Mallawwa D/O Shivappa Jaganur vs Mutteppa S/O Shiddappa ...
2021 Latest Caselaw 1655 Kant

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            IN THE HIGH COU RT OF KARNAT AKA
                    DHARWAD B ENCH


       DAT ED THIS THE 26 T H DAY OF FEB RUARY, 2021


                         PRESENT

 THE HON'B LE MR. JU ST ICE SREENIV AS HARISH KUMAR

                           AND

           THE HON'B LE MR. JU ST ICE P.N.DESAI


         REGU LAR FIRST A PPEAL NO.100229/ 2014


B ETWEEN:

MALLAWWA D/O SHIVA PPA JAGANU R
AGE: 56 YEARS, OCC: AGRICU LTURE,
R/O. NAGANU R, TQ: GOKAK,
DIST : B ELAGAVI- 590001
                                            ...APPELLANT .

(B Y SHRI SHIVARA J S B ALLOLI, ADVOCATE.)


AND:

1.     MU TTEPPA S/O SHIDDAPPA CHIGADOLLI
       AGE: 55 YEARS, O CC: AGRICULTU RE,
       R/O. NAGANUR, TQ: GOKAK,
       DIST: B ELAGAVI- 590001

2.     PUNDALIK S/O SHIDDAPPA CHIGADOLL I
       AGE: 42 YEARS, O CC: AGRICULTU RE,
       R/O. NAGANUR, TQ: GOKAK,
       DIST: B ELAGAVI- 590001

3.     SATTEPPA S/O SIDDAPPA CHIGADOLL I
       AGE: 53 YEARS, O CC: AGRICULTU RE,
       R/O. NAGANUR, TQ: GOKAK,
       DIST: B ELAGAVI- 590001
                               2




4.   RAYAPPA S/O SHIDDAPPA CHIGADO LL I
     AGE: 45 YEARS, O CC: AGRICULTU RE,
     R/O. NAGANUR, TQ: GOKAK,
     DIST: B ELAGAVI- 590001

5.   RAMCHANDRA S/O SHIDDAP PA CHIGADOLLI
     AGE: 49 YEARS, O CC: AGRICULTU RE,
     R/O. NAGANUR, TQ: GOKAK,
     DIST: B ELAGAVI- 590001
                                      ....RESP ONDENT S.

(R.1 AND R.3 T O R.5 - NOT ICE SERV ED;
R.2 - APPEAL AB ATED, VIDE ORDER DATED 8.10.2020.)


     THIS REGU LAR F IRST A PP EAL IS FILED UNDER
ORDER 41 RU LE 1 READ WIT H SECTION 96 OF CP C,
PRAYIN G TO SET ASIDE T HE JUD GMENT AND DECREE
DATED 31.10.2014, PASSED IN O.S.NO.172/ 2011, ON
THE FILE OF THE I ADDL. SEN IOR CIV IL JU DGE, G OKA K,
ETC.,.

     THIS AP PEAL COMING ON FOR ADMISSION T HIS
DAY, SRI SREENIV AS HARISH KU MAR, J, DELIVERED T HE
FOLL OWING:


                      JUDGMENT

We have heard the appellant's counsel at the

stage of admission. The trial Court dismissed the

suit answering preliminary issue i.e., issue No.11 in

negative and aggrieved by this ord er, the app ellant

has preferred this app eal.

2. Appellant is the plaintiff in the suit and

she is the only daughter of one Shivapp a Jag anur,

who had sold the prop erty to the defend ants by

executing sale deeds d ated 13.12.1985 and

22.11.2000. She plead ed that she had half share in

the said p roperties and that her father could not

have executed the sale deeds in favour of the

defend ants. She stated that the sale d id not bind her

half share in the suit p roperties. The d efendants

opposed the suit by contending that the plaintiff was

not entitled to claim p artition and that plaintiff's

father Shivappa had absolute rig ht over the

property. The trial Court framed a preliminary issue

as follows:

"Whether the suit is maintainable as Shri Shivapp a had sold the entire suit properties to defendants prior to the coming into force of 2005 Amendment Act to the Hindu Succession Act 1958?"

3. The finding of the trial Court is that the

sales in favour of defendants were effected on

13.12.1985 and 22.11.2000, long before the cut off

date 20.12.2004 prescrib ed in the Amendment Act.

The p laintiff was not a cop arcener. Therefore she

cannot claim partition. For these reasons the trial

Court answered that the suit is not maintainab le.

4. The learned counsel for the app ellant

Shri Shivaraj Balloli argues that even though the

plaintiff cannot claim cop arcenary right und er the

Central Amendment b rought to section 6 of the

Hindu Succession Act, yet she could take advantag e

und er the Karnataka Amendment, which was given

into effect from 30.7.1994. The trial Court should

have examined the whole case from this angle.

Therefore, the suit is very much maintainab le.

5. We are unab le to agree with the argument

of Shri Shivaraj Balloli. As rig htly held by the trial

Court, the p laintiff cannot claim p artition as her

father had sold the prop erty to d efend ants by

executing two sale deeds on 13.12.1985 and

22.11.2000. The cut off d ate p rescribed under the

Central Amendment to section 6 of Hindu Succession

Act is 20.12.2004. Examined whether the plaintiff

can take ad vantag e of the Karnataka amendment, it

has to b e stated that since her marriag e app ears to

have taken place before 30.7.1994, she cannot claim

to b e a coparcener even according to Karnataka

Amendment. It is not in dispute that she is married.

The suit was filed in the year 2011 and at that time

her age was shown to be 53 years. Ex.P.18 is the

birth certificate, which shows that her date of b irth

is 20.2.1958. Since she hails from a villag e, her

marriage mig ht have taken place when she was

around 20 years old. That means, the marriage

might have taken place before the year 1980. In this

view, the Karnataka Amendment cannot also be

applied . The plaintiff has no right to question the

sale mad e by her father. Rightly the suit has b een

dismissed by the trial Court. We do not find merit in

this appeal. The app eal is dismissed.

Sd/-

JUDGE

Sd/-

JUDGE Mrk/-