Munithayamma and Others vs Nanjappa and Others

A.N. Venugopal Gowda, J.—1. The appellants filed O.S. No. 100/2011 before the Additional Civil Judge at Doddaballapur, to pass a decree for partition and separate possession of 2 items of agricultural lands and a house property. The suit properties are joint family properties owned by one Bayyiga and succeeded by his son Muniyappa, the father of plaintiffs and defendant No. 1. The first respondent/first defendant is the brother of the appellants/plaintiffs and the second respondent/second defendant is the purchaser, as per a registered sale deed dated 21.08.1997 bearing Document No. 1135/97-98, of the agricultural land shown and described in Schedule ''B'' of the plaint. The appellants'' father Muniyappa has died in the year 1981. The suit for partition and separate possession was filed on 26.02.2011.

The first defendant, despite service of summons, did not appear and was placed ex-parte by the Trial Court. The second defendant i.e., the purchaser of the plaint ''B'' schedule property, by filing the written statement contested the suit on multiple grounds.

Following issues were raised by the Trial Judge:

"1) Whether the plaintiffs prove that the suit schedule properties are their ancestral properties of the plaintiffs?

2) Whether the plaintiffs prove that they are entitled for 1/5th share each in the suit schedule properties?

3) Whether the 2nd defendant proves that law of limitation bars the suit?

4) Whether the 2nd defendant proves that he is the bonafide purchaser of the suit schedule property?

5) Whether the plaintiffs are entitled for share in the suit schedule properties?

6) What order or decree?"

During the trial, 4th plaintiff got herself examined as PW.1 and 36 documents produced were marked as Exs.P-1 to P-36. The second defendant got examined himself as DW.1 and 22 documents produced were marked as Exs.D-1 to D-22. The Trial Judge by a judgment dated 03.08.2013 decreed the suit in part. The plaintiffs were held entitled for partition and separate possession of 1/5th share in the plaint ''A'' and ''C'' schedule properties. Their claim for mesne profits was kept open to be decided in the final decree proceedings. Claim of the plaintiffs in respect of ''B'' schedule property, measuring 1 acre 26 guntas of land bearing Sy. No. 33/6 of Sonamaranahalli Village, Doddaballapura Taluk, was rejected and the suit was dismissed as against the second defendant.

The plaintiffs preferred R.A. No. 36/2013, in the Court of Senior Civil Judge, Doddaballapur, assailing the decree of the Trial Court, to the extent of dismissal of the suit in respect of ''B'' schedule property. It was contended that the sale deed executed by the defendant No. 1 and his wife for themselves and on behalf of their minor children, in favour of the defendant No. 2, does not bind the plaintiffs, since, on the death of father of the plaintiffs and defendant No. 1, the succession opened and the suit properties ought to have been notionally divided between the defendant No. 1 and the father of the plaintiffs and notional half share allotted to the father of the plaintiffs and the defendant No. 1, must have been equally divided amongst the plaintiff Nos. 1 to 4 and the defendant No. 1, and if so divided, the plaintiffs would be entitled to 1/10th share each in the ''B'' schedule property, as per Section 8 of the Hindu Succession Act, 1956. It was submitted that the purchaser is deemed to be in joint possession with the joint family members. It was contended that the Trial Court having committed error in not properly appreciating the facts and circumstances of the case, i.e., recognizing the right of the plaintiffs to 1/10th share each in ''B'' schedule property, the decree of dismissal, in so far as the ''B'' schedule property is concerned, is liable to be set aside.

The Appellate Judge having regard to the submissions made and the record of the suit, raised the following points for consideration:

"1) Whether the plaintiffs (being the daughters of Sri Muniyappa are entitled to 1/10th share each in the plaint ''B'' schedule property u/s. 8 of the Hindu Succession Act 1956, in spite of the fact that the sole surviving co parcener namely the defendant No. 1 and his wife have sold the plaint B schedule property under a registered sale deed dated 21-08-1997 and also inspite of the fact that sec 6 of the Hindu Succession Act 1956 as amended in 2005 expressly saves such transaction which took place prior to 20-12-2004?

2) Whether the finding given by the trial Court on issue No. 5 in the negative in respect of the plaint B schedule property calls for interference?

3) Whether that portion of the operative portion of the decree where under the suit is dismissed in respect of the plaint B schedule property calls for interference?

4) Whether the plaintiff is entitled for decree of partition and separate possession in respect of the plaint B schedule property?

5) What decree or order?"

There is no dispute that ''B'' schedule property was sold on 21.08.1997 by a registered sale deed by the defendant No. 1 along with his wife and children in favour of defendant No. 2 and the father of the plaintiffs and defendant No. 1 i.e., Muniyappa having died prior to 09.09.2005. In view of the specific language employed in Section 6 of the Hindu Succession Act, as amended in 2005, which has been interpreted by the Apex Court in the case of PRAKASH AND OTHERS v. PHULAVATI AND OTHERS, , (2016) 2 SCC 36 and by finding that the sole surviving coparcener i.e., defendant No. 1 along with his wife and children have sold the ''B'' schedule property under a registered sale deed dated 21.08.1997, point No. 1 was answered in the negative and as a consequence, the appeal was dismissed.

Sri A.M. Vijay, learned advocate, contended that the courts below are unjustified in not granting the share to the appellants in respect of the plaint ''B'' schedule property. He submitted that the refusal to grant share by applying the concept of notional partition is illegal. Reliance was placed on the decision in anar devi and OTHERS v. PARMESHWARI DEVI AND OTHERS, , (2006) 8 SCC 656. Learned counsel submitted that the appeal raises substantial question of law for consideration.

Point for consideration is, whether the courts below are justified in passing the impugned decrees in respect of the plaint ''B'' schedule property, which was alienated prior to 20.12.2004?

The appellants and the respondent No. 1 are the children of one Muniyappa, who died during the year 1981. The defendant No. 1 was the sole surviving coparcener. Himself along with his wife and children have sold the ''B'' schedule property on 21.08.1997 under a registered sale deed to defendant No. 2. Undisputedly, the defendant No. 2 is in exclusive possession and enjoyment of the ''B'' schedule property from 21.08.1997.

The Hindu Succession Act, 1956 was amended as per the Amendment Act 39 of 2005 and as per the interpretation placed by the Apex Court in the case of Prakash v. Phulavati (supra), amended Act has no retrospective operation and has application only when both the co-parcener and his daughter were alive, as on the date of the commencement of the amended Act i.e., on 09.09.2005, irrespective of date of birth of daughter and the co-parcener, who died thereafter.

The Apex Court, in the said decision has held at para 18, that the Explanation has to be read harmoniously with the substantive provision of Section 6(5) by being limited to a transaction of partition effected after 20.12.2004. It has been further held that:

"18..........Notional partition, by its very nature, is not covered either under the proviso or under sub-section (5) or under the Explanation".

In the said decision, Apex Court has further held, "that the disposition or alienation which may have taken place before 20.12.2004 will remain unaffected." The relevant portion of the judgment reads as follows:

"22. In this background, we find that the proviso to Section 6(1) and sub-section (5) of Section 6 clearly intend to exclude the transactions referred to therein which may have taken place prior to 20-12-2004 on which date the Bill was introduced. Explanation cannot permit reopening of partitions which were valid when effected. Object of giving finality to transactions prior to 20-12-2004 is not to make the main provision retrospective in any manner. The object is that by fake transactions available property at the introduction of the Bill is not taken away and remains available as and when right conferred by the statute becomes available and is to be enforced. Main provision of the amendment in Sections 6(1) and (3) is not in any manner intended to be affected but strengthened in this way. Settled principles governing such transactions relied upon by the appellants are not intended to be done away with for period prior to 20-12-2004. In no case statutory notional partition even after 20-12-2004 could be covered by the Explanation or the proviso in question.

Accordingly, we hold that the rights under the amendment are applicable to living daughters of living coparceners as on 9-9-2005 irrespective of when such daughters are born. Disposition or alienation including partitions which may have taken place before 20-12-2004 as per law applicable prior to the said date will remain unaffected. Any transaction of partition effected thereafter will be governed by the Explanation."

(emphasis supplied)

In the present case, the alienation of ''B'' schedule property has taken place on 21.08.1997 by a registered instrument and since then the second defendant/purchaser is in exclusive possession and enjoyment of the said item of the property. The defendant No. 1 was the sole surviving co-parcener as on the date the said alienation was made. Hence, the findings recorded by the courts below against the plaintiffs in respect of ''B'' schedule property is not erroneous. The courts below have acted in accordance with law and the dismissal of the suit in so far as the ''B'' schedule property is concerned, in view of the undisputed facts and circumstances of the case and the position of law noticed supra, is justified.

In view of the above, no substantial question of law arises for consideration. Hence, the appeal is rejected.