Rangashamaiah Since Dead By His Lr vs Rangahanumaiah Since Dead By His ...
2022 Latest Caselaw 914 Kant

                            1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 20TH DAY OF JANUARY, 2022

                        BEFORE

      THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA

 REGULAR SECOND APPEAL No.1171 OF 2015 (PAR)

BETWEEN:

RANGASHAMAIAH
SINCE DEAD BY HIS LR

(a)    RATHNAMMA,
       W/O VENKATESH,
       AGED 50 YEARS,
       R/O PEENYA, 2ND STAGE,
       RAJAGOPALNAGAR,
       BANGALORE - 560 058.
                                      ... APPELLANT
(BY SRI.K.N.NITISH, ADV.)

AND:

1.     RANGAHANUMAIAH,
       SINCE DEAD BY HIS LRs.

(a)    SMT. JAYAMMA,
       W/O NAGARAJU,
       MAJOR

(b)    SMT.HANUMAKKA,
       W/O RAMACHANDRAIAH,
       MAJOR,
                          2
(c)   RANGAMMA,
      W/O HANUMANTHARAYAPPA,
      MAJOR

(d)   NAGARAJU,
      S/O RANGAHANUMAIAH,
      MAJOR,

(e)   HANUMARANGAPPA,
      S/O RANGAHANUMAIAH,
      MAJOR,

      R/AT KALUVENAHALLI VILLAGE,
      KOLALA HOBLI,
      KORATGERE TALUK,
      TUMKUR DISTRICT - 572 140.

2.    SMT. PUTTAMMA,
      MAJOR,
      W/O RANGAHANUMAIAH,
      R/AT KALUVENAHALLI VILLAGE,
      KOLALA HOBLI,
      KORATGERE TALUK,
      TUMKUR DISTRICT - 572 140.

3.    SMT.THULASAMMA,
      MAJOR,
      W/O MUDDAIAH,
      R/A THIMMANAYAKANAHALLI,
      KOLALA HOBLI,
      KORATGERE TALUK,
      TUMKUR DISTRICT - 572 140.

4.    SMT.RANGAMMA,
      MAJOR,
      W/O PUTTAIAH,
      R/AT YELERAMAPURA,
      TUMKUR DISTRICT - 572 129.
                          3
5.   SMT.PUTTAMMA,
     D/O LATE LAKSHMAMMA,
     W/O MUTHURAYAPPA,
     MAJOR,
     R/A PURADAHALLI,
     KOLALA HOBLI,
     KORATGERE TALUK,
     TUMKUR DISTRICT - 572 140.

6.   SMT.MUTHAKKA,
     W/O LATE PUTTARAJU,
     MAJOR,
     R/A KALUVENAHALLI VILLAGE,
     KOLALA HOBLI, KORATAGERE TALUK,
     TUMKUR DISTRICT - 572 140.

7.   SMT.RATHNAMMA,
     W/O SHANKARAPPA,
     D/O LATE PUTTARAJU,
     MAJOR,
     R/A RANGAPURA VILLAGE,
     KOLALA HOBLI, KORATAGERE TALUK,
     TUMKUR DISTRICT - 572 140.

8.   SRI.LAKSHMISHA,
     S/O LATE PUTTARAJU,
     R/A KALUVENAHALLI VILLAGE,
     KOLALA HOBLI, KORATAGERE TALUK,
     TUMKUR DISTRICT - 572 140.
                                      ... RESPONDENTS
(BY SRI.Y.P.GOKUL, ADV., FOR R1(a-e);
  R2 TO R8 SERVED AND UNREPRESENTED)

     THIS APPEAL IS FILED UNDER SECTION 100 OF
CPC., AGAINST THE JUDGMENT AND DECREE DATED
14.01.2015 PASSED IN R.A.NO.162/2012 ON THE FILE OF
THE 4th ADDL.DISTRICT AND SESSIONS JUDGE AT
MADHUGIRI, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED 30.06.2012 PASSED
                               4
IN O.S.NO.54/2007 ON THE FILE THE ADDL. SENIOR CIVIL
JUDGE AND JMFC., MADHUGIRI.

     THIS APPEAL COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:

                        JUDGMENT

1. Sri.Rangashamaiah, the plaintiff, instituted a suit for

partition against his brother Sri.Rangahanumaiah.

2. The relationship of the plaintiff and the defendant was

not in dispute. The character of the properties being the

joint family properties was also not in dispute.

3. Taking note of the fact that there were four sisters to

Sri.Rangashamaiah and Sri.Rangahanumaiah, the trial

Court granted 1/6th share to the plaintiff.

4. Being aggrieved, an appeal was preferred.

5. The Appellate Court found no reason to disagree with

the finding of the trial Court and having regard to the fact

that both the relationship between the parties and the

character of the properties was also not in dispute, it

proceeded to confirm the decree of the Trial Court and

dismissed the appeal.

6. It is as against this concurrent finding, this second

appeal has been preferred.

7. It would be pertinent to state here in this second

appeal, the sisters of the plaintiff and the defendant have

been impleaded and thus all the stakeholders have been

arrayed as parties.

8. Sri.K.N.Nitish, learned counsel for the appellant does

not dispute the fact that in the light of the judgment of the

Hon'ble Apex Court in the case of Vineeta Sharma Vs.

Rakesh Sharma and Others reported in AIR 2020 SC

3717, the daughters would also have to be treated as

coparceners and would have to be granted an equal share.

9. However, it is the contention of the learned counsel

that the third sister of the plaintiff ie., Smt.Lakshmamma

passed away on 02.10.1986 and since she was not alive as

on the date of the Amendment ie., on 09.09.2005, she

would not be entitled to a share and it is only the

coparceners who were alive as on 09.09.2005 would be

entitled to a share. He therefore, submits that the decree

granting 1/6th share is required to be modified and 1/5th

share is required to be granted to the plaintiff, defendant

No.1 and their three sisters ie., respondent Nos.2 to 4.

10. Learned counsel placed reliance on Paragraph No.75

of the judgment in Vineeta Sharma's case to state that the

Hon'ble Apex Court had made it clear that the daughters

should be living on 09.09.2005 in order to be entitled to a

share.

11. In Vineeta Sharma's case, the Amendment made to

Section 6 of the Hindu Succession Act, 1956 was

elaborately considered. The Apex Court after considering

the entire case law and after interpreting the amended

provision, laid down five propositions.

12. Firstly, it was declared that the provisions contained

in the substituted Section 6 of the Hindu Succession Act,

1956, conferred the status of a coparcener on the

daughter born before or after the amendment, in the same

manner as a son and with same rights and liabilities.

13. The second proposition was that coparcenary rights

could be claimed by the daughter born earlier to the

amendment, however, with effect from 09.09.2005,

subject to the condition that there was no disposition or

alienation, partition or testamentary disposition having

taken place before 20th day of December, 2004.

14. Thirdly, it was also declared that since, the right in

the coparcenary is by birth, it is not necessary for the

father coparcener to be alive as on 09.09.2005.

15. Fourthly, it was also declared that the statutory

fiction of partition created by the Proviso to Section 6 of

the Hindu Succession Act, 1956 as originally enacted did

not bring about the actual partition on disruption of the

coparcenary.

16. It was stated that the fiction was only for the

purpose of ascertaining the share of the deceased

coparcener when he was survived by a female heir of

Class-I, as specified in the Schedule to the Act of 1956. It

was made clear that the provisions of the substituted

Section 6 of the Hindu Succession Act, 1956 are required

to be given full effect. Notwithstanding that a preliminary

decree has been passed and the daughters are required to

be given a share in coparcenary equal to that of a son.

17. It was finally stated that normally a plea of oral

partition cannot be accepted and only in exceptional cases

a plea of oral partition could be entertained only if the

same was supported by a public document and is evinced

in the same manner as it had been effected by a decree of

a Court.

18. It is therefore clear that in Vineeta Sharma's case, it

has been clearly held that the substituted Section 6 of the

Hindu Succession Act, 1956, conferred the status of a

coparcener on the daughter, whether she was born before

or after the Amendment, in the same manner as a son and

in the same rights and liabilities.

19. Once the daughter is conferred the status of a

coparcener and acquires a right by birth, this acquisition of

a right by birth cannot be deprived by her death whether it

is either before or prior to the Amendment.

20. The creation of a coparcenary right is by birth and

creates a right in the female by virtue of her birth in the

family. Her death in the family, either before or after the

Amendment, will have no effect on her status as a

coparcener. Once she is born in a family she becomes a

coparcener by operation of law and this status is definite

and perennial. The death of a daughter, whether it occurs

before the amendment to the Act or after the amendment

to the Act, would make absolutely no difference to her

status as a coparcener.

21. It is to be stated here that the substituted provision

also makes it clear that the daughter becomes a

coparcener in the same manner as that of a son and would

also be subject to the same rights and liabilities of a son.

Under the provisions of the Act, if the son in a coparcenary

were to die, his children would be entitled to stake a claim

in the share of their father. Similarly, by virtue of the fact

that the same right has been conferred under the

amended provisions of the Act on a daughter, the legal

heirs of the deceased daughter would also be entitled to

succeed to the share of their mother.

22. The argument that, in Vineeta Sharma's case, the

question of the daughter being alive as on the date of the

Amendment was not considered and it is necessary for the

daughter to be alive cannot be accepted. The Supreme

Court has in unequivocal terms held that a daughter by

virtue of her birth in the family becomes a coparcener.

Once, it is held that a daughter becomes coparcener by

her birth, the said status of coparcener can never be lost.

The death of such a coparcener, whether it is either before

or after herb birth or death, the amendment to the Act,

would have absolutely no relevance to her status as a

coparcener.

23. I am therefore of the view that there is no substantial

question of law arising for consideration in this second

appeal and the same is accordingly dismissed.

Sd/-

JUDGE

GH