Sri D a Govardhan Vs Sri D a Narasimha Murthy

SRI. D A GOVARDHAN S/O LATE D R ASHWATHANARAYANA SETTY AGED ABOUT 65 YEARS R/AT GROUND FLOOR RAJ APARTMENTS 9/10, 3^RD TEMPLE STREET 15^TH CROSS MALLESHWARAM BANGALORE – 560 003.

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SMT D A VEENA D/O LATE D R ASHWATHNARAYAN SETTY

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HC-KAR

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AGED ABOUT 57 YEARS R/AT NO.45/1 SAMPIGE ROAD MALLESHWARAM

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BENGALURU – 560 003.

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SMT D A GEETHA D/O LATE D R ASHWATHNARAYANA SETTY AGED ABOUT 61 YEARS R/AT NO.7, I BLOCK IIND CROSS, LALBAGH SIDDAPURA, BANGALORE – 560 011.

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SMT. D A VENKATALAKSHMI D/O LATE D R ASHWATHNARAYAN SETTY AGED ABOUT 53 YEARS R/AT 57, GAYATHRI DEVI PARK EXTENSION G D PARK EXTENSION

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OPP STELLA MARIA SCHOOL VYALIKAVAL, MALLESHWARAM BENGALURU – 560 003.

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…RESPONDENTS

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(BY SRI. BHAT RAJARAM DEVARU, R1(VK NOT FILED); SRI. V MANJUNATHA FOR R2 & R4;

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SRI. KAPIL DIXIT, K.S.KARTHIK KIRAN, ADVOCATES FOR R3(B&C) (NOC);

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SMT. INDRA DHANUSH, ADVOCATE FOR R3(A))

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THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 30.09.2020 PASSED IN OS.No.1935/2016 ON THE FILE OF THE LX ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU AND ETC.,

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IN RFA NO. 1462/2022

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BETWEEN:

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SRI D A GOVARDHAN

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HC-KAR

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AGED ABOUT 65 YEARS, S/O LATE D R ASHWATHANARAYANA SETTY, RESIDING AT NO.45/1, SAMPIGE ROAD, MALLESHWARAM , BENGALURU – 560 003.

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...APPELLANT

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(BY SRI. BHAT RAJARAM DEVARU, ADVOCATE)

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AND:

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SRI. D.A.NARASIMHA MURTHY AGED ABOUT 53 YEARS, S/O LATE D.R.ASHWATHNARAYANA SETTY, RESIDING AT NO.45/1, SAMPIGE ROAD, MALLESHWARAM, BENGALURU – 560 003.

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SMT. YASHODAMMA AGED ABOUT 84 YEARS, W/O LATE D.R.ASHWATHANARAYAN SETTY,

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[SINCE DEAD REPRESENTED BY HER LRS CHILDREN, WHO ARE THE APPELLANT AND THE OTHER RESPONDENTS HEREIN]

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SMT D A VEENA AGED ABOUT 57 YEARS, D/O LATE D.R.ASHWATHNARAYANA SETTY, RESIDING AT NO.45/1, SAMPIGE ROAD, MALLESHWARAM, BENGALURU – 560 003.

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SMT D A GEETHA AGED ABOUT 61 YEARS, D/O LATE D.R.ASHWATHNARAYANA SETTY, RESIDING AT NO.7, 1^ST BLOCK, 2^ND CROSS, LALBAGH SIDDAPUR, BENGALURU – 560 003.

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SMT. D.A.VENKATALAKSHMI AGED ABOUT 53 YEARS, D/O LATE D.R.ASHWATHNARAYANA SETTY,

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HC-KAR

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RESIDING AT NO.57, GAYATHRIDEVI PARK EXTENSION, VYALIKAVAL, MALLESHWRAM, BENGALURU – 560 003.

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[DEFENDANT NO.4 IS PLACED EX-PARTE BEFORE THE TRIAL COURT IN O.S.NO.1935/2016]

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[THE RESPONDENT NO.2 DIED ON 06/09/2020, WHILE THE SUIT WAS RESERVED FOR JUDGMENT. THE APPELLANT AND OTHER RESPONDENTS WHO ARE HER CHILDREN ARE ALREADY ON RECORD AS PARTIES AND HENCE THE FILING OF A SEPARATE APPLICATION SO AS TO BRING THE LRs OF DECEASED R-2 IN THIS APPEAL DOES NOT ARISE. THE SUIT IS FOR PARTITION]

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...RESPONDENTS

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(R1-SERVED; SMT. INDRA DHANUSH, ADVOCATE FOR R3(A) (VK NOT FILED); SRI. KAPIL DIXIT, ADVOCATE FOR R3(B & C) (VK NOT FILED IN R/O R(C); SRI. MANJUNATHA V, ADVOCATE FOR R2 & R4 (R4-EX PARTE BEFORE TRIAL COURT AS PER CAUSE LIST)

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THIS RFA IS FILED UNDER SECTION 96 R/W ORDER 41 RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 30.09.2020 PASSED IN OS No.1935/2016 ON THE FILE OF THE LX ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU AND ETC.,

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THESE APPEALS, COMING ON FOR FURTHER ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

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HC-KAR

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ORAL JUDGMENT

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The Regular First Appeal No.210/2021 is filed by the plaintiff and Regular First Appeal No.1462/2022 is filed by the defendant No.2 calling in question the judgment and decree dated 30.09.2020 passed in O.S.No.1935/2016 by the Court of LX Addl. City Civil and Sessions Judge, Bengaluru City (hereinafter referred to as ‘Trial Court’ for short), whereby the suit filed for partition is decreed in part by granting 1/6^th share each to the plaintiff and defendant Nos.1 to 5 in the suit schedule ‘A’ and ‘B’ properties.

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For the sake of convenience and easy reference, the parties herein are referred to as per their rankings before the Trial Court.

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The plaintiff has filed suit for partition and separate possession in respect of suit schedule ‘A’ and ‘B’ properties claiming 1/3^rd share and 1/6^th share allocated to the father of the plaintiff by stating that suit schedule properties are joint family and ancestral properties.

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HC-KAR

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The defendants have filed written statement

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and admitting the relationship between the parties and also the suit properties are joint family and ancestral properties, prays to dismiss the suit.

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Based on the pleadings of the parties, the Trial

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Court has framed the following issues:

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Whether plaintiff proves that the suit schedule properties are the Hindu Undivided Joint Family properties of himself and defendants?

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Whether the plaintiff proves that he is in joint possession and enjoyment of schedule properties along with defendants as joint owner?

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Whether the suit is barred by limitation?

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Whether valuation made and the Court Fee paid in respect of the schedule properties are improper?

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Whether plaintiff is entitled for the relief sought for?

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What order or decree?

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HC-KAR

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In order to prove the case of the plaintiff, the plaintiff has examined himself as PW.1 and got marked the documents at Exs.P1 to P5. The defendants in support of their defense have examined as DW.1 to DW.3 and got marked Exs.D1 to D5.

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The Trial Court after appreciating the evidence on record has decreed the suit by granting equal share to the plaintiff and defendants. The Trial Court has assigned reasons that relationship between the parties is admitted

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and the suit properties are joint family and ancestral properties. Therefore, decreed the suit by granting 1/6^th share each to the plaintiff and defendant Nos.1 to 5 in the suit schedule ‘A’ and ‘B’ properties. Also, decreed that since the suit schedule ‘A’ and ‘B’ properties are nonagricultural properties, ordered to be divided by appointing Court Commissioner as per Order XXVI of CPC.

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Being aggrieved by the judgment and decree passed by the Trial Court, the plaintiff has preferred RFA

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HC-KAR

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No.210/2021 and defendant No.2 has preferred RFA No.1462/2022 by raising various grounds and learned counsel for the appellants submitted that the Trial Court has committed an error in awarding equal share to the daughters also. It is the submission made by the learned counsel for the appellants that since the plaintiff and defendant No.2 are sons, therefore along with their father allocated to 1/3^rd share each. Then the father’s 1/3^rd share is to be equally divided among sons and daughters. Therefore, claimed 1/3^rd share and 1/6^th share allocated to the father of plaintiff and defendant Nos.2 to 5. Therefore, learned counsel for the appellants have argued on the concept of notional partition by contending that the daughters were not coparceners. Further, it is submitted that the father D.R.Ashwathnarayana Setty died in the year 2001, then only succession opened and on that date, there is no amendment to the Hindu Succession Act recognizing daughters are also as coparceners. Therefore, the daughters cannot be considered as coparceners

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HC-KAR

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entitling equal share. Hence, prays that the daughters be given the share allocated to the father but not equal. Hence, submitted to make reallocation of the shares as prayed for.

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On the other hand, learned counsel for the respondents/defendants submitted that the daughters are also coparceners as recognized under the Hindu Succession Act, 1956 by amendment to the Hindu Succession Act. Therefore, for all the purposes, the daughters are coparceners and are entitled to equal share as that of son and accordingly, the trial Court granted decree. Therefore, justified the order passed by the trial Court. Hence, prays to dismiss the appeals.

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Upon hearing the arguments by learned counsel for the parties, the following points arise for consideration:

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i) Whether, under the facts and circumstances involved in the case, defendant Nos.3 to 5 are to be recognized as coparceners and thus they are

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HC-KAR

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entitled to equal share as that of plaintiff and defendant No.2?

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ii) Whether, under the facts and circumstances involved in the case, the concept of notional partition is applicable in the present case recognizing the plaintiff in the suit are the only coparceners and thus the defendant Nos.3 to 5 are not entitled equal share as that of plaintiff and defendant No.2?

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iii) Whether, the judgment and decree passed by the Trial Court requires interference by this Court?

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The relationship between the parties is not in dispute. Likewise suit schedule ‘A’ and ‘B’ properties are also joint family and ancestral properties are not in dispute. Though, in the plaint at paragraph 13, it is pleaded that the joint family was holding a property in Sheshadripuram, Bengaluru and it was sold by D.R.Ashwathnarayana Setty, the father, defendant No.1 – mother and defendant Nos.2, 3 and 4 and at that time, the plaintiff and defendant No.5 were minors. Therefore, claimed share in the sale proceeds out of sale of property situated in Sheshadripuram, Bengaluru.

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HC-KAR

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Though it is pleaded that when the plaintiff and defendant No.5 were minors at that time the father D.R.Ashwathnarayana Setty, defendant No.1-mother and defendant Nos.2 to 4 have sold the said property during the minority of the plaintiff and defendant No.5 and considering the fact that the said property was sold in the year 1993, the plaintiff ought to have filed suit for claiming of share of sale proceeds within a period of limitation period. According to the submission made by the plaintiff and defendant No.5, they have attained age of majority in the year 1995-96 but the suit is filed in the year 2016. Therefore, the claim of the plaintiff and defendant No.5 claiming share in sale proceeds of the property at Sheshadripuram, Bengaluru is barred by limitation. Furthermore, the property situated in Sheshadripuram, Bengaluru is not made any schedule in the plaint. Further, when father and mother were alive, they have sold the said property, which is found to be family and legal necessities. When joint family property is sold out, that can be challenged by the members who were claiming to be

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minors at that point of time. Admittedly, all sons and daughters were at young age and among them were minors.

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HC-KAR

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Therefore, to perform their marriages, for educational purposes and for giving financial assistance for doing business, it was found to be sold the property situated at Sheshadripuram, Bengaluru. Therefore, on these two counts, the plaintiff and defendant No.2 are barred to claim share over the sale proceeds of selling property at Sheshadripuram Bengaluru. Therefore, there is no merit found in the submission made by the counsel for the plaintiff and defendant No.2.

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The relationship between the parties is admitted. One D.R.Ashwathnarayana Setty is the original propositus, defendant No.1 is the mother, plaintiff and defendant Nos.2, to 5 are the children of D.R.Ashwathnarayana Setty and defendant No.1. Therefore, plaintiff and defendant No.2 are the sons and defendant Nos.3 to 5 are daughters. When the properties in question are joint family and ancestral properties and relationship is admitted, then the question is whether daughters are to be recognized as coparceners to claim share over the properties. There is amendment made to the Hindu Succession Act, 1956 to Section 6 of the Act by

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HC-KAR

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substituting new Section recognizing daughter is also coparcener and is entitled equal share as that of son. As per interpretation made to the Hindu Succession Act, 1956 by the Hon’ble Supreme Court in the catena of decisions, the said amendment relates back to having retroactive enforcement from the date of commencement of the Hindu Succession Act, 1956 i.e., from 17.06.1956. Therefore, in this legal position,

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the daughters are also recognized as coparceners and are entitled to equal share as that of sons and therefore, the position in law in this regard is now well settled in the decision of Hon’ble Supreme Court in the case of Vineeta

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Sharma vs. Rakesh Sharma and others.¹

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Therefore, defendant Nos.3, 4 and 5 being daughters are also having equal right in share as that of sons. Therefore, the trial Court is correct in granting equal 1/5^th share to each of the plaintiff and defendant Nos.1 to 5.

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Though as per the submission made by the learned counsel for the appellant, D.R.Ashwathnarayana Shetty died in the year 2001 and therefore succession opens

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1 (2020) 9 SCC 1

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HC-KAR

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only from the year 2001. Hence, the daughters are not comparers cannot be accepted for the reason that this legal position overruled in Vineetha Sharma’s case by partially modifying the earlier judgments in this regard. Therefore, as per the principle of law down by the Hon’ble Supreme Court in vineeta Sharma’s case , the sons and daughters are also having equal share over the suit schedule ‘A’ and ‘B’ properties.

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It is submitted that defendant No.1-mother died during the pendency of the appeal and plaintiff and defendant Nos.2 to 5 are the only legal heirs. Therefore, now the quantum of share is modified holding that plaintiff and defendant Nos.2 to 5 are entitled 1/5^th share in the suit schedule “A’ and ‘B’ properties.

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For the aforesaid reasons, since the daughters are also coparceners, they are entitled 1/5^th equal share as above discussed. Accordingly, I answer point No.1 in the affirmative and point Nos.2 & 3 are in the negative . Therefore, the appeals are found to be devoid of merits. Accordingly, I proceed the pass the following:

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HC-KAR

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ORDER

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The Regular First Appeals are dismissed .

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However, if schedule ‘B’ property is concerned, if the Final Decree Proceedings Court is found to be the schedule property is not physical divisible, then work out the remedy by appointing Court Commissioner and receive the valuation of the property and make

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division of the said property as per law.

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Sd/(HANCHATE SANJEEVKUMAR) JUDGE

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KA List No.: 1 Sl No.: 33

Sri D a Govardhan v. Sri D a Narasimha Murthy

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Sri D a Govardhan v. Sri D a Narasimha Murthy

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