of 2012 HC-KAR started hotel business in a rented premises at R.P.D. Cross, Tilakwadi, Belgaum under the name and style of "New Shanta Niwas" due to his illness he was constrained to run the said business.
4. Out of his earnings, Anant Mukund Shanbhag purchased an open space property bearing R.S.No.201/A through a registered sale deed dated 30.01.1964 and his name was entered in revenue records. The said property is self acquired property of Anant Mukund Shanbhag and he constructed residential blocks from time to time, which are numbered as CTS Nos.923 to 927. Anant Mukund Shanbhag died intestate on 22.09.1980 leaving behind him his wife-defendant No.1 and daughter-plaintiff as his legal heirs.
5. After the death of Anant Mukund Shanbhag, defendant No.1 continued to hold the said suit properties without effecting any partition by metes and bounds. Also, after the death of Anant Mukund Shanbhag, the financial condition of the family was quite good.
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NC: 2025:KHC-D:11812 RFA No. 4032 of 2012 C/W RFA No. 4055 of 2012 RFA No. 4056 of 2012 HC-KAR
6. The plaintiff was surprised to go through a publication in a daily newspaper dated 11.06.2003 and noticed that the property bearing CTS No.924 is scheduled for sale. Upon enquiry, defendant No.1, though she does not have any subsisting right, title and interest exclusively to alienate the suit properties, tried to make alienation of the properties. In this regard, the plaintiff also got published a notice in the daily newspaper "Tarun Bharat" dated 22.09.2003 and brought to the notice of the public that the plaintiff and defendant No.1 are the joint holders of the said property and no one should make transactions in this regard. However, defendant No.1 to deprive the plaintiff's legitimate half share in suit properties, in collusion with her sister's sons namely, V. B. Tinaikar, Radhakrishna V. Shenvi got entered her name alone entered stating that the deceased had no other legal heirs. Defendant No.1 got created sale deeds dated 18.11.1991 and 19.11.1991 for nominal sale consideration in the name of Narahari Bhiku Pai, who is the father of defendant No.2 Sri. Madhusudan Shrinivas Kamat and defendant No.4 got their names entered in the CTS records to the portions of the suit schedule properties. The name of defendant No.5 came to be entered in the city survey records
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NC: 2025:KHC-D:11812 RFA No. 4032 of 2012 C/W RFA No. 4055 of 2012 RFA No. 4056 of 2012 HC-KAR during the year 1993 as one of alienees from defendant No.1. In the year 1997, Sri. Madhusudan Shrinivas Kamat sold his portion of the property to defendant No.2. Defendant No.1 again made a sale deed in the name of defendant No.3 on 08.09.2003 by falsely getting her name entered the name in the city survey records.
7. It is further pleaded that defendant No.1 has not given any notice to the plaintiff for entering into transactions of sale deeds and entering the names in city survey records. Therefore, the plaintiff is not bound by any such transactions done by defendant No.1 in collusion with defendant Nos.2 to 5. Hence, defendant Nos.2 to 5 have not acquired any right, title and interest over the suit schedule properties. Therefore, the plaintiff has filed suit for partition and separate possession by claiming half share in all the suit schedule properties. WRITTEN STATEMENT:
8. Defendant No.1, defendant Nos.2 and 3 and defendant Nos.4 and 5 have appeared through their Advocates and filed separate written statements. Defendant No.1 contended
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NC: 2025:KHC-D:11812 RFA No. 4032 of 2012 C/W RFA No. 4055 of 2012 RFA No. 4056 of 2012 HC-KAR that the suit filed by the plaintiff is false, frivolous, speculative and vexatious one. The plaintiff has not furnished the description of the suit schedule properties independently with their boundaries.
9. It is denied that the Anant Mukund Shanbhag was the propositus in the pedigree. It is admitted that the relationship of plaintiff and defendant No.1 to the deceased Anant Mukund Shanbhag is as follows: Defendant No.1 admitted that she is the wife of Anant Mukund Shanbhag and plaintiff is the daughter. It is denied that Anant Mukund Shanbhag is the original propositus. It is denied that the plaintiff is residing at Belgaum since 25 years and she got married in the year 1948 and as her children were prosecuting their education and resided with defendant No.1, therefore, the plaintiff used to come occasionally to house of defendant No.1. It is denied that the Anant Mukund Shanbhag was native of Kumta and he came to Belgaum for earning his livelihood and worked at hotel and invested huge amounts money for establishing hotel. It is denied that Anant Mukund Shanbhag had earned and invested money for purchasing the suit schedule properties. Anant Mukund
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NC: 2025:KHC-D:11812 RFA No. 4032 of 2012 C/W RFA No. 4055 of 2012 RFA No. 4056 of 2012 HC-KAR Shanbhag purchased house properties in Mahatma Phule Road, Shahapur, Belgaum, out of the income earned from hotel business. It is denied that the properties bearing R.S.No.201/A is self acquired properties of late Anant Mukund Shanbhag. Anant Mukund Shanbhag constructed a residential blocks from the earnings of the hotel business and shifted his residence to one of the residential blocks by giving other residential premises on rent basis and was earning additional income. It is admitted that the said residential premises came to be numbered as CTS Nos.923 to 927 and the name of Anant Mukund Shanbhag was entered in the city survey records as holder, but R.S.No.201/A stood in the name of defendant No.1. Defendant No.1 due to her old age was unable to manage the suit properties; therefore, she sold the properties in CTS No.924 in favour of defendant No.3 under a registered sale deed.
10. After the death of Anant Mukund Shanbhag, defendant No.1 and the plaintiff by way of mutual oral partition allotted the suit schedule properties in favour of defendant No.1. The said oral partition was made in the presence of the brother of this defendant-Harishchandra Madhava Pai, since Anant
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NC: 2025:KHC-D:11812 RFA No. 4032 of 2012 C/W RFA No. 4055 of 2012 RFA No. 4056 of 2012 HC-KAR Mukund Shanbhag was taken care of by him till his death. The said partition was effected between the plaintiff and defendant No.1.
11. Defendant No.1 denied to deprive the legitimate half share of the plaintiff in collusion got entered her name alone. It is asserted that defendant No.1 alone was the owner of the suit schedule properties and she was enjoying the suit schedule properties as the absolute owner and sold the properties in favour of the father of defendant No.2-Madhusudhan Kamat and defendant No.4. Further, it is stated that the son of the plaintiff died and after his death, the garage that was being run by him was let out the rental income of the suit schedule properties is being collected by grandson of the plaintiff.
12. It is sum and substance of the contention taken in the written statement that the suit schedule properties were under the absolute ownership of defendant No.1 alone and she was having right, title and interest over the suit schedule properties; thus, she sold the said properties in favour of defendant Nos.2 to 5 and therefore, defendant Nos.2 to 5 are bona fide purchasers. After making enquiry only and after
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NC: 2025:KHC-D:11812 RFA No. 4032 of 2012 C/W RFA No. 4055 of 2012 RFA No. 4056 of 2012 HC-KAR confirmation of the fact that defendant No.1 was the sole owner of the suit properties, they purchased the suit schedule properties. Thus, defendant Nos.2 to 5 are bona fide purchasers and thus, the plaintiff does not have any right to a share in the suit properties. Hence, prays to dismiss the suit.
13. Upon the pleadings, the Trial Court has framed the following issues:
1. Whether the plaintiff proves that the description of the suit property is true and correct?
2. Whether the plaintiff proves that the pedigree given in para 2 of the plaint is true and correct?
3. Whether the defendant No.1 proves that there was an oral partition by way of mutual partition between plaintiff and defendant No.1 before filing of this suit?
4. Whether the defendant No.1 proves that she is in exclusive possession and enjoyment of the suit properties and she is the absolute owner of the suit properties?
5. Whether the plaintiff proves that she is entitled for a declaration that the sale transactions dated 18/11/1991, 19/11/1991,
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NC: 2025:KHC-D:11812 RFA No. 4032 of 2012 C/W RFA No. 4055 of 2012 RFA No. 4056 of 2012 HC-KAR 19/11/1991, 29/3/1993, 29/3/1993, 16/2/1997 and 8/9/2003 are not binding upon plaintiff's legitimate share?
6. Whether the plaintiff is entitled for a share in the suit properties?
7. Whether the plaintiff proves that she is entitled for mense profits? If so what is the question?
8. Whether the defendant No.2 and 3 prove that the suit is barred by time?
9. Whether the defendants prove that the suit is not maintainable as the plaintiff being a married daughter has no locus standi to claim partition?
10. Whether the valuation of the suit properties and the court fee paid is proper?
11. Whether the suit is bad for non-joinder of all the joint family properties and non-joinder of necessary parties?
12. What order or decree?
14. In order to prove the case, the Power of Attorney (POA for short) of plaintiff is examined as PW-1 and got marked documentary evidence as Exs.P-1 to P-12. On behalf of the defendants, defendant No.2 is examined as DW-1, defendant No.5 is examined as DW-2, defendant No.4 is examined as
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NC: 2025:KHC-D:11812 RFA No. 4032 of 2012 C/W RFA No. 4055 of 2012 RFA No. 4056 of 2012 HC-KAR DW-3 and one more witness is examined as DW-4 and got marked documentary evidence as Exs.D-1 to D-51. REASONINGS OF TRIAL COURT:
15. The Trial Court after appreciating the evidence on record, both oral and documentary, has decreed the suit declaring that the plaintiff is entitled to half share in the suit schedule properties and also declared that the sale deeds executed by defendant No.1 dated 18.11.1991, 19.11.1991, 19.11.1991, 19.11.1991, 29.03.1993, 29.03.1993, 16.02.1997 and 08.09.2003 are not binding upon the plaintiff's legitimate share. The Trial Court assigned reasons that the suit schedule properties are joint family properties of the plaintiff and defendant No.1. The suit schedule properties were purchased by Anant Mukund Shanbhag and the relationship between the plaintiff and defendant No.1 is admitted as the plaintiff is the daughter and defendant No.1 is the wife of Anant Mukund Shanbhag. When this being the fact, both the plaintiff and defendant No.1 have equal share over the suit schedule properties.
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NC: 2025:KHC-D:11812 RFA No. 4032 of 2012 C/W RFA No. 4055 of 2012 RFA No. 4056 of 2012 HC-KAR
16. Further, based on the evidence of DW-4 and other documents of sale deeds, it is held that defendant No.1 sold undivided half share to defendant Nos.2 to 5. Therefore, plaintiff being the daughter of Anant Mukund Shanbhag is entitled to half share, thus decreed the suit. Further, the Trial Court held that though the defendants have taken contention that there was oral partition between the plaintiff and defendant No.1, but failed to prove that there was oral partition and entire suit schedule properties were given to the share of defendant No.1. Therefore, with all these observations, decreed the suit.
17. Defendant Nos.2 to 5 filed their separate respective appeals above stated by raising various grounds in the memorandum of appeal contending that the Trial Court has not framed proper issues. When it is prayer of the plaintiff that challenges the sale deeds, then there ought to have been an issue as to whether the sale deed impugned are liable to be set aside. Further, the defendants have taken contention that defendant Nos.2 and 3 are bona fide purchasers, but in this regard, there is no proper issue.
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NC: 2025:KHC-D:11812 RFA No. 4032 of 2012 C/W RFA No. 4055 of 2012 RFA No. 4056 of 2012 HC-KAR SUBMISSIONS OF COUNSEL FOR THE APPELLANTS/ DEFENDANTS:
18. Learned counsel for the appellants/defendants argued that the plaintiff was married to one Girish Shrinivas Pai for 58 years back and was residing in the house of her husband; thus, on marriage, she ceased to be a member of family of the family of her parents and acquired membership in the house of house of her husband. Therefore, the plaintiff has no right to claim partition in the suit schedule properties.
19. Further argued that after death of Anant Mukhund Shanbag on 22.09.1980, the name of defendant No.1 alone was entered in the Property Register Card and this fact was not challenged by the plaintiff and she has not filed the suit within 12 years from the date of death of her father, but she filed the suit in the year 2003. Thus, the suit filed by the plaintiff is barred by limitation.
20. Further, argued that the suit is based on multiple causes of action and period of limitation would begin to run from the date when the right to sue to first accrues and thus the successive violation of right will not give rise to fresh cause and
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NC: 2025:KHC-D:11812 RFA No. 4032 of 2012 C/W RFA No. 4055 of 2012 RFA No. 4056 of 2012 HC-KAR according to the plaintiff, the 1st sale deed alleged to have been executed on 18.11.1991 and the name of the purchaser was duly entered in the Property Register Card. Thus, the suit is barred by limitation.
21. Further argued that after the demise of Anant Mukhund Shanbag, there was mutual partition between the plaintiff and defendant No.1 and the plaintiff was also given some monitory benefits and the suit schedule properties were allotted to defendant No.1; thus, defendant No.1 alone has become owner. Thus, defendant Nos.2 and 3 have purchased the suit schedule properties after confirmation of this; therefore, the defendants are bona fide purchasers. Though the plaintiff knew all the facts but did not enter into witness box therefore, the plaintiff's standing absent from giving evidence before the Court and examining the plaintiff through a POA holder is amounts to suppression of facts before the Court. Thus, prays to allow the appeal and set aside the judgment and decree passed by the Trial Court.
22. Further raised ground that the Trial Court has committed error in applying the judgment of Hon'ble Apex Court
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NC: 2025:KHC-D:11812 RFA No. 4032 of 2012 C/W RFA No. 4055 of 2012 RFA No. 4056 of 2012 HC-KAR in the case of G. SEKAR VS. GEETHA AND OTHERS2, which held that the Hindu Succession Act, 1956 (for short 'the H.S. Act, 1956) (amendment Act 2005) is not in retrospective operation so far as the rights of the daughter is concerned. The plaintiff knew very well about the sale transactions made by defendant No.1 in favour of defendant Nos.2 to 5 but kept herself mute on the sale transactions, but suddenly woke up in the year 2003 and filed suit which itself shows the conduct of the plaintiff as it was instigated by someone else to institute false suit. Thus, pray to allow the appeal by setting aside the judgment and decree passed by the Trial Court.
23. Further submitted that defendant No.1 died before commencement of evidence of the plaintiff. When defendant No.1 had stated in the written statement that defendant No.1 alone is exclusive owner of the suit schedule properties, this averment is binding on the plaintiff since the plaintiff alone is legal heir of defendant No.1. By placing reliance on Sections 32 and 33 of the Indian Evidence Act, 1872 (for short 'the I.E. Act, 1872).
2 (2009) 6 SCC 99
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NC: 2025:KHC-D:11812 RFA No. 4032 of 2012 C/W RFA No. 4055 of 2012 RFA No. 4056 of 2012 HC-KAR
24. Further submitted that all the sale deeds made by defendant No.1 are between the period from 1991 to 2003, which were prior to amendment made to the Section 6 of the H.S. Act, 1956. Therefore, where alienations through sale deeds were made before the appointed day of 20.12.2005, the benefit of amended Section 6 of the H.S. Act, 1956 is not applicable to the plaintiff. Hence, all the alienations were made by defendant No.1 are saved and therefore, Section 6 of the H.S. Act, 1956 is applicable in the case and the alienations were made prior to 20.12.2005; therefore, the plaintiff is not entitled to an equal share as per Section 6 of the H.S. Act, 1956.
25. Further submitted that plaintiff is the daughter of defendant No.1 and Anant Mukhund Shanbhag. Defendant No.1 died before commencement of plaintiff's evidence, but the plaintiff has not filed re-joinder. Therefore, in view of non filing of re-joindeer, whatever contention taken by defendant No.1 in her written statement is binding on the plaintiff since the plaintiff is alone legal heir of defendant No.1. Therefore, the plaintiff is estopped from contending that the suit schedule properties are joint family properties as per Section 115 of the I.E. Act, 1872.
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NC: 2025:KHC-D:11812 RFA No. 4032 of 2012 C/W RFA No. 4055 of 2012 RFA No. 4056 of 2012 HC-KAR Further submitted that these properties are not included hence, the suit filed for partial partition is not maintainable. Therefore, the appellants/defendants pray to allow the appeal by setting aside the judgment and decree passed by the Trial Court.
26. In support of the arguments, learned counsel for the appellants/defendants places reliance on the following judgment of Hon'ble Supreme Court in the case of UMA DEVI AND OTHERS VS. ANAND KUMAR AND OTHERS3 (Uma Devi case).
SUBMISSION OF COUNSEL FOR THE RESPONDENT/ PLAINTIFF:
27. On the other hand, learned counsel for the plaintiff/respondent submitted that Section 8 of the H.S. Act, 1956 is applicable in the present case, but not Section 6 of the H.S. Act, 1956, as Section 6 of the H.S. Act, 1956, is applicable only to coparcenary properties. In the present case, the suit schedule properties are not coparcenary properties of the plaintiff and defendant No.1, but they are joint family properties as Anant Mukhund Shanbhag had acquired the properties out of 3 (2025) 5 SCC 198
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NC: 2025:KHC-D:11812 RFA No. 4032 of 2012 C/W RFA No. 4055 of 2012 RFA No. 4056 of 2012 HC-KAR his own earnings; thus Section 8 of the H.S. Act, 1956 is applicable but not Section 6 of the H.S. Act, 1956.
28. Further submitted that when Section 6 of the H.S. Act, 1956 is not applicable, then there is no question of considering that all the alienations were made prior to date of appointed day hence the plaintiff is entitled to her share. Defendant No.1 sold all the suit schedule properties to defendant Nos.2 to 5 which includes the legitimate half share of the plaintiff also. In the sale deeds, it is written that defendant No.1 is selling undivided half share, which means defendant No.1 knew the fact that she was selling half share only and which is also known by defendant Nos.2 to 5.
29. Further submitted that after the death of Anant Mukhund Shanbhag, both the plaintiff and defendant No.1 become tenants in common since the suit schedule properties are self acquired properties of Anant Mukhund Shanbhag. Therefore, Section 8 of the H.S. Act, 1956 is applicable. Further submitted that after the death of defendant No.1, her written statement is not binding on the plaintiff; thus Sections 32 and 33 of the I.E. Act, 1872 are not applicable. Therefore, justified the
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NC: 2025:KHC-D:11812 RFA No. 4032 of 2012 C/W RFA No. 4055 of 2012 RFA No. 4056 of 2012 HC-KAR judgment and decree passed by the Trial Court in giving half share to the plaintiff.
30. In support of the arguments, learned counsel for the respondent/plaintiff places reliance on the judgment of Hon'ble Supreme Court in the case of VINEETA SHARMA vs. RAKESH SHARMA AND OTHERS4 (Vineeta case) and also the judgment of this Court in the case of JAYASHREE JAYANTH W/O. JAYANTH BALAKRISHNA VS. N. KRISHNASWAMY S/O. P.B. NANJAIAH AND OTHERS5 (Jayashree Jayanth case).
POINTS FOR CONSIDERATION:
31. Upon hearing the arguments and perusal of the materials placed on record, the following points would arise for my consideration:
i. Whether, under the facts and circumstances involved in the case, Section 6 of the Hindu Succession Act, 1956 is applicable or Section 8 of the Hindu Succession Act, 1956 is 4 (2020) 9 SCC 1 5 RFA No.1226/2016 dated 22.10.2024
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NC: 2025:KHC-D:11812 RFA No. 4032 of 2012 C/W RFA No. 4055 of 2012 RFA No. 4056 of 2012 HC-KAR applicable, so far as right of inheritance is concerned to the plaintiff and defendant No.1? ii. Whether, under the facts and circumstances involved in the case, the plaintiff proves that she is having ½ share in the suit schedule properties by proving the suit schedule properties are joint family properties but not coparceners properties?
iii. Whether, under the facts and circumstances involved in the case, the defendants prove that defendant No.1 alone is exclusive owner of the suit schedule properties and thus the sale made by defendant No.1 to defendant Nos.2 to 5 claiming as per her exclusive right over the suit schedule properties; thus, defendant Nos.2 to 5 are bona fide purchasers?
iv. Whether, under the facts and circumstances involved in the case, defendant No.1 proves that there was oral partition between the plaintiff and defendant No.1 after the death of Anant Mukhund Shanbhag; thus, by virtue of said oral partition, defendant No.1 alone acquired the suit schedule properties?
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NC: 2025:KHC-D:11812 RFA No. 4032 of 2012 C/W RFA No. 4055 of 2012 RFA No. 4056 of 2012 HC-KAR v. Whether, the judgment and decree passed by the Trial Court requires any interference by this Court?
REASONS:
32. Upon considering the pleadings in the plaint and written statement and also the evidence of the parties adduced during the trial, one thing is admitted that the suit schedule properties are self-acquired properties are self acquired properties of Anant Mukhund Shanbhag as he acquired them during his lifetime with his earned money. The relationship between the deceased Anant Mukhund Shanbhag, the plaintiff and defendant No.1 are not in dispute as the plaintiff is the only daughter and defendant No.1 is the wife of Anant Mukhund Shanbhag.
33. Learned counsel for the appellants/defendants much argued on the point that suit schedule properties are coparceners properties and all the sale transactions made by defendant No.1 were prior to the appointed date 20.12.2005 through registered sale deeds and such alienations made prior to the appointed date; hence, as per the provision of Section 6 of the H.S. Act,
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NC: 2025:KHC-D:11812 RFA No. 4032 of 2012 C/W RFA No. 4055 of 2012 RFA No. 4056 of 2012 HC-KAR 1956, the plaintiff is not coparcener thus not entitled ½ share in the suit schedule properties. It is assertion of the appellants/defendants that Section 8 of the H.S. Act, 1956 is not applicable, but Section 6 of the H.S. Act, 1956 is applicable. Therefore, with reference to the alienations made in the present case, which were from the year 1991 to 2003, prior to the appointed date in the provision of Section 6 of the H.S. Act, 1956; thus, the plaintiff is not entitled to an equal share in the suit schedule properties, whereas, it is assertion of the counsel for the respondent/plaintiff that Section 6 of the H.S. Act, 1956 is not applicable, but Section 8 of the H.S. Act, 1956 is applicable. Thus, after the death of Anant Mukhund Shanbhag, the plaintiff and defendant No.1 being daughter and wife of Anant Mukhund Shanbhag respectively are equally entitled ½ share in the suit schedule properties.
34. The coparcenary is concept of Joint Hindu Family constituting a coparcenary, which includes a common male ancestor with his lineal descendants in the male line within four degrees counting from, and inclusive of, such ancestor i.e., three degrees exclusive of the ancestor. The Hon'ble Supreme Court in
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NC: 2025:KHC-D:11812 RFA No. 4032 of 2012 C/W RFA No. 4055 of 2012 RFA No. 4056 of 2012 HC-KAR the case of STATE OF MAHARASHTRA VS. NARAYAN RAO6 has held that a Hindu coparcener is, however, a narrower body than the joint family. Traditionally, only males who acquire by birth an interest in the joint of a coparcenary property can be members of the coparcenary are become coparceners. Thus, a male member of a joint family and his sons, grandsons and great-grandsons constitute a coparcenary.
35. The Hon'ble Supreme Court in the case of VINEETA SHARMA (supra), it is observed as follows:
"The coparcenary property is one, which is inherited by Hindu from his father grandfather and great grandfather. Consitituted from others is held in his rights and it cannot be treated as forming part of the coparcenery. The properties in coparcenery is held as joint owners."
36. Under these circumstances, whether Section 6 of the H.S. Act, 1956 or Section 8 of the H.S. Act, 1956 is applicable is the question to be considered in the present case in the context of the factual background of the case.
37. It is admitted fact of both the parties that Anant Mukhund Shanbhag acquired the suit schedule properties out of 6 (1985) 2 SCC 321
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NC: 2025:KHC-D:11812 RFA No. 4032 of 2012 C/W RFA No. 4055 of 2012 RFA No. 4056 of 2012 HC-KAR his earned money; the plaintiff and defendant No.1 are the daughter and wife of Anant Mukhund Shanbhag respectively. Therefore, the suit schedule properties are not coparcenary properties. The suit schedule properties are proved to be joint family properties of the plaintiff and defendant No.1. When this being the fact proved in the present case as admitted by both the parties, the suit schedule properties cannot said to be coparcenary properties but joint family properties.
38. Section 6 of the Hindu Succession Act, 1956 reads as follows:
6. Devolution of interest in coparcenary property. --
(1) On and from the commencement of 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
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NC: 2025:KHC-D:11812 RFA No. 4032 of 2012 C/W RFA No. 4055 of 2012 RFA No. 4056 of 2012 HC-KAR 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 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
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NC: 2025:KHC-D:11812 RFA No. 4032 of 2012 C/W RFA No. 4055 of 2012 RFA No. 4056 of 2012 HC-KAR pre-deceased son or a pre-deceased daughter, as the case may be.
Explanation. --For the purposes of this sub- section, the interest of a 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.
(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,
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NC: 2025:KHC-D:11812
RFA No. 4032 of 2012
C/W RFA No. 4055 of 2012
RFA No. 4056 of 2012
HC-KAR
who was born or adopted prior to the
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 (16 of 1908) or partition effected by a decree of a court."
39. Section 8 of the Hindu Succession Act, 1956 reads as follows:
"8. General rules of succession in the case of males.--The property of a male Hindu dying intestate shall devolve according to the provisions of this Chapter--
(a) firstly, upon the heirs, being the relatives specified in Class I of the Schedule;
(b) secondly, if there is no heir of Class I, then upon the heirs, being the relatives specified in Class II of the Schedule;
(c) thirdly, if there is no heir of any of the two classes, then upon the agnates of the deceased; and
(d) lastly, if there is no agnate, then upon the cognates of the deceased."
40. For applicability of Section 6 of the H.S. Act, 1956 must be coparcenary properties. Though a daughter is
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NC: 2025:KHC-D:11812 RFA No. 4032 of 2012 C/W RFA No. 4055 of 2012 RFA No. 4056 of 2012 HC-KAR recognized as coparcener by way of amendment made to Section 6 of the H.S. Act, 1956, but the properties are not coparcenary properties as stated above. Therefore, Section 6 of the H.S. Act, 1956 is not applicable in the present case. After the death of Anant Mukhund Shanbhag, the right of inheritance in the present case is as per Section 8 of the H.S. Act, 1956.
41. Section 6 of the H.S. Act, 1956 is the Speci and Section 8 of the H.S. Act, 1956 is the Gnre. When, Section 6 of the H.S. Act, 1956 is not applicable therefore, there is no question of applicability of the embargo put in the provision (2) of Section 6 of the H.S. Act, 1956; thus, Section 8 of the H.S. Act, 1956 is applicable.
42. The Division Bench of this Court in the case of Jayashree Jayanth (supra) at paragraph No.20 held as follows:
"20. Section 8 is in relation to intestate succession of a male Hindu. Intestate succession obviously connotes a meaning that it must be in relation to a property which must absolutely belong to a male Hindu, he may acquire it by his own exertion or from anybody other than his male ancestor. In other words self acquired or separate property of a male Hindu becomes subject matter of intestate succession."
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NC: 2025:KHC-D:11812 RFA No. 4032 of 2012 C/W RFA No. 4055 of 2012 RFA No. 4056 of 2012 HC-KAR
43. Section 8 of the H.S. Act, 1956 deals with intestate succession of a male Hindu. Where the properties are coparcenary properties of a male Hindu or joint family properties of male Hindu or self-acquired properties of male Hindu and after death of male Hindu, general law of inheritance is as per Section 8 of the H.S. Act, 1956.
44. For applicability of Section 6 of the H.S. Act, 1956, the concept of coparcenarship is applicable, but considering the facts and circumstances involved in the case, the suit schedule properties were acquired by Anant Mukhund Shanbhag and thus, those are self-acquired properties of Anant Mukhund Shanbhag. After the death of Anant Mukhund Shanbhag, the devolution is as per the Section 8 of the H.S. Act, 1956, but not Section 6 of the H.S. Act, 1956. When a male Hindu dies intestate, the succession is as per the Section 8 of the H.S. Act, 1956.
45. The Hon'ble Supreme Court in the case of UTTAM VS. SAUBHAG SINGH7, regarding the principles govern is stated at paragraph No.18, which reads as under: 7
(2016) 4 SCC 68
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NC: 2025:KHC-D:11812 RFA No. 4032 of 2012 C/W RFA No. 4055 of 2012 RFA No. 4056 of 2012 HC-KAR "18. Some other judgments were cited before us for the proposition that joint family property continues as such even with a sole surviving coparcener, and if a son is born to such coparcener thereafter, the joint family property continues as such, there being no hiatus merely by virtue of the fact there is a sole surviving coparcener. Dharma Shamrao Agalawe v. Pandurang Miragu Agalawe, Sheela Devi v. Lal Chand and Rohit Chauhan v. Surinder Singh were cited for this purpose. None of these judgments would take the appellant any further in view of the fact that in none of them is there any consideration of the effect of Sections 4, 8 and 19 of the Hindu Succession Act. The law, therefore, insofar as it applies to joint family property governed by the Mitakshara School, prior to the amendment of 2005, could therefore be summarised as follows:
(i) When a male Hindu dies after the commencement of the Hindu Succession Act, 1956, having at the time of his death an interest in Mitakshara coparcenary property, his interest in the property will devolve by survivorship upon the surviving members of the coparcenary (vide Section 6).
(ii) To proposition (i), an exception is contained in Section 30 Explanation of the Act, making it clear that notwithstanding anything contained in the Act, the interest of a male Hindu in Mitakshara coparcenary property is property that can be disposed of by him by will or other testamentary disposition.
(iii) A second exception engrafted on proposition (i) is contained in the proviso to Section 6, which states that if such a male Hindu had died leaving behind a female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative surviving him,
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NC: 2025:KHC-D:11812 RFA No. 4032 of 2012 C/W RFA No. 4055 of 2012 RFA No. 4056 of 2012 HC-KAR then the interest of the deceased in the coparcenary property would devolve by testamentary or intestate succession, and not by survivorship.
(iv) In order to determine the share of the Hindu male coparcener who is governed by Section 6 proviso, a partition is effected by operation of law immediately before his death. In this partition, all the coparceners and the male Hindu's widow get a share in the joint family property.
(v) On the application of Section 8 of the Act, either by reason of the death of a male Hindu leaving self-acquired property or by the application of Section 6 proviso, such property would devolve only by intestacy and not survivorship.
(vi) On a conjoint reading of Sections 4, 8 and 19 of the Act, after joint family property has been distributed in accordance with Section 8 on principles of intestacy, the joint family property ceases to be joint family property in the hands of the various persons who have succeeded to it as they hold the property as tenants-in-common and not as joint tenants."
46. Therefore, as per Section 8 of the H.S. Act, 1956, the right of inheritance of the plaintiff and defendant No.1 is to be determined, but not as per Section 6 of the H.S. Act, 1956. Though the sale deeds are prior to the appointed date, but the proviso in Section 6 of the H.S. Act, 1956 is not applicable in the
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NC: 2025:KHC-D:11812 RFA No. 4032 of 2012 C/W RFA No. 4055 of 2012 RFA No. 4056 of 2012 HC-KAR present case so as to say that the sale deeds are saved. After the death of Anant Mukhund Shanbhag, section 8 of the H.S. Act is applicable. Therefore, the inheritance shall be as per Section 8 of the H.S. Act, 1956. Hence, both the plaintiff and defendant No.1 being daughter and wife of Anant Mukhund Shanbhag being Class-I legal heir herein, are entitled to an equal share in the suit schedule properties.
47. The sale deeds produced by the defendants, in which the recital states that defendant No.1 is selling undivided ½ share. Therefore, defendant No.1 knew the fact that she was having only half share. DW-4 also admitted in the cross- examination that both the plaintiff and defendant No.1 were having equal rights over the suit schedule properties. Therefore, the plaintiff is entitled to half share in the suit schedule properties.
48. It is the contention of the defendants that after the death of Anant Mukhund Shanbhag, there was mutual oral partition between the plaintiff and defendant No.1 and defendant No.1 has obtained the rights over entire properties as per the defendants, but this fact is not proved by any evidence. If there
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NC: 2025:KHC-D:11812 RFA No. 4032 of 2012 C/W RFA No. 4055 of 2012 RFA No. 4056 of 2012 HC-KAR was an oral partition and in the Property Register Cards and in the revenue records, the mutation of the name of defendant No.1 ought to have been by virtue of partition, but that is not found in the revenue records and in the Properties Register Cards. Therefore, the defendants have failed to prove that there was an oral partition. Just because, the plaintiff has married and had been to her husband's house that does not seize her right of succession for claiming a share in the suit schedule properties. After the death of Anant Mukhund Shanbhag, both the plaintiff and defendant No.1 have become tenants in common. Therefore, Section 8 of the H.S. Act, 1956 is applicable.
49. Defendant No.1 filed a written statement and before the commencement of evidence of the plaintiff, defendant No.1 died. This fact is not disputed. Therefore, it is the contention urged by the counsel for the appellants/defendants that the plaintiff being the only legal heir, being the daughter, is bound by the written statement filed by defendant No.1, thus, the plaintiff is estopped from contending that the properties are joint family properties and also after the death of defendant No.1, whatever her written statement has become dying declaration as
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NC: 2025:KHC-D:11812 RFA No. 4032 of 2012 C/W RFA No. 4055 of 2012 RFA No. 4056 of 2012 HC-KAR per explanation (6) of Section 32 of the I.E. Act, 1872. This argument does not have any merit, just because defendant No.1 died, her written statement is not becoming dying declaration. It is a just written statement only and just because defendant No.1 died that written statement does not attained characteristic of a dying declaration.
50. The written statement, at the most, is what defendant No.1 said about her defence in the case and not more than that. If a party in the suit dies after filing the written statement, then his/her written statement cannot be construed as dying declaration. Also, the said written statement is not binding on the plaintiff, though the plaintiff is the daughter of defendant No.1. Therefore, Section 115 of the I.E. Act, 1872, is also not applicable in the present case.
51. Therefore, the Trial Court is correct in decreeing the suit as the succession of inheritance in the present case is applicable as per Section 8 of the H.S. Act, 1956. Hence, I accordingly, answer point No.(i) that the applicability of inheritance of properties is as per Section 8 of the H.S. Act, 1956
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NC: 2025:KHC-D:11812 RFA No. 4032 of 2012 C/W RFA No. 4055 of 2012 RFA No. 4056 of 2012 HC-KAR and point No.(ii) in the affirmative and point Nos.(iii) to (v) in the Negative. Therefore, the appeals are liable to be dismissed.
52. In the result, I proceed to pass the following:
ORDER i. The appeals in RFA Nos.4032, 4055 and 4056 of 2012 are dismissed.
ii. The judgment and decree dated 17.01.2012 passed in O.S.No.278/2003 on the file of I Additional Senior Civil Judge, Belgaum is hereby confirmed.
iii. Registry is directed to transmit the Trial Court Records along with a copy of this judgment to the Trial Court.
iv. No order as to costs.
In view of disposal of the appeals, pending IAs', if any, shall stand disposed of.
Sd/-
(HANCHATE SANJEEVKUMAR) JUDGE SRA List No.: 19 Sl No.: 1