Dismissed

B L Shankarappa v. Smt B L Vanitha

Karnataka HC5 Feb 2024RSA/1534/2012

Case brief

AI extract

What is this about?

In a regular second appeal regarding property succession under the Hindu Succession Act, 2005, the Karnataka High Court dismissed the appellant's challenge. The court held that the appellate judgment sustaining the daughter's 1/5th share was sustainable despite lack of specific pleading on devolution, and affirmed daughters' equal shares even if born before the 2005 amendment.

What did the court decide?

The regular second appeal was dismissed, confirming the judgment and decree granting the plaintiff a one-fifth share in the suit schedule properties.

B L Shankarappa Vs Smt B L Vanitha — Succession and Inheritance | Karnataka HC (2024)

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1 - NC: 2024:KHC:4913 RSA No. 1534 of 2012

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF FEBRUARY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH

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REGULAR SECOND APPEAL NO. 1534 OF 2012 (PAR)

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BETWEEN:

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B.L.SHANKARAPPA S/O LATE B.LAXMANA NAIKA AGED ABOUT 61 YEARS, OCC:RETD. BANK OFFICER & AGRICULTURIST, R/O BEGUVALLI VILLAGE, MANDAGADDE HOBLI, THIRTHAHALLI TALUK, SHIMOGA DISTRICT-577 226

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…APPELLANT (BY SRI. R.V. JAYAPRAKASH, ADVOCATE)

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AND:

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Digitally signed by SHARANYA T Location: HIGH COURT OF KARNATAKA

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SMT. B.L. VANITHA W/O DEVARAJA AGED ABOUT 45 YEARS, OCC:HOUSEWIFE, R/O C/O M.G.VEERAPPA GUDDEKERI & POST, THIRTHAHALLI TALUK, SHIMOGA DISTRICT-577432

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SMT. B.L.PUSHPAVATHI W/O RAVI AGED ABOUT 42 YEARS, OCC: HOUSEWIFE, R/O B.T.V. ARECA MANDI BHIMASAMUDRA, CHITRADURGA DISTRICT-577520

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SMT. SAVITHA W/O M.G.VEERAPPA AGED ABOUT 57 YEARS, R/O GUDDEKERI & POST, THIRTHAHALLI TALUK, SHIMOGA DISTRICT PIN-577432

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SMT. B.L. SULOCHANA W/O H.S.JAYANNA AGED ABOUT 55 YEARS, OCC:HOUSEWIFE, R/O VINOBANAGAR, POLICE QUARTERS, SHIMOGA-577 201

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…RESPONDENTS

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(BY SRI. UMESH MOOLIMANI ADVOCATE FOR SRI.S.V.PRAKASH, ADVOCATE FOR R1 to R4)

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THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 29.3.2012 PASSED IN R.A.NO.146/2011 ON THE FILE OF DISTRICT JUDGE, I FAST TRACK COURT, SHIMOGA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 5.3.2011 PASSED IN OS.NO.7/2007 ON THE FILE OF PRINCIPAL SENIOR CIVIL JUDGE AND C.J.M, SHIMOGA.

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

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3 - NC: 2024:KHC:4913 RSA No. 1534 of 2012

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JUDGMENT

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Heard the learned counsel for the appellant and also the counsel appearing for respondents.

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This Regular Second Appeal is filed being aggrieved by the concurrent finding of the Trial Court and also the First Appellate Court and the Trial Court granted 1/5^th share in favour of the plaintiff and the same is confirmed by the First Appellate Court, since the plaintiff is the daughter of Laxmana Naika. The brothers and other sisters are defendants. No dispute with regard to the relationship between the parties and the father died in the year 2001. The suit is filed in the year 2007, subsequent to the amendment to Section 6 of Hindu Succession Act, 2005.

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The main contention of the counsel for appellant before this Court that the plaintiff has not pleaded in the plaint specifically with regard to the devolution of interest on the plaintiff and also he contended that defendant Nos.3 and 4 were born before

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09.09.2005, the date on which the provisions of the amended Act came into force and whether they are entitled for a share by virtue of the amended provision and proof of coparcener, there was a devolutionary interest on them.

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This Court while admitting the appeal, framed

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the following substantial question of law:

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1) Whether the judgments of the Trial Court and Appellate Court are sustainable in the absence of material proof or specific pleading that there was devolution of interest on the plaintiff?

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2) As admittedly defendant Nos.3 and 4 were born before 09.09.2005 the date on which the provisions of the amended Act came into force, whether they are entitled to a share by virtue of the amended provision or, on proof of co-parcenary, there was a devolutionary interest upon them?

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5. The counsel appearing for the appellant would

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vehemently contend that the three judge judgment of

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Apex Court reported in AIR 1978 SUPREME COURT 1239 IN CASE OF GURUPAD KHANDAPPA MAGDUM

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V/S HIRABAI KHANDAPPA MAGDUM AND OTHERS

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and the counsel referred paragraph No.13 of the judgment which reads as follows:

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“ In order to ascertain the share of heirs in the property of a deceased coparcener it is necessary in the very nature of things, and as the very first step, to ascertain the share, of the deceased in the coparcenary property. For, by doing that alone can one determine the extent of the claimant's share. Explanation 1 to section 6 resorts to the simple expedient, undoubtedly fictional, that the interest of a Hindu Mitakshara coparcener "shall be deemed to be" the share in the property that would have been allotted to him if a partition of that property had taken place immediately before his death. What is therefore required to be assumed is that a partition had in fact taken place between the deceased and his coparceners immediately before his death. That assumption, once made, is irrevocable. In other words, the assumption having been made once for the purpose of ascertaining

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the share of the deceased in the coparcenary property, one cannot go back on that assumption and ascertain the share of the heirs without reference to it. The assumption which the statute requires to be made that a partition had in fact taken place must permeate the entire process of ascertainment of the ultimate share of the heirs, through all its stages. To make the assumption at the initial stage for the limited purpose of ascertaining the share of the deceased and then to ignore it for calculating the quantum of the share of the heirs is truly to permit one's imagination to boggle. All the consequences which flow from a real partition have to be logically worked out, which means that the share of the heirs must be ascertained on the basis that they bad separated from one another and had received a share in the partition which had taken place during the life time of the deceased. The allotment of this share is not a processual step devised merely for the purpose of working out some other conclusion. It has to be treated and accepted as a concrete reality, something that cannot be recalled just as a share allotted to a coparcener in an actual

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partition cannot generally be recalled. The inevitable corollary of this position is that the heir will get his or her share in the interest which the deceased bad in the coparcenary property at the time of his death, in addition to the share which he or she received or must be deemed to have received in the notional partition.

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The main contention of the appellant’s counsel that when the father died in the year 2001, there was no any right in favour of the daughter and amendment was made subsequently in the year 2005. Inevitable corollary of this position is that the heir will get the share in the interest which the deceased had in the coparcenary property at the time of his death. As on the date of death of the father, no right was conferred upon the daughter and hence, the respondents/plaintiff not entitled for share.

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Per Contra, the counsel appearing for the respondents would submits that in view of recent judgment of VINEETA SHARMA’s case, the Apex Court in detail discussed with regard to the fact that if there was no

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any registered partition between the parties and also any documentary evidence with regard to that earlier already there was partition and parties have acted upon the daughters are entitled for share. The daughter is also entitled for a share as that of the son. The counsel also submits that in respect of daughter is concerned, there was a Karnataka Amendment Act 1994. Hence, the very contention of the appellant’s counsel cannot be accepted.

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Having heard the appellant’s counsel and also the counsel appearing for the respondents, this Court also framed the substantial question of law with regard to in the absence of material proof or specific pleading that there was devolution of interest on the plaintiff, whether the judgment of the Trial Court granting equal share to the daughter is correct or not. Admittedly the defendant Nos.3 and 4 were born before 09.09.2005, the date on which the provisions of the amended act came into force. Whether they have entitled to a share by virtue of the amended provision or on proof of coparcenary, there was a devolutionary interest upon them has to be considered.

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9. Having considered the substantial question of

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law Nos.1 and 2 framed by this Court, with regard to substantial question of law No.1 the plaintiff in paragraph No.5 of the plaint pleaded that after the death of Laxmana Naika, the suit schedule property were mutated in the name of one of his son i.e., B.L.Manjunatha and he held the properties on behalf of the joint family consisting of the plaintiff and defendants. He also passed away on 06.08.2005. After his death the properties must have been mutated jointly in the name of all the parties to this suit. But vide M.R entry bearing No.17/2005-06, the properties were mutated unlawfully in the name of the defendant No.1 alone. It is also contended that against the same, an appeal is preferred before the Assistant Commissioner, Shimoga and the Court has stayed the mutation order. The properties are in the joint possession of all the family members. The parties are governed by Mithakshara school of Hindu law. Hence, the plaintiff is entitled for 1/5^th share in the suit schedule properties.

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Having perused this averment made in the

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plaint it is specifically pleaded that the suit schedule property belongs to the joint family. After the death of the father, the property was mutated in the name of his son B.L.Manjunatha and the property was illegally transferred in the name of defendant No.1. An appeal is also filed before the Assistant Commissioner and stay was also granted. It is also stated in the paragraph No.5 of the plaint that the properties are in joint possession of all the family members and the parties are governed by Mithakshara school of Hindu law and hence she is entitled for 1/5^th share. Though it is not specifically pleaded that property devolves upon her but the claim is made based on the pleadings that she is bound by Mithakshara school of law. Hence, the very substantial question of law that in the absence of any specific pleadings with regard to the devolution of property is concerned, the judgment of the Trial Court and the appellate Court are sustainable in the eye of law, hence, I answered the substantial question of law No.1 in the negative since there is specific pleading in

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paragraph No.5 pleaded with regard to the existence of joint family property and also entitled for a share i.e., 1/5^th share governed by the Mithakshara school of law.

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Having considered the substantial question of

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law No.2, it is contended that admittedly defendant Nos.3 and 4 were born before 09.09.2005, the date on which the provisions of the amended act came into force. Whether they are entitle to a share by virtue of the amended provision or proof of coparcenary, there was devolutionary interest upon them. Having considered 2^nd substantial question of law and pleading and also considering the genealogical tree placed before this Court, it is not in dispute that the property originally belongs to the Laxmana Naika and also he died in the year 2001 leaving behind the plaintiff is one of the daughter and other three sisters and two brothers and out of that defendant No.1 is the eldest son and other son B.L.Manjunatha is not arrayed since he was no more. The defendant No.1 took the contention that the other son B.L.Manjunatha was executed the Will and the same is negatived by the Trial

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Court and also confirmed by the First Appellate Court. No substantial question of law is framed before this Court with regard to the same. The only question before this Court is whether the plaintiff is entitled for equal share on the property left by her father Laxmana Naika. No doubt earlier daughters are also entitled for a share in the property of the father as notional share. But, in view of the judgment of the Apex Court in VINEETA SHARMA’s case held that the daughters are equally entitled for a share as that of the son and they are coparcenaries as that of son. In view of the said judgment and though counsel appearing for the appellant relied upon paragraph No.13 of the judgment of Apex Court reported in AIR 1978 SUPREME COURT 1239 referred supra, the contention of the counsel that the Court has to take note of the death of father cannot be accepted. As on the date of death, there was no any amendment, there was no any earlier partition. The counsel also brought to notice of this Court that this judgment was discussed in the VINEETA SHARMA’s case and no finding is given and not discussed

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the principles laid down in the judgment of the three bench judges of Apex Court referred supra.

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Having taken note of the Apex Court recently in VINEETA SHARMA’s case dealt with, if no partition in the family, the same is not evidenced by any documentary proof that is public document and also in the absence of any registered document, the daughter is also entitled for share in the property. Hence, I am of the opinion that the very contention of the appellant’s counsel that the daughters are not entitled for equal share as that of her cannot be accepted. In view of the VINEETA SHARMA’s case the daughter is also entitled for share in the property when there was no any partition in the family subsequent to the death of the father. No material is placed with regard to the fact that there was a partition in the family subsequent to the death of the father. Hence, I do not find any merit in the appeal and I answered the 2^nd substantial question of law also in the negative.

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