Karnataka High Court
Lagama S/O Basappa Aidu @ Gireppagol vs Gundawwa W/O Murasing Maladinni on 6 November, 2024
-1-
NC: 2024:KHC-D:16223
RSA No. 5374 of 2013
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 6TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MRS JUSTICE K.S.HEMALEKHA
REGULAR SECOND APPEAL NO. 5374 OF 2013
BETWEEN:
1. LAGAMA S/O. BASAPPA AIDU
@ GIREPPAGOL, AGE: 25 YEARS,
OCC. AGRICULTURE, R/O. BEERANOHOLI,
TAL. HUKKERI, DIST. BELGAUM-591309.
2. NAGAPPA S/O. BASAPPA AIDU
@ GIREPPAGOL, AGE: 23 YEARS,
OCC. AGRICULTURE, R/O. BEERANOHOLI,
TAL. HUKKERI, DIST. BELGAUM-591309.
3. YALLAWWA W/O. BASAPPA AIDU
@ GIREPPAGOL,
AGE: 55 YEARS, OCC. HOUSE WORK.
R/O. BEERANOHOLI, TAL. HUKKERI,
DIST. BELGAUM-591309.
4. ANNAWWA W/O. LAXMAN KALLATTI
AGE: 35 YEARS, OCC. HOUSE WORK,
R/O. ISLAMPUR, TAL. HUKKERI,
DIST. BELGAUM-591309.
...APPELLANTS
Digitally
VISHAL
signed by
VISHAL
NINGAPPA
(BY SRI. SHIVARAJ S. BALLOLI, ADVOCATE)
NINGAPPA PATTIHAL
PATTIHAL Date:
2024.11.13
11:27:49
+0530
AND:
1. GUNDAWWA W/O. MURASING MALADINNI,
AGE: 54 YEARS, OCC. AGRICULTURE,
R/O. BEERANOHOLI, TAL. HUKKERI,
DIST. BELGAUM-591309.
2. SATTEWWA W/O. RAYAPPA SHEKALI,
SINCE DECEASED REPRESENTED BY HER LRS.,
2A. SMT. RENUKA W/O. SUBHASH PATIL,
AGE: 36 YEARS, OCC. HOUSEHOLD WORK,
R/O. BHUTRAMANAATTI, TQ. BELAGAVI,
DIST. BELAGAVI-591156.
SMT. LAGAMAVVA W/O. YALLAPPA SONARAVADI,
-2-
NC: 2024:KHC-D:16223
RSA No. 5374 of 2013
2B. AGE: 32 YEARS, OCC. HOUSEHOLD WORK,
R/O. MARANHOL, TQ. BELAGAVI,
DIST. BELAGAVI-591154.
3. NAGAPPA @ SIDRAM RAMAPPA PATIL
AGE: 29 YEARS, OCC. AGRICULTURE,
R/O. HALAKARNI, TQ. GHADAHINGLAJ,
DIST. KOLHAPUR.
4. KUMARI SHOBA D/O. SIDRAM
@ NAGAPPA PATIL, AGE: 06 YEARS, OCC: NIL,
SINCE MINOR REPRESENTED BY HIS FATHER
NAGAPPA @ SIDRAM RAMAPPA PATIL,
R/O. HALAKARNI, TAL. GHADAHINGLAJ,
DIST. KOLHAPUR.
5. KUMAR RAMALING S/O. NAGAPPA
@ SIDRAM PATIL, AGE: MINOR, OCC. NIL,
SINCE MINOR REPRESENTED BY HIS FATHER
NAGAPPA @ SIDRAM RAMAPPA PATIL,
R/O. HALAKARNI, TQ. GHADAHINGLAJ,
DIST. KOLHAPUR.
...RESPONDENTS
(BY SMT. S P PATIL, ADVOCATE FOR C/R1;
R2(A), R2(B), R3-ARE NOTICE SERVED;
R4 AND R5 ARE MINORS REPRESENTED BY R3)
THIS RSA IS FILED U/S.100 OF CPC, AGAINST THE
JUDGEMENT & DECREE DATED 07.02.2013 PASSED IN
R.A.NO.64/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE,
HUKKERI, DISMISSING THE APPEAL, FILED AGAINST THE JUDGMENT
AND DECREE DATED 20.10.2011 AND THE DECREE PASSED IN O.S.
NO.190/2008 ON THE FILE OF THE CIVIL JUDGE & JMFC., HUKKERI,
PARTLY DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE
POSSESSION.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY JUDGMENT
WAS DELIVERED THEREIN AS UNDER:
-3-
NC: 2024:KHC-D:16223
RSA No. 5374 of 2013
ORAL JUDGMENT
(PER: THE HON'BLE MRS JUSTICE K.S.HEMALEKHA)
This Court while admitting the appeal on 20.08.2018
framed the following substantial question of law;
"In the light of the admission of the plaintiff
herself in the plaint that propositus Annappa died
on 24.01.1969 whether the Courts below were
right in granting 1/3rd share to the plaintiff in the
suit schedule properties?"
2. Suit for partition and separate possession
seeking ½ share in the suit schedule property. The trial
Court decreed the suit and held that the plaintiff is entitled
for 1/3rd share in the suit schedule property. Aggrieved,
the defendants preferred appeal before the First Appellate
Court. The First Appellate Court while re-appreciating and
re-considering the entire oral and documentary evidence,
concurred with the judgment and decree of the trial Court.
Aggrieved, the defendants are before this Court in the
regular second appeal. The only question that arises for
consideration is that, 'Whether the death of the propositus
NC: 2024:KHC-D:16223
is a criteria to be considered by the Courts while granting
share to the daughter'.
3. The family genealogy tree is culled out as
under:
Annappa died on 24.01.1969
Gundavva Subbavva
(dead) (Dead)
Sattevva Basappa Gundavva
(D4) (D1) (Plaintiff)
Lagama Nagappa
(D2) (D3)
4. The relationship between the plaintiff and the
defendants is not in dispute. It is also not in dispute that
the suit property originally belonged to Annappa. As the
law prevailed at the time of admission, the substantial
question of law came to be framed by this Court.
5. The law is well settled that the daughter is to be
treated as a coparcener and entitled for share in the
ancestral joint family property, and the right of the
NC: 2024:KHC-D:16223
daughter in the coparcenary is by birth and it is not
necessary that the father coparcener should be living as
on 09.09.2005. The Hon'ble Apex Court in the case of
Vineeta Sharma Vs. Rakesh Sharma and others1
(Vineeta Sharma) has held at para No.129 as under;
"129. Resultantly, we answer the reference as under:
(i) 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.
(ii) 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.
(iii) Since the right in coparcenary is by birth, it is
not necessary that father coparcener should be
living as on 9.9.2005.
(iv) 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
ILR 2020 KAR 4370
NC: 2024:KHC-D:16223
actual partition or disruption of coparcenary. The
fiction was only for the purpose of ascertaining
share of deceased coparcener when he was
survived by a female heir, of Class-I 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.
(v) In view of the rigor of provisions of
Explanation to Section 6(5) of the Act of 1956, a
plea of oral partition cannot be accepted as the
statutory recognised mode of partition effected by a
deed of partition duly registered under the
provisions of the Registration Act, 1908 or effected
by a decree of a court. However, in exceptional
cases where plea of oral partition is supported by
public documents and partition is finally evinced in
the same manner as if it had been affected by a
decree of a court, it may be accepted. A plea of
partition based on oral evidence alone cannot be
accepted and to be rejected out rightly."
Emphasis supplied
NC: 2024:KHC-D:16223
6. In light of the settled propositions of law, the
Courts below were justified in arriving at a conclusion that
the plaintiff is entitled for 1/3rd share, accordingly, the
substantial question of law is answered. The manner in
which the Courts below have assessed the entire oral and
documentary evidence, this Court is of the considered view
that the same does not warrant any interference under
Section 100 CPC. Accordingly, this Court pass the
following:
ORDER
(i) The Regular Second Appeal is hereby
dismissed.
(ii) The judgment and decree of the Courts
below stands confirmed.
Sd/-
(JUSTICE K.S.HEMALEKHA)
PJ/ CT:PA
