Allowed

Smt Munilakshmamma v. Narayanaswamy

Karnataka HC20 Jun 2023RSA/187/2011

Case brief

AI extract

What is this about?

This is a regular second appeal challenging a First Appellate Court judgment that denied daughters equal shares in Hindu Joint Family property. The High Court allowed the appeal, holding that daughters are coparceners entitling them to an equal 1/3 share each.

What did the court decide?

The appeal is allowed. The decree under O.S. No. 282/2007 is modified to award 1/3 share each in the schedule properties to Appellant Nos. 2 & 3 and Respondent No. 1.

Smt Munilakshmamma Vs Narayanaswamy — Partition | Karnataka HC (2023)

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NC: 2023:KHC:21359 RSA No. 187 of 2011

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 20^TH DAY OF JUNE, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

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REGULAR SECOND APPEAL NO. 187 OF 2011 (PAR)

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BETWEEN:

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SMT. MUNILAKSHMAMMA D/O LATE DODDA MUNISHAMAIAH SETTY AGED ABOUT 67 YEARS R/O DALASNUR VILLAGE KASABA HOBLI SRINIVASPUR TALUK PIN: 563 101.

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SAROJAMMA WIFE OF VENKATARAMANAPPA D/O LATE DODDA MUNISHAMAIAH SETTY AGED ABOUT 52 YEARS R/O AGRAHARA SOMARASANAHALLI VILLAGE, HUTHUR HOBLI KOLAR TALUK – 563 101.

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Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: HIGH COURT OF KARNATAKA

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SARASWATHAMMA WIFE OF NAGARAJAPPA AGED 33 YEARS D/O LATE DODDA MUNISHAMAIAH SETTY NOW R/O FARM HOUSE, HODALAVADI VILLAGE NEAR KOLAR MANIGATTA ROAD, KASABA HOBLI, KOLAR TALUK PIN : 563 101.

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…APPELLANTS

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(BY SRI G V NARASIMHA MURTHY, ADVOCATE FOR A-2 TO A-3, V/O DTD. 10.03.2021 A2, A3 AND R1 ARE TREATED AS LR’s AND DEAD A-1)

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NC: 2023:KHC:21359 RSA No. 187 of 2011

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AND:

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NARAYANASWAMY S/O DODDA MUNISHAMAIAH SETTY AGED ABOUT 49 YEARS R/O DALASANUR VILLAGE KASABA HOBLI, SRINIVASPUR TALUK PIN: 563 101.

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SMT. PADMAMMA WIFE OF NARAYANASWAMY AGED ABOUT 39 YEARS R/O DALASANUR VILLAGE KASABA HOBLI, SRINIVASPUR TALUK PIN: 563 101.

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…RESPONDENTS

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(BY SRI T SUNIL ADVOCATE FOR R1 SRI P B RAJU, ADVOCATE AND SRI S Z BAREED, ADVOCATE FOR R2)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 01.10.2010 PASSED IN R.A.NO.99/2009 ON THE FILE OF THE PRL. DISTRICT JUDGE, KOLAR, PARTLY ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED:30.07.2009 PASSED IN O.S.NO.282/07 ON THE FILE OF THE I.ADDL.CIVIL JUDGE (SR.DN.), KOLAR.

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

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JUDGMENT

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This appeal is filed challenging the judgment and decree

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dated 01.10.2010 passed in R.A. No. 99/2009 by the Principal District Judge, Kolar, whereunder the judgment and

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3 - NC: 2023:KHC:21359 RSA No. 187 of 2011

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decree passed in O.S. No. 282/2007 dated 30.07.2009 by the

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I Additional Civil Judge (Senior Division), Kolar, has been modified modifying the share allotted to the plaintiff Nos. 1 to 3.

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The appeal is filed by plaintiff Nos. 1 to 3. Respondent Nos. 1 and 2 are defendant Nos. 1 and 2. During the pendency of this appeal appellant No. 1 - plaintiff No. 1 died and accepting the memo, appellant Nos. 2 and 3 - plaintiff Nos. 2 to 3 and respondent No. 1 - defendant No.1 are treated as legal representatives of appellant No. 1 - plaintiff No. 1.

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Plaintiffs filed a suit in O.S. No. 282/2007 for the

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relief of partition and separate possession of their ½ share in the suit schedule properties. It is the case of the plaintiffs before the trial Court that one Doddamunishamaiah Shetty was the kartha and manager of Hindu Undivided Family under the Mitakshara and he had only son by name Narayana Swamy i.e., defendant No. 1 and two daughters by name Sarojamma and Saraswathamma – plaintiff Nos. 2 and 3.

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4 - NC: 2023:KHC:21359 RSA No. 187 of 2011

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Plaintiff Nos. 2 to 3 were earlier arraigned as defendant Nos. 3 and 4, subsequently they were transposed as plaintiff Nos. 2 and 3. Said Doddamunishamaiah Shetty died in the year 1998 leaving behind plaintiff Nos. 1 to 3 and defendant No.1 as his legal representatives. Plaintiff No. 1 is the wife of Doddamunishamaiah Shetty. Plaintiffs and defendant No. 1 are in joint possession and enjoyment of the suit schedule properties. It is stated that defendant No. 1 in collusion with his wife - defendant No. 2 has executed Release Deed in respect of portion of item No. 1 of suit schedule properties and they are trying to alienate the suit schedule properties. It is also stated that plaintiff Nos. 2 and 3 are also entitled for their share in the suit schedule properties. With this the plaintiffs claimed their share in the suit schedule properties.

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There are two items of suit schedule properties; land bearing survey No. 277/2 measuring 3 acres 7 guntas and item No. 2 is, house and vacant site bearing Khaneshmari No. 112 measuring East to West 8 yards and North to South 9 yards and 30 ankanams stone roofed house. Said item Nos.

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NC: 2023:KHC:21359 RSA No. 187 of 2011

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1 and 2 are situated at Dalasonur Village, Kasaba hobli, Srinivasapura taluk, Kolar district.

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Defendant No. 1 did not file written statement. Defendant No. 2 filed written statement denying all the plaint averments. Defendant No.2 contended that defendant No. 1 is her husband. Defendant No. 1 led happy marital life with defendant No.2 for some time and thereafter started to harass her and married another lady. It is further stated that as per the advice of elders, defendant No. 1 executed Release Deed dated 02.02.2002 in favour of defendant No. 2 giving 1 acre 20 guntas of land out of 3 acres 7 guntas in survey No. 277/2. It is stated that defendant No.2 is in possession of the suit properties and she got entered her name in the records of the suit schedule properties. She contended that defendant No.1 instigated the plaintiffs to file a suit to deprive her right over the suit schedule properties. It is stated that defendant No.1 executed the said Release Deed dated 02.02.2002 towards the maintenance of

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NC: 2023:KHC:21359 RSA No. 187 of 2011

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defendant No. 2. On the basis of the above pleadings the trial

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Court has framed the following issues:

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I. Whether the plaintiff proves that all the suit schedule properties are the joint family properties of plaintiff and defendant No. 1, 3 and 4?

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II. Whether the plaintiff further proves that the 2^nd defendant executed release deed in favour of defendant No.1 with respect of suit item No.1?

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III. Whether the plaintiff proves that she is entitled for half share in the suit schedule property by metes and bounds with separate possession?

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IV. Whether the defendant No.2 proves that defendant No.1 has executed document in her favour by giving share to her to an extent of 1 acre 20 guntas in Sy. No. 277/2 and a house property bearing Kaneshmari No. 112 measuring 30 X 30 feet and she is in possession and enjoyment of the said property as contended to para-5 of the written statement ?

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V. Whether the defendant No.3 and 4 proves that all the suit schedule properties are the joint family properties of plaintiff and defendant No.3 and 4 and they are in

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NC: 2023:KHC:21359 RSA No. 187 of 2011

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possession and enjoyment of the suit schedule properties and they are entitled for 1/4^th share in the suit schedule properties?

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VI. What decree or order?

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Subsequently, above said issues came to recasted

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and the following recasted issues have been framed.

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I. Whether the plaintiffs 1 to 3 prove that themselves and defendant No.1 are members of Hindu Joint family?

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II. Whether the plaintiffs further prove that suit schedule properties are undivided Hindu Family properties?

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III. Whether the plaintiffs further prove they are entitled for 1/4^th share each in the suit schedule properties?

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IV. What order or decree?

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Plaintiff No. 3 was examined as P.W.1 and examined

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two witnesses as P.W.2 and P.W.3 and got marked Ex.P.1 to Ex.P.3. Defendant No.2 was examined as D.W.1 and examined two witnesses as D.W.2 and D.W.3 and got marked Ex.D.1 to Ex.D.5.

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NC: 2023:KHC:21359 RSA No. 187 of 2011

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The trial Court, after appreciating the evidence on

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record has answered issue Nos. 1 to 3 in the affirmative and decreed the suit of the plaintiffs awarding ¼ share each to plaintiff Nos. 1 to 3 in the suit schedule properties. Aggrieved by the said judgment and decree of the trial Court defendant No.2 filed an appeal in R.A. No. 99/2009 before the Principal District Judge, Kolar (first appellate Court). The first appellate Court after hearing the arguments on both sides has allowed the appeal in part and modified the share of plaintiff Nos.1 to 3 as awarded by the trial Court awarding 1/16 share to plaintiff No. 1 and 5/16 share each to plaintiff Nos. 2 and 3. The first appellate Court placed reliance on the decision of a coordinate Bench of this Court in the case of Pushpalatha N.V. Vs. V. Padma and others reported in ILR 2010 Kar. 1484 . The first appellate Court has awarded 1/16 share to plaintiff No. 1 – appellant No. 1 holding that plaintiff No.1 being mother is entitled for a notional share in the suit schedule properties. Aggrieved by the said judgment and decree passed by the first appellate Court, plaintiff Nos.1 to 3 filed this second appeal.

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NC: 2023:KHC:21359 RSA No. 187 of 2011

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During the pendency of this appeal appellant – No.1 plaintiff No.1 died and it is recorded that appellant Nos.2 and 3 - plaintiff Nos. 2 and 3 and respondent No.1 – defendant No. 1 are the legal representatives of appellant No.1 – plaintiff No. 1.

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This appeal came to be admitted to consider the following substantive questions of law.

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Whether the judgment and decree of the appellate Court is contrary to the law laid down by the Hon’ble Supreme Court in the case of VINEET SHARMA vs. RAKESH SHARMA AND OTHERS reported in AIR 2020 SC 3717?

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Whether the first appellate Court justified in modifying the judgment and decree of the trial Court?

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Learned counsel for appellant would contend that even though plaintiff Nos. 2 and 3 are married daughters of Doddamunishamaiah Shetty they are entitled to equal share in the property of the family to that of son i.e., defendant No.1. In view of the decision of the Hon’ble Apex Court in the

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10 - NC: 2023:KHC:21359 RSA No. 187 of 2011

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case of Vineet Sharma Vs. Rakesh Sharma and others

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reported in AIR 2020 SC 3717 . It is his further submission

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that in view of death of appellant No.1 – plaintiff No.1, the property is to be divided between plaintiff Nos. 2 and 3 and defendant No.1. The Hon’ble Apex Court in the case of Vineet Sharma (supra) has held that the daughters are conferred the status of coparcener under the provisions contained in substituted Section 6 of the Hindu succession Act, 1956 born before or after 1956 in the same manner as son with the same rights and liabilities. In the said case the Hon’ble Apex Court has overruled the decision in the case of

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Pushpalatha N.V. Vs. V. Padma and others reported in

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ILR 2010 Kar. 1484 which has been relied upon by the first appellate Court. In view of the above decision, plaintiff Nos. 2 and 3 who are daughters of appellant No.1 – plaintiff No.1 and Doddashamaiah Shetty are entitled to equal share to that of son, respondent No.1 – defendant No. 1. Therefore, in view of the above discussion, share modified by the first appellate Court is not proper. Appellant Nos. 2 and 3 - plaintiff Nos. 2 and 3 and respondent No.1 – defendant No. 1

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11 - NC: 2023:KHC:21359 RSA No. 187 of 2011

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are entitled to 1/3 share each in item Nos.1 and 2 of suit schedule properties.

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Learned counsel for respondent No. 2 – defendant No.2 would contend that respondent No. 1 – defendant No. 1 had executed Ex.D.1 – Release Deed in favour of respondent No.2 – defendant No.2 releasing his right to an extent of 1 acre 20 guntas in item No.1 of suit schedule properties. Defendant No.1 is only having 1/3 share in the suit schedule properties. Item No. 1 of suit schedule properties is totally measuring 3 acres 7 guntas. The Release Deed – Ex.D.1 is said to have been executed by defendant No.1 in favour of defendant No.2 to an extent of 1 acre 20 guntas which is more than share of defendant No.1. Learned counsel for respondent No.2 seeks liberty of this Court to enforce her rights by virtue of Ex.D.1 – Release Deed against defendant No.1. In view of the above, the judgment and decree of the first appellate Court modifying the shares of the parties requires to be set aside by awarding 1/3 share each to plaintiff Nos.2 and 3 and defendant No.1 in item Nos.1 and 2

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12 - NC: 2023:KHC:21359 RSA No. 187 of 2011

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of suit schedule properties. Accordingly, the substantive questions of law Nos.1 and 2 are answered.

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In view of the above, the following;

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O R D E R

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I. Appeal is allowed.

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II. The judgment and decree passed in O.S. No. 282/2007 dated 30.07.2009 by the I Additional Civil Judge (Senior Division), Kolar, modified in R.A. No. 99/2009 dated 01.10.2010 by the Principal District Judge, Kolar are modified as under:

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Appellant Nos.2 and 3 - plaintiff Nos.2 and 3 and defendant No. 1 are entitled to 1/3 share each in item Nos.1 and 2 of suit schedule properties by metes and bounds.

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III. Defendant No. 2 is at liberty to enforce Ex.D.1 – Release Deed dated 02.02.2002 against share of defendant No.1 in item No. 1 of suit schedule properties by a separate suit.

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NC: 2023:KHC:21359 RSA No. 187 of 2011

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13 -

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In view disposal of the appeal, Misc. Cvl. No. 1502/2011

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stands dismissed.

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Sd/JUDGE

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LRS List No.: 1 Sl No.: 26

Smt Munilakshmamma v. Narayanaswamy

Case brief

What is this about?

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Smt Munilakshmamma v. Narayanaswamy

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