Appeal against rejection of a partition suit by daughters. Court held that even with the Vineeta Sharma ruling allowing daughters to be coparceners by birth, the non obstante proviso to Section 6(1) bars claims for properties alienated before 20 December 2004. Appeal dismissed.
Rejection of the plaint: Appeal dismissed.
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 AT BENGALURU
DATED THIS THE 20TH DAY OF APRIL, 2022
PRESENT
THE HON’BLE MR.JUSTICE G.NARENDAR
AND
THE HON’BLE MR.JUSTICE M.G.S.KAMAL
REGULAR FIRST APPEAL NO. 105 OF 2022 (PAR-INJ)
BETWEEN:
ALL R/AT THALAGHATAPURA UTTARAHALLI HOBLI BENGALURU SOUTH TALUK – 560 062.
….APPELLANTS
(BY SRI. T.H.AVIN, ADVOCATE FOR SRI. SUBHAS CHANDRA BOSE, ADVOCATE)
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AND:
SRI. JAYARAMA S/O LATE CHANNAPPA (SINCE DECEASED BY HIS LRS)
S/O LATE THIMMARAYAPPA (SINCE DECEASED BY LRS)
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S/O LATE THIMMARAJU AGED ABOUT 25 YEARS
ALL ARE R/AT THALAGHATATAPURA UTTARAHALLI HOBLI BENGALURU SOUTH TALUK – 560 062.
13 . KEEPEL PURVANKARA DEVELOPMENT PRIVATE LIMITED A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 HAVING ITS OFFICE AT NO 21/30, GRAIG PARK LAYOUT, M G ROAD, BENGALURU – 560 001. REPRESENTED BY ITS AUTHORIZED SIGNATORY
….RESPONDENTS
(BY SMT. MARSHA GOVEAS, ADVOCATE FOR SRI. TEJAS S.R, ADVOCATE FOR C/R13)
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THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED:23.08.2021 PASSED ON IA NO.3 IN O.S.NO.599/2011 ON THE FILE OF THE III ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU (R) DISTRICT, BENGALURU, ALLOWING I.A.NO.3 FILED UNDER ORDER 7 RULE 11(A) AND (D) READ WITH SECTION 151 OF CPC.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY, M.G.S.KAMAL J, DELIVERED THE FOLLOWING:
JUDGMENT
Present appeal is filed by the plaintiffs aggrieved by the Order dated 23.08.2021 passed in O.S.No.595/2011 on the file of III Additional Senior Civil Judge, Bengaluru Rural District, Bengaluru (hereinafter referred to as the ‘Trial Court’) in and by which, the trial Court allowing the application filed by the defendant No.12 under Order 7 Rule 11 (a) and (d) read with Section 151 of CPC rejected the plaint on the grounds of same not disclosing the cause of action and also hit by proviso to Section 6(1) of Hindu Succession Act, 1956 (hereinafter referred to as the ‘Act, 1956’).
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3. Defendant No.12 filed an application under
Order 7 Rule 11 (a) and (d) of CPC, seeking rejection of the plaint on the grounds that it did not disclose any
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cause of action and the same was barred in view of the
proviso to Section 6(1) of the Act, 1956. The trial Court by the impugned order allowed the said application and rejected the plaint. Aggrieved by the same, the plaintiffs are before this Court.
(a) that the plaint averments contain material facts necessary to formulate the
complete cause of action disclosing a clear right to sue accrued in favour of the plaintiffs as such the cause of action was not illusory one.
(b) that a suit for partition is an incident attached to the jointly held property and is a running cause of action and when the co-owner does not want to keep his share undivided with other co-owner is entitled to seek for division, which the trial Court has lost sight of.
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(c) that the trial Court erred in holding
that the plaintiffs learnt about the alienation made by the defendants-Sri.Channappa and Sri. Muniswamappa on 22.02.2011 though the plaintiffs have not pleaded as to when and in whose favour sale deed was executed and whether or not sale deeds were registered. That in the absence of such details, the trial Court erred in concluding that the suit is required under proviso to Section 6 (1) of the Act, 1956.
(d) That the daughters under the amended Act, 1956, are entitled to claim rights retrospectively as held by the Apex Court in the case of Vineeta Sharma vs. Rakesh Sharma and others reported in AIR 2020 SC 3717 . As such, the order passed by the trial Court is illegal and requires to be set aside.
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justifying the order passed by the trial Court brings to the attention of this Court the averments made by the plaintiffs at paragraph 7 of their plaint with regard to the alienation of suit schedule properties by Sri.Channappa and Sri.Muniswamappa and thus submits that the plaint averments categorically disclose the knowledge of the plaintiffs regarding suit schedule properties having been alienated prior to the cut off date prescribed under the Proviso to Section 6(1) of the Act, 1956. Hence, seeks for dismissal of the suit.
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the coparcener property has been recognized and therefore, the trial Court ought not to have rejected the plaint.
Perused the records.
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born earlier with effect from 09.09.2005 with Savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.
under the proviso and the suit instituted by the plaintiffs is of the year 2011, which has rightly held by the trial Court is hit by a proviso to Section 6(1) of the Act, 1956 warranting rejection of the plaint. Though the plaintiffs have not given the details of alienation, but have specifically pleaded so, in paragraph 7 of the plaint. The trial Court at paragraphs 18 and 19 of its order has taken note of these aspects of the matter
and has read the said paragraph with the plaint documents namely, the records of rights produced by the plaintiffs in which the alienation of the year 199596 are reflected and the same is not disputed by the
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plaintiffs. In that view of the matter, no infirmity or illegality can be found in the order passed by the trial Court warranting interference. Hence, the appeal is dismissed.
Sd/JUDGE
Sd/JUDGE
RU
3 issues framed by the court
Whether a plaint seeking partition filed by daughters after the cut-off date is barred by the proviso to Section 6(1) of the Hindu Succession Act, 1956.
Whether the trial court erred in rejecting the plaint because the alienation of property occurred before the date of amendment.
Whether the Vineeta Sharma judgment grants retrospective rights to daughters for properties alienated prior to 20 December 2004.
Colour shows how this judgement treated each authority
Vineeta Sharma vs. Rakesh Sharma and othersReferred¶58
AIR 2020 SC 3717 · Who else cites this
2 provisions across 2 enactments
RENUKADEVI D/O THIMMARAYAPPA K.
JAYAMMA D/O LATE CHENNAPPA
G. NARENDAR
M.G.S.KAMAL
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
