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2021 DIGILAW 632 (KAR)

Jayamma v. Puttamma

2021-06-02

ALOK ARADHE, HEMANT CHANDANGOUDAR

body2021
JUDGMENT : ALOK ARADHE, J. 1. This appeal under Section 96 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code' for short) has been filed against judgment and decree dated 13.02.2013 passed by the Trial Court, by which the suit for partition and separate possession filed by plaintiff/respondents has been decreed. 2. The dispute in this appeal pertains to half share of the plaintiffs in respect of land measuring 2 acres and 15 guntas bearing Sy. No. 99/2 situated at Karakanhalli Village, Yelwala Hobli, Mysore Taluk. Facts leading to filing of this appeal briefly stated are that one Byregowda was the owner of land bearing Sy. Nos. 99/2 and 91/3 measuring 2 acres 15 guntas and 1 acre 21 guntas situated at Karakanhalli Village, Yelwala Hobli, Mysore Taluk. Admittedly, aforesaid Byregowda expired sometime in the year 1986, intestate leaving behind the plaintiffs viz., the daughters and husbands of original defendants 1 and 2 as their legal representatives. The husband of defendant No. 1 expired sometime in the year, 1991 leaving behind defendant Nos. 1 and 5 to 7 as his legal heirs. Similarly, husband of defendant No. 2 died sometime in the year, 1986 leaving behind defendant No. 2 and defendants 8 and 9 as legal heirs. The family tree is reproduced below to explain the relationship of parties to the suit: Late Byregowda (dead) (Wife) Smt.Laksmama (dead) Late Siddegowda Smt.Puttamma (1 st Plaintiff) Sannaputte Gowda (dead) Smt.Jayamma (2 nd Plaintiff) Smt.Jayamma (wife) (1 st defendant) Smt.kamalamma(wife) (2 nd defendant) Kum.Latha (5 th def) Shivarju (6 th def) Smt.Kalpana (7 th def) Smt.Sukanya (8 th def) Chandrashekara (9 th def) The suit properties are joint family property of the plaintiffs and defendants. 3. The plaintiffs who are daughters of late Byregowda filed a suit seeking the relief of declaration, partition and separate possession inter alia on the ground that suit lands are joint family properties and the plaintiffs and defendants are in joint possession of the same. It was pleaded that defendants used to look after the properties, however, defendant Nos. 1 and 2 after the death of their husbands with a malafide intention sometime in the year 1997-1998 with a view to deprive the plaintiffs of their right and share in the joint family properties, got their names mutated in the revenue records without the knowledge of the plaintiffs. 1 and 2 after the death of their husbands with a malafide intention sometime in the year 1997-1998 with a view to deprive the plaintiffs of their right and share in the joint family properties, got their names mutated in the revenue records without the knowledge of the plaintiffs. Thereafter, the plaintiffs learnt that defendants 1 and 2 entered into an agreement for sale in respect of the suit lands. The plaintiffs made an enquiry and demanded their share in the suit lands from the defendants. At that time, the plaintiffs were informed that defendants have effected partition by paalu parikath (partition by mutual consent before members of panchayat). It was pleaded that defendants have no right to divide the joint family properties without allotting any share to the plaintiffs and the alleged partition to which plaintiffs are not the parties is not binding on them. The plaintiffs also pleaded that they have got half share in the suit lands. Accordingly, the relief of declaration that Khatha recorded in IHR2/97-98 with respect to the suit lands is illegal, void and is not binding on the plaintiffs was sought. The relief of partition and separate possession of half share of the plaintiffs in suit schedule lands was sought. 4. The defendants filed the written statement in which factum of relationship between the parties as well as the fact that suit properties were ancestral properties and originally belonged to one Byregowda viz., the common ancestor was admitted. It was pleaded that sons of Byregowda have divided the properties of their father and defendants are in cultivating possession of their respective shares in the suit lands. It was also pleaded that plaintiffs have no right, title or interest in respect of the suit lands and the suit filed by the plaintiffs is not maintainable in law and the same is barred by limitation. 5. The Trial Court on the basis of the pleadings of the parties framed the issues and recorded the evidence of the parties. The plaintiffs examined one Devaraju as PW1 and exhibited 12 documents viz., Ex. Pl to Ex. P12, whereas, the defendants examined one Chandrashekar as DW1 and exhibited 42 documents viz., Ex. D1 to Ex. D42. 5. The Trial Court on the basis of the pleadings of the parties framed the issues and recorded the evidence of the parties. The plaintiffs examined one Devaraju as PW1 and exhibited 12 documents viz., Ex. Pl to Ex. P12, whereas, the defendants examined one Chandrashekar as DW1 and exhibited 42 documents viz., Ex. D1 to Ex. D42. The Trial Court vide judgment dated 11.02.2013 inter alia held that the suit lands are joint family properties of plaintiffs and defendants and defendants have not been able to prove that there was a partition effected in respect of the suit schedule properties. The Trial Court took note of the compromise arrived between the plaintiffs and defendants 3 and 4 in respect of property measuring 35 guntas in item No. 1 of the suit schedule properties and on the basis of the compromise arrived at between the plaintiffs dismissed the suit of the plaintiffs in respect of item No. 1 of the suit schedule properties. The plaintiffs were held entitled to half share in respect of land measuring 2 acres and 15 guntas. Accordingly, to the aforesaid extent, the suit was decreed against defendants 1 and 2 and the same was dismissed against defendants 3 and 4 on the basis of compromise arrived at between the parties. Being aggrieved, defendants 1, 2 and 5 to 9 have filed this appeal. 6. Learned counsel for the appellants submitted that in terms of Paalu Parikath dated 25.02.1991 (Ex. D1), the partition had taken place between the defendants pursuant to which the name of the defendants was recorded in the revenue records, which is evident from mutation register extract Ex. D2. It is further submitted that the Trial Court ought to have appreciated that in view of Ex. D1 and Ex. D2 on record, the defendants had partitioned the suit lands and had acted upon it. It is also argued that PW1 (Devaraju) has admitted in his cross-examination that a partition had taken place between the family members on 22.05.1991 Ex. D1. It is also submitted that the aforesaid partition was saved under Section 6(5) of the Hindu Succession Act, 1956. However, the aforesaid aspect of the matter has not been appreciated by the Trial Court. In support of aforesaid submissions, reliance has been placed on 'VINEETA SHARMA VS. RAKESH SHARMA AND OTHERS', AIR 2020 SC 3717 . 7. D1. It is also submitted that the aforesaid partition was saved under Section 6(5) of the Hindu Succession Act, 1956. However, the aforesaid aspect of the matter has not been appreciated by the Trial Court. In support of aforesaid submissions, reliance has been placed on 'VINEETA SHARMA VS. RAKESH SHARMA AND OTHERS', AIR 2020 SC 3717 . 7. On the other hand, learned counsel for respondents 1 and 2 submitted that respondents/plaintiffs are not parties to partition Ex. D1 and the aforesaid document does not refer to any earlier partition. It is pointed out that by Ex. D1, which has been executed on 22.05.1991, the partition has been carried out in present!. It is also pointed out that neither any details of partition nor the date of partition has been pleaded in the written statement and Ex. D1 has neither been proved nor the same is admissible in evidence. It is also argued that contention of the appellants that PW1 viz., Devaraju had admitted the factum of partition by Ex. D1 is factually incorrect as the aforesaid witness has denied the suggestion made to him in the cross-examination. It is also urged that the plaintiffs who are Class-I heirs cannot be deprived of their right in their father's property as in the year 1991, the succession had opened as their father had admittedly died sometime in the year 1986. In support of aforesaid submissions, reliance has been placed on decision of the Supreme Court in SITA RAM BABU PATIL VS. V. RMACHANDRA NAGO PATIL', AIR 1977 SC 1712 and 'UMAKANTA RAO VS. LALITABAI', ILR 1988 KAR 2067. 8. We have considered the submissions made by learned counsel for the parties and have perused the record. Before proceeding further, it is apposite to take note of relevant extract of Section 6 of the Hindu Succession Act, 1956 which reads as under: 6. LALITABAI', ILR 1988 KAR 2067. 8. We have considered the submissions made by learned counsel for the parties and have perused the record. Before proceeding further, it is apposite to take note of relevant extract of Section 6 of the Hindu Succession Act, 1956 which reads as under: 6. Devolution of interest in coparcenary property.-- (1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005*, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,- (a) by birth become a coparcener in her own right in the same manner as the son; (b) have the same rights in the coparcenary property as she would have had if she had been a son; (c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener: Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004. (2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition. (5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004. Explanation. -For the purposes of this section "partition" means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court] Statement of Objects and Reasons [The Hindu Succession (Amendment) Act, 2005] Section 6 of the Act deals with devolution of interest of a male Hindu in coparcenary property and recognises the rule of devolution by survivorship among the members of the coparcenary. The retention of the Mitakshara coparcenary property without including the females in it means that the females cannot inherit in ancestral property as their male counterparts do. The retention of the Mitakshara coparcenary property without including the females in it means that the females cannot inherit in ancestral property as their male counterparts do. The law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution having regard to the need to render social justice to women, the States of Andhra Pradesh, Tamil Nadu, Karnataka and Maharashtra have made necessary changes in the law giving equal right to daughters in Hindu Mitakshara coparcenary property. The Kerala Legislature has enacted the Kerala Joint Hindu Family System (Abolition) Act, 1975. It is proposed to remove the discrimination as contained in section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have. State Amendment Sections 6A to 6C Karnataka: After section 6 the following sections shall be inserted, namely:- "6A. It is proposed to remove the discrimination as contained in section 6 of the Hindu Succession Act, 1956 by giving equal rights to daughters in the Hindu Mitakshara coparcenary property as the sons have. State Amendment Sections 6A to 6C Karnataka: After section 6 the following sections shall be inserted, namely:- "6A. Equal rights to daughter in co-parcenary property.- Notwithstanding anything contained in section 6 of this Act- (a) in a joint Hindu family governed by Mitakshara law, the daughter of a co-parcener shall by birth become a co-parcener in her own right in the same manner as the son and have the same rights in the co-parcenary property as she would have had if she had been a son inclusive of the right to claim by survivorship and shall be subject to the same liabilities and disabilities in respect thereto as the son; (b) at a partition in such a joint Hindu family the co-parcenary property shall be so divided as to allot to a daughter the same share as is allottable to a son: Provided that the share which a predeceased son or a predeceased daughter would have got at the partition if he or she had been alive at the time of the partition, shall be allotted to the surviving child of such predeceased son or of such predeceased daughter: Provided further that the share allottable to the predeceased child of a predeceased son or of a predeceased daughter, if such child had been alive at the time of the partition, shall be allotted to the child of such predeceased child of the predeceased son or of such predeceased daughter, as the case may be; (c) any property to which a female Hindu becomes entitled by virtue of the provisions of clause (a) shall be held by her with the incidents of co-parcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by will or other testamentary disposition; (d) nothing in clause (b) shall apply to a daughter married prior to or to a partition which had been effected before the commencement of Hindu Succession (Karnataka Amendment) Act, 1990. 9. In view of conflicting decisions of two division bench judgments of the Supreme Court in PRAKASH AND ORS. VS. 9. In view of conflicting decisions of two division bench judgments of the Supreme Court in PRAKASH AND ORS. VS. PHULAVATI AND ORS.', (2016) 2 SCC 36 , 'DANAMMA ALIAS SUMAN SURPUR AND ANR. VS. AMAR AND ORS.', (2013) 3 SCC 343, a reference was made to three judge bench of the Supreme Court. A three judge bench of the Supreme Court in 'VINEETA SHARMA VS. RAKESH SHARMA AND OTHERS', AIR 2020 SC 3717 while dealing with scope and ambit of Section 6 of the Hindu Succession Act, 1956 as amended by Hindu Succession (Amendment) Act, 2005 answered the reference in the following terms: (i) The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities. (ii) 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 20th day of December, 2004. (iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005. (iv) The statutory fiction of partition created by 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 Act of 1956 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. (v) In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, 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. (v) In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, 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 been affected 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. 10. It is well settled in law that a partition, which is effected by some of the members of the joint family without allotting any shares to the other members of the Joint Hindu family and without obtaining their consent is invalid against the said members. [See decision of privy council in 'GANESH DUTT THAKOOR VS. JEVACH THAKOORAIN, (1904) ILR 31 CALCUTTA 262]. The document, which is not a memorandum of partition, and records partition of immovable properties worth more than Rs. 100/- is required to be registered as required under Section 17(1)(b) of the Registration Act, 1908. It is well settled legal proposition that though such a document is inadmissible in evidence to prove the partition effected between the parties, but the same is admissible for collateral purpose to prove that the properties mentioned therein are joint family properties. 11. The twin issues, which arise for consideration in this appeal is whether the plaintiffs had a right/share in respect of suit lands on the date of the alleged partition i.e., 25.02.1991, Ex. D1 and with regard to the extent of their share in the suit lands. Admittedly, the plaintiffs are daughters of late Byregowda who admittedly died sometime in the year 1986 intestate. The plaintiffs being Category-I heirs had an equal share as that of their brothers on the date of partition i.e., 25.02.1991. It is pertinent to note that in respect of partition allegedly effected on 25.02.1991, neither any particulars of the partition nor the mode in which the partition was effected as well as the fact as to who were the parties to the partition and which lands they were allotted in partition have been disclosed in the written statement. 12. It is pertinent to note that in respect of partition allegedly effected on 25.02.1991, neither any particulars of the partition nor the mode in which the partition was effected as well as the fact as to who were the parties to the partition and which lands they were allotted in partition have been disclosed in the written statement. 12. It is pertinent to note that Ex. D1 has been marked as an exhibit subject to proof. Ex. D1 does not record any pre-existing partition. In other words, it is not a memorandum of partition. By Ex. D1, the defendants have partitioned the property amongst themselves. Thus, Ex. D1 is a partition deed, which is not registered and therefore, the same is not admissible in evidence. Besides this, the plaintiffs are not parties to the aforesaid document and therefore, the same in any case, does not bind the plaintiffs. It is also relevant to mention here that Ex. D1 has not been proved as required by law. Therefore, the Trial Court has rightly discarded the same. 13. From the close scrutiny of cross-examination of PW1-Devaraju, it is evident that aforesaid witness has denied the factum of partition on 25.02.1991. Therefore, the contention raised on behalf of the appellants that PW1 has admitted the factum of partition is incorrect. It is also noteworthy that no plea of oral partition has been set up by the defendants in the written statement, therefore, Section 6(5) if the Hindu Succession Act, 1956 has no applicability to the fact situation of the case. Therefore, the submission that the partition effected on 25.02.1991, which even otherwise is not proved is saved by Section 6(5) of the Act is sans substance and does not deserve acceptance. 14. The Trial Court on the basis of meticulous appreciation of evidence on record has recorded the findings that the property in question was a joint family property of plaintiffs and defendants and plaintiffs have half share in respect of land measuring 2 acres 15 guntas. The aforesaid finding is based on meticulous appreciation of evidence on record and does not suffer from any infirmity. For the aforementioned reasons, we do not find any merit in this appeal, the same fails and is hereby dismissed.