Research › Search › Judgment

Karnataka High Court · body

2024 DIGILAW 235 (KAR)

S V Radhakrishna Kamath v. S R Ramadas Kamath

2024-03-20

ANANT RAMANATH HEGDE

body2024
JUDGMENT : Mr. Anant Ramanath Hegde, J. - This appeal is arising from the judgment and decree in O.S.No.83/2012 on the file of II Additional Senior Civil Judge, Shivamoga. 2. The suit is filed by the son of late S Raghavendra Kamath against defendants No.1 to 7, who are the class-I heirs of his late brother S.R Vijendra Kamath and defendants No.8 and 9 are the children of his late brother S.R Nagaraj Kamath, defendants No.10 and 11 are his brothers and defendants No.12, 13 and 14 are the sisters. 3. Admittedly, the property belonging to plaintiff's grandfather Devanna Kamath was acquired in the partition of 1934. After the death of plaintiff's grandfather - Devanna Kamath, the plaintiff's father S. Raghavendra Kamath succeeded him as his Legal heir. S. Raghavendra Kamath died intestate on 18.11.1975. He is survived by his wife Shantha Bai Kamath, five sons and three daughters. Wife of S. Raghavendra Kamath died on 01.12.1997. The suit for partition is filed in the year 2012. Though, the plaintiff claimed that he is having 9/48th share, the defendants contested the suit on the premise that the plaintiff has relinquished the shares over the suit properties after the death of his father. 4. The Trial Court applied section 6 of Hindu Succession Act, 1956, which stood prior to the amendment of Hindu Succession Act, 2005 and granted 9/48th share in favour of the plaintiff. Aggrieved by the said judgment and decree, defendants No.4 to 8 are in appeal. 5. Learned counsel appearing for the appellants would contend that though the evidence is led to establish that the plaintiff has relinquished the share over the suit property, the Trial Court erred in granting decree for partition awarding 9/48th share in favour of the plaintiff. 6. Learned counsel appearing for respondents/plaintiff and remaining defendants would contend that the alleged relinquishment of share by the plaintiff is not established by the contesting defendants. 7. Learned counsel for the respondents would also urge before this Court that Section 6 of Hindu Successions Act, 1956 was amended in the year 2005, as such the daughters are entitled to equal share along with the sons. Hence the computation of share by the Trial Court is erroneous. 8. This Court has considered the contentions raised at the Bar. Learned counsel for the respondents would also urge before this Court that Section 6 of Hindu Successions Act, 1956 was amended in the year 2005, as such the daughters are entitled to equal share along with the sons. Hence the computation of share by the Trial Court is erroneous. 8. This Court has considered the contentions raised at the Bar. The point that arise for consideration by this Court is; (i) Whether the Trial Court is justified in granting a decree for partition awarding 9/48th share in favour of plaintiff. 9. As can be noticed from the materials placed before the Court and admitted factual possession, the partition in the family of the plaintiff's father took place in the year 1934 under registered partition deed dated 08.07.1934. In the said partition, the suit properties are allotted to the share of the plaintiff's grandfather - Devanna Kamath. Devanna Kamath had only one son by name S. Raghavendra Kamath. 10. Admittedly, S. Raghavendra Kamath died intestate in the year 1975 and his wife also died intestate in the year 1997 and S. Raghavendra Kamath is survived by five sons and three daughters. It is nobody's case that before amendment of section 6 of Hindu Succession Act, 1956, the partition has taken place in the family. 11. In that view of the matter, each of the sons and each of the daughters is entitled to equal shares in the properties left behind by S. Raghavendra Kamath. Thus, the plaintiff is entitled to 1/8th share in the suit properties and each of the sons of S. Raghavendra Kamath and each of the daughters of S. Raghavendra Kamath is entitled to 1/8th share in the suit properties. To that extent, the judgment and decree passed by the Trial Court stands modified. 12. Hence the following: ORDER (i) The judgment and decree dated 15.07.2014 passed by II Additional Senior Civil Judge, Shivamogga in O.S. No. 83/2012 is modified to the extent indicated above. (ii) The appeal is allowed in part, as indicated in para 11 supra.