Karnataka High Court
Smt Sudershini vs H N Nanjegowda on 17 January, 2022
Bench: N S Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
R.S.A.No.1560 OF 2017 (PAR)
BETWEEN:
1. SMT. SUDERSHINI,
AGED ABOUT 25 YEARS,
D/O H.SHIVARAMAIAH,
2. SMT. SHUSHMA,
AGED ABOUT 22 YEARS,
D/O H.SHIVARAMAIAH,
3. SMT. SINDU,
AGED ABOUT 20 YEARS,
D/O H. SHIVARAMAIAH,
4. PURUSHOTHAMMA,
AGED ABOUT 18 YEARS,
S/O H.SHIVARAMAIAH,
ALL ARE RESIDENTS OF
THAGGALLI VILLAGE, KOPPA HOBLI,
MADDUR TALUK - 571 428,
MANDYA DISTRICT.
... APPELLANTS
(BY SRI.T.P.VIVEKANANDA, ADV.)
2
AND:
1. H.N. NANJEGOWDA,
AGED ABOUT 56 YEARS,
S/O NINGEGOWDA @ BACHEGOWDA,
R/O UJJANI CHANNADODDI,
KOPPA HOBLI,
MADDUR TALUK - 571 428,
MANDYA DISTRICT.
2. H. SHIVARAMAIAH,
AGED ABOUT 51 YEARS,
S/O LATE HOMBEGOWDA,
3. KRISHNEGOWDA,
AGED ABOUT 56 YEARS,
S/O LATE HOMBEGOWDA,
4. THIMMAIAH,
AGED ABOUT 63 YEARS,
S/O LATE HOMBIMARIGOWDA,
5. MAHADEVA,
AGED ABOUT 49 YEARS,
S/O KARIGOWDA,
6. VIVEKANAND,
AGED ABOUT 37 YEARS,
S/O NANJEGOWDA,
RESPONDENT NOS.2 TO 6 ARE
RESIDENTS OF THAGGAHALLI,
KOPPA HOBLI,
MADDUR TALUK - 571 428,
MANDYA DISTRICT.
7. SMT. GOWRAMMA,
AGED ABOUT 61 YEARS
W/O KARIGOWDA
3
@ HALL CHANNANA
KARIGOWDA,
D/O LATE HOMBEGOWDA,
R/O HAALAKERE ,KOPPA HOBLI,
MADDUR TALUK,
MANDYA DISTRICT - 571 428.
8. SMT. JAYAMMA,
AGED ABOUT 59 YEARS,
W/O NINGEGOWDA,
D/O LATE HOMBEGOWDA,
R/O TARIKERE, KOPPA HOBLI
MADDUR TALUK - 571 428,
MANDYA DISTRICT.
9. SMT. HEMAMMA,
AGED ABOUT 57 YEARS,
W/O CHANNEGOWDA,
D/O LATE HOMBEGOWDA,
R/O HARIKERE, KOPPA HOBLI,
MADDUR TALUK - 571 428,
MANDYA DISTRICT.
10. SMT. INDRAMMA,
AGED ABOUT 55 YEARS,
W/O NANJEGOWDA,
D/O LATE HOMBEGOWDA,
RESIDING AT NO.17/18,
ANNAPOORNESHWARI LAYOUT,
VEERABHADRA TOWN,
BANASHANKARI III STAGE,
OPP. PES COLLEGE,
BANGALORE.
... RESPONDENTS
(BY SRI.K.ANANDA, ADV., FOR R1;
R2 TO R7, R9 AND R10 - SERVED AND
UNREPRESENTED;
NOTICE TO R8 - DISPENSED WITH)
4
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC,
1908 AGAINST THE JUDGMENT AND DECREE DATED
11.4.2017 PASSED IN RA NO.28/2015 ON THE FILE OF
THE V ADDL. DISTRICT AND SESSIONS JUDGE, MANDYA,
PARTLY ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGMENT AND DECREE DATED 20.6.2015 PASSED IN OS
NO.185/2006 ON THE FILE OF THE SENIOR CIVIL JUDGE,
MADDUR.
THIS APPEAL COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. One Sri.Hombe Gowda and Smt.Padmavathi had five
children namely Smt.Jayamma (Defendant No.8),
Smt.Gowramma (Defendant No.7), Smt.Hemamma
(Defendant No.9), Sri.Krishnegowda (Defendant No.2),
Smt.Indramma (Defendant No.10) and Sri.H.Shivaramaiah
(Defendant No.1).
2. The plaintiffs are the daughters and son of
Sri.H.Shivaramaiah. They instituted a suit for partition
against their father, their uncles and aunts and also
against Sri.H.N.Nanjegowda (defendant No.6) who was the
purchaser of item Nos.2 and 6.
3. It was their case that their grand father was the
Kartha of the family and under the family arrangement, he
had allotted 'A' schedule property to defendant No.2 and
'B' schedule property to defendant No.1 in the year 1992
and this family arrangement was evidenced by the
mutation of their names in the revenue records vide
M.R.No.19/92-93.
4. It was stated that 'B' schedule property belonged to
defendant No.1 and defendant No.6 was a money lender
and he had obtained the documents in respect of item
Nos.2 and 6 from the father of defendant No.1. It was
stated that since the suit properties were the coparcenary
properties and the plaintiffs had a right by birth in them,
the alienation made in favour of defendant No.6 was
invalid.
5. The suit was contested by defendant No.6. It was
stated that defendant No.1 was the absolute owner of the
suit properties and all the revenue records stood in his
name. It was stated that in order to satisfy the legal
necessities ie., for discharge of hand loans and for house
hold expenses, defendant No.1 had sold item Nos.2 and 6
under a registered sale deed dated 27.11.2000 and by
virtue of the said sale deed, he had become the absolute
owner.
6. It was stated that the plaintiffs were aware of the
fact that the properties had been sold in favour of
defendant No.6 and a suit had been filed only at the
instigation of certain persons. It was stated that since the
suit properties belonged to defendant No.1 exclusively,
plaintiffs were not entitled for any share in the suit
properties.
7. The Trial Court on consideration of the evidence
adduced, came to the conclusion that the plaintiffs had
proved that item No.6 was their ancestral property and the
sale deed in favour of defendant No.6 was not a nominal
sale deed. The trial Court recorded a finding that the
plaintiffs had proved that they were entitled to a share in
item No.2 in 'A' schedule property and item No.6 in 'B'
schedule property and it accordingly decreed the suit and
granted the plaintiffs 1/5th share in all the suit schedule
properties.
8. The purchaser ie., defendant No.6 preferred an
appeal.
9. The Appellate Court after re-appreciating the
evidence came to the conclusion that the claim of the
plaintiffs in respect of item Nos.2 and 6 was not tenable, in
view of the fact that the alienation had been made by
defendant No.1 in favour of defendant No.6 was on
27.11.2000 ie., prior to the date stipulated in the amended
provision of Section 6 of the Hindu Succession
(Amendment) Act, 2005. The Appellate Court accordingly
dismissed the suit of the plaintiff Nos.1 to 3 in respect of
item Nos.2 and 6.
10. The Appellate Court, however, granted half a share
of item Nos.2 and 6 in favour of plaintiff No.4 who was the
son of Sri.H.Shivaramaiah. It was also made clear that
defendant No.6 should be allotted the share of defendant
No.1 in item Nos.2 and 6 in the final decree proceedings.
The purchaser ie., defendant No.6 has accepted the decree
inasmuch as no second appeal has been filed till today.
11. It is only the plaintiff Nos.1 to 3 ie., the daughters
of Sri.H.Shivaramaiah who have challenged the decree of
the appellate Court, by which, their claim for a share in
item Nos.2 and 6 has been rejected.
12. Learned counsel Sri.T.P.Vivekananda contended that
under the Karnataka Amendment of the year 1994, the
plaintiffs had become coparceners by birth and as a
consequence they would be entitled to a share in the suit
properties by birth, especially, since they were not married
as on the date the said Amendment came into force. He
therefore, submitted that 1994 Amendment would have to
be applied and a share was required to be granted in
favour of plaintiff Nos.1 to 3 ie., the daughters of
Sri.H.Shivaramaiah.
13. It cannot be in dispute that under the 1994
Amendment, equal rights were granted to the daughters in
a coparcenary property. However, there were two
conditions stipulated for granting the equal rights to a
daughter under the 1994 Amendment, firstly, that the
daughter should not be married prior to the amendment
and secondly, a partition had not been effected prior to the
Amendment.
14. However, by 2005 Amendment by the Parliament, an
additional condition has been stipulated to the effect that
notwithstanding the conferment of coparcenary status of a
daughter, any alienation made prior to 20th day of
December, 2004 would not stand invalidated.
15. It cannot be in dispute that the alienation in the
instant case was made by defendant No.1 on 27.11.2000
ie., 4 years prior to the Amendment of the year 2005. It is
therefore, clear that notwithstanding the conferment of
coparcenary status of a daughter, by virtue of the fact that
all the alienations made prior to 20th day of December,
2004 have been saved under the Parliamentary
amendment of the year 2005, the plaintiffs though
coparceners to the family cannot invalidate the alienation
made by the other coparceners prior to the amendment.
16. The judgment of the Appellate Court applying the
2005 Amendment and refusing the share to the daughters
in the property sold prior to 20 th December 2004 cannot
therefore be found fault with.
17. There is no substantial question of law arising for
consideration in this second appeal. Accordingly, the
second appeal is dismissed.
Sd/-
JUDGE
GH
