Partly allowed

Smt. Geetabai W/O Shashikumar Chougule v. Smt. Kumudini W/O Anantraj Hamigi

Karnataka HC3 Sept 2024RFA/100212/2018

Case brief

AI extract

What is this about?

Partition appeal over a deceased railway employee's self-acquired residential property. The High Court held devolution must be under Section 8 of the Hindu Succession Act among Class-I heirs, modified the decree granting one-third shares each to two daughters and jointly to a daughter-in-law and granddaughter, leaving proof of an alleged Will to final decree proceedings.

What did the court decide?

Decree modified: appellants/respondents entitled 1/3rd share each (or per proved Will, 3/5th to appellant 2); office directed to draw decree accordingly.

Smt. Geetabai W/O Shashikumar Chougule Vs Smt. Kumudini W/O… — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:12664-DB RFA No. 100212 of 2018

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 3^RD DAY OF SEPTEMBER, 2024

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PRESENT

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THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD AND

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THE HON'BLE MR. JUSTICE C M JOSHI REGULAR FIRST APPEAL NO. 100212 OF 2018 (PAR/POS)

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BETWEEN:

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Digitally signed by YASHAVANT NARAYANKAR Location: HIGH COURT OF KARNATAKA

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SMT. GEETABAI W/O. SHASHIKUMAR CHOUGULE SINCE DECEASED BY HER LRS i.e. APPELLANT NO.2 AND RESPONDENT NO.1-3, WHO ARE ALREADY ON RECORD.

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SMT. PADMINI W/O. RAVIKUMAR RAMGOND (D/O. SMT. GEETABAI AND LATE SHRI. SHASHIKUMAR CHOUGULE), AGE ABOUT: 49 YEARS, OCC: HOUSEHOLD WORK, R/O: NO.87, SHANTINAGAR, TILAKWADI, BELAGAVI.

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…APPELLANTS

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(BY SMT. SUNITHA P. KALASOOR, ADVOCATE FOR APPELLANT NO. 2; APPELLANT NO.1 DECEASED )

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AND:

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SMT. KUMUDINI W/O. ANANTRAJ HAMIGI (D/O. SMT. GEETABAI AND LATE SHRI. SHASHIKUMAR CHOUGULE), AGE ABOUT: 53 YEARS, OCC: HOUSEHOLD WORK, R/O: CHANDRAKIRAN PLAZA, KHUTWAD NAGAR, NASIK, MAHARASHTRA STATE.

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2 - NC: 2024:KHC-D:12664-DB RFA No. 100212 of 2018

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SMT. VEENA @ PADMAVATI W/O. LATE SUNEELKUMAR CHOUGULE, AGED ABOUT: 45 YEARS, OCC: BUSINESS, R/O: 8TH MAIN, 19TH CROSS, MALLESWARAM, BENGALURU.

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KUMARI RASHMI D/O. SMT. VEENA @ PADMAVATI AND LATE SUNEELKUMAR CHOUGULE, AGED ABOUT: 20 YEARS, OCC: STUDENT, R/O: 8TH MAIN, 19TH CROSS, MALLESWARAM, BENGALURU.

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…RESPONDENTS

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(BY SRI. MAHANTESH S. HIREMATH, ADVOCATE FO R2; SRI. S.K. KAYAKAMATH AND SRI. L.M. KURAHATTI, ADVOCATES FOR R3; SRI. ASHOK I. BADIGER, ADVOCATE FOR R1)

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THIS REGULAR FIRST APPEAL FILED UNDER SEC. 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED: 13.03.2018 PASSED IN O.S.NO.65/2016 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, HUBBALLI, PARTLY DECREEING THE SUIT FILED FOR PARTITION AND SEPARATE POSSESSION.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: THE HON'BLE MR. JUSTICE B.M.SHYAM PRASAD AND THE HON'BLE MR. JUSTICE C M JOSHI

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3 - NC: 2024:KHC-D:12664-DB RFA No. 100212 of 2018

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ORAL JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE B.M. SHYAM PRASAD)

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This appeal is by the plaintiffs in O.S.No.65/2016 on the file of the I-Additional Senior Civil Judge, Hubballi [for short ‘ the civil Court ’]. The appellants have succeeded in the suit but only in part and therefore, they are in appeal. The civil Court’s judgment and decree are dated 13.03.2018. The civil Court has declared that the first appellant, as the wife of deceased Sri Shashikumar Chougule, would be entitled to 1/4^th share out of her husband’s 1/3^rd share and that the second appellant would also be entitled to 1/4^th share in Sri. Shashikumar Chougule’s 1/3^rd share but as a daughter.

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The appellants have filed this suit along with Sri. Bharatesh, who is the eldest son of Sri Shashikumar Chougule and the first appellant, who has died during the pendency of the suit and because he has died bachelor, the other parties have continued the suit without bringing on record any other person. The first appellant has died during the pendency of the appeal and

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4 - NC: 2024:KHC-D:12664-DB RFA No. 100212 of 2018

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the second appellant contends that the first appellant has bequeathed her undivided interest in her favour under her last Will and testament. In fact, the second appellant has filed an application under Order XXII Rule 9 of the CPC for leave to prosecute the appeal as a legatee of the first appellant. It is undisputed that even otherwise, all her legal representatives are on record i.e., her two daughters and the legal heirs of her another pre-deceased son.

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Smt. Sunitha P Kalasoor and

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Sri.S.K.Kayakamath are heard for final disposal of the appeal and the application. The learned counsels submit that this Court must dispose of the appeal examining the following points for consideration:

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[i] Whether the civil Court’s decree granting different share to the parties in a notional partition can be sustained in view of the provisions of the Hindu Succession Act, 1956 and the decision of the Hon’ble Apex Court in Vineeta Sharma v. Rakesh Sharma and

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others¹ and

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1 AIR 2020 SC 3717

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5 - NC: 2024:KHC-D:12664-DB RFA No. 100212 of 2018

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[ii] Whether the second appellant would be entitled to the first appellant’s share exclusively because of the asserted bequeath in her favour.

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It is seen from the records that Sri.

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Shashikumar Chougule has died on 09.02.2015 leaving behind the first appellant [his wife] and three children viz., two daughters and a son, and wife and daughter of a predeceased son, Sri. Suneelkumar Chougle. The second appellant is one of the daughters and the first respondent is the other daughter. The younger son, Sri. Suneelkumar Chougle has died on 16.07.2001, and the second and third respondents are his wife and daughter. The elder son, Sri. Bharatesh has died a bachelor during the pendency of the suit leaving behind only the first appellant as his Class -I legal heir.

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Sri. Shashikumar was working with the

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Railway Department and has left behind residential property which is described in the plaint schedule. If the relationship is undisputed, it is also undisputed that this residential

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property is his self-acquired property. The civil Court has essentially proceeded on the footing that the subject property must be divided inter se the parties and the shares ascertained based on the date of death of the deceased Shashikumar and the amendment to the Hindu Succession Act, 1956 [for short, ‘the HS Act’ ] in the year 2005.

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However, this Court must observe that as the parties do not dispute that the suit schedule property was Sri. Shashikumar Chougule’s self-acquired property and that he has died intestate, it must follow in law that the property should devolve under Section 8 of the HS Act with each of his Class-I heir [that is, his wife and four children] taking an equal share, and with the subsequent demise of the elder son [Sri Bharatesh] and the later demise of his wife [the first appellant], the shares get altered. The civil Court in arriving at its conclusion that the devolvement must be under Section 6 of the HS Act amended vide the Amendment Act 2005 has overlooked material aspects and the provisions of the Act that would apply.

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NC: 2024:KHC-D:12664-DB RFA No. 100212 of 2018

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In any event today, with the exposition of the Apex Court in Vineeta Sharma [supra] even if Section 6 of the HS Act applied it would not alter the shares that each of the Class-I heir will take on Sri Shashikumar Chougule’s intestate demise. Therefore, the first appellant, the second appellant, Sri Bharatesh and the first respondent would take 1/5^th share each and the second and third respondents [as wife and daughter of a predeceased son] would together take the other 1/5^th share. This Court must opine that with Sri Bharatesh dying intestate during the pendency of the suit, the first appellant alone succeeded to his share as his class-I legal heir, and with the first appellant dying, her two shares out of the 5 shares [2/5^th share] must devolve to her two daughters and her granddaughter [the third respondent].

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Consequentially, the second appellant and the first respondent will take 1/3^rd share each and the second and third respondents together [but subject to their corresponding shares therein] will take the other 1/3^rd share. The first point for consideration is answered

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accordingly. The second appellant contends that the first appellant has died leaving behind her last Will and testament in her favour and therefore, she is entitled to her share as well. However, even a copy thereof is not produced before this Court. If the second appellant has to succeed to the first appellant’s undivided 2/5^th share in the subject property, it would be imperative for the second appellant to prove due execution and attestation of her last Will and Testament as required bereft of all suspicious circumstances. The subject property is a residential property and the question of partitioning this property into five parts will have to be gone into in the final decree proceedings.

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This Court is of the considered view that if the second appellant is able to bring on record the last Will and Testament allegedly executed by the first appellant and prove its due execution and attestation in the final decree proceedings, the question whether the subject property must be divided into five parts with the second appellant taking two parts could also to be decided in the final decree proceedings.

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This Court must observe that if for any

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reason, the second appellant is unable to produce this asserted last Will and Testament in the final decree proceedings, or otherwise prove due execution and attestation thereof, the property must be divided into three equal parts with the second appellant and the first respondent taking 1/3^rd share each in the suit schedule property and the second and third respondents together [ subject to their respective shares therein ] taking the other 1/3^rd share. The second point for consideration is answered accordingly and the appeal stands disposed of by the following:

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ORDER

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The appeal is allowed in part modifying the civil Court’s judgment and decree dated 13.03.2018 declaring as follows.

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[a] The second appellant and the first respondent are entitled to 1/3^rd share in the subject property with the second and the third respondent together [ subject to

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10 - NC: 2024:KHC-D:12664-DB RFA No. 100212 of 2018

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their respective shares therein] being entitled to 1/3^rd share.

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[b] However, if the second appellant is able to bring on record in the final decree proceedings the original of the last Will and testament executed by the first appellant and she is able to prove its due execution and attestation, the second appellant will be entitled to 3/5^th share in the suit schedule property and the first respondent wil be entitled to 1/5^th share and the second and third respondents together will be entitled to 1/5^th share.

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The office is directed to draw decree accordingly.

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Sd/(B.M.SHYAM PRASAD) JUDGE

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Sd/(C M JOSHI) JUDGE

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YAN, List No.: 1 Sl No.: 13

Smt. Geetabai W/O Shashikumar Chougule v. Smt. Kumudini W/O Anantraj Hamigi

Case brief

What is this about?

What did the court decide?

Smt. Geetabai W/O Shashikumar Chougule v. Smt. Kumudini W/O Anantraj Hamigi

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

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