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2022 Supreme(Online)(Kar) 58430
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IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 10TH DAY OF JANUARY 2022
PRESENT
THE HON’BLE MR.JUSTICE S.R.KRISHNA KUMAR
AND
THE HON’BLE MRS.JUSTICE K.S.HEMALEKHA
RFA NO.200090/2018 (PAR / POS)
BETWEEN:
1.
Anil Joshi S/o Nirmala & Bhimsen Joshi,
Age: 54 years, Occ: S.B.College Employee,
2.
Meera W/o Late Ashok Joshi,
Age: 46 years, Occ: Household,
3.
Pawan Joshi S/o Ashok Joshi,
Age: 21 years, Occ: Student,
4.
Rajat Joshi S/o Late Ashok Joshi,
Age: 16 years, Occ: Student,
Minor, represented by his natural mother
Appellant No.2 herein
5.
Anjali Patil D/o Nirmala & Bhimsen Joshi,
Age: 56 years, Occ: Household,
All are R/o Sumitra Nilaya, Saraswati Godam,
Kalaburagi-585 101.
... ...Appellants
(By Sri D.P.Ambekar, Advocate)
AND:
1.
Mandakini W/o Sudhindra Rao,
Age: 60 years, Occ: Household,
R/o H.No.37, 1st Floor, 3rd Cross,
Near 13th main, Central Excise Lay out,
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Vijayanagar, Bangalore-560040.
2.
Gururaj S/o Somrao @ Shamrao Joshi,
Age: 64 years, Occ: Retd. Branch Manager,
Corporation Bank, Electronic City Branch,
Bangalore-560080.
3.
Anu Joshi D/o Nirmala @ Bhimsen Joshi,
Age: 51 years, Occ: Household,
R/o Sumitra Nilaya, Saraswati Godam,
Kalaburagi-585101.
4.
Smt. Shakuntala Kulkarni W/o Gunderao Kulkarni,
Age: 66 years, Occ: Household,
R/o # 646, 4th Main, Nisarga Layout, Jigani,
Hobli, Bannerughatta Road,
Bangalore-560083.
..... Respondents
(R1 to R4 are served)
This Regular First Appeal is filed under Section 96 R/w
Order 41 Rule 1 of the Code of Civil Procedure, praying to allow
this appeal and set aside the judgment and decree dated
07.02.2018, in the interest of justice and equity and etc.
This
appeal
coming
on
for
orders
this
day,
S.R.Krishna Kumar, J, delivered the following:
Daughters of a co-parcener are entitled to an equal share as that of a son in the ancestral property, irrespective of whether the co-parcener died before or after the 2005 amendment to Section 6 of the Hindu Succession Act.
Headnote:
HINDU SUCCESSION ACT - DAUGHTER'S SHARE - EQUAL SHARE
Fact of the Case:
The appellants challenged the trial court's decision in a partition suit, arguing that the trial court erred in quantifying the shares of the daughters as 1/8th instead of 1/4th, relying on the Supreme Court's decision in Vineeta Sharma vs. Rakesh Sharma & Ors., which overruled the earlier decision in Prakash vs. Phulvati.
Finding of the Court:
The court held that the trial court erred in relying on Prakash vs. Phulvati, which was overruled by Vineeta Sharma, and modified the trial court's decree to declare that each of the four children of the deceased Somarao alias Shamarao are to be declared as having 1/4th share each in the suit schedule property.
Issues: Whether the trial court erred in quantifying the shares of the daughters as 1/8th instead of 1/4th.
Ratio Decidendi: The court relied on the Supreme Court's decision in Vineeta Sharma vs. Rakesh Sharma & Ors., which held that daughters of a co-parcener are entitled to an equal share as that of a son, irrespective of whether the co-parcener died before or after the 2005 amendment to Section 6 of the Hindu Succession Act.
Final Decision: The appeal was partly allowed, and the trial court's decree was modified to declare that each of the four children of the deceased Somarao alias Shamarao are to be declared as having 1/4th share each in the suit schedule property.
This appeal is directed against the impugned judgment
and decree dated 07.02.2018 passed in O.S.No.59/2012 by
the Prl. Senior Civil Judge, Kalaburagi, whereby the suit for
partition and separate possession and other reliefs filed by the
respondent No.1 was partly decreed by the trial court.
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Heard the learned counsel for the appellants and
perused the materials on record.
The respondents having been served with notice
of this appeal has choosen to remain unrepresented and have
not contested this appeal.
The material on record indicates that the
appellants and respondent No.3 are the children of one
Nirmala who was the sister of respondent Nos.1, 2 and 4.
The aforesaid Nirmala and respondents 1, 2 and 4 herein
were children of one Somarao @ Shamarao who died
interstate on 17.03.1991. The said Samarao @ Shamarao's
first wife Malati having predeceased him, his second wife Smt.
Anusuyabai also expired on 31.12.2010. In the said suit filed
by respondent No.1/plaintiff , who was the daughter of the
deceased Shamarao, the appellant herein was arrayed as
defendant No.2 while had brother Gururaj was arrayed as
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defendant No.1 while the other sister Shakuntala was arrayed
as defendant No.3.
In the said suit, the defendant No.1-Gururaj
contested the suit while defendant Nos.2 and 3 including the
aforesaid Nirmala remained ex-parte and did not contest the
suit. After trial and after hearing the plaintiff and defendant
No.1, the trial court proceeded to decree the suit following the
decision of the Apex Court in the case of Prakash vs
Phulavati, AIR 2016 (2) SCC 36, thereby holding that in the
light of the undisputed fact that the suit schedule property was
a joint family ancestral property in the hands of Somarao @
Shamarao, the said Somarao @ Shamarao was entitled to a
notional half share in the suit schedule property. It was also
held that the remaining notional half share was owned and
possessed by Gururaj, defendant No.1. The trial court further
held that in the light of the aforesaid decision in Pulavati's
case supra, the notional half share of Somarao would have to
be once again divided into four equal shares and
consequently the trial court declared that each of the
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daughters that is viz, Nirmala, Shankuntala and Mandakini
were entitled to 1/8th share each in suit schedule property
while the plaintiff, Gururaj was entitled to 5/8th (1/2 + 1/8th)
share in the suit scheduled property.
6. The sole grievance urged on behalf of the appellants
who are the children/ legal representatives of the deceased
Nirmala is that the trial court committed an error in quantifying
the shares of the daughters as 1/8th i.e. 1/4th in the notional
half share of the deceased Somrao alias Shamrao. It is
submitted that the impugned judgment and decree passed by
the trial court is contrary to the decision of the larger bench of
the Hon’ble Apex Court in the case of Vineeta Sharma vs.
Rakesh Sharma & Ors. reported in (2020) 9 SCC 1 wherein
the Apex Court has categorically held that the daughters of
co-parcenor i.e. Somarao alias Shamrao would be entitled to
equal share as that of the son irrespective of the fact that the
co-percenor had expired prior to 09.09.2005 when the
amendment to Section 6 of the Hindu Succession Act came
into force; so also earlier decision of the Apex Court in
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Prakash vs. Phulvati’s case, supra, was expressly over-ruled
by the Apex Court in the subsequent decision in Vineeta
Sharma’s case.
7. As rightly contended by the learned counsel for the
appellants, in the light of subsequent decision of the larger
bench of the Apex Court in Vineeta Sharma’s case, expressly
over-ruling the decision in Prakash vs. Phulwati’s case relied
by the trial court in the impugned judgment and decree, we
are of the considered opinion that the impugned judgment and
decree passed by the trial court deserves to be modified and
each of the parties i.e. all the four children of the deceased
Somarao alias Shamarao are to be declared as having
