Karnataka High Court
Smt. Geetabai W/O Shashikumar Chougule vs Smt. Kumudini W/O Anantraj Hamigi on 3 September, 2024
Author: B.M. Shyam Prasad
Bench: B.M.Shyam Prasad
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RFA No. 100212 of 2018
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 3RD DAY OF SEPTEMBER, 2024
PRESENT
THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD
AND
THE HON'BLE MR. JUSTICE C M JOSHI
REGULAR FIRST APPEAL NO. 100212 OF 2018 (PAR/POS)
BETWEEN:
1. SMT. GEETABAI
W/O. SHASHIKUMAR CHOUGULE
SINCE DECEASED BY HER LRS
Digitally signed
by YASHAVANT
NARAYANKAR
i.e. APPELLANT NO.2 AND RESPONDENT NO.1-3,
Location: HIGH
COURT OF
WHO ARE ALREADY ON RECORD.
KARNATAKA
2. SMT. PADMINI
W/O. RAVIKUMAR RAMGOND
(D/O. SMT. GEETABAI AND LATE
SHRI. SHASHIKUMAR CHOUGULE),
AGE ABOUT: 49 YEARS,
OCC: HOUSEHOLD WORK,
R/O: NO.87, SHANTINAGAR,
TILAKWADI, BELAGAVI.
...APPELLANTS
(BY SMT. SUNITHA P. KALASOOR, ADVOCATE FOR APPELLANT
NO. 2;
APPELLANT NO.1 DECEASED )
AND:
1. SMT. KUMUDINI W/O. ANANTRAJ HAMIGI
(D/O. SMT. GEETABAI AND LATE
SHRI. SHASHIKUMAR CHOUGULE),
AGE ABOUT: 53 YEARS,
OCC: HOUSEHOLD WORK,
R/O: CHANDRAKIRAN PLAZA,
KHUTWAD NAGAR, NASIK,
MAHARASHTRA STATE.
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RFA No. 100212 of 2018
2. SMT. VEENA @ PADMAVATI
W/O. LATE SUNEELKUMAR CHOUGULE,
AGED ABOUT: 45 YEARS, OCC: BUSINESS,
R/O: 8TH MAIN, 19TH CROSS,
MALLESWARAM, BENGALURU.
3. KUMARI RASHMI
D/O. SMT. VEENA @ PADMAVATI AND
LATE SUNEELKUMAR CHOUGULE,
AGED ABOUT: 20 YEARS, OCC: STUDENT,
R/O: 8TH MAIN, 19TH CROSS,
MALLESWARAM, BENGALURU.
...RESPONDENTS
(BY SRI. MAHANTESH S. HIREMATH, ADVOCATE FO R2;
SRI. S.K. KAYAKAMATH AND
SRI. L.M. KURAHATTI, ADVOCATES FOR R3;
SRI. ASHOK I. BADIGER, ADVOCATE FOR R1)
THIS REGULAR FIRST APPEAL FILED UNDER SEC. 96 OF
CPC., AGAINST THE JUDGMENT AND DECREE DATED:
13.03.2018 PASSED IN O.S.NO.65/2016 ON THE FILE OF THE I
ADDITIONAL SENIOR CIVIL JUDGE, HUBBALLI, PARTLY
DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE
POSSESSION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD
AND
THE HON'BLE MR. JUSTICE C M JOSHI
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RFA No. 100212 of 2018
ORAL JUDGMENT
(PER: THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD)
This appeal is by the plaintiffs in O.S.No.65/2016 on
the file of the I-Additional Senior Civil Judge, Hubballi [for
short 'the civil Court']. The appellants have succeeded in the
suit but only in part and therefore, they are in appeal. The
civil Court's judgment and decree are dated 13.03.2018.
The civil Court has declared that the first appellant, as the
wife of deceased Sri Shashikumar Chougule, would be
entitled to 1/4th share out of her husband's 1/3rd share and
that the second appellant would also be entitled to 1/4th
share in Sri. Shashikumar Chougule's 1/3rd share but as a
daughter.
2. The appellants have filed this suit along
with Sri. Bharatesh, who is the eldest son of Sri
Shashikumar Chougule and the first appellant, who has
died during the pendency of the suit and because he has
died bachelor, the other parties have continued the suit
without bringing on record any other person. The first
appellant has died during the pendency of the appeal and
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the second appellant contends that the first appellant has
bequeathed her undivided interest in her favour under her
last Will and testament. In fact, the second appellant has
filed an application under Order XXII Rule 9 of the CPC for
leave to prosecute the appeal as a legatee of the first
appellant. It is undisputed that even otherwise, all her legal
representatives are on record i.e., her two daughters and the
legal heirs of her another pre-deceased son.
3. Smt. Sunitha P Kalasoor and
Sri.S.K.Kayakamath are heard for final disposal of the
appeal and the application. The learned counsels submit
that this Court must dispose of the appeal examining the
following points for consideration:
[i] Whether the civil Court's decree granting
different share to the parties in a notional
partition can be sustained in view of the
provisions of the Hindu Succession Act, 1956
and the decision of the Hon'ble Apex Court in
Vineeta Sharma v. Rakesh Sharma and
others1 and
AIR 2020 SC 3717
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[ii] Whether the second appellant would be
entitled to the first appellant's share
exclusively because of the asserted bequeath
in her favour.
4. It is seen from the records that Sri.
Shashikumar Chougule has died on 09.02.2015 leaving
behind the first appellant [his wife] and three children viz.,
two daughters and a son, and wife and daughter of a
predeceased son, Sri. Suneelkumar Chougle. The second
appellant is one of the daughters and the first respondent is
the other daughter. The younger son, Sri. Suneelkumar
Chougle has died on 16.07.2001, and the second and third
respondents are his wife and daughter. The elder son, Sri.
Bharatesh has died a bachelor during the pendency of the
suit leaving behind only the first appellant as his Class -I
legal heir.
5. Sri. Shashikumar was working with the
Railway Department and has left behind residential property
which is described in the plaint schedule. If the relationship
is undisputed, it is also undisputed that this residential
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property is his self-acquired property. The civil Court has
essentially proceeded on the footing that the subject
property must be divided inter se the parties and the shares
ascertained based on the date of death of the deceased
Shashikumar and the amendment to the Hindu Succession
Act, 1956 [for short, 'the HS Act'] in the year 2005.
6. However, this Court must observe that as the
parties do not dispute that the suit schedule property was
Sri. Shashikumar Chougule's self-acquired property and
that he has died intestate, it must follow in law that the
property should devolve under Section 8 of the HS Act with
each of his Class-I heir [that is, his wife and four children]
taking an equal share, and with the subsequent demise of
the elder son [Sri Bharatesh] and the later demise of his wife
[the first appellant], the shares get altered. The civil Court
in arriving at its conclusion that the devolvement must be
under Section 6 of the HS Act amended vide the Amendment
Act 2005 has overlooked material aspects and the provisions
of the Act that would apply.
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7. In any event today, with the exposition of the
Apex Court in Vineeta Sharma [supra] even if Section 6 of
the HS Act applied it would not alter the shares that each of
the Class-I heir will take on Sri Shashikumar Chougule's
intestate demise. Therefore, the first appellant, the second
appellant, Sri Bharatesh and the first respondent would take
1/5th share each and the second and third respondents [as
wife and daughter of a predeceased son] would together take
the other 1/5th share. This Court must opine that with Sri
Bharatesh dying intestate during the pendency of the suit,
the first appellant alone succeeded to his share as his class-I
legal heir, and with the first appellant dying, her two shares
out of the 5 shares [2/5th share] must devolve to her two
daughters and her granddaughter [the third respondent].
8. Consequentially, the second appellant and the
first respondent will take 1/3rd share each and the second
and third respondents together [but subject to their
corresponding shares therein] will take the other 1/3rd
share. The first point for consideration is answered
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accordingly. The second appellant contends that the first
appellant has died leaving behind her last Will and
testament in her favour and therefore, she is entitled to her
share as well. However, even a copy thereof is not produced
before this Court. If the second appellant has to succeed to
the first appellant's undivided 2/5th share in the subject
property, it would be imperative for the second appellant to
prove due execution and attestation of her last Will and
Testament as required bereft of all suspicious
circumstances. The subject property is a residential property
and the question of partitioning this property into five parts
will have to be gone into in the final decree proceedings.
9. This Court is of the considered view that if the
second appellant is able to bring on record the last Will and
Testament allegedly executed by the first appellant and
prove its due execution and attestation in the final decree
proceedings, the question whether the subject property must
be divided into five parts with the second appellant taking
two parts could also to be decided in the final decree
proceedings.
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10. This Court must observe that if for any
reason, the second appellant is unable to produce this
asserted last Will and Testament in the final decree
proceedings, or otherwise prove due execution and
attestation thereof, the property must be divided into three
equal parts with the second appellant and the first
respondent taking 1/3rd share each in the suit schedule
property and the second and third respondents together
[subject to their respective shares therein] taking the other
1/3rd share. The second point for consideration is answered
accordingly and the appeal stands disposed of by the
following:
ORDER
The appeal is allowed in part modifying the
civil Court's judgment and decree dated
13.03.2018 declaring as follows.
[a] The second appellant and the first
respondent are entitled to 1/3rd share in
the subject property with the second and
the third respondent together [subject to
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their respective shares therein] being
entitled to 1/3rd share.
[b] However, if the second appellant is able to
bring on record in the final decree
proceedings the original of the last Will and
testament executed by the first appellant
and she is able to prove its due execution
and attestation, the second appellant will
be entitled to 3/5th share in the suit
schedule property and the first respondent
wil be entitled to 1/5th share and the
second and third respondents together will
be entitled to 1/5th share.
The office is directed to draw decree accordingly.
Sd/-
(B.M.SHYAM PRASAD)
JUDGE
Sd/-
(C M JOSHI)
JUDGE
