Karnataka High Court
Sri H S Shankara vs Smt Lakshmamma on 4 March, 2024
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RSA No. 835 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 835 OF 2013 (PAR)
BETWEEN:
1. SRI. H.S. SHANKARA,
S/O SHAMBHUGOWDA,
AGED ABOUT 29 YEARS.
2. SRI.KUMAR H.S.,
S/O SHAMBHUGOWDA,
AGED ABOUT 43 YEARS.
APPELLANT NO.1 AND 2 ARE
R/AT HEBBALUKOPPALU VILLAGE,
HEBBAL HOBLI, K.R.NAGARA TALUK,
MYSORE DISTRICT - 571 602.
...APPELLANTS
(BY SRI. B.S. NAGARAJ, ADVOCATE)
Digitally signed
by R DEEPA AND:
Location: HIGH
COURT OF
KARNATAKA 1. SMT LAKSHMAMMA
W/O LATE PAPEGOWDA
SINCE DEAD BY HER LRS.
1(A). SMT. KUMARI,
AGED ABOUT 55 YEARS,
W/O GORE KRISHNEGOWDA,
JANATHA COLONY,
SRIRAMPURA, CHUNCHANAKATTE HOBLI,
K.R. NAGAR TALUK,
MYSURU DISTRICT PIN:57.
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RSA No. 835 of 2013
1(B). SMT. VIJAYAMMA,
AGED ABOUT 45 YEARS,
W/O GOPALA GOWDA,
JANATHA COLONY,
HOSUR VILLAGE & POST,
CHUNCHANAKATTE HOBLI,
K.R. NAGAR TALUK,
MYSURU DISTRICT PIN:57.
1(C). SMT. RATHNAMMA,
AGED ABOUT 40 YEARS,
W/O RAMAKRISHNA [TRACTOR DRIVER]
JANATHA COLONY,
HOSUR VILLAGE & POST,
CHUNCHANAKATTE HOBLI,
K.R. NAGAR TALUK,
MYSURU DISTRICT PIN:57.
1(D). SMT. PREMAMMA,
AGED ABOUT 38 YEARS,
W/O JAYANNA,
ANADANHALLU VILLAGE,
ARKALGUD TALUK,
HASSAN DISTRICT PIN:57.
2. SHANKARAMMA
DEAD BY HER LR
2(A). SRI. SHIVANNA,
S/O MARIGOWDA,
AGED ABOUT 51 YEARS.
3. SRI.SHAMBHUGOWDA,
S/O LATE GOWDAIAH,
AGED ABOUT 66 YEARS.
RESPONDENT 2(A) AND 3 ARE
R/AT HEBBALUKOPPALU VILLAGE,
HEBBAL HOBLI, K.R.NAGARA TALUK,
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RSA No. 835 of 2013
MYSORE DISTRICT - 571 602.
...RESPONDENTS
(BY SRI. A. LOURDU MARIYAPPA , ADVOCATE FOR
PROPOSED R1(A-D);
2(A) SERVED; VIDE ORDER DATED 20.08.2014,
R3 - SERVICE HELD SUFFICIENT)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 25.2.2013 PASSED IN
R.A.NO.9/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE &
JMFC., K.R.NAGAR, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 8.3.2012
PASSED IN O.S.NO.191/2008 ON THE FILE OF THE CIVIL
JUDGE & JMFC., K.R.NAGAR.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This second appeal is filed by the appellants
challenging the judgment and decree dated 25.02.2013,
passed in R.A.No.9/2012 by the Senior Civil Judge and
JMFC, K.R. Nagar, confirming the judgment and decree
dated 08.03.2012 passed in O.S.No.191/2008 by the Civil
Judge and JMFC, K.R. Nagar.
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2. For the sake of convenience, parties are
referred to as per their ranking before the trial Court. The
appellants are defendant No.2 and 4, respondent No.1(a)
to 1(d) are the legal representatives of the plaintiff,
respondent No.2 is defendant No.3 and respondent No.3 is
the defendant No.1.
3. The brief facts leading rise to filing of this
appeal are as under:
The plaintiff filed a suit for partition and separate
possession in respect of suit schedule property. It is the
case of the plaintiff that Gowdaiah was the original
propositus, he was cultivating the suit land as a tenant
and he was in possession of suit schedule property during
his life time. He died living behind his wife Ningamma and
three children i.e., Shankaramma-defendant No.3,
Papegowda i.e., husband of the plaintiff, Shambugowda-
defendant No.1. It is the case of the plaintiff that suit
schedule property is the joint family property of plaintiff
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and defendants, there is no partition effected between the
plaintiff and defendants. The plaintiff and defendants are
the members of the Hindu Undivided Family. The plaintiff
requested the defendants to effect a partition, but the
defendants refused to effect a partition. Hence, cause of
action arose for plaintiff to file suit for partition and
separate possession. Summons were served on defendant
Nos.1 and 3, but they did not choose to appear before the
trial Court. Hence, they were placed as ex-parte.
4. Defendant No.2 filed written statement denying
the averments made in the plaint and it is contended that
the suit schedule property was granted in favour of
Ningamma in her individual capacity and it is her self
acquired property. She has bequeath the suit schedule
property under a register Will dated 09.01.2008, in favour
of defendant No.4. After the demises of Ningamma,
defendant No.4 became the absolute owner of the suit
schedule property by virtue of registered Will dated
09.01.2008. Thereafter, due to advise of elders, suit
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schedule property was divided into two portions under the
partition deeds dated 06.02.2008 and 19.03.2008. 'A'-
schedule property was allotted to the share of defendant
No.2 and 'B'-schedule property was allotted to the share of
defendant No.4. As such, there was partition effected
between the parties, plaintiff has no right to claim the
share in the suit schedule property. Hence, prays to
dismiss the suit.
5. Defendant No.4 filed written statement denying
the averments made in the plaint and he has reiterated
the written statement averments filed by defendant No.2
and prays to dismiss the suit.
6. The trial Court on the basis of pleadings of the
parties framed the following issues.
1. "Whether the plaintiff proves that the suit
schedule property is the joint family property
of the plaintiff and defendants?
2. Whether the plaintiff proves that the plaintiff is
having ½ share in the suit schedule property?
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3. Whether the defendant No.2 proves that the
suit schedule property is the self-acquired
property of Smt.Ningamma ?
4. Whether the defendant No.2 proves that
Smt.Ningamma has executed a Registered
bequeathing Will on 09.01.2008 the suit
schedule property in favour of defendant
No.4?
5. Whether the defendant No.2 further proves
that there was partition by metes and bounds
as per partition deed dated 06.02.2008 and
19.03.2008?
6. Whether this Court has got pecuniary
jurisdiction to try and entertain this suit?
7. Whether the plaintiff is entitled for the relief
claimed ?
8. What order or decree?"
Additional Issues:
1. "Whether defendant No.4 proves that
Smt.Ningamma has executed Registered Will
on a 09.0.2008 bequeathing suit schedule
property in favour of defendant No.4?"
7. Plaintiff in order to prove his case examined
herself as PW1 and examined one witness as PW2 and got
marked 4 documents as Ex.P1 to Ex.P4. Defendant No.2
was examined as DW1 and got marked 4 documents as
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Ex.D1 to Ex.D4 and also examined two witnesses as Dw2
and DW3.
8. The trial court after recording the evidence and
hearing the arguments and on assessment of oral and
documentary evidence answered issue No.1 in the
affirmative, issue No.2 is plaintiff is having ½ share, issue
Nos.3 to 6 and additional issue No.1 in the Negative, issue
No.7 is plaintiff is entitled for the relief claimed and issue
No.8 as per the final order. The suit of the plaintiff was
ordered and decreed that the plaintiff is having ½ share in
the suit schedule property and further defendant No.1 is
having ½ share in the suit schedule property, it is ordered
and decreed that the suit schedule property being
agricultural land is ordered to be divided by appointing a
Court Commissioner under Section 54 of the Civil
Procedure Code and accordingly, directed the office to
draw preliminary decree.
9. Defendant Nos.2 and 4, aggrieved by the
judgment and preliminary decree dated 08.03.2012
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passed in O.S No.191/2008, preferred an appeal in R.A
No.9/2012 on the file of Senior Civil Judge and JMFC K.R.
Nagar.
10. The First appellate court after hearing the
parties, framed the following points for consideration:
1. "Whether the trial court was right in decreeing
the suit holding that the suit schedule
property is joint family property of plaintiff's
husband and first defendant and the plaintiff is
having ½ share in the suit property?
2. Whether the impugned judgment and decree
of the trial court calls for interference by this
court?
3. What order?"
11. The First appellate Court, on re-assessment of
oral and documentary evidence, answered point No.1 in
the affirmative, point No.2 in the negative, point No.3 as
per the final order. The First appellate Court dismissed
the appeal by confirming the judgment and preliminary
decree passed by the trial Court.
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12. Defendant Nos.2 and 4, aggrieved by the
judgments and decrees passed by the Courts below have
this filed second appeal.
13. Heard the learned counsel for defendant Nos.2
and 4 and also learned counsel for the plaintiff.
would submits that the land Tribunal granted occupancy
right in favour of Ningamma, in her individual capacity and
by virtue of grant, she became the absolute owner of the
suit schedule property.
15. He submits that Ningamma had executed a
registered Will bequeathing the suit schedule property in
favour of defendant No.4 and after her demise defendant
No.4 became the absolute owner of suit schedule property
and thereafter, the partition effected between defendant
Nos.2 and 4, 'A'-schedule property was allotted to the
share of defendant No.2 and 'B'-schedule property was
allotted to the share of defendant No.4. Further he
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submits that he has produced a certified copy of the
registered Will and also the partition effected between
defendant Nos.2 and 4. Hence, he submits that the
plaintiff had no right to claim any share in the suit
schedule property. Hence, suit filed by the plaintiff is not
maintainable.
16. It is further stated that the Courts below have
not properly appreciated the material placed on record.
He also submitted that in case, if Court comes to the
conclusion that defendant Nos.2 and 4 have not made out
grounds to allow the appeal, further submitted that
defendant No.3 being a sister, she is entitled for share as
per the amended provision Section 6 of the Hindu
Succession (amendment) Act, 2005. The judgment and
preliminary decree may be passed by the trial Court may
be modified and grant the share to defendant No.3.
Hence, on these grounds he prays to allow the appeal.
17. Per contra, learned counsel for the plaintiff
submits that defendant Nos.2 and 4 have taken a defence
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that Ningamma was absolute owner of the suit schedule
property and she had bequeathed the suit schedule
property in favour of defendant No.4 and in order to prove
the execution of the Will defendant No.4 has not examined
attested witness as required under Section 63 of the
Indian Succession Act and Section 68 of the Indian
Evidence Act.
18. He also submits that defendant No.4 has not
produced the original registered Will and though defendant
Nos.2 and 4 have taken a defence in the written
statement, that there was a partition effected between
defendant Nos.2 and 4. He also submits that though the
defendants have produced the documents, the trial Court
has passed an order to the pay deficit stamp duty on the
said documents. In spite of passing an order by the trial
court defendant Nos.2 and 4 did not paid the stamp duty
and the penalty on the said documents and he submits
that in order to establish that there was a partition
between defendant Nos.2 and 4, the defendants have not
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examined any witnesses. Hence, he submits that the
plaintiff is the wife of Papegowda and she is entitled for
the share in the suit schedule property. Hence, he submits
that the Courts below were justified in passing the
impugned judgments. Hence, on these grounds prays to
dismiss the appeal.
19. It is fairly considered by the learned counsel for
the plaintiff, that if Court come to conclusion that
defendant No.3 is entitle for the share as per Section 6 of
the Hindu Succession (Amendment) Act. The judgment
and decree passed by the trial Court may be modified and
the plaintiff is entitle for 1/3rd share in the suit property.
His submission is placed on record.
20. This Court admitted the appeal on 09.04.2019
to consider the following substantial question of law:
I. "When a landed property is granted by the
Land Tribunal to the wife-Ningamma of
common ancestor -Gowdaiah, does it become
property of joint family?
II. When trial Judge treated the property as joint
family property, whether exclusion of
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Shankaramma, daughter of common ancestor
from the benefit of partition is proper?
III. Whether non-inclusion of female member
Shankaramma, daughter of Gowdaiah is fatal
to the case?
IV. Whether variation in share take place because
of death of plaintiff."
21. Substantial question of law No.I: The
plaintiff in order to substantiate her case plaintiff
examined as PW1 and she has reiterated the plaint
averments in the examination chief, she has deposed that
earlier the original propositus namely Gowdaiah was in
possession of suit schedule property, after his demise the
said land was granted in the name of his wife Ningamma.
After the Gowdaiah demises, Ningamma being the elder
member in the family continued in the possession of suit
schedule property and the land Tribunal granted the
occupancy right in favour of Ningamma. Ningamma died
living behind her children i.e., Shankaramma-defendant
No.2, Papegowda, who is no more, plaintiff is the wife of
Papegowda and Shambhugowda-defendant No.1. The suit
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schedule property is the joint family property of the
plaintiff and the defendants.
22. The plaintiff and defendants being the members
of the Hindu Undivided Family, there is no partition
effected between the plaintiff and defendants. The
plaintiff in order to prove that the said land is the joint
family property produced the documents marked as Ex.P1
is the copy of the RTC in respect of land bearing Sy
No.431, stood in the name of Ningamma W/o Gowdaiah,
Ex.P2 is the Will, which discloses that Ningamma had
bequeathed the suit schedule property in favour of
defendant No.4 and the said Will registered on
09.01.2008, Ex.P3 is the copy of the Order passed by the
land Tribunal. Wherein, land Tribunal granted occupancy
right in favour of Ningamma vide order dated 24.06.1987
and Ex.P4 is the copy of the Genealogical tree of the
family of the plaintiff and defendants.
23. In the course of the cross-examination, it was
suggested to PW1 that the suit schedule property is self
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acquired property of the Ningamma, and Ningamma
executed a registered Will bequeathing the suit schedule
property in favour defendant No.4. The suggestion was
denied by PW1 and further it is also elicited that prior to
Nigamma, Gowdaiah was in possession of the suit
schedule property. The Ningamma being the elder
member of the family, occupancy right granted in favour
of Ningamma.
24. In the course of cross-examination of PW1, it is
not suggested to PW1 that the Ningamma was in
exclusively possession of the property. On the contrary
PW1 has pleaded that Gowdaiah was in possession of the
suit schedule property as a tenant during his life time.
After his demise Ningamma being the elder member of the
family continued in possession of suit schedule property.
Hence, occupancy right was granted in favour of
Ningamma to enure the benefit of the family. Hence,
Ningamma has no independent right to execute a
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registered Will bequeathing the suit schedule property in
favour of defendant No.4.
25. Further in order to prove that the suit schedule
property is the joint family property, plaintiff also
examined one witness, who has deposed in the same line
of PW1. In rebuttal, defendant No.2 was examined as
DW1 and he has reiterated the written statement
averments in the examination-in-chief and in order to
prove that Ningamma had executed a registered Will,
bequeathing the suit schedule property in favour of
defendant No.4, he has produced the certified copy of the
registered Will marked as Ex.D1 and Exs.D2 and D3 are
the RTC extract.
26. On the basis of registered Will, name of
defendant No.4 was entered in the revenue records in
respect of the suit schedule property as per Exs.D2 and D3
and Ex.D4 is the copy of the mutation extract, which
discloses that on the basis of said Will defendant No.4 has
submitted an application to the revenue authorities to
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enter the name of defendant No.4. Revenue authority
after due enquiry passed an order to enter the name of
defendant No.4 in the revenue record on the basis of the
registered Will.
27. Though the name of defendant No.4 is entered
in the revenue record, insofar as validity of the Will is
concerned the revenue authorities have no right to decide
the validity of the Will, ultimately it is the Civil Court, got
jurisdiction to decide the validity of the Will. Further in
order to prove the execution of the Will defendant Nos.2
and 4 have not examined any attesting witness to the
registered Will. Further, defendant Nos.2 and 4 have also
not produced the original registered Will alleged to have
been executed by Ningamma in favour of defendant No.4.
28. In order to prove the execution of the Will, as
per Section 68 of the Indian Evidence Act, one of the
attesting witness to be examined. Admittedly, defendant
Nos.2 and 4 have not examined any attesting witness in
order to prove the execution of the Will. The defendants
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have failed to prove the execution of a Will and further a
Will is surrounded by the suspicious circumstances. Such
as, testator has not explained about the exclusion of other
legal heirs i.e., Shankaramma-defendant No.3, who is the
daughter and further defendant Nos.2 and 4 have not
examined any attesting witness and not produced the
original registered Will.
29. In view of the law lead down by the Hon'ble
Apex Court in the case of Bharpur Singh and Org vs
Shamsher Singh reported in AIR 2009 SC 1766.
Defendant Nos.2 and 4 have failed to remove the
suspicious circumstances. The Courts below were justified
in recording a finding that defendant Nos.2 and 4 have
failed to prove the execution of the Will on the basis of
records.
30. It is the case of the defendant Nos.2 and 4 that
on the basis of the registered Will defendant No.4 became
the absolute owner of the suit schedule property.
Thereafter, there was a partition effected between
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defendant Nos.2 and 4, where 'A'-schedule property was
fallen to the share of defendant No.2 and 'B'-schedule
property was fallen to the share of defendant No.4.
Though they have taken a defence of allotment of the
share in prior partition the defendants have not produced
any documents to establish prior partition. Further, the
trial Court has passed an order to impound document due
to insufficiency of stamp duty and for want of registration.
31. Defendant Nos.2 and 4 have not taken any
steps to pay the deficit stamp duty on the said document
and the said document was not marked on the ground that
the said document is inadmissible in evidence and further
as per the Section 6(3) the Hindu Succession Act, 1956,
which reads as under:
"6. Devolution of interest in coparcenary
property:
(1) XXXX
(2) XXXX
(3) Where a Hindu dies after the
commencement of the Hindu Succession
(Amendment) Act, 2005, his interest in the property
of a Joint Hindu family governed by the Mitakshara
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law, shall devolve by testamentary or intestate
succession, as the case may be, under this Act and
not by survivorship, and the coparcenary property
shall be deemed to have been divided as if a
partition had taken place and,-
(a) the daughter is (b allotted the same
share as is allotted to a son;
(b) the share of the pre-deceased son or a
pre-deceased daughter, as they would
have got had they been alive at the time
of partition, shall be allotted to the
surviving child of such pre-deceased son
or of such pre-deceased daughter; and
(c) the share of the pre-deceased child of a
pre-deceased son or of a pre-deceased
daughter, as such child would have got
had he or she been alive at the time of
the partition, shall be allotted to the
child of such pre-deceased child of the
pre-deceased son or a pre-deceased
daughter, as the case may be."
32. Section 6(3) of the Hindu Succession Act
provides that if a partition is effected it has to be by way
of registered instrument or by Court decree. Admittedly,
defendant Nos.2 and 4 have not produce any record to
establish that there was a prior partition and further the
said document is not marked and trial Court was justified
in recording a finding that defendant Nos.2 and 4 have
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failed to prove that there was a prior partition between the
defendant Nos.2 and 4 and 'A'-schedule property was
allotted to the share of defendant No.2 and 'B'-schedule
property was allotted to the share of defendant No.4.
33. As observed above the land Tribunal granted
the land in favour of Ningamma i.e., common ancestor of
Gowdaiah and it becomes a joint family property. When
this Court has already held that it is a joint family property
the said property is liable to be divided between the
children of Gowdaiah and Ningamma i.e., defendant Nos.1,
3 and husband of the plaintiff. Defendant No.3 being the
daughter of Gowdaiah and Ningamma as per Section 6 of
Hindu Succession Act, daughter is also a coparcener by
birth, she is also entitle for share in the same manner as
that of a son.
34. The trial Court has not granted any share to
defendant No.3, hence, to that extent the judgment and
decree passed by the trial Court needs to be modified.
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35. In view of the above discussion substantial
question I answered in affirmative.
36. Substantial question of law No.II: The trial
Court has committed an error in excluding defendant No.3
by not granting a share. As I have answered substantial
question of law No.I in the affirmative holding that it is a
joint family property and also that defendant No.3 is a
coparcener is entitle for equal share. In view of above
discussion, I answered substantial question of law No.II
partly in the affirmative and partly in the negative.
37. Substantial question of law No.III:
Daughter of Shankaramma was already arrayed as
defendant No.3, in view of the same substantial question
of law No.III does not arise for consideration.
38. Substantial question of law No.IV:
Gowdaiah and Ningamma died living behind defendant
Nos.1, 2 and Papegowda. Papegowda died living behind
the plaintiff. After the demises of Papegowda the
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undivided share Will devolve upon the plaintiff. The trial
Court has granted ½ share to the plaintiff and ½ share to
defendant No.1 and failed to grant share to defendant
No.3. The trial Court has committed an error in not
granting a share to defendant No.3, as she is being the
coparcener is entitle for the share as per the Section 6 of
the Hindu Succession Act.
39. In view of the above discussion substantial
question of law No.IV answered in the affirmative.
40. In view of the above discussion, I proceed to
pass the following:
ORDER
i. The appeal is allowed in part.
ii. The judgment and decree passed by the
trial Court is modified.
iii. The plaintiff is entitle for 1/3rd share, in the
suit schedule property by metes and
bounds, defendant Nos.1 and 3 are entitle
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for 1/3rd share each in the suit schedule
property by metes and bounds.
iv. Rest of the judgments passed by the
Courts below are maintained.
v. Draw preliminary decree.
vi. In view of disposal of the appeal IA
No.1/2013 does not survive for
consideration.
Sd/-
JUDGE
AT
