Smt Janaki Vs Paniraja Hebbar

&RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 02.11.2022 PASSED IN RA.NO.7/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE KUNDAPURA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 08.11.2016 PASSED IN O.S.NO.84/2009 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, KUNDAPUR.

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

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CORAM: HON'BLE MR. JUSTICE RAVI V HOSMANI

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NC: 2026:KHC:1639 RSA No. 309 of 2023

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HC-KAR

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ORAL JUDGMENT

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Challenging judgment and decree dated 02.11.2022 passed by Senior Civil Judge, Kundapura, in R.A.no.7/2017 and judgment and decree dated 08.11.2016 by Principal Civil Judge and JMFC, Kundapur, in O.S.no.84/2009, this second appeal is filed.

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Sri Shivarama Bhat O., learned counsel for appellants submitted that appeal was by plaintiffs in O.S.no.84/2009 filed for partition and separate possession of suit 'A' Schedule Properties . In plaint, it was stated that plaintiffs and defendants no.1 to 7 were governed by Hindu Mithakshara Law of inheritance and that 'A' Schedule Properties were ancestral joint family properties belonging to Narayana Hebbar - Propositus . It was stated that Narayana Hebbar through his wife - Seethamma had 4 sons and 3 daughters. In October 1986, Narayana Hebbar died. On his death, 'A' Schedule Properties held by Narayana Hebbar were required to be divided into 8 shares i.e., his wife and 4 sons and 3 daughters. It was stated that though they had demanded partition, defendants' brothers kept on postponing same.

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HC-KAR

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Ultimately, plaintiffs came to know that by a registered partition deed on 04.11.1986, properties were partitioned between Seethamma and his sons only leaving plaintiffs - daughters. Immediately on realising same, suit was filed.

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On appearance, written statement was filed admitting Narayana Hebbar as Propositus and properties held by him being ancestral joint family properties. It was however stated that partition had already taken place on 04.11.1986 under a registered deed of partition and same was prior to amendment to Section 6 of Hindu Succession Act, 1956 by Amended Act, 2005 and cut-off date mentioned in proviso to Section 6 i.e. 20.12.2004 and therefore, plaintiffs did not have any right. Thereafter, plaintiffs filed rejoinder.

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4. Based on pleadings, trial Court framed following: ISSUES

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1) Whether the plaintiffs proves that the suit 'A' schedule properties are joint family properties of plaintiffs and defendants No.1 to7?

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2) Whether the plaintiffs prove that the partition deed dated 04-11-986 is not binding upon them?

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3) Whether the plaintiffs prove that the alienation in respect of item No.9 to

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HC-KAR

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18 in favour of defendants No.8 to 16 as stated in para 4 of the plaint is not binding upon them?

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4) Whether the plaintiffs are entitled for 3/8^th share in the suit schedule properties?

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5) Whether the plaintiffs are entitled for 3/8^th share out of the income from the 'A' schedule properties?

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6) What order or decree?

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ADDITIONAL ISSUE FRAMED ON 08-08-2012:

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1) Whether the defendant No.10 proves the Will dated 05-06-2008 said to be executed by late Smt.Manjula Hebbar in favour of Mr.Chandrashekar Holla?

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On behalf of plaintiffs, plaintiff no.1 was examined as PW.1 and got marked Exhibits-P1 to P29. While on behalf of defendants, defendant no.10 along with 4 others were examined as DW.1 to DW.5, but no documents were marked.

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On consideration, trial Court answered issues no.1 to 5 and additional issue no.1 in negative and issue no.6 by dismissing suit. Aggrieved, plaintiffs' preferred R.A.no.7/2017 on various grounds. Based on which, first appellate Court framed following points for its consideration:

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HC-KAR

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1) Whether the plaintiff proved that they are in joint possession of A suit schedule properties?

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2) Whether the plaintiff proved that the partition deed and various sale deed right from 1987 and till 2008 effected amongst the defendant No.12 to 16 deed are not binding on them?

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3) Whether the plaintiff is entitle for the relief which they sought in the plaintiffs?

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4) Whether suit is hit by point of limitation?

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5) Whether impugned judgment of trial Court is required to be set aside or calls for any interference?

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6) If so what order?

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On consideration, it answered points no.1 to 3 and

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5 in negative; point no.4 in affirmative and point no.6 by dismissing appeal. Against concurrent findings, this second appeal was filed.

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It was submitted, trial Court dismissed suit mainly on two grounds. Firstly, Propositus -Narayana Hebbar had died prior to coming into force of Amendment to Section 6 of Hindu Succession Act in year 2005 and secondly on ground that there was prior partition under a registered deed which was saved by

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HC-KAR

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proviso to Section 6 of Hindu Succession Act. It was submitted, said findings were contrary to ratio laid down by Hon'ble Supreme Court in case of Vineeta Sharma v. Rakesh Sharma, reported in (2020) 9 SCC 1 . Even dismissal of appeal on ground of limitation was also contrary to law and therefore following substantial question of law arose for consideration.

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"Whether impugned judgments were contrary to Section 6 of Amended Hindu Succession Act and ratio laid down by Hon'ble Supreme Court in Vineeta Sharma 's case?"

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Heard learned counsel for appellants and perused impugned judgment and decree.

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From above, it is seen, there is no dispute between parties about relationship and nature of Suit Properties . Plaintiffs' suit for partition was opposed mainly on two grounds. One of them was prior partition. At para 60 of decision of Hon'ble Supreme Court in Vineeta Sharma 's case held:

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" 60. The amended provisions of Section 6(1) provide that on and from the commencement of the Amendment Act, the daughter is conferred

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the right. Section 6(1)(a) makes daughter by birth a coparcener <in her own right= and <in the same manner as the son=. Section 6(1)(a) contains the concept of the unobstructed heritage of Mitakshara coparcenary, which is by virtue of birth. Section 6(1)(b) confers the same rights in the coparcenary property <as she would have had if she had been a son=. The conferral of right is by birth, and the rights are given in the same manner with incidents of coparcenary as that of a son and she is treated as a coparcener in the same manner with the same rights as if she had been a son at the time of birth. Though the rights can be claimed, w.e.f. 9-9-2005, the provisions are of retroactive application; they confer benefits based on the antecedent event, and the Mitakshara coparcenary law shall be deemed to include a reference to a daughter as a coparcener. At the same time, the legislature has provided savings by adding a proviso that any disposition or alienation, if there be any testamentary disposition of the property or partition which has taken place before 2012-2004, the date on which the Bill was presented in the Rajya Sabha, shall not be invalidated."

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(emphasis supplied).

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Further, in para 134 it held:

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HC-KAR

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"134. The protection of rights of daughters as coparcener is envisaged in the substituted Section 6 of the 1956 Act recognises the partition brought about by a decree of a court or effected by a registered instrument. The partition so effected before 20-12-2004 is saved."

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Hon'ble Supreme Court clearly stated that right given to daughters as coparceners envisaged under amendment to Section 6 of Hindu Success Act, 1956, would not invalidate any partition brought about by a decree of Court or effected by a registered instrument, prior to 20.12.2004. In instant case, admittedly there is registered partition on 04.11.1986, which is prior to cut-off date. Both Courts have concurrently and rightly decided effect of said proviso. In view of above, no substantial question of law arises for consideration. Appeal is dismissed .

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Sd/(RAVI V HOSMANI) JUDGE

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GRD List No.: 1 Sl No.: 40

Smt Janaki v. Paniraja Hebbar

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Smt Janaki v. Paniraja Hebbar

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