Allowed

Shantavva W/O. Padmappa Dindalkoppa v. Dharendra Alias Yallappa S/O. Laxmappa Avaradi

Karnataka HC2 Sept 2024RSA/101017/2023

Case brief

AI extract

What is this about?

Two daughters appealed a partition suit decree granting them 1/28th share. The High Court held under the amended Hindu Succession Act, daughters are coparceners entitled to equal shares with sons. The trial court's share and the first appellate court's dismissal on delay were set aside.

What did the court decide?

The order of the first appellate court set aside; trial court judgment modified to grant 1/7th share each to the four daughters and three sons with immediate possession.

Shantavva W/O. Padmappa Dindalkoppa Vs… — Succession and Inheritance | Karnataka HC (2024)

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1 - NC: 2024:KHC-D:12610 RSA No. 101017 of 2023

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IN THE HIGH COURT OF KARNATAKA

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DHARWAD BENCH

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DATED THIS THE 02^ND DAY OF SEPTEMBER, 2024

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BEFORE

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THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

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REGULAR SECOND APPEAL NO. 101017 OF 2023 (PAR/POS)

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BETWEEN:

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SHANTAVVA W/O. PADMAPPA DINDALKOPPA

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AGE: 55 YEARS, OCC: HOUSEHOLD, R/O. GARAG, TQ. & DIST. DHARWAD.

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PADMAVATHI W/O. YALLAPP SATTUR, AGE: 53 YEARS, OCC: HOUSEHOLD, R/O. DUNDASI, TQ: SHIGGAON.

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MAHADEVI @ JAYAVVA W/O. VASAPPA HONNAPPANAVAR, AGE: 45 YEARS, OCC: HOUSEHOLD, R/O. BANNUR, TQ: SHIGGAON-571101.

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Digitally signed by YASHAVANT NARAYANKAR Location: HIGH COURT OF KARNATAKA DHARWAD BENCH DHARWAD

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SAROJA W/O. KUBENDRA PATTANSHETTI

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AGE: 39 YEARS, OCC: HOUSEHOLD, R/O. VANNUR, TQ. BAILHONGAL, DIST. BELAGAVI-591119. …APPELLANTS

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(BY SRI ABHINANDAN M. GUNDAWADE, ADVOCATE.)

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AND:

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DHARENDRA @ YALLAPPA S/O. LAXMAPPA AVARADI, AGE: 68 YEARS, OCC: PRIVATE WORK, R/O. RAJAHAMSA GALLI, BELAGAVI-591119.

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2 - NC: 2024:KHC-D:12610 RSA No. 101017 of 2023

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CHAANDRAPPA S/O. LAXMAPPA AVARADI AGE. 65 YEARS, OCC: AGRICULTURE, R/O. DYAMAVVANA GUDI ONI, TADAS, TQ. SHIGGAON-581193.

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MAHAVEER S/O LAXMAPPA AVARADI AGE: 47 YEARS, OCC: AGRICULTURE, R/O. DYAMAVVANA GUDI ONI, TADAS, TQ: SHIGGAON-581193.

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…RESPONDENTS

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(BY SRI S.M.JATTI, ADVOCATE FOR C/R-1 AND R2; SRI Y.R.JOGI, ADVOCATE FOR R3.)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 READ WITH ORDER XLII RULE 1 OF THE CODE OF CIVIL PROCEDURE, 1908, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 08.01.2016 PASSED IN O.S.NO.242/2014 BY III ADDITIONAL SENIOR CIVIL JUDGE, HUBBALLI (ITINERARY COURT AT KALAGHATAGI) AND ALSO THE ORDER DATED 12.09.2023, PASSED IN R.A.NO.146/2019 BY THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE, DHARWAD AND TO DECREE THE SUIT FILED BY THE PLAINTIFFS/APPELLANTS BY ALLOTTING EQUAL SHARE TO THE PLAINTIFFS AND ETC.,.

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THIS APPEAL COMING ON FOR FURTHER ARGUMENTS THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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ORAL JUDGMENT

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This regular second appeal is filed by the plaintiffs challenging the order dated 12.09.2023, passed in R.A.No.146/2019, by the IV Addl. District and Sessions Judge, Dharwad (‘First Appellate Court’ for short), thereby dismissing the appeal on the ground of delay. Hence, the judgment and decree dated 08.01.2016, passed in O.S.No.242/2014, by the III Addl. Senior Civil Judge,

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3 - NC: 2024:KHC-D:12610 RSA No. 101017 of 2023

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Hubballi (Itinerary Court of Kalaghatagi) (‘trial Court’ for short), is amounting to confirmation on the view taken by the trial Court.

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The plaintiffs are appellants and defendants are respondents in this regular second appeal. For the purpose of convenience, ranking of the parties is referred to as per their status before the trial Court.

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The plaintiffs have filed a suit for partition and separate possession. It is the case of the plaintiffs that the plaintiffs and defendants father one Laxman is the original propositus and his wife is Kamalakshi, both died. The plaintiffs and defendants are children of Laxman and Kamalakshi. Therefore, the plaintiffs are daughters and defendants are sons of the said Laxman and Kamalakshi. It is contended that the suit schedule properties are ancestral and joint family properties. The trial Court decreed the suit by granting 1/28^th share each to the plaintiffs.

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Being aggrieved by the awarding of lesser share to the plaintiffs of 1/28^th portion, the plaintiffs filed appeal

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4 - NC: 2024:KHC-D:12610 RSA No. 101017 of 2023

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before the First Appellate Court. The First Appellate Court has dismissed the appeal only on the ground of delay, as there was 1284 days delay in preferring the appeal without going to discuss on merits involved in the case. Being aggrieved by this order, the plaintiffs have preferred the present second appeal.

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This Court on 23.04.2024 has admitted the

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appeal to consider the following substantial questions of law.

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i. Whether, under the facts and circumstances involved in the case, the trial Court is justified in granting decree for partition of giving 1/28^th share each to the plaintiff Nos.1 to 4 which is contrary to the principle of law laid down by the Honorable Supreme Court in the case of Vineeta Sharma v. Rakesh Sharma and others reported in (2020) 9 SCC 1 and as per Section 6 of the Hindu Succession Act?

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ii. Whether, under the facts and circumstances involved in the case, the First Appellate Court is justified in dismissing the appeal of 1284 days delay without considering the case on its merits?

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Heard the arguments addressed by the learned

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counsels appearing for the respective parties and perused the material placed on record.

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5 - NC: 2024:KHC-D:12610 RSA No. 101017 of 2023

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The relationship between the plaintiffs and defendants is admitted. They are children of original propositus Laxman and Kamalakshi. The plaintiffs are daughters and defendants are sons of Laxman and Kamalakshi. The trial Court by following the judgment of Hon’ble Supreme Curt in the case of Prakash and others vs. Phulavathi and others, reported in 2015(4) KCCR 3265 , has decreed the suit by granting 1/28^th share each to the plaintiffs. The trial Court has adopted the theory of notional partition recognizing the defendants as the only coparceners and without considering the plaintiffs as coparceners, awarded 1/28^th share each to the plaintiffs.

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The First Appellate Court without going on merits involved in the case, dismissed the appeal only on the ground of delay. The First Appellate Court has observed that there is no proper explanation for causing delay in preferring the appeal and rejected the documents submitted by the appellants/plaintiffs that plaintiff No.4 was looking after the case but she has fallen ill, hence could not contact their advocate and under these circumstance, the delay caused.

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6 - NC: 2024:KHC-D:12610 RSA No. 101017 of 2023

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But the First Appellate Court does not believe this and dismissed the appeal.

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When the status of the plaintiffs and defendants

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are daughters and sons of original propositus Laxman and Kamalakshi is not disputed and the suit schedule properties are joint family and ancestral properties is also not disputed, then the remaining question to be considered is whether the plaintiffs being daughters are to be recognized as coparceners or not. Section 6 of the Hindu Succession Act is amended by Act No.39 of 2005 w.e.f. 09.09.2005, recognizing the daughters as coparceners and are entitled for equal share as that of sons. Therefore, the plaintiffs being the daughters are coparceners and are entitled for equal share as that of sons. The Hon’ble Supreme Court also in the

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case of Vineeta Sharma v. Rakesh Sharma and others reported in (2020) 9 SCC 1, has held that the daughters being the coparceners as recognized under section 6 of the Hindu Succession Act are entitled for equal share as that of sons. Therefore, in this regard the trial Court has committed error by granting only 1/28^th share by adopting notional

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7 - NC: 2024:KHC-D:12610 RSA No. 101017 of 2023

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theory of partition. Even the First Appellate Court could have rectified the judgment and decree of the trial Court, but only on the ground of delay, though there is merit and substance in the claim of the plaintiffs. Therefore, the First Appellate Court too has committed error. Hence the order passed by the First Appellate Court is liable to be set aside and the judgment and decree passed by the trial Court is liable to be modified.

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Accordingly considering the factors that the original propositus Laxman and Kamalakshi have four daughters (plaintiffs No.1 to 4) and three sons (defendants No.1 to 3), they are entitled for 1/7^th share each in the suit schedule properties. Therefore, to this extent the judgment and decree passed by the trial Court is to be modified. Accordingly, the substantial questions of law No.1 and 2 are answered in the negative holding that the trial Court is not justified in granting only 1/28^th share and the First Appellate Court is not justified in dismissing the appeal only on the ground of delay. Hence, I proceed to pass the following:

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8 - NC: 2024:KHC-D:12610 RSA No. 101017 of 2023

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ORDER

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i) The appeal is allowed.

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ii) The order dated 12.09.2023, passed in

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R.A.No.146/2019, by the IV Addl. District and Sessions Judge, Dharwad, is hereby set aside.

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iii) The judgment and decree dated 08.01.2016, passed in O.S.No.242/2014, by the III Addl. Senior Civil Judge, Hubballi (Itinerary Court of Kalaghatagi), is hereby modified, thereby it is ordered that the plaintiffs are entitled for 1/7^th share each in the suit schedule properties.

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iv) The plaintiffs and defendants are entitled for 1/7^th share each in the suit schedule properties by metes and bounds and are entitled for separate possession.

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v) No order as to costs.

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vi) Draw decree accordingly.

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MRK CT:GSM List No.: 2 Sl No.: 22

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Sd/(HANCHATE SANJEEVKUMAR) JUDGE

Shantavva W/O. Padmappa Dindalkoppa v. Dharendra Alias Yallappa S/O. Laxmappa Avaradi

Case brief

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Shantavva W/O. Padmappa Dindalkoppa v. Dharendra Alias Yallappa S/O. Laxmappa Avaradi

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