IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR.JUSTICE B.M.SHYAM PRASAD REGULAR SECOND APPEAL NO. 33 OF 2017 BETWEEN:
1 . SRI. C.S. GANESHAPPA 63 YEARS, SON OF LATE SHIVAPPA.
2. SRI.C.S. SATHISHA 60 YEARS, SON OF LATE SHIVAPPA.
3. SRI.C.S.NATARAJ 48 YEARS, SON OF LATE SHIVAPPA, ALL ARE R/AT CHILURU VILLAGE, HONNALI TALUK, DAVANAGERE DISTRICT. PIN CODE-577 217.
... APPELLANTS (BY SRI. CHANDRAIAH., ADVOCATE) AND:
1. SMT. VIJAYA KUMARI 54 YEARS, WIFE OF BASAVARAJAPPA, R/AT 1ST CROSS, 3RD MAIN, YEMMI SHIVAMMA’S HOUSE, VINOBANAGAR, DAVANAGERE PIN CODE - 577 001.
2. SMT.PUSHPAVATHI 49 YEARS, WIFE OF K.MALLIKARJUNAIAH, HOUSE HOLD WORKER R/AT BEHIND POLICE QUARTERS, 1ST MAIN, 1ST CROSS HARLAPUR EXTNTION, HARIHARA, DAVANAGERE DISTRICT, PIN CODE - 577 001.
... RESPONDENTS (BY SRI. VIGNESHWAR S. SHASTRI., ADVOCATE FOR R1 & R2) THIS REGULAR SECOND APPEAL IS FILED UNDER SEC.100 R/W ORDER XLII OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 06.02.2015 PASSED IN R.A. NO. 64/2011 ON THE FILED OF THE I ADDL. DISTRICT JUDGE, DAVANAGERE, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 09.06.2011 PASSED IN O.S. NO. 34/2006 AND 106/2007 ON THE FILE OF THE SENIOR CIVIL JUDGE HARIHAR.
THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
Judgment This appeal is filed by the defendants in O.S.No.34/2006 on the file of the Senior Civil Judge, Harihar (for short, the “civil Court”) calling in question the judgement and decree dated 9.6.2011 therein and the judgment dated 6.2.2015 in R.A.No.64/2011 on the file of the I Additional District and Sessions Judge, Davanagere (for short, the “appellate Court”).
2. The three appellants are the sons of late Sri C.S.Shivappa and late Smt. Susheelamma and the two respondents are the daughters of the said couple. The relationship is not disputed. There is also no dispute that the suit schedule properties, which comprise of agricultural lands of C.Kadadakatte, Goravarahatti and Chilur villages and residential properties of Chilur village, are ancestral properties of late Sri C.S. Shivappa. The respondents, the daughters, have filed the suit in O.S.No.34/2006 seeking partition arraying their brothers, the appellants herein, as defendants, and the appellants have filed the Cross Suit in O.S.No.106/2007 against the respondents challenging the Will dated 11.4.2003, which the respondents asserted was executed by their mother, Late Smt. Susheelamma in their favour.
3. The civil Court has clubbed these two suits, and has disposed of these by its common judgment dated 9.6.2011. The appellants’ suit in O.S.No.106/2007 is decreed disbelieving the Will dated 11.4.2003 and this decree insofar the suit in OS No. 106/2007 has attained finality as the respondents have not impugned the same. The respondents’ suit in O.S.No.34/2006 is also decreed granting equal shares to the respondents in the suit schedule properties. The appellants have in their appeal in R.A.64/2011 impugned the common judgment dated 9.6.2011 insofar as the suit in O.S.No.34/2006 challenging granting shares to the respondents, and this appeal in RA No. 64/2011 is dismissed confirming the civil Court’s judgment.
4. In the present appeal, the appellants do not dispute that the respondents being their sisters would be entitled for a share in the suit schedule properties. However, their grievance with the judgment of the Courts below is because the respondents have been granted equal shares in the suit schedule properties with them, and according to the appellants, the respondents would only be entitled to a share in the father’s share in a notional partition. In support of this canvass, the learned counsel for the appellants relying on the decision of the Hon’ble Supreme Court in Danamma @ Suman Surpur and another vs. Amar and others, reported in AIR 2018 SC 721, and contends that, in view of the undisputed fact that the father Sri C.S.Shivappa died in the month of January 1988, much before the amendment, the respondents cannot be granted an equal share. The learned counsel relies upon Paragraph-23 of this decision which reads as follows:
“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.”
5. As such, the substantial question that arises for consideration in this appeal is:
“Whether the courts below are justified in granting 1/5th share viz., equal shares to the daughters (respondents) along with the appellants though the respondents do not dispute that the father, late Sri C.S. Shivappa died in the month of January 1988 that is much prior to the date of Hindu Succession (Amendment) Act, 2005 ”.
6. The Hon’ble Supreme Court in the decision in Danamma @ Suman Surpur and another vs. Amar and others supra referring to the earlier decision in Prakash vs. Phulavati reported in (2016)2 SCC 36 has reiterated that the rights under the provisions of amended Section 6 of the Hindu Succession Act, 1956 vide the Hindu Succession (Amendment) Act, 2005 would be applicable to living daughters of living coparceners as on 5.9.2005 irrespective of when such daughters are born. The proposition that a daughter to be entitled to the benefit of the amended provisions of Section 6 of the Hindu Succession Act, 1956, the father should have been alive as of the date of the Hindu Succession (Amendment) Act, 2005 is reiterated in the recent decision of the Hon’ble Supreme Court in Mangammal @ Thulasi and another vs. T.B. Raju and others, reported in (2018)15 SCC 662, wherein the Honble Supreme Court has held thus:
“16. It is pertinent to note here that recently, this Court in Danamma @ Suman Surpur & Anr. Vs. Amar & Ors, 2018(1) Scale 657 dealt, inter-alia, with the dispute of daughter’s right in the ancestral property. In the above case, father of the daughter died in 2001, yet court permitted the daughter to claim the right in ancestral property in view of the amendment in 2005. On a perusal of the judgment and after having regard to the peculiar facts of the Danamma (supra), it is evident that the Division Bench of this Court primarily did not deal with the issue of death of the father rather it was mainly related to the question of law whether daughter who born prior to 2005 amendment would be entitled to claim a share in ancestral property or not? In such circumstances, in our view, Prakash & Ors. (supra), would still hold precedent on the issue of death of coparcener for the purpose of right of daughter in ancestral property. Shortly put, only living daughters of living coparceners would be entitled to claim a share in the ancestral property.”
7. In the light of the admitted facts that the father, late Sri C.S.Shivappa died in the year 1988 and that the suit schedule properties are the ancestral properties, and recent reiteration as aforesaid by the Hon’ble Supreme Court in the case of Mangammal supra (the applicability of such proposition is not being disputed by the learned counsel for the parties), the declaration of 1/5th share to each of the respondents along with the appellants would not be justified. The respondents would be entitled for a share in the father’s share which would be 1/5th share in the 1/4th share that he would have been entitled to in a notional partition immediately before his death. As such, each of the daughters viz., the respondent Nos.1 and 2 would be entitled for 1/20th share and the sons – the appellants would be entitled for share equally.
8. Therefore, the substantial question of law is answered in favour of the appellants and the judgment and decree in O.S.No.34/2006 and the judgment and decree in R.A.64/2011 are modified declaring that the respondent Nos.1 and 2 – the plaintiffs would be entitled for 1/20th share each and each of the appellants would be entitled to equal shares in the remaining share. For the foregoing, the following:
ORDER The appeal is allowed, and the impugned common judgment and decree insofar as the suit in O.S. No. 34/2006 on the file of the Senior Civil Judge, Harihara and the judgment and decree in R.A. No. 64/2011 on the file of the I Addl. District and Sessions Judge, Davanagere are modified declaring that the respondent Nos.1 and 2 would be entitled to 1/20th share each and the appellants would be entitled to equally in the remaining share in the suit schedule properties. The office to draw decree accordingly.
SD/- JUDGE nv Ct:sr