Bangalore District Court
Smt.Yellamma vs N.Purushotham on 26 March, 2016
IN THE COURT OF XV ADDITIONAL CITY CIVIL &
SESSIONS JUDGE AT BANGALORE CITY( CCH.No.3)
Dated this the 26th day of March, 2016
Present: Dr. A.GURUMURTHY, Ph.D
XV Additional City Civil & Sessions Judge,
Bangalore
OS No. 645/2010
Plaintiffs: 1. Smt.Yellamma, aged about 60
years, W/o late Sri.
Narayanaswamy, residing at
C/o Sri.J.Venkatesh, No.35, 1st
Cross, Lakkasandra, Bangalore-
560030.
2. Smt.Bhuvaneshwari, aged
about 40 years, W/o Sri.B.
Kantharaj, residing at No.12, 1st
Street, Markham Road,
Ashoknagar, Bangalore-560025.
3. Smt.N.Manjula, aged about 36
years, W/o Sri.J.Venkatesh,
residing at No.35, Brindavan
paradise, 1st Cross,
Lakkasandra, Bangalore-
560030.
(By P & Co, I/P)
// VS //
Defendants: 1. N.Purushotham, aged about 43
years, S/o late
Sri.Narayanaswamy, residing at
No.4 (Old No.38/B), Ground
Floor Main House, 3rd Cross,
2 OS No.645/2010
Car Street, Ulsoor, Bangalore-
560008.
2. N.Kausal Ram, aged about 39
years, S/o late
Sri.Narayanaswamy, residing at
No.4 (Old No.38/B), 1st Floor
Main House, 3rd Cross, Car
Street, Ulsoor, Bangalore-
560008.
(D1 by Sri.N.S.B/B.R.D, Adv.,
D.2 - Exp.)
Date of institution of the suit : 30/1/2010
Nature of the suit : Suit for partition and
separate possession
Date of commencement of
recording of evidence : 1/8/2011
Date on which the judgment
was pronounced : 26/03/2016
Duration : day/s month/s year/s
00 12 05
JUDGMENT
1. Plaintiffs have filed this suit for partition and separate possession of 3/5th share in the suit property by metes and bounds.
3 OS No.645/2010
2. Pleadings in brief:
It is the case of the plaintiff that 1st plaintiff is the wife, plaintiffs No.2 and 3 are daughters and defendants are sons of deceased Narayanaswamy. The said Narayanaswamy was an employee in HAL and he has married Jayamma prior to 18/5/1955 as per the Hindu customs. The said Smt. Jayamma had no issues. As such, Narayanaswamy has married Yellamma (1st plaintiff). After the marriage, 1st plaintiff gave birth to plaintiffs No.2 and 3 and defendants.
It is further pleaded that Sri. Narayanaswamy had purchased the suit property i.e. property bearing No.4 (old No.38/B), 3rd Cross, Car Street, Ulsoor, Bangalore from Sri.M.Muthu Pillai under a registered sale deed in the name of his wife Smt. Jayamma on 16/8/1951 and that property became the absolute property of Sri. Narayanaswamy. The said sale transaction was took place prior to the enactment of Benami Transactions (Prohibition) Act, 1988. The said Smt. Jayamma was died intestate on 10/9/1993 i.e. after enactment of The Hindu Succession Act of 1956. As such, the property has suit property has devolved upon Narayanaswamy, as he was the sole legal heir of the deceased 4 OS No.645/2010 Smt. Jayamma. Thereafter, Sri. Narayanaswamy was died intestate on 17/12/1997, leaving behind his wife and children i.e. plaintiffs and defendants and they have succeeded the suit property and they claims that each one of them is entitle for partition and separate possession of 1/5th share each in the suit property and prayed the court to declare that plaintiffs are entitle for partition and separate possession of 3/5th share in the suit property by metes and bounds.
Incidentally, it has been pleaded that suit property consisting of one RCC building in the front portion and 2 Mangalore tiles roof houses in the hind portion. 1st defendant is residing in the ground floor and 2nd defendant is residing in the 1st floor of the RCC building. Plaintiffs No.2 and 3 are married and they are living in their matrimonial homes. 1st plaintiff is residing with the 3rd plaintiff, since, defendants have not bothered to look after their mother. So for, no partition was took place in the suit property in between plaintiffs and defendants. Prior to filing of the suit, plaintiffs have approached the defendants and they have requested the defendants to effect partition in the suit property and give the shares of plaintiffs, but defendants have not came forward to 5 OS No.645/2010 effect partition in the suit property and to give the shares of plaintiffs. Hence this suit for partition and separate possession.
Prior to filing of the suit, plaintiffs have issued legal notices to defendants on 24/11/2009, calling upon them to effect partition in the suit property and to give the shares of plaintiffs. Inspite of receipt of legal notices, defendants have not effected partition in the suit property.
3. 1st defendant has filed written statement and admitted the relationship between the parties and contended that suit is not maintainable either in law or on facts and prayed the court to dismiss the suit with exemplary costs and denied averments made in para 4,5,6,9 to 14 of the plaint and partly admitted averments made in para 8 of the plaint.
4. It is pleaded that Narayanaswamy was born on 15.7.1935 in a village called U. Puram, Denkni kote taluk, Tamilnadu. In the family partition some of the agricultural lands, cows, sheeps, goats were given to the share of Narayanaswamy. After partition, Narayanaswamy has sold 6 OS No.645/2010 away all those properties and migrated to Bangalore and started living with his wife Smt. Jayamma. Out of the sale proceeds, he has purchased a property bearing No.4 (old No.38/b), III cross, Car street, Bangalore - 8, measuring east to west 65.6 inches and north to south 30 feet i.e. suit property in the name of his wife Smt. Jayamma under registered sale deed dated 16.8.1951. At the time of sale transaction, Narayanaswamy was only 16 years old and he had purchased the suit property out of the sale proceeds of his ancestral property , as such, the said property was not the self acquired property of Narayanaswamy. Smt. Jayamma has not conceived a child for around 10 years. As such, Narayanaswamy has married Yellamma in the year 1965. Thereafter mis-understanding arisen between Narayanaswamy and Smt.Jayamma. Subsequently, Jayamma has filed a suit against Narayanaswamy in respect of suit property in O.S.No.52/1972, seeking declaration of her title to the suit property and that suit was dismissed on 8.10.1974. Thereafter, Narayanaswamy has filed a suit against Smt. Jayamma in respect of suit property before the Civil Judge Court, Bengaluru in O.S.10369/1994 for declaration of title 7 OS No.645/2010 and for mandatory injunction, to direct Smt. Jayamma to execute a Conveyance deed in favour of Narayanaswamy and she was died during the pendency of the suit. After the death of Smt. Jayamma suit property has devolved upon the Narayanaswamy, as he was the only legal heir of deceased Jayamma. After death of Jayamma, Narayanaswamy has demolished the old tiled roof house situated on the front portion, as it was in dilapidated condition and constructed a new RCC house measuring east to west 20 feet and north to south 27 feet, consisting of ground floor and first floor out of the salary savings of Narayanaswamy and out of the contribution made by 1st defendant, as he was working GTRE and drawing handsome salary. Thereafter, Narayanaswamy was died intestate on 17.12.1997. It is contended that suit property was the ancestral property of Narayanaswamy. As such, suit property was devolved upon defendants alone and not upon plaintiffs. As such, plaintiffs No.2 and 3 are not entitled for any share in the suit property. It is further contended that Narayanaswamy has married the 1st plaintiff, during the life time of his 1st wife Smt. Jayamma. As such, the marriage of 1st plaintiff with Narayanaswamy was not valid. 8 OS No.645/2010 In view of the same 1st plaintiff is not entitle for any share in the suit property.
5. It is further pleaded that during the life time of Narayanaswamy he has deposited some amount in the bank to perform the marriages of his two daughters (plaintiff No.2 and
3) As on the date of death of Narayanaswamy, there was a bank balance of Rs.1,94,680/- and that amount has transferred to S.B. accounts of plaintiff No.2 and 3 with the consent of defendants. In the year 1998 1st defendant has performed the marriages of plaintiff Nos.2 and 3 by spending Rs.4,00,000/- to perform the marriage of each one of them, by raising hand loans and paid interest at the rate of 2% p.m. After performing the marriages of plaintiff Nos.2 and 3, 1st defendant has married in the year 1999 and he has performed the marriage of 2nd defendant in the year 2000. Thereafter, oral partition took place between defendants. In that partition, ground floor of the RCC house and 2 tiled roof houses were fallen to the share of 1st defendant and in the same partition 1st floor of the RCC house and two more tiled roof houses were fallen to the share of 2nd defendant. After 9 OS No.645/2010 partition, defendants are in actual possession and enjoyment of their respective properties. Apart from it, 1st defendant has performed 'Shreemanthas' of plaintiffs No.2 and 3 and naming ceremonies of children of plaintiffs No.2 and 3 with lot of love and affections towards them. Apart from it, defendants have taken care of the 1st plaintiff, by providing food, shelter and cloths to her till July, 2006. Inspite of it, 1st plaintiff has lodged a false complaint against him with Ulsoor Police Station, at the instigation of plaintiffs No.2 and 3, alleging that 1st defendant has not looked after his mother (1st plaintiff) and not provided anything for her livelihood. Thereafter, defendants, after due consultation with each other, both of them have transferred lease agreements of three tiled roof houses in the name of 1st plaintiff and they have allowed her to stay in another house and they have permitted their mother (1st plaintiff ) to collect rents from rented houses. Plaintiffs No.2 and 3 are fully aware of it, even then, they have deliberately suppressed the same and they have approached the court not with clean hands and prayed the court to dismiss the suit.
10 OS No.645/2010
6. 2nd defendant has been placed exparte
7. Based upon pleadings, my learned predecessor has framed following:
ISSUES
1) Whether the plaintiffs prove that each of the plaintiff are having 1/5th share in the suit property?
2) Whether the defendants prove that after the
death of their father Narayanaswamy,
schedule properties devolves upon them as they are the legal heirs of Narayana Swamy through his 2nd wife?
3) Whether the defendants prove that 1st plaintiff being the 2nd wife of Narayana Swamy and plaintiffs No.2 and 3 are the daughters of Narayana Swamy are not having the right in the suit schedule property?
4) Whether the plaintiffs are entitled for partition and separate possession of their share in suit schedule property?
5) To what order or decree?11 OS No.645/2010
8. After framing of issues, 2nd plaintiff has entered the witness box and she has been examined as PW.1 and at her instance, documents were got marked as per Ex.P.1 to P.9 and at the time of cross-examination of PW 1 two documents were confronted and marked as Ex.D.1 and D.2 and closed plaintiff's side evidence. Thereafter, 1st defendant has entered the witness box and he has been examined as DW.1 and closed defendant's side evidence.
9. Heard arguments.
10. Based upon oral and documentary evidence placed on record, this court proceeds to answer above issues as under:
ISSUE No.1 : Partly in the affirmative. ISSUE No.2 : In the affirmative. ISSU E No.3 : In the negative. ISSUE No.4 : In the affirmative ISSUE No.5 : As per final order for the following:
REASONS
11. ISSUES No.1 to 4 : These four issues are taken together for common discussion to avoid repetition and 12 OS No.645/2010 overlapping, since these four issues are intrinsically inter-
related with each other.
12. Perused pleadings, wherein plaintiffs have pleaded that suit property has been purchased in the name of 1st wife of Narayanaswamy i.e. in the name of Smt.Jayamma in the year 1951 under a registered sale deed. At the time of purchase, there was one tiled roof house. In which, Narayanaswamy and his wife Smt.Jayamma were lived for around 10 years. Narayanaswamy was born and brought up in U.Puram, Denkinikote taluk, Tamilnadu and after his marriage with Smt.Jayamma, both of them were started living in the suit schedule property. Smt.Jayamma has not conceived a child for ten years. As such, Narayanaswamy has married Smt.Yellamma (1st plaintiff ). After marriage Narayanaswamy and his two wives were lived in suit schedule property for some time. In the meanwhile, Smt.Yellamma has gave birth to two male and two female children. Plaintiffs No.2 and 3 are daughters and defendants No.1 and 2 are sons of Narayanaswamy through his 2nd wife Smt.Yellamma. Smt.Jayamma was died intestate in the year 1993. After the 13 OS No.645/2010 death of Smt.Jayamma suit property has devolved upon her husband -Narayanaswamy, as he was the only legal heir of deceased Smt.Jayamma. After death of Jayamma Narayanaswamy has demolished tiled roof house and constructed an RCC building in the front portion consisting of ground floor and 1st floor. There are four old, small tiled roof houses in the hind portion. Sri.Narayanasway was died intestate in year 1997, leaving behind his wife and 4 children i.e. plaintiffs and defendants. In short, after the death of Narayanaswamy suit property has devolved upon plaintiffs and defendants, as they are the only legal heirs of deceased Narayanaswamy. It is further pleaded that defendant plaintiffs No.2 and 3 are residing in their respective matrimonial homes. 1st plaintiff is residing with the 3rd plaintiff since defendants have not bothered to take care of the well fare of 1st plaintiff. To protect the interest of 1st plaintiff, plaintiff No.2 and 3 have approached the defendants and requested them to effect partition in the suit properties and give the share of plaintiffs. The defendants have not acted upon the request of plaintiffs. Hence, this suit for partition 14 OS No.645/2010 and separate possession of 1/5th share each in the suit properties by metes and bounds.
13. The 2nd defendant has been placed exparte. 1st plaintiff has alone contested the suit and he has filed detailed written statement, wherein 1st defendant has admitted relationship between parties and contended that plaintiffs are not entitled for any share in the suit properties on the ground that suit property has been purchased by Narayanaswamy out of the sale proceeds of ancestral properties fallen to the share of Narayanaswamy situated at U.Puram, Denkini Kote Taluk, Tamil Nadu. 1st defendant has contended that suit property has been purchased by Narayanaswamy prior to the enactment of Hindu Succession Act 1956 i.e. out of sale proceeds of ancestral property. Whatever property purchased by Narayanaswamy out of the sale proceeds of ancestral property, it becomes the ancestral property of Narayanswamy and the same has been purchased prior to the enactment of the Hindu Succession Act of 1956. Since suit property has been purchased prior to the enactment of Hindu Succession Act of 1956 the provisions of Hindu Succession Act of 1956 15 OS No.645/2010 are not applicable to the facts of the present case. Based upon old Hindu Law 1st defendant claims that after the death of Smt.Jayamma suit property was devolved upon Narayanswamy and his two sons. In other words, Narayanswamy and his two sons have succeeded the suit property equally. Narayanaswamy and defendants have got 1/3rd share each in the suit property. After the death of Narayanaswamy defendants alone succeeded the suit property and both of them are in actual possession and enjoyment of the same. Incidentally it is further pleaded that recently partition took place between 1st and 2nd defendant and in that partition ground floor and two tiled roof houses situated in the hind portion of the RCC building fallen to the share of 1st defendant. 1st floor of the RCC building and two more tiled roof houses were fallen to the share of 2nd defendant and they are in possession and enjoyment of their respective portions.
14. 1st defendant has further contended that 1st plaintiff is not entitled for any share in the suit property on the ground that Narayanaswamy has married Smt.Yellamma (1st plaintiff) during the life time of 1st wife of Narayanaswamy in 16 OS No.645/2010 the year 1965 i.e. after enactment of Hindu Marriages Act. The marriage of Smt.Yellamma with Narayanaswamy was void and not valid. As such, 1st plaintiff is not entitle for any share in the suit property. Similarly, plaintiffs No.2 and 3 are also not entitle for any share in the suit property since the provisions of Hindu Succession Act of 1956 is not applicable to them. On the ground that Narayanaswamy has acquired the suit property out of the sale proceeds of ancestral property, prior to the enactment of the Hindu Succession Act of 1956.
15. It is further contended that 1st defendant has contributed money to construct RCC house and that RCC building has been constructed by Narayanaswamy out of his salary savings and also by utilizing the contribution of 1st defendant. It is further contended that 1st defendant has borrowed hand loans to perform the marriages of plaintiffs No.2 and 3 and spent Rs.4,00,000/- to perform the marriage of each one of them and he has paid interest at the rate of 2% p.m. On the above grounds 1st defendant has prayed the court to dismiss the suit.
17 OS No.645/2010
16. Keeping the rival contention of both parties in mind, this court has carefully scrutinized the pleadings oral and documentary evidence placed on record and it is ascertained that suit property has been purchased in the name of Smt.Jayamma in the year 1951. Absolutely there is no evidence on record to believe that Narayanaswamy has purchased the suit property in the name of Smt.Jayamma out of the sale proceeds of ancestral property situated at U.Puram, Denkini Kote Tamil Nadu. On scrutiny of admission made by DW1 it is ascertained that Narayanaswamy has filed a suit against his brothers for partition and separate possession of his share in the ancestral property situated at U.Puram, Denkini Kote Taluk, Tamil Nadu, before the Civil Court, Denkini Kote in OS.90/1997 and that suit was decreed in the year 2008. After decree plaintiffs and defendants together sold away the share of deceased Narayanaswamy and they have shared the sale proceeds of the ancestral property of deceased Narayanaswamy. The relevant admission made by 1st defendant reads as under:
"It is true that in the year 1997 my father has filed a suit against his elder brother before the Civil Court at Denkini Kote in OS.90/1997. It is true 18 OS No.645/2010 that OS.90/1997 was decreed in the year 2008 and in that decree my father has got his share in the joint family property......... It is true that the share of land which we have got in the land mentioned in OS.90/1997 has been sold out by myself, my mother, my brother and my sisters and we all of them shared the sale proceeds of that lands."
17. In fact, admissions made by DW1 makes it abundantly clear that Narayanaswamy has filed a suit against his brothers for partition and separate possession of his share in the ancestral properties before the Civil Court at Denkini Kote and obtained decree. The plaintiffs and defendants have together sold away the properties, which were fallen to the share of Narayanaswamy and they have divided and utilized the sale proceeds of the ancestral properties of Narayanaswamy. Admission made by DW1 makes it clear that suit property has not been purchased out of the sale proceeds of ancestral property. Documents produced by 1st defendant discloses that Narayanaswamy was born in the year 1935 and he was sixteen years old when suit property was purchased in the year 1951. Admittedly, Narayanaswamy was not working and earning in the year 1951. In the above circumstances, it is very difficult to believe that Narayanaswamy has purchased 19 OS No.645/2010 suit property in the name of Smt.Jayamma. However, records placed before the court discloses that suit property has been purchased by Smt.Jayamma in the year 1951. Evidence on record further discloses that Narayanaswamy and Smt.Jayamma lived together happily for around 10 years in the suit schedule house. During that time, Smt.Jayamma has not conceived a child.
Thereafter, Narayanaswamy has married Smt.Yellamma in the year 1965. Smt.Yellamma(1st plaintiff) has gave birth to two male and two female children. Plaintiffs are the daughters and defendants are the son of Narayanaswamy through his 2nd wife Smt.Yellamma. After Narayanaswamy married Smt.Yellamma, misunderstanding arising between Narayanaswamy and his 1st wife Smt.Jayamma and that leads to property dispute. Consequently, Smt.Jayamma has filed a suit against Narayanaswamy before the Civil Court, Bangalore in OS.NO.52/1972 for declaration of her title to suit property and that suit was dismissed. Thereafter, Narayanaswamy has filed a suit against Smt.Jayamma in respect of suit property before the City Civil Court, Bangalore in OS.No.10369/1984. During the pendency of that suit smt.Jayamma was died. 20 OS No.645/2010 After the death of Smt.Jayamma suit property was devolved upon Narayanaswamy, as he was the only legal heir of Smt.Jayamma. After the death of Smt.Jayamma, Narayanaswamy has demolished the tiled roof house and he has constructed a RCC building in the front portion consisting of ground floor and 1st floor out of his salary savings, as he was an employee of HAL. It is most important to note that absolutely there is no iota of evidence before the court to believe that 1st defendant has contributed money to his father to construct RCC building in the suit property. It is an admitted fact that Narayanaswamy was died intestate in the year 1997. After the death of Narayanaswamy suit property was devolved upon plaintiffs and defendants, as they are wife and children of deceased Narayanaswamy.
It is indeed relevant to note that 1st defendant has taken a contention that he has spent Rs.8,00,000/ to perform the marriages of plaintiffs No.2 and 3, but he has not placed acceptable oral or documentary evidence to believe the same. On the other hand, marriages of plaintiffs No.2 and 3 has been performed out of the bank balance left by Narayanaswamy and 21 OS No.645/2010 out of the salary savings of plaintiffs No.2 and 3. The relevant admission made by DW1 reads as under:
"It is true that under Ex.D.1 my mother and sisters have withdrawn sum of Rs.1,94,680/-, which my father has kept in Post Office Deposit. It is true that while depositing money in the post office my father has mentioned the names of my mother and sister Bhuvaneshwari as nominees. It is true that Bhuvaneshwari's marriage was performed in the year 1998. It is true that marriage talks were took place during the life time of my father. It is true that my sister Manjula's marriage was also performed in the year 1998. It is true that in the year 1998 my both sisters were working....the marriages of my sisters were performed out of their self earnings and also by utilizing the amount mentioned in Ex.D.1.
18. Admissions of DW.1 referred supra, oral evidence of PW1 and documents produced by plaintiffs discloses that Narayanaswamy has kept sum of Rs.1,94,680/- in his Post Office SB Account and mentioned the name of his wife and daughter (Bhuvaneshwari) as nominees. After the death of Narayanaswamy, SB Account balance of Narayanaswamy has been transferred to the SB A/Cs of plaintiffs No.2 and 3 with the consent of all the legal heirs of deceased Narayanaswamy.
Oral and documentary evidence of plaintiffs further discloses that plaintiffs No.2 and 3 are graduates and they 22 OS No.645/2010 were started working in a private organizations prior to their marriages and they have saved some portion of their salary amount in their bank accounts to meet their marriage expenses and their marriages were performed in the year 1998, out of the post office balance left by their father Narayanaswamy and out of their salary savings. Based upon oral evidence of PW1 and admission made by DW1 referred supra, this court has come to the conclusion that 1st defendant has failed to prove that he has performed the marriages of plaintiffs No.2 and 3 by raising loan to the tune of Rs.8,00,000/- .
19. On carefully scrutiny of admission made by DW1, it is ascertained that 1st defendant has himself admitted that Smt.Jayamma was died in the year 1993 and after of the death of Jayamma suit property was devolved upon her husband Narayanaswamy, as he was the only legal heir of deceased Smt.Jayamma and after the death of Narayanaswamy in the year 1997 suit property was devolved upon plaintiffs and defendants, as they are the only legal heirs of deceased Narayanaswamy. After the death of 23 OS No.645/2010 Narayanaswamy, plaintiffs and defendants constitute joint Hindu family and living as joint family members. The relevant admission made by DW1 reads as under:
"It is true that Smt.Jayamma was died in the year 1993. It is true that suit property has been purchased in the name of Smt.Jayamma and after the death of Smt.Jayamma my father was the sole successor to the estate of deceased Smt.Jayamma. It is true that my father died in the year 1997. It is true that after the death of my father, wife and children became the legal heirs of my deceased father (plaintiffs and defendants). It is true that after the death of my father, joint family was continued consisting of my mother, myself, my brother and my sisters."
20. Admissions made by DW1 referred supra discloses that 1st defendant is fully aware that Narayanaswamy has acquired title to the suit property, as a sole legal heir of deceased Smt.Jayamma and it becomes his separate property. It is also well within the knowledge of 1st defendant that after the death of Narayanaswamy suit property was devolved upon wife and children of deceased Narayanaswamy, as they are the only legal heirs of deceased Narayanswamy. Admissions of DW1 referred supra further discloses that after the death of Narayanswamy plaintiffs and defendants have succeeded the 24 OS No.645/2010 suit property and they are in joint possession of the suit property.
In the course of arguments, learned counsel representing 1st defendant has vehemently argued that plaintiffs are not entitle for equal share in the suit property as per the new amendment brought to Section 6 of the Hindu Succession Act of 1956. In view of the recent judgment passed by the Hon'ble Supreme Court of India reported in 2015 (6) Kar. L.J 177(SC) on the ground that Narayanaswamy was died in the year 1997. Plaintiffs have filed this suit for partition in the year 2010 and as on the date of filing the suit, father of the plaintiffs No.2 and 3 (Narayanaswamy) was not alive. As such, plaintiffs No.2 and 3 are not entitle for any share in the suit property. To claim equal share in the joint family property, male coparcener (father of daughters) should alive and at the same time daughter should alive, so that, living daughters can claim equal share in the property of their father. In the instant case, father of the plaintiffs No.2 and 3 was not alive at the time of filing the suit. In the above circumstances, plaintiffs No.2 and 3 are not entitle for equal share in the suit property. It is further argued that plaintiffs No.2 and 3 are not 25 OS No.645/2010 entitle for even for notional partition, since property in question is not the ancestral property of deceased Narayanaswamy and he has acquired that property much prior to the enactment of the Hindu Succession Act of 1956. In this regard, learned counsel representing 1st defendant has relied upon following citations:
2015(6) Kar. L.J.177 (SC) (A) Hindu Succession Act, 1956, Section 6 - As amended by Act No.39 of 2005 - Whether the amended Act will have a retrospective effect? - On facts - Claim of a daughter when father who was a coparcener in joint Hindu family died prior to 9th September, 2005 - Held - Legislature has expressly made the amendment applicable on and from its commencement and only if death of coparcener in question is after the amendment - Hence amendment is prospective, applicable to living daughters' of 'living coparcener' - Order of High Court set aside.
ILR 2009 KAR 3612 "Hindu Succession Act, 1956 (As amended by Act 39/2005) - Succession, opened earlier to the amended Act 39/2005 - Applicability of amended provisions to such cases - HELD. The provisions of the amended Act 39/2005 is not applicable to cases where succession had opened earlier to amended Act 39/2005 coming into force - ON FACTS, HELD, The succession having opened in the year 1969, evidently, the provisions of amendment Act, 2005 would have no application to the facts of the case - FURTHER HELD, It is not in dispute that K.Doddananjundaiah died in the year 1969. On the demise of K.Doddananjundaiah in 1969, the succession is opened. As per the Hindu Succession Act is force in 1969 a co-parcenor is entitled for coparcenory 26 OS No.645/2010 property. In the yer 1969 K.Doddananjundaiah and his son deceased defendant No.4 - Dinesh are the two persons who are the coparcenors of the joint family. It is not in dispute that the schedule properties are the ancestral properties of K.Doddananjundaiah. On a notional partition K.Doddananjundaiah is entitled for half share and his son deceased - Dinesh is entitled for half share in the schedule properties. After the demise of K.Doddananjundaiah in the year 1969 his half share devolve upon class-I heirs. Class- I heirs in the instant case are deceased wife Yashodamma, three daughters by name Parvathamma, Neelamma and Kamalamma and the only son Dinesh and each one of them are entitled to equal share in the half share of late K.Doddananjundaiah. Therefore, the amended provisions of Hindu Succession Act, 2005 are not applicable to the facts of this case since the succession had already opened in the year 1969 on the demise of K.Doddananjundaiah."
(2009) 6 Supreme Court Cases 99 "A. Hindu Succession (Amendment) Act, 2005 - Ss.3 and 4 - Temporal effect - Retrospective aspects distinguished from prospective aspects - Application to joint family property and self acquired property, distinguished - Hindu Succession Act, 1956, Ss.23 and 6..... HELD: It is evident from the 174th Report of the Law Commission and the Statement of Objects and Reasons of the Hindu Succession (Amendment) Act, 2005 that parliament intended to achieve the goal of removal of discrimination not only as contained in Section 6 of the Act, but also conferring an absolute right in a female heir to ask for a partition in a dwelling house wholly occupied by a joint family by removing the bar under Section 23 of the 1956 Act. If after the amendment, the disability of a female heir to inherit the equal share of the property together with a male heir so far as joint coparcenary property is concerned has been sought to be removed, it is not understandable how such a disability could be allowed to be retained in the statute book in respect of 27 OS No.645/2010 the property which had devolved upon the female heirs in terms of Section 8 of the Act read with the Schedule appended thereto....... E. Hindu Succession Act, 1956 - S.23 (prior to its deletion w.e.f 9/9/2005)
- Son's right under - Nature of permanency (existence
- Whether/when can be taken away - Right of a son to keep in abeyance a daughter's right to partition of a dwelling house, held, is not a vested right or a right of enduring nature - Therefore, son's right, can be taken away (1) by statutory amendment/ repeal or (2) by operation of statute or by removing the disablement clause - For example if a partition suit is instituted by a son, daughter can claim her share therein - Jurisprudence - Conceptual jurisprudence - Entitlements - Temporary disability created by statute
- Interest/right acquired, if any."
AIR 2012 BOMBAY 101 (A) Hindu Succession Act (30 of 1956), S.6 (As amended in 2005) - Devolution of interest in coparcenary property - Right of daughters of coparcener - Amended provision of S.6 came into effect from 9/9/2005 - Daughters born after 9/9/2005 would be coparceners by virtue of birth - However, daughters born before 9/9/2005 would be coparcener only upon devolution of interest in coparcenary property taking place - Until a coparcener dies and his succession opens there is no devolution of interest.... (C) Hindu Succession Act (30 of 1956), S.6 came into effect from 9/9/2005 - Said provisions do not have retrospective effect." 2013(2) Kar. L.J. 233:
"Hindu Succession Act, 1956, Rule 1 of Section 10 - Hindu Marriage Act, 1955, Sections 5 and 11 - Judgment of the High Court - Binding on the Trial Court - Disregard of statutory provisions as well as judgment of the High Court - Petitioners did not get status of a wife so as to get the benefit under Section 10 of the Hindu Succession Act, 1956 - Accordingly suit of plaintiff dismissed....... It is clear from the averments in the plaint, if the plaintiff was aged 45 28 OS No.645/2010 years in 2008, she was born in 1963 therefore, she was married only after 1955 Act came into force. Admittedly, the defendant was married earlier to her. Therefore, the plaintiff is the 2nd wife. Her marriage with deceased Ningappa was null and void. She did not get the status of a wife. Therefore, she did not get the status of a widow so s to get the benefit under Section 10 of the Act."
21. On careful scrutiny of pleadings, oral and documentary evidence of both parties, admissions of DW.1 (referred supra), the law laid down by the Hon'ble High Court of Karnataka and by the Hon'ble Supreme Court of India in the judgments referred supra and by virtue of recommendations made by 14th Law Commission and in the light of section 8 of the Hindu Succession Act, this court has observed that suit property is not the ancestral property of Narayanaswamy. In fact, suit property has devolved upon him, after the death of his 1st wife Smt. Jayamma. After death of Smt. Jayamma, Narayanaswamy became the absolute owner of suit property, as he was the only legal heir of deceased Smt. Jayamma. After the death of Smt. Jayamma, Narayanaswamy has improved the suit property by constructing RCC building consisting of ground and 1st floor out of his own salary earnings. The said Narayanaswamy was died intestate in the year 1997. After the death of Narayanaswamy, suit property was devolved upon his wife and children i.e. upon plaintiffs and defendants. It is most important to note that Narayanaswamy has kept some amount in 29 OS No.645/2010 the Post Office Savings Bank Account amounting to Rs.1,94,680/- and he has mentioned the names of his wife and eldest daughter (Bhuvaneshwari), as nominees, may be to perform the marriages of his two daughters (plaintiffs No.2 and 3). Ofcourse, defendants are being sons of 1st plaintiff and brothers of plaintiffs No.2 and 3, have given free consent to transfer that amount to the SB account of plaintiffs No.2 and 3, to meet their marriage expenses. Apart from that amount, plaintiffs No.2 and 3 have saved some amount in their bank account, out of their salary earnings. 1st plaintiff and her sons have performed the marriages of plaintiffs No.2 and 3 in the year 1998, by utilizing the Post Office Savings of Narayanaswamy and salary savings of plaintiffs No.2 and 3. Thereafter, defendants have got married in the year 1999 and in the year 2000, respectively. Evidence on record discloses that defendants are residing in the RCC building and they are also collecting rents from tiled roof houses situated in the hind portion of the RCC building. As per Section 8 of the Hindu Succession Act the daughter, whether married or unmarried, inherits simultaneously with a son, widow and t he other heirs specified in class 1 of the schedule. Each daughter takes one share that is equal to that of son. She takes her share absolutely and not as woman's estate. There is no priority 30 OS No.645/2010 among married and unmarried daughters. Unchastity of a daughter is no ground for exclusion. Since a daughter is an enumerated heir, if a father has made a gift to the daughter at the time of her marriage, it would not disentitle her claiming a share as her father's heir. The wife and daughters of a male Hindu would get an equal share in the property of a male hindu dying intestate. Thereafter, the bequest of her share by the mother to one of the daughters, would be of only her (1/8th) share in the estate of the father. Old law - See Vol. 1 & 43. If the deceased himself had been an adopted son and had, daughter before his adoption the daughter would be an heir under clause (a) as one of the heirs specified in Class I of the Schedule.
22. Based upon the judgment passed by the Hon'ble Supreme Court of India reported in 2015(6) Kar. L.J page 177 (SC) referred supra, this court has come to a conclusion that plaintiffs No.2 and 3 are being daughters of deceased Narayanaswamy, they are not entitle for equal partition in the suit property by virtue of recent amendment to Section 6 of the Hindu Succession Act, since Narayanaswamy was died 31 OS No.645/2010 prior to 9/9/2005. However, plaintiffs are entitle for partition and separate possession of equal share par with defendants in the 1/3rd share of deceased Narayanaswamy, in view of the judgment passed by Hon'ble High Court of Karnataka reported in ILR 2009 Kar. page 3612 referred supra and by virtue of Section 8 of the Hindu Succession Act. Accordingly, this court proceed to hold that plaintiffs No.1 to 3 are being class-I heirs of deceased Narayanaswamy, all of them are entitle for equal share par with the shares of sons of deceased Narayanaswamy under notional partition. Therefore, plaintiffs are entitle for partition and separate possession of 3/5th share in the 1/3rd share of deceased Narayanaswamy. Accordingly, issue No.1 is answered partly in the affirmative, issues No.2 and 4 are answered in the affirmative and issue No.3 is answered in the negative.
23. ISSUES No.5 : By virtue of precise discussion held while answering issues No.1 to 4 and for the reasons there under, this court proceeds to pass the following:
ORDER Suit is decreed in part.32 OS No.645/2010
Plaintiffs are entitle for partition and separate possession of 1/5th share each in the 1/3 share of deceased Narayanaswamy by metes and bounds. In short, plaintiffs are entitle for partition and separate possession of 3/5th share in the 1/3rd share of deceased Narayanaswamy, by metes and bounds.
No order as to costs and mesne profits.
Draw preliminary decree accordingly.
(Judgment Writer typed to my dictation on computer; corrected and then pronounced by me in open court on this the 26th day of March, 2016).
(A.GURUMURTHY) XV Addl.City Civil & Sessions Judge, Bangalore.
ANNEXURE WITNESSES EXAMINED FOR THE PLAINTIFFS:
PW1 : Smt. Bhuvaneshwari WITNESSES EXAMINED FOR THE DEFENDANT:
DW.1 : N.Purushotham DOCUMENTS MARKED FOR THE PLAINTIFFS:
Ex.P.1 : C/c of the sale deed dated 16.8.1951 Ex.P.2 : Copy of the Notice Ex.P.3 : Reply notice.
Ex.P.4 : Khata extract Ex.P.5 : Death Certificate of Sri. Narayanaswamy 33 OS No.645/2010 Ex.P.6 : Death Certificate of Smt. Jayamma Ex.P.7 : Joint Account Pass Book Ex.P.8 : Bank endorsement Ex.P.9 : Salary Certificate.
DOCUMENTS MARKED FOR THE DEFENDANT:
Ex.D.1 : State Bank of India Challan dated 17/4/1998 Ex.D.2 : Order passed by the City Civil Court, Bangalore in OS No.10369/1984.
(A.GURUMURTHY) XV Addl.City Civil & Sessions Judge, Bangalore.34 OS No.645/2010
Judgment pronounced in the open court vide separate judgment.
ORDER Suit is decreed in part.
Plaintiffs are entitle for partition
and separate possession of 1/5th share
each in the 1/3 share of deceased
Narayanaswamy by metes and bounds.
In short, plaintiffs are entitle for
partition and separate possession of
3/5th share in the 1/3rd share of
deceased Narayanaswamy, by metes
and bounds.
No order as to costs and mesne profits.
Draw preliminary decree accordingly.
(A.GURUMURTHY)
XV Addl.City Civil & Sessions Judge,
Bangalore.
35 OS No.645/2010