Partly allowed

Smt Padma v. Smt N Indramanni @ N Mahadevamma

Karnataka HC8 Oct 2013RSA/1711/2008

Case brief

AI extract

What is this about?

In a regular second appeal regarding partition suit, the High Court held that while the joint family was severed by the suit instance, upon the first defendant's death, her half share devolved exclusively on the appellant. The Court found the appellant entitled to 2/3 shares and the respondent to 1/3 share, allowing the appeal partially.

What did the court decide?

The appeal is allowed in part; decrees of courts below modified to grant appellant 2/3 share and respondent 1/3 share.

Smt Padma Vs Smt N Indramanni @ N Mahadevamma — Partition | Karnataka HC (2013)

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RSA 1711/08

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

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DATED THIS THE 8^TH DAY OF OCTOBER, 2013

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BEFORE:

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THE HON’BLE MR. JUSTICE A.S.PACHHAPURE

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REGULAR SECOND APPEAL No.1711 OF 2008

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BETWEEN:

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Padma, W/o. Prabhuswamy, Aged about 40 years, R/o. Kunthur Village, Kollegal Taluk, Chamarajanagar District-571 440. ... APPELLANT/S [By Sri. S.R. Hegde Hudlamane, Adv.]

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AND:

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N. Indramanni @ N. Mahadevamma, W/o. Late Mahadevaswamy, Aged about 50 years, R/O. Door No.3757/3A, Veeranagere, Pulakeshi Road, Mysore-571 313. ... RESPONDENT/S [By M/s. M. Sivappa & Assocs., Advs.] ***

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This RSA is filed u/Section 100 of CPC against the Judgment and Decree dated 16.04.2008 passed in

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RSA 1711/08

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R.A. No.57/2006 on the file of the Civil Judge (Sr.Dn.) and JMFC., Kollegala, dismissing the appeal and confirming the Judgment and Decree dated 26.06.2004 passed in O.S. No.48/1996 on the file of the Prl. Civil Judge (Jr.Dn.) and JMFC., Kollegala.

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This RSA coming on for Dictating Judgment this day, the Court delivered the following:

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JUDGMENT

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The appellant has challenged the Judgments and

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Decrees of the Courts below, granting one half share

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to the respondent in the suit property.

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The facts relevant for the purpose of this

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appeal are as under:

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The parties are referred to their rank before the trial Court for the sake of convenience.

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The appellant herein is the 2^nd defendant, whereas the respondent is the plaintiff, who instituted the suit for partition and separate possession of her share in the suit properties. Late Nanjadevaru @ Shivananjappa, the father of the

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RSA 1711/08

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plaintiff and the 2^nd defendant, married the first wife and the plaintiff is the daughter through the first wife, then he married the second wife, who is the 1^st defendant in the suit and the 2^nd defendant is the daughter through the second wife i.e., the 1^st defendant. During the pendency of the suit, the 1^st defendant died.

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The trial Court having framed issues permitted the parties to lead evidence wherein the plaintiff was examined as P.W.1 and documents Exs.P1 to 8 were marked. The defendant examined D.Ws.1 to 3 and documents Exs.D1 to 12 were marked.

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The trial Court after hearing the parties and on appreciation of the evidence on record, granted one half share to the plaintiff. The 2^nd defendant [appellant herein] preferred the appeal before the first appellate Court in R.A. No.57/2006 and it came to be dismissed on merits affirming one half share granted to the respondent/plaintiff. Aggrieved by

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RSA 1711/08

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the Judgments and Decrees of the Courts below, the

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2^nd defendant is in appeal before this Court.

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While admitting the matter, this Court

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raised the following substantial question of law for consideration:

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Whether the Courts below were justified in allotting half share to the plaintiff, in view of the provisions contained in the Hindu Succession Act?

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I have heard learned counsel for the

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parties.

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Learned counsel for the appellant would

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contend that on the death of late Nanjadevaru @ Shivananjappa, each of the parties to the suit had 1/3^rd share and as the 1^st defendant died during the pendency of the suit and there was disruption of the joint family, the share of the 1^st defendant has to be inherited by the 2^nd defendant [appellant herein]. Hence the counsel submits that the Courts below

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RSA 1711/08

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committed an error in granting half share to the respondent. He submits that under Section 18 of the Hindu Succession Act as the 2^nd defendant is the full blood daughter of the 1^st defendant and as the plaintiff is the half blood daughter, the share of the 1^st defendant devolves on the 2^nd defendant [appellant herein] only. Hence, he contends that the appellant is entitled to 2/3^rd share in the suit properties.

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On the other hand, learned counsel for the respondent submits that the 2^nd defendant [appellant herein] has admitted in her evidence that the respondent/plaintiff is entitled to half share and therefore, she contends that the grievance of the appellant cannot be maintained.

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It is not in dispute that the plaintiff is the daughter through the first wife and the 2^nd defendant is the daughter through the second wife [1^st defendant] of late Nanjadevaru @ Shivananjappa

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RSA 1711/08

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and therefore, on the death of said Nanjadevaru @ Shivananjappa, the suit properties are inherited by the plaintiff and also the defendants. By the institution of the suit, there is severance in the joint family status. Though there is no partition by metes and bounds, the partition in one sense is a severance of joint status of the members of the joint family and the share of defendant No.1 after disruption of joint family status has to go to her full blood daughter-defendant No.2. Learned counsel for the respondent has relied on a decision reported in 1980 Supp Supreme Court Cases 298 [Kalyani (dead) Vs. Narayanan and others]; wherein on the question of severance of joint family status, the Apex Court held:

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“Partition in one sense is a severance of joint status and coparcener of a coparcenary is entitled to claim it as a matter of his individual volition. In this narrow sense all that is necessary to constitute partition is a

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RSA 1711/08

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definite and unequivocal indication of his intention by a member of a joint family to separate himself from the family and enjoy his share in severalty. What form such intimation, indication or representation of such interest should take would depend upon the circumstances of each case. Undoubtedly, indication or intimation must be to members of the joint family likely to be affected by such a declaration”.

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So on the date when the suit came to be instituted

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by the plaintiff, it is deemed in law that there is disruption in the joint family status of the parties and therefore, each of the parties are entitled to their interest in the joint family property. Thereby, on the date of institution of the suit, if the share of each of the parties is calculated as contemplated under Section 18 of the Hindu Succession Act, thereby the plaintiff, defendants 1 and 2 are entitled to equal share in the suit properties as there is disruption in the joint

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RSA 1711/08

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family status. If once there is disruption in the

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joint family status on the death of the 1^st defendant, the 2^nd defendant [appellant herein] being the full blood daughter and the plaintiff being the half blood daughter, Section 18 of the Hindu Succession Act provides that heirs related to an intestate by full blood shall be preferred to heirs related by half blood, if the nature of the relationship is the same in every other aspect. So, the father of the plaintiff and the 2^nd defendant is the same person, whereas their mothers are different and as the 1^st defendant is the mother of the 2^nd defendant [appellant herein], she is the full blood daughter and the plaintiff would be a half blood daughter. Therefore, so far as the share of the 1^st defendant in the suit properties is concerned, it has to be inherited by the 2^nd defendant alone and not by the plaintiff. On this aspect of the matter, learned counsel for the appellant has placed reliance on the decision reported in AIR 1963 Mysore

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RSA 1711/08

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168 [Biligeri Rangamma Vs. Annapurnamma (1^st

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defendant, since transposed as plaintiff]; wherein this Court taking into consideration the provisions of Section 18 of the Hindu Succession Act in respect of full blood and half blood sister has reiterated the provisions of 18 of the Hindu Succession Act and held that full blood is to be preferred to half blood relations.

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It is no-doubt true that the 2^nd defendant in her cross-examination admits that she had

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suggested by way of settlement to give half share to the plaintiff but she also told that the plaintiff is not entitled to half share in the suit

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properties. That apart, the parties may be unaware of the legal provisions and the benefits that are derived on the basis of the provisions contained of the law. The 2^nd defendant might have mistaken the propositions of law and that itself is not sufficient to reject her legitimate claim under the aforesaid provision.

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RSA 1711/08

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In the facts and circumstances, I am of the

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opinion that the appellant is entitled to 1/3^rd + 1/3^rd = 2/3^rd share in the suit properties. Accordingly, the substantial question of law raised is answered in negative holding that the appellant is entitled to 2/3^rd share in the suit properties. Whereas the respondent is entitled to her 1/3^rd share. Consequently the appeal is allowed in part. The Judgments and Decrees of the Courts below are accordingly modified to the extent stated above. No costs.

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Sd/JUDGE.

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Ksm*

Smt Padma v. Smt N Indramanni @ N Mahadevamma

Case brief

What is this about?

What did the court decide?

Smt Padma v. Smt N Indramanni @ N Mahadevamma

Case brief

What is this about?

What did the court decide?

What the court decided

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