Sri P K Shashidhara vs R Krishnappa
2022 Latest Caselaw 8715 Kant

                           -1-

    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 14TH DAY OF JUNE, 2022

                        BEFORE

       THE HON'BLE MR.JUSTICE S.R.KRISHNA KUMAR

              R.F.A. No.1879/2011 (PAR)

BETWEEN:

1.      SRI.P.K.SHASHIDHARA,
        S/O KRISHNAPPA,
        AGED ABOUT 41 YEARS,
        OCC: AGRICULTURE,
        R/O PILLANGERE,
        SHIMOGA TQ.,& DISTRICT-577201

2.      SRI.K.RAJESH
        S/O KRISHNAPPA,
        AGED ABOUT 40 YEARS,
        R/O SEETHARAMA KALYANA
        MANDIR ROAD, DURGIGUDI,
        SHIMOGA CITY-577201.             ... APPELLANTS

(BY SRI S.V.PRAKASH, ADVOCATE)

AND:

1.      R.KRISHNAPPA,
        SINCE DECEASED, REPRESENTED BY HIS LRs.

1(a)    SMT. P.K.SAVITHRI
        W/O LATE HEMADRI,
        D/O R.KRISHNAPPA,
        AGED ABOUT 50 YEARS,
        TEACHER, GOVERNMENT HIGHER
        PRIMARY SCHOOL, NAGASAMUDRA,
        HOLEHONNUR HOBLI, BADRAVATHI TALUK
        SHIMOGA DISTRICT-577301

2       SRI.P.K.SURESH KUMAR,
        S/O LATE KRISHNAPPA,
        AGED ABOUT 54 YEARS,
                              -2-

3.    SRI.K.SAMPATH,
      S/O LATE KRISHNAPPA,
      AGED ABOUT 38 YEARS,

4.    SMT.YELLAMMA,
      W/O LATE KRISHNAPPA,
      AGED ABOUT 70 YEARS,

      APPELLANTS 2 TO 4 ARE RESIDENTS OF
      SEETHARAMA KALYANA MANTAP ROAD,
      DURGIGUDI, SHIMOGA CITY-577201
                                   ... RESPONDENTS
(SRI B.S.PRASAD, ADVOCATE FOR R1(A), R2 TO R4)

      THIS APPEAL IS FILED UNDER SECTION 96 OF CPC.,
AGAINST THE JUDGEMENT & DECREE DTD 06.08.2011
PASSED IN O.S.NO.212/2002 ON THE FILE OF THE II
ADDITTIONAL SENIOR CIVIL JUDGE, SHIVAMOGGA, PARTLY
DECREEING THE SUIT FOR THE PARTITION.

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



                          JUDGMENT

This appeal by the plaintiffs in O.S.No.212/2002

on the file of II Addl.Senior Civil Judge, Shivamogga, is

directed against the impugned judgment and decree

dated 06.08.2011, whereby the trial court declared that

the appellants 1 and 2, respondent No.1(a) and

respondents 2 to 4 are entitled to 1/6th share each in

the suit schedule immovable properties and granted

other suitable reliefs.

2. Heard learned counsel for the appellants and

learned counsel for the respondents and perused the

material on record.

3. The material on record discloses that the

plaintiffs - appellants 1 and 2 are the sons of deceased

1st defendant - R.Krishnappa, who expired on

31.10.2002. The defendants 2 and 3 are also the sons

of deceased 1st defendant. The defendant No.1(a) is the

daughter of deceased Krishnappa, while defendant No.4

is his wife.

4. The plaintiffs instituted the suit inter-alia

contending that the suit schedule properties are joint

family properties and that they are entitled to their

legitimate share in the same and for other reliefs. The

said suit having been contested by the respondents -

defendants, the trial court proceeded to pass the

impugned judgment and decree, decreeing the suit in

favour of the appellants 1 and 2 - plaintiffs, thereby

declaring that they are entitled to 1/6th share each

along with defendant No.1(a) and defendants 2 to 6 in

the suit schedule properties.

5. As stated supra, the original 1st defendant -

R.Krishnappa expired on 31.10.2002 during the

pendency of the suit and the plaintiffs, defendants 2 to

4 as well as his daughter Smt.B.K.Savithri were brought

on record as his heirs and legal representatives.

Accordingly, the trial court came to the conclusion that

upon the demise of 1st defendant - R.Krishnappa, all his

six legal representatives viz., plaintiffs 1 and 2,

defendant No.1(a) and defendants 2 to 4 are entitled to

1/6th share each in the suit schedule property. It is

relevant to state that the respondents - defendants

have not challenged the impugned judgment and decree

and the same has attained finality and become

conclusive and binding upon them.

6. During the pendency of the appeal, the 4th

defendant - 4th respondent Smt.Yellamma, mother of

the parties expired on 05.09.2016 leaving behind the

appellants and respondents 1(a), 2 and 3 to succeed to

her estate including her undivided 1/6th share in the suit

schedule properties. Consequently, all the children of

1st defendant - Krishnappa and 4th defendant -

Yellamma would be entitled to 1/5th share each in the

suit schedule properties on account of the subsequent

event i.e., demise of Smt.Yellamma during the

pendency of the appeal.

7. The sole ground urged by the appellants -

plaintiffs 1 and 2 in the present appeal is, whether the

trial court was justified in granting equal share to all the

class-1 heirs of Krishnappa, despite coming to the

conclusion that the suit schedule properties were joint

family properties. It was contended that since the

appellants 1 and 2 and the respondents 2 and 3 being

sons of Krishnappa, each of them were entitled to 1/5th

share each along with Krishnappa in the suit schedule

properties and their sister respondent No.1(a) would be

entitled to 1/6th share in the 1/5th notional undivided

share of late Krishnappa and failure to appreciate this,

has resulted in erroneous conclusion. It was also

contended that taking into account their mother

Smt.Yellamma dying intestate during the pendency of

the appeal, her 1/30th share (1/6th undivided share in

the 1/5th share of Krishnappa) would also have to be

divided equally between the appellants 1 and 2 and

respondents 1(a), 2 and 3. It was submitted that since

Krishnappa expired on 31.10.2002 prior to

commencement of Section 6 of the Hindu Succession

(Amendment) Act, 2005, the said Act would not be

applicable to the parties and even this has not been

appreciated or considered by the trial court and

consequently, the impugned judgment and decree

passed by the trial court deserves to be set aside.

8. Per contra, learned counsel for the respondents

submit that the impugned judgment and decree passed

by the trial court granting equal share to all the parties

is just and proper and upon Smt.Yellamma dying

intestate during the pendency of the appeal, all the

parties to the appeal viz., the children of Krishnappa

and Yellamma including their daughter, respondent

No.1(a) would be entitled to equal 1/5th share each in

the suit schedule properties in the light of the decision

of the Apex Court in the case of Vineeta Sharma vs.

Rakesh Sharma - AIR 2020 (SC) 3717.

9. As rightly contended by the learned counsel for

the respondents, in Vineetha Sharma's case (supra),

the Apex Court has categorically held that Section 6 of

the Hindu Succession (Amendment) Act, 2005, is

retrospective in operation and both daughters and sons

would be entitled to equal share irrespective of whether

the father expired prior to 09.09.2005 or subsequently,

when the Amendment came into force. It is therefore

clear that the contention advanced on behalf of the

appellants in the present appeal and the point that

arises for consideration is no longer res-integra and

completely, fully and squarely covered by the judgment

of the Apex Court in Vineeta Sharma's case and

consequently, the contention urged by the appellants

cannot be accepted.

10. Further, as stated supra, Smt. Yellamma -

original defendant No.4 having expired intestate on

05.09.2016 during the pendency of the appeal, the

shares of the parties would have to be quantified by

declaring that appellants 1 and 2, respondent No.1(a)

and respondents 2 and 3 are entitled to 1/5th share each

in the suit schedule properties.

11. In the result, I pass the following:

ORDER

(i) Appeal is hereby partly allowed.

(ii) The impugned judgment and decree dated

06.08.2011 passed in O.S.No.212/2002 by the learned

II Additional Senior Civil Judge at Shivamogga is hereby

modified.

(iii) The appellants 1 and 2, respondent No.1(a),

respondent Nos.2 and 3 are declared as being entitled

to 1/5th share each in the suit schedule properties

together with all consequential benefits flowing

therefrom which would have to be worked out during

final decree proceedings.

Sd/-

JUDGE

Ssb/Srl.