Karnataka High Court
Neelavva @ Babakka vs Leelavati on 22 November, 2023
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2023:KHC-D:13655-DB
RFA No. 100092 of 2015
C/W RFA.CROB No. 100006 of 2015
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 22ND DAY OF NOVEMBER, 2023
PRESENT
THE HON'BLE MR JUSTICE H.P.SANDESH
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO. 100092 OF 2015 (PAR/POS)
C/W
RFA CROSS OBJ NO. 100006 OF 2015
IN RFA NO. 100092/2015
BETWEEN:
1. NEELAVVA @ BABAKKA
W/O. CHANNABASAPPA PUDAKALAKATTI
SINCE DECEASED BY HER LRS
1.(A) SMT. MAHADEVI W/O. ANNASAB BAGALAKOT,
AGE: 66 YEARS, OCC: HOUSEHOLD WORK,
R/O: MUNAVALLI, TQ: SOUNDATTI, DIST: BELAGAVI
1.(B) SMT. GANGATAYI @ GIRIJA
SAMREEN
AYUB W/O. RAVINDRA TUBACHI,
DESHNUR AGE: 64 YEARS, OCC: HOUSEHOLD WORK,
R/O: YAMAKANAMARADI, TQ: HUKKERI, DIST:
Digitally signed
BELAGAVI.
by SAMREEN
AYUB
DESHNUR 1.(C) SMT. RATNA W/O. SHIVASHANKAR AMMANAGI,
Date:
2023.12.06 AGE: 62 YEARS, OCC: HOUSEHOLD WORK,
11:22:38 +0530
R/O: RAMATHIRT NAGAR,
NEAR MILK DIARY BELAGAVI.
1.(D) KALLAPPA S/O. CHANNABASAPPA PUDAKALAKATTI,
AGE: 60 YEARS, OCC: AGRICULTURE,
R/O: UPPINA BETAGERI, TQ:DIST: DHARWAD.
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NC: 2023:KHC-D:13655-DB
RFA No. 100092 of 2015
C/W RFA.CROB No. 100006 of 2015
1.(E) SMT. VIJAYA W/O. MALLIKARJUN GADAG,
AGE: 58 YEARS, OCC: HOUSEHOLD WORK,
R/O: MAHANTESH NAGAR, BELAGAVI.
1.(F) SHRISHAIL
S/O. CHANNABASAPPA PUDAKALAKATTI,
AGE: 56 YEARS, OCC: PRIVATE SERVICE,
R/O: HANUMAN NAGAR, BELAGAVI.
2. SMT. PREMA W/O. KALAPPA VANI
SINCE DECEASED BY HER LRS
2.(A) RAJU S/O. KALLAPPA VANI,
AGE: 59 YEARS, OCC: BUSINESS,
R/O: ADISHAKTI NAGAR,
MADIHAL, DHARWAD.
2.(B) SMT. NIRMALA W/O. ISHWAR ANGADI,
AGE: 48 YEARS, OCC: HOUSEWORK,
R/O: 2ND CROSS, RAMATIRTH NAGAR,
BELAGAVI.
2.(C) SMT. VIDYA W/O. MAHESH KUDACHI,
AGE: 45 YEARS, OCC: HOUSEWORK,
R/O: STATE BANK COLONY, MUDHOL,
DIST: BAGALKOT.
3. SMT. SHANTA
W/O. GURUPADAPPA KAULAPURE
AGE: 71 YEARS, OCC: HOUSEHOLD WORK,
R/O: MIG/4 HOUSING BOARD COLONY,
RAJEEVGANDI NAGAR,
CHIKKODI, DIST: BELGAUM-591201
4. SMT. GIRIJA
W/O. SURESH HEDDURSHETTI
AGE: 59 YEARS, OCC: HOUSEHOLD WORK
R/O: PLOT NO.100, RUKMINI NAGAR,
KANABARAGI ROAD, DIST: BELGAUM-590001
5. SMT. KALAVATI
W/O. SHIVAYOGI PATTANASHETTI
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NC: 2023:KHC-D:13655-DB
RFA No. 100092 of 2015
C/W RFA.CROB No. 100006 of 2015
AGE: 57 YEARS, OCC: HOUSEHOLD WORK
R/O: PATTANASHETTI ONI, BADAMI,
TQ: BADAMI, DIST: BAGALKOT-587201.
...APPELLANTS
(BY SRI. G.S. SAVADATTI, ADVOCATE)
AND:
1. LEELAVATI W/O. ISHWARAPPA KALADAGI,
AGE: 75 YEARS, OCC: HOUSEHOLD WORK,
R/O: PLOT NO.6, 2ND FLOOR,
GOVARDAN APARTMENT, MARUTI LAYOUT,
NAGARA BHAVI ROAD, BANGALORE-560072.
2. SMT. VEENA W/O. MUKUND BAMBURE,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O: R.R. NO.29, NISARGA CITY,
OPP. HOTEL AMBIENCE, NEAR KALEWADI,
PATA WAKAD, PUNE-57-411991.
3. SMT. SHAILA W/O. ASHOK MAHAJAN,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O: ASHOK NIVAS, H.NO.144, HOSPITAL ROAD,
SANGLI, DIST: SANGALI,
MAHARASHTRA STATE-416416.
4. SMT. VIBHA W/O.NAGAPPA PUDAKALAKATTI,
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O: C/O. BASAVARAJ BOREKAR,
NEAR VENKATESH TEMPLE,
UDAY NAGAR, SADHANAKERI,
DHARWAD-580008.
5. SMT. SANGEETA W/O. KITTU NAIK,
AGE: MAJOR, OCC: ADVOCATE,
R/O: KASHBI K.K. COLONY,
JALANAGAR, BIJAPUR, DIST: BIJAPUR-586101.
6. MAHANTESH S/O. ISHWARAPPA KALADAGI
AGE: MAJOR, OCC: SERVICE,
R/O: PLOT NO.6, 2ND FLOOR,
GOVARDAN APARTMENT,
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RFA No. 100092 of 2015
C/W RFA.CROB No. 100006 of 2015
MARUTI LAYOUT, NAGAR BHAVI ROAD,
BANGALORE - 560072.
7. SHIVAMURTI
S/O. MAHADEVAPPA KALADAGI,
AGE: 68 YEARS, OCC: RETD. PERSON,
R/O: HOUSE NO.56, ADARSH COLONY,
SHAHPURI SATARA, TQ: SATARA, DIST: SATARA
MAHARASHTRA STATE.
8. SMT. MAHADEVI S/O. SHIVAMURTI KALADAGI
AGE: 69 YEARS,, OCC: HOUSEHOLD WORK
R/O: HOUSE NO.56, ADARSH COLONY,
SHAHPURI SATARA,
TQ: SATARA, DIST: SATARA
MAHARASHTRA STATE.
9. SHASHIDHAR S/O. SHIVAMURTI KALADAGI
AGE: 41 YEARS, OCC: PRIVATE JOB,
R/O: HOUSE NO.56, ADARSH COLONY,
SHAHPURI SATARA,
TQ: SATARA, DIST: SATARA
MAHARASHTRA STATE - 415002.
10. GANGADHAR S/O. SHIVAMURTI KALADAGI
AGE: 39 YEARS, OCC: PRIVATE JOB,
R/O: HOUSE NO.56, ADARSH COLONY,
SHAHPURI SATARA, TQ: SATARA, DIST: SATARA
MAHARASHTRA STATE - 415002.
11. SMT. VIDYA W/O. MAHANTESH DHAVAN
AGE: 38 YEARS, OCC: HOUSEHOLD WORK
R/O: HOUSE NO.56, ADARSH COLONY,
SHAHPURI SATARA, TQ: SATARA, DIST: SATARA
MAHARASHTRA STATE - 415002.
12. ASHOK S/O. MAHADEVAPPA KALADAGI
AGE: 63 YEARS, OCC: RETD. PERSON,
R/O: KALADAGI ONI, SAUNDATTI,
DIST:BELGAUM-591126.
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NC: 2023:KHC-D:13655-DB
RFA No. 100092 of 2015
C/W RFA.CROB No. 100006 of 2015
13. SUBHAS S/O. MAHADEVAPPA KALADAGI
AGE: 61 YEARS, OCC: SERVICE,
R/O: TAPOVAN NAGAR, NEHARU NAGAR,
HALIYAL ROAD, DHARWAD - 580008.
14. MALLIKARJUN S/O. MAHADEVAPPA KALADAGI
AGE: 63 YEARS, OCC: AGRICULTURE,
R/O: KALADAGO ONI, SAUNDATTI,
DIST: BELGAUM - 591126.
15. JITENDRA S/O. NEMICHAND CHOPRA
AGE: 44 YEARS,
OCC: AGRICULTURE AND BUSINESS,
R/O: SAUNDATTI, SAUNDATTI,
DIST: BELGAUM. - 591126.
...RESPONDENTS
(BY SRI. PRASHANT HOSAMANI, ADVOCATE FOR R1 TO R3, R5,
R6;
NOTICE SERVED TO R8 TO R11 AND R14;
R4 IS HELD SUFFICIENT;
R7 IS DECEASED LRS ARE ALREADY ON RECORD;
SRI LAXMAN T. MANTAGANI ADVOCATE FOR R12;
SRI HANAMANTH R. LATUR, ADVOCATE FOR R13;
SRI MURUGENDRA WANTMURI, ADVOCATE FOR R15)
THIS REGULAR FIRST APPEAL IS FILED U/S.96 OF THE
CPC., PRAYING TO SET ASIDE THE JUDGMENT & DECREE
DATED:20.12.2014, PASSED IN OS.NO.57/2010, ON THE FILE
OF SENIOR CIVIL JUDGE, SAUNDATTI, AND MODIFY THE
SHARES OF THE PLAINTIFFS AS EACH PLAINTIFF IS ENTITLED
FOR 1/10TH SHARE IN SUIT SCHEDULE PROPERTIES, IN THE
INTEREST OF JUSTICE AND EQUITY.
IN RFA CROB.NO.100006 OF 2015
BETWEEN:
ASHOK MAHADEVAPPA KALADAGI
AGE:63 YEARS OCC:AGRL.,
R/O: KALADAGI ONI, SAVADATTI
TQ:SAVADATTI, DIST:BELAGAVI-5911236.
...CROSS OBJECTOR
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NC: 2023:KHC-D:13655-DB
RFA No. 100092 of 2015
C/W RFA.CROB No. 100006 of 2015
(BY SRI. LAXMAN T. MANTAGANI, ADVOCATE)
AND:
1. SMT.NEELAVVA @ BABAKKA
W/O. CHANNABASAPPA PUDAKALAKATTI
AGE:81 YEARS, OCC:HOUSEHOLD WORK,
R/O: UPPINA BETAGERI
TQ:DIST:DHARWAD-581206.
2. SMT.PREMA W/O. KALAPPA VANI
AGE: 76 YEARS, OCC: HOUSEHOLD WORK
R/O: NANDI KOLGUDI ONI,
MANGALWARPETH, DIST:DHARWAD-580001.
2.(A) RAJU S/O. KALLAPPA VANI,
AGE: 59 YEARS, OCC: BUSINESS,
R/O: ADISHAKTI NAGAR, MADIHAL,
DIST: DHARWAD-580001.
2.(B) NIRMAL W/O. ISHWAR ANGADI,
AGE: 48 YEARS, OCC: HOUSEHOLD,
R/O: 2ND CROSS RAMATIRTH NAGAR,
DIST: BELAGAVI-590001.
2.(C) VIDYA W/O. MAHESH KUDACHI,
AGE: 45 YEARS, OCC: HOUSEHOLD,
R/O: STATE BANK COLONY MUDHOL,
DIST: BELAGAVI-587313.
3. SMT. SHANTA W/O. GURUPADAPPA KAULAPURE
AGE: 65 YEARS, OCC: HOUSEHOLD WORK
R/O: MIG/4 HOUSING BOARD COLONY,
RAJEEVGANDI NAGAR,
CHIKKODI, DIST: BELAGAVI-591201.
4. SMT.GIRIJA W/O. SURESH HEDDURSHETTI
AGE: 59 YEARS, OCC: HOUSEHOLD WORK
R/O: PLOT NO.100, RUKMINI NAGAR,
KANABARAGI ROAD, DIST: BELAGAVI-590001.
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NC: 2023:KHC-D:13655-DB
RFA No. 100092 of 2015
C/W RFA.CROB No. 100006 of 2015
5. SMT.KALAVATI
W/O. SHIVAYOGI PATTANASHETTI
AGE: 57 YEARS, OCC: HOUSEHOLD WORK
R/O: PATTANASHETTI ONI, BADAMI,
TQ: BADAMI, DIST: BAGALKOT-587201.
6. SMT.LEELAVATI W/O.ISHWARAPPA KALADAGI
AGE: 75 YEARS, OCC: HOUSEHOLD WORK,
R/O: PLOT NO.6, 2ND FLOOR
GOVARDAN APARTMENT, MARUTI LAYOUT,
NAGARA BHAVI ROAD, BENGALURU-560072.
7. SMT. VEENA W/O.MUKUND BAMBURE
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O: R.R. NO.29, NISARYA CITY,
OPP. HOTEL AMBIENCE, NEAR KALEWADI,
PATA WAKAD, PUNE-57-411001.
8. SMT. SHAILA W/O.ASHOK MAHAJAN
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O: ASHOK NIVAS, H.NO.144, HOSPITAL ROAD,
SANGLI, DIST: SANGALI
MAHARASHTRA STATE-416416.
9. SMT. VIBHA W/O.NAGAPPA PUDAKALAKATTI
AGE: MAJOR, OCC: HOUSEHOLD WORK,
R/O: C/O. BASAVARAJ BOREKAR
NEAR VENKATESH TEMPLE,
UDAY NAGAR, SADHANAKERI,
DHARWAD-580008.
10. SMT. SANGEETA W/O.KITTU NAIK
AGE: MAJOR, OCC: ADVOCATE,
R/O: KASHBI K.K. COLONY,
JALANAGAR, VIJAYPUR,
DIST: VIJAYPUR-586101.
11. MAHANTESH S/O.ISHWARAPPA KALADAGI
AGE: MAJOR, OCC: SERVICE,
R/O: PLOT NO.6, 2ND FLOOR,
GOVARDAN APARTMENT, MARUTI LAYOUT,
NAGAR BHAVI ROAD, BANGALORE - 560072.
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RFA No. 100092 of 2015
C/W RFA.CROB No. 100006 of 2015
SHIVAMURTI S/O.MAHADEVAPPA KALADAGI
SINCE DECEASED BY HER LRS
12. SMT. MAHADEVI S/O. SHIVAMURTI KALADAGI
AGE: 69 YEARS, OCC: HOUSEHOLD WORK
R/O: HOUSE NO.56, ADARSH COLONY,
SHAHPURI SATARA, TQ: SATARA,
DIST: SATARA, MAHARASHTRA STATE.
13. SHASHIDHAR S/O. SHIVAMURTI KALADAGI
AGE: 41 YEARS, OCC: PRIVATE JOB,
R/O: HOUSE NO.56, ADARSH COLONY,
SHAHPURI SATARA, TQ: SATARA, DIST: SATARA
MAHARASHTRA STATE - 415002.
14. GANGADHAR S/O. SHIVAMURTI KALADAGI
AGE: 39 YEARS, OCC: PRIVATE JOB,
R/O: HOUSE NO.56, ADARSH COLONY,
SHAHPURI SATARA, TQ: SATARA, DIST: SATARA
MAHARASHTRA STATE - 415002.
15. SMT. VIDYA W/O. MAHANTESH DHAVAN
AGE: 38 YEARS, OCC: HOUSEHOLD WORK
R/O: HOUSE NO.56, ADARSH COLONY,
SHAHPURI SATARA,
TQ: SATARA, DIST: SATARA
MAHARASHTRA STATE - 415002.
16. SUBHAS S/O. MAHADEVAPPA KALADAGI
AGE: 61 YEARS, OCC: SERVICE,
R/O: TAPOVAN NAGAR,
NEHARU NAGAR, HALIYAL ROAD,
DHARWAD - 580008.
17. MALLIKARJUN S/O. MAHADEVAPPA KALADAGI
AGE: 63 YEARS, OCC: AGRICULTURE,
R/O: KALADAGO ONI, SAUNDATTI,
DIST: BELGAUM. - 591126.
18. JITENDRA S/O. NEMICHAND CHOPRA
AGE: 44 YEARS,
OCC: AGRICULTURE AND BUSINESS,
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RFA No. 100092 of 2015
C/W RFA.CROB No. 100006 of 2015
R/O: SAUNDATTI, SAUNDATTI,
DIST: BELGAUM. - 591126.
...RESPONDENTS
(BY SRI. G.S. SAVADATTI, ADVOCATE FOR R1, R3 TO R5 AND
TAKE NOTICE TO R2 (A TO C);
SRI. PRASHANT S. HOSAMANI, ADVOCATE FOR R6;
SRI. HANAMANTH R. LATUR, ADVOCATE FOR R16;
NOTICE SERVED TO R7, R8, R9, R10 TO R15, R17 AND R18)
THIS RFA CROSS OBJECTION FILED UNDER 41 RULE 22
OF CPC., PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
DATED 20-12-2014 PASSED BUY THE COURT OF SENIOR CIVIL
JUDGE SAVADATTI IN O.S.NO.57/2010 AND ALLOW THE
CROSS OBJECTION FILED BY THE RESPONDENT NO. 8 IN RFA
NO. 100092/2015 BY DISMISSING THE RFA NO. 100092/2015
IN THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL AND CROSS OBJECTION, COMING ON FOR
FURTHER HEARING, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
Heard the learned counsel for the appellant and also the
counsel appearing for the respondent.
2. The factual matrix o the case of the plaintiffs before
the trial Court is that, the plaintiffs are the daughters of
Mahadevappa and defendants are sons of the said
Mahadevappa and also the legal heirs of sons of Mahadevappa.
They sought for the relief of partition and separate possession
contending that the suit properties are joint family and
ancestral properties of plaintiffs and defendants.
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C/W RFA.CROB No. 100006 of 2015
3. It is also the contention of the plaintiffs that the
signatures are obtained on the blank papers and on the basis of
the said signatures, created the said signed blank papers into
consent letters by practicing fraud on the plaintiffs and got
entered only their names to the suit properties. It is contended
that the plaintiffs are entitled for 1/10th share in the suit
schedule properties.
4. The defendant appeared and filed written statement
and contended that there was previous partition in the year
1956 and the mutation is also effected as per ME No.7542
dated 14.12.1956. Defendant No.5 took the contention that she
is absolute owner of the property bearing Sy.No.616 of
Saundatti measuring 3 acres 23 guntas and also the contended
that she is entitled for a share in the house property inter se
with defendant no.6. The defendant No.8 took contention that
plaintiffs 1 to 3 relinquished their rights in the suit schedule
properties.
5. The trial Court taking note of the pleadings of the
parties, framed the issues. On defendant No.8 taken the
contention that the Sy.No.27/5 measuring 1 acre is his self
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acquired property, an additional issue is framed and allowed
the parties to lead evidence to substantiate their contentions.
6. The trial Court having considered both oral and
documentary evidence of PWs.1 and 2 and the evidence of
DW.1 to DW.6 and Exhibits P.1 to P.23 and D.1 to D.24 comes
to the conclusion that suit schedule properties are ancestral
properties and answered issue No.1 in the affirmative and also
comes to the conclusion that the plaintiff no.1 is entitled to
1/66th share, plaintiff nos.2 to 5 are entitled for a 9/528th share
each in the schedule properties. Further, the contentions which
have been taken by the defendants are negatived by the trial
Court. Further, the trial Court has come to the conclusion that
5th defendant is entitled to house properties inter se with
defendant no.6 and answered the same in partly affirmative.
7. Being aggrieved by the judgment and decree of the trial
Court, the present appeal is filed by the plaintiff no. 1 and
their legal heirs i.e. plaintiff nos. 3 to 5.
8. Defendant No.8 has also filed RFA.Crob.No.100006/15
being aggrieved by the judgment of the trial Court in coming to
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the conclusion that defendant no.8 that the properties are his
self acquired properties.
9. The main contention urged in the appeal is that, the
trial Court committed an error in apportioning the share instead
of 1/10th share each, committed an error in considering only
notional share and the very approach of the trial Court is
erroneous.
10. Per contra, the counsel for respondent would
vehemently contend that specific defence was taken in the
written statement that plaintiffs have relinquished their rights
in the suit schedule properties and also defendant No.5 took
specific defence that he is absolute owner of the property
bearing Sy.No.616 measuring 3 acres 23 guntas and also
defendant No.8 specifically contended that Sy.No.27/5
measuring 1 acre is his self acquired property, but, the trial
Court committed an error in not accepting the case of
defendant nos. 5 and 8 and erroneously granted the decree in
respect of the suit schedule properties and hence question of
modifying the judgment and decree as 1/10th share does not
arise.
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11. The very impugned judgment and decree passed by
the trial Court is erroneous when the plaintiffs have
relinquished their rights and also the counsel would submit that
already there was an earlier partition vide document ME
No.7542 dated 14.12.1956 which clearly discloses that already
there was a partition.
12. The counsel for the respondent in support of his
submission relied upon the judgment of this Court reported in
2023 (3) KCCR 2566 in the case of Shekhar vs. Manikappa
wherein this Court has held that, when the entry in the
mutation register ipso facto amounts to a partition, the Court
should take note of the aspect that the parties have acted upon
or not and held that the mutation entries cannot be a proof of
partition. Hence, the judgment is aptly applicable. This Court
held that mutation entries cannot be proved as proof of
partition is an erroneous approach and hence prayed this Court
to dismiss the suit.
13. Having heard the appellant's counsel and the
counsel for the respondents and also having perused the
material available on record, the points that arises for
consideration of this Court are;
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1. Whether the trial Court committed an error
in decreeing the suit in part instead of
granting 1/10th share as claimed in the
plaint?
2. Whether the trial Court committed an error
in not considering the defence which have
been taken by the different defendants
claiming that some of the properties are
their self acquired properties and also when
the plaintiffs have relinquished their right,
they are not entitled for any share?
3. What order?
Point for consideration in RFA.CROB 100006/2015:
Whether the Cross objector made out the ground to
allow the same and grant the relief as sought in the
RFA.Crob.
14. Having heard the respective counsel and also on
perusal of material and considering the material available on
record, it is not in dispute that appellants are children of one
Mahadevappa but, the very claim of the defendants that
plaintiffs have relinquished their right and accordingly mutation
entry is made in the revenue records in terms of Ex.D1 and
when the document itself discloses that properties are mutated
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based on Ex.D1, question of granting once again partition in
favour of the plaintiffs does not arise.
15. Having heard the submission of counsel for both the
parties, we have given our anxious consideration to Ex.D1 and
the same is only a report and no other document is placed
before the Court to show that the plaintiffs are parties for the
said document. In order to prove the factum of relationship or
right, no such document is placed before this Court.
16. Defendants are respondents. They rely upon
documents Ex.D2 and D3. On perusal of Ex.D3 which is letter
addressed to the Tahsildar relinquishing the right by the mother
and no legal document is placed before the Court. When such
being the case and when the contention is taken that the
plaintiffs have relinquished their right in respect of immovable
properties, there must be legal document with regard to
relinquishment of their right in respect of immovable
properties. Based on the mutation entries in terms of Ex.D1
which is a self-styled document at the instance of defendants, if
any entries are made, same cannot be a ground to come to the
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conclusion that already there is partition and they have
relinquished their right in respect of suit schedule properties.
17. The defendant no.8 also took the specific ground in
the RFA.Crob.100006/2015 that trial Court has committed an
error in coming to the conclusion that there was no oral
partition and not giving proper reasons to issue nos. 4 and 9
wherein defendant no.8 i.e. cross-objector specifically
contended that geneology is partly admitted and denied to the
effect that defendant no.1 and respondent no.1 is wife of
deceased Eshwar and subsequently contended that description
of the property is not described with the boundaries. In the
absence of specific boundaries and description suit was filed.
Taking note of though rightly comes to the conclusion that
entries are made with the consent of the plaintiffs has
erroneously comes to the conclusion that there is possibility of
obtaining signature for the purpose of entering the names of
the defendants. The very approach of the trial Court is
erroneous. Hence the judgment and decree of the trial Court
has to be set aside and RFA.Crob requires to be dismissed.
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18. Having considered the grounds urged in the cross-
objection and looking into the material available on record, no
doubt there is mention in the mutation that same has been
considered in view of the consent of the plaintiffs but, we have
already pointed out that when the parties are belonging to the
same family and based on the signatures of the plaintiffs, in a
document for getting transfer, the property transferred in
favour of the defendants and the same will not take away the
right of the plaintiffs and also trial Court has rightly observed
that defendants might have obtained the signatures that will
not create any right unless the right is created, legal point that
the defendant by obtaining any document and mere transfer of
the names in the revenue entries will not take away the right of
the plaintiffs.
19. The other contention that the trial Court committed
an error in decreeing the suit allotting share of 12/66th and
defendants 7 to 10 to get equal share of 1/66th share of
Murigevva and 1/66th share of Murigevva made into eight parts
is an erroneous approach. Such contention cannot be accepted
in view of the fact that this Court has come to the conclusion
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that there was no earlier partition and in the absence of any
proof of earlier partition, the daughters are also entitled for
equal share as that of son as co-parceners.
20. In view of the above, we do not find any ground to
accept the contention of defendant no.8 that trial Court
committed an error in not considering the earlier partition and
also ME 7542 DATED 14.12.1956 cannot be accepted and
hence, there is no merit in the cross-objection and answered
the point accordingly.
21. The trial Court having considered the material
available on record, in paragraph No.34 of the Judgment,
considering the facts of the suit and considering the documents
and having discussed, negatived the contentions of the
defendants while granting the shares, comes to a conclusion
that the amendment is prospective in nature and thereby
conferred the right of the daughters as co-parceners from the
year 2005, it is also observed that, succession in the present
case is open in the year 1976, therefore, as per Section 6(b) of
Hindu Succession Act, 1956 the coparceners are entitled to
succeed and the right of a coparcener shall devolve by the rules
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of the succession contemplated under Section 8 of the Act. To
regulate succession under Section 8, right and interest of
coparcener has to be ascertained under Section 6 Explanation
1.
22. Having considered the reasons given by the trial
Court, it is evident that the date of death of the father is in the
year 1976. Certainly, the court has to take note whether there
was partition as contended by the defendants and their
contention that there was a oral partition and also
relinquishment of right of the plaintiffs, we have given our
anxious consideration with regard to the said contention and
the same has not been substantiated by the defendants. When
there was no partition, and only D1 the report whereby they
got entries made in the Mutation Register vide ME 9239 and
also Ex.D2 where plaintiffs are not parties to the said
documents and also no legal document with regard to
relinquishment of right also executed. There was no partition
prior to the filing of the suit and legal relinquishment. Thus, the
contention of the appellants cannot be sustained. This appeal is
of the year 2015, subsequent to the amendment, the date of
death of the father of coparcener is not relevant. The Hon'ble
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Apex Court has made it clear in the recent judgment in
Vineeta Sharma vs. Rakesh Sharma reported in (2020) 9
SCC 1 wherein it is categorically held that the provisions
contained in the substituted Section of 6 of Hindu Succession
confer the status of the coparcener on the daughter before or
after the amendment in the same manner as the son with the
same joint family liabilities. Therefore, since the right in the
coparcenery is by birth. It is not necessary that the father of
the female coparcener should be alive on the date when the
amendment was brought into effect. Further held that statutory
fiction of the notional partition created by the proviso to Section
6 of the Hindu Succession Act, was only for the purpose of
ascertaining the share of the deceased coparcener when he was
survived by a female heir. Therefore, the Hon'ble Apex Court
held that the concept of notional partition is no more
applicable. Thus, in the absence of any public document, except
the ME Entries, no such self-styled documents transferring
property in the name of defendant takes away the rights of the
parties.
23. Hence, we do not find any substance in the
contention of the defendants and when the daughters are also
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copareners equally that of a son in view of recent judgment, in
the absence of any documentary proof of relinquishment of
their right and they are also legal heirs of said Mahadevappa
and they are equally entitled for a share as claimed in the
plaint to the extent of 1/10th share.
24. Thus, the Judgment and decree of the trial Court is
required to be modified. Hence, we answer the points framed in
the affirmative.
In view of discussion made above, we pass the following:
ORDER
(i) The appeal is allowed.
(ii) Judgment and Decree of the trial Court is modified
by granting 1/10th share each in favour of the
plaintiffs.
(iii) RFA.Cross-objection 100006/2015 is dismissed.
Sd/-
JUDGE
Sd/-
JUDGE
