IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 3RD DAY OF DECEMBER 2019 BEFORE THE HON’BLE MR.JUSTICE ASHOK S. KINAGI Regular Second Appeal No. 337 of 2008 BETWEEN:
SMT GAYATHRI W/O.MANJUNATH, 37 YEARS, OCC: HOUSEHOLD R/O.7TH MAIN,7TH CROSS P.J.EXTENSION, SURESH BUILDING DAVANGERE-577 004.
(BY SRI. R GANESH KUMAR, ADVOCATE) ….APPELLANT AND:
1. MAHABALESHWARAPPA S/O.KARIBASAPPA, 60 YEARS, PHARMASIST,C.G.HOSPITAL, R/O ANJANEYA EXTENSION, 4TH CROSS, NEAR MANASA CONVENT SCHOOL, DAVANGERE-577 006.
2. RENUKAPPA S/O.KARIBASAPPA, SINCE DECEASED REPRESENTED BY HIS L.R.S 2A. SMT. SHARADAMMA W/O RENUKAPPA AGED ABOUT 60 YEARS 2B. SRI. NIRANJANA MURTHY S/O RENUKAPPA AGED ABOUT 31 YEARS 2C. CHANDRAKALA D/O RENUKAPPA AGED ABOUT 29 YEARS 2D. SRI. SURENDRA ALIAS SURESH S/O RENUKAPPA AGED ABOUT 26 YEARS 2E. REKHA D/O RENUKAPPA AGED ABOUT 24 YEARS ALL ARE RESIDING AT; LOKIKERE VILLAGE DAVANAGERE TALUK & DISTRICT.
3. MAHESHWARAPPA S/O.KARIBASAPPA, 45 YEARS, AGRICULTURIST R/O.LOKIKERE VILLAGE, DAVANGERE TALUK AND DISTRICT – 577 004.
4. BISTHAPPA S/O.KARIBASAPPA, 43 YEARS, AGRICULTURIST, R/O.LOKIKERE VILLAGE, DAVANGERE TALUK AND DISTRICT – 577 004.
5. SOMASHEKHARAPPA S/O.KARIBASAPPA, 41 YEARS, AGRICULTURIST, R/O.LOKIKRE VILLAGE, DAVANGERE TALUK AND DISTRICT-577 005, 6. SMT RUDRAMMA W/O.BASAVARAJAPPA, 46 YEARS, AGRICULTURIST ,R/O.CHIRADONI VILLAGE, CHANNAGIRI TALUK, SHIMOGA DISTRICT.-577 005.
7 . RAJASHEKHARAPPA S/O.GURUSIDDAPPA, KODIHALLI, MAJOR, AGRICULTURIST R/O.KANDAGALLU VILLAGE, DAVANGERE TALUK AND DISTRICT-577 002.
8. KODIHALLI CHANDRASHEKARAPPA S/O.KODIHALLI BASAPPA, 61 YEARS, AGRICULTURIST, R/O.LOKIKERE VILLATE, DAVANGERE TALUK AND DISTRICT-577 002.
9. KAIDALU HALAPPA S/O HALAPPA, SINCE DEAD BY HIS LRS (A) THIPPANNA S/O.LATE KAIDALU HALAPPA 62 YEARS (b) OBALAPPA S/O.LATE.KAIDALU HALAPPA, 62 YEARS (C) HALESH S/O.LATE KAIDALU HALAPPA, 21 YEARS.
ALL ARE R/AT LOKIKERE VILLAGE DAVANAGERE TALUK AND DISTRICT-577 002.
….RESPONDENTS (BY SRI. S P KULKARNI, ADVOCATE FOR R-1 TO R-5 & R-7, R-9 [B&C] VIDE ORDER DATED 5.12.2012 APPEAL AGAINST R-2 DISMISSED AS ABATED R-2(A-E), R-6, R-8 AND R-9(A) SERVED) THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 12.1.2006 PASSED IN R.A.NO.26/03 ON THE FILE OF THE ADDITIONAL SESSIONS JUDGE, FAST TRACK COURT-II, DAVANAGERE, ALLLOWING THE APPEAL SETTING ASIDE AND MODIFYING THE JUDGMENT AND DECREE DATED 21.12.2002 PASSED IN OS 124/2000 ON THE FILE OF THE PRL. CIVIL JUDGE, (SR. DVN), DAVANAGERE.
THIS RSA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT Aggrieved by the order dated 12.01.2006, passed in R.A.No.26/2003 by the Additional Sessions Judge, Fast Track Court-II, Davanagere, the appellant has filed the present appeal.
2. Brief facts of the case are as under: Plaintiff/appellant has filed a suit in O.S.No.124/2000 for partition and separate possession on the ground that she is the daughter of one Karibasappa. The suit schedule properties are the joint family and ancestral properties of plaintiff and defendant Nos.1 to 7. Plaintiff’s father Karibasappa had few ancestral properties. Out of hard work and other independent business and avocation, Karibasappa acquired other properties described in Schedule-B which are self-acquired properties. Hence all the properties described in Schedule-B are the joint family undivided properties of plaintiff and defendants, which are in joint possession and enjoyment of plaintiff and defendant Nos.1 to 7. Plaintiff’s one more sister by name Shanthamma died before marriage and issueless. During the lifetime of Karibasappa, Karibasappa assured all the daughters to give their legitimate share in all the suit schedule properties. Karibasappa died on 28.05.1992. After the demise of Karibasappa, the brothers of the plaintiff had assured their sisters that they are going to give their legitimate share in the Schedule-B properties. Defendant Nos.1 to 5 by giving assurance, dragged to give the shares. Defendant Nos.1 to 5 colluding together, have sold properties in Sy.No.57/2P (item No.3) measuring 1 acre 10 guntas to defendant No.9 and in turn purchased suit item No.7 from him. Again defendant No.4 sold item No.13 of Schedule-B property to defendant No.8. These are all made to defraud the plaintiff’s claim. Defendant Nos.1 to 5, after the death of Karibasappa, nominally got entered their names in several revenue records with regard to joint family properties, but there was no authenticated registered document between them regarding partition. Plaintiff and other sisters were always demanding defendant Nos.1 to 5 to give their legitimate share in the suit schedule properties. Defendant Nos.1 to 5 all along giving assurance to them, have not effected any partition. Hence the plaintiff was forced to file the suit.
Defendant No.6 has filed written statement assailing that the plaintiff can claim 1/8th share in the suit property.
Defendant No.3 filed written statement denying that plaintiff and defendant Nos.1 to 7 constitute members of the joint family and also denied that the plaintiff has got 1/8th share in all the suit properties. He further denied that either Karibasappa or defendant Nos.1 to 5 had promised to give share to the plaintiff in the suit properties. Karibasappa himself, during the year 1974, had effected partition of the joint family properties in the capacity of ‘kartha’ and this division is acted by all the parties. Khatha in respect of those properties are also changed to their respective names and respective parties are enjoying their respective shares. At the time of effecting such partition, Karibasappa had retained only 5 acres of land in Sy.No.112 and 13 guntas of land in Sy.No.126 of Lokikere Village. Only in respect of those properties, plaintiff has got a share. Defendant No.4 acquired 3 acres 31½ guntas of land in Sy.No.72/2B i.e., item No.7, during 1994. He had incurred debt and as such he has sold land in Sy.No.174 i.e., item No.13 which was allotted to his share, in favour of defendant No.8. Likewise, defendant No.1 sold 1 acre 10 guntas in Sy.No.57 to acquire 1 acre 10 guntas in Sy.No.72/1P i.e., item No.3. Item No.20 is not a joint family property. A portion of it measuring 15’ x 21’ consisting of a old house was acquired by defendant No.3 during 1994. Defendant No.3 further contends that plaintiff is entitled for 1/8th share only in respect of item Nos.10 and 11 of Schedule-B property. Alternatively it is contended that since Karibasappa died during 1992, under notional partition prior to his death between himself and his sons, since all the properties are ancestral properties, Karibasappa would get his 1/6th share in all suit schedule properties. Out of 1/6th share, plaintiff’s legitimate share would come to 1/48th share in Schedule-B properties and also contended that plaintiff also has to share the loan.
The Trial Court, on the basis of the above said pleadings, framed the following issues and additional issue:
1. Whether the plaintiff proves that the suit B schedule properties are joint family properties of herself and defendant No.1 to 7 ?
2. Whether the plaintiff proves that alienations referred in para 3 of the plaint are not binding on her share ?
3. Whether the defendants prove that there was partition in the joint family in 1974- 75 ?
4. Whether the defendants prove that the plaintiff is entitled for share only in respect of item No. 10 and 11 of ‘B’ schedule ?
5. Whether a portion measuring 15*21 feet consisting of an old house in item No.20 of ‘B’ schedule is the self acquired property of defendant No.3 ?
6. Whether the defendants prove that even if the plaintiff is entitled for a share in the schedule property she is entitled only for 1/48th share with liability to discharge her share in the debt ?
7. Whether the plaintiff is entitled for partition and separate possession of her 1/8th share in the schedule property ?
8. Whether the plaintiff is entitled for mesne profits ?
9. What decree ?
Additional Issue:
1. Whether the suit is bad for non joinder of necessary parties ?
Plaintiff examined herself as PW-1 and got marked Exs.P1 to P21. Defendants examined 8 witnesses as DWs.1 to 8 and got marked Exs.D1 to D33. On considering the oral and documentary evidence, the Trial Court held that the suit schedule properties are not the joint family properties of plaintiff and defendant Nos.1 to 7 and also held that the alienation made by defendant Nos.1 and 4 in favour of defendant Nos.8 and 9 are binding on the plaintiff and further held that the defendants have proved prior partition and defendants are entitled for share in item Nos.10 and 11 of the Schedule-B properties and further held that portion of the property measuring 15’ x 21’ consisting of a old house in item No.20 is self acquired property of defendant No.3 and that the plaintiff is entitled for 1/8th share in item Nos.10 and 11 and decreed the suit in part.
The plaintiff aggrieved by the judgment and decree passed in the above said suit, filed an appeal in R.A.No.26/2003 on the ground that the suit properties are the joint family ancestral properties and no partition took place in between Karibasappa and defendant Nos.1 to 5 as alleged by the defendants and they are entitled for share in all the items of Schedule-B properties. The Appellate Court, after hearing the parties, has framed the following points for consideration:
1. Whether the suit ‘B’ schedule properties are the joint family properties of plaintiff and defendants 1 to 7 ?
2. Whether there was a partition in the joint family of Karibasappa during his life time during 1974-75 ?
3. Whether the plaintiff/appellant is entitle for 1/8th share in all the suit properties ?
4. Whether the impugned Judgment and Decree needs to be interfered with ?
5. For what decree or order the parties are entitled ?
The Lower Appellate Court answered point No.1 in affirmative holding that Schedule-B properties are the joint family properties of plaintiff and defendant Nos.1 to 7 and negated the finding in regard to prior partition alleged to have been held between Karibasappa and defendant Nos.1 to 7 in the year 1974-75 and held that the plaintiff is entitled for 1/48th share in item Nos.1, 2, 4 to 12 and 14 to 20 of the suit schedule properties and allowed the appeal in part vide order dated 12.01.2006, modifying the judgment of the Trial Court.
Aggrieved by the judgment and decree passed by the Lower Appellate Court, the plaintiff has filed the present appeal. This court has admitted the appeal on the following substantial questions of law :
(1) Whether the Lower Appellate Court is justified in law in holding that the appellant is not a coparcener and not entitled to 1/8th share since she got married before the amendment of Hindu Succession Act, 2005, came into force (Sec.6 of H.S.Act) ?
(2) Whether the substitution of Section 6 of the Hindu Succession (Amendment), 2005 (Act 39 of 2005) will prevail over Hindu Succession (Karnataka Amendment) Act of 1990 ?
(3) Whether the courts below were right in applying the provision to Section 6 of the Hindu Succession Act to the present case ?
3. Heard arguments of the learned counsel for the parties and perused the records.
4. It is admitted fact that the suit schedule properties are the ancestral joint family properties of the parties to the suit i.e., plaintiff and defendant Nos.1 to 7, as the same was acquired by Karibasappa in the partition that took place between Karibasappa and his brothers. The said fact is also admitted by defendant No.3 in the written statement. Defendant No.3 in his written statement in paragraph 15 has pleaded as under:
“If for any reason the Hon’ble Court were to come to the conclusion that there was no division between Karibasappa and his sons in the year 1974-75 and the ‘B’ schedule properties are still the joint family properties of the plaintiff and defendant Nos.1 to 7, then in such an event also the plaintiff will not be entitled for 1/8th share in all the properties, because, Karibasappa died in the year 1992. At the time of his death, there would have been a notional division between himself and his sons and his share in the joint family properties would have been defined. It would have come to 1/6th share of all the properties. Then the plaintiff would have been entitled to 1/48th share in ‘B’ schedule properties.”
5. The Appellate Court has held that the defendants have failed to prove prior partition of the year 1974-75. Against the said finding, defendant Nos.1 to 5 have filed an appeal in RSA No.1029/2006. This court, vide order dated 02.08.2006, dismissed the said appeal and the said finding has attained finality. Now the question is, whether the appellant is a coparcener and whether she is entitled for equal share ?
6. Hon'ble Apex Court in the case of PRAKASH & ORS. VS. PHULAVATI & ORS. [AIR 2016 SC 769] has held that the rights under the amendment are applicable to living daughters and living coparceners as on 9th September 2005, irrespective of when such daughters are born. In view of the said judgment, as on the date of amendment of Hindu Succession Act, the father was not alive, since Karibasappa died in the year 1992, much before amendment and the daughters cannot be treated as living coparceners and not entitled for an equal share. Hon'ble Apex Court in the case of DANAMMA @ SUMAN SURPUR & ANR. VS. AMAR & ORS. (AIR 2018 SC 721) has held as under:
“23. Accordingly, 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 effected thereafter will be governed by the Explanation.”
The Hon'ble Apex Court in the aforesaid decision, referring to the earlier decision in the case of Prakash (supra), has reiterated that the rights under the provisions of amended Section 6 of the Hindu Succession Act, would be applicable to living daughters of living coparceners as on 09.09.2005, irrespective of when such daughters are born.
7. The principle of notional partition is applicable when a male Hindu, governed by Mithakshara Law, dies. In the matter of devolution of his interest in the coparcenery property and having regard to the proviso to Section 6 of the Hindu Succession Act, as it stood prior to amendment, the father of plaintiff died in the year 1992 and hence, the principle of notional partition would have to be applied in the instant case, as the father of the plaintiff died prior to 09.09.2005.
8. The Lower Appellate Court, considering the said aspect, has rightly awarded a share to the plaintiff by applying amended provision of law i.e., notional partition has to be effected between Karibasappa and defendant Nos.1 to 5, i.e., Karibasappa would be entitled to 1/6th share as on the date of his death and the plaintiff and other defendants would be entitled to 1/48th share i.e., the share of their father Karibasappa, in item Nos.1, 2, 4 to 12 and 14 to 20 of Schedule-B properties.
9. In view of the above, the substantial questions of law are answered against the appellant. Accordingly, I do not find any grounds to interfere with the order passed by the Lower Appellate Court. Hence, I proceed to pass the following:
Order The appeal is dismissed.
Sd/- Judge RD