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SMT V L JAYALAKSHMI v. SRI V L BALAKRISHNA
Factual and Procedural Background
The plaintiff filed a suit seeking a decree for partition and separate possession of a 1/7th share in the suit schedule properties. Defendants No.4, 5, and 7 remained ex-parte, while Defendants No.2 and 3 denied the plaintiff's claims, asserting the properties were self-acquired by the second defendant's father and contending the plaintiff was not entitled to partition since she was married in 1976. The Trial Court, after framing relevant issues, decreed the suit in favor of the plaintiff for a 1/7th share. On appeal, the First Appellate Court modified the decree, reducing the plaintiff's share to 1/35th. The plaintiff challenged this reduction before the present court.
Legal Issues Presented
- Whether the plaintiff proved joint possession and enjoyment over the suit schedule properties?
- Whether the plaintiff is entitled to partition and separate possession of a 1/7th share in the suit schedule properties by metes and bounds?
- Whether the 3rd defendant proved that the plaintiff and other defendants married at specified times and are thus not entitled to partition and possession?
- Whether the 3rd defendant proved that after the death of Lakshmaiah, the properties were divided orally among defendants and reduced into writing on 04.06.1997?
- Whether the 2nd defendant proved that the plaintiff's share had already been given to her?
- Whether sufficient grounds existed to allow I.A.No.2 in the appellate court?
- Whether the defendant established the partition of 1997 as pleaded in the written statement?
- Whether the appellants established that the property given to the plaintiff under will is joint family property and the plaintiff is not entitled to any share?
- Whether the plaintiff and defendant No.6 are entitled to a decree for partition of the suit schedule properties?
- Whether interference is called for in the judgment and decree of the Trial Court?
- What order is appropriate?
Arguments of the Parties
Appellant's Arguments
- The First Appellate Court erred in applying the judgment in Prakash and others v. Phulavati and others and in reducing the plaintiff's share to 1/35th by considering a notional partition just prior to the death of the propositus.
- Once a daughter is declared a coparcener, her right to ancestral property arises simultaneously with her birth.
- Relied on the judgment in Mangammal @ Thulasi and Anr v. T.B.Raju and Ors to support the proposition that daughters born before the 2005 amendment are entitled to claim a share in ancestral property.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Prakash and others v. Phulavati and others, (2016) 2 SCC 36 | Principle regarding notional partition prior to death of propositus affecting daughters' share in ancestral property. | The First Appellate Court applied this precedent to reduce the plaintiff's share from 1/7th to 1/35th based on a notional partition prior to the father's death. |
| Mangammal @ Thulasi and Anr v. T.B.Raju and Ors, 2018 SCC OnLine SC 422 | Daughters born before the 2005 amendment to Hindu Succession Act are entitled to claim share in ancestral property. | The court quoted this case to clarify that only living daughters of living coparceners are entitled to claim share; it distinguished this from the present facts. |
| Danamma @ Suman Surpur v. Amar, 2018 (1) Scale 657 | Clarification on daughters' rights in ancestral property post-2005 amendment, focusing on daughters born before the amendment. | Quoted to emphasize that the question is about daughters' rights vis-à-vis the death of coparceners, supporting the principle that only living daughters of living coparceners at the time of death have rights. |
Court's Reasoning and Analysis
The court examined the legal principles concerning daughters' rights in ancestral property, particularly focusing on whether daughters born before the 2005 amendment to the Hindu Succession Act are entitled to a share. It noted that the First Appellate Court correctly applied the principle of notional partition prior to the death of the propositus (the father), as established in Prakash. The court distinguished Danamma and Mangammal, clarifying that these cases reaffirm the principle that only living daughters of living coparceners at the time of the coparcener's death can claim a share. Since the plaintiff's father died in 1981 and the suit was filed in 2001, the plaintiff's entitlement is limited to the share apportioned to her father in the notional partition immediately prior to his death. Consequently, the appellate court's reduction of the plaintiff's share from 1/7th to 1/35th was legally sound and justified.
Holding and Implications
The appeal is dismissed.
The court upheld the First Appellate Court's decision reducing the plaintiff's share in the ancestral property from 1/7th to 1/35th based on the principle of notional partition prior to the father's death. The direct effect is that the plaintiff's entitlement is limited accordingly. No new precedent was established by this decision. The application for stay related to the appeal was also disposed of as infructuous. No costs were awarded.
NO.72/2013 ON THE FILE OF II ADDL. DISTRICT AND SESSIONS JUDGE, KODAGU-MADIKERI, SITTING AT VIRAJPET PARTLY ALLOWING THE APPEAL AND MODIFYING THE JUDGMENT AND DECREE DATED 24.9.2013 PASSED IN OS NO.98/2001 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, VIRAJPET. THIS RSA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:- RSA No.646/2018 JUDGMENT Though this appeal is listed for admission, with consent of learned advocate for the appellant, it is heard on merits for final disposal.
2. Plaintiff has presented this appeal against the judgment and decree dated 12.1.2018 passed in R.A.No.72/2013 on the file of II Additional District and Sessions Judge, Kodagu-Madikeri, partly allowing the appeal and modifying Trial Courts Judgment and Decree dated 24.9.2013 in O.S.No.98/2001 on the file of Senior Civil Judge & JMFC., at Virajpet.
3. Heard Shri C.M.Poonacha, learned Advocate for appellant.
4. For the sake of convenience, parties shall be referred to as per their status before Trial Court. RSA No.646/2018
5. Plaintiff brought the instant suit praying for a decree for partition and separate possession and for 1/7th share in the suit schedule properties.
6. Defendants No.4, 5 and 7 remained ex-parte. Defendants No.2 and 3 have filed Written statements, denying plaint averments and contending that the suit schedule properties are the self acquired properties belonging to second defendants father. Plaintiff was married in the year 1976 and therefore she was not entitled for any partition.
7. Based on the pleadings, Trial Court framed following issues:
1. Whether the plaintiff proves her joint possession and enjoyment over the suit schedule properties?
2. Does she entitle for the relief of partition and separate possession of her 1/7th share over the suit schedule properties by metes and bounds?
3. Whether the 3rd defendant proves that the plaintiff married in the year 1976, 6th defendant married on 02.12.1985 and the 7th defendant married on 13.12.1989, as such they are not entitled for the RSA No.646/2018 partition and separate possession of the suit schedule properties by metes and bounds?
4. Does he prove that after death of Lakshmaiah the properties were divided between the defendant No.1 to 4 orally and thereafter, reduced into writing on 04.06.1997?
5. Whether the 2nd defendant proves that in the alternative that the share has been already given to the plaintiff as contended in para No.9 of the written statement?
6. What order and decree?
8. With the above pleadings and issues, parties went to trial. Answering issues No.1 and 2 in the affirmative and issues No.3 to 5 in the negative, the Trial Court decreed the suit with cost holding that the plaintiff is entitled for 1/7th share along with defendants No.1, 2 (a) to (c), 3, 4, 6 & 7.
9. On appeal, First Appellate Court framed following points for its consideration: 1.Whether sufficient grounds are made out to allow I.A.No.2?
2. Is the defendant established the partition of the year 1997 as pleaded in the written statement filed by defendant No.2? RSA No.646/2018
3. Whether defendant No.2 (a) to 2 (c)/appellants establishes that the property given to the plaintiff under will is joint family property and the plaintiff is not entitled for any share in the suit properties?
4. Are the plaintiff and defendant No.6 entitled to a decree for partition of the suit schedule properties?
5. Whether the interference is call for in the judgment and decree of the trial court?
6. What Order?
10. Answering points No.1 to 3 in the negative and points No.4 and 5 in the affirmative, First Appellate Court held that plaintiff shall be entitled for 1/35th share in the plaint schedule properties. Thus, in substance, 1/7th share decreed by the Trial Court has been reduced to 1/35th share by the First Appellate Court. Feeling aggrieved, plaintiff is before this Court.
11. Shri C.M. Poonacha, learned advocate for the appellant, adverting to paragraph No.28 of the First Appellate Courts Judgment, contended that, First Appellate Court erred in applying the Judgment in the RSA No.646/2018 case of Prakash and others v. Phulavati and others reported in (2016) 2 SCC 36 and reducing the share to 1/35th by considering notional partition just prior to the death of propositus.
12. Shri Poonacha, endeavoured to contend that once a daughter is declared as a coparcener, her right is simultaneous with her birth. To buttress this argument, he referred Mangammal @ Thulasi and Anr v. T.B.Raju and Ors. reported in 2018 SCC OnLine SC 422, (para-26).
13. I have carefully considered submissions of learned advocate for the appellant and perused the material papers on record.
14. It may be profitable to quote paragraph No.11 from the case of Mangammal (supra):
11. It is pertinent to note here that recently, this Court in Danamma @ Suman Surpur v. Amar, 2018 (1) Scale
657 dealt, inter-alia, with the dispute of daughters right in the ancestral property. In the above case, father of the daughter died in 2001, yet court permitted the daughter to claim the RSA No.646/2018 right in ancestral property in view of the amendment in 2005. On a perusal of the judgment and after having regard to the peculiar facts of the Danamma (supra), it is evident that the Division Bench of this Court primarily did not deal with the issue of death of the father rather it was mainly related to the question of law whether daughter who born prior to 2005 amendment would be entitled to claim a share in ancestral property or not? In such circumstance, in our view, Prakash (supra), would still hold precedent on the issue of death of coparcener for the purpose of right of daughter in ancestral property. Shortly put, only living daughters of living coparceners would be entitled to claim a share in the ancestral property. (emphasis supplied)
15. It is clear that in Mangammals case (supra), Honble Supreme Court has reiterated that living daughters of living coparceners would be entitled to claim their share. In this case, admittedly plaintiffs father Laxmaiah passed away on 09.01.1981 and the instant suit is filed in 2001.
16. In the light of settled position of law noted supra, plaintiff would be entitled to a share in the property apportioned to her father in a notional partition immediately prior to his death. The First Appellate Court has rightly applied this formula and therefore, no exception can be taken to its judgment. RSA No.646/2018
17. Resultantly, appeal must fail and is accordingly dismissed.
18. In view of dismissal of appeal, IA-1/2018 for stay does not survive for consideration and the same stands disposed of. No costs. Sd/- JUDGE
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