Dismissed

Smt. Lakshmamma v. Smt. Giriyamma

Karnataka HC9 Nov 2023RSA/737/2021

Case brief

AI extract

What is this about?

The High Court dismissed two second appeals filed by an unsuccessful plaintiff and a defendant. The court upheld the appellate court's view that a father's gift deed to his daughter, executed before the 2012 amendment to the Hindu Succession Act, was valid and saved under Section 6(1), barring a subsequent partition suit by other daughters.

What did the court decide?

The second appeals are dismissed. Pending I.As are disposed of.

Smt. Lakshmamma Vs Smt. Giriyamma — Partition | Karnataka HC (2023)

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NC: 2023:KHC:40215 RSA No. 737 of 2021 C/W RSA No.754 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^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. 737 OF 2021 (PAR)

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C/W

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REGULAR SECOND APPEAL NO.754 OF 2021(PAR)

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IN RSA NO.737/2021 BETWEEN:

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SMT. LAKSHMAMMA WIFE OF KRISHNAPPA AGED ABOUT 54 YEARS, RESIDING AT RAMANATHPURA VILLAGE KUDIYANUR POST MALUR TALUK -563 160

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…APPELLANT

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(BY SRI. B SHARATH KUMAR, ADVOCATE)

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Digitally signed by CHAITHRA A Location: HIGH COURT OF KARNATAKA

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AND:

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SMT. GIRIYAMMA WIFE OF VENKATESHAPPA AGED ABOUT 57 YEARS, RESIDENT OF MANGAPURA VILLAGE KASABA HOBLI MALUR TALUK -563 160

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SMT GOWRAMMA W/O KARIYAPPA AGED ABOUT 59 YEARS, RESIDENT OF MANGAPURA VILLAGE

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2 - NC: 2023:KHC:40215 RSA No. 737 of 2021 C/W RSA No.754 of 2021

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KASABA HOBLI MALUR TALUK-563 160

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…RESPONDENTS (BY SRI.RASHEED KHAN, ADVOCATE FOR C/R1; SRI.A.N.NARAYANA SWAMY, ADVOCATE FOR R2)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 16.01.2021 PASSED IN RA.NO.95/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., MALUR, SENIOR CIVIL JUDGE, MALUR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 04.09.2013 PASSED IN OS.NO.445/2006 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (JR.DN.) MALUR.

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IN RSA NO.754/2021 BETWEEN:

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SMT. LAKSHMAMMA WIFE OF KRISHNAPPA AGED ABOUT 52 YEARS, RESIDENT OF RAMANATHAPURA VILLAGE, KUDIYANUR POST MALUR TALUK -563 160 KOLAR DISTRICT

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...APPELLANT

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(BY SRI.B SHARATH KUMAR, ADVOCATE)

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AND:

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1 . SMT. GIRIYAMMA

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WIFE OF VENKATESHAPPA AGED ABOUT 55 YEARS, RESIDING AT MANGAPURA VILLAGE KASABA HOBLI MALUR TALUK-563 160

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NC: 2023:KHC:40215 RSA No. 737 of 2021 C/W RSA No.754 of 2021

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2 . SMT GOWRAMMA

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W/O KARIYAPPA AGED ABOUT 59 YEARS, RESIDENT OF MANGAPURA VILLAGE KASABA HOBLI, MALUR TALUK KOLAR DISTRICT

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…RESPONDENTS

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(BY SRI.RASHEED KHAN, ADVOCATE FOR C/R1; SRI.A.N.NARAYANA SWAMY, ADVOCATE FOR R2)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 16.01.2021 PASSED IN RA.NO.97/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE, MALUR, DISMISSING THE APPEAL AND FILED AGAINST THE JUDGMENT AND DECREE DATED 04.09.2013 PASSED IN O.S.NO.445/2006 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, MALUR.

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

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JUDGMENT

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The captioned second appeals are filed by

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unsuccessful plaintiff assailing the judgment and decree of the appellate Court wherein the plaintiff's suit seeking the relief of partition is dismissed in entirety.

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For the sake of convenience the parties are referred to as per their rank before the trial Court.

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The family tree is as under:

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4 - NC: 2023:KHC:40215 RSA No. 737 of 2021 C/W RSA No.754 of 2021

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Late Bellavi Muniswamy + Late Venkatamma |

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2 Sons

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|
--------------------------------------------
| |
Chinappa Venkatappa
3 Daughters
|
--------------------------------------
| | |
Gowramma Giriyamma Lakshmamma
2 nd Def 1 st Def Plaintiff

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4. The plaintiff who is the daughter of one

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Venkatappa and sister of defendants 1 and 2 has instituted

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the present suit seeking the relief of partition and separate possession in the suit schedule properties alleging that the

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suit schedule properties are the joint family ancestral properties and that she is entitled for a share. The trial

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Court partly decreed the suit granting 1/3^rd share only in

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the suit schedule property bearing Survey No.32/1 excluding 20 guntas on the ground that defendant No.1 has jointly purchased the property along with her father on 9.3.1984. The suit of the plaintiff for partition in respect of item Nos.1 to 4 of the suit schedule properties

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5 - NC: 2023:KHC:40215 RSA No. 737 of 2021 C/W RSA No.754 of 2021

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was dismissed on the ground that plaintiff has failed to prove that those properties were acquired by her grandfather and they are the joint family ancestral properties.

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Feeling aggrieved by the judgment and decree

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of the trial Court in refusing to grant share in respect of suit items 1 to 4, plaintiff preferred R.A.No.97/2013 and feeling aggrieved by the judgment and decree of the trial Court in ignoring the gift deed executed by her father Venkatappa, defendant No.1 preferred R.A.No.95/2013.

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The appellate Court as a final fact finding authority has reassessed the entire evidence on record.

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The appellate Court while taking cognizance of the registered gift deed executed by Venkatappa which is dated 10.9.2004 was of the view that the present plaintiff had no subsisting right on the date Venkatappa executed

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the gift deed in favour of defendant No.1. The appellate Court was of the view that the gift deed executed by Venkatappa is prior to 20.12.2004 and therefore, the

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6 - NC: 2023:KHC:40215 RSA No. 737 of 2021 C/W RSA No.754 of 2021

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disposition of property by father is saved under the provisions of Section 6(1) of the Hindu Succession Act, 1956 (for short "Act, 1956") and hence, the appellate Court was of the view that defendant No.1 became the absolute owner pursuant to the gift deed executed by her father on 10.9.2004. Hence, the appeal filed by the plaintiff in R.A.No.97/2013 is dismissed and the suit for partition filed by plaintiff is dismissed in entirety. Consequently, the appeal filed by defendant No.1 in R.A.No.95/2013 is allowed.

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Heard the learned counsel for the plaintiff and the learned counsel for the defendants.

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The contention of the learned counsel for the appellant/plaintiff that the suit schedule properties are the joint family ancestral properties cannot be acceded to. It is not in dispute that Venkatappa sold the suit schedule property on 22.1.1970. The suit property was

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repurchased by Venkatappa along with his daughter i.e. defendant No.1 on 9.3.1984.

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NC: 2023:KHC:40215 RSA No. 737 of 2021 C/W RSA No.754 of 2021

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Even if the suit property bearing Survey

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No.31/2 is held to be the joint family ancestral property, plaintiff as a daughter though conferred with the status of a co-parcener cannot enforce her right as the property was lost on 10.9.2004 in view of the gift deed executed by Venkatappa in favour of defendant No.1. Provision to Section 6(1) of the Act, 1956 clearly saves disposition, alienation including partition made on or before 20.12.2004. Admittedly, in the present case on hand, the father has executed the gift deed in favour of defendant No.1 on 10.9.2004. Therefore, the gift deed executed by father is clearly saved in view of provision to Section 6(1) of the Act, 1956. These significant details are not taken

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note of by the trial Court while granting share to the plaintiff and defendant No.2. As on the date of execution of the gift deed, plaintiff and defendant No.2 who are daughters had no independent right in the property. Therefore, the gift deed executed by Venkatappa in favour of defendant No.1 is clearly saved under the provision to Section 6(1) of the Act, 1956. Therefore, the plaintiff

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8 - NC: 2023:KHC:40215 RSA No. 737 of 2021 C/W RSA No.754 of 2021

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could not have maintained the partition suit. Defendant No.1 has become the absolute owner based on the registered gift deed executed on 10.9.2004. The findings recorded by the appellate Court is strictly in consonance with the provisions of Section 6(1) of the Act, 1956 and

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also the judgment rendered by the Apex Court in

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VINEETA SHARMA .VS. RAKESH SHARMA AND

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OTHERS¹ wherein the Apex Court has exhaustively dealt with Section 6(1) of the Act, 1956 and the provision to the Act, 1956. No substantial question of law arises for consideration.

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The second appeals are devoid of merit and accordingly, dismissed.

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Pending I.As, if any, stand disposed of.

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Sd/JUDGE

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ALB

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List No.: 1 Sl No.: 15

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1 AIR 2020 SC 3717

Smt. Lakshmamma v. Smt. Giriyamma

Case brief

What is this about?

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Smt. Lakshmamma v. Smt. Giriyamma

Case brief

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