Shivamurthy Vs Mahadevamma

SHIVAMURTHY S/O MALLEGOWDA, AGED ABOUT 38 YEARS, R/O NO. 100, KURUBARA BEEDI, KUMBARALLY MUTT SOMESHWARA PURA POST, VARUNA HOBLI, MYSURU TALUK, MUSURU DIST-570010.

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…PETITIONER

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(BY SRI SYED AKBAR PASHA, ADVOCATE)

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AND:

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Digitally signed by MALATESH K C

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Location: HIGH COURT OF KARNATAKA

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MAHADEVAMMA W/O LATE SHAMBAIAH, AGED ABOUT 73 YEARS, R/O NO.7, EWS 2^ND STAGE, T K LAYOUT, KHB COLONY, KUVEMPUNAGAR MYSURU-570023.

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MAHADEVAMMA D/O LATE SHAMBAIAH, AGED ABOUT 45 YEARS, R/O No. 7, EWS 2^ND STAGE, T K LAYOUT, KHB COLONY, KUVEMPUNAGAR MYSURU-570023.

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NIRMALA KUMARI @ KUMARI D/O LATE SHAMBAIAH,

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AGED ABOUT 43 YEARS, R/O NO. 7, EWS 2^ND STAGE, T K LAYOUT, KHB COLONY, KUVEMPUNAGAR MYSURU-570023.

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SHWETHAPRIYA D/O LATE SHAMBAIAH, AGED ABOUT 37 YEARS, R/O NO. 7, EWS 2^ND STAGE, T K LAYOUT, KHB COLONY, KUVEMPUNAGAR MYSURU-570023.

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V P SUSHEELA D/O LATE D PUTTALINGAIAH, AGED ABOUT 44 YEARS, R/O No. 538, VARUNA VILLAGE, MYSURU TALUK, MYSURU DIST-570010.

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MAHADEVAMMA W/O LATE D PUTTALINGAIAH, AGED ABOUT 68 YEARS, R/O No. 538, VARUNA VILLAGE, MYSURU TALUK, MYSURU DIST-570010.

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MANGALAGOWRI D/O LATE D PUTTALINGAIAH, AGED ABOUT 40 YEARS, R/O NO. 538, VARUNA VILLAGE, MYSURU TALUK, MYSURU DIST-570010.

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V P RAGHUCHANDRA S/O LATE D PUTTALINGAIAH, AGED ABOUT 37 YEARS, R/O NO. 538, VARUNA VILLAGE, MYSURU TALUK, MYSURU DIST-570010.

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V P RAVICHANDRA S/O LATE D PUTTALINGAIAH, AGED ABOUT 49 YEARS, R/O No. 538, VARUNA VILLAGE, MYSURU TALUK, MYSURU DIST-570010.

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B M SHIVAPRASAD S/O LATE D MADAIAH, AGED ABOUT 51 YEARS, R/O No. 538, VARUNA VILLAGE, MYSURU TALUK, MYSURU DIST-570010.

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B M GURUPRASAD S/O LATE D MADAIAH, AGED ABOUT 45 YEARS, R/O No.538, VARUNA VILLAGE, MYSURU TALUK, MYSURU DIST-570010.

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S SHIVAKUMAR S/O LATE SHAMBAIAH AGED ABOUT 54 YEARS, R/O No. 538, VARUNA VILLAGE, MYSURU TALUK, MYSURU DIST-570010.

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M S RAGHAVENDRA S/O SUNDAR, AGED ABOUT 51 YEARS, R/O No. 2, BANGARAGIRI NILAYA, SIDDARTHA LAYOUT, BUDDHA MARGA, T N PURA ROAD, MYSURU-570011.

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B M HEMALATHA D/O LATE D MADAIAH, AGED ABOUT 47 YEARS, DO No.473, ANUGRAHA NILAYA,

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5^TH MAIN, DOUBLE ROAD, NEAR NANDINI CIRCLE, DATTAGALLI 3^RD STAGE, B BLOCK, KANAKADASA NAGAR, MYSURU-570033.

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…RESPONDENTS (BY SRI BALASUBRAMANYA B N, ADVOCATE FOR R1, R3 AND R4;

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VIDE ORDER DATED 24.06.2024 NOTICE TO R5 TO R14 IS DISPENSED WITH;

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R2 -SERVED)

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THIS CRP IS FILED UNDER SECTION 115 OF CPC., AGAINST THE ORDER DATED 16.01.2024 PASSED ON IA NO.3 IN OS No.1526/2021 ON THE FILE OF VII ADDITIONAL CIVIL JUDGE AND JMFC, MYSURU., REJECTING I.A.No.3 FILED UNDER ORDER 7 RULE 11(a,b & d) OF CPC., FOR REJECTION OF PLAINT.

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

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CORAM: HON'BLE MR. JUSTICE V SRISHANANDA

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ORAL ORDER

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Heard Sri Syed Akbar Pasha, learned counsel for the revision petitioner and Sri Balassubramanya B.N., learned counsel for respondent Nos.1, 3 and 4.

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Defendant No.10 is the revision petitioner who has filed the present revision petition challenging the dismissal of the application filed under Order VII Rule 11 CPC in O.S.No.1526/2021.

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The facts which are utmost necessary for disposal

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of the present revision petition are as under

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3.1. A suit in O.S.No.1526/2021 came to be filed on the file of Principal Civil Judge (Jr.Dn), Mysuru with the following prayer in respect of following property (hereinafter referred to as ‘suit property’).

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“The plaintiffs humbly pray that this Hon’ble Court be pleased to pass judgment and Decree in their favour against the defendants as follows:

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Judgment and Decree for 1/5 share in the schedule land by metes and bounds with mesne profits with cost of the suit.

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To set-aside the sale deed executed by Defendant on 31-5-2004 registered on 2-8-2004 in I book, Dastavej No.MYN-1-05085-2004-05 and C.D. No.MYND 20 before the sub registrar(N) as null and void unenforceable, not binding on the plaintiffs.

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To declare the consent deed (Oppige Patra-in Kannada) made in respect of the suit schedule land and this deed executed by Defendant 1 to 4 and registered in Book No.1, Dastavej No.MYN-109290/2007-08 C.D.Number MYND 151 on 5-9-2007 before the sub registrar Mysore (N), is illegal null and

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void unenforceable and the plaintiffs are not binding on them and on plaintiffs also.

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To declare that the sale deed registered with respect to the suit schedule property on 12-3-2012 vide book no.1 Dastavej number MYN-1-287962011-12 as C.D. Number MYND 313 on 12-3-2012 by Defendants No.9 in favour of 9^th Defendant is null and void unenforceable and not binding on the plaintiffs.

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SCHEDULE

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Dry landed property situated Mysore district, Mysore Taluk, Varuna Hobli, Varu village, bearing Sy.No.71/2 to an extent of 2 Acre 21 Guntas, bounded on

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East by	:	P. Sundar's Land
West by	:	Road
North by	:	Land of Puttaswamy
South by	:	Land of Puttalingaiah”

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The facts pleaded in the plaint would further reveal

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that the suit property earlier belonged to a common prepositous Doddamadaiah. He had three sons namely, Shambaiah, Puttarangaiah and Madaiah. There was a partition between the three sons. Plaintiffs claim that they are the wife

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and children of Shambaiah, one of the sons of Doddamadaiah, claiming their share as aforesaid.

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After the Partition, Shambaiah said to have sold the suit property in favour of defendant No.9. It is further contented that all the sons of Doddamadaiah have sold the suit property in favour of defendant No.9 - M.S. Raghavendra by registered sale deed dated 02.08.2004.

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Defendant No.9 inturn sold the suit property in favour of defendant No.10 by registered sale deed dated 12.03.2012 and thus, defendant No.10 became owner of the suit property.

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It is further contented that plaintiffs being the wife

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and children of Shambaiah, having share in the suit property. Therefore, they laid the suit before the trial Court.

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Pursuant to the suit summons, defendant No.10 appeared and filed written statement denying the plaint averments and also maintaining that plaintiffs have no right title or interest in respect of the suit property as Shambaiah

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along with his brothers joined hands and sold the property in favour of defendant No.9 by registered sale deed dated

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02.08.2004 and suit filed in the year 2021 cannot be countenanced in law.

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Plaintiffs filed the objection statement to the said application.

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Learned trial Judge by impugned order dismissed the application, inter alia holding in paragraphs 18 to 25 which reads as under:

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“18. Though the previous depositions are protected under the provisions of Hindu Succession (Amendment) Act, 2005 and upheld by the supra mentioned decision by Apex Court, those protection for the previous disposition are available only to the states, where there is no earlier state amendment to section 6 of the Hindu Succession 1956 whereby recognizing daughter as coparcener at par with son. But in case of our Karnataka State is concerned, it brought the amendments to section 6 of Hindu Succession Act 1956 by way of Hindu Succession (Karnataka Amendment) Act, 1990 which came into force from 30.07.1994.

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19. Now the question that arises for consideration of this court is, whether the previous disposition that are protected under the Hindu Succession Amendment act 2005 through the decision of Hon'ble Apex Court in Vineeta Sharma cases is applicable in case of amendments to HSA by several states in the country. In

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order to resolve this subtle controversy, it is relevant to refer the recent decision by Division Bench of Honb'le High Court of Karnataka in R.F.A No.916/2014 C/w R.F.A. CROB. 8/2019 (PAR) between Padmavathi and another V/s Smt. Jayamma and others, decided on 15^th May, 2020 wherein at Para No. 65 and 66 has held as under...

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Para 65: The Hon'ble Apex Court has held that the Central Amendment Act would come into force from 09.09.2005. The eclipse of the Karnataka amendment being prospective from 09.09.2005, the period prior to 09.09.2005 going back to 30.07.1994 would, therefore, be occupied by the Karnataka Amendment, the same not having been repealed by the Karnataka Legislature, but having only been eclipsed by the Central Amendment.”

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20. Apart from that, the Hon'ble Apex Court between Vineeta Sharma Vs. Rakesh Sharma & Others (Supra) at Page 52 Para 57 has recognized the State amendments carried out by the State of Andhra Pradesh, Tamilnadu, Karnataka and Maharashtra. The Apex Court in the said judgment, has nowhere stated that in view of Hindu Succession (Amendment) Act, 2005, the above said State Amendments to the Hindu Succession Act, 1956 are inoperative.

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21. After considering the ratio laid down by the Apex Court in Vineetha Sharma's case (Supra) and the ratio laid down by the Division Bench of Honb'le High Court of Karnataka in Padmavathi and Another V/s Jayamma & Others (Supra), it can be safely concluded that for the cases covered under Hindu Succession (Karnataka Amendment) Act, 1990 from 30.07.1994 till 08.09.2005, the Hindu Succession (Karnataka Amendment) Act, 1990 has to be applied.

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22. From the above discussion, one thing is very clear that, even after coming into force of Hindu Succession (Amendment) Act, 2005, if succession had already opened while Hindu Succession (Karnataka Amendment) Act, 1990 was still in force i.e. till 08.09.2005, then we should follow the Karnataka Amendment Act of 1990 and not the Central Act of 2005 decide the controversies involved in such dispositions.

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23. The above discussed preposition of law is aptly applicable to the present case on hand. Here also the contention of the applicant/defendant No.10 is that, the sale transaction pertaining to the suit schedule property has taken place way back in the year 2004 is much earlier to 2005 Central Amendment Act, as such the plaintiffs have no locus-standi to challenge such alienation by virtue of the Hindu Succession (amendment) Act 2005. But in light of my above discussions on the observation made by Hon'ble Apex Court in supra mentioned decisions, the aspect of when UN-amended Section 6 of Hindu Succession Act, 1956

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applies, when Hindu Succession (Karnataka Amendment) Act, 1990 applies and when Hindu Succession (Amendment) Act, 2005 applies are very clear. If the succession had already opened either under UNamended Section 6 of Hindu Succession Amendment Act, 1956 or under Section 6A & 6B of Hindu Succession (Karnataka Amendment) Act, 1990, then the suit has to be decided as per the prevailing law applicable as on that date and not as per Hindu Succession (Amendment Act) 2005.

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24. Now it is crystal clear that, even if disposition or alienation had taken place before 20.12.2004 in contravention with the provisions of either UN-amended Section 6 of Hindu Succession Act 1956 or Hindu Succession (Karnataka Amendment) Act, 1990, then such disposition or alienation will not be binding on the interest of a daughter. Hence the application filed by the applicant/defendant no.10 is devoid of any merits.

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25. Further, the counsel for the defendant no.10 states that, on 31.05.2004 there was a sale deed executed between the defendant no.4 to 8 and defendant no.9 and the defendant no.1 to 3 executed the confirmation deed to the defendant no.9 on 04.09.2007. So, all the rights of the parties are settled. But on perusal of the plaint averments it can be seen that there is an illegal transaction and also without the knowledge of the defendant no.1 to 4 confirmation deed is executed. As per the defendant No.10 averment only the confirmation deed is executed by the defendant no.1

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to 3 to defendant no.9 on 04.09.2007 ie, after 20.12.2004. Hence, on over all perusal of the plaint averments and documents on record, whether the plaintiffs are entitle for the share or not, it is decided after full fledged trial. So there is a matter in issue for trial. The arguments and contents of the affidavit of the defendants are the matter of trial which cannot be considered at this stage. Further, defendants states that there is no cause of action to file this suit and also the plaintiffs are not properly valued the present suit. But the plaint averments discloses that there is a clear cause of action to file the present suit and the plaintiff has rightly valued the suit. Therefore, this court is of the opinion that there is no averments in the plaint to reject the plaint U/o 7 Rule 11 [a,b & d]..”

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Being aggrieved by the same, defendant No.10 has filed the present revision petition on the following grounds:

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“That the impugned order passed by the learned Trial Court is illegal, arbitrary and capricious, hence liable to be set aside.

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It is submitted that the impugned order passed by the learned Trial Court on IA No 03/2022 dated 16-01- 2024 Annexure-A is against to the section 6A of Hindu Succession Act 2005, as the amendment has saved any dispossession or sale prior to 20-12-2004 is saved, hence the sale deed executed by the defendant in favour of defendant

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no.9 dated 02-08-2004 is saved and cannot be challenged.

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It is submitted that Hon'ble Supreme Court in reported decision Venitha Sharma v/s Rakesh Sharma is clarified the possession and held that any transaction prior to the cut of date is saved.

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It is submitted that the learned Trial Court wrongly held that the state amendment to section 6A in the year 1994 equal right and which was continuing until the central amendment act came in to effect.

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It is submitted that this Hon'ble Court in CRP No 100136/2022 by its order dated 29-03-2023 had also held that any sale prior to the cut of date is saved, hence the impugned order has to be set aside.”

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Learned counsel for the revision petitioner Sri Syed Akbar Pasha, by reiterating the grounds urged in the revision petition contented that at no stretch of imagination, plaintiffs can maintain the suit especially having regard to the sale deed that has been executed by Shambaiah, Puttarangaiah and Madaiya in favour of defendant No.9 on 02.08.2004.

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To invite the attention of the Court that even though the question of limitation is not urged, per se on record,

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a sale deed of 02.08.2004 is being challenged in the year 2021 shows that the plaint contains only mala fide reasons.

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Sri Syed Akbar Pasha, would also contend that defendant No.9 inturn has sold the property in favour of defendant No.10 on 12.03.2012. With avariciousness, the plaintiffs have filed the present suit by taking advantage of the amendment to Section 6 of Hindu Succession Act, which is not applicable in the facts and circumstances of the case as the alienation has taken place in favour of defendant No.9 on 02.08.2004.

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He would also press into service the proviso to Section 6 (1) of the Hindu Succession Act, wherein the Courts are precluded from considering any claim based on amendment where the alienations have taken place prior to the cutoff date mentioned in the statute and the same are evidenced by registered documents.

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Sri Syed Akbar Pasha, would lastly contend that the trial Judge has not properly appreciated the scope of Order VII Rule 11 of Code of Civil Procedure in the light of the affidavit contents of the revision petitioner and therefore in the event,

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this Court comes to the conclusion that the suit is maintainable, the impugned order be set aside and application be directed to be adjudicated afresh in accordance with law by allowing the revision in part.

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Per contra Sri B.N. Balasubramanya, learned counsel for the contesting respondents/plaintiffs, supports the impugned order.

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Having heard the arguments of both sides, this Court perused the material on record meticulously.

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On such perusal of the material on record, as on the date of succession i.e. the death of the common prepositous, since plaintiff Nos.2 to 4 were born, 1956 Provisions of Hindu Succession Act as is amended in 1956 would operate.

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Their Lordships in the Supreme Court while answering the reference with regard to the application of the amended to Section 6 of the Hindu Section Act in the case of Vineeta Sharma vs. Rakesh Sharma reported in (2020) 9 SCC 1 while answering the reference have concluded as under:

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“135. A special definition of partition has been carved out in the Explanation. The intendment of the

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provisions is not to jeopardise the interest of the daughter and to take care of sham or frivolous transaction set up in defence unjustly to deprive the daughter of her right as coparcener and prevent nullifying the benefit flowing from the provisions as substituted. The statutory provisions made in Section 6(5) change the entire complexion as to partition. However, under the law that prevailed earlier, an oral partition was recognised. In view of change of provisions of Section 6, the intendment of the legislature is clear and such a plea of oral partition is not to be readily accepted. The provisions of Section 6(5) are required to be interpreted to cast a heavy burden of proof upon proponent of oral partition before it is accepted such as separate occupation of portions, appropriation of the income, and consequent entry in the revenue records and invariably to be supported by other contemporaneous public documents admissible in evidence, may be accepted most reluctantly while exercising all safeguards. The intendment of Section 6 of the Act is only to accept the genuine partitions that might have taken place under the prevailing law, and are not set up as a false defence and only oral ipse dixit is to be rejected outrightly. The object of preventing, setting up of false or frivolous defence to set at naught the benefit emanating from amended provisions, has to be given full effect. Otherwise, it would become very easy to deprive the daughter of her rights as a coparcener. When such a defence is taken, the court has to be very extremely careful in accepting the same,

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and only if very cogent, impeccable, and contemporaneous documentary evidence in shape of public documents in support are available, such a plea may be entertained, not otherwise. We reiterate that the plea of an oral partition or memorandum of partition, unregistered one can be manufactured at any point in time, without any contemporaneous public document needs rejection at all costs. We say so for exceptionally good cases where partition is proved conclusively and we caution the courts that the finding is not to be based on the preponderance of probabilities in view of provisions of gender justice and the rigour of very heavy burden of proof which meets the intendment of Explanation to Section 6(5). It has to be remembered that the courts cannot defeat the object of the beneficial provisions made by the Amendment Act. The exception is carved out by us as earlier execution of a registered document for partition was not necessary, and the court was rarely approached for the sake of family prestige. It was approached as a last resort when parties were not able to settle their family dispute amicably. We take note of the fact that even before 1956, partition in other modes than envisaged under Section 6(5) had taken place.

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136. The expression used in the Explanation to Section 6(5) “partition effected by a decree of a court” would mean giving of final effect to actual partition by passing the final decree, only then it can be said that a decree of a court effects partition. A preliminary decree declares share but does not effect the actual partition,

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that is effected by passing of a final decree; thus, statutory provisions are to be given full effect, whether partition is actually carried out as per the intendment of the Act is to be found out by the court. Even if partition is supported by a registered document it is necessary to prove that it had been given effect to and acted upon and is not otherwise sham or invalid or carried out by a final decree of a court. In case partition, in fact, had been worked out finally in toto as if it would have been carried out in the same manner as if affected (sic effected) by a decree of a court, it can be recognised, not otherwise. A partition made by execution of deed duly registered under the Registration Act, 1908, also refers to completed event of partition not merely intendment to separate, is to be borne in mind while dealing with the special provisions of Section 6(5) conferring rights on a daughter. There is a clear legislative departure with respect to proof of partition which prevailed earlier; thus, the court may recognise the other mode of partition in exceptional cases based upon continuous evidence for a long time in the shape of public document not mere stray entries then only it would not be in consonance with the spirit of the provisions of Section 6(5) and its Explanation.

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On careful reading of the conclusions reached by

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the Hon'ble Apex Court, a simple formula that one can evolve is that when the succession has opened in a given case, if the

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daughters have born, they should be regarded as coparceners and any partition that has taken place excluding them will not bind the rights of such female coparceners.

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In the case on hand, Shambaiah being the person who is the husband of plaintiff No.1 and father of plaintiff Nos.2 to 4, ignoring the rights of plaintiff Nos.2 to 4, joined hands with his brothers namely, Puttarangaiah and Madaiah and selling the suit property by virtue of the sale deed dated 02.08.2004 could not have conveyed the rights of the plaintiffs in the suit property.

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Therefore, the sale in favour of defendant No.9 would not bind the rights of the plaintiffs and plaintiffs can very well make out a claim in respect of their shares in the suit property as independent coparceners not claiming under the father. Anyway, it is for the parties to adduce evidence to establish these factual aspects with cogent and convincing material on record.

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At the time of deciding the application under Order VII Rule 11 of Code of Civil Procedure, courts are not expected to hold mini trial and moreover, averments of the plaint alone

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must be taken into consideration to find out whether there exists a cause of action to maintain the suit.

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Lastly, Sri Syed Akbar Pasha, learned counsel would also press into service the question of limitation.

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Since the rights of the plaintiffs are not affected by the sale deed executed by Shambaiah, Puttarangiah and Madaiah in favour of defendant No.9 – M.S.Raghavendra on 02.08.2004, the suit filed in the year 2021 cannot be thrown out at the threshold on the ground of limitation having regard to the fact that in the case on hand it is a mixed question of law and facts.

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Thus, this Court is of the considered opinion that while maintaining the order of dismissal, the rights of defendant No.10 cannot be put to jeopardy and therefore, defendant No.10 is reserved with liberty to urge all available grounds in accordance with law in the trial.

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The observations made by the trial Court in the impugned order or by this Court in this revision petition is only for the disposal of the present revision petition and it shall not

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