Karnataka High Court
Sandeep Ramakant Bhat vs Janardhan S/O Narayan Prabhu on 22 April, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2024:KHC-D:6611
RSA No. 100051 of 2021
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 22ND DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE HANCHATE SANJEEVKUMAR
REGULAR SECOND APPEAL NO. 100051 OF 2021 (PAR-)
BETWEEN:
SANDEEP RAMAKANT BHAT,
AGE: 42 YEARS,
OCC: AGRICULTURIST AND SERVICE,
R/O: PRIOL, MARDOL, PONDA,
STATE GOA-403115.
RAMAKANT MUKUND BHAT
SINCE DECEASED BY HIS LRS
APPELLANT AND RESPONDENT NO.4 HEREIN ARE
LRS AND ARE ALREADY ON RECORD.
...APPELLANT
(BY SRI. GIRISH A YADAWAD., ADVOCATE)
AND:
1. JANARDHAN S/O. NARAYAN PRABHU,
Digitally signed AGE: 69 YEARS,
by SUJATA R/O: JAYASHREE, NEAR RAGHAVENDRA
SUBHASH SWAMY MATH,
PAMMAR DANDELI, TQ: DANDELI,
Location: HIGH DIST: UTTARA KANNADA-581325.
COURT OF
KARNATAKA 2. GAJANAN S/O. NARAYAN PRABHU,
AGE: 67 YEARS,
R/O: 'MAHAMAYA KRUPA',
OLD P.H.C. ROAD,
SHIRALI, TQ: BHATKAL,
DIST: UTTARA KANNADA-581354.
3. RAGHURAM S/O. NARAYAN PRABHU,
AGE: 65 YEARS,
R/O: PRABHU POULTRY FARM,
AT AND POST SARPANKATTA,
-2-
NC: 2024:KHC-D:6611
RSA No. 100051 of 2021
TQ: BHATKAL,
DIST UTTARA KANNADA-581320.
4. SANTOSH RAMAKANT BHAT,
AGE: 46 YEARS,
OCC: AGRICULTURIST AND SERVICE,
R/O: PRIOL, MARDOL, PONDA,
STATE GOA-403115.
...RESPONDENTS
(BY SRI.JAGADISH PATIL, ADVOCATE FOR R1 TO R3;
R4 SERVED BUT UN-REPRESENTED )
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO SET
ASIDE THE JUDGMENT AND DECREE DATED 20.02.2020 PASSED IN
R.A.NO.26/2019 ON THE FILE OF THE SENIOR CIVIL JUDGE,
BHATKAL, DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 02.01.2019, PASSED IN
O.S.NO.37/2016 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE,
BHATKAL, PARTLY DECREEING THE SUIT FILED FOR PARTITION AND
SEPARATE POSSESSION.
THIS APPEAL COMING ON FOR FURTHER HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This second appeal is filed by plaintiff No.2
challenging the judgment and decree dated 20.02.2020
passed in R.A.No.26/2019 on the file of the Senior Civil
Judge, Bhatkal and the judgment and decree dated
02.01.2019 passed in O.S.No.37/2016 on the file of the
Principal Civil Judge, Bhatkal.
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2. For the purpose of convenience, ranking of the
parties is referred to as per their status before the trial
Court.
3. Respondent No.4 is plaintiff No.1. Plaintiff Nos.1
and 2 have filed suit for partition and separate possession
claiming 1/4th share in the suit schedule properties. The
genealogy is as follows:
GENEOLOGY
Narayan Pundalik Prabhu (Propositus, dead)
Laxmidevi (Wife, dead)
Mahamaya Janardhan Gajanan Raghuram
@Ratnabai (Deft.1) (Deft.2) (Deft.3)
Ramakant
(Husband, Plt.3)
Santosh (Plt.1) Sandeep (Plt.2)
4. The plaintiffs have contended that suit properties
are self acquired properties of original propositus-Narayan
Pundalik Prabhu. The defendants are contending that the suit
schedule properties are ancestral properties. Both the trial
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Court and the first appellate Court have held that the suit
schedule properties are joint family properties and ancestral
properties. The finding of both the trial Court and the first
appellate Court that the suit schedule properties are joint
family properties and ancestral properties, attained finality
as the plaintiffs have not challenged the said finding. The
plaintiff No.2 has filed this appeal for claiming partition of
properties of 1/4th share as per the judgment of the Hon'ble
Supreme Court in the case of Vineeta Sharma Vs. Rakesh
Sharma and others reported in (2020)9 SCC 1 (Vineeta
Sharma case).
5. The trial Court has granted 1/16th share upon
following the judgment in Prakash and others Vs.Phulvati
and others reported in (2016) 2 SCC 36 (Prakash case),
for the reason that the original propositus-Narayan Pundalik
Prabhu died in the year 1966, therefore by adopting the
theory of making notional partition between Narayan
Pundalik Prabhu and three sons without recognizing the
mother of plaintiffs as coparcenor, has granted 1/16th share
in the suit schedule properties.
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6. This Court on 02.03.2022 has framed the
following substantial question of law:
"Whether it is just and necessary to modify
the judgments and decrees passed by the Courts
below and grant an equal 1/4th share together to
plaintiffs no.1 and 2 as against 1/6th notional
share granted by Courts below in view of law laid
down by Hon'ble Apex Court in the case of
Vineeta Sharma V/s Rakesh Sharma?"
7. As per the genealogy described above, the
mother of plaintiff Nos.1 and 2 is daughter of Narayan
Pundalik Prabhu and Laxmidevi. Defendant Nos.1 to 3 are
the sons. Therefore, as per Section 6 of the Hindu
Succession Act, and as per law laid down by the Hon'ble
Supreme Court in the case of Vineeta Sharma, since
daughter is also recognized as coparcenor, is entitled equal
share as that of sons. Therefore, the plaintiffs' mother is
entitled 1/4th share, consequently both plaintiff Nos.1 and 2
being children of Ratnabai are entitled their mother's share
of 1/4th together. Both the trial Court and the first appellate
Court have lost sight of the law recognizing daughter is also
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coparcenor and thus without considering the daughter as
coparcenor, has decreed the suit by granting 1/16th share,
which is not correct, as this is contrary to the principle of law
laid down by the Hon'ble Supreme Court in the case of
Vineeta Sharma (supra).
8. Therefore, the judgment and decree passed by
the trial Court and the first appellate Court are liable to be
modified so far as grating extent of share is concerned.
Hence, answered substantial question of law in the
affirmative that the judgment and decree passed by the trial
Court and the first appellate Court are modified holding that
the plaintiffs are entitled for 1/4th share together but not
1/16th share. Therefore, the appeal filed by the
appellant/plaintiff No.2 is allowed. Hence, I proceed to pass
the following:
ORDER
i) Appeal is allowed.
ii) The judgment and decree dated 20.02.2020
passed in R.A.No.26/2019 on the file of the
Senior Civil Judge, Bhatkal and the judgment and
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decree dated 02.01.2019 passed in
O.S.No.37/2016 on the file of the Principal Civil
Judge, Bhatkal, are hereby modified, holding that
the plaintiff No.1 and respondent No.4 (plaintiff
No.2) are entitled 1/4th share together in all the
suit schedule properties by metes and bounds.
iii) Draw decree accordingly.
iv) No order as to costs.
Sd/-
JUDGE
kgk
