IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 21st DAY OF NOVEMBER 2019 BEFORE THE HON'BLE MR.JUSTICE S. SUNIL DUTT YADAV REGULAR SECOND APPEAL No.773/2015 Between:
1. Smt. B.S. Sharada Prakash, W/o Late B.M. Shivaprakash, Aged about 63 years.
2. Smt. Shantha, D/o Late B.M. Shivaprakash, Aged about 39 years.
3. Smt. Shubha, D/o Late B.M. Shivaprakash, Aged about 37 years.
4. Sri Girish, S/o Late B.M. Shivaprakash, Aged about 35 years.
5. Smt. Jayashree, D/o Late B.M. Shivaprakash, Aged about 29 years.
All residing at No.2322, Sharada Nilaya, 1st Cross, B.D.A. Layout, H.A.L. 3rd Stage, Bengaluru – 560 017. … Appellants (By Smt. Nitya Kaligotla, Advocate a/w Smt. Mihika Hegde, Advocate) And:
1. Smt. G.R. Parvathamma, W/o M.C. Govindaraju, Aged about 60 years.
R/at No.40, 2nd Main, Gururaja Layout, Behind Vidyapeetha, Bengaluru – 560 028.
2. Sri B.M. Siddaraju, S/o Late B. Munibyrappa, Aged about 64 years.
R/at No.276/4, Doddanna School, 2nd B Cross, Hegganahalli, Peenya 2nd Stage, Bengaluru – 560 009.
3. Sri B.M. Nagaraja, S/o late B. Munibyrappa, Aged about 57 years.
Since deceased Represented by his LRs Respondent No.1, Respondent No.2. … Respondents (By Sri N.R. Naik, Advocate for R1;
Sri H.V. Prakash, Advocate for R2; R1 & R2 are LRs of deceased R3, v/o dated 24.01.2018) This RSA is filed under Section 100 of the Code of Civil Procedure, 1908, against the judgment and decree dated 28.02.2015 passed in R.A. No.9/2012 on the file of the I Additional District and Sessions Judge, Ramanagara dismissing the appeal and confirming the judgment and decree dated 17.12.2011 passed in O.S. No.11/2007 on the file of the Principal Civil Judge, Senior Division at Ramanagaram.
This RSA coming on for final hearing this day, the Court delivered the following:
JUDGMENT The defendants 1 to 5 are in appeal against the judgment and decree passed in O.S.No.11/2007 whereby the suit came to be decreed granting plaintiff 1/4th share in the suit schedule properties and have also challenged the judgment in R.A.No.9/2012 affirming the judgment and decree passed by the trial court.
2. The plaintiff is the daughter of Late Munibyrappa and she had filed a suit claiming her share in the suit schedule properties. It is asserted that Late Munibyrappa, the father of plaintiff was the Kartha of the family and there was no division in the joint family and ancestral properties. After the death of plaintiff’s father, as the other sibling were not ready and willing to effect partition on demand by the plaintiff, a suit for partition was filed. It is the specific claim by the plaintiff that she is entitled to 1/4th share in the properties along with the defendants as a coparcener. The defendants had raised several contentions including that the plaintiff at the time of marriage was given substantial money and gold towards her share and substantial fund of the family was spent on maintaining the plaintiff’s family. There has been denial of other averments as made in the plaint. It is the specific case of the defendants that the property of Late Munibyrappa was the ancestral property.
3. The trial court has decreed the suit by holding that the properties were joint family properties, and rejected the defence of the defendants. The trial court has recorded a finding that the plaintiff was born after 1956 and hence as per Section 6-A of the Hindu Succession Act, 1956, she was entitled to claim a share as a coparcener of the family. The said judgment came to be challenged in R.A.No.9/2012 wherein the Appellate Court has affirmed the findings of the trial court.
4. The defendants have filed this second appeal and this court has admitted the appeal on the following substantial questions of law:-
a) Whether a daughter who is admittedly born prior to the commencement of the Hindu Succession Act, 1956 is conferred with the status and rights of a coparcener by virtue of the Hindu Succession (Amendment) Act, 2005, and consequently entitled to seek a partition of ancestral properties?
b) Whether in view of the judgment of the Hon’ble Supreme Court in Prakash and others v. Phulavati and others, dated 30.11.2015, reported in (2016) 2 SCC 36, a suit for partition (such as the one in O.S.No.11 of 2007 filed by respondent no.1 herein) is maintainable by a daughter of a male coparcener who had expired prior to 09.09.2005?
c) Whether a Hindu woman whose right to claim as coparcener has been rejected is entitled to a share from the notional share of her father in the ancestral property as Class-1 heir under Section 8 of the Hindu Succession Act?
( substantial question (c) has been reframed as per the detailed order dated 06.12.2019) 5. The contention of the appellants is that the finding of the trial court that plaintiff was born after 1956 is an erroneous finding insofar as Ex.P1 which is a genealogical tree stated to have been issued on 27.11.2006 records a finding that the plaintiff’s age is 52 years and if it were to be so taken, she was born in the year 1954 and hence not entitled for rights under Section 6-A of he Hindu Succession Act. Hence, it is contended that the consequential finding recorded on this premise, regarding entitlement of the plaintiff is erroneous and liable to be set aside. It is pointed out that the Appellate Court has also recorded a wrong finding as regards the entitlement of the plaintiff.
6. The learned counsel for respondents submits that the case that is made out and the law as it was when the suit was pending ought to be taken note of and as on the date the trial court was deciding the matter, judgment has been passed taking note of the prevailing law which has been applied correctly. It is contended that the question as to entitlement that only if father is a living coparcener as on the date Section 6- A of the Act coming into force, has been interpreted subsequently by the judgments of the Apex Court which this court cannot take note of as it was different from the law prevailing when the judgment was passed.
7. The learned counsel for respondents/plaintiff further relies upon the evidence of the defendants and submits that DW.1 in the cross-examination has admitted that he had no objection for grant of share to the plaintiff and so also DW.2 has also admitted that he has no objection for giving a share to Parvathamma. It is further contended that there is a specific statement in the cross-examination of DW.1 in reply to the suggestion as to whether the defendant would be inconvenienced by dividing the property into four parts and DW.1 has stated that he was willing to accept division as suggested by the court. It is also contended that the findings of both the courts are concurrent and hence, interference by this court in light of concurrent finding of facts is impermissible and relies on the judgment of the Apex Court in the case of State of M.P. & Anr. v. Dungaji (D) by LR’s reported in [ 2019 AIAR (Civil) 817 ].
8. Heard the learned counsel for appellants and learned counsel for respondents and perused the substantial questions of law that have been framed.
Re: Substantial question of law (a) Insofar as substantial question (a) is concerned, it is a settled position of law that the question of birth of the defendant either before commencement of Hindu Succession Act, 1956 or otherwise would be irrelevant insofar as right claimed as coparcener by the daughters. The Apex Court in the case of Prakash and Others v. Phulavati and Others reported in [(2016) 2 SCC 36 Para 23] has held that the question as to whether the daughters are born before 1956 or after would be of no relevance to the rights of a female coparcener claimed by virtue of the amendment. This position of law remains settled even after subsequent decisions of the Apex Court. Further, the questions in the present case to be answered are essentially the other substantial questions of law framed as (b) and (c) as the entitlement of relief of the plaintiff rests on the answers to said substantial questions of law framed. Accordingly, the substantial question of law framed (a) is answered by holding that the claim to the right of partition as a coparcener is independent of the question as to whether the daughter was born before 1956 of later.
Re: Substantial question of law (b) It is an admitted position as per the averments made in the plaint that Munibyrappa died in the year 1976. The legal position that comes out from the judgments of the Apex Court is that entitlement of daughter who is the plaintiff would only be if she is living and the father is living as on the date of the amendment Act (introducing Section 6A) coming into force. This is to be construed from the expression that “living daughters of living coparcener” are stated to be pre-conditions for a woman to claim right as a coparcener. The Apex Court in the case of Prakash and Others v. Phulavati and Others [(2016) 2 SCC 36 Para 23] has stated that the entitlement as per the amendment is applicable only to the living daughters of living coparcener as on 09.09.2005. This position has been reiterated subsequently by the Apex Court in the case of Mangammal alias Thulash and Another v. T.B.Raju and Others [ (2018) 15 SCC 662 Para 16 ], wherein the Apex Court reiterated the position of law as laid down in the case of Prakash (supra) and concluded that only living daughters of living coparceners would be entitled to claim share in the property. The court has also clarified the observation of the Apex Court in the case of Danamma alias Suman Surpur and Another v. Amar and others [ (2018) 3 SCC 343 ]. This position of law has also been followed by various judgments of this court.
9. In light of admitted position that both the parties claim that Munibyrappa is the prepositus, that the subject matter of the claim is ancestral property and admittedly Munibyrappa died before the date the Amendment Act came into force, the plaintiff is not entitled to seek for partition by claiming rights as conferred on female coparcener under the amendment to the Hindu Succession Act. There is no acceptable argument advanced to disturb the finding that the suit schedule properties are the joint family properties.
Accordingly, the substantial question of law (b) is answered by holding that as the father of the plaintiff had died as on the date of the Hindu Succession Amendment Act coming into force, the plaintiff is not entitled to claim as a coparcener.
Re: Substantial question of law (c) Though as discussed infra the plaintiff is not entitled to claim as a coparcener, that would however not take away the right of the daughter to claim share in father’s notional share in terms of Section 8 of the Hindu Succession Act and in the light of appellants conceding in the appeal memorandum as regards such entitlement, the substantial question (c) as regards entitlement requires to be answered in the affirmative.
10. Insofar as entitlement of plaintiff from the share of father it would arise by there being a notional partition on the date of death of Munibyrappa under Section 8 of the Hindu Succession Act.
11. The defendants concede the plaintiffs entitlement from the father’s share and also as regards the entitlement from the mother’s share consequent to the death of the mother. Also taking note of the entitlement of the plaintiff as regards the share of third respondent who has died leaving behind the plaintiff and defendants, the plaintiff is entitled to 7/32 share as rightly concluded in Para 34 of the appeal memorandum read along with the memo dated 06.12.2019, as follows:
a) The ancestral joint family properties of B. Munibyrappa were held by him and his three sons B.M.Shivaprakash, the respondent no.2 and the respondent no.3 as coparceners.
b) Upon the death of B. Munibyrappa in 1976, a notional partition of the ancestral joint family properties took place and his 1/4th share in the coparcenary by virtue of the Act, devolved upon his surviving Class-I heirs being his wife-Smt. Venkatamma, his sons- B.M. Shivaprakash, the respondent no.2 and the respondent no.3, and his daughter- the respondent no.1. Since the share of B. Munibyrappa in the coparcenary was 1/4th share, each of his five surviving Class-I heirs – Smt. Venkatamma, B.M.Shivaprakash, the respondent no.2, respondent no.3 and the respondent no.1 became entitled to 1/5th share each in B.
Munibyrappa’s 1/4th share. Accordingly, upon the death of B. Munibyrappa, the respondent no.1 became at best entitled to 1/5th share in B.Munibyrappa’s 1/4th share i.e., a 1/20th share in the ancestral joint family properties.
c) Upon the death of Smt. Venkatamma in 2004, her undivided 1/20th share would devolve upon her surviving heirs under the Act being her sons – B.M.Shivaprakash, the respondent no.2 and the respondent no.1, and her daughter-the respondent no.1. Thus each of the surviving statutory heirs of Smt. Venkatamma became entitled to 1/4th share each in her 1/20th share in the ancestral joint family properties. The respondent no.1, upon the death of Smt. Venkatamma thus, at best became entitled to an additional 1/80th share in the ancestral joint family properties.
d) The Respondent No.3 was entitled to a 5/16th share in the ancestral joint family properties, being the total of (a) a 1/4th share received under the notional partition in his capacity as a co-parcener, (b) a 1/20th share being 1/5th of B. Munibyrappa’s 1/4th share by virtue of being one of five Class-I heirs of B. Munibyrappa’s 1/4th share (c) a 1/80th share being 1/4th of Smt. Venkatamma’s 1/20th share by virtue of being one of her four heirs under the Act, upon her death. Upon the death of the Respondent No.3 during the course of these appellate proceedings on 11.11.2017, his 5/16th share in the ancestral joint family properties by virtue of the Act devolved upon his surviving heirs under the Act being his brother and sister, i.e., the Respondent No.2 and the Respondent No.1. Thus, the Respondent No.1, upon the death of the Respondent No.3, at best, became entitled to a further 5/32nd share in the ancestral joint family properties.
Accordingly, accepting the above calculation of shares, the plaintiff is entitled to 7/32 share in the schedule properties.
12. In view of the above, the appeal is allowed in part. The judgment and decree dated 23.02.2015 passed in R.A.No.9/2012 by the I Additional District & Sessions Judge, Ramanagara and the judgment and decree dated 17.12.2011 passed in O.S.No.11/2007 by Principal Civil Judge, Senior Division at Ramanagaram are modified to the extent that the plaintiff is entitled to 7/32 share in the schedule properties. Preliminary decree to be drawn accordingly.
Sd/- JUDGE Np/-