HANUMAKKA Vs. SHARADAMMA

JUDGEMENT

(1.) Plaintiffs second appeal calling in question the divergent findings of the Courts below. While the Trial Court allowed the suit for declaration, partition and separate possession, the lower Appellate Court dismissed the suit. Appellant instituted O.S. No. 15 of 2004 before the Principal Civil Judge (Junior Division) and JMFC, for declaration, partition and separate possession of Suit Schedules A, B and C immovable properties and Schedule 'D' movable properties of her deceased father by name Hanumanthaiah who left behind the defendant by name Basamma, his 2nd wife. According to the plaintiff, being the only child born to Hanumanthaiah from out of the wedlock with one Nanjamma, the 1st wife, however with Basamma the 2nd wife, had be gotten 4 children of which one was male and 3 females constituting a joint Hindu undivided family. Thus being no partition of the ancestral properties and the father having died intestate, without leaving a Will, sought partition of the suit schedule properties. The defendant entered appearance and resisted the suit by filing a written statement denying the plaint averments, except the relationship and advanced a plea that the plaintiff was given in marriage some 50 years ago and was living with her husband at Somapura Village while at the marriage, the deceased Hanumanthaiah gave some ornaments, cash and other items to the plaintiff and also paid the consideration for purchase of properties for the plaintiff at Koratagere Taluk whence the plaintiff gave up her share in the suit schedule properties. In the premise of pleadings of parties, the Trial Court framed 4 issues where after wards plaintiff was examined as P.W. 1 and two other witnesses as P.Ws. 2 and 3 and marked seven documents as Exs. P.1 to P.7, while the defendant was examined as D.Ws. 1 and 3 witnesses as D.Ws. 2 to 4, though did not mark any document. The Trial Court having regard to the material on record held that the suit schedule properties were not the self-acquisitions of deceased Hanumanthaiah, but were ancestral properties since the plaintiff, was his daughter from the 1st wife, while defendant the 2nd wife had 4 children, all were entitled to 1/6th share in the suit schedule properties, in the light of the amendment to the Hindu Succession Act, 1956, the Trial Court accordingly rejected the plea of the defendant that the plaintiff at the time of marriage secured money from her father Hanumanthaiah for purchase of immovable properties at Koratagere, in the absence of relevant material constituting substantial legal evidence of the said fact and by the judgment and decree dated 17-8-2007 declared that the plaintiff was entitled to 1/6th share in the suit schedule properties.

(2.) The defendant Basamma being aggrieved by the judgment and decree filed R.A. No. 52 of 2007 before the Additional District and Sessions Judge, Fast Track Court-7, Doddaballapur. During the pendency of the appeal Basamma was reported to have died whence her L.Rs came on record and prosecuted the appeal. Regard being had to the decision of this Court in Pushpalatha N.V. v V. Padma and Others, 2010 3 KarLJ 549 (DB) opining that daughters become coparceners from the moment of their birth and the rights under the Amendment Act, are bestowed on daughters born only after 17-6-1956 and not extendable to daughters born prior to that date, coupled with the non-joinder of necessary parties i.e., the children of Basamma as defendants, allowed the appeal, set aside the judgment and decree of the Trial Court and dismissed the suit by judgment and decree dated 20-7-2010. Hence this second appeal.

(3.) This appeal is listed for admission after service of notice on the respondents who are represented by learned Counsel. With the consent of the learned Counsel for the parties, the appeal is finally heard and disposed of by this order.