IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 4TH DAY OF DECEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE K. NATARAJAN REGULAR SECOND APPEAL NO.1115 OF 2012 (PAR) BETWEEN:
1. MAHESH S/O LATE PUTTANANJAPPA, AGED ABOUT 55 YEARS, 2. SMT. RATHNAMMA W/O. LATE PUTTANANJAPPA, AGED ABOUT 56 YEARS, BOTH ARE RESIDENT OF DASANOOR VILLAGE, KOULANDE HOBLI, TALUK NANJANAGUD, DISTRICT MYSORE.
3. CHINNAMMA W/O. SHIVAMALLAPPA, D/O LATE KUMBAPPA, AGED ABOUT 51 YEARS, R/O DASANOOR VILLAGE, KOULANDE HOBLI, NANJANAGUD TALUK, MYSORE DISTRICT. ...APPELLANTS (BY SRI SYED AKBAR PASHA, ADVOCATE FOR SRI MAHANTESH S. HOSMATH, ADVOCATE) AND:
1. PUTTATHAYAMMA W/O. LATE MAHADEVAPPA, AGED ABOUT 71 YEARS, 2. PUTTABUDDI S/O LATE MAHADEVAPPA, AGED ABOUT 53 YEARS, 3. BASAVANNA S/O LATE MAHADEVAPPA, AGED ABOUT 51 YEARS, 4. NAGESH S/O LATE MAHADEVAPPA, AGED ABOUT 41 YEARS, 5. SUDHA W/O LATE RAJU, AGED ABOUT 41 YEARS, 6. CHETHAN S/O LATE RAJU, AGED ABOUT 26 YEARS, 7. SHILPA D/O LATE RAJU, AGED ABOUT 41 YEARS, RESPONDENTS NO.1 TO 7 ARE R/O. HANUMAPURA VILLAGE, KOULANDE HOBLI, TALUK NANJANAGUD, DISTRICT MYSORE.
8. SHIVABASAPPA S/O LATE KUMBAPPA, SINCE DEAD BY LRs, 8(a). SHIVAMMA W/O. LATE SHIVABASAPPA, AGED ABOUT 55 YEARS, 8(b). MAHADEVSWAMY@ KAPPANNA S/O LATE SHIVABASAPPA, AGED ABOUT 32 YEARS, 9. SHIVAPPA S/O LATE KUMBAPPA, SINCE DEAD BY LRs, 9(a). NANJAMMA W/O. LATE SHIVAPPA, AGED ABOUT 55 YEARS, 9(b). MANJULA D/O LATE SHIVAPPA, AGED ABOUT 28 YEARS, 9(c). MAHESH S/O LATE SHIVAPPA, AGED ABOUT 24 YEARS, 10. PUTTASWAMAPPA S/O LATE KUMBAPPA, AGED ABOUT 54 YEARS, THE RESPONDENTS 8 TO 10 ARE RESIDENT OF DASANOOR VILLAGE, KOULANDE HOBLI, TALUK NANJANAGUD, DISTRICT MYSORE.
… RESPONDENTS (BY SRI SANTHOSH KUMAR M.B., ADVOCATE FOR R8 (a & b) AND R9 (a & c);
R1, R3, R9(b), R10 ARE SERVED;
NOTICE TO R2, R4, R5, R6, R7 IS HELD SUFFICIENT VIDE COURT ORDER DATED 09/07/2013.) * * * THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE, 1908, AGAINST THE JUDGMENT AND DECREE DATED 13/03/2012 PASSED IN R.A.No.797/2010 ON THE FILE OF THE V ADDITIONAL DISTRICT AND SESSIONS JUDGE, MYSORE, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 08/07/2010 PASSED IN O.S.No.125/2006 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., NANJANGUD.
THIS REGULAR SECOND APPEAL IS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T This appeal is filed by the appellants being aggrieved by the judgment and decree passed by the V Additional District and Sessions Judge, Mysuru in R.A.No.797/2010 dated 13.03.2012 for having decreed the suit of the plaintiff by setting aside the judgment of dismissal passed by Senior Civil Judge, Nanjanagud (hereinafter referred as ‘trial Court) in O.S.No.125/2006 dated 08.07.2010.
2. Heard the arguments of learned counsel for the appellants and learned counsel for the LRs of respondent Nos.8 and 9. Learned counsel for respondent Nos. 1 to 7, 9(b) and 10 served, but unrepresented.
3. The rank of the parties before the trial Court is retained for the sake of convenience.
4. The case of the plaintiffs before the trial Court is that the plaintiff has filed a suit for partition and separate possession of 1/6th share in the suit schedule properties more fully described in the suit schedule contending that the suit schedule properties are the ancestral properties belonging to his grand father, namely Kumbappa and the said Kumbappa had six children, namely 1. Mahadevappa, 2.Shivabasappa, 3.Puttananjappa, 4.Shivappa, 5.Puttaswamappa and 6.Chinnamma-the daughter.
5. The further case of the plaintiffs is that after the death of their grand father and grand mother, they made some family arrangements with reference to the suit schedule properties and accordingly they were enjoying their share divided among themselves. But subsequently, the defendants were trying to interfere and alienate the share enjoyed by the plaintiffs and therefore, the plaintiffs filed the suit.
6. In pursuance to the notice issued by the trial Court, the defendants appeared before the Court, filed written statement but defendant No.6-daughter has not filed any written statement. In his written statement, defendant No.1 has taken specific contention that there was a partition effected long back among the family members, the properties were equally shared in the year 1970 by the sons of Kumbappa and a share is also given to defendant No.6- daughter of Kumbappa. In the year 1974, the plaintiff himself executed the relinquished deed in favour of defendant No.1-Shivabasappa in respect of portion of schedule property (item No.3) and even on 12.06.1967, the plaintiff also executed mortgage deed in favour of Veerabhadrappa stating that the properties were fallen to their share which clearly establishes that their was a partition. Even the legal notice issued by the plaintiffs to the defendants also clearly shows that there was a partition among them. Thereby, the partition was already effected and acted upon and the suit of the plaintiff does not survive for consideration. Hence, prayed to dismiss the same.
7. Based upon the rival pleadings, the trial Court framed the following issues:
“1) Whether Plaintiffs prove that they themselves and defendants constitute Hindu joint family and suit schedule properties are joint family properties?
2) Whether Plaintiffs prove that they are entitled for 1/5th share in the suit schedule properties?
3) Whether Defendants 2 and 3 prove that partition was already effected as contended in para 8(a) of the written statement and therefore plaintiffs are not entitled for partition?
4) Whether Plaintiffs are entitled for Mesne Profits? If so, to what extent and from whom?
5) To what reliefs the parties are entitled to?
6) What Order or Decree?”
8. Plaintiff No.2 examined himself as PW.1 and he has also examined two more witnesses and defendant Nos.1 and 5 examined themselves as DWs.1 and 5 and also examined three more witness. Plaintiffs in support of their case got marked ten documents and defendants got marked four documents.
9. After considering the evidence on record, the trial Court accepted the contention of the defendants and dismissed the suit vide judgment dated 08.07.2010. Being aggrieved by the same, the plaintiffs filed an appeal before the First Appellate Court in R.A.No.797/2010. The First Appellate Court after hearing the arguments framed following points for consideration:
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4. AiÀiÁªÀ DzÉñÀ?
10. After hearing the arguments, the First Appellate Court allowed the appeal filed by the plaintiffs and decreed the suit by granting 7/36th share to the plaintiffs and 1/36th share to defendant No.6, 7/36th share to defendant Nos.1, 4 and 5. Assailing the same, defendant Nos.2, 3 and 6 have filed the second appeal.
11. Learned counsel for the appellants strenuously contended that there was a partition held in the year 1970 itself and acted upon, thereafter in the year 1974, the 1st plaintiff himself executed relinquished deed as per Ex.D4 in favour of defendant No.1-Shivabasappa and even in the year 1967, the plaintiffs executed mortgage deed in favour of Veerabhadrappa as per Ex.D1. These two documents clearly establish that there was an oral partition and acted upon between the parties. Even on perusal of the legal notice issued by the plaintiffs as per Ex.D2 to the defendants on 15.09.2006 which clearly goes to show that there was a partition held among the parties. Such being the case, the First Appellate Court ought to have dismissed the appeal but decreed the suit. The trial Court has rightly dismissed the suit whereas the First Appellate Court disbelieved the documents produced by the defendants and also evidence of the defendants. Therefore, contended that there is a substantial question of law involved in this appeal for admitting the appeal and prayed for allowing the appeal.
12. Per contra, learned counsel appearing for respondent Nos.8 and 10 who are defendant Nos.1 and 5 before trial Court also supported the contention of the appellants’ counsel and it is also brought to the notice that the appellant No.3-Chinnamma, though she was defendant No.6 in the original suit, though suit was dismissed against her but no appeal was filed before the First Appellate Court but she has come up in this appeal and she has contended that the partition is held in the family. The contesting respondent Nos.1 to 7 who are the plaintiffs before the trial Court were served, but, unrepresented.
13. Upon hearing the arguments of learned counsel for the parties, the substantial question of law that arises before this Court is as under:
Whether the First Appellate Court erred in allowing the appeal even though the oral partition took place prior to 1970 and acted upon by the parties and not required to reopen the said partition?
14. Learned counsel for the appellants strenuously contended that the partition was effected prior to 1970 itself and Ex.D4 clearly establishes the partition effected among the parties. In this regard, it is not in dispute that Ex.D4 is a relinquish deed which shows that the partition of suit schedule property (item no.3) has been executed by the 1st plaintiff in favour of defendant No.1-Shivabasappa on 20.11.1974 by relinquishing her right. Ex.D1 also not seriously disputed by the plaintiffs that on 12.06.1967, the mortgage deed executed in favour of Veerabhadrappa by the plaintiff. Ex.D2-legal notice issued by the plaintiffs also shows that the suit properties have fallen to the share of the plaintiffs and that the defendants are trying to interfere with the same. These documents go to show that there was an oral partition effected prior to the commencement of the Hindu Succession Amendment Act, 1956 [as substituted by Hindu Succession (Amendment) Act, 39 of 2005]. It is worth mentioning that re-opening of the partition which was effected prior to 2004, the provisions of Section 6 of Hindu Succession Act which 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 had been a son;
(c) xxxxxxx”
Section 6(5) reads as follows:
“6(5) - Nothing contained in this section shall apply to a partition, which has been effected before 20.12.2004.
Explanation – For the purposes of this section “partition” means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.”
15. On a bare reading of the explanation of Section 6(5) of clearly goes to show that the partition must be prior to 20.12.2004 and the partition must be executed by way of registered partition deed as required under the Registration Act, 1908 or partition must be effected by decree of Court.
16. Admittedly, in this case there is no document produced by the defendants to show that the partition effected prior to 1970 has been registered partition or at least prior to the commencement of the Hindu Succession Amendment Act 2005. As per explanation to 6(5) of the Act, if any partition effected and registered in accordance with registration Act, prior to December, 2004 which is not meant for re-opening. Therefore, once the partition though may be acted upon but the fact remains the partition is not been registered as required in the Registration Act. Therefore, the contention of learned counsel for the appellant with regard to partition effected prior to 1970 and whether acted upon or not, but no registered partition effected prior to December 2004. Therefore, the contention of the defendant counsel cannot be acceptable that the partition is not meant for re- opening.
17. On perusal of the judgment of the First Appellate Court admittedly, evidence shows that the prepositors of the family died prior to 1970. Though the parties have shared the properties, but there is no registered partition. Defendant No.6 is unmarried daughter. In view of the judgment of the Hon’ble Apex Court in the case of Prakash and others vs. Phulavati and others reported in (2016) 2 SCC 36, Section 6 of the Hindu Succession Act apply only when both coparcener and his daughter were alive on date of commencement of Amendment Act i.e., 09.09.2005, irrespective of date of birth of daughter and coparcener who died thereafter. Therefore, defendant No.6 is not entitle for the share in the ancestral property as the father is not alive as on the date of commencement of the Act. Thereby, the husband of plaintiff No.1 and the father of other plaintiffs are entitled for 1/6th share along with defendant Nos.1, 4 and 5 alongwith the husband of defendant No.2 and Kumbappa, the father notionally gets 1/6th share.
18. Defendant No.6 gets 1/6th share of her father’s (Kumbappa) 1/6th share, thereby she get 1/36th share, the plaintiffs altogether gets 7/36th share. Defendant No.1 would get 7/36th share. Defendant Nos.2 and 3 together gets 7/36th share. Defendant Nos.4 and 5 gets 7/36th share in the suit schedule property.
19. The First Appellate Court after considering the evidence on record has rightly held that the parties are entitled for the above said shares.
20. Therefore, absolutely there is no substantial question of law arises for admitting this appeal, therefore, appeal is liable to be dismissed. However, it is clarified that in view of relinquishment, plaintiff’s share in favour of defendant No.1 on 21.11.1984 which can be adjusted with the share of the plaintiff while drawing up final decree proceedings.
The property mortgaged by the plaintiff in favour of Veerabhadrappa also adjusted out of the share of the plaintiff.
Accordingly, I pass the following order: The appeal of the appellants is dismissed. I.As are also dismissed.
SD/- JUDGE GBB