Dismissed

Sri. Anthuraiah v. Smt. G a Lakshmamma

Karnataka HC20 Nov 2023RSA/1652/2022

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a regular second appeal filed by defendants challenging a preliminary and final decree in a partition suit. The appellate court held that the plaintiff, a daughter, is entitled to a share as a coparcener under the amended Hindu Succession Act, and the appeal was devoid of merit.

What did the court decide?

The regular second appeal was dismissed, and the judgment and decree of the courts below were affirmed.

Sri. Anthuraiah Vs Smt. G a Lakshmamma — Partition | Karnataka HC (2023)

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1 - NC: 2023:KHC:41550 RSA No. 1652 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 20^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM REGULAR SECOND APPEAL NO. 1652 OF 2022 (PAR)

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BETWEEN:

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SRI. ANTHURAIAH, S/O LATE CHIKKAHUCHAIAH, AGED ABOUT 71 YEARS,

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SMT. LINGAMMA, W/O ANTHURAIAH, AGED ABOUT 63 YEARS,

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Digitally signed by REKHA ANKAIAH Location: High Court of Karnataka

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SMT. SHIVAMMA, D/O SRI. ANTHURAIAH, W/O NAGARAJU, AGED ABOUT 38 YEARS, RESIDING AT CHIKKAGOLLARAHATTI, MAGADI ROAD, BANGALORE - 560 091.

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SMT. RANGAMMA, D/O SRI. ANTHURAIAH, W/O ANDANAPPA, AGED ABOUT 35 YEARS, RESIDING AT GEDDALAHALLI, MARALUR POST, TUMKUR TALUK - 562 111.

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KUMARI MANJULA, D/O ANTHURAIAH, AGED ABOUT 30 YEARS,

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2 - NC: 2023:KHC:41550 RSA No. 1652 of 2022

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KUMARI RENUKA,

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D/O ANTHURAIAH, AGED ABOUT 29 YEARS,

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THE APPELLANTS NO'S 1, 2, 5 AND 6 ARE RESIDING AT GULARIVE, K. PALASANDRA POST, GULURU HOBLI, TUMAKURU DISTRICT - 572 118.

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…APPELLANTS

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(BY SRI. MANJULA D, ADVOCATE)

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AND:

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SMT. G. A. LAKSHMAMMA, D/O ANTHURAIAH, W/O CHIKKARANGAIAH, AGED ABOUT 41 YEARS, RESIDING AT GEDDALAHALLI, MARALUR POST, TUMAKURU TALUK, TUMAKURU - 562 111.

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…RESPONDENT

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(BY SRI. SIDDAMALLAPPA P.M, ADVOCATE)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 27.09.2022 PASSED IN RA.No.56/2020 ON THE FILE OF THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, TUMAKURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 09.01.2013 PASSED IN OS No.22/2004 ON THE FILE OF THE I ADDITIONAL CIVIL JUDGE AND JMFC II, TUMKUR.

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

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3 - NC: 2023:KHC:41550 RSA No. 1652 of 2022

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JUDGMENT

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The captioned Second Appeal is filed by defendants No.1 to 6, assailing the concurrent findings of the courts below, wherein plaintiff's suit seeking relief of partition and separate possession is decreed, granting 1/6th share to the plaintiff. These concurrent judgments are challenged by defendants No.1 to 6.

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2. For the sake of brevity, the rank of the parties

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are referred as they are ranked before the Trial Court.

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The family tree of the family is as under:

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Chikkahuchaiah (late)

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Sulamma (late)

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Anthuraiah, Ganganna, Mahalingaiah, Gangamma, Shivanna, 60 years, 58 years, 56 years, 54 years, 50 years, Lingamma, 50 years

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Lakshmamma, Shivamma, Rangamma, Manjula, Renuka 28 years, 26 years, 24 years, 22 years, 20 years,

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NC: 2023:KHC:41550 RSA No. 1652 of 2022

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The plaintiff is the daughter of defendants No.1

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and 2 and the sister of defendants No.3 to 6. The daughter

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has filed the suit against her father and other siblings, contending that suit schedule properties are joint family properties and that she is entitled for 1/6th share.

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Defendant No.1, who is the father, on receipt of summons, tendered appearance, filed written statement and admitted that suit schedule properties was allotted to his share in a family partition between himself and two brothers. The present suit is resisted by the father only on the ground that defendants No.5 and 6 are unmarried daughters and defendants No.1 and 2 have the responsibility of performing their marriage and they need expenses; therefore, the partition suit is resisted only on that ground. It is also alleged that the plaintiff has no share in the suit schedule properties.

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6. Plaintiff to substantiate her respective claim,

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has let in oral and documentary evidence. The defendants

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5 - NC: 2023:KHC:41550 RSA No. 1652 of 2022

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have not let any oral evidence in support of their contention.

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Both the courts bearing in mind that the relationships are not in dispute and the fact that suit schedule properties are joint family properties, have decreed the suit granting 1/6th share. Both the courts, referring to the law laid down by the Hon'ble Apex Court in the case of Ganduri Koteshwaramma and another vs. Chakiri Yanadi and another reported in (2011) 9 SCC 788

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and also taking note of Section 6(3) of the Hindu Succession Act, have granted equal share to the plaintiff by taking her as a coparcener.

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Heard learned counsel appearing for defendants No.1 to 6. Reiterating the grounds, he would point out that defendants No.1 and 2 are not denying the plaintiff's share in the suit schedule properties, but she would contend that defendant No.1 only intends to postpone the severance in

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the family until the marriage of defendants No.5 and 6 is performed.

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6 - NC: 2023:KHC:41550 RSA No. 1652 of 2022

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The suit was filed in 2004 and defendants No.1

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and 2 made a similar contention in 2004 by resisting the partition suit on the ground that defendants No.5 and 6 are unmarried, the parents have the responsibility of performing their marriage and they need marriage expenses.

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It is quite interesting to know that plaintiff could not have maintained the suit in 2004, as the suit was instituted before amendment to Section 6 of the Hindu Succession Act. However, the defendants have not challenged the maintainability of the suit as of 07.01.2004, the date on which the present suit was filed. In the absence of such a stand taken by the defendant and in the light of the law laid down by the full bench of the Hon'ble Apex Court in the case of Vineetha Sharma vs. Rakesh Sharma reported in (2019) 6 SCC 164 , the plaintiff, being a daughter, is conferred with the status of coparcener and she is entitled for share with her fatherdefendant No.1. It is equally a trite law that right to seek

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7 - NC: 2023:KHC:41550 RSA No. 1652 of 2022

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partition is a recurring cause of action and therefore, even though suit was filed before amendment to Section 6 of the Hindu Succession Act, both the Courts were justified in granting equal share to the plaintiff. The suit is decreed by the Trial Court by judgment and decree dated 09.01.2013, which is subsequent to the amendment. The preliminary decree granting 1/6th share is confirmed by the Appellate Court. In the light of discussion made supra, no substantial question of law would arise for consideration. The plaintiff being a daughter, who filed suit in 2004, is yet to enjoy the fruits of decree. I am not inclined to grant any indulgence at this stage. No substantial question of law arises for consideration. The regular second appeal is devoid of merits and accordingly stands dismissed .

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In view of dismissal of second appeal, all pending applications, if any, do not survive for consideration and stand disposed of.

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Sd/JUDGE

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hdk

Sri. Anthuraiah v. Smt. G a Lakshmamma

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Sri. Anthuraiah v. Smt. G a Lakshmamma

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