Karnataka High Court
Sri B M Gangappa S/O Mahadevappa vs Smt B Sharada W/O Late B Veereshappa on 23 October, 2024
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NC: 2024:KHC-D:15356
RFA No. 3010 of 2008
IN THE HIGH COURT OF KARNATAKA,
DHARWAD BENCH
DATED THIS THE 23RD DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO. 3010 OF 2008 (PAR/POS)
BETWEEN:
SRI. B. M. GANGAPPA
S/O. MAHADEVAPPA,
AGED ABOUT 53 YEARS,
R/AT HOSADAROJI,
SANDUR TALUK, BELLARY DISTRICT.
...APPELLANT
(BY SMT. V. VIDYA, ADVOCATE)
AND:
SRI. B. VEERAPPA
ASHPAK
KASHIMSA
SINCE DEAD BY HIS LRS.
MALAGALADINNI
1. SMT. B. SHARADA,
W/O. LATE B. VEERESHAPPA,
Location:
HIGH AGED ABOUT 53 YEARS,
COURT OF
KARNATAKA
2. SMT. SUNITHA W/O. NAGARAJ,
AGED ABOUT 33 YEARS,
3. SMT. SUDHA W/O. ISHWARA,
AGED ABOUT 32 YEARS,
4. SMT. USHA W/O. MANJUNATHA,
AGED ABOUT 32 YEARS,
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RFA No. 3010 of 2008
5. SMT. MAMATHA D/O. LATE VEERESHAPPA,
AGED ABOUT 27 YEARS,
6. SRI. BASAVARAJA
S/O. B. VEERESHAPPA
AGED ABOUT 18 YEARS,
B.DANAPPA
SINCE DEAD BY HIS LRS
7. SMT. VIJAYALAKSHMI @ PARVATHI,
W/O. LATE DANAPPA,
AGED ABOUT 42 YEARS,
8. MADHU, S/O. LATE DANAPPA,
AGED ABOUT 13 YEARS,
REP. BY HIS MOTHER AND
NATURAL GUARDIAN
SMT. VIJAYALAKSHMI
RESPONDENT No.7.
9. KUM. SOUJANYA,
D/O. LATE DANAPPA,
AGED ABOUT 12 YEARS,
REP. BY HIS MOTHER AND
NATURAL GUARDIAN
SMT. VIJAYALAKSHMI
RESPONDENT NO.7.
10. SRI. B. MALLIKARJUNA,
S/O LATE B.MAHADEVAPPA,
AGED ABOUT 43 YEARS,
OCC: AGRICULTURIST,
11. SRI. B. KUMARASWAMY,
S/O. LATE B. MAHADEVAPPA,
AGED ABOUT 41 YEARS,
OCC: AGRICULTURIST,
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RFA No. 3010 of 2008
RESPONDENTS 1 TO 11 ARE
R/O. HOSAMALAPANAGUDI,
HOSPET TALUK,
BELLARY DISTRICT.
12. SRI. L. BASAVARAJA,
S/O. LATE L. PAMPANNA,
AGED ABOUT 48 YEARS,
R/AT KURABARA ONI,
HOSPET, BELLARY DISTRICT.
13. SRI. K. SANJEEVAPPA,
S/O K. HANUMANTHAPPA,
AGED ABOUT 52 YEARS,
R/AT: KUDATHINI VILLAGE,
BELLARY DISTRICT.
...RESPONDENTS
(BY SRI. K.S. PATIL, ADVOCATE FOR R-1, R-7, R-10 & R-11;
SRI. M.S. SATISH, ADVOCATE FOR R-12 & R-13)
---
THIS RFA IS FILED U/O XLI RULE 1 R/W SECTION 96 OF
CPC., PRAYING TO CALL FOR RECORDS AND SET ASIDE THE
JUDGMENT AND DECREE PASSED BY THE ADDL. CIVIL JUDGE
(SR.DN), HOSPET, IN O.S.NO.123/2005 DATED 01.09.2008 IN
SO FAR AS IT RELATES TO DECREEING THE SUIT OF THE
PLAINTIFFS FOR PARTITION AND ALLOW THIS APPEAL WITH
COSTS.
THIS APPEAL COMING ON FOR FINAL HEARING THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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RFA No. 3010 of 2008
CORAM: THE HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE
ORAL JUDGMENT
1. Heard the learned counsel appearing for the
appellant and the learned counsel appearing for the
respondents.
2. This appeal is directed against the judgment and
decree granting 1/5th share to the plaintiffs and
defendants No.2 to 4 in the suit 'A' and 'B' schedule
properties, except items No.6 and 7 of 'A' schedule
properties. This appeal is by defendant No.1 in O.S.
No.123/2005 on the file of the Additional Civil Judge,
Hospet.
3. Admittedly, one B. Mahadevappa was the propositus.
He died on 30.01.1981, leaving behind five sons and
three daughters. The suit is filed by one of the sons,
namely B. Veerappa. The remaining sons are
arrayed as defendants. One of the sons, B.
Danappa, died during the pendency of the suit and
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his legal representatives were brought on record.
Defendants No.5 and 6 are the purchasers of some of
the properties.
4. On a pointed question by this Court, learned counsel
for the appellant and respondents jointly submit that,
B.Mahadevappa, who died on 30.01.1981, was also
survived by three daughters, apart from the five sons
referred to above. Admittedly, the suit is one for
partition. Assuming that the properties were the
ancestral properties of B.Mahadevappa, the
daughters are entitled to a share in the properties of
B. Mahadevappa, if he had died intestate. Assuming
that the properties are self-acquired properties, and
if had died intestate then also the daughters inherit
an equal share under Section 8 of the Hindu
Succession Act, 1956.
5. The plaintiffs claimed that, there was no partition
during the life time of father B. Mahadevappa and
even after his death.
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6. Defendant No.1 took the stand that B.Mahadevappa
effected a settlement/partition during his lifetime in
1969.
7. Under these circumstances, the following point arises
for consideration:
a. Whether the suit for partition claiming
share in the property of the father is
maintainable without impleading the
daughters?
8. In case the plaintiffs are to contend that the father
died intestate without effecting any partition during
his lifetime or without executing any settlement deed
in his life time, the daughters also become necessary
parties, as the daughters succeed to the father's
properties either under Section 8 of the Hindu
Succession Act or his in the interest of the father
under Section 6 as it stood before the amendment
of Hindu Succession Act in 2005.
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9. Since defendant No.1 is contending that the father
executed the settlement/partition in the year 1969,
that contention has to be adjudicated only in the
presence of the daughters who will have equal share
in the property in case such partition has not taken
place.
10. The daughters are not made parties to this suit and
they are necessary parties to the suit. This fact is not
noticed by the Trial Court.
11. Under these circumstances, keeping all the
contentions open, without expressing anything on
the merits of the matter, the following order is
passed:
ORDER
i. The appeal is allowed in part.
ii. The impugned judgment and decree dated
01.09.2008, passed by the Addl. Civil Judge
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(Sr.Dn.), Hospet, in O.S.No.123/2005, are set
aside.
iii. The matter is remitted to the Trial Court for
fresh consideration in accordance with law.
iv. The Trial Court shall proceed with the case as
per the law, ensuring that all necessary parties,
including the daughters, are impleaded.
v. The parties before this Court, represented by
the counsel shall appear before the Trial Court
on 11.11.2024, without waiting for any further
notice. The Trial Court shall issue notices to all
other parties in this appeal.
vi. Registry is directed to transmit the Trial Court
records forthwith.
vii. No order as to cost.
Sd/-
(ANANT RAMANATH HEGDE)
JUDGE
gab
CT:ANB
