Karnataka High Court

Shri.Basappa Maharudrappa Holi vs Smt.Parawwa W/O Irappa Mangalgatti on 24 November, 2023

Author: H.P.Sandesh

Bench: H.P.Sandesh

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                                                   RFA No. 100148 of 2018




                   IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                       DATED THIS THE 24TH 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. 100148 OF 2018 (PAR)


                   BETWEEN:

                   SHRI. BASAPPA MAHARUDRAPPA HOLI,
                   AGE: 60 YEARS, OCC: AGRICULTURE,
                   R/O: HUNASIKATTI, TQ: BAILHONGAL,
                   DIST: BELAGAVI-591102.
                                                              ...APPELLANT
                   (BY SRI. LAXMAN T. MANTAGANI, ADVOCATE)

                   AND:

                   SMT. PARAWWA W/O. IRAPPA MANGALGATTI
                   AGE: 58 YEARS,
                   OCC: HOUSEHOLD WORK AND AGRICULTURE,
                   R/O: HOLIHOSUR, TQ: BAILHONGAL,
SAMREEN
AYUB               DIST: BELAGAVI-591102.
DESHNUR                                                      ...RESPONDENT
                   (NOTICE SERVED TO RESPONDENT)
Digitally signed
by SAMREEN
AYUB DESHNUR            THIS REGULAR FIRST APPEAL FILED UNDER SECTION 96
Date: 2023.12.04
14:42:27 +0530
                   OF CODE OF CIVIL PROCEDURE, PRAYING TO SET ASIDE THE
                   JUDGMENT AND DECREE PASSED BY THE SENIOR CIVIL
                   JUDGE, BAILHONGAL, IN O.S. 105/2015 DATED 14.02.2018,
                   AND ALLOW THE REGULAR FIRST APPEAL IN THE INTEREST OF
                   JUSTICE AND EQUITY.

                        THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
                   DAY, RAMACHANDRA D. HUDDAR, J., DELIVERED THE
                   FOLLOWING:
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                                      RFA No. 100148 of 2018




                           JUDGMENT

The appellant/defendant No.2 has preferred this

appeal being aggrieved and dissatisfied by the judgment in

O.S.No.105/2015 dated 14.02.2018 passed by the Senior

Civil Judge, Bailhongal.

2. During the pendency of the suit defendant No.1

died. As the defendant No.1 had no legal heirs, defendant

No.2 contested the suit.

Brief facts of the cased leading up to this appeal are as under:

3. That plaintiff filed the suit against defendants

seeking the relief of Partition and Separate Possession of

the suit schedule properties so described in the plaint.

According to the plaintiff, herself and defendants are

members of the joint family and the suit schedule

properties are the joint family properties.

4. It is further stated that, the schedule properties

are the properties of daughters of Neelawwa W/o.

Maharudrappa Holi, and they are entitled for shares in the

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suit properties. The plaintiff has got 1/3 share in the suit

schedule properties. It is stated that deceased

Kalamappa, defendant No.2, Gangawwa, Savawwa and

Tayawwa are the children of Neelawwa. Suit schedule

properties are the ancestral joint family properties of

herself and defendants. It is further stated that,

defendant No.1 is the wife of deceased Kalamappa, who

died on 02.03.2013.

5. It is further stated that, as per the mutation

entry No.6848 dated 29.05.1995, the suit schedule

properties were mutated in the name of Neelawwa W/o.

Maharudrappa Holi. She died on 10.02.1994, leaving

behind them as only legal heirs. The name of Neelawwa

came to be deleted from the revenue records. Deceased

Kalamappa, defendant No.2 and herself got entered their

names in the revenue records of the suit properties. It is

further stated that, about 30 years back prior to filing of

the suit, she has constructed house in Sy. No.70/5+6

measuring 3 acres 30 guntas. She herself and her family

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members are residing in the same and cultivating the said

land by raising sugarcane.

6. It is alleged by the plaintiff that, on 11.05.2015

the defendants without any right, title came to the suit

properties and destroyed the sugarcane crops. They tried

to demolish the house of the plaintiff. She requested to

give her legitimate 1/3rd share in the streedhan properties

of her mother. As there was no response, therefore the

plaintiff was constrained to file the suit before the Trial

Court seeking aforesaid reliefs.

7. Pursuant to the suit summons, defendants

appeared before the Trial Court. It was defendant No.2

filed written statement and the same was adopted by

defendant No.1.

8. It is specifically contended that, present suit of

the plaintiff is not at all maintainable in the eyes of law. It

is contended that, the description of the suit schedule

properties is not properly mentioned. In respect of Sy.

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No.75/7, the name of Mysore Sarakar is appearing. It is

contended that, so far as genealogy is concerned, it is

admitted. Maharudrappa has got daughters by name

Gangawwa, Savawwa and Tayawwa and the present

plaintiff. The said three daughters of Maharudrappa are

necessary parties to the suit. Without impleading them,

the suit is not at all maintainable.

9. It is contended that, the allegation with regard

to the destruction of the property of the plaintiff, itself

discloses that it is not maintainable. It is further

contended that, all the suit schedule properties previously

were standing in the name of Maharudrappa Holi, who is

the father of the plaintiff and father-in-law of defendant

No.1. Maharudrappa Holi, his sons and daughters are

considered as the Hindu joint family. No partition has

been taken place in between them. They all are residing

in their respective husband's houses and all the suit

schedule properties were in the name of Maharudrappa

and his sons only. Maharudrappa expired in the year

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1986. By that time, all the suit schedule properties were

in his name. On his death Vardi was filed and the names

of Kalamappa and defendant No.2 were entered in the

revenue records. To that effect mutation entry No.6247 of

Holihosur village was certified on 29.10.1986. Smt.

Neelawwa W/o. Maharudrappa Holi has not inherited any

of the property from her father's property. Therefore, it

cannot termed as ancestral joint family properties.

10. It is further contended that, the other

daughters have consented to effect the name of

Kalamappa and defendant No.2 in the revenue records.

Therefore, M.E. No.6848 came to certified on 05.07.1995.

Thus the plaintiff cannot claim any share in the suit

schedule property. By virtue of Hindu Succession

(Amendment) Act, 2005, the plaintiff is not entitled for any

share much less claimed in the plaint. Therefore, it is

prayed to dismiss the suit.

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11. Based upon the aforesaid rival pleadings of both

the parties, learned Trial Court framed the following six

issues:

"ISSUES

(i) Whether the plaintiff proves that, she and defendants are joint family members?

(ii) Whether the plaintiff further proves that, suit schedule properties are Streedhan properties and daughters of Neelawwa W/o.

Maharudrappa Holi alone entitle for share?

(iii) Whether the plaintiff proves that, she is entitled for 1/3rd share In the suit schedule properties?

(iv) Whether the defendant No.2 proves that suit of the plaintiff is bad for non-joinder of necessary parties as contended in para No.2 and 3 of the written statement?

(v) Whether the plaintiff is entitled for the relief as claimed in the plaint?"

12. Before the Trial Court to substantiate her case,

she herself entered the witness box as PW.1 and got

marked Ex.P.1 to P.7 and closed her evidence. To rebut

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the said evidence of the plaintiff, defendant No.2 entered

the witness box as DW.1. No document is marked on

behalf of defendants.

13. On hearing the arguments and on perusal of the

records, the learned Trial Court deleted issued No.1,

answered issue No.2, 4 in the negative and issue No.3 and

5 partly in the affirmative and ultimately decreed the suit

in part granting 1/5th share each in suit Sy. No.75/5, 56/5,

70/5+6 and 75/7 more particularly showed in paragraph

No.1 of the plaint of the plaintiff, whereas the plaintiff,

defendant No.2 and other children of Maharudrappa by

name Gangawwa, Savavva and Tayawwa. This is how this

judgment has been challenged by the appellant before this

Court.

14. Though respondent served with the notice, she

remained absent.

15. It is submitted by counsel for the plaintiff in

addition to the facts of this case that, there is a wrong

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allotment of the share to the plaintiff and defendant No.2

and others. The counsel for the plaintiff relied upon the

judgment of the Hon'ble Apex Court in Prakash and others

Vs. Phulavati and others1.

16. It is contend that, by virtue of amendment to

Hindu Succession Act, equal right is conferred on

daughters as daughters are coparceners. He submits that,

plaintiff is entitled for legitimate share, But the learned

Trial Court has granted equal share to the plaintiff. He

submits to allow the appeal and set aside the impugned

judgment.

17. We have given our anxious consideration to the

arguments of learned counsel for the appellant and

perused the records.

18. In view of the submission of the counsel for the

appellant and on perusal of the records, the following point

would arise for our consideration:

(2016) 2 SCC 36

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"Whether the trial Court has committed

any illegality or perversity in allotting 1/5th

share each to the children of Maharudrappa?"

19. Our answer to the above point is as under for

the following:

REASONS

20. So far as the genealogical tree is concerned,

there is no denial in the written statement. Defendant

No.1 died issueless during the pendency of the suit. As per

the genealogical tree, Maharudrappa is the propositus. He

died in the year 1986. He had a wife by name Neelavva.

She also died on 10.02.1994. In the wedlock between

Maharudrappa and Neelavva, they had six children i.e.

Kalamappa, Basappa, Gangavva, Savavva, Tayavva and

Parawwa. Kalamappa died on 02.03.2013. As per the

genealogical tree he died leaving behind his wife Basavva.

She also died during the pendency of the suit without

leaving any legal representatives. Parawwa is the plaintiff.

Basappa is defendant No.2.

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21. Evidently as rightly pointed by the learned

counsel for the appellant, the other three daughters by

name Gangavva, Savavva and Tayavva are not arrayed as

defendants in the suit.

22. The main argument of the learned counsel for

the appellant is that as the aforesaid three daughters are

not made as parties to the suit, the trial Court ought not

to have granted a decree granting 1/5th share to the

plaintiff. The suit is bad for non-joinder of necessary

parties. The trial Court at the time of answering issue No.4

has come to the conclusion that merely because they are

not arrayed as parties to the partition suit, the plaintiff

being a coparcener is entitled for share and she can very

well claim share in the property concerned as the

relationship between the plaintiff and defendants is not

disputed. So also, while passing the orders, the trial Court

has kept interest of the other three daughters also. Even

the trial Court has awarded 1/5th share each to the said

Gangavva, Savavva and Tayavva. Therefore, in view of the

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rival pleadings of both parties, the trial Court held that

such a contention of defendant No.2 cannot be maintained

and answered the said issue No.4 in the affirmative.

23. As the trial Court has considered this aspect

and kept the interest of other three daughters of

Maharudrappa, we do not find any factual or legal error

committed by the trial Court. If at all as per the findings of

the trial Court, the daughters want to claim their right in

the properties, they can very well claim the same during

the final decree proceedings. So keeping interest of these

daughters by the trial Court, appears to be correct and do

not require any interference.

24. More so, in this case though the learned

counsel for the appellant relies upon the judgment of the

Hon'ble Apex Court in the case of Prakash and Others

(supra), but in view of the judgment of the Hon'ble Apex

Court in the case of Vineeta Sharma vs. Rakesh

Sharma and Others2, if a daughter is alive on the date of

(2020) 9 SCC 1

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the enforcement of the Amendment Act 2005 i.e.

09.09.2005, she becomes a coparcener with effect from

the date of amendment irrespective of whether she was

born before the said amendment. The said law laid down

in the Vineeta Sharma (supra) case is aptly applicable

to the facts of the present case.

25. For better appreciation, the principle laid down

in the said judgment reads as under:

"Family and personal Laws- Hindu Succession Act, 1956- S.6[as substituted by the Hindu Succession (Amendment) Act, 2005, w.e.f. 9-9-2005] - daughter's right in coparcenary property under substituted S.6 of the HS Act, 1956-daughter born before date of enforcement of the 2005 Amendment Act- Held, has same rights as daughter born on or after the amendment- Non-requirement of coparcener father to be alive on date of coming into force of the said amendment, explained

-Held, if daughter is alive on date of enforcement of Amendment Act, 2005 i.e. 9-9-2005, she becomes a coparcener with effect from date of Amendment Act (i.e. 9-9-2005) irrespective of whether she was born before the said amendment-Provisions in substituted

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S.6 of the HS Act confer status of coparcener on daughter born before or after the amendment in the same manner as son with same rights and liabilities- Rights under substituted S.6 can be claimed by daughter born prior to the amendment, with effect from date of amendment (9-9-2005) with saving of past transactions as provided in proviso to S. 6(1) r/w S. 6(5) of the HS Act"

26. In view of the law laid down in the case of

Vineeta Sharma supra, the argument of the learned

counsel for the appellant cannot be accepted because the

relevant law which has to be applicable is that under the

provision of Section 6 of Hindu Succession Act, the

daughters who are alive on the date of the amendment

are treated as coparceners. As such, the plaintiff is a

coparcener and three other daughters including defendant

No.2. If that is so, the learned trial Court is right in

decreeing the suit of the plaintiff awarding 1/5th share to

her so also to other legal heirs of Maharudrappa i.e.

defendant No.2, Gangavva, Savavva and Tayavva.