Smt Shanthamma Vs Sri Shivakumar

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NC: 2025:KHC:9307 RSA No. 786 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 4^TH DAY OF MARCH, 2025 BEFORE

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THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 786 OF 2016 (PAR)

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BETWEEN:

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SMT. SHANTHAMMA D/O LATE KANEKALLAPPA, AGED ABOUT 49 YEARS, R/AT KALIDASA NAGARA, SIRA TOWN 572 137

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…APPELLANT

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(BY SRI. KALYAN R., ADVOCATE)

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AND:

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SRI. SHIVAKUMAR S/O LATE KANEKALLAPPA AGED ABOUT 42 YEARS.

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Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA

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SRI. SRINIVAS S/O. SHIVAKUMAR AGED ABOUT 15 YEARS, SINCE MINOR REPRESENTED BY HIS FATHER AND NATURAL GUARDIAN FIRST RESPONDENT

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RESPONDENT NOS.1 AND 2 ARE R/AT NEAR SOMESHWARA FAIR PRICE DEPOT, KALIDASA NAGARA, SIRA TOWN:572 137

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NC: 2025:KHC:9307 RSA No. 786 of 2016

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SMT. THIMMAKKA D/O LATE KANEKALLAPPA, W/O GURUSHANTHAPPA, AGED ABOUT 51 YEARS, R/AT SHIVAJINAGAR, SIRA TOWN:572 137

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H.N. NATARAJU S/O H.N. KRISHNACHARI AGED ABOUT 52 YEARS R/AT GANDHINAGARA EXTENSION, SIRA TOWN 572 137

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VEERABHADRAPPA K., S/O KARIYAPPA, AGED ABOUT 51 YEARS, NO.596/568/535 KALIDASA NAGAR EXTENSION, SIRA TOWN 572 137.

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KITTAPPA S/O SEETHANNA AGED ABOUT 46 YEARS, NO.596/568/535 KALIDASA NAGAR EXTENSION, SIRA TOWN 572 137.

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RESPONDENT NO.5 AND 6 ARE R/AT DIFFERENT PORTION OF HOUSE NO.596/568/535 KALIDASA NAGAR EXTENSION, SIRA TOWN 572 137.

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…RESPONDENTS

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(BY SRI. V.B. SIDDARAMAIAH, ADVOCATE FOR R1-R3 AND PROPOSED IMPLEADING R7;

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NC: 2025:KHC:9307 RSA No. 786 of 2016

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R2 IS MINOR REPRESENTED BY R1; SRI. B.K. CHANDRASHEKAR, ADVOCATE FOR R4; NOTICE TO R5 & R6 D/W, V/O/D 05.09.2024)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 29.02.2016 PASSED IN R.A NO.8/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., SIRA, ALLOWING THE APPEAL AND DISMISSING THE JUDGMENT AND DECREE DATED 21.09.2012 PASSED IN O.S NO.245/2009 ON THE FILE OF THE CIVIL JUDGE AND JMFC., SIRA.

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THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI

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ORAL JUDGMENT

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This Regular Second Appeal is filed by the appellant challenging the judgment and decree dated 29.02.2016, passed in R.A.No.8/2013 by the learned Senior Civil Judge and JMFC, Sira.

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The brief facts leading rise to the filing of this appeal are as follows:

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NC: 2025:KHC:9307 RSA No. 786 of 2016

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For convenience, parties are referred to, based on their ranking before the trial Court. The appellant was the plaintiff, and the respondents were the defendants.

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The plaintiff filed a suit against the defendants

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for a partition and separate possession, claiming 1/3^rd share in the suit schedule properties and to declare the registered sale deed dated 06.12.2006, executed by defendant No.1 in favour of defendant No.4 in respect of item No.1 of the suit schedule properties is not binding on the plaintiff.

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It is the case of the plaintiff that one Kanekallappa was the original propositus. The plaintiff, defendant No.1, and defendant No.3 are the children of Kanekallappa.

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The suit schedule properties are the ancestral and Hindu joint family properties of the plaintiff and defendant Nos.1 to 3, and they are in constructive possession of the suit schedule properties. After the demise of Kanekallappa, defendant No.1 was managing the suit schedule properties

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and revenue records stands in his name. Defendant No.1, taking undue advantage of Katha in his name, had illegally sold item No.1 of the suit schedule properties, in favour of defendant No.4. When the plaintiff came to know about the illegal transactions, he questioned defendant No.1 and demanded a partition in the suit schedule properties by metes and bounds. Defendant No.1 denied to effect a partition. Hence, a cause of action arises for the plaintiff to file a suit for partition and separate possession. Accordingly, he prays to grant 1/3^rd share in the suit schedule properties.

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Defendant Nos.1 to 3 filed a common written

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statement contending that the plaintiff has no share in the suit schedule properties. It is contended that the suit is bad for non joinder of necessary properties and mis joinder of parties. Defendant Nos.5 and 6 are the tenants, and defendant Nos.5 and 6 are not necessary parties. Hence, prays to dismiss the suit against defendant Nos.1 to 3.

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Defendant No.4 filed a written statement

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contending that he is the bonafide purchaser for value without notice from defendant No.1 regarding item Nos.1 of the suit schedule property. Hence, prays to dismiss the suit against defendant No.4.

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The Trial Court, based on the pleadings of the parties, framed the following issues.

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1. Whether the plaintiff proves that she is the member of Hindu undivided joint family of defendants and she is in joint possession of the suit schedule property?

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2. Whether the plaintiff proves that suit schedule properties are the ancestral and joint family properties of the plaintiff and defendants?

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3. Whether the plaintiff proves that the sale deed executed by 1^st defendant in favour of 4^th defendant on 6-12-2006 in respect of item No.1 of the suit schedule property is not for the legal necessities and family benefits?

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4. Whether the plaintiff is entitled for partition and separate possession of 1/3^rd share in the suit schedule property?

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5.What Order or Decree?

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The plaintiff, to substantiate her case, examined herself as PW1, examined one witness as PW2 and marked 14 documents as Ex.P1 to Ex.P14. On the other hand, defendant No.4 was examined as DW1, and marked 6 documents as Ex.D1 to Ex.D6

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The trial Court, after recording the evidence, hearing on both the sides, and on assessment of the oral and documentary evidence of the parties, answered issue Nos.1 to 4 in the affirmative and issue No.5 as per the final order.

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The suit of the plaintiff was decreed with cost. It is declared that the plaintiff is entitled to 1/3^rd share over the suit properties. Defendant No.3 is also entitled to 1/3^rd share over the suit schedule properties. The defendant No.1 is entitled to a 1/3^rd share including 20 guntas of land sold by him in favour of defendant No.4 through sale deed dated 06.12.2006.

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Defendant Nos.1 to 3, aggrieved by the judgment and preliminary decree dated 21.09.2012 passed in O.S.No.245/2009, preferred an appeal in

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NC: 2025:KHC:9307 RSA No. 786 of 2016

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R.A.No.8/2013 on the file of Senior Civil Judge and JMFC,

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Sira.

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The First Appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration.

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1. Whether the judgment and decree passed by the trial court is erroneous, illegal and opposed to law?

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2. Whether the judgment and decree calls for my interference?

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The First Appellate Court, on re-assessment of oral, and documentary evidence, answered point Nos.1 and 2 in the affirmative, consequently allowed the appeal vide judgment dated 29.02.2016 and set aside the judgment and decree passed in O.S.No.245/2009, and consequently, dismissed the suit of the plaintiff. The plaintiff, aggrieved by the judgment and decree passed in R.A.No.8/2013, filed this Regular Second Appeal.

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Heard the arguments of the learned counsel for

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the plaintiff, and learned counsel for defendant Nos.1 to 3.

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Learned counsel for the plaintiff submits that, the First Appellate Court committed an error in dismissing plaintiff's suit on the ground that the propositus was not alive as on the date of filing the suit.

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He submits that the First Appellate Court placing the reliance on the judgment of the Hon'ble Apex Court in the case of Prakash and others V/s Phulavati and others reported in 2015 (4) KCCR 3265 (SC) has dismissed the suit. He further submits that the Hon'ble Apex Court, in the case of Vinitha Sharma V/s Rakesh Sharma reported in AIR 2020 SC 3717 , has partly overruled the judgment of Prakash and others V/s Phulavati and others (Supra).

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Hence, he submits that there is no need for the father to be alive to decide whether the rights under Section 6 of the Hindu Succession Act, 1956 (Amended Act, 2005) are applicable to the living daughters as on the date of amendment to Section 6 of the Hindu Succession Act, 1956. He further submits that, the First Appellate Court has not properly appreciated the evidence placed on

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record by the parties. Hence, he submits that the matter requires reconsideration by the First Appellate Court as the

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First Appellate Court, being the final fact finding Court, is required to re-appreciate the entire evidence on record as per Order 41 rule 31 of CPC. Hence, he submits that the appeal may be allowed, and the matter may be remitted to the first appellate Court for fresh consideration.

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Per contra, learned counsel for the respondent supported the impugned judgment, and he submits that as on the date of disposal of the appeal by the First Appellate

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Court, the prevailing law in the case of Prakash and others V/s Phulavati and others (Supra) . The First Appellate Court is justified in placing the reliance on the judgment of the Hon'ble Apex Court in the case of

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Prakash and others V/s Phulavati and others (Supra). Hence, he submits that the impugned judgment passed by the First appellate Court is just and proper, and does not call for any interference. Hence, on these grounds, he prays to dismiss the appeal.

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This Court admitted the appeal on 20.07.2016

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and considered the following Substantial Questions of Law:

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i) Whether the lower appellate Court justified in reversing the judgment and decree of the trial Court in view of the provision of section 6 of Hindu Succession Act, 1956 (Amended Act, 2005) and law declared by the Hindu Succession Act in the case of Prakash and Others vs Phulavati and others reported in (2016) 2 SCC 36?

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ii) Whether the lower appellate Court justified in reversing the judgment and decree of the trial Court without contesting the application under Order 41 Rule 27 of CPC in view of the dictum of the Hindu Succession Act in the case of Jatinder Singh & Anr. (Minor through mother) -vs- Mehar Singh & Ors with Balbir Singh & Anr. -vs- Jatinder Singh & Anr., reported in AIR 2009 SC 354 ?

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iii) Whether the lower appellate Court justified in reversing the judgment and decree of the trial Court in the facts and circumstances of the present case?

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Substantial Questions of law Nos.1 to 3:

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Substantial Questions of law Nos.1 to 3 are interlinked, and they are taken for common discussion, to avoid the repetition of facts.

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There is no dispute regarding the relationship

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between the parties to the suit and also the nature of suit schedule properties.

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The plaintiff and defendants Nos.1 to 3 are the members of a joint hindu family, and no partition was/is effected between the plaintiff and defendant Nos.1 to 3.

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The plaintiff, to substantiate her case,

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examined herself as PW1. She reiterated the plaint averments in the examination-in-chief, and to prove that the suit schedule properties are the ancestral properties of

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the plaintiff and defendant Nos.1 to 3, produced the documents marked at Ex.P1 to Ex.P14.

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Ex.P1 is the RTC extract of land bearing Sy.No.216/1, stands in the name of defendant No.1. Ex.P2 is the RTC extract of land bearing Sy.No.106/2, stands in the name of defendant No.1

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Ex.P3 is the property tax register extract of Property No.535, stands in the name of defendant No.1

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Ex.P4 is the property tax register extract of Property.No.535, stands in the name of defendant No.1.

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Ex.P5 is the certified copy of the mutation register extract, which discloses that property was transferred from defendant No.1 to defendant no.4.

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Ex.P6 is the certified copy of the registered sale deed dated 06.12.2006 which discloses that defendant No.1 sold the property bearing Sy.No.216/1, measuring 20 guntas in favour of defendant No.4 for valuable consideration.

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Ex.P7 is the office copy of the legal notice issued by the plaintiff to defendant Nos.1, 3 and 4 calling upon defendant Nos.1,3 and 4 to effect a partition in the suit schedule properties.

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Ex.P8 is the reply to the legal notice, issued by defendant No.1 to the learned counsel for the plaintiff dated 27.08.2009.

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Ex.P9 to Ex.P11 are the postal acknowledgments which disclose that the notice was duly served to defendant Nos.1 to 3 and 4.

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Ex.P12 to Ex.P14 are the postal receipts. Further, the plaintiff also examined one witness as PW2 who has

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deposed that the suit schedule properties are the ancestral properties of the plaintiff and defendant Nos.1 to 3 and they are the members of a hindu joint family, and no partition is effected. Nothing has been elicited from the mouths of these witnesses, to disbelieve the evidence of PW1 and PW2.

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On the other hand D1 to D3 did not enter the witness box. Defendant No.4 was examined as DW1. He has deposed that, defendant No.4, after verifying the records, has purchased the suit item No.1 of the suit schedule properties from defendant No.1 for valuable consideration, and defendant No.4 is the bonafide purchaser for value.

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From the overall perusal of the entire evidence on record, it clearly discloses that suit schedule properties are the ancestral properties of the plaintiffs and defendant Nos.1 to 3, and they are the members of a hindu joint family, and no partition is effected between the plaintiff and defendant Nos.1 to 3. The trial Court, considering the entire material on record, decreed the suit of the plaintiff

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with cost and declared that the plaintiff, defendant Nos.1, 3 are entitled to 1/3^rd share, including 20 guntas of land sold by defendant No.1 in favour of defendant No.4.

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The First Appellate Court reversed the judgment

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and preliminary decree passed by the trial Court on the ground that the father was not alive as on the date of amendment to Section 6 of the Hindu Succession Act, 1956 (Amended Act, 2005) and by placing reliance on the judgment passed by the Hon'ble Apex Court in the case of Prakash and others V/s Phulavati and others, allowed the appeal and dismiss the suit.

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The Hon'ble Apex Court in the case of Vinitha Sharma Vs Rakesh Sharma and others reported in AIR 2020 SC 3717, has partly overruled the ratio laid down in the case of Prakash and others V/s Phulavati and others (Supra), and held in para 14 (c) and para 17, as follows:

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" The decision in Prakash v. Phulavati cannot be said to be laying down the law correctly. The concept of living daughter of a

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living coparcener is adding to the text of provisions of section 6, whereas no word can be added or read into a statute by the Court. It can only repair errors or supply omissions. It is for the legislature to provide such a concept of a daughter of a living coparcener. Thus, it was argued that section 6 includes all living daughters of coparceners, irrespective of whether such coparceners are deceased or alive at the commencement of the 2005 Amendment".

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"When a daughter, who is claiming and demanding a share in the coparcenary, is alive, there is no difficulty of interpretation, irrespective of the fact whether a coparcener has died before the commencement of the Amendment Act. The coparcener and the daughter do not need to be alive as on the date of the amendment. If it is to be interpreted that coparcener and daughter both should be alive, it will defeat the very purpose and objective of the amended provisions. Earlier, the provisions of Hindu law treated a son as a coparcener by birth; now, daughters are given the same rights since birth. In case partition has been effected by metes and bounds and is adequately proved,

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then the daughter of coparcenary cannot seek partition of already divided property".

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The Hon'ble Apex Court held that the provisions contained in the substitute of section 6 of the Hindu Succession Act 1956 confers the status of a co-parcener on the daughters born before or after the amendment, in the same manner as that of a son and further held that the right of the co -parcener is vests by birth, and it is not necessary, the father of the co-parcener to be alive as on 09.09.2005.

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In view of the Law laid down by the Hon'ble Apex Court in the case of Vinitha Sharma and Rakesh Sharma and others (Supra), the matter requires reconsideration by the First Appellate Court.

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Though, this Court has framed substantial question law No.2, I have perused the records of the First Appellate Court. I do not find any application filed under Order 41 Rule 27 of CPC. In view of the same, substantial question law No.2 does not arise for consideration. From

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the perusal of the judgment passed by the first appellate Court, the first appellate Court has not properly appreciated the entire evidence placed on record. Further, defendant Nos.1 to 3 did not enter into the witness box and denied the plaintiff's claim. The judgment and decree passed by the First Appellate Court is contrary to Order 41 Rule 31 of CPC.

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As rightly pointed out by the learned counsel for the plaintiff, the matter requires re-consideration by the first appellate Court.

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In view of the above discussions, I answer substantial question law No.1 in the negative.

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Substantial Question of law No.2 does not arise for consideration.

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Substantial question of law No.3 in the negative.

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Accordingly, I proceed to pass the following

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order:

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ORDER

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i. The appeal is allowed.

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ii. The Judgment and decree passed in R.A.No.8/2013 dated 29.02.2016, by the learned Senior Civil Judge and JMFC, Sira is set aside.

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iii. The appeal is restored to its original position.

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iv. The first appellate Court is directed to consider the law laid down by the Hon'ble Apex Court in the case of Vinitha Sharma v/s Rakesh Sharma and others reported in AIR 2020 SCC 3717 and pass an appropriate judgment in accordance with law, after considering the entire evidence placed on record.

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v. The First Appellate Court shall dispose of the appeal independently without being influenced by any observation made in this judgment.

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vi. All the contentions of the parties are kept open.

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