Dismissed

Padmanabha Shetty v. Smt Sulochanamma

Karnataka HC5 Jan 2023RFA/516/2013

Case brief

AI extract

What is this about?

This appeal challenged a trial court decree allowing partition and separate possession of ancestral property. The High Court re-appreciated evidence regarding loan transactions for marriages and concluded the defendants failed to conclusively prove their defenses. Citing Supreme Court precedents on daughter coparcenary rights, the court found no legal infirmity and dismissed the appeal.

What did the court decide?

The impugned judgment and decree of the trial court allowing partition and separate possession was confirmed, and the appeal was dismissed.

Padmanabha Shetty Vs Smt Sulochanamma — Partition | Karnataka HC (2023)

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RFA No. 516 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 5^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.516 OF 2013

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BETWEEN:

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1 . PADMANABHA SHETTY DEAD BY LRS

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1(A) SHAKUNTALAMMA

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W/O LATE PADMANABHA SHETTY AGED ABOUT 60 YEARS

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1(B) P.PRIYA

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D/O LATE PADMANABHA SHETTY, AGED ABOUT 29 YEARS

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1(C) P.KAVITHA

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D/O LATE PADMANABHA SHETTY, AGED ABOUT 27 YEARS

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1(D) P.THRIVENI

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Digitally signed by RAMYA D Location: High Court of Karnataka

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S/O LATE PADMANABHA SHETTY, AGED ABOUT 25 YEARS

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ALL ARE RESIDING AT KANNIKA ROAD,

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RFA No. 516 of 2013

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SANTHE MAIDANA, CHITRADURGA.

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2 . SRI THIPPESWAMY S/O LATE VIRUPAKSHA SHETTY AGED ABOUT 58 YEARS R/O MASJID,M K HATI, CHITRADURGA.

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SRI NAGARAJA @ V NAGARAJA SHETTY S/O LATE VIRUPAKSHA SHETTY AGED ABOUT 52 YEARS R/O NEW SANTHE MAIDAN CHITRADURGA.

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SRI SRINIVASA @ V SRINIVASA SHETTY S/O LATE VIRUPAKSHA SHETTY AGED ABOUT 42 YEARS R/O BEHIND JAYALAKSHMI MILL, GOREHATTI, CHITRADURGA.

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…APPELLANTS

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(BY SRI. B.M.SIDDAPPA, ADVOCATE)

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AND:

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1 . SMT. SULOCHANAMMA DEAD BY LRS

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1(A) M.VIDYA VACHASPATHI S/O LATE MUDDAPPA AGED ABOUT 90 YEARS.

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1(B) LOKESH GUPTHA S/O M.VIDYA VACHASPATHI

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RFA No. 516 of 2013

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AGED ABOUT 46 YEARS, PUROHITHARU.

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BOTH ARE R/O NO.11, 24TH MAIN ROAD, MUNESHWARAPPA, T BLOCK, B.B.M.P., BENGALURU 560 085.

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1(C) SMT. VEDAVATHI W/O I.G.PRASAD AGED ABOUT 45 YEARS, NO.13, GROUND FLOOR, 4TH CROSS, R.K.MUD LAYOUT, K.G.NAGAR, BENGALURU 560 019.

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1(D) V. SRINIVASA S/O M.VIDYA VACHASPATHI AGED ABOUT 42 YEARS, R/O SRI VENKATESHWARA NILAYA, 1ST FLOOR, NO.79, 1ST MAIN ROAD, VINAYAKA NAGAR, BENGALURU - 560063.

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2 . SMT. SEETAMMA D/O LATE VIRUPAKASHA SHETTY W/O ONKARAPPA AGED ABOUT 56 YEARS HOUSE WIFE, RESIDING AT NO.9/9 12TH CROSS, K P AGRAHARA, MAGADI ROAD, BENGALURU.

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3 . SMT. CHANDRAMMA

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RFA No. 516 of 2013

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D/O LATE VIRUPAKSHA SHETTY W/O NAGARAJA SHETTY AGED ABOUT 64 YEARS HOUSE WIFE, R/O HALAGAVADE VILLAGE CHITRADURGA TALUK.

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SMT. PREMA D/O LATE VIRUPAKSHA SHETTY W/O PURUSHOTHAMA SHETTY AGED ABOUT 48 YEARS R/O NEAR AUTO STAND M K HATTI, CHITRADURGA.

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…RESPONDENTS

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(BY SMT. K.MANJUNATH RAO BHONSLE, ADV. FOR R1(AD) - ABSENT; SMT. SARITHA KULKARNI, ADV. FOR R2; SRI H.B.RUDRESH, ADV. FOR R3;

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SMT. ARCHANA MURTHY P., ADV. FOR R4 - ABSENT, (NOC GIVEN);

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SMT. PREMA, PARTY-IN-PERSON FOR R4 (NOC) VKRETURNED)

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THIS REGULAR FIRST APPEAL IS FILED UNDER ORDER 41 RULE 1, R/W SEC 96 OF CPC, AGAINST THE JUDGEMENT AND DECREE DT: 15.12.12 PASSED IN O.S.NO.36/2011 ON THE FILE OF PRL. CIVIL JUDGE (SR. DN.) AND CJM, CHITRADURGA, ALLOWING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.

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THIS REGULAR FIRST APPEAL COMING ON FOR FINAL HEARING, G.BASAVARAJA J. , DELIVERED THE FOLLOWING:

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RFA No. 516 of 2013

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JUDGMENT

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The appellants are the defendants No.2, 3, 4 and 6 in O.S.No.36/2011 (for short ‘suit’) before the Trial Court. Feeling aggrieved by the judgment and decree dated 15.12.2012 passed by the Principal Civil Judge (Sr. Dn.) and Addl. MACT, Chitradurga (for short ‘trial court’), the appellants have preferred this appeal.

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The brief facts of the plaintiffs' case is that; one late Appanna Shetty had three sons namely, Virupaksha Shetty, Venkataramana Shetty and Subbaraya Shetty. These three brothers got partitioned all the joint family properties under a registered partition deed dated 06.05.1983 and 'A' schedule properties mentioned in the said registered partition deed have jointly fallen to the share of Virupaksha Shetty and Venkataramana Shetty. 'A' schedule properties are land bearing Sy.No.47 measuring 35 acres 31 guntas, Sy.No.48 measuring 22 acres 02 guntas and one house property and all the

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RFA No. 516 of 2013

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properties are at Hirekabbigere Village. 'B' schedule properties mentioned in the registered partition deed dated 06.05.1983 are fallen to the share of Subbaraya Shetty. Further, it is alleged that Virupaksha Shetty and Venkataramana Shetty got partitioned the said properties under the registered partition deed dated 21.01.1992.

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Venkataramana Shetty had bequeathed all his properties under the registered Will on 05.11.1994 in favour of Virupaksha Shetty. After the death of Venkataramana Shetty, the khatha of properties changed in the name of Virupaksha Shetty by virtue of orders passed by Revenue Authorities in M.R.No.4/1995-96 on 15.12.1994. Virupaksha Shetty had bequeathed 10 acres of land in Sy.No.47 in favour of plaintiff No.1 under the registered Will deed dated 03.10.1996. Later on, he has cancelled the same through registered cancellation deed dated 29.04.2005.

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Further, it is alleged that Virupaksha Shetty has bequeathed 7 acres 37 guntas of land in Sy.No.47 in favour of defendant No.5 under the registered Will deed dated 05.10.1996 and later on he has cancelled the same through registered cancellation deed dated 29.04.2005.

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Further, it is alleged that plaintiff and defendants are the sons and daughters of Virupaksha Shetty and said Virupaksha Shetty died on 21.07.2008. After the death of Virupaksha Shetty, the katha of suit schedule properties jointly changed in the name of his sons by virtue of orders passed by the Revenue authorities in M.R.No.42/2008-09 on 20.06.2009. All the suit schedule properties are ancestral properties of joint family of plaintiffs and defendants. Further it is alleged that due to misunderstanding between plaintiffs and the defendants, during the second week of May 2011, the plaintiffs have demanded the defendants for partition and separate possession over the suit schedule properties. But

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RFA No. 516 of 2013

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the defendants have refused to give shares to the plaintiffs. Hence, sought for decree of the suit.

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In response to summons issued by the trial court, defendants have appeared before the trial court and defendants No.1 to 4 and 6 have filed their common written statement.

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The substance of written statement of defendants No.1 to 4 and 6 is that relationship between the plaintiffs and defendants is admitted. It is also admitted that there was a partition among the sons of Appanna Shetty as per the registered partition deed dated 06.05.1983. It is also admitted that Venkataramana Shetty has bequeathed all his properties as per registered will deed dated 05.11.1994.

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Further, it is alleged that defendants by virtue of said Will deed bequeathed self - acquired properties of Virupaksha Shetty, as such they cannot be considered as

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RFA No. 516 of 2013

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ancestral properties. Further it is alleged that Virupaksha Shetty and defendant No.2 have performed the marriages of plaintiffs and defendant No.5 by spending huge sums of money and incurred loans. Defendant No.2 has discharged the said loan amount. Further it is alleged that during the lifetime of Virupaksha Shetty he was suffering from diseases and defendant No.2 has spent huge amounts for treatment by raising loans. Hence, plaintiffs are liable for discharge of the said loan. Further it is alleged that during the lifetime of Virupaksha Shetty he had given share of his daughters individually i.e., Rs.50,000/to plaintiff No.1Sulochanamma and defendant No.1 - Chandramma. Plaintiff No.2 - Seethamma and defendant No.5 - Prema were given Rs.1,00,000/- each in respect of their shares and after the marriage of plaintiffs and defendants No.1 and 5, they are residing in their husband’s house separately, as such they are not members of joint family. Accordingly, plaintiffs are

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RFA No. 516 of 2013

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not entitled for any share in the suit properties. On all these grounds, sought for dismissal of the suit.

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Defendant No.5 has filed his written statement

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admitting the averments made in the plaint and she has sought for her legitimate share in the suit schedule properties.

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Based on the pleadings of both parties, trial

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court has framed the following issues:

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"1. Whether plaintiff proves that suit properties are the joint family and ancestral properties of the plaintiffs and defendants as pleaded?

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Whether the defendants prove that the properties belong to Virupaksha Shetty bequeathed by Venkataramana Shetty through registered will deed dt:05.11.94 are the self acquired properties of Virupaksha Shetty as pleaded?

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RFA No. 516 of 2013

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Whether the defendants prove that loan liability as pleaded is part of the liability borne and shared by plaintiffs as contended?

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Whether all the necessary parties to the suit have been impleaded?

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Whether the suit is properly valued and the court fee paid is just and proper?

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Whether the plaintiffs prove that they are entitled for the relief as claimed?

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What order or decree?"

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To prove the case of plaintiffs, plaintiff no.2 has examined herself as P.W.1 and got marked Exs.P-1 to P-29. On closure of plaintiffs' side evidence, defendants have examined defendant No.2 as D.W.1 and other witnesses as D.W.2 to D.W.5 and got marked Exs.D-1 to D-11. On hearing the arguments on both sides, the trial court has given findings to Issues No.1, 4 to 6 in the

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RFA No. 516 of 2013

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Affirmative and Issues No.2 and 3 in the Negative and passed the impugned judgment and decree.

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Being aggrieved by the judgment and decree passed by the trial court, defendants No.2 & 3 have preferred this appeal against plaintiffs No.1 and 2 and defendants No.1 and 5.

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Shri.B.M.Siddappa, learned advocate appearing on behalf of appellants submitted that the impugned judgment and decree passed by the trial court is illegal and erroneous. Admittedly, plaintiffs and defendants No.1 and 5 were married before 1994, as such they are not entitled for equal share in the suit schedule properties. Equal share awarded by the trial court is bad in law. The trial court has failed to note the fact that plaintiffs have not at all produced any documents to show that all the plaintiffs had any source of income to perform marriage. Plaintiffs have clearly admitted in their evidence that lands which are fallen to the share of father of plaintiffs and

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RFA No. 516 of 2013

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defendants are dry lands, and rain fed. Under these circumstances, the trial court grossly erred in holding that father of plaintiffs and defendants performed the marriages from out of his own earnings. The trial court has ignored the evidence of D.W.2 to D.W.4 with regard to loan transactions. The trial court has not properly appreciated the evidence on record in a proper perspective. On all these grounds, sought for allowing this appeal.

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Learned Advocates appearing on behalf of defendants submitted that trial court has properly appreciated the evidence on record in accordance with law. There are no grounds to interfere with the impugned judgment and decree passed by the trial court. On all these grounds, sought for dismissal of this appeal.

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One Omkarappa, GPA holder of respondent No.4 has produced two citations with a memo:

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RFA No. 516 of 2013

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(1) AIR 2022 SC 605 : ARUNACHALA GOUNDER (DEAD) BY LRs V. PONNUSAMY AND ORS.

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(2) AIR 2019 SC 4822: GOVINDBHAI CHHOTABHAI PATEL AND ORS. V. PATEL RAMANBHAI MATHURBHAI

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Having regard to the facts and circumstances of

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this case, the points that would arise for consideration by this Court are as follows:

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Whether the judgment and decree passed by the trial court suffers from any legal infirmity requiring interference by this Court?

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What order?

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This court answered the above points as under:

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Point No.1: In the negative

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Point No.2: As per the final order

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REGARDING POINT NO.1:

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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. 516 of 2013

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relationship between the plaintiffs and defendants is not disputed. Plaintiffs have produced the genealogical tree, certified copy of partition deed, mutation extract, registered Will deed, RTC extracts, boundary sketch, which are marked as Exs.P-1 to P-29. These documents have not been disputed by the defendants. The defendants have also produced the certified copies of partition deed, Will, death certificate, true copy of Pro-Notes in respect of loans and certified copy of loan account extract at Exs.D-1 to D-11. Thus, it is clear that partition took place between the sons of Appanna Shetty on 06.05.1983. Virupaksha Shetty, Venkataramana Shetty have partitioned the properties on 21.01.1992. Venkataramana Shetty executed a Will in favour of Virupaksha Shetty on 05.11.1994. Virupaksha Shetty died on 21.07.2008. The plaintiffs have filed this suit for partition and separate possession on 24.08.2011. The defendants have sought for dismissal of the suit on the ground that:

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(1) Virupaksha Shetty and defendant No.2 have performed the marriages of plaintiffs and defendant No.5 by spending huge sums of money and incurred loans and defendant No.2 has discharged the said loan amount;

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(2) defendant No.2 has spent huge amount for treatment of Virupaksha Shetty as he was suffering from diseases;

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(3) during the lifetime of Virupaksha Shetty, he has given the share of his daughters individually by giving a sum of Rs.50,000/- each to plaintiff No.1 and defendant No.1 and Rs.1,00,000/- each to plaintiff No.2 and defendant No.5 and after the marriage of plaintiffs and defendant Nos.1 and 2, they are residing in their husband's house separately and as such they are not the members of joint family. Accordingly, they are not entitled for any share in the suit properties.

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RFA No. 516 of 2013

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The Trial court has observed in the impugned judgment that defendants have not produced any documents to show that Virupaksha Shetty has raised huge loans for the marriage of plaintiffs. We have also carefully re-appreciated the evidence on record.

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To substantiate the defence of defendants, V.Padmanabha Shetty - defendant No.2 is examined as D.W.1, Ekanthappa examined as D.W.2, Sadanandaiah Shetty is examined as D.W.3 and Ramasubbaiah is examined as D.W.4. During the course of cross examination, D.W.1, has clearly admitted that his father has borrowed a loan Rs.3,00,000/- from EkanathappaD.W.2 for the marriage of plaintiff No.2. Further, he has stated that his father had borrowed a loan of Rs.1,50,000/- from Sadanandaiah Shetty-D.W.3 for the marriage of defendant No.5 - Prema. Further he has admitted that he had the promissory notes to prove

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RFA No. 516 of 2013

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discharge of loan made by his father, but he has not produced any document.

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D.W.2 has stated that one Virupaksha Shetty,

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Padmanabha Shetty, Nagaraj Shetty, Thippeswamy Shetty and Srinivas Shetty had obtained a loan of Rs.3,00,000/in the year 2005. Thereafter, the pro-notes executed by Virupaksha Shetty and others were cancelled and in the year 2009, they have executed new promissory notes, but the said pro-notes have not been placed by the defendants.

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D.W.4 - Ramasubbaiah has deposed that

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Virupaksha Shetty and his children have borrowed a loan of Rs.1,50,000/- from him, but he has stated that he has not taken any documents from the defendants. Defendants have not offered any explanation for non production of the pro-notes said to have been executed by the defendants. Accordingly, defendants have failed to prove their defence.

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RFA No. 516 of 2013

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

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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 perspective 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 infirmity requiring any interference by this Court. Accordingly, we answer Point No.1 in the negative.

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REGARDING POINT NO.2:

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