Smt. Manjula Vs Sri. Vishweshwaraiah

THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 14.08.2019 PASSED IN OS NO.01/2016 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC., K.R. NAGARA., PARTLY DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.

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THIS RFA, COMING ON FOR AMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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3 -

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NC: 2025:KHC:30281 RFA No. 1909 of 2023

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HC-KAR

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CORAM: HON'BLE MRS. JUSTICE K.S. HEMALEKHA

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ORAL JUDGMENT

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Though the matter was listed for admission, with

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consent of both the parties it is taken up for final disposal.

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The point that falls for consideration in this

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appeal is:

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“Whether the awarding of notional share to the parties is justified?”

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Heard the learned counsel for the appellants

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and learned counsel for the respondents.

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The family pedigree is culled out as under:

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Somaiah(Original Propositus)

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Rajashekaraiah Vishweshwaraiah Manjula Meenakshi (Def.1) (Plaintiff) (Def.4) (Def.5)

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Mahadeva Jalendra (Def.2) (Def.3)

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4 - NC: 2025:KHC:30281 RFA No. 1909 of 2023

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HC-KAR

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The relationship between the parties is not in dispute. It is also not in dispute that the suit properties are the ancestral joint family properties of the original propositus Somaiah. The trial Court while awarding share to the plaintiff, relied upon the decision of the Apex Court

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in the case of Prakash and Others Vs. Phulavati and

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Others¹ (Prakash) which was the prevailing law at that time, and accordingly awarded 5/12^th share in the suit schedule properties.

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Aggrieved by the judgment and decree, defendant Nos.4 and 5 have preferred this Regular First Appeal, seeking modification of the share awarded, in light of the Hindu Succession (Amendment) Act, 2005 (‘Act’ for short), and the decision of the Apex Court in the case of Vineeta Sharma Vs. Rakesh Sharma² (Vineeta Sharma).

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The Apex Court in the case of Vineeta Sharma stated supra while interpreting the amended

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1 2015 (4) KCCR 3265

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2 (2020) 9 SCC 1

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5 - NC: 2025:KHC:30281 RFA No. 1909 of 2023

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HC-KAR

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Section 6 of the Act held that daughters are coparceners by birth and are entitled to equal shares in the ancestral joint family properties irrespective of whether their father was alive as on the date of the amendment. At para No.137 it is held as under:

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“137. Resultantly, we answer the reference as under:

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137.1. 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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137.2. 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 the 20^th day of December, 2004.

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137.3. 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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HC-KAR

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137.4. 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 1956 Act 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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137.5. In view of the rigor of provisions of the Explanation to Section 6(5) of the 1956 Act, 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 (sic effected) 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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7 - NC: 2025:KHC:30281 RFA No. 1909 of 2023

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HC-KAR

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In light of the authoritative pronouncement, the

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notional partition granted by the trial Court requires to be modified. Accordingly, the plaintiff, defendant Nos.4 and 5 are each entitled for 1/4^th share in the suit schedule properties. Defendant No.1’s branch is entitled for 1/4^th share.

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Issue No.2 framed by the trial Court which

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reads as under,

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“2. Whether the plaintiff proves that the registered Gift Deed dated 07.10.2015 executed by the 1^st defendant in favour of defendant Nos.2 and 3 are null and void and not binding on the plaintiff?”

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The trial Court while answering the said issue

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has held that the Gift Deed executed by defendant No.1 in favour of defendant Nos.2 and 3 in respect of item No.1 of the suit schedule properties, is not binding on the shares of the plaintiff, defendant No.4 and 5. However, this finding has not been reflected in the operative portion of the judgment. Therefore, the operative portion of the

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8 - NC: 2025:KHC:30281 RFA No. 1909 of 2023

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HC-KAR

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judgment and decree of the trial Court also requires modification and this Court pass the following:

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ORDER

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i. Regular First Appeal is allowed.

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ii. The judgment and decree dated 14.08.2019 passed in O.S.No.01/2016 on the file of the Senior Civil Judge and JMFC, K.R.Nagara stands modified holding that the plaintiff, defendant Nos.4 and 5 are each entitled for 1/4^th share and defendant No.1’s branch is entitled for 1/4^th share.

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iii. The Gift Deed executed by defendant No.1 in favour of defendant Nos.2 and 3 is not binding on the share of the plaintiff, defendant Nos.4 and 5 in respect of item No.1 of the suit schedule properties.

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HC-KAR

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iv. Registry to draw decree accordingly.

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Sd/-

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_____________________ JUSTICE K.S. HEMALEKHA

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AT List No.: 1 Sl No.: 6

Smt. Manjula v. Sri. Vishweshwaraiah

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Smt. Manjula v. Sri. Vishweshwaraiah

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