Karnataka High Court
Anuradha W/O Late Revansiddappa ... vs Shivaleela D/O Late Bhimashankar ... on 10 February, 2022
Bench: S.R.Krishna Kumar, K S Hemalekha
1
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF FEBRUARY 2022
PRESENT
THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR
AND
THE HON'BLE MRS.JUSTICE K.S.HEMALEKHA
RFA NO.200078/2015 (PAR/POS)
BETWEEN:
1. Anuradha W/o Late Revansiddappa Mala,
Age: 40 Years, Occ: Household and Agriculture,
R/o Near Panchayat Office,
Village Kapnoor, Tq: Dist: Kalaburagi.
2. Nandini D/o Late Revansiddappa Mala,
Age: 14 Years,
3. Nayana D/o Late Revansiddappa Mala,
Age: 12 Years,
4. Bhumika D/o Late Revansiddappa Mala,
Age: 10 Years,
5. Nagveni D/o Late Revansiddappa Mala,
Age: 8 Years,
Appellants No.2 to 5 are Minors
U/g of their mother i.e. Appellant No.1
Anurdha W/o Late Revansiddappa Mala.
... Appellants
(By Sri.K.S.Sakry, Advocate)
2
AND:
Shivaleela D/o Late Bhimashankar
W/o Babu Handrale,
Age: 48 Years, Occ: Housewife,
R/o PWD Quarter No.26,
Old Jewargi Road, Kalaburagi-585102.
... Respondent
(By Sri.Vinayak Apte, Advocate)
***
This Regular First Appeal is filed under Section 96
R/w Order XLI Rule 1 and 2 of CPC, praying to allow the
appeal filed by the appellants and set aside the judgment
and decree passed by III Addl. Senior Civil Judge,
Kalaburagi in O.S.No.46/2011 dated 24.08.2015, in the
interest of justice and equity.
This appeal coming on for hearing this day,
K.S. Hemalekha J., delivered the following:
JUDGMENT
The present appeal is by the defendants
assailing the judgment and decree dated 24.08.2015
in O.S. No.46/2011 on the file of III Additional Senior
Civil Judge, Kalaburagi decreeing the suit of the
plaintiff and granting half share in the suit schedule
properties.
2. The parties herein are referred to as per
their ranking before the trial Court.
3. Brief facts of the case are, that suit
properties are the agricultural land bearing
Sy.No.24/2 measuring 05 acres 12 guntas,
Sy.No.132/4A measuring 03 acres 10 guntas and
Sy.No.64/1 measuring 06 acres 10 guntas.
4. Defendant No.1 is the mother of defendant
Nos.2 to 5. The father of the plaintiff by name
Bhimashankar died about 30 years ago leaving behind
his wife Putalabai, son Revansiddappa and daughter
Shivaleela. Shivaleela is the plaintiff and
Revanasiddappa died on 24.10.2006 leaving behind
the defendants herein. The suit was filed by the
daughter of late Bhimashankar for partition and
separate possession contending that the suit
properties are allotted to the share of her father by
name Bhimashankar and on his death, the name of
Revanasiddappa was mutated and after the death of
Revanasiddappa, the names of plaintiff's mother
Putalabai and defendant No.1 came to be entered. It
is further contended that one Rayappa and his brother
filed O.S.No.52/2010 against the plaintiff's mother
PutalaBai in respect of land bearing Sy.No.64/1 on the
basis of agreement of sale dated 09.10.2016 for
specific performance of contract and the deceased
Putlabai appeared and filed her written statement and
the said suit is pending consideration. It is the
contention of the plaintiff that she being the daughter
of Bhimashankar is entitled for half share in the suit
schedule properties on the death of her mother, who
expired on 01.03.2011. It is further contended that
inspite of several requests to defendant No.1 to affect
the partition, the same was not effected. Hence, filed
the present suit for partition and separate possession.
5. In pursuance of summons issued by the
trial Court, defendants appeared and filed their
objections and contended that Bhimashankar died
about 30 years ago leaving behind his wife Putalabai
and son Revanasiddappa as the only legal heir and
also contended that the suit properties are mutated in
the name of the husband of defendant No.1 showing
his mother Putalabai as guardian and after the death
of Revanasiddappa, the name of Putalabai and
defendant No.1 is entered. It is further contended
that the suit is not maintainable and the plaintiff is
never in the possession of the suit schedule property
in any capacity and she is residing along with her
husband since the date of marriage and she has lost
the right over the suit schedule properties and hence,
sought for dismissal of the suit.
6. On the basis of the pleadings of the parties,
the trial Court framed the following:
ISSUES
1. Whether the plaintiff proves that the
suit schedule properties are ancestral
joint family properties and it is in joint
ownership and possession of herself by
defendant's as alleged?
2. Whether the plaintiff further proves
that she is having ½ share in the suit
schedule properties?
3. Whether the plaintiff proves the
description of the suit schedule
property as shown in the plaint?
4. Whether the plaintiff proves that she
being the daughter of deceased
Bhimashankar?
5. Whether the suit is maintainable in the
present form?
6. Whether the plaintiff paid the proper
court fee?
7. Whether the defendant's prove that
the right over the property is ousted
from the possession from the date of
her marriage?
8. Whether the suit is hit by law of
limitation?
9. Whether the plaintiff is entitled to the
suit claim?
10. What order or decree?
7. In order to substantiate the claim of the
plaintiff, plaintiff examined herself as PW.1 and got
marked documents as Exs.P1 to P38.
8. Per contra, defendant No.1 examined
herself as DW.1 and got marked documents as Exs.D1
to D14. The trial Court on the basis of the pleadings,
evidence and materials on record held that the
plaintiff has proved that the suit schedule properties
are the ancestral joint family properties and it is in
joint ownership and possession of the plaintiff and
defendants and granted half share to the plaintiff in
the suit schedule properties. Aggrieved by the
granting of share to the plaintiff, defendants have
preferred this appeal.
9. Heard the learned counsel for the parties
and perused the materials on record.
10. Learned counsel Sri B.Nooriliyas would
contend that granting of half share to the
daughter/plaintiff is not justifiable for the reason that
the suit is barred by limitation as she was residing
with her husband since the date of marriage and has
lost her right to claim partition and separate
possession in the suit schedule properties. It is also
contended that the materials on record would clearly
establish that defendant No.1 along with other
defendants and plaintiff are in possession of the suit
schedule properties after the death of Revanasiddappa
i.e., son of Bhimashankar and hence, sought for
allowing the appeal.
11. Per contra, learned counsel for respondent
Sri.Vinayak Apte, would contend that the judgment
and decree of the Court below does not call for any
interference in view of the dictum of the Apex Court in
the case of Vineeta Sharma Vs. Rakesh Sharma
and Others reported in (2020) 9 SCC 1 held that
the daughters are entitled for equal share in the
ancestral joint family property and thus, sought to
dismiss the appeal.
12. Having heard the learned counsel for the
parties and having given our anxious consideration to
the material on record, the point that arise for
consideration are:
(i) Whether the trial Court was justified
in granting half share in the suit
schedule properties to the daughter
Shivalela in view of Section 6 of the
Hindu Succession (Amendment) Act,
2005?
(ii) Whether it calls for any interference?
13. Undisputed facts are that the plaintiff is the
daughter of late Bhimashankar and the defendants are
the wife and children of late Revanasiddapap, who is
son of late Bhimashankar and brother of Shivaleela.
It is also not in dispute that the suit schedule
properties are the ancestral joint family properties of
the plaintiff and defendants. The only contention of
the defendants/appellants is that the plaintiff is not
entitled for equal share in the suit properties as she
has been married and since the date of marriage she
is staying with her husband and has lost the right over
the suit schedule ancestral joint family properties. It is
relevant to note that the trial Court, considering the
evidence on record and documents at Exs.P1 to P38,
Exs.D1 to D14 and evidence of PW.1 and DW.1 has
rightly come to the conclusion that the suit schedule
properties are the ancestral joint family properties of
the plaintiff and defendants and the plaintiff is the
daughter of deceased Bhimashankar and she is
entitled for half share in the suit schedule properties.
In view of the judgment of the Apex Court in the case
of Vineeta Sharma, the law insofar as Section 6 of the
Hindu Succession (Amendment) Act, 2005 is no more
res integra and thus, the trial Court has rightly
granted half share to the plaintiff. Thus, in our
considered view and in view of the dictum of the Apex
Court in Vineeta Sharma's case, the appeal filed by
the defendants is devoid of merits and is liable to be
dismissed. Thus, the points framed for consideration
are answered in the affirmative.
14. As a result, we pass the following:
ORDER
(i) The appeal filed by the defendants is
hereby dismissed.
(ii) Judgment and decree dated 24.08.2015 in
O.S. No.46/2011 on the file of III
Additional Senior Civil Judge, Kalaburagi is
hereby confirmed.
(iii) No order as to costs.
Sd/-
JUDGE
Sd/-
JUDGE
S*
