IN THE HEGH COURT OF KARNATAKA AT' BANi%;;§mf:_R£: '%
DATED THIS THE 22" DAY &;%z:.:,v,%«2.m_% I
$*$E:§E*'(}£=5.lfZ
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BEWWEEN:
I
< AN¥): '
M i"-farayaua. _ -
8/0 33116 A ' =
71 yrs. if 'V ' , -3' .
Subbannafl
s; c: latc Mum' Vénkatappa. _'
67 ' V " Appcllsmts
- bot.h°.a1té rfa «Gmflen
A. -Opp; Chanriramma Choultxy
~ Swafifigal' « .....
E'za'13ga3pre~33
V -- Ashok Hamnahalli, Adm;
Razrgaiéika
3 ~ ii?/9 EH Na.rmm.g1pa
, 53"§:rs, rja
Eiiciam I-flfohii
E Hosak-ate Tajuk
¥3ar:gaZo.m Disttrict.
Sakamma
W/0 iatr: M11n.iven}:atapp.a
V4
89 yrs, 213 Grape Garden
Opp: Chandramzna Choultzy;
Sevanagar
Bangalore-33
- since dead, by I...Rs. -'~ :s:t.$1lé11:I.ts V
and respondents- 1,3 "
3 Sapojamma
W/o Ramanna _
65 yrs, r/a Nadavathj V '
Axmagondanahalliflaijli * V'
Hosakotc I
Bangaiem flisttici.
4 Lakshm;ikgnma~.mma.' «. '
Win --Bés:hegi:s*;e*da-- _
162 yrs; 1}€--a_Huska1;*"-.,._ .
ejdam I=I:)bii,"'A}_io.-sa1<<)te__Taluk
Bagggalgm Distfictfi J Respondents
V (By'Srié"3r L Vishwanath, Adv for R-1
1?'?«1,v__$_¢&s. 4 are L.Rs. ofdeceased R-2
R-3 85 4 are served)
" is flied under Section 95 gr cps against
the -.,3'ud.g'n"1ent;= and decree dated 7~3~2()O3 passed in
O.AS.,4No.4349;g-' 1986 on the file of XV Add1.City Civil Judge,
Bangakre decreeing the suit for partition, separate
*..,posee9;e,ie'n, me:-me pmfits, future mesne profits, costs, etc.,.
._ V. ";This appeal having been heard and reserved,
Csmiiig cm for prenouncement this day, the Court
" _'§ie1ivered the following;
'};ir:;r 1/éfishaxf: for masnc pmiits contendiag that herself
_ " to 5 art the sons and daughters of 011: Sri
and 1°' defendant; that their father
% £u;,%giV%%;;;;f03-05w 1924; that after the death of their father they
to the suit schedule property and the same is
joint possession of the plaintiff and defendant 1 in 5
JUDGMENT
The appellants/dcft::1M1da11t N-o_$..l?,__and_*3V u u
Cami: have come up with
judgment and decree dated
4349/1936 on the file 9f the Judge
At Bangalore, declaxing that
she is entitle to ,1/6″‘ property
and directing her in possession
of pm-pcrty TF3 — f
2. For the panics will be
I’6’f6I’.£’Cd tog fay l;é:fo;’e the triad Court.
V’ fibzjsf of the case is that, the
1 herein filed a suit for partition of
portion of the grape garden was
in addition to the shares that were
‘ other defendants in the said gape garden.
;her case that though a partition was efiect she
e , V _ “1:ts:1-‘if actuaily put in possession ef the same and the
‘~,Tciefeixdants I to 3 continued in the possession of the said
which consist of grape garden and a
together with site bearing 83! no. .59/2′ V
and 6 guntas situated at Lmgmafepmfifi
the deathlef Muniven1§atappe_v:a….;:aeebeyafl;V L’
the family properties were tee” ef the
family and that in palupatti and
declaration made. by defendant befeme
the Special” Land Ceiiing is
produced. It t that she is the
class I heir ‘and she is entitle to
1/ 6&1 share ‘belonging to the said
to the panchayath held,
there were _p1’operb2es between the heir of the late
garden by malizmg the profit them-on
share to the plaintiff, therefore she :4; T. {
defendants 2 and 3 calling upon t1u%;m_ to aI1o}’.’v~’§’!?ke§:1f;V i/6~j¥* V
share and to pay mcsnc pmfits”V’§3:{1fit. ‘£111:
defendants have not some sh’2§f’Ae.V vIv”Icncc
she filed the suit before partition,
sepazate poss€:ss§ir;z”z; profits,
costs etc. ‘ V . A ; ‘ ‘ ‘
4. {lac trial court the
defendant. 1 “1 V T : 3 .’ ficéparatts written statement
admitfing theVVv’F::vlVa€:iQ1 1:=_1aip the plaintiif, however the
status _of;.:th¢:jx’as__m¢mber of joint ilamjiy is denied and
1i}3.¢}’ ___th{: said earlier partition and disputed
the”. to be made in a panchayath, it is
vcr;;1tent£4~;d.. declaration fiver} to the Special Deputy
Urban Land Cc1}1n’ ‘ g is only for maktm’ g it
the authorities the persons who are interested in
‘j and the same cannot be a foundafimtt for the
faiaaua” fo dccmcing the suit. It is further contended that
4,—1
they have spent more than Rs. 50,000/— out of fa umT A V’
assets for the marriage of the p1ama°m~’I:hat
gxven” shelter at the time when her ‘ 7.:
it is further contended that agliit’
ancestral property and they cgf by
SHI’ViVOI’Sh.ip and not by contended
that since then: hashpgn joint male
members of fl1c_Vfa:v intcntnom to
partition t}1é’%jbinf:ifam1?’AV’:;:V;;fV’pifl1§¢z’ti£§_”tfi¢ c1a1’m of the piaititzfl
is premature: _. ‘H:cnor:_: VVtiv;’c*’;3′. {of dismissal of the suit.
5. ;x{ %’s}41pp§r:& case of the p1aintifi’ she
and got marked Ex.P1 to 13. The
3 witnesses and have got marked
Ex. court after considering the oral and
placed on record and after hearing’
‘ th3: deemed the suit mm: by the plaintifi’
she is entitled to 1/6* share in the SS? and
the defendants 2 to 3 to put the plaintiff in
filxysical possession of the property marked as ‘F’ in Ex.P.4
.. ‘Q
:2’.
-‘ ;’_ -_o’,p7/
within 60 days fiom the date of judgment T’
plaititifi” was directed to pay additk§i1’§1 ‘cc*ni*§
market value of the property.
6. Being aggrieved the
up with this appeal mai1§ilf’*q;1 the
death of their father appcllmts
constitute ¢ and that the
fcmalc mcsxxbcxég pmpcrfics only at
the time of the co-
Paibencrs, #.§fi;:fit no.1-P1ai11tifi’ can not
dcmand_,_nart1. %¢mc gins’ {fam;’1y pn:;pcr& s. it is further
3that’~-the ‘based on a prior partition as such
%%:;g¢¢ been filed only for pmsession and not
‘ VV for .TiiatT::thc suit is filed prior to coming into force
fimcnémcnt Hindu Succession Act, therefore the
not entitled tr) 116*” share in the joint family
That when admittedly there is no m1:i111on by
VV and bounds the reliance placed on by the lower court
on the cariicr partition dots not arise. It is finthcr
X . .::_(‘__4., Q
of loose divisions may take piece, «
ail the necessazy ingledieaxtsas laid
by law namely the defi:m’te,..iniena§on ‘to
separate, the mxving out (if s}1.a:fies the «. V’ ”
physical division
separating or handing over or” taking away ‘
of that share. It is filefotality’-afTtI1ese5
factors alone__ that to~e..m¢’
conelusion thafgpartifion fact taken
at V’ ‘I ‘
In the SANKH vs
RAMcHANp3,é. fnean) BY HIS L.Rs
AN) oTHeRs’_g§x§:§’v.”:V9e9se :a7(g -the Apex Court has held
; ‘V _ ‘It is now Well established that an
:a’gIeemezE1″L all the ooparceners is
“;i:iotV’es_senfia1 to the dismptiaon of the joint
~ status, but 3 definite and
T’ ».1m§§1nbiguous indication of intention by
one”;-member to separate himmif fmm the
and to enjoy his share in severalty
. Vwjfllvamoant in law to a division of status.
‘ .I__t”is immaterial in such a case whether the
other members assent or not. Glam the
CIt'”:CiSi(3iI1 is unequivocally expressed, and
clearly intimated to his co–~sl3axers, the
right of the coparcener to obtain and
possess: the share to which he admittedly
is entitled, is unimpeachahkg
10
If however the expxessionf-._:off. %
intention is a mere pxetenee or ‘
there is in the eye of lawfno eepalafison L.
the joint family status.’
8. On the other hand vtheu fo_:”VVVtfie VA
Iespondent No, I argued that in xthe .a1ueeI;1d3efent to
Hindu Succession Act, elf incereectness
in the order passedpy aiici prayed for
dismissal of
9. for both the
parties themfioint that arises for my
consiiezatieéxyjs and decree passed by
the :5″ perverse and capricious?
‘ _ is no dispute between the
es reiationship, it is an admitted fact that the
appefleem Ajrespondexats are the children of Ian:
~ and the deceased respondent No.1. The
of the appellant is that the plamtfifl respondent
H is not a q)-parcener and that the suit property being
._ £E1eir ancestral pmpefty they became cwmers of the same by
survivorship md not by inheritance, thus it is contended
5″;
~.. ___,//4,
, ‘/
that the plaintifi–rcspondcnt no.1 herein, b
suit for partition in the absence ofgi:
male members of the: joint ma %V
entitled to sham only in respect
father and thus she is noi’: of a
male member. It is further there is no
partition bchvnez} family and
that they the joint tlamily
properties, ‘fgrf ‘as premature. To
appreciate it is necessary to
look into Succession [ Amendment ]
as foikywsz
‘*6; Devolution of intcmst in
‘ .,§:’Qpa1v.f;c;1a1y pmpcrty:– (I) On and from the
wmmenccment of the Himlu Succession
(Arzgéjadmcnt) Act, 2005 in a joint Hindu
governed by the Mitaksham law, the
” _d_.éu1ghtaer ofa csopamener shall—»-
(a) by birth bccomc a oopamcner
in hm’ awn right in the same
manner as the son;
(b) have the same rights in the
coparcezaaxy pmpcrty as she
would have bad if she had been
a son;
12
(c) be subject to ._
liabilities in
coparcenaxy 5,3. of I. .
a son,
and any xeztizzvcncc
coparccincr shall be tO~._i11<:iude';:a
reference to a §1aughte_r_ qfa
– Providéd t11a.4: in
this submkectitén 1 or
H1-.va11dat€a}~. . d1.-zgggisnton or
..zr«c§1enat1sitio’1i”‘of property
w1ii<:h_ hadj-1_;ai~:e_fi pL3cc.befo1~e the 20th
*day of
I1.tvl1cVVi:.::.i$tz§31t_:TVTt::i.-as admittedly thcrc is no
partiizionin tfié' gafAa:;§pci1ants and rcspondcnts till day,
appcljé11ts——~thcy had no intention to separate
at present. However DWJ and 2
adxnitting the right of the plaizltifi"
cvgr and in fact he deposed that they are
a share to plainfifi in the share of their father
I» 'bi1t' ag was cxprcssctd by the appellants in their cvidcnec
T the partitrian is cfibctuw thc plaintiff will sell away her
gham, but there is no bonaficics in time said contention of the
1"':
13
counsel for the appellants and the gaxnc is” he ”
xejectecl.
12. However there: is no #3
to the declaration .. bcfoi”cVi..tI:ii€-»
Commissioner for Urban so also
the palupatti and ggkctch ‘a.i,a.;1 with the
same, but dcxmmcnts
are oniy upon and that the
posscssioi; of with the appellants
even till = appellants, it is only for
making_ git’ tcffihc vi.-authorities the persons who are
property and the same cannot be a
foViinVcViaifi{§fi”:V4ii::bV_ plaintiif for dccrccing the suit. Even
tgfj respondent No.1, she was not put
” of the dcmarcatad Qropcrty and that the
A were not givzizzg any share to her in the pmfim
“th;crt€:f3n. Fm-m the mal and docmncntary evidence placed on
~zv:§cord it is clear that than: was an arrmgcmcnt between tht:
” members of the family to paztitian bat they failed to act up
4,”:
.;-,2 _/.
§’.=_ ‘/r”
i ‘- /- H
2,; / ‘>
__ “// .
4._}jI’cSt3I2t«1:i:§Cl’f:2 suit.
01:). it, as such in View of the dccizsions thc: ”
counsel for the appcflant, referred xi \
that then: is no partition by meats ancfhcliunds V
sf appellants and respondents ‘l’i11£s2-.Ht’iw
anxendmerzt to the Hindu, Szlgccgsiéfi of
Section 6 of the Act, the status of a
copawcncr and got of the
family pmpcrficé share among other
schedule property.
Thus thfi :;§e;it’pf herein seeking for
partition is plaintiff has every right to
jthe trial court witlwut ovnsidcring thc
ifizat’ is no partition in the f33m11y’ of
V Vvagpcllafifs fcspondcnts til] day by mates and bounds,
” __thc ‘”s.uit of the p1aint:ifi’, directing the appcllazuts to
in possession ofthc portion marked as ‘F’ in
which is inecmect and illegal and the same is liable
Vbc set aside: and the judgment and dccmc passed by thc
/Y
5 .”‘=
.>
max Court is to be mocmcd. The rest ofthc fimdiags _
by the trial Court with regard to additional * ~
by the respondent No.1 / plaintiff ‘
the same does not require any V
14. For the aforesaid this
appeal is allowed in ._ dated
7»-3-saws passed by the 1986 is
hereby modfiod it «tiaeéfizainm is entitled
to pmtition schedule property.
the parties, there is
no #0 ” ‘ .
I}rav§ (1acrcc.A V , aficr payment of adeimo11a’ ‘ 1
«. fiffacg the xcspondcnt no. 1 hcncin.
sal-
Judge
09
1:123 share erf the éeccased as per the said Will.
iiuzing fhfi 1;¥€1′}.dCI1C}=’ Of this appeal {I116
disclosed about executiorx of Q16? Q16
Further this ceurt exercismg ‘
cannet accept the will if any j::1*g§t:;af,. .tfi3i’1E3’I”$fC3i:’é3, if
any W251 has been €xecui<%{:i"'1L§§{r–it; favour of
respondent :1o l, th<%:§z;"rs:.s*.p:31:1tI£ér1**c:§::1 1%) "I;igh.t under
the W21} by the
contention regard cannot be
acceptzizd. 1 regarding payment of
additional {3:1Av{1£".t I"«:%c if the respcznécntw-1 has
almady _ fee he nczcéd not pay' any
"""
the LA. is disposed cf.
Sci/’:{__
Judge