Research › Search › Judgment

Karnataka High Court · body

2012 DIGILAW 899 (KAR)

H. L. Lakshmamma v. Satya

2012-10-18

RAVI MALIMATH

body2012
JUDGMENT RAVI MALIMATH, J.—The 1st plaintiff is the wife of late Chikkamogegowda @ Chikkegowda. The 2nd plaintiff and defendants 3 and 4 are the daughters of late Chikkamogegowda @ Chikkegowda. The 1st defendant is the son and the 2nd defendant is the daughter-in-law of late Chikkamogegowda @ Chikkegowda. He had three daughters and two sons. The 2nd plaintiff was born to 1st plaintiff through Chikkamogegowda. Jayamma, the 4th defendant was delivered by the 1st wife of Chikkamogegowda @ Chikkegowda. The 1st defendant, husband of the 2nd defendant and the 3rd defendant are born through 2nd wife of late Chikkamogegowda @ Chikkegowda. The defendants 3 and 4 were married long back and they lived alongwith their husbands but the 3rddefendant Chandramma is now residing at Doddamalur leaving her husband. The marriages of all the defendants were celebrated by late Chikkamogegowda. However, the marriage of the 1st plaintiff was not performed. After the marriage of 1st and 2nd defendants, some misunderstandings arose between the plaintiffs and the 1st and 2nd defendants and thereby, the defendants 1 and 2 alongwith Prabhudev started to live separately. However, the plaintiffs and Chikkamogegowda @ Chikkegowda lived together. 2. During 1991 late Chikkamogegowda @ Chikkegowda divided the landed properties, i.e., the suit schedule properties. However, the defendant No. 1 and the husband of the 2nd defendant were not satisfied with the said division. Chikkamogegowda @ Chikkegowda died in the year 1992 and during January 1994, the husband of the 2nd defendant also died. After their death all the family members are enjoying the properties and in possession residing separately, though the partition did not take place by metes and bounds. Thereafter, the plaintiffs filed O.S. No. 1/1996 for bare injunction. The suit was dismissed. However, in the said suit, the defendants 1 and 2 have taken the defence that there is no division in the family and the schedule properties are in joint possession by accepting the right of the plaintiffs and denying the separate individual possession of the plaintiffs. Notwithstanding the same, the defendants did not come forward to partition the properties in favour of the plaintiffs. Hence, they filed the present suit seeking partition of the suit schedule properties for their separate shares and other consequential reliefs. 3. The defendants denied the plaint averments. The 1st defendant contended that the plaintiffs never resided with the defendants since their birth. Hence, they filed the present suit seeking partition of the suit schedule properties for their separate shares and other consequential reliefs. 3. The defendants denied the plaint averments. The 1st defendant contended that the plaintiffs never resided with the defendants since their birth. Defendants are in possession and enjoyment of the suit schedule properties without any interruption by any body much less the plaintiff. The 1st plaintiff kept the mistress and she is not the legally wedded wife of late Chikkamogegowda @ Chikkegowda. She intentionally wants to grab the property of late Chikkamogegowda @ Chikkegowda and has filed the false suit. In the absence of any relationship, the plaintiffs are not entitled to any share in the suit schedule properties. 4. The trial Court framed the following issues for consideration: (1) Whether the plaintiff proves that 1st plaintiff is the wife of late Chikkamogegowda @ Chikkegowda and the 2nd plaintiff is his daughter? (2) Whether the plaintiff proves that the suit schedule properties are the joint family properties? (3) Whether the plaintiff is entitled for partition and separate possession of 7/18th share in the suit schedule properties? (4) Whether the plaintiffs are entitled to the relief of mesne profit as prayed for? (5) Whether the plaintiffs are entitled to the reliefs as prayed them? (6) To what order and decree? The issues were answered as follows: 1. Affirmative 2. Affirmative 3. Affirmative 4. Negative 5. Affirmative 6. As per final order 5. The 1st plaintiff was examined as PW-1 and 11 documents were marked on her behalf. The 1st defendant was examined as DW-1 alongwith three other witnesses and Ex.D1 was marked on their behalf. 6. On contest, the suit of the plaintiffs was decreed by holding that the plaintiffs are entitled to 1/6th share each out of the entire suit schedule properties. However, mesne profits were denied. 7. Aggrieved by the same, the defendants 1 and 2 filed an appeal. The first Appellate Court on reconsidering the entire issue held that the plaintiff No. 2 and the defendants 3 and 4 were born prior to 09.09.2005. As such, they do not acquire the status of coparcener by virtue of the Hindu Succession (Amendment) Act, 2005. 7. Aggrieved by the same, the defendants 1 and 2 filed an appeal. The first Appellate Court on reconsidering the entire issue held that the plaintiff No. 2 and the defendants 3 and 4 were born prior to 09.09.2005. As such, they do not acquire the status of coparcener by virtue of the Hindu Succession (Amendment) Act, 2005. Having applied the said provision, it modified the judgment and decree of the trial Court by declaring that the plaintiffs 1 and 2 and the defendants 3 and 4 are entitled to 1/18th share each in the suit properties and that the defendant No. 1 and the husband of the defendant No. 2 are entitled to 7/18th share each in the suit properties. Aggrieved by the said judgment and decree, the plaintiffs have filed the present appeal. 8. The appeal was admitted on the following question of law: “Whether the lower appellate Court was justified in refusing the share of the appellants having regard to amendment to Section 6 of the Hindu Succession Act, 2005?” 9. Sri. Jayaraj, the learned Counsel for the appellants contends that the first Appellate Court committed an error in allowing and modifying the judgment and decree of the trial Court. That the first Appellate Court fell in error with regard to the applicability of the amendment of the Hindu Succession Act. He contends that the first Appellate Court fell in error in holding that since the plaintiff No. 2 and the defendants 3 and 4 born prior to 9.9.2005, they do not acquire the status of coparcener by virtue of the Hindu Succession (Amendment) Act, 2005. He contends that primarily on this reasoning, the judgment and decree was modified. Hence, it is contended that the first Appellate Court committed an error. By relying on the judgment in the case of Pushpalatha N.V. vs. V. Padma and others, reported in ILR 2010 KAR 1484, he contends that the trial Court has rightly considered the amendment. The shares allotted by the trial Court are just and proper. That the family constituting the sons and daughters are six in all. The trial Court has rightly granted 1/6th to each one of them. Hence, interference was called for by the first Appellate Court. 10. On the other hand, Sri. N.S. Bhat, the learned Counsel for respondents 1 and 2 defends the impugned judgment and decree. That the family constituting the sons and daughters are six in all. The trial Court has rightly granted 1/6th to each one of them. Hence, interference was called for by the first Appellate Court. 10. On the other hand, Sri. N.S. Bhat, the learned Counsel for respondents 1 and 2 defends the impugned judgment and decree. He contends that there is no error committed by the first Appellate Court. Hence, no interference is called for. He contends that the application of the Amendment Act has been rightly considered by the first Appellate Court and hence, the appeal be dismissed. 11. Heard the learned Counsels and examined the records. 12. The trial Court while granting 1/6th shares to each one of the plaintiffs reasoned the same in terms of Issue No. 3. Issue No. 3 is as to whether the plaintiff is entitled for partition and separate possession of 7/18th share in the suit schedule properties. 13. While considering the said issue, the trial Court held that in terms of Hindu Succession (Amendment) Act, 2005, the daughter by birth become a coparcener in her own right in the same manner as the son. Therefore, in view of the Amendment of the Hindu Succession Act, the shares would differ from the claim made in the plaint. It further held that it is necessary to find out the quantum of shares. In terms of the amendment, all the male and female children are equally entitled. Hence, the plaintiffs are entitled to 1/6th share each and totally 2/6th share, out of the entire suit schedule properties. The first Appellate Court differed from the said view. It held that the daughter of a coparcener by birth becomes a coparcener on and from the date of commencement of the Hindu Succession (Amendment) Act, 2005. The said Act came into effect on 09.09.2005. Therefore, a daughter of a coparcener becomes a coparcener if she borns only on or after 09.09.2005. In the case on hand, the plaintiff No. 2, the defendants 3 and 4 are born long prior to 09.09.2005. As such, they do not acquire the status of a coparcener by virtue of the amendment of 2005. Therefore, it was of the view that the trial Court failed to consider this position in law. In the case on hand, the plaintiff No. 2, the defendants 3 and 4 are born long prior to 09.09.2005. As such, they do not acquire the status of a coparcener by virtue of the amendment of 2005. Therefore, it was of the view that the trial Court failed to consider this position in law. Consequently, the plaintiffs and the defendants 3 and 4 are entitled to a share in the undivided interest of Chikkamogegowda, which amounts to 1/18th share only. Under the circumstances, the judgment and decree of the trial Court was modified by holding that the plaintiffs 1 and 2 and the defendants 3 and 4 are entitled to 1/18th share each in the suit properties and that the defendant No. 1 and the husband of the defendant No. 2 are entitled to 7/18th share each in the suit properties. 14. On considering the contentions advanced as well as the applicable law, I ‘am of the considered view that the findings recorded by the first Appellate Court is erroneous. The first Appellate Court misread the provision of law while modifying the judgment and decree of the trial Court. The trial Court has rightly applied the law while disposing of the suit. 15. In the judgment of this Court in the case of M. Prithviraj and others vs. Smt. Leelamma N. and others, reported in 2008 (4) KCCR 2333 (DB), it held on the facts therein that when the succession opens earlier to the amended provisions coming into force, the amended provisions will not apply. Therefore, the amended provisions of Hindu Succession Act, 2005 will not apply as succession opened in 1969. By relying on the judgment of this Court as well as the judgment of the Hon’ble Supreme Court, it is clear that there is no declaration of law so far as the law is concerned. In the judgment of this Court in the case of Pushpalatha N.V. vs. V. Padma and others, reported in ILR 2010 KAR 1484, it made it clear at Para 119 that neither the Apex Court nor the High Court, in the aforesaid decisions were interpreting the amended Section and they have not laid down any law. Therefore, no reliance could be placed on the said judgments. 16. Therefore, no reliance could be placed on the said judgments. 16. In the judgment of this Court in the case of Pushpalatha N.V. vs. V. Padma and others, reported in ILR 2010 KAR 1484, it was held at Paras 120, 121 and 122 as follows: “120. Even before the commencement of the amended Section 6, if succession opened and a co-parcener acquires a specific share in the co-parcenary property, which vests in him on the date the succession opens, it is open to the legislature in exercise of its plenary power to take away such vested right by making the law retrospective. It is only when the amended law is silent about its application or ambiguous, when the Court is called upon to interpret such provision, the Court cannot place an interpretation which would take away a vested right, especially in matters of succession. But, the said Rule has no application when the legislature expressly or by necessary implication makes its intention clear by making such amended law retrospective. It is settled principle of law the legislature has the power to take away a vested right by enacting the law and by expressing its intention in clear terms. 121. Under the unamended Section 6 when a male Hindu dies after the commencement of the Act, his interest in the Mitakshara co-parcenary property devolve by survivorship upon the surviving members of the Co-parcenary. Prior to amended Section surviving members of the Co-parcenary included only male members and sons. By the amended Section 6, a daughter is conferred the status of a Co-parcener and she would become a member of the coparcenary. To that extent the amended Section is inconsistent with the unamended Section 6. Therefore, the amended Section as it evinces contrary intention effecting the portion of unamended Section 6 and also confers on such daughters, the right to property by birth, the rights which accrue to the male members of the co-parcener on the succession being open prior to the amended Section is affected, their share get reduced. 122. The Parliament wanted to give the benefit of the law to the daughters from 1956 itself. By giving such a right to the daughters even in pending matters all that happens is the shares of the sons would get reduced. But, the vested right which they acquired by birth is not extinguished. It is a curative legislation. 122. The Parliament wanted to give the benefit of the law to the daughters from 1956 itself. By giving such a right to the daughters even in pending matters all that happens is the shares of the sons would get reduced. But, the vested right which they acquired by birth is not extinguished. It is a curative legislation. This right ought to have been given to the daughters in the year 1956 itself when daughters were given the constitutional right of equality. The legislature has the power to take away such vested right by enacting a law and making its intention clear expressly or by necessary implication. By enacting the amended Section the legislative intent is clear. Not only the law is made retrospective but also affects such vested right of a male Coparcener. Therefore, the contention that the vested right of a Co-parcener which had accrued by the opening of the succession prior to the amended Act cannot be taken away, is without any substance.” 17. Applying the said judgment to the facts of the case, it is evident that the interpretation sought to be made by the first Appellate Court runs contrary to the judgment of this Court. The said judgment is rightly considered by the trial Court. Hence, I ‘am of the considered view that the substantial question of law be answered by holding that the first Appellate Court is not justified in refusing the share of the plaintiffs. Having regard to the amendment of Section 6 of the Hindu Succession Act, the said substantial question of law is accordingly answered. 18. In view of the answer to the said substantial question of law, the appeal is allowed. The judgment and decree dated 18.07.2007 passed in R.A. No. 5/2007 by the Prl. Civil Judge (Sr. Dn.), Ramanagaram is set aside. The judgment and decree dated 30.09.2006 passed No. S. No. 116/1999 by the Civil Judge (Jr. Dn.) and JMFC, Channapatna is confirmed. 19. No costs.