The High Court
Case Details
- 1 - NC: 2025:KHC:11516 RSA No. 1057 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF MARCH, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 1057 OF 2016 (DEC) BETWEEN: 1. SRI T R BASAVARAJ S/O SRI RAMANNA, AGED ABOUT 57 YEARS, AGRICULTURIST R/AT TUDIPET, TARIKERE AT AND POST, TARIKERE TALUK 2. SMT LEELAVATHI D/O SRI RAMANNA W/O SRI SHIVAMURTHY AGED ABOUT 50 YEARS, 3. SMT VANAJAKSHI D/O SRI RAMANNA W/O SRI H N RAVIKUMAR AGED ABOUT 42 YEARS, APPELLANTS NO.2 AND 3 ARE R/AT GAJANUR AT AND POST, KASABA HOBLI, SHIMOGA TALUK AND DISTRICT 4. SMT RATHNAMMA W/O LATE T S RAMU AGED ABOUT 50 YEARS, Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:11516 RSA No. 1057 of 2016 5. SRI UMESHA S/O LATE T S RAMU AGED ABOUT 32 YEARS, 6. SRI HARISHA S/O LATE T S RAMU AGED ABOUT 29 YEARS, APPELLANTS NO. 4 TO 6 ARE R/AT PAMPAKAVI ROAD, TARIKERE AND POST, TARIKERE TALUK (BY SMT. ANUSHA ALUNDI, ADVOCATE SRI. A MADHUSUDHANA RAO, ADVOCATE) …APPELLANTS AND: 1. SMT RADHAMMA
Legal Reasoning
W/O SRI T R NAGARAJA AGED ABOUT 46 YEARS, R/AT TUDIPET, TARIKERE AT AND POST, TARIKERE TALUK (BY SRI. B.S. SACHIN, ADVOCATE) …RESPONDENT THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 03.03.2016 PASSED IN RA.NO.147/2013 ON THE FILE OF THE Ist ADDL. DISTRICT JUDGE, CHIKKAMAGALURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 24.10.2013 PASSED IN OS.NO.41/2004 ON THE FILE OF THE SENIOR CIVIL JUDGE AND PRL. JMFC., TARIKERE. - 3 - NC: 2025:KHC:11516 RSA No. 1057 of 2016 THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI ORAL JUDGMENT This Regular Second Appeal is filed by the appellants, challenging the judgment and decree dated 03.03.2016, passed in R.A.No.147/2013 by the learned I Additional District Judge, Chikkamagaluru, confirming the judgment and preliminary decree passed in O.S.No.41/2004 dated 24.10.2013 passed by the learned Senior Civil Judge and Principal JMFC, Tarikere. 2. For convenience, parties are referred to based on their rankings before the trial Court. The appellants were the defendants and the respondent was the plaintiff. 3. The brief facts leading rise to the filing of this appeal are as follows: The plaintiff filed a suit against the defendants for partition and separate possession. It is the case of the - 4 - NC: 2025:KHC:11516 RSA No. 1057 of 2016 plaintiff that the suit schedule properties are the ancestral properties, and the plaintiff's husband and defendant Nos.1 to 3 are the members of a Hindu Undivided Joint Family, and no partition was/is effected between the plaintiff's husband and defendant Nos.1 to 3. It is contended that after the legal death of the plaintiff's husband, to defraud the share of the plaintiff, D1 to D3 sold the item No.7 of suit property to D4 through a registered sale deed dated 31.08.1998. Therefore, the plaintiff demanded partition and separate possession, but the defendants refused to effect the partition. Hence, a cause of action arises for the plaintiff to file a suit for partition and separate possession. Accordingly, prays to decree the suit. 4. Defendant No.1 filed a written statement. Defendant Nos.2 and 3 filed a memo for adopting the written statement filed by defendant No.1. 5. It is denied that the sale of item No.7 was without legal necessity. It is contended that defendant Nos.1 to 3 have sold item No.7 to defendant No.4 for - 5 - NC: 2025:KHC:11516 RSA No. 1057 of 2016 family and legal necessity and for the performance of marriage of defendant No.3. It is contended that the plaintiff's suit is barred by limitation. It is further contended when the plaintiff's husband left the village, the plaintiff took half portion of the yield in item Nos.1 to 2 of the suit properties and is residing in a portion of items No.3 to 6 of suit properties. It is further contended that the plaintiff is residing in one portion and has rented out another portion of items No.3 to 6 from which she has received a sum of Rs.5,000/- as an advance and receiving the monthly rent of Rs.650/-. It is contended, that defendant No.1 had called the plaintiff to partition the suit properties in the presence of Panchayatdars. The plaintiff refused and filed the present suit. Hence, pray to dismiss the suit against defendant Nos.1 to 3. 6. Defendant No.4 filed a written statement contending that he is the bonafide purchaser of item No.7 of the suit schedule properties, and purchased the said property for valuable consideration of Rs.69,990/-. The said land was sold for family, and the legal necessity, for - 6 - NC: 2025:KHC:11516 RSA No. 1057 of 2016 the performance of the marriage of defendant No.3. Defendant No.1 had received Rs.45,000/- on 20.07.1998 towards advance sale consideration, and after receiving the entire balance sale consideration amount, executed the registered sale deed on 31.08.1998. It is contended that defendant No.4 is the bonafide purchaser of the said property. Hence, he prays to dismiss the suit against the defendant No.4, insofar as item No.7 of suit property is concerned. 7. The trial Court, based on the pleadings of the parties, framed the following issues and additional issues. 1) Whether the plaintiff proves that her husband T.R. Nagaraj, son of late Ramanna is presumed to be dead? 2) Whether the plaintiff proves that she is entitled for partition and separate possession of her 5/12th share in the suit schedule properties by metes and bounds? 3) Whether the plaintiff proves that the registered sale deed dated 31.8.98 in respect of 7th item of the suit schedule property is not binding on her share? 4) Whether the defendants prove that the 7th item of the suit schedule property is sold to - 7 - NC: 2025:KHC:11516 RSA No. 1057 of 2016 meet the marriage expenses of the 3rd defendant and other family necessity? 5) Whether the defendants prove that the plaintiff is not entitled for any share in item No.7 of the suit schedule property? 6) Whether the plaintiff is entitled for mesne profits? 7) To what decree or order the parties are entitled to? Additional Issues: 1) Whether the defendant proves that the suit of the plaintiff is barred by law of limitation? 2) Whether the D2 and D3 prove that they being the coparceners of the suit properties are entitled for their 1/4th share each in the suit schedule properties? 8. The plaintiff, to substantiate her case, examined herself as PW1, examined one witness as PW2 and marked 16 documents as Ex.P1 to Ex.P16. On the other hand, defendant No.1 examined himself as DW1, the legal representative of deceased defendant No.4 was examined as DW2 , Defendant No.3 was examined as DW3 and no documents were tendered in the evidence on behalf of the defendants. - 8 - NC: 2025:KHC:11516 RSA No. 1057 of 2016 9. The trial Court, after recording the evidence, hearing on both sides and the assessment of both verbal and documentary evidence, answered issue Nos.1 to 3,5 in the affirmative, issue Nos.4, 6 and additional issues No.1 and 2 in the negative. Consequently, it decreed the suit of the plaintiff vide judgment dated 24.10.2013 and, it is declared that the plaintiff is entitled to her 5/12th share in all the suit schedule properties by metes and bounds, the prayer of mense profits was dismissed. It is declared that the registered sale deed dated 31.08.1998 is not binding on the plaintiff's share and the share of D1 to D3 regarding item No.7 shall be allotted to D4. The defendants aggrieved by the judgment and preliminary decree passed in OS.No.41/2004 preferred appeal in R.A.No.147/2013 on the file of the I Additional District Judge, Chikkamagaluru. 10. The first appellate Court, after hearing the learned counsel for the parties, framed the following points for consideration. - 9 - NC: 2025:KHC:11516 RSA No. 1057 of 2016 1) Whether the learned trial judge erred in interpreting the Hindu Succession Act as the father of the defendants had died leaving behind defendant No. 1 to 3 and husband of the plaintiff as his legal heirs? 2) Whether the learned trial judge erred in granting 5/12th share to the plaintiff? 3) Whether the learned trial judge erred in granting only 1/12th share to defendant No.2 and 3? 4) Whether the judgment of the trial court calls for interference by this court? 5) What order? 11. The first appellate Court on re-assessing the verbal and documentary evidence, dismissed the appeal by confirming the judgment and preliminary decree passed by the trial Court, vide judgment dated 03.03.2016. The defendants aggrieved by the impugned judgments and decrees, filed this Regular Second Appeal. 12. Heard the arguments of the learned counsel for the defendants and the plaintiff. 13. Learned counsel for the defendants submits that the defendants will restrict their appeal only to the - 10 - NC: 2025:KHC:11516 RSA No. 1057 of 2016 extent of the quantum of share. She submits that defendant Nos.2 and 3 are the daughters and they are entitled to the equal share with that of the sons, i.e. the plaintiff's husband and defendant No.1 14. The Court below could have awarded 1/4th share each, on the contrary, awarded 5/12th share to the sons and 1/12th share to the daughters, in the suit schedule properties. Further, to buttress her arguments, she placed the reliance of judgment of Hon'ble Apex Court in the case of Vinitha Sharma V/s Rakesh Sharma and others, reported in AIR 2020 SC 3717. Hence, she submits that the judgment passed by the trial Court be modified, and it shall be declared that the plaintiff and defendant Nos.1 to 3 are entitled to 1/4th share each, in the suit properties. Hence, on these grounds, she prays to allow the appeal. 15. Per contra, learned counsel for the plaintiff supported the impugned judgment, and he contends that as of the date of filing of the suit, the Hindu Succession Act was not amended. Hence, the daughters are not - 11 - NC: 2025:KHC:11516 RSA No. 1057 of 2016 entitled to equal share. The Trial Court has rightly effected a notional partition and granted a 5/12th share to the sons. Hence, on these grounds, he prays to dismiss the appeal. 16. This Court admitted the appeal to consider the following Substantial Question of Law. Whether the findings of the Courts below that defendant Nos. 2 and 3 are entitled for share notionally in the ancestral property is perverse, palpably erroneous and contrary to the law laid down by the full bench of the Apex Court in the case of Vineeta Sharma v. Rakesh Sharma reported in (2019) 6 SCC 164? 17. The plaintiff, to substantiate her case, examined herself as PW1, and examined one witness as PW2. PW1 deposed that one Ramanna was the original propositus and he has 4 children, T.R. Nagaraj, Plaintiff's husband, T.R.Basavaraju, and defendant Nos. 2 and 3 i.e., the daughters of Ramanna. The Suit schedule properties are the ancestral properties, and no partition is effected between the plaintiff and the defendants. The plaintiff demanded partition and separate possession but the defendants refused to effect the partition. - 12 - NC: 2025:KHC:11516 RSA No. 1057 of 2016 18. The plaintiff, to prove that the suit schedule properties are the ancestral properties produced and marked the documents. Ex.P1 is the certified copy of the genealogical tree, which discloses that Ramanna was the original propositus. The plaintiff's husband, defendant Nos.1 to 3 are the children of Ramanna. Ex.P2 and Ex.P3 are the certified copies of the RTC extract regarding the suit schedule properties. Ex.P4 to Ex.P7 are the certified copies of the assessment register extracts. Ex.P8 to Ex.P9 are the certified copies of the sale deeds, which disclose that defendant Nos.1 to 3 have sold item No.7 of the suit schedule properties in favour of defendant No.4 by receiving a valuable consideration amount. Ex.P10 is the application submitted under the Right to Information Act. Ex.P11 is the postal acknowledgement. Ex.P12 and Ex.P13 are the endorsements issued by the Assistant Director of Horticulture. - 13 - NC: 2025:KHC:11516 RSA No. 1057 of 2016 Ex.P14 to Ex.P15 are the information given by the Senior Assistant Director of Horticulture. Ex.P16 is the RTC extracts. 19. Nothing has been elicited during the cross examination, from the mouth of these witnesses to disbelieve the evidence. On the other hand, defendant No.1 was examined as DW1. He reiterated the written statement averments in the examination-in-chief, and further legal representative of defendant No.4, defendant No.4(a) was examined as DW2. She had deposed that defendant Nos.1 to 3 have sold item No.7 of the suit schedule properties for valuable consideration in favour of deceased defendant No.4 and executed a registered sale deed. Defendant No.4 is the bonafide purchaser for value without notice. Defendant No.2 was examined as DW3. 20. The perusal of the entire evidence on record, discloses that the suit schedule properties are the ancestral properties of the plaintiff's husband and defendant Nos.1 to 3. Admittedly, no partition is effected between the plaintiff and defendant Nos.1 to 3. Both the - 14 - NC: 2025:KHC:11516 RSA No. 1057 of 2016 Courts below have concurrently recorded a finding of fact that the suit schedule properties are the ancestral properties of the plaintiff and defendant Nos.1 to 3 and that no partition is effected. However, the trial Court while awarding the share to the plaintiff, has granted a 5/12th share in all the suit schedule properties and held defendant No.1, is also entitled to a 5/12th share in the suit schedule properties. Defendant Nos.2 and 3 are entitled to 1/12th share each in the suit schedule properties. Both the Courts below did not consider the provisions of Section 6 of the Hindu Succession Act, 1956 (Amended Act, 2005) wherein the daughters are also co- parceners and they fall in the definition of Co-parceners in their own right in the same manner as that of the sons and have the same rights in co-parceners properties as she had been a son inclusive of the right to claim by survivorship and shall be subject to the same liability and the disability in respect their to as a son. Admittedly defendant Nos.2 and 3 are the daughters of Ramanna, the original propositus. Further, the Hon'ble Apex Court in - 15 - NC: 2025:KHC:11516 RSA No. 1057 of 2016 case of Vinitha Sharma V/s Rakesh Sharma and others reported in AIR 2020 SC 3717 held that, "The daughters are been entitled to equal share in the same manner as that of a son." 21. Both the Courts below did not consider the provisions of Section 6 of the Hindu Succession Act, 1956 (Amended Act, 2005). Hence, the impugned judgments requires modification. The plaintiff is entitled to a 1/4th share. Defendant Nos.1 to 3 are entitled to a 1/4th share each. In view of the above discussions, I answer the Substantial Question of Law No.1 in the affirmative. 22. Accordingly, I proceed to pass the following order:
Decision
ORDER 1. The appeal is allowed. 2. The Judgment and decree passed by the Trial Court is modified. 3. The plaintiff is entitled to 1/4th share in the suit schedule properties by metes and bounds. Defendant Nos.1 to 3 are entitled to 1/4th share - 16 - NC: 2025:KHC:11516 RSA No. 1057 of 2016 each in the suit schedule properties by metes and bounds. 4. The office to draw the preliminary decree. 5. No order as to the Costs. 6. As sofar as item No.7 is concerned, the purchaser can work out his remedy in the Final Decree Proceedings Sd/- (ASHOK S.KINAGI) JUDGE RCK List No.: 1 Sl No.: 6