Karnataka High Court
Smt.Gyanavva W/O Hampanna Ghanti vs Sri.Ningappa S/O Shivappa Dindwar on 6 February, 2024
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RFA No. 100504 of 2019
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 6TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE ASHOK S. KINAGI
AND
THE HON'BLE MR JUSTICE RAJESH RAI K
REGULAR FIRST APPEAL NO. 100504 OF 2019 (PAR)
BETWEEN:
1. SMT. GYANAVVA W/O. HAMPANNA GHANTI
AGE: 64 YEARS, OCC: HOUSEHOLD WORK,
R/O: BODANAYAKAKINNI, TQ: BAGALKOTE,
DIST: BAGALKOTE.
2. SMT. KASTUREVVA
W/O. BASAVARAJ HIREGOUDAR
AGE: 57 YEARS, OCC: HOUSEHOLD WORK,
R/O: ALBBANUR, TQ: SINDHANUR,
DIST: RAICHUR.
Digitally 3. SMT.BORAMMA
signed by
SHIVAKUMAR W/O. SHANKARAPPA HAMPANNAVAR
HIREMATH
Date: AGE: 45 YEARS, OCC: HOUSEHOLD WORK,
2024.02.09
12:05:20
+0530
R/O: MARADAGI, TQ: DHARWAD,
DIST: DHARWAD.
...APPELLANTS
(BY SRI. VIJAY S. CHINIWAR AND
SRI. VIJAYKUMAR BAGOJI, ADVOCATES)
AND:
1. SRI.NINGAPPA S/O. SHIVAPPA DINDWAR
AGED ABOUT: 69 YEARS, OCC: AGRICULTURAL,
R/O: BODANAYAKAKINNI, TQ: BAGALKOTE,
DIST: BAGALKOTE.
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RFA No. 100504 of 2019
2. SRI.MALLAPPA S/O. SHIVAPPA DINDWAR
AGED ABOUT: 62 YEARS, OCC: AGRICLTURAL,
R/O: SECTOR NO.35, PLOT NO.20,
NAVANAGAR, TQ: BAGALKOTE,
DIST: BAGALKOTE.
3. SRI.SHEKHARAPPA S/O. SHIVAPPA DINDWAR
AGED ABOUT: 67 YEARS, OCC: AGRICULTURAL,
R/O: BODANAYAKAKINNI,
TQ: BAGALKOTE, DIST: BAGALKOTE.
4. SRI.AMARAPPA S/O. SHIVAPPA DINDWAR
AGED ABOUT: 53 YEARS, OCC: AGRICULTURAL,
R/O: BODANAYAKAKINNI, TQ: BAGALKOTE,
DIST: BAGALKOTE.
...RESPONDENTS
(BY SRI. S.C. BHUTI FOR ADVOCATE R1 AND R2;
SRI. RAJASHEKHAR R. GUNAJLLI, ADVOCATE FOR R3 AND R4)
THIS REGULAR FIRST APPEAL FILED UNDER SEC.96 OF
THE CPC R/W ORDER XLI RULE 1 OF CPC., PRAYING TO SET
ASIDE THE JUDGMENT AND DECREE DATED:06.09.2018
PASSED IN O.S.NO.9/2017 CONSEQYENTLY MODIFIED
JUDGMENT AND DECREE DATED 06.09.2018 ON THE FILE OF
THE PRINCIPAL SENIOR CIVIL JUDGE, BAGALKOT, AND
ALLOTTING THE EQUAL SHARES TO THE APPELLANTS AND
RESPONDENTS.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, ASHOK S. KINAGI, J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the appellants challenging the
Judgment and preliminary decree dated 06.09.2018
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passed in O.S.No.9/2017 by the Principal Senior Civil
Judge, Bagalkote.
2. For the sake of convenience, the parties are
referred to as per their ranking before the trial Court. The
appellants are defendant Nos.3, 4 and 5. The respondent
Nos.1 and 2 are the plaintiffs. Respondent Nos.3 and 4 are
the other defendants.
3. The plaintiffs filed a suit for partition and
separate possession in respect of the suit schedule
properties. It is the case of the plaintiffs that, the original
propositus one Shivappa Dindawar died on 22.11.2002
and his wife Paravva also died in the year 2013, leaving
behind the plaintiffs and defendants as their legal heirs. It
is contended that, the suit schedule 'B' and 'C' properties
are the ancestral joint family properties of the plaintiffs
and defendants. It is contended that, there is no partition
between the plaintiffs and defendants. When the plaintiffs
demanded for partition and separate possession, the
defendants refused to effect the partition. Hence, the
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cause of action arose for the plaintiffs to file a suit for
partition and separate possession.
4. The defendant Nos.3 to 5 have filed their
written statement, but defendant Nos.1 and 2 have not
filed their written statement. Defendant Nos.3 to 5 have
admitted the entire averments of the plaint except the
quantum of share claimed by the plaintiffs and defendants
requested the Court to allot equal share in their favour in
the suit schedule properties. Hence, it is contended that,
the suit is bad for mis-joinder and non-joinder of
necessary parties and prayed to dismiss the suit.
5. The trial Court on the basis of the pleadings of
the parties framed the following issues:
(i) Whether the plaintiffs are entitled for
partition and separate possession in the suit
schedule properties as prayed for in the plaint?
(ii) Whether the defendant No.3 to 5 prove
that, the suit of the plaintiffs is bad for non-joinder
of necessary parties and mis-joinder of unnecessary
parties?
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(iii) Whether the defendant Nos.3 to 5 are
entitled for equal share in the suit schedule
properties?
(iv) What order or decree?
6. The plaintiffs in order to prove their case,
plaintiff No.1 was examined as P.W.1 and got marked 06
documents as Ex.P.1 to Ex.P.6. The defendants neither
adduced oral nor produced any documentary evidence.
The trial Court on assessment of the oral and documentary
evidence, answered issue No.1 in the affirmative, issue
No.2 in the negative, issue No.3 partly in the affirmative
and issue No.4 as per final order. The suit of the plaintiff
came to be decreed. It is ordered and decreed that, the
plaintiffs are entitled for partition and separate possession
of 8/35th share in 'B' and 'C' schedule properties by metes
and bounds and defendant Nos.3 to 5 are entitled for
partition and separate possession of their 1/35th each
share in the suit 'B' and 'C' schedule properties by metes
and bounds and defendant Nos.3 to 5 shall pay court fee
towards their share. The defendant Nos.3 to 5 aggrieved
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by the Judgment and decree passed in O.S.No.9/2017 filed
this appeal.
7. Heard the learned counsel for the defendant
Nos.3 to 5 and the learned counsel for the plaintiffs.
8. Sri. Rajashekhar R. Gunjalili, learned counsel
for the defendant Nos.3 to 5/appellants submits that,
defendant Nos.3 to 5 are the daughters of the original
propositus i.e. Shivappa Dindawar and in view of the
amendment to Section 6 of the Hindu Succession Act,
2005, the daughters are to be treated as coparceners and
they are also entitled for equal share with that of a son.
He submits that, the trial Court placing reliance on the
Judgment of the Hon'ble Apex Court in the case of
Prakash and others Vs. Phulavathi and others,
reported in (2016) 2 SCC 36, has granted a notional
share. He submits that, in view of the law laid down by the
Hon'ble Apex Court in the case of Vineeta Sharma Vs.
Rakesh Sharma and others, reported in (2020) 9 SCC
1, the defendant Nos.3 to 5 are also entitle for equal
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share. Hence, on these grounds he prays to allow the
appeal.
9. Per contra, learned counsel for the plaintiffs
supports the impugned Judgment and preliminary Decree
and prays to dismiss the appeal.
10. Heard the learned counsel for the parties,
perused the records and considered the submissions of the
learned counsel for the parties. The points that would arise
for our consideration are:
(i) Whether the defendant Nos.3 to 5 proves
that, they are equally entitled for the share with that
of plaintiffs and defendant NOs.1 and 2 as per
Section 6 of the Hindu Succession (Amendment) Act,
2005?
(ii) What order or decree?
11. Answer to Point Nos.1 and 2 : The plaintiffs
have filed a suit for partition and separate possession
contending that, the original propositus was one Shivappa
who had four sons and three daughters i.e. plaintiffs and
defendant Nos.1 and 2 are sons and defendant Nos.3 to 5
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are the daughters. It is contended that, 'B' and 'C'
schedule properties are the ancestral joint family
properties of plaintiffs and defendants and there was no
partition effected between the plaintiffs and defendants in
the aforesaid suit schedule properties. The plaintiffs in
order to substantiate their claim, examined plaintiff No.1
as P.W.1 and he has reiterated the plaint averments in his
examination-in-chief and produced tax paid receipts
which are marked as Ex.P.1 and Ex.P.2, RTC extracts at
Ex.P.3 to Ex.P.6 in respect of the suit lands. From the
perusal of the records produced by the plaintiffs it
discloses that, the suit schedule properties were stood in
the name of Shivappa i.e. the original propositus and there
is no partition effected between the plaintiffs and
defendants. The suit schedule properties are the ancestral
joint family properties of plaintiffs and defendants.
12. Defendant Nos.3 to 5 have filed their written
statement contending that, the suit schedule properties
are the ancestral joint family properties and further made
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a counter claim for the relief of partition and separate
possession. The original propositus died on 22.11.2002
leaving behind the plaintiffs and defendants as his legal
heirs. The trial Court considering that, as on the date of
amendment to Section 6 of the Hindu Succession Act, the
father was not alive and notional partition was effected,
has held that, the defendant Nos.3 to 5 are entitle for
notional share i.e. 1/35th to each.
13. In order to consider the case on hand, it is
necessary to examine Section 6 of the Hindu Succession
(Amendment) Act, 2005. By virtue of Section 6 to Hindu
Succession Act, the Hindu Family governed by the
Mitakshara law, the daughter of a coparcener shall (a) by
birth become a corparcener in her own right in the same
manner as the son; (b) have the same rights in the
coparcenery property as she would have had if she had
been a son; (c) be subject to the same liabilities in respect
of the said coparcenary property as that of a son.
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14. Admittedly, the defendant Nos.3 to 5 are the
daughters of original propositus Shivappa who died in the
year 2002, leaving behind the plaintiffs and defendants as
his legal heirs. Further, in view of the law laid down by the
Hon'ble Apex Court in the case of Vineeta Sharma
(supra) that, irrespective of whether the father is alive or
not as on the date of coming into force of amendment Act,
2005, the daughters are entitled for equal share in the
same manner as that of a son. Hence, the issue involved
in the present appeal is squarely covered by the Judgment
of the Hon'ble Supreme Court in the case of Vineeta
Sharma (supra). The trial Court has committed an error in
awarding notional share to the defendant Nos.3 to 5. In
view of the above discussions, we answer point No.1 in the
affirmative and point No.2 as per the following:
ORDER
(i) The appeal is allowed in part;
(ii) The Judgment and preliminary decree
dated 06.09.2018 passed in O.S.No.9/2017
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by the Principal Senior Civil Judge Court,
Bagalkote, is modified;
(iii) The plaintiffs and defendant Nos.1 to 5 are
entitled for equal share i.e. 1/7th share
each in schedule B and C properties by
metes and bounds;
(iv) Draw preliminary decree;
(v) No order as to the costs.
Sd/-
JUDGE
Sd/-
JUDGE
SVH
