Karnataka High Court
Mrs. Susheelamma vs Mrs. Padma on 7 March, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 2251 of 2012
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF MARCH, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 2251 OF 2012 (PAR)
BETWEEN:
1. MRS. SUSHEELAMMA
W/O. LATE SANNALINGEGOWDA,
SINCE DECEASED, IS REPRESENTED BY
HER LRS APPELLANT NO.2 & 3
2. MRS. MEENAKSHI
W/O. GOWDAIAH,
AGED ABOUT 44 YEARS,
3. MRS. H.S. SHOBHA
W/O. JAYANNA,
AGED ABOUT 40 YEARS,
ALL ARE RESIDING AT
HEBBALU KOPPAL VILLAGE,
Digitally signed
by SHARANYA T K.R.NAGARA TALUK
Location: HIGH
COURT OF (AMENDED VIDE COURT ORDER DATED 23.01.2024)
KARNATAKA
...APPELLANTS
[BY SRI. PRITHVIRAJ B.N., ADVOCATE FOR
APPELLANTS NO.2 & 3,
(APPELLANTS NO.2 & 3 ARE LRS OF APPELLANT NO.1,
VIDE ORDER DATED 23.01.2024)]
AND:
1. MRS. PADMA
W/O. LATE H.S. RAVI,
AGED ABOUT 34 YEARS,
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RSA No. 2251 of 2012
2. SADESHA
S/O PADMA
AGED ABOUT 16 YEARS,
3. KUM. SAHANA
D/O PADMA
AGED ABOUT 14 YEARS,
RESPONDENTS 2 & 3 ARE MINORS
REPRESENTED BY THEIR NATURAL
GUARDIAN MRS. PADMA,
ALL ARE RESIDING AT
HEBBALU KOPPAL VILLAGE,
K.R. NAGARA TALUK.
...RESPONDENTS
[BY SRI N.BYREGOWDA, ADVOCATE FOR R1
(R2 & R3 ARE MINORS REPRESENTED BY R1)]
THIS RSA IS FILED U/S.100 OF CPC AGAINST THE
JUDGEMENT AND DECREE DTD: 4.7.2012 PASSED IN
R.A.NO.17/2011 ON THE FILE OF SENIOR CIVIL JUDGE AND
JMFC, K.R.NAGAR, ALLOWING THE APPEAL AND MODIFYING
THE JUDGEMENT AND DECREE DTD: 25.6.2011 PASSED IN
O.S.NO.148/2008 ON THE FILE OF CIVIL JUDGE AND JMFC,
KRISHNARAJANAGAR.
THIS APPEAL, COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RSA No. 2251 of 2012
JUDGMENT
This matter is listed for admission and I have heard the
learned counsel for the appellants and learned counsel for the
respondent No.1.
2. The parties are referred to in the original ranking
before the Trial Court, in order to avoid confusion and for the
convenience of the Court.
3. The suit is filed by mother-in-law and her two
daughters against the daughter-in-law, who is arrayed as
defendant No.1 i.e., the wife of son of the plaintiff No.1 and
also against her two grand-children for the relief of partition
and separate possession of the suit schedule properties to the
extent of their share in the same.
4. The suit schedule properties are agricultural lands.
It is the specific case of the plaintiffs that suit schedule
properties are the joint family properties of the plaintiffs and
her deceased son H.S. Ravi and they were enjoying the same
jointly. The said H.S.Ravi was working as a Teacher in
Government Primary School, Hosakoppal and died on
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22.02.2008. The plaintiffs submit that defendant No.1, without
notice to them got changed the RTC pertaining to the suit
schedule properties in her name stating that she has inherited
the same from her husband. It is also contended that plaintiffs
are also having share in the suit schedule properties. The
plaintiffs submit that plaintiff No.1 being the Class-I heir is
having share in the properties of H.S. Ravi also. The defendant
No.1 has not divided the suit schedule properties by metes and
bounds. Hence, they are entitled for a share in the suit
schedule properties.
5. In response to the suit claim, the defendant No.1
appeared and filed the written statement contending that
plaintiff No.3 is not the member of joint family consisting of
plaintiff Nos.1 and 2 and deceased H.S. Ravi. It is contended
that plaintiff No.3 was adopted by one H.B. Ramegowda,
S/o. Boregowda, when she was aged about one year. As
plaintiff No.3 was given in adoption to H.B. Ramegowda, she
has lost her right in properties of joint family. The defendant
No.1 further contend that suit schedule properties are exclusive
properties of defendant No.1 and as such, the plaintiffs are not
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having any right, title or interest over the suit schedule
properties.
6. The Trial Court having considered the pleadings of
the parties, framed the issues whether the plaintiffs prove that
they have got 2/4th share in the suit schedule properties,
whether the plaintiffs prove that suit schedule properties are
joint family properties of plaintiffs and defendants and whether
the defendant Nos.1, 2 and 3 prove that the suit schedule
properties are individual property of late H.S. Ravi.
7. The Trial Court allowed the parties to lead evidence
and accordingly, the plaintiff No.3 has been examined as P.W.1
and she has produced the documents as Exs.P1 to P10 and
defendant No.1 examined himself as D.W.1 and examined a
witness as D.W.2 and produced the documents as Exs.D1 and
D2.
8. Having considered the material on record, the Trial
Court, particularly answered issue No.1 as 'partly affirmative',
issue No.2 as 'affirmative' and issue No.3 as 'negative and the
contention of the defendants was negated and decreed the suit
by granting the partition of 17/192nd share in favour of plaintiff
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No.1 and 5/16th share each in favour of plaintiff Nos.2 and 3.
The defendant No.1 was granted 5/192nd share and defendant
Nos.2 and 3 were granted 25/192nd share each in the suit
schedule properties. Being aggrieved by the said judgment and
decree, an appeal is filed before the First Appellate Court in
R.A.No.17/2011. The First Appellate Court also, having re-
assessed the material on record, allowed the appeal in part by
modifying the share i.e., the plaintiff No.1 is entitled for 17/96th
share and plaintiff Nos.2 and 3 each are entitled for 1/8th share
in the suit schedule properties. Being aggrieved by the said
judgment and decree, the present second appeal is filed by the
plaintiffs before this Court and during the pendency of the
appeal, the plaintiff No.1 has passed away.
9. The main contention of the appellants/plaintiffs in
this appeal is that the First Appellate Court erred in coming to
the conclusion that the provisions of Hindu Succession Act has
no application to the facts and circumstances of the case, in
view of the judgment of the Apex Court in G. SHEKAR VS.
GEETHA AND OTHERS reported in 2009 SAR (CIVIL) 609
and totally erred in deciding the allotment of share to the
appellant Nos.2 and 3, who are daughters of late
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Sannalingegowda. The First Appellate Court totally erred in
coming to the conclusion that Sannalingegowda and his son
H.S. Ravi were having half share in the suit schedule properties
and the very apportionment is erroneous. Hence, it requires
interference.
10. Learned counsel for the appellants would contend
that suit was filed in 2008 subsequent to amendment and when
the Trial Court has held issue No.2 in 'affirmative', in coming to
the conclusion that properties are ancestral properties, the Trial
Court ought to have granted equal share to all of them and
instead, committed an error. The counsel also brought to notice
of this Court the admission given by P.W.1 admitting that the
property belongs to Sannelingegowda and also no dispute with
regard to the relationship between the parties in her admission.
It is also the case of the plaintiff before the Trial Court that
after the death of late H.S. Ravi, the defendant No.1 got
changed the revenue records in her name.
11. Learned counsel for the respondent No.1 also not
disputes the relationship between the parties and though the
respondent No.1 claims that property exclusively belongs to
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husband of the first plaintiff, in order to substantiate the same,
no material is placed before the Trial Court and the Trial Court
answered issue No.3 as 'negative' and comes to the conclusion
that properties belong to the family.
12. Having perused the material on record, the dispute
is only with regard to the apportionment is concerned.
Admittedly, plaintiff Nos.2 and 3 are son and daughter of
Sannalingegowda and the defendant No.1 is daughter-in-law of
said Sannalingegowda i.e., wife of his son H.S. Ravi. During
the pendency of this appeal, Susheelamma, who is plaintiff
No.1 has passed away.
13. Learned counsel for the appellants would submit
that during the life time of Susheelamma, she has executed the
Will in favour of H.S. Shoba i.e., plaintiff No.3 and this Court
cannot decide the same in this second appeal and if any Will is
executed in favour of plaintiff No.3, the plaintiff No.3 can
agitate the same by producing the document of Will. The only
question before this Court is with regard to how much share the
parties are entitled to. In view of the admission on the part of
defendant No.1 that properties belong to Sannalingegowda and
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when Sannalingegowda died intestate leaving behind his wife
and three children, the property devolves upon them as 1/4th
share and defendant No.1 is entitled for 1/4th share i.e., the
share of her husband H.S.Ravi and the plaintiff Nos.1 to 3 are
entitled for remaining 3/4th share as wife and two children and
both the Courts have lost sight of the fact that they are Class-I
heirs of the deceased Sannalingegowda and erroneously
proceeded to apportion the properties and the fact that already
amendment was brought in 2005 itself and suit is filed in 2008
is not in dispute and the Trial Court ought to have taken note of
the said fact into consideration.
14. Now, in view of the judgment of the Apex Court in
VINEETA SHARMA AND RAKESH SHARMA & ORS. reported
in AIR 2020 SC 3717, the daughter is also entitled for equal
share as that of a son. Hence, it is appropriate to award 1/4th
share each to the plaintiff Nos.1 to 3 i.e., 3/4th share and
defendant No.1 is entitled for 1/4th share and if any
testamentary document is executed by plaintiff No.1, as
contended by the learned counsel for the respondent No.1 in
respect of her share is concerned in favour of plaintiff No.3, the
same is subject to production and proving of the document of
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Will. If Will is not proved, automatically the parties are entitled
for equal share in the share of Susheelamma i.e., 1/4th share.
15. Accordingly, the appeal is disposed of modifying the
judgment and decree of the Trial Court in above terms.
Sd/-
JUDGE
ST
