Dismissed

Sri. Ramachandrappa v. Smt. Shylamma

Karnataka HC8 Feb 2022RSA/1665/2014

Case brief

AI extract

What is this about?

This court dismissed a second appeal challenging a regular appeal in a partition suit. The lower appellate court had allowed daughters' share despite a prior dismissal based on the daughter marrying before the 1994 amendment. The current court held no substantial question of law arises as per Vineeta Sharma.

What did the court decide?

Dismissal of the second appeal; confirmation of the judgment and order dated 23.11.2012 in Regular Appeal No.73/2009.

Sri. Ramachandrappa Vs Smt. Shylamma — Partition | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA BENGALURU

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DATED THIS THE 8^TH DAY OF FEBRUARY, 2022

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BEFORE

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THE HON’BLE MR.JUSTICE M.G.S.KAMAL

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RSA No.1665 OF 2014(PART)

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BETWEEN:

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SRI. RAMACHANDRAPPA S/O LATE NANJAPPA AGED ABOUT 45 YEARS R/AT MALLUR VILLAGE AND POST JANGAMAKOTE HOBLI SIDLAGHATTA CHIKBALLAPUR DISTRICT - 562 102. ... APPELLANT

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(BY SRI. SUBASH REDDY V., ADVOCATE (THROUGH VIDEO CONFERENCE )

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AND:

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SMT. SHYLAMMA D/O LATE NANJAPPA W/O SRI. RAMAPPA AGED ABOUT 42 YEARS R/O NANDIBELI VILLAGE VIJAYAPURA HOBLI

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DEVANAHALLI TALUK BANGALORE DISTRICT - 562 110.

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SMT. RATNAMMA

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D/O LATE NANJAPPA W/O MUNINARAYANAPPA AGED ABOUT 66 YEARS R/AT CHOKKANDAHATTALLI VILLAGE SIDLAGHATTA VILLAGE CHIKKABALLAPUR DISTRICT-562 102. …RESPONDENTS

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(BY SRI. RAVISHANKAR T.P. AND SRI. MANJUNATH B.K. ADVOCATE FOR R1 & R2)

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THE REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED 23.11.2012 PASSED IN R.A. NO. 73/2009 ON THE FILE OF ITINERY SENIOR CIVIL JUDGE AND JMFC SIDLAGHATTA, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DATED:28.10.2005 PASSED IN OS. NO.9/2004 ON THE FILE OF PRINCIPAL CIVIL JUDGE(JR. DN) J.M.F.C. SIDLAGHATTA.

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THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Present appeal is filed by the appellant/defendant No.1 aggrieved by the Judgment and Decree dated 23.11.2012 passed in R.A.No.73/2009 on the file of Itinery Senior Civil Judge and JMFC, Sidlaghatta (hereinafter referred to as 'First Appellate Court'), in and by which the First Appellate Court while allowing the appeal filed by the plaintiff and Defendant No.2/Respondent No.2 herein, had set aside the Judgment and Decree dated 28.10.2005 passed in O.S.No.9/2004 on the file of the Principal Civil Judge (Jr.Dn.) and JMFC at Sidlaghatta (hereinafter referred to as 'Trial Court') and had decreed the suit declaring that the plaintiff and defendant Nos.1 and 2 are entitled for 1/3rd equal share in the suit schedule properties.

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The plaintiff had filed the suit in O.S.No.9/2004 seeking partition and separate possession of suit schedule properties consisting of 12 items of agricultural lands on the premise that the said properties are the ancestral properties of deceased Nanjappa, the father of plaintiff and defendants 1 and 2. That the plaintiff and defendants being members of undivided Hindu Joint Family of which the defendant No.1 being the son was the Kartha. That there was no partition of the properties and the plaintiff and the defendants were entitled for equal share in the properties.

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The Trial Court by its Judgment and Decree dated 28.10.2005 dismissed the suit of the plaintiff on the premise that the plaintiff and the Defendant No.2 were married prior to 30.07.1994, the date on which the Karnataka Amendment Act to Section 6 of the Hindu Succession Act was given effect to. As such, the trial Court held that the plaintiff and Defendant No.2 cannot be considered as coparceners. On this lone ground, the Trial Court disentitled the plaintiff and Defendant No.2 and dismissed the suit.

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Aggrieved by the same, the plaintiff had preferred Regular Appeal No.73/2009. The First Appellate Court, taking note of Section 6 of the Hindu Succession (Amendment) Act, 2005, held that in view of the amendment to Section 6 of the Hindu Succession Act, giving retrospective effect to the entitlement of the daughters as coparceners in the property held that the plaintiff and Defendant No.2 being daughters of Nanjappa were also entitled for share in the property equal to that of Defendant No.1 being son of Nanjappa and accordingly, passed a preliminary decree in respect of the suit schedule property. Aggrieved by the same, the appellant/Defendant No.1 is before this Court.

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Sri.Subash Reddy, learned counsel for the appellant/Defendant No.1 reiterating the grounds urged in the appeal memorandum submits that the First Appellate Court grossly erred in setting aside the Judgment and Decree of the Trial Court, which taking into consideration the law prevailing as on the date of the suit, had justifiably rejected the claim of the plaintiff as she having married prior to implementation of Karnataka Amendment Act of 1994 amending Section 6 of the Hindu Succession Act. He submits

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that apart the plaintiff was born in the year 1989, as such there was no justifiable reason for the First Appellate Court to reverse the said order as the plaintiff and Defendant No.2 could not be considered as co-parceners. Thus, he submits that substantial question of law involves in the matter for consideration.

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On the other hand, Sri.Ravishankar.T.P, learned counsel for the respondents submits that in view of the law now settled by the Apex Court in the case of VINEETA SHARMA VS. RAKESH SHARMA AND OTHERS (2020)9

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SCC 1) , the issue with regard to the entitlement of the daughters for the share in the joint family property may not survive for consideration. Therefore, he submits that no substantial question of law is involved in the matter.

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Heard the learned counsel for the appellant and respondents.

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The plaintiff filed the suit for partition and separate possession of the suit schedule properties on the premise that the same are joint family properties. That there was no partition of the properties. That upon the demise of the

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father of the plaintiff and the defendants, the plaintiff is entitled for share in the suit schedule properties. The appellant/first defendant, in his written statement specifically contended that the suit schedule properties were acquired by Nanjappa, the father of the plaintiff and defendants in terms of a partition amongst his brothers. As such, the said property was his separate property. However, appellant/first defendant denied the share of the plaintiff referring to the provisions of Section 6 of Hindu Succession (Karnataka Amendment) Act, 1994. The trial Court referring to the said provision, had dismissed the suit primarily holding that the plaintiff having married prior to 1994, was not entitled for a share in the property. The trial court had not adverted to any of the issues regarding the nature or otherwise of the suit schedule property.

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As rightly contended by the learned counsel for the respondents, issue with regard to the plaintiff being daughter entitled for share in the joint family property is no longer res integra in view of the Judgment of the Apex Court in the case of Vineeta Sharma supra. Further, as noted by the first appellate court at Para 15 of its judgment referring to the

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contention of the appellant/first defendant in his written statement that the suit schedule properties are the separate properties of Nanjappa which he acquired through partition, leaves no doubt that the suit schedule properties are the joint family properties. The plaintiff and the defendants being children of said Nanjappa would therefore, be entitled for equal share in the suit schedule property.

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For the aforesaid reasons, this Court is of the considered view that no substantial question of law arises in this appeal for consideration. Consequently, RSA No.1665/2014 is dismissed. Judgment and Order dated 23.11.2012 passed in R.A.No.73/2009 is confirmed.

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Sd/JUDGE

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bnv*

Sri. Ramachandrappa v. Smt. Shylamma

Case brief

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Sri. Ramachandrappa v. Smt. Shylamma

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