Allowed

Smt. Nagamma v. Smt. M. Pushpa

Karnataka HC15 Nov 2022WP/10113/2022

Case brief

AI extract

What is this about?

The High Court allowed a writ petition quashing an order of the civil court that rejected a prayer to enlarge the petitioner's share in a house. The High Court directed the civil court to pass a final decree reflecting the petitioner's 1/3rd share under Vineeta Sharma. Reliance was placed on the change in law and the validity of a sale deed.

What did the court decide?

The civil court's order dated 30.03.2022 is set aside; the civil court is directed to draw a final decree enlarging the petitioner's share to 1/3rd.

Smt. Nagamma Vs Smt. M. Pushpa — Property and Title | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 15^TH DAY OF NOVEMBER, 2022

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BEFORE

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THE HON'BLE MR JUSTICE B M SHYAM PRASAD WRIT PETITION NO. 10113 OF 2022 (GM-CPC)

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BETWEEN:

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SMT. NAGAMMA W/O LATE PUTTASWAMAIAH @ PUTTASWAMY AGED ABOUT 73 YEARS R/AT NO.530, M 13 3rd CROSS, DODDAVAKKALGERI MANDI MOHALLA MYSURU 570 001

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…PETITIONER

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(BY SRI. NANJUNDA SWAMY N., ADVOCATE)

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AND:

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SMT. M. PUSHPA W/O R.D ASHOK D/O LATE MOGANNA AGED ABOUT 47 YEARS R/AT NO.530, M 13 3rd CROSS, DODDAVAKKALAGERI, MANDI MOHALLA MYSURU 570 001

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SMT. NAGAMMA W/O LATE MOGANNA AGED ABOUT 77 YEARS R/AT 530 M 13 3rd CROSS, DODDAVAKKALAGERI

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MANDI MOHALLA MYSURU 570 001

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SMT. BHAGYA W/O LATE NAGENDRA D/O LATE PUTTASWAMAIAH @ PUTTASWAMY AGED ABOUT 47 YEARS R/T NO. 530 M 13, 3^RD CROSS, DODDAVAKKALAGERI, MYSURU 570 001

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SMT. LALITHA D/O LATE PUTTASWAMAIAH @ PUTTASWAMY R/T NO. 530 M 13, 3rd CROSS, DODDAVAKKALAGERI, MYSURU 570 001

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…RESPONDENTS

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(BY SRI. SRIDHAR A G., ADVOCATE FOR R1 & R2 SRI. R.PRADEEP KUMAR, ADVOCATE FOR R3 & R4)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DTD 30.03.2022 PASSED IN FDP NO.40/2017 ON I.A.NO.5, BY THE 1^ST ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MYSURU AS PER ANNEXURE-K.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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This petition is by the first respondent in FDP.No.40/2017 on the file of the I Additional Senior Civil Judge and CJM, Mysuru (for short, ' the civil Court '). The petitioner has impugned the civil Court's order dated 30.03.2022, and the civil Court by this order has rejected the petitioner's application (I.A.No.V) filed under Section 6 of the Hindu Succession Act 1956 read with Section 151 of the Code of Civil Procedure, 1908 (for short, ' CPC’ ). The petitioner in filing this application is seeking for enlargement of 1/9^th share as decreed in her favour in the suit schedule property to 1/3^rd share based on the decision of the Hon'ble Supreme Court in Vineeta

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Sharma v. Rakesh Sharma & Ors¹ .

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The learned counsels for the parties are heard. The petitioner is unsuccessful in her suit for partition in O.S.No.229/2011, which is taken up for consideration along with the suit commenced by her

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1 (2020) 9 SCC 1

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niece, Smt. M.Pushpa [brother’s daughter and the first respondent herein] in O.S.No.880/2005. The civil Court, by its common judgment dated 21.12.2013, has declared the first respondent as the owner of the residential property bearing No. 530-M13, 2^nd Cross, Doddavakkalgeri, Mandi Mohalla, Mysore [ the subject property ].

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However, the petitioner has succeeded in her appeals in R.A.No.113 and 114/2014² before the appellate Court viz ., the III Additional District Judge, Mysuru inasmuch as the appeals are allowed setting aside the civil Court’s common judgment dated 30.07.2016 dismissing the first respondent’s claim of absolute ownership of the subject property and holding that the petitioner would be entitled for 1/9^th share in the subject property.

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2 The civil Court’s judgment and decree in OS No. 880/2005 is also called in question in RA No 113/2014, and as regards the suit in OS No. 229/2011, it is called in question in RA No. 114/2014

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It would suffice for the purposes of this petition to observe that in these appeals the court has recorded that the subject property was an ancestral property of Sri. Papaiah and he was survived by his three children, Sri. Moganna [ the first respondent is his only daughter ], the petitioner and the now deceased Sri. Narasimhaiah [ who has died issueless ]. The controversy is with the first respondent claiming exclusive title to the subject property under the sale deed dated 17.05.2004 executed by Sri. Narasimhaiah and the petitioner contending that this sale deed could only be binding insofar as the transferor's undivided interest in the property. In the aforesaid appeals, the appellate Court has resolved the controversy opining thus:

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It is the specific case of Pushpa that Narsimhaiah sold his undivided share in the entire house property to her under Sale Deed dated 17.05.2004, which is marked as Ex.D.1 in said O.S.No.229/2011. The fact of execution of said Sale Deed is not seriously disputed by the Plaintiff and

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other Defendants in O.S.No.229/2011. On the other hand, it is the specific contention of the plaintiff in O.S.No.229/2011 at Paragraph-4 of the plaint that, Narasimhaiah was a habitual drunkard and had developed bad habits, the property had not been divided and Narasimhaiah had no right and title over the suit schedule property to sell that portion of the property to 3^rd Defendant. This means that, the fact of Sale Deed is not disputed, but what is disputed is the right of Narasimhaiah to sell property to 3^rd Defendant - Pushpa. It is well-settled position of law that, a coparcener can alienate his share in coparcenery property to third parties for consideration. Therefore, there was no legal embargo for Narasimhaiah to sell his share in the coparcenery property to Pushpa. Morever, the said Sale Deed is a registered Sale Deed of the year 2005 and till date, the said Sale Deed has not been challenged by any parties. Therefore, I hold that, under the said Sale Deed at Ex.D.1, the 4/9^th share of Narasimhaiah in the entire house property has been conveyed to Pushpa.

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Therefore, Pushpa apart from the 4/18^th share in house property which she acquired as coparcener after coming into force of Act of 2005, is also entitled to 4/9^th share of Narasimhaiah under the said Sale Deed at Ex.D.1.

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The appellant Court has further

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concluded that, because of the decision in Prakash v. Phulavati³ and because Sri. Papaiah has died before the enactment of Hindu Succession [Amendment] Act, 2005, the petitioner would only be entitled to a share [1/9^th share] in the notional partition amongst her father, Sri. Papaiah and his sons, Sri. Moganna and Sri Narasimhaiah. The appellate Court has also provided for respective shares amongst the respective legal heirs⁴ . It is undisputed that the petitioner would be entitled for

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3 (2016 2 SCC 36)

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4 Sri. Moganna’s share [4/9th] share is allotted to the first respondent [his daughter] and the third respondent [the legatee under the Will dated 8.1.2004] equally i.e., 4/18^th share each, and the first respondent is also allotted Sri. Narasimhaiah’s share [4/9^th ] because of the sale deed dated 17.05.2004 executed by him

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1/9^th share and the remaining share would be held by the others, including the first respondent - the transferee under the sale deed dated 17.05.2004 . The third respondent’s second appeal before this Court in RSA No.1805/2016 is disposed of as withdrawn on 03.07.2017.

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The civil Court, in rejecting the petitioner’s application for modification of the decree in the present final decree proceedings, has offered the following reasons:

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Even though as per the decision in case of Vineeta Sharma and Rakesh Sharma the share of co-parceners can be varied even in the FDP or in the appeal, but share was given to petitioners No.1 in view of purchase of property 4/9^th share + 1/9^th share belongs to petitioner No.1. Now the judgment and decree passed in RA.No.113/2014 and 114/2014 have been became final in view of dismissal of RSA.No.1805/2016. Hence now the question of modifying the share of respondent No.1 does not arise. Hence the respondent No.1 has not made out grounds to allow the I.A.No.V.

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Therefore, point No.1 is answered in the Negative."

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Sri. N.Nanjundaswamy, the learned

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counsel for the petitioner, submits that the petitioner is allotted 1/9^th share applying the doctrine of notional partition because of the law exposited as of the date of the appellate Court’s judgment. This must be varied in the present final decree proceedings in view of the later decision in Vineeta

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Sharma v. Rakesh Sharma [ supra ], and the petitioner granted 1/3^rd share with the other two 1/3^rd shares being allotted to the first respondent [as the daughter of Sri. Moganna and the purchaser of Sri. Narasimhaiah’s share under the sale deed dated 17.05.2004] subject to the legacy under the Will dated 8.1.2004 executed by Sri. Moganna.

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Sri. N.Nanjundaswamy argues that the appellate Court's finding on the efficacy of the sale deed 17.05.2004 is final, and the finding is that Sri Narasimhaiah has transferred only his undivided

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share under the sale deed dated 17.05.2004 in favour of the first respondent. In view of the change in law, the settled proposition that the shares must be altered even in the final decree proceedings if there is a change in law, and the appellate Court’s order on the efficacy of the sale deed dated 17.05.2004, the civil Court could not have rejected the petitioner’s application because of the disposal of the second appeal in RSA No. 1805/2016 or the aforesaid sale deed.

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Sri. Sridhar A.G., the learned counsel for

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the first and second respondents, submits that the petitioner's daughter has filed the second appeal before this Court in R.S.A.No.1805/2016 calling in question the appellate Court's judgment, but has withdrawn the same and she has commenced another suit for adjudication of her rights to the subject property as a legatee. The petitioner therefore cannot succeed in her application for enlargement.

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The petitioner's right to the enlargement of the share in view of the indisputable propositions as aforesaid, cannot be rejected either for the reason assigned by the civil Court or for the reason canvassed before this Court by the first and second respondents. The appellate Court has declared that the petitioner would be entitled to 1/9^th share only because of the decision in Prakash v. Phulavati [ supra ] in the face of the sale deed executed by her younger brother - Sri. Narasimhaiah - on 17.05.2004 in favour of the first respondent opining that the transfer would only be insofar as Sri. Narasimhaiah’s undivided share and does not cause an absolute transfer.

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If the petitioner has succeeded in vindicating her right to an undivided share in the subject property notwithstanding the sale deed, the sale deed cannot disrupt the enlarged share that she would be entitled to in terms of the decision of the Hon'ble Supreme Court in Vineeta Sharma's case

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( supra ). Further, if the petitioner's daughter has commenced a suit for vindication of her right as a legatee under the Last Will and Testament dated 08.01.2004, that is a matter that will have to be adjudicated in the pending suit and cannot be a reason to deny a share which the petitioner would be entitled to in her own right as Sri. Papaiah’s daughter. Hence, the following:

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ORDER

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The petition is allowed, and the civil Court's impugned order dated 30.03.2022 in FDP.No.40/2017 is set aside. The civil Court is called upon to draw final decree enlarging the petitioner's share to 1/3^rd in accordance with law.

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Sd/JUDGE

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Smt. Nagamma v. Smt. M. Pushpa

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Smt. Nagamma v. Smt. M. Pushpa

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