Partly allowed

Smt. Ramakka v. Smt. Kenchamma

Karnataka HC24 Nov 2023RSA/1782/2012

Case brief

AI extract

What is this about?

In RSA No. 1782 of 2012, the High Court of Karnataka allowed this second appeal. The court held that daughters born before the Hindu Succession (Amendment) Act, 2005 are treated as coparceners by virtue of the amendment. Consequently, the children of the deceased daughter (Hirithayamma) are entitled to an equal 1/3rd share in the ancestral properties along with other heirs, modifying the first app

What did the court decide?

The judgment decree is modified to hold that defendants 6 and 7 are entitled for a 1/3rd share in the suit schedule properties.

Smt. Ramakka Vs Smt. Kenchamma — Partition | Karnataka HC (2023)

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1 - NC: 2023:KHC:44108 RSA No. 1782 of 2012

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 24^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 1782 OF 2012 (PAR)

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BETWEEN:

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SMT. RAMAKKA, W/O LATE H.D.VEERAPPA, AGED ABOUT 64 YEARS, R/O TUPPADAHALLY GOLLARAHATTI VILLAGE, B. DURGA HOBLI, POST MAREKUNTE - 577 513, JAGALUR TALUK, DAVANGERE DISTRICT.

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Digitally signed by R DEEPA Location: High Court of Karnataka

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SRI. K.A.RAMACHANDRAPPA, S/O LATE AJJAPPA, AGED ABOUT 53 YEARS, AGRICULTURIST & EMPLOYEE IN DEPARTMENT OF EXCISE, KAVAL RAMAPPA BADAVANE, HOLALKERE TOWN - 577 526, CHITRADURGA DISTRICT.

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(BY SRI. HARISHA N.R.,ADVOCATE)

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…APPELLANTS

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AND:

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SMT. KENCHAMMA, W/O MARIYAPPA, AGED ABOUT 60 YEARS, R/O SRINGERI HANUMANAHALLI, GOLLARAHATTI VILLAGE, B. DURGA HOBLI, POST KADUR - 577 523,

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NC: 2023:KHC:44108 RSA No. 1782 of 2012

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HOLALKERE TALUK, CHITRADURGA DISTRICT.

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1(A). SINCE DEAD BY LRS SRI. MARIYAPPA, S/O LATE KADARAPPA, AGED ABOUT 75 YEARS,

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1(B). SRI. RAJAPPA, S/O MARIYAPPA, AGED ABOUT 48 YEARS,

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1(C). SRI. THIPPESWAMY, S/O MARIYAPPA, AGED ABOUT 46 YEARS,

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1(D). SRI. MANJUNATHA, S/O MARIYAPPA, AGED ABOUT 43 YEARS,

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1(E). SRI. JAYANTH, S/O MARIYAPPA, AGED ABOUT 35 YEARS,

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ALL ARE RESIDENTS OF SRINGERI, HANUMANAHALLI, GOLLARAHATTI, KADUR POST, BIDURGA HOBLI, HOLALKERE TALUK, CHITRADURGA - 577 523.

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1(F). SMT. SHARADAMMA, W/O RAMACHANDRAPPA JAYANTHI, AGED ABOUT 40 YEARS, KAGALAGEREGOLLARAHATTI, MUTHUGADUR POST, BIDURGA HOBLI, HOLALKERE TALUK, CHITRADURGA - 577 518.

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SMT. LALITHAMMA, W/O DOMAPPA, AGED ABOUT 53 YEARS,

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3 - NC: 2023:KHC:44108 RSA No. 1782 of 2012

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AGRICULTURIST, R/O KALLIHATTY GOLLARAHATTY VILLAGE, GUNTONUR HOBLI, POST KURUBARAHALLI - 577 520, CHITRADURGA TALUK & DISTRICT.

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SMT. THOLASAMMA, W/O JAYAPPA, AGED ABOUT 50 YEARS, AGRICULTURIST, R/O KALLIHATTY GOLLARAHATTY VILLAGE, GUNTONUR HOBLI, POST KURUBARAHALLI - 577 520, CHITRADURGA TALUK & DISTRICT.

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SMT. SHANTHAMMA, W/O POOJAR RAMAPPA, AGED ABOUT 48 YEARS, R/O UDOGERE GOLLARAHATTY VILLAGE, B. DURGA HOBLI, POST MUTHUGADUR - 577 518, HOLALKERE TALUK, CHITRADURGA DISTRICT.

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SMT. ANUSUYAMMA, W/O NAGAPPA, AGED ABOUT 46 YEARS, R/O MEKEHATTY GOLLARAHATTY VILLAGE, POST ADANUR - B.O.577 526, HOLALKERE TALUK, CHITRADURGA DISTRICT.

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SMT. GEETHAMMA, W/O NAGAPPA, AGED ABOUT 42 YEARS, AGRICULTURIST, R/O HUCHHENAHALLI GOLLARAHATTY VILLAGE, MAYAKONDA HOBLI, POST HUCHHENAHALLY - 577 534, DAVANAGERE TALUK & DISTRICT.

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SMT. GAYITRAMMA, W/O LATE SANNA THIMMAPPA,

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4 - NC: 2023:KHC:44108 RSA No. 1782 of 2012

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AGED ABOUT 40 YEARS, AGRICULTURIST, R/O UDOGERE GOLLARAHATTY VILLAGE, B. DURGA HOBLI, POST MUTHUGADUR - 577 518, HOLALKERE TALUK, CHITRADURGA DISTRICT.

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SRI. SRINIVASHA, S/O LATE SANNA THIMMAPPA, AGED ABOUT 38 YEARS, AGRICULTURIST, R/O UDOGERE GOLLARAHATTY VILLAGE, B. DURGA HOBLI, POST MUTHUGADUR - 577 518, HOLALKERE TALUK, CHTRADURAGA DSITRICT.

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SRI. RAMACHANDRAPPA, S/O LATE SANNA THIMMAPPA, AGED ABOUT 34 YEARS, AGRICULTURIST, R/O UDOGERE GOLLARAHATTY VILLAGE, B. DURGA HOBLI, POST MUTHUGADUR - 577 518, HOLALKERE TALUK, CHTRADURAGA DSITRICT.

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SMT. SIDDAMMA, W/O JAYAPPA, AGED ABOUT 30 YEARS, AGRICULTURIST, R/O THIRUMALAPURA VILLAGE, KASABA HOBLI, POST VISHWANATHANAHALLI - 577 526, HOLALKERE TALUK, CHITRADURGA DISTRICT.

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SMT. RAMAKKA, W/O LATE RANGAPPA, AGED ABOUT 89 YEARS, AGRICULUTIST, R/O UDOGERE GOLLARAHATTY VILLAGE, B. DURGA HOBLI, POST MUTHUGADUR - 577 518, HOLALKERE TALUK, CHITRADURGA DISTRICT.

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5 - NC: 2023:KHC:44108 RSA No. 1782 of 2012

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SMT. SANNA THIMMAKKA, W/O SIDDAPPA, AGED ABOUT 67 YEARS, AGRICULUTIST, R/O UDOGERE GOLLARAHATTY VILLAGE, B. DURGA HOBLI, POST MUTHUGADUR - 577 518, HOLALKERE TALUK, CHITRADURGA DISTRICT.

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SMT. SIDDAMMA, W/O BADANAGAPPA, AGED ABOUT 66 YEARS, AGRICULUTIST, R/O DODDABBEGERE, GOLLARAHATTY VILLAGE, SANTHEBENNURU HOBLI, POST DODDABBEGERE - 577 552, CHANNAGIRI TALUK, DAVANAGERE DISTRICT.

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SMT. RANGAMMA, W/O DOMAPPA, AGED ABOUT 60 YEARS, AGRICULUTIST, R/O KALLIHATTY GOLLARAHATTY VILLAGE, GUNTONURU HOBLI, POST KURUBARAHALLY - 577 520, CHITRADURGA TALUK, CHITRADURGA DISTRICT.

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SMT. CHANDRAMMA, W/O LATE RAMAPPA, AGED ABOUT 42 YEARS, HOUSE HOLD WORK, R/O UDOGERE GOLLARAHATTY VILLAGE, B. DURGA HOBLI, POST MUTHUGADUR - 577 518, HOLALKERE TALUK, CHITRADURGA DISTRICT.

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…RESPONDENTS

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(BY SRI. R SHASHIDHARA., ADVOCATE FOR R12 TO R15 SRI. T.C.SHIVAKUMARAPPA., ADVOCATE FOR SRI. B.M.SIDDAPPA., ADVOCATE FOR R2 TO R10)

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6 - NC: 2023:KHC:44108 RSA No. 1782 of 2012

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THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 2.4.2012 PASSED IN R.A.NO.27/2010 ON THE FILE OF SENIOR CIVIL JUDGE, HOLALKERE, DISMISSING THE APPEAL AND MODIFYING THE JUDGEMENT AND DECREE DTD 30.6.2010 PASSED IN OS.NO.40/2008 ON THE FILE OF CIVIL JUDGE, HOLALKERE AND ETC.

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

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JUDGMENT

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This second appeal is filed by the appellants challenging portion of the judgment dated 02.04.2012, passed in R.A.No.27/2010 by the Senior Civil Judge, Holalkere, Chitradurga, in awarding the extent of share.

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For the sake of convenience, parties are referred to as per their rankings before the trial Court. The appellants are defendant Nos.6 and 7, respondent Nos.1 to 10 are the plaintiffs and respondent Nos.11 to 15 are the defendant Nos.1 to 5.

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The brief facts leading rise to filing of this appeal are as under:

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7 - NC: 2023:KHC:44108 RSA No. 1782 of 2012

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The plaintiffs filed a suit for partition and separate possession in respect of suit schedule properties. It is the case of the plaintiffs that Thimmappa is the original propositor, he had two wives namely Siddamma and Boramma, the first wife had three sons and one daughter i.e., Dodda Thimmappa, Rangappa, Sanna Thimmappa and Hirithayama. Dodda Thimmappa died issueless, Rangappa died leaving behind defendant Nos.1 to 5, Sanna Thimmappa died leaving behind plaintiff Nos.1 to 10. It is contended that the suit schedule properties are ancestral properties. The plaintiffs and defendants are the members of Hindu Undivided Joint Family and there is no partition amongst the members and even subsequent to the death of Thimmappa, there was no partition. The plaintiffs demanded for partition and separate possession, but the respondents declined to effect partition. Hence, cause of action arose for the plaintiffs to file the suit for partition and separate possession.

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8 - NC: 2023:KHC:44108 RSA No. 1782 of 2012

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Defendant Nos.1 and 5 filed written statement admitting the relationship between the parties. It is contended that the joint family properties were divided on 16.01.1990 under jubani palu patrika and schedule properties were allotted to the share of defendant No.1. Accordingly, revenue records were effected and the properties were allotted to the share of Sanna Thimmappa, who is in enjoyment of the property. Defendant Nos.1 and 5 have got partitioned the schedule properties under the registered partition deed dated 17.06.1998 and item No.7 of the suit schedule property was allotted to the share of defendant No.1 and other properties were allotted to the share of defendant No.5. On these grounds, they sought for dismissal of the suit.

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Defendant No.7 filed a written statement and defendant No.6 filed a memo adopting the written statement filed by defendant No.7. Defendant Nos.6 and 7 are the legal heirs of Hirithayamma and they are also entitled for 1/3^rd share in the suit schedule property.

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NC: 2023:KHC:44108 RSA No. 1782 of 2012

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The Trial Court on the basis of the pleadings of

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the parties, framed the following issues:

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1. ªÁ¢AiÀÄªÀgÀÄ zÁªÁ vÀ¥À²Ã®Ä ¸ÀévÀÄÛUÀ¼ÀÄ ªÁ¢ ªÀÄvÀÄÛ ¥ÀæwªÁ¢UÀ¼À MlÄÖ PÀÄlÄA§zÀ D¹Û EgÀÄªÀÅzÁV gÀÄdÄªÁvÀÄ¥Àr¹zÁÝgÉAiÉÄÃ?

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2. ªÁ¢AiÀÄªÀgÀÄ, ªÁ¢ ªÀÄvÀÄÛ ¥ÀæwªÁ¢UÀ¼À zÁªÁ vÀ¥À²Ã®Ä ¸ÀéwÛ£À ¸ÁªÀÄÆ»PÀ ¸Áé¢Ã£À ªÀÄvÀÄÛ C£ÀÄ¨sÉÆÃUÀ ºÉÆA¢gÀÄªÀÅzÁV gÀÄdÄªÁvÀÄ ¥Àr¹zÁÝgÉAiÉÄÃ?

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3. ¥ÀæwªÁ¢-1 ªÀÄvÀÄÛ 5 gÀªÀgÀÄ °TvÀ PÉÊ¦AiÀÄvï£À°è £ÀªÀÄÆ¢¹gÀÄªÀ ¸ÀévÀÄÛUÀ½UÉ ¸ÀA¥ÀÆtð ªÀiÁ°ÃPÀgÁVgÀÄªÀÅzÁV gÀÄdÄªÁvÀÄ ¥Àr¹zÁÝgÉAiÉÄÃ?

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4. ¥ÀæwªÁ¢-1 ªÀÄvÀÄÛ 5 gÀªÀgÀÄ °TvÀ PÉÊ¦AiÀÄvï£À°è £ÀªÀÄÆ¢¹gÀÄªÀAvÉ «¨sÁUÀªÁzÀ §UÉÎ gÀÄdÄªÁvÀÄ ¥Àr¹zÁÝgÉAiÉÄÃ?

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5. ªÁ¢AiÀÄªÀgÀÄ zÁªÁ vÀ¥À²Ã®Ä ¸ÀéwÛ£À°è 1/3 »¸Éì ¥ÀqÉAiÀÄ®Ä CºÀðgÁVgÀÄªÀgÉ?s

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6. K£ÀÄ rQæ CxÀªÁ DzÉÃ±À?

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In order to prove their case, plaintiffs examined

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plaintiff No.9 as PW-1 and got examined two witnesses as PW-2 & PW-3 and got marked 13 documents as Exs.P1 to P13. Defendant No.5 examined herself as DW-1 and got examined two witnesses as DW-2 & DW-3 and got marked 12 documents as Exs.D1 to D12. The trial Court after

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10 - NC: 2023:KHC:44108 RSA No. 1782 of 2012

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considering the oral and documentary evidence of the parties, answered issue Nos.1, 2 and 5 and additional issue No.1 in the affirmative and issue No.3 and 4 in the Negative, issue No.6 as per the final order and decreed the suit of the plaintiffs holding that the plaintiffs are entitled for 1/3^rd share in the suit schedule properties.

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The plaintiffs aggrieved by the judgment and decree passed by the trial Court, preferred an appeal in R.A.No.27/2010 and defendants No.1 to 5 filed crossobjections and defendants No.6 and 7 filed crossobjections. The First Appellate Court after hearing the parties, has framed the following points for consideration:

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1) Whether the findings of the lower court that the suit schedule properties are the ancestral and joint family properties of parties to the suit is jut and proper?

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2) Whether lower court deciding and declaring of share of the plaintiffs alone, as they are together entitled for 1/3rd share without declaring the share of defendant No.6 and 7 is just and proper?

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11 - NC: 2023:KHC:44108 RSA No. 1782 of 2012

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3) Whether the interference with the judgment and decree under attack is disserving?

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4) What order?

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The First Appellate Court on re-assessment of oral

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and documentary evidence, answered point No.1 and 3 in the affirmative and point No.2 in the negative and consequently, dismissed the appeal filed by the plaintiffs and cross objections filed by defendant Nos.1 to 5 and partly allowed the cross objections filed by defendant Nos.6 and 7 and modified the judgment and decree passed by the trial Court to the effect that plaintiff Nos.1 to 10

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being the legal heirs of late Sannathimmappa, are together entitled for 4/9^th share in the suit schedule properties and defendant No.1 to 5 being the legal heirs of late Rangappa, are together entitled for 4/9^th share in the suit schedule properties and defendant Nos.6 and 7 being the legal heirs of late Hiriyamma are entitled for 1/9^th share in the suit schedule properties, subject to paying the Court fee. Defendant Nos.6 and 7 aggrieved by the

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12 -

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NC: 2023:KHC:44108 RSA No. 1782 of 2012

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judgment and decree passed by the first appellate Court in

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awarding the share, have filed this second appeal.

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This court admitted the appeal to consider the

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following substantial questions of law :

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1. Whether the married or unmarried daughters of joint Hindu Family get their equal share along with other coparceners if no notional partition is taken place between the undivided joint family members either before or after commencement of Hindu Succession Act, 1956?

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2. Whether the lower appellate court is right in modifying the 1/3rd share granted to plaintiffs by the trial Court, thereby enhanced the share of plaintiffs from 1/3rd share to 4/9th share ignoring the amended provisions of Hindu Succession Act, (2005), 1956?

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3. Whether the children of late Hiriyamma get equal share along with other male members of the hindu undivided family if there is no notional partition between the members of the hindu undivided family even though the said Hiriyamma was born earlier to the commencement of Hindu Succession Act 1956 in view of the State amendment to provisions of Section 6A(a)(b)(c) and (d) of the Act?

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Heard learned counsel for the defendant Nos.6

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and 7, learned counsel for the plaintiff Nos.1 to 10 and learned counsel for defendant Nos.1 to 5.

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Learned counsel for the defendants No.6 and 7 submit that the mother of defendant No.6 is the daughter of Thimmappa. As per Section 6 of the Hindu Succession (Amendment) Act, 2005, she is a coparcener and is entitled for equal share in the suit properties as that of a son. He submits that the First Appellate Court has committed an error in granting 1/9^th share to defendant Nos.6 and 7. In order to buttress his arguments, he has placed reliance on the judgment of the Hon'ble Apex Court in the case of VINEETA SHARMA VS RAKESH SHARMA reported in AIR 2020 SCC 3717 . He submits that defendant Nos.6 and 7 are also entitled for equal share with that of plaintiffs and the other defendants. Hence, on these grounds, he submits that the First Appellate Court committed an error in awarding 1/9^th share. Hence, on these grounds, he prays to allow the appeal.

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NC: 2023:KHC:44108 RSA No. 1782 of 2012

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Per contra, learned counsel for the plaintiffs and defendant Nos.1 to 5 support the impugned judgment and decree and submit that defendant No.1, mother of defendant Nos.6 and 7, was born prior to 1956. Hence, the mother of defendant Nos.6 and 7 cannot be considered as a coparcener. Hence, the First Appellate Court was justified in granting 1/9^th share to the defendant Nos.6 and 7 together. Hence, on these grounds, they prayed to dismiss the appeal.

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Perused the records and considered the submissions of the learned counsel for the parties.

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SUBSTANTIAL QUESTIONS OF LAW NO.1 TO 3 : As

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all the substantial questions of law are interlinked, they are taken up together for common discussion in order to avoid the repetition of facts. It is not in dispute that Thimmappa is the original propositor, he had four children i.e., Dodda Thimmappa, Rangappa, Sanna Thimmappa and Hirithayamma. The plaintiffs are the children of Thimmappa and defendant No.1 is the wife of Rangappa

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and defendant Nos.2 to 5 are the children of Rangappa, and defendant No.6 and 7 are the children of Hirithayamma i.e., daughter of Thimmappa.

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The suit schedule properties are the ancestral properties of late Thimmappa. The plaintiffs and defendants are the members of the hindu undivided joint family. There is no partition effected between the plaintiffs and defendants. The plaintiffs demanded for partition and separate possession, the defendants refused to effect partition. Plaintiff No.9 was examined as PW-1 and he has reiterated the plaint averments in the examination-in-chief and further, in order to prove that the suit schedule properties were the ancestral properties of the plaintiffs and defendants, the plaintiffs produced the documents. Ex.P-1 to Ex.P-9 are the RTC extracts in respect of suit schedule property and Ex.P-10 and Ex.P-11 are the house list extracts, Ex.P-12 is the certified copy of the order sheet in O.S.No.51/2004 and Ex.P-13 is the certified copy of the plaint in O.S.No.51/2004. Further,

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plaintiff also examined two witnesses in order to prove that the suit schedule properties are the ancestral properties of the plaintiffs and defendants.

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In rebuttal, defendant No.5 was examined as DW-1 and he has reiterated the averments pleaded in the written statement in the examination-in-chief and contended that there was partition between the family members on 16.01.1990 and in support of the defence, got marked documents. Ex.D-1 is the certified copy of the sale deed, Ex.D-2 is the original sale deed, Ex.D-3 to Ex.D-8 are the certified copies of the mutation register extracts, Ex.D-9 to Ex.D-22 are the 14 pahani extracts in respect of the suit schedule properties, Ex.D-23 and Ex.D24 are the DCB register extracts, Ex.D-25 is the certified copy of the plaint in O.S.No.51/2004, Ex.D-26 is the certified copy of the written statement in O.S.No.51/2004, Ex.D-27 is the certified copy of sale deed, Ex.D-11 is the certified copy of decree, Ex.D-12 is the original sale deed.

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In the course of cross-examination of DW-1, he has clearly admitted that originally the suit schedule properties belonged to Thimmappa. In view of the said admission of DW-1, the suit schedule properties are the ancestral properties and Thimmappa had acquired the suit schedule properties. Further, plaintiffs have also produced Ex.P-1 to Ex.P-9 RTC extracts which stands in the name of father of the plaintiffs. The trial Court considering the evidence of the parties held that the suit schedule properties are the ancestral properties of the plaintiffs and defendants and consequently held that the plaintiffs are entitled for 1/3^rd share.

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The plaintiffs aggrieved by the judgment and decree passed by the trial Court in awarding 1/3^rd share, have filed an appeal in R.A.No.27/2010 and defendant Nos.1 to 5 filed cross objections and defendant Nos.6 and 7 also filed the cross objections. The first appellate Court after hearing the parties, dismissed the appeal and crossobjections filed by the defendant Nos.1 to 5 and allowed

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the cross-objections filed by the defendant Nos.6 and 7 and modified the judgment of the trial Court and granted 4/9^th share to the plaintiffs together and 4/9^th share to defendant Nos.1 to 5 and 1/9^th share to defendant Nos.6 and 7 together. Admittedly, Hirithayamma is the daughter of Thimmappa and defendant Nos.6 and 7 are the children

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of Hirithayamma. Section 6 of Hindu Succession

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(Amendment) Act, 2005, reads as under:

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" 6. Devolution of interest in coparcenary property.-

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(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,

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(a) by birth become a coparcener in her own right the same manner as the son;

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(b) have the same rights in the coparcenery property as she would have had if she had been a son;

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(c) be subject to the same liabilities in respect of the said coparcenery property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener:

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Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.

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(2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by testamentary disposition.

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(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenery property shall be deemed to have been divided as if a partition had taken place and,

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(a) the daughter is allotted the same share as is allotted to a son;

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(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and

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(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such predeceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.

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Explanation.--For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

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(4) After the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), no court shall

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recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt:

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Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), nothing contained in this sub-section shall affect

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(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or

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(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 (39 of 2005) had not been enacted.

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Explanation--For the purposes of clause (a), the expression son, grandson or great-grandson shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005).

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(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004

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Explanation.--For the purposes of this section partition means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.

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Section 6(1) says that in a joint Hindu family bound by the Mitakshara Law, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as of a son and have the same right in the coparcenery property as if she had been a son.

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Admittedly, in the instant case, Hirithayamma is the daughter of Thimmappa and further she being a coparcener, she has got the same right in the same manner as of a son. Hirithayamma died leaving behind defendant Nos.6 and 7. Further, the Hon'ble Apex Court in the case of VINEETA SHARMA (SUPRA) held that irrespective of whether father is alive as on the date of amendment, the daughters being coparceners are entitled for equal share in the same manner as that of a son.

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In case, as on the date of death of Thimmappa,

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if a notional partition is under Section 6 of the Hindu Succession Act, Thimmappa and his 4 children take 1/5^th share each. After the death of their father, his 1/5^th share devolves equally on his 4 children i.e., each of them will

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get 1/4^th share. Out of 4 children, Dodda Thimmappa died issueless leaving behind his surviving brothers and sister as his class-II heirs. Hence, surviving three children of Thimmappa i.e., Rangappa, Thimmappa and Hirithayamma will take 1/3^rd share each in the suit properties.

¶142

In view of the above discussion, the appeal is allowed in part. The judgment and decree passed by the First Appellate Court, is modified. The plaintiffs together are entitled for 1/3^rd share. Defendant Nos.1 to 5 are together are entitled for 1/3^rd share and defendant Nos.6 and 7 are entitled for 1/3^rd share in the suit properties. Draw decree accordingly.

¶143

Sd/JUDGE

¶144

SRA

Smt. Ramakka v. Smt. Kenchamma

Case brief

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Smt. Ramakka v. Smt. Kenchamma

Case brief

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