Partly allowed

B R Anitha v. B R Swamynathan

Karnataka HC10 Dec 2024WP/46023/2018

Case brief

AI extract

What is this about?

A writ petition seeking to quash an order reducing a daughter's property share from 1/5th to 1/15th. The High Court applied Vineeta Sharma, set aside the reduction, but remitted the matter to consider if a separate settlement between parties precludes the need for a final decree.

What did the court decide?

Writ petition allowed in part; impugned order set aside; case remitted to Final Decree Court to verify if parties have fully settled the dispute, deciding whether a final decree is still required.

B R Anitha Vs B R Swamynathan — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:51024 WP No. 46023 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 10^TH DAY OF DECEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE R. NATARAJ WRIT PETITION NO.46023 OF 2018 (GM-CPC)

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BETWEEN:

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B. R. ANITHA, AGED ABOUT 42 YEARS, W/O. M. G. SOMASHEKAR, # 1948/13, VIDYANAGARA MAIN ROAD, TARALABALU BADAVANE, DAVANAGERE - 577 001.

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…PETITIONER

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(BY SRI. RAJASHEKAR K, FOR SRI. PRADEEPA S. B, ADVOCATE)

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AND:

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Digitally signed by SUMA Location: HIGH COURT OF KARNATAKA

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B. R. SWAMYNATHAN AGED ABOUT 49 YEARS S/O. LATE. B. M. RAJASHEKARAPPA SOMASHETTIHALLI VILLAGE LINGADAHALLI POST CHANNAGIRI TALUK CHITRADURGA DISTRICT.

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INDRAMMA AGED ABOUT 47 YEARS D/O. LATE. B. M. RAJASHEKARAPPA SOMASHETTIHALLI VILLAGE LINGADAHALLI POST CHANNAGIRI TALUK CHITRADURGA DISTRICT.

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B. R. SAVITHA AGED ABOUT 45 YEARS W/O. M. JAGADEESH

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D.NO. 1/9,THANGANNA NILAYA 8^TH CROSS, VIDYANAGAR DAVANAGERE-577 001.

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B. R. NATARAJ AGED ABOUT 41 YEARS S/O. LATE. B.M. RAJASHEKARAPPA D.NO. 71/4, ABHIMANA NILAYA 1^ST FLOOR, 10^TH CROSS JARAGANAHALLI, VI PHASE, JP NAGAR, BENGALOORU-560 078.

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H. E. CHANDRAPPA AGED ABOUT 72 YEARS S/O. H. ESHWARAPPA D.NO. 566/5, ADARSHA NILAYA, 2^ND CROSS, NITUVALLI, DAVANAGERE-577 001.

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…RESPONDENTS (BY SRI. SIDDANOORU VISHWANATHA, ADVOCATE FOR R-1; R-2 & R-3 ARE SERVED; SRI. HARISH KUMAR M.S, ADVOCATE FOR R-4, R-5 SERVED)

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THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA PRAYING TO, QUASH THE IMPUGNED ORDER DT.01.10.2018 PASSED BY LEARNED SR. CIVIL JUDGE & JMFC, CHANNAGIRI IN FDP 3/16 (ANNEXUREF).GRANT AN INTERIM ORDER TO STAY THE OPERATION & IMPLEMENTATION OF THE IMPUGNED ORDER DT.01.10.2018 PASSED BY LEARNED SR. CIVIL JUDGE & JMFC, CHANNAGIRI IN FDP 3/16 (ANNEXURE-F) ETC.

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THIS PETITION, COMING ON FOR ORDERS, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE R. NATARAJ

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ORAL ORDER

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The petitioner in FDP No.3/2016 on the file of Senior Civil Judge and JMFC, Chennagiri has filed this petition challenging the correctness of an order dated 01.10.2018, by which it modified the shares declared under the preliminary decree passed in O.S No.38/2011.

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(i) The petitioner was the plaintiff in O.S No.38/2011, which was for partition and separate possession of her share in the suit schedule properties. The petitioner claimed that she, her brothers and sisters were entitled to an equal share in the suit schedule properties, after the death of their father Sri B. M. Rajashekarappa.

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(ii) The said suit, after contest, was decreed and it was declared that the plaintiff is entitled to 1/5^th share in the suit schedule properties. Following this preliminary decree, the petitioner filed FDP No.3/2016 for drawing up of a final decree to demarcate her share and to handover possession of her share in the suit properties.

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(iii) In the said final decree proceedings, the petitioner filed an application for appointment of a revenue officer to bifurcate and divide the agricultural properties and a Engineer of the

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Public Works Department to divide the residential properties as per the preliminary decree. While considering this application, the Final Decree Court held that in view of the judgment passed by the Hon’ble Supreme Court in the case of Mangammal and Thulasi and others Vs. T.B. Raju and others [(2018) 15 SCC 662] and judgment of the Apex Court in the case of Prakash and others Vs. Phulavati and others [(2016) 2 SCC 36] and in the case of Danamma alias Suman Surpur Vs. Amar and others [ ( 2018) 3 SCC 343] a notional partition had to be effected after the death of propositus namely Sri B. M. Rajashekarappa. Consequent to this, it was held that the petitioner would be entitled to 1/15^th share in the suit properties. Being aggrieved by the said order, the petitioner is before this Court.

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The learned counsel for the petitioner contends that the Trial Court had passed a preliminary decree declaring that the plaintiff is entitled to 1/5^th share in the suit schedule properties. She contends that the Final Decree Court could not have relied upon the judgment in the case of Mangammal and

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Thulasi and others Vs. T.B. Raju and others [(2018) 15 SCC 662] and Danamma alias Suman Surpur Vs. Amar

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and others [ ( 2018) 3 SCC 343] t o reduce the share from 1/5^th to 1/15^th . She contends that the Apex Court in the case of Vineeta Sharma Vs. Rakesh Sharma and others [AIR 2020 SC 3717] had categorically held that the daughter would be entitled to an equal share along with the sons subject to exceptions contained in Section 6 of Hindu Succession Act, 1956. She therefore contends that the Final Decree Court committed an error in reducing the share.

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Per contra, learned counsel for the respondents contended that after the preliminary decree was passed, various attempts were made at conciliation which ultimately culminated in a partition dated 24.02.2014 in terms of which, the petitioner was given away 2 ½ acres of arecanut plantation in Sy No.23/P2 of Somashettihalli, Siddapura Village, Kasaba Hobli, Channagiri Taluk. He contends that after the said partition, another agreement was entered in to on 13.08.2019 in terms of which she relinquished her claim in respect of the other properties. Subsequent to this, another settlement was entered into on 17.07.2024 in terms of which, the petitioner

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was given away 20 guntas of wet land in Sy No.10/1 of Somashettihalli and sum of Rs.6,00,000/- was agreed to be

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paid at the time of a registration of the partition deed. He therefore contends that, the petitioner has accepted to receive 3 acre of land and also sum of Rs.6,00,000/- towards her share and therefore, the dispute between the parties is fully and finally settled. Therefore, he contends that there is no need for any proceedings to draw up a final decree. He also contends that the respondents had challenged the preliminary decree in O.S No.38/2011 before this Court in RFA No.1000/2023 and in view of the settlement arrived at as stated above, the appeal was dismissed for default and no steps were taken to restore it. The learned counsel therefore, contends that even if the judgment of the Apex Court in the case of Vineeta Sharma

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Vs. Rakesh Sharma (supra) is applicable to the facts and circumstances of the case, in view of the settlement arrived between the parties there is no need for a final decree to be drawn.

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I have considered the submissions made by the

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learned counsel for the petitioner and the learned counsel for the respondents.

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The Apex Court in the case of Vineeta Sharma Vs.

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Rakesh Sharma (supra) , elaborately discussed the right of

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daughters in view of the amendment to the Hindu Succession Act, 1956 and held as follows:

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(i) The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities

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(ii) The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004

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(iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.

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(iv) The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class-I as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.

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v) In view of the rigor of provisions of Explanation to Section 6(5) of the Act of

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1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.

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It also overruled the judgment in the case of Prakash and others Vs. Phulavati (Supra) , Mangammal and Thulasi and others (Supra) and Danamma alias Suman Surpur (Supra) to the extent it was contrary to the view taken by it in the case of Vineeta Sharma Vs. Rakesh

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Sharma (supra) . In so far as cases where the final decree was not drawn, the Apex Court held that it is open for the Final Decree Court to consider the position of law and modify the preliminary decree accordingly.

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In view of the aforesaid, the impugned order of the

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final decree court modifying the share of the petitioner from 1/5^th to 1/15^th is improper and calls for interference.

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However, it is to be noticed that the parties had purportedly entered into a settlement in terms of which the petitioner had agreed to receive three acres of land and a sum of Rs.6,00,000/-towards her share in the suit schedule property. A document in writing is purportedly executed between the petitioner and the respondent to the above effect. Therefore, the question whether there was a need to draw up a final decree in view of the settlement arrived between the parties or not, has to be now considered by the final decree Court before it takes any other steps to demarcate and hand over 1/5^th share of the petitioner in the suit schedule properties. For all practical progresses, the document referred above could be treated as settlement which does not require compulsory registration in view of the judgment of the Apex Court in the case of Kale and others Vs. Deputy Director of Consolidation and others [1976 SC 807]. Therefore, the final decree court is bound to verify whether the parties have settled the dispute fully and finally and whether there is a need to pass a final decree in terms of the preliminary decree.

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In view of the above, this writ petition is allowed

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in part and the impugned order passed by the Final Decree

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10 -

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Court is set aside. The case is remitted back to the Final Decree Court, which shall consider whether the parties have settled the dispute putting an end to the enforceability of a preliminary decree. If it is of the opinion that the parties have not settled the dispute, then the final decree court shall take steps to appoint a commissioner to demarcate the share of the petitioners in the properties in accordance with the preliminary

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decree drawn.

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Sd/(R. NATARAJ) JUDGE

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THM

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List No.: 1 Sl No.: 23

B R Anitha v. B R Swamynathan

Case brief

What is this about?

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B R Anitha v. B R Swamynathan

Case brief

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