Smt. Vedavathy vs Sri Palaksha
2022 Latest Caselaw 12675 Kant

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    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

           DATED THIS THE 29TH DAY OF OCTOBER, 2022

                             BEFORE

              THE HON'BLE MRS. JUSTICE M G UMA

       REGULAR SECOND APPEAL NO. 2157 OF 2012 (PAR)

BETWEEN:

SMT. VEDAVATHY W/O CHIKKAVEERAPPA,
41 YEARS, RESIDING AT
GOVINDANAHALLI, KIKKERI HOBLI,
KR PET TALUK - 596 613.
                                                    ... APPELLANT
(BY MR: ABHINAY .Y.T., ADVOCATE)

AND:

1. SRI. PALAKSHA
   SON OF SIDDALINGAIAH,
   51 YEARS, RESIDING AT
   LALANAHALLI VILLAGE,
   KASABA HOBLI, KR NAGAR TALUK
   - 596 618.

2. SMT. L.V. VASANTHA,
   WIFE OF SIDDAPPA,
   31 YEARS, RESIDING AT
   LALANAHALLI VILLAGE,
   KASABA HOBLI, KR NAGAR TALUK
   - 596 618.
                                             ... RESPONDENTS
(BY MR: A. LOURDU MARIYAPPA, ADVOCATE FOR R1 & R3
    MR: JAGADEESH .P., ADVOCATE FOR R-1.
    MR: R. PRAMOD, ADVOCATE FOR R2)

      THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC AGAINST THE
JUDGMENT AND DECREE DATED 14.9.12 PASSED IN R.A.NO.241/2012 ON
THE FILE OF PRESIDING OFFICER, FAST TRACK COURT-II, MYSORE,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DTD 22.2.12 PASSED IN OS.NO.15/2010 ON THE FILE OF SENIOR CIVIL
JUDGE AND JMFC, K.R.NAGAR.

      THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR JUDGMENT
ON 14.09.2022 COMING ON FOR PRONOUNCEMENT OF ORDERS THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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                         JUDGMENT

The plaintiff-appellant has preferred this appeal being

aggrieved by the impugned judgment and decree dated

22.02.2012 passed in O.S.No.15/2010 on the file of the

learned Senior Civil Judge & JMFC, K.R.Nagar (hereinafter

referred to as 'trial Court' for brevity) partly decreeing the suit

of the plaintiff and allotting 1/4th share in Item Nos.1 and 2 of

the schedule properties which was confirmed by the Fast

Track Court-II, Mysore in R.A.No.241/2012 (hereinafter

referred to as 'First Appellate Court' for brevity), dismissing

the appeal vide judgment dated 14.09.2012.

2. For the sake of convenience, parties are referred

to as per their status and rank before the Trial Court.

3. Brief facts of the case are that the plaintiff filed

the suit against defendant Nos.1 and 2 for declaration that

she is entitled for half share in the plaint schedule properties

and also to declare that sale inter-se between the defendants

in respect of the schedule properties is not binding on her and

for partition and separate possession of her share by metes

and bounds. The schedule consists of 2.37 acres of land in

Sy.No.344/2A and House situated at J.No.12 in Lalanahalli

Village, Kasaba Hobli, K.R.Nagar Taluk as per the boundaries

mentioned therein.

4. It is contended by the plaintiff that she is the

sister of defendant No.1 and their father and mother are

Siddalingaiah, Puttathayamma. The schedule properties are

the ancestral properties and the plaintiff is one of the

coparcener. Defendant No.1 parted 21 guntas of land out of

2.37 acres of land in favour of defendant No.2 without notice

to the plaintiff, which is not binding on her. Since the

defendants are attempting to alienate the schedule properties

to defeat the rights of the plaintiff, the plaintiff filed the suit

for the above reliefs.

5. Defendant No.1 appeared before the trial Court

and filed his written statement admitting the relationship with

the plaintiff. However, it is contended that the suit of the

plaintiff is not maintainable and is liable to be dismissed. It is

contended that defendant No.1 and his father sold 1.20 acres

of land in Sy.No.344/2A in favour of one Sri.Kempaiah for

legal necessities. It is further contended that defendant No.1

out of his independent income, has purchased 1.20 acres of

land in Sy.No.344/2A under the registered sale deed dated

02.02.1996 for valuable consideration from Sri.Kempaiah and

since then he is in peaceful possession and enjoyment of the

schedule property. Therefore defendant No.1 prayed for

dismissal of the appeal.

6. Defendant No.2 appeared before the Court and

filed her written statement admitting the relationship between

the plaintiff and defendant No.1. It is contended that

defendant No.2 purchased 21 guntas of land in Sy.No.344/2A

out of 2.37 acres of land in the schedule property for total

consideration amount of Rs.34,500/- under the registered sale

deed dated 12.02.2001 from defendant No.1. Defendant No.2

is one of the purchaser for value and therefore, the plaintiff is

not entitled for any relief. The claim of the plaintiff against

defendant No.2 and 21 guntas of land which was purchased

by her is liable to be dismissed. Accordingly, she prays for

judgment and decree.

7. On the basis of the pleadings on record, the Trial

Court framed the following issues:

1. Whether the plaintiff proves that the suit schedule properties are the ancestral and joint family properties of herself and Ist defendant?

2. Whether the plaintiff proves that she has got half share in the suit schedule properties?

3. Whether the plaintiff proves the sale inter-se between the defendants is not binding on her?

4. Whether Ist defendant proves that he purchased 1 acre 20 guntas of land in Sy.No.344/2A on 02-02-1996 out of his independent income?

5. Whether the 2nd defendant proves that he is the bonafide purchaser of 21 guntas of land in the suit schedule item No.1 property for valuable consideration?

6. Whether the plaintiff is entitled to the relief as sought?

7. What order or decree?

8. The plaintiff examined herself as PW.1 and got

marked Exs.P1 to P3 in support of her contention. Defendants

examined themselves as DWs.1 and 3 and one more witness

as DW.2 and got marked Exs.D1 to D11 in support of their

contention. The trial Court after taking into consideration all

these materials on record, answered issue Nos.1, 2 and 6

partly in the affirmative, issue No.3 in the negative, issue

Nos.4 and 5 in the affirmative and accordingly suit of the

plaintiff was decreed in part declaring that the plaintiff is

entitled for 1/4th share in item Nos.1 and 2 and entitled for

partition and separate possession. However, the relief for

declaration that the sale deed is not binding on the plaintiff

was rejected.

9. Being aggrieved by the same, the plaintiff has

filed regular appeal in R.A.No.241/2012 before the First

Appellate Court. The First Appellate Court after

re-appreciating the materials on record, came to the

conclusion that the appeal is not maintainable and accordingly

dismissed the appeal. Being aggrieved by the same, the

plaintiff is before this Court seeking relief of declaration that

the sale inter-se entered into between defendant Nos.1 and 2

is not binding on her and for half share in the property.

10. Heard Sri. Abhinay.Y.T., learned counsel for the

appellant, Sri. Lourdu Mariyappa, learned counsel for

respondent Nos.1 and 3, Sri. Jagadeesh.P, learned counsel for

respondent No.1 and Sri. R.Pramod, learned counsel for

respondent No.2.

11. Learned counsel for the appellant submits that

admittedly the suit schedule properties were owned by the

father of the plaintiff as ancestral properties. Even as per the

contention taken by the defendants, the father of the plaintiff

and defendant No.1 sold the suit property under Ex.D1 and

defendant No.1 repurchased the said property. In the sale

deed dated 12.02.2001 which is as per Ex.D8, wherein it is

categorically mentioned that the properties are ancestral

property of the vendor. Under such circumstances, the trial

Court as well as the First Appellate Court have committed an

error in allotting only 1/4th share in favour of the plaintiff and

refusing to grant the relief of declaration that the sale deed

dated 12.02.2001 is not binding on the plaintiff. Therefore, he

prays for allowing the appeal and to decree the suit as prayed

for.

12. Per contra, learned counsel for the respondents

opposing the appeal submitted that Ex.D1 is the sale deed,

whereunder, the father of plaintiff and defendant No.1 sold

1.20 acres of land in favour of one Kempaiah way back on

05.07.1980. Defendant No.1 purchased the very same land

under the sale deed dated 02.02.1996 from out of his own

income. Therefore, the said property cannot be considered as

ancestral property. Since the property was self-acquired

property, defendant No.1 sold 21 guntas of land in favour of

defendant No.2 under the registered sale deed dated

12.02.2001. The trial Court as well as the First Appellate

Court have properly appreciated the materials on record and

partly decreed the suit. There is concurrent finding of facts by

both the Courts and therefore, no interference in called for.

Accordingly he prays for dismissal of the appeal as devoid of

merits.

13. The appeal was admitted vide order dated

29.05.2013 to consider the following substantial question of

law:

"Whether the Courts below are right in holding that plaintiff is not entitled to be a

coparcener by birth having regard to the Section 6 of the Hindu Succession Act as amended by Act No.39/05?"

14. I have considered the arguments advanced by the

learned counsel for both the parties and perused the materials

on record.

15. It is the specific contention of the plaintiff that the

schedule properties are the ancestral properties and the same

was held by her father-Siddalingaiah. It is stated that said

Siddalingaiah died in the year 1988. Admittedly, Siddalingaiah

had sold 1.20 acres of land in the schedule properties in

favour of one Kempaiah under the registered sale deed dated

05.07.1980 which is marked as Ex.D1. It is also not disputed

that it was defendant No.1 who purchased the said 1.20 acres

of land from Kempaiah under Ex.D4 dated 02.02.1996 and

out of the same, 21 guntas of land was sold by defendant

No.1 in favour of defendant No.2 under sale deed dated

12.02.2001 which is as per Ex.D8. There is absolutely no

dispute about these facts of the case. Perused the recitals

found in these admitted documents. In Ex.D1, it is

categorically mentioned that instead of mortgaging the

property, it is being sold in favour of Kempaiah. Therefore, it

could be gathered from the recitals that the intention of the

parties was to mortgage the property for Rs.2000/-.

However, the document styled as sale deed was executed. It

is also pertinent to note that as per Ex.D4-sale deed,

defendant No.1 purchased the property back from Kempaiah

and the recitals state that it is 're-purchase'. When in Ex.D1

there is reference that instead of mortgaging, sale deed was

executed and in Ex.D4, the purchaser refers to 're-purchase'

by defendant No.1, it supports the contention of the plaintiff

that the properties were held as ancestral properties and

father of plaintiff and defendant No.1 had not infact sold 1.20

acres of land in favour of Kempaiah but the intention was to

mortgage the same, which was redeemed by defendant No.1

under Ex.D4. It is also pertinent to note that Ex.D8 is the

sale deed executed by defendant No.1 in favour of defendant

No.2 in respect of 21 guntas of land in the schedule

properties. The recitals found in this document categorically

refers to the schedule properties as ancestral property. If

defendant No.1 had purchased the schedule land from out of

his own income and had treated as his own property, there is

absolutely no reason as to why 21 guntas of land in Ex.D8 is

referred to as ancestral property.

16. It is also pertinent to note that even though the

trial Court and the First Appellate Court consistently held that

the plaintiff is entitled for the share in the schedule

properties, the said finding was never challenged by the

defendants by preferring the appeal. When defendant No.1

admits the finding of the trial Court and the First Appellate

Court that the plaintiff is entitled for share in the schedule

properties, there is absolutely no reason as to why the

property is to be considered as self-acquired property of

defendant No.1.

17. The controversy with regard to the share to which

the daughter is entitled in respect of the ancestral property is

put at rest by the Hon'ble Apex Court by its judgment in the

case of VINEETA SHARMA v. RAKESH SHARMA AND

OTHERS1, wherein, it is held that the daughter is a

coparcener by birth, whether it is before or after amendment

to the Hindu Succession Act (as amended by Act 39 of 2005)

in the same manner as the son with same rights and

AIR 2020 SC 3717

liabilities. It is also held that it is not necessary that father-

coparcener should be living as on the date when the

amendment to Section 6 of the Hindu Succession Act was

brought into force with effect from 09.09.2005.

18. When the daughter was considered to be a

coparcener by birth, the plaintiff who is admittedly the sister

of defendant No.1 and when it is proved that the schedule

properties were held as ancestral properties by defendant

No.1 and his father, the plaintiff would be entitled for half

share in the schedule properties. The trial Court as well as the

First Appellate Court have committed an error in appreciating

Exs.D1, D4 and D8 with reference to its recitals in the light of

the contentions taken by the parties. The decision of the

Hon'ble Apex Court in the case of VINEETA SHARMA

(supra), was pronounced during the pendency of this appeal

and therefore, I am of the opinion that the impugned

judgment and decree passed by the trial Court and the First

Appellate Court even though with concurrent finding, is liable

to be interfered with as the same are against the law declared

by the Hon'ble Apex Court, by interpreting the amended

Section 6 of the Hindu Succession Act.

19. Even though it is held that the plaintiff is entitled

for half share in the schedule properties, only 21 guntas of

land in Item No.1 is sold by defendant No.1 in favour of

defendant No.2 under the registered sale deed. It is not the

contention of the plaintiff that defendant No.2 had purchased

it with notice of her right over the same. Therefore, I am of

the opinion that defendant No.2 is the bonafide purchaser for

value and therefore she is entitled for equity while decreeing

the suit for partition. Therefore, in equity it is to be held that

while partitioning the suit schedule properties by metes and

bounds, 21 guntas of land which is the subject matter of sale

deed dated 12.02.2001 is to be allotted to the share of

defendant No.1. Hence, I answer the substantial question of

law in favour of the plaintiff and against the defendants.

Accordingly, I proceed to pass the following:

ORDER

(i) The appeal is allowed.

(ii) Impugned judgment and decree dated 22.02.2012 passed in O.S.No.15/2010 on the file of the learned Senior Civil Judge & JMFC, K.R.Nagar, confirmed by the Fast Track Court-II, Mysore in

R.A.No.241/2012 vide judgment dated 14.09.2012 is modified.

(iii) In the result, the suit of the plaintiff is decreed as prayed for.

      (iv)    It is declared that the sale deed dated 12.02.2001
              executed      by   defendant    No.1   in   favour   of

defendant No.2 is not binding on the plaintiff and the plaintiff is entitled for half share in the schedule properties by metes and bounds. In equity, 21 guntas of land sold in favour of defendant No.2 under the sale deed referred to above is ordered to be allotted to the share of defendant No.1.

(v) Under peculiar facts and circumstances of the case, the parties are directed bear their own cost.

(vi) Registry is directed to send back the trial Court records along with copy of this judgment.

Sd/-

JUDGE

SMJ