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2023 Supreme(Online)(KAR) 10557
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF NOVEMBER, 2023
BEFORE
THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO.2586 OF 2010
BETWEEN:
SMT.SUSHEELAMMA
SINCE DEAD BY LRS
1. SMT.JAYALAKSHMAMMA,
MAJOR, W/O RAMAN,
MANGANAPURA VILLAGE,
SORABA TALUK-577429
SHIMOGA DISTRICT.
2. ANANTHAPADMANABHA.P
3. B.MUKUNDA
4. B.VEDHAVALLI
5. B.JAGADAMBA
6. B.RAJESHWARI
7. B.CHAYA
APPELLANT NOS.2 TO 7
ARE DAUGHTERS AND SONS
OF LATE K.BALASUBRAMANYAM,
ALL ARE MAJORS AND RESIDING
AT C/O SATHYANARAYANA TEMPLE,
R
2
D.NO.905/12-A, 4TH MAIN,
1ST CROSS, VIDYARANYAPURAM,
MYSORE-570008.
...APPELLANTS
(BY SRI A MADHUSUDHANA RAO, ADVOCATE FOR A1 TO 7)
AND:
K.SEETHARAMAIAH,
S/O LATE KRISHA BHATTA
SINCE DEAD BY LR
VINUTHA,
W/O LATE K.SEETHARAMAIAH,
SINCE DEAD BY LRS
1. POORNIMA.S
D/O LATE SEETHARAMAIAH,
W/O LINGAPPA,
MAJOR,
RESIDING AT NO.2070, 3RD CROSS,
E BLOCK, DATTAGALLI,
MYSORE-23.
2. MEERA.S
D/O LATE SEETHARAMAIAH
W/O NARAYAN,
MAJOR,
R/AT NO.46, GARDEN STREET,
RAMMURTHYNAGAR,
BANGALORE-560033.
3. AMBIKA.S
D/O LATE SEETHARAMIAH
W/O PARAMESHWAR BHAT,
MELINA GANTIGE,
SALKOD,
3
SANTHEGALLI, HOSAGALLI POST
HONNAVARA TALUK-581334
UTTARA KANNADA
4. NARAYANA PADANANDA.K
S/O LATE KRISHNA BHATTA,
NO.110, POORNIMA PRASAD,
CHAMUNDI HILLS,
MYSORE - 570010.
5. SWAMINATHAN.K
S/O LATE KRISHNA BHATTA,
RESIDING AT NO.116, MIG LAYOUT,
2ND MAIN, 2ND CROSS,
A.NARAYANAPURA,
KRISHNARAJAPURAM,
BANGALORE-560016.
6. SRINIVASAN.K
S/O LATE KRISHNA BHATTA,
RESIDING AT NO.110,
POORNIMA PRASAD,
CHAMUNDI HILLS,
MYSORE - 570010.
SMT.DHARMAMBA.K
W/O KRISHNA BHATTA,
SINCE DEAD BY LRs
7. SATHYANARYAN,
HUSBAND OF LATE DHARMAMBA,
SINCE DEAD BY LRs
R8, 10 AND 11, 16.
8. RAVI S
S/O LATE DHARMAMBA
9. PURUSHOTHAM.S
S/O LATE DHARMAMBA,
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SINCE DEAD BY LRs
R8, 10, 11, 16.
10. SRINIVAS.S
S/O LATE DHARMAMBA
11. ANANTHAKRISHNA.S
S/O LATE DHARMAMBA
ALL ARE MAJORS,
RESIDING AT DOOR NO.1737,
12TH MAIN ROAD,
31ST CROSS, BANASHANKARI II STAGE,
BANGALORE-560070.
12.SMT.RANGANAYAKAMMA,
W/O KRISHNA BHATTA,
RESIDING AT NO.110,
POORNIMA PRASAD,
CHAMUNDI HILLS,
MYSORE-570010.
13. SMT.JAYALAKSHMI,
D/O LATE KRISHNA BHATTA,
W/O MUTTUKUMAR V
RESIDING AT NO.63/1107, I FLOOR,
KHALEEL MANZIL,
VINAYAKA LAYOUT,
SULTHAN PALYA,
BANGALORE-560032.
14. SMT.SHIVAKAMESHWARI,
D/O LATE KRISHNA BHATTA,
W/O SRINIVAS IYER,
RESIDING AT NO.58, 5TH B CROSS,
I STAGE, BRUNDAVAN EXTENSION,
MYSORE-570020.
SMT. LALITHAMBA.K
D/O LATE KRISHNA BHATTA,
5
SINCE DEAD BY LRS
15. VENKATARAMAN.S
HUSBAND OF LATE LALITHAMBA,
MAJOR,
SINCE DEAD BY HIS LR ARE ALREADY
ON RECORD AS R8, R10, 11, 16
16. SUBRAMANYA,
S/O LATE LALITHAMBA.K,
MAJOR,
VARADARAJAN.B,
S/O LATE BALASUBRAMANYAM,
SINCE DEAD BY LRS
17. RAJESHWARI.K.S
W/O VARADARAJAN B,
MAJOR
18. KOUSHIKRAJ B
W/O VARADARAJAN.B
MINOR, REP BY NATURAL
GUARDIAN MOTHER
19. TILAKRAJ.B,
W/O VARADARAJAN.B
MINOR, REP BY NATURAL
GUARDIAN MOTHER
ALL ARE RESIDING AT
NO.714, 13TH CROSS,
JANATHANAGAR, NEAR T.K.LAYOUT,
CHAMARAJA MOHALLA,
MYSORE-570008.
20. THE ASSISTANT COMMISSIONER,
OFFICE OF THE ASSISTANT COMMISSIONER,
MYSORE SUB DIVISION,
6
MYSORE - 570005.
…RESPONDENTS
(BY SRI C.SHASHIKANTHA, ADVOCATE FOR R1 TO 6, 17 TO 19;
SRI U.MUTHU KUMAR, ADVOCATE FOR R8, 10, 11, 13, 14 & 16;
SMT. ANUKANKSHA KALKERI, HCGP FOR SRI H.K. BASAVARAJ, AGA
FOR R20; V/O/DTD: 28.09.2022 APPEAL AGAINST R2 DISMISSED
AS ABATED; V/O/DTD: 28.09.2022 R8, 10, 11, 16 ARE TREATED AS
LRS OF DECEASED R7, 9 & 15 RESPECTIVELY)
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DTD 13.11.2009 PASSED BY THE LEARNED
III
ADDITIONAL
CIVIL
JUDGE
(SR.DN.),
MYSORE
IN
FDP.NO.32/2005 AND THE JUDGMENT AND DECREE DATED
01.09.2010 PASSED BY THE LEARNED IV ADDITIONAL DISTRICT
JUDGE, MYSORE IN R.A.NO.1295/2009.
THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 22.02.2023, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
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The captioned second appeal is filed by plaintiffs who
are
petitioners
in
final
decree
proceedings
bearing
FDP.No.32/2005 assailing the concurrent decrees passed by
the Courts below in entertaining applications filed by
defendant Nos.6(a) to 6(e) and defendant Nos.7 and 8 in
seeking modification of preliminary decree passed in
O.S.No.96/1995 and the FDP Court having entertained
these applications has come to conclusion that inspite of
preliminary decree passed in O.S.No.96/1995, the present
defendant Nos. 6(a) to 6(e) who are the legal heirs of one
of the predeceased daughter and defendant Nos.7 and 8, in
view of amendment to Section 6 of Hindu Succession Act,
are entitled for equal share and consequently, a fresh
preliminary decree is drawn by FDP Court granting 1/9th
share jointly to defendant Nos.6(a) to 6(e) and 1/9th share
each to defendant Nos.7 and 8. The said fresh preliminary
decree drawn by the FDP Court is confirmed by the
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Appellate Court in R.A.No.1295/2009. These concurrent
judgments and decrees are under challenge by the
plaintiffs/petitioners in FDP.No.32/2005.
2.
The present appellants instituted a suit for
partition and separate possession in O.S.No.96/1995. The
said suit was decreed granting share to the daughters i.e.,
defendant Nos.6 to 8 notionally. Based on the preliminary
decree, the present appellants herein initiated final decree
proceedings in FDP.No.32/2005. Pending consideration of
final decree proceedings, the legal heirs of original
defendant No.6 i.e., 6(a) to 6(e) and defendant Nos.7 and 8
filed two separate applications requesting the Court to
modify the preliminary decree and grant equal share by
extending benefit of amended provisions of Section 6 of
Hindu Succession Act. Though the present appellants
strongly resisted these applications, the FDP Court and the
Appellate Court by applying the principles laid down by the
Hon'ble Apex Court in the case of Pushpalatha N.V. vs.
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V.Padma and Others reported in ILR 2010 Karnataka
1484, held that the amended provisions of Section 6(1) of
Hindu Succession
Act
is
applicable
to
the
pending
proceedings and benefit was extended and therefore, by
treating defendant Nos.6 to 8 as coparceners has modified
the preliminary decree. Though defendants have not
challenged the same, the FDP Court and the Appellate Court
having entertained the applications, granted equal share to
the daughters i.e., deceased defendant No.6 and defendant
Nos.7 and 8.
3.
Learned
counsel
appearing
for
the
appellants/plaintiffs reiterating the grounds urged in the
appeal memo, would vehemently argue and contend that
the preliminary decree is passed much prior to amendment
to Hindu Succession Act and therefore, he would contend
that FDP Court erred in modifying the preliminary decree in
granting equal share to the daughters. He would also point
out that defendant Nos.6 to 8 married much prior to 1994
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and therefore, the FDP Court erred in granting equal share
by applying the amended provisions of Section 6. Though
he does not dispute that FDP court can alter preliminary
decree on account of change in law, but he would
vehemently argue and contend that the present suit filed in
1995 is governed by the State amendment under Section
6(A) and therefore, he would contend that even if Section
6(A) is held to be repugnant, the said repugnancy is
prospective and therefore, he would vehemently argue and
contend that defendant Nos.6 to 8 are entitled for a share
notionally and the benefit of amended Section 6 of Hindu
Succession Act cannot be extended to the present case on
hand.
4.
To buttress his arguments, he has placed
reliance on the following judgments:
1) Sri H.P.Chikkarama Reddy and Another vs.
Smt. Kanthamma and Others – ILR 2021 Kar 613;
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2) Prema vs. Nanje Gowda and Others – (2011)
6 SCC 462;
3) Sugalabai vs. Gundappa A.Maradi and Others
– ILR 2007 Kar 4790;
4) Prakash and Others vs. Phulavati and Others
– (2016) 2 SCC 36;
5) Danamma @ Suman Sarpur and Another vs.
Amar &
