Karnataka High Court

Smt Lakshmamma vs Smt Shanthamma on 10 March, 2022

Bench: R. Nataraj

                            1


IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 10TH DAY OF MARCH, 2022

                        BEFORE

          THE HON'BLE MR.JUSTICE R.NATARAJ

 REGULAR SECOND APPEAL NO.1208 OF 2021 (PAR)

BETWEEN:

SMT. LAKSHMAMMA
W/O LATE H. HANUMANTHAPPA,
AGED ABOUT 55 YEARS
R/O CHINNAMUMABAPURA VILLAGE
SHIVAMOGGA TQ. AND DISTRICT - 577201.

                                    ...APPELLANT
(BY SRI. S.B.HALLI, ADVOCATE)

AND:

1.     SMT. SHANTHAMMA
       W/O GOVINDAPPA
       AGED ABOUT 57 YEARS
       R/O CHINNAMUMABAPURA VILLAGE
       SHIVAMOGGA TQ. AND DISTRICT - 577201

2.     SMT. LAKSHMAMMA
       W/O LATE KRISHNAPPA
       AGED ABOUT 62 YEARS
       R/O CHINNAMUMABAPURA VILLAGE
       SHIVAMOGGA TQ. AND DISTRICT - 577201
                                  ...RESPONDENTS

     THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CODE OF CIVIL PROCEDURE, 1908
AGAINST THE JUDGMENT AND DECREE DATED 22.10.2021
PASSED IN R.A.NO.102/2018 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE AND CJM, SHIVAMOGGA, DISMISSING
                              2


THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 14.06.2018 PASSED IN O.S.NO.69/2014 ON THE FILE
OF THE III ADDITIONAL CIVIL JUDGE AND JMFC, SHIVAMOGGA.

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

                       JUDGMENT

This appeal is filed by the defendant in O.S.

No.69/2014 challenging the concurrent Judgment and

Decree of the III Additional Civil Judge and JMFC.,

Shivamogga, (henceforth referred to as the 'Trial Court')

as well as of the Court of Principal Senior Civil Judge and

CJM., Shivamogga, (henceforth referred to as the 'First

Appellate Court') granting 2/3rd share to the plaintiffs and

1/3rd share to the defendant in the suit schedule property.

2. The suit in O.S. No.69/2014 was filed for

partition and separate possession of the plaintiffs' 2/3rd

share in the suit schedule property. It was their case that

the plaintiffs were the daughters while the husband of the

defendant was the son of late Sri Dodda Hanumanthappa,

who was granted occupancy rights in respect of land in Sy.

No.1 of Chinnamumbapura village, Holalur, measuring 02

acres 32 guntas by the Land Tribunal, Shivamogga. The

said Dodda Hanumanthappa died on 05.04.1984. It is

stated that H.Hanumanthappa, the husband of the

defendant, got his name entered in the revenue records.

The plaintiffs claim that the grant of occupancy rights was

made in favour of the family and that the plaintiffs along

with the defendant were in possession and enjoyment of

the suit property. They claim that they were entitled to

equal share in the suit schedule property along with the

defendant, who was entitled to her husband's share.

3. The defendant contested the suit and claimed

that the plaintiffs were born prior to 17.06.1956 and were

therefore not entitled to claim as coparceners and hence,

sought for dismissal of the suit.

4. Based on these rival contentions, the Trial

Court framed the following issues:

"1. Whether the plaintiffs prove that they and defendant constitute Hindu joint family?

2. Whether the plaintiffs further prove that the suit schedule property is their joint family property?

3. Whether the plaintiffs have share in the suit schedule property? If so, to what extent?

4. Whether the suit is properly valued and the court fee paid is correct?

5. What order or decree?"

5. The plaintiff No.1 was examined as PW.1 and

she marked documents as Exs.P1 to P5 whereas the

defendant was examined as DW.1.

6. Based on the oral and documentary evidence,

the Trial Court held that the defendant did not dispute her

relationship with the plaintiffs. It also held that after the

death of Dodda Hanumanthappa, the plaintiffs and the

husband of the defendant being his legal heirs, were

entitled to 1/3rd share each in the suit schedule property

and hence, decreed the suit.

7. Being aggrieved by the aforesaid Judgment

and Decree, the defendant filed an appeal before the First

Appellate Court.

8. The First Appellate Court secured the records

of the Trial Court, heard the learned counsel for the parties

and framed the points for consideration and in terms of the

Judgment and Decree dated 22.10.2021, dismissed the

appeal. Being aggrieved by the aforesaid Judgment, the

present appeal is filed.

9. The learned counsel for the appellant

submitted that the plaintiffs were not entitled for a share

in the suit schedule property since they were married

daughters and in view of Section 2(12) of the Karnataka

Land Reforms Act, 1961, (henceforth referred to as 'the

Act of 1961') they were not members of the 'Family' and in

view of Section 24 of the Act of 1961, they could not have

inherited the tenancy. He relied upon the Judgment of a

Division Bench of this Court in NIMBAVVA AND OTHERS

vs. CHANNAVEERAYYA AND OTHERS [2015 (1) KCCR

205 (DB)] and contended that in similar circumstances, a

Division Bench of this Court had held that married

daughters are excluded from claiming partition in respect

of land that is granted under the Act of 1961.

10. I have considered the submissions of the

learned counsel for the defendant/appellant.

11. A perusal of the Judgments of the Trial Court

and the First Appellate Court, discloses that the aforesaid

contention urged by the learned counsel for the appellant

before this Court was never raised nor urged before both

the Courts.

12. Be that as it may, a similar question of law

arose for consideration before the Apex Court in N.

PADMAMMA AND OTHERS vs. S. RAMAKRISHNA

REDDY AND OTHERS [AIR 2008 SC 2834] which doubted

the law laid down in LOKRAJ vs. KISHAN LAL [(1995) 3

SCC 291], referred it to a larger Bench for consideration.

The Full Bench of the Apex Court in the judgment reported

in N. PADMAMMA AND OTHERS vs. S. RAMAKRISHNA

REDDY AND OTHERS reported in [(2015) 1 SCC 417],

held as follows:

"15. It is evident from the above that the right of partition was held to have been lost by operation of law. Till such time the grant was made no such right could be recognized, observed this Court. This Court specifically held that it was not concerned with the consequences that would ensue after grant is made. The suit in the present case was filed after the grant of occupancy rights. The question here is whether the grant of such rights is for the benefit of one of the members of the joint family or for all the heirs left behind by Ramachandra Reddy. Our answer to that question is in favour of the appellants. In our opinion, the grant of such occupancy rights in favour of Respondent 1 was for the benefit of all the legal heirs left behind by Ramachandra Reddy. Reliance upon Lokraj v. Kishan Lal case [(1995) 3 SCC 291], therefore, is of no assistance to the respondents. We are also of the view that the decision in Lokraj case, does not correctly apply the earlier decision of this Court in Bhubaneshwar Prasad Narain Singh v. Sidheswar Mukherjee case [(1971) 1 SCC 556]. With utmost respect to the Hon'ble Judges who delivered the decision in Lokraj case, the law was not correctly laid down, if the same was meant to say that even in the absence of a plea of ouster, a co-heir could merely on the basis of grant of the occupancy rights in his name exclude the other co-heirs from partition of the property so granted."

13. A Division Bench of this Court, to which I was a

party, had held in the case of ARVIND AND ANOTHER

VS. SUNANDA AND OTHERS [RFA No.100149/2014

disposed off on 13.01.2020] that in view of the law

declared by the Hon'ble Apex Court in N. PADMAMMA'S

case (referred supra), the law declared by the Division

Bench of this Court in NIMBAVVA'S case (referred supra)

was not good law.

14. In that view of the matter, the contentions

urged by the defendant / appellant is not sustainable. Be

that as it may, the provisions of the Act of 1961 cannot be

pressed into service to negate the claim of the plaintiffs.