Karnataka High Court

Smt.Shankaramma And Ors vs Smt. Balamma And Ors on 24 January, 2022

Bench: S.R.Krishna Kumar, K S Hemalekha

                            1



         IN THE HIGH COURT OF KARNATAKA
                KALABURAGI BENCH

      DATED THIS THE 24TH DAY OF JANUARY 2022
                        PRESENT

     THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR
                          AND
      THE HON'BLE MRS.JUSTICE K.S.HEMALEKHA

            RFA NO.200142/2019 (PAR)

BETWEEN:

1.    Smt. Shankaramma W/o Late Ramanna,
      Age: Major, Occ: Household,
      R/o Kasaba Lingasugur,
      Tq: Lingasugur, Dist: Raichur-584 122.

2.    Anand S/o Late Ramanna,
      Age: 23 years, Occ: Student,
      R/o Kasaba Lingasugur,
      Tq: Lingasugur, Dist: Raichur-584 122.

3.    Shruthi D/o Late Ramanna,
      Age: 21 years, Occ: Student,
      R/o Kasaba Lingasugur,
      Tq: Lingasugur, Dist: Raichur-584 122.

4.    Sudha D/o Late Ramanna,
      Age: 19 years, Occ: Student,
      R/o Kasaba Lingasugur,
      Tq: Lingasugur, Dist: Raichur-584 122.
                                               ... Appellants
(By Sri Ajaykumar A.K., Advocate)
                              2



AND:
1.     Smt. Balamma W/o Mallappa Jeer,
       Age: 78 years, Occ: Agriculture,
       R/o Kasaba Lingasugur,
       Tq: Lingasugur, Dist: Raichur-584 122.

2.     Smt. Parvathi W/o Subbayya Hugar,
       Age: 46 years, Occ: Agriculture,
       R/o Kasaba Lingasugur,
       Tq: Lingasugur, Dist: Raichur-584 122.

3.     Smt. Prema W/o Amarappa
       @ Amaresh Hotel,
       Age: 44 years, Occ: Agriculture,
       R/o Kasaba Lingasugur,
       Tq: Lingasugur, Dist: Raichur-584 122.

4.     Smt. Gangamma W/o Veerbhadrappa,
       Age: 51 years, Occ: Agriculture,
       R/o H.No.1/2, Hutti (Jatti Lane),
       Tq: Lingasugur, Dist: Raichur-584 122.

5.     Rekha D/o Veerbhadrappa,
       Age: 27 years, Occ: Agriculture,
       R/o H.No.1/2, Hutti (Jatti Lane),
       Tq: Lingasugur, Dist: Raichur-584 122.

6.     Basavaraj S/o Veerbhadrappa,
       Age: 24 years, Occ: Agriculture,
       R/o H.No.1/2, Hutti (Jatti Lane),
       Tq: Lingasugur, Dist: Raichur-584 122.

7.     Akkamma D/o Veerbhadrappa,
       Age: 24 years, Occ: Agriculture,
       R/o H.No.1/2, Hutti (Jatti Lane),
       Tq: Lingasugur, Dist: Raichur-584 122.
8.     Amaresh S/o Veerbhadrappa,
       Age: 23 years, Occ: Student,
                                3



      R/o H.No.1/2, Hutti (Jatti Lane),
      Tq: Lingasugur, Dist: Raichur-584 122.
                                           ... Respondents

                               ***
      This Regular First Appeal is filed under Section 96 of
the Code of Civil Procedure, praying to allow the appeal by
setting aside the order dated 13.08.2018 passed in FDP
No.02/2013 by the Senior Civil Judge and JMFC,
Lingasugur, filed by respondent Nos.1 to 3 with costs
throughout.

      This appeal coming on for hearing on I.A. this day,
K.S. Hemalekha J., delivered the following:

                       JUDGMENT

The present appeal is by respondent Nos.6(a) to

(d) in FDP No.02/2013, assailing the order dated

13.08.2018 passed in FDP No.02/2013 by the Senior

Civil Judge & JMFC, Lingasugur.

2. For the sake of convenience, the parties

would be referred to as per their ranking before the

Trial Court.

3. The plaintiffs filed O.S.No.7/2007 for

partition and separate possession and for enquiry into

mense profit on the ground that the original

propositus Mallappa (died) and his wife Balamma-

defendant No.1 had four children namely,

Veerabhadrappa, Ramanna-defendant No.2, Parvathi-

defendant No.3, Prema-Defendant No.4; Gangamma-

plaintiff No.1 is the wife of Veerabhadrappa and

Rekha-plaintiff No.2, Basavaraj-plaintiff No.3,

Akkamma-Plaintiff No.4 and Amresh-Plaintiff No.5 are

the children of Veerbhadrappa and Gangamma.

4. It is the contention of the plaintiffs that the

suit properties are the ancestral joint family properties

of the plaintiffs and defendants and there is no

partition by metes and bounds and that defendant

Nos.3 and 4 are the married daughters and they have

been given their share by way of gold, silver and

money at the time of marriage. It is further contended

that the said Veerabhadrappa, the husband of plaintiff

No.1 had 4/9th share in the suit schedule properties

and on his death the plaintiffs have got 4/9th share.

Since there were differences between the plaintiffs

and defendants, the defendants denied the crop share

after the death of Veerabhadrappa and also denied the

share that has to be allotted in the suit schedule

properties and thus, the plaintiffs sought for 4/9th

share in the suit schedule properties.

5. In pursuance of the summons issued by the

Trial Court, defendant Nos.1 and 2 appeared and filed

their written statements contending and admitting the

relationship of the plaintiffs and defendants. But,

however contended that the suit is bad for non-joinder

of necessary parties and also that, item No.1 of the

suit schedule property is the only ancestral property

and denied that item Nos.2 to 5 are the ancestral joint

family properties and contended that they are self

acquired properties of defendant No.1, which she has

acquired from her parents and the plaintiffs cannot

claim any share in item Nos.2 to 5 of the suit schedule

properties and sought for dismissal of the suit.

6. In the additional written statement filed by

defendant No.2 in respect of item Nos.2 to 5, it is

contended that the suit schedule properties are the

Inam lands granted to defendant No.2 by the

Tahasildar, Lingasugur and thus, contended that the

plaintiffs and defendant No.2 have got half share in

item Nos.2 to 5 and denied the share of rest of the

defendants.

7. Defendant Nos.3 and 4 filed their written

statement admitting the claim of the plaintiffs that the

suit schedule properties are the ancestral joint family

properties of the plaintiffs and defendants and

contended that defendant Nos.3 and 4 have not given

up their share in the suit schedule properties at the

time of their marriage and contended that they are

also entitled for 6/25th share in the suit schedule

properties.

8. The Trial Court by its judgment and decree

dated 12.12.2012, partly decreed the suit holding that

plaintiffs are entitled for partition and separate

possession of 1/5th share plus 1/5th share (As per

notional partition) in item Nos.1 to 4 and held that the

plaintiffs are entitled for enquiry into mesne profits as

per the provisions of Order 20 Rule 2 of CPC. The

Trial Court further held that defendant Nos.3 and 4

are entitled for partition and separate possession of

1/5th share plus 1/5th share (As per notional partition)

in item Nos.1 to 4 as prayed in the written statement.

9. Aggrieved by the judgment and decree of

the Trial Court, defendant No.2-Ramanna S/o

Mallappa Jeer preferred RFA No.6002/2013 before this

Court and this Court, by its judgment dated

18.06.2013, dismissed the appeal and held that in

view of the observation of the Hon'ble Apex Court in

GANDURI KOTESHWARAMMA & ANOTHER V/S

CHAKIRI YANADI & ANR. reported in (2011) 9 SCC

788, the judgment and decree in O.S.No.7/2007 does

not call for any interference.

10. In view of the judgment and decree in

O.S.No.7/2007 and the same having been confirmed

in RFA No.6002/2013, defendant Nos.1, 3 and 4 filed

FDP No.02/2013 for drawing a final decree under

Section 54 R/w Order 20 Rule 18 of CPC in terms of

the preliminary decree passed in OS No.7/2007. In

FDP No.02/2013, the Court held that the preliminary

decree been passed holding that plaintiffs are entitled

for 1/5th share each in the suit schedule property and

the same not being challenged by the defendants, the

judgment and decree in O.S.No.7/2007 has attained

finality and directed to draw the final decree.

11. During the pendency of the final decree

proceedings, respondent No.6-Ramanna S/o Mallappa

Jeer, who was defendant No.2 in O.S.No.07/2007 died

and his wife and children were brought on record as

respondent Nos.6 (a) to (d).

12. The present appeal is by the legal

representatives of respondent No.6 (original

defendant No.2), challenging the final decree

proceedings.

13. Heard the learned counsel for the

appellants and perused the material on record.

14. Sri. Ajaykumar A.K., learned counsel for

the appellants would submit that the Court below has

not considered the fact that defendant Nos.3 and 4

being the daughters of deceased Mallappa Jeer are not

entitled for equal share in the suit schedule property

and they are entitled for notional partition as held in

Mangammal @ Thulasi and Another V/s T.B. Raju

and Others reported in 2018 (3) KCCR 2425 (SC)

and sought to contend that the execution court ought

to have considered that the defendant Nos.3 and 4

being the married daughters are not entitled for equal

share and thus, sought to set aside the order passed

in FDP proceedings.

15. Having heard the learned counsel for the

appellants and having perused the material on record,

the following point would arise for determination in

this appeal:

Whether the order dated 13.08.2018 in FDP No.02/2013 requires interference in view of amended proviso to Section 6 of the Hindu Succession Act,1956?

16. The relationship of the plaintiffs and

defendants are undisputed. It is also not in dispute

that the suit schedule properties are the ancestral

joint family properties of the plaintiffs and defendants.

The Trial Court in O.S.No.7/2007, partly decreed the

suit of the plaintiffs and allowed the counter claim of

defendant Nos.3 and 4. Defendant Nos.3 and 4 are

the sisters of first plaintiffs' husband and defendant

No.2 and the contention of the appellants that

defendant Nos.3 and 4 are not entitled to equal share

in the suit properties in view of Mangammal's case

supra is not the position as on today, the law with

regard to the share of the daughter to the property of

the father is no longer res-intergra and the Hon'ble

Apex Court in the case of GANDURI

KOTESHWARAMMA (supra) at paragraphs 11 and 12

has held as under:

"11. The new Section 6 provides for parity of rights in the coparcenary property among male and female members of a joint Hindu family on and from 9-9-2005. The legislature has now

conferred substantive right in favour of the daughters. According to the new Section 6, the daughter of a copercener becomes a coparcener by birth in her own rights and liabilities in the same manner as the son. The declaration in Section 6 that the daughter of the coparcener shall have same rights and liabilities in the coparcenary property as she would have been a son is unambiguous and unequivocal. Thus, on and from 9-9-2005, the daughter is entitled to a share in the ancestral property and is a coparcener as if she had been a son."

"12. The right accrued to a daughter in the property of a joint Hindu family governed by the Mitakshara law, by virtue of the 2005 Amendment Act, is absolute, except in the circumstances provided in the proviso appended to sub-section (1) of Section 6. The excepted categories to which new Section 6 of the 1956 Act is not

applicable are two, namely, (i) where the disposition or alienation including any partition has taken place before 20.12.2004; and (ii) where testamentary disposition of property has been made before 20-12-2004. Sub- section (5) of Section 6 leaves no room for doubt as it provides that this Section shall not apply to the partition which has been effected before 20.12.2004. For the purposes of new Section 6 it is explained that "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 or partition effected by a decree of a court. In light of a clear provision contained in the Explanation appended to sub-section (5) of Section 6, for determining the non- applicability of the Section, what is relevant is to find out whether the partition has been effected before 20-12-2004 by deed of partition duly registered under the Registration Act, 1908 or by a decree of a court. In the

backdrop of the above legal position with reference to Section 6 brought in the 1956 Act by the 2005 Amendment Act, the question that we have to answer is as to whether the preliminary decree passed by the trial court on March 19-13-1999 and amended on 27-9-2003 deprives the appellants of the benefits of 2005 Amendment Act although final decree for partition has not yet been passed."

17. In view of the Legislature having conferred

substantial right in favour of the daughter and the

right conferred to the daughter in the property of the

joint family governed by the Mitakshara law by virtue

of 2005 amendment is absolute and in view of

Vineeta Sharma v. Rakesh Sharma and others

reported in AIR 2020 SC 3717, the said

Mangammal's case (supra) relied on by the counsel

for the appellants is overruled in Vineeta Sharma's

case, wherein at para 129, the Hon'ble Apex Court has

held as under:

"129. Resultantly, we answer the reference as under:

            (i)   The    provisions        contained           in
       substituted Section          6 of        the       Hindu

Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.

(ii) The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.

(iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.

(iv) The statutory fiction of partition created by proviso to Section 6 of the

Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class-I as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.

(v) In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court.

However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected out-

rightly."

18. Accordingly, the present appeal filed by

respondent Nos.6 (a) to (d) challenging the final

decree is devoid of merits and the point framed for

consideration in this appeal is held in the affirmative

holding that the daughters defendant Nos.3 and 4 are

entitled to equal share and the order passed in FDP

No.2/2013 does not call for any interference.

19. In the result, we proceed to pass the

following.

ORDER

i) The appeal is dismissed.