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2023 Supreme(Online)(KAR) 23058
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RFA No. 516 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF JANUARY, 2023
PRESENT
THE HON'BLE MR JUSTICE P.S.DINESH KUMAR
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
REGULAR FIRST APPEAL NO.516 OF 2013
BETWEEN:
1 . PADMANABHA SHETTY
DEAD BY LRS
1(A) SHAKUNTALAMMA
W/O LATE PADMANABHA SHETTY
AGED ABOUT 60 YEARS
1(B) P.PRIYA
D/O LATE PADMANABHA SHETTY,
AGED ABOUT 29 YEARS
1(C) P.KAVITHA
D/O LATE PADMANABHA SHETTY,
AGED ABOUT 27 YEARS
1(D) P.THRIVENI
S/O LATE PADMANABHA SHETTY,
AGED ABOUT 25 YEARS
ALL ARE RESIDING AT
KANNIKA ROAD,
Digitally signed
by RAMYA D
Location: High
Court of
Karnataka
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RFA No. 516 of 2013
SANTHE MAIDANA,
CHITRADURGA.
2 . SRI THIPPESWAMY
S/O LATE VIRUPAKSHA SHETTY
AGED ABOUT 58 YEARS
R/O MASJID,M K HATI,
CHITRADURGA.
SRI NAGARAJA @ V NAGARAJA SHETTY
S/O LATE VIRUPAKSHA SHETTY
AGED ABOUT 52 YEARS
R/O NEW SANTHE MAIDAN
CHITRADURGA.
SRI SRINIVASA @ V SRINIVASA SHETTY
S/O LATE VIRUPAKSHA SHETTY
AGED ABOUT 42 YEARS
R/O BEHIND JAYALAKSHMI MILL,
GOREHATTI,
CHITRADURGA.
…APPELLANTS
(BY SRI. B.M.SIDDAPPA, ADVOCATE)
AND:
1 . SMT. SULOCHANAMMA
DEAD BY LRS
1(A) M.VIDYA VACHASPATHI
S/O LATE MUDDAPPA
AGED ABOUT 90 YEARS.
1(B) LOKESH GUPTHA
S/O M.VIDYA VACHASPATHI
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RFA No. 516 of 2013
AGED ABOUT 46 YEARS,
PUROHITHARU.
BOTH ARE R/O NO.11,
24TH MAIN ROAD,
MUNESHWARAPPA,
T BLOCK, B.B.M.P.,
BENGALURU 560 085.
1(C) SMT. VEDAVATHI
W/O I.G.PRASAD
AGED ABOUT 45 YEARS,
NO.13, GROUND FLOOR,
4TH CROSS, R.K.MUD LAYOUT,
K.G.NAGAR, BENGALURU 560 019.
1(D) V. SRINIVASA
S/O M.VIDYA VACHASPATHI
AGED ABOUT 42 YEARS,
R/O SRI VENKATESHWARA NILAYA,
1ST FLOOR, NO.79,
1ST MAIN ROAD,
VINAYAKA NAGAR,
BENGALURU - 560063.
2 . SMT. SEETAMMA
D/O LATE VIRUPAKASHA SHETTY
W/O ONKARAPPA
AGED ABOUT 56 YEARS
HOUSE WIFE,
RESIDING AT NO.9/9
12TH CROSS, K P AGRAHARA,
MAGADI ROAD,
BENGALURU.
3 . SMT. CHANDRAMMA
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RFA No. 516 of 2013
D/O LATE VIRUPAKSHA SHETTY
W/O NAGARAJA SHETTY
AGED ABOUT 64 YEARS
HOUSE WIFE,
R/O HALAGAVADE VILLAGE
CHITRADURGA TALUK.
SMT. PREMA
D/O LATE VIRUPAKSHA SHETTY
W/O PURUSHOTHAMA SHETTY
AGED ABOUT 48 YEARS
R/O NEAR AUTO STAND
M K HATTI,
CHITRADURGA.
…RESPONDENTS
(BY SMT. K.MANJUNATH RAO BHONSLE, ADV. FOR R1(A-
D) - ABSENT;
SMT. SARITHA KULKARNI, ADV. FOR R2;
SRI H.B.RUDRESH, ADV. FOR R3;
SMT. ARCHANA MURTHY P., ADV. FOR R4 - ABSENT, (NOC
GIVEN);
SMT. PREMA, PARTY-IN-PERSON FOR R4 (NOC) VK-
RETURNED)
THIS REGULAR FIRST APPEAL IS FILED UNDER
ORDER 41 RULE 1, R/W SEC 96 OF CPC, AGAINST THE
JUDGEMENT AND DECREE DT: 15.12.12 PASSED IN
O.S.NO.36/2011 ON THE FILE OF PRL. CIVIL JUDGE (SR.
DN.) AND CJM, CHITRADURGA, ALLOWING THE SUIT
FILED FOR PARTITION AND SEPARATE POSSESSION.
THIS REGULAR FIRST APPEAL COMING ON FOR
FINAL HEARING, G.BASAVARAJA J., DELIVERED THE
FOLLOWING:
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RFA No. 516 of 2013
Daughters born before or after the 2005 amendment to the Hindu Succession Act are entitled to coparcenary rights and an equal share in the coparcenary property, regardless of their marital status or expenses incurred by other coparceners.
Headnote:
PARTITION - ANCESTRAL PROPERTY - SHARE OF DAUGHTERS - [2005 AMENDMENT TO HINDU SUCCESSION ACT] - EFFECT - DAUGHTERS BORN BEFORE OR AFTER AMENDMENT - COPARCENARY RIGHTS - EQUAL SHARE IN COPARCENARY - ORAL PARTITION - NOT ACCEPTABLE - EXCEPTION - PUBLIC DOCUMENTS AND FINAL EVIDENCING IN MANNER OF COURT DECREE.
Fact of the Case:
The appellants (defendants) challenged the trial court's judgment and decree granting partition and separate possession of ancestral properties to the plaintiffs (respondents), who were the daughters of the deceased coparcener. The defendants claimed that the properties were self-acquired by the deceased coparcener and that the plaintiffs were not entitled to an equal share due to their marriages and the expenses incurred by the defendants for their treatment and loan repayments.
Finding of the Court:
The High Court upheld the trial court's judgment, holding that the plaintiffs were entitled to an equal share in the coparcenary property as per the 2005 amendment to the Hindu Succession Act, which conferred coparcenary rights on daughters born before or after the amendment. The Court rejected the defendants' claim of oral partition, emphasizing that partition must be effected by a registered deed or a court decree, except in exceptional cases supported by public documents and final evidencing in the manner of a court decree.
Issues: 1. Whether the properties in dispute were ancestral properties or self-acquired properties of the deceased coparcener?2. Whether the plaintiffs, as daughters of the deceased coparcener, were entitled to an equal share in the coparcenary property?3. Whether the defendants' claim of oral partition was valid?
Ratio Decidendi: 1. The 2005 amendment to the Hindu Succession Act conferred coparcenary rights on daughters born before or after the amendment, giving them the same rights and liabilities as sons.2. The statutory fiction of partition created by the proviso to Section 6 of the Hindu Succession Act, 1956, did not bring about actual partition or disruption of coparcenary. It was only for the purpose of ascertaining the share of a deceased coparcener survived by certain female heirs or male relatives.3. A plea of oral partition cannot be accepted unless supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court.
Final Decision: The High Court dismissed the appeal and confirmed the trial court's judgment and decree granting partition and separate possession of the ancestral properties to the plaintiffs.
The appellants are the defendants No.2, 3, 4 and 6 in
O.S.No.36/2011 (for short ‘suit’) before the Trial Court.
Feeling aggrieved by the judgment and decree dated
15.12.2012 passed by the Principal Civil Judge (Sr. Dn.)
and Addl. MACT, Chitradurga (for short ‘trial court’), the
appellants have preferred this appeal.
2.
The brief facts of the plaintiffs' case is that; one
late Appanna Shetty had three sons namely, Virupaksha
Shetty, Venkataramana Shetty and Subbaraya Shetty.
These three brothers got partitioned all the joint family
properties under a registered partition deed dated
06.05.1983 and 'A' schedule properties mentioned in the
said registered partition deed have jointly fallen to the
share of Virupaksha Shetty and Venkataramana Shetty.
'A'
schedule
properties
are
land
bearing
Sy.No.47
measuring 35 acres 31 guntas, Sy.No.48 measuring 22
acres 02 guntas and one house property and all the
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properties are at Hirekabbigere Village. 'B' schedule
properties mentioned in the registered partition deed
dated 06.05.1983 are fallen to the share of Subbaraya
Shetty. Further, it is alleged that Virupaksha Shetty and
Venkataramana Shetty got partitioned the said properties
under the registered partition deed dated 21.01.1992.
3.
Venkataramana Shetty had bequeathed all his
properties under the registered Will on 05.11.1994 in
favour of Virupaksha Shetty. After the death of
Venkataramana Shetty, the khatha of properties changed
in the name of Virupaksha Shetty by virtue of orders
passed by Revenue Authorities in M.R.No.4/1995-96 on
15.12.1994. Virupaksha Shetty had bequeathed 10 acres
of land in Sy.No.47 in favour of plaintiff No.1 under the
registered Will deed dated 03.10.1996. Later on, he has
cancelled the same through registered cancellation deed
dated 29.04.2005.
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4.
Further, it is alleged that Virupaksha Shetty has
bequeathed 7 acres 37 guntas of land in Sy.No.47 in
favour of defendant No.5 under the registered Will deed
dated 05.10.1996 and later on he has cancelled the same
through registered cancellation deed dated 29.04.2005.
5.
Further,
it
is
alleged
that
plaintiff
and
defendants are the sons and daughters of Virupaksha
Shetty and said Virupaksha Shetty died on 21.07.2008.
After the death of Virupaksha Shetty, the katha of suit
schedule properties jointly changed in the name of his
sons by virtue of orders passed by the Revenue authorities
in M.R.No.42/2008-09 on 20.06.2009. All the suit
schedule properties are ancestral properties of joint family
of plaintiffs and defendants. Further it is alleged that due
to
misunderstanding
between
plaintiffs
and
the
defendants, during the second week of May 2011, the
plaintiffs have demanded the defendants for partition and
separate possession over the suit schedule properties. But
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the defendants have refused to give shares to the
plaintiffs. Hence, sought for decree of the suit.
6.
In response to summons issued by the trial
court, defendants have appeared before the trial court and
defendants No.1 to 4 and 6 have filed their common
written statement.
7.
The
substance
of
written
statement
of
defendants No.1 to 4 and 6 is that relationship between
the plaintiffs and defendants is admitted. It is also
admitted that there was a partition among the sons of
Appanna Shetty as per the registered partition deed dated
06.05.1983. It is also admitted that Venkataramana
Shetty has bequeathed all his properties as per registered
will deed dated 05.11.1994.
8.
Further, it is alleged that defendants by virtue
of said Will deed bequeathed self - acquired properties of
Virupaksha Shetty, as such they cannot be considered as
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ancestral properties. Further it is alleged that Virupaksha
Shetty and defendant No.2 have performed the marriages
of plaintiffs and defendant No.5 by spending huge sums of
money
and
incurred
loans.
Defendant
No.2
has
discharged the said loan amount. Further it is alleged that
during the lifetime of Virupaksha Shetty he w
