Karnataka High Court
Channabasappa S/O Shivappa Hosamani vs Smt Parvatevva Alias Kasturevva W/O ... on 18 December, 2023
1
R
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 18TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
WRIT PETITION NO. 105363 OF 2023 (GM-CPC)
BETWEEN:
CHANNABASAPPA S/O SHIVAPPA HOSAMANI
AGE 53 YEARS
OCC: AGRICUTLURIST
R/O: DANDAPUR, TQ: NARAGUND
DIST GADAG-582207
R/BY HIS POWER OF ATTORNEY HOLDER
SRI RAJU S/O CHANNABASAPPPA HADIMANI
AGE 21 YEARS
OCC: AGRICULTURIST, R/O DANDAPUR
TQ NARAGUND, DIST: GADAG-582207
MOHANKUMAR
B SHELAR
Digitally signed by
...PETITIONER
MOHANKUMAR B
SHELAR
Date: 2023.12.27
11:20:45 +0530 (BY SRI.S L MATTI, ADVOCATE)
AND:
1. SMT PARVATEVVA ALIAS KASTUREVVA
W/O CHANDRASHEKHAR HADIMANI
AGE 61 YEARS
OCC: HOUSEHOLD WORK
R/O RAMAPUR SITE, GURLHOSUR
NEAR BASAVESHWAR TEMPLE
TQ SAUNDATTI
DIST BELAGAVI 591126
2
2. SMT GIRIJA W/O MAHANTESH KALASAPPANAVAR
AGE 53 YEARS
OCC: HOUSEHOLD WORK AND
SDC IRRIGATION DEPT
R/O RAMAPUR SITE, GURLHOSUR
NEAR BASAVESHWAR TEMPLE
TQ SAUNDATTI, DIST BELAGAVI-591126
3. IRAPPA RACHAPPA HOSAMANI
SINCE DECEASED BY HIS LRS
SMT SHIVAGANGAVVA
W/O IRAPPA HOSAMANI
AGE 74 YEARS
OCC: HOUSEHOLD WORK
R/O DANDAPUR, TQ NARAGUND
DIST GADAG-582207
4. SMT SHANTAVVA W/O RAMAPPA GUDI
AGE 54 YEARS
OCC: HOUSEHOLD WORK
R/O DANDAPUR, TQ NARAGUND
DIST GADAG-582207
5. SMT CHANNAVVA ALIAS SUVARNA
W/O IRAPPA GUMUKKANAVAR
AGE 51 YEARS
OCC: HOUSEHOLD WORK
R/O SINDAGI, TQ RAMDURG
DIST BELAGAVI-591123
6. SHRISHAIL S/O IRAPPA HOSAMANI
AGE 46 YEARS
OCC: AGRICULTURIST
R/O DANDAPUR, TQ NARAGUND
DIST GADAG-582207
7. SMT SANGAVVA
3
D/O IRAPPA HOSAMANI
AGE 39 YEARS
OCC: HOUSEHOLD WORK
R/O DANDAPUR, TQ NARAGUND
DIST GADAG-582207
SHIVAPPA S/O RACHAPPA HOSAMANI,
SINCE DECEASED AND HIS LRs IS ALREADY
ON RECORD.
BALAVVA W/O NAGAPPA HOSAMANI,
SINCE DECEASED AND HER LRs IS ALREADY
ON RECORD
8. VASAPPA S/O YALLAPPA JOGANNAVAR
AGE 54 YEARS
OCC: AGRICULTURIST
R/O SOMAPUR ONI, TQ NARAGUND
DIST GADAG-582207
9. SMT SHIVAGANGAVVA W/O IRAPPA HOSAMANI
AGE 74 YEARS
OCC: HOUSEHOLD WORK, R/O DANDAPUR
TQ NARAGUND, DIST GADAG-582207
10 . SHIVALINGAPPA S/O ADIVEPPA MAMANI
AGE 64 YEARS
OCC: AGRICULTURIST
R/O NANDIHAL, TQ KUSHTAGI
DIST KOPPAL-583277
SMT BASAVVA W/O SHIVAPPA
SINCE DECEASED AND HER LRS IS ALREADY ON
RECORD
BASAPPA S/O YALLAPPA ANNIGERI
SINCE DECEASED BY HIS LRS
4
11 . SMT MAHADEVI W/O BASAPPA ANNIGERI
AGE 51 YEARS
OCC: HOUSEHOLD WORK
R/O SIDDANABHAVI, TQ NARAGUND
DIST GADAG-582207
12 . SMT RENAVVA D/O BASAPPA ANNIGERI
AGE 29 YEARS
OCC: NIL, R/O SIDDANABHAVI
TQ NARAGUND, DIST GADAG-582207
13 . SMT MANJULA D/O BASAPPA ANNIGERI
AGE 26 YEARS
OCC: NIL, R/O SIDDANABHAVI
TQ NARAGUND, DIST GADAG-582207
14 . SMT GEETA D/O BASAPPA ANNIGERI
AGE 24 YEARS
OCC: NIL, R/O SIDDANABHAVI
TQ NARAGUND
DIST GADAG-582207
15 . SMT SAVITRI D/O BASAPPA ANNIGERI
AGE 22 YEARS
OCC: NIL, R/O SIDDANABHAVI
TQ NARAGUND, DIST GADAG-582207
16 . SMT KASTURI D/O BASAPPA ANNIGERI
AGE 20 YEARS
OCC: NIL, R/O SIDDANABHAVI
TQ NARAGUND
DIST GADAG-582207
17 . SMT ASHWINI D/O BASAPPA ANNIGERI
AGE 18 YEARS
OCC: NIL, R/O SIDDANABHAVI
TQ NARAGUND, DIST GADAG-582207
5
SMT SHANTAVVA W/O BASAPPA PALLED
SINCE DECEASED BY HER LRS
18 . IRAPPA S/O BASAPPA PALLED
AGE NOT KNOWN TO THE PETITIONER
OCC: AGRICULTURE
R/O NAVALGUND, TQ DHARWAD
DIST DHARWAD-582208
19 . MANJUNATH S/O BASAPPA PALLED
AGE NOT KNOWN TO THE PETITIONER
OCC: AGRICULTURE
R/O NAVALGUND, TQ DHARWAD
DIST DHARWAD-582208
DYAMAPPA S/O YALLAPPA GALEPPANAVAR
SINCE DECEASED BY HIS LRS
20 . YALLAPPA S/O DYAVAPPA GALEPPANAVAR
AGE NOT KNOWN TO THE PETITIONER
OCC: AGRICULTURE
R/O VASAN, TQ NARAGUND
DIST DHARWAD-582207
21 . TULASAPPA S/O DYAVAPPA GALEPPANAVAR
AGE NOT KNOWN TO THE PETITIONER
OCC: AGRICULTURE
R/O VASAN, TQ NARAGUND
DIST DHARWAD-582207
...RESPONDENTS
(BY SRI.R.B.CHALLAMARAD & SRI.J.R.CHALLAMARAD,
ADVOCATES FOR C/R1)
THIS WP IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA PRAYING TO A WRIT OF
CERTIORARI BY QUASHING AN ORDER ON I.A. NO. 11
6
DATED 08/08/2023 PASSED IN F.D.P. NO. 13/2015 ON
THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE AND C.J.M.
GADAG VIDE ANNEXURE-E, IN THE ENDS OF JUSTICE AND
EQUITY.
THIS PETITION HAVING HEARD AND RESERVED FOR
ORDERS ON 03.10.2023 COMING ON FOR
PRONOUNCEMENT OF ORDER THIS DAY, THE COURT
MADE THE FOLLOWING:
JUDGMENT
The captioned petition is filed by defendant No.4
assailing the order of the FDP Court on I.A.No.11,
wherein the appellate Court while rejecting the
application filed by defendant No.4 under Section 152
of CPC has declined to amend the preliminary decree
granting equal share to the legal heirs of deceased
daughters.
2. The trial Court while drawing preliminary
decree in O.S.No.185/2000 has granted 1/5th share to
the plaintiffs and defendants. Defendant No.4 who is
the son of defendant No.2 has filed the present
application in the final decree proceedings to amend
the preliminary decree on the ground that two
daughters namely Nagavva and Sangavva of
propositus Rudrappa Hosmani died before 2005
amendment to Hindu Succession Act, 1956 (for short
"the Act") and therefore, the legal heirs of deceased
Nagavva and Sangavva are not entitled to take equal
share at par with the sons.
3. The contention of the petitioner before this
Court is that the effect of amended Section 6 of the
Act is prospective in nature and since daughters
namely Nagavva and Sangavva died before 2005
amendment, the legal heirs of Nagavva and Sangavva
are not entitled for equal share. The petitioner claims
that the Act has come into force w.e.f. 9.9.2005 and
the amended provision creates a new right.
Petitioner's claim is that the provisions of the Act are
not expressly made retrospective by the Legislature.
Petitioner further claims that the rights under the
amendment Act are applicable to the living daughters
of the living coparcener as on 9.9.2005 irrespective of
when such daughters are born.
4. Heard the learned counsel for petitioner
and the learned counsel appearing for respondents.
5. Before I advert to the controversy on hand,
the application of the newly substituted Section 6 of
the Act by way of 2005 amendment is dealt by the
Hon'ble Apex Court in the case of Vineetha Sharma
.vs. Rakesh Sharma and others1. The Apex Court
in the above said judgment has held as under:
"The amended provisions of section 6(1) provide
that on and from the commencement of the
Amendment Act, the daughter is conferred the
right. Section 6(1)(a) makes daughter by birth a
coparcener 'in her own right' and 'in the same
manner as the son'. Section 6(1)(a) contains the
concept of the unobstructed heritage of
Mitakshara coparcenary, which is by virtue of
birth. Section (1)(b) confers the same rights in
the coparcenary property 'as she would have had
if she had been a son'. The conferral of right is by
(2020) 9 SCC 1
birth, and the rights are given in the same
manner with incidents of coparcenary as that of a
son and she is treated as a coparcener in the
same manner with the same rights as if she had
been a son at the time of birth. Though the rights
can be claimed, w.e.f. 09.09.2005, the provisions
are of retroactive application; they confer benefits
based on the antecedent event, and the
Mitakshara coparcenary law shall be deemed to
include a reference to a daughter as a coparcener.
At the same time, the legislature has provided
savings by adding a proviso that any disposition
or alienation, if there be any testamentary
disposition of the property or partition which has
taken place before 20.12.2004, the date on which
the Bill was presented in the Rajya Sabha, shall
not be invalidated."
6. The Apex Court in the above cited
judgment was examining the ratios rendered in the
case of Prakash and others vs. Phulavathi and
others2, ratio laid down in the cases of Danamma
alias Suman Surpur and another .vs. Amar and
others3 and Mangamal @ Thulasi and another. vs.
T.B.Raju And Others4. The Apex Court while
examining the principles laid down by the Apex Court
(2016) 2 SCC 36
(2018) 3 SCC 343
2018(15) SCC 662
in the case of Prakash .vs. Poolavathi; Danamma
and Mangamal's case vis-à-vis the larger Bench
decision rendered by the Apex Court in the case of
Vineetha Sharma further held as follows:
"It is not necessary to form a coparcenary or to
become a coparcener that a predecessor
coparcener should be alive; relevant is birth
within degrees of coparcenary to which it extends.
Survivorship is the mode of succession, not that
of the formation of a coparcenary. Hence we
respectfully find ourselves unable to agree with
the concept of 'living coparcener', as laid down in
Prakash v Phulavati (2016)2 SCC 36. In our
opinion, the daughters should be living on
09.09.2005. In substituted sec. 6, the expression
'daughter of a living coparcener' has not been
used. Right is given under section 6(1)(a) to the
daughter by birth. Declaration of right based on
the past event was made on 09.09.2005 and as
provided in section 6(1)(b), daughters by their
birth, have the same rights in the coparcenary,
and they are subject to the same liabilities as
provided in section 6(1)(c). Any reference to the
coparcener shall include a reference to the
daughter of a coparcener. The provisions of
section 6(1) leave no room to entertain the
proposition that coparcener should be living on
9.9.2005 through whom the daughter is claiming.
We are unable to be in unison with the effect of
deemed partition for the reasons mentioned in the
latter part".
Mangammal v T.B. Raju (2018)15 SCC 662
followed Prakash and opined that Prakash would
still hold the value of precedent for right of a
daughter in ancestral property and only "living
daughter of living coparceners" as on 09.09.2005
would be entitled to claim a share in the
coparcenary property. But the law so laid down in
contrary to what has been decided by the larger
Bench and as such, no more hold good."
7. The Larger Bench of the Apex Court in the
case of Vineeta Sharma partly over ruled the ratio
laid down by the Apex Court in the case of Prakash
.vs. Phulavathi. The Apex Court while taking
cognizance of the divergence of opinion in Prakash
and Danamma's case with respect to the aspect of
living daughters of living coparceners has come to a
conclusion that daughters are conferred the status of
coparcener by fiction and such right is by birth.
Resultantly, the reference was disposed of laying the
law as under:
"Resultantly the reference was disposed of
laying the law as under:
(1) The provisions contained substituted section 6
confer status of coparcener on the daughter born
before or after amendment in the same manner
as son with same rights and liabilities.
(2) The rights can be claimed by the daughter
born earlier with effect from 09.09.2005 with
savings as provided in section 6(1) as to the
disposition or alienation, partition or testamentary
disposition which had taken place before the 20th
day of December, 2004.
(3) Since the right in coparcenary is by birth, it is
not necessary that father coparcener should be
living as on 09.09.2005.
(4) 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 or disruption of
coparcenary. The fiction was only for the purpose
of ascertaining share of deceased coparcener
when he was survived by a female heir, of Class I
as specified in the Schedule to the 1956 Act or
male relative of such female. The provisions of
the substituted sec. 6 are required to be given full
effect. Notwithstanding that a preliminary decree
has been passed, the daughters are to be given
share in coparcenary equal to that of a son in
pending proceedings for final decree or in an
appeal.
(5) In view of the rigour of provisions of the
Explanation to section 6(5) of the 1956 Act, a
plea of oral partition cannot be accepted as the
statutory recognised mode of partition effected by
a deed of partition duly registered under the
provisions of the Registration Act, 1908 or
effected by a decree of a court. However, in
exceptional cases where plea of oral partition is
supported by public documents and partition is
finally evinced in the same manner as if it had
been affected (sic effected) by a decree of a
court, it may be acepted. A plea of partition based
on oral evidence alone cannot be accepted and to
be rejected outrightly."
8. In view of the law laid down by the Apex
Court in the case of Vineeta Sharma what emerges
is that in view of amendment to Section 6 of the Act,
daughter would step into the coparcenary as that of a
son by taking birth before or after the Act.
9. As the right is by birth and not by dint of
inheritance, it is irrelevant that a coparcener whose
daughter is conferred with the rights is alive or not.
Therefore, what emerges from the above said
principle is that Hindu Succession (Amendment) Act,
2005, has virtually damaged the concept of
Mitakshara coparcenary because daughter is treated
like a son and she is entitled for a share on par in a
coparcenary by birth. If the daughters by birth
become a coparcener in her own independent right, in
addition, the Act makes the heirs of pre-deceased
sons and daughters more equal, by including as Class-
I heirs, two generations of children of pre-deceased
daughters, as was already in the case of sons. The
main significant change making all daughters
coparceners in joint family properties is also of great
importance for women both economically and
symbolically.
10. The Apex Court judgment in the case of
Velamuri Venkata Sivaprasad (Dead) by LRs.
.vs. Kothuri Venkateswarlu (Dead) by LRs.5 held
that Hindu Succession Act is a socio-economic
legislation. Therefore, it should be interpreted with
widest possible connotation. The Apex Court in the
above cited judgment also pointed out that in the case
of interpretation of statute, specially relating to
AIR 2000 SC 434
womenfolk, due weight should be given to the
Constitutional requirement of equality and status.
11. In the light of law laid down by the larger
Bench in the case of Vineeta Sharma and in view of
interpretation of amended Section 6 in the above cited
judgment, what emerges is that Sub-Section (1) of
Section 6 envisages existence of joint Hindu family
when the amendment came into force. If the joint
family and the ancestral properties are intact, the
right of a daughter subsists, whether she is alive or
not as on the date of 2005 amendment. Since
daughter by fiction is granted the status of coparcener
by birth, her right in the ancestral property being
antecedent, the Class-I heirs of pre-deceased
daughter are to be treated equal and at par with the
other family members. Therefore, the right of legal
heirs of deceased daughter in the coparcenary
properties, subject to existence of Hindu undivided
family and in absence of disruption of the Joint family
properties, is not taken away. The only exception
being disposition or alienation or partition of
properties which has taken place before 20.12.2004.
The Apex Court in the above cited judgment has
clearly held that the provisions are retroactive and
they confer benefits based on the antecedent events
and the Mitakshara Coparcenary shall be deemed to
include a reference to a daughter as a coparcener. If
Section 6(1)(a) makes a daughter by birth a
coparcener in her own right and in same manner as
the son, the legal heirs of deceased daughters cannot
be denied the benefit of 2005 amendment. If the
rights of legal heirs of predeceased son are not
affected, the conferral of coparcenary right on a
daughter by birth cannot be taken away on the
premise that the daughter was not alive on 9.9.2005.
Any denial would lead to discrimination among the
legal heirs of predeceased son and predeceased
daughter and would defeat the very noble object of
enactment and codifying the law relating to intestate
succession.
12. The application filed by the petitioner in
final decree proceedings under Section 152 of CPC is
clearly hit by the bar under Section 97 of CPC.
Section 97 of CPC clearly provides that where any
party is aggrieved by a preliminary decree passed
after the commencement of the Code does not appeal
from such decree, he shall be precluded from
disputing its correctness in final decree proceedings.
Modification of preliminary decree is permissible only
on the ground of changed or supervening
circumstances or change in law. Even on this count,
the application filed under Section 152 of CPC seeking
modification is not at all maintainable. Petitioner
having failed to question the preliminary decree
cannot seek amendment by having recourse to
Section 152 of CPC.
Conclusions:
a. The reference made in the Vineeta Sharma's
case (supra) by the Supreme Court of India stemmed
from conflicting views and interpretations regarding
the rights of daughters in ancestral property under
Section 6 of the Hindu Succession Act, 1956. There
were varying judgments and opinions on whether the
amendments made to the Act in 2005 applied
retrospectively or only prospectively. The Court
sought to address these conflicting views and provide
a clear and consistent legal interpretation to ensure
uniformity in matters of inheritance for daughters. The
Supreme Court's reference in the Vineeta Sharma's
case aimed to resolve these disparities and establish a
definitive interpretation to bring clarity to the legal
landscape concerning daughters' inheritance rights.
b. The Apex Court in the case of Vineeta
Sharma has clearly opined that daughter has to be
treated as a coparcener at par and right is by birth.
Therefore, what can be inferred from the dictum laid
down by the Apex Court in the judgment cited supra is
that even if daughter is not alive when 2005
amendment to Hindu Succession Act was passed, her
legal heirs cannot be deprived the benefit of 2005
amendment. The Apex Court unequivocally stated
that a daughter should be treated as a coparcener
with equal rights by birth. As the right is by birth and
not by dint of inheritance, it is irrelevant that a
coparcener whose daughter is conferred with birth
rights is alive or not. Therefore, even if a daughter
passed away before the 2005 amendment to the
Hindu Succession Act, her legal heirs cannot be denied
the benefits of the amendment. The court affirmed
that the daughter's right, being inherent from birth, is
comparable to that of a son, irrespective of the timing
in relation to the enactment of the act. If a daughter
who died before 2005 has surviving legal heirs, they
could potentially enjoy the equal rights conferred by
the amendment on ancestral properties.
c. Denying equal rights to legal heirs in this
context may not only be considered discriminatory but
could also be subject to legal challenges. It goes
against the constitutional principles of equality and
non-discrimination enshrined in the Indian
Constitution. Courts, when interpreting and applying
the law, often strive to uphold these fundamental
principles and may intervene to ensure that the rights
of individuals, irrespective of gender, are protected
and upheld. By refusing the benefits granted to
similarly situated heirs of sons, it undermines the
fundamental principle of equality before the law.
d. To elaborate further, the judgment in the case
of Vineeta Sharma effectively removes the temporal
restriction associated with the 2005 amendment to
the Hindu Succession Act. It recognizes the rights of
daughters and their legal heirs in ancestral property,
regardless of whether the daughter predeceased the
father before or after the amendment. This
retrospective application ensures that the principles of
equality and non-discrimination are upheld, providing
daughters and their descendants with a fair share in
the ancestral property. It aligns with the evolving
legal landscape in India, progressively addressing
historical gender biases in property rights within Hindu
families. The denial of benefits to the legal heirs of a
predeceased daughter under the 2005 amendment
could be seen as perpetuating historical gender-based
biases.
e. The judgment in the case of Vineeta Sharma
has retrospective applicability. It extends the benefit
of the 2005 amendment to daughters, even if the
daughter had predeceased the father before the
amendment came into effect. This means that the
legal heirs of a predeceased daughter are entitled to a
share in the ancestral property, just like they would
have been if the daughter were alive at the time of
the 2005 amendment. The ruling emphasizes gender
equality and ensures that daughters and their heirs
receive their rightful share in ancestral property,
irrespective of when the daughter passed away. The
judgment essentially corrects this historical imbalance
by granting daughters and their legal heirs the same
rights as sons in ancestral property, regardless of
when the daughter passed away. It emphasizes the
constitutional principle of equality, ensuring that
women are not deprived of their rightful share merely
due to the timing of legal amendments.
f. The petitioner's application under Section 152
of CPC in final decree proceedings is barred by Section
97 of CPC, as it prohibits challenging the correctness
of a preliminary decree if not appealed. Modification of
preliminary decree is permissible only on the ground
of changed or supervening circumstances or change in
law. Petitioner having failed to question the
preliminary decree cannot seek amendment by having
recourse to section 152 CPC.
13. For the reasons stated supra, I proceed to
pass the following:
ORDER
The writ petition is dismissed.
Sd/-
JUDGE
*alb/-
