Dhareppa vs Kasturibai and Others

A.N. Venugopal Gowda, J.—The appellant/plaintiff had filed the suit to pass decree of declaration and declare that the suit schedule properties are the joint family properties of himself and defendants 3 and 4 and for grant of consequential relief of permanent injunction, restraining the defendants 1 and 2 from causing any disturbance, in the peaceful possession and enjoyment of the suit properties by him. The appellant/plaintiff and the respondents/defendants 1 and 2, are the children of defendants 3 and 4. Defendant No. 3 filed the written statement and contested the suit. Memo was filed on behalf of the defendants 1, 2 and 4, adopting the written statement filed by defendant No. 3.

The trial Judge on considering the pleadings of the parties, framed the following issues:

"1. Whether the plaintiff proves that the suit properties are the ancestral joint family properties of plaintiff and defendants No. 3 and 4?

Whether the plaintiff further proves that the defendant No. 3 and 4 are not in sound state of Mind to transfer the suit properties in favour of defendants No. 1 and 2?

Whether the defendants prove that there was already partition effected with respect to the suit properties as claimed in para-3 of written statement?

Whether the defendant No. 3 proves that the ''Occupancy Rights'' with respect to land bearing Sy. No. 807/1 and 807/2 have been exclusively granted to him and same are his self-acquired properties?

Whether the plaintiff is entitled for the relief claimed in the suit?

What order or decree?"

Plaintiff got himself examined as PW.1 and examined another person as PW.2. Exs. P1 to P50 were marked. Defendant Nos. 3 and 1 got themselves examined as DWs.1 and 2 respectively and another person was examined as DW.3. Exs. D1 to D19 were marked. On appreciation of the oral and documentary evidence led in the case, trial Judge decreed the suit, by holding that the suit schedule properties are joint family properties of the plaintiff and defendants 3 and 4. The defendant Nos. 1 and 2 were restrained by a decree of permanent injunction from causing any interference in the peaceful possession and enjoyment of the suit schedule properties, by the plaintiff and defendants 3 and 4, in any manner.

On an appeal by the defendants, the III Additional District Judge at Bijapur, taking note of the fact that defendant Nos. 3 and 4 are no more and that the plaintiff and defendant Nos. 1 and 2 are the children of deceased defendant Nos. 3 and 4, on fresh assessment and appreciation of the oral and documentary evidence led by the parties, concurred with the findings recorded by the trial Judge, that the suit schedule properties are the joint family properties and that the defendant Nos. 1 and 2 are entitled to get equal right of share in the suit properties and finding that the declaratory relief would not meets the ends of justice and in order to do substantial justice to the parties, opined that the surviving parties to the suit are entitled to 1/3rd share each in the suit schedule properties. Exercising the power under Order 7 Rule 7 CPC, relief was moulded by keeping in view the amendment effected, during year 2005 to Section 6 of Hindu Succession Act (for short ''the Act''). As a consequence, point No. 1 was answered in the negative and point Nos. 2 and 3 in the affirmative. As a result, the appeal was allowed and impugned judgment and decree was modified and it was ordered and decreed that the plaintiff and defendant Nos. 1 and 2 are entitled for partition and separate possession of their 1/3rd share each in the suit schedule properties and also the land bearing Sy. No. 444/3, by meets and bounds. Defendant Nos. 1 and 2 were directed to pay necessary Court fee to claim their share(s). The preliminary decree was directed to be drawn accordingly. The plaintiff, feeling aggrieved by the said preliminary decree, filed this second appeal.

Sri D.P. Ambekar, learned advocate contended that the Court below has erred in holding that the daughters are entitled to equal share along with the son, since the daughters were born much prior to the amendment to Section 6 of the Act. He submitted that by effecting a notional partition between the plaintiff and defendant No. 3/father, partition, out of the share of the deceased father, ought to have been directed. Learned counsel contended that the amendment to Section 6 of the Act, which received approval from 09.09.2005 is perspective and not retrospective and same does not apply to the daughters, born to a Hindu, before 09.09.2005. Learned counsel submitted that substantial questions of law have arisen for determination and hence, this second appeal is maintainable.

Defendant Nos. 3 and 4 are the parents of the plaintiffs and defendant Nos. 1 and 2. Defendant Nos. 2 and 3 are no more. The parties are Hindus. Both Courts below have found that the suit properties and the land in Sy. No. 444/3 are the joint family properties. The said finding of fact, concurrently recorded, is not questioned by the appellant. Learned counsel for the appellant did not take any exception for molding of the relief, i.e., to grant the relief to which the parties are actually entitled.

Sri D.P. Ambekar, learned counsel, vehemently contended that amendment to Section 6 of the Act w.e.f. 09.09.2005 is perspective and hence, the same being not applicable to the respondents/daughters, born before 09.09.2005, decree passed, entitling them to 1/3rd each in the suit properties is illegal. There is no merit in the contention.

In Prakash and Others v. Phulavati and Others, Civil Appeal No. 7217/2013 and connected cases, decided, on 16.10.2015, the Apex Court has held that:

"Section 6 of the Act, as amended during the year 2005, are applicable to living daughters of living co-parceners, as on 09.09.2005 irrespective of when such daughters are born".

In view of the declaration of law by the Apex Court, as above, the respondents/defendant Nos. 1 and 2/living daughters of living co-parceners, as on 09.09.2005, have been rightly held entitled to 1/3rd share each in the suit properties and the other item of property, which have been found to be joint family properties of the parties. In view of the above declaration of law by the Apex Court, the date on which the respondents/defendant Nos. 1 and 2 were born is immaterial.

The impugned judgment/decree has not given raise to any substantial question of law. The contention urged by Sri D.P. Ambekar has been squarely answered by the Apex Court, in the decision noticed supra.

In the result, for want of substantial question of law, the appeal being not maintainable, is rejected.