2019 Supreme(Kar) 1889

IN THE HIGH COURT OF KARNATAKA AT BENGALURU
SREENIVAS HARISH KUMAR, J.
Sri. Chandrashekaraiah - Appellants
Vs.
Smt. Sarojamma - Respondents
REGULAR SECOND APPEAL No.452, 453 OF 2007
In RSA No.452/2007 BETWEEN
Decided On : 22-12-2019

Headnote:

Limitation Act - explanation (b) to Article 65 - Hindu Succession Act - Sections 8 and 6 - Seeking partition in ten items of landed properties - revenue records mutated - Acquisition of land - Whether the lower appellate court was justified in holding that except suit item 3 and 4, the remaining properties were self acquisitions of the father when it records a finding it is from the nucleus of joint family funds the suit properties 3 and 6 are purchased and granted equal share to the daughters in the joint family properties - Whether the courts below were justified in denying any share to Govindappa when grant is in his favour - While arguing, learned counsel for the appellant proposed an amendment to the second question and suggested three more substantial questions. According to him, the second question is to be modified - Whether the daughters of late Lakshmamma claiming title to item of the suit schedule property as heirs of can do so when admittedly 9th item of the suit schedule property vested in Government under Mysore Religious and Charitable Inams Abolition Act and subsequently the first defendant Govindappa was registered as occupant by virtue of his being a Kadim Tenant - Whether an dispute between the codefendants can be adjudicated when such adjudication is not required to grant or refuse relief to plaintiffs, and whether any decision rendered by the courts would operate as res judicata in between the codefendants - Whether Defendant has come on record as legal representative of her father deceased first defendant can make an independent claim and seek partition of suit schedule properties thereby travelling beyond the defence taken by first defendant - Whether plaintiff’s suit was barred by limitation - Plaintiffs sued the defendants seeking partition in ten items of landed properties described in the plaint schedule claimed 1/6th share each in them - Plaintiffs stated schedule properties originally belonged had no male issues, she was residing with defendant no.1 who was her brother as also soninlaw. The khata of the schedule properties stood in the name Defendant no.1 took undue advantage of Lakshmamma’s helplessness, persuaded her to say no objection for transfer of khata and got the revenue records mutated to his name - Plaintiffs pleaded further that defendant no.1 did not become absolute owner of schedule properties by mere change of khata to his name; and since the properties belonged had equal share in them - written statement admitting the relationship but denying the plaintiffs’ right to seek partition. They pleaded that some of the schedule properties were self acquisition of defendant no.1 and some were acquired by defendant no.2. With respect to item no.9 of the schedule properties – Held, requirement is that the property must be held by a person continuously for a period more than 12 years after the death of a female Hindu or Muslim. The starting point of limitation is the date of death of a female. In this case, probably the intention of defendant no.2 appears to be that his father held the possession of item no.9 of the suit property even after the death of and therefore, the plaintiffs and the defendant nos.5 and 6, having failed to take possession within twelve years from the date of death cannot seek for partition and possession - Defendant no.1 or defendant no.2 wanted to establish their adverse possession over item no.9 of the suit schedule property - Defendant pure factual aspect which should have been pleaded. Unless ouster is established, defendants 1 and 2 cannot say that they excluded the daughters of, more particularly the mother of the first plaintiff - rather defendant no.1 was just a cultivator on behalf of joint family being the brother death daughters became entitled to claim partition - Question involved here is right of succession. At the most, defendant no.1 would have got share in the property that could be allotted to his two wives Mangamma and Sakamma and nothing more than that - she was not a coparcener. Only after the Central amendment to Section 6 of Hindu Succession Act was given into effect in the year *2005, a married daughter was recognized as a coparcener - Succession opened no.1(d) cannot claim equal share as she was not a coparcencer at all - She would be entitled to a share in the notional partition in favour of deceased defendant - Appeals dismissed