Karnataka High Court
B L Shankarappa vs Smt B L Vanitha on 5 February, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 1534 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 1534 OF 2012 (PAR)
BETWEEN:
1. B.L.SHANKARAPPA
S/O LATE B.LAXMANA NAIKA
AGED ABOUT 61 YEARS,
OCC:RETD. BANK OFFICER & AGRICULTURIST,
R/O BEGUVALLI VILLAGE,
MANDAGADDE HOBLI,
THIRTHAHALLI TALUK,
SHIMOGA DISTRICT-577 226
...APPELLANT
(BY SRI. R.V. JAYAPRAKASH, ADVOCATE)
AND:
1. SMT. B.L. VANITHA
Digitally signed
W/O DEVARAJA
by SHARANYA T AGED ABOUT 45 YEARS,
Location: HIGH OCC:HOUSEWIFE,
COURT OF
KARNATAKA R/O C/O M.G.VEERAPPA
GUDDEKERI & POST,
THIRTHAHALLI TALUK,
SHIMOGA DISTRICT-577432
2. SMT. B.L.PUSHPAVATHI
W/O RAVI
AGED ABOUT 42 YEARS,
OCC: HOUSEWIFE,
R/O B.T.V. ARECA MANDI
BHIMASAMUDRA,
CHITRADURGA DISTRICT-577520
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RSA No. 1534 of 2012
3. SMT. SAVITHA
W/O M.G.VEERAPPA
AGED ABOUT 57 YEARS,
R/O GUDDEKERI & POST,
THIRTHAHALLI TALUK,
SHIMOGA DISTRICT
PIN-577432
4. SMT. B.L. SULOCHANA
W/O H.S.JAYANNA
AGED ABOUT 55 YEARS,
OCC:HOUSEWIFE,
R/O VINOBANAGAR,
POLICE QUARTERS,
SHIMOGA-577 201
...RESPONDENTS
(BY SRI. UMESH MOOLIMANI ADVOCATE FOR
SRI.S.V.PRAKASH, ADVOCATE FOR R1 to R4)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DTD 29.3.2012 PASSED IN
R.A.NO.146/2011 ON THE FILE OF DISTRICT JUDGE, I FAST
TRACK COURT, SHIMOGA, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGEMENT AND DECREE DTD 5.3.2011
PASSED IN OS.NO.7/2007 ON THE FILE OF PRINCIPAL SENIOR
CIVIL JUDGE AND C.J.M, SHIMOGA.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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RSA No. 1534 of 2012
JUDGMENT
1. Heard the learned counsel for the appellant and
also the counsel appearing for respondents.
2. This Regular Second Appeal is filed being
aggrieved by the concurrent finding of the Trial Court and
also the First Appellate Court and the Trial Court granted
1/5th share in favour of the plaintiff and the same is
confirmed by the First Appellate Court, since the plaintiff is
the daughter of Laxmana Naika. The brothers and other
sisters are defendants. No dispute with regard to the
relationship between the parties and the father died in the
year 2001. The suit is filed in the year 2007, subsequent
to the amendment to Section 6 of Hindu Succession Act,
2005.
3. The main contention of the counsel for
appellant before this Court that the plaintiff has not
pleaded in the plaint specifically with regard to the
devolution of interest on the plaintiff and also he
contended that defendant Nos.3 and 4 were born before
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09.09.2005, the date on which the provisions of the
amended Act came into force and whether they are
entitled for a share by virtue of the amended provision and
proof of coparcener, there was a devolutionary interest on
them.
4. This Court while admitting the appeal, framed
the following substantial question of law:
1) Whether the judgments of the Trial Court
and Appellate Court are sustainable in the
absence of material proof or specific
pleading that there was devolution of
interest on the plaintiff?
2) As admittedly defendant Nos.3 and 4 were
born before 09.09.2005 the date on which
the provisions of the amended Act came
into force, whether they are entitled to a
share by virtue of the amended provision or,
on proof of co-parcenary, there was a
devolutionary interest upon them?
5. The counsel appearing for the appellant would
vehemently contend that the three judge judgment of
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Apex Court reported in AIR 1978 SUPREME COURT
1239 IN CASE OF GURUPAD KHANDAPPA MAGDUM
V/S HIRABAI KHANDAPPA MAGDUM AND OTHERS
and the counsel referred paragraph No.13 of the judgment
which reads as follows:
" In order to ascertain the share of heirs in
the property of a deceased coparcener it is
necessary in the very nature of things, and
as the very first step, to ascertain the share,
of the deceased in the coparcenary property.
For, by doing that alone can one determine
the extent of the claimant's share.
Explanation 1 to section 6 resorts to the
simple expedient, undoubtedly fictional, that
the interest of a Hindu Mitakshara
coparcener "shall be deemed to be" the
share in the property that would have been
allotted to him if a partition of that property
had taken place immediately before his
death. What is therefore required to be
assumed is that a partition had in fact taken
place between the deceased and his
coparceners immediately before his death.
That assumption, once made, is irrevocable.
In other words, the assumption having been
made once for the purpose of ascertaining
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the share of the deceased in the
coparcenary property, one cannot go back
on that assumption and ascertain the share
of the heirs without reference to it. The
assumption which the statute requires to be
made that a partition had in fact taken place
must permeate the entire process of
ascertainment of the ultimate share of the
heirs, through all its stages. To make the
assumption at the initial stage for the limited
purpose of ascertaining the share of the
deceased and then to ignore it for
calculating the quantum of the share of the
heirs is truly to permit one's imagination to
boggle. All the consequences which flow
from a real partition have to be logically
worked out, which means that the share of
the heirs must be ascertained on the basis
that they bad separated from one another
and had received a share in the partition
which had taken place during the life time of
the deceased. The allotment of this share is
not a processual step devised merely for the
purpose of working out some other
conclusion. It has to be treated and
accepted as a concrete reality, something
that cannot be recalled just as a share
allotted to a coparcener in an actual
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partition cannot generally be recalled. The
inevitable corollary of this position is that
the heir will get his or her share in the
interest which the deceased bad in the
coparcenary property at the time of his
death, in addition to the share which he or
she received or must be deemed to have
received in the notional partition.
6. The main contention of the appellant's counsel
that when the father died in the year 2001, there was no
any right in favour of the daughter and amendment was
made subsequently in the year 2005. Inevitable corollary
of this position is that the heir will get the share in the
interest which the deceased had in the coparcenary
property at the time of his death. As on the date of death
of the father, no right was conferred upon the daughter
and hence, the respondents/plaintiff not entitled for share.
7. Per Contra, the counsel appearing for the
respondents would submits that in view of recent
judgment of VINEETA SHARMA's case, the Apex Court in
detail discussed with regard to the fact that if there was no
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any registered partition between the parties and also any
documentary evidence with regard to that earlier already
there was partition and parties have acted upon the
daughters are entitled for share. The daughter is also
entitled for a share as that of the son. The counsel also
submits that in respect of daughter is concerned, there
was a Karnataka Amendment Act 1994. Hence, the very
contention of the appellant's counsel cannot be accepted.
8. Having heard the appellant's counsel and also
the counsel appearing for the respondents, this Court also
framed the substantial question of law with regard to in
the absence of material proof or specific pleading that
there was devolution of interest on the plaintiff, whether
the judgment of the Trial Court granting equal share to the
daughter is correct or not. Admittedly the defendant Nos.3
and 4 were born before 09.09.2005, the date on which the
provisions of the amended act came into force. Whether
they have entitled to a share by virtue of the amended
provision or on proof of coparcenary, there was a
devolutionary interest upon them has to be considered.
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9. Having considered the substantial question of
law Nos.1 and 2 framed by this Court, with regard to
substantial question of law No.1 the plaintiff in paragraph
No.5 of the plaint pleaded that after the death of Laxmana
Naika, the suit schedule property were mutated in the
name of one of his son i.e., B.L.Manjunatha and he held
the properties on behalf of the joint family consisting of
the plaintiff and defendants. He also passed away on
06.08.2005. After his death the properties must have been
mutated jointly in the name of all the parties to this suit.
But vide M.R entry bearing No.17/2005-06, the properties
were mutated unlawfully in the name of the defendant
No.1 alone. It is also contended that against the same, an
appeal is preferred before the Assistant Commissioner,
Shimoga and the Court has stayed the mutation order.
The properties are in the joint possession of all the family
members. The parties are governed by Mithakshara school
of Hindu law. Hence, the plaintiff is entitled for 1/5th share
in the suit schedule properties.
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10. Having perused this averment made in the
plaint it is specifically pleaded that the suit schedule
property belongs to the joint family. After the death of the
father, the property was mutated in the name of his son
B.L.Manjunatha and the property was illegally transferred
in the name of defendant No.1. An appeal is also filed
before the Assistant Commissioner and stay was also
granted. It is also stated in the paragraph No.5 of the
plaint that the properties are in joint possession of all the
family members and the parties are governed by
Mithakshara school of Hindu law and hence she is entitled
for 1/5th share. Though it is not specifically pleaded that
property devolves upon her but the claim is made based
on the pleadings that she is bound by Mithakshara school
of law. Hence, the very substantial question of law that in
the absence of any specific pleadings with regard to the
devolution of property is concerned, the judgment of the
Trial Court and the appellate Court are sustainable in the
eye of law, hence, I answered the substantial question of
law No.1 in the negative since there is specific pleading in
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paragraph No.5 pleaded with regard to the existence of
joint family property and also entitled for a share i.e.,
1/5th share governed by the Mithakshara school of law.
11. Having considered the substantial question of
law No.2, it is contended that admittedly defendant Nos.3
and 4 were born before 09.09.2005, the date on which the
provisions of the amended act came into force. Whether
they are entitle to a share by virtue of the amended
provision or proof of coparcenary, there was devolutionary
interest upon them. Having considered 2nd substantial
question of law and pleading and also considering the
genealogical tree placed before this Court, it is not in
dispute that the property originally belongs to the
Laxmana Naika and also he died in the year 2001 leaving
behind the plaintiff is one of the daughter and other three
sisters and two brothers and out of that defendant No.1 is
the eldest son and other son B.L.Manjunatha is not
arrayed since he was no more. The defendant No.1 took
the contention that the other son B.L.Manjunatha was
executed the Will and the same is negatived by the Trial
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Court and also confirmed by the First Appellate Court. No
substantial question of law is framed before this Court with
regard to the same. The only question before this Court is
whether the plaintiff is entitled for equal share on the
property left by her father Laxmana Naika. No doubt
earlier daughters are also entitled for a share in the
property of the father as notional share. But, in view of the
judgment of the Apex Court in VINEETA SHARMA's case
held that the daughters are equally entitled for a share as
that of the son and they are coparcenaries as that of son.
In view of the said judgment and though counsel
appearing for the appellant relied upon paragraph No.13 of
the judgment of Apex Court reported in AIR 1978
SUPREME COURT 1239 referred supra, the contention of
the counsel that the Court has to take note of the death of
father cannot be accepted. As on the date of death, there
was no any amendment, there was no any earlier
partition. The counsel also brought to notice of this Court
that this judgment was discussed in the VINEETA
SHARMA's case and no finding is given and not discussed
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the principles laid down in the judgment of the three
bench judges of Apex Court referred supra.
12. Having taken note of the Apex Court recently in
VINEETA SHARMA's case dealt with, if no partition in
the family, the same is not evidenced by any documentary
proof that is public document and also in the absence of
any registered document, the daughter is also entitled for
share in the property. Hence, I am of the opinion that the
very contention of the appellant's counsel that the
daughters are not entitled for equal share as that of her
cannot be accepted. In view of the VINEETA SHARMA's
case the daughter is also entitled for share in the property
when there was no any partition in the family subsequent
to the death of the father. No material is placed with
regard to the fact that there was a partition in the family
subsequent to the death of the father. Hence, I do not find
any merit in the appeal and I answered the 2nd substantial
question of law also in the negative.
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13. In view of the discussions made above, I pass
the following:
ORDER
The appeal is dismissed.
Sd/-
JUDGE
RHS
