Allowed

Smt. M Leelavathi v. Smt. Yeshodamma

Karnataka HC5 Apr 2022RFA/548/2017

Case brief

AI extract

What is this about?

This Court allowed appeals against the rejection of a partition suit and a counter claim maintained by a daughter. The Court set aside the lower court's order dismissing the suit on the ground that the father was deceased, ruling that the suit is maintainable under Section 8 of the Hindu Succession Act.

What did the court decide?

The order rejecting the plaint and counter claim is set aside. The suits are restored for trial for final adjudication of rights and shares.

Smt. M Leelavathi Vs Smt. Yeshodamma — Partition | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF APRIL, 2022

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BEFORE

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THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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REGULAR FIRST APPEAL NO.401 OF 2017

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C/w

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REGULAR FIRST APPEAL NO.548 OF 2017

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IN RFA NO.401/2017

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BETWEEN:

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SMT VIJAYA R W/O LATE SUBBARAYACHARI D/O MR RAMACHANDRACHAR AGED ABOUT 45 YEARS

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KUM NAVYASHREE AGED ABOUT 15 YEARS SINCE MINOR REPRESENTED BY HER NATURAL GUARDIAN AND MOTHER SMT VIJAYA R

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BOTH ARE R/AT NO.11, ‘ASHRIWAD’ 10^TH CROSS, PIPELINE ROAD 1^ST CROSS, S P EXTENSION MALLESHWARAM BENGALURU-560 003. ...APPELLANTS

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(BY SRI. B KESHAVA MURTHY, ADVOCATE)

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AND

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SMT M.LEELAVATHI D/O LATE MURAHARAHARI W/O LATE SHARABACHARI AGED ABOUT 42 YEARS R/AT SRINIVASA KALYANAMANTHAPA ROAD BACHAPPA COMPOUND B NARAYANAPURA KRISHNARAJAPURAM HOBLI BENGALURU - 560 016.

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SMT YESHODAMMA W/O LATE MURAHARACHARI AGED ABOUT 70 YEARS R/AT NO.135, 1^ST MAIN B NARAYANAPURA VILLAGE NEAR VENKATESHWARA TEMPLE KRISHNARAJAPURAM HOBLI BENGALURU -560 016.

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SMT SUSHEELAMMA D/O LATE MURAHARACHARI W/O MR BALASUBRAMANYACHAR AGED 53 YEARS R/AT MYLANAHALLI VILLAGE BANDE KODIGEHALLI POST BENGALURU NORTH TALUK.

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SMT MALIGAMMA D/O LATE MURAHARACHARI W/O MR SUBRAMANYACHARI AGED ABOUT 50 YEARS R/AT VENKATAGIRIKOTE VILLAGE & POST DEVANAHALLI TALUK BENGALURU DIST-562 110.

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SRI NEELAKANTAHARI S/O LATE MURAHARACHARI

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AGED ABOUT 44 YEARS

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SMT GAYATHRI D/O LATE MURAHARACHARI AGED ABOUT 38 YEARS RESPONDENT NO.5 AND 6 ARE R/AT NO.135, I MAIN B NARAYANAPURA VILLAGE NEAR VENKATESHWARA TEMPLE K R PURAM HOBLI BENGALURU - 560 016.

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SMT RATHNAMMA W/O LATE MURAHARACHARI AGED ABOUT 62 YEARS

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SRI MANJUNATHACHARI S/O LATE MURAHARACHARI AGED ABOUT 40 YEARS

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SMT. SUSHEEPAMMA D/O LATE MURAHARACHARI AGED ABOUT 36 YEARS RESPONDENT NOS.7 TO 9 ARE R/AT NO.10, 28^TH BLOCK NANDI COMPLEX AUDUGODI POLICE QUARTERS BENGALURU -560 003. 10. SRI SUNDEEP KUMAR GUPTHA S/O LOKA CHANDRA GUPTHA AGED ABOUT 42 YEARS R/AT BCC NO.46/16 RAMAIAH LANE, CHURCH ROAD MURUGESHPALYA BENGALURU -560 017. ...RESPONDENTS

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(BY SRI STANLEY SAN ADV. FOR R10 SRI NANJUNDARADHYA B G, ADV, FOR R1 SRI A MADHUSUDHAN, ADV. FOR R4 & R6 SRI SUDARSHAN S, ADV FOR R5 R1 & R3 TO R6 ARE TREATED AS LR’S OF DECEASED R2; R3, R7, R8 & R9 ARE SERVED)

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THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF CPC AND ORDER XLI RULE 1 OF CPC, 1908 AGAINST THE ORDER DATED: 09.01.2017 PASSED ON IA.NO.13 IN OS.NO.2339/2014 ON THE FILE OF THE LXVI ADDITIONAL CITY CIVIL AND SESSIONS JUDGE AND HOLDING C/C OF XXXVIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY, ALLOWING THE IA.NO.13 FILED UNDER ORDER 7 RULES 11 R/W SEC.151 OF CPC., FOR REJECTION OF PLAINT.

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IN RFA NO.548/2017

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BETWEEN:

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SMT. M LEELAVATHI D/O LATE MURAHARAHARI W/O LATE SHARABACHARI, AGED ABOUT 40 YEARS, R/AT SRINIVASA KALYANAMANTHAPA ROAD, BACHAPPA COMPOUND B NARAYANAPURA, KRISHNARAJAPURAM HOBLI, BANGALORE-560 016. ...APPELLANT (BY SRI. B G NANJUNDARADHYA, ADVOCATE) AND

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SMT. YESHODAMMA W/O LATE MURAHARACHARI, AGED ABOUT 68 YEARS,

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SINCE DECEASED, HER LEGAL REPRESENTATIVES ARE ALREADY ON RECORD AS THE APPELLANT AND RESPONDENT NOS.2 TO 6.

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SMT. SUSHEELAMMA D/O LATE MURAHARACHARI W/O BALASUBRAMANYACHAR AGED ABOUT 51 YEARS MYLANAHALLI VILLAGE BANDE KODIGEHALLI POST BENGALURU-561 249

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SMT. MLIGAMMA D/O LATE MURAHARACHARI W/O SUBRAMANYACHAR AGED ABOUT 48 YEARS VENKATAGIRIKOTE VILLAEG & POST DEVANAHALLI TALUK BENGALURU RURAL DISTRICT - 562 110.

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SMT. VIJAYA R D/O RAMACHANDRACHAR W/O LATE SUBBARAYACHARI AGED ABOUT 43 YEARS

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4(a) NAVYASHREE D/O LATE SUBARAYACHARI AND VIJAYA R AGED ABOUT 12 YEARS SINCE MINOR REPRESENTED BY HER MOTHER AS NATURAL GUARDIAN

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R4 AND 4(A) ARE RESIDING AT NO.11, ASHIRWAD, 10^TH CROSS PIPELINE ROAD, 1^ST CROSS S P EXTENSION, MALLESHWARAM BENGALURU - 560 003.

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SRI.NEELAKANTACHARI S/O LATE MURAHARACHARI

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AGED ABOUT 42 YEARS

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GAYATHRI D/O LATE MURAHARACHARI AGED ABOUT 36 YEARS

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R-5 & 6 ARE RESIDING AT NO.135, 1^ST MAIN B.NARAYANAPURA VILLAGE NEAR VENKATESHWARA TEMPLE KRISHNARAJAPURAM HOBLI BENGALURU SOUTH TALUK BENGALURU -560 016.

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SMT.RATHNAMMA W/O LATE MURAHARACHARI AGED ABOUT 60 YEARS

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SRI.MANJUNATHACHARI S/O LATE MURAHARACHARI AGED 36 YEARS (P.C.NO.488)

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SUSHEEPAMMA D/O LATE MURAHARACHARI AGED ABOUT 34 YEARS

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R-7, 8 & 9 ARE RESIDING AT NO.10, 28^TH BLOCK NANDI COMPLEX ADUGODI POLICE QUARTERS BENGALURU-560 035.

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SRI.SANDEEPKUMAR GUPTHA S/O LOKA CHANDRA GUPTHA AGED ABOUT 38 YEARS BCC NO.46/16, RAMAIAH LANE CHURCH ROAD, MURUGESHPALYA BENGALURU-560 017.

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…..RESPONDENTS

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(BY SRI.MENTO ISSAC AND N PRAKASH, ADVOCATE FOR C/R.10 (CP NO.117/17) SRI STANLEY SAN ADV. FOR R10 (NOC); SRI SUDARSHAN & ASSOCIATES FOR R1 & R5; SRI M MADHUSUDHAN, ADVOCATE FOR R3 & R6; R4 – SERVED R4(A) IS MINOR & REPT BY HER MOTHER AS NATURAL GUARDIAN R4 (AS PER CAUSE TITLE) R8 – SERVED R9 – SERVED V/O/D 7/2/19 NOTICE TO R2 IS HELD SUFFICIENT)

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THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 R/W ORDER XLI RULE 1 OF CPC, 1908 AGAINST THE ORDER DATED: 09.01.2017 PASSED ON IA NO.13 IN OS NO.2339/2014 ON THE FILE OF THE LXVI ADDL. CITY CIVIL AND SESSIONS JUDGE HOLDING C/C OF XXXVIII ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY, ALLOWING THE IA FILED U/O 7 RULE 11 R/W SEC.151 OF CPC., TO REJECT THE PLAINT.

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THESE REGULAR FIRST APPEALS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Though these matters listed for admission, with the

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consent of learned counsel appearing for both sides, these

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matters are taken up for final disposal.

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These captioned appeals are filed questioning the

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rejection of plaint as well as rejection of counter claim arising in a partition suit.

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The parties are referred to as per their rank before the Trial Court, for the sake of convenience.

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The facts leading to the case are as under;

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The plaintiff namely M.Leelavathi, who is the daughter of Muraharachari through his first wife namely Yashodamma, has instituted the present suit for partition and separate possession and has specifically contended that the suit schedule properties are joint family ancestral properties of the plaintiff and defendants. The plaintiff has specifically contended that she is entitled for her legitimate 1/8^th share in the suit schedule properties and therefore, she claims that she is in joint possession and enjoyment over the suit schedule properties. The plaintiff has also questioned the sale deed dated 03.06.2006 alleged to have been executed by defendant No.7 in favour of

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defendant No.10 in respect of schedule ‘A’ property and also questioned the Gift deed dated 05.07.2013 executed by defendant No.1 in favour of defendant No.6 in respect of the portion of ‘B’ schedule property and also questioned another Gift deed dated 05.07.2013 executed by defendant No.1 in favour of defendant No.5 in respect of the portion of ‘B’ schedule property. Therefore, the relief of declaration to declare the sale deed dated 03.06.2006 and gift deeds dated 05.07.2013 and 05.07.2013 are null and void and not binding on the plaintiff’s share is also sought in the present suit.

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On receipt of summons, defendant No.4 filed written statement and by way of counter claim, she also claimed to allot her legitimate share as she is representing the branch of Subbarayachari, who is one of the propositus of Muraharachari.

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Defendant No.10, who is a purchaser, on receipt of summons, tendered appearance and filed written statement and stoutly denied the entire averments made

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in the plaint. Defendant No.10 has filed an application under Order VII Rule 11 of CPC., seeking rejection of plaint. At para No.7 of the affidavit filed in support of the application, defendant No.10 has specifically contended that in the light of the principles laid by the Hon’ble Apex in the case of PRAKASH AND OTHERS VS. PHULAVATI AND OTHERS reported in 2015 AIR SCW 6160 , only living co-parceners as on 09.09.2005 can maintain a partition suit and claim share and therefore, defendant No.10 by placing reliance on the amended provisions of the Hindu Succession Act to Section 6 of the Hindu Succession Act, 2005 contended that the present suit was not maintainable in the light of the dictum laid down by the Hon’ble Apex Court in the judgment cited supra.

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Learned Trial Judge by applying the principles laid

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down in the case of PRAKASH AND OTHERS VS. PHULAVATI AND OTHERS (cited supra) has proceeded to dismiss the suit by holding that as on the date of filing of the suit, her father was not alive and hence, suit filed by

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the plaintiff is not maintainable. On these set of reasoning, the plaint is rejected and consequently, the counter claim is also rejected.

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Heard learned counsel appearing for the appellant

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plaintiff and learned counsel appearing for the contesting defendant No.10 and I have also heard learned counsel appearing for defendant No.4, who has set up a counter claim claiming his legitimate share in the suit schedule properties.

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The points that would arise for consideration by

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this Court are.

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1. Whether the findings of the Trial Court recorded on I.A.No.13 that the present suit filed by one of the daughter is not maintainable on the ground that her father was not alive as on the date of filing of the suit?

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2. Whether said findings suffer from perversity?

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Findings on point No.1 and 2.

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The admitted facts clearly indicate that the parties are governed by the principles of Hindu Mithakshara School of Law. The present suit is filed by plaintiff specifically contending that the propositus Muraharachari possessed several joint family properties during his life time. It is also specifically pleaded that Muraharachari had two wives and the present plaintiff is the daughter, who born through his first wife namely Yashodamma.

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It is also specifically pleaded at para No.9 of the plaint that defendant No.7, who is one of the joint family member, has meddled with the joint family ancestral properties and there are alienations by colluding with defendant Nos.8 and 9 in favour of defendant No.10 so as to deprive the legitimate share of the plaintiff in the suit schedule properties. On meticulous examination of the prayer claimed in the plaint more particularly at para

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Nos.15(b) and (c), this Court would find that defendant No.7, who is the second wife of Muraharachari, has alienated ‘A’ schedule property in favour of defendant No.10 by way of registered sale deed dated 03.06.2006. Therefore, the authority of defendant No.7 in alienating the joint family ancestral properties are all disputed question of facts. The question as to whether the plaintiff is entitled for a share in the suit schedule properties as a co-parcener

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in view of amendment to Section 6 of the Hindu Succession Act, 2005, is a question that has to be decided by way of full fledged trial. The findings of the Trial Court that since father of the plaintiff was not alive as on the date of the filing of the suit and therefore, the suit is not maintainable, is not only perverse, but the same is palpably erroneous and even otherwise, contrary to Section 8 of the Hindu Succession Act, 1956. Even if the plaintiff as on the date of the filing of the suit was not entitled to be treated as co-parcener, she still had a legitimate share as she had inherited rights by way of succession through her father Muraharachari. In the event

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of death of a Hindu male, the daughter is entitled to take a share by way of notional partition under Section 8 of the Hindu Succession Act. Even otherwise, the daughter was entitled to maintain a suit seeking legitimate share in the suit schedule properties.

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In the light of the principles laid down by the Hon’ble Apex Court in the case of VINEETH SHARMA VS. RAKESH SHARMA AND OTHERS reported in AIR 2020 SC 3717 , this Court is of the view that the question of succession having been opened and the controversy revolving around the shares of the daughter in the event father dies much prior to commencement of Hindu Succession Act having been put at rest by the Hon’ble Apex Court in the case of VINEETH SHARMA (cited supra), the controversy is no more res integra . The Hon’ble Apex Court in the above cited judgments has held that if there is no severance in the pending proceedings, the benefit of Section 6 is extended in those cases where father had died much prior to commencement of Hindu

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Succession Act. All these rulings relating to the amended provisions under Section 6 of the Hindu Succession Act, 2005 and existing provisions under Section 8 of the Hindu Succession Act were required to be examined by the Trial Court. However, the Trial Court has in a very casual manner non-suited the plaintiff by wrongly applying the dictum laid down by the Hon’ble Apex Court in the case of PHULAVATI AND OTHERS (cited supra).

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For the foregoing reasons, the order rejecting the plaint is not sustainable and the same is liable to be set-aside. Accordingly, I pass the following;

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ORDER

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The appeal is allowed .

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The order dated 09.01.2017 passed on I.A.No.13, which is filed under Order VII Rule 11 of CPC., in O.S.No.2339/2014 on the file of the LXVI Additional City Civil and Sessions Judge holding c/c of XXXVIII Additional City

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Civil and Sessions Judge, Bengaluru City is set-aside.

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The suit is restored to file.

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Since the parties are represented by their respective counsels, without expecting any fresh summons at the hands of the trial court, they are directed to appear before the Trial Court on 30.06.2022 .

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Since the appeal filed by the plaintiff in RFA No.548/2017 is allowed, the same benefit has to be extended to the connected appeal filed by the defendant No.4 in RFA No.401/2017.

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For the reasons stated in the connected appeal, the appeal filed by the defendant Nos.4 and 4(a) is also allowed thereby permitting defendant No.4 to seek adjudication of their

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rights before the Trial Court in terms of the counter claim set up in the written statement.

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All contentions are kept open.

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Draw decree accordingly.

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Sd/JUDGE

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NBM