Allowed

Smt Savithramma W/O Hucha Naika v. Sri Ganapathi S/O Hucha Naika

Karnataka HC5 Jun 2024RSA/656/2013

Case brief

AI extract

What is this about?

The High Court allowed the appeal against a first appellate judgment. The first appellate court had applied the Indian Succession Act to deny daughters' shares because the propositus died in 1988. The court held that under Vineeta Sharma, daughters are entitled to equal shares in a notional partition unless partition occurred before the amendment.

What did the court decide?

The judgment of the first appellate court dated 11.01.2013 is set aside; the trial court's decree is confirmed with modification granting 1/8th share to each party.

Smt Savithramma W/O Hucha Naika Vs Sri Ganapathi S/O Hucha Naika — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:19646 RSA No. 656 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF JUNE, 2024

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BEFORE

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THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ REGULAR SECOND APPEAL NO. 656 OF 2013 (PAR)

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BETWEEN:

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SMT. SAVITHRAMMA W/O HUCHA NAIKA AGED ABOUT 73 YEARS, R/AT KALLUKOPPA ARANELLI VILLAGE, MANDAGADDE HOBLI SIRIGERE POST - 577 220, THIRTHALLI TALUK, SHIMOGA DISTRICT.

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Digitally signed by NARAYANAPPA LAKSHMAMMA Location: HIGH COURT OF KARNATAKA

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SMT. BANGARAMMA W/O SHIVANANDA AGED ABOUT 48 YEARS R/AT SHETTIHALLI VILLAGE HAIHOLE POST, KASABA HOBLI, SHIMOGA TALUK - 577 208, SHIMOGA DISTRICT.

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SMT. SAROJAMMA, W/O VENKATESHA, AGED ABOUT 43 YEARS, R/AT KALLUKOPPA, ARANELLI VILLAGE, MANDAGADDE HOBLI. SIRIGERE POST - 577 220.

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NC: 2024:KHC:19646 RSA No. 656 of 2013

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SMT. NAGARATNA @ REKHA W/O SOMASHEKARA AGED ABOUT 34 YEARS R/AT KANNURU VILLAGE GAUTHAMAPURA POST SAGARA TALUK - 577 403, SHIMOGA DISTRICT

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SMT. LEELAVATHI @ DIVYA W/O DEVNDRAPPA M J., AGED ABOUT 34 YEARS, C/O RAJANNA DRIVER, GAJANANA NIALYA, GADIKOPPA SAGAR ROAD, SHIMOGA - 577 203.

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KUMARI SHARAVATHI D/O HUCHA NAIKA AGED ABOUT 29 YEARS R/AT KALLUKOPPA ARANELLI VILLAGE, MANDAGADDE HOBLI SIRIGERE POST - 577 220, THIRTHAHALLI TALUK, SHIMOGA DISTRICT.

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…APPELLANTS

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(BY SRI. GANAPATHI, ADVOCATE)

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AND:

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SRI. GANAPATHI S/O HUCHA NAIKA, AGED ABOUT 48 YEARS, AGRICULTURIST, R/AT KALLUKOPPA, ARANELLI VILLAGE,

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3 - NC: 2024:KHC:19646 RSA No. 656 of 2013

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SIRIGERE POST, MANDAGADDA HOBLI, THIRTHAHALLI TALUK, SHIMOGA DISTRICT - 577 220.

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SMT. PARVATHAMMA W/O CHOWDAPPA AGED ABOUT 55 YEARS R/AT MANGISARI, SAMPIGEHALLI, SIRIGERE POST, SHIMOGA TALUK - 577 220, SHIMOGA DISTRICT

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SMT. GIRIJAMMA W/O ERAPPA D/O HUCHHA NAIKA R/AT HOSAGADDE, KANNANGI POST - 577 204, THIRTHAHALLI TALUK SHIMOGA DISTRICT.

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…RESPONDENTS

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(R1 TO R3 SERVED AND UNREPRESENTED)

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THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE JUDGMENT & DECREE DATED 11.1.2013 PASSED IN R.A.NO.98/2010 ON THE FILE OF THE ADDL. DISTRICT JUDGE, SHIMOGA, PARTLY ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 11.1.2010 PASSED IN O.S.NO.126/2007 ON THE FILE OF I ADDL. CIVIL JUDGE (SR.DN) & CJM, SHIMOGA,

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

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NC: 2024:KHC:19646 RSA No. 656 of 2013

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JUDGMENT

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The appellants are before this court seeking for the

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following relief's:

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a) Call for the records in R.A.No.98/2010 on the file of Additional District Judge at Shimoga.

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b) Call for records in O.s.No.126/2007, on the file of Civil Judge (Sr.Dvn) & C.J.M. at Shimoga.

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c) allow this appeal and set-aside the Judgment & Decree dated:11.01.2013 passed by the Additional District Judge in R.A.No.98/2010.

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d) Grant such other relief/s that this Hon'ble Court deems fit to grant in the circumstances of the case, in the interest of justice and equity.

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The appeal has been admitted on the 13.02.2020 for

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deciding the following substantial question of law:

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i. Whether the first appellate Court was justified in allotting a notional share to the plaintiffs in the suit properties as against per capita share ordered by the trial Court?

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The appellants had filed a suit in O.S.No.126/2007 seeking for partition and separate possession of their respective 6/9^th share in the suit schedule properties. The plaintiff No.1 is a widow of Hucha Naika, the propositus of the family, plaintiff Nos.2 to 6 and

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5 - NC: 2024:KHC:19646 RSA No. 656 of 2013

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defendant Nos. 1 to 3 are the children of Hucha Naika, defendant Nos.1 to 3, being the children from the first wife of Hucha Naika. Subsequently to the expire of first wife Chowdamma, the said Hucha Naika got married to the plaintiff No.1 Savithramma. There being certain dispute between the family members, a suit in O.S.No.126/2007 had been filed for partition and separate position, claiming equal rights.

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The defendants son and daughters born out of the first marriage of Sri Hucha Naika. The trial court, by its judgment and decree dated 11.01.2010 decreed the suit, declaring that plaintiffs and the defendants to be entitled to 6/9^th share each in respect of suit schedule property. The trial court passed the following order:

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"The suit of the plaintiff is partly decreed.

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It is declared that the plaintiffs' altother entitled for 6/9^th share in items 1, 2 and 4 of the suit schedule properties.

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The suit of the plaintiffs in respect of other properties is dismissed.

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It is declared that the plaintiffs are not entitled for mesne profits.

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The defendants No.1 is directed to allot the plaintiff's 6/9^th share each in item No.1, 2 and 4,

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6 - NC: 2024:KHC:19646 RSA No. 656 of 2013

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failing which the plaintiffs are at liberty to get their shares of properties by invoking Sec.54 of C.P.C.

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Parties to bear their own costs.

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Draw preliminary decree accordingly.

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The said order has been challenged by defendant No.1 in R.A.No.98/2010, in the said appeal by way of judgment dated the 11.01.2013, the first appellate court coming to a conclusion that Sir Hucha Naika, had expired in the year 1988, the Karnataka amendment to the Indian Succession Act and the Central amendment to the Hindu Succession act cannot be taken into consideration for the purpose of determining the share of the daughters and as such the first appellate court modified the decree by holding that there was a notional partition which had occurred at the time of the death of Sri Hucha Naika and on that basis redetermined the shares and granting half share to the first defendant and thereafter granting 1/18^th each share to the plaintiffs. By challenging the same, appellants are before this court.

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The substantial question which has been raised by which has been framed is no longer reintegrated. The Hon'ble

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NC: 2024:KHC:19646 RSA No. 656 of 2013

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apex court in case of Vineeta Sharma vs Rakesh Sharma¹ has come to conclusion that the daughters of the deceased propositus would be entitled to equal share along with the sons, irrespective of the propositus having expired prior to or after coming into force of the amendment of the Hindu Succession Act. In the present matter, there is no dispute as regarding the relationship of the parties and the death of Sri Hucha Naika in the year 1988. The same will not disentitle the plaintiffs of equal share in the property, since there is no partition between Sri Hucha Naik and respondent No.1 prior to the coming into force of the amendment to the Hindu Succession act.

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During the pendency of the above appeal, the first appellant expired on 12.03.2017, appellant Nos.2 to 6 are the only legal representatives are the appellant No.1. First appellant is survived by appellant No.2 to 6 and respondent No.1 to 3, each of them being entitled to

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1 (2020) 9 SCC 1

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8 - NC: 2024:KHC:19646 RSA No. 656 of 2013

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and succeeding to equal share in the property of the first appellant. In that view of the matter, I pass the following order.

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:ORDER:

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i. The appeal allowed.

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ii. The judgment passed by the first appellate court dated the 11.01.2013, in R.A.No.98/2010, is set aside and the judgment and decree passed by the trial court dated 11.01.2010 in O.S.No.126/2007 is confirmed subject to the modification that appellant Nos.2 to 6 and respondents i.e., plaintiff Nos.2 to 6 and defendants in O.S.No.126/2007 would be entitled to 1/8^th share in the suit scheduled properties.

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Sd/JUDGE

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ASN List No.: 1 Sl No.: 55

Smt Savithramma W/O Hucha Naika v. Sri Ganapathi S/O Hucha Naika

Case brief

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Smt Savithramma W/O Hucha Naika v. Sri Ganapathi S/O Hucha Naika

Case brief

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