C.L.RAJEGOWDA Vs. KADAMMA

JUDGEMENT

(1.) The defendants No.2, 5 and 6 in Final Decree Proceedings No.3/2016 on the file of the Senior Civil Judge, Periyapatna, have filed this writ petition challenging the order dtd. 25/7/2022, passed therein, by which the Final Decree Court allowed the application and modified the shares in view of the judgment of the Hon'ble Apex Court in the case of VINEETHA SHARMA VS. RAKESH SHARMA & ORS., reported in (2020) 9 SCC 1.

(2.) A suit in O.S.No.28/2011 was filed by the daughter claiming an undivided share in the suit schedule properties. The said suit was decreed in part and it was declared that the plaintiff is entitled to 1/6th share in the suit items 1 & 4 to 9, including Sy.No.78/4. Appeals in R.A.No.453 and 487 of 2014 were preferred by the defendants. The Appellate Court set aside the judgment and decree of the Trial Court and declared that the plaintiff is entitled to 1/24th share in suit item Nos.1, 4, 5, 6, 7, 8, 9 including Sy.No.78/4. The Appellate Court while doing so, relied upon the judgment of this court in PUSHPALATHA N. V. VS. V. PADMA & ORS ., reported in ILR 2010 KAR 1484, and held that the plaintiff is entitled to a share out of the notional share of her father. Plaintiff thereafter filed FDP No.3/2016 to enforce the preliminary decree. In the meanwhile, the Hon'ble Apex Court in the case of VINEETHA SHARMA (SUPRA) held that a daughter is entitled to an equal right along with the son from the date of the Hindu Succession Act , 1956, coming into force. In that view of the matter, the Final Decree Court modified its earlier judgment and decree and held that the plaintiff is entitled to 1/6th share in items No.1 & 4 to 9. Being aggrieved by the said order, the present petition is filed.

(3.) Learned counsel for the petitioner submitted that once the decree was modified by the Appellate Court, the plaintiff was required to seek review of the judgment and decree passed by the Appellate Court and could not have sought modification before the Final Decree Court which was lower in rank than the Appellate Court. He submitted that the Final Decree Court would, therefore, not have modified the preliminary decree.