Smt. Hemavathi Vs Sri Kantharaja

THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 29.08.2019 PASSED IN R.A.NO.34/2017 ON THE FILE OF THE 2^ND ADDITIONAL SENIOR CIVIL JUDGE AND JMFC., AT HASSAN, ALLOWING THE APPEAL AND

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NC: 2026:KHC:18206 RSA No. 868 of 2020

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HC-KAR

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SETTING ASIDE THE JUDGMENT AND DECREE DATED 21.01.2017 PASSED IN O.S.NO.630/2013 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE, AND JMFC., HASSAN. THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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

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ORAL JUDGMENT

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This Court admitted the appeal to consider the

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following substantial question of law :

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“ Whether the Appellate Court was justified in denying equal share and applying notional partition on the ground that the father died prior to Hindu Succession (Amendment) Act, 2005?”

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Heard the learned counsel appearing for the

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appellant and the learned counsel appearing for the respondents on the substantial question of law framed by this Court.

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The present Regular Second Appeal is directed

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against the judgment and decree dated 29.08.2019 passed by the 2^nd Additional Senior Civil Judge and JMFC., Hassan, whereby the appeal was allowed and the judgment and decree dated 21.01.2017 passed by the

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HC-KAR

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Additional Civil Judge, and JMFC., Hassan in O.S.No.630/2013, was set aside holding that the plaintiff is entitled for notional partition.

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The suit is one for partition and separate possession in respect of the suit schedule properties seeking 1/4^th share. The genealogy of the parties is culled out as under:

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The trial Court on consideration of the entire

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material on record held that the plaintiff is entitled for 1/4^th share in the suit schedule properties. In the appeal preferred by the defendants before the first Appellate Court, the first Appellate Court reversed the findings of the

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HC-KAR

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trial Court and held that the original propositus, i.e., the father of the plaintiff and defendants died prior to the coming into force of the Hindu Succession (Amendment) Act, 2005 and plaintiff being the daughter is entitled only to a share in notional partition and not equal as held by

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the trial Court.

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The law is well settled by the Apex Court in the

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case of Vineeta Sharma Vs. Rakesh Sharma & Ors.¹

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wherein it is held that,

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i. a daughter becomes coparcener by birth

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ii. The right is independent of the father being alive as on the date of amendment

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iii. The amendment confers equal rights on daughters

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in coparcenary property.

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In view of the settled proposition of law, the

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findings of the first Appellate Court that the plaintiff is not entitled to equal share on account of death of her father prior to 2005 is erroneous and contrary to law. The first

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1 (2020) 9 SCC 1

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HC-KAR

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Appellate Court, being the last fact finding Court, has failed to apply the correct legal principles and erroneously reduced the share of the plaintiff to 1/12^th . Accordingly, the substantial question of law is answered in favour of the appellant holding that the plaintiff is entitled to 1/4^th share in the suit schedule properties. Accordingly, this Court pass the following :

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ORDER

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(i) The Regular Second Appeal is allowed.

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(ii) The judgment and decree dated 29.08.2019 passed in R.A.No. 34/2017 by the 2^nd Additional Senior Civil Judge and JMFC., Hassan, is hereby set aside.

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(iii) Consequently, the judgment and decree passed by the trial Court in O.S.630/2013 granting 1/4^th share to the plaintiff stands restored and confirmed.

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