Remanded

Sri K M Appaiah v. Mrs C P Poovaiah

Karnataka HC30 Jul 2021RFA/1222/2017

Case brief

AI extract

What is this about?

This appeal challenged a final decree order for failing to consider amended provisions of the Hindu Succession Act granting coparcenary rights to daughters. The High Court set aside the order and remitted the matter for re-drafting the final decree in accordance with Vineeta Sharma and applicable amendments.

What did the court decide?

Impugned order dated 23.03.2017 set aside; matter remitted to Trial Court to re-draw final decree in terms of Vineeta Sharma judgment and amended Hindu Succession Act.

Sri K M Appaiah Vs Mrs C P Poovaiah — Succession and Inheritance | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 30^TH DAY OF JULY, 2021

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PRESENT

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THE HON’BLE MRS.JUSTICE S.SUJATHA

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AND

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THE HON’BLE MR. JUSTICE RAVI V. HOSMANI

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R.F.A.No.1222/2017

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BETWEEN :

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SRI K M APPAIAH (SINCE DECEASED BY HIS LEGAL REPRESENTATIVES)

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MRS.K.INDIRA APPAIAH W/O LATE SRI KAMBIRANDA M. APPAIAH AGED ABOUT 78 YEARS

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MR.K.A.MADAPPA S/O LATE SRI KAMBIRANDA M. APPAIAH AGED ABOUT 50 YEARS

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MRS.K.VIDYA APPAIAH D/O LATE SRI KAMBIRANDA M. APPAIAH AGED ABOUT 48 YEARS

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ALL ARE R/AT "TEAK WOOD ESTATE", P.B.No.30, SIDDAPUR-571 253 VIRAJPET TALUK, KODAGU DISTRICT. ...APPELLANTS

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(BY SRI APPAIAH.P.B., ADV.)

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AND :

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MRS.C.P.POOVAIAH W/O MR.C.A.POOVAIAH (SINCE DECEASED BY HER LEGAL REPRESENTATIVES)

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MR.C.A.POOVAIAH AGED ABOUT 100 YEARS S/O LATE MR.CODANDA ACHAYYA R/AT "INDRAPRASTHA ESTATE" GARAGANDUR VILLAGE, MADAPUR POST, SOMWARPET TALUK, KODAGU-571 251.

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MR.C.P.APPANNA AGED ABOUT 36 YEARS S/O MR C A POOVAIAH R/AT NO.6/31, TATA HOUSING COLONY, MATUNGA, MUMBAI-400 019

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MR.C.P.CHENGAPPA AGED ABOUT 35 YEARS S/O MR.C.A.POOVAIAH

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MR.C.P.MUDDAPPA AGED ABOUT 32 YEARS S/O MR.C.A.POOVAIAH

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RESPONDENT Nos.3 AND 4 ARE R/AT "INDRAPRASTHA ESTATE" GARAGANDUR VILLAGE, MADAPUR POST, SOMWARPET TALUK, KODAGU-571 251.

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MR.C.P.MEDAPPA AGED ABOUT 31 YEARS S/O MR C.A.POOVAIAH R/AT No.24, 1^ST CROSS, VIVEKANANDA NAGAR, COOKE TOWN, BENGALURU-560 005

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MR.C.P.CARIAPPA AGED ABOUT 30 YEARS S/O MR.C.A.POOVAIAH R/AT C/O LRTF, RAJ 56 APO, NEW DELHI-110 001.

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MRS K.P.THIMMAIAH W/O LATE MR.K.C.THIMMAIAH (SINCE DECEASED BY HER LEGAL REPRESNETATIVE)

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MR.K.T.MEDAPPA, AGED ABOUT 58 YEARS S/O LATE MR.K.C.THIMMAIAH, R/AT NO.33,"GANGA SHIVAJI" N.R.MOHALLA, MYSURU-570 001

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MRS.K.MACHU BOPAIAH AGED ABOUT 83 YEARS W/O MR KODIRA W. BOPAIAH R/AT "KALLUMANTI ESTATE", P.B NO.37, SIDDAPUR POST, VIRAJPET TALUK, KODAGU-571 253 MRS.K.B.PONNAPPA W/O MR.K.M.PONNAPPA (SINCE DECEASED BY HER LEGAL REPRESENTATIVES)

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MRS.K.VILLINA GANAPATHY AGED ABOUT 55 YEARS D/O MR.K.M.PONNAPPA & LATE MRS.K.BOLLAMMA PONNAPPA, W/O MR.K.A.GANAPATHY, R/AT A-3, 510, GHATAPRABHA NATIONAL GAMES VILLAGE KORAMANGALA, BENGALURU-560 047

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MRS.VINITHA APPANNA AGED ABOUT 53 YEARS D/O MR.K.M.PONNAPPA, & LATE MRS.K.BOLLAMMA PONNAPPA, W/O MR.CHONIRA P. APPANNA R/AT No.503, VELAIGIRI APARTMENTS, BUDH MARG, PATNA-800 001

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MRS.K.NANJAMMA KUTTAPPA AGED ABOUT 85 YEARS W/O MR.K.M.KUTTAPPA, R/AT HOUSE No.62, ANUGRAHA, DEEPANAGAR, BHOGODI POST, MYSURU-570 001. SINCE DECEASED BY HER LEGAL REPRESENTATIVES

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11[a] SMT.VIDULA SUNDARAM D/O LATE MRS.K.NANJAMMA KUTTAPPA W/O MR.SHIVAKUMAR SUNDARAM AGED 51 YEARS, R/AT No.67, DEFENC COLONY, CHENNAI-600032. 11[b] SMT.PRIYA PALACHANDA D/O LATE MRS.K.NANJAMMA KUTTAPPA W/O MR.PALACHANDA MADAPPA AGED 47 YEARS, R/AT No.122 1^ST CROSS, TEMPLE ROAD ROOP NAGAR, BOGADI POST MYSURU-570026. 12. MRS.KAVERY BELLIAPPA AGED ABOUT 81 YEARS W/O DR.K.P.BELLIAPPA, R/AT No.22, CAMBORNE AVENUE, MACCLESFIELD, UNITED KINGDOM AND ALSO AT C/O MISS K.BOJAMMA MADAPPA, "KALLUMANTI ESTATE", POST BOX No.37, SIDDAPUR POST, VIRAJPET TALUK, KODAGU-571 253 13. MISS K.BOJAMMA MADAPPA AGED ABOUT 79 YEARS D/O LATE MR.KAMBIRANDA MADAPPA, PREVIOUSLY R/AT "TEAK WOOD ESTATE", P.B.No.30, SIDDAPUR-571 253 VIRAJPET TALUK, KODAGU DISTRICT AND PRESENTLY R/AT "KALLUMANTI ESTATE", POST BOX No.37, SIDDAPUR POST, VIRAJPET TALUK, KODAGU-571 253. …RESPONDENTS

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(BY SRI ABDULLA.T.I.0, ADV. FOR R-2 TO R-10, R-11[a & b], R-12 & R-13; R-2 TO R-6 ARE LRS OF DECEASED R-1.)

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THIS R.F.A IS FILED UNDER SEC.96 AND ORDER XLI RULE 1 OF CPC., 1908 AGAINST THE ORDER DATED 23.03.2017 PASSED IN FDP NO.5/1996 ON THE FILE OF THE SENIOR CIVIL JUDGE, VIRAJPET, ALLOWING THE PETITION FILED UNDER SEC.54 R/W ORDER XX, RULE 12 AND 18 OF CPC.

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THIS APPEAL COMING ON FOR ORDERS, THIS DAY, S. SUJATHA, J ., DELIVERED THE FOLLOWING:

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J U D G M E N T

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This appeal is filed by the respondents in FDP.No.5/1996 on the file of the Senior Civil Judge, Virajpet [‘Trial Court’ for short] challenging the orders on petition filed by the petitioners under Section 54 read with Order XX, Rules 12 and 18 of CPC and the Orders on I.A.No.XXVI filed by the respondents under Section 151 of CPC dated 23.03.2017 passed in FDP No.5/1996 by the Trial Court.

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For the sake of convenience, the parties are

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referred to as per their ranks and status before the Trial Court in FDP.No.5/1996.

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O.S.No.60/1987 was filed by the respective

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mothers of petitioner Nos.1[b], 1[c], 1[d], 1[e], 1[f], 2[a], 4[a], 4[b] and petitioner Nos.3, 5, 6 and 7 for partition and separate possession against the husband of the respondent No.1[a] and father of the respondent Nos.1[b] and 1[c], seeking partition and separate

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possession of the joint family properties left by Mr.Kambiranda M. Madappa who was the father of the aforesaid persons. During the pendency of the said suit, the Court of Civil Judge having been established in Virajpet Taluk, the said O.S.No.60/1987 got transferred to the newly established Court at Virajapet and the said suit was re-numbered as O.S.No.10/1991, after contest, the said suit was decreed in favour of the respondents on 22.10.1993. Aggrieved by the said preliminary decree, RFA No.64/1994 was filed by the LRs of K.M.Appaiah before this Court and RFA No.423/1995 was filed by the respondent Nos.1 to 7. Both the appeals were clubbed and heard together by the Co-ordinate Bench of this Court and this Court was pleased to dismiss the appeal filed by the LRs of deceased K.M.Appaiah and partly allowed the appeal filed by the respondent Nos.1 to 7 by order dated 06.12.2004.

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It transpires that during the pendency of the

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appeal proceedings, an amendment was brought to Section 6 of the Hindu Successions Act, 1956 by the Karnataka State Legislature. Benefit of the said amendment was accorded to the female members of the joint family who got married three years prior to amendment to Hindu Succession Act of Karnataka. In RFA No.423/1995, the decree was modified in consonance with the Hindu Succession Act [Amendment Act of Karnataka]. Since the respondent No.7 was a spinster, she was allotted the share of the property on par with the deceased K.M.Appaiah. During the pendency of the appeal before this Court, final decree proceeding was initiated in FDP No.5/1996 on the file of the learned Civil Judge, Virajpet. During the pendency of the FDP proceedings, the Parliament further amended Section 6 of the Hindu Succession Act, 1956 giving status of coparcener to the female members of the joint family. In view of the said amendment, an application

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was filed by the petitioner Nos.1 to 7 in the FDP proceedings to modify the decree in consonance with the amendment brought to Section 6 of the Hindu Succession Act, 1956 in the year 2005. The said FDP No.5/1996 got disposed of by the learned Civil Judge as per the judgment rendered by this Court in RFA.Nos.64/1994 and 423/1995 sans taking into consideration the amendment effected to the Hindu Successions Act by Amendment Act 39 of 2005 coming into force with effect from 09.09.2005. FDP proceedings were closed as per the order dated 23.03.2017 which is impugned in this appeal.

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The legal representatives of K.M.Appaiah have challenged the impugned order inter alia contending that the learned Trial Judge has simply apportioned the Schedule ‘B’ and ‘C’ equity shares in accordance with the terms of the Preliminary decree without segregating the self-acquired equity shares of late K.M.Appaiah as was required to be done and which

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could only be done by holding a detailed enquiry, ignoring the decree which clearly shows that such enquiry as to the self-acquired equity shares of K.M.Appaiah has never carried out and the same has to be done at the time of the enquiry.

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Yet another ground of challenge is that even division and disbursement of the amounts deposited before the Trial Court being the dividends declared on the Schedule ‘B’ and ‘C’ equity shares are wholly erroneous not only for the reasons of not holding detailed enquiry but the same is contrary to the order passed by this Court in W.P.No.48986/2013 dated 25.06.2014. The said writ petition was filed by the Legal representatives of K.M.Appaiah against the respondents challenging the order dated 10.09.2013 on I.A.No.20 in the final decree proceedings. This Hon’ble Court while disposing of the said writ petition has categorically observed that part of the order by which the petitioners [appellants herein] are

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directed to deposit a sum of Rs.5,34,849/- shall remain stayed till the enquiry is concluded and it would be subject to the outcome of the enquiry.

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It is the grievance of the appellants that no

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such enquiry was conducted by the Trial Court and the impugned order is arbitrary and perverse for this reason and requires to be set aside.

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In the present appeal proceedings, learned

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counsel for the respondent has filed I.A.No.1/21 under Order 41 Rule 23A read with Section 151 of CPC

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seeking for setting aside part of the final decree pertaining to immovable property and remand the matter to the Trial Court with a direction to pass fresh judgment and final decree in FDP.No.5/1996 as per the amended provisions of the Hindu Succession Act, 1956, keeping in mind the judgment of the Hon'ble Apex Court enunciated in Vineeta Sharma V/s. Rakesh Sharma

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and Others [AIR 2020 SC 3717] and to allot the share

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to female coparceners as per the amended Section 6 of the Hindu Succession Act, 1956.

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We have heard the learned counsel

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appearing for the parties and perused the material on record.

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It is imperative that the legal principles

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propounded by the Hon'ble Apex Court in Vineeta Sharma supra, has to be followed by the Courts even in

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the pending matters. The Hon'ble Apex Court in the said judgment has summarized the legal principles as under:

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“129. Resultantly, we answer the reference as under:

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(i) The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.

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(ii) The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition

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which had taken place before 20th day of December, 2004.

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(iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.

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(iv) The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class-I as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.

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(v) In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of

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oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.”

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In view of the aforesaid judgment, the matter certainly requires re-consideration. Final decree proceedings has to be re-drawn in terms of the judgment of the Hon'ble Apex Court in Vineeta Sharma supra, read with amended Section 6 of the Hindu Succession Act, 1956.

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Hence, the impugned order dated

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23.03.2017 passed in FDP No.5/1996 on the file of the Trial Court is set aside and the matter is remitted to the Trial Court to re-draw the final decree in terms of the Vineeta Sharma supra, keeping open all the rights and contentions of the parties. Ordered accordingly.

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We request the Trial Court to decide the matter expeditiously as far as possible within six months from

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the date of receipt of certified copy of this judgment and order.

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Since the parties are represented by their learned counsel, the parties/their learned counsel are directed to appear before the Trial Court on 06.09.2021 without waiting for any notice and shall take further orders.

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In view of disposal of the appeal, all the pending

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I.As stand disposed of accordingly.

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Sd/JUDGE

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Sd/JUDGE

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NC.

Sri K M Appaiah v. Mrs C P Poovaiah

Case brief

What is this about?

What did the court decide?

Sri K M Appaiah v. Mrs C P Poovaiah

Case brief

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