Karnataka High Court

Smt.Chandrabai W/O Hanumantappa ... vs Smt.Ratnabai W/O Narayan Tadas on 29 November, 2023

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                                                           NC: 2023:KHC-D:13995
                                                             RSA No. 100014 of 2016




                              IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH

                                DATED THIS THE 29TH DAY OF NOVEMBER, 2023
                                                 BEFORE
                                  THE HON'BLE MRS JUSTICE K.S.HEMALEKHA

                           REGULAR SECOND APPEAL NO.100014 OF 2016 (PAR)
                        BETWEEN:
                        1.    SMT.CHANDRABAI, W/O HANUMANTAPPA SETSANADI
                              AGE: 72 YEARS, OCC: AGRICULTURE,R/O:SOMANAKOPPA,
                              TQ:KALAGHATAGI, DIST:DHARWAD-581204.

                        2.    SHRIDHAR, S/O. HANUMANTAPPA SETSANADI
                              AGE: 44 YEARS, OCC: DRIVER, R/O:SOMANAKOPPA,
                              TQ:KALAGHATAGI, DIST:DHARWAD-581204.

                        3.    SHRIKANT, S/O. HANUMANTAPPA SETSANADI
                              AGE: 42 YEARS, OCC: AGRICULTURE,R/O:SOMANAKOPPA,
                              TQ:KALAGHATAGI, DIST:DHARWAD-581204.

                        4.   SMT.BEBINANDA, W/O. RAMESH PARBAT,
                             AGE:48 YEARS, OCC: AGRICULTURE,R/O:SOMANAKOPPA,
                             TQ:KALAGHATAGI, DIST:DHARWAD-581204.
                                                                      ...APPELLANTS
                        (BY SRI. G.S. SAVADATTI, ADVOCATE)
                        AND:
                        1.    SMT.RATNABAI W/O. NARAYAN TADAS,
           Digitally
                              AGE:50 YEARS, OCC: AGRICULTURE,R/O:SOMANAKOPPA,
           signed by          TQ:KALAGHATAGI, DIST:DHARWAD-581024.
           VISHAL
VISHAL     NINGAPPA
NINGAPPA   PATTIHAL     2.    SMT. INDUMATI, W/O GANAPLATI SURYAVANSHI
PATTIHAL   Date:
           2023.12.14         AGE: 46 YEARS, OCC: HOSUEHOLD WORK,R/O:KANMADI,
           11:35:06
           +0530              TQ:VIJAYAPURA-586101.

                        3.    SMT.SUREKHA W/O. MARUTI NALWAD,
                              AGE:40 YEARS, OCC:HOUSEHOLD WORK,
                              R/O:DEGON, TQ:BAILHONGAL, DIST:BELAGAVI-591102.

                        4.    SMT.SUNITA, W/O. SATISH DHARWADAKAR,
                              AGE:38 YEARS, OCC:HOUSEHOLD WORK,
                              R/O:SOMANAKOPPA, TQ:KALAGHATAGI
                              DIST:DHARWAD-581024.
                                                                      ...RESPONDENTS
                        (BY    SRI. SAGAR S.HEGDE, ADVOCATE FOR
                               SRI. S.R. HEGDE, ADVOCATE FOR R1;
                               NOTICE TO R2 TO R4 IS SERVED)
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                                    NC: 2023:KHC-D:13995
                                       RSA No. 100014 of 2016




      THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF THE CODE OF CIVIL PROCEDURE, 1908, AGAINST THE
JUDGMENT AND DECREE DATED 06.02.2015 PASSED IN R.A.NO.
64/2010 ON THE FILE OF THE III-ADDITIONAL SENIOR CIVIL JUDGE
AND JMFC, HUBBALLI, ALLOWING THE APPEAL AND SETTING ASIDE
THE JUDGMENT AND DECREE DATED 20.03.2010 PASSED IN O.S.NO.
39/2008 ON THE FILE OF THE CIVIL JUDGE (JR. DN.) AND JMFC,
KALAGHATAGI, PARTLY DECREEING THE SUIT FILED FOR PARTITION
AND SEPARATE POSSESSION.

     THIS REGULAR SECOND APPEAL, COMING ON FOR
ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

                        JUDGMENT

The present second appeal by unsuccessful

defendant Nos.1 to 4 assailing the judgment and decree of

the first appellate Court, whereby, suit seeking for

partition and separate possession was decreed granting

equal share in respect of all the suit schedule properties,

reversing the judgment and decree of the trial Court,

where notional partition was granted to the plaintiffs in the

share of the original propositus.

2. The parties herein are referred to as per their

rankings before the trial Court.

3. Brief facts of the case are that:

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Suit seeking for partition and separate possession of

1/8th share in the suit schedule properties, contending

that the original propositus one Hanumanthappa is the

husband of defendant No.1 and father of plaintiff and

other defendants and the propositus has died on

03.03.2002, leaving behind the plaintiff and defendants as

his legal representatives. The suit schedule properties are

the ancestral joint family properties of plaintiff and

defendants and further contended that defendant Nos.1 to

3 have no exclusive right over the suit schedule

properties.

4. Pursuant to the suit summons issued by the

trial Court, defendants appeared through their counsel and

written statement was filed by defendant No.2 and the

same was adopted by defendant Nos.1 and 3. It is the

contention of the defendants that during the lifetime of the

propositus Hanumanthappa, there was an oral partition

between the original propositus Hanumanthappa and

defendant Nos.1 to 3, and the suit schedule property at Sl.

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Nos.2 and 5 fell to the share of Hanumanthappa, the

original propositus, Sl. No.1 fell to the share of defendant

No.1, Sl. No.3 fell to the share of defendant No.2 and Sl.

No.4 fell to the share of defendant No.3. It is stated that

there has already been a partition and the marriage of the

plaintiff and defendant Nos.4 to 7 has been celebrated by

spending a huge amount and gold ornaments have been

given to them in terms of their shares in the partition.

5. The trial Court on the basis of the pleadings

framed the following:

"ISSUES

1. Whether the plaintiff proves that, suit

schedule properties are under joint family

properties of plaintiff and defendants ?

2. Whether the defendants prove that there was

partition effected in the family ?

3. Whether plaintiff is entitled for partition and

separate possession in the suit schedule

property?

4. If so at what share ?

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5. Whether the defendants prove that, plaintiff

has not paid proper court fee to the suit ?

6. In order to substantiate her claim, plaintiff

examined herself as PW.1 and examined two more

witnesses as PW.2 and 3 and got marked documents at

Ex.P.1 to 10. On the other hand, defendant No.4 examined

herself as DW.2 and one witness as DW.1 and got marked

the documents at Exs.D.1 to 12.

7. The trial Court on the basis of the pleadings and

oral and documentary evidence held that:

i) The plaintiff failed to prove that the suit

schedule properties are the joint family

properties of the plaintiff and defendants.

ii) The defendants proved that there was a family

partition.

By judgment and decree, the Trial Court held that

the plaintiff is entitled for notional partition awarding

1/32nd share of her father deceased Hanumanthappa, in

the properties allotted to Hanumanthappa in the partition.

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8. Aggrieved by granting of shares only in respect

of the properties fallen to the share of Hanumanthappa,

the plaintiff preferred an appeal before the first appellate

Court.

9. The first appellate Court, while re-appreciating

the entire oral and documentary evidence independently,

arrived at the conclusion that the plaintiff and defendant

Nos.2 to 7 are coparceners, and defendant No.1, wife of

late Hanumanthappa, are entitled for 1/8th share in all the

suit schedule properties. Aggrieved by granting of equal

share in respect of all the suit schedule properties,

defendant Nos.1 to 4 are in the present second appeal.

10. Heard Sri. G. S. Savadatti, learned counsel for

the appellants and Sri. Sagar S. Hegde, learned counsel

appearing for the respondents and perused the Judgment

and decree of the Courts below and the material placed

before this Court.

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11. Learned counsel for appellants would contend

that the first appellate Court has erroneously modified the

Judgment and decree of the trial Court by granting 1/8th

share in respect of all the suit schedule properties.

Learned counsel would contend that the trial Court had

rightly granted notional partition in the share allotted to

the original propositus Hanumanthappa and would contend

that the plaintiff being the daughter is not entitled for

equal share in the suit schedule properties. Learned

counsel would contend that in light of the proviso to

Section 6(a) of the Hindu Succession (Amendment) Act,

2005, the partition effected prior to coming into force of

the amended Act needs to be protected.

12. Per contra, learned counsel appearing for the

respondents would justify the Judgment and decree of the

first appellate Court and would contend that the first

appellate Court has rightly held that the plaintiff and

defendant Nos.2 to 7 are entitled for 1/8th share and the

partition effected between the propositus Hanumanthappa

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and sons, wherein the plaintiff was not a party is

unsustainable, the oral partition has not been established

by defendant Nos.1 to 3. Learned counsel would rely upon

the decision of the Apex Court in the case of Vineeta

Sharma Vs. Rakesh Sharma1 and would contend that

the daughters are coparceners and are entitled for equal

share to that of a son.

13. This Court has carefully considered the rival

contentions urged by the learned counsel for the parties.

14. The family pedigree is as under:

Hanumantappa

Chandrabai (Def. No.1)

Ratnabai Shrikant Shridhar Bebinanda Indumati Surekha Sunita (Plt.) (Def. No.3) (Def. No.2) (Def. No.4) (Def. No.5) (Def. No.6) (Def. No.7)

15. Undisputed facts are that:

i) The relationship of the plaintiff with that of the

defendants.

ILR 2020 KAR 4370

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ii) The suit schedule properties are the joint family

properties of the plaintiff and defendants.

16. Though the oral partition was effected between

Hanumanthappa and his sons-defendant Nos.1 to 3,

plaintiff and defendant Nos.5 to 7 are not parties to the

said oral partition, the oral partition is not evidenced by

any substantial evidence. The sole contention of the

defendants is that there was an amicable settlement in the

partition between the original propositus and defendant

Nos.1 to 3 and the respective properties were allotted to

Hanumanthappa and defendant Nos.1 to 3 and further,

that the daughter, i.e., the plaintiff and defendant Nos.5 to

7 were given gold ornaments when their marriage was

performed. The material on record does not evidence

about the partition between the original propositus

Hanumanthappa and defendant Nos.1 to 3, a partition in

the absence of the daughters, who are entitled for share,

could not be a partition in the eye of law, even if there is a

partition, the defendants have failed to establish that any

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share given to the plaintiff and defendant Nos.5 to 7 and

in the absence of the same, the first appellate Court was

justified in holding that defendant Nos.1 to 3 have failed to

establish the oral partition and that the plaintiff is entitled

for equal share in all the suit schedule properties.

17. The Apex Court in the case of Vineeta Sharma

stated supra, has held at paragraph No.129 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

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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 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."

18. The Apex Court at clause (v) of paragraph No.129

has held that 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 accepted as the statutory recognized mode of

partition effected by a deed of partition duly registered under

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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 by a decree of a court, it may be accepted. A