Remanded

Sri. D E Venkatesh v. Smt. Rukminiyamma

Karnataka HC13 Mar 2024RFA/146/2011

Case brief

AI extract

What is this about?

This appeal, filed by the grandson of the deceased owner, challenged the trial court's finding that the subject property was ancestral, precluding a gift deed. The High Court held that after partition with Hanumanthsa's sons, the property became his separate property, allowing him to gift or bequeath it, and remanded the case to determine the validity of the will and deed.

What did the court decide?

Impugned judgment and decree set aside; matter remitted to Trial Court to determine the validity of the registered Gift Deed and Will.

Sri. D E Venkatesh Vs Smt. Rukminiyamma — Succession and Inheritance | Karnataka HC (2024)

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NC: 2024:KHC:10298 RFA No. 146 of 2011

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE

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REGULAR FIRST APPEAL NO. 146 OF 2011 (PAR)

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BETWEEN:

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SRI D E VENKATESH, S/O D H ESHWARASA, AGED ABOUT 38 YEARS, R/AT NO.120/27 211/28, & 120/39, SAPTHGIRISHA, OPP.BHANESHWARA SWAMY TEMPLE STREET, ARCOT SREENIVASACHAR ROAD, BANGALORE-560053.

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…APPELLANT

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(BY SRI R VIJAYAKUMAR, ADVOCATE)

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AND:

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SMT RUKMINIYAMMA, W/O RAMUSA, AGED ABOUT 76 YEARS, R/AT NO.2, 5^TH MAIN, K P AGARAHARA, BHVUANESHWARI NAGAR, BANGALORE -560 023.

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Digitally signed by PRAMILA G V Location: HIGH COURT OF KARNATAKA

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SMT RADHA BAI, W/O GIRISA, AGED ABOUT 65 YEARS, R/AT NO.133, 10^TH MAIN, K P AGARHARA, MARIYAPPANAHAPALYA, BANGALORE - 560 023.

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SMT MUNIRATHNA, W/O NAGENDRASA, AGED ABOUT 63 YEARS, R/AT 24^TH CROSS, K P AGARHARA, BHUVANESHWARI NAGAR, BANGALORE -560023.

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SMT LALITHA, W/O RAMUSA, AGED ABOUT 60 YEARS, NO.30, 3^RD 'A' MAIN ROAD, 13^TH CROSS, CHOULUPALYA, BANGALORE - 560 023.

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SMT ASWATHA, W/O SRINIVASA, AGED ABOUT 56 YEARS, R/AT NO.24, 28^TH GALLI CUBBONPET, SIDDANNA LANE BANGALORE - 560 053.

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SMT SARASWATHI, W/O RAJENDRA, AGED ABOUT 54 YEARS, R/AT NO.6, SHANKARA DEVARA MUTT LANE, MANAVARTHIPET, BANGALORE - 560 053.

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SMT YASHODA, W/O MARUTHISA, AGED ABOUT 60 YEARS, SINCE DEAD BY HER LRS

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7(a). SRI MARUTHISA, S/O NOT KNOWN TO THE APPLICANT/APPELLANT, AGED ABOUT 70 YEARS.

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7(b). SRI NANDAKISHORE, S/O SRI MARUTHISA, AGED ABOUT 46 YEARS.

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7(c). SMT VINUTHA, D/O SRI MARUTHISA, AGED ABOUT 44 YEARS.

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7(d). SRI SHIVAKUMAR, D/O SRI MARUTHISA, AGED ABOUT 38 YEARS.

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7(e). SMT MAMATHA, D/O SRI MARUTHISA, AGED ABOUT 33 YEARS.

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7(f). SRI SADANANDA GRAND SON OF SRI MARUTHISA AND LATE YASHODA, S/O LATE VIJAYALATHA, (D/O SRI MARUTHISA AND LATE YASHODA) ALL ARE R/AT NO.12, 8^TH MAIN, K.P.AGRAHARA, BHUVANESHWARI NAGAR, BANGALORE - 560 023.

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D.H ISHWARASA/ESHWARASA,

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S/O LATE HANUMANTHASA, AGED ABOUT 72 YEARS.

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D.H.NARAYANASA, S/O LATE HANUMANTHSA, AGED ABOUT 65 YEARS , R8 AND R9 RESIDING AT NO.121/37, 121/39, SAPTHAGIRISHA, OPP TO BANESHWARASWAMY TEMPLE, A.S.CHAR STREET, BANGALORE - 560 053. (AMENDMENT CARRIED OUT V/C/O DT:24.11.2021)

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…RESPONDENTS

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(BY SRI G V DAYANANDA, ADVOCATE FOR R3 & R7(a) to R7(f), SRI D L SURESH, ADVOCATE FOR R8,

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VIDE ORDER DT: 12.04.2019 APPEAL DISMISSED IN R10, R1, R2, R4, R5, R6 AND R9 AND ENTIRE APPEAL IS CONTINUED IN R/O R3, R7 & R8)

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THIS RFA IS FILED U/S 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 28.10.2010 PASSED IN O.S.7230/2004 ON THE FILE OF THE XXII-ADDL. CITY CIVIL JUDGE, BANGALORE, PARTLY DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.

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

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JUDGMENT

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This appeal is by defendant No.3 in

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O.S.No.7230/2004 on the file of XXII Additional City Civil

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Court, Bangalore.

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NC: 2024:KHC:10298 RFA No. 146 of 2011

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The suit is filed for relief of partition and separate

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possession. The plaintiffs' claim 1/7th share in the suit schedule property. Admitted genealogical tree is as under:

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HANUMANTHSA (29/01/2004)

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PATHU BAI - WIFE (DEAD)
LALITHA
PLAINTIFF 4 SARASWATI
MUNRATHNA DAUGHTER PLAINTIFF 6 NARAYANA D.H.
D.H.ESWARASA DEFENDANT 1 SON RUKMINIYAMMA PLAINTIFF 1 PLAINTIFF 3 DAUGHTER DAUGHTER DEFFFENDANT 2 SON
DAUGHTER
SHANKARSA ASHWATHA YASHODHA
RADHABAI DEAD PLANTIFF 5 PLAINTIFF 7
PLAINTIFF 2 SON DAUGHTER DAUGHTER
DAUGHTER L.R.S NOT MADE
PARTIES TO THE
SUIT

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One Muniswamysa was the propositus of the

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family. He and his brother Venkusa effected a partition on 15.12.1968. The said partition is evidenced in a registered partition deed. This document is not in dispute. In the said partition, the suit property is allotted to the share of Muniswamysa. After the death of Muniswamysa, the property is inherited by his son Hanumathsa. The said Hanumanthsa died on 29.01.2004. He had three sons and seven daughters. During his lifetime there was a partition in the family of Hanumantsa and his three sons viz., D H

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NC: 2024:KHC:10298 RFA No. 146 of 2011

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Eshwarsa, D.H.Shankarsa and D.H.Narayansa. In the said partition, Hanumanthsa retained a portion of the property i.e., the suit property. Thereafter, Hanumanthsa died on 29.01.2004.

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On 25.09.2004, the daughters of Hanumanthsa

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filed a suit for partition. In the said suit, two sons of Hanumanthsa namely D.H.Eswarsa, and D.H.Narayansa were made as parties and D.H.Shankarsa, the third son of Hanumanthsa was no more by the time the suit was filed. However, his legal representatives were not made parties.

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The defendants raised a contention that on 24.12.1990 Hanumanthsa had executed a registered will in favour of his son-D.H.Eswarsa i.e., defendant No.1 in respect of the suit property and they also raised a contention that on 22.11.2002, Hanumanthsa executed a registered a Gift Deed in favour of his grand son D.E.Ventakesh-defendant No.3 who is the son of D.H.Eswarsa in respect of the property bearing No.39 measuring 36 feet East-West and 12 feet 6 inches North-South.

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NC: 2024:KHC:10298 RFA No. 146 of 2011

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The matter went for trial. The parties led their evidence in support of their claim. The registered Will was produced, the attesting witness to the said Will is examined and the registered Gift deed is produced. The attesting witnesses to the Gift Deed are also examined.

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The Trial Court has concluded that the properties are the ancestral properties, as such Hanumanthsa could not have executed the Gift Deed in favour of the grand sondefendant No.3.

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Aggrieved by the said judgment and decree, defendant No.3 is in appeal.

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Before this Court the partial settlement reported by the appellant and respondents No.1, 2, 4 and 5 on 09.04.2013 was accepted vide order dated 18.04.2013 and decree is modified to that extent.

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Thereafter, one more compromise was entered into on 28.03.2019 between the appellant and respondents

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NC: 2024:KHC:10298 RFA No. 146 of 2011

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No.6 and 9. This compromise was accepted vide order dated 12.04.2019 and the decree is modified to that extent.

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Learned counsel appearing for the appellant would contend that the property which was retained by Hanumanthsa after the partition of 1975, was his separate property. It is urged that the Trial Court erred in giving a finding that the property is the ancestral property without looking into the evidence relating to the proof of Gift Deed and the proof of the Will.

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Learned counsel appearing for the respondents would contend that the property was the ancestral property and once the property was shown to be ancestral property, the said characteristic of the property is not lost because of the subsequent partition. Thus, the Trial Court is justified in giving a finding that the property could not have been gifted by Hanumanthsa.

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The following points arise for consideration:

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(a) Whether the Trial Court is justified in holding that the suit schedule properties are the ancestral properties in the hands of Hanumanthsa.

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(b) Whether the Trial Court is justified in holding that the registered Gift Deed could not have been executed by Hanumanthsa.

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This Court has considered the contentions raised at the bar and perused the records.

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There is no dispute over the fact that on 15.12.1968 registered partition took place between Muniswamysa and Venkusa and in the said partition, the suit property and other properties were allotted to the share of Muniswamysa. Thereafter, Muniswamysa died and the properties in his hands were inherited by his son Hanumanthsa. Hanumantha and his three sons entered into partition on 15.05.1975. In the said partition, Hanumanthsa retained the suit property and other properties were partitioned among his three sons viz., D.H.Eswarsa, D.H.Shankarsa and D.H.Narayansa. It is admitted that in the

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said partition Hanumanthsa retained suit property.

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Hanumanthsa died on 29.01.2004.

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The appellant claims that the suit property retained by Hanumanthsa in the partition of 1975 is the separate property of Hanumanthsa. However, learned counsel appearing for the respondents would contend that admittedly, the property belonged to the father of Hanumanthsa and he inherited the property after the death of his father.

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As far as the contention that the property in the hands of Hanumanthsa who inherited it after the death of his father that the property becomes the ancestral property is concerned, there is no dispute. However, the subsequent events that have taken place in the family will have a bearing on the status of the said property. During the lifetime of Hanumanthsa, one more partition took place on 15.07.1975 among Hanumanthsa and his three sons and in the said partition, Hanumanthsa retained the suit property and other properties were allotted to the share of his three

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sons. Thus, the property in the hands of Hanumanthsa after the said partition of 1975 is his separate property. Admittedly, no children were born to Hanumanthsa after the partition of 1975. Thus, none acquired any right by reason of birth in the family of Hanumanthsa after the partition of 1975. This being the position, this Court is of the view that Hanumanthsa remained the absolute owner of the property till his death. It is also relevant to note that though Hindu Succession Act, 1956 was amended by introducing Section 6A (Karnataka amendment), the said amended provision conferred right in favour of daughters who were not married at the time of amendment which came into force in the year 1994.

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Admittedly, the plaintiffs the daughters of Hanumanthsa were married by the time Section 6A was introduced and Section 6A was later amended by Central Enactment in terms of Act 39 of 2005. Though the daughter was given a status of a coparcener in terms of amended Section 6 of Hindu Succession Act, 1956 certain limitations were placed in the said amendment. The said amendment

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NC: 2024:KHC:10298 RFA No. 146 of 2011

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did not affect the validity of registered transaction which has taken place prior to the commencement of amending Section 6 of Hindu Succession Act, 1956.

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This being the position, this Court is of the view that Hanumanthsa had the power to dispose of the property in the manner he wished.

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It is claimed that he has gifted the property to defendant No.3. The father of Defendant No.3 claimed right over the property under the Will of Hanumantsa. Unfortunately, despite the evidence being led in this regard, Trial Court has not looked into the evidence and proceeded on the erroneous assumption that Hanumanthsa could not have executed the Gift Deed and the Will.

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The Trial Court was under obligation to consider

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the evidence relating to the proof of alleged Gift Deed and the Will. However, the Trial Court has not given any finding on the execution of the alleged Gift and the Will by Hanumanthsa. Under these circumstances, this Court is of

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NC: 2024:KHC:10298 RFA No. 146 of 2011

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the view that the judgment and decree under the appeal are unsustainable.

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Hence, the following:

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ORDER

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(i) The impugned judgment and decree dated 28.10.2010 on the file of the XXII Additional City Civil Judge, Bangalore are set aside.

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(ii) The matter is remitted to the Trial Court with a direction to give a finding on issues No.2 and 5 i.e., the validity of the registered Gift Deed dated 22.11.2002 and the registered Will dated 24.12.1990.

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(iii) Trial Court shall pass appropriate order based on the finding on the said issues.

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(iv) It is made clear that there shall not be any further adjudication as to whether the property in the hands of Hanumanthsa was the ancestral property or the self acquired property as this Court has already given a finding that it became a separate property when the alleged Gift Deed and the Will were executed.

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NC: 2024:KHC:10298 RFA No. 146 of 2011

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(v) It is further made clear that this Court has not expressed any opinion on the evidence led in respect of proof of alleged Gift Deed and the Will.

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(vi) It is made clear that the Trial Court shall also take note of the decree between the appellant and respondents No.1, 2, 4, 5, 6 and 9 pursuant to settlement arrived at among the parties referred to above.

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(vii) The terms of the said decree based on the settlement should not come in the way of the Court while deciding the issues on the proof of alleged Gift Deed and the alleged Will on merits.

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(viii) Parties shall appear before the Trial Court on 02.04.2024 without awaiting any further notice.

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(ix) Registry to send the Trial Court records forthwith.

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GVP

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List No.: 1 Sl No.: 24

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Sd/JUDGE

Sri. D E Venkatesh v. Smt. Rukminiyamma

Case brief

What is this about?

What did the court decide?

Sri. D E Venkatesh v. Smt. Rukminiyamma

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

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