IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 30TH DAY OF MAY 2019 BEFORE THE HON’BLE MRS. JUSTICE K.S.MUDAGAL REGULAR SECOND APPEAL NO.1161/2015 (PAR) BETWEEN: D.KRISHNAMURTHY S/O LATE DODDEGOWDA SINCE DEAD BY LRS 1. SMT. KAMALAMMA @ KAMALA W/O. GIRISH D/O KRISHNAMURTHY AGED ABOUT 50 YEARS 2. VIJAYAKUMAR S/O LATE D.KRISHNAMURTHY AGED ABOUT 37 YEARS 3. VISHWANATHA S/O LATE D.KRISHNAMURTHY AGED ABOUT 35 YEARS 4. SMT.BHARATHI W/O RAMESHA D/O LATE D.KRISHNAMURTHY AGED ABOUT 33 YEARS APPELLANT NOS.1 TO 4 ARE C/O HANUMANTHARAYAPPA RETIRED REVENUE INSPECTOR KASABA HOBLI KORATAGERE TALUK TUMAKURU DISTRICT-572 129 5. MANJUNATHA S/O LATE D.KRISHNAMURTHY AGED ABOUT 28 YEARS RESIDENT OF GAJAMUDDANAHALLY DODDASAGGERE POST HOLAVANAHALLY HOBLI KORATAGERE TALUK TUMAKURU DISTRICT-572 129 6. SMT. GANGAMMA W/O RANGAMURTHAPPA AGED ABOUT 65 YEARS RESIDENT OF KARIKENAHALLY ARODI POST, SASALU HOBLI DODDABALLAPURA TALUK BANGALORE RURAL DISTRICT-561 203 7. SMT. JAYAMMA W/O LATE D.KRISHNAMURTHY AGED ABOUT 80 YEARS RESIDENT OF GAJAMUDDANAHALLY DODDASAGGERE POST HOLAVANAHALLY HOBLI KORATAGERE TALUK TUMAKURU DISTRICT-572 129 … APPELLANTS (BY SRI. A.V.GANGADHARAPPA, ADVOCATE) AND:
1. D.MALLEGOWDA S/O LATE DODDEGOWDA AGED ABOUT 62 YEARS RESIDENT OF GAJAMUDDANAHALLI HOLAVANAHALLI HOBLI KORATAGERE TALUK TUMAKURU DISTRICT-572 129 2. SMT. RATHNAMMA W/O HANUMANTHARAYAPPA AGED ABOUT 68 YEARS RESIDENT OF THEETHA VILLAGE KORATAGERE TALUK TUMAKURU DISTRICT-572 129 ….RESPONDENTS (BY SRI.K.V.NARASIMHAN, ADVOCATE FOR R.1; SRI.H.K.PAVAN, ADVOCATE FOR R.2) THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED:31.03.2015 PASSED IN R.A.NO.194/2010 ON THE FILE OF THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE, MADHUGIRI, DISMISSING THE APPEAL FILED AGAINST THE ORDER DATED:16.09.2010 PASSED IN O.S.NO.31/2001 ON THE FILE OF THE PRINCIPAL. SENIOR CIVIL JUDGE & J.M.F.C., MADHUGIRI.
THIS APPEAL COMING ON FOR FURTHER ARGUMENTS THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This second appeal of defendants-1(a) to 1(e), 3 and 6 arises out of the judgment and decree dated 31.3.2015 in Regular Appeal No.194/2010 passed by the IV Additional District & Sessions Judge, Madhugiri.
2. By the impugned judgment and decree, the First Appellate Court modified the judgment and decree dated 16.9.2010 in O.S.No.31/2007 passed by the Principal Senior Civil Judge & J.M.F.C., Madhugiri allotting 1/4th share to the plaintiff instead of 6/25th share granted by the trial court.
3. Respondent No.1 was the plaintiff. Appellant Nos.1 to 5 are the children and appellant No.7 is the wife of deceased Krishnamurthy. Krishnamurthy was the first defendant and appellant No.7 was defendant No.6 in the suit. One Ramakka was the second defendant. Appellant Nos.6 and 7 were defendant Nos.3 and 6. Respondent No.2 was defendant No.4 before the trial court. Apart from the said parties, the General Manager of Sirguppa Sugar Factory was arrayed as defendant No.5 and one Smt.Hanuamakka was the 7th defendant before the trial court. Said Hanumakka was appellant No.4 before the first appellate court. Pending the suit, defendant No.1 Krishnamurthy died. Appellant Nos.1 to 5 were brought on record as his legal representatives.
4. Plaintiff, defendant Nos.1, 3 and 4 were the sons and daughters of Doddegowda @ Doddaiah and second defendant Ramakka. Doddegowda died on 10.2.1999. Ramakka also died during the pendency of the suit. Defendant No.5 General Manager of Sugar Factory was deleted from the array of defendants. Defendant No.7 Hanumakka, who was appellant No.4 before the first appellate court, died during the pendency of the first appeal. Defendant Nos.1(a) to (e) filed I.A.No.2 under Order XXII Rule 3 read with Rule 10 CPC before the first appellate court claiming that Hanumakka has executed Ex.D48 the registered Will dated 14.5.2012 and thereby they have become her legal representatives and the said application was allowed.
5. For the purpose of convenience, the parties will be referred to henceforth according to their ranks before the trial court.
6. The subject matter of the suit consists of schedule ‘A’ and ‘B’ properties. Schedule ‘A’ properties were ten immovable properties consisting of lands and house property. Schedule ‘B’ properties were the movables viz., tractor-trailor and cash of `1,20,080/-.
7. Plaintiff’s case in brief is as follows:
That himself, defendant No.1 and Doddaiah @ Doddegowda were the members of the Joint Hindu family. The suit schedule item Nos.1 to 4 and 6 to 11 were the ancestral joint family properties. That Doddegowda acquired plaint schedule ‘A’ item No.5 property bearing Sy.No.43 measuring 2 acres 2 guntas out of the joint family nucleus in the name of defendant No.6. Suit schedule ‘B’ properties were also acquired out of the joint family nucleus. Defendant No.1 was appropriating the income of the properties for his own benefit and despite demand, he was not ready to give the share of the plaintiff. Thus, he sought partition and separate possession of his 3/10th share.
8. The defence of defendant Nos.1 and 6 was as follows:
The correctness of the pedigree furnished by the plaintiff was denied. Doddegowda @ Doddaiah has another wife by name Hanumakka and plaint schedule ‘A’ item No.5 property was acquired by said Hanumakka out of her own funds. Said Hanumakka was the necessary party to the suit. Except plaint schedule ‘A’ item No.5 property, all other properties were the ancestral joint family properties. There was a family partition between the plaintiff and defendant No.1 on 22.1.2000 in the presence of the elders of the village, which was witnessed by a document titled as “Palu Patti” and the parties are in exclusive possession and enjoyment of the properties allotted to their respective shares. Since there was already a partition, the suit brought by the plaintiff for partition was not maintainable.
9. Since defendant Nos.1 and 6 contended that the suit in the absence of Hanumakka is bad for non- joinder of necessary parties, plaintiff filed I.A.No.19 to implead Hanumakka as defendant No.7, which came to be allowed. Still the plaintiff contended that Hanumakka is not the wife of Doddaiah and is stranger to the parties.
10. Defendant No.7 Hanumakka filed her written statement in tune with the written statement of defendant Nos.1 and 6. She claimed that she is the wife of Doddegowda @ Doddaiah and she has purchased the plaint schedule ‘A’ item No.5 property along with defendant No.6 out of her own funds and she is the absolute owner of the said property.
11. Defendant Nos.2 to 4 did not file any written statement.
12. On the basis of such pleadings, the trial court framed the following issues:
1. Whether the plaintiff proves that genealogy tree given in the plaint is correct one?
2. Whether the plaintiff proves that all the suit schedule properties are the ancestral and joint family properties and some of them are acquired out of the joint family funds and that the first defendant was the manager of the joint family as alleged?
3. Whether the defendants prove that the joint family was divided and palupatti has been executed 22-01-2000?
4. Whether the defendants prove, that first defendant had made improvements over the lands allotted to his share as contended in the written statement?
5. Whether the defendants further prove the allotment of properties as per the palupatti dtd. 22-01-2000?
6. Whether the defendants further prove that the suit schedule item No.5, land bearing Sy. No.43 is the self acquired property of Hanumakka as contended in the written statement?
7. Whether the suit is bad for non-joinder of necessary parties? (Deleted) 8. Whether the plaintiff is entitled to the relief of partition and separate possession of his alleged 3/10th share in all the suit schedule properties by metes and bounds as sought for?
9. What order or decree?
Addl.Issue 1.Whether the seventh defendant proves that she has purchased item No.5 bearing Sy.No.43 out of her own income and sold in favour of defendants 6 and 7? (Deleted) 13. The parties adduced evidence. In support of the case of the plaintiff, PWs-1 to 5 were examined and Exs.P1 to P33 were marked. On behalf of the contesting defendants, DW.1 to DW.6 were examined and Exs.D1 to D47 were marked.
14. The trial court after hearing the parties decreed the suit granting 6/25th share to plaintiff, defendant Nos.3 and 4 each, 6/25th to defendant No.1(a) to (e) together and 1/25th share to defendant No.7 on the following grounds:
(i) There is no dispute regarding the relationship of plaintiff and defendant Nos.1 to 6 and the nature of the properties except the plaint schedule item No.5 property;
(ii) Defendant No.7 is the wife of Doddegowda @ Doddaiah, which is admitted by the plaintiff’s own witness;
(iii) Defendant No.6 did not enter the witness box to prove her source of income to purchase plaint schedule item No.5 property;
(iv) The evidence on record shows that the plaint schedule item no.5 property was acquired out of the joint family nucleus;
(v) The very fact of putting plaint schedule item No.5 property for partition under Ex.D35 shows that defendant Nos.6 and 7 blended the property into common hotchpot;
(vi) The partition under Ex.D35 is not proved by cogent and consistent evidence;
(vii) The partition deed Ex.D35 set up by defendant Nos.1, 6 and 7 is inadmissible in evidence for want of registration;
(viii) In view of the amendment to Section 6 of the Hindu Succession (Amendment) Act, 2005, the daughters are also entitled to equal share.
15. The first appellate court by the impugned judgment and decree concurred with the findings of the trial court regarding the nature of the properties and proof of prior partition under Ex.D35. However, modified the shares from 6/25th to 1/4th on the following grounds:
i) On the death of Hanumakka, the property devolves on plaintiff and defendants;
ii) Defendant Nos.1(a) to (e) have failed to prove the Will Ex.D48 allegedly executed by Hanumakka in their favour by examining the attesting witnesses as required under Section 68 of the Evidence Act, therefore, the plaintiff and defendant Nos.1, 3 and 4 are entitled to equal 1/4th share.
16. This court on hearing the parties admitted the appeal to consider the following substantial questions of law:
1) Whether both the courts have committed any serious legal error in holding that suit item No.5 in the ‘A’ schedule is also a joint family property,on the assumption that the defendant Nos.6 and 7 have thrown that property to the common hotch pot as per the partition deed Ex.D.35, and also that the defendants 6 and 7 have not proved their independent source of income to purchase those properties?
2) Whether the trial court and the first appellate court have committed any serious legal error in allocating the shares of the suit schedule property in favour of respective shares much against the decision of the Apex court reported in 2016(2) SCC page 36 between Prakash and others –vs- Pulavathi and others.”
17. Sri.A.V.Gangadharappa, learned Counsel appearing for the appellants seeks to assail the impugned judgment and decree of the courts below on the following grounds:
(i) Ex.D35 though unregistered should have been looked into by the courts below for collateral purpose. The courts below committed error in rejecting the said document and that becomes a substantial question of law;
(ii) The entire survey number 43 of Doddasaggere village, Koratagere taluk measured 2 acres 2 guntas. Out of that, without mentioning the boundaries of the said property, only 1 acre 1 gunta was added as suit schedule ‘A’ item No.5 property.
(iii) Admittedly, the sale deed Ex.D41 in respect of Sy.No.43 measuring 2 acres 2 guntas was executed in favour of defendant Nos.6 and 7 on 5.4.1984.
(iv) Plaintiff did not adduce any evidence to show that the sale consideration was paid by Doddaiah, plaintiff or defendant No.1 or out of joint family nucleus.
(v) Even otherwise, by virtue of Section 14 of the Hindu Succession Act, the said property becomes the absolute property of defendants 6 and 7.
(vi) Since none of the parties set up the case of blending, the courts below were in error in making out new case of blending in the absence of any pleadings, issue or evidence in that regard.
(vii) The first appellate court committed gross error in allotting share to the plaintiff and other parties in the share of Hanumakka, though there was no pleading and evidence in that regard.
(viii) The courts below committed error in applying Hindu Succession (Amendment) Act 2005 to the case on hand.
In support of his contentions, he seeks to rely on the following judgments:
1. Prakash and Others –vs- Phulavati and Others – (2016) 2 SCC 36;
2. Yellapu Uma Maheswari And Another –vs- Buddha Jagadheeswararao And Others – (2015) 16 Scc 787 18. Per contra, Sri.K.V.Narasiman, learned counsel for respondent No.1 seeks to support the impugned judgment and decrees of the Courts below on the following grounds:
(i) When appellants admitted the relationship and the nature of the properties, the burden was on them to prove the prior partition set up by them under Ex.D-35.
(ii) The alleged partition purportedly took place under the document Ex.D35 itself, therefore, the said document requires registration. Under such circumstances, the courts below rightly held that the document was inadmissible.
(iii) The courts below rejected the partition under Ex.D35 not on the sole ground of admissibility, but also appreciating the evidence adduced to prove the partition.
(iv) The evidence of the plaintiff regarding partition was found unworthy of acceptance, therefore, the courts below rejected that.
(v) So far plaint schedule ‘A’ item No.5 property, the plaintiff did not claim share in Hanumakka’s interest in the property i.e., 1 acre 10 guntas, however, share was claimed only in the interest of defendant No.6.
(vi) Defendant No.6 did not enter the witness box to prove that she paid the sale consideration. Admittedly, the family owned several other properties, which showed that the family was having sufficient nucleus to purchase plaint schedule item No.5 property.
(vii) Defendant No.6 in her written statement itself admitted that item No.5 property was allotted to the share of first defendant that itself proves the fact of blending. Therefore, the courts below were justified in holding that defendant Nos.6 and 7 have thrown the property into the common hotchpot.
(viii) As per Section 16 of Hindu Succession Act, defendant No.7 was not competent to execute the Will. Even otherwise, said Will was not proved.
In support of his contentions, he seeks to rely on the following judgments:
1. Umakanth Rao –vs- Lalithabai – ILR 1988 Kar 2067;
2. Pugazhenthi and Another –vs- Sundari Ammal and others – 2013(2) CTC 160 Madras High Court;
3. Sri.Veerareddy –vs- Shri Anand Reddy and Others – Karnataka High Court RSA 5382/2009 (PAR) DD 18.3.2014.
Re: Prior partition under Ex.D35:
19. Learned Counsel for the appellants contends that the courts below rejected Ex.D35 the partition deed dated 22.1.2000 on the sole ground that the document is inadmissible. He further submits that having regard to Section 49 of the Registration Act, the courts below could have looked into the document for collateral purpose of finding out whether there was severance of status. He submits that a substantial question of law arises on the said point.
20. The trial court rejected the plea of partition under Ex.D35 on the following grounds:
(i) Under Ex.D35 no share is allotted to the daughters and the seventh defendant;
(ii) The allotment of share under Ex.D35 is highly unconscionable. The giant share is given to defendant No.1 and minimal share is given to the plaintiff;
(iii) As per the evidence of the contesting defendants themselves, at the time of partition under Ex.D35, no measurement of the properties was done and the properties were allotted on the basis of survey numbers.
(iv) None of the alleged witnesses to Ex.D35 hailed from the village of the plaintiff and defendants;
(v) The evidence adduced by the defendants regarding execution of Ex.D35 is not cogent and consistent. When DW-1 says that his father and plaintiff got typed Ex.D35 at Koratagere and brought that from Koratagere and themselves and witnesses subscribed the signatures to the same in their house in Gajamuddana village, DWs-2 to 5 state that draft of Ex.D35 was prepared in the village and one Chandraiah carried the draft to Koratagere and brought the fair and the document was executed in the village.
(vi) Since Ex.D35 was not proved, the question of admissibility of the document becomes inconsequential.
21. It is the settled principle of law that on the questions of fact, the first appellate court is the last court unless it is shown that the judgments of the courts below suffer perversity.
22. In the case on hand, the parties hailed from Gajamuddanahalli village. None of the attesting witnesses to Ex.D35 were from the said village. As rightly pointed out by the trial court, the daughters and Hanumakka defendant No.7 were not given share in the alleged partition Ex.D35.
23. As admitted by the defendants themselves, under Ex.D35, defendant No.1 was allotted nearly 30 acres of land and plaintiff was allotted only about 8 acres of land. There was no explanation for such disparity. Having regard to these circumstances, the courts below rightly held that Ex.D35 is unacceptable and execution of the same is not proved. Ex.D35 was rejected not on the sole ground of its admissibility. Therefore, rejection of Ex.D35 does not become the substantial question of law.
24. The substantial questions of law were formulated by this Court on 10.4.2017 on hearing both sides. It can be inferred that consciously no substantial question of law with regard to admissibility of Ex.D35 was framed. Therefore, there is no merit in the contention that Ex.D35 was rejected by the trial court on the sole ground of admissibility and on that aspect, substantial question of law arises. Under the circumstances, the judgments relied upon by both the counsel regarding admissibility of Ex.D35 cannot be pressed into service.
Re: Substantial question of law No.1:
25. This substantial question of law relates to plaint schedule ‘A’ item No.5 property. In the plaint schedule, the said property was mentioned as follows:
“Land bearing Sy.No.43, totally measuring 2-02 G. out of which 1-01 G. Asst. Rs.2-50.”
The boundaries of the said property are not given. Admittedly, Ex.D41 is the sale deed dated 5.4.1984 relating to the said property. Ex.D41 shows that the property in two bits i.e., 24 guntas and 1 acre 16 guntas of Doddasaggere village in Sy.No.43 was purchased from Rudramma, P.Manjunath and his family for a consideration of `15,000/-.
26. In the said document, the purchasers were shown as Jayamma/defendant No.6 and Hanumakka/defendant No.7. The boundaries of the said properties are as follows:
East : Land of Narasimhaiah, Papaiah Shetty West : Land of Doddaiah, Kadurappa, Gangappa, Narasimhaiah North : Galli, Land of S.M.Gangadharaiah South : Doddasaggere kere 27. In para-16 of the plaint, plaintiff contends that his father Doddaiah purchased plaint schedule item No.5 property in the name of defendant No.6 and one Hanumakka out of the joint family funds. Thus, he claimed said property to be joint family property.
28. It is pertinent to note that, initially he had not impleaded Hanumakka in the suit. He even denied her relationship with his father. Defendant Nos.1, 6 and 7 claimed that Hanumakka was the wife of plaintiff’s father Doddaiah i.e., plaintiff’s stepmother. Later he got impleaded Hanumakka as defendant No.7.
29. All along during the trial, he denied that Hanumakka was the wife of Doddaiah. However, both the courts below held that Hanumakka was the wife of Doddaiah. Plaintiff did not challenge the said finding by filing any cross-objection or appeal. Therefore, the said finding attained finality.
30. Though he claimed that his father purchased Sy.No.43 in the name of defendant No.6 and Hanumakka which, in all, measured 2 acres 20 guntas, in the suit, he included only 1 acre 10 guntas out of that. Whereas it is the case of defendant Nos.6 and 7, that defendant No.7 purchased the said property out of her own funds.
31. First of all, to claim share in suit item No.5 property, the share or interest of defendant No.6 in the property purchased under Ex.D41 shall be defined. If at all defendant No.6 has any interest in the property, it should have been shown what is her defined interest in that. Plaintiff has no explanation why he excluded another 1 acre 10 guntas in Sy.No.43. The property shown in plaint schedule ‘A’ item no.5 has no boundaries. Therefore, plaint schedule ‘A’ item No.5 property is not definite one and partition is not possible in the way it is included in the suit.
32. When the plaintiff claimed that Sy.No.43 was purchased in the name of defendant Nos.6 and 7 by his father, the burden was on him to prove that sale consideration for the purchase of property under Ex.D41 proceeded from his father. Exs.D39 and D40 are the sale deeds dated 30.7.1980 and 12.3.1981 in respect of Sy.No.34. The total extent of the property purchased under Exs.D39 and D40 is 4 acres 20 guntas. However, in plaint ‘A’ schedule item No.8 property, the extent of the said property was shown as 4 acres 4 guntas. They were purchased in the name of Doddaiah only. When Doddaiah purchased the said property in his name, why he purchases sy.No.43 in the name of defendant Nos.6 and 7 on 5.4.1984 is not explained.
33. Though there is a presumption with regard to the joint family, there is no legal presumption that the joint family owns the properties or the properties standing in the name of a female member of joint family are the properties of the joint family.
34. The Trial Court itself, referring to the judgment of this Court in M.A.Raju –vs-Annaiah and others 2003(3) KCCR SN 189 states that the legal proposition is that property ostensibly standing in the name of any coparcener could be presumed as a joint family property, if it is shown that family had sufficient nucleus and funds to acquire the property, but the said presumption does not apply when the property stands in the name of a female member and the party claiming such property has to convincingly prove that the female member is only an ostensible owner of the same and the property was purchased out of joint family funds. However, the trial Court fails to note that defendant Nos.6 and 7 are not the coparceners and such presumption is not available to the plaintiff.
35. Plaintiff did not examine either the vendor of the property or anybody to prove that, Doddaiah paid the sale consideration and such consideration proceeded from joint family nucleus. The trial Court proceeds on the premises that under Ex.D35 set up by defendant Nos.1, 6 and 7, the property was subjected for partition, therefore, it can be said that the property was thrown into the common hotch pot. The first appellate Court accepts such reasoning in toto.
36. At one breath, both the Courts reject Ex.D35 holding that the execution of the said document is not proved. At another breath, they rely on the same document to hold that the property was thrown into the common hotch pot.
37. Absolutely it was not the case of the plaintiff himself that defendant Nos.6 and 7 blended the property into the common hotch pot. First of all to invoke the principle of blending, parties have to admit the absolute ownership of the coparcener or the other member, who holds the property. Therefore, the theories that the property was purchased out of joint family funds in the name of defendant Nos.6 and 7 and that defendant Nos.6 and 7 thrown the same into the common hotch pot are self contradictory and mutually destructive.
38. The Trial Court itself refers to the judgment of this Court in Dasegowda –vs- Gangaraju 2003(1) KCCR 334 and the legal proposition laid down therein to the effect that when there is no pleading and issues raised as to whether a particular property was thrown into common hotch pot, the Court cannot suo-moto come to the conclusion that it was thrown into common hotch pot. It was further held that self-
acquired property will become joint family property, if it has been voluntarily thrown by the coparcener into the joint stock with an intention of abandoning all separate claims upon it.
39. Thus, it is clear that to invoke the principle of blending, there should be pleadings, issue and evidence that the owner of the property voluntarily abandoned all separate claims upon it. Even that proposition was applied only with reference to the coparcener and not the female member. Defendant Nos.6 and 7 were not even the parties to Ex.D35. Therefore, the Courts below were not right in holding that suit schedule item No.5 property was the joint family property and defendant Nos.6 and 7 had thrown that into the common hotch pot. Substantial question of law No.1 is answered accordingly.
Re: Substantial question of law No.2:
40. Plaintiff had claimed 3/10th share in all the suit schedule properties. The Trial Court awarded 6/25th share to plaintiff, legal representatives of defendant Nos.1 (together), 3 and 4 the daughters on the ground that in view of amendment to Section 6 of the Hindu Succession Act, 2005, daughters are entitled to equal share. The first appellate Court modified that and awarded 1/4th share each to plaintiff, defendant Nos.1, 3 and 4.
41. The Trial Court had granted 1/25th share to defendant No.7 Hanumakka on the ground that on a notional partition as wife of Doddaiah, she was entitled to equal share along with the plaintiff and other defendants in the share of Doddaiah.
42. So far as awarding equal share to daughters, relying upon the judgment of the Supreme Court in Phulavati’s case (supra), Sri.A.V.Gangadharappa, learned counsel submits that awarding of the equal share to the daughters is unsustainable.
43. In Phulavati’s case relied upon by the learned counsel for the appellants, it was held that Hindu Succession (Amendment) Act, 39 of 2005 has no retrospective operation. In para 23 of the said judgment, it was held as follows:
“23. Accordingly, we hold that the rights under the amendment are applicable to living daughters of living coparceners as on 9th September, 2005 irrespective of when such daughters are born. Disposition or alienation including partitions which may have taken place before 20th December, 2004 as per law applicable prior to the said date will remain unaffected. Any transactions of partition affected thereafter will be governed by the explanation.”
(Emphasis supplied) 44. Admittedly Doddaiah @ Doddegowda, the propositus died on 10.02.1999 i.e., prior to enactment of Hindu Succession (Amendment) Act, 39 of 2005 by the Central Government. However, prior to Hindu Succession (Amendment) Act, 39 of 2005, Hindu Succession (Karnataka Amendment) Act, 1990 – Karnataka Act No.23 of 1994 was brought into force w.e.f. 28.07.1994 bringing amendment to Section 6 of Hindu Succession act 1956 (Central Act). When succession opened on 10.02.1999, the parties were governed by Hindu Succession (Karnataka Amendment) Act, 1990 – Karnataka Act No.23 of 1994.
45. Relevant provisions of Sections 6-A(b) and (d) of the said Act read as follows:
“6-A. Equal rights to daughter in co- parcenary property.-
(b) at a partition in such a Joint Hindu Family the co-parcenary property shall be so divided as to allot to a daughter the same share as is allottable to a son:
Provided ............................................
Provided ............................................
(d) nothing in clause (b) shall apply to a daughter married prior to or to a partition which had been effected before the commencement of Hindu Succession (Karnataka Amendment) Act, 1990.”
46. As per Section 6-A(d) of Act No.23/1994, daughters married prior to 1990 were not conferred with the status of a coparcener and they were not entitled to share equal to that of a son.
47. Both the counsel submit that this Court in Sugalabai –vs- Gundappa A.Maradi and others ILR 2007 KAR 4790 has held that after coming into force of Hindu Succession (Amendment) Act, 2005 (Central Act), the Hindu Succession (Karnataka Amendment) Act, 1990 (Karnataka Act No.23 of 1994) is not applicable.
48. In Sugalabai’s case referred to supra, this Court referring to Article 254 of the Constitution of India, Section 6A(d) of Karnataka Act No.23 of 1994 and Section 6-A of Hindu Succession (Amendment) Act, 2005 held as follows:
“50. Thus, to conclude the discussion on the point under consideration, in the wake of the aforesaid principles laid down by the Apex Court and by this Court in the cases referred to above, and also taking into account the provisions contained in Section 6-A(d) of the Karnataka Act 1990 and the Central Amendment Act of 2005, I find myself fully in agreement with the submissions made by the learned senior counsel Sri. V. Tarakaram and learned counsel Sri. Desai and Sri. Balakrishna Shastry that Section 6-A(d) of the Karnataka Amendment Act 1990, cannot, but be termed as repugnant to the Central Act of 2005 and as such, the said provision contained in Section 6-A(d) which excludes a daughter, married prior to coming into force of the Karnataka Amendment Act, 1990, from being entitled to be treated as a co-parcener, is void and ceases to have any affect.
. ”
(emphasis supplied) 49. Defendant Nos.3 and 4 did not claim that they were married after coming into force of Karnataka Act No.23 of 1994. Succession opened in 1999. Amendment to Hindu Succession Central Amendment Act came into force in 2005. In Sugalabai’s case, it was held that Section 6-A(d) of Act No.23 of 1994 depriving married daughter of co- parcenary status being repugnant to Hindu Succession (Amendment) Act 39 of 2005 was void and ineffective, and therefore, the daughters were entitled to a share equal to that of a son. But the question is whether Section 6A(d) was abinitio void.
50. In Phulavati’s case referred to supra, there was no reference to Karnataka Act No.23 of 1994 or its effect and it was held that the Act No.39/2005 has no retrospective operation. The question of Section 6A(d) of Act No.23 of 1994 being repugnant to Section 6 of Act No.39 of 2005 arises only on the enactment of Act No.39 of 2005.
51. In this case when succession opened, Act No.39 of 2005 was not in existence at all. Having regard to the ratio in Phulavati’s case itself, regarding non-retrospective application of Act No.39 of 2005 and the facts of this case discussed above, it cannot be said that Section 6 A(d) of Act No.23 of 1994 was abinitio, void and ineffective as the repugnancy and invalidity occurs only on coming into force of Act No.39 of 2005. Therefore, the judgment in Sugalabai’s case is not applicable to the facts of this case.
52. It was not the case of defendant Nos.3 and 4 the daughters that they were married after 1994.
They did not file written statement and lead evidence. Having regard to their age and the above discussions, it can be concluded that they were married prior to 1990. Therefore, by operation of Section 6-A(d), they were not coparceners and not entitled to equal share. Such being the case, the courts below should have effected a notional partition and allotted equal share to plaintiff, defendant No.1 and Doddaiah. Then the share of Doddaiah was again to be allotted to all his Class-I heirs.
53. As per Section 10 Rule 1 of the Hindu Succession Act, 1956, if there are more widows than one, they together take one share. Therefore, plaintiff, defendant Nos.1, 3, 4 the daughters and the widows together were entitled to 1/5th share in 1/3rd share of Doddaiah. Defendant No.2 (co-widow) predeceased defendant No.7. Therefore plaintiff and defendant No.1 were entitled to 6/15th share and defendant Nos.3 and 4 each and widows together were entitled to 1/15th share.
54. It was argued that in 1/15th widows’ share, the trial court should have allotted half share to Ramakka and that share should have been allotted to her children.
55. The trial court granted the entire widow’s share to Hanumakka as defendant No.2 Ramakka predeceased her. Plaintiff did not challenge that decree, thereby that attained finality. Therefore, it is not open to the plaintiff to question that in this second appeal and that aspect does not become a substantial question of law in this appeal.
56. The first appellate court without discussing the aforesaid aspects, confirmed the allotment of equal share to the daughters. In addition to that, it allotted equal share to plaintiff, defendant Nos.1, 3 and 4 on the ground that Hanumakka’s share devolves upon them equally and the Will set up by the heirs of defendant No.1 is not proved.
57. Hanumakka died pending the first appeal.
Appellant Nos.1(a) to (e) the legal representatives of defendant No.1, who were already on record filed I.A.No.II before the first appellate court under Order XXII Rule 3 read with Rule 10 and Section 151 CPC to treat them as legal representatives of deceased fourth appellant Hanumakka, claiming that she has bequeathed her estate in their favour under the Will dated 14.5.2012. The application was contested.
58. The first appellate court vide order dated 3.9.2014 allowed I.A.No.II and treated them as the legal representatives of Hanumakka, subject to the proof of the Will. However, without giving any further opportunity to the appellants, the first appellate court held that they have not proved the Will by examining the attesting witnesses, therefore, the estate of Hanumakka devolves on all the parties equally.
59. It is pertinent to note that in the appeal, the plaintiff had not amended the plaint to claim the share in the estate of Hanumakka. The appellants had produced the Will for the limited purpose of enquiry under Order XXII Rule 3 CPC.
60. If at all the plaintiff claimed share in the estate of Hanumakka on her death, that was totally a different cause of action. Plaintiff has to work out his remedy for such claim in separate proceedings. Without any claim by the plaintiff and without affording opportunity to the appellants to prove the Will, the first appellate court was not right in granting share to the plaintiff, defendant Nos.3 and 4 in the share of Hanumakka and substantial question of law No.2 is answered accordingly.
61. For the aforesaid reasons, the appeal is partly allowed with costs.
The suit of the plaintiff is partly decreed. It is declared that the plaintiff is entitled to (1/3+ 1/15 = 6/15) 2/5th share, defendants-1(a) to (e) together are entitled to 2/5th share, defendant Nos.3, 4 and 7 are entitled to 1/15th share each in all the suit schedule properties except suit schedule ‘A’ item No.5 property.
The suit in respect of suit schedule ‘A’ item No.5 property is hereby dismissed.
Draw decree accordingly.
Sd/- JUDGE KNM/-