Research › Search › Judgment

Karnataka High Court · body

2023 DIGILAW 381 (KAR)

Rathnamma v. Narayanappa

2023-03-06

H.P.SANDESH

body2023
JUDGMENT 1. This matter is listed for admission today. Heard the learned counsel for the appellants. 2. This appeal is filed challenging the judgment and decree dtd. 2/4/2019, passed in R.A.No.15058/2017, on the file of the V Additional District and Sessions Judge, Devanahalli. 3. The factual matrix of the case discloses that the appellants had filed a suit before the Trial Court seeking the relief of partition and not to dispossess the plaintiffs from the suit schedule property. The defendant No.4 filed I.A.No.5 under Order 7 Rule 11(a) and (d) of CPC for rejection of the plaint. In the affidavit filed in support of I.A.No.5, it is contended that the plaint is liable to be rejected as it does not disclose the cause of action and the same is barred by law. It is contended in the affidavit that the plaintiffs are the daughters of defendant No.1 Narayanappa. The plaintiffs themselves have stated that defendant No.1 colluded and mortgaged the property to one J.L. Krishnappa on 27/9/1990 and later executed a sale deed in favour of Sri Krishnappa. The sale deed which the plaintiffs have referred is dtd. 8/6/1991. It is clear that the father of the plaintiffs has sold the suit schedule property under the sale deed of the year 1991. The plaintiffs have no right over the suit schedule property under Sec. 6 of the Hindu Succession (Amendment) Act 2005 as the alienation is prior to 20/12/2004. There is no cause of action for the plaintiffs to file the suit and hence the plaint is liable to be rejected. 4. The same is resisted by plaintiffs by filing objection stating that the sale transactions of defendant No.4 held after filing of the suit. This defendant was impleaded as defendant No.4 in the suit. The suit schedule property is the ancestral property and the sale transactions occurred in the year 1991 cannot be considered and the plaintiffs are entitled for share in the suit schedule property. 5. The Trial Court having considered the material available on record and also the amendment to Sec. 6 of the Hindu Succession Act and also the judgment of the Apex Court in the case of PRAKASH AND OTHERS v. PHULAVATI AND OTHERS reported in AIR 2016 SC 769 and the judgment of this Court in the case of SMT. LAKSHMI AND OTHERS v. SMT. LAKSHMI AND OTHERS v. SMT. NEELAMMA AND OTHERS reported in ILR 2015 KAR 5725, comes to the conclusion that sale was made prior to amendment Act of 2005 and the sale deed was made on 18/6/1991 and hence the plaintiffs have no cause of action to file the suit as per the Hindu Succession Act and hence allowed the application and rejected the suit. 6. Being aggrieved by the said order of the Trial Court, an appeal is filed in R.A.No.15058/2017 by the plaintiffs and the First Appellate Court on reconsideration of the material available on record, formulated the points whether the suit schedule property is available for partition and separate possession and whether the impugned order passed by the Trial Court requires interference and whether the cause of action arose for the plaintiffs seeking partition. The First Appellate Court on re-appreciation of both oral and documentary evidence placed on record and considering the material on record, particularly the pleadings and also taken note of defendant No.1 is having four daughters and no male issues. The defendant No.4 is the purchaser of the schedule property, who contested the matter on several grounds that the sale was made in the year 1991 and prior to the sale also, there was a mortgage in favour of the purchaser. The First Appellate Court also taken note of the material on record with regard to whether the plaintiffs are in joint possession of the suit property along with the defendants as contended. The Court taken note of the sale was made in the year 1991 itself and hence therefore the stand taken by the plaintiffs falls on ground. The Trial Court and the First Appellate Court also taken note of the specific provision incorporated to amend Sec. 6 of the Hindu Succession Act and when the sale was made prior to 2005, comes to the conclusion that there was no cause of action and also they are not having any right in respect of suit schedule property since already the sale was made by the father and as on the date of the sale, they were not having any right in respect of the suit schedule property and hence dismissed the appeal. Being aggrieved by the judgment and decree of Trial Court and dismissal of R.A., the present appeal is filed by the plaintiffs. 7. Being aggrieved by the judgment and decree of Trial Court and dismissal of R.A., the present appeal is filed by the plaintiffs. 7. The learned counsel for the appellants would vehemently contend that both the Courts have committed an error and lacks application of mind and the same does not have justifiable reasons. The learned counsel would contend that no opportunity was given while arguing the matter before the First Appellate Court. Both the Courts committed an error in allowing the application filed under Order 7 Rule 11(a) and (d) of CPC and hence this Court has to frame the substantial question of law whether the First Appellate Court was right in upholding the order dtd. 2/11/2017 passed by the Trial Court relying upon the decision of the Apex Court in the case of Prakash (supra) and hence it requires interference of this Court. 8. Having heard the learned counsel for the appellant and also on perusal of the material available on record, the application is filed by defendant No.4 before the Trial Court that the plaintiffs have no cause of action and they cannot maintain a suit for the relief of partition. Admittedly, the sale was made in the year 1991, but it is the contention of the learned counsel for the appellants that they were in possession of the suit schedule property and they were not having any knowledge about the sale. It is not in dispute that the plaintiffs are the daughters of defendant No.1 Narayanappa and the sale was made in the year 1991 and the amendment was brought into Hindu Succession Act in the year 2005. No doubt, the principles laid down in the recent judgment is that the daughters are also co-parceners as that of a son. But the fact is that the amendment is made in 2005 and the father sold the property in the year 1991. The fact is that the sale was made for a valuable sale consideration and as on the date of sale, no right was conferred to the appellants. The contention of the learned counsel for the appellants is that the First Appellate Court committed an error in relying upon the judgment of the Apex Court in the case of Prakash (supra). 9. The contention of the learned counsel for the appellants is that the First Appellate Court committed an error in relying upon the judgment of the Apex Court in the case of Prakash (supra). 9. The Appellate Court in its judgment in the case of VINEETA SHARMA v. RAKESH SHARMA reported in (2020) 9 SCC 1 , held that the daughters are also co-parceners as that of the son. The sale was made prior to the amendment and when the sale is made by the father prior to the amendment, the Trial Court rightly allowed the application filed under Order 7 Rule 11(a) and (d) of CPC and that there is no question of law and no cause of action to seek for the relief as sought in the plaint. The First Appellate Court on re-appreciation of both oral and documentary evidence placed on record and considering the material on record that there was a sale deed in the year 1991 i.e., prior to amendment of Hindu Succession Act, rightly comes to the conclusion that the Trial Court has not committed an error. Hence, I do not find any error committed by the Trial Court and the First Appellate Court in considering and allowing the application filed under Order 7 Rule 11 (a) and (d) of CPC. Hence, I do not find any substantial question of law to admit the appeal invoking Sec. 100 of CPC and there is no merit in the appeal. 10. In view of the discussions made above, I pass the following: ORDER The appeal is dismissed.