Allowed

Smt Susheelamma v. Smt Chennamma

Karnataka HC10 Sept 2024RFA/1407/2010

Case brief

AI extract

What is this about?

Daughters appealed against a partial partition decree denying them equal shares on the ground of a prior registered partition deed. Holding they were not parties to that deed, the Division Bench allowed the appeal and decreed the suit granting each plaintiff a 12/121 share.

What did the court decide?

Appeal allowed with costs; trial court judgment and decree set aside; suit decreed granting each plaintiff a 12/121 share in the suit properties; modified decree to be drawn.

Smt Susheelamma Vs Smt Chennamma — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:36948-DB RFA No. 1407 of 2010

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF SEPTEMBER, 2024 PRESENT

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THE HON'BLE MR JUSTICE S.G.PANDIT

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AND

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THE HON'BLE MR JUSTICE C.M. POONACHA REGULAR FIRST APPEAL NO.1407/2010 (PAR/POS)

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BETWEEN:

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SMT. SUSHEELAMMA AGED ABOUT 55 YEARS W/O LATE P. RAMESH R/AT NO.554, BEHIND POLICE QUARTERS, YALWALA VILLAGE AND HOBLI, MYSORE TALUK-571130.

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SMT. R. KAMALAMMA AGED ABOUT 52 YEARS W/O M.S. SOMEGOWDA R/AT NO.1, MANTIKUPPA POST, AGASARAHUNDI VILLAGE, H.D. KOTE TALUK-571114.

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Digitally signed by MARIGANGAIAH PREMAKUMARI Location: HIGH COURT OF KARNATAKA

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SMT. R. SAROJA AGED ABOUT 49 YEARS W/O M.S. RAMALINGEGOWDA, R/AT BASAVANAGUDI BEEDI, MAHADDEVAPURA VILLAGE, S.R. PATNA TALUK, MANDYA DISTRICT-571418.

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SMT. R. GAYATHRI AGED ABOUT 40 YEARS W/O R. NAGESH, R/AT K.R. SAGARA, S.R. PATNA TALUK, MANDYA DISTRICT-571418.

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…APPELLANTS

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(BY SRI. Y K NARAYANA SHARMA, ADV.)

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AND:

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SMT. CHENNAMMA AGED ABOUT 80 YEARS W/O LATE RAME GOWDA R/AT OLD CANARA BANK ROAD, YELAWALA VILLAGE AND HOBLI, MYSORE TALUK-571130.

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SRI. SHIVEGOWDA AGED ABOUT 58 YEARS S/O LATE RAME GOWDA, R/AT NEAR GRAMA PANCHAYATH OFFICE, YELAWALA VILLAGE AND HOBLI, MYSORE TALUK-571130.

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SRI. KRISHNAPPA AGED ABOUT 54 YEARS PROPRIETOR: IYEPPA BRICKS, RESIDING BEHIND POLICE QUARTERS, YELAWALA VILLAGE AND HOBLI MYSORE TALUK-571130.

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SRI. CHANDRU SINCE DEAD BY HIS LRS

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A) SMT. SUMITHRA AGED ABOUT 40 YEARS W/O LATE CHANDRU,

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B) KUM. VIJETHA AGED ABOUT 21 YEARS

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BOTH ARE R/AT OLD CANARA BANK ROAD, YELAWALA VILLAGE AND HOBLI MYSORE TALUK-571130.

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C) SMT. VINUTHA AGED ABOUT 22 YEARS R/AT AGASARAHUNDI VILLAGE, H.D. KOTE TALUK-571114.

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3 - NC: 2024:KHC:36948-DB RFA No. 1407 of 2010

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SRI. NAGARAJU AGED ABOUT 48 YEARS S/O LATE RAME GOWDA, KSSRTC DRIVER

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SRI. RAMU @ PEDDA RAMU S/O LATE RAME GOWDA, PROPRIETOR: KUSHI CABLE NETWORK,

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SRI. SHANKARA AGED ABOUT 38 YEARS S/O LATE RAME GOWDA

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ALL ARE RESIDING AT OLD CANARA BANK ROAD, YELAWALA VILLAGE AND HOBLI, MYSORE TALUK-571130.

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…RESPONDENTS

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(BY SRI. K.R.RAMESHA, ADV. FOR R3 SRI K SRINIVASA GOWDA, ADV. FOR R2, 5 & 7 SRI RAMACHANDRA G BHAT, ADV. FOR R6 NOTICE TO R1 AND R4 (A TO C) ARE SERVED)

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THIS APPEAL IS FILED UNDER SECTION 96, R/W, O-XXXXI, R-1, OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 27.05.2010 PASSED IN O.S.165/2008 ON THE FILE OF THE II-ADDL. SENIOR CIVIL JUDGE, MYSORE, PARTLY DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.

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

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CORAM: HON'BLE MR JUSTICE S.G.PANDIT

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AND

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HON'BLE MR JUSTICE C.M. POONACHA

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4 - NC: 2024:KHC:36948-DB RFA No. 1407 of 2010

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ORAL JUDGMENT

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(PER: HON'BLE MR JUSTICE C.M.POONACHA)

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The present first appeal is filed by the plaintiffs challenging the judgment and decree dated 27.05.2010 passed in O.S.No.165/2008 by the Court of the II Additional Senior Civil Judge at Mysore (for short, ‘the Trial Court’), whereunder the suit for partition filed by the plaintiffs has been partly decreed and it is held that the plaintiffs are entitled for 1/77^th share in the suit schedule properties.

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The parties would be referred to as per the ranking before the Trial Court for the sake of convenience.

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The plaintiff Nos.1 to 4 are the daughters and defendant Nos.2, 3, 5, 6 and 7 and deceased defendant No.4 are the sons of one Ramegowda and his wife is defendant No.1. The father Ramegowda is stated to have been died in the year 2001. It is the case of the plaintiffs that suit properties are the ancestral and joint family

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5 - NC: 2024:KHC:36948-DB RFA No. 1407 of 2010

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properties of the plaintiffs and defendants. That since their demand for partition was refused, plaintiffs filed the suit claiming 4/11^th share each.

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The defendants entered appearance in the suit

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and filed their written statement contesting the suit. The relationship between the parties is not disputed. The sum and substance of defence of the defendants is that the suit properties have been partitioned and the registered partition deed dated 29.03.2003 has been entered into partitioning the suit properties. Hence, they seek for dismissal of the suit.

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Based on the pleadings of the parties, the Trial

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Court framed the following issues:

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“1) Whether the plaintiffs prove that the suit schedule properties are ancestral properties of themselves and defendants?

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2) Whether the defendants prove that the suit schedule properties are already partitioned between themselves through a registered partition deed dated

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29.03.2003 and hence, the plaintiffs are not entitled for any share over the suit schedule properties?

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3) Whether the plaintiffs are entitled for partition and separate possession? If so, what is their share?

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4) What Order or Decree?”

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The first plaintiff herself has examined as PW1

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and Ex.P1 to Ex.P6 documents have been marked in evidence. The second defendant is examined as DW1 and two witnesses are examined as DW2 and DW3. Ex.D1 to Ex.D5 documents have been marked in evidence.

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The Trial Court by its judgment and decree

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dated 27.05.2010, partly decreed the suit and held that plaintiffs are entitled for 1/77^th share in the suit properties. The Trial Court has recorded a finding that registered partition deed dated 29.03.2003 (Ex.D3) having been proved and the said partition having been effected prior to 20.12.2004, plaintiffs are not entitled to a share in terms

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NC: 2024:KHC:36948-DB RFA No. 1407 of 2010

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of the amended Section 6 of the Hindu Succession Act, 1956 (for short, ‘1956 Act’).

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Heard the submission of learned counsel Sri.Y.K.Narayana Sharma for appellants/plaintiffs through video conference, learned counsel Sri.K.Ramesha for respondent No.3, learned counsel Sri.K.Srinivasa Gowda for respondent Nos.2, 5 and 7 and learned counsel Sri.Ramachandra G. Bhat for respondent No.6.

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Learned counsel for the appellants contends that relationship between the parties being undisputed and having regard to the judgment of the Hon'ble Apex Court in the case of VINEETA SHARMA VS. RAKESH SHARMA

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AND OTHERS¹ , plaintiffs being the daughters are entitled to equal share having regard to amended Section 6 of 1956 Act. He further contends that admittedly, plaintiffs are not parties to the registered partition deed (Ex.D3) and hence, the same will not bind the plaintiffs. In support

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1 (2020) 9 SCC 1

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8 - NC: 2024:KHC:36948-DB RFA No. 1407 of 2010

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of his contention, he relies on the two decisions of Coordinate Benches of this Court in the case of UMAKANTA

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RAO VS. LALITABAI² and MRS.JAYAMMA AND OTHER VS. MRS.PUTTAMMA AND OTHERS³ . Thus, he seeks for allowing the appeal and granting of equal share to the plaintiffs.

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Per contra, learned counsel for respondents justifying the judgment and decree passed by the Trial Court submits that since the registered partition deed (Ex.D3) executed in respect of the suit properties prior to the date mentioned in the proviso to Section 6 of 1956 Act, the judgment and decree passed by the Trial Court is

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just and proper and seeks for dismissal of the suit.

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We have considered the submissions of the learned counsel appearing for the parties and perused the papers including the Trial Court Records. The questions that arise for our consideration are:

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2 ILR 1988 KAR 2067

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3 2021 (4) KCCR 3330 (DB)

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1) Whether the judgment and decree passed by the Trial Court is erroneous and liable to be set aside?

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2) Whether the plaintiffs are entitled to equal shares in the suit properties?

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Regarding question Nos.1 and 2:

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The relationship between the parties is undisputed. The fact that properties are joint family properties of the plaintiffs and defendants is also undisputed. In view of the admitted fact situation as noticed above, it is relevant to note that the Hon'ble Apex Court in the case of VINEETA SHARMA (supra) while considering the scope and effect of the amendment to Section 6 of 1956 Act has held as follows:

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“ 137. Resultantly, we answer the reference as under:

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137.1. The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after the amendment in the same manner as son with same rights and liabilities.

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137.2. The rights can be claimed by the daughter born earlier with effect from 9-9-2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before the 20th day of December, 2004.

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137.3. Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9-9-2005.

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137.4. The statutory fiction of partition created by the proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class I as specified in the Schedule to the 1956 Act or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed, the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal. ”

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(Emphasis supplied)

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Hence, it is clear that the daughters will be

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entitled to an equal share as that of a son in respect of the suit properties.

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With regard to contention of the defendants and finding of the Trial Court that in view of the registered partition deed (Ex.D3) having been executed prior to 20.12.2004, plaintiffs are not entitled to share, it is relevant to note that admittedly, plaintiffs/daughters are

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not parties to the said registered partition deed (Ex.D3). Further, the Co-ordinate Benches of this Court has held as follows:

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(i) In the case of UMAKANTA RAO (supra), it has

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been held as follows:

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“ 27. As the plaintiffs were entitled to a share in the properties mentioned in Ex. D.1 and as those properties were divided by defendants 1 and 3 without the consent of the plaintiffs and without allotting any property to their shares and their right to seek partition has not been barred by time, they are entitled to claim their shares, as a consesequence, in order to carve out their shares in

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12 - NC: 2024:KHC:36948-DB RFA No. 1407 of 2010

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the joint family properties, the partition has to be necessarily reopened.

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Admittedly, there is unequal division of the properties between defendant-1 and defendant-3. It is true in the normal circumstances, in the properties allotted to the share of defendant-3, the plaintiffs are not entitled to claim any share therein; but in a case like this, where the division of the properties effected between the defendants 1 and 3 in the absence of the plaintiffs and without their consent, is highly unequal, and the share of the plaintiffs is affected; the plaintiffs are entitled to reopen the partition that had taken place between defendants 1 and 3. In the facts and circumstances of the case, the plaintiffs cannot be considered to be parties to the partition. As such they can ignore the partition effected by defendants 1 and 3 as long as their right to seek partition has not been extinguished.

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…………………………. Therefore, they can ignore the partition effected under Ex. D.1. Thus for all purposes, they can proceed on the basis that no partition has taken place as long as their right to seek partition is not extinguished; in other words it is not barred by time.”

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(Emphasis supplied)

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(ii) In the case of MRS.JAYAMMA (supra), it has

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been held as follows:

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“12. It is pertinent to note that Ex.D1 has been marked as an exhibit subject to proof. Ex.D1 does not record any pre-existing partition. In other words, it is not a memorandum of partition. By Ex.D1, the defendants have partitioned the property amongst themselves. Thus, Ex.D1 is a partition deed, which is not registered and therefore, the same is not admissible in evidence. Besides this, the plaintiffs are not parties to the aforesaid document and therefore, the same in any case, does not bind the plaintiffs. It is also relevant to mention here that Ex.D1 has not been proved as required by law. Therefore, the Trial Court has rightly discarded the same.”

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(Emphasis supplied)

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In this context, it is also relevant to note that in the case of VINEETA SHARMA (supra), the Hon'ble Apex

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Court has held as follows:

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“ 136. The expression used in the Explanation to Section 6(5) “partition effected by a decree of a court” would mean giving of final effect to actual partition by passing the final decree, only then it can be said that a decree of a court effects

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partition. A preliminary decree declares share but does not effect the actual partition, that is effected by passing of a final decree; thus, statutory provisions are to be given full effect, whether partition is actually carried out as per the intendment of the Act is to be found out by the court. Even if partition is supported by a registered document it is necessary to prove that it had been given effect to and acted upon and is not otherwise sham or invalid or carried out by a final decree of a court. In case partition, in fact, had been worked out finally in toto as if it would have been carried out in the same manner as if affected (sic effected) by a decree of a court, it can be recognised, not otherwise.”

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(Emphasis supplied)

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It is clear from the aforementioned that plaintiffs/daughters not being parties to the registered partition deed (Ex.D3), they are not bound by the same and the said document cannot be considered for the purpose of denying shares to the plaintiffs.

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It is clear from the aforementioned that finding

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of the Trial Court is erroneous and liable to be set aside.

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The appellants/plaintiffs being the daughters are entitled

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in an equal shares of the suit properties.

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In view of the discussion made above and in view of the fact that there are 10 children to the deceased Ramegowda and defendant No.1 – wife of Ramegowda is alive, suit properties is required to be divided amongst the children and a share is to be allotted to the father. Hence, at the first instance 1/11^th share is allotted to the plaintiffs. The defendant No.1 – mother is entitled to a share out of the share of the father. Hence, the first defendant is entitled to 1/121 share and the plaintiffs and defendant Nos.2, 3, 5 to 7 and legal representatives of deceased defendant No.4 jointly are entitled to (1/11 + 1/121) = 12/121 share in the suit properties.

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In view of the discussion made above, question

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Nos.1 and 2 are answered in the Affirmative. Hence, the following:

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ORDER

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1. Appeal is allowed with costs.

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1. The judgment and decree dated 27.05.2010 in O.S.No.165/2008 on the file of the II Additional Senior Civil Judge at Mysore is set aside.

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The suit in O.S.No.165/2008 on the file of the II Additional Senior Civil Judge at Mysore is decreed with costs by holding that the plaintiff Nos.1 to 4 are entitled to 12/121 share each in the suit properties.

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1. Modified decree to be drawn accordingly.

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Sd/(S.G.PANDIT) JUDGE

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Sd/(C.M. POONACHA) JUDGE

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NC CT:bms List No.: 1 Sl No.: 31

Smt Susheelamma v. Smt Chennamma

Case brief

What is this about?

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Smt Susheelamma v. Smt Chennamma

Case brief

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