Karnataka High Court
Smt. Laxmi vs Mr. Chandrahasa on 14 February, 2022
Bench: N S Gowda
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF FEBRUARY,2022
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
REGULAR SECOND APPEAL No.1063 OF 2019 (PAR)
BETWEEN:
1. SMT. LAXMI
W/O LATE SRINIVASA,
AGED ABOUT 62 YEARS,
BEHIND MIJAR CASHEW FACTORY,
NEAR HARISHCHANDRA COMPOUND,
BOLOOR "B" MANGALURU - 575 001,
REP BY HER SON AS A
GPA HOLDER BY NAME HEMANTH
2. SMT MADHAVI
W/O RAGHUNATH SRIYAN,
AGED ABOUT 46 YEARS,
R/AT 201, SHANTHIVAN,
NEAR ESHWARA MANDIR,
BORIVILLI EAST,
MUMBAI-400 066.
...APPELLANTS
(BY SRI.VINOD PRASAD, ADV.)
AND:
1. MR. CHANDRAHASA
S/O VENKATA,
AGED ABOUT 53 YEARS,
RESIDING BEHIND MIJAR CASHEW FACTORY,
NEAR HARISHCHANDRA COMPOUND
2
BOLOOR 'B' MANGALURU - 575 001.
2. SRI UMESH SHREEYAN
S/O LATE VENKATA,
AGED ABOUT 58 YEARS,
NEAR BAVA TILE FACTORY,
ASHOK NAGAR, MANGALURU-575 001.
3. SRI PADMANABHA SHREEYAN
S/O LATE VENKATA,
AGED ABOUT 54 YEARS,
BEHIND MIJAR CASHEW FACTORY,
NEAR HARISHCHANDRA COMPOUND,
BOLOOR 'B' MANGALURU-575 001.
4. SMT VASANTHI
D/O LATE SEETHARAMA,
AGED ABOUT 64 YEARS,
BEHIND MIJAR CASHEW FACTORY,
NEAR HARISHCHANDRA COMPOUND
BOLOOR 'B' MANGALURU-575 001.
5. SMT BABITHA
D/O LATE BALAKRLISHNA SHREEYAN,
AGED ABOUT 24 YEARS,
R/AT BANGADY HOUSE, ASHOKNAGAR,
MANGALURU-6
6. SMT LAVANYA
D/O LATE BALAKRISHNA SHREEYAN,
AGED ABOUT 22 YEARS,
R/AT BANGADY HOUSE,
ASHOKNAGAR, MANGALURU-6
...RESPONDENTS
(BY SRI.UDAYA PRAKASH MULIYA, ADV., FOR R1, R3 TO 6,
SRI. G.RAVISHANKAR SHASTRY, ADV.,FOR R2,
R4 IS SERVED & UNREPRESENTED)
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THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 24.01.2019
PASSED IN RA.NO.8/2018 ON THE FILE OF THE PRINCIPAL
DISTRICT JUDGE, D.K.MANGALURU, PARTLY ALLOWING
THE APPEAL AND MODIFYING THE JUDGMENT AND
DECREE DATED 28.04.2017 PASSED IN O.S.NO. 153/2013
ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND
CJM MANGALURU.D.K.
THIS APPEAL COMING ON FOR ADMISSION THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. By consent, the appeal is taken up for final disposal.
2. The facts are not in dispute.
3. One Sri.Balu Moily had a son called Sri.Rama Moily
and a daughter called Smt.Bamu Moily.
4. Sri.Rama Moily was married to one Smt.Nagamma
and out of this wedlock, they had no children.
5. Smt.Bamu Moily, through her husband Sri.Vankata
had five sons and three daughters. One of the son's ie.,
Sri.Devdas died without getting married. Consequently,
Sri.Bamu Moily had seven legal heirs to succeed to her
estate ie., four sons and three daughters.
6. Smt.Nagamma, the wife of Rama Moily, along with
three sons of Smt.Bamu Moily instituted a suit for partition
against the three daughters of Smt.Bamu Moily and the
remaining son of Smt.Bamu Moily.
7. It was their case that the suit property was a
tenanted property and the Land Tribunal had conferred
occupancy rights in the name of Smt.Nagamma (plaintiff
No.1) and Sri.Devdas (the pre-deceased son of Smt.Bamu
Moilly) and this grant would enure to the benefit of all the
family members.
8. During the pendency of the suit, Smt.Nagamma,
wife of Sri.Ramu Moily died. Thus, the only legal heirs of
the propositus of Sri.Ramu Moily were the seven children
of Smt.Bamu Moily.
9. The Trial Court having regard to the fact that the suit
was a tenanted property, and the entire family was
cultivating the said land, granted 1/7 th share to the four
sons and three daughters of Smt.Bamu Moily ie., the
plaintiff Nos.2, 3 and 4 and defendant Nos.1 to 4.
10. It may be pertinent to state here that plaintiff No.2
had also passed away during the pendency of the suit and
this 1/7th share devolved onto to plaintiff Nos.2 (a) and
(b), who have been transposed as defendant Nos.5 and 6.
11. Defendant No.4 - Sri.Chandrahasa being aggrieved,
of the decree, preferred an appeal.
12. The Appellate Court took the view that Smt.Bamu
Moily, the daughter of Sri.Balu Moily was entitled to 1/14 th
share and Sri.Rama Moily, his son was entitled to 1/7th
share. The Appellate Court, accordingly, held that the
children of Smt.Bamu Moily were entitled to 1/14 th share.
The Appellate Court also held that the male issues of
Smt.Bamu Moily alone were entitled to succeed to the
share of Smt.Nagamma and they were each given an
additional 1/10th share.
13. It is against this judgment and decree, the present
appeal has been preferred.
14. The following substantial question of law arises for
consideration in this appeal:
"Whether the Appellate Court could have
modified the decree of the Trial Court which
had granted 1/7th share to each of plaintiff
Nos.3 and 4, defendant Nos.1 to 4 and jointly
to defendant Nos.5 and 6 and in its place
granted 1/14th share to the children of Bamu
Moily out of the share of Nagamma (deceased
plaintiff No.1) and could have granted only
1/0th share to sons and unmarried daughters of
Bamu Moily (i.e., plaintiff Nos. 3 and 4,
defendant Nos.1 to 4 and defendant Nos.5 and
6 (jointly) in the light of the judgment
rendered by the Apex court in Veenetha
Sharma's case?"
15. Admittedly, Sri.Balu Moily had only two children ie.,
Sri.Rama Moily and Smt.Bamu Moily. Sri.Rama Moily was
the first son who had no children and on his death, his
wife, the plaintiff No.1 had succeeded to his share. Since
she also died during the pendency of the suit, her share
also devolved onto the legal heirs of her sister-in-law
Smt.Bamu Moily, who was the daughter of Balu Moily.
Since Smt.Bamu Moily had four sons and three daughters,
obviously, all of them would be entitled to 1/7th share
each.
16. In the light of the judgment rendered by the Apex
Court in the case of Vineeta Sharma Vs. Rakesh
Sharma and Others reported in AIR 2020 SC 3717,
declaring that daughters are also coparceners and acquire
a right by birth in the same manner as a son, the decision
of the Appellate Court holding that only the male issues
and unmarried daughters of Smt.Bamu Moily were entitled
to succeed to the share of Sri.Rama Moily cannot be
sustained.
17. Since the entire property devolved onto Smt.Bamu
Moily, all her children would be entitled to succeed to the
property in equal proportions. Consequently, each of her
seven children would be entitled to 1/7 th share.
18. The substantial question of law is accordingly
answered in favour of the appellants and it is held that all
the children of Smt.Bamu Moily, would each be entitled to
1/7th share.
19. In respect of the children of Smt.Bamu Moily, who
are no more, their respective legal heirs representing that
branch would be entitled to succeed to the said 1/7th
share.
20. The second appeal is accordingly allowed in the
above terms.
Sd/-
JUDGE
GH
