Bharathi Bai vs Chandrabai
2021 Latest Caselaw 3402 Kant

                          1




          IN THE HIGH COURT OF KARNATAKA
                 KALABURAGI BENCH

     DATED THIS THE 25TH DAY OF SEPTEMBER, 2021

                       BEFORE

      THE HON'BLE MR.JUSTICE ASHOK S. KINAGI


           RSA No.2830 of 2007 (DEC/INJ)

BETWEEN:

BHARATHI BAI
W/O NAGORAO
AGED ABOUT 38 YEARS
OCC: HOUEHOLD,
R/O CHAMBOL VILLAGE,
TALUK AND DIST: BIDAR - 585401
                                        ...APPELLANT

(BY SRI. R S SIDHAPURKAR, ADV.)

AND:

1.     CHANDRABAI
       W/O TUKARAM,
       AGED ABOUT 41 YEARS
       OCC: HOUSEHOLD,
       R/O CHAMBOL VILLAGE,
       TALUK AND DIST: BIDAR - 585401

2.     SONABAI
       W/O DATTATREYA
       AGED ABOUT 70 YEARS
       OCC: HOUSEHOLD,
                              2




     R/O CHAMBOL VILLAGE,
     TALUK AND DIST: BIDAR - 585401
                                           ...RESPONDENTS
(BY SRI. B C JAKA, ADV. FOR R1;
    R2 - SERVED)

     THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT AND DECREE DTD 16.8.07 PASSED IN R.A.NO
2/2002 ON THE FILE OF THE PRESIDING OFFICER, FAST
TRACK COURT-IV, BIDAR, PARTLY ALLOWING THE APPEAL
AND SETTING ASIDE THE JUDGEMENT AND DECREE DTD
21.12.2001 PASSED IN O.S.NO.128/1990 ON THE FILE OF
THE PRL. CIVIL JUDGE, (SR.DN), BIDAR.


     THIS APPEAL COMING ON FOR FINAL HEARING,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:-


                       JUDGMENT

This appeal is filed by defendant No.1

challenging the judgment and decree dated

16.08.2007, passed in R.A.No.2/2002 by the Fast

Track Court IV, Bidar.

2. For the sake of convenience, parties are

referred to as per their ranking before the Trial Court.

Appellant is the defendant No.1, respondent No.1 is

the plaintiff and respondent No.2 is the defendant

No.2 before the Trial Court.

3. Facts giving rise to the filing of the appeal

briefly stated are as under:

Plaintiff has filed a suit for declaration and

injunction in respect of property bearing Sy.No.48

measuring 9 acres 17 guntas situated at Chambol

Village, Bidar Taluk and to declare that defendant

No.1 is not the widow of deceased Nagurao and

further the plaintiff is entitled to receive compensation

amount awarded in MVC No.161/1989 and

alternatively for the relief of partition and separate

possession in respect of the suit schedule property on

the ground that deceased Nagurao was the owner and

in possession of the suit land. The plaintiff is the

sister of deceased Nagurao who died in the road traffic

accident. The MACT has awarded compensation.

Defendant No.1 left the company of her brother

Nagurao and married for the second time and she has

no issues. Therefore, the plaintiff being the only

successor to late Nagurao, is entitled to succeed to

the estate left behind by Nagurao. Hence, plaintiff

filed a suit.

3.1 Defendant No.1 filed written statement

denying the averments made in the plaint. It is

contended that defendant No.1 is the wife of deceased

Nagu Rao. Deceased Nagu Rao died on 16.11.1989

due to road traffic accident. It is further contended

that defendant No.1 being the legal heir of deceased

Nagurao filed a claim petition before the MACT

seeking compensation in MVC No.161/1989. It is

contended that the plaintiff has made a false claim

seeking for compensation. It is contended that there

is no cause of action for the plaintiff to file the instant

suit. Hence, prayed to dismiss the suit.

3.2 The Trial Court, on the basis of pleadings of

parties, framed the following issues:

1. Whether the plaintiff proves that she is lawful owner and possessor of the suit land?

2. Whether the plaintiff proves that she is entitled to receive the compensation amount in respect of death of late Nagu Rao in MVC No.161/1989?

3. In the alternative whether the plaintiff proves that she has got half share in the suit property and also in the compensation amount?

      4. Whether       the    plaintiff        proves   that    the
           defendant No.1 has married                   with one
           Manohar, S/o Dhulba Kale and so her
           rights     in     the       suit     property       have
           extinguished?

5. Whether the plaintiff proves that defendant No.1 deserted her husband late Nagu Rao, one and half years after her marriage? And she is not widow of late Nagu Rao?

6. Whether this Court has no jurisdiction to decide the question as to who is competent to receive the compensation amount?

7. Whether the plaintiff proves the cause of action alleged in the plaint?

8. What order or decree?

3.3 Plaintiff in support of her case got

examined herself as PW-1 and also examined four

witnesses as PW-2 to PW-5 and got marked

documents Exs.P-1 to P-6. Defendant No.1 got

examined herself as DW-1 and examined three

witnesses as DW-2 to DW-4 and got marked

documents Exs.D-1 to D-9. The trial Court, after

recording evidence and considering the material on

record, held that the plaintiff has failed to prove that

she is the lawful owner and possessor of the suit land

and further held that the plaintiff failed to prove that

she is entitled to receive compensation amount in

respect of death of late Nagu Rao in MVC

No.161/1989 and further held that the plaintiff has

failed to prove that she has got half share in the suit

property and also in the compensation amount. The

trial Court further held that the plaintiff has failed to

prove that defendant No.1 has married with one

Manohar S/o Dhulba Kale and so her rights in the suit

property has extinguished and held that the plaintiff

has failed to prove that defendant No.1 deserted her

husband late Nagu Rao one and half years after her

marriage and she is not a widow of late Nagu Rao.

The trial Court further held that the plaintiff has failed

to prove the cause of action as alleged in the plaint.

Consequently, dismissed the suit of the plaintiff.

3.4 Plaintiff aggrieved by the judgment and

decree passed by the trial Court, filed appeal in

R.A.No.2/2002. The appellate Court framed the

following point for consideration:

"Whether the impugned judgment of dismissing the suit of the plaintiff keeping open the partition as ordered by the Trial Court is unsustainable one?"

and held that the plaintiff has proved that the

impugned judgment dismissing the suit of the plaintiff

keeping open the partition as ordered by the trial

Court is unsustainable and accordingly allowed the

appeal and decreed the suit of the plaintiff for

partition and separate possession and awarded half

share in the suit property to the plaintiff. Defendant

No.1 aggrieved by the judgment and decree passed in

R.A.No.2/2002 filed this appeal.

4. Heard the learned counsel for defendant No.1

and the learned counsel for plaintiff.

5. Learned counsel for defendant No.1 submits

that the plaintiff has failed to prove that the suit land

is an ancestral property of the plaintiff and deceased

Nagu Rao. He further submits that the first appellate

Court has committed an error in granting half share in

the suit land in favour of plaintiff. He further submits

that the plaintiff is not entitled for any share in the

suit land. Hence, on these grounds he prays to allow

the appeal.

6. Learned counsel for plaintiff supports the

impugned judgment and decree passed by the first

appellate Court.

7. This Court admitted the appeal on the

following substantial question of law:

Whether in the facts and circumstances of the case the first appellate Court was justified in granting half share in the suit schedule property to the plaintiff i.e. the first respondent herein?

8. Heard and perused the records and

considered the submissions made by the learned

counsel for the parties.

9. It is the case of the plaintiff that suit land is

an ancestral property of plaintiff and deceased Nagu

Rao. Deceased Nagu Rao is the brother of plaintiff.

The deceased Nagu Rao died in a road traffic accident.

No partition was effected in between plaintiff and

deceased. After the death of deceased Nagu Rao the

plaintiff and defendant No.1 have filed a claim petition

under the provisions of Motor Vehicles Act in MVC

No.105/1990 and MVC No.161/1989 and the matter

was settled before the Lok Adalath. The plaintiff

contended that defendant No.1, after demise of Nagu

Rao performed second marriage with Manohar Kale,

as such, defendant No.1 is not entitled for any

compensation.

10. In order to prove the case of the plaintiff,

plaintiff got examined as PW-1. In her evidence in

para-6 she has stated that the suit property is

ancestral property of her father. Herself and

deceased Nagu Rao are the only children to her

father. The said fact has not been denied by the

defendant in the course of cross-examination.

Admittedly, the suit properties are ancestral

properties of plaintiff and deceased Nagu Rao. Even

the defendant in the course of evidence has not

denied about the suit property being ancestral

property. When the said fact is admitted by both the

parties that the suit property is ancestral property, the

plaintiff being daughter of her father and sister of

deceased Nagu Rao is also entitled for share in the

suit property in view of Section 6 of Hindu Succession

Act.

11. The provisions contained in substituted

section 6 of Hindu Succession Act 1956 confers the

status of co-parcener on the daughter born before or

after amendment in the same manner as a son with

same rights and liabilities. The rights could be

claimed by a daughter born earlier w.e.f. 09.09.2005

with the savings as provided under sub-section (1) of

Section 6 of Hindu Succession Act as per the

disposition or alienation, partition or testamentary

disposition which had taken place before 20.12.2004

since the right in a co-parcenary is by birth. In view

of the amended provisions of Hindu Succession Act,

the daughter stand on the same footing as that of a

son. The said finding is supported by the judgment of

the Hon'ble Apex Court in the case of Vineeta

Sharma vs. Rakesh Sharma and others reported in

(2020) SCC Online SC 641. In view of the law laid

down by the Hon'ble Apex Court the plaintiff is entitled

for share in the suit schedule property.

12. The first appellate Court after considering

the material on record was justified in decreeing the

suit for partition and separate possession and granted

half share to the plaintiff. In view of the above

discussion I answer substantial question of law in

affirmative and against defendant No.1.

13. Viewing from any angle, I do not find any

ground to interfere with the impugned judgment and

decree. Accordingly, appeal is dismissed.

Sd/-

JUDGE RD/swk