Judgment:
1. Plaintiff’s 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.
2. 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 issued whereafterwards 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.
3. 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. Padma and Others (2010 (3) Kar.L.J. 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.
4. 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.
5. The following substantial question of law arises for decision making:
There being no dispute that the plaintiff is the only child of the 1st wife of deceased Hanumanthaiah, while the defendant Basamma was the 2nd wife who be got 4 children, the parties constituted a Hindu Undivided Family and in the absence of a partition of the joint family properties between the members of joint family, prior to 20-12-2004 by a deed of partition duly registered under the Registration Act, 1908, or by a decree of a Court, whether the lower Appellate Court was justified in allowing the appeal on the premise that the plaintiff was not a coparcener and that there was non-joinder of necessary parties in the suit, to dismiss the suit for declaration, partition and separate possession?
6. Heard the learned Counsel for the parties, perused the pleadings and evidence, both oral and documentary, and examined the judgment and decree of the Courts below. Undoubtedly the plaintiff did not arraign as party-defendants, the children of defendant Basamma the 2nd wife of Hanumanthaiah, in O.S.No.15 of 2004 for declaration, partition and separate possession of the suit schedule properties. In the circumstances the 2nd wife gave birth to four children, being one make and 3 female, not in dispute, is not fatal so as to dismiss the suit for non-joinder of necessary parties. The Trial Court in the light of admitted facts, particularly the relationship between the parties and that the defendant Basamma had 4 children, one male and three female, all of whom along with the plaintiff constituted a Hindu Undivided Family, justifiably determined the plaintiff’s share as 1/6th in the suit schedule properties. In other words, the Trial Court provided for the share of all the other coparceners of the joint family. Thus the lower Appellate Court was not justified in recording a finding that the suit suffered from non-joinder of necessary parties.
7. The question as to whether the plaintiff was a coparcener entitled to equal share in the joint family properties left behind by deceased father more so when there is no dispute that all the parties constituted a joint Hindu Undivided Family and admittedly there was no partition deed effected before 20-12-2004 duly registered under the Registration Act, 1908 or by a decree of Court, need not detain the Court for long in the light of the observations of the Apex Court in Ganduri Koteshwaramma and Another v. Chakiri yanadi and Another ((2011) 9 SCC 788), which reads thus:
“(11) The new Section 6 provides for parity of rights in the coparcenary property among male and female members of a joint Hindu family on and from September 9, 2005. The Legislature has now conferred substantive right in favour of the daughters. According to the new Section 6, the daughter of a coparcener becomes a coparcener by birth in her own rights and liabilities in the same manner as the son. The declaration in Section 6 that the daughter of the coparcener shall have same rights and liabilities in the coparcenary property as she would have been a son is unambiguous and unequivocal. Thus, on and from 9-9-2005, the daughter is entitled to a share in the ancestral property and is a coparcener as if she had been a son.
(12) The right accrued to a daughter in the property of a joint Hindu family governed by the Mitakshara Law, by virtue of the 2005 Amendment Act, is absolute, except in the circumstances provided in the proviso appended to sub-section (1) of Section 6. The excepted categories to which new Section 6 of the 1956 Act is not applicable are two, namely, (i) where the disposition or alienation including any partition has taken place before 20-12-2004, and (ii) where testamentary disposition of property has been made before 20-12-2004. Sub-section (5) of Section 6 leaves no room for doubt as it provides that this section shall not apply to the partition which has been effected before 20-12-2004. For the purposes of new Section 6 it is explained that ‘partition’ means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 or partition effected by a decree of a Court. In light of a clear provision contained in the Explanation appended to sub-section (5) of Section 6, for determining the non-applicability of the section, what is relevant is to find out whether the partition has been effected before 20-12-2004 by deed of partition duly registered under the Registration Act, 1908 or by a decree of a Court. In the backdrop of the above legal position with reference to Section 6 brought in the 1956 Act by the 2005 Amendment Act, the question that we have to answer is as to whether the preliminary decree passed by the Trial Court on 19-3-1999 and amended on 27-9-2003 deprives the appellants of the benefits of the 2005 Amendment Act although final decree for partition has not yet been passed”.
8. In the light of the aforesaid statement of law of the Apex Court, which when applied to the facts of this case noticed supra, the substantial question of law is answered in the negative. In other words, it is held that the plaintiff being a coparcener in the Joint Hindu undivided Family of deceased Hanumanthaiah was entitled to 1/6th share as determined by the Trial Court.
In the result, this appeal is allowed. The judgment and decree in R.A.No.52 of 2007 is set aside. R.A.No.52 of 2007 is dismissed. The judgment and decree dated 17-8-2007 in O.S.No.15 of 2004 of the Principal Civil Judge (Junior Division) and JMFC, Doddaballapur, is affirmed.