Karnataka High Court
Smt Ammajamma vs Nagaraju on 21 November, 2017
Bench: B.S.Patil, Aravind Kumar
RFA.1183/2017
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF NOVEMBER, 2017
PRESENT
THE HON'BLE MR.JUSTICE B.S.PATIL
&
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
R.F.A.No.1183/2017
BETWEEN
SMT.AMMAJAMMA,
D/O RANGASWAMY,
AGED ABOUT 41 YEARS,
R/O UDDANDAHALLI VILLAGE,
CHIKKANAHALLI POST,
TAVAREKERE HOBLI,
BENGALURU SOUTH TALUK,
BENGALURU DISTRICT. ... APPELLANT
(By Sri PATEL D.KARE GOWDA, ADV.)
AND
1. NAGARAJU,
S/O LATE RANGASWAMY,
AGED ABOUT 43 YEARS
2. SURESH,
S/O LATE RANGASWAMY,
AGED ABOUT 35 YEARS,
BOTH R/O BELLAKEMPANAHALLY VILLAGE
BIDADI HOBLI
RAMANAGARA TALUK & DIST
3. SRI RAGHAVENDRA NAIK
S/O SINGAPPA NAIKA
RFA.1183/2017
2
MAJOR
R/A NO.589, 8TH BLOCK
KORAMANGALA
BENGALURU-95. ... RESPONDENTS
THIS RFA FILED UNDER SECTION 96 OF CPC, AGAINST THE
JUDGMENT AND DECREE DTD:14.03.2017 PASSED IN
OS.NO.457/2014 ON THE FILE OF THE PRL. SENIOR CIVIL JUDGE
AND CJM, RAMANAGARAM., DISMISSING THE SUIT FOR
PARTITION.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
B.S.PATIL, J., DELIVERED THE FOLLOWING:
JUDGMENT
1. This appeal is filed under Section 96 of CPC by the plaintiff - Smt.Ammajamma challenging the judgment and decree dated 14.03.2017 passed by the Trial Court in O.S.No.457/2014 on the preliminary issue, thereby dismissing the suit as barred by law in terms of the proviso to Section 6(1) of Hindu Succession Act, 1956 as amended by Act 39 of 2005 (for short, 'the Act').
2. For the sake of convenience, parties are referred to by their ranks in the Trial Court.
3. We have heard the learned counsel for appellant and perused the entire materials on record. RFA.1183/2017 3
4. Undisputed facts are that appellant - plaintiff is the daughter of defendant No.1 and sister of defendants 2 & 3. She has instituted the suit seeking partition and separate possession of suit schedule properties bearing Sy.No.76 measuring 2 acres 17 guntas and Sy.No.77 measuring 2 acres 6 guntas, totally measuring 4 acres 23 guntas situated at Billakempanahalli Village, Bidadi Hobli, Ramanagara Taluk. It is an admitted fact that suit schedule properties had been alienated vide Sale Deed dated 22.09.2004 by defendants 1 to 3 in favour of defendant No.4, who is arrayed as respondent No.3 herein. Admittedly, suit schedule properties are the ancestral properties of the father of the plaintiff. Plaintiff claimed 1/4th share in the suit schedule properties contending inter alia that as she was a coparcener of the hindu joint family, she was entitled for share in the joint family property and the alienation made without her consent was not binding on her.
5. As defendants raised the question of maintainability of the suit, in the light of the proviso contained in Section 6(1) of the Act, the Trial Court considered the said issue as a preliminary issue and by referring to the judgment in the case of PRAKASH AND OTHERS Vs. PHULAVATI AND OTHERS - (2016) 2 RFA.1183/2017 4 SCC 36, it has come to the conclusion that the suit was not maintainable and the same was hit by the proviso to Section 6(1) of the Act.
6. Having heard the learned counsel for parties, the only point that arises for consideration is:
Whether the Trial Court is right in taking note of provisions contained under Section 6, particularly proviso to Section 6(1) of the Act while dismissing the suit?
7. It is the admitted fact that suit schedule properties are joint family properties. It is also an admitted fact that the father of the plaintiff - defendant No.1 along with his sons defendants 2 & 3 sold the suit schedule properties in favour of appellant/defendant No.4 on 22.09.2004. Section 6 of the Act which confers the status of coparcener and coparcenary rights in favour of a daughter of a coparcener and which came into force by virtue of Act 39 of 2005 with effect from 09.09.2005 enacts as under:
"6. Devolution of interest in coparcenary property.-(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a RFA.1183/2017 5 Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall, -
(a) by birth become a coparcener in her own right in the same manner as the son;
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:
Provided that nothing contained in this sub- section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.
(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being RFA.1183/2017 6 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 pre-deceased son or a pre-
deceased daughter, as the case may be.
(4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognize 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 RFA.1183/2017 7 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.
(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004."
8. As rightly contended by learned counsel for appellant proviso to Section 6(1) clearly states that nothing contained in sub-section (1) shall affect or invalidate any disposition or alienation of the property that had taken place before 20th day of December, 2004. In the instant case, the sale had taken place on 22.09.2004 well prior to the cut off date provided in the proviso. Therefore, based on the pleadings and the evidence RFA.1183/2017 8 of the plaintiff herself, the property which had been sold prior to 20.12.2004 could not have been the subject matter of any claim by the plaintiff by way of partition. The properties were not available to the family as on the cut off date because it had been disposed of by way of sale by that time. Therefore, question of maintaining the suit seeking partition did not arise. Alienation made prior to 20.12.2004 is saved. Hence, in our view, the Trial Court has rightly taken into consideration the provisions contained under Section 6(1) of the Act, particularly the proviso enacted therein.
9. In the case of PRAKASH AND OTHERS Vs. PHULAVATI AND OTHERS - (2016) 2 SCC 36, the Apex Court in paragraphs 22 and 23 has ruled as under:
"22. In this background, we find that the proviso to Section 6(1) and sub-section (5) of Section 6 clearly intend to exclude the transactions referred to therein which may have taken place prior to 20- 12-2004 on which date the Bill was introduced. Explanation cannot permit reopening of partitions which were valid when effected. Object of giving finality to transactions prior to 20-12-2004 is not to make the main provision retrospective in any manner. The object is that by fake transactions RFA.1183/2017 9 available property at the introduction of the Bill is not taken away and remains available as and when right conferred by the statute becomes available and is to be enforced. Main provision of the amendment in Sections 6(1) and (3) is not in any manner intended to be affected but strengthened in this way. Settled principles governing such transactions relied upon by the appellants are not intended to be done away with for period prior to 20-12-2004. In no case statutory notional partition even after 20-12-2004 could be covered by the Explanation or the proviso in question.
23. Accordingly, we hold that the rights under the amendment are applicable to living daughters of living coparceners as on 9-9-2005 irrespective of when such daughters are born. Disposition or alienation including partitions which may have taken place before 20-12-2004 as per law applicable prior to the said date will remain unaffected. Any transaction of partition effected thereafter will be governed by the Explanation."
10. It is, therefore, clear that as per the ruling of the Apex Court such a disposition which has taken place prior to 20.12.2004 as per law applicable at that time cannot be included for the purpose of conferring right on the daughter/coparcener.
RFA.1183/201710
In the result and for the foregoing, this appeal is dismissed.
Sd/-
JUDGE Sd/-
JUDGE PKS