The High Court
Case Details
- 1 - NC: 2025:KHC:15318-DB RFA No. 1483 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 9TH DAY OF APRIL, 2025 PRESENT THE HON'BLE MRS JUSTICE ANU SIVARAMAN AND THE HON'BLE MR JUSTICE RAJESH RAI K REGULAR FIRST APPEAL NO. 1483 OF 2016 (PAR) BETWEEN: 1. SMT. LATHA D/O CHIKKAMANCHAIAH, AND W/O D.K.SHANKARALINGEGOWDA, AGED ABOUT 42 YEARS, R/O DUDDA VILLAGE, DUDDA HOBLI, MANDYA-TQ-571 401. Digitally signed by MAYAGAIAH VINUTHA Location: HIGH COURT OF KARNATAKA 2. SMT.MAMATHA D/O CHIKKAMANCHAIAH, AND W/O RAJENDRA, AGED ABOUT 40 YEARS, R/O C.A.KERE VILLAGE, C.A.KERE HOBLI, MADDUR-TQ, MANDYA DISTRICT-571 401. (BY SRI. RAJA L, ADVOCATE) AND: 1. CHIKKAMANCHAIAH S/O LATE MANCHEGOWDA, AGED ABOUT 75 YEARS, 2. SMT.SHANTHAMMA W/O CHIKKAMANCHAIAH, AGED ABOUT 68 YEARS, 3. T.YOGENDRA …APPELLANTS - 2 - NC: 2025:KHC:15318-DB RFA No. 1483 of 2016 S/O CHIKKAMANCHAIAH, AGED ABOUT 45 YEARS, ALL ARE R/O THAVARAGERE, 3RD CROSS, MANDYA CITY-571 401.
Legal Reasoning
4. SMT. TO ANITHA D/O CHIKKAMANCHAIAH, W/O BORALINGEGOWDA, AGED ABOUT 35 YEARS, R/O MARASINGANAHALLI VILLAGE, BANNUR HOBLI, T.NARASIPURA TQ, MYSORE DIST. 5. E.M.BALACHANDRA S/O LATE NANJAPPA, AGED ABOUT 51 YEARS, R/O GUTHAL COLONY, BASAVANAGUDU STREET, 2ND CROSS, MANDYA CITY. …RESPONDENTS (BY SRI. NARENDRA D.V GOWDA, ADVOCATE FOR R1-R4, SRI. H.C. SHIVARAM, ADVOCATE FOR R5) THIS RFA IS FILED UNDER SEC.96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 25.04.2016 PASSED IN OS NO.156/2011 ON THE FILE OF THE C/C II ADDL. 2 SENIOR CIVIL JUDGE AND JMFC., MANDYA. DISMISSING THE SUIT FOR PARTITION. THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MRS JUSTICE ANU SIVARAMAN and HON'BLE MR JUSTICE RAJESH RAI K - 3 - NC: 2025:KHC:15318-DB RFA No. 1483 of 2016 ORAL JUDGMENT (PER: HON'BLE MR JUSTICE RAJESH RAI K) This Regular First Appeal is directed against the judgment and decree passed in O.S.No.156/2011 dated 25.04.2016 by the Court of the II Addl. Senior Civil Judge and JMFC, Mandya (hereinafter referred to as the 'learned Trial Judge'), whereby, the learned Trial Judge dismissed the suit filed by the appellants/plaintiffs. 2. For the sake of convenience, the parties are referred to as per their rankings before the Trial Court. The appellants are the plaintiffs and respondents are the defendants. 3. The abridged facts of the case are as follows: The plaintiffs filed a suit for partition and separate possession against the defendants alleging that the defendant No.4 and they are the daughters and defendant No.3 is the son of defendants No.1 and 2. They collectively constitute an Undivided Hindu Family. The suit schedule properties are the joint family properties. There was no division in the family till the institution of the suit. It is the further case of the plaintiffs that defendant No.1-father and kartha without duly discharging - 4 - NC: 2025:KHC:15318-DB RFA No. 1483 of 2016 his responsibilities mismanaged the family and properties by being addicted to alcohol and vices. Against this backdrop, defendant No.1 sold few of the suit schedule properties to defendant No.5 without the plaintiffs' and defendant No.4's consent. According to the plaintiffs the Sale Deed executed by defendants No.1 to No.4 in favour of defendant No.5 with respect to item No. 3 and the Sale Agreement with respect to items No.1 and 2 are sham documents. Hence, the same are not binding on the rights and share of the plaintiffs in any manner. As such the plaintiffs were compelled to demand partition and seek share in the suit schedule properties on 10.08.2011. The plaintiffs thus, initiated a suit in O.S.No.156/2011 with respect to suit schedule properties against the defendants for the reliefs mentioned in the said plaint. 4. Pursuant to the suit summons, the defendants No.1 to 4 appeared through their respective counsel filed written statements refuting the averments enumerated in the plaint. They categorically admitted the contention that the parties are the members of an Undivided Hindu Joint Family. Albeit the defendant No.1 is the kartha of the Undivided Hindu Joint - 5 - NC: 2025:KHC:15318-DB RFA No. 1483 of 2016 Family as stated by the plaintiffs, however, the defendants have strongly denied the allegation regarding mismanagement of family and properties on account of addiction to vices. The defendants admitted that there surfaced circumstances like performance of defendant No.1's youngest daughter's marriage for which they required a sum of Rs.1,00,000/- was required and the same was arranged by defendant No.5. Upon defendant No.5 being persuasive, as security for the loan, an agreement for sale was executed. However, the defendants still conceded to the plaintiffs' demand in allotting them their legitimate share. This implies their willingness to allot the plaintiffs their legitimate share. However, defendant No.5, purchaser of the suit properties filed a written statement stating that, he offered to purchase the suit schedule properties enumerated in items No. 1 and 2 to meet defendant No.1's legal necessities and for the benefit of the family. To that effect, an agreement of sale had been executed by the defendants No. 1 to 4 on 29.01.2004. Further, a suit was also filed by defendant No.5 in O.S.64/2009 challenging the said sale agreement. Further, the plaintiffs and defendants No.1 to 4 executed sale deed in favour of defendant No.5 in respect of Item No. 3 of suit properties. Hence the suit filed by the - 6 - NC: 2025:KHC:15318-DB RFA No. 1483 of 2016 plaintiffs and defendants No.1 to 4 is a collusive suit. Accordingly, he prays to dismiss the suit. 5. On the basis of above pleadings by the parties, the Trial Court framed the following issues as under:- "ISSUES 1. Whether suit of the plaintiffs is maintainable? 2. Whether suit is bad for non-joinder of necessary parties? 3. Whether defendant No.5 proves that present suit is collusive suit? 4. Whether plaintiffs are entitled to the reliefs as claimed? 5. What order or decree? 6. In order to prove case of the plaintiffs, the plaintiff No.2 examined herself as PW.1 along with two other witnesses as PW.2 and PW.3 and marked 9 documents as Exs.P1 to P9. The defendant No.1 examined himself as DW.1 along with one more witness i.e. defendant No.5 as DW.2 and marked 17 documents as Exs.D1 to D17. 7. On assessment of oral and documentary evidence, the Trial Court answered Issue No.1 in the negative, Issue No.2 - 7 - NC: 2025:KHC:15318-DB RFA No. 1483 of 2016 and 3 in the affirmative, Issue No.4 in the negative and Issue No.5 as per the final order and dismissed the suit against the plaintiffs. Challenging the said judgment and decree the plaintiffs are before this Court. 8. We have heard the learned counsel Sri. Raja. L for appellants, the learned counsel Sri. Narendra D.V. Gowda for respondents No.1 to 4 and Sri. H.C Shivaramu for respondent No.5. 9. The learned counsel for the appellants/plaintiffs vehemently contended that the Trial Court grossly erred while passing the impugned judgment without appreciating the evidence of DW.1 and in his written statement wherein he specifically admitted that he is willing to give the plaintiffs’ legitimate share in the suit properties and that the suit properties are the joint family properties of the plaintiffs and defendants No.1 to 4. Further, the Trial Court also erred by relying on Ex.D3-alleged partition deed and held that there was a prior partition; as per the Hindu Succession Amendment Act, 2005 the sale deeds executed by defendants No.1 to 4 to defendant No.5 holds good, since the same was executed - 8 - NC: 2025:KHC:15318-DB RFA No. 1483 of 2016 earlier to December 2004. Accordingly, he prays to allow the appeal. 10. Per Contra, the learned counsel for the defendant No.5 contended that the Trial Court, on meticulously examining the comprehensive evidence and documents placed before it passed a well-reasoned judgment which does not call for any interference by this Court. According to the learned counsel, the defendants No.1 to 4 for the legal necessities and family benefit preferred to sell the land in suit Items No.1 and 2 and upon receiving lawful consideration they executed sale agreement. Thereafter, defendants No.1 to 4 failed to execute the sale deed. As such the defendant No.5 filed a suit for specific performance in O.S.No.64/2009 against them. Further, he had purchased Item No.3 vide Sale Deed dated 29.01.2004 from defendant No.1. As such, as per Section 6(1) of Hindu Succession Amendment Act, 2005, sale deed executed prior to December 2004 holds good. As such the Trial Court has rightly dismissed the suit filed by the plaintiffs. Accordingly, he prays to dismiss the appeal. - 9 - NC: 2025:KHC:15318-DB RFA No. 1483 of 2016 11. Having heard the learned counsel for the parties and on careful perusal of the documents placed before us, the sole point that arises for our consideration is: “Whether the Trial Court is justified in dismissing the suit filed by the plaintiffs?” 12. As could be gathered from records, there was prior partition among plaintiffs and defendants No.1 to 4 vide partition deed dated 09.02.1998 as per Ex.D3. By virtue of the said partition, Ex.D5-sale deed was executed by defendants No.1 to 4 in favour of defendant No.5 on 29.01.2004. The plaintiffs contended that, defendant No.1, their father was addicted to vices and thus, he sold the suit properties to defendant No.5 without their knowledge and consent. However, the plaintiffs miserably failed to prove the said aspect with cogent oral and documentary evidence. Albeit Ex.D3-Partition Deed of the year 1997-98 was disputed by the plaintiffs, however, they failed to produce any documents to counter the same. The plaintiffs have not challenged the partition deed and cannot claim partition in the joint family properties as the partition was effected much earlier to December 2004. Also, the partition was effected by means of a registered document. As a matter of fact DW.1 did not specifically deny the partition deed - 10 - NC: 2025:KHC:15318-DB RFA No. 1483 of 2016 of 1997-98. The sale agreement-Ex.D8 was executed by defendants No.1 to 4 in favour of defendant No.5 was considered in O.S.No.64/2009 and the suit came to be dismissed. However, the said sale agreement was executed on 29.01.2004 i.e., earlier to December 2004. The Ex.D5 is the registered sale deed executed in favour of defendant No.5 by the defendants No.1 to 4 on 29.01.2004 in respect of Item No.3 of the suit schedule property. 13. The proviso to Section 6(1) of the Hindu Succession Act, 2005 reads as under: "(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,— (a) by birth become a coparcener in her own right in the same manner as the son; (b) have the same rights in the coparcenary property as she would have had if she had been a son; (c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener: Provided that nothing contained in this invalidate any sub-section shall affect or dispossession or alienation including any partition or testamentary dispossession of - 11 - NC: 2025:KHC:15318-DB RFA No. 1483 of 2016 property which had taken place before the 20th day of December, 2004." 14. Further, the Hon’ble Apex Court in the case of Vineeta Sharma referred supra, in (i) and (ii) of paragraph No.129 held as under: "129. Resultantly, we answer the reference as under: The provisions contained (i) in substituted Section 6 of the Hindu Successions Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities. (ii) The rights can be claimed by the daughter born either with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004. (iii) xxx (iv) xxx (v) xxx" 15. On applying the law laid down by the Hon’ble Apex Court in the above case to the facts and circumstances of this case, the disposing of all Items of the suit schedule properties have taken place before 20.12.2004, as such, though the plaintiffs being the daughters of defendant No.1 confer the - 12 - NC: 2025:KHC:15318-DB RFA No. 1483 of 2016 status of coparceners and saves as per Section 6 of the Hindu Succession Act, 2005, however, as per the law laid down in the Vineeta Sharma's case, the transactions prior to 20.12.2004 stand saved. Further, the Trial Court rightly concluded on facts, evidence and other circumstances of the case that the suit filed by the plaintiffs and defendants No.1 to 4 is collusive in nature with an intention to defraud defendant No.5. Against this backdrop, the Trial Court has rightly dismissed the suit. Therefore, we find no good grounds to interfere in the judgment and decree passed by the Trial Court and accordingly, we answer point raised above in the affirmative and proceed to pass the following:
Decision
ORDER The Regular First Appeal is dismissed being devoid of merits. No order as to cost. SD/- (ANU SIVARAMAN) JUDGE SD/- (RAJESH RAI K) JUDGE HKV/List No.: 1 Sl No.: 27