Karnataka High Court
Smt. Vijayalaxmi vs Anilkumar And Ors on 25 July, 2024
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NC: 2024:KHC-K:5309-DB
RFA No.200150 of 2018
IN THE HIGH COURT OF KARNATAKA,
KALABURAGI BENCH
DATED THIS THE 25TH DAY OF JULY, 2024
PRESENT
THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
REGULAR FIRST APPEAL NO.200150 OF 2018 (PAR/POS)
BETWEEN:
SMT. VIJAYALAXMI
W/O LATE ASHOK JAMADAR,
AGE: 32 YEARS,
OCC: PRIVATE SERVICE,
R/O SANTOSH COLONY,
NEAR AMBABAI TEMPLE,
JEWARGI ROAD, KALABURAGI.
...APPELLANT
(BY SMT. HEMA L. KULAKARNI, ADVOCATE)
Digitally signed by
BASALINGAPPA
SHIVARAJ AND:
DHUTTARGAON
Location: HIGH
COURT OF 1. ANILKUMAR
KARNATAKA
S/O DEVINDRAPPA JAMADAR,
AGE: 47 YEARS,
OCC: AGRICULTURE,
2. MANJULA
W/O DEVINDRAPPA JAMADAR,
AGE: 37 YEARS,
OCC: AGRICULTURE,
3. SAGAR
S/O ANILKUMAR,
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NC: 2024:KHC-K:5309-DB
RFA No.200150 of 2018
AGE: 26 YEARS,
OCC: PRIVATE SERVICE,
RESPONDENT NO.1 TO 3 ARE
R/O HALCHERA,
TQ: CHINCHOLI,
DIST: KALABURAGI - 585 305.
4. SMT. DAMAYANTI
W/O LATE DEEPAK CHITTAMPALLI,
AGE: 37 YEARS,
OCC: HOUSEWIFE,
R/O MANTHAL,
TQ: BHALKI,
DIST: BIDAR - 585 328.
5. SMT. KALAVATIBAI
W/O SHANKREPPA HUGAR,
AGE: 72 YEARS,
OCC: HOUSEWIFE
6. SHIVAKUMAR
S/O SHANKREPPA HUGAR,
AE: 47 YEARS,
OCC: AGRICULTURE,
RESPONDENT NO.5 AND 6 ARE
R/O HALCHERA,
TQ: CHINDHOLI,
DIST: KALABURAGI - 585 305.
...RESPONDENTS
(BY SRI PRAKASH S. MAISALGI, ADVOCATE FOR R1 TO R3;
SRI SANJAY M. KULKARNI, ADVOCATE FOR R5 AND R6;
NOTICE TO R4 IS SERVED)
THIS REGULAR FIRST APPEAL IS FILED UNDER ORDER 41
RULE 1 READ WITH SECTION 96 OF CPC, SET ASIDE THE
IMPUGNED JUDGMENT AND DECREE DATED 23.02.2018
PASSED IN O.S.NO.01/2016 BY THE SENIOR CIVIL JUDGE,
CHINCHOLI, AND DECREE THE SUIT ENTITLING THE
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NC: 2024:KHC-K:5309-DB
RFA No.200150 of 2018
APPELLANT FOR EQUAL SHARE IN THE ENTIRE SUIT SCHEDULE
PROPERTY, IN THE INTEREST OF JUSTICE AND EQUITY.
THIS REGULAR FIST APPEAL COMING ON FOR FINAL
HEARING, THIS DAY, THE JUDGMENT WAS DELIVERED
THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE ASHOK S. KINAGI) This Regular First Appeal is filed by the appellant/plaintiff challenging the judgment and preliminary decree dated 23.02.2018 in O.S.No.1/2016 passed by the Senior Civil Judge, Chincholi, insofar as awarding extent of share in the suit schedule properties in favour of the appellant.
2. For the sake of convenience, the parties are referred to as per their ranking before the trial court. The appellant is the plaintiff and respondents are the defendants.
3. Brief facts of the case are that, the plaintiff filed a suit for partition and separate possession and injunction against the defendants. It is the case of the plaintiff that, -4- NC: 2024:KHC-K:5309-DB RFA No.200150 of 2018 Devindrappa S/o Ghalleppa Jamadar was propositus of the family. He died about 27 years back leaving behind his wife Sachdevi, plaintiff, defendant No.1 to 4 as his legal heirs of the properties. The wife of Devindrappa died about 4 years back. The plaintiff and defendant Nos.1 and 4 are the only legal heirs. The plaintiff and defendant Nos.1 and 4 are the only legal heirs of deceased Devindrappa and defendant Nos.5 and 6 are the strangers to the family and their names are appearing in column Nos.9 and 12 of the RTC in respect of land bearing Sy.No.111. It is contended that suit schedule properties are the ancestral properties of the plaintiff and defendant Nos.1 to 4 and defendant No.2 is the wife of defendant No.1. Defendant No.3 is the son of defendant No.1 and he got mutated the suit lands in the name of defendant Nos.2 and 3 behind the back of the plaintiff. It is contended that plaintiff and defendant Nos.1 and 4 are the members of Hindu undivided family and there is no partition effected between the plaintiff and defendant Nos.1 and 4. The plaintiff being the coparcenar is entitled for share in the coparcenary properties. After the death of her -5- NC: 2024:KHC-K:5309-DB RFA No.200150 of 2018 father, the plaintiff requested the defendants to effect the partition, but the defendants refused to effect the partition. Hence, cause of action arose for the plaintiff to file the suit for partition and separate possession.
4. The defendant Nos.1 to 3 filed written statement admitting the relationship and suit schedule properties are the ancestral properties. It is contended that after the death of Devindrappa and Sachdevi and after the marriage of plaintiff and defendant No.4, defendant No.1 alone is the legal heir of deceased Devindrappa, as the plaintiff and defendant No.4 were married. The suit of the plaintiff is not maintainable as per the amendment of Hindu Succession Act. It is contended that marriage of the plaintiff was performed about 20-25 years back and father died about 27 years back. Hence, there is no cause of action to file the suit and the plaintiff has not included all the joint family properties and some of the properties were left out by the plaintiff. Hence, prayed to dismiss the suit with costs.
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5. Defendant Nos.5 and 6 filed the separate written statement admitting the relationship between plaintiff and defendant Nos.1 and 4 and admitted that the properties belongs to Devindrappa and other averments of the plaint are denied. It is contended that the land bearing Sy.No.111 total measuring 28 acres 19 guntas of Halchera village, out of which the defendant Nos.5 and 6 each purchased 4 acres under registered sale deed dated 19.02.1999. On the strength of the registered sale deed name of defendant Nos.5 and 6 were effected mutation. Since from the date of purchase, defendant Nos.5 and 6 are in possession of the said property. It is contended that the suit filed by the plaintiff is not maintainable and further contended that sale deed was executed in the year 1999. Hence, prayed to dismiss the suit.
6. The trial court on the basis of the pleadings of the parties framed the following issues.
i) Whether plaintiff proves that the suit schedule properties are ancestral properties of plaintiff and defendants ?-7-
NC: 2024:KHC-K:5309-DB RFA No.200150 of 2018
ii) Whether plaintiff proves that she has legitimate share in the properties as alleged in the plaint ?
iii) What order or decree?
7. The plaintiff in order to prove her case, examined herself as PW.1 and got marked 4 documents as Exs.P1 to 4. In rebuttal, defendant No.6 was examined as DW.1 and got marked 18 documents as Exs.D1 to 18. Defendant No.1 was examined as DW.2 and examined two witnesses as DWs.3 and 4. Defendant No.6 examined 2 witnesses as DWs.5 and 6.
8. The trial Court after hearing the learned counsel for the parties and on the assessment of the oral and documentary evidence, answered issue Nos.1, 2 in the affirmative, issue No.3 partly in affirmative, issue No.4 as per the final order. It is ordered that suit filed by the plaintiff was partly decreed. It is also held that plaintiff is entitled for 1/6th share in suit schedule item Nos.1 to 3 and 5 to 7. The suit of the plaintiff in respect of item No.4 and suit against defendant Nos.5 and 6 was dismissed. -8-
NC: 2024:KHC-K:5309-DB RFA No.200150 of 2018
9. The plaintiff, aggrieved by the judgment and decree passed by the trial court in awarding 1/6th share, has filed this appeal.
10. Heard the learned counsel for the plaintiff and also learned counsel for defendants.
11. Learned counsel for the plaintiff submits that, the trial Court placing a reliance on the judgment of Hon'ble Apex Court in the case of Danamma alias Suman Surpur and another Vs. Amar and another reported in (2018) 3 SCC 343 has granted the notional share in the suit schedule properties. She further submits that as per Section 6 of the Hindu Succession (amendment) Act, 2005, the daughters are treated as coparcenars by birth. Further, she submits that even though if the father was not alive, still the plaintiff can claim share in the ancestral property as coparcenar. Further in order to buttress her arguments, she has placed reliance of the judgment of the Hon'ble Apex Court in the case of Vineetha Sharma Vs. Rakesh Sharma and others -9- NC: 2024:KHC-K:5309-DB RFA No.200150 of 2018 reported in (2020) 9 SCC 1. Hence, she submits that the plaintiff is entitled for equal share with that of defendant Nos.1 and 4. Hence, on these grounds, she prays to allow the appeal and modify the share granted by the trial court.
12. Per contra, learned counsel for the defendant Nos.4 and 5 submits that, defendant Nos.5 and 6 have purchased the item No.4 of the suit schedule property in the year 1999 and PW.1 has admitted that the said sale is for the family and legal necessity and the said item No.4 was sold for family and legal necessity and also admitted that the marriage of defendant No.4 was performed by obtaining loan from others. Hence, he submits that as per Section 6 of the Hindu Succession Act, 1956, 'any alienation taken place prior to 20.12.2004 is saved' and the Trial Court was justified in dismissing the suit in respect of item No.4 of the suit schedule property. Hence, on these grounds he prays to dismiss the appeal.
13. We have perused the records and considered the submissions of the learned counsel for the parties.
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14. The short point involved in this appeal is only in regard to the quantification of share.
1) Whether the Trial Court was justified in granting 1/6th share of the plaintiff in suit schedule properties item No.1 to 3 and 5 to 7?
2) What order or decree?
15. Point No.1: It is the case of the plaintiff that, plaintiff in order to substantiate her case examined herself as PW.1 and she has reiterated the plaint averments in the examination-in-chief and produced the documents to establish that the suit schedule properties are the ancestral properties of the plaintiff, defendant Nos.1 and 4. Even the defendant Nos.1 to 3 filed written statement admitting that the suit schedule properties are the ancestral properties of the plaintiff, defendant Nos.1 and 4 and also admitted the relationship of plaintiff with defendant Nos.1 to 3. In the course of cross examination she has admitted that in respect of item No.4 of the suit schedule property, the said property was sold for the family benefit and also admitted that her
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NC: 2024:KHC-K:5309-DB RFA No.200150 of 2018 mother had performed the marriage of defendant No.4 by obtaining the loan from others. Admittedly, the said sale deed was executed on 19.02.1999. The defendant No.5 has produced the registered sale deed marked as Exs.D1 and 2. The said documents were executed prior to 20.12.2004 as per Section 6 of Hindu Succession Act. The trial court considered Section 6 of Hindu Succession (Amendment) Act, 2005, held that any alienation before 20.12.2004, shall not effect or invalidate any alienation and Exs.D1 and 2 came to be executed on 19.02.1999. Therefore, the said alienation is before the Amendment Act came into force and further the said sale is for family necessity and the sale deeds are binding on the plaintiff. Insofar as the quantum of share allotted to the plaintiff, in view of the amendment to Section 6, the plaintiff being a daughter. The parties are Hindus and they are bound by Madras School of Law are governed by Mitakshara law. Daughter being a coparcenar by birth. A daughter by birth is coparcenar in her own right in the same manner as the son. Admittedly, the plaintiff is a coparcenar, she is entitled for equal share in the suit properties as the
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NC: 2024:KHC-K:5309-DB RFA No.200150 of 2018 per view of law laid down by the Hon'ble Apex Court in the case of Vineeta Sharma (referred supra). First if the partition is effected between Devindrappa, defendant No.1, defendant No.4 and plaintiff, each of them will get 1/4th share. Admittedly, Devindrappa died leaving behind his wife Sachdevi and defendant Nos.1, 4 and plaintiff, his 1/4th share is to be divided between defendant No.1, 4 and plaintiff i.e., 1/4 X 1/3 = 1/12. Thus, the plaintiff is entitled for 4/12th share i.e., 1/3rd share in the suit schedule properties. In a notional partition, father and three children take 1/4th share each. After the death of the father, his 1/4th share devolves equally on his 3 children i.e., each of 3 children will take 1/3rd of 1/4th share in a notional partition. Hence, each children will get 1/4 + 1/12 = 4/12th share i.e., 1/3rd share in the suit properties. In view of the above discussion, point No.1 is answered partly in the negative and partly in the affirmative holding that the plaintiff is entitled for 4/12th i.e., 1/3rd share in item Nos.1 to 3 and 5 to 7 of the suit properties.
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16. Point No.2: Hence, in view of the above discussion, we proceed to pass the following:
ORDER i. The Regular First Appeal is allowed in part.
ii. The judgment and preliminary decree passed by the trial court is hereby modified. iii. The plaintiff is entitled for 4/12th i.e., 1/3rd share in item Nos.1 to 3 and 5 to 7.
iv. No order as to costs.
Sd/-
(ASHOK S. KINAGI)
JUDGE
Sd/-
(RAJESH RAI K)
JUDGE
SKS
List No.: 1 Sl No.: 2