Rudrappa Basappa Kudari (Marihal) vs Siddappa Ningappa Chachadi

-1- NC: 2023:KHC-D:12991 RSA No. 101388 of 2022

IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

DATED THIS THE 7TH DAY OF NOVEMBER, 2023

BEFORE THE HON'BLE MRS JUSTICE K.S.HEMALEKHA REGULAR SECOND APPEAL NO.101388 OF 2022 (PAR/POS) BETWEEN:

RUDRAPPA BASAPPA KUDARI (MARIHAL), AGE. 72 YEARS, OCCUPATION. AGRICULTURE R/O. BORGAL VILLAGE, TALUK HUKKERI DISTRICT. BELAGAVI BY PA HOLDER SATYAPPA RUDRAPPA KUDARI AGE. 37 YEARS, OCC. PRIVATE SERVICE R/O. BORGAL VILLAGE, TALUK. HUKKERI DISTRICT: BELAGAVI-591309.

...APPELLANT

(BY SRI. SRINIVAS B. NAIK, ADVOCATE)

AND: Digitally signed by VISHAL 1. SIDDAPPA NINGAPPA CHACHADI VISHAL NINGAPPA NINGAPPA PATTIHAL AGE. 56 YEARS, OCCUPATION. AGRICULTURE PATTIHAL Date: R/O. NABHAPUR VILLAGE, TALUK. GOKAK 2023.11.16 11:03:20 +0530 DISTRICT. BELAGAVI-591218.

2. SHANKAR NINGAPPA CHACHADI AGE. 50 YEARS, OCCUPATION. AGRICULTURE R/O. NABHAPUR VILLAGE, TALUK. GOKAK DISTRICT. BELAGAVI-591218.

3. BASAPPA NINGAPPA CHACHADI AGE.44 YEARS, OCCUPATION. AGRICULTURE R/O. NABHAPUR VILLAGE, TALUK. GOKAK DISTRICT. BELAGAVI-591218. -2- NC: 2023:KHC-D:12991 RSA No. 101388 of 2022

4. RAMESH NINGAPPA CHACHADI AGE. 42 YEARS, OCCUPATION. AGRICULTURE R/O. NABHAPUR VILLAGE, TALUK. GOKAK DISTRICT. BELAGAVI-591218.

5. BASAPPA MALLAPPA KADI AGE. 72 YEARS, OCCUPATION. AGRICULTURE R/O. NABHAPUR VILLAGE, TALUK. GOKAK DISTRICT. BELAGAVI-591218.

6. FAKIRAPPA MALLAPPA KADI AGE. 67 YEARS, OCCUPATION. AGRICULTURE R/O. NABHAPUR VILLAGE, TALUK. GOKAK DISTRICT. BELAGAVI-591218.

...RESPONDENTS

(BY SRI. M. L. VANTI, ADVOCATE FOR R1 TO R4; V/O/D 11/7/2023 NOTICE TO R5 AND R6 IS HELD PROPER)

THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION

100 OF CPC, 1908, PRAYING TO, SET ASIDE THE JUDGMENT AND

DECREE DATED 29.10.2021 PASSED IN RA NO. 8018/2021 ON THE

FILE OF XII ADDITIONAL DISTRICT AND SESSIONS JUDGE,

BELAGAVI, SITTING AT GOKAK AND SET ASIDE THE JUDGMENT AND

DECREE DATED 21.04.2021 PASSED IN OS NO. 415/2019 ON THE

FILE OF II ADDITIONAL SENIOR CIVIL JUDGE, GOKAK AND ALLOW

THE REGULAR FIRST APPEAL OF APPELLANT AND DISMISS THE SUIT

OF PLAINTIFF, BY ALLOWING THIS APPEAL WITH COSTS IN THE

ENDS OF JUSTICE AND EQUITY.

THIS REGULAR SECOND APPEAL, COMING ON FOR

ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING: -3- NC: 2023:KHC-D:12991 RSA No. 101388 of 2022

JUDGMENT

Though the matter is listed for admission with consent of

learned counsel on both the side, the matter is taken up for

final disposal.

2. The present Second Appeal by the unsuccessful

defendant assailing the concurrent findings of the Courts below,

whereby, the suit seeking for partition and separate possession

was decreed granting ¼ share collectively to the plaintiff and ¾

share to defendant No.1.

3. Heard Sri Srinivas B.Naik the learned counsel for

the appellant and Sri M.L.Vanti, learned counsel appearing for

the respondents and perused the Judgment and decree of the

Courts below.

4. Parties herein are referred to as per their ranking

before the Trial Court for the sake of convenience.

5. The brief facts of the case are as under:

The family pedigree of the parties is as under: -4-

NC: 2023:KHC-D:12991 RSA No. 101388 of 2022

(Basappa)

(Tayawwa) Rudrappa-D.1

Siddappa Shankar Basappa Ramesh P.1 P.2 P.3 P.4

Suit seeking for partition and separate possession in

respect of an agricultural land bearing RS.No.104/6 measuring

2 acres 7 guntas, plaintiffs claim equal share in the suit

schedule property. Plaintiffs' mother Tayawwa is the sister of

defendant No.1 and defendant No.2 and 3 though have been

impleaded in the suit according to the plaintiff they no way

concerned to the family of the plaintiffs and defendant No.1.

6. Pursuant to the suit summons issued by the Trial

Court, the defendants appeared and filed their written

statement, inter alia denying the averments made in the plaint

and contended that defendant No.1 is the absolute owner in

possession and enjoyment of the suit schedule property. -5-

NC: 2023:KHC-D:12991 RSA No. 101388 of 2022

7. The Trial Court on the basis of the pleadings framed

the following:

ISSUES

1. Whether the plaintiffs prove that the suit property is an ancestral joint family property of themselves and defendant No.1?

2. Whether the defendant No.1 proves that the suit is bad for non-inclusion of all the family property?

3. Whether the plaintiffs are entitled to ½ share in the suit property ?

4. What order or decree ?

8. In order to substantiate their claim plaintiffs

examined plaintiff No.3 as PW.1 and got marked documents at

Ex.Ps.1 to P.9 and examined one witness Vijayaverma

Dharmaraj Naik as PW.2. On the other hand, defendant No.1

examined the power of attorney holder as DW.1 and no

documents were marked on their behalf.

9. The Trial Court on the basis of the pleadings, oral

and documentary evidence held that the plaintiffs are entitled

for the notional partition in the share of their mother Tayawwa -6- NC: 2023:KHC-D:12991 RSA No. 101388 of 2022

to the extent of ¼ share and defendant No.1 is entitled for ¾

share in the suit schedule property. The plaintiffs as well as the

defendants preferred an appeal before the First Appellate

Court. R.A.No.8014/2021 was preferred by the plaintiffs against

the notional partition granted by the Trial Court and

R.A.No.8018/2021 was preferred by defendant No.1 against

granting of share to the plaintiffs.

10. The First Appellate Court re-appreciated the entire

oral and documentary evidence and arrived at a conclusions

that the plaintiffs and defendants have not made out the case

for interference and accordingly dismissed the regular appeals,

confirming the notional partition allotting 1/4th share

collectively to the plaintiffs.

11. Defendant No.1 is before this Court assailing the

Judgment and decree dismissing the appeal filed by defendant

No.1 granting share itself to the plaintiffs. However, no appeal

has been preferred by the plaintiffs against the dismissal of

their appeal and confirming notional partition. -7-

NC: 2023:KHC-D:12991 RSA No. 101388 of 2022

12. Heard the learned counsel for the appellant and the

learned counsel appearing for the respondents and perused the

Judgment and decree of the Courts below.

13. The undisputed facts are that the plaintiffs are the

children of Tayawwa and the sister of defendant No.1. The Trial

Court and the First Appellate Court though holds that the suit

schedule properties are the ancestral joint family properties of

the plaintiffs and defendant No.1 has held that the plaintiffs are

entitled for 1/4th share in the share of the mother-Tayawwa.

The Courts below have lost sight of Section 6 of the Hindu

Succession (Amendment) Act, 2005 (Act 39 of 2005), which

confers coparcenary right upon the daughters and they are

entitled for equal share on par with the sons. The recent

decision of the Apex Court in the case of Vineeta Sharma Vs.

Rakesh Sharma and Others1 at paragraph No.137 which

reads as under:

"137. Resultantly, we answer the reference as under:

137.1. The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born

1 (2020) 9 SCC 1 -8- NC: 2023:KHC-D:12991 RSA No. 101388 of 2022

before or after the amendment in the same manner as son with same rights and liabilities.

137.2. The rights can be claimed by the daughter born earlier with effect from 9-9-2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before the 20th day of December, 2004.

137.3. Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9-9-2005.

137.4. The statutory fiction of partition created by the proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class I as specified in the Schedule to the 1956 Act or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed, the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.

137.5. In view of the rigour of provisions of the Explanation to Section 6(5) of the 1956 Act, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had -9- NC: 2023:KHC-D:12991 RSA No. 101388 of 2022

been affected (sic effected) by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly."

14. The Apex Court in Vineeta Sharma's case

referred supra referred to various concepts of Hindu Law, both

codified and customary, being concepts such as coparcenary

and joint Hindu family, the Apex Court held that the

coparcener's father need not be alive as on 09.09.2005 in order

for a daughter to inherit rights over the coparcenary property,

as per amended Section 6 of the Hindu Succession Act, the

Apex Court held that the right conferred on a daughter, the

coparcenary property is by birth and the entitlement of the

daughter is equal to that of a son and conferred the status of

coparcener on the daughter born before or after the

amendment in the same manner as son with same rights and

liabilities. The plaintiffs preferred appeal before the First

Appellate Court against the granting of notional partition, the

First Appellate Court being the last fact finding Court ought to

have granted equal share in light of the decision of the Apex

Court in the case of Vineeta Sharma stated supra. Though the

plaintiffs have not preferred any appeal assailing the dismissal

of their First Appeal by the First Appellate Court, this Court in

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NC: 2023:KHC-D:12991 RSA No. 101388 of 2022

exercise of the powers under Order XLI Rule 33 of CPC and in

light of the law declared by the Apex Court that the daughters

are entitled for equal share in the suit schedule property, the

shares granted by the Trial Court and the First Appellate Court

needs to be modified in the present appeal filed by defendant

No.1. The scope of power under Rule 33 of Order XLI is wide

enough to determine any question not only between the

appellant and the respondents but also between the respondent

and co-respondents. The only constrained on the power of the

Court is that the parties before the Trial Court should also be

there before the Appellate Court and accordingly the shares

granted by the Trial Court and the First Appellate Court needs

to be modified in the present Second Appeal preferred by

defendant No.1. Accordingly, this Court pass the following:

ORDER

i) The Regular Second Appeal stands disposed of.

ii) The shares of the plaintiffs and defendant No.1 are modified holding that the plaintiffs together are entitled for ½ share and defendant - 11 - NC: 2023:KHC-D:12991 RSA No. 101388 of 2022

No.1 is entitled for ½ share in the suit schedule properties.

Sd/- JUDGE

PJ,VNP/ Ct-Umd List No.: 1 Sl No.: 55