V K Mallikarjuna vs Smt Sowbhagyamma
2021 Latest Caselaw 1280 Kant

       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 21ST DAY OF JANUARY, 2021

                            BEFORE

            THE HON'BLE MR. JUSTICE E.S. INDIRESH

         REGULAR SECOND APPEAL NO.266 OF 2014

Between:

V.K.Mallikarjuna
S/o K S Karibasappa
Aged about 40 years
R/o Vaddanahalli Village/Post
Davanagere Taluk
Davanagere District-577 556.
                                                    ...Appellant
(by Shri Mallikarjuna R., Advocate)

And:

       1. Smt. Sowbhagyamma
          W/o late Danappa, 52 years
          Avaregere Village
          Davanagere Taluk &
          District-577 003.

       2. Smt. Hoovakkamma
          W/o Gadigeppa, 50 years

       3. Smt. Gangamma
          W/o Haleshappa, 47 years
          (2) & (3) both R/at
          Vaddanahalli Village/Post
          Davanagere Taluk
          Davanagere District-577556.
                              2




 4. Smt. Shanthamma @
    Lalithamma
    W/o A M Ramesh, 37 years
    Anagodu Village
    Davanagere Taluk &
    District - 577 556.

 5. Smt. Nagamma
    W/o Revanasiddappa, 35 years
    Kabburu Village
    Davanagere Taluk &
    District - 577 003.

 6. Smt. Sudha
    W/o Nagarajappa, 33 years
    Kabbigere Village
    Chitradurga Taluk &
    District - 577 501.

 7. Smt. Manjamma
    W/o late Kadlebalunagappa
    Aged about 52 years

 8. Chandrashekar
    S/o late Nagappa
    Aged about 30 years

 9. Prasanna
    S/o late Nagappa
    Aged about 26 years
    (7) to (9) are R/at
    Vaddanahalli Village/Post
    Davanagere Taluk
    Davanagere District-577556.

10. Smt. Shobha
    W/o Kalleshappa
    Aged about 28 years
    R/at Honnururu Village
                                3




         Davanagere Taluk &
         District-577 556.

    11. Mohith Kumar Oswal
        S/o Gnana Chand Oswal
        Major
        D.No.220/1, III Cross
        III Main, P J Extension
        Davanagere City
        & District-577 001.

                                                  ...Respondents

(by Shri V B Siddaramaiah, Advocate for R1 to R6;
 Shri D P Mahesh, Advocate for R11;
 R7 to R10 are served and unrepresented)

      This Regular Second Appeal is filed under Section 100 r/w
Order XLI Rule I of the Code of Civil Procedure against the
judgment and decree dated 8.11.2013 passed in RA.No.13 of
2011 on the file of the II Additional District Judge, Davanagere,
dismissing the appeal and confirming the judgment and decree
dated 24.07.2010 passed in OS.No.52 of 2006 on the file of the
II Additional Senior Civil Judge, Davanagere.

      This Appeal coming on for further hearing, this day, the
court delivered the following:

                         JUDGMENT

This appeal is filed by the defendant No.5 in Original Suit

No.52 of 2006 on the file of II Additional Senior Civil Judge at

Davanagere, whereby the appeal preferred by the defendant

No.5 in Regular Appeal No.13 of 2011 came to be dismissed by

the First Appellate Court.

2. For the sake of convenience, the parties in this appeal

are referred to as per their status before the trial Court.

3. Plaintiffs filed suit for relief of declaration, partition and

separate possession of their legal share in the suit schedule

property. The plaint averments are that one Kadlebalu

Siddappa, who is the propositus, died about 40 years back,

leaving behind plaintiffs and defendants No.1 to 4. Defendants

No.5 and 6 claim to be the purchasers of the suit schedule

property. It is further averred in the plaint that said Kadlebalu

Siddappa had five daughters and one son viz. Nagappa.

Ekantamma, wife of said Kadlebalu Siddappa, died earlier to her

husband and therefore, the daughters of said Kadlebalu

Siddappa have filed Original Suit No.52 of 2006 against the wife

and children of Nagappa claiming share in the suit schedule

property belonging to their father-Kadlebalu Siddappa. The said

suit was resisted by defendants No.1 to 4 denying the plaint

averments. Defendant No.5 also appeared and filed written

statement contending that he has purchased suit item No.2

bearing Survey No.72/1A measuring one acre of land and

plaintiffs also admitted the said fact and therefore the defendant

No.5 sought for dismissal of the suit. Though defendant No.6

appeared, however, did not file written statement. On the basis

of the pleadings referred to above, the trial Court formulated

issues for its consideration. In order to substantiate their case,

plaintiff No.4 was examined as PW1 and produced eleven

documents which were marked as Exhibits P1 to P11. Defendant

No.2 was examined as DW1 and produced three documents

which were marked as Exhibits D1 to D3. Defendant No.5 was

examined as DW2 and got marked documents as Exhibits D4 to

D6. The trial Court, after considering the material on record and

on appreciation of oral evidence on record, by its judgment and

decree dated 24th July, 2010 decreed the suit of the plaintiffs in

part, declaring that the plaintiffs No.1 to 4 and legal

representatives of late Rudramma, i.e. plaintiffs No.5 and 6

altogether are entitled for 5/6th share in the suit schedule

property and Defendant No.1 including defendants Nos.2 to 4

are entitled for remaining 1/6th share in the suit schedule

property excluding six guntas of land acquired by the

Government in Survey No.22/1 of Vaddianahalli village,

Davanagere Taluk. The trial Court, further held that the sale

deeds made in favour of the defendants No.5 and 6 are valid

only to an extent of share of defendants No.1 to 4 and

accordingly, claim against defendants No.5 and 6 was dismissed.

Being aggrieved by the judgment and decree made by trial

court, defendant No.5 preferred Regular Appeal in 13 of 2011 on

the file of II Additional District Judge at Davanagere. The said

appeal was resisted by respondents. The First Appellate Court,

after considering the material on record and on re-appreciating

the finding recorded by the trial Court, by its judgment and

decree dated 08th November, 2013 dismissed the appeal and

thereby confirmed the judgment and decree passed by the trial

Court in OS No.52 of 2006. Being aggrieved by the judgment

and decree passed by the Courts below, the defendant No.5 has

preferred the instant Regular Second Appeal.

4. This Court, by order dated 24th June, 2004 has

formulated following substantial questions of law:

"1. Whether the courts below are justified in

including the suit schedule land item No.2 as

Joint Hindu Undivided Family's property when

Section 6(1) and proviso thereto of the Hindu

Succession (Amendment) Act, 2005 provides

saving of transaction of sale of properties taken

place before the cut-off date 20.12.2004, in

view of the sale of item No.2 of the suit schedule

property by a registered sale deed dated

31.03.1998 to the appellant?

2. Whether the law laid down by the Hon'ble

Supreme Court of India in G. SHEKAR Vs.

GEETHA reported in AIR 2009 SC 2649 which

has opined that Section 6 of the amended

provision of Hindu Succession (Amendment) Act,

2005 applies to the facts of this case?"

5. I have heard Shri Mallikarjuna R., learned Counsel for

the appellant and Shri V.B. Siddaramaiah, learned counsel

appearing for respondents No.1 to 6; and Shri D.P. Mahesh,

learned counsel appearing for respondent No.11. Though

respondents No.7 to 10 served, remained unrepresented.

6. Shri Mallikarjuna, learned counsel appearing or the

appellant contends that in view of the amendment to Section 6

of the Hind Succession Act, 1956 whereunder, as per proviso to

Section 6 of the Hindu Succession Act, the sale made by the

coparcener prior to 20th December, 2004 is saved and thereby

the defendant No.5 has purchased item No.2 of suit schedule

property from Nagappa son of Kadlebalu Siddappa on 31st

March, 1998 and in view of the same, the finding recorded by

both the courts below is require to be set aside.

7. Per contra, Shri V.B. Siddaramaiah, learned counsel

appearing for respondents No.1 to 6 supports the judgment and

decree passed by the Courts below.

8. I have carefully examined the finding recorded by the

courts below as well as the original records. Perusal of the

record would clearly indicate that the plaintiffs are the children of

Kadlebalu Siddappa & Ekantamma, and defendants Nos.1 to 4

are wife and children of Kadlebalu Nagappa and defendants No.5

and 6 claim to be the purchasers of land from Nagappa. Having

considered the reasons assigned by both the courts below and in

view of the law declared by the Hon'ble Supreme Court in the

case of VINEETA SHARMA v. RAKESH SHARMA AND OTHERS

reported in AIR 2020 SC 3717, wherein the Constitution Bench

of Hon'ble Supreme Court has interpreted Section 6 of the Hindu

Succession Act, 1956. The substituted provision of Section 6 of

the Hindu Succession (Amendment) Act 1956 reads as under:

"6. Devolution of interest in coparcenary property.-

(1) On and from the commencement of 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 have had if she had been a son;

c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara Coparcener shall be deemed to include a reference to a daughter of a coparcener:

Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of

property which had taken place before the 20th day of December, 2004."

9. In view of the proviso to Section 6(1) of the Act, and

the law declared by the Hon'ble Supreme Court in the case of

VINEETA SHARMA (supra) referred to above, whereunder the

sale made prior to 20th December, 2004, is saved as per the

proviso to Section 6(1) of the Act and the same was considered

by the Hon'ble Supreme Court at paragraph 129 of the judgment

and thereby, the submission made by the learned counsel

appearing for the appellant is accepted. In view of the law

declared by the Hon'ble Supreme Court in the case of VINEETA

SHARMA (supra), the judgment and decree passed by the

judgment and decree passed by the court below is modified in an

extent of proviso to Section 6(1) of the Hindu Succession Act.

Hence, the following:

ORDER

1. Appeal is allowed;

2. Judgment and decree dated 08th November 2013

passed in Regular Appeal No.13 of 2011 by the II

Additional District and Sessions Judge at

Davanagere confirming the judgment and decree

dated 24th July, 2010 passed in OS No.52 of 2006

by the II Additional Senior Civil Judge at

Davanagere, is affirmed.

Sd/-

JUDGE

lnn