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2023 Supreme(Online)(KAR) 22800
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, 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, 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, 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, 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, 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:
JUDGMENT
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 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.
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 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;
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 & Others – (2018) 3 S
