Karnataka High Court
Balappa Rangappa Hiremetri @ ... vs Smt. Basawwa W/O Laxman Harijan on 28 June, 2024
Author: Mohammad Nawaz
Bench: Mohammad Nawaz
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RFA No. 100479 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 28TH DAY OF JUNE, 2024
PRESENT
THE HON'BLE MR JUSTICE MOHAMMAD NAWAZ
AND
THE HON'BLE MR JUSTICE T. G. SHIVASHANKARE GOWDA
REGULAR FIRST APPEAL NO. 100479 OF 2018
(PAR/POS)
BETWEEN:
BALAPPA RANGAPPA HIREMETRI @ DODDAMETRI
AGED: 55 YEARS, OCC: AGRICULTURE,
R/O: KULGOD, TQ: GOKAK, DIST:BELAGAVI.
...APPELLANT
(BY SMT. SURABHI KULKARNI, ADVOCATE FOR
SRI. CHETAN MUNNOLI, ADVOCATE)
AND
1. SMT. BASAWWA W/O. LAXMAN HARIJAN
Digitally AGE: 55 YEARS,
signed by
GIRIJA A OCC: HOUSEHOLD WORK AND AGRICULTURE,
BYAHATTI R/O: MAKKALGERI, TQ: GOKAK-591344.
Location:
HIGH
COURT OF 2. LAXMAWWA
KARNATAKA W/O. RAMAPPA HIREMETRI @ DODDAMETRI
AGE: 53 YEARS, OCC: HOUSEHOLD
R/O: KULGOD, TQ: GOKAK,
DIST: BELAGAVI-591310.
3. PARAWWA
D/O. RAMAPPA HIREMETRI @ DODDAMETRI,
AGE: 33 YEARS, OCC: HOUSEHOLD WORK,
R/O: KULGOD, TQ: GOKAK,
DIST: BELAGAVI-591310.
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RFA No. 100479 of 2018
4. KASTURI
D/O. RAMAPPA HIREMETRI @ DODDAMETRI,
AGE: 31 YEARS, OCC: HOUSEHOLD WORK,
R/O: KULGOD, TQ: GOKAK,
DIST: BELAGAVI-591310.
5. CHANDRAWWA W/O. MAHADEV HARIJAN
AGE: 29 YEARS,
OCC: HOUSEHOLD WORK,
R/O: KULGOD, TQ: GOKAK,
DIST: BELAGAVI-591310.
6. SUNDRAWWA W/O. VITTAL HARIJAN
AGE: 38 YEARS, OCC: HOUSEHOLD WORK,
R/O: MAKKALGERI, TQ: GOKAK,
DIST: BELAGAVI-591344.
7. SUNANDA W/O. RAVI HARIJAN
AGE: 36 YEARS,
OCC: HOUSEHOLD WORK,
R/O: MAMADAPUR, TQ: GOKAK,
DIST: BELAGAVI-591233.
8. SUREKHA W/O. MAHANTESH HARIJAN
AGE: 34 YEARS,
OCC: HOUSEHOLD WORK,
R/O: MAMADAPUR,
TQ: GOKAK, DIST: BELAGAVI-591310.
9. RANGAWWA
D/O. RAMAPPA HIREMETRI @ DODDAMETRI,
AGE: 16 YEARS, OCC: NIL,
R/O: HUNSHYAL P.Y., TQ: GOKAK,
DIST: BELAGAVI-591310.
10 . BHARATI
D/O. RAMAPPA HIREMETRI @ DODDAMETRI,
AGE: 14 YEARS, OCC: NIL,
R/O: HUNSHYAL P.Y., TQ: GOKAK,
DIST: BELAGAVI-591310.
(RESPONDENT NOS.9 AND 10 ARE MINORS,
REPRESENTED BY THEIR NATURAL MOTHER
LAXMAWWA W/O. RAMAPPA HIREMETRI,
@ DODDAMETRI,
I.E. RESPONDENT NO.2.)
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RFA No. 100479 of 2018
11 . YAMANAPPA RAMAPPA HIREMETRI
@ DODDAMETRI,
AGED: 28 YEARS, OCC: AGRICULTURE,
R/O: MAKKALAGERI, TQ: GOKAK,
DIST: BELAGAVI-591344.
12 . YAMANAPPA MOTHER SONAWWA HIREMETRI
@ DODDAMETRI,
AGED: 25 YEARS, OCC: AGRICULTURE,
R/O: KULGOD, TQ: GOKAK,
DIST: BELAGAVI-591310.
13 . YAMANWWA MOTHER SONAWWA HIREMETRI
@ DODDAMETRI,
AGED: 31 YEARS, OCC: AGRICULTURE,
R/O: MAKKALGERI, TQ: GOKAK,
DIST: BELAGAVI.
14 . SANNASIDDAPPA KENCHAPPA KHILARI
AGE: 55 YEARS, OCC: AGRICULTURE,
R/O: HUNSHYAL P.Y., TQ: GOKAK,
DIST: BELAGAVI-591224.
... RESPONDENTS
(SMT. P.G. NAIK, ADVOCATE FOR R1, R5, R6, R11 AND R13;
R9 AND R10 ARE MINORS REPRESENTED BY R2;
NOTICE TO R14 SERVED;
R4, R7, R8, R12 NOTICE HELD SUFFICIENT)
THIS REGULAR FIRST APPEAL FILED UNDER SECTION 96 OF
CODE OF CIVIL PROCEDURE, PRAYING TO CALL FOR THE RECORDS
AND SET ASIDE THE JUDGMENT AND DECREE DATED 06.08.2018 IN
O.S. NO.122/2015 ON THE FILE OF THE II ADDITIONAL SENIOR
CIVIL JUDGE, GOKAK AT GOKAK, IN THE INTEREST OF JUSTICE AND
EQUITY.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 07-06-2024 AND COMING ON FOR 'PRONOUNCEMENT
OF JUDGMENT' THIS DAY, T.G.SHIVASHANKARE GOWDA J.,
PRONOUNCED THE FOLLOWING:
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RFA No. 100479 of 2018
JUDGMENT
In this appeal, the defendant No.1 has challenged
the judgment and decree dated 06.08.2018 in
O.S.No.122/2015 passed by the II Additional Senior Civil
Judge, Gokak (for brevity 'the Trial Court').
2. The appellant was the defendant No.1, respondent
No.1 was the plaintiff, respondent Nos.2 to 14 were the
defendant Nos.2 to 14 before the Trial Court. For the sake
of convenience, parties shall be referred to as per their
status before the Trial Court.
3. The brief facts of the plaintiff's case are, plaintiff
has filed the instant suit seeking partition and separate
possession in the suit schedule 'A' property described as
herebelow:
Sy.No. Area
Sl.No. A-Gs-Ana
1 39/1 1-26
2. 39/2/1 1-14-08
3. 39/2/2 0-23
4. 40/1 4-02
0-01
-----
4-01
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5. 42/3 0-06
6. 40/2/P2 5-13
0-02 PK
-----
5-11
situated at Hunshyal P.Y., Gokak Taluk. Plaintiff claims
that she is the daughter of one Rangappa and Gowrawwa.
They had three sons and a daughter by name Ramappa,
Balappa, Rathnappa and Sonawwa. For ready reference,
the genealogical tree is extracted as follows:
Rangappa
=Gourawwa
(dead)
Ramappa Sonawwa Balappa Ratnappa Basawwa
(Dead) (Dead) (D-1) (Dead issue less) (Pltff.)
= laxmawwa
(D2)
Yamanappa Yamanawwa
(D12) (D13)
Parawwa Kasturi Chadrawwa Sundrawwa Sunanda Surekha Rangawwa Barati Yamanappa
(D3) (D4) (D5) (D6) (D7) (D8) (D9) (D10) (D11)
4. The suit schedule 'A' properties are the ancestral
joint family properties of plaintiff and defendant Nos.1 to
13. The propositus Rangappa died leaving behind his
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three sons and two daughters. His first son Ramappa died
7 years back leaving behind his wife and children i.e.,
defendant Nos.2 to 11. His daughter Sonawwa died
leaving behind her son and daughter, who are defendant
Nos.12 and 13. Balappa, defendant No.1 is the second
son of Rangappa. The second son of Rangappa by name
Rathnappa died issueless. Plaintiff is the second daughter
of Rangappa. Mother of the plaintiff by name Gowrawwa
also died 10-12 years back. During the life time of
Rangappa, he and his sons and daughters were in joint
family enjoying the suit schedule 'A' properties. Plaintiff
was given in marriage to Makkalgeri village. Since she
was not residing in the village, after the death of their
father, defendant No.1, Rathnappa, Ramappa and
Sonawwa got entered their names in the RTC belonging to
the joint family. They have also created sale deeds in the
name of defendant No.14 without her knowledge and
consent. They have no exclusive right, title or interest to
alienate the suit properties in favour of defendant No.14.
There was no legal necessity to alienate the suit schedule
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property. No consideration was paid under the sale deeds.
Defendant No.14 is not in possession of any of the
properties. Only a month before the institution of the suit,
plaintiff came to know about the change in the revenue
entries and she is not willing to continue in the joint
family. Hence, on 15.03.2015, she has requested the
defendants to effect partition and allotment of her share.
As they did not accede to her request, she was
constrained to file the instant suit.
5. Before the Trial Court, defendant No.14 alone has
filed the written statement. Defendant No.1 has adopted
the written statement of defendant No.14. Defendant
Nos.2 to 11 have not filed any written statement.
Defendant Nos.12 and 13 are placed exparte.
6. In his written statement, defendant No.14 denied
the claim of the plaintiff as the daughter of Rangappa. It
is his specific case that, the suit schedule properties were
the joint family properties of children of Rangappa by
name Ramappa, Sonawwa, Balappa and Rathnappa.
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Plaintiff does not belong to the said family. Rangappa died
on 19.08.1996 at Kulgod leaving behind his three sons
viz., Ramappa, Balappa and Rathnappa and daughter
Sonawwa. After the death of Rangappa, said three sons
and daughter have submitted a Vardi to the Revenue
Authorities in the year 2000. Accordingly, their names
were entered in the RTC in the diary No.2887. For the
purpose of development of their lands, Rathnappa and
Sonawwa have sold their share in Sy.No.39/2 measuring
39 guntas and Sy.No.40/2 measuring 2 acres 26.08
guntas to this defendant for a consideration of
Rs.1,75,000/- on 02.05.2002. Thereafter, Ramappa,
Balappa and Rathnappa and Sonawwa have sold the land
in Sy.No.39/2 measuring 15 acres 8 guntas, Sy.No.40/2
measuring 2 acres 24.08 guntas in favour of this
defendant for a consideration of Rs.1,53,000/- on
28.09.2004. He was put in possession of the said
properties. After enquiring the records and details, he has
purchased the said properties by paying valuable
consideration, thereby, he became the absolute owner.
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He raised loan in the Societies and Banks on the said lands
since 2002 and 2004 and he is the bonafide purchaser of
the said lands for valuable consideration and is in
possession of the said properties. If in case the plaintiff
establishes her relationship and right in the property, she
can only claim her share of property, if any, in the
remaining 6 acres and odd guntas of land in possession of
Ramappa and Balappa. The suit is filed only to harass this
defendant and the plaintiff is not entitled to claim any
share and sought for dismissal of the suit.
7. On the basis of the above pleadings, the Trial Court
has framed the following issues:
1. Whether the plaintiff proves that she is the daughter of
propositus Rangappa?
2. Whether the plaintiff further proves that the suit
properties are ancestral family properties of joint
family comprising of herself and the defendant Nos.1
to 13?
3. Whether the defendant Nos.1 and 14 prove their
alternative defence that the plaintiff is ousted for the
joint possession and enjoyment over suit properties
since 1996?
4. Whether the defendant No.14 proves that he is the
bonafide purchaser for value in respect of property
bearing Sy.No.39/2 and 40/2 of Hunshyal P.Y. Village?
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5. (a) Whether the plaintiff is entitled for the relief of
partition as prayed?
(b) If so, whether the defendant No.14 is entitled for
any equity as prayed?
6. What order or decree?
8. Before the Trial Court, the plaintiff examined
herself as PW1 and marked as many as 15 documents as
per Exs.P1 to P15. On behalf of the defendants, four
witnesses are examined as DWs-1 to 4 and 20 documents
came to be marked as Exs.D1 to D20.
9. The Trial Court after hearing both sides recorded
its affirmative finding on issue Nos.1, 2, 4, 5(b) and partly
affirmative the issue No.5(a) and answered issue No.3 in
the negative and ultimately decreed the suit of the plaintiff
declaring that the plaintiff is entitled for 1/12th share in
item Nos.1 and 3 to 5 of suit schedule 'A' property apart
from allotting share to defendant Nos.1, 2 to 11 together
and defendant Nos.12 and 13 together. Assailing the said
judgment, the defendant No.1 has filed this appeal on
various grounds.
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10. Heard the arguments of Smt.Surabhi Kulkarni,
learned counsel on behalf of Sri.Chetan Munnol, learned
counsel on record for defendant No.1 and Sri.P.G.Naik,
learned counsel for the plaintiff, defendant Nos.5, 6, 11
and 13.
11. It is the contention of the learned counsel for
defendant No.1 that the plaintiff is not related to the
family of late Rangappa. She has no locus standi to file he
suit. Even the suit is barred by time. The Trial Court has
not framed issue regarding limitation. The Trial Court has
seriously committed an error in holding that the suit
schedule properties are ancestral joint family properties of
the plaintiff and defendant Nos.1 to 13. The plaintiff is
staying at Makkalgeri of Gokak Taluk and the suit schedule
properties are situated at Hunshyal P.Y., Gokak Taluk. No
material is placed by the plaintiff to show that she is in
joint possession and enjoyment of the suit properties at
any point of time. She has not produced any document to
show that she was a resident of Hunshyal or any
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document in proof of her relationship with defendant Nos.1
to 13. The Trial Court erroneously held that the
relationship has been proved, plaintiff and defendant
Nos.1to 13 are in joint possession of the properties.
Plaintiff is not entitled to the share of the properties and
sought for interference of this Court.
12. Per contra, learned counsel for the plaintiff has
contended that the plaintiff has produced the evidence to
show that she is the daughter of Rangappa and
Gowrawwa. For the reason of the plaintiff was given in
marriage to Makkalgeri village, she cannot produce any
document to show that she is the resident of Hunshyal
after marriage. She is settled in matrimonial home.
Rangappa and Gowrawwa had three sons and two
daughters. After the death of Rangappa and Gowrawwa,
their three sons and daughter Sonawwa, who are the
residents of Hunshyal, behind the back of the plaintiff got
changed the mutation entry and on enquiry, the plaintiff
came to know about the alienation made in favour of
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defendant No.14 behind her back; she demanded the
partition, when refused, the suit is filed within time. There
is no question of faming any issue regarding limitation as
the cause of action pleaded is of the year 2015 and the
suit is filed in the very same year.
12.1. It is further contended that the plaintiff has
placed sufficient evidence to establish that she is the
daughter of Rangappa and Gowrawwa. Her Birth
Certificate and School Certificate show that she was born
to Rangappa and Gowrawwa in Kulagod village and
subsequently, she was married and residing in her
matrimonial home. It is also contended that in view of the
amendment to Hindu Succession Act, the plaintiff claims to
be the co-parcener, she is in deemed joint possession and
enjoyment of the properties. The three sons and a
daughter of Rangappa are the Trustees of the properties.
The Trial Court has applied the principle of 'Notional
Partition; but in view of the judgment in Vineeta Sharma
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-vs- Rakesh Sharma1, the plaintiff is entitled to equal
share on par with defendant Nos.1 to 13 and sought for
modification of the share allotted to the plaintiff from
1/12th to equal share.
13. We have given our anxious consideration to the
arguments advanced on behalf of the parties and perused
the materials on record.
14. The points that arise for our consideration are:
(i) Whether the plaintiff is the daughter of
Rangappa and Gowrawwa?
(ii) Whether the suit schedule properties are the
joint family properties of plaintiff and
defendant Nos.1 to 13?
(iii) Whether the plaintiff is entitled for share? If
so, to what extent?
(iv) Whether the suit is barred by time?
(v) Whether the impugned judgment and decree
is perverse, illegal and calls for our
interference?
(2020) 9 SCC 1
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Reg. Point No.(i):
15. It is the specific case of the plaintiff that she is
the daughter of Rangappa and Gowrawwa whereas
defendant No.14 denies it and it is adopted by defendant
No.1. The material on record points out that after the
death of father, mother of the plaintiff died. It is also
elicited that, one Lakshmavva is the wife of
Balappa/defendant No.1. Mahadeva is their son. 5th
defendant Chandrawwa, who is the daughter of Ramappa
(the first son of Rangappa) is the wife of Mahadeva. This
explains that the plaintiff is not a stranger to the family.
16. To establish her relationship, the plaintiff has
entered the witness box reiterating her relationship
claiming that she is the daughter of Rangappa and
Gowrawwa. In the cross-examination though it is denied,
she withstood the vigor of cross-examination.
17. On behalf of the defendants, the Power of
Attorney Holder of defendant No.14 has been examined as
DW-1. DW-1/Hanamant is the son of defendant No.14.
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His evidence by way of affidavit shows that his father is
the bonafide purchaser of the suit schedule properties.
Plaintiff is unknown to the family of Rangappa and
Gowrawwa. During the course of cross-examination, he
has admitted that brothers and sisters of Ramappa,
husband of defendant No.2 are the residents of Kulagod.
It is elicited from his mouth that plaintiff's father's name is
'Rangappa Hiremetri'.
18. Defendant No.1 got himself examined as DW-4.
Though he denies the relationship, in the cross-
examination, when it is suggested that the plaintiff is the
daughter of Rangappa, he has failed to deny and assert
that the plaintiff is not the daughter of his father. It is
interesting to note that in the cross-examination,
defendant No.1 admitted categorically that in Kulagod,
there is only one person in the name of Rangappa
Hiremetri, who is no other than his father. If that is so,
more value is attached to the admission made by DW-1
that the name of father of plaintiff is 'Rangappa Hiremetri'.
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To substantiate these aspects, the plaintiff has produced
Ex.P9/Residence Certificate issued by the Village
Accountant, Kulagod, which shows that the plaintiff is the
resident of Kulagod and her name is 'Basavva Rangappa
Hiremetri'. Ex.P10 is the Caste and Date of Birth
Certificate issued by the Government Higher Primary Girls'
School, Kulagod to show that the plaintiff is referred as
'Basavva Rangappa Metri' as student in school records.
The plaintiff also produced her Birth Certificate as per
Ex.P15 issued by the Tahsildar, Mudalagi, certifying that
Basavva (plaintiff) of Kulagod was born to Gowravva and
Rangappa Metri on 15.04.1963. The plaintiff though is an
illiterate she admits having studied upto 2nd standard in
Kulagod. This takes support from Ex.P10 that this
Basavva Rangappa Metri is none other than the plaintiff.
When defendant No.1 has not denied the assertion of the
plaintiff in the cross-examination that she is the daughter
of Rangappa Metri and DW-1 admitted that the plaintiff is
the daughter of Rangappa Metri, the evidence remains for
consideration is of DWs-2 and 3.
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19. DWs-2 and 3 both are residents of
Bisanakoppa. They have deposed that Rangappa Metri is
having three sons and daughter by name Ramappa,
Balappa, Rathnappa and Sonavva. Their cross-
examination has demonstrated that they were unaware
about the plaintiff. It is quite natural that DWs-2 and 3,
who are the residents of some other village coming to the
land of Rangappa for coolie work, may not be able to see
the married daughter of Rangappa to be present in
Kulagod when she was given in marriage to Makkalgeri.
Hence, much weight cannot be attached to their evidence.
20. Though defendant No.1 has not filed his written
statement, in his affidavit evidence, he urges that the
plaintiff is not the daughter of Rangappa, but in the course
of cross-examination, he has clearly admitted that he has
not made any enquiry about whereabouts of the plaintiff.
He pleaded ignorance about the plaintiff has studied in
Government Higher Primary Girls' School at Kulagod. He
is also ignorant about plaintiff married to Makkalgeri. This
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clearly explains the claim of the plaintiff that Rangappa
Metri is the only one person available in Kulagod and the
father's name of the plaintiff is 'Rangappa Hiremetri'. If
that is so, the only one person who is the father of the
plaintiff is none other than Rangappa Metri through
Gowrawwa. Inspite of defendant No.5 is the daughter-in-
law of plaintiff, defendant No.1 did not disclose it and tried
to assert that she is unknown to family. Hence, the Trial
Court has rightly appreciated the evidence in holding that
the plaintiff is the daughter of Rangappa Metri and
Gowrawwa. Hence, we answer point No.(i) in the
affirmative.
Reg: Point No.(ii)
21. Plaintiff claims that the suit schedule properties
are owned by Rangappa and it is the ancestral property.
The RTC extracts are made available as per Exs.P1 to P6
in respect of the suit schedule properties. Column Nos.9
and 11 of the RTC explains the name of Rangappa as the
father of Khata holders. Ex.P7/Ex.D3 is the mutation
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extract said to have been carried out under the Vardi in
respect of Sy.Nos.39/1, 39/2, 40/1, 40/2 and 42/3 that
the khata has been effected in the name of Ramappa,
Balappa, Rathnappa and Sonawwa as the children of
Rangappa Doddametri Uruf Hiremetri. The change of
khata was on the basis of Varas. This shows that the
property belongs to Rangappa Metri and admittedly
Rangappa Metri died on 19.08.1996 and in the year 2000,
mutation got changed as per Ex.P7/Ex.D3 as successors of
Rangappa Doddametri @ Hiremetri.
22. DW-4/defendant No.1 in the evidence though
claims that the suit properties are his self-acquired
properties, but he has failed to produce any evidence to
show that he has acquired the property. Some properties
are acquired in his name by his father and when he was
25 years old. It is also interesting to note that if the suit
schedule properties are the self-acquired properties of
defendant No.1, why Ex.P7/Ex.D3 /Vardi came into
existence effecting change of khata in favour of three sons
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and a daughter of Rangappa Metri as the successors of
Rangappa. This clearly explains that the suit schedule
properties are belonging to Rangappa Hiremetri.
Accordingly, answer point No.(ii) is answered.
Reg. Point No.(iii):
23. In view of the fact that the plaintiff is the
daughter of Rangappa Hiremetri and the suit schedule
properties are the joint family properties, by virtue of
death of Rangappa on 19.08.1996, the suit schedule
properties became the joint family properties of the
plaintiff and defendant Nos.1 to 13. The Hon'ble Apex
Court in Vineeta Sharma's case (supra) held that the
alienation made prior to 20.12.2004 has been saved and
thereby there is no need for much discussion as to the
alienation made in favour of defendant No.14 under
Exs.D19 and D20/sale deeds as they are prior to the Hindu
Succession (Amendment) Act came into force. Hence, the
interest of defendant No.14 in the acquired properties has
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to be protected and for the remaining properties, the
plaintiff is entitled to the share.
24. As regards the quantum of share is concerned,
the Trial Court has adopted the principle of 'Notional
Partition' allotting share to Rangappa and his three sons
and thereafter out of Rangappa's 1/4th share allotting
share to the daughters and sons, thereby allotted 1/12th
share in favour of the plaintiff. In doing so, the Trial Court
has relied upon the judgment of the Apex Court in
Prakash and Others -vs- Phulavati and Others2 and
Mangammal @ Thulasi and another -vs- T.B.Raju
and Others3. The Hon'ble Apex Court in Vineeta
Sharma's case (supra), over-ruled the views expressed in
Phulavati's case, which is contrary to the discussion
made in the said case and also Mangammala's case. The
opinion expressed in Danamma Suman Surpur and
Another -vs- Amar and others4 is also partly over-
ILR 2005 KAR 5329
(2018) 15 SCC 662
(2018) 3 SCC 343
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ruled. At para-134, 137.1, 137.2, 137.3 and 137.4, it has
been held as follows:
"134. The protection of rights of daughters as
coparcener is envisaged in the substituted Section 6 of
the Act of 1956 recognises the partition brought about
by a decree of a court or effected by a registered
instrument. The partition so effected before 20.12.2004
is saved.
xxxxxxxxxxx
137.1. The provisions contained in substituted
Section 6 of the Hindu Succession Act, 1956 confer
status of coparcener on the daughter born before or
after amendment in the same manner as son with same
rights and liabilities.
137.2. 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 20th day of December, 2004.
137.3. Since the right in coparcenary is by birth, it
is not necessary that father coparcener should be living
as on 9.9.2005.
137.4. The statutory fiction of partition created by
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
only for the purpose of ascertaining share of deceased
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coparcener when he was survived by a female heir, of
ClassI as specified in the Schedule to the Act of 1956
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."
25. In view of the law being laid down, the status of
the male and female heirs of joint family is equal and
female heir is entitled to equal share on par with the male
heir. In view of the same, on the date of the suit,
Ramappa, Sonawwa and Rathnappa were no more;
defendant No.1 and plaintiff were alone surviving
members. Defendant No.2 is the wife and defendant
Nos.3 to 11 are the children of Ramappa. Defendant
Nos.12 and 13 are the children of Sonawwa. Since
Rathnappa died issueless, the surviving members of the
co-parcenery will be the branch of Ramappa, branch of
Sonawwa, defendant No.1 and the plaintiff. Thus, the
plaintiff is entitled to claim 1/4th share in the suit schedule
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properties instead of 1/12th share as assessed by the Trial
Court. Accordingly, point No.(iii) is answered.
Reg.Point No.(iv):
26. Defendant No.14 has contended that the suit is
barred by time. The cause of action pleaded is of the year
2015; within a year of demanding partition, the suit is filed
by the plaintiff. Further, the contention of defendant
No.14 is that the plaintiff was ousted from the family.
Such contention is neither explained through proper
pleadings nor any evidence is placed in support of it.
When the contesting defendants are not admitting that the
plaintiff is the daughter of Rangappa and Gowrawwa, the
question of ousting does not arise. In view of the
discussion made above, the plaintiff is a co-parcener,
there is no evidence on record to show that there was any
earlier partition nor the plaintiff has relinquished her share
or she being ousted of the co-parcenery or joint family.
The cause of action arose from the date of demand of the
partition. There is no evidence to show that the demand
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of partition was made 12 years prior to the date of suit.
Therefore, the suit is in time. Accordingly, we answer
point No.(iv).
Reg. Point No.(v):
27. We have carefully perused the impugned
judgment. The Trial Court though accepted that the
plaintiff is the daughter of Rangappa and Gowrawwa, the
suit schedule properties are the joint family properties, it
has held that the alienation made in favour of defendant
No.14 in the year 2002-2004 is saved as the alienation
was prior to 20.12.2004. Hence, in the remaining
properties, the plaintiff is entitled to the equal share on
par with her brothers and sister being the members of the
joint family. The Trial Court has applied the principle of
'Notional Partition' relying on Phulavati's case (supa),
which is over-ruled in Vineeta Sharma's case (supra).
Hence, the principle of 'Notional Partition' cannot be
applied. Following the principles in Vineeta Sharma's
case (supra), equal partition has to be effected. Hence,
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this appeal merits consideration. In the result, the
following;
ORDER
(i) The appeal is allowed in part;
(ii) The impugned judgment and decree is
modified;
(iii) It is declared that the plaintiff is entitled to
1/4th share in the item Nos.1 and 3 to 5 of suit
schedule 'A' property; defendant No.1 is
together and defendant Nos.12 and 13 together
are entitled to 1/4th share each in the said
properties along with the plaintiff.
(iv) Draw decree accordingly.
Sd/-
JUDGE
Sd/-
JUDGE
KNM
