Karnataka High Court
Venkatraman Shinappa Naik Since Dead By ... vs Yashoda Kom Devappa Naik on 7 March, 2025
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RSA No. 5126 of 2009
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 7TH DAY OF MARCH, 2025
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO. 5126 OF 2009 (-)
BETWEEN:
1. VENKATRAMAN SHINNAPPA NAIK,
SINCE DECEASED BY HIS LR'S.
1(A) SARVESHWAR VENKATRAMAN NAIK,
AGED ABOUT 64 YEARS, OCC: BUSINESS,
R/O. MALLAPUR, U.K. DISTRICT.
1(B). SMT. SAVITRI KOM NARAYAN NAIK,
AGED ABOUT 58 YEARS, OCC: HOUSEHOLD,
R/O. CHANDAVAR, HONNAVAR, U.K. DISTRICT.
1(C). GANESH VENKATRAMAN NAIK,
AGED ABOUT 56 YEARS, OCC: AGRICULTURE,
R/O. KONALLI, HONNAVAR, U.K. DISTRICT.
1(D). SHRIDHAR VENKATRAMAN NAIK,
AGED ABOUT 54 YEARS, OCC: AGRICULTURE,
R/O. KONALLI, HONNAVAR, U.K. DISTRICT.
1(E). DATTATRAYA VENKATRAMAN NAIK,
MOHANKUMAR
B SHELAR AGED ABOUT 52 YEARS,
OCC: EMPLOYEE IN FOREST DEPT.,
Digitally signed by
MOHANKUMAR B R/O. SIRSI, U.K. DISTRICT.
SHELAR
Location: HIGH
COURT OF
KARNATAKA
DHARWAD BENCH 1(F). SHINU VENKATRAMMAN NAIK,
AGED ABOUT 49 YEARS, OCC: BUSINESS,
R/O. CHANDAVAR, HONNAVAR, U.K. DISTRICT.
1(G). ARUN VENKATRAMAN NAIK,
AGED ABOUT 47 YEARS, OCC: AGRICULTURE,
R/O. KONALLI, HONNAVAR, U.K. DISTRICT.
...APPELLANTS
(BY SRI. GANAPATHI S. SHASTRI,
SRI. S.G. KADADAKATTI &
SRI. LINGESH V. KATTEMANE, ADVOCATES)
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RSA No. 5126 of 2009
AND:
1. YASHODA KOM DEVAPPA NAIK,
SINCE DECEASED BY HER LR'S.
1(A) SUBBAIAH DEVAIAH NAIK,
AGED ABOUT 68 YEARS, OCC: AGRICULTURE,
R/O. ABBOLLI, SANTIGULI POST-581323,
KUMTA TALUK, U.K. DISTRICT.
1(B) SMT. NAGAVENI GANAPATI NAIK,
AGED ABOUT 65 YEARS, OCC: HOUSEHOLD WORK,
R/O. NATHGERI, HONNAVAR TALUK-581334,
UTTAR KANNAD DISTRICT.
1(C) SADANAND DEVAPPA NAIK,
AGED ABOUT 58 YEARS, OCC: SERVICE,
FIRE BRIGADE STATION SIRSI-581401,
UTTAR KANNAD DISTRICT.
1(D) SUDHA RAMACHANDRA NAIK,
AGED ABOUT 54 YEARS, OCC: HOUSEHOLD WORK,
R/O. TALGODU URKERI, KUMTA TALUK-581343,
UTTAR KANNAD DISTRICT.
MADEV SHINGAPPA NAIK,
SINCE DECEASED BY HIS LR'S.
2(A) SMT. SUSHEELA KOM MADEV NAIK,
AGED ABOUT 70 YEARS, OCC: HOUSEHOLD,
R/O. KONALLI, KUMTA TALUK-581343,
UTTAR KANNADA DISTRICT.
2(B) K.M. ARUNDHATI D/O. MADEV NAIK,
AGED ABOUT 39 YEARS, OCC: HOUSEHOLD,
R/O. KONALLI, KUMTA TALUK-581343,
UTTAR KANNADA DISTRICT.
2(C) M.S. JAGADISH RAO S/O. MADEV NAIK,
AGED ABOUT 37 YEARS, OCC: AGRICULTURE,
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RSA No. 5126 of 2009
R/O. KONALLI, KUMTA TALUK-581343,
UTTAR KANNADA DISTRICT.
2(D) ANJANA MADEV NAIK,
AGED ABOUT 37 YEARS, OCC: AGRICULTURE,
R/O. KONALLI, KUMTA TALUK-581343,
UTTAR KANNADA DISTRICT.
3. KESHAV NARAYAN NAIK,
AGED ABOUT 68 YEARS, OCC: AGRICULTURE,
R/O. KONALLI, KUMTA TALUK-581343,
UTTAR KANNADA DISTRICT.
4. SHEKAR NARAYAN NAIK,
AGED ABOUT 49 YEARS, OCC: AGRICULTURE,
R/O. KONALLI, KUMTA TALUK-581343,
UTTAR KANNADA DISTRICT.
...RESPONDENTS
(BY SRI. J.S. SHETTY, ADVOCATE FOR R1(A-D) & R2(A-D);
SRI. D.J. NAIK, ADVOCATE FOR R4;
R3-SERVED AND UNREPRESENTED)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF CPC PRAYING TO SET ASIDE THE JUDGMENT & DECREE
DATED 21/11/2008 PASSED IN R.A.NO.232/2006 ON THE FILE OF
LEARNED CIVIL JUDGE (SR.DN), KUMTA AND CONFIRM THE
JUDGMENT AND DECREE DATED 28/7/2005 PASSED IN
O.S.NO.49/2003 ON THE FILE OF THE LEARNED CIVIL JUDGE
(JR.DN), KUMTA BY ALLOWING THE ABOVE APPEAL WITH COST IN
THE INTEREST OF JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: THE HON'BLE MR. JUSTICE E.S.INDIRESH
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RSA No. 5126 of 2009
ORAL JUDGMENT
This Regular Second Appeal is preferred by the legal
representatives of plaintiff, challenging the judgment and
decree dated 21.11.2008 passed in RA No.232/2006 on
the file of Civil Judge (Sr.Dn.) Kumta, (for short,
hereinafter referred to as 'First Appellate Court'),
modifying the shares of the parties by allowing the appeal
and setting aside the judgment and decree dated
28.07.2005 passed in OS No.49/2003 on the file of
Principal Civil Judge (Jr.Dn.), Kumta (for short, hereinafter
referred to as 'Trial Court'), decreeing the suit of the
plaintiff in part.
2. For the sake of convenience, the parties in
these appeals shall be referred to in terms of their status
and ranking before the trial Court.
3. It is the case of the plaintiff that, the plaintiff,
defendant No.1 and defendant No.4 are the children of
Shinnappa and therefore, it is contended by the plaintiff
that the marriage of the defendant No.4 was celebrated by
investing the joint family properties and therefore, it is
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contended by the plaintiff that, the plaintiff and defendant
No.1 are entitled for half share in the suit schedule
properties.
4. After service of summons, the defendant No.1
entered appearance admits the relationship with the
plaintiff and sought for equitable share in the suit schedule
properties. It is also stated by the defendant No.1 in the
written statement that, his sister- Smt. Yashoda has not
been arraigned as a party at the time of filing of the suit
and accordingly, sought for dismissal of the suit for non
joinder of party.
5. Defendant Nos.2 and 3 are no way concerned
with the joint family properties of Shinnappa and his
children. Defendant No.4 was impleaded subsequently in
the suit.
6. On the basis of the rival pleadings, the Trial
Court has formulated issues for its consideration.
7. In order to establish their case, plaintiff himself
was examined as PW1 and got marked 16 documents as
Exs.P1 to P.16. On the other hand, defendant No.1 was
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examined as DW1 and no documents were produced by
the defendant.
8. The Trial Court, after considering the material
on record, by its judgment and decree dated 28.07.2005
decreed the suit of the plaintiff holding that the plaintiff
and defendant No.1 are entitled for half share in schedule
properties in Sl. Nos.1 to 12. Feeling aggrieved by the
same, the defendant No.4 has preferred Regular Appeal in
RA No.232/2006 on the file of First Appellate Court and
the said appeal was resisted by the plaintiff. The First
Appellate Court after re-appreciating the facts on record,
by its judgment and decree dated 21.11.2008 allowed the
appeal in part holding that, the plaintiff, defendant No.1
and 4 are entitled for equal share in the suit schedule
properties. Feeling aggrieved by the same, the legal
representatives of the plaintiff have preferred this Regular
Second Appeal.
9. This Court vide order dated 18.02.2014
formulated the following substantial question of law.
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i) Whether the First Appellate Court has
committed a serious error in not properly
reassessing the evidence in the right
perspective and coming to the conclusion
that defendant No.4 is also entitled for 1/3rd
share in suit schedule properties and
thereby reducing the share of defendant
No.1 to 1/3rd instead of ½?
ii) Whether lower appellate Court is justified in
applying the provisions of Section 6 of the
Hindu Succession Act, as amended w.e.f.
09.09.2005, when the succession had open
prior to the filing of the suit, more
particularly when defendant No.4 was born
prior to 1956?
10. I have heard Sri. Ganapathi S. Shastri, learned
counsel appearing for the appellants, Sri.J. S. Shetty,
learned counsel appearing for the respondent Nos.1(A-D)
and 2(A-D) and Sri. D. J. Naik, learned counsel appearing
for respondent No.4.
11. Learned counsel for the appellants contended
that the father of the plaintiff died during 1968 and as on
the date of opening of succession on account of death of
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the father of the plaintiff, defendant No.4 being a married
daughter prior to the death of her father and therefore,
not entitled for share in the suit schedule properties.
12. It is also contended by the learned counsel
appearing for the appellant that, the item No.13 of the suit
schedule properties was given to the defendant No.4 prior
to the death of the father of the plaintiff and therefore, the
defendant No.4 is not entitled for equitable share with the
plaintiff and defendant No.1 and accordingly, sought for
interference of this Court.
13. Learned counsel appearing for the respondents
sought to justify the impugned judgment and decree
passed by the First Appellate Court, in the light of the
judgment of the Hon'ble Supreme Court in the case of
Vineeta Sharma Vs. Rakesh Sharma and Others1.
14. In the light of the submission made by the
learned counsel appearing for the parties, I have carefully
examined the finding recorded by both the Courts below
and perused the record. In order to ascertain the
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relationship between the parties as averred in the plaint,
the genealogy reads as under:
Nagappa (propositus)
Shinnappa
(died during 1968)
Venkatraman Madeva Yashoda
(plaintiff) (defendant No.1) (defendant No.4)
15. On careful consideration of genealogy it is not
in dispute that the plaintiff, defendant No.1 and defendant
No.4 are the children of late Shinnappa who died during
1968. Undisputably, there is no partition between the
parties before or after the death of their father. It is also
to be noted that, the item No.13 of the suit schedule
properties was given to defendant No.4 at the time prior
to death of her father as 'Stree Dhan'. Therefore, the item
No.13 of schedule property is exclusive property of
defendant No.4. Taking into consideration the declaration
of law made by the Hon'ble Supreme Court in the case of
Vineeta Sharma (supra), daughter is also consider as
coparcener along with the son and therefore, plaintiff,
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defendant Noi.1 and defendant No.4 are entitled for 1/3rd
share in the suit schedule properties excluding item No.13
of the suit schedule properties.
16. In that view of the matter, the substantial
question of law referred to above favours the defendant
Nos.1 and 4 and no interference is called for in this appeal.
Accordingly, appeal is dismissed.
17. In view of the dismissal of the appeal, pending
applications are dismissed.
Sd/-
(E.S.INDIRESH)
JUDGE
SMM
CT-MCK
