Allowed

Smt Kamalamma v. Sri Krishnappa

Karnataka HC19 Apr 2024RSA/1328/2019

Case brief

AI extract

What is this about?

The High Court allowed the appeal against a judgment that reduced a daughter's share in ancestral property. Relying on Vineeta Sharma, the court held that in the absence of partition, a daughter is entitled to an equal share (1/8th) with her brothers, not a reduced share.

What did the court decide?

First Appellate Court judgment dated 28.03.2019 in R.A.No.13/2012 set aside; Trial Court decree dated 31.10.2011 in O.S.No.2/2005 confirmed.

Smt Kamalamma Vs Sri Krishnappa — Succession and Inheritance | Karnataka HC (2024)

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NC: 2024:KHC:15593 RSA No. 1328 of 2019

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 19^TH DAY OF APRIL, 2024

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BEFORE

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THE HON'BLE MR JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO. 1328 OF 2019 (PAR)

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BETWEEN:

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SMT KAMALAMMA

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W/O.LATE RANGAPPA, AGED ABOUT 61 YEARS, R/AT VAJARAHALLI ROAD, BHAKTANAPALYA VILLAGE,

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KASABA HOBLI,

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NELAMANGAL TALUK

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BENGALURU RURAL DISTRICT - 562 123.

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…APPELLANT

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(BY SRI. D.L. JAGADEESH SENIOR ADVOCATE FOR SRI. RAKSHITHA D J., AND VAIBHAVI ADVOCATES)

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AND:

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

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SRI. KRISHNAPPA S/O.LATE CHINNAGIRIYAPPA, AGED ABOUT 63 YEARS

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SRI. BALAJARA S/O.LATE CHINNAGIRIYAPPA, AGED ABOUT 59 YEARS

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SRI. CHANDRAPPA S/O. LATE CHINNAGIRIYAPPA, AGED ABOUT 57 YEARS

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SRI. MANJUNATHA SINCE DEAD BY HIS LRS

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4(a) SMT. SHASHIKALA G., W/O LATE MANJUNATHA AGED ABOUT 43 YEARS R/AT NO.126, VAJARAHALLI NELAMANGALA, BANGALORE RURAL - 562 123 KARNATAKA.

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4(b) SRI. SRIDHARA V.M., S/O LATE MANJUNATHA AGED ABOUT 26 YEARS R/AT NO.126, VAJARAHALLI NELAMANGALA BANGALORE RURAL - 562 123. KARNATAKA.

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4(c) SRI. GIRIDHARA M., S/O LATE MANJUNATHA AGED ABOUT 22 YEARS R/AT NO.126, VAJARAHALLI NELAMANGALA BANGALORE RURAL KARNATAKA - 562 123.

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SMT VASANTHA KUMARI D/O.LATE CHINNAGIRIYAPPA, AGED ABOUT 67 YEARS R/AT VAJARAHALLI ROAD, BHAKTANAPALYA VILLAGE, KASABA HOBLI, NELAMANGALA TALUK, BENGALURU RURAL DISTRICT.

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SRI MANJUNATHA S/O SHARADAMMA,

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AGED ABOUT 45 YEARS, R/AT KODIPALYA, MADURE HOBLI, DODDABALLAPURA TALUK, BENGALURU RURAL DISTRICT.

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…RESPONDENTS (BY SRI. SHARATH KUMAR SHETTY., ADVOCATE FOR R1 TO R3 & R4 (A TO C) & R5)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC., 1908 AGAINST THE JUDGMENT AND DECREE DATED 28.03.2019 PASSED IN RA NO.13/2012 ON THE FILE OF THE SENIOR CIVIL JUDGE, AT NELAMANGALA PARTLY ALLOWING THE APPEAL AND MODIFYING THE JUDGMENT AND DECREE DATED 31.10.2011 PASSED IN OS NO.2/2005 ON THE FILE OF THE CIVIL JUDGE AND JMFC., NELAMANGALA.

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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 the plaintiff aggrieved by the

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judgment and order dated 28.03.2019 passed in RA No.13/2012 on the file of the Senior Civil Judge, Nelamangala (hereinafter referred to as 'First Appellate Court' for short) by which the First Appellate Court while allowing the appeal filed by the defendants aggrieved by

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NC: 2024:KHC:15593 RSA No. 1328 of 2019

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the judgment and decree dated 31.10.2011 passed in O.S.No.2/2005 on the file of Civil Judge and JMFC, Nelamangala (hereinafter referred to as 'Trial Court' for short), modify the Judgment and decree of the trial Court by holding that the plaintiff is entitled for 1/48^th share in the suit schedule properties instead of 1/8^th share awarded by the Trial Court.

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The above suit in O.S.No.2/2005 is filed by the plaintiff/appellant herein for relief of partition and separate possession contending inter alia that one

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Channagiriyappa was the mula kartha had a wife by name Smt.Gangamma, the defendant No.1. That the said Channagiriyappa and Gangamma had 7 children namely; (1)Smt. Sharadamma, who expired long ago leaving behind her son defendant No.2 namely, Sri. Manjunath as her legal heir, (2) Sri.Krishnappa -defendant No.3 (3) Smt. Kamalamma, plaintiff (4) Sri.Balaraju- defendant No.4 (5) Sri. Chandrappa -defendant No.5 (6) Sri.Manjunatha-

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defendant No.6 and (7) Smt. Vasanthakumari- defendant No.7.

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It is further case of the plaintiff that during the lifetime of said Channagiriyappa he along with defendant Nos.1 to 7 constituted as the Hindu joint family. That Channagiriayappa passed away about one and half years prior to filing of the suit without effecting the partition with respect to above said properties. That the plaintiff and the defendants being members of joint family are entitled for specific shares in the suit schedule property. That plaintiff and the defendants are thus entitled for 1/8^th share in the suit schedule property. Since the request of the plaintiff to effect the partition was not considered, she was constrained to file the suit seeking partition and separate possession.

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On service of summons defendant Nos.1 to 8 appeared and defendant Nos. 1, 3 to 7 filed written statement denying the plaint averments. It is further contended that the marriage of the plaintiff had taken

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placed about 25 years ago and she has been residing with her matrimonial home and she has ceased to be a member

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of the joint family of the defendants and plaintiff had no manner of right, title, interest or possession in the suit schedule property. Hence, sought for dismissal of the suit.

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It is further contended that there was a oral partition between Channagiriyappa and his brothers and there was also a oral partition between Channagiriyappa and his sons during his lifetime in respect of the properties that were fallen to the share of Channagiriyappa. Defendant Nos. 3 to 6 are residing separately enjoying their respective shares independently over 15 years. That under said oral partition land in Sy.No.110/C measuring 38 guntas, 113/C measuring 15 guntas and a site measuring 45 ft. X 30 ft. had fallen to the defendant No.3, namely, Krishnappa. Similarly, land in Sy.No.7 measuring 29 guntas, Sy.No.6/5A measuring 8 guntas had fallen to the share defendant No.4-Balaraju. Land in Sy.No.78 measuring 0.061/2 guntas had fallen to the share of

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defendant No.5 namely Chandrappa, land in Sy.No.83/3, measuring 38 guntas and site measuring 40 ft. X 25 ft. had fallen to the share of defendant No.6-Manjunath. As such they having been enjoying their respective shares on property as absolute owners thereof. Hence, sought for dismissal of the suit.

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On basis of pleadings of the parties, Trial Court framed the following issues for its consideration;

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"1. Whether the plaintiff proves that the plaintiff and defendant No.1 to 7 are the members of the joint family and the schedule properties are the joint family properties and they are not partitioned?

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2. Whether the plaintiff proves that she is entitled to 1/8th share in the suit schedule properties?

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3. What order or decree?"

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Plaintiff examined herself as PW.1 and exhibited 10

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documents marked as Ex.P1 to P10. No evidence has been

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laid on behalf of the defendants.

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On appreciation of evidence, the Trial Court

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held that though the defendants had taken up contention of there being oral partition, they had not proved the same and since there was no dispute with regard to the property belonging to Channagiriyappa and plaintiff and defendants being legal heirs of said Channagiriyappa, decreed the suit allotting 1/8^th share in the suit schedule properties. Aggrieved by the same, defendants preferred appeal in R.A. No.13/2012. The First Appellate Court considering the grounds urged in the memorandum of appeal framed the

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points for its consideration;

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"1. Whether the Trial Court is erred in holding that the Plaintiff is entitled for 1/8th share in the suit schedule properties?

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2. Whether the Judgment and Decree passed by the Trial Court in OS.No.2/2005 is needs to be modified?

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3. What order or decree?"

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Though the First Appellate Court has concurred

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with the finding and conclusion arrived at by the Trial Court with regard to the properties being the joint family

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properties and there being no prior partition, however at para 17 of its judgment proceeded to hold that since the properties are ancestral properties and there was no partition in the family, there has to be notional partition effected amongst Channagiriyappa and his sons, in which, Channagiriyappa and defendant Nos.3 to 7 would have been entitled to 1/6^th share each and since Channagiriyappa passed away leaving behind plaintiff and defendants 1 to 7 as his legal heirs they would be entitled for 1/48^th share, out of the share that was to be allotted to Channagiriyappa. Thereby the First Appellate Courtreduced the 1/8^th share allotted by the Trial Court to 1/48^th share. It is this reasoning, finding and conclusion arrived at by the First Appellate Court which has given raise to this appeal by the plaintiff.

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This Court by order dated 01.04.2024 had admitted this appeal to consider the substantial question of law, which reads as under;

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" Whether in the light of the law laid down by the Hon'ble Apex Court in Vineeta Sharma Vs Rakesh Sharma and Others reported in (2020) 9 SCC 1, the First Appellate Court was justified in modifying the decree passed by the Trial Court altering the shares of the plaintiff from 1/8^th to 1/48^th ? "

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Sri.D.L.Jagadeesh, learned Senior counsel appearing for Sri.Rakshith D.J counsel for the appellant reiterating the grounds urged in the memorandum of appeal submitted that in the light of the admitted fact that property being the joint family property and there being no prior partition, the First Appellate Court erred in modifying the judgment and decree passed by the Trial Court in the light of the judgment of the Apex Court in the case of Vineeta Sharma Vs. Rakesh Sharma and Others reported in (2020) 9 SCC 1. Thus, he submits that judgment and order passed by the First Appellate Court is contrary to the evidence placed on record and in the law laid down by the Apex Court.

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Heard. Perused the records.

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There is no dispute of the fact that the plaintiff and the defendants are the children of Channagiriyappa. There is also no dispute of the fact that there has been no partition of the suit schedule property. Though the defendants in the written statement had contended that there was oral partition, they neither contested the suit of the plaintiff nor have adduced any evidence. This fact has attained finality and both the Trial Court and the First Appellate Court have held that there is no prior partition. Therefore, what remains is with regard to entitlement of

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share of the plaintiff. With the advent of Section 6 of the Hindu Succession Act, 1956, daughters are also entitled for equal share with that of the sons in the joint family coparcenary property. The anomaly with regard to the coming into effect of the said amendment to Section 6 of the Act, 1956 has been set at rest by the Apex Court in the case of Vineeta Sharma (supra).

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In the light of the aforesaid judgment in which it has been held that in the event of there being no

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NC: 2024:KHC:15593 RSA No. 1328 of 2019

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alienation or prior partition effected in the manner known to law, the joint family property would remain undivided and the daughters would be entitled for equal share with that of the sons. In the instant case, there has been no proof of prior partition of the property left behind by the Channagiriyappa which fact has been confirmed and concurred by the trial Court as well as First Appellate Court. The Trial Court was justified in decreeing the suit granting 1/8^th share to the plaintiff being a daughter. There was no reason or justification whatsoever for the First Appellate Court to have interfered with the same in the absence of any material evidence placed on record contrary to giving effect to Section 6 of the Hindu Succession Act, 1956, and the law laid down by the Apex Court in the case of Vineeta Sharma (supra). In that view of the matter, substantial question of law is answered accordingly.

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Hence, the following;

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ORDER

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(1) Appeal is allowed.

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(2) Judgment and order dated 28.03.2019 passed in R.A.No.13/2012 by the First Appellate Court is set aside and judgment and decree dated 31.10.2011 in O.S.No.2/2005 passed by the Trial Court is

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confirmed.

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Sd/JUDGE

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RU, List No.: 1 Sl No.: 8

Smt Kamalamma v. Sri Krishnappa

Case brief

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Smt Kamalamma v. Sri Krishnappa

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