[Cites 3, Cited by 0]

Karnataka High Court

Saroja vs Premamma on 16 March, 2026

                                                   -1-
                                                           RFA No. 450 of 2007




                      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                            DATED THIS THE 16TH DAY OF MARCH, 2026

                                              BEFORE
                              THE HON'BLE MR. JUSTICE RAJESH RAI K
                           REGULAR FIRST APPEAL NO. 450 OF 2007 (PAR)

                      BETWEEN:

                      SAROJA
                      W/O. SHANKAREGOWDA
                      AGED ABOUT 37 YEARS
                      R/AT EREGOWDANAKOPPALU
                      MELKOTE HOBLI
                      PANDAVAPURA TALUK.
                                                                 ...APPELLANT
                      (BY SMT. KAVYA ANIL KUMAR, ADVOCATE)

                      AND:

                      1.    PREMAMMA
                            W/O. LAKSHMANA
                            SINCE DEAD BY HER LEGAL REPRESENTATIVES
                            R2 AND R3

                      2.    MANUVANTHA
Digitally signed by         S/O LAKSHMANA
PANKAJA S
Location: HIGH              AGED ABOUT 31 YEARS,
COURT OF
KARNATAKA             3.    KALYANAMMA
                            W/O. LATE BOREGOWDA
                            AGED ABOUT 79 YEARS

                            ALL ARE R/AT EREGOWDANAKOPPALU
                            MALKOTE HOBLI, PANDAVAPURA TALUK
                            MANDYA DISTRICT.
                                                           ...RESPONDENTS
                      (BY SRI. H. MOHAN KUMAR, ADVOCATE FOR R2;
                          V/O DATED 14.10.2024 R2 AND R3 ARE TREATED AS
                          LR'S OF DECEASED R1)
                             -2-
                                          RFA No. 450 of 2007




     THIS RFA IS FILED U/S 96 OF CPC AGAINST THE
JUDGEMENT AND DECREE DATED 26.10.2006 PASSED IN
O.S.NO.178/1998 ON THE FILE OF THE ADDITIONAL CIVIL
JUDGE (SR.DN.) AND CJM, MANDYA, PARTLY DECREEING
THE SUIT FOR PARTITION AND SEPARATE POSSESSION.

     THIS APPEAL HAVING BEEN RESERVED FOR JUDGMENT
ON 10.03.2026 COMING ON FOR PRONOUNCEMENT THIS DAY,
RAJESH RAI K, J., DELIVERED THE FOLLOWING:


CORAM: HON'BLE MR. JUSTICE RAJESH RAI K

                     CAV JUDGMENT

1. This Regular First Appeal is filed by the plaintiff-

appellant challenging the judgment and decree dated

26.10.2006 passed by the Addl. Civil Judge (Sr.Dn),

Mandya (for short, "the Trial Court"), in O.S.No.178/1998,

wherein the Trial Court has partly decreed the suit filed by

the appellant for partition and separate possession of her

share in the suit schedule properties.

2. The factual matrix of the case is that, the plaintiff

and defendant No.1 are the daughters of defendant No.3

and one Boregowda. The said Boregowda died on

13.05.1998, leaving behind the plaintiff and defendant

Nos.1 and 3 as his legal representatives and they

succeeded his properties. At the time of his death,

Boregowda was about 95 years old. He had been suffering

from paralysis and was immobile for about 6 to 7 years

prior to his death. Therefore, he had absolutely no

independent capacity to deal with or manage the

properties.

3. The suit schedule properties are the ancestral and

joint family properties of the parties. It is the contention of

the plaintiff that she being a coparcener, is entitled to half

share in the suit schedule properties and also entitled to

1/3rd share in the share of late Boregowda. Thus, the

plaintiff is entitled to 4/6th share in the suit schedule

properties. The plaintiff further contended that defendant

No.1 was given in marriage to one Lakshmana and

residing with her husband. The plaintiff and defendant

Nos.1 and 3 are in joint possession and enjoyment of the

suit schedule properties.

4. The plaintiff further states that about one and a half

months prior to the filing of the suit, when the plaintiff

demanded her lawful share from defendant Nos.1 and 3,

initially, they agreed to give her share, but about a week

prior to filing of the suit, they refused to do so. Hence, she

filed the suit seeking appropriate reliefs.

5. After service of summons defendant Nos.1 and 3

appeared and filed their written statement denying the ill-

health of Boregowda and contended that the marriage of

the plaintiff took place on 18.04.1991 i.e., prior to

commencement of amended Hindu Succession Act. As

such, the plaintiff is not the coparcener. It is contended

that Boregowda was hale and healthy and during his

lifetime, he executed a registered Will dated 05.11.1997 in

respect of item Nos.1 to 5 of suit schedule properties in

favour of defendant No.2, who is the minor son of

defendant No.1 and the plaintiff had the knowledge of the

same. In view of the same, the plaintiff is only entitled to

1/3rd share in respect of item Nos.6 to 8 and 9 i.e., house

property.

6. The Trial Court, after considering the rival pleadings,

framed relevant issues and after examining the evidence

in detail, partly decreed the suit against the defendants

holding the plaintiff is entitled for 1/3rd share in item Nos.6

to 9 of the suit schedule properties and also entitled for

1/3rd share of Boregowda in item No.10 of the suit

schedule properties.

7. Aggrieved by the same, the plaintiff is before this

Court in this first appeal.

8. I have heard Smt.Kavya, learned counsel for

Sri S.Anil Kumar, learned counsel for the appellant/plaintiff

and Sri H.Mohan Kumar, learned counsel for respondent

No.2/defendant No.2. Respondents 2 and 3 are the legal

representatives of deceased respondent No.1.

9. The primary contention of the plaintiff/appellant is

that, undisputedly item Nos.1 to 5 of the suit schedule

properties are the ancestral properties and there was no

partition effected during the lifetime of Boregowda. As

such, the said Boregowda had no exclusive right to

execute a Will in favour of defendant No.2 in respect of

item Nos.1 to 5 i.e., the ancestral and joint family

properties. As such, the Will putforth by the defendants

ought not to have been considered by the Trial Court by

rejecting claim of the plaintiff in respect of item Nos.1 to 5

in the suit schedule properties. Accordingly, prays for

allowing the appeal.

10. Per contra, learned counsel for the

respondents/defendant Nos.2 and 3 contended that the

Trial Court has rightly held that the plaintiff has failed to

prove that item Nos.1 to 5 of the suit schedule properties

are the joint family properties of Boregowda and also

rightly held that late Boregowda executed a Will dated

05.11.1997 by bequeathing item No.1 to 5 of the suit

schedule properties in favour defendant No.2. In such

circumstances, the plaintiff is not entitled to her share in

item Nos.1 to 5 of the suit schedule properties. He further

contended that the Will executed by Boregowda in favour

of defendant No.2 has been clearly proved in the evidence

of attesting witnesses - D.W.2 and D.W.3 and the Will-

Ex.D1 being a registered document, there is no reason to

disbelieve the same. As such, the Trial Court has rightly

rejected the claim of the plaintiff in respect of item Nos.1

to 5 of the suit schedule properties and accordingly, prays

for dismissal of the appeal.

11. Having heard the contentions of learned counsel for

both the parties and having perused the impugned

judgment and decree passed by the Trial Court, the

following point would arise for my consideration:

"(ii) Whether the Trial Court was justified in

holding that the plaintiff is not a coparcener in

respect of item Nos.1 to 5 of the suit schedule

properties?

(ii) Whether the Trial Court was justified in

holding that in view of the Will dated

05.11.1997 executed by late Boregowda in

respect of item Nos.1 to 5 in the suit schedule

properties which are the ancestral and joint

family properties, the plaintiff is not entitled

to her share in the said properties?"

12. As could be gathered from records, the suit schedule

properties are the ancestral and joint family properties of

deceased Boregowda, plaintiff and the defendants. It is

not in dispute that the said properties continued to remain

in joint during the lifetime of Boregowda. There is no

convincing documentary or oral evidence placed before the

Court to establish that a lawful partition of the suit

schedule properties had taken place during the lifetime of

Boregowda. In the absence of proof of such partition, the

legal presumption is that the properties continued to retain

its character as joint family properties.

13. The plaintiff has specifically contended that she being

the daughter of Boregowda, is a coparcener of the joint

family properties. The Trial Court, however, held that the

plaintiff is not a coparcener and thereby denied her claim

in respect of item Nos.1 to 5 of the suit schedule

properties. Such a conclusion requires reconsideration in

the light of the settled position of law in the case of

Vineeta Sharma v. Rakesh Sharma - 2020 (9) SCC 1,

wherein the Apex Court has authoritatively interpreted the

provisions of Hindu Succession Act, 1956, as amended by

the Hindu Succession (Amendment) Act, 2005. The

Supreme Court has held that a daughter becomes a

coparcener by birth in the same manner as a son and has

equal rights and liabilities in the coparcenary property. The

Court further clarified that the right of a daughter as a

coparcener does not depend upon whether the father was

alive on the date of the amendment. The only exception

recognized is whether a partition had been effected before

20.12.2004 by a registered partition deed or by a decree

of a competent court.

14. Since the plaintiff is admittedly the daughter of

Boregowda, she acquires the status of a coparcener by

birth in the joint family property. Further, upon the death

of Boregowda, the plaintiff also becomes a Class I legal

heir under the scheme of succession provided in the Hindu

Succession Act. Therefore, both by virtue of her birth and

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by operation of statutory succession, the plaintiff is

entitled to claim a share in the joint family properties.

15. Further, it is seen that deceased Boregowda

executed the Will dated 05.11.1997 bequeathing item

Nos.1 to 5 of the suit schedule properties in favour of

defendant No.2 as per Ex.D1. However, at the time of

execution of the said Will, Boregowda did not have

exclusive ownership over the same since the properties

were not partitioned. The properties were admittedly joint

family properties and other coparceners, including the

plaintiff, had a birthright in the same. Consequently,

Boregowda could not have legally bequeathed the entire

item Nos.1 to 5 of the suit schedule properties in favour of

defendant No.2. In view of this legal position, even

assuming for the sake of argument that the Will dated

05.11.1997 was duly executed, the same cannot be

operated so as to defeat or extinguish the statutory and

coparcenary rights of the plaintiff in respect of item Nos.1

to 5 of the suit schedule properties.

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16. For the aforesaid reasons, the points for

consideration are answered in favour of the

appellant/plaintiff. Accordingly, I pass the following:

ORDER

(i) The appeal is allowed.

(ii) The findings in the impugned judgment with regard to the Will dated 05.11.1997 is set aside. The plaintiff is also held entitled to 1/3rd share in respect of item Nos.1 to 5.