Karnataka High Court
Rajendra S/O : Kashidas Sawkar vs Venkatesh S/O : Kashidas Sawkar on 7 August, 2018
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 7 T H DAY OF AUGUST 2018
BEFORE
THE HON'BLE MRS. JUSTICE K.S.MUDAGAL
R.F.A. NO.3114 OF 2010 (PAR)
BETWEEN:
RAJENDRA S/O. KASHIDAS SAWKAR,
AGE : 54 YEARS, OCC : SERVICE,
R/O : FLAT NO. CHIEF EXAMINATION-1,
VIJENDRA RESIDENCY,
KESHAVNAGAR, DHARWAD.
... APPELLANT
(BY SRI.SANGRAM S. KULKARNI, ADVOCATE)
AND
1. VENKATESH S/O.KASHIDAS SAWKAR,
AGE : 63 YEARS, OCC : RETIRED,
R/O : OLD SARAF BAZAR,
GADAG.
2. KISHORE S/O.KASHIDAS SAWKAR,
AGE : 59 YEARS,
OCC : RETIRED EMPLOYEE,
R/O : OLD SARAF BAZAR,
GADAG.
3. SMT. VIJAYADEVI N. PUNEKAR,
AGE : 66 YEARS, OCC : HOUSEHOLD WORK,
R/O : SANDESH SADAN,
2
RFA.No.3114/10
NEAR DEVRAJ URS HOSTEL,
KALASAPUR ROAD, GADAG.
4. SMT. SUMADEVI S SHAH,
AGE : 63 YEARS, OCC : HOUSEHOLD,
AT : POST : NIJAMPUR,
TQ : SAKRI, DIST : DHULE,
MAHARASTRA -424 305.
5. SMT.ARUNDHATI DEVI. B. PARIKH,
AGE : 59 YEARS, OCC : HOUSEHOLD,
SHILAJ ROAD, TALTHAJ,
AHMEDABAD -380 059 (GUJARAT).
6. SMT. INDUDEVI D. SUGANDHI,
AGE : 49 YEARS, OCC : HOUSEHOLD,
NO.562, SHUKRAWAR PETH,
GAJARAJ CHOWK ,
KHADAIKMALLA, PUNE - 411 002,
(MAHARASTRA).
7. SMT. JYOTI DEVI BHARAT SHAH,
AGE : 47 YEARS, OCC : HOUSEHOLD,
C/O : BHARAT RATANCHAND SHAH,
H.NO.201, PORWADWALI DESAIPUR,
NANDURBAD -425 412, (MAHARASTRA).
... RESPONDENTS
(BY SRI.S.G.KADADAKATTI, ADVOCATE FOR R-1 AND 2)
(BY SRI.LINGESH V.KATTIMANE, ADVOCATE FOR R-3 TO 7)
THIS R.F.A. FILED UNDER ORDER 41 RULE 1 AND 2 OF CPC.,
R/W. SECTION 96 OF CPC., AGAINST THE JUDGMENT AND DECREE
DTD:16-09-2010 PASSED IN O.S.NO.11 OF 2009 ON THE FILE OF
THE CIVIL JUDGE(SR.DN.) & CJM, GADAG, DECREEING THE SUIT
FILED FOR PARTITION AND SEPARATE POSSESSION.
3
RFA.No.3114/10
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Whether the trial Court was justified in awarding equal 1/8 t h share to respondent Nos.3 to 7 is the question involved in this appeal.
2. Appellant filed O.S.No.11 of 2009 before the Senior Civil Judge, Gadag claiming partition and separate possession of his 1/3 r d share in the suit schedule properties. Respondent Nos.1 to 7 were defendant Nos.1 to 7 in the suit.
3. For the sake of convenience, the parties will be referred hereafter with their ranks before the trial Court.
4. The subject matter of the suit were two agricultural lands and two residential houses shown as schedule A to D properties in the plaint. Plaintiff and defendant Nos.1 and 2 are the sons, defendant Nos.3 to 4 RFA.No.3114/10 7 are the married daughters of one Kashidas Sawakar. Kashidas Sawakar died on 05.05.1992 leaving behind him the plaintiff and defendants and his wife Smt.Jahnavibai i.e., mother of the plaintiff. Smt.Jahnavibai died on 17.08.2005.
5. After the death of the parents, dispute arose between the parties. Therefore, plaintiff filed O.S.No.11 of 2009 claiming that the suit schedule properties are the ancestral Joint Hindu family properties. He contended that himself and defendant Nos.1 and 2, their father and mother constituted the Joint Hindu family. He further contended that, he has 1/3 r d share in the suit schedule properties. The plaintiff further contended that in lieu of their shares his sisters are given silver, gold and valuable articles at the time of their marriages, therefore, they are not entitled to any share in the suit properties.
6. Defendant Nos.1 and 2 contested the suit contending that there was no partition between their 5 RFA.No.3114/10 father-Kashidas and his unmarried brother Gurudas. They further contended that Gurudas had equal share in the suit properties and he has executed a will bequeathing his undivided 1/2 share in the suit schedule properties in their favour. Defendant Nos.3 to 7 contended that they are also the coparceners by virtue of amendment to Section 6 of the Hindu Succession Act and they are entitled to equal 1/8 t h share in the suit properties.
7. On the basis of the such pleadings, the trial Court framed the following issues :
"1. Whether the plaintiff proves that the suit properties are the ancestral joint Hindu family properties?
2. Whether the plaintiff proves that he has got 1/3 r d share in the suit properties?
3. Whether the plaintiff proves that at the marriage of his sisters, Silver, Gol d and valuable articles were given to them in lieu of their share?6 RFA.No.3114/10
4. Whether the defendants No.1 and 2 prove that their unmarried uncle Gurudas had equal joint share and same has been bequeathed to them?
5. Whether the defendant No.3 to 7 prove that all have got each 1/8 share in the suit property?
6. Whether the plaintiff is entitled for the reliefs as prayed?
7.What order or decree?"
8. Plaintiff got examined himself as PW-1 and got marked Ex.P-1 to 13. Defendants did not adduce any evidence. The trial Court after hearing the parties negatived the contention of defendant Nos.1 and 2 that there was no partition between the father and their unmarried uncle Gurudas and the will of Gurudas set up by them. The trial Court further held that the suit schedule properties are the ancestral Joint Hindu family properties.
9. The trial Court negatived the contention of plaintiff that at the time of their marriages his sisters were given Silver, Gold and valuable articles in lieu of 7 RFA.No.3114/10 their shares, therefore, they have no share in the suit properties. The trial Court further held that by virtue of amendment to Section 6 of the Hindu Succession Act the daughters got the status of the coparceners and they are also entitled to equal share. Thus decreed the suit allotting the equal 1/8 t h share in all the suit properties to the plaintiff and defendants.
10. Sri.Sangram S.Kulkarni, the learned counsel representing plaintiff/appellant submits that amendment to Section 6 of the Hindu Succession Act is prospective in nature and if succession opened prior to such amendment the daughters do not get the status of coparceners. He further submits that trial Court committed error in granting share to the daughters in the residential houses.
11. In support of his submissions he relies upon the following Judgments:
(i) PR AKASH AND OTHERS V. PHULAVAT I AND OTHERS (2016) 2 SCC 36.8 RFA.No.3114/10
(ii) DAN AMMA ALIAS SUMAN SU RGPUR AND ANOTHER V. AMAR AN D OTHERS (2018) 3 SCC 343.
(iii) MANGAMMAL ALIAS THULASI AND ANOTHER V. T.B.RAJU AND OTHE RS 2018(4) KAR.L.J.381(SC).
12. Sri.Lingesh V.Kattimane learned counsel for respondent Nos.3 to 7 seeks to support the Judgment contending that under Section 6 of the Hindu Succession Act, the daughters become coparceners and they are entitled to equal share. He further submits that by Hindu Succession (Amendment) Act, 2005 Section 23 is deleted to eliminate the discrimination in granting the shares to the daughters in the dwelling houses, therefore, plaintiff cannot deprive the daughters from the share in the residential houses.
13. None of the defendants have questioned the findings of the trial Court on issue Nos.1 and 4 and the Decree. Therefore, the findings of the trial Court in that regard and Decree have become final against them. 9 RFA.No.3114/10
14. The trial Court holds that, Section 6 of the Hindu Succession Act, 1956 is amended by Hindu Succession (Amendment) Act, Act 2005 conferring on the daughters the status of coparceners. Therefore they are entitled to equal share. Section 6 of the Hindu Succession Act 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 daughter of a coparcener:10 RFA.No.3114/10
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 20 t h 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 Joi nt 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 allotte d to a son;11 RFA.No.3114/10
(b) the share of the pre-deceased son or a pre-dece ased daughte r, as the y wo uld have got had the y be en alive at the time o f partitio n, shall be allotted to the surviving child of such pre- deceased so n or of such pre-dece ased daughter; and
(c) the share o f the pre-dece ased child o f a pre-dece ased son or of a pre-deceased daughte r, as such child would have got had he or she been alive at the time of the partitio n, shall be allo tte d to the child of such pre-dece ased child of the pre-
deceased so n or a pre-dece ased daughter, as the case may be.
Explanation .-For the purpose 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 enti tled to claim partition or not.
(4) ...............
(5) .............."
(Emphasis supplied)
15. On the issue whether the amendment to
Section 6 of the Act retrospective or prospective
12
RFA.No.3114/10
interpreting the said section the Hon'ble Supreme Court in Phulavati's case referred to supra in paragraph No.23 of the Judgment has held as follows:
"23. Accordi ngly, 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 affected thereafter will be governed by the Explanation."
(Emphasis supplied)
16. Referring to the Judgment in Phulavati's case Hon'ble Supreme Court in the Danamma's case and Mangammal's case referred to supra reiterated that the amendment operates prospectively. In this case, the Succession opened on 05.05.1992 on the death of the father i.e., prior to amendment to Section 6 in the year 2005. Therefore, the trial Court fell in error in holding that the daughters are entitled to equal share. 13 RFA.No.3114/10
17. So far as suit schedule C and D properties the residential houses, Section 23 of the Hindu Succession Act, 1956 as it stood prior to 09.09.2005 barred the daughters from claiming the share in the dwelling houses until the sons choose to divide the dwelling houses amongst themselves. Section 23 is deleted from the Act by Hindu Succession (Amendment) Act, 2005 (39 of 2005) with effect from 09.09.2005. Moreover in the plaint it is not stated that whether the houses were wholly occupied by the sons and their family. They are simply shown as residential properties.
18. Hon'ble Supreme Court in the case of G. Sekar v. Geetha & Ors. AIR 2009 SC 2649 has held as follows :
"21. It is, therefore, evident that the Parliament intended to achieve the goal of removal of discri mination 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 as provided for in terms of Section 23 of the Act.14 RFA.No.3114/10
22. Section 23 of the Act has been omitted so as to remove the disability on female heirs contained in that Section. It sought to achieve a larger public purpose. If even the disability of a female heir to inherit the equal share of the property together with a mal e heir so far as joint coparcenary property is concerned has been sought to be removed, we fail to understand as to how such a disabi lity could be allowed to be retained in the statute book in respect of the property which had devolved upon the female heirs in terms of Section 8 of the Act read with the Schedule appended thereto. Restrictions imposed on a right must be construed strictly. In the context of the restrictive right as contained in Section 23 of the Act, it must be held that such restricti on was to be put in operation only at the time of partition of the property by metes and bounds, as grant of a preliminary decree would be dependant on the right of a co-sharer in the joint property. Concededly a preliminary decree could be passed declaring each co-sharer to be entitled to 1/5 t h share therein in terms of the provisions contai ned in Section 8 of the Act. 1/5 t h share in each co-sharer upon death of the predecessor-in-interest of the parties is 15 RFA.No.3114/10 absolute. They cannot be divested of the said right as the restriction in enjoyment of right by seeking partition by metes and bounds is removed by reason of Section 3 of the 2005 Act. We may notice sub-section (5) of the 2005 Act, which reads as under :
"(5) Nothing co ntained in this section shall apply to a partitio n, which has been effected before the 20 t h day o f Dece mbe r, 2004 Explanation- F or the purpose of this section "partition" means any partition made by exe cution of a deed of partition duly registere d under the Registratio n A ct, 1908 or partitio n e ffected by a decree of a court."
Thus, where a partition has not taken place, the said provision shall apply.
Reliance has also been placed by Mr. Viswan athan on Eramma v. Verrupanna & Ors. [(1966) 2 SCR 626], wherein it was held:
"It is clear fro m the e xpress language o f the section that it applies only to coparce nary pro perty of the male Hindu ho lde r who dies after the commencement of the Act. It is manifest that the language o f S. 8 must be construe d in the conte xt of S. 6 of the Act. We accordingly ho ld that the 16 RFA.No.3114/10 provisions of S . 8 of the Hindu Succession Act are not retro spective in ope ration and where a male Hindu die d befo re the Act came into force i.e., where successio n opened before the Act, S. 8 of the Act will have no application."
In the factual matrix obtaining in E r a m m a (supra), Section 8 was construed in the light of Section 6 of the Act, as one of the questions raised therein was as to whether the property was a coparcenery property or not.
Neither the 1956 Act nor the 2005 Act seeks to reopen vesting of a right where succession had already been taken place."
(Emphasis supplied)
19. Ultimately in paragraph No.28 of the Judgment it was held as follows :
"28. Thus, a right in terms of Section 23 of the Act to obtain a decree for partition of the dwelling house is one whereby the right to claim partition by the family is kept in abeyance. Once, the said right becomes enforceable, the restriction must be held to have been removed. I ndisputably, when there are two male heirs, at the option of 17 RFA.No.3114/10 one, partition of a dwelling house is also permissible."
(Emphasis supplied)
20. In this case on opening of the Succession in 1992 till the sons chosen to seek partition by filing suit in 2009 the right of the daughters to seek partition in house properties was kept in abeyance. On filing of the suit in view of the deletion of Section 23 of the Hindu Succession Act their right becomes enforceable. The restrictions placed on such right on them till 2005 stands removed. Therefore, they are entitled to share in the residential houses also.
21. Next question is what is the share to be allotted to the parties. On the death of the father on 05.05.1992 in a notional partition his wife, three sons and himself became entitled to 1/5 t h share each. His 1/5 t h share has to be divided amongst his widow, three sons and five daughters which comes to 1/45 t h share each. Thus, the share of widow comes to 1/5 t h + 1/45 t h = 2/9 t h . On her death, her 2/9 t h share devolves upon 18 RFA.No.3114/10 her sons and daughters equally. Thus, the plaintiff is entitle to his 1/5 t h share + 1/45 t h share in his father's share + 1/8 t h share in his mother's 1/45 t h share = 90/360 = 1/4.
22. Plaintiff and defendant Nos.1 and 2 are thus entitled to 1/4 t h share each. Each daughter is entitled to 18/360 that is 1/20 t h share.
23. Therefore, the judgment of the trial Court awarding 1/8 t h share to all the parties equally is unsustainable. The appeal is allowed. The suit of the plaintiff is partly decreed.
(a). It is declared that plaintiff has got 1/4 t h share in all the suit properties by metes and bounds. Parties share shall be partitioned by metes and bounds as per Section 54 of CPC.
(b). Having regard to the relationship between the parties no order as to costs.
Sd/-
JUDGE CKK/-