High Court of Karnataka allowed a partition suit appeal, modifying shares based on Bombay School law principles regarding notional partition. The widow and sons received 11/60th shares, while daughters received 1/60th shares.
Modification of shares: Widow and sons allotted 11/60th share; daughters allotted 1/60th share; appeal allowed in part.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA DHARWAD BENCH
DATED THIS THE 13TH DAY OF NOVEMBER, 2018
PRESENT
THE HON’BLE MRS. JUSTICE B.V. NAGARATHNA
AND
THE HON’BLE MR. JUSTICE BELLUNKE A.S.
R.F.A. No.100285/2016 (PAR/POS)
BETWEEN:
VENKAPPA, S/O SOMAPPA HANGANAKATTI, AGE: 59 YEARS, OCC: AGRICULTURE, R/O: HULKOTI, HUDCO COLONY, HARTI ROAD, HULKOTI-582205, TQ. DIST: GADAG.
... APPELLANT
(BY SRI K.L.PATIL, ADVOCATE)
AND
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R/O: HULKOTI, KARIKULADA ONI, HULKOTI, TQ. DIST: GADAG-582205.
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THIS APPEAL IS FILED UNDER SECTION 96 OF C.P.C., AGAINST THE JUDGMENT AND DECREE DATED 26.11.2013 PASSED IN O.S.NO.75/2013 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND C.J.M., GADAG, DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, NAGARATHNA J., DELIVERED THE FOLLOWING:
Though this appeal is listed for admission with the consent of learned counsel on both sides, it is heard finally.
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(i) (ii) and suit Item No.II (i) (ii) (iii) (iv) are ancestral properties which were allotted to the share of her husband-Somappa in the partition which took place between him and his brothers in the year 1955. That during his lifetime, Somappa had purchased suit Item No.I(A) (iii) (iv) and suit Item No.I(C) (i) under a registered sale deeds in the name of his eldest son defendant No.1Venkappa-the appellant herein on 25.06.1962 and 21.12.1965 respectively from agricultural income derived from ancestral properties. At the time of purchase of the said lands, first defendantappellant herein was five years old. That the said minor son had no independent income at that time. Somappa-husband of the plaintiff also purchased suit (A) (v) under a registered sale deed in his name on 16.05.1973. That all the suit properties belong to plaintiff and defendant Nos.1 to 9(b) and they are in joint possession and enjoyment of the same. That plaintiff and
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defendant Nos.1 to 8 have 1/10th share each and defendant No.9(a) and 9(b) together have 1/10th share in the suit properties. That after the death of Somappa, no partition has taken place between plaintiff and defendant Nos.1 to 9. Defendant Nos.1 to 5 have colluded and behind the back of the plaintiff and defendant Nos.5 to 8 and deceased Smt.Summawwa-defendant No.9 respectively created documents seeking to alienate certain items, such as, suit Item No.I(C) (ii) land to defendant No.10 and suit Item No.II(i) house property to defendant No.11. According to the plaintiff, these transactions are void, illegal and not binding upon the plaintiff and defendant Nos.5 to 8. That the plaintiff came to know about the mutation entry made in their names and thereafter insisted for partition of the suit properties. When the same was declined by defendant Nos.1 to 4, she filed the suit seeking partition and separate possession of the suit properties.
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Court notices, defendant Nos.3, 4, 6, 7 and 9(a) and 9(b) appeared through their counsel, but defendant Nos.1, 2, 5, 8, 10 and 11 failed to appear before the trial Court and they were placed ex parte.
consideration.
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properties of herself and defendants and are available for partition?
the trial Court answered Point Nos.1 and 2 in the affirmative and decreed the suit as under:
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by metes and bounds as provided under law.
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our attention to the judgment and decree passed by the trial Court to contend that even in the absence of any written statement being filed by the defendants, the trial Court erred in awarding 1/10th share to each of the parties. He contended that even on the application of the principles of division of Mitakshara coparcenary property relating to Bombay School, the daughters are not entitled to a share equal to that of the sons, since their father died in the year 1993 much prior to the amendment made to Section 6 of the Hindu Succession Act, 1956 (hereinafter referred to as the ‘Act’ for the sake of brevity). He therefore submitted that the trial Court erred in granting a share to the daughters equal to that of the sons in the family. He further submitted that certain suit items were purchased by the father of the appellant in the name of the appellant and they are deemed to be separate properties. But the
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respondent-plaintiff has included those properties as joint family properties which could not have been so included. The trial Court ought to have excluded those properties from partition. Thirdly, learned counsel for the appellant submitted that certain properties have been alienated on account of legal necessity and even in the alienated properties shares have been allotted by partition and separate possession. Therefore, the judgment and decree of the trial Court ought to be set aside and the matter may be remanded to the trial Court for fresh adjudication by giving the appellant an opportunity to file written statement.
respondent No.1 as well as learned counsel for respondent Nos.4 and 6 to 10 supported the judgment and decree of the trial Court and contended that in view of the amendment made to Section 6 of the Act, the daughters are treated as
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coparceners and therefore they are entitled to a share equal to that of the sons and that there is no merit in the appeal particularly when the appellant has failed to file any written statement he cannot be permitted to raise any contention on the merits of the case. They submitted that the appeal may be dismissed.
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Krishtappa are the sons-defendant Nos.1 to 4 while, Kusumawwa, Venkawwa, Girijawwa, Shantawwa and Summawwa are the daughters-defendant Nos.5 to 9. Summawwa died in the year 2006 leaving behind her husband Giriyappa who also died in the year 2009 and their children Smt.Padmawwa and Pandu have been impleaded as defendant Nos.9(a) and 9(b) in the suit. Defendant Nos.10 and 11 are the purchasers of the respective items. It is the case of the plaintiff that suit Item Nos.I(A) (i) (ii) (iii) (iv) (v) and suit Item No.I(B) (i) (ii) and suit Item Nos.II (i) (ii) (iii) (iv) are ancestral properties which were allotted to the share of Somappa at a partition which took place in the year 1955. Further, Somappa, during his lifetime, purchased suit Item Nos.I(A) (iii) (iv) and suit Item Nos.I(C) (i) under registered sale deeds in the name of his eldest son appellant herein on 25.06.1962 and 21.12.1965. At that time, the appellant herein was
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only five years old. That Somappa had also purchased suit Items (A) (v) under a registered sale deed dated 16.05.1973 in his name. Plaintiff has contended that all these suit items are ancestral and or joint family properties and has included them in the suit schedule so as to seek the relief of partition and separate possession of the said items. Plaintiff has contended that suit item I(C) (ii) has been sold by defendant Nos.1 to 4 to defendant No.10, while suit Item No.II(i) house property has been sold by them to defendant No.11 and that the said alienations are illegal as the plaintiff has a share in those items also.
being filed by the defendants, the trial Court considered the evidence of PW1, both oral as well as documentary. In support of her oral evidence, PW1 produced Exs.P1 to P4 being certified copies
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of VPC extracts; Exs.P5 to P13 being record of rights of the lands in question; Exs.P14 to P21 being the mutation extracts, Ex.P22 being Death Certificate of Somappa and Exs.P23 to P25 being the mutation extracts. On the basis of the said evidence, the trial Court held that the said properties are ancestral/joint family properties of the family and granted equal share of being 1/10th to each of the members of the family.
counsel is that the shares allotted to the plaintiff and defendants is incorrect. That the daughters do not get a share equal to that of the sons, although under the Bombay School, the widow is entitled to a share equal to that of her son. There is substance in the said submission. In this regard reliance could be placed on the judgment of the Hon’ble Supreme Court in the case of Gurupad Khandappa Magdum V/s Hirabai Khandappa
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Magdum and others reported in (1978) 3 SCC 383, wherein the Hon’ble Supreme Court has applied the principle of notional partition under Section 6 of the Act as it stood prior to its amendment on 09.09.2005. The reason why the principle of notional partition would apply in the instant case is on account of the fact that the original propositus Somappa, died in the year 1993 and hence the decision of the Hon’ble Supreme Court in Prakash V/s Phulavati reported in ILR 2015 Karnataka Page 5329 on amended Section 6 would not apply as the father and the daughters are not both alive on 09.09.2005. In the circumstances the judgment of the Hon’ble Supreme Court in the aforesaid case of Gurupad Khandappa Magdum V/s Hirabai Khandappa Magdum and others would squarely applies and since the parties are covered under the Bombay School of Mitakshara Law, the first respondent-plaintiff, widow of Somappa would be entitled to a share equal to that of her sons at
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a notional partition. Paragraph Nos.10, 11 and 13 of the aforesaid judgment is extracted as under for immediate reference.
10. Two things are thus clears: One, that in a partition of the coparcenary property Khandappa would have obtained a 1/4th share and two, that the share of the plaintiff in the 1/4th share is 1/6th , that is to say, 1/24th . So far there is no difficulty. The question which poses a somewhat difficult problem is whether the plaintiff's share in the coparcenary property is only 1/24th , or whether it is 1/4th plus 1/24th, that is to say, 7/24th. The learned trial Judge, relying upon the decision in Shiramabai (supra) which was later overruled by the Bombay High Court, accepted the former contention while the High Court accepted the latter. The question is which of these two views is to be preferred.
11. We see no justification for limiting the plaintiff's share to 1/24th by ignoring the 1/4th share which she would have obtained had there been a partition during her husband's life time between him and his two
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sons. We think that in overlooking that 1/4th share, one unwittingly permits one's imagination to boggle under the oppression of the reality that there was in fact no partition between the plaintiff's husband and his sons. Whether a partition had actually taken place between the plaintiff's husband and his sons is beside the point for the purposes of Explanation 1. That Explanation compels the assumption of a fiction that in fact "a partition of the property had taken place", the point of time of the partition being the one immediately before the death of the person in whose property the heirs claim a share.
12. x x x x x x x
13. In order to ascertain the share of heirs in the property of a deceased coparcener it is necessary in the very nature of things, and as the very first step, to ascertain the share of the deceased in the coparcenary property. For, by doing that alone can one determine the extent of the claimant's share. Explanation 1 to Section 6 resorts to the simple expedient, undoubtedly fictional, that the interest of a Hindu Mitakshara coparcener "shall be deemed
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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 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
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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 life time 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.
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Somappa, his widow and all the children being totally ten members would be entitled to share which is 1/60th share. Thus, the share of the appellant and his brothers as well as first respondent-mother would be 1/6 + 1/10 = 11/60th share and the daughters’ share is 1/16th each. The judgment and decree of the trial Court in this regard is liable to be modified and is modified in the aforesaid manner.
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there is no pleading nor evidence. The reason being that the appellant did not file any written statement and therefore did not let-in any evidence in the matter. Further, the appellant did not even cross-examine PW1 so as to extract any incriminating evidence in his favour. That apart the appellant was only five years old when his father purchased the said properties in his name. Aforesaid properties were acquired by his father in appellant’s name, he being eldest son. This itself indicates that the appellant did not have any independent source of income and the acquisition of the properties was out of the nucleus derived from the ancestral properties which appellant’s father had derived at a partition between him and his brothers long prior to purchase of the said properties. In the circumstances, there is no merit in the aforesaid contention.
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respective parties are concerned, the plaintiff and defendant Nos.1 to 4 each are allotted 11/60th share while, defendant Nos.5 to 8 are allotted 1/60th share each and defendant Nos.9(a) and 9(b) are together allotted 1/60th share.
Having regard to the relationship between the parties, there is no order as to costs.
In view of disposal of the appeal, I.A.No.2/2016 stands disposed.
Office to draw the decree accordingly.
Sd/JUDGE
Sd/JUDGE
CLK
3 issues framed by the court
Whether daughters are entitled to an equal share to sons in notional partition under the unamended Section 6 of the Hindu Succession Act, 1956?
Whether properties purchased in the name of a minor son derived from ancestral income should be treated as joint family property?
Whether properties alienated without proof of legal necessity should be excluded from the subject matter of partition?
Colour shows how this judgement treated each authority
Gurupad Khandappa Magdum V/s Hirabai Khandappa Magdum and othersApplied¶16
(1978) 3 SCC 383 · Who else cites this
Prakash V/s PhulavatiDistinguished¶16
ILR 2015 Karnataka Page 5329 · Who else cites this
2 provisions across 2 enactments
VENKAPPA
SMT.NINGAWWA
GOVINDAPPA
VASAPPA
KRISHNAPPA @ KRISHTAPPA
SMT.PADMAWWA
B.V. NAGARATHNA
BELLUNKE A.S
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
