Karnataka High Court
Smt. Puttamma vs Smt. S.G. Jayanthi on 26 May, 2023
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF MAY, 2023
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A. NO.245/2019 (PAR)
BETWEEN:
1. SMT. PUTTAMMA
W/O LATE S.G. GOVINDAPPA
AGED ABOUT 78 YEARS
2. SRI PURUSHOTHAMA
S/O LATE S.G. GOVINDAPPA
AGED ABOUT 61 YEARS
3. SRI MANAVENDRA
S/O LATE S.G. GOVINDAPPA
AGED ABOUT 56 YEARS
ALL ARE RESIDING OPPOSITE TO
SUGAR FACTORY, DUMMALLI ROAD
MALAVAGOPPA POST
SHIVAMOGGA - 577 222.
... APPELLANTS
(BY SRI VIJAYA KUMAR K., ADVOCATE)
AND:
1. SMT. S.G. JAYANTHI
W/O DASAGIRIYAPPA
D/O LATE S.G. GOVINDAPPA
AGED ABOUT 53 YEARS
R/O NARASAMBOODI
2
AGALI POST, MADAKASIRA TALUK
ANANTHAPURA DISTRICT
ANDHRA PRADESH - 515 331
SMT. SHANTHAMMA
DIED ISSULESS DURING THE
PENDENCY OF REGULAR APPEAL
2. SMT. PADMAVATHI
W/O THIMMAPPA
D/O LATE S.G. GOVINDAPPA
AGED ABOUT 60 YEARS
R/O MARENAYAKANA HALLI
VILLAGE, NEGILAL POST
KORATAGERE TALUK
TUMKUR DISTRICT - 572 138
... RESPONDENTS
(BY SRI E.VENKATARAMI REDDY, ADVOCATE FOR R1;
R2 IS SERVED)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGEMENT & DECREE DATED 07.11.2018
PASSED IN R.A.NO.74/2013 ON THE FILE OF THE III
ADDITIONAL DISTRICT JUDGE, SHIVAMOGGA AND ETC.
THIS R.S.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 20.04.2023, THIS DAY THE COURT
PRONOUNCED THE FOLLOWING:
3
JUDGMENT
Heard the learned counsel appearing for the appellants and
the learned counsel appearing for the respondents.
2. This appeal is filed challenging the judgment and
decree dated 07.11.2018 passed in R.A.No.74/2013 on the file of
the III Additional District Judge, Shivamogga.
3. The factual matrix of the case of the respondent
No.1/plaintiff before the Trial Court is that she is the daughter of
late S G Govindappa and defendant No.1; defendant Nos.2 and 3
are her brothers and defendants Nos.4 and 5 are her sisters. It
is also her case that she had another sister by name Shashikala
who died issueless. It is contended that they are the members
of Hindu undivided joint family and suit 'A' and 'B' schedule
properties are the joint family properties and they are in joint
possession of the same. Item Nos.1 and 4 of 'A' schedule were
the tenanted lands cultivated by S G Govindappa as a tenant
during his lifetime and he died intestate on 08.08.1975.
Thereafter, the defendants being the legal representatives of
deceased Govindappa, succeeded to the tenancy and got the
said properties granted for the benefit of the family. Item Nos.2
and 3 of 'A' schedule property is absolutely belonged to S G
Govindappa and it was granted to him under Darkasth by the
Government. 'B' schedule property is an ancestral and joint
family property. After the death of S G Govindappa, defendant
No.1 was managing the joint family properties with the help of
defendant No.2. Now, defendant Nos.2 and 3 are managing the
said properties as kartha of the joint family. After the marriage,
her relationship with defendant Nos.1 to 3 got strained and
during April 2010, she came to know that defendant Nos.2 and 3
are mismanaging the joint family properties as well as they are
attempting to alienate 'B' schedule property. It is also the case
of the plaintiff that she demanded for partition and the same was
turned down by the defendants. On obtaining the documents
pertaining to the suit properties, she came to know that
defendant Nos.1 to 4, in collusion with each other, have created
partition deed pertaining to 'A' schedule property among
themselves behind her back. Hence, she filed the suit for the
relief of declaration, partition and separate possession and
mesne profits.
4. In pursuance of suit summons, defendant No.1 filed
the written statement and other defendants have adopted the
same. In the written statement, they have admitted the
relationship between the parties. Defendant No.1 contends that
'B' schedule property was purchased by the grandmother of the
plaintiff in the capacity of S.G.Govindappa's minor guardian and
the same was a dwelling house in the occupation of defendant
Nos.1 to 4 and defendant No.4, after divorce, is residing in the
'B' schedule property with them. The suit schedule item Nos.1
to 4 were cultivated by defendant Nos.2 and 3 as tenants and it
was granted in their favour under the provisions of Karnataka
Land Reforms Act. S G Govindappa was not cultivating item
Nos.1 and 4 of 'A' schedule as a tenant as claimed by the
plaintiff. Recently, 'B' schedule property is let out on rentals.
Late S G Govindappa was an advocate by profession and he
never cultivated any lands. The suit 'A' schedule property was
personally cultivated by defendant Nos.2 and 3. The income of
S G Govindappa was sufficient for their hand to mouth existence
and it was never invested in agricultural lands or for the
improvement of 'B' schedule property. Defendant Nos.2 and 3
are independently cultivated the suit schedule properties i.e.,
defendant No.2 is cultivating 0.32 gunta, 2 acre and 1.13 acre in
Sy.No.124, 127 and 53 of Toppinaghatta, whereas, defendant
No.3 is cultivating 2 acre, 1.10 acre in Sy.No.127 and 53 of
Toppinaghatta respectively. They thought it fit to convert 0.11
gunta of land in Sy.No.32 as a farm land with farm house and
allowed defendant No.1 to look after the same. The katha of
these properties stand in their individual names and they have
developed a part of these lands as areca garden by investing
huge amount obtained by loan. The suit schedule properties are
not joint family properties capable of division as claimed. The
marriage of the plaintiff and defendant No.5 was carried out by
defendant Nos.2 and 3 out of their own income and they have
spent nearly Rs.3,00,000/- for the plaintiff's marriage held in the
year 1981-82. Even thereafter the plaintiff often visited them
and taken money on several occasions amounting to more than
Rs.50,000/-. At the instance of her husband the plaintiff once
again visited them in the year 2007 and demanded for money on
the ground that it was required for constructing the house and
they have paid a sum of Rs.2,00,000/- after borrowing the
amount from Eshwarappa. Hence, the plaintiff has no right to
claim any share in the suit schedule properties. It is also
contended that there was a zubani hissa in the family during
1992 and the same was reduced into writing and registered.
Defendant Nos.2 and 3 have paid the premium out of their own
account after items No.1 to 4 of 'A' schedule property was
granted in their favour. The plaintiff has no right in these
properties and has executed a written document stating that she
has received Rs.2,00,000/- in lieu of her share and on
humanitarian considerations as well as towards plaintiff's
purported share in the suit schedule properties, they have given
more than Rs.5,50,000/-.
5. Based on the pleadings of the parties, the Trial Court
framed the issues and allowed the parties to lead their evidence.
In order to prove the case of the plaintiff, examined herself as
PW1 and got marked Ex.P1 to P10 and Ex.P22 to Ex.P26; Ex.P11
to Ex.P20 were marked at the time of cross-examination of DW1
by confronting the same. Defendant Nos.1 to 3 and their
witnesses have filed their affidavits and examined themselves as
DW1 to DW4 respectively and got marked the documents at
Ex.D1 to D11 through DW1 and Ex.D12 to D15 were marked
through DW3. The Trial Court after considering both oral and
documentary evidence placed on record answered Issue No.1 as
negative and Issue No.2 as affirmative and granted the decree
only in respect of item Nos.2 and 3 of 'A' schedule property and
'B' schedule property by metes and bounds and separate
possession of 1/6th share therein.
6. Being aggrieved by the judgment and decree of the
Trial Court, the defendants have filed an appeal in
R.A.No.74/2013 and the plaintiff also filed the counter appeal in
respect of rejection of item Nos.1 and 4 of 'A' schedule property.
The First Appellate Court having considered the grounds urged in
the appeal and also perused the material available on record and
on re-appreciation of both oral and documentary evidence placed
on record, formulated the points that whether the appellant has
made out any grounds to allow the application filed under Order
6 Rule 17 of CPC to amend the written statement and whether
the appellant has made out any grounds to allow the application
filed under Order 41 Rule 27 of CPC to adduce additional
evidence and whether the appellant has proved that the Trial
Court has erred in answering Issue No.2 in respect of item Nos.2
and 3 of 'A' schedule property holding that they are the absolute
property of their father late S G Govindappa and whether
defendant No.1 has proved that item Nos.1 and 4 of 'A' schedule
properties were tenanted land of their father late S G
Govindappa and Trial Court has erred in answering Issue No.1 in
negative thereby rejecting the claim of plaintiff over those
properties and whether the impugned judgment and decree
passed by the Trial Court in O.S.No.59/2010 is illegal and
opposed to law, facts and circumstances of the case to warrant
interference of this Court. The First Appellate Court also
formulated the point that whether respondent/plaintiff in her
cross objection/appeal has made out any grounds to interfere in
the impugned judgment and decree as it suffers from any
illegality and perversity to warrant interference of this Court.
7. The First Appellate Court on re-appreciation of both
oral and documentary evidence placed on record answered Point
Nos.1 to 3 as negative, Point No.4 as affirmative in coming to
the conclusion that the judgment and decree of the Trial Court
does not requires any interference with regard to granting of
relief in respect of item Nos.2 and 3 of 'A' schedule property and
also answered Issue No.6 as affirmative in coming to the
conclusion that the respondent No.1/plaintiff has made out the
grounds to grant the relief in respect of item Nos.1 and 4 of 'A'
schedule property also and consequently, the appeal filed by the
appellants was dismissed and cross objection filed by the plaintiff
was allowed and decreed the suit in entirety granting the relief in
respect of 'A' and 'B' schedule properties in coming to the
conclusion that the plaintiff is entitled for 1/6th share. Hence,
the present second appeal is filed before this Court.
8. The learned counsel appearing for the appellants
would vehemently contend that both the Courts have failed to
consider Ex.P14 - Registered Partition Deed dated 19.02.1997
wherein the suit 'A' schedule properties are partitioned between
defendant Nos.1 to 3 and decreeing the suit of the plaintiff in
respect of item Nos.2 and 3 of 'A' schedule property and 'B'
schedule property by allowing 1/6th share is erroneous and the
same requires to be set aside. The counsel further contends
that both the Courts have failed to appreciate Section 6A of the
Amended Hindu Succession Act and even assuming for a minute
that the suit schedule properties are ancestral and joint family
properties, the plaintiff and defendant Nos.4 and 5 being the
daughters are only entitled for a share under the notional
partition since the father of the plaintiff died on 08.08.1975 and
hence, amendment of Section 6A of Hindu Succession Act, 2005
is prospective and hence, decreeing the suit by allotting 1/6th
share to the plaintiff in respect of suit schedule properties is
erroneous. It is further contended that both the Courts have
failed to consider that even though defendant Nos.1 to 3 proved
that the marriage of the plaintiff was solemnized in 1981-82 and
the plaintiff has received substantial amount and hence the
plaintiff is not entitled for equal share in the suit schedule
properties and both the Courts have failed to appreciate that the
succession opened on 08.08.1975 i.e., on the death of the father
that is prior to amendment to Section 6 of Hindu succession Act
hence, both the Courts ought not to have granted any relief and
the plaintiff is entitled for only 1/5th share out of the share
allotted to the father i.e., 1/4th share. The First Appellate Court
has wrongly decreed the suit of the plaintiff without considering
Ex.P22 which shows that as on the date of filing of application
before the Special Deputy Commissioner, the father of the
plaintiff i.e., S G Govindappa was not alive and the katha came
to be effected in the joint names of defendant Nos.1 and 2 under
Section 6A of the Inams Abolition Act and PW1 has admitted that
the defendants are separately cultivating the land granted in
their favour since from the time of grant and defendant Nos.2
and 3 have paid premium to the revenue authorities and insptie
of the same, both the Courts have committed an error. It is
further contended that the finding of the Trial Court is erroneous,
incorrect and the First Appellate Court also committed an error in
reversing the finding of the Trial Court in respect of item Nos.1
and 4 of the 'A' schedule property. Hence, prayed this Court to
admit the appeal and to frame the substantial question of law.
9. Based on the grounds urged in the appeal memo,
this Court also framed the following substantial question of law:
(1) Whether the findings by the First Appellate Court
that suit item Nos.1 and 4 of the suit schedule 'A'
properties are joint family properties/ancestral
properties are based on evidence on record?
(2) Whether the partition deed dated 19.02.1997 being
a partition deed executed and registered prior to the
amendment to Section 6 of the Hindu Succession
Act, 1956 is saved by the Amendment and this is
overlooked by the Courts below?
10. The learned counsel appearing for the appellants in
support of his arguments vehemently contend that the original
propositor S G Govindappa died leaving behind his wife
Puttamma, two sons and three daughters. It is contended that
the suit schedule properties are the ancestral and joint family
properties. Item No.1 is tenanted property. Defendant No.1
only filed written statement and the same is adopted by
defendant Nos.2 and 3. The said Govindappa was an practicing
advocate and defendant Nos.2 and 3 only cultivating the
property independently and there was a partition in the year
1992 itself and the same was registered in the year 1997. The
defendants have also filed counter claim in written statement.
The First Appellate Court has committed an error in allowing the
cross objection. The very finding given by the Trial Court and
First Appellate Court that the plaintiff is entitled for 1/6th share in
respect of the 'A' and 'B' schedule properties is erroneous and
the plaintiff is entitled only for 1/5th share out of 1/4th share i.e.,
in the share of her father. The counsel also vehemently contend
that the suit 'B' schedule property is a dwelling house and the
plaintiff is not entitled for the share in that property in view of
Section 23 of Hindu Succession Act. Both the Courts have
committed an error in not considering Ex.P22 and also failed to
take note of the katha which stands in the name of defendant
Nos.1 to 3. PW1 also admitted in the cross-examination that the
said properties are under cultivation of DW1 to DW3. The
documents at Ex.P7, P8, P16 to P18 show that defendant No.2 is
cultivating the land. The document at Ex.D2 also clearly
discloses that defendant No.2 is the grantee and hence, the
plaintiff cannot claim any share. It is further contended that
there was already a partition and the same is binding on the co-
parceners and the said contention is admitted by PW1. It is also
contended that in terms of Ex.P19, occupancy right was issued
and the same is an absolute property of the mother - Puttamma.
Hence, the finding of the First Appellate Court is erroneous. In
respect of item No.4, Ex.P7, P10 and P20 disclose that grant was
not made in favour of the family and the same was admitted by
PW1. Inspite of the said admission, the First Appellate Court
committed an error in decreeing the suit of the plaintiff in
entirety. The counsel further submits that the father of the
plaintiff Govindappa died on 08.08.1975 itself and also
admission is given that he is not aware that whether the suit
schedule properties are the joint family properties or individual
granted properties since, the grant was made in the year 1976
that is after the death of the father S G Govindiappa and the suit
schedule properties were partitioned in the year 1997 between
defendant Nos.1 to 3. The counsel also vehemently contends
that amendment came into effect only in the year 2005 and the
said amendment will not comes to the aid of the plaintiff. The
suit was filed in the year 2010 i.e., after 13 years of partition
and the parties are acted upon in terms of the partition.
11. The learned counsel for the appellants in support of
his argument relied upon the judgment reported in AIR 2009
SC 2649 in the case of G SEKAR vs GEETHA AND OTHERS
and brought to notice to paragraphs 20 to 22 and contended
that the very statement of objects and reasons of 2005 Act is
clear that Section 23 of the Act disentitled a female heir to ask
for partition in respect of a dwelling house wholly occupied by a
joint family until the male heirs choose to divide their respective
shares therein. Amendment to Section 6 also came into force in
the year 2005 which is very clear that if any deed of partition
duly registered under the Registration Act or partition effected
by a decree of a Court, then only they are entitled for share
thus, where partition has not taken place, the said provision
shall apply and when already there was a partition, the question
of granting any decree does not arise.
12. The counsel also relied upon the judgment reported
in 2018 (2) KLJ 737 in the case of RAJENDRA S/O
KASHIDAS SAWKAR vs VENKATESH S/O KASHIDAS
SAWKAR AND OTHERS and in the said judgment also it is
discussed that whether amendment effects retrospectively or
prospectively. In the case on hand, already there was a partition
in the year 1992 and the same is reduced into writing in the year
1997 itself, hence, this judgment is aptly applicable to the case
on hand. Hence, both the Courts have committed an error in
decreeing the suit of the plaintiff.
13. Per contra, the learned counsel appearing for the
respondent No.1/plaintiff would vehemently contend that the
Trial Court considered the material available on record and
rightly decreed the suit in respect of item Nos.2 and 3 and
committed an error in dismissing the suit in respect of item
Nos.1 and 4. The item Nos.1 and 4 are not at all self-acquired
property and the First Appellate Court rightly observed by
considering the material available on record that regularization
application was filed by the father of the plaintiff in terms of
Ex.P19 and P22 that is in the year 1971-72 itself. The mother
also admitted in the cross-examination that her husband only
filed an application and grant was made subsequently in her
favour. The First Appellate Court mainly appreciated the
documents at Ex.P19 and P22 and reversed the finding of the
Trial Court in respect of item Nos.1 and 4 also. The counsel also
vehemently contends that 'B' schedule property is acquired by
her father by a Will and the said Will was executed by his
mother and it is not in dispute that the said property is a
dwelling house. It is also admitted by DW1 that it is a shop
premises. The counsel also vehemently contends that the
plaintiff is not a party to the partition deed and she has not
relinquished her right and both the Courts considered the same.
It is further contended that the 'B' schedule property was sold
during the pendency of the appeal and objection statement was
also filed along with the documents and purchaser is not made
as a part in the said appeal, hence, the said sale deed is not
binding in respect of 'B' schedule property. The counsel also
vehemently contends that the plaintiff has proved that the suit
schedule properties are the joint family properties and the father
had not executed any testamentary document and it is further
contends that Section 6 of Hindu Succession Act attracts, not
Section 8 of the said Act.
14. The counsel for the appellants replied to the
arguments of the counsel for the respondent/plaintiff contending
that only 18 x 81½ feet was sold and the order is very clear that
it is an Inam land and the material available on record also
clearly discloses that defendant Nos.2 and 3 are cultivating the
suit schedule properties hence, both the Courts have committed
an error in granting the relief as sought and hence, it requires
interference.
15. Having heard the respective counsel, on perusal of
the material available on record and also considering the
substantial question of law framed by this by at the time of
admitting the appeal, this Court has to analyse the material
available on record that whether finding of the First Appellate
Court that suit item Nos.1 and 4 of the 'A' schedule property are
ancestral and joint family properties as per the evidence on
record and whether the partition deed dated 19.02.1997 being a
partition deed executed and registered prior to the amendment
to Section 6 of the Hindu Succession Act, 1956 is saved by the
amendment and this is overlooked by the Courts below.
16. This Court has to reconsider the material available
on record. No doubt, there is a concurrent finding in respect of
item Nos.2 and 3 but there is a divergent finding in respect of
item Nos.1 and 4. In keeping the same, this Court has to re-
analyse the material available on record.
17. Having considered the grounds urged in the second
appeal and the material available on record, admittedly there is
no dispute with regard to the relationship between the parties.
The main contention of the learned counsel for the appellants in
this second appeal by relying upon the judgment of the Apex
Court in the case of G. Sekar (supra) is with regard to vesting of
right where succession had already taken place. Operation of
2005 Amendment Act is prospective in nature as held by the
Apex Court and also the judgment of this Court in the case of
Rajendra (supra) wherein it is held by this Court that
amendment operates prospectively and it is also observed that
succession opened on 05.05.1992 on the death of the father i.e.,
prior to amendment to Section 6 in the year 2005 and hence the
very contention of the learned counsel for the appellants that the
Trial Court as well as the First Appellate Court have ignored the
document of registered partition which came into existence in
1997 and amendment came into effect in the year 2005. At the
most, the daughter is entitled for 1/5th share out of the share of
the father and not equal share in respect of the suit schedule
properties.
18. Having considered the grounds urged in the appeal
and also the principles laid down in the judgments referred
supra, this Court has to consider the material available on
record. There is no dispute with regard to the relationship
between the parties is concerned. The only dispute is with
regard to the entitlement of the share. It is borne out from the
records that the suit is filed for the relief of partition and for the
relief of declaration that the registered partition deed dated
19.02.1997 is not binding on the plaintiff's right, title and
interest over the suit schedule properties and hence claimed the
share in the suit schedule properties. It is the case of the
plaintiff before the Trial Court that she is the daughter of late
S.G. Govindappa and defendant Nos.1 to 5 are the legal heirs of
the said S.G. Govindappa along with the plaintiff. The other
sister passed away issueless and they are undivided Hindu joint
family and schedule 'A' and 'B' properties are joint family
properties and the same are in joint possession. It is contended
that item Nos.1 and 4 of 'A' schedule were tenanted lands
cultivated by S.G. Govindappa as a tenant during his lifetime and
he died intestate on 08.08.1975. Thereafter, the defendants
being the legal heirs succeeded to the tenancy and got the said
properties granted for the benefit of the family. It is the case of
the plaintiff that item Nos.2 and 3 of 'A' schedule property
absolutely belonged to S.G. Govindappa and it was granted to
him under darkasth by the Government. The 'B' schedule
property is an ancestral joint family property. It is her case that
defendant No.1 was managing the joint family properties with
the help of defendant No.2 after the death of the father S.G.
Govindappa.
19. Having perused the material available on record, the
Trial Court granted the relief of partition in respect of suit 'A'
schedule item Nos.2 and 3 properties and 'B' schedule property
and declined to grant any relief in respect of suit 'A' schedule
item Nos.1 and 4 properties. Being aggrieved by the same, an
appeal was filed by the appellants against the judgment and
decree of the Trial Court. The First Appellate Court rejected the
claim of the appellants having considered both oral and
documentary evidence placed on record and allowed the cross-
objection granting share in respect of all the suit schedule 'A'
and 'B' schedule properties to the extent of 1/6th share. The
First Appellate Court while allowing the counter claim,
particularly taken note of the documents Exs.P.19, 21 and 22
and also extracted the recitals of the document Ex.P.14, which
the defendants have relied upon that there was a partition. No
doubt, the partition deed is also a registered document wherein
it is categorically admitted that the suit schedule properties are
the joint family properties of the family and the same is
extracted in paragraph No.64 of the judgment. The First
Appellate Court also taken note of the document Ex.P.22 and the
same is crucial in order to ascertain whether item No.4 of the
suit schedule property was under the tenancy of S.G.
Govindappa and in the order it is clear that Sy.No.53 measuring
2 acres 23 guntas including phut kharab of Thoppinakatte
Village, Shimogga Taluk, is in possession and enjoyment of the
applicant since 15 years as genidar paying gutta and there are
no counter claims. The applicant has paid gutta upto 1975 and
the applicant claims comes under the purview of Section 6A of
the Karnataka (Religious and Charitable) Inams Abolition Act,
1955. It is also referred in the order that the applicant S.G.
Govindappa expired in the year 1975 leaving his wife and two
sons, one is minor. The khatha may be effected in the joint
names of S.G.Purushothama and Smt. Puttamma. Hence, the
very claim of the appellants that the said grant in favour of
defendants is an individual grant and the plaintiff is not having
any right cannot be accepted. There is an admission in the
partition document itself that all the properties are joint family
properties and also recitals of document Ex.P.22 is very clear.
20. The First Appellate Court also taken note of the
admission given by D.W.1 in the cross-examination and
admittedly the application was given by the father of the plaintiff
and subsequent to the death of the father, the family members
have made an application and grant was made. The First
Appellate Court taken note of the fact that the Trial Judge has
erred in appreciating the document which are marked as
Exs.P.20 to 22. It is not in dispute that item Nos.2 and 3 of the
properties were granted in favour of the father and the father
died intestate. Ex.P.21 is an order passed by the Land Tribunal
dated 08.01.1976, which clearly goes to show that the
application was submitted by S.G. Govindappa before the Land
Tribunal, but before the grant he died. The very contents of the
document of Ex.P.21 is clear that S.G. Govindappa passed away
five months prior leaving behind his son Purushothama and wife
Puttamma and they requested to consider them as legal heirs
and keep the khatha in their name. Taking note of these
averments, in paragraph No.68 the First Appellate Court taken
note of the fact that the property belongs to the family. The
First Appellate Court also taken note of that in a suit for
partition, initial burden is upon the plaintiff to prove that the
subject matter of the suit are joint family properties. The
plaintiff in order to prove the same, produced the document that
there was a grant of darkasth in favour of the father in respect
of item Nos.3 and 4 and in respect of item Nos.1 and 4 also an
application was filed by the father during the year 1971-72.
Admittedly, the father died in the year 1975 and subsequent to
the death of the father, grant was made in favour of the legal
heirs of S.G. Govindappa and hence it cannot be contended that
the said grant is an individual grant. Item No.1 of suit schedule
property also stands in the name of defendant No.1 Puttamma
and in her evidence she categorically admitted that her husband
was in cultivation of the said properties and after his death, the
same is granted to her name. In the cross-examination, she had
pleaded her ignorance how she acquired the property in her
name. She has categorically admitted that the said property
measures 11 guntas in Sy.No.32, but she cannot tell how she
got that property. She categorically admitted that in respect of
the said property her husband has given an application after the
Land Reforms Act came into existence. She categorically
admitted that after the death of her husband, as she is the elder
member of the family, the same was granted in her favour.
When these admissions were not taken note of by the Trial
Court, the First Appellate Court re-analysed both oral and
documentary evidence placed on record and applied its mind
both in respect of question of fact and question of law since
there was no any testamentary document executed by the father
S.G. Govindappa.
21. It is the contention of the appellants that there was a
partition in the year 1992 and the same was reduced into writing
in the year 1997 in terms of Ex.P.14 and admittedly while
entering into the partition excluded the plaintiff and the plaintiff
was not a party to the said document. However, they claim that
they made a payment of Rs.5,50,000/- in favour of the plaintiff,
but no such document is placed before the Court for having
made the payment and the plaintiff has relinquished her right in
respect of the suit schedule property. Hence, the very
contention of the learned counsel for the appellants that both the
Courts have committed an error in granting the decree cannot be
accepted. The First Appellate Court on re-appreciation of both
oral and documentary evidence placed on record, in detail
discussed not only the pleadings, but also considered the
grounds urged in the appeal and also the question of law and
formulated the points. While considering point Nos.3 to 6, in
detail, discussed the same and also taken note of both oral and
documentary evidence placed on record and admission given by
D.W.1 i.e., wife of S.G. Govindappa, wherein she has
categorically admitted that her husband was managing the
family affairs and thereafter herself with the assistance of her
elder son were managing the family affairs. It is important to
note that she has categorically admitted that the properties
situated at Shimoga Thoppinakatte, Machenahalli are all self-
acquired properties of S.G. Govindappa. It is also her evidence
that her husband S.G. Govindappa was cultivating the land and
some of the properties were under his tenancy. The very
contention of the learned counsel for the appellants that the
plaintiff is entitled only for 1/5th share out of the share of the
father cannot be accepted, since the father died intestate and
not made any testamentary provision in respect of any of the
family members. It is also not in dispute that the husband S.G.
Govindappa had filed an application before the Deputy
Commissioner for re-grant during his lifetime and other two
properties were already granted by dharkasth.
22. The other contention of the learned counsel for the
appellants is that the amendment came into effect prospectively
and hence the plaintiff is not entitled for share in respect of
dwelling house also. But the fact is that, it is emerged in the
evidence that 'B' schedule property is a commercial property and
there are shop premises and the rents are collected and she
claims that rent of 'B' schedule property was left for her living
expenses. When there is no any legal document of partition and
admittedly while partitioning the property excluded the plaintiff,
the same cannot be accepted as a legal document. Section 23
of the Hindu Succession Act has been omitted to remove
disability on female heirs to ask for partition. Though it is
contended by the learned counsel for the appellants relying upon
the judgment, the same is prospective effect and I have already
pointed out that there is no any legal document of partition and
even though assuming that there was a document of Ex.P.14
partition deed wherein the plaintiff was excluded and she was
not party to the said partition, her right cannot be excluded by
the defendants themselves in order to defeat her legal right.
Admittedly, all the properties are joint family properties in terms
of their own document of partition deed at Ex.P14 and the father
had made an application before the concerned authority during
his lifetime and grant was made in respect of item Nos.2 and 3
of 'A' schedule property and the same was granted in favour of
father under darkasth. Though the other defendants claim that
other two tenanted properties are granted in their name, the
same is not their individual properties as the father had made an
application for grant of the said land. Subsequently, the grant
was made based on the claim of the father, who made the claim
before the competent authority and the said grant is not in their
individual capacity. When such being the case, the very
contention of the learned counsel for the appellants in the appeal
that both the Courts have committed an error cannot be
accepted.
23. This Court while admitting the appeal framed the
substantial question of law with regard to whether the findings of
the First Appellate Court in respect of suit item Nos.1 and 4 of
the suit schedule 'A' properties are joint family properties are
based on evidence on record. Having re-considered the material
on record and considering the question of law and question of
fact, the First Appellate Court has not committed any error in
giving such a finding. The First Appellate Court mainly relies
upon the document of partition deed of the year 1997 and this
Court having considered the said ground, framed the substantial
question of law whether the partition deed dated 19.02.1997,
being a partition deed executed and registered prior to the
amendment to Section 6 of the Hindu Succession Act, 1956 is
saved by the amendment and the same is over-looked by the
Courts below. I have already pointed out that the said partition
deed came into existence amongst the defendants themselves
excluding the plaintiff and hence the said document is not
binding on the plaintiff since the plaintiff sought for the relief of
declaration that the said partition deed is not binding on the
plaintiff since she was excluded and no provision is made to her.
Apart from that, the plaintiff has not relinquished her right and
though it is contended by the appellants that they have made
payment to the tune of Rs.5,50,000/- to the plaintiff, no
documentary evidence is placed before the Court. No doubt, the
marriage was performed in the year 1982, subsequent to the
death of the father i.e., by mother as well as other legal heirs of
S.G. Govindappa, the same will not curtail the right of the
plaintiff. The First Appellate Court has given the finding based
on both oral and documentary evidence placed on record and
considered the question of law and hence, I answer both the
substantial questions of law in the negative in coming to the
conclusion that the findings of the First Appellate Court is not
erroneous and there is no merit in the second appeal to come to
the other conclusion.
24. In view of the discussions made above, I pass the
following:
ORDER
The appeal is dismissed.
Sd/-
JUDGE
SN/MD
