Karnataka High Court
Shantavva W/O. Padmappa Dindalkoppa vs Dharendra Alias Yallappa S/O. Laxmappa ... on 2 September, 2024
Author: Hanchate Sanjeevkumar
Bench: Hanchate Sanjeevkumar
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NC: 2024:KHC-D:12610
RSA No. 101017 of 2023
IN THE HIGH COURT OF KARNATAKA
DHARWAD BENCH
DATED THIS THE 02ND DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
REGULAR SECOND APPEAL NO. 101017 OF 2023 (PAR/POS)
BETWEEN:
1. SHANTAVVA W/O. PADMAPPA
DINDALKOPPA
AGE: 55 YEARS, OCC: HOUSEHOLD,
R/O. GARAG, TQ. & DIST. DHARWAD.
2. PADMAVATHI W/O. YALLAPP SATTUR,
AGE: 53 YEARS, OCC: HOUSEHOLD,
R/O. DUNDASI, TQ: SHIGGAON.
3. MAHADEVI @ JAYAVVA W/O. VASAPPA
HONNAPPANAVAR,
AGE: 45 YEARS, OCC: HOUSEHOLD,
R/O. BANNUR, TQ: SHIGGAON-571101.
Digitally signed
by YASHAVANT 4. SAROJA W/O. KUBENDRA
NARAYANKAR PATTANSHETTI
Location: HIGH AGE: 39 YEARS, OCC: HOUSEHOLD,
COURT OF R/O. VANNUR, TQ. BAILHONGAL,
KARNATAKA
DHARWAD DIST. BELAGAVI-591119.
BENCH ...APPELLANTS
DHARWAD (BY SRI ABHINANDAN M. GUNDAWADE, ADVOCATE.)
AND:
1. DHARENDRA @ YALLAPPA
S/O. LAXMAPPA AVARADI,
AGE: 68 YEARS, OCC: PRIVATE WORK,
R/O. RAJAHAMSA GALLI,
BELAGAVI-591119.
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RSA No. 101017 of 2023
2. CHAANDRAPPA S/O. LAXMAPPA AVARADI
AGE. 65 YEARS, OCC: AGRICULTURE,
R/O. DYAMAVVANA GUDI ONI,
TADAS, TQ. SHIGGAON-581193.
3. MAHAVEER S/O LAXMAPPA AVARADI
AGE: 47 YEARS, OCC: AGRICULTURE,
R/O. DYAMAVVANA GUDI ONI,
TADAS, TQ: SHIGGAON-581193.
...RESPONDENTS
(BY SRI S.M.JATTI, ADVOCATE FOR C/R-1 AND R2;
SRI Y.R.JOGI, ADVOCATE FOR R3.)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 READ WITH ORDER XLII RULE 1 OF THE CODE OF CIVIL
PROCEDURE, 1908, PRAYING TO SET ASIDE THE JUDGMENT AND
DECREE DATED 08.01.2016 PASSED IN O.S.NO.242/2014 BY III
ADDITIONAL SENIOR CIVIL JUDGE, HUBBALLI (ITINERARY COURT AT
KALAGHATAGI) AND ALSO THE ORDER DATED 12.09.2023, PASSED
IN R.A.NO.146/2019 BY THE IV ADDITIONAL DISTRICT AND
SESSIONS JUDGE, DHARWAD AND TO DECREE THE SUIT FILED BY
THE PLAINTIFFS/APPELLANTS BY ALLOTTING EQUAL SHARE TO THE
PLAINTIFFS AND ETC.,.
THIS APPEAL COMING ON FOR FURTHER ARGUMENTS THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
ORAL JUDGMENT
This regular second appeal is filed by the plaintiffs
challenging the order dated 12.09.2023, passed in
R.A.No.146/2019, by the IV Addl. District and Sessions
Judge, Dharwad ('First Appellate Court' for short), thereby
dismissing the appeal on the ground of delay. Hence, the
judgment and decree dated 08.01.2016, passed in
O.S.No.242/2014, by the III Addl. Senior Civil Judge,
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Hubballi (Itinerary Court of Kalaghatagi) ('trial Court' for
short), is amounting to confirmation on the view taken by
the trial Court.
2. The plaintiffs are appellants and defendants are
respondents in this regular second appeal. For the purpose of
convenience, ranking of the parties is referred to as per their
status before the trial Court.
3. The plaintiffs have filed a suit for partition and
separate possession. It is the case of the plaintiffs that the
plaintiffs and defendants father one Laxman is the original
propositus and his wife is Kamalakshi, both died. The
plaintiffs and defendants are children of Laxman and
Kamalakshi. Therefore, the plaintiffs are daughters and
defendants are sons of the said Laxman and Kamalakshi. It
is contended that the suit schedule properties are ancestral
and joint family properties. The trial Court decreed the suit
by granting 1/28th share each to the plaintiffs.
4. Being aggrieved by the awarding of lesser share
to the plaintiffs of 1/28th portion, the plaintiffs filed appeal
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before the First Appellate Court. The First Appellate Court
has dismissed the appeal only on the ground of delay, as
there was 1284 days delay in preferring the appeal without
going to discuss on merits involved in the case. Being
aggrieved by this order, the plaintiffs have preferred the
present second appeal.
5. This Court on 23.04.2024 has admitted the
appeal to consider the following substantial questions of law.
i. Whether, under the facts and circumstances
involved in the case, the trial Court is
justified in granting decree for partition of
giving 1/28th share each to the plaintiff Nos.1
to 4 which is contrary to the principle of law
laid down by the Honorable Supreme Court
in the case of Vineeta Sharma v. Rakesh
Sharma and others reported in (2020) 9
SCC 1 and as per Section 6 of the Hindu
Succession Act?
ii. Whether, under the facts and circumstances
involved in the case, the First Appellate Court
is justified in dismissing the appeal of 1284
days delay without considering the case on
its merits?
6. Heard the arguments addressed by the learned
counsels appearing for the respective parties and perused
the material placed on record.
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7. The relationship between the plaintiffs and
defendants is admitted. They are children of original
propositus Laxman and Kamalakshi. The plaintiffs are
daughters and defendants are sons of Laxman and
Kamalakshi. The trial Court by following the judgment of
Hon'ble Supreme Curt in the case of Prakash and others
vs. Phulavathi and others, reported in 2015(4) KCCR
3265, has decreed the suit by granting 1/28th share each to
the plaintiffs. The trial Court has adopted the theory of
notional partition recognizing the defendants as the only
coparceners and without considering the plaintiffs as
coparceners, awarded 1/28th share each to the plaintiffs.
8. The First Appellate Court without going on merits
involved in the case, dismissed the appeal only on the
ground of delay. The First Appellate Court has observed that
there is no proper explanation for causing delay in preferring
the appeal and rejected the documents submitted by the
appellants/plaintiffs that plaintiff No.4 was looking after the
case but she has fallen ill, hence could not contact their
advocate and under these circumstance, the delay caused.
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But the First Appellate Court does not believe this and
dismissed the appeal.
9. When the status of the plaintiffs and defendants
are daughters and sons of original propositus Laxman and
Kamalakshi is not disputed and the suit schedule properties
are joint family and ancestral properties is also not disputed,
then the remaining question to be considered is whether the
plaintiffs being daughters are to be recognized as
coparceners or not. Section 6 of the Hindu Succession Act is
amended by Act No.39 of 2005 w.e.f. 09.09.2005,
recognizing the daughters as coparceners and are entitled for
equal share as that of sons. Therefore, the plaintiffs being
the daughters are coparceners and are entitled for equal
share as that of sons. The Hon'ble Supreme Court also in the
case of Vineeta Sharma v. Rakesh Sharma and others
reported in (2020) 9 SCC 1, has held that the daughters
being the coparceners as recognized under section 6 of the
Hindu Succession Act are entitled for equal share as that of
sons. Therefore, in this regard the trial Court has committed
error by granting only 1/28th share by adopting notional
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theory of partition. Even the First Appellate Court could have
rectified the judgment and decree of the trial Court, but only
on the ground of delay, though there is merit and substance
in the claim of the plaintiffs. Therefore, the First Appellate
Court too has committed error. Hence the order passed by
the First Appellate Court is liable to be set aside and the
judgment and decree passed by the trial Court is liable to be
modified.
10. Accordingly considering the factors that the
original propositus Laxman and Kamalakshi have four
daughters (plaintiffs No.1 to 4) and three sons (defendants
No.1 to 3), they are entitled for 1/7th share each in the suit
schedule properties. Therefore, to this extent the judgment
and decree passed by the trial Court is to be modified.
Accordingly, the substantial questions of law No.1 and 2 are
answered in the negative holding that the trial Court is not
justified in granting only 1/28th share and the First Appellate
Court is not justified in dismissing the appeal only on the
ground of delay. Hence, I proceed to pass the following:
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ORDER
i) The appeal is allowed.
ii) The order dated 12.09.2023, passed in
R.A.No.146/2019, by the IV Addl. District and Sessions
Judge, Dharwad, is hereby set aside.
iii) The judgment and decree dated 08.01.2016,
passed in O.S.No.242/2014, by the III Addl. Senior Civil
Judge, Hubballi (Itinerary Court of Kalaghatagi), is hereby
modified, thereby it is ordered that the plaintiffs are entitled
for 1/7th share each in the suit schedule properties.
iv) The plaintiffs and defendants are entitled for 1/7th
share each in the suit schedule properties by metes and
bounds and are entitled for separate possession.
v) No order as to costs.
vi) Draw decree accordingly.
Sd/-
(HANCHATE SANJEEVKUMAR)
JUDGE
MRK
CT:GSM
