SMT M RATHNAMMA vs M SURESHA
- Court
- Karnataka High Court
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R
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
TH
DATED THIS THE 17 DAY OF JUNE, 2026
BEFORE
THE HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
REGULAR FIRST APPEAL NO. 346 OF 2021 (PAR/POS)
BETWEEN:
1. SMT M RATHNAMMA
DEAD BY HER LR’s
SMT. K. SHUBHAMANGALA
W/O. N. HEMANTH KUMAR
AGED ABOUT 46 YEARS
R/AT: DOOR NO.13,
BSNL OFFICE
SHAKTHI NAGAR PARK
TH
4 CROSS, MYSORE – 570 011.
AMENDED AS PER COURT ORDER DATED 05/04/2023
…APPELLANT
(BY SMT. P C SUNITHA, ADVOCATE)
AND:
1.
1(a)
Digitally
signed by
THEJAS
KUMAR N
Location:
HIGH
COURT OF
KARNATAKA
M SURESHA
DEAD BY HIS LR’s
SMT. SARASWATHI
W/O LATE M.SURESH
MAJOR
R/AT DOOR NO.7/406
NEAR RAMAKRISHNA
ASHRAMA FUNCTION HALL
MINCHU HERBAL BEAUTY PARLOUR
KOLLEGAL – 571 440.
AMENDED AS PER COURT ORDER DATED 04/02/2026
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2. M/S TOTAL ENVIRONMENTAL BUILDING
SYSTEM PVT. LTD.,
IMAGE COMPASS
NO.78, ITPL MAIN ROAD
EPIP ZONE WHITE FIELD
BENGALURU - 560 066.
REP. BY SRI. C.B.BHARATH
3. SMT. K JAYAMANGALA
W/O. M SURESH
AGED ABOUT 49 YEARS
R/AT: DOOR NO.13,
BSNL OFFICE
SHAKTHI NAGAR PARK
TH
4 CROSS, MYSORE – 570 011.
AMENDED AS PER COURT ORDER DATED 05/01/2024
…RESPONDENTS
(BY SRI. G SRIDHAR, ADVOCATE FOR R2;
R1(a)–NOTICE HELD SUFFICIENT V/O DATED 04-02-2026;
R3-NOTICE HELD SUFFICIENT V/O DATED 04-12-2023)
THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 29.10.2014 PASSED IN
OS.No.14/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND JMFC, KOLLEGALA AND ETC.,
THIS APPEAL, COMING ON FOR DICTATING JUDGMENT,
THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE HANCHATE SANJEEVKUMAR
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ORAL JUDGMENT
The Regular First Appeal is filed by the plaintiff
calling in question the judgment and decree dated
29.10.2014 passed in O.S.No.14/2010 by the Court of
Senior Civil Judge and Judicial Magistrate First Class at
Kollegala (hereinafter referred to as ‘Trial Court’ for short),
whereby the suit filed for partition and separate
possession came to be dismissed.
2. For the sake of convenience and easy
reference, the parties herein referred to as per their
rankings before the Trial Court.
3. It is the case of the plaintiff that the plaintiff is
the sister of defendant No.1. One Mariswamchar and
Siddamma are the father and mother of the plaintiff and
defendant No.1. It is stated that the suit schedule
properties are joint and ancestral properties of plaintiff
and defendant No.1. The parents of the plaintiff and
defendant No.1 have not executed any documents with
respect to suit schedule property in favour of any persons.
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The marriage of plaintiff took placed in the year 1978. It is
stated that the plaintiff has brought up the defendant No.1
and she gave her daughter to defendant No.1. The plaintiff
has got constructed house by spending Rs.15,00,000/- out
of her money. Defendant No.1 drove the plaintiff out of
their house. The plaintiff asked defendant No.1 to give her
share in the suit property but defendant No.1 has refused
to effect partition in the suit property and has refused to
give share to the plaintiff. Therefore, the plaintiff has filed
suit for partition for claiming her ½ share in the suit
property.
4. Defendant No.1 has filed written statement and
defendant No.2 has not filed written statement. The
defendant No.1 has admitted the relationship between him
and the plaintiff. The defendant No.1 has denied the
contention that the plaintiff has brought up him since his
childhood. It is contended by the defendant No.1 that
earlier partition was effected on 31.03.2009. The
defendant No.1 denied that item No.1 of the suit schedule
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property is joint family property. It is his contention that
item No.1 property was purchased by his own earnings
and the same is self acquired property. Hence, item No.1
of the suit schedule property is not partible property.
Further, it is contended that there was earlier partition
took place on 31.03.2009 during life time of their parents.
Therefore, prays to dismiss the appeal.
5. Based upon the pleadings of both the parties,
the Trial Court has framed following issues:
1. Whether the plaintiff proves that she is entitle
to get ½ share in suit schedule property?
2. Whether the defendant proves that there was
arrangement in the family as per partition
deed dated 31.03.2009 and plaintiff stopped to
stands on a different foot as stated in para 11a
of his written statement?
st
3. Whether the defendant proves that 1 item
property is self acquired property of himself as
stated in para 11b of written statement?
4. Whether the suit is barred for non joinder of
necessary parties?
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5. What decree or order?
6. In order to prove the case of the plaintiff,
she has examined herself as PW.1 and got marked the
documents as Exs.P1 to P12. The defendant No.1 is
examined as DW.1 and got marked the documents as
Exs.D1 to D35.
7. The Trial Court has dismissed the suit on
the reasons that the item No.1 of the suit schedule
property is the self acquired property of defendant
No.1 as the plaintiff failed to prove the said item No.1
property is joint family and ancestral property. The
Trial Court appreciated the evidence that defendant
No.1 is diploma engineer and was doing goldsmith
work. Therefore, defendant No.1 is running a shop
under the name and style as Uday Cutting at Kollegal.
Therefore, held that the item No.1 property is self
acquired property of defendant No.1. The Trial Court
has held that item Nos.2 and 4 are joint family and
ancestral property but dismissed the suit on the
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reason that the plaintiff was borne before
commencement of Hindu Succession Act i.e.,
17.06.1956. Hence, she is not coparcener. Hence, by
relying on the judgment of this Court in the case of
1
Pushpalatha N.V. vs. V. Padma and others
(Pushpalatha’s case), had dismissed the suit by
holding that the plaintiff is not coparcener. Thus, the
Trial Court has dismissed the suit.
8. Being aggrieved by the dismissal of the
judgment and decree passed by the Trial Court, the
plaintiff has preferred the present appeal by raising
various grounds and learned counsel for the
appellant/plaintiff in consonance with the grounds
urged in the memorandum of appeal, has contended
that though the plaintiff was born prior to 17.06.1956
i.e., before commencement of the Hindu Succession
Act, 1956, but the plaintiff is recognized as coparcener
and she is entitled equal ½ share along with
1
2010(2) KCCR 1249 (DB)
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defendant No.1. Further, it is submitted that the Trial
Court on which the judgment relied but that judgment
was overruled by the Hon’ble Supreme Court.
Therefore, the Trial Court has given erroneous finding.
Further, it is submitted that as per the decision of the
Hon’ble Supreme Court in the case of Vineeta
2
Sharma vs. Rakesh Sharma & Ors. (Vineeta
Sharma’s case), even the daughters born prior to
17.06.1956 are entitled to equal share as that of son
as they are coparceners by birth. Further, it is
submitted that item No.1 suit schedule property is
joint family and ancestral property of the plaintiff and
defendant No.1. Hence, prays to decree the suit as
prayed for.
9. Heard the arguments from learned counsel
for respondent No.2. The other defendants/
respondents are remained absent, in spite of service
of notice them.
2
AIR 2020 SC 3717
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10. Upon hearing the arguments of learned counsel
for the parties, the following points arise for consideration:
1. Whether, under the facts and circumstances
involved in the case, the plaintiff is entitled to
equal share in all the suit schedule properties as
that of her brother i.e., defendant No.1?
2. Whether, under the facts and circumstances
involved in the case, defendant No.1 proves that
the item No.1 property is self acquired property?
3. Whether, the judgment and decree passed by the
Trial Court is requires interference from this
Court?
11. The relationship between the plaintiff and
defendant No.1 is not disputed. During the pendency of
the appeal, the plaintiff died. Therefore, her three
daughters were brought on record in the place of deceased
appellant/plaintiff. The defendant No.3 is daughter of the
plaintiff and wife of the defendant No.1. Defendant No.1
has married the one of the daughter of the original
plaintiff. The plaintiff is elder sister of defendant No.1.
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Defendant No.2 is a member of the family. Defendant No.2
has not contested the suit.
12. The Trial Court has dismissed the suit by
holding that the plaintiff failed to prove the item No.1 of
schedule property is joint family and ancestral property.
Further, assigned the reasons that since the plaintiff was
born prior 17.06.1956 i.e., before commencement of
Hindu Succession Act. Therefore, the plaintiff is not
entitled to share in the suit schedule property. Hence, by
placing reliance on the judgment of this Court in
Pushpalatha’s case stated supra, the suit of the plaintiff
is dismissed.
13. So far as considering the evidence regarding
item No.1 of the suit schedule property is concerned,
whether is it self acquired property of defendant No.1 or is
it joint family property. Admittedly, item No.1 of the suit
schedule property is not derived from parents of plaintiff
and defendant No.1. The defendant No.1 is diploma holder
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and is running the shop under the name and style as
‘Udaya Cuttings’ at Kollegala by making gold ornaments.
There is no evidence placed by the plaintiff that the item
No.1 of the suit property is derived from the parents. It is
the case of the plaintiff that she has brought up defendant
No.1 and has taken him to her house and brought up and
given her daughter in marriage with defendant No.1.
Except the relationship as admitted by both the parties,
the plaintiff has not adduced any evidence that how she
acquired the item No.1 of the suit schedule property. Upon
considering the evidence on record, it is stated that the
plaintiff has earned money and acquired item No.1 of the
suit schedule property. Whereas, the defendant No.1
placed on record the evidence that he was running a shop
as ‘Uday Cuttings’ at Kollegala and he is diploma engineer
and is doing goldsmith work. Further, the plaintiff has
failed to prove that how she has derived amount from her
husband to purchase item No.1 property in the name of
defendant No.1. Therefore, all these evidences prove the
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fact that defendant No.1 is the owner of item No.1 of the
suit schedule property and thus it is self acquired property
of defendant No.1. Thus, item No.1 property is not liable
for partition. In this regard, the Trial Court is correct in not
granting decree for partition so far as item No.1 of the suit
schedule property is concerned.
14. Defendant No.1 has admitted that the item
Nos.2, 3 and 4 of the suit schedule properties are joint
family and ancestral properties as derived from the
parents. Therefore, the plaintiff is entitled to ½ share in
the item Nos.2, 3 and 4 of the suit schedule properties. In
this regard, the Trial Court has correctly appreciated the
evidence on record. Therefore, the plaintiff is entitled to ½
share in the item Nos.2, 3 and 4 of the suit schedule
properties.
15. Considering, whether the plaintiff is entitled to
½ share in the suit schedule property, it is defence of
defendant No.1 that the plaintiff was born prior to
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17.06.1956 i.e., prior to commencement of Hindu
Succession Act, 1956. Therefore, held that the plaintiff
being daughter of Marisomachar and Siddamma is not
entitled to share in the suit schedule property. The Trial
Court has dismissed the suit of the plaintiff on the reason
that since the plaintiff was born prior to 17.06.1956 i.e.,
before commencement of Hindu Succession Act, 1956.
Hence, the plaintiff cannot be recognized as coparcener.
Hence, not granted any share in favour of the plaintiff. The
Trial Court has placed reliance on the judgment of this
Court in Pushpalatha’s case stated supra.
16. The above said judgment was overruled by the
Hon’ble Supreme Court and remanded to this Court, this
Court after remand has disposed of the appeal on
25.10.2018 in R.F.A. No.326/2004 between Pushpalatha
N.V. and V.Padma and others. Therefore, the Trial Court
has placed reliance on the overruled judgment as it is
overruled by the Hon’ble Supreme Court. Therefore, in this
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context, the judgment and decree passed by the Trial
Court is liable to be set aside.
17. The question is whether the daughter born
before 17.06.1956 i.e., before commencement of the
Hindu Succession Act, 1956, entitled to equal share as
that of son being recognized as coparcener. The Hon’ble
Supreme Court in Vineeta Sharma’s case stated supra
at paragraph 63, the Hon’ble Supreme Court recognized
the daughter’s right to claim share in the property at
paragraph 63, which reads as follows:
“61. With respect to a Hindu who dies after the
commencement of the 2005 Amendment Act, as
provided in Section 6(3) his interest shall pass by
testamentary or intestate succession and not by
survivorship, and there is a deemed partition of the
coparcenary property in order to ascertain the shares
which would have been allotted to his heirs had there
been a partition. The daughter is to be allotted the same
share as a son; even surviving child of predeceased
daughter or son are given a share in case the child has
also died then the surviving child of such predeceased
child of a predeceased son or predeceased daughter
would be allotted the same share, had they been alive at
the time of deemed partition. Thus, there is a sea-
change in substituted Section 6. In case of death of
coparcener after 9-9-2005, succession is not by
survivorship but in accordance with Section 6(3). The
Explanation to Section 6(3) is the same as Explanation I
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to Section 6 as originally enacted. Section 6(4) makes a
daughter liable in the same manner as that of a son. The
daughter, granddaughter, or great-granddaughter, as
the case may be, is equally bound to follow the pious
obligation under the Hindu law to discharge any such
debt. The proviso saves the right of the creditor with
respect to the debt contracted before the
commencement of the 2005 Amendment Act. The
provisions contained in Section 6(4) also make it clear
that provisions of Section 6 are not retrospective as the
rights and liabilities are both from the commencement of
the Amendment Act.
62. The proviso to Section 6(1) and Section 6(5)
saves any partition effected before 20-12-2004.
However, Explanation to Section 6(5) recognises
partition effected by execution of a deed of partition duly
registered under the Registration Act, 1908 or by a
decree of a court. Other forms of partition have not been
recognised under the definition of “partition” in the
Explanation.
63. Considering the principle of coparcenary that a
person is conferred the rights in the Mitakshara
coparcenary by birth, similarly, the daughter has been
recognised and treated as a coparcener, with equal
rights and liabilities as of that of a son. The expression
used in Section 6 is that she becomes coparcener in the
same manner as a son. By adoption also, the status of
coparcener can be conferred. The concept of uncodified
Hindu law of unobstructed heritage has been given a
concrete shape under the provisions of Sections 6(1)(a)
and 6(1)(b). Coparcener right is by birth. Thus, it is not
at all necessary that the father of the daughter should be
living as on the date of the amendment, as she has not
been conferred the rights of a coparcener by obstructed
heritage. According to the Mitakshara coparcenary Hindu
law, as administered which is recognised in Section 6(1),
it is not necessary that there should be a living
coparcener or father as on the date of the amendment to
whom the daughter would succeed. The daughter would
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step into the coparcenary as that of a son by taking birth
before or after the Act. However, daughter born before
can claim these rights only with effect from the date of
the amendment i.e. 9-9-2005 with saving of past
transactions as provided in the proviso to Section 6(1)
read with Section 6(5).
64. The effect of the amendment is that a daughter
is made coparcener, with effect from the date of
amendment and she can claim partition also, which is a
necessary concomitant of the coparcenary. Section 6(1)
recognises a joint Hindu family governed by Mitakshara
law. The coparcenary must exist on 9-9-2005 to enable
the daughter of a coparcener to enjoy rights conferred
on her. As the right is by birth and not by dint of
inheritance, it is irrelevant that a coparcener whose
daughter is conferred with the rights is alive or not.
Conferral is not based on the death of a father or other
coparcener. In case living coparcener dies after 9-9-
2005, inheritance is not by survivorship but by intestate
or testamentary succession as provided in substituted
Section 6(3).
In re: Effect of enlargement of daughter's rights
65. Under the proviso to Section 6 before the
amendment made in the year 2005 in case a coparcener
died leaving behind female relative of Class I heir or a
male descendant claiming through such Class I female
heir, the daughter was one of them. Section 6, as
substituted, presupposes the existence of coparcenary.
It is only the case of the enlargement of the rights of the
daughters. The rights of other relatives remain
unaffected as prevailed in the proviso to Section 6 as it
stood before amendment.
66. As per the Mitakshara law, no coparcener has
any fixed share. It keeps on fluctuating by birth or by
death. It is the said principle of administration of
Mitakshara coparcenary carried forward in statutory
provisions of Section 6. Even if a coparcener had left
behind female heir of Class I or a male claiming through
such female Class I heir, there is no disruption of
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coparcenary by statutory fiction of partition. Fiction is
only for ascertaining the share of a deceased coparcener,
which would be allotted to him as and when actual
partition takes place. The deemed fiction of partition is
for that limited purpose. The classic Shastric Hindu law
excluded the daughter from being coparcener, which
injustice has now been done away with by amending the
provisions in consonance with the spirit of the
Constitution.
67. There can be a sole surviving coparcener in a
given case the property held by him is treated individual
property till a son is born. In case there is a widow or
daughter also, it would be treated as joint family
property. If the son is adopted, he will become a
coparcener. An adoption by a widow of a deceased
coparcener related to the date of her husband's death,
subject to saving the alienations made in the
intermittent period.”
18. Therefore, the coparcener’s right and title is
recognized by her birth as there is no obstructed
inheritance. Soon after the birth of the daughter, she
enters into zone of coparcener right as that of son either
before or after the Hindu Succession Act, 1956. If the
daughter is born before 17.06.1956 and is denied the
coparcener right and is not given an equal share as that of
son that would make discrimination as is opposed to
equality as per Article 14 of the Constitution of India.
Therefore, a daughter irrespective of whether she was
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born either before or after 17.06.1956 is entitled to be
recognized as coparcener and to claim an equal share in
the coparcenary property in accordance with provisions of
the Hindu Succession Act, 1956 as amended. Therefore, in
this regard, the observation of the Trial Court is not
correct and thus, it is liable to be set aside. Hence, the
plaintiff is entitled to equal share as that of defendant
No.1 so far as item Nos.2, 3 and 4 of the suit schedule
properties but the plaintiff is not entitled to share in item
No.1 of the suit schedule property as it is proved the said
property is self acquired property of defendant No.1.
Hence, I answer to point No.1 in the negative and point
Nos.2 and 3 in the affirmative .
19. Before parting with the judgment, this Court
places on record its deep appreciation for the well-
researched and valuable assistance rendered by its
Research Assistant, namely Smt. Pushpa R., and her
valuable research helped the Court to take a correct
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conclusion. Accordingly, the Court places its appreciation
on Research Assistant, namely Smt. Pushpa R., on record.
20. In the result, I proceed to pass the following:
ORDER
1. The Regular First Appeal is allowed in part.
2. The judgment and decree dated 29.10.2014 passed
in O.S.No.14/2010 by the Court of Senior Civil Judge
and Judicial Magistrate First Class at Kollegala, is
hereby set aside .
3. Suit is decreed in part.
4. The decree is passed to the effect that the plaintiff is
entitled to ½ share in item Nos.2, 3 and 4 of the suit
schedule properties. The claim of plaintiff seeking
partition over item No.1 of the suit schedule property
is hereby declined.
5. No order as to costs.
6. Draw decree accordingly.
Sd/-
(HANCHATE SANJEEVKUMAR)
JUDGE
KA
List No.: 1 Sl No.: 30