Allowed

Smt. Susheela v. Smt. Lakshmi

Karnataka HC16 Feb 2024RSA/1258/2021

Case brief

AI extract

What is this about?

This High Court allowed an appeal filed by daughters against a lower court judgment and decree in a partition suit. The Court modified the decree to ensure daughters received equal shares in the ancestral properties, applying the Supreme Court law on daughters' coparcenary rights established in Vineetha Sharma Vs Rakesh Sharma.

What did the court decide?

The appeal was allowed. The judgment and decree of the Trial Court were modified to allot equal shares of 1/360th to the appellants in the suit schedule properties.

Smt. Susheela Vs Smt. Lakshmi — Partition | Karnataka HC (2024)

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NC: 2024:KHC:6685 RSA No. 1258 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF FEBRUARY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO. 1258 OF 2021 (PAR)

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BETWEEN:

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SMT. SUSHEELA W/O M C SHIVAKUMAR AGED ABOUT 60 YEARS, R/O 8TH CROSS, SIDDAGANGA MUTT ROAD, SRINAGARA TUMAKURU - 572 101.

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Digitally signed by SUMA B N Location: High Court of Karnataka

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SMT. KOMALA W/O MAKALLI GANGADHARAPPA AGED ABOUT 57 YEARS, R/O T B REVANASIDDAPPA ROAD BEHIND STELLA MARY SCHOOL KANACHEGATTA ROAD, TIPTUR - 572 201, TUMAKURU DISTRICT.

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SMT. PADMA W/O LATE SIDDALINGAIAH AGED ABOUT 47 YEARS, R/O 9TH CROSS, ASHOKANAGAR TUMAKURU - 572 102.

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SMT. KAMALA W/O KUMARASWAMY, AGED ABOUT 45 YEARS, R/O GOPPENAHALLI VILLAGE DANDINASHIVARA HOBLI

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NC: 2024:KHC:6685 RSA No. 1258 of 2021

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TURUVEKERE TALUK TUMKUR DISTRICT - 572 215

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…APPELLANTS

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(BY SRI. JAYAPRAKASH R V., ADVOCATE)

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AND:

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SMT. LAKSHMI W/O SHARANKUMAR H R D/O LATE CHANDRASHEKARAIAH AGED ABOUT 40 YEARS, R/O T DASARAHALLI BANGALORE - 560 0.

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B NEELAKANTAIAH S/O LATE BASAVARAJU, AGED ABOUT 65 YEARS, R/O BADENAHALLI VILLAGE KADABA HOBLI, GUBBI TALUK TUMAKURU DISTRICT - 572 113.

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PARAMESH S/O LATE BASAVARAJU, AGED ABOUT 59 YEARS, R/O 10TH CROSS, SAMPIGE ROAD ASHOKANAGARA TUMAKURU TUMAKURU DISTRICT - 572 102.

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JAYADEVA S/O LATE BASAVARAJU AGED ABOUT 55 YEARS, R/O BADENAHALLI VILLAGE KADABA HOBLI, GUBBI TALUK TUMAKURU DISTRICT - 572 113.

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V T LAKSHMIKANTHAIAH S/O LATE THIMMAIAH AGED ABOUT 75 YEARS, R/O BADENAHALLI VILLAGE

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NC: 2024:KHC:6685 RSA No. 1258 of 2021

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KADABA HOBLI, GUBBI TALUK TUMAKURU DISTRICT - 572 113

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…RESPONDENTS

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(BY SRI. V B SIDDARAMAIAH., ADVOCATE FOR R-1; SRI. D.C.GANGADHARA, ADVOCATE FOR R-2 TO R-5)

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THIS APPEAL FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 29.01.2020 PASSED IN RA.NO.364/2018 ON THE FILE OF THE VII ADDL. DISTRICT JUDGE, TUMAKURU, PARTLY ALLOWING THE APPEAL AND MODIFYING THE JUDGMENT AND DECREE DATED 11.10.2018 PASSED IN O.S.NO.1/2012 ON THE FILE OF THE SENIRO CIVIL JUDGE, GUBBI, ETC.

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

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JUDGMENT

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This appeal is by defendant No.3, 5, 7, 9 in O.S. No.1/2012 on the file of Senior Civil Judge at Gubbi, being aggrieved by the Judgment and Decree dated 29.01.2020 passed by the VII Additional District Judge, Tumakuru, (for short 'First Appellate Court') in R.A. Nos.364/2018 and 365/2018, by which the first Appellate Court modified the judgment and decree dated 11.10.2018 passed in O.S.No.1 of 2012 on the file of Senior Civil Judge, Gubbi (for short 'Trial Court')

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NC: 2024:KHC:6685 RSA No. 1258 of 2021

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Suit in O.S. No.1/2012 was filed by one Lakshmi and Sujatha, plaintiff Nos.1 and 2 claiming to be daughter and wife respectively of one B. Chandrashekaraiah, against Jayalakshmamma-defendant No.1, B. Neelakantaiah-defendant No.2, Susheela-defendant No.3, Paramesh-defendant No.4, Kamala-defendant No.5, Jayadeva-defendant No.6, B. Padmadefendant No.7, V.T. Lakshmikantaiah-defendant No.8 and B. Kamala-defendant No.9. B.S.Chandrashekaraiah-father and husband of the plaintiff Nos.1 and 2 respectively and defendant Nos.2 to 7 are children of one late B.S.Basavaraju and Jayalakshmamma - the defendant No.1. It is the case of the plaintiffs that all the parties to the suit are the members of Hindu Undivided Family, that suit schedule properties are the ancestral joint family properties of said B.S. Basavaraju and that revenue records in respect of the suit schedule properties stand in the name of the first and second defendants. Defendant Nos.1, 2, 4 and 6 are in joint possession of the suit schedule properties. That after the demise of B.S. Basavaraju, revenue records had been changed in the name of B. Chandrashekaraiah as he was the elder member of the joint family. After death of B. Chandrashekaraiah on 08.05.1982,

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NC: 2024:KHC:6685 RSA No. 1258 of 2021

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defendant Nos.1 and 2 have got khata and revenue records changed in their names. First plaintiff being the minor at that time, had not consented for change of khata. Plaintiffs learnt that defendants colluded with each other and are attempting to alienate the suit schedule properties and they have not even accounted for the proceeds of the joint family properties. When the plaintiffs demanded for partition, the same was refused, constraining them to file the suit.

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Defendants 1 and 2 filed written statement admitting the relationship of the parties, but denied that plaintiffs being in the joint possession of the suit schedule properties, also denied the allegation of suit schedule properties and funds being misutilised. It was further contended that some portion of item Nos.2, 3, 5, 8, 9, 11, 13, 17, 18 & 22 of the suit properties has been acquired for Hemavati irrigation project but the compensation has been drawn and same is utilized to discharge tractor loan and the loan outstanding in PLD Bank, SBM, Doddaguni, which was borrowed for the purpose of digging an open well and the remaining amount has been utilized for the maintenance and discharge of handloan borrowed for the marriage expenses of female members of the family. It was

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NC: 2024:KHC:6685 RSA No. 1258 of 2021

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further stated that item No.4 was purchased by defendant No.1 under registered deed of sale dated 02.02.1963 out of the amount that had been given to her by her parents, and as such, suit item No.4 is separate streedhan property of defendant No.1 and the compensation that was awarded for acquisition of 1 acre 35 guntas from out of 2 acres 9 guntas of land was withdrawn by defendant No.1 and the same was utilized for her purpose and the plaintiff and defendants have no right over the same. It was further contended that plaint item No.12 which is survey No.15/5 measuring 1 acre 20 guntas does not belong to the family of the plaintiffs and defendants and there exists a Government School in the said land for several years and the remaining land therein belongs to one Lakshmaiah, Govindaiah and Lokanna. It was further contended that plaintiffs had approached defendants demanding partition of property in the year 2009, and therefore, item Nos.9, 17, 18, 11, 25, 26 were allotted to the share of plaintiffs, as such they have been in exclusive physical possession of the plaintiffs and plaintiffs are not members of joint family any more. It was further contended that only item nos.1, 5, 9, 10, 19 are the garden lands and even the coconut

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NC: 2024:KHC:6685 RSA No. 1258 of 2021

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trees grown in the said lands are very old and are about to fall, as such sought for dismissal of the suit. Additional written statement was filed by defendant No.2 denying the existence of 3000 Nilagiri trees and coconut trees in item Nos.1 to 10 of the suit schedule properties. It was also contended that land bearing Sy. No.84/3 and Sy. No.112/2 measuring 1 acre 39 guntas situated at Veerasagara Village and Sy. No.120/1 measuring 1 acre situated at Veerasagara Village, do not belong to the family. Defendant Nos.7 and 9 filed written statement taking similar contentions as that of defendant Nos. 1 and 2. Defendant No.8 filed written statement denying the averments made in the plaint, and also contended that since husband of defendant No.1 passed away during the year 2005, the daughters are not the co-parceners with the sons of late Basavaraju.

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The Trial Court framed issues on the basis of pleadings and recorded evidence and partly decreed the suit holding that plaintiffs are entitled for 10/45^th share in the suit schedule item Nos.1 to 11, 13 to 34. Claim for mesne profits was dismissed.

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NC: 2024:KHC:6685 RSA No. 1258 of 2021

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Aggrieved by the said Judgment and Decree of the Trial Court, defendant Nos. 1, 2, 4 and 6 filed regular appeal in R.A. No.364/2018 and first plaintiff filed R.A. No.365/2018. Defendant Nos.3, 5, 7 and 9 being the daughters, filed counter claim in the said Regular Appeals. The First Appellate Court, on re- appreciation of the evidence, allowed the aforesaid appeals in part, modifying the judgment and Decree passed by the Trial Court as under:

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ORDER

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Both the appeals in R.A.No.364 of 2018 and R.A.No.365 of 2018 are partly allowed.

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The Cross Objections in both the appeals are hereby dismissed.

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The impugned judgment and decree dated 11.10.2018 passed by learned Senior Civil Judge, Gubbi, in O.S.No.01/2012, is modified as follows;

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i) Plaintiff No.1, Defendant No.2 to 7 and Defendant No.9 are entitled to 1/8^th share each in Suit Item No.4.

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ii) Plaintiff No.1, defendant No.2, 4 and 6 are entitled to 81/360^th share each in suit item

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NC: 2024:KHC:6685 RSA No. 1258 of 2021

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No.1 to 3, 5 to 11 and 13 to 34 of suit schedule.

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iii) Defendant No.3, 5, 7 and 9 are entitled to 9/360^th share each in suit item No.1 to 3, 5 to 11 and 13 to 34 of suit schedule.

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iv) The suit is dismissed in respect of suit item No. 12 and 35.

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v) The above parties shall be entitled to be put in separate possession of their respective shares by metes and bounds.

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vi) Defendant No.2 is held liable to render accounts to the plaintiff No.1 towards her share of profits from suit schedule properties from date of present suit till date of her being put into separate possession of her shares and also render accounts towards her share of compensation amount in respect of acquired properties, in terms of the observations made in the body of this judgment.

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Considering the relationship between the parties, parties to bear their own costs.

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office to draw decree accordingly.

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send back the LCR forthwith.

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The original of this common judgment shall be kept in R.A.No.364/2018 and a copy of

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10 - NC: 2024:KHC:6685 RSA No. 1258 of 2021

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the same shall be kept in the file R.A.No.365/2018."

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The cross objection made by the defendants in both the appeals were dismissed. Being aggrieved by the same, the appellants herein being the daughters, are before this Court.

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This Court, by order dated 02.02.2024 admitted the appeal for consideration of following substantial question of law:

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"Whether the Trial Court and the First Appellate Court are justified in not granting equal share to the daughters, in the suit schedule properties which are admittedly ancestral properties in view of the law laid down by the Apex Court in the case of Vineetha Sharma Vs Rakesh Sharma reported in (2020) 9 SCC 1 ?"

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There is no dispute of the fact that the schedule properties are the joint family properties. However, the Trial Court and First Appellate Court on appreciation of evidence, have come to the conclusion that item No.35 of the suit schedule properties was sold in favour of defendant No.8 and the same was not available for partition. As regards item No.12

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NC: 2024:KHC:6685 RSA No. 1258 of 2021

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of the schedule properties is concerned, there is also a finding that item No.12 is occupied by a Government School. Excluding item Nos.12 and 35, the Trial Court and the First Appellate Court have held that the remaining properties are joint family properties. However, the Trial Court and First Appellate Court have granted shares to the plaintiff No.1 and defendant Nos.3, 5, 7 and 9 as per the law which existed prior to the law declared by the Hon'ble Supreme Court in the case

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of Vineetha Sharma Vs Rakesh Sharma reported in (2020)

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9 SCC 1.

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The issue involved in this matter is no more res-integra in as much as the Apex Court in Vineetha Sharma case (supra) has held that daughters are also co-parceners and are entitled for equal share as that of sons in the joint family co-parcenery properties. In that view of the matter, nothing survives for consideration except modifying the Judgment and Decree passed by the Trial Court and First Appellate Court allotting equal shares to the appellants and defendants in the suit schedule properties excluding item Nos.12 and 35.

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Accordingly, the following:

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NC: 2024:KHC:6685 RSA No. 1258 of 2021

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ORDER

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(i) The Appeal is allowed.

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(ii) The Judgment and Decree passed by the Trial Court is accordingly, modified.

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(iii) It is submitted across the Bar that final decree proceedings are pending consideration in FDP No.6/2019 on the file of Senior Civil Judge, Gubbi and the Commission Warrant has also been issued in that regard. The FDP Court is directed to expedite the proceedings, applying the principles of law laid down by the Apex Court in Vineetha Sharma Vs Rakesh Sharma reported in (2020) 9 SCC 1 to the extent of allotment of shares.

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Sd/JUDGE

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sac List No.: 2 Sl No.: 5

Smt. Susheela v. Smt. Lakshmi

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Smt. Susheela v. Smt. Lakshmi

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