Dismissed

Sri Kishanlal Choudhary v. Smt Dakshayani

Karnataka HC11 Jan 2023RFA/1980/2017

Case brief

AI extract

What is this about?

Regular First Appeal filed by sons against a decree granting partition and separate possession to their sisters. Benchesapounded the father's death anniversary, ruling daughters are entitled to Coparcenary share regardless of father's survival status as per Vineeta Sharma. Appeal dismissed.

What did the court decide?

The appeal is dismissed; the judgment and decree dated 27.03.2017 in O.S.No.78/2011 are confirmed.

Sri Kishanlal Choudhary Vs Smt Dakshayani — Partition | Karnataka HC (2023)

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RFA No. 1980 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^TH DAY OF JANUARY, 2023

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PRESENT

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THE HON'BLE MR JUSTICE P.S.DINESH KUMAR

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AND

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THE HON'BLE MR JUSTICE G BASAVARAJA

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REGULAR FIRST APPEAL NO. 1980 OF 2017

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BETWEEN:

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SRI KISHANLAL CHOUDHARY S/O SRI JOGARAMJI, AGED 54 YEARS, R/O HARI P PROVISION STORES, IV BLOCK, KUSHALNAGAR-571 234 SOMWARPET TALUK, KODAGU DISTRICT

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SRI PRABHURAM S/O LATE PEMARAM, AGED 66 YEARS, R/O NO.2645/5, 2ND MAIN TEMPLE ROAD,V.V.MOHALLA, MYSURU-570 002

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…APPELLANTS

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(BY SRI. JAGADISH BALIGA N., ADVOCATE)

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Digitally signed by RAMYA D Location: High Court of Karnataka

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AND:

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SMT. DAKSHAYANI W/O SRI SHIVASHANKAR, AGED ABOUT 52 YEARS, R/O HASANAMBA CIRCLE, CHOUDESHWARI CIRCLE,

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RFA No. 1980 of 2017

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HASSAN-573 201

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SMT. INDRAVATHI (SINCE DECEASED BY LRS)

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2(A) SRI JAGADEESH AGED 58 YEARS HUSBAND OF LATE INDRAVATHI

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2(B) SRI J.DEEPAK AGED 33 YEARS, S/O LATE INDRAVATHI

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2(C) SRI DEEKSHITH, AGED 29 YEARS, S/O LATE INDRAVATHI REPONDENTS NO.2(A) TO 2(C) ARE R/O I BLOCK, KAVERY BADAVANE, KUSHALNAGAR TOWN-571 234 SOMWARPET TALUK KODAGU DISTRICT

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SMT. CHANDRIKA (SINCE DECEASED BY LRS)

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3(A) SRI NAGARAJ AGED 63 YEARS SON OF LATE PATEL VEERAPPA SHETTY,

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3(B) SRI ARJUN, AGED 25 YEARS, SON OF SRI NAGARAJ

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3(C) SRI RAHUL, AGED 22 YEARS, SON OF SRI NAGARAJ REPONDENTS NO.3(A) TO 3(C) ARE R/O J.P.NAGAR, BELUR - 573115, HASSAN DIST.

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RFA No. 1980 of 2017

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SMT. MANJULA AGED ABOUT 45 YEARS, W/O SRI THEERTHANKARA R/O OPPOSITE MAIN ROAD, CHOUDESWARI NAGAR, BELUR-573 115 HASSAN DISTRICT

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SRI SATHISH D A S/O LATE D J ANNAIAH, AGED 56 YEARS, R/O RATHABEEDHI, IV BLOCK,KUSHALNAGAR TOWN-571 234 SOMWARPET TALUK, KODAGU DISTRICT

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SRI RAJA D A AGED ABOUT 54 YEARS, S/O LATE D J ANNAIAH, R/O RATHABEEDHI,III BLOCK, KUSHALNAGAR-571 234 SOMWARPET TALUK KODAGU DISTRICT

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…RESPONDENTS

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(BY SRI PUNDIKAI ISHWARA BHAT, ADV. FOR R1, R2 (A-C), R3 (A-C) & R4; SRI. K MANIK PRABHU, ADV. FOR R5; SRI CHARAN KUMAR, K.V., ADV. FOR R6)

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THIS RFA FILED UNDER SEC.96(1) READ WITH ORDER XLI RULE 1 OF CPC., 1908 AGAINST THE JUDGMENT AND DECREE DATED 27.03.2017 PASSED IN OS.NO.78/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE, SOMAWARPETE, DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, G BASAVARAJ J ., DELIVERED THE FOLLOWING:

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RFA No. 1980 of 2017

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JUDGMENT

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The appellants are the defendants No.3 and 4 in O.S.No.78/2011 (for short 'Suit'). They are before this Court aggrieved by the judgment and decree dated 27.03.2017 passed by the Senior Civil Judge, Somwarpete (for short 'trial court') in O.S.No.78/2011.

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The parties are referred to as per their ranks

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before the trial court for the sake of convenience.

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The plaintiffs' case is, they are the sisters of defendants No.1 and 2 and they are children of late D.J.Annaiah. They are governed by Mithakshara School of Hindu Law. The suit properties originally belonged to the grandfather of the plaintiffs by name Gopalashetty and after his death devolved upon his son D.J.Annaiah. Plaintiffs and defendants No.1 and 2 inherited the suit properties, but defendants No.1 and 2 are managing the suit schedule properties. However, plaintiffs and the defendants together constituted Hindu Undivided Family

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RFA No. 1980 of 2017

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with respect to suit schedule properties. Further it is alleged that defendants No.1 and 2 without the consent and knowledge of plaintiffs transferred Item No.1 of the suit schedule properties to defendant No.3 by executing a registered sale deed dated 12.04.2004, which is not binding on the plaintiffs.

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It is alleged that the plaintiffs have demanded their shares on 02.03.2011 and 06.07.2011, but the defendants No.1 and 2 have refused to give their shares and dragged the matter and finally plaintiffs have issued legal notice on 29.09.2011 to the defendants. Even after service of notice, defendants have not complied with the legal demand of the plaintiffs. Accordingly plaintiffs have sought for decreeing the suit.

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In pursuance of summons, defendants No.1 to 4 appeared through their respective Advocates. Defendant No.1 has filed written statement admitting the relationship of plaintiffs and defendant No.2. He has

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RFA No. 1980 of 2017

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stated that suit schedule properties were already partitioned between defendants No.1 and 2 as per registered document No.41/2004-05 dated 12.04.2004. The plaintiffs being well aware of said partition deed between defendants No.1 and 2, have not demanded for partition. Hence, registered partition deed is binding on the plaintiffs. Further it is stated that plaintiffs have already given their shares in the joint schedule properties of defendants No.1 and 2 during their marriage by way of cash and gold and other valuables. Hence, plaintiffs are not entitled to any share in the suit schedule properties.

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Further it is stated that suit is not properly

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valued and court fee paid is insufficient, hence, the Court had no pecuniary jurisdiction to try the suit. On all these grounds, sought for dismissal of suit with costs.

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Defendant No.2 has filed separate written statement in which he has admitted the relationship of plaintiffs and defendants No.1 and 2. It is also admitted

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RFA No. 1980 of 2017

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that they are governed by school of Mithakshara Hindu Law. It is also admitted that the suit schedule properties originally belonged to their grandfather. Further it is contended that plaintiffs were married long back before the amendment of Hindu Marriage Act and suit schedule properties were partitioned long back after the marriage of all the plaintiffs. Plaintiffs had knowledge about the partition. Hence, they were not entitled to any share in the suit properties. Defendants have absolute right, title

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and interest over their share in the suit properties. Further it is alleged that during the lifetime of father of plaintiffs and defendants No.1 and 2, plaintiffs got married and were living separately without any relationship whatsoever. By virtue of registered partition deed, this defendant has become the absolute owner in possession of his share in the suit properties. Neither the plaintiffs nor the first defendant have any sort of right, title and interest over the suit schedule properties. The suit is barred by limitation. The cause of action shown in plaint is

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RFA No. 1980 of 2017

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imaginary. The suit is not properly valued for the purpose of court fee and jurisdiction. On all these grounds, sought for dismissal of suit with costs.

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Defendant No.3 has filed the written statement

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in which he has stated that he had enquired about the family status of defendant No.1, who was the vendor of property as per sale deed. At the time of purchase, defendant No.1 handed over genealogical family tree and partition deed which reflects their family status and defendants No.1 and 2 are the only children of their parents. Further it is contended that defendant No.3 has not purchased the total area of Item No.1 of suit schedule properties. He has purchased some portion of Item No.1 of the suit schedule properties. The defendant No.1 had every right, title, interest and possession over the suit properties from 12.04.2004 and later on to meet his financial necessities he has sold to one P.Prabhuram vide sale deed dated 06.11.2009 bearing document

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RFA No. 1980 of 2017

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No.924/2009-10 and handed over the possession. Further it is alleged that there is no cause of action to file the suit. The properties are highly valued and the Court had no jurisdiction to entertain the suit. On all these grounds, sought for dismissal of the suit with costs and compensatory cost under Section 35A of CPC.

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The substance of written statement of defendant No.4 is that he has purchased the portion of Item No.1, which was purchased by the defendant No.3 from defendant No.1, who had got every right, title and interest over the sale portion of the property sold to defendant No.3. The defendant No.1 has got highly prevailing price in this regard to meet his financial crisis. The defendant No.3 had every right, title and interest over the suit property from 12.04.2004 and later on, to meet his financial necessities the defendant No.3 sold the same to defendant No.4 vide sale deed dated 06.11.2009 bearing document No.924/2009-10 and handed over the

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RFA No. 1980 of 2017

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possession. Further it is alleged that plaintiffs had no cause of action and the Court had no jurisdiction to entertain the suit. Court fee paid by the plaintiffs is insufficient. On all these grounds, sought for dismissal of the suit.

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Further defendant No.4 has specifically pleaded that if the Trial Court came to the conclusion that property sold by the defendant No.1 is partible, then he may be allotted his share in the property and judgment and decree may be passed accordingly by protecting his right.

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Based on the pleadings the trial court has framed the following issues:

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"1. Whether the plaintiffs prove that the suit schedule properties are the joint family properties?

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2. Whether the plaintiffs further prove that they are having 4/2nd share in the suit schedule properties?

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RFA No. 1980 of 2017

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3. What order or decree?"

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To prove the case of plaintiffs, plaintiff No.1 got

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examined himself as PW-1 and 28 documents are marked as Exs.P-1 to P-28. On closure of plaintiffs' evidence, defendant No.3 got examined himself as DW-1 and 19 documents have been marked as Exs.D-1 to D-19. Defendant No.2 examined his wife as D.W.2 by giving power of attorney and Exs.D-20 to D-35 have been marked. Defendant No.1 is examined as D.W.3 and Exs.D-36 to D-53 have been marked.

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On hearing the arguments on merits of the case, the trial court has given its finding as under:

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Issue No.1 : In the Affirmative

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Issue No.2 : The plaintiffs are entitled to 1/6th share each Issue No.3 : As per final order

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RFA No. 1980 of 2017

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In view of the above finding, the trial court has decreed the suit of plaintiffs. Being aggrieved by the judgment and decree passed by the trial court, appellants/defendants have preferred this appeal.

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Shri.Jagadish Baliga N., learned counsel appearing on behalf of appellants has submitted his arguments that, the impugned judgment and decree is not maintainable in law and facts. Further it is submitted that trial court has failed to note that respondent No.5 sold Item No.1 of the suit schedule properties to the appellants and thereafter by colluding with respondents No.1 to 4 filed the Suit. Though respondents No.5 and 6 contested the Suit, they did not contest fully so as to protect their interest. But this aspect is not at all considered by the trial court. Only on this sole ground, the impugned judgment and decree is liable to be set aside.

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Further it is submitted that trial court has failed

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to note that there was registered partition in the family

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RFA No. 1980 of 2017

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and respondents No.5 and 6 became the owners in respect of shares allotted to them. Appellants purchased Item No.1 of the suit schedule properties from respondent No.5. As per the judgment of Hon'ble Supreme Court, the daughters are not entitled for the share if there was partition in the family and the father had expired. The father of respondents expired in the year 1999 and under such circumstances, respondents No.1 to 4 are not entitled for the share. However, the trial court failed to take note of this fact.

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Further it is submitted that trial court has not appreciated the evidence on record in proper perspective and on all these grounds sought for allowing this appeal.

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As against this, Shri.Pundikai Ishwara Bhat, Shri.Manik Prabhu, Shri.K.V.Charan Kumar, learned Advocates appearing for the respondents have submitted that trial court has appreciated the evidence on record in accordance with law and that there are no grounds to

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RFA No. 1980 of 2017

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interfere with the judgment and decree passed by the trial court. On all these grounds, sought for dismissal of the appeal.

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Having regard to the facts and circumstances of

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the case, the points that would arise for consideration

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before this Court, which are as under:

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1. Whether the judgment and decree passed by the trial Court suffers from legal infirmities requiring this Court any intercede?

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1. What order?

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The answers of this Court to the above points

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are as follows:

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Point No. 1 : In the negative.

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Point No. 2 : As per final order.

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The plaintiffs have filed the suit for partition and

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separate possession of suit schedule properties. The

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RFA No. 1980 of 2017

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plaintiffs are the sisters of defendants No.1 and 2. The genealogical tree of the plaintiffs and defendants No.1 and

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2 are as under:

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GENEALOGICAL TREE Late Gopal Shetty Late D.J.Annaiah

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D.A.Sathish D.A.Raja Dakshayani Indravathi Chandrika Manjula
D-1 D-2 P-1 P-2 P-3 P-4
Since dead
By Lrs
Jagadeesh J.Deepak Deekshith
D-2(a) D-2(b) D-2(c)

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The relationship between the plaintiffs and

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defendants No.1 and 2 is not disputed. It is not in dispute that Gopalashetty died on 26.01.1993. It is also not in dispute that prior to his death his son Annaiah died on 17.11.1991. The defendants No.1 and 2 are the children of late Annaiah. Plaintiff No.2 died on 22.01.2014 and her

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RFA No. 1980 of 2017

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legal heirs are brought on record as plaintiffs No.2(a) to 2(c). Defendant No.3 is the purchaser of Item No.1 of the property from defendant No.1. Subsequently, defendant No.3 has sold the same to defendant No.4.

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Admittedly, the suit properties originally belonged to Gopalashetty, who is the grandfather of plaintiffs, defendants No.1 and 2. Exs.P-9 and P-10 are the certified copies of panchayat register extracts with respect to suit properties and Exs.P-1, P-11 and P-12 are the certified copies of mutation extracts, which reveal that suit properties original belonged to D.Gopalashetty. The defendants No.1 and 2 got entered their names as per registered partition deed bearing No.96/2000-01 dated 24.04.2000. Ex.D-2 is the registered partition deed effected between D.A.Sathish and D.A.Raja, who are defendants No.1 and 2. Admittedly, plaintiffs are not parties to this registered partition deed. Defendant No.2 has contended that by virtue of registered partition deed

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RFA No. 1980 of 2017

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the defendant No.2 has become the absolute owner of his share in the suit properties and there is no joint family properties as shown in the schedule of the plaint as on the date of suit. Further it is contended that plaintiffs were married long back before the amendment of Hindu Marriage Act and the suit properties were partitioned long back after the marriage of all the plaintiffs. The plaintiffs have knowledge about the partition. Hence, they are not entitled for any share in the suit properties.

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Further defendants No.1 and 2 have contended that at the time of marriage of plaintiffs cash and gold ornaments were given to the plaintiffs in lieu of their shares. On all these grounds sought for dismissal of the suit.

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To substantiate the defence taken by defendants No.1 and 2, they have not produced any legal evidence before the Court. Hence, same cannot be accepted. Considering the evidence placed by both the

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RFA No. 1980 of 2017

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parties, trial court has properly appreciated the evidence

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on record in accordance with law and has passed the impugned judgment and decree in favour of plaintiffs.

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In view of recent decision of Hon'ble Apex Court

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in the case of VINEETA SHARMA vs. RAKESH SHARMA

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reported in (2020) 9 SCC 1 , the Apex Court has held as

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under:

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"64. The effect of the amendment is that a daughter is made coparcener, with effect from the date of amendment and she can claim partition also, which is a necessary concomitant of the coparcenary. Section 6(1) recognises a joint Hindu family governed by Mitakshara law. The coparcenary must exist on 9.9.2005 to enable the daughter of a coparcener to enjoy rights conferred on her. As the right is by birth and not by dint of inheritance, it is irrelevant that a coparcener whose daughter is conferred with the rights is alive or not. Conferral is not based on the death of a father or other coparcener. In case living coparcener dies after 9.9.2005, inheritance is not by survivorship but by intestate or testamentary succession as provided in substituted section 6(3).

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In ref: Effect of enlargement of daughter’s rights

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65. Under the proviso to section 6 before the amendment made in the year 2005 in case a coparcener died leaving behind female relative of Class I heir or a male descendant claiming through such Class I female heir, the daughter was one of them. Section 6, as substituted,

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RFA No. 1980 of 2017

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presupposes the existence of coparcenary. It is only the case of the enlargement of the rights of the daughters. The rights of other relatives remain unaffected as prevailed in the proviso to section 6 as it stood before amendment.

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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 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

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RFA No. 1980 of 2017

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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 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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The trial court has properly appreciated the oral

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and documentary evidence placed by both the parties in proper and perspective manner and passed the impugned judgment. Even after re-appreciation of the evidence on record and keeping in mind the above decision of Hon'ble Apex Court, we do not find any legal infirmities requiring this Court to intercede. Accordingly, we answer Point No.1 in the negative.

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RFA No. 1980 of 2017

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REGARDING POINT NO.2:

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For the aforesaid reasons and discussion, the following:

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ORDER

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(1) The appeal is hereby dismissed.

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(2) The judgment and decree dated 27.03.2017 passed by the Senior Civil Judge, Somwarpete, in O.S.No.78/2011, is hereby confirmed.

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(3) The office shall draw the decree accordingly.

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Sd/JUDGE

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Sd/JUDGE

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DR List No.: 1 Sl No.: 27

Sri Kishanlal Choudhary v. Smt Dakshayani

Case brief

What is this about?

What did the court decide?

Sri Kishanlal Choudhary v. Smt Dakshayani

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

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