[Cites 26, Cited by 0]
Karnataka High Court
Smt Sharanavva W/O Mudakanagouda ... vs Sharanagouda S/O Mudakanagouda Goudra on 18 December, 2025
Author: R.Devdas
Bench: R.Devdas
-1-
RFA No.100447 of 2023
C/W RFA No.100509 of 2023
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 18TH DAY OF DECEMBER, 2025
PRESENT
THE HON'BLE MR. JUSTICE R.DEVDAS
R
AND
THE HON'BLE MR. JUSTICE B. MURALIDHARA PAI
REGULAR FIRST APPEAL NO.100447/2023 C/W
REGULAR FIRST APPEAL NO.100509/2023 (DEC/INJ)
IN RFA NO.100447/2023:
BETWEEN:
1. SMT. SHARANAVVA,
W/O. MUDAKANAGOUDA GOUDRA,
AGE: 48 YEARS, OCC: AGRICULTURE,
R/O. HIREKOPPA-582102, TQ: RON, DIST: GADAG.
2. ESHWARA S/O. DEVAPPA ABAMALAGI,
AGE: 41 YEARS, OCC: AGRICULTURE,
R/O. CHIKKAMYAGERI-583 236,
TQ: YELBURGA, DIST: KOPPAL.
- APPELLANTS
(BY SRI. CHETAN MUNNOLI, ADVOCATE)
AND:
1. SHARANAGOUDA,
S/O. MUDAKANAGOUDA GOUDRA,
AGE: 27 YEARS, OCC: AGRICULTURE.
2. HANUMAGOUDA,
S/O. MUDAKANAGOUDA GOUDRA,
AGE: 26 YEARS, OCC: AGRICULTURE.
3. BHIMANAGOUDA,
S/O. MUDAKANAGOUDA GOUDRA,
AGE: 25 YEARS, OCC: AGRICULTURE.
-2-
RFA No.100447 of 2023
C/W RFA No.100509 of 2023
4. SMT. NIMBAVVA,
W/O. MUDAKANAGOUDA GOUDRA,
AGE: 53 YEARS, OCC: AGRICULTURE,
ALL ARE R/O. HIREKOPPA-582102,
TQ: RON, DIST: GADAG.
- RESPONDENTS
(NOTICE TO RESPONDENTS IS SERVED)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96
OF CPC 1908 AGAINST THE JUDGMENT AND DECREE DATED
26.02.2021 PASSED IN O.S.NO. 62/2015 ON THE FILE OF THE
SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS,
RON, PARTLY DECREEING THE SUIT FILED FOR DECLARATION
AND PERMANENT INJUNCTION, PARTITION AND ETC.
IN RFA NO.100509/2023:
BETWEEN:
1. SMT. SHARANAVVA,
W/O. MUDAKANAGOUDA GOUDRA,
AGE: 48 YEARS, OCC: AGRICULTURE,
R/O. HIREKOPPA-582102, TQ: RON, DIST: GADAG.
2. ESHWARA S/O. DEVAPPA ABAMALAGI,
AGE: 41 YEARS, OCC: AGRICULTURE,
R/O. CHIKKAMYAGERI-583 236,
TQ: YELBURGA, DIST: KOPPAL.
- APPELLANTS
(BY SRI. CHETAN MUNNOLI, ADVOCATE)
AND:
1. SHARANAGOUDA,
S/O. MUDAKANAGOUDA GOUDRA,
AGE: 27 YEARS, OCC: AGRICULTURE.
2. HANUMAGOUDA,
S/O. MUDAKANAGOUDA GOUDRA,
AGE: 26 YEARS, OCC: AGRICULTURE.
-3-
RFA No.100447 of 2023
C/W RFA No.100509 of 2023
3. BHIMANAGOUDA,
S/O. MUDAKANAGOUDA GOUDRA,
AGE: 25 YEARS, OCC: AGRICULTURE.
4. SMT. NIMBAVVA,
W/O. MUDAKANAGOUDA GOUDRA,
AGE: 53 YEARS, OCC: AGRICULTURE,
ALL ARE R/O. HIREKOPPA-582102,
TQ: RON, DIST: GADAG.
- RESPONDENTS
(NOTICE TO RESPONDENTS IS SERVED BUT UNREPRESENTED)
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96
OF CPC 1908 AGAINST THE JUDGMENT AND DECREE DATED
26.02.2021 PASSED IN O.S.NO. 62/2015 ON THE FILE OF THE
SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS,
RON, PARTLY DECREEING THE SUIT FILED FOR DECLARATION
AND PERMANENT INJUNCTION, PARTITION AND ETC.
THESE REGULAR FIRST APPEALS HAVING BEEN HEARD AND
RESERVED ON 03.12.2025, COMING ON FOR 'PRONOUNCEMENT
OF JUDGMENT' THIS DAY, THE COURT PRONOUNCED THE
FOLLOWING:
CORAM: THE HON'BLE MR. JUSTICE R.DEVDAS
AND
THE HON'BLE MR. JUSTICE B. MURALIDHARA PAI
-4-
RFA No.100447 of 2023
C/W RFA No.100509 of 2023
CAV JUDGMENT
(PER: THE HON'BLE MR. JUSTICE R.DEVDAS)
These two regular first appeals are filed at the hands
of the defendants in O.S. No. 62/2015 and the counter
claim raised at the hands of the defendants in the same
suit, being aggrieved of the impugned judgment and
decree passed by the learned Senior Civil Judge & JMFC,
Ron.
2. For the sake of convenience, the parties shall be
referred to in terms of their ranking before the trial Court.
3. The suit is filed by the three children of
Mudukanagouda and his alleged wife Smt.Nimbavva
against defendant No.1 Smt. Sharanavva who claims to be
the first wife of Sri Mudukanagouda and against defendant
No.2, the purchaser and brother of defendant No.1,
seeking a declaration that the plaintiffs are the full owners
of the suit schedule properties and consequently injunct
the defendants from interference with the suit schedule
property; further to declare the sale deeds executed by
defendant No.1 in favour of defendant No.2 in respect of
items No.1, 2 and 3 of the suit schedule property as void
and not binding on the share of the plaintiffs; further to
declare that the plaintiffs along with defendant No.1 have
1/5th share each in the suit schedule properties.
4. It is the contention of the plaintiffs that plaintiff No.4
Smt.Nimbavva married Sri Mudukanagouda in his
residence at Hirekoppa village and out of the wedlock
plaintiff No.1 was born on 10.05.1996, plaintiff No.2 was
born on 27.06.1998 and plaintiff No.3 was born on
16.01.2000. It is contended that Mudukanagouda had an
illicit relationship with defendant No.1 and therefore she is
not the legally wedded wife of Sri Mudukanagouda and
therefore she had no right to sell items No.1 to 3 of the
suit schedule property in favour of defendant No.2. It is
contended that since she had no right to deal with the
properties, the sale deeds executed by defendant No.1 in
favour of defendant No.2 are not valid and they are void in
law.
5. Defendant No.1 entered appearance and filed written
statement contending that the claim of the plaintiffs is
untenable. It is contended that defendant No.1 is the
legally wedded wife of Sri Mudukanagouda and she got
married to him about 29 years ago, but they had no
issues. In this regard there were constant fights between
Mudukanagouda and defendant No.1 and defendant No.1
was ill treated for the reason that she was not able to bear
a child for Mudukanagouda. It is contended that
Mudukanagouda had illicit relationship with plaintiff No.4
and even if plaintiffs No.1 to 3 are born to Mudukanagouda
and plaintiff No. 4, in law, they are illegitimate children of
Mudukanagouda and therefore the plaintiffs cannot claim
equal rights with defendant No.1. Moreover, in the year
2003 defendant No.1 filed O.S. No. 126/2003 before the
learned Civil Judge at Ron seeking maintenance against
her husband Mudukanagouda. Although Mudukanagouda
entered appearance in the suit, he neither filed written
statement nor contested the matter. However during the
course of the suit Mudukanagouda gave an application and
made a statement before the revenue authorities to
transfer the khata in respect of items No.1 to 3 of the suit
schedule properties in favour of defendant No.1.
Consequently, by mutation order bearing No. MR No. 9/
2003-04 dated 18.03.2004, the revenue records
pertaining to items No.1 to 3 of the suit schedule were
transferred in the name of defendant No.1. Thereafter
defendant No.1 filed a memo and withdrew the suit on
16.09.2006.
6. It is contended that Mudukanagouda died on
08.06.2008. Defendant No.1 sold items no.1 to 3 of the
suit schedule properties to defendant No.2 on 31.01.2015,
01.01.2015 and 02.02.2015 respectively, for a sum of
Rs.4,88,000/-, Rs.4,60,0000/- and Rs.1,66,000/-
respectively. It was further contended that the plaintiffs
have no right to raise a challenge to the sale and transfers
made by defendant No.1 in favour of defendant No.2, as
defendant No.1 became the absolute owner of all the suit
schedule properties after the death of Mudukanagouda.
7. Defendant No.2 also filed written statement adopting
the contentions of defendant No.1. It was further
contended by defendant No. 2 that he was a bonafide
purchaser of the suit schedule items No.1 to 3 and
therefore the same were not available for partition, either
for the plaintiffs or for defendant No.1. It was contended
that defendant No.2 got the revenue records mutated in
his name on the strength of the registered sale deeds and
he was in lawful possession, cultivating the suit items No.1
to 3.
8. The trial Court framed the following issues and
additional issues, based on the pleadings and the counter
claim made by defendant No.1.
ISSUES
1. Whether the plaintiffs prove that, the plaintiff No.4
is the legally wedded wife and plaintiff No.1 to 3 are the
legitimate children of Mudakanagouda Goudar?
2. Do they further prove that, the sale deed dated
31.12.2015 and 02.02.2015 executed by the defendant
No.1 in favour of defendant No.2 are null and void?
3. Whether the plaintiffs prove, their absolute
ownership and exclusive possession over the schedule
properties?
4. Whether the plaintiffs further prove, the alleged
obstruction of defendants?
5. Whether the defendant No.2, proves that, he is
bonafide purchaser?
6. Whether the plaintiffs are entitled for declaration
and injunction?
ADDITIONAL ISSUES
1. Whether the defendant No.1 proves that, she is the
legally wedded wife of Mudakanagouda Goudar?
2. Whether the defendant No.1, further proves that,
properties shown in item No. 1(a) to 1(c) in the plaint,
were given to her by her husband, in lieu of her
maintenance under family settlement?
3. Whether the defendant No.1 proves, her absolute
ownership and possession over the properties shown in
the counter claim?
- 10 -
4. Whether the defendant No.1 proves, the obstruction
made by the plaintiffs?
5. Whether the defendant No.1 further proves that,
suit is barred under the provisions of C.P.C. and Specific
Relief Act, as contended in para No.2 of the written
statement?
6. Whether the defendant No.1 proves the suit is
barred by limitation?
7. Whether the suit is not properly valued?
ADDITIONAL ISSUE
9. Whether the defendant No.1 proves that, the suit
filed by the plaintiff is not maintainable?
9. Insofar as the issue regarding who is the legally
wedded wife of Mudukanagouda, the trial Court accepted
the contention of defendant No.1 that she had filed a suit
against Mudukanagouda seeking maintenance and
Mudukanagouda never contested the matter, denying the
fact that defendant No.1 is his wife. On the other hand,
revenue entries were mutated on the basis of the
application given by Mudukanagouda in respect of items
No.1 to 3 of the suit schedule in favour of defendant No.1,
in the year 2004, during the lifetime of Mudukanagouda.
- 11 -
Mudukanagouda never challenged the mutation entries
made in favour of defendant No.1 till his death in the year
2008. It was held by the trial Court that these two
documents have presumptive value in the eye of law and
therefore the plaintiffs not having disproved the said fact,
the issue was answered in favour of defendant no.1 and
the trial Court held that defendant No.1 is the legally
wedded wife of Mudukanagouda.
10. Insofar as the issue regarding the sale and transfer
of items No.1 to 3 at the hands of defendant No.1 in
favour of defendant No.2 is concerned, the trial Court held
that when admittedly only revenue entries were
transferred in favour of defendant No.1 and no registered
instrument was executed by Mudukanagouda in favour of
defendant No.1, which is the requirement of law, the
transfers though made under registered instruments by
defendant No.1 in favour of defendant No.2, such transfers
do not legitimately confer ownership or title in favour of
defendant No.2. In that view of the matter, the trial Court
- 12 -
proceeded to declare that the three sale deeds executed
by defendant No.1 in favour of defendant No.2 are void
and they do not legitimately transfer any title or interest in
favour of defendant No.2.
11. Insofar as the rights of the plaintiffs and defendant
No.1 in respect of the suit schedule properties are
concerned, the trial Court held, having regard to Sec.16 of
the Hindu Marriage Act, 1955 and the law declared by the
Apex Court, plaintiffs No.1 to 3 being the children born to
Mudukanagouda, they should be treated as legitimate
children and they will have equal share along with
defendant No.1 in the suit schedule properties.
Consequently, the suit is decreed by the trial Court
granting 1/4th share each to plaintiffs No.1 to 3 and
defendant No.1, in all the suit schedule properties, except
property bearing VPC No. 8 of Hirekoppa village, since the
plaintiffs failed to prove that the said property belonged to
the deceased Mudukanagouda. The suit and the counter
claim is dismissed as against the said immovable property
- 13 -
bearing VPC No. 8 of Hirekoppa village. The counter claim
of defendant No.1 in all other respects is also dismissed.
Consequently, defendants No.1 and 2 have filed these two
regular first appeals, raising a challenge to the impugned
judgment and decree passed by the trial Court.
12. Although notice is served on the respondents/
plaintiffs, there has been no representation. These two
appeals are heard exparte.
13. Learned counsel Sri Chetan Munnoli, appearing for
the defendants submitted that the trial Court, having
accepted the contention of defendant No.1 that she had
filed a suit in the year 2003 against Mudukanagouda
claiming maintenance and having accepted the fact that
the revenue entries pertaining to items No.1 to 3 were
mutated in favour of defendant No.1 at the instance of
Sri.Mudukanagouda, items No.1 to 3 of the suit schedule,
defendant No.1 became the full owner of the three items
of the suit schedule properties by virtue of Sec. 14 of the
- 14 -
Hindu Succession Act, 1956. It is submitted that sub Sec.
(1) of Sec. 14 provides that any property possessed by a
Hindu female, whether acquired before or after the
commencement of the Act, they shall be held by her as full
owner thereof and not as a limited owner. Learned
counsel would therefore submit, while placing reliance on
V.Tulasamma & Ors. Shesha Reddy reported in (1977)
3 SCC 99, since defendant No.1 was admittedly possessed
with items No.1 to 3 of the suit schedule, she acquired
absolute interest over those properties. Further, since
defendant No.1 has exercised her full rights over items
No.1 to 3 of the suit schedule properties and sold them in
favour of defendant No.2, the sale transactions are legal
and cannot be held as void.
14. Learned counsel would further submit that although
Mudukanagouda inherited the suit schedule properties
from his ancestors and he had no issues, nevertheless the
trial Court fell in error in applying Sec. 8 of the Hindu
Succession Act in the present context, while deciding the
- 15 -
rights of the parties. Learned counsel submitted that since
Mudukanagouda inherited the properties from his
ancestors, Sec. 6 is required to be applied in deciding the
rights of the parties in respect of the other items barring
items No.1 to 3 of the suit schedule. Learned counsel
submitted that in terms of the Explanation to sub Sec. (3)
of Sec. 6, a notional partition should be made as if it took
place immediately before the death of Mudukanagouda,
between Mudukanagouda and defendant No.1, since she is
the only other Class-I legal heir. Applying the said
provision, at the partition Mudukanagouda gets half the
share and the other half goes to defendant No.1.
15. Further, applying the law as declared by the Hon'ble
Supreme Court in the case of Revanasiddappa & Anr.
Vs. Mallikarjun & Ors. Reported in (2023) 10 SCC 1,
plaintiffs No.1 to 3 will get an equal share along with
defendant No.1 in the share that fell to Mudukanagouda.
In that view of the matter, learned counsel submits that
plaintiffs No.1 to 3 along with defendant No.1 are entitled
- 16 -
for 1/4th share each in items No.4 to 7 of the suit schedule
properties. Defendant No.1 should be declared as the
absolute owner of items No.1 to 3 and the sale made by
defendant No.1 in favour of defendant No.2 in respect of
items No.1 to 3 should be held valid.
16. Heard learned counsel Sri Chetan Munnoli for the
appellants/ defendants No.1 and 2 and perused the appeal
memos and the trial Court records.
17. The defendants as well as the plaintiffs have
accepted the decision of the trial Court regarding the
legitimacy of the marriage between Mudukanagouda and
defendant No.1 and the trial Court has rightly applied the
law as laid down by the Apex Court that since plaintiffs
No.1 to 3 are born to Mudukanagouda and plaintiff No. 4
outside the legitimate wedlock, plaintiffs No.1 to 3 are
entitled for a share from out of the share of
Mudukanagouda. This Court has also noticed the fact that
the plaintiffs have claimed 1/5th share, thereby admitting
- 17 -
the rights of defendant No.1 to the suit schedule
properties.
18. The disputed issue is regarding items No.1 to 3, the
right of defendant No.1 in respect of those properties and
the legitimacy of the sales made by defendant No.1 in
favour of defendant No.2.
19. There can be no doubt that as per Sec. 18 of the
Hindu Adoptions & Maintenance Act, 1956, a Hindu wife is
entitled to be maintained by her husband during her
lifetime. Further, applying Sec. 14 of the Hindu
Succession Act, 1956, any property "possessed" by a
Hindu female, shall be held by her as full owner thereof
and not as a limited owner. Sub Sec. (2) of Sec. 14
however makes a distinction of such properties acquired
by a female Hindu by way of gift or under a Will or any
other instrument or under a decree or order of a civil
Court or under an award where the terms of the gift, Will
- 18 -
or other instrument or the decree, order or award
prescribe a restricted estate in such property.
20. Having regard to the undisputed facts, that
defendant No.1 filed a suit in the year 2003 against her
husband Mudukanagouda seeking maintenance and the
fact that Mudukanagouda did not contest the matter and
that the suit was withdrawn in the year 2006 by filing a
memo, it is clear that there was no decree passed by the
Civil Court. The question therefore is whether the
mutation entry made in favour of defendant No.1, even if
it is at the instance of Mudukanagouda, during the
pendency of the suit, in the year 2004, would amount to
defendant No.1 acquiring lawful possession over items
No.1 to 3 of the suit schedule.
21. We have perused the decision of the Apex Court in
Tulasamma (supra) where the word 'possessed by' used
by the Legislature in Sec. 14(1) have been analyzed and it
was held that the widest possible amplitude should be
- 19 -
given to the word and it should be construed as a state of
owning a property even though the owner is not in actual
or physical possession of the same. It was held that
where a widow gets a share in the property under a
preliminary decree, it should be deemed that the widow
has acquired interest. It was held that the Hindu female's
right to maintenance is not an empty formality or an
illusory claim being conceded as a matter of grace and
generosity, but is a tangible right against property which
flows from the spiritual relationship between the husband
and the wife and is recognized and enjoined by pure
Shastric Hindu Law. However, it was held that such a
right may not be a right to property but it is a right
against property and the husband has a personal
obligation to maintain his wife and if he or the family has
property, the female has the legal right to be maintained
therefrom. It was held that if a charge is created for the
maintenance of a female, the said right becomes legally
enforceable.
- 20 -
22. The enunciation of the provision regarding
maintenance stressing on the husband's personal
obligation to maintain his wife, coupled with the admitted
fact that there was a no decree passed by the Civil Court
in the suit filed by defendant No.1 against
Mudukanagouda, the mere transfer of revenue records
regarding items No.1 to 3 in favour of defendant No.1
cannot be said to have conferred full rights on defendant
No.1. At best, such an action on the part of
Mudukanagouda in favour of defendant No.1, may only
create a charge for maintenance of defendant No.1 out of
items No.1 to 3.
23. We therefore uphold the decision of the trial Court,
having regard to reliance placed on many judgments
including Yallapu Uma Maheshwari and Another Vs.
Buddha Jagadeeswararao and Others reported in
(2015) 16 SCC 787, where it was held that Sec. 17 (1)
of the Registration Act, mandates that any document,
which has the effect of creating and taking away the rights
- 21 -
in respect of an immovable property, must be registered
and Sec. 49 of the Act, imposes bar on the admissibility of
an unregistered document and deals with the documents
that are required to be registered under Sec. 17 of the
Act. The trial Court is right in its opinion that mere
transfer of record of rights by Mudukanagouda in favour of
defendant No.1 in respect of items No.1 to 3 will not
confer absolute rights in favour of defendant No.1 to deal
with the property. It would have been a different
situation, had Mudukanagouda gifted the properties or
settled the same by way of registered instruments. It was
legally permissible for Mudukanagouda to have disposed of
the properties, since he was the sole coparcener.
24. However, we accept the contention of the learned
counsel for defendants No.1 and 2 that the trial Court fell
in error in applying Sec. 8 of the Hindu Succession Act in
the present case. When admittedly the suit schedule
properties were inherited by Mudukanagouda from his
ancestors, and succession to such properties opened up
- 22 -
after the death of Mudukanagouda, Sec. 6 would apply
and a notional partition should be made between
Mudukanagouda and defendant No.1, since defendant
No.1 is the only Class-I heir of the Schedule. In this
regard, it would be profitable to notice the decision of a
Division Bench of the Bombay High Court (Nagpur Bench),
in the case of Controller of Estate Duty Vs. P.G.
Chaware (1992 SCC Online Bom 624), where several
decisions of the Apex Court including N.V.Narendranath
Vs. C.W.T. (1969) 1 SCC 748 was noticed, where the
Supreme Court had an occasion to examine the question
as to whether, under the Hindu System of Law, a joint
family may consist of a single male member along with his
wife and daughters? It was held that there is no dispute in
regard to the legal proposition, that in a joint Hindu
family, the wife who is a member is entitled to get a share
as and when a partition is effected. The only restriction is
that she herself is not entitled to claim a partition.
- 23 -
25. Similarly, in Contoller of Estate Duty Vs. Alladi
Kuppuswamy reported in (1977) 3 SCC 385 the Apex
Court held that once a Hindu widow is held to have a
coparcenary interest, then there would be no difficulty in
treating her as a member of the Hindu Coparcenary in
which case, her interest could be easily valued according
to the relevant provision of Sec.39 of the Estate Duty Act.
Further, having regard to Explanation 1 of the un-
amended provision of Sec. 6 of the Hindu Succession Act,
the Apex Court in Gurupad Khandappa Magdum Vs.
Hirabai Khandappa Magdum and Others reported in
(1978 3 SCC 383) held as follows:
"Explanation 1 to section 6 resorts to the simple expedient,
undoubtedly fictional, that the interest of a Hindu
Mitakshara coparcener 'shall be deemed to be' the share in
the property that would have been allotted to him if a
partition of that property had taken place immediately
before his death. What is, therefore, required to be
assumed is that a partition had in fact taken place between
the deceased and his coparceners immediately before his
death. That assumption, once made, is irrevocable. In other
words, the assumption having been made once for the
purpose of ascertaining the share of the deceased in the
- 24 -
coparcenary property, one cannot go back on that
assumption and ascertain the share of the heirs without
reference to it. The assumption which the statute requires
to be made that a partition had in fact taken place must
permeate the entire process of ascertainment of the
ultimate share of the heirs, through all its stages. To make
the assumption at the initial stage for the limited purpose of
ascertaining the share of the deceased and then to ignore it
for calculating the quantum of the share of the heirs is truly
to permit one's imagination to boggle. All the consequences
which flow from a real partition have to be logically worked
out, which means that the share of the heirs must be
ascertained on the basis that they had separated from one
another and had received a share in the partition which had
taken place during the lifetime of the deceased. The
allotment of this share is not a processual step devised
merely for the purpose of working out some other
conclusion. It has to be treated and accepted as a concrete
reality, something that cannot be recalled just as a share
allotted to a coparcener in an actual partition cannot
generally be recalled. The inevitable corollary of this
position is that the heir will get his or her share in the
interest which the deceased had in the coparcenary
property at the time of his death, in addition to the share
which he or she received or must be deemed to have
received in the notional partition."
26. We are therefore of the considered opinion that all
the suit schedule properties except item No. 8 bearing VPC
- 25 -
No. 8 of Hirekoppa village should be considered for share
between plaintiffs No.1 to 3 and defendant No.1.
However, since Sec. 6 is applicable, on notional partition
between Mudukanagouda and defendant No.1, one half
share in all the properties shall belong to defendant No.1
and in the remaining half, plaintiffs No.1 to 3 and
defendant No.1 shall have 1/4th share each.
27. At this juncture we feel it is our duty to bring to the
notice of the concerned, our observations, having found
that the amended provision of Sec.6, pursuant to the 2005
amendment, leaves room for confusion, insofar as the
rights of a Hindu widow and mother are concerned. The
un-amended Sec.6, more particularly the first proviso, by
reference to class-1 heirs of the Schedule, ensured a share
at a notional partition to a widow and mother of the
deceased along with son; daughter, etc. However, the
amended Sec.6 does not contain reference to class-1 heirs
of the Schedule. The Hon'ble Apex Court, in the case of
Vineeta Sharma Vs. Rakesh Sharma & Ors. Reported
- 26 -
in (2020) 9 SCC 1, has held that the amended provisions
of Sec. 6(1) provide that on and from the commencement
of the amendment Act the daughter is conferred the right.
Sec. 6(1)(a) makes daughter by birth a coparcener in her
own right and in the same manner as the son. Sec.
6(1)(b) confers the same rights to a daughter in the
coparcenary property as she would have had if she had
been a son. Sec. 6(2) provides that when the female
Hindu shall hold the property to which she becomes
entitled under Sec. 6(1), she will be bound to follow the
rigors of coparcenary ownership, and can dispose of the
property by testamentary mode. Regarding Sec. 6(3), it
was held that the interest of a Hindu in a coparcenary
property shall pass by testamentary or intestate
succession and not by survivorship, and there is a deemed
partition of the coparcenary property in order to ascertain
the shares which would have been allotted to his heirs had
there been a partition. It was held that the Explanation to
Sec. 6(3) is the same as Explanation 1 to Sec.6 as
- 27 -
originally enacted. Sec. 6(4) makes a daughter liable in
the same manner as that of a son. It was held that the
proviso to Sec. 6(1) and Sec. 6(5) saves any partition
effected before 20.12.2004.
28. A plain reading of the amended provision Sec. 6 does
not contain a reference to Class-1 heirs of the Schedule.
Having regard to the statement of objects and reasons as
noticed and explained by the Hon'ble Apex Court in
Vineeta Sharma (supra), there can be no manner of
doubt that the law makers did not contemplate or intend
to take away the rights of a Hindu widow or mother of the
deceased, as was provided in the unamended Sec.6. It is
by sheer inadvertence, that the other Class-1 heirs such
as widow, mother, widow of predeceased son; etc. who
find place in Class-1 of the Schedule and their rights
flowing in terms of the unamended Sec. 6 have been
missed out in the amended provision.
- 28 -
29. We find that although sub Sec. (3) of Sec. 6 provides
that the interest of a Hindu in the property of a Joint Hindu
Family governed by Mithakshara Law, shall devolve by
testamentary or intestate succession, as the case may be,
'under this Act' and not by survivorship, that by itself will
not protect the rights of the other Class-1 heirs such as
widow, mother, widow of predeceased son; etc., unless
specific reference is made to Class-1 heirs in the Schedule,
in the amended provision.
30. We therefore feel that it is the bounden duty of this
Court to draw the attention of the law makers in this
regard. Perhaps, a recasting of the provision, with
reference to Class-1 heirs of the Schedule is necessary to
avoid confusion.
31. Consequently we proceed to pass the following order:
ORDER
1) The appeals are allowed in part with costs;
- 29 -
2) The impugned judgment in O.S. No. 62/2015 on
the file of the learned Sr. Civil Judge & JMFC, Ron,
stands modified. Defendant No.1 is entitled for
half share in the suit schedule properties, items
No.1 (a) to (j). Plaintiffs No. 1 to 3 along with
defendant No.1 are entitled for 1/4th share each in
the other half of the suit schedule properties items
No.1 (a) to (j).
3) Defendant No. 2 is permitted to work out equities
in respect of suit items No. 1(a) to (c) from out of
the share declared in favour of defendant No.1.
4) The rights reserved to plaintiffs No.1 to 3 and
defendant No.1 regarding property bearing VPC
No. 8 of Hirekoppa village remains undisturbed.
5) Decree may accordingly be drawn up.
6) Registry is hereby directed to furnish a copy of
this judgment to the Ministry of Law &
Parliamentary Affairs, Government of India, New
Delhi to enable the Ministry to consider the
- 30 -
observations made by this Court in paragraphs No.
27 to 31 and for further action.
7) Ordered accordingly.
Sd/-
(R.DEVDAS)
JUDGE
Sd/-
(B. MURALIDHARA PAI)
JUDGE
bvv
CT: VH
