Smt. M Leelavathi vs Smt. Yeshodamma
2022 Latest Caselaw 6077 Kant

                          1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 5TH DAY OF APRIL, 2022

                        BEFORE

 THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

          REGULAR FIRST APPEAL NO.401 OF 2017
                            C/w
          REGULAR FIRST APPEAL NO.548 OF 2017


IN RFA NO.401/2017

BETWEEN:

1.     SMT VIJAYA R
       W/O LATE SUBBARAYACHARI
       D/O MR RAMACHANDRACHAR
       AGED ABOUT 45 YEARS

2.     KUM NAVYASHREE
       AGED ABOUT 15 YEARS
       SINCE MINOR REPRESENTED BY
       HER NATURAL GUARDIAN AND MOTHER
       SMT VIJAYA R

       BOTH ARE R/AT NO.11, 'ASHRIWAD'
       10TH CROSS, PIPELINE ROAD
       1ST CROSS, S P EXTENSION
       MALLESHWARAM
       BENGALURU-560 003.                ...APPELLANTS


(BY SRI. B KESHAVA MURTHY, ADVOCATE)
                          2



AND

1.    SMT M.LEELAVATHI
      D/O LATE MURAHARAHARI
      W/O LATE SHARABACHARI
      AGED ABOUT 42 YEARS
      R/AT SRINIVASA KALYANAMANTHAPA ROAD
      BACHAPPA COMPOUND
      B NARAYANAPURA
      KRISHNARAJAPURAM HOBLI
      BENGALURU - 560 016.

2.    SMT YESHODAMMA
      W/O LATE MURAHARACHARI
      AGED ABOUT 70 YEARS
      R/AT NO.135, 1ST MAIN
      B NARAYANAPURA VILLAGE
      NEAR VENKATESHWARA TEMPLE
      KRISHNARAJAPURAM HOBLI
      BENGALURU -560 016.

3.    SMT SUSHEELAMMA
      D/O LATE MURAHARACHARI
      W/O MR BALASUBRAMANYACHAR
      AGED 53 YEARS
      R/AT MYLANAHALLI VILLAGE
      BANDE KODIGEHALLI POST
      BENGALURU NORTH TALUK.

4.    SMT MALIGAMMA
      D/O LATE MURAHARACHARI
      W/O MR SUBRAMANYACHARI
      AGED ABOUT 50 YEARS
      R/AT VENKATAGIRIKOTE VILLAGE & POST
      DEVANAHALLI TALUK
      BENGALURU DIST-562 110.

5.    SRI NEELAKANTAHARI
      S/O LATE MURAHARACHARI
                         3



      AGED ABOUT 44 YEARS

6.    SMT GAYATHRI
      D/O LATE MURAHARACHARI
      AGED ABOUT 38 YEARS

      RESPONDENT NO.5 AND 6
      ARE R/AT NO.135, I MAIN
      B NARAYANAPURA VILLAGE
      NEAR VENKATESHWARA TEMPLE
      K R PURAM HOBLI
      BENGALURU - 560 016.

7.    SMT RATHNAMMA
      W/O LATE MURAHARACHARI
      AGED ABOUT 62 YEARS

8.    SRI MANJUNATHACHARI
      S/O LATE MURAHARACHARI
      AGED ABOUT 40 YEARS

9.    SMT. SUSHEEPAMMA
      D/O LATE MURAHARACHARI
      AGED ABOUT 36 YEARS

      RESPONDENT NOS.7 TO 9 ARE
      R/AT NO.10, 28TH BLOCK
      NANDI COMPLEX
      AUDUGODI POLICE QUARTERS
      BENGALURU -560 003.

10.   SRI SUNDEEP KUMAR GUPTHA
      S/O LOKA CHANDRA GUPTHA
      AGED ABOUT 42 YEARS
      R/AT BCC NO.46/16
      RAMAIAH LANE, CHURCH ROAD
      MURUGESHPALYA
      BENGALURU -560 017.         ...RESPONDENTS
                         4



(BY SRI STANLEY SAN ADV. FOR R10
      SRI NANJUNDARADHYA B G, ADV, FOR R1
      SRI A MADHUSUDHAN, ADV. FOR R4 & R6
      SRI SUDARSHAN S, ADV FOR R5
      R1 & R3 TO R6 ARE TREATED AS
      LR'S OF DECEASED R2;
      R3, R7, R8 & R9 ARE SERVED)

     THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 OF CPC AND ORDER XLI RULE 1 OF CPC,
1908 AGAINST THE ORDER DATED: 09.01.2017 PASSED
ON IA.NO.13 IN OS.NO.2339/2014 ON THE FILE OF THE
LXVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND
HOLDING C/C OF XXXVIII ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE, BENGALURU CITY, ALLOWING THE
IA.NO.13 FILED UNDER ORDER 7 RULES 11 R/W SEC.151
OF CPC., FOR REJECTION OF PLAINT.

IN RFA NO.548/2017

BETWEEN:

SMT. M LEELAVATHI
D/O LATE MURAHARAHARI
W/O LATE SHARABACHARI,
AGED ABOUT 40 YEARS,
R/AT SRINIVASA KALYANAMANTHAPA ROAD,
BACHAPPA COMPOUND
B NARAYANAPURA,
KRISHNARAJAPURAM HOBLI,
BANGALORE-560 016.
                                      ...APPELLANT
(BY SRI. B G NANJUNDARADHYA, ADVOCATE)

AND

1.    SMT. YESHODAMMA
      W/O LATE MURAHARACHARI,
      AGED ABOUT 68 YEARS,
                         5



     SINCE DECEASED, HER LEGAL
     REPRESENTATIVES ARE ALREADY
     ON RECORD AS THE APPELLANT AND
     RESPONDENT NOS.2 TO 6.

2.   SMT. SUSHEELAMMA
     D/O LATE MURAHARACHARI
     W/O BALASUBRAMANYACHAR
     AGED ABOUT 51 YEARS
     MYLANAHALLI VILLAGE
     BANDE KODIGEHALLI POST
     BENGALURU-561 249

3.   SMT. MLIGAMMA
     D/O LATE MURAHARACHARI
     W/O SUBRAMANYACHAR
     AGED ABOUT 48 YEARS
     VENKATAGIRIKOTE VILLAEG & POST
     DEVANAHALLI TALUK
     BENGALURU RURAL DISTRICT - 562 110.

4.   SMT. VIJAYA R
     D/O RAMACHANDRACHAR
     W/O LATE SUBBARAYACHARI
     AGED ABOUT 43 YEARS

4(a) NAVYASHREE
     D/O LATE SUBARAYACHARI AND VIJAYA R
     AGED ABOUT 12 YEARS
     SINCE MINOR REPRESENTED BY
     HER MOTHER AS NATURAL GUARDIAN

     R4 AND 4(A) ARE RESIDING
     AT NO.11, ASHIRWAD, 10TH CROSS
     PIPELINE ROAD, 1ST CROSS
     S P EXTENSION, MALLESHWARAM
     BENGALURU - 560 003.

5.   SRI.NEELAKANTACHARI
     S/O LATE MURAHARACHARI
                           6



      AGED ABOUT 42 YEARS

6.    GAYATHRI
      D/O LATE MURAHARACHARI
      AGED ABOUT 36 YEARS

      R-5 & 6 ARE RESIDING AT
      NO.135, 1ST MAIN
      B.NARAYANAPURA VILLAGE
      NEAR VENKATESHWARA TEMPLE
      KRISHNARAJAPURAM HOBLI
      BENGALURU SOUTH TALUK
      BENGALURU -560 016.

7.    SMT.RATHNAMMA
      W/O LATE MURAHARACHARI
      AGED ABOUT 60 YEARS

8.    SRI.MANJUNATHACHARI
      S/O LATE MURAHARACHARI
      AGED 36 YEARS
      (P.C.NO.488)

9.    SUSHEEPAMMA
      D/O LATE MURAHARACHARI
      AGED ABOUT 34 YEARS

      R-7, 8 & 9 ARE RESIDING AT
      NO.10, 28TH BLOCK
      NANDI COMPLEX
      ADUGODI POLICE QUARTERS
      BENGALURU-560 035.

10.   SRI.SANDEEPKUMAR GUPTHA
      S/O LOKA CHANDRA GUPTHA
      AGED ABOUT 38 YEARS
      BCC NO.46/16, RAMAIAH LANE
      CHURCH ROAD, MURUGESHPALYA
      BENGALURU-560 017.
                              7



                                           .....RESPONDENTS

      (BY SRI.MENTO ISSAC AND N PRAKASH, ADVOCATE
       FOR C/R.10 (CP NO.117/17)
       SRI STANLEY SAN ADV. FOR R10 (NOC);
      SRI SUDARSHAN & ASSOCIATES FOR R1 & R5;
      SRI M MADHUSUDHAN, ADVOCATE FOR R3 & R6;
      R4 - SERVED
       R4(A) IS MINOR & REPT BY HER
       MOTHER AS NATURAL GUARDIAN
       R4 (AS PER CAUSE TITLE)
       R8 - SERVED
       R9 - SERVED V/O/D 7/2/19
       NOTICE TO R2 IS HELD SUFFICIENT)

     THIS REGULAR FIRST APPEAL IS FILED UNDER
SECTION 96 R/W ORDER XLI RULE 1 OF CPC, 1908
AGAINST THE ORDER DATED: 09.01.2017 PASSED ON IA
NO.13 IN OS NO.2339/2014 ON THE FILE OF THE LXVI
ADDL. CITY CIVIL AND SESSIONS JUDGE HOLDING C/C
OF XXXVIII ADDL. CITY CIVIL AND SESSIONS JUDGE,
BENGALURU CITY, ALLOWING THE IA FILED U/O 7 RULE
11 R/W SEC.151 OF CPC., TO REJECT THE PLAINT.

     THESE REGULAR FIRST APPEALS COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:



                        JUDGMENT

Though these matters listed for admission, with the

consent of learned counsel appearing for both sides, these

matters are taken up for final disposal.

2. These captioned appeals are filed questioning the

rejection of plaint as well as rejection of counter claim

arising in a partition suit.

3. The parties are referred to as per their rank

before the Trial Court, for the sake of convenience.

4. The facts leading to the case are as under;

The plaintiff namely M.Leelavathi, who is the

daughter of Muraharachari through his first wife namely

Yashodamma, has instituted the present suit for partition

and separate possession and has specifically contended

that the suit schedule properties are joint family ancestral

properties of the plaintiff and defendants. The plaintiff has

specifically contended that she is entitled for her legitimate

1/8th share in the suit schedule properties and therefore,

she claims that she is in joint possession and enjoyment

over the suit schedule properties. The plaintiff has also

questioned the sale deed dated 03.06.2006 alleged to

have been executed by defendant No.7 in favour of

defendant No.10 in respect of schedule 'A' property and

also questioned the Gift deed dated 05.07.2013 executed

by defendant No.1 in favour of defendant No.6 in respect

of the portion of 'B' schedule property and also questioned

another Gift deed dated 05.07.2013 executed by

defendant No.1 in favour of defendant No.5 in respect of

the portion of 'B' schedule property. Therefore, the relief

of declaration to declare the sale deed dated 03.06.2006

and gift deeds dated 05.07.2013 and 05.07.2013 are null

and void and not binding on the plaintiff's share is also

sought in the present suit.

5. On receipt of summons, defendant No.4 filed

written statement and by way of counter claim, she also

claimed to allot her legitimate share as she is representing

the branch of Subbarayachari, who is one of the propositus

of Muraharachari.

6. Defendant No.10, who is a purchaser, on receipt

of summons, tendered appearance and filed written

statement and stoutly denied the entire averments made

in the plaint. Defendant No.10 has filed an application

under Order VII Rule 11 of CPC., seeking rejection of

plaint. At para No.7 of the affidavit filed in support of the

application, defendant No.10 has specifically contended

that in the light of the principles laid by the Hon'ble Apex

in the case of PRAKASH AND OTHERS VS. PHULAVATI

AND OTHERS reported in 2015 AIR SCW 6160, only

living co-parceners as on 09.09.2005 can maintain a

partition suit and claim share and therefore, defendant

No.10 by placing reliance on the amended provisions of

the Hindu Succession Act to Section 6 of the Hindu

Succession Act, 2005 contended that the present suit was

not maintainable in the light of the dictum laid down by the

Hon'ble Apex Court in the judgment cited supra.

7. Learned Trial Judge by applying the principles laid

down in the case of PRAKASH AND OTHERS VS.

PHULAVATI AND OTHERS (cited supra) has proceeded

to dismiss the suit by holding that as on the date of filing

of the suit, her father was not alive and hence, suit filed by

the plaintiff is not maintainable. On these set of reasoning,

the plaint is rejected and consequently, the counter claim

is also rejected.

8. Heard learned counsel appearing for the appellant

- plaintiff and learned counsel appearing for the contesting

defendant No.10 and I have also heard learned counsel

appearing for defendant No.4, who has set up a counter

claim claiming his legitimate share in the suit schedule

properties.

9. The points that would arise for consideration by

this Court are.

1. Whether the findings of the Trial Court recorded on I.A.No.13 that the present suit filed by one of the daughter is not maintainable on the ground that her father was not alive as on the date of filing of the suit?

2. Whether said findings suffer from perversity?

Findings on point No.1 and 2.

10. The admitted facts clearly indicate that the

parties are governed by the principles of Hindu

Mithakshara School of Law. The present suit is filed by

plaintiff specifically contending that the propositus

Muraharachari possessed several joint family properties

during his life time. It is also specifically pleaded that

Muraharachari had two wives and the present plaintiff is

the daughter, who born through his first wife namely

Yashodamma.

11. It is also specifically pleaded at para No.9 of the

plaint that defendant No.7, who is one of the joint family

member, has meddled with the joint family ancestral

properties and there are alienations by colluding with

defendant Nos.8 and 9 in favour of defendant No.10 so as

to deprive the legitimate share of the plaintiff in the suit

schedule properties. On meticulous examination of the

prayer claimed in the plaint more particularly at para

Nos.15(b) and (c), this Court would find that defendant

No.7, who is the second wife of Muraharachari, has

alienated 'A' schedule property in favour of defendant

No.10 by way of registered sale deed dated 03.06.2006.

Therefore, the authority of defendant No.7 in alienating the

joint family ancestral properties are all disputed question

of facts. The question as to whether the plaintiff is entitled

for a share in the suit schedule properties as a co-parcener

in view of amendment to Section 6 of the Hindu

Succession Act, 2005, is a question that has to be decided

by way of full fledged trial. The findings of the Trial Court

that since father of the plaintiff was not alive as on the

date of the filing of the suit and therefore, the suit is not

maintainable, is not only perverse, but the same is

palpably erroneous and even otherwise, contrary to

Section 8 of the Hindu Succession Act, 1956. Even if the

plaintiff as on the date of the filing of the suit was not

entitled to be treated as co-parcener, she still had a

legitimate share as she had inherited rights by way of

succession through her father Muraharachari. In the event

of death of a Hindu male, the daughter is entitled to take a

share by way of notional partition under Section 8 of the

Hindu Succession Act. Even otherwise, the daughter was

entitled to maintain a suit seeking legitimate share in the

suit schedule properties.

12. In the light of the principles laid down by the

Hon'ble Apex Court in the case of VINEETH SHARMA VS.

RAKESH SHARMA AND OTHERS reported in AIR 2020

SC 3717, this Court is of the view that the question of

succession having been opened and the controversy

revolving around the shares of the daughter in the event

father dies much prior to commencement of Hindu

Succession Act having been put at rest by the Hon'ble

Apex Court in the case of VINEETH SHARMA (cited

supra), the controversy is no more res integra. The

Hon'ble Apex Court in the above cited judgments has held

that if there is no severance in the pending proceedings,

the benefit of Section 6 is extended in those cases where

father had died much prior to commencement of Hindu

Succession Act. All these rulings relating to the amended

provisions under Section 6 of the Hindu Succession Act,

2005 and existing provisions under Section 8 of the Hindu

Succession Act were required to be examined by the Trial

Court. However, the Trial Court has in a very casual

manner non-suited the plaintiff by wrongly applying the

dictum laid down by the Hon'ble Apex Court in the case of

PHULAVATI AND OTHERS (cited supra).

13. For the foregoing reasons, the order rejecting

the plaint is not sustainable and the same is liable to be

set-aside. Accordingly, I pass the following;

ORDER

The appeal is allowed.

The order dated 09.01.2017 passed on

I.A.No.13, which is filed under Order VII Rule

11 of CPC., in O.S.No.2339/2014 on the file of

the LXVI Additional City Civil and Sessions

Judge holding c/c of XXXVIII Additional City

Civil and Sessions Judge, Bengaluru City is

set-aside.

The suit is restored to file.

Since the parties are represented by

their respective counsels, without expecting

any fresh summons at the hands of the trial

court, they are directed to appear before the

Trial Court on 30.06.2022.

Since the appeal filed by the plaintiff in

RFA No.548/2017 is allowed, the same benefit

has to be extended to the connected appeal

filed by the defendant No.4 in RFA

No.401/2017.

For the reasons stated in the connected

appeal, the appeal filed by the defendant Nos.4

and 4(a) is also allowed thereby permitting

defendant No.4 to seek adjudication of their

rights before the Trial Court in terms of the

counter claim set up in the written statement.

All contentions are kept open.

Draw decree accordingly.

Sd/-

JUDGE

NBM