- 1 - NC: 2025:KHC:13496 RSA No. 69 of 2016 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 1ST DAY OF APRIL, 2025 BEFORE THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 69 OF 2016 (PAR) BETWEEN: 1. SMT. MUNITHAYAMMA W/O SRI. SOMBAPPA AGED ABOUT 57 YEARS R/AT BANDEBOMMASANDRA VILLAGE BIDARAHALLI HOBLI BENGALURU EAST TALUK PIN CODE-560 067. 2. SMT. RATHNAMMA W/O SRI. ASWATHAPPA AGED ABOUT 55 YEARS R/AT TALAGHATTAPURA VILLAGE BENGALURU-560 062. 3. SMT.RADHAMMA W/O SRI.RAMACHANDRA AGED ABOUT 52 YEARS R/AT BANDEBOMMASANDRA VILLAGE BIDARAHALLI HOBLI BENGALURU EAST TALUK-560 067. 4. SMT. TIRUMALA @ NIRMALA W/O SRI. KRISHNA AGED ABOUT 49 YEARS R/AT NO.207, CHOLANAYAKANAHALLI BENGALURU NORTH TALUK BENGALURU-560 032. …APPELLANTS (BY SRI. A.M. VIJAY, ADVOCATE) Digitally signed by SUNITHA K S Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC:13496 RSA No. 69 of 2016 AND: 1. SRI. NANJAPPA S/O LATE MUNIAPPA AGED ABOUT 59 YEARS KUNDANAHALLI DEVANAHALLI TALUK BENGALURU DISTRICT-562 110. 2. SRI. K.CHINNAPPA S/O LATE SRI. KADIRAPPA MAJOR R/A KEMPATHIMMANAHALLI KASABA HOBLI DEVANAHALLI TALUK BENGALURU DISTRICT-562 110. …RESPONDENTS (BY SRI. B.S. MURALI, ADVOCATE FOR R2; V/O DATED 20.01.2020 NOTICE TO R1 IS HELD SUFFICIENT) THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE ORDER DATED 09.12.2015 PASSED IN R.A NO.36/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., DODDABALLAPUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 03.08.2013 PASSED IN O.S NO.100/2011 ON THE FILE OF THE ADDL. CIVIL JUDGE AND JMFC., DODDABALLAPUR. THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI - 3 - NC: 2025:KHC:13496 RSA No. 69 of 2016 ORAL JUDGMENT This Regular Second Appeal is filed by the appellants challenging the judgment and decree dated 09.12.2015 passed in R.A.No.36/2013 by the learned Senior Civil Judge and JMFC, Doddaballapur and the judgment and decree dated 03.08.2013 passed in O.S.No.100/2011 by the learned Additional Civil Judge and JMFC, Doddaballapur. 2. For convenience, the parties are referred to, based on their rankings before the trial Court. The appellants were the plaintiffs, and the respondents were the defendants. 3. Brief facts leading rise to the filing of this appeal are as follows: The plaintiffs filed a suit against the defendants for partition and separate possession. It is the case of the plaintiffs that the suit schedule properties are the joint family properties owned by one Bayyiga and succeeded by his son Sri. Muniyappa, the father of the plaintiffs and - 4 - NC: 2025:KHC:13496 RSA No. 69 of 2016 defendant No.1. The plaintiffs claimed coparcenary rights as per Section 6 of the Hindu Succession (Amendment) Act, 2005. It is contended that defendant No.1 sold ‘B’ schedule property in favour of defendant No.2 under the registered sale deed dated 21.08.1997 and the said fact came to the knowledge of the plaintiffs only when they demanded for partition of the suit schedule properties about 3 months prior to the date of filing of the suit. It is contended that after the demise of their father in 1981, they have been continuously demanding their share in the suit schedule properties, but defendant No.1 went on postponing the same on one pretext or the other. Hence, a cause of action arose for the plaintiffs to file a suit for partition and separate possession. Accordingly, prays to decree the suit. 3.1. Summons was issued to the defendants. Despite service of summons, defendant No.1 remained absent and unrepresented. Hence, he was placed exparte. - 5 - NC: 2025:KHC:13496 RSA No. 69 of 2016 3.2. Defendant No.2 filed a written statement contending that he is the purchaser of ‘B’ schedule property. It is contended that the suit filed by the plaintiffs is barred by limitation, since the alienation in favour of defendant No.2 took place in 1997, and the suit was filed in the year 2011. It is contended that the plaintiffs have no share in ‘B’ schedule property. Hence, prays to dismiss the suit in respect of ‘B’ schedule property. 3.3. The trial Court, based on the pleadings of the parties, framed the following issues. 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? - 6 - NC: 2025:KHC:13496 RSA No. 69 of 2016 4) Whether the 2nd defendant proves that he is the bonafide purchaser of the suit schedule properties? 5) Whether the plaintiffs are entitled for share in the suit schedule properties? 6) What order or decree? 3.4. The plaintiffs, to substantiate their case, plaintiff No.4 was examined as PW.1 and marked 36 documents as Exs.P1 to 36. On the other hand, defendant No.2 was examined as DW.1 and marked 22 documents as Exs.D1 to 22. The trial Court, after recording the evidence, hearing on both sides and on the assessment of verbal and documentary evidence, answered issues No.1 and 2 partly in the affirmative, issues No.3 in the affirmative, issues No.4 in the negative, issues No.5 as below mentioned, issues No.6 as per the final order. 3.5. The suit of the plaintiffs was decreed in part with costs. It is held that the plaintiffs are entitled for 1/5th share each over ‘A’ and ‘C’ schedule properties, and defendant No.1 is entitled to the remaining 1/5th share. It - 7 - NC: 2025:KHC:13496 RSA No. 69 of 2016 is held that the plaintiffs are entitled for partition and separate possession of their 1/5th share in the suit properties. The claim of the plaintiffs regarding mesne profits was kept open for the decision during the final decree proceedings. The claim for partition in respect of suit ‘B’ schedule property bearing Sy.No.33/6 measuring 1 acre 20 guntas of Sonamarenahalli village, Doddaballapura taluk, was rejected, and the suit was dismissed against defendant No.2. 3.6. The plaintiffs, aggrieved by the dismissal of the suit regarding the suit schedule ‘B’ property, preferred an appeal in R.A.No.36/2013, on the file of Senior Civil Judge and JMFC, Doddaballapur. 3.7. The First Appellate Court, after hearing the learned counsel for the parties, framed 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 under Section 8 of the Hindu Succession Act 1956, in spite of - 8 - NC: 2025:KHC:13496 RSA No. 69 of 2016 the fact that the sole surviving coparcener 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 Section 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? 3.8. The First Appellate Court, after reassessing the oral and documentary evidence, answered points Nos.1 to 4 in the negative and point No.5 as per the final order. Consequently, the appeal was dismissed. The judgment and decree passed by the trial Court was confirmed. The - 9 - NC: 2025:KHC:13496 RSA No. 69 of 2016 plaintiffs, aggrieved by the impugned judgments, filed this Regular Second Appeal. 4. Heard the arguments of the learned counsel for the plaintiffs and learned counsel for defendant No.2. 5. Learned counsel for the plaintiffs submits that the right to succeed to their half share in ‘B’ schedule property i.e., their father’s property, cannot be denied, in view of Section 8 of the Hindu Succession Act, whereby the interest of male Hindu dying intestate would devolve upon his class-I heirs. The said aspect was not properly considered by the Courts below. He further contended that it cannot be said that the share of the deceased father of the plaintiffs would devolve upon the sole surviving male coparcener, i.e., defendant No.1, since upon the death of his father in 1981. The notional partition was contemplated under the then-prevailing Section 6 of the Hindu Succession Act. He submits that the interest of the deceased coparcener, dying before the Act coming into force on 2005 Amendment Act, would devolve upon all his - 10 - NC: 2025:KHC:13496 RSA No. 69 of 2016 class-I heirs, including his daughters, by succession and not by survivorship upon the male coparcener i.e., defendant No.1 alone. To buttress his arguments, he has placed reliance on the judgment of the Hon’ble Apex Court in the case of ANAR DEVI AND ORS VS. PARMESHWARI DEVI AND ORS reported in 2006 (8) SCC 656. Hence, on these grounds, he prays to allow the appeal and decree the suit in respect of suit ‘B’ schedule property. 6. Per contra, learned counsel for defendant No.2 submits that the provision to Section 6 of the Hindu Succession (Amendment) Act, 2005 has a retrospective effect and not prospective. He also submits that the sale deed was executed on 21.08.1997 by defendant No.1 in favour of defendant No.2. The said sale is saved by the proviso to Section 6 of the Hindu Succession Act, 1956. Hence, the plaintiffs are not entitled to share in suit ‘B’ schedule property. He submits that both the Courts below were justified in dismissing the suit regarding ‘B’ schedule - 11 - NC: 2025:KHC:13496 RSA No. 69 of 2016 property. Hence, on these grounds, he prays to dismiss the appeal. 7. This Court on 17.02.2020, admitted the appeal to consider the following substantial question of law. “Whether the appellate Court could have refused a share to the plaintiffs when their father died in the year 1981 and the notional partition as provided under Section 6 of the Hindu Succession Act 1956, took effect to grant them a share?” 8. Perused the records and considered the submissions of the learned counsel for the parties. 9. Reg. Substantial question of law: There is no dispute in regard to the relationship between the plaintiffs and defendant No.1. One Bayyiga was the original propositus, he had a wife by the name, Durgamma, and they had a son by the name, Muniyappa. Muniyappa had a wife by the name, Subbamma. Plaintiff Nos.1 to 4 are the daughters of Muniyappa and defendant No.1 is the son of Muniyappa. Schedule ‘A’ to ‘C’ properties are the ancestral properties of the plaintiffs and - 12 - NC: 2025:KHC:13496 RSA No. 69 of 2016 defendant No.1. The plaintiffs and defendant No.1 are the members of a Hindu undivided joint family and there is no partition effected between the plaintiffs and defendant No.1. Defendant No.1, to deprive the legitimate shares of the plaintiffs have sold suit ‘B’ schedule property, in favour of defendant No.2 on 21.08.1997. The sale deed executed by defendant No.1 in favour of defendant No.2 is not binding. Further, to prove that the suit schedule properties are the ancestral properties of the plaintiffs and defendant No.1, the plaintiffs, produced the documents, marked as Exs.P1 to P36. There is no dispute regarding the nature of the suit schedule properties, i.e., they are the ancestral properties of the plaintiffs and defendant No.1. Though defendant No.1 executed the registered sale deed in favour of defendant No.2 on 21.08.1997, meanwhile, Section 6 of the Hindu Succession Act was amended by way of substitution by the Act 39 of 2005 with effect from 09.09.2005, wherein the daughter’s coparcenary right by birth was recognized in the same - 13 - NC: 2025:KHC:13496 RSA No. 69 of 2016 manner as that of a son. After the amendment, the plaintiffs filed a suit for partition and separate possession. 10. It is the case of the plaintiffs that as on the date of execution of a registered sale deed, the father had a right, if the partition was effected as on the date of his death, the father would have got a share. The plaintiffs are entitled to a share in their father’s share at the notional partition of ‘B’ schedule property. Both the Courts below did not consider the said aspect and proceeded to pass the impugned judgments. 11. Learned counsel for the plaintiffs has relied upon the judgment of the Hon’ble Apex Court in the case of ANAR DEVI AND OTHERS VS. PARMESHWARI DEVI AND OTHERS reported in (2006) 8 SCC 656, wherein the Hon’ble Apex Court held that the notional partition would not bring about total disruption of the coparcenary as if there had in fact been a regular partition and severance of status among all the surviving coparceners. However, the statutory partition leads to disruption, the statutory - 14 - NC: 2025:KHC:13496 RSA No. 69 of 2016 provision as provided in Section 6(3) is to be given full effect. The same leads to severance of status of jointness of a deceased coparcener and legal heirs, which shall include the right of maintenance from the joint family, of a widow of the deceased coparcener and such other rights, and such a partition brings an end to the joint family. In the case of the death of the plaintiff’s father, a notional partition would occur. The constitutional bench of the Hon’ble Apex Court in the case of VINEETA SHARMA VS. RAKESH SHARMA AND OTHERS reported in AIR 2020 SC 3717, had an occasion to consider the judgment rendered by the Hon’ble Apex Court in the case of ANAR DEVI (referred supra), in para 97 which reads as follows: 97. In Anar Devi & Ors. v. Parmeshwari Devi & Ors (supra), the decision in Gurupad (supra) was considered, and it was held that when a coparcener dies leaving behind any female relative specified in Class I of the Schedule to the Act or male relative claiming through such female relative, his undivided interest is not devolved by survivorship but upon his heir by intestate succession thus: “8. According to the learned author, at page 253, the undivided interest “of the deceased coparcener for the purpose of giving effect to the rule laid down in the proviso, as already pointed out, is to be ascertained on the footing of a notional partition as - 15 - NC: 2025:KHC:13496 RSA No. 69 of 2016 of the date of his death. The determination of that share must depend on the number of persons who would have been entitled to a share in the coparcenary property if a partition had in fact taken place immediately before his death and such person would have to be ascertained according to the law of joint family and partition. The rules of Hindu law on the subject in force at the time of the death of the coparcener must, therefore, govern the question of ascertainment of the persons who would have been entitled to a share on the notional partition”. 11. Thus we hold that according to Section 6 of the Act when a coparcener dies leaving behind any female relative specified in Class I of the Schedule to the Act or male relative specified in that class claiming through such female relative, his undivided interest in the Mitakshara coparcenary property would not devolve upon the surviving coparcener, by survivorship but upon his heirs by intestate succession. Explanation 1 to Section 6 of the Act provides a mechanism under which undivided interest of a deceased coparcener can be ascertained and i.e. that the interest of a Hindu Mitakshara coparcener 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. It means for the purposes of finding out undivided interest of a deceased coparcener, a notional partition has to be assumed immediately before his death and the same shall devolve upon his heirs by succession which would obviously include the surviving coparcener who, apart from the devolution of the undivided interest of the deceased upon him by succession, would also be entitled to claim his undivided interest in the coparcenary property which he could have got in notional partition.” In Anar Devi (supra), the question of enlargement of right by a legal provision or otherwise change in the coparcener's share was not involved. The decision cannot help the cause set up of partition created by statutory fiction. Statutory - 16 - NC: 2025:KHC:13496 RSA No. 69 of 2016 fiction is with respect to the extent of the share of deceased coparcener in exigency provided in the proviso to section 6. Coparcenary or HUF, as the case may be, does not come to an end by statutory fiction. Disruption of coparcenary by statutory fiction takes place, is not the proposition laid down in the aforesaid decision. 12. The Hon’ble Apex Court held that “the question of enlargement of right by a legal provision or otherwise change in the coparcener’s share was not involved. The decision cannot help the cause set up of partition created by statutory fiction. Statutory fiction is with respect to the extent of the share of deceased coparcener in the exigency provided in the proviso to Section 6. Coparcenery or Hindu undivided family, as the case may be, does not come to an end by statutory fiction. Disruption of coparcenary by statutory fiction takes place, is not a proposition laid down in the aforesaid decision.” 13. Considering the ratio laid down in the case of VINEETA SHARMA (referred supra) and further considering the proviso to Section 6 of the Hindu Succession (Amendment) Act, 2005, admittedly, defendant No.1 sold - 17 - NC: 2025:KHC:13496 RSA No. 69 of 2016 the property in favour of defendant No.2 on 21.08.1997 i.e., prior to 20.12.2004. The said sale is saved by the proviso to Section 6 of the Hindu Succession (Amendment) Act, 2005. The Courts below have rightly refused the share of the plaintiffs whose father died in 1981 regarding ‘B’ schedule property, and the notional partition was open as provided under Section 6 of the Hindu Succession Act, 1956, to effectively grant their share. As observed above, proviso to Section 6 of the Hindu Succession Act has a retrospective effect, and the said aspect was considered by the Hon’ble Apex Court in the case of VINEETA SHARMA (referred supra). Hence, both the Courts below were justified in passing the impugned judgments. In view of the above discussion, I answer the substantial question of law in the negative. 14. Accordingly, I proceed to pass the following: ORDER i. The Regular Second Appeal is dismissed. - 18 - NC: 2025:KHC:13496 RSA No. 69 of 2016 ii. The judgments and decrees passed by the courts below are hereby confirmed. No order as to the costs. Sd/- (ASHOK S.KINAGI) JUDGE SKS