Karnataka High Court
Shri. Ramachandra S/O Janu Patil vs Smt. Dondubai @ Parvati W/O on 18 December, 2023
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RSA No. 100110 of 2018
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 18TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
REGULAR SECOND APPEAL NO.100110 OF 2018 (PAR)
BETWEEN:
1. SHRI. RAMACHANDRA S/O. JANU PATIL
AGE: 44 YRS OCC: SERVICE
R/O: SHENDUR, TQ: CHIKODI,
DIST: BELAGAVI.
2. SMT. RADHABAI W/O. MARUTI PATIL
AGE: 45 YEARS, OCC: H/W
R/O: SHENDUR, TQ: CHIKODI,
DIST: BELAGAVI.
3. SMT. SUMATAI W/O JANABA PATIL
AGE: 43 YRS OCC: H/W
R/O: SHENDUR, TQ: CHIKODI,
DIST: BELAGAVI.
4. SMT. SHARABAI JANU PATIL
AGE: 65 YRS, OCC:H/W,
R/O: SHENDUR, TQ: CHIKODI,
DIST: BELAGAVI.
Digitally signed
...APPELLANTS
by VISHAL (BY SRI SHARAD V.MAGADUM, ADVOCATE)
VISHAL NINGAPPA
PATTIHAL
NINGAPPA Date:
AND:
PATTIHAL 2023.12.21
13:08:12
+0530 SMT. DONDUBAI @ PARVATI W/O BANDU KANARAKAR
AGE: 57 YRS OCC: H/W, R/O: STAVANDI-591237
TAL: CHIKODI, DIST: BELAGAVI.
...RESPONDENT
(BY SRI VITTAL S.TELI, ADVOCATE)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF
THE CODE OF CIVIL PROCEDURE, 1908, AGAINST THE JUDGMENT AND
DECREE DATED 09.01.2012 PASSED IN R.A.NO.84/2011 ON THE FILED OF
THE FAST TRACT COURT-I, CHIKODI, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 15.12.2010, PASSED IN
O.S.NO.36/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE, CHIKODI,
PARTLY DECREEING THE SUIT FILED FOR RELIEF OF PARTITION AND
SEPARATE POSSESSION.
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RSA No. 100110 of 2018
THIS REGULAR SECOND APPEAL, COMING ON FOR ORDERS, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The present second appeal by the defendants assailing
the concurrent findings of the Courts below, whereby, the
suit seeking for partition and separate possession was
decreed granting equal share to the plaintiff and
defendants.
2. Suit for partition and separate possession
seeking share in the suit schedule properties contending
that the plaintiff is the daughter of the Janaba through
Parvati and defendant Nos.1 to 3 are the children of Janaba
through his second wife Sharabai. The suit properties are
the ancestral joint family properties of the plaintiff and
defendants. Defendants contested the suit, disputed the
share of the plaintiff in the suit schedule properties.
3. The Trial Court while answering the issues
arrived at a conclusion that the plaintiff is entitled for 7/60th
share in Sl.Nos.1 to 10 and, 7/120th share in Sl.No.11 to 15
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of 'A' schedule agriculture land and 7/60th share in 'B'
schedule properties as Janaba was entitled to 7/12th share
in RSA.No.483/1999. Aggrieved by granting of share to the
plaintiff, the defendant preferred appeal before the First
Appellate Court.
4. The First Appellate Court while re-appreciating
and reconsidering the entire oral and documentary evidence
concurred with the judgment and decree of the Trial Court
and taking note of the Hindu Succession (Amended) Act,
2005 held that the plaintiff being the daughter entitled for
equal share in the suit schedule property. Aggrieved by
which, defendants are before this Court in the second
appeal.
5. Heard Sri Sharad V.Magadum learned counsel
appearing for the appellants and Sri Vitthal S.Teli, learned
counsel appearing for the respondent.
6. The daughter being held to be coparcener is no
more res-integra in view of the judgment of the Apex Court
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in the case of Vineeta Sharma Vs. Rakesh Sharma and
others1 at paragraph No.129 has held as under:
"129. Resultantly, we answer the reference as
under:
(i) The provisions contained in substituted
Section 6 of the Hindu Succession Act, 1956 confer
status of coparcener on the daughter born before or
after the amendment in the same manner as son
with same rights and liabilities.
(ii) The rights can be claimed by the daughter
born earlier with effect from 9-9-2005 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.
(iii) Since the right in coparcenary is by birth,
it is not necessary that father coparcener should be
living as on 9-9-2005.
(iv) 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 Section 6 are required
to be given full effect. Notwithstanding that a
preliminary decree has been passed, the daughters
ILR 2020 KAR 4370
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are to be given share in coparcenary equal to that of
a son in pending proceedings for final decree or in an
appeal.
(v) 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
recognized 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 accepted. A plea of partition based
on oral evidence alone cannot be accepted and to be
rejected outrightly."
7. Under the circumstances, the granting of equal
share to the plaintiff does not warrant any interference and
no substantial question of law arises for consideration to
dealt with under Section 100 CPC by this Court, accordingly,
this Court pass the following.
ORDER
(i) The regular second appeal is hereby
dismissed.
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(ii) The judgment and decree of the Courts
below stands confirmed.
Sd/-
JUDGE
EM, CT: UMD
