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2023 DIGILAW 193 (KAR)

K R Laxmidevi v. Bhima Rao

2023-02-01

SACHIN SHANKAR MAGADUM

body2023
JUDGMENT/ORDER 1. The captioned second appeal is filed by defendant No.4 feeling aggrieved by the judgment and decree of the Appellate Court wherein Appellate Court has declined to grant share to the defendant No.4 on the premise that she was born in 1949 and that her marriage was solemnized much prior to amendment to Sec. 6(A) of Hindu Succession Act. Consequently, 1/5th share granted by the trial Court is reversed thereby declining share to defendant No.4. 2. For the sake of brevity, the parties are referred to as per their rank before the trial Court. 3. The family tree is as under: 4. One K.R.Sridhar who is the son of Gangamma and Rangappa Jois filed a suit for partition and separate possession and said suit was decreed granting 1/5th share to the plaintiff and 1/5th share to the defendants. Under the preliminary decree, the trial Court has granted 1/5th share to defendant No.4. The Appellate Court, however, while entertaining the appeal filed by defendant Nos.1 and 3 has allowed the appeal in part declining to grant share to the defendant No.4 on the premise that she was born in 1949 and that her marriage was solemnized much prior to Karnataka amendment to Hindu Succession Act i.e., Sec. 6(A). 5. Therefore, defendant No.4 who is the daughter is before this Court questioning the judgment and decree of the Appellate Court. 6. This Court vide order dtd. 31/1/2023 was pleased to admit the appeal on the following substantial question of law: "Whether findings of the Appellate Court that defendant No.2, who is a daughter is not entitled for any share, is perverse, palpably erroneous and contrary to the principles laid down by the Hon'ble Apex Court in the case of Vineeta Sharma vs. Rakesh Sharma and others reported in AIR 2020 SC 3717 ?" 7. The controversy relating to entitlement of share by a daughter is put to rest by the Hon'ble Apex Court in the case of Vineeta Sharma vs. Rakesh Sharma and Others, (2020) 9 SCC 1 . The law is no more res integra. Appellate Court has declined to grant share to defendant No.4 on two counts. Firstly, that she was born much prior to codification of Hindu law. Secondly, on the ground that her marriage was solemnized before amendment to Sec. 6(A) of the Hindu Succession Act. 8. The law is no more res integra. Appellate Court has declined to grant share to defendant No.4 on two counts. Firstly, that she was born much prior to codification of Hindu law. Secondly, on the ground that her marriage was solemnized before amendment to Sec. 6(A) of the Hindu Succession Act. 8. It is not in dispute that plaintiff and defendants father Rangappa Jois died after 1956 i.e., 13/12/1971. If father of defendant No.4 has died after 1956, it is immaterial whether defendant No.4 was born prior to codification of Hindu Law. It would be of no consequence. Therefore, this Court is of the view that the principles laid down by the Apex Court in the case of Vineeta Sharma (supra) are squarely applicable to the present case on hand. If both the Courts have concurrently held that there is no severance in the family and the nucleus is intact, then defendant No.4 in view of amendment to Sec. 6 of the Hindu Succession Act would assume the character of a co-parcener and therefore, she is entitled for equal share. 9. Therefore, the judgment rendered by the Appellate Court in declining to grant share to defendant No.4 is in direct conflict with the principles laid down by the Apex Court in the case of Vineeta Sharma (supra). Therefore, the substantial question of law formulated by this Court is answered in the affirmative. 10. For the foregoing reasons, I pass the following: ORDER (i) The second appeal is allowed; (ii) The judgment and decree dtd. 17/7/2013 passed in R.A.No.126/2010 is set aside. Consequently, the preliminary decree passed by the trial Court in O.S.No.115/2007 is confirmed; (iii) The pending interlocutory applications, if any, do not survive for consideration and stand disposed of.