Smt M Rathnamma Vs M Suresha

SMT M RATHNAMMA DEAD BY HER LR’s SMT. K. SHUBHAMANGALA W/O. N. HEMANTH KUMAR AGED ABOUT 46 YEARS R/AT: DOOR NO.13, BSNL OFFICE SHAKTHI NAGAR PARK 4^TH CROSS, MYSORE – 570 011.

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AMENDED AS PER COURT ORDER DATED 05/04/2023 …APPELLANT

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(BY SMT. P C SUNITHA, ADVOCATE)

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Digitally signed by THEJAS KUMAR N Location: HIGH COURT OF KARNATAKA

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AND:

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M SURESHA DEAD BY HIS LR’s

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1(a) SMT. SARASWATHI W/O LATE M.SURESH MAJOR R/AT DOOR NO.7/406 NEAR RAMAKRISHNA ASHRAMA FUNCTION HALL MINCHU HERBAL BEAUTY PARLOUR KOLLEGAL – 571 440.

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AMENDED AS PER COURT ORDER DATED 04/02/2026

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M/S TOTAL ENVIRONMENTAL BUILDING SYSTEM PVT. LTD., IMAGE COMPASS NO.78, ITPL MAIN ROAD EPIP ZONE WHITE FIELD BENGALURU - 560 066. REP. BY SRI. C.B.BHARATH

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SMT. K JAYAMANGALA W/O. M SURESH AGED ABOUT 49 YEARS R/AT: DOOR NO.13, BSNL OFFICE SHAKTHI NAGAR PARK 4^TH CROSS, MYSORE – 570 011.

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AMENDED AS PER COURT ORDER DATED 05/01/2024

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…RESPONDENTS

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(BY SRI. G SRIDHAR, ADVOCATE FOR R2; R1(a)–NOTICE HELD SUFFICIENT V/O DATED 04-02-2026; R3-NOTICE HELD SUFFICIENT V/O DATED 04-12-2023)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 29.10.2014 PASSED IN OS.No.14/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, KOLLEGALA AND ETC.,

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

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CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR

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ORAL JUDGMENT

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The Regular First Appeal is filed by the plaintiff calling in question the judgment and decree dated 29.10.2014 passed in O.S.No.14/2010 by the Court of

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Senior Civil Judge and Judicial Magistrate First Class at Kollegala (hereinafter referred to as ‘Trial Court’ for short), whereby the suit filed for partition and separate possession came to be dismissed.

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

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It is the case of the plaintiff that the plaintiff is the sister of defendant No.1. One Mariswamchar and Siddamma are the father and mother of the plaintiff and defendant No.1. It is stated that the suit schedule properties are joint and ancestral properties of plaintiff and defendant No.1. The parents of the plaintiff and defendant No.1 have not executed any documents with respect to suit schedule property in favour of any persons.

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The marriage of plaintiff took placed in the year 1978. It is stated that the plaintiff has brought up the defendant No.1 and she gave her daughter to defendant No.1. The plaintiff has got constructed house by spending Rs.15,00,000/- out of her money. Defendant No.1 drove the plaintiff out of their house. The plaintiff asked defendant No.1 to give her share in the suit property but defendant No.1 has refused to effect partition in the suit property and has refused to give share to the plaintiff. Therefore, the plaintiff has filed suit for partition for claiming her ½ share in the suit property.

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Defendant No.1 has filed written statement and defendant No.2 has not filed written statement. The defendant No.1 has admitted the relationship between him and the plaintiff. The defendant No.1 has denied the contention that the plaintiff has brought up him since his childhood. It is contended by the defendant No.1 that earlier partition was effected on 31.03.2009. The defendant No.1 denied that item No.1 of the suit schedule

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property is joint family property. It is his contention that item No.1 property was purchased by his own earnings and the same is self acquired property. Hence, item No.1 of the suit schedule property is not partible property. Further, it is contended that there was earlier partition took place on 31.03.2009 during life time of their parents. Therefore, prays to dismiss the appeal.

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Based upon the pleadings of both the parties,

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the Trial Court has framed following issues:

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Whether the plaintiff proves that she is entitle to get ½ share in suit schedule property?

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Whether the defendant proves that there was arrangement in the family as per partition deed dated 31.03.2009 and plaintiff stopped to stands on a different foot as stated in para 11a of his written statement?

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Whether the defendant proves that 1^st item property is self acquired property of himself as stated in para 11b of written statement?

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Whether the suit is barred for non joinder of necessary parties?

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What decree or order?

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In order to prove the case of the plaintiff,

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she has examined herself as PW.1 and got marked the documents as Exs.P1 to P12. The defendant No.1 is examined as DW.1 and got marked the documents as Exs.D1 to D35.

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The Trial Court has dismissed the suit on

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the reasons that the item No.1 of the suit schedule property is the self acquired property of defendant No.1 as the plaintiff failed to prove the said item No.1 property is joint family and ancestral property. The Trial Court appreciated the evidence that defendant No.1 is diploma engineer and was doing goldsmith work. Therefore, defendant No.1 is running a shop under the name and style as Uday Cutting at Kollegal. Therefore, held that the item No.1 property is self acquired property of defendant No.1. The Trial Court has held that item Nos.2 and 4 are joint family and ancestral property but dismissed the suit on the

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reason that the plaintiff was borne before commencement of Hindu Succession Act i.e., 17.06.1956. Hence, she is not coparcener. Hence, by relying on the judgment of this Court in the case of Pushpalatha N.V. vs. V. Padma and others¹ (Pushpalatha’s case), had dismissed the suit by holding that the plaintiff is not coparcener. Thus, the Trial Court has dismissed the suit.

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Being aggrieved by the dismissal of the judgment and decree passed by the Trial Court, the plaintiff has preferred the present appeal by raising various grounds and learned counsel for the appellant/plaintiff in consonance with the grounds urged in the memorandum of appeal, has contended that though the plaintiff was born prior to 17.06.1956 i.e., before commencement of the Hindu Succession Act, 1956, but the plaintiff is recognized as coparcener

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and she is entitled equal ½ share along with

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1 2010(2) KCCR 1249 (DB)

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defendant No.1. Further, it is submitted that the Trial Court on which the judgment relied but that judgment was overruled by the Hon’ble Supreme Court. Therefore, the Trial Court has given erroneous finding. Further, it is submitted that as per the decision of the

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Hon’ble Supreme Court in the case of Vineeta Sharma vs. Rakesh Sharma & Ors.² (Vineeta Sharma’s case), even the daughters born prior to 17.06.1956 are entitled to equal share as that of son

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as they are coparceners by birth. Further, it is submitted that item No.1 suit schedule property is joint family and ancestral property of the plaintiff and defendant No.1. Hence, prays to decree the suit as prayed for.

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Heard the arguments from learned counsel for respondent No.2. The other defendants/ respondents are remained absent, in spite of service of notice them.

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2AIR 2020 SC 3717

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Upon hearing the arguments of learned counsel

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for the parties, the following points arise for consideration:

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1. Whether, under the facts and circumstances involved in the case, the plaintiff is entitled to equal share in all the suit schedule properties as that of her brother i.e., defendant No.1?

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2. Whether, under the facts and circumstances involved in the case, defendant No.1 proves that the item No.1 property is self acquired property?

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3. Whether, the judgment and decree passed by the Trial Court is requires interference from this Court?

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The relationship between the plaintiff and defendant No.1 is not disputed. During the pendency of the appeal, the plaintiff died. Therefore, her three daughters were brought on record in the place of deceased appellant/plaintiff. The defendant No.3 is daughter of the plaintiff and wife of the defendant No.1. Defendant No.1 has married the one of the daughter of the original plaintiff. The plaintiff is elder sister of defendant No.1.

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Defendant No.2 is a member of the family. Defendant No.2

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has not contested the suit.

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The Trial Court has dismissed the suit by holding that the plaintiff failed to prove the item No.1 of schedule property is joint family and ancestral property. Further, assigned the reasons that since the plaintiff was born prior 17.06.1956 i.e., before commencement of Hindu Succession Act. Therefore, the plaintiff is not entitled to share in the suit schedule property. Hence, by placing reliance on the judgment of this Court in Pushpalatha’s case stated supra, the suit of the plaintiff is dismissed.

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So far as considering the evidence regarding item No.1 of the suit schedule property is concerned, whether is it self acquired property of defendant No.1 or is it joint family property. Admittedly, item No.1 of the suit schedule property is not derived from parents of plaintiff and defendant No.1. The defendant No.1 is diploma holder

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and is running the shop under the name and style as ‘Udaya Cuttings’ at Kollegala by making gold ornaments. There is no evidence placed by the plaintiff that the item No.1 of the suit property is derived from the parents. It is the case of the plaintiff that she has brought up defendant No.1 and has taken him to her house and brought up and given her daughter in marriage with defendant No.1. Except the relationship as admitted by both the parties, the plaintiff has not adduced any evidence that how she acquired the item No.1 of the suit schedule property. Upon considering the evidence on record, it is stated that the plaintiff has earned money and acquired item No.1 of the suit schedule property. Whereas, the defendant No.1 placed on record the evidence that he was running a shop as ‘Uday Cuttings’ at Kollegala and he is diploma engineer and is doing goldsmith work. Further, the plaintiff has failed to prove that how she has derived amount from her husband to purchase item No.1 property in the name of defendant No.1. Therefore, all these evidences prove the

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fact that defendant No.1 is the owner of item No.1 of the suit schedule property and thus it is self acquired property of defendant No.1. Thus, item No.1 property is not liable for partition. In this regard, the Trial Court is correct in not granting decree for partition so far as item No.1 of the suit schedule property is concerned.

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Defendant No.1 has admitted that the item Nos.2, 3 and 4 of the suit schedule properties are joint family and ancestral properties as derived from the parents. Therefore, the plaintiff is entitled to ½ share in the item Nos.2, 3 and 4 of the suit schedule properties. In this regard, the Trial Court has correctly appreciated the evidence on record. Therefore, the plaintiff is entitled to ½ share in the item Nos.2, 3 and 4 of the suit schedule properties.

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Considering, whether the plaintiff is entitled to ½ share in the suit schedule property, it is defence of defendant No.1 that the plaintiff was born prior to

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17.06.1956 i.e., prior to commencement of Hindu Succession Act, 1956. Therefore, held that the plaintiff being daughter of Marisomachar and Siddamma is not entitled to share in the suit schedule property. The Trial Court has dismissed the suit of the plaintiff on the reason that since the plaintiff was born prior to 17.06.1956 i.e., before commencement of Hindu Succession Act, 1956. Hence, the plaintiff cannot be recognized as coparcener. Hence, not granted any share in favour of the plaintiff. The Trial Court has placed reliance on the judgment of this Court in Pushpalatha’s case stated supra.

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The above said judgment was overruled by the

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Hon’ble Supreme Court and remanded to this Court, this Court after remand has disposed of the appeal on 25.10.2018 in R.F.A. No.326/2004 between Pushpalatha N.V. and V.Padma and others. Therefore, the Trial Court has placed reliance on the overruled judgment as it is overruled by the Hon’ble Supreme Court. Therefore, in this

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context, the judgment and decree passed by the Trial Court is liable to be set aside.

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The question is whether the daughter born before 17.06.1956 i.e., before commencement of the Hindu Succession Act, 1956, entitled to equal share as that of son being recognized as coparcener. The Hon’ble Supreme Court in Vineeta Sharma’s case stated supra at paragraph 63, the Hon’ble Supreme Court recognized the daughter’s right to claim share in the property at paragraph 63, which reads as follows:

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“61. With respect to a Hindu who dies after the commencement of the 2005 Amendment Act, as provided in Section 6(3) his interest shall pass by testamentary or intestate succession and not by survivorship, and there is a deemed partition of the coparcenary property in order to ascertain the shares which would have been allotted to his heirs had there been a partition. The daughter is to be allotted the same share as a son; even surviving child of predeceased daughter or son are given a share in case the child has also died then the surviving child of such predeceased child of a predeceased son or predeceased daughter would be allotted the same share, had they been alive at the time of deemed partition. Thus, there is a seachange in substituted Section 6. In case of death of coparcener after 9-9-2005, succession is not by survivorship but in accordance with Section 6(3). The Explanation to Section 6(3) is the same as Explanation I

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to Section 6 as originally enacted. Section 6(4) makes a daughter liable in the same manner as that of a son. The daughter, granddaughter, or great-granddaughter, as the case may be, is equally bound to follow the pious obligation under the Hindu law to discharge any such debt. The proviso saves the right of the creditor with respect to the debt contracted before the commencement of the 2005 Amendment Act. The provisions contained in Section 6(4) also make it clear that provisions of Section 6 are not retrospective as the rights and liabilities are both from the commencement of the Amendment Act.

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62. The proviso to Section 6(1) and Section 6(5) saves any partition effected before 20-12-2004. However, Explanation to Section 6(5) recognises partition effected by execution of a deed of partition duly registered under the Registration Act, 1908 or by a decree of a court. Other forms of partition have not been recognised under the definition of “partition” in the Explanation.

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63. Considering the principle of coparcenary that a person is conferred the rights in the Mitakshara coparcenary by birth, similarly, the daughter has been recognised and treated as a coparcener, with equal rights and liabilities as of that of a son. The expression used in Section 6 is that she becomes coparcener in the same manner as a son. By adoption also, the status of coparcener can be conferred. The concept of uncodified Hindu law of unobstructed heritage has been given a concrete shape under the provisions of Sections 6(1)(a) and 6(1)(b). Coparcener right is by birth. Thus, it is not at all necessary that the father of the daughter should be living as on the date of the amendment, as she has not been conferred the rights of a coparcener by obstructed heritage. According to the Mitakshara coparcenary Hindu law, as administered which is recognised in Section 6(1), it is not necessary that there should be a living coparcener or father as on the date of the amendment to whom the daughter would succeed. The daughter would

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step into the coparcenary as that of a son by taking birth before or after the Act. However, daughter born before can claim these rights only with effect from the date of the amendment i.e. 9-9-2005 with saving of past transactions as provided in the proviso to Section 6(1) read with Section 6(5).

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64. The effect of the amendment is that a daughter is made coparcener, with effect from the date of amendment and she can claim partition also, which is a necessary concomitant of the coparcenary. Section 6(1) recognises a joint Hindu family governed by Mitakshara law. The coparcenary must exist on 9-9-2005 to enable the daughter of a coparcener to enjoy rights conferred on her. As the right is by birth and not by dint of inheritance, it is irrelevant that a coparcener whose daughter is conferred with the rights is alive or not. Conferral is not based on the death of a father or other coparcener. In case living coparcener dies after 9-92005, inheritance is not by survivorship but by intestate or testamentary succession as provided in substituted Section 6(3).

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In re: Effect of enlargement of daughter's rights

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65. Under the proviso to Section 6 before the amendment made in the year 2005 in case a coparcener died leaving behind female relative of Class I heir or a male descendant claiming through such Class I female heir, the daughter was one of them. Section 6, as substituted, presupposes the existence of coparcenary. It is only the case of the enlargement of the rights of the daughters. The rights of other relatives remain unaffected as prevailed in the proviso to Section 6 as it stood before amendment.

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66. As per the Mitakshara law, no coparcener has any fixed share. It keeps on fluctuating by birth or by death. It is the said principle of administration of Mitakshara coparcenary carried forward in statutory provisions of Section 6. Even if a coparcener had left behind female heir of Class I or a male claiming through such female Class I heir, there is no disruption of

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coparcenary by statutory fiction of partition. Fiction is only for ascertaining the share of a deceased coparcener, which would be allotted to him as and when actual partition takes place. The deemed fiction of partition is for that limited purpose. The classic Shastric Hindu law excluded the daughter from being coparcener, which injustice has now been done away with by amending the provisions in consonance with the spirit of the Constitution.

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67. There can be a sole surviving coparcener in a given case the property held by him is treated individual property till a son is born. In case there is a widow or daughter also, it would be treated as joint family property. If the son is adopted, he will become a coparcener. An adoption by a widow of a deceased coparcener related to the date of her husband's death, subject to saving the alienations made in the intermittent period.”

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Therefore, the coparcener’s right and title is

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recognized by her birth as there is no obstructed inheritance. Soon after the birth of the daughter, she enters into zone of coparcener right as that of son either before or after the Hindu Succession Act, 1956. If the daughter is born before 17.06.1956 and is denied the coparcener right and is not given an equal share as that of son that would make discrimination as is opposed to equality as per Article 14 of the Constitution of India. Therefore, a daughter irrespective of whether she was

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born either before or after 17.06.1956 is entitled to be recognized as coparcener and to claim an equal share in the coparcenary property in accordance with provisions of the Hindu Succession Act, 1956 as amended. Therefore, in this regard, the observation of the Trial Court is not correct and thus, it is liable to be set aside. Hence, the plaintiff is entitled to equal share as that of defendant No.1 so far as item Nos.2, 3 and 4 of the suit schedule properties but the plaintiff is not entitled to share in item No.1 of the suit schedule property as it is proved the said property is self acquired property of defendant No.1. Hence, I answer to point No.1 in the negative and point Nos.2 and 3 in the affirmative .

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Before parting with the judgment, this Court places on record its deep appreciation for the wellresearched and valuable assistance rendered by its Research Assistant, namely Smt. Pushpa R., and her valuable research helped the Court to take a correct

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conclusion. Accordingly, the Court places its appreciation on Research Assistant, namely Smt. Pushpa R., on record.

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20. In the result, I proceed to pass the following:

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ORDER

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The Regular First Appeal is allowed in part.

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The judgment and decree dated 29.10.2014 passed in O.S.No.14/2010 by the Court of Senior Civil Judge and Judicial Magistrate First Class at Kollegala, is hereby set aside .

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Suit is decreed in part.

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The decree is passed to the effect that the plaintiff is entitled to ½ share in item Nos.2, 3 and 4 of the suit schedule properties. The claim of plaintiff seeking partition over item No.1 of the suit schedule property is hereby declined.

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No order as to costs.

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Draw decree accordingly.

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Sd/(HANCHATE SANJEEVKUMAR) JUDGE

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KA

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List No.: 1 Sl No.: 30

Smt M Rathnamma v. M Suresha

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Smt M Rathnamma v. M Suresha

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