2020 Supreme(Kar) 449

IN THE HIGH COURT OF KARNATAKA
Nataraj Rangaswamy, J.
Susheela - Appellant
Versus
B.U. Ummaiaha And Others - Respondents
Regular Second Appeal No.1880 of 2013 (PAR)
Decided On : 16-04-2020

Headnote:

Hindu Succession Act, 2005 - Section 6 - Indian Evidence Act, 1872 - Section 13 - Hindu Widows Remarriage Act, 1856 - Section 2 - Possession of property – Claim of compensation - Whether plaintiffs prove that suit schedule properties are joint family properties of them and defendants and they have been in deemed joint possession of suit schedule properties - Whether plaintiffs prove that plaintiff No.1 has got share in suit schedule properties - Whether defendant No.3 proves that he has given valuable gold jewelrys to plaintiffs and defendant No.2 and 4 in lieu of their share as contended in Para of her W/S - Whether plaintiffs are entitled to relief sought for - Whether plaintiffs being female coparceners by virtue of Hindu Succession Act, 2005 were entitled to succeed to a per capita share or not is in consideration before Full Bench of Apex Court in case in Civil Appeal - It is stated that suit properties were originally owned and possessed and upon his death suit properties were held - It is stated both are dead and that plaintiffs are staking their claim to share of their father - It is alleged that claim of plaintiffs for partition of suit properties was turned down by husband of defendant No.2 and therefore they filed present suit for partition - Defendants 2 and 3 filed their written statement contending that amongst female heirs were not entitled to an equal share in suit properties and could not claim on par with males - They also claimed that a custom amongst did not allow any share to a married daughter and thus plaintiffs were not entitled to any share – Held, Learned Counsel also placed reliance on Judgment of this Court reported in Judgment of Apex Court to contend that there was a custom which was prevalent amongst community wherein daughter lost right of inheritance in fathers property on getting married - While answering contentions raised by defendant no.2 it is true that Apex Court considering conflict of opinion in case relating to interpretation of Section 6 of Hindu Succession Act, 2005 had referred issue to a larger bench – However facts of present case are not akin to facts that were involved in case - In present case plaintiffs were claiming their fathers share in suit properties and were not claiming as co-parceners - It cannot be doubted that father of plaintiffs had an undivided half share in suit properties and plaintiffs have claimed that share as legal heirs – Moreover plaintiffs were all married and thus could not be members of joint family – Section 4 of Hindu Succession Act, 1956 has given an overriding effect to said 1956 Act to any other law in force immediately before commencement of 1956 Act in so far as it is inconsistent with any of provisions contained in 1956 Act - Thus even if for arguments sake it is accepted that Section 2 of Hindu Widows Remarriage Act, 1856 has any cascading effect on right of widow same shall be treated to have been overridden by virtue of Section 8 read with Schedule provided under Hindu Succession Act, 1956 - When defendant no.2 set up a custom contrary to provisions of Hindu Succession Act, 1956 defendant No.2 ought to have placed on record transactions and evidence which indicate that such a custom ever existed and such a custom was an exception to general rules of succession as prescribed in Hindu Succession Act, 1956 - Therefore argument that such a custom existed cannot be accepted - On a perusal of plaint averments and evidence adduced it is evident that plaintiffs were claiming their fathers share in suit property and Trial Court and First Appellate Court have rightly held that plaintiffs were entitled to half share in suit schedule properties - In so far as claim of defendant no.2 that father of plaintiffs had sold property measuring an extent final decree court may examine same and if it is found that this property was sold by father of plaintiffs not to meet any legal necessities then it is up to Final Decree Court to apportion property sold by father of plaintiffs to share of plaintiffs in final Decree proceedings - Appeal stand disposed off