Shri Yallappagouda S/O ... vs Smt. Annaupurnevva Alias ...
2023 Latest Caselaw 1168 Kant

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                                                                    WP No. 101377 of 2022



                            IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                                   DATED THIS THE 3RD DAY OF FEBRUARY, 2023

                                                     BEFORE
                                 THE HON'BLE MR JUSTICE S.R. KRISHNA KUMAR
                                 WRIT PETITION NO. 101377 OF 2022 (GM-CPC)
                            BETWEEN:

                                 SHRI YALLAPPAGOUDA
                                 S/O BASANAGOUDA RAYANAGOUDAR (DECEASED)
                                 SINCE DECEASED BY HIS LRS.

                            1.   SMT. PARVATI
                                 W/O. YELLAPPAGOUDA RAYANAGOUDAR
                                 AGE 60 YEARS, OCC-HOUSEWIFE,
                                 R/O BHARAMDEVAGUDI, HALIYAL, HUBBALLI.

                            2.   SMT. RAMANGOUDA
                                 S/O. YALLAPPAGOUDA RAYANAGOUDAR,
                                 AGE 45 YEARS, OCC-AGRICULTURE,
                                 R/O BHARAMDEVAGUDI, HALIYAL,
                                 HUBBALLI.

                            3.   SHRI BASANAGOUDA
                                 S/O.YALLAPPAGOUDA RAYANAGOUDAR
                                 AGE 39 YEARS, OCC-AGRICULTURE,
CHANDRASHEKAR
LAXMAN
KATTIMANI
                                 R/O BHARMDEVAGUDI, HALIYAL HUBBALLI.
Digitally signed by
CHANDRASHEKAR LAXMAN
KATTIMANI
Location: High Court of
Karnataka, Dharwad
                            4.   SHRI MANJUNATHGOUDA
Date: 2023.02.07 12:03:16
+0530
                                 S/O.YALLAPPAGOUDA RAYANAGOUDAR,
                                 AGE 33 YEARS, OCC-AGRICULTURE,
                                 BHARAMADEVAGUDI, HALIYAL HUBBALLI.
                                                                          ...PETITIONERS
                                   (BY SRI D.B.KARIGAR, ADVOCATE)
                            AND:

                                 SMT. ANNAUPURNEVVA @ TIPPAVVA
                                 W/O.YALLAPPA CHINCHILLI (DECEASED)
                                 SINCE DECEASED BY HER LRS.
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                                     WP No. 101377 of 2022




1.   SHRI SHIVAPPA S/O.YALLAPPA CHINCHILLA,
     AGE 63 YEARS, OCC-BUSINESS,
     R/O BHARAMLINGSHWAR,
     NAGAR, BIDNAL HUBBALLI.

2.   SMT. BHARMAWWA @ MEENKASHI
     W/O MALLIKARJUN GATREDDIHAL
     AGE 56 YEARS, OCC-HOUSEHOLD,
     R/O GATARADDIHAL, TALUK AND DIST KOPPAL.

3.   SMT. SARASWATI W/O RAMAPPA PARASADDI
     AGE 81 YEARS, OCC-HOUSEHOLD WORK
     R/O HAMPHOLI VILLAGE, TQ-RAMDURG,
     DIST BELAGAVI.

4.   SMT. FAKKIRAVVA W/O DEVANRAGOUDA PATIL
     AGE 54 YEARS, OCC-HOUSEHOLD WORK,
     R/O UGNIKERI VILLAGE, TQ KALAGHATAGI,
     DIST DHARWAD.

5.   SHRI MANOHARGOUDA
     S/O.YALLAPPAGOUDA RAYANAGOUDAR
     AGE 55 YEARS, OCC-AGRICULTURE,
     R/O HALIYAL VILLAGE , TQ-HUBBALLI,
     DIST DHARWAD.

6.   SHRI CHANNAPPAGOUDA
     S/O.BASANAGOUDA RAYANAGOUDAR,
     AGE 69 YEARS, OCC-AGRICULTURE,
     R/O BHARAMADEVARGUDI, HALIYAL,
     TQ.- KALAGHATAGI, DIST-DHARWAD.
                                          ...RESPONDENTS

(BY SRI MALLIKARJUNSWAMY B.HIREMATH AND SRI UMESH
P.HAKKARAKI, SRI R.G.KODLI AND SMT GAYATRI S.R.,
ADVOCATES FOR RESPONDENT NOS.1 AND 2)
(NOTICE TO RESPONDENT NOS.3 TO 6-SERVED)

    THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO
NECESSARY ORDER OR DIRECTION OR A WRIT IN THE NATURE
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                                             WP No. 101377 of 2022



OF CERTIORARI MAY KINDLY BE ISSUED TO QUASH THE
IMPUGNED ORDER PASSED BY THE HON'BLE III ADDITIONAL
SENIOR CIVIL JUDGE AND J.M.F.C., HUBBALLI, IN ITS F.D.P.
NO.5/2020, ON IA NO.III, DATED 20.02.2022, VIDE
ANNEXURE-F, IN THE ENDS OF JUSTICE AND THE NECESSARY
ORDER ALSO MAY KINDLY BE PASSED TO ALLOW THIS
PETITION IN THE ENDS OF JUSTICE.

     THIS PETITION COMING ON FOR ORDERS, THIS DAY,
THE COURT MADE THE FOLLOWING:

                               ORDER

This petition is directed against the impugned order

dated 22.02.2022 passed in FDP. No.5/2020 by the III

Additional Senior Civil Judge and J.M.F.C., Hubballi,

whereby the application I.A.No.III filed by respondent

Nos.1 and 2/ plaintiffs under Order VI Rule 17 of CPC was

allowed by the Trial Court.

2. Heard learned counsel for the petitioners and

learned counsel for respondent Nos.1 and 2 and perused

the material on record.

3. The material on record discloses that

respondent Nos.1 and 2 instituted the aforesaid final

decree proceedings to enforce and implement the

preliminary decree passed in their favour dated

WP No. 101377 of 2022

16.03.2016 in O.S.No.86/2013 by the III Additional Senior

Civil Judge, Hubballi which was confirmed in

R.A.No.117/2016 preferred by the petitioners herein. In

the said FDP.No.5/2020 respondent Nos.1 and 2 filed

application under Order-VI Rule-17 of CPC seeking

amendment of the preliminary decree on the ground in

view of change of law as held by the Hon'ble Apex Court in

the case of Vineeta Sharma vs. Rakesh Sharma and

Others, reported in 2020 (9) SCC 1 following the

judgment in the case of Gonduri Koteshwaramma vs.

Chakiri Yanadi, reported in 2011 (9) SCC 788 the

preliminary decree is to be amended by enlarging and

modifying the preliminary decree in terms of the said

judgments of the Hon'ble Apex Court. The said application

having been opposed by the petitioners herein, the Trial

Court proceeded to pass the impugned order allowing

I.A.No.III, aggrieved by which, petitioners are before this

Court by way of present petition.

WP No. 101377 of 2022

4. A perusal of the impugned order passed by the

Trial Court will indicate as under :

FILED BY PETITIONER UNDER ORDER 6 Rule 7 OF CPC

The Petitioner filed this application and in her affidavit submits that with prayer to allot the 1/5th share to their mother in this petition. Further submits that the Section 6 of Hindu Succession Act has to be given full effect even in a pleading of FDP or appeal. Therefore, petitioner prays 1/5th share instead of 1/15th share in the suit schedule properties. Therefore, prayed for allow the application.

On the contrary, the respondent No. 1 (a) to 1 (d) filed objection and contended that the said application is false vexatious and not maintainable under law and hence, liable to be dismissed. The petitioners cannot claim equal share in the suit schedule properties as they are the legal heirs of the plaintiff. The amendment provision to Section 6 of Hindu Succession Act is applicable to the living co-peceners, daughters as held by the Apex Court. Admittedly, now the plaintiff in O.S.No.86/2013 who is mother of petitioner is no more. The petitioners who are the legal heirs of plaintiff No.1 in O.S.No.86/2013 have no right to claim the equal share. They are confined to 1/15th share as awarded. The plaintiff in O.S.No.86/2013 has not preferred any appeal during her life time. Therefore, Therefore, prays to dismiss the application.

WP No. 101377 of 2022

Heard.

Perused the application and judgment passed in O.S.No.86/2013. The Plaintiff Smt Annapurnavva @ Tippavva filed suit for partition and separate possession against the defendants. After trial, the said suit is partly decreed and allotted 1/15th share in the suit schedule properties. After that laintiff expired on 6.03.2018 as per he death certificate produced by the petitioner. After he death of Annapurnavva @ Tippavva the petitioner No.1 and 2 are the children of said Tippavva.

After the judgment of Apex Court in Vineeta Sharma V.s Rakesh Sharma reported in AIR 2020 SC 3717. In view of the said judgment, the petitioners claiming 1/5th share in the suit schedule properties. But, as per the respondents since the plaintiff i.e., mother of petitioners expired and after the death , the mother of the petitioners not a co-pecener.

The Apex Court in the above said judgment, held that (1) the provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 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 9.9.2005 with savings as provided in Section 6 (1) as to the or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.

WP No. 101377 of 2022

(3) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.

(4) The statutory fiction of partition created by proviso to Section 6of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of co-parcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class as specified in the Schedule to the Act of 1956 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 daughter are to be given share in co-parcenary equal to that of a son in pending proceedings for final decree or in an appeal.

(5) In view of the rigor of provisions of Explanation to Section 6 (5) of the Act of 1956, a plea of oral partition cannot be 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 decree of a court. However, in exceptional cases where plea of oral partition supported by public documents and partition is finally evinced in the same manner as if it had been affected 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 out rightly.

Further, Hon'ble Apex Court held that the said judgment is applicable to suits/appeals are pending before different high courts and subordinate courts. The matters have already

WP No. 101377 of 2022

been delayed due to legal imbroglio caused by conflicting decisions. The daughters cannot be deprived of their right of equality conferred upon them by Section 6.

The case in hand, as per judgment decree the plaintiff got notional partition in the suit schedule properties. In view of the above said judgment of Hon'ble Apex Court, she became the co-parcener along with her brothers. Therefore, her children are entitle benefit of the above said judgment of the Apex Court.

In view of the above said judgment of Hon'ble Apex Court, the petitioners are entitled 1/5th share in the suit schedule properties. Therefore, this court proceed to pass the following:

ORDER

The application No. 3 filed by the petitioners under Order 6 Rule 17 of CPC is hereby allowed.

For amendment of petition and submit the amended petition.

Call on:03.03.2022."

5. As correctly held by the Trial Court, the shares

of the parties would stand amended and modified in terms

of the Hon'ble Apex Court in the case of Vineeta Sharma's

(supra). Under these circumstances, I find no illegality,

infirmity in the impugned order passed by the Trial Court

WP No. 101377 of 2022

which has occasioned failure of justice and warranting

interference by this Court in this present petition, which is

accordingly dismissed.

SD JUDGE

CKK