Venkatamma and Others vs N. Lakshmi and Others

N. Kumar, J—RFA 804/2001 is preferred by Smt. Venkatamma the widow of Appajappa the first defendant in the suit challenging the Judgment and decree of the trial Court which has declined to grant her a share in the share of the property of her son late A. Sriramegowda.

RFA 859/01 is an appeal preferred by the 4th defendant-Narayana Gowda, the brother of the first defendant Appajappa challenging the decree of the trial Court directing him to render accounts in respect of the theatre i.e. Item No. 6 of the plaint schedule property which he was running.

These appeals are of the year 2001. RFA.Crob 8/12 is preferred by Smt. A. Shanthakumari the eldest daughter of Appajappa. Similarly RFA Crob. 7/12 is preferred by Smt. Shakunthaladevi, the second daughter of Sri Appajappa.

In these two cross objections, those two daughters are claiming their shares in the plaint schedule property on the ground that they are also coparceners in view of amendment to Section 6 of the Hindu Succession Act.

As these appeals and cross appeals are preferred against the same Judgment, they are taken up for consideration together and disposed of by this common Judgment.

For the purpose of convenience, the parties are referred to as they are referred to in the original suit.

One Sri M. Appajappa was the propositus. Late Sri M. Appajappa at a partition between him and his brothers got the plaint schedule properties towards his share. His family consisted of three sons Sri A. Srinivase Gowda, Sri A. Srirame Gowda and Sri A. Govinde Gowda and three daughters namely Smt. Shanthakumari, Smt. Shakunthala Devi, Smt. Sathyadevi apart from his wife Smt. G. Venkatamma. All of them constituted a Hindu Undivided Family. Sri Sriramegowda, the second son of Appajappa died in the year 1986. There was no partition in the family prior to his death. After the death of Sri Sriamegowda, his wife Smt. N. Lakshmi and daughter Kum. S. Mamatha filed a suit in OS 98/94 for partition and separate possession of their legitimate share in all the plaint schedule properties. The suit was filed against Appajappa, the first defendant, Srinivase Gowda-second defendant, Govinde Gowda-third defendant and Sri H. Narayana Gowda, 4th defendant. During the pendency of the proceedings, Sri Appajappa first defendant died. His three daughters and wife were brought on record as legal representatives whose ranking is Defendant 1(a) 1(b) 1(c) and 1(d) respectively.

The case of the plaintiffs is, the first defendant was the Manager and Kartha of the Joint family till 1982. During 1982, an oral partition of the family properties took place and the properties were divided amongst defendant Nos. 2, 3 and the husband of the first plaintiff on 26.6.1986. Defendants 2, 3 and the husband of the first plaintiff had entered into a written partition deed. The first plaintiffs late husband got right to properties which are mentioned in the schedule. First plaintiffs husband Sri A. Sriramegowda died on 11.3.1987 leaving behind the first plaintiff-wife and the second plaintiff daughter as his legal heirs and they have succeeded to his estate. Plaintiffs have got share in Item No. I of the suit property beside a groundnut oil mill with land, buildings, plant and machinery which is an ancestral joint family industrial unit. That unit has been conventionally run by each one of the defendants and deceased Sriramegowda for one year in rotation once in four years and each party is entitled to profits of that year. That after the death of Sriramegowda, the first plaintiff being an innocent lady, has expressed her inability to run the Mill during her tenure and requested third defendant to run the Mill during her tenure and give her share arising out of proceeds. At that time when the 3rd defendant was managing the mill, he has not remitted the profits derived therefrom to the plaintiffs though the mill is yielding profits every year. The first plaintiffs husband and defendants got equal share in the agricultural lands mentioned in Item Nos. II to V of the suit schedule properties situated at Medihala Village bearing Sy. Nos. 43/2, 190, 192 and 278 and the said lands are being managed jointly. After the death of plaintiffs husband, plaintiff has succeeded to this item of properties. In S. No. 43/2, there are standing eucalyptus trees now and in that she has got her legitimate 1/4th share in the total yield. Likewise she was deprived of her 1/4th share which fetched the defendants more than Rs. 50,000/-. Plaintiffs have also succeeded to the 1/4th share of the first plaintiffs husband in the 1/5th share out of the profits of M/s. Venkateshwara Theatre which is mentioned as Item No. VI of the suit schedule properties (i.e. 1/20th share). The theatre is now being managed by defendant No. 4 Sri Narayana Gowda and the plaintiffs are also being deprived by their legitimate share in the income from the theatre. The plaintiffs are having their right, title, possession and interest whatsoever to the extent of 1/20th share in theatre building, plant and machinery, furniture, fittings etc. Plaintiffs requested the defendants to give their 1/4th legitimate share in the suit schedule properties number of times but, all went in vain. The plaintiffs have also conducted number of Panchayaths in this regard and that too was of no use. Thus, at last, they got issued legal notice to the defendants and that notice also fetched no reply. Therefore, they filed the suit for a decree for partition and separate possession of their legitimate share in the plaint schedule properties.

Subsequently, the plaint has been amended to include the following:

"The properties more fully described in plaint schedule hereunder are all joint Hindu undivided family properties and the ancestral properties of the ancestors of the defendant No. 1. The first defendant was acting as Manager and Kartha for the joint Hindu Undivided family. The plaintiffs humbly submit that the first defendant Mr. Appajappa had 3 sons and 3 daughters and the husband of the first plaintiff is his second son. It is humbly submitted that the 3 daughters namely. A. Shanthakumari, A. Sathyadevi and A. Shakunthala Devi were comfortably married out of the income from the joint Hindu undivided family and they have settled in life. It is humbly submitted that the husband of the first plaintiff defendants 1, 2, 3 and 3 daughters are purported to have entered into an arrangement for partitioning of all joint Hindu Undivided family properties. But no such arrangements was entered into in pursuance of the said arrangement. The family continues to be Joint Hindu undivided family."

After service of summons, the defendants 1 and 3 filed a common written statement. They admitted the relationship set out in the plaint. They admitted that, plaint schedule properties are all joint Hindu Undivided Family and ancestral properties. However, it was denied first defendant was Manager and Kartha of the joint Hindu Undivided Family till the year 1982. It was submitted that the first defendant is the Manager and Kartha of the family even on the date of written statement was filed. He suffered a stroke and unable to move about. The oral partition of 1982 and the memorandum of partition dated 26.6.1986 set up by plaintiffs were denied. The first plaintiffs husband got C'' schedule property under the said partition deed was also denied. They categorically stated that no oral partition was effected in the year 1982 and no document came into existence on 26.6.1986 allotting ''C'' schedule property to the first plaintiffs husband. The alleged document was never acted upon and hence, the alleged partition under document dated 26.6.1986 is not admitted. The death of first plaintiffs husband on 11.3.1987 leaving behind the plaintiffs as legal heirs is admitted. The right in groundnut Mill set up is denied. The plaintiffs husband''s right and plaintiffs right is also denied. The case of the plaintiffs that they have succeeded to the share of first plaintiffs husband''s share in the M/s. Venkateshwara Theatre was also denied.

After traversing allegations of the plaint, they have pleaded their case. They contend, plaintiffs have not included all the joint family properties in the suit and suit filed for partial partition is liable to be dismissed and the suit is bad for non-joinder of necessary parties and therefore it is liable to be dismissed. They categorically stated that the plaintiffs 1 and 2 and defendant Nos. 1 to 3 are all members of joint Hindu family and so far no partition is effected. Even today all the parties to the suit are enjoying the joint family properties being in joint possession and therefore the partition set out in the plaint is false. The plaintiffs have never enjoyed the property separately, the partition dated 26.6.1986 was never acted upon and therefore it is inadmissible in evidence. Hence, they sought for dismissal of the suit.

The second defendant has not filed any written statement. During the pendency of the proceedings, the first defendant died. His three daughters and widow were brought on record as legal representatives. They have not filed any statement after they were brought on record.

The trial Court, on the basis of aforesaid pleadings framed the following issues:

"1. Whether the plaintiffs prove that the 1st defendant was the manager and kartha of the suit schedule properties till 1982?

Whether the plaintiffs further prove that during the year 1982, there was a oral partition between defendant No. 2, 3 and Sriramegowda the husband of 1st plaintiff and father of 2nd plaintiff?

Whether the plaintiffs further prove that there was a memorandum of partition reduced into writing on 26-06-86, under the said partition ''C'' schedule property had fallen to the share of Sriramegowda?

Whether the plaintiffs prove that they have got 1/4th share in the ground-nut mill as contended in para 5 of the plaint?

Whether the plaintiffs further prove that the agricultural land item No. 2 to 5 are being managed jointly and they have got 1/4th share in the said properties?

Whether the plaintiffs prove that they have for 1/20th share in item No. 6 of the suit schedule properties?

Whether the defendant No. 1 and 3 prove that the document dated 26-06-86 was never acted upon by the parties?

Whether the defendant No. 1 and 3 prove that the suit is not maintainable in the present form?

Whether the defendant No. 1 and 3 prove that the plaintiff has not included all the joint family properties, as such suit is not maintainable?

Whether the suit is bad for non joinder of necessary parties?

Whether the court fee paid on the plaint is insufficient?

Whether the plaintiffs are entitle to their 1/4th share in the entire suit schedule properties except item No. 6 by partition and separate possession?

Whether the plaintiffs are entitle to 1/20th share in item No. 6 of the suit schedule properties?

Whether the plaintiffs are entitle to mesne profits?

What decree or order?"

Plaintiffs in order to substantiate their claim, examined first plaintiff-Smt. Lakshmi as PW.1 and produced 14 documents which were marked as Exs. P1 to P14. On behalf of the defendants, 8th defendant Narayana Gowda was examined as DW.1 and he produced 25 documents which were marked as Exs. D1 to D25.

The trial Court, on appreciation of aforesaid oral and documentary evidence on record held, the first defendant was managing the suit properties item Nos. I to V and undivided 1/5th interest in item No. VI till his death. Therefore, the plaintiffs have proved that first defendant was Kartha of the suit schedule properties. It recorded a categorical finding that the plaintiffs have failed to prove that in the year 1982 there was oral partition between the defendant Nos. 2, 3 and the husband of first plaintiff. Similarly, the plaintiffs have failed to prove the memorandum of partition dated 26.6.1986 under which, C'' schedule properties allotted and given to the share of first plaintiffs husband. After holding plaintiffs are entitled to share in the plaint schedule properties, it held, the plaintiffs are entitled to 1/4th share in the plaint schedule item Nos. 1 to 5 and 1/4th + 1/28th share in the suit properties item No. 1 described as ground nut oil mill. Each defendant No. 1(a) to (d) are entitled to 1/28th share, defendant No. 2 is entitled to 1/4th + 1/28th share and defendant No. 3 is entitled to 1/4th + 1/28th share in the suit property item No. 1. Similarly it held answering Issue No. 5 that in the agricultural land item Nos. 2 to 5, plaintiffs together and defendant Nos. 2 and 3 are entitled to 1/4th + 1/28th share and defendant No. 1(a) to (d) are entitled to 1/28th share each and defendant No. 2 is entitled to 1/4th + 1/28th share and defendant No. 3 is entitled to 1/4th + 1/28th share in suit property item No. 2 to 5. It also held document dated 26.6.1986 was never acted upon by the parties. The defendant Nos. 1 to 3 have failed to prove that suit is not maintainable. They have also failed to prove that all the joint family properties are not included in the suit. The suit is not bad for non-joinder of necessary parties. Accordingly it decreed the suit.

Aggrieved by the said Judgment and Decree, it is the widow of the deceased Appajappa has preferred this appeal contending, she has not been given a share in the properties allotted to the share of her son Sriramegowda. 4th defendant has preferred the connected appeal and contended, in terms of the agreement between the brothers of Appajappa, whatever amount is due to Appajappa towards his 1/5th share has been paid and decree directing him to furnish the accounts is improper. The learned counsel for the appellants accordingly contended, to the aforesaid extent, the Judgment and Decree of the trial Court requires to be interfered with.

The appeal is of the year 2001. The Hindu Succession Act was amended in the year 2005 conferring on the daughters the status of coparceners i.e. during the pendency of this appeal. Now in 2012 the two daughters have preferred cross objections/appeals contending that they should have been allotted equal share along with their brothers in all the plaint schedule properties.

In the light of the aforesaid facts and the contentions, the points that arise for our consideration in this appeal are, as under:

"1) Whether Smt. Venkatamma, the widow of Appajappa is entitled to a share in the share allotted to her second son Sriramegowda.?

2) Whether the trial Court was justified in ordering an enquiry in respect of mesne profits recovered by defendants from suit properties from the date of suit till the delivery of separate possession?"

Point No. 1:

The contesting defendants in the suit i.e. defendants 1 and 3 have accepted the judgment of the trial Court. It is not in dispute, before the death of Sriramegowda, there was no partition and even on the date of filing of the suit there was no partition i.e. the categorical stand taken by defendant Nos. 1 and 3 in the written statement. They do not dispute the fact that the parties are all members of joint family and schedule properties are all joint family properties. First defendant Appajappa died in 1985. Plaintiffs have filed the suit during his lifetime claiming a share to which a coparcener was entitled to in law. Therefore, by virtue of Section 6 prior to amendment in the year 2005, when a male Hindu dies, after the commencement of the Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon surviving members of coparcenary and not in accordance with the Act.

The proviso to said Section makes it very clear, if deceased has left behind him surviving female relative specified in clause (1) of the schedule, the interest of the deceased in the Mitakshara Coparcenary property shall devolve by testamentary or intestate succession as the case may be under this Act and not by survivorship.

Explanation to the said Section makes it clear that the interest of Hindu Mitakshara coparcenary property shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

By virtue of this explanation read with proviso, when Sriramegowda died, we have to find out what is the share to which he was entitled to, to find out the share of his legal heirs. In 1986, Appajappa and his three sons constituted a coparcenary joint family. On 11.3.1987, when Sriramegowda died, a deemed partition had to be effected. In such a partition Sriramegowda would have been entitled to 1/4th share. He died leaving behind female relatives such as, his wife, the daughter and mother. Therefore, these three legal heirs would be entitled to equal share in the 1/4th share to which Sriramegowda was entitled to. Unfortunately, the trial Court has overlooked the fact that the mother of Sriramegowda is also a Class-I heir. It has granted the entire 1/4th share to his widow and a daughter excluding the mother. That is the grievance the mother has made out in this appeal which, in our view is fully justified. To that extent, the Judgment of the trial Court requires to be modified.

It is also not in dispute that late Appajappa, first defendant had undivided 1/5th share in Item No. 6 of the plaint schedule property and he and other four brothers were enjoying the property jointly that was not the subject of partition between them. As it is coparcenary property, it was not the subject matter of earlier partition. Sriramegowda was entitled to a share at partition. On his death, if a partition had taken place, Appajappa, Srinivasegowda, Sriramegowda and Govindegowda would have been entitled to 1/20th share. In that 1/20th share of Sriramegowda, also Venktamma was entitled to a share equal to that of the plaintiffs and first defendant, which has also been denied by the trial Court.

The grievance of the 4th defendant is, during the lifetime of Appajappa, he has paid profits to which Appajappa was entitled to and after his death he has been paying profits to his sons. It is for Appajappa and his children to distribute those receipts among them. Therefore, the trial Court was not justified in directing enquiry regarding mesne profits in respect of item No. 6 of the suit schedule from the date of suit till the delivery of separate possession.

It is his further case that, after the death of Appajappa, he has paid the profits to his legal heirs and therefore, question of rendering any accounts in final decree proceedings would not arise. Though he contended that he has produced documents to show that such payments, they are not marked, no evidence is adduced in support of his contention. It is in those circumstances, the Court below has issued the aforesaid directions which cannot be found fault with. However, the said question is eminently required to be decided in the final decree proceedings. It is always open to the 4th defendant in final decree proceedings to produce such evidence in support of his contention and contend he is not liable to pay any amount either to him or to his children from the date of suit till delivery of possession. In that view of the matter, we do not see any justification to interfere with the finding of the trial Court on this aspect.

The Judgment in the suit was delivered on 3.7.2001 prior to amendment to Section 6 of the Hindu Succession Act which came into force in the year 2005. Out of the three daughters, first two daughters appears to have born prior to coming into force of the amended Hindu Succession Act whereas, third daughter admittedly is born after the coming into force of amended provision.

This Court had an occasion to consider the right of daughters born prior to coming into force of the Act and has held, they cannot be treated as coparceners and consequently, they are not entitled to claim equal shares with the sons. It is only daughters who are born subsequent to the passing of the enactment, are entitled to the benefit of the amended provision. Now the question whether that view is correct or not is pending before the Constitution Bench of the Apex Court. If the Constitution Bench were to hold that the daughters born even prior to coming into force of the Act are also entitled to the benefit of amended provision, then all the three daughters along with their brothers would be entitled to equal share in the plaint schedule properties as, admittedly all the schedule properties are joint family/coparcenary properties and there is no partition at all. In the event, it is held that the daughters born prior to coming into force of the Act are not entitled to benefit of amended provision then two daughters who are born prior to 1956 would not be entitled to the benefit of amended provision. However, third daughter is born subsequent to passing of the Act, she is a coparcener and would be entitled to equal share with the sons.

As the suit is of the year 1994, the area of controversy in these appeals is very narrow and in fact the contesting defendants have accepted the Judgment and Decree of the trial Court, it would not be proper for this Court to keep this appeal pending till the declaration of law by the Apex Court. Therefore, we have decided this appeal as the law existed prior to 2005. However, what is passed now is only preliminary decree and the final decree is yet to be passed and thereafter, properties have to be partitioned by metes and bounds and possession is to be delivered to the parties. During this period, if there is any change in law, in the final decree or even executing Court can take note of the change in the law and alter the shares to which the parties are entitled to. In fact, the Apex Court in the case of Prema Vs. Nanje Gowda and Others, AIR 2011 SC 2077 : (2012) 113 CLT 198 : (2011) 6 JT 209 : (2011) 3 RCR(Civil) 215 : (2011) 6 SCALE 28 : (2011) 6 SCC 462 : (2011) 8 SCR 55 : (2011) 4 UJ 2594 : (2011) AIRSCW 3443 has held as under:

"14. We may add that by virtue of the preliminary decree passed by the trial Court, which was confirmed by the lower appellate Court and the High Court, the issues decided therein will be deemed to have become final but as the partition suit is required to be decided in stages, the same can be regarded as fully and completely decided only when the final decree is passed. If in the interregnum any party to the partition suit dies, then his/her share is required to be allotted to the surviving parties and this can be done in the final decree proceedings. Likewise, if law governing the parties is amended before conclusion of the final decree proceedings, the party benefited by such amendment can make a request to the Court to take congnizance of the amendment and give effect to the same. If the rights of the parties to the suit change due to other reasons, the Court ceased with final decree proceedings is not only entitled but is duty bound to take notice of such change and pass appropriate order. In this case, the Act was amended by the State legislature and Sections 6A to 6C were inserted for achieving the goal of equality set out in the Preamble of the Constitution. In terms of Section 2 of the Karnataka Act No. 23 of 1994, Section 6A came into force on 30.07.1994, i.e. the date on which the amendment was published. As on that day, the final decree proceedings were pending. Therefore, the appellant had every right to seek enlargement of her share by pointing out that the discrimination practiced against the unmarried daughter had been removed by the legislative intervention and there is no reason why the Court should hesitate in giving effect to an amendment made by the State legislature in exercise of the power vested in it under Article 15(3) of the Constitution."

Similarly, the Apex Court in the case of Ganduri Koteshwaramma and Another Vs. Chakiri Yanadi and Another, AIR 2012 SC 169 : (2011) 6 CTC 102 : (2011) 11 JT 483 : (2011) 4 RCR(Civil) 916 : (2011) 11 SCALE 467 : (2011) 9 SCC 788 : (2011) 12 SCR 968 : (2011) 6 UJ 4060 has held as under:

"14. A preliminary decree determines the rights and interests of the parties. The suit for partition is not disposed of bypassing of the preliminary decree. It is by a final decree that the immovable property of joint Hindu family is partitioned by metes and bounds. After the passing of the preliminary decree, the suit continues until the final decree is passed. If in the interregnum i.e. after passing of the preliminary decree and before the final decree is passed, the events and supervening circumstances occur necessitating change in shares, there is no impediment for the court to amend the preliminary decree or pass another preliminary decree redetermining the rights and interests of the parties having regard to the changed situation."

From the aforesaid Judgment it is clear, after the passing of the preliminary decree, the suit continues until the final decree is passed. If in the interregnum i.e. after passing of the preliminary decree and before the final decree is passed, the events and supervening circumstances occur necessitating change in shares, there is no impediment for the Court to amend the preliminary decree or pass another preliminary decree re-determining the rights and interests of the parties having regard to the changed situation. In other words, if law governing the parties is amended before conclusion of FDP, a party benefited by such amendment can make a request to the Court to take cognizance of the amendment and give effect to the same. If the rights of the parties to the suit could change due to other reasons, the Court ceased with the final decree proceedings is not only entitled but is duty bound to take notice of such change and pass appropriate order.

The parties, in particular the daughters would have every right to seek enlargement of their share by relying on the Judgment to be rendered by the Constitution Bench of the Apex Court declaring whether the daughters born subsequent to the passing of the Act are also entitled to the benefit due to amended Section-6 of the Hindu Succession Act, 1956.

In that view of the matter, we pass the following order:

"a) RFA 804/2001 is partly allowed. In the share allotted to the plaintiffs, 1/3rd of the same shall be allotted to Smt. Venkatamma, the widow of first defendant.

b) In all other respects, the Judgment and Decree of the trial Court is affirmed subject to modification which may be necessitated after the pronouncement of the Judgment of the Apex Court.

c) RFA 859/2001 is dismissed.

d) RFA.Crob.7 and 8/2012 are disposed of in the light of what is stated above.

e) Registry is directed to send the original records to the trial Court.

f) Parties to bear their own costs."