Partly allowed

Smt Putta Gowramma v. Smt Mahadevamma

Karnataka HC7 Nov 2023RSA/580/2012

Case brief

AI extract

What is this about?

The High Court allowed the second appeal partly, holding that daughters are coparceners by birth under Section 6 of the Hindu Succession Act 2005. Consequently, the court modified lower courts' decrees to grant plaintiffs a 1/4th share in ancestral properties instead of the 1/8th share awarded previously. The sale deeds in favour of third parties are declared void to the extent of the plaintiffs'

What did the court decide?

Granted 1/4th share to plaintiffs in 'A' and 'C' schedule properties; sale deeds in favour of defendants 3 and 4 declared null and void to the extent of plaintiffs' share.

Smt Putta Gowramma Vs Smt Mahadevamma — Partition | Karnataka HC (2023)

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1 - NC: 2023:KHC:39776 RSA No. 580 of 2012

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 7^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE ASHOK S.KINAGI

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REGULAR SECOND APPEAL NO. 580 OF 2012 (PAR)

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BETWEEN:

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SMT. PUTTA GOWRAMMA W/O SRIKANTA SWAMY AGED ABOUT 55 YEARS R/O NENE KATTE VILLAGE KASABA HOBLI, GUNDLUPET TALUK CHAMARAJANAGAR DISTRICT

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…APPELLANT

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(BY SRI. P CHANDRASHEKAR, ADVOCATE)

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AND:

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SMT MAHADEVAMMA W/O SOMAPPA, AGED ABOUT 59 YEARS R/O SUTTUR VILLAGE Digitally signed BILIGERE HOBLI by R DEEPA NANJANAGUD TALUK Location: High MYSORE DISTRICT – 571 301 Court of Karnataka

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SMT NANJAMMA W/O LATE PUTTASWAMAPPA AGED ABOUT 70 YEARS

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SRI NAGARAJU S/O LATE PUTTASWAMAPPA AGED ABOUT 50 YEARS

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BOTH RESPONDENT No.2 AND 3 ARE R/A SUTTUR VILLAGE BILIGERE HOBLI,

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NANJANAGUD TALUK MYSORE DISTRICT – 571 301

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SRI MADASHETTY S/O LATE HUCHA MADASHETTY SINCE DEAD BY HIS LR'S

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4(A) GOWRAMMA W/O LATE MADASHETTY AGED ABOUT 60 YEARS

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4(B) SHIVAMAHADEVAMMA W/O MURTHY D/O MADHASHETTY AGED ABOUT YEARS

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4(C) SRI. MADARAJU S/O LATE MADHASHETTY AGED ABOUT 42 YEARS

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4(D) SHIVANNA S/O LATE MADHASHETTY AGED ABOUT 39 YEARS

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4(E) NANJUNDA S/O LATE MADASHETTY AGED ABOUT 33 YEARS

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ALL ARE R/AT VAJAMANGALA VILLAGE VARUNA HOBLI MYSURU TALUK – 570 010.

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SMT JAYAMMA W/O BASAVA SHETTY @ BODA SHETTY AGED ABOUT 57 YEARS R/A VAJAMANGALE VILLAGE VARUNA HOBLI MYSORE TALUK – 571 302

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SRI H VENKATESH S/O LATE H VISHNU REDDY

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3 - NC: 2023:KHC:39776 RSA No. 580 of 2012

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AGED ABOUT 47 YEARS R/O NO.6, 2^ND FLOOR NISARGADHAMA APARTMENTS CHAMARAJA MOHALLA MYSORE – 571 502

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…RESPONDENTS

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(BY SRI. P NATARAJU, ADVOCATE FOR R1 SRI. T.P. VIVEKANANDA, ADVOCATE FOR R6 R2, R3, R4(A-E) ARE SERVED V/O DATED 26.02.2013 R5 HELF SUFFICIENT)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 16.12.2011 PASSED IN R.A.NO.78/2011 ON THE FILE OF THE VI ADDITIONAL DISTRICT JUDGE, MYSORE, PARTLY ALLOWING THE APPEAL AND MODIFYING THE JUDGMENT AND DECREE DATED 18.12.2010 PASSED IN O.S.NO.295/2006 ON THE FILE OF THE I-ADDITIONAL JUDGE, SMALL CAUSES AND ADDITIONAL SENIOR CIVIL JUDGE, MYSORE.

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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 appellant challenging the judgment and decree dated 16.12.2011, passed in R.A.No.78/2011 by the VI Additional District Judge, Mysuru, partly confirming the judgment and decree dated 18.12.2010 passed in O.S.No.295/2006 by the I Additional Judge, Small Causes and Additional Senior Civil Judge, Mysuru.

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For the sake of convenience, parties are referred

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to as per their ranking before the trial Court. The appellant is plaintiff No.2 and respondent 1 is plaintiff No.1 and respondent Nos.2 to 6 are the defendants.

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

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Plaintiffs filed a suit for partition and separate possession in respect suit schedule properties and for mesne profits and to declare the registered sale deeds dated 28.04.2005 and 28.07.2005 executed by defendant Nos.1 and 2 in favour of defendant Nos.3 and 4 are null and void and not binding on the plaintiffs. It is the case of the plaintiffs that suit schedule properties are the ancestral properties of plaintiffs and defendant Nos.1 and 2. Defendant No.1 is the mother of plaintiffs and defendant No.2 is the brother of plaintiffs. It is the case of the plaintiffs that one Late Puttaswamappa is the father of plaintiffs and defendant No.2. The suit schedule 'A' and 'C' properties are the ancestral properties inherited by

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Puttasamappa after the death of the grandfather of plaintiffs and defendant No.2 and said Puttaswamappa, plaintiffs and defendants No.1 and 2 continued to be in the joint family. The suit schedule 'B' property was purchased by Puttaswamappa in the name of defendant No.1, who is the wife of Puttaswamappa out of joint family income. Hence, it is contended that the suit schedule properties are the joint family properties of Late Puttaswamappa, plaintiffs, defendants No.1 and 2. After the death of the grandfather of plaintiffs and defendant No.2, the khatha of suit schedule 'A' and 'C' properties were changed in the

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names of defendant No.2 and defendant No.2 was regularly paying the profits earned from the suit schedule properties to the plaintiffs. Defendant No.2 failed to pay the same from the year 2004 and started to deny the legitimate share of the plaintiffs. After verification, it was found that defendant Nos.1 and 2 have entered into joint development agreement with defendant Nos.3 to 5 and they have executed registered sale deeds in favour of defendant Nos.3 and 4. The plaintiffs demanded for

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partition and separate possession, but the defendant Nos.1 and 2 denied to effect the partition. Hence, cause of action arose for the plaintiffs to file the suit for partition and separate possession.

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Defendant Nos.1 and 2 filed written statement

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denying the plaint averments except the selling of the properties to defendants No.3 and 4. It is contended that suit schedule 'B' property is the self-acquired property of defendant No.1 and sought for dismissal of the suit. Defendants No.3 and 4 appeared through their counsel, but did not file the written statement. Defendant No.5 filed the written statement contending that suit filed by the plaintiffs is a collusive suit. It is stated that the suit schedule properties were sold earlier to 20.12.2004, and therefore they are not available for partition. Further it is contended that defendant Nos.1 and 2 entered into a registered joint development agreement by receiving consideration of Rs.21,65,625/- and Rs.12,07,500/- and handed over the possession and they have executed

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registered sale deeds in favour of defendant Nos.3 and 4.

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Hence, defendant Nos.3 and 4 are the bonafide purchasers

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and hence, prayed to dismiss the suit.

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The Trial Court, on the basis of the above said pleadings, framed the following issues and additional issues:

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Issues

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1. Whether plaintiffs prove that suit properties are the joint family properties of plaintiff and defendant Nos.1 and 2 as pleaded?

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2. Whether plaintiffs prove that sale of suit properties by defendant Nos.1 and 2 in favour of defendant Nos.3 and 4 is not binding on them as pleaded?

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3. Whether plaintiffs prove that suit is properly valued and Court fee paid thereon is correct?

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

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5. What order /decree ?

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Additional Issues framed on 22.02.2010:

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1. Whether defendant No.5 proves that the suit of the plaintiff is not maintainable?

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2. Whether defendant No.5 proves that he is a bonafide purchaser?

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3. What order/decree?

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In order to prove the case of the plaintiffs, the plaintiff No.1 examined herself as PW-1 and got examined two witnesses as PW-2 & PW-3 and got marked 9 documents as Exs.P1 to P9. Defendant No.5 was examined as DW-1 and marked 16 documents as Exs.D1 to D16. The trial Court on assessment of oral and documentary evidence of the parties, answered issue Nos.1 to 4 in the affirmative and additional issues Nos.1 and 2 in the negative and consequently decreed the suit of the plaintiffs. It is ordered and decreed that plaintiff Nos.1 and 2 are entitled for partition and separate possession of 1/8^th share each in the suit schedule properties and further declared that sale deed executed by defendant Nos.1 and 2 in favour of defendant Nos.3 and 4 dated 28.04.2005 and 28.07.2005 are null and void and not binding on the plaintiffs to the extent of their share and also ordered that plaintiffs are entitled for future mesne profits.

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The defendant No.5, aggrieved by the judgment

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and preliminary decree passed by the trial Court, preferred an appeal in R.A.No.78/2011 before the VI Additional District Judge, Mysore.

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The First Appellate Court, after hearing the

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parties, has framed the following points for consideration:

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1. Whether respondent No.1 and 2/plaintiffs prove that they are entitled for 1/4^th share each in all the suit schedule properties and all the suit schedule properties are their joint family properties?

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2. Whether appellant/defendant No.5 proves that 'B' schedule property is self-acquired property of defendant No.1 and therefore, plaintiffs are not entitled for partition in said property?

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3. Whether appellant/ defendant No.5 further proves that the suit schedule properties were sold earlier to 20.12.2004 and therefore, they are not available for partition?

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4. Whether appellant/defendant No.5 further proves that the judgment and decree of the trial Court are perverse and unsustainable and interference of this Court is required?

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5. What order or decree ?

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The First Appellate Court, on re-assessment of

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oral and documentary evidence, answered point No.1 in the partly positive held that plaint A and C schedule properties are the joint family properties and plaintiffs are entitled for 1/8^th share each and answered point Nos.2 in the positive, point No.3 in the negative, point No.4 in the partly positive and allowed the appeal in part and cross objection filed by the plaintiffs is rejected. Consequently, judgment and decree passed by the trial Court is modified. It is ordered and decreed that suit of the plaintiffs is partly decreed and Plaintiff Nos.1 and 2 are entitled for partition

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and separate possession of 1/8^th share in 'A' and 'C' suit schedule properties and further declared that sale deeds executed by defendant Nos.1 and 2 in favour of defendant No.3 and 4 dated 28.04.2005 and 28.07.2005 are null and void and not binding on the plaintiffs, to the extent of share of the plaintiffs only in A and C suit schedule properties and plaintiffs are entitled for mesne profits in respect of 'A' and 'C' suit schedule properties. However, it is made clear that item No.2 of the suit schedule property

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i.e., B schedule property is not available for partition and

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the suit of the plaintiffs in respect of B schedule property is dismissed.

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Plaintiff No.2, aggrieved by the judgments and decrees passed by the Courts below, has filed this second appeal.

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This court admitted the appeal on the following substantial question of law :

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"Whether the courts below were justified in not granting equal share to the plaintiff without considering Section 6 of Hindu Succession (Amendment) Act 2005 ?"

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Heard learned counsel for the plaintiffs and

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defendant No.5.

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Learned counsel for the plaintiffs submits that plaintiffs are the daughters of defendant No.1 and sister of defendant No.2 and they are the members of Hindu undivided joint family and suit schedule properties are the joint family properties of the plaintiffs and defendant

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Nos.1 and 2. The plaintiffs being the daughters of defendant No.1 and sister of defendant No.2 are entitle for equal share as per Section 6 of Hindu Succession Act, 2005. He submits that the Courts below have committed an error in granting 1/8^th share which is contrary to the law laid down by the Hon'ble Apex Court in the case of

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Vineeta Sharma Vs. Rakesh Sharma and others reported in (2020) 9 SCC 1 . Hence, on these grounds, he prays to allow the appeal.

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Per contra, learned counsel for the defendant No.5 submits that defendant Nos.1 and 2 have executed the joint development agreement in favour of defendant No.5 and later on defendant Nos.1 and 2 executed the registered sale deeds in favour of defendant Nos.3 and 4 dated 28.04.2005 and 28.07.2005, and hence defendants No3 and 4 have become absolute owners of the suit schedule properties. The said sale deeds executed by defendant No.2 in favour of defendant Nos.3 and 4 are binding on the plaintiffs. He submits that Courts below

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were justified in awarding and granting 1/8^th share each to the plaintiffs. Hence, the judgments and decrees passed by the Courts below are just and proper and prayed to dismiss the appeal.

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Perused the records and considered the

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submissions of learned counsel for the parties.

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SUBSTANTIAL QUESTION OF LAW : It is not in

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dispute that the plaintiffs are the daughters of defendant No.1 and sister of defendant No.2. Further, it is also not in dispute that the suit schedule properties are the ancestral joint family properties of the plaintiffs and defendant Nos.1 and 2. Further in order to prove that the suit schedule properties are joint family properties of plaintiffs and defendant Nos.1 and 2. Plaintiff No.1 examined herself as PW-1. She has reiterated plaint averments in the examination-in-chief and in order to prove the case, the plaintiffs have produced genealogical tree marked as Ex.P.1; Ex.P.2 is copy of mutation extract, which discloses that there was partition and suit schedule

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properties are fallen to his share; Ex.P.3 is the index of lands bearing Sy.No.192/1 which stands in the name of Chennaiah S/o Chikkaswamaiah, father of defendant No.2; Ex.P.4 is the record of rights in respect of land bearing Sy.No.192/1 stands in the name of father of the plaintiffs and defendant No.2; Exs.P.5 and P6 are the registered sale deeds executed by defendant Nos.1 and 2 in favour of defendant Nos.3 and 4; Ex.P.7 is the certified copy of the joint development agreement executed by defendant Nos.1 and 2 in favour of defendant No.5 and Exs.P.8 and 9 are the RTC extracts which stands in the name of defendant Nos.3 and 4.

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Further, plaintiffs in order to prove their case, examined one Nanjundappa as PW.2, who has deposed that suit schedule 'A' and 'C' properties are the joint family properties of plaintiffs and defendant Nos.1 and 2 and earlier the said properties stood in the name of Chennaiah S/o Chikkaswamaiah who is the grandfather of plaintiffs and defendant No2. He also deposed that suit schedule 'B'

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property was purchased by the father of the plaintiffs in the name of defendant No1 out of joint family income. From the perusal of records which discloses that the suit schedule properties are the ancestral joint family properties of plaintiffs and defendant Nos.1 and 2. Further, the plaintiffs also examined one Basavaraju as PW.3. He has also deposed that the suit schedule properties are the joint family properties of plaintiffs and defendant Nos.1 and 2 and there is no partition effected between the plaintiffs and defendant Nos.1 and 2. Further he has deposed that schedule B property is purchased by father of defendant No.2 in the name of his wife.

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In rebuttal, defendant No.5 was examined as DW.1 and reiterated the written statement averments in the examination-in-chief and produced Ex.D.1 is the certified copy of General Power of Attorney executed by defendant Nos.3 and 4 and others appointing H. Venkatesh i.e., defendant No.5 as their power of Attorney holder and Ex.D2 is the certified copy of General power of

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Attorney executed by Jayamma and others appointing defendant No.5 as their Power of Attorney holder; Ex.D.3 is the joint development agreement executed by Jayamma and others in favour of defendant No.5; Ex.D.4 is the joint development agreement executed by defendant Nos.3 and 4 and others in favour of defendant No.5; Exs.D5 to 7 are registered sale deeds executed by defendant Nos.1 and 2 in favour of defendant Nos.3 and 4; Ex.D.8 to 10 are the mutation register extracts, wherein on the basis of registered sale deed executed by defendant No.1 in favour of defendant Nos.3 and 4, the names of defendant Nos.3 and 4 are entered in the revenue records; Ex.D11 and 12 are the acknowledgments; Ex.D13 is the mutation register extract and Ex.D.14 to 16 are the RTC extracts.

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From the perusal of the evidence of plaintiffs and defendants, it is clear that suit schedule properties are the ancestral joint family properties of plaintiffs and defendant Nos.1 and 2. Defendant Nos.1 and 2 have no exclusive right to execute the registered sale deed in

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favour of defendant Nos.3 and 4. Further, defendant Nos.1 and 2 have filed the written statement admitting the relationship of plaintiffs with the defendants. Further, defendants have not produced any records to show that there was partition between the plaintiffs and defendant Nos.1 and 2. The trial Court considering the oral and documentary evidence held that suit schedule properties are the joint family properties of plaintiffs and defendant Nos.1 and 2 and held that sale deeds executed by defendant Nos.1 and 2 in favour of defendant Nos.3 and 4 is not binding on the plaintiffs. The trial Court without considering that plaintiffs being the daughters, would be the coparceners and are entitle from birth and have the same rights and liabilities as that of a son in the ancestral joint family properties and awarded 1/8^th share each to the plaintiff Nos.1 and 2 in the suit properties.

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Defendant No.5 aggrieved by the judgment and preliminary decree passed by the trial Court granting 1/8^th share each to plaintiffs in the suit schedule properties, has preferred an appeal in R.A.No.78/2011. The First Appellate

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NC: 2023:KHC:39776 RSA No. 580 of 2012

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Court dismissed the suit in respect of B schedule property. Prior to filing of suit the legislature brought an amendment to Section 6 of Hindu Succession Act (Act 39 of 2005), wherein the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as that of a son. The trial Court without considering the

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amendment to Section 6 of Hindu Succession Act has awarded notional share. The First Appellate Court also without considering the said aspect, has confirmed the judgment and decree passed by the trial Court. The Hon'ble Apex Court in the case of Vineetha Sharma referred (supra), held that "the daughter being coparceners are entitle for share as per Section 6 of Hindu Succession (Amendment) Act, 2005." Thus, the Courts below have committed an error in awarding 1/8^th share in the suit schedule properties. The plaintiffs are entitle for 1/4^th share each in the suit schedule properties. Hence, judgments and decrees passed by the trial Court as well as by the First Appellate Court requires to be modified. In

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NC: 2023:KHC:39776 RSA No. 580 of 2012

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view of the above discussion, I answer substantial

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question in the negative.

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Accordingly, I proceed to pass the following:

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ORDER

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The appeal is allowed in part.

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The judgments and decrees passed by the Courts below are modified.

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The plaintiffs are entitle for partition and separate possession of 1/4^th share each in 'A' and 'C' schedule properties.

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The plaintiffs are entitle for mesne profits in respect of 'A' and 'C' schedule properties.

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Learned counsel for defendant No.5 submits that plaintiff No.2 executed deed of confirmation on 01.02.2017 confirming the sale deeds executed by defendant Nos.1 and 2 in favour of defendant Nos.3 and 4 and agreed to settle the claim by confirming the parties. Submission is placed on record. However, liberty is reserved to defendant No.5 to produce

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the said document in the FDP proceedings and to work out the same in the FDP proceedings.

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No order as to the costs.

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SD/JUDGE

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SKS

Smt Putta Gowramma v. Smt Mahadevamma

Case brief

What is this about?

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Smt Putta Gowramma v. Smt Mahadevamma

Case brief

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What did the court decide?

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