Karnataka High Court
Parvatibai vs Mangalabai on 9 November, 2022
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 9TH DAY OF NOVEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
RSA NO.563/2008 (P/SP)
Between:
1. Parvatibai W/o Gyanoba Mahkare
Caste: Maratha
Aged about 51 Years
Occ: Household and Agriculturist
2 Govind S/o Gyanoba Mahkare
Caste: Maratha
Aged about 28 Years
Occ: Agriculturist
3. Rukminibai D/o Gyanoba Mahkare
Caste: Maratha
Aged about 30 Years
Occ: Household
All are R/a Attarga village
Taluk Bhalki
...Appellants
(By Sri Rahul R. Asture, Advocate)
And:
1. Mangalabai D/o Gyanoba and
W/o Vishwambharrao
Caste: Maratha
Aged about 30 Years
Occ: Household
2
2. Mathurabai W/o Gyanoba Mahkare
Caste: Maratha
Aged about 52 Years
Occ: Household
Both are R/a Attarga village
Taluk Bhalki
Respondents
(By Sri Ajay Kumar A.K., Advocate for R1;
R2 served)
This Regular Second Appeal is filed under Section
100 of CPC praying to allow this appeal and to set aside
the judgment and decree dated 31.10.2007 made in
R.A.No.14/2007 (Old No.16/2002) file of the Presiding
Officer, Fast Track Court at Bhalki reversing the judgment
and decree dated 08.04.2002 made in O.S.No.134/1996
on the file of the Civil Judge (Jr.Dn.) Bhalki and to allow
the suit as prayed for.
This Appeal is coming on for further hearing this day,
the Court delivered the following:
JUDGMENT
The captioned second appeal is filed by the defendants feeling aggrieved by the quantification 3 done by the appellate Court in granting 1/3rd share to the plaintiff.
2. For the sake of convenience, the parties are referred to as per their rank before the trial Court.
3. The family tree is as under:
Jairam Vithalrao Gyanoba Pandurang Maturabai Parvatibai Def-4 Def-1 (First Wife) (Second Wife) Mangalabai Plf Govind Rukminibai Def-2 Def-3
4. The plaintiff claims to be the daughter of Gyanoba through first wife Maturabai, while the defendants are the children born through second wife Parvatibai. It is not in dispute that both the marriages 4 are before codification and therefore both the marriages are valid and the children born in the wedlock through first wife and second wife are legitimate children.
5. The plaintiff filed a suit for partition and separate possession by contending that in the family partition, her father Gyanoba was allotted suit property. Therefore, the plaintiff contended that she along with the defendants constitute Hindu joint family and she as the daughter is entitled for share in the suit schedule property.
6. On receipt of summons, the defendants filed written statement and stoutly denied the entire averments made in the plaint. The defendant have admitted the relationship, more particularly, the defendants have admitted that the plaintiff is the daughter born through first wife Maturabai. The 5 defendants claimed that defendant No.4 who is the mother of plaintiff is leading adulterous life and she has two sons by name Sanjay and Vishwanath and daughter by name Premalabai through second husband Keroba. The defendants further contended that the plaintiff was married in 1972 and she is residing in her husband's house at Hyderabad. Therefore, she cannot claim to be the member of joint family. The defendants however, contended that after death of Gyanoba, the defendants have orally partitioned the suit land in 1990 and hence sought for dismissal of the suit.
7. The plaintiff to substantiate her claim examined herself as P.W.1 and examined two witnesses as P.W.2 and P.W.3 and adduced documentary evidence vide Exs.P.1 to 11, while defendants examined the second wife as D.W.1 and one witness as D.W.2 and did not adduce 6 documentary evidence. The trial Court having examined oral and document evidence proceeded to dismiss the suit on the ground that the married daughter is not entitled for share in coparcenery properties. Consequently, dismissed the appeal.
8. The plaintiff feeling aggrieved by the judgment and decree of the trial Court, preferred an appeal before the lower appellate Court. The appellate Court has independently assessed oral and documentary evidence. The appellate Court having regard to the fact that the relations are not in dispute, did not accept the defence set up by the defendants. The contention of the defendants that there is oral partition was negatived by the appellate Court. The appellate Court found that defendant No.4 while contesting the suit has admitted that she has married and she is residing with her husband. The appellate Court has taken note of the written statement filed by 7 defendant No.4, wherein she has admitted and has consented for decree in favour of the plaintiff. The appellate Court held that the plaintiff is not a party to the oral partition and therefore, the alleged partition would not bind the plaintiff and she is entitled to seek legitimate share in the present suit. Referring to Section 6-A of the Hindu Succession Act, the appellate Court held that the plaintiff is entitled to seek her legitimate share in the property. The appellate Court accordingly, allowed the appeal and granted 1/3rd share to the plaintiff. The said preliminary decree is questioned before this Court. This Court vide order dated 19.10.2016 admitted the appeal on the following substantial questions of law:
(1) Whether the First Appellate
Court was right in granting
respondent/plaintiff 1/3rd share in the suit schedule properties?
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(2) Whether the First Appellate Court was right in not granting any share to appellant No.3/defendant No.3?
(3) Whether the First Appellate Court was right in allotting an extent of 1/3rd share each to the plaintiff and defendant Nos.1 and 2?"
9. The additional substantial question of law framed by this Court is reads as under:
"Whether appellate Court erred in not considering right of both the widows who take ½ share together notionally in the husband's share and therefore, modification done by the appellate Court is improper?"
10. Both the counsel have addressed their arguments on the substantial question of law framed by this Court today.
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11. The short point that needs consideration at the hands of this Court is as to whether the appellate Court erred in not awarding 1/3rd share jointly to defendant Nos.1 and 2. Gyanoba admittedly had two wives. It has come on record that defendant No.4 has contracted second marriage and she is living with her second husband. The plaintiff Mangalabai in the light of amendment to Section 6 of Hindu Succession Act and the principles laid down by the Apex Court in the case of Vineeta Sharma Vs. Rakesh Sharma and Others, reported in (2020) 9 SCC 1, has to be treated as coparcener. Similarly, defendant No.3 Rukminibai who is daughter born through second wife Parvatibai has also to be treated as coparcener. The subject matter of the suit is situated at Hyderabad Karnataka region. Parvatibai-defendant No.1 who is a widow will not take share independently. Therefore, this Court is of the view that the appellate Court erred 10 in not quantifying the share to defendant No.1 notionally. If plaintiff, defendant Nos.2 and 3 are treated as coparceners, defendant No.1 would be entitled for share notionally in the share of her husband Gyanoba. Defendant No.4 has married after death of Gyanoba and therefore, defendant No.1 alone is entitled to succeed her husband's share along with the plaintiff and defendant Nos.2 and 3.
12. Therefore, if 1/4th share is notionally allotted to Gyanoba, the plaintiff, defendant Nos.2 and 3 would take 1/4th share independently, while 1/4th share of Gyanoba has to be again re-distributed among his widow i.e., defendant No.1 and his children. Therefore, defendant No.1 is entitled for 1/16th share, while plaintiff and defendant Nos.2 and 3 will take 1/4th + 1/16th share. Therefore, plaintiff and defendant Nos.2 and 3 are entitled for 5/16th share each, whereas defendant No.1 is entitled for 1/16 th 11 share. The substantial question of law at Sl.Nos.1 to 3 are answered in the negative and additional substantial question of law framed today is answered in the affirmative.
13. For the foregoing reasons, I proceed to pass the following:
ORDER The Regular Second Appeal is allowed in part.
The preliminary decree drawn by the appellate Court in R.A.No.14/2007 is modified. The plaintiff and defendant Nos.2 and 3 are entitled for 1/4th share + 1/16th share (5/16th), whereas defendant No.1 is entitled for 1/16th share.
Draw modified decree accordingly.
Sd/-
JUDGE RSP