Smt Chikkamma v. Sri Hanumanthaiah

((((((((((((HC-KAR, NC:(2026:KHC:39898( RSA(No.(2525(of(2018( ( ,,,,,,,,,, , CNR:(KAHC010260992018( ( ( IN(THE(HIGH(COURT(OF(KARNATAKA(AT(BENGALURU(

TH DATED(THIS(THE(30 (DAY(OF(JULY,(2026(

BEFORE(

THE(HON'BLE(MR.(JUSTICE(V(SRISHANANDA(

REGULAR(SECOND(APPEAL(NO.(2525(OF(2018((PAR)(

BETWEEN:(( (

1., SMT,CHIKKAMMA, AGED,ABOUT,68,YEARS,

W/O,LATE,SIDDARAJU,, R/AT,THONACHANAHALLI,, CHELUR,HOBLI,, GUBBI,TALUK,,

TUMKUR,DISTRICT.,

,,

2., SMT.,MAHESHWARI, D/O,LATE,VIJAY,KUMAR,, AGED,ABOUT,20,YEARS,

R/AT,THONACHANAHALLI,, CHELUR,HOBLI,, Digitally GUBBI,TALUK,, signedtiby TUMKUR,DISTRICT.,MALAT ESH …APPELLANTS,K0C Location: (BY,SRI.,M.B.,CHANDRACHOODA,,ADVOCATE), HIGH COURT0OF AND:( KARNATAKA (

1., SRI,HANUMANTHAIAH, S/O,LATE,ANJANAPPA,, AGED,ABOUT,63,YEARS, R/AT,THONACHANAHALLI,, CHELUR,HOBLI,,GUBBI,TALUK,, TUMKUR,DISTRICT,-,572,216., ((((((((((((HC-KAR, NC:(2026:KHC:39898( RSA(No.(2525(of(2018( ( ,,,,,,,,,, , CNR:(KAHC010260992018( ( (

2., SRI.SANJEEVAIAH, AGED,ABOUT,61,YEARS, S/O,LATE,ANJANAPPA,, R/AT,MALLASANDRA,, KASBA,HOBLI,,TUMKUR,TALUK,, TUMKUR,DISTRICT,-,572,101., ,

3., SRI.,CHIKKANNA, S/O,LATE,ANJANAPPA,, AGED,ABOUT,56,YEARS, WORKING,AS,SECURITY,POLICE,,, HIGH,COURT,OF,KARNATAKA,, BENGALURU,-,560,001., ,

4., SRI.,VIRUPAKSHAIAH, S/O,LATE,ANJANAPPA,, AGED,45,YEARS, R/OF,KURIPALYA,, TUMKUR,TOWN,-,572,101, …RESPONDENTS, , (BY,SRI.,SUNIL,KUMAR,PATEL,,ADVOCATE,FOR,R1, ,,,,,,R2,-,SERVED, ,,,,,,SRI.,NAIK,RAMACHANDRA,RAMA,,ADVOCATE,FOR,R3, ,,,,,,VIDE,ORDER,DATED,08.07.2026,,R4,HAS,DIED,AND,, ,,,,,,,,NO,ISSUES), , , THIS, RSA, IS, FILED, UNDER, SECTION, 100, OF, CPC,, AGAINST, THE, JUDGMENT, AND, DECREE, DATED, 14.09.2018, PASSED,IN,RA.NO.17/2015,ON,THE,FILE,OF,THE,SENIOR,CIVIL, JUDGE,,GUBBI,,ALLOWING,THE,APPEAL,AND,MODIFYING,THE, JUDGMENT, AND, DECREE, DATED, 13.03.2015, PASSED, IN, O.S.NO.215/2008, ON, THE, FILE, OF, THE, PRINCIPAL, CIVIL, JUDGE,AND,JMFC,,GUBBI.,

THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT

¶1Heard Sri.M.B.Chandrachooda, Sri.Sunil Kumar Patel and Sri.Naik Ramachandra Rama, learned counsel appearing for the parties.

¶2Though the matter is listed for admission, it is taken up for final disposal in view the judgment of the Hon'ble Apex Court in the case of Prakash v. Phulavati reported in 2016 (2) SCC Page 36.

¶3Facts which are utmost necessary for disposal of the present appeal are as under; A suit for partition came to be filed by the plaintiffs who are the daughter and grand daughter of common prepositus Anjanappa.

¶4There is no dispute with regard to the nature of property. It is a joint family property. Anjanappa had a wife by name Lakshmamma and they had six children

namely Chikkamma, Hanumantaiah, Sanjeevaiah, Chikkanna, Vijaykumar and Virupaksha. Vijaykumar died and the second plaintiff is the daughter of said Vijaykumar. Chikkamma is the first plaintiff. Hanumantaiah is the second defendant in this suit. Sanjeevaiah, Chikkanna and Virupaksha are defendant Nos.3 to 5 in this suit. First defendant is mother - Lakshmamma.

¶5The suit, on contest, came to be decreed granting 1/7th share as there was no dispute with regard to the relationship and nature of property.

¶6Second defendant filed an appeal before the First Appellate Court in R.A.No.17/2015. Learned Judge in the First Appellate Court following the dictum of the Hon'ble Apex Court in the case of Prakash versus Phualavati reported in 2016 (2) SCC Page 36, allowed the appeal in part by altering the share, holding that there was a notional partition.

¶7Being aggrieved by the same, plaintiffs are before this Court.

¶8Sri.M.B.Chandrachooda, learned counsel for the appellant reiterating the grounds urged in the appeal memorandum, would contend that the judgment of the Hon'ble Apex Court in the case of Prakash Vs. Phulavathi, supra is over-ruled in view of the pronouncement of the judgment in the case of Vineeta Sharma vs. Rakesh Sharma reported in (2020) 9 SCC 1.

¶9Per contra, learned counsel for the respondents support the judgment of the First Appellate Court.

¶10Having heard the arguments of both sides, for disposal of the appeal, the sole substantial question of law that would arise is; "whether the judgment of the Hon'ble Apex Court in the case of Vineeta Sharma supra would over-ride the principles of law enunciated in Prakash Vs. Phulavati, supra and thus, judgment of the trial Court needs to be restored by allowing the appeal?"

¶11It is to be noticed that before the First Appellate Court, suit as was decreed by the Trial Court was modified by following the principles of law enunciated in Prakash Vs. Phulavathi, Supra.

¶12In view of the judgment of the Hon'ble Apex Court in the case of Vineeta Sharma, all other judgments on the question of consideration of amended Section 6 of Hindu Succession Act, 1956 stood impliedly over-ruled.

¶13The authoritative principles enunciated in Vineeta Sharma's case is called out in Paragraph 129 of the judgment, which reads as under; "129. Resultantly, we answer the reference as under:

(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-1 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. 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.

¶12On careful consideration of the above, the Hon'ble Supreme Court has ruled that daughters would be entitled to share in the property as that of a male coparcener, the judgment of the First Appellate Court needs to be set aside and judgment of the Trial Court needs to be restored.

¶13Accordingly, in the case on hand, since there is no dispute as to the relationship and nature of property, the judgment of the First Appellate Court which is impugned in the present appeal needs to be set aside by answering the substantial question of law in favour of the appellant. Consequently, the judgment and decree passed by the Trial Court needs to be restored.

¶14Hence, the following; ORDER

(i) The appeal is allowed.

(ii) The judgment and decree of the First Appellate Court passed in R.A.No.17/2015 dated 14.09.2018 is set aside and judgment of the Trial Court passed in O.S.No.215/2008 dated 13.03.2015 is restored.

Ordered accordingly.

Sd/- (V SRISHANANDA) JUDGE

GH List No.: 1 Sl No.: 47