Sri Lakshman Reddy S/o Late Govindareddy Vs. Smt G Danamma W/o Jayaramreddy - Court Judgment

Excerpt:
- 1 - nc:2024. khc:50000 rfa no.323 of 2009 in the high court of karnataka at bengaluru r dated this the4h day of december, 2024 before the hon'ble mr justice c m joshi regular first appeal no.323 of2009(par) between: sri lakshman reddy, s/o late govinda reddy, aged about53years, r/at no.136, doddanekundi village, doddanekundi post, bangalore-560 037. ...appellant (by sri abhinav r, advocate) and:1. smt. g danamma, w/o jayaramreddy, aged about55years, r/at munekolalu, marathalli post, bangalore-560 037.2. smt. kanthamma, w/o nanjundareddy, aged about45years, r/at nanjapura, jigani hobli, anekal tq., bangalore.3. smt. prameela, w/o gopal reddy, major.4. smt. gayathri, d/o late govindareddy, major.5. smt. sarojamma, d/o late govindareddy, major.-. 2 - nc:2024. khc:50000 rfa no.323 of 2009 respondents3to5are r/at no.136, doddanekundi village, doddanekundi post, bangalore-560 037.6. sri jayaram reddy, s/o late govindareddy, major, r/at no.136, doddanekundi village, doddanekundi post, bangalore-560 037. since deceased by his lr's. 6(a) smt. lokmatha, w/o jayarama reddy, aged about71years. 6(b) sri natesh n.j, s/o. jayarama reddy, aged about34years. both6a) & 6(b) are r/at no.158, near circle, doddanekundi, bengaluru-560 037.7. sri nanjundareddy, since dead by his lr's. (a) smt. anasuya, w/o late nanjundareddy, major. (b) n ravi, s/o late nanjundareddy, major. (c) anil, s/o late nanjundareddy, major. (d) sunil, s/o late nanjundareddy, major. all r/at no.136, doddanekundi village and post, bangalore-560 037.8. smt. nagarathna, d/o late yashodamma and annaiah reddy, aged about34years.-. 3 - nc:2024. khc:50000 rfa no.323 of 2009 9. smt. vanitha, d/o late yashodamma and annaiah reddy, aged about30years.10. srinivasa reddy, s/o late yashodamma and annaiah reddy, aged about32years.11. ravindra, s/o late yashodamma and annaiah reddy, aged about29years. respondents8to11are the r/of halanayakanahalli, varthur hobli, a.krishnappa nagara, bangalore east tq.12. sri sundararamareddy, s/o late govindareddy, aged about55years, r/of b.govindareddy layout, 7th cross, 3rd main, behind govt. school, doddanekkundi village and post, bangalore-37.13. sri n.r.srinath, s/o late rajareddy, aged about40years, r/at behind govt.school, doddanekundi, bangalore-37.14. sri kodanda, s/o late ramaiah reddy, aged about56years, r/at no.399, 1st 'd' main, domlur layout, bangalore-71.15. sri chandrashekar, s/o late thippareddy, aged about53years, r/at no.89, kempapura, yemalur post, bangalore-37.-. 4 - nc:2024. khc:50000 rfa no.323 of 2009 16. smt. k.lakshmi, w/o b.s.suresh, aged about43years, r/at no.454, bellandur village and post, bangalore-37.17. sri satish nayak shroff, s/o damodar nayak shroff, aged about39years.18. smt aparna nayak, w/o satish nayak shroff, aged about29years. respondent nos. 17 & 18 are r/at no.681, 1st b main, 7th block, banashankari iii stage, ii phase, bangalore-85.19. sri b.suresh, s/o s.balasundaram, aged about39years.20. smt. sujatha, w/o b.suresh, aged about31years, r/at no.8/1, 1st cross, artillary road, gowthamapura, ulsoor, bangalore-8.21. v.venkata krishna reddy, s/o venkatarami reddy, aged about42years, r/at in pent house-1, vars ferndale apartments, 1st main, kodihalli, bangalore-37.22. smt. prishwa lakre vincent, major, r/of b.govindareddy layout, behind govt. school, doddanekkundi village & post, bangalore-37. …respondents (by sri prasanna kumar r.s, advocate for r1 to r5 (noc); sri vishwanath shetty, advocate for r6 (a&b); - 5 - nc:2024. khc:50000 rfa no.323 of 2009 sri h.r anantha krishnamurthy, advocate for r7 (a-b) (noc) [absent].; r7(c) & r7 (d) are served; sri jayaprakash, advocate for r8-r11; r12, r13, r16, r19 & r20 are served; sri s.m manjunatha, advocate by law pack associates for r14 & r15 [absent].; service of notice to r17, r18 & r22 are held sufficient by way of paper publication v/o dated0602.2014; sri a madusudhana rao, advocate for r21) this rfa is filed u/s96of cpc, against the judgment and decree dated2211.2008, passed in os.no.5761/2004 on the file of the xxxviii addl. city civil judge, bangalore, partly decreeing the suit for relief of revocation of partition and separate possession. this appeal having been heard and reserved on2210.2024, coming on for pronouncement of judgment this day, the court delivered the following: coram: hon'ble mr justice c m joshi cav judgment this appeal is filed by defendant no.3 in os no.5761 of 2004 being aggrieved by the judgment and decree dated 22nd november 2008 passed by the learned xxxviii additional city civil and sessions judge, bangalore city.2. the parties would be referred to as per their ranks before the trial court for the sake of convenience.3. the facts of the case as averred in the plaint are that, plaintiff nos.1 to 5 before the trial court who are - 6 - nc:2024. khc:50000 rfa no.323 of 2009 respondent nos.1 to 5 herein, claimed the relief of partition and the separate possession of their 1/9th share in the suit schedule properties and for other reliefs which are as below: a) for revocation of partition deed dated 20.06.2003. b) for partition of the suit schedule property by metes and bounds and to deliver their 1/9th share in the suit schedule property. c) for separate possession of the plaintiff’s share in the suit schedule property. d) and grant of permanent injunction, restraining the defendants from alienating or dispossessing the suit schedule property. e) for grant of such other relief or reliefs, as this hon'ble court deems fit to grant under the circumstances of the case, in the interest of justice and equity.4. initially, plaintiff nos.1 and 2 had filed the suit and later, their sisters who were arrayed as defendant nos. 5 to 7, got transposed themselves as plaintiff nos. 3 to 5. it is the case of the plaintiffs that they are the daughters of defendant no.1 and their deceased father govindareddy. it is stated that defendant nos.1, 2, 3, husband of defendant no.4, defendant no.12 and another deceased suresh reddy were their brothers; mother of defendant no.8 to 10 yashodamma, was another sister of the plaintiff. the family pedigree under govindareddy is depicted as below: nc:2024. khc:50000 rfa no.323 of 2009 - - 7 - - family tree nanja reddy govinda reddy muniyamma (wife) (def-1) jayram reddy lakshman reddy dhanamma yashodamma nanjunda reddy pramila sundar ram sarojamma suresh reddy kantamma gayathri (def-2) (def-3) (plf-1) anasuya (wife) (plf-3) (def-12) (plf-5) passed away on (plf-2) (plf-4) (passed away on (def-4) 30.05.2003 29.04.2001 as bachelor lokmata (wife) (res-6a) ravi manjula natesh (res-6b) vanitha nagarathna ravindra srinivas reddy (def-9) (def-8) (def-11) (def-10) - 8 - nc:2024. khc:50000 rfa no.323 of 2009 5. it is relevant to note that initially, the suit was filed against defendant nos.1 to 12 and later defendant nos.5 to 7 were transposed as the plaintiffs. defendant nos. 13 to 22 were impleaded before the trial court since they were the purchasers of the properties from the brothers of the plaintiffs. the plaintiffs, contended that their father, late govindareddy, was allotted the land bearing sy.no.9/2 measuring 02 acres 27 guntas, situated at doddanekkundi village, in a partition among his brothers; during his lifetime 10 guntas of land in sy.no.9/2 was acquired by the railways; and after the death of govindareddy, the plaintiffs and defendant nos. 1 to 12 had succeeded to the property. after death of govindareddy, defendant no.1 muniyamma got transferred the katha (revenue entry) in respect of the said sy.no.9/2 in her name. later, 28 guntas of land in the said land was acquired by the government for formation of the ring road. therefore, only 01 acre, 27 guntas of land was available to them, as described at item no.1 in the schedule to the plaint. it is also the case of the plaintiffs - 9 - nc:2024. khc:50000 rfa no.323 of 2009 that the defendant nos.1 to 4 have received a compensation amount of rs.4,20,826/- which was awarded for the acquisition of 28 guntas by the government and the plaintiffs are also entitled for share in the same. it is contended that defendant nos.1 to 7 colluding with each other have entered into a partition in the suit schedule properties among themselves under a registered partition deed dated 20-06-2003. in the said partition, the plaintiffs were excluded and therefore, the said partition is not binding on them.6. later, when defendant nos.5 to 7 were transposed as plaintiffs, it appears that they have also acceded to the said contention. further, it is the case of the plaintiffs that after effecting the partition in the suit schedule properties, defendant nos.1 to 4 have formed revenue sites in portions allotted to their share and sold the same to different people. though the defendants were requested to effect partition and give share to plaintiffs, they failed and therefore, the plaintiffs are entitled for - 10 - nc:2024. khc:50000 rfa no.323 of 2009 partition and legitimate share. inter alia, the plaintiffs also contended that the suit schedule properties are the ancestral properties of govindareddy, who is none other than the father of the plaintiffs and therefore, they being the members of the hindu undivided family, they are entitled for partition.7. on issuance of summons, except defendant nos. 18 and 22, all other defendants appeared before the trial court.8. defendant no.4 died, and his legal heirs were brought on record before the trial court. in the meantime, defendant no.1 muniyamma also died and her name was deleted from the cause title.9. defendant nos. 1 to 3 together filed the written statement and admitted the case of the plaintiffs that their father govindareddy got item no.1 of the suit schedule property in a partition amongst his brothers dated 08-06-1972. they also admitted the relationship between the parties. they admitted that 28 guntas in sy.no.9/2, - 11 - nc:2024. khc:50000 rfa no.323 of 2009 was acquired by the government for the formation of the ring road but contended that compensation was awarded, and such compensation was received by defendant no.1 muniyamma and she had spent the same for the benefit of the family. they contended that item nos.3 and 4 of the suit schedule properties are not the joint family properties and they were belonging exclusively to govindareddy. defendant nos.2 and 3 also contended that since the marriages of the plaintiffs were performed prior to coming into force of the hindu succession (karnataka amendment) act, 1990, the plaintiffs are not entitled for a share in the suit schedule properties. however, they admitted that there was a partition on 20-06-2003.10. defendant no.4 in his written statement has taken up similar contentions and further contented that he is an illiterate and innocent person and taking undue advantage of the same, defendant nos.2,3,6 and 12 have got his signature on the document and he was not given proper share in item no.1 of the suit schedule property.-. 12 - nc:2024. khc:50000 rfa no.323 of 2009 11. defendant nos. 8 to 11 in their written statement have admitted the case of the plaintiffs and they further contended that the their mother yashodamma, who was the daughter of govindareddy, is also entitled for equal share in the suit schedule properties and they sought for a decree in their favor.12. defendant no.12 in his written statement contended that the suit schedule properties belonged to their father govindareddy, and they are his self-acquired properties. it was contended that after death of govindareddy, defendant nos.1 to 4 had entered into a partition in which they have divided item no.1 of the suit schedule property and defendant nos.1 to 4 did not include item no.3 and 4 properties in the partition dated 20.06.2003 and they refused to give their share to the daughters of govindareddy and as such he had opposed the partition. he has taken up similar contention as that of the defendant no.4. he was also categorical in saying that the partition dated 20-06-2003, executed by him and - 13 - nc:2024. khc:50000 rfa no.323 of 2009 defendant nos.1 to 4 is not valid and the same is liable to be cancelled and that he is entitled for a share.13. defendant nos.13 to 16 and 19 to 21 in their written statements have contended that the marriages of the plaintiffs were performed earlier to the amended provisions of the hindu succession act came into force and defendant nos.1 to 7 had effected the partition in the suit schedule properties under the registered partition deed dated 20-06-2003 and therefore, they being the bona fide purchasers of portions of the suit schedule properties, and the inter-se dispute is not binding on them. they further contended that, if at all, there is any partition to be ordered, then the properties purchased by them must be allotted to their respective vendors in an equitable partition.14. based on the above pleadings, the following issues were framed by the trial court:1. whether plaintiffs prove that suit schedule properties are the ancestral and joint family properties consisting of themselves and defendants no.1 to 7 and 12?. - 14 - nc:2024. khc:50000 rfa no.323 of 20092) whether plaintiffs prove that they are entitled to a share in the suit properties and if so in which of the suit properties and to what share?.3) whether plaintiffs prove that the registered partition deed dated 20.06.2003 executed by defendants no.1 to 4 and 12 and plaintiff no.4 is null and void and not binding on them?.4) whether defendant no.12 proves that defendants no.1 to 4 has taken his signature on registered partition deed dated 20.06.2003 by force, and hence the same is not binding on him?.5) whether defendants no.2 and 3 prove that defendant no.1 deceased smt. muniyamma had received the entire compensation amount of rs.4,30,826/- from government and she had spent the said amount for discharging antecedent debts of the family and for the benefits of plaintiffs?.6) whether the court fee paid by plaintiffs is proper and sufficient?.7) whether court fee paid by defendant no.12 on the reliefs claimed by him in his written statement is proper and sufficient?. 8)whether defendants no.13 to 21 prove that they are the bonafide purchasers of portions of item no.1 of suit schedule property for valuable consideration?.9) to what reliefs parties are entitled to?.10) what order or decree?.15. plaintiff no.1 was examined as pw1 and plaintiff no.4 was examined as pw2 and exhibits p1 to p20 were marked in evidence. defendant nos. 3, 8, 12, 14, 15, 19, - 15 - nc:2024. khc:50000 rfa no.323 of 2009 13, 16, 4b and 21 were examined as dws. 1 to 10 and exhibits d1 to d17 were marked on their behalf.16. after hearing the arguments by both the sides, the trial court answered the above issues as below and decreed the suit holding that the plaintiffs, defendant no.4a to 4e together and defendant nos.8 to 11 together and defendant no.12 are entitled for partition and separate possession of their 1/10th share each in item nos.1, 3 & 4 of the suit schedule properties by holding that the partition deed dated 20-06-2003 is liable to be cancelled; issue no.1: in the affirmative issue no.2: partly in the affirmative, and further hold that plaintiffs are entitled to 1/10th share each in item nos.1,3 and 4 of suit schedule properties. issue no.3: in the affirmative. issue no.4: in the negative. issue no.5: in the affirmative. issue no.6: in the negative. issue no.7: in the negative. issue no.8: in the affirmative. issue no.9: plaintiffs, defendant nos.4 (a) to 4(e) - 16 - nc:2024. khc:50000 rfa no.323 of 2009 together, defendant nos. 8 to 11 together and defendant no.12 are entitled for partition and separate possession of their 1/10th share each in item nos. 1,3 and 4 of suit schedule properties, plaintiffs are also entitled to the relief of cancellation of registered partition deed dated 20.06.2003. issue no.10: as per final order.17. being aggrieved by the said judgment, defendant no.3 has approached this court in appeal.18. on issuance of notice, respondent nos.1 to 5; r6(a) and (b); r7(a and b); r8 to r11; r14 and r15; and r21 appeared through their respective counsel. despite the service of notice r7(c) and 7(d), r12, r13, r16, r19 and r20 remained absent and service of notice to r17, r18 and 22 are held sufficient.19. on appeal being admitted, the trial court records have been secured. during the pendency of this appeal, respondent no.6/defendant no.2 died and his legal heirs are brought on the record.-. 17 - nc:2024. khc:50000 rfa no.323 of 2009 20. the arguments by learned counsel appearing for the appellant and the learned counsel appearing for the respective respondents were heard.21. the learned counsel appearing for the appellant submitted that the division of the shares by the trial court is erroneous. it is submitted that the larger joint family comprising of two brothers of govindareddy, that is krishnareddy and gurumurthy, entered a partition on 08-06-1972 under a registered partition deed. in the said partition, item no.1 was allotted to the share of govindareddy and item nos.3 and 4 were acquired by a smaller joint family comprising of govindareddy and his five sons. he submitted that all the sons of govindareddy were major as on the date of the partition effected through the registered partition deed dated 08-06-1972. therefore, the joint family status remained amongst govindareddy and his five sons. he submits that when there was a partition by metes and bounds under a registered partition deed dated 20-06-2003, (exhibit-d12) - 18 - nc:2024. khc:50000 rfa no.323 of 2009 between four sons of govindareddy and plaintiff no.4, the said partition is prior to the hindu succession (amendment) act, 2005. as per section 6(5) of the hindu succession act, as amended in 2005, nothing contained in said section applies to a partition effected prior to 20-12- 2004. therefore, he submitted that the partition cannot be questioned by the plaintiffs. it is contended that the sale deeds were executed pursuant to the partition in favour of various third parties and the same are not challenged and therefore, the suit is not maintainable. he further submitted that the calculation of the shares by the trial court is not proper and correct and there should have been a notional partition immediately prior to the death of govindareddy, so that, the members of the coparcenary are entitled for a share. therefore, when govindareddy died, in the notional partition, his five sons would have entitled for 1/6th share in the suit schedule properties and the 1/6th share that would be allotted to govindareddy, in turn, will be divided by succession under section 8 of the hindu succession act, wherein the plaintiffs are entitled - 19 - nc:2024. khc:50000 rfa no.323 of 2009 for 1/11th of 1/6th share in the suit schedule properties. it is submitted that defendant nos.2,3, 4 and 12 would be entitled for 1/6th share in their individual capacity as coparceners under section 6 of the hindu succession act and 1/66th share in the estate of govindareddy under section 8 of the hindu succession act. therefore, the trial court has erred in calculating the shares also.22. in this regard, the learned counsel appearing for the appellant has placed reliance on the judgments in the case of 1. valliammai achi vs. nagappa chettiar and another1; 2. vellikannu vs. r. singaperumal and another2; 3. shyam narayan prasad vs. krishna prasad and others3; 4. arshnoor singh vs. harpal kaur and others4. and 5. derha vs. vishal and another5.23. per contra, the learned counsel appearing for the respondents submit that the trial court has rightly 1 air1967sc11532 (2005) 6 scc6223 air2018sc31524 air2019sc30985 (2023) 10 scc524 - 20 - nc:2024. khc:50000 rfa no.323 of 2009 concluded that the partition in the year 2003 is not binding on the plaintiffs since the plaintiffs were not included in the said partition, be that in respect of the share of govindareddy in the coparcenery or in his individual property. he submits that defendant nos.5 to 7 were later transposed as the plaintiffs and thereby, they have also acceded to the contention of plaintiff nos.1 and 2 that the partition dated 20-06-2003 is sham and bogus and it is liable to be cancelled.24. secondly, he submits that the calculation of the shares by the trial court is proper since the partition among govindareddy and his brothers has resulted in the suit schedule properties being his individual properties and therefore, no fault can be found in the calculation of the shares. thus, he has supported the view taken by the trial court.25. in this regard, the learned counsel for the respondents has also placed reliance on the judgments in the case of - 21 - nc:2024. khc:50000 rfa no.323 of 2009 1. commissioner of wealth tax, kanpur and others vs. chander sen and others6; 2. gurupad khandappa magdum vs. hirabai khandappa magdum and others7, 3. uttam vs. saubhag singh and others8 and lastly 4. bhimsi fakirappa, bijjur dead by his lrs and others vs. nagesh bhimppa waddar and others9 rendered by a division bench of this court.26. in the light of the above contentions urged by both the parties, the questions that need to be decided are:1. whether the trial court erred in holding that the plaintiffs are entitled for 1/10th share each in the suit schedule properties by holding that the suit schedule properties are to devolve u/s 8 of the hindu succession act?.2. whether the judgment of the trial court holding that the partition dated 20-06-2003 is liable to be cancelled is proper, and correct?. re.point no.1:27. the learned counsel appearing for appellant argued that the trial court erred in holding that the suit 6 (1986) 3 scc5677 (1978) 3 scc3838 (2016) 4 scc689 rfa no.23/2002 c.w. rfa no.1012/2001 dd2212.2022 - 22 - nc:2024. khc:50000 rfa no.323 of 2009 schedule properties would devolve upon the legal heirs of deceased govindareddy under section 8 of the hindu succession act. it is his contention that there was a partition in the year 2003 among the legal heirs of govindareddy and therefore, the said partition is saved under the provisions of section 6(5) of the hindu succession act as it stood amended in the year 2005. on that ground, he submits that nature of the suit schedule property was amenable for partition as per the hindu succession act as it stood prior to the amendment.28. to fortify his argument, he submits that traditionally, a joint family comprises of male members who are the lineal decedents from common male ancestor together with their mother, wife and unmarried daughters. a hindu coparcenary comprises of the propositus and the three lineal male decedents. before 2005, a coparcenary included only the sons, grandsons and great-grandsons and therefore, the coparcenary is the custodian of the ancestral property. he submits that when the share is - 23 - nc:2024. khc:50000 rfa no.323 of 2009 allotted in partition, whether the same would constitute a separate property in the hands of the person to whom it is allotted and whether sons, his lineal decedents can make a claim in relation to such property allotted in the partition is no more res-integra. he submits that the property being ancestral, will not loose the character of coparcenary property qua the sons of govindareddy.29. it is pertinent to note that in the case on hand, the evidence on record shows that item no.1 i.e., 'sy.no.9/2' and the house property at item no.3 which is described as "all that house property bearing no.158 measuring east to west 48 feet and north to south 44 feet situated in dodddanekkundi village, bangalore," was part of the partition deed of the year 1972 between govindareddy and his brothers. the said partition deed is at ex.p6 and it discloses that two other brothers of govindareddy had separated much earlier and therefore, the partition was between govindareddy and his brother gurumurthy. in the said partition, the suit schedule - 24 - nc:2024. khc:50000 rfa no.323 of 2009 property bearing sy.no.9/2 and one of the house properties was allotted to govindareddy. though the document is not clear as to how the sy.no.9/2 had come to them; it is not in dispute that the suit schedule property is ancestral property, and it devolved upon the said govindareddy and gurumurthy from their father nanjareddy. the other brothers of govindareddy and gurumurthy i.e., narayanareddy, gurushamareddy and krishnareddy have already separated as mentioned in ex.p6. therefore, it can safely be held that govindareddy and gurumurthy were the co-parceners, who remained joint till the partition in the year 1972 as per ex. p6.30. when the partition took place in the year 1972 as per ex.d12, sy.no.9/2 and the house property at item no.3 came to the share of govindareddy. the question is, whether this devolution of the property in favour of govindareddy under ex.d12 (also at ex.p20) would result in the property being self acquired property of - 25 - nc:2024. khc:50000 rfa no.323 of 2009 govindareddy or whether it would remain to be ancestral property in the hands of govindareddy and his sons?.31. the trial court has concluded that it attains the character of individual property of govindareddy, by virtue of partition deed dated 1972. in the impugned judgment, in para 31 and 32, the trial court observes as below:"31. from the laws laid down by their lordships in the above said decisions, it is clear that the property inherited by a son from his father will be his individual property. he inherits the same as an individual and not as kartha of his own family. hence, the said property is not the coparcenery property of his sons and his sons will not acquire any right over the said property by birth. hence, the properties which late sri. govinda reddy and his brother gurumurthy had inherited from their father, and in which they had effected partition under the partition deed dated 08.06.1972, are their individual properties and they will not become coparcenery properties of their sons i.e., defendant nos.2 to 4 and 12. though plaintiffs and defendant nos. 1 to 4 and 8 to 12 have inherited the suit schedule properties from their ancestors, but, they are not the co-parcenery properties of defendant nos. 2 to 4 and 12. the laws laid down by their lordships in the decisions on which the learned counsel for defendants relied are not aptly applicable to the facts of the present case. under the circumstances and for the reasons discussed above, i hold that plaintiffs have proved that suit schedule properties (item nos. 1, 3 and4) are the ancestral and joint family properties consisting of themselves and defendant nos. 1 to 4 and 12.-. 26 - nc:2024. khc:50000 rfa no.323 of 2009 32. as i have already stated above, the suit properties are individual or separate properties of late sri govinda reddy and they are not co-parcenery properties of defendant nos. 2 to 4 and 12. hence, after the death of late sri govinda reddy, plaintiffs, defendant nos. 1 to 4, mother of defendant nos. 8 to 11 late smt. yeshodamma and defendant no.12, being his class i heirs, have succeeded to the suit properties (item nos. 1, 3 and 4), and each of them are entitled for 1/11th share." (emphasis supplied) 32. the said finding is assailed by the appellant herein who is defendant no.3 before the trial court. the shastric hindu law, prior to codification in the form of hindu succession act, 1956, or its earlier avatars, recognized the hindu coparcenary as the sole entity that would hold the title to the family property. the law of succession among hindus flowed from the responsibility of the sons to perform the rituals for the moksha of their ancestors, from the income generated from property. the successive enactments recognized the rights of women/daughters and right to property. therefore, the enactments show the conceptual shift from the spiritual acts and obligations of sons towards property oriented, possessive, ownership-based rights and liabilities. now, - 27 - nc:2024. khc:50000 rfa no.323 of 2009 the question before this court is whether the concept of coparcenary has died, extinguished by virtue of section 8 of the hindu succession act or whether it exists with certain conditions for succession?.33. in the case of valliammai achi vs. nagappa chettiar and another which is relied by the learned counsel for the appellant as referred supra, the apex court while dealing with the rights of father, who had inherited a property from his ancestors in willing away part of it to one of his son, in paras 10 and 11 observed as below: “10. ………….. a father cannot turn joint family property into absolute property of his son by merely making a will, thus depriving sons of the son who might be born thereafter of their right in the joint family property. it is well settled that the share which a co-sharer obtains on partition of ancestral property is ancestral property as regards his male issues. they take an interest in it by birth whether they are in existence at the time of partition or are born subsequently: [see hindu law by mulla, 13th edn., p. 249, para 223(2)(4)].. if that is so and the character of the ancestral property does not change so far as sons are concerned even after partition, we fail to see how that character can change merely because the father makes a will by which he gives the residue of the joint family property (after making certain bequests) to the son. xxxxxx - 28 - nc:2024. khc:50000 rfa no.323 of 2009 11. further it is equally well settled that “under the mitakshara law each son upon his birth takes an interest equal to that of his father in ancestral property, whether it be movable or immovable. it is very important to note that the right which the son takes at his birth in the ancestral property is wholly independent of his father. he does not claim though the father….” (see mulla's hindu law, 13th edn., p. 251, para 224). it follows therefore that the character of the property did not change in this case because of the will of pallaniappa's father and it would still be joint family property in the hands of pallaniappa so far as his male issue was concerned. …….” (emphasis supplied) 34. in the case of vellikannu vs. r. singaperumal and another referred supra, the apex court in para 11 noticed the accepted views of all authors and referred to paras 284 and 285 of hindu law by mulla, 15th edition (1982) and in para 13, it was noted that, the right of the coparceners would be by birth. in para 15, the law laid down in several other judgments were also noticed. in para 11, it was observed as below: “11. ……….. so far as the rights of coparceners in the mitakshara law are concerned, the son acquires by birth or adoption a vested interest in all coparcenary property whether ancestral or not and whether acquired before or after his birth or adoption, as the case may be, as a member of a joint family. this is - 29 - nc:2024. khc:50000 rfa no.323 of 2009 the view which has been accepted by all the authors of the hindu law. in the famous principles of mulla, 15th edn. (1982) at pp. 284 and 285, the learned author has stated thus: “the essence of a coparcenary under the mitakshara law is unity of ownership. the ownership of the coparcenary property is in the whole body of coparceners. according to the true notion of an undivided family governed by the mitakshara law, no individual member of that family, whilst it remains undivided, can predicate, of the joint and undivided property, that he, that particular member, has a definite share, one-third or one-fourth. his interest is a fluctuating interest, capable of being enlarged by deaths in the family, and liable to be diminished by births in the family. it is only on a partition that he becomes entitled to a definite share. the most appropriate term to describe the interest of a coparcener in coparcenary property is ‘undivided coparcenary interest’. the nature and extent of that interest is defined in section 235. the rights of each coparcener until a partition takes place consist in a common possession and common enjoyment of the coparcenary property. as observed by the privy council in katama natchiar v. rajah of shivagunga [(1863) 9 mia543, ‘there is community of interest and unity of possession between all the members of the family, and upon the death of any one of them the others may well take by survivorship that in which they had during the deceased's lifetime a common interest and a common possession’.” by referring to hindu law by s.v. gupte, vol.1, 3rd edition (1981) at p.162, it was observed that, - 30 - nc:2024. khc:50000 rfa no.323 of 2009 "…..till partition, the coparcener is entitled to joint possession and enjoyment of the joint family property and right to claim joint family property by survivorship and the right to demand partition of the joint family property." then in para 13, by referring to hindu law by n.r. raghavachariar, it observes while dealing with right by birth that, "every coparcener gets an interest by birth in the coparcenary property and this right by birth relates back to the date of conception".35. in the case of shyam narayan prasad vs. krishna prasad and others referred supra, in para 12 and 13, it was observed as below:"12. it is settled that the property inherited by a male hindu from his father, father's father or father's father's father is an ancestral property. the essential feature of ancestral property, according to mitakshara law, is that the sons, grandsons, and great grandsons of the person who inherits it, acquire an interest and the rights attached to such property at the moment of their birth. the share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. after partition, the property in the hands of the son will continue to be the ancestral property and the natural or adopted son of that son will take interest in it and is entitled to it by survivorship.13. in c. krishna prasad v. cit [(1975) 1 scc160 , this court was considering a similar question. in the said case, c. krishna prasad, the appellant along with his father krishnaswami naidu and brother c. krishna - 31 - nc:2024. khc:50000 rfa no.323 of 2009 kumar formed hindu undivided family up to 30-10- 1958, when there was a partition between krishnaswami naidu and his two sons. a question arose as to whether an unmarried male hindu on partition of a joint hindu family can be assessed in the status of undivided family even though no other person besides him is a member of the family. it was held that the share which a coparcener obtains on partition is ancestral property as regards male issue. it was held as under: “the share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. they take an interest in it by birth, whether they are in existence at the time of partition or are born subsequently. such share, however, is ancestral property only as regards his male issue. as regards other relations, it is separate property, and if the coparcener dies without leaving male issue, it passes to his heirs by succession (see p. 272 of mulla's principles of hindu law, 14th edn.). a person who for the time being is the sole surviving coparcener is entitled to dispose of the coparcenary property as if it were his separate property. he may sell or mortgage the property without legal necessity or he may make a gift of it. if a son is subsequently born to him or adopted by him, the alienation, whether it is by way of sale, mortgage or gift, will nevertheless stand, for a son cannot object to alienations made by his father before he was born or begotten." (emphasis supplied) 36. the apex court in the case of arshnoor singh vs. harpal kaur and others referred supra, distinguishing the judgment in the case of yudhishter vs. ashok - 32 - nc:2024. khc:50000 rfa no.323 of 2009 kumar10 has relied on the judgment in the case of valliammai achi (referred supra) and in that case held that the property which came to the share dharam singh through partition under a court decree, among his brothers, remained coparcenary property qua his son, who had become a coparcener in the suit property on his birth in the year 1985.37. in the recent judgment in the case of derha vs. vishal and another, referred supra, the apex court had an occasion to consider the nature of the properties acquired by one phannuram in a partition among his nephew in 1964. the fact that there was partition between phannuram and his brother's son ramnath and sister-in- law was not in dispute. it was held in paras 9 as below:"9. once it is held that the properties which were the subject matter of the partition suit were coparcenary properties, the only issue that remains is as to how the said properties were to be divided amongst the legal heirs of phannuram upon his death in 1959, i.e., after the advent of the hindu succession act, 1956 (for brevity, 'the act of 1956'). section 6 of the act of 1956 would govern the situation, as rightly observed 10 (1987) 1 scc204 - 33 - nc:2024. khc:50000 rfa no.323 of 2009 by the chhattisgarh high court. section 6 of the act of 1956, as it then stood, states that when a male hindu died after the commencement of the act of 1956, having at the time of his death an interest in mitakshara coparcenary property, his interest in that property shall devolve by survivorship upon the surviving members of the coparcenary. however, the proviso thereto states that, if the deceased left behind him a surviving female relative specified in class i of the schedule or a male relative specified in that class who claimed through such female relative, the interest of the deceased in the mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under the act of 1956 and not by survivorship. explanation 1 clarified that, for the purposes of section 6, 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 such partition or not." by observing as above, it was held that phannuram and his son vishal would get 1/2 share each and in the half share of phannuram, his wife and all children would get equal share. the apex court in coming to such conclusion has also placed reliance on the judgment in the case of gurupad khandappa magdum vs. hirabai khandappa magdum and others referred supra and has followed the ratio laid down therein.-. 34 - nc:2024. khc:50000 rfa no.323 of 2009 38. from the above observations by the apex court, it is clear that whenever there is a partition among the brothers in respect of the ancestral property held by them, the property would not change its nature but it remains as the ancestral property of smaller coparcenery of himself and his male children. even if a son is born subsequent to such partition of the ancestral property, then he would get rights by birth. the entitlement for a share in the ancestral property cannot be denied.39. it is worth to note that the observations of the apex court in the decisions mentioned above, are flowing from the propositions laid down in the treatises on hindu law. in article 221 of hindu law by mulla, 21st edition, page 335 concerning the 'ancestral property', the author has observed as below:"221. ancestral property - (1) …… thus, if a inherits property, whether movable or immovable, from his father or father's father, or father's father's father, it is ancestral property, as regards his male issue. if a has no son, son's son, or son's son's son in existence at the time when he inherits the property, he holds the property as absolute owner thereof, and he can deal with it as he - 35 - nc:2024. khc:50000 rfa no.323 of 2009 pleases. however, if he has son's son' sons or sons' sons' sons in existence at the time, or if a son, son's son or son's son's son is born to him subsequently, they become entitled to an interest in it by the mere fact of their birth in the family, and a cannot claim to hold the property as absolute owner nor can he deal with the property as he likes. the position has been materially affected after s 8 of the hindu succession act, 1956, came into force. a father cannot change the character of the joint family property into absolute property of his son by merely marking a will and bequeathing it or part of it to the son as if it was the self-acquired property of the father…... (2) xxxxxx (3) property inherited from collaterals - property inherited from females - excluding the case of property inherited from a maternal grandfather, it may be said that the only property that can be called ancestral property is property inherited by a person from his father, father's father or father's father's father. property inherited by a person from any other relation is his separate property, and his male issues do not take any interest in it by birth. thus, property inherited by a person from collaterals, such as a brother, uncle, etc, or property inherited by him from a female, eg., his mother, is his separate property. (4) share allotted on partition.-. the share, which a coparcener obtains on partition of ancestral property, is ancestral property as regards his male issue. they take an interest in it by birth, whether they are in existence at the time of partition or are born subsequently. such share, however, is ancestral property only as regards his male issue. as regards other relations, it is separate, and if the coparcener dies without leaving a male issue, it passes to his heirs by succession. reference may - 36 - nc:2024. khc:50000 rfa no.323 of 2009 also be made to notes under 8 of the hindu succession act, 1956 and the supreme court and high court decisions as to ancestral property cited there." (emphasis supplied) the learned author also observes that, in the recent judgment by punjab and haryana high court, the propositions laid down in article 321 and 322 of the treatise were incorrectly interpreted.40. further, in the treatises on mayne’s hindu law and usage, 15th, edition, in para 295, it is observed as below:"295. where ancestral property has been divided between several joint owners, there can be no doubt that if any of them have male issue living at the time of the partition, the share which falls to him will continue to be ancestral property in his hands, as regards has male issue, for their rights had already attached upon it, and the partition only cuts off the claims of the dividing members. the father and his male issue still remain joint. the same rule would apply even where the partition had been made before the birth of male issue or before a son is adopted, for the share which is taken at a partition, by one of the coparceners is taken by him as representing his branch. it was held by the andhra pradesh high court that where a father divided the family property between him and his sons, the share obtained by him was his self- acquired property which he could bequeath to his wife……" (emphasis supplied) - 37 - nc:2024. khc:50000 rfa no.323 of 2009 41. the learned counsel appearing for the respondents contends that the provisions of section 6 of the hindu succession act, as it stood prior to the amendment is applicable, since there is a partition by a registered deed as per ex. p20 (ex.d12) dated 20-06- 2003. therefore, the explanation that the amended provisions will not be applicable if there is partition would aptly come in play. he submits that the apex court in the case of gurupada kandappa magdum while giving effect to the provisions of hindu succession act, 1956, has held that the interpretation of section 6 will have to further the legislative intent regarding enlargement of the share of the female heirs. in the said judgment, it was held as below:"6. the hindu succession act came into force on june 17, 1956. khandappa having died after the commencement of that act, to wit in 1960, and since he had at the time of his death an interest in mitakshara coparcenary property, the pre- conditions of section 6 are satisfied, and that section is squarely attracted. by the application of the normal rule prescribed by that section, khandappa's interest in the coparcenary property would devolve by survivorship upon the surviving - 38 - nc:2024. khc:50000 rfa no.323 of 2009 members of the coparcenary and not in accordance with the provisions of the act. but, since the widow and daughter are amongst the female relatives specified in class i of the schedule to the act and khandappa died leaving behind a widow and daughters, the proviso to section 6 comes into play and the normal rule is excluded. khandappa's interest in the coparcenary property would therefore devolve, according to the proviso, by intestate succession under the act and not by survivorship. testamentary succession is out of question as the deceased had not made a testamentary disposition though, under the explanation to section 30 of the act, the interest of a male hindu in mitakshara coparcenary property is capable of being disposed of by a will or other testamentary disposition. xxxxxxx 10. two things are thus clear: one, that in a partition of the coparcenary property khandappa would have obtained a 1/4th share and two, that the share of the plaintiff in the 1/4th share is 1/6th, that is to say, 1/24th. so far there is no difficulty. the question which poses a somewhat difficult problem is whether the plaintiff's share in the coparcenary property is only 1/24th or whether it is 1/4th plus 1/24th, that is to say, 7/24th. the learned trial judges relying upon the decision in shiramabai which was later overruled by the bombay high court, accepted the former contention while the high court accepted the latter. the question is which of these two views is to be preferred.11. we see no justification for limiting the plaintiff's share to 1/24th by ignoring the 1/4th share which she would have obtained had there been a partition during her husband's lifetime between him and his two sons. we think that in overlooking that 1/4th share, one unwittingly permits one's imagination to boggle under the oppression of the reality that - 39 - nc:2024. khc:50000 rfa no.323 of 2009 there was in fact no partition between the plaintiff's husband and his sons. whether a partition had actually taken place between the plaintiff's husband and his sons is beside the point for the purposes of explanation 1. that explanation compels the assumption of a fiction that in fact “a partition of the property had taken place”, the point of time of the partition being the one immediately before the death of the person in whose property the heirs claim a share.12. ………………lord asquith in his famous passage in east end dwellings co. ltd. v. finsbury borough council [1952 ac109 132 : (1951) 2 all er587 . he said: “if you are bidden to treat an imaginary state of affairs as real, you must also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it; and if the statute says that you must imagine a certain state of affairs, it cannot be interpreted to mean that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.” xxxxxxxxxxx 14. the interpretation which we are placing upon the provisions of section 6, its proviso and explanation 1 thereto will further the legislative intent in regard to the enlargement of the share of female heirs, qualitatively and quantitatively……." (emphasis supplied) 42. it is pertinent to note that the apex court had considered and given effect to the notional or fictional - 40 - nc:2024. khc:50000 rfa no.323 of 2009 state of affairs for the purpose of determining the share. it is equally important to note that, it never said or intended that the concept of coparcenary comes to an end. therefore, this decision is not of any help to augment the argument of respondents.43. he further contends that the view taken by the apex court in the case of c.w.t. kanpur vs. chander sen and others referred supra, in para 12, 17 and 19 is that, when a male hindu dies after commencement of the act, his interest in the mitakshara coparcenary property shall devolve under section 6 by survivorship and if he leaves behind a female heir, it shall devolve under section 8 of the act.44. a division bench of this court in a recent judgment in the case of jayashree jayanth vs n krishnaswamy and others11 has clarified the ratio laid in chandersen's case, wherein it is observed as below. 11 rfa no.1226 of 2016 dd2210-2024 - 41 - nc:2024. khc:50000 rfa no.323 of 2009"24. if the facts are put to analysis, it becomes very evident that the hindu undivided family consisting of chander sen and his father disrupted when partition took place on 10.10.1961. the partnership business that was commenced by them after the partition was not the family business. a sum of rs.1,85,043/- belonged to rangilal as the books of accounts showed that it was credit balance in the account of rangilal. that means this sum exclusively belonged to rangilal and it devolved on his son chander sen in accordance with section 8 of hindu succession act. this sum was not part of the joint family property. in para 7 of the judgment it is clearly observed that the amount could not be said to belong to joint hindu family and qua chander sen and his sons it was separate property of rangilal. on rangilal’s death amount passed on to his son chander sen by inheritance. it was in this context that the hon’ble supreme court noticed the effect of section 8 making an observation that son alone would inherit the property of a male hindu. when rangilal died, chander sen had a son. the presence of chander sen’s son did not have the effect of succession by chander sen to the said sum to make it a property of joint family. if shastric law had been applied, because of presence of chander sen’s son at the time of rangilal’s death, the money that chander sen inherited would have become joint family property. but by virtue of section 4 of hindu succession act, it was held that section 8 would come into picture in this kind of situation and shastric hindu law was not applicable. unfortunately this position is wrongly applied to give a meaning that even devolution by survivorship of a coparcenary property is governed by section 8 which exclusively deals with inheritance of self acquired or separate property of a male hindu. however it is true that whenever notional partition is effected to determine the share of the deceased male hindu, since it becomes separate property of the deceased, the devolution of such interest takes place according to section 8.” - 42 - nc:2024. khc:50000 rfa no.323 of 2009 45. after observing so, it also considered various judgments of the apex court and concluded that whenever devolution of separate or self acquired property of male hindu takes place, section 8 is applicable, not section 6. but wherever rule of survivorship is applicable, section 8 has no applicability. therefore, the case of chander sen has no applicability to the case on hand.46. regarding the proposition laid down in the case of uttam vs. soubhagsingh referred supra, the division bench observed as below:"31. lastly in uttam, the principles culled out are found in para 18 and they are: (i) when a male hindu dies after the commencement of the hindu succession act, 1956, having at the time of his death an interest in mitakshara coparcenary property, his interest in the property will devolve by survivorship upon the surviving members of the coparcenary (vide section 6). (ii) to proposition (i), an exception is contained in section 30 explanation of the act, making it clear that notwithstanding anything contained in the act, the interest of a male hindu in mitakshara coparcenary property is property that - 43 - nc:2024. khc:50000 rfa no.323 of 2009 can be disposed of by him by will or other testamentary disposition. (iii) a second exception engrafted on proposition (i) is contained in the proviso to section 6, which states that if such a male hindu had died leaving behind a female relative specified in class i of the schedule or a male relative specified in that class who claims through such female relative surviving him, then the interest of the deceased in the coparcenary property would devolve by testamentary or intestate succession, and not by survivorship. (iv) in order to determine the share of the hindu male coparcener who is governed by section 6 proviso, a partition is effected by operation of law immediately before his death. in this partition, all the coparceners and the male hindu's widow get a share in the joint family property. (v) on the application of section 8 of the act, either by reason of the death of a male hindu leaving self-acquired property or by the application of section 6 proviso, such property would devolve only by intestacy and not survivorship. (vi) on a conjoint reading of sections 4, 8 and 19 of the act, after joint family property has been distributed in accordance with section 8 on principles of intestacy, the joint family property ceases to be joint family property in the hands of the various persons who have succeeded to it as they hold the property as tenants-in-common and not as joint tenants.32. the above principles make two aspects clear, firstly that devolution of mithakshara coparcenary property takes place by survivorship, and section 8 is applicable while distributing the notional share of the deceased - 44 - nc:2024. khc:50000 rfa no.323 of 2009 male hindu. the last paragraph in uttam shows findings on facts of that case, it is not a ratio.33. the conclusion therefore is that even if the above three decisions had been brought to the notice of the coordinate bench, the legal position would not have changed. this observation is necessary to be made here because judgment in pushpalatha was authored by one of us." after saying as above, the court gave an illustration also, to demonstrate the manner of devolution of the property.47. it is significant to note that the exception contained in the proviso to section 6 of the hindu succession act, states that, if a male hindu had died leaving behind female relative specified in class i of the schedule or a male relative specified in that class who claims through such female relative surviving him then the interest of the deceased in the coparcenary property would devolve by testamentary or intestate succession and not by survivorship. this would show that the nature of the property to be a coparcenary property would not change - 45 - nc:2024. khc:50000 rfa no.323 of 2009 but it must be partitioned among the coparceners, engrafting a notional share to the deceased male hindu; and his interest in it only would devolve by intestate succession. such intestate succession would be as per section 8 of the act. therefore, at any rate, 'the interest of the deceased male hindu in the coparcenary property' alone would be devolving as per section 8 but not the entire property. the provisions are very clear in saying that it is only the interest in the coparcenary property but not the entire property.48. there is one another reason to hold that the concept of coparcenary has not been abrogated or shelved. it is worth to note that by the amending act of 2005, the provisions of section 6 of the hindu succession act, were amended. both versions of section 6 read as below: before amendment:"6. devolution of interest in coparcenary property. —when a male hindu dies after the commencement of this act, having at the time of his death an interest in a mitakshara coparcenary - 46 - nc:2024. khc:50000 rfa no.323 of 2009 property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this act : provided that, if the deceased had left him surviving a female relative specified in class i of the schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this act and not by survivorship. explanation 1.—for the purposes of this section, 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. explanation 2.—nothing contained in the proviso to this section shall be construed as enabling a person who had separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein. after amendment:"6. devolution of interest in coparcenary property. — (1) on and from the commencement of the hindu succession (amendment) act, 2005, in a joint hindu family governed by the mitakshara law, the daughter of a coparcener shall, — - 47 - nc:2024. khc:50000 rfa no.323 of 2009 (a)by birth become a coparcener in her own right in the same manner as the son; (b)have the same rights in the coparcenary property as she would have had if she had been a son; (c)be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a hindu mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener: provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of december, 2004. (2) any property to which a female hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition. (3)where a hindu dies after the commencement of the hindu succession (amendment) act, 2005, his interest in the property of a joint hindu family governed by the mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,— (a)the daughter is allotted the same share as is allotted to a son; - 48 - nc:2024. khc:50000 rfa no.323 of 2009 (b)the share of the pre-deceased son or a pre- deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre- deceased son or of such pre-deceased daughter; and (c)the share of the pre-deceased child of a pre- deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be. explanation. —for the purposes of this sub-section, 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. (4) after the commencement of the hindu succession (amendment) act, 2005, no court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great- grandfather solely on the ground of the pious obligation under the hindu law, of such son, grandson or great-grandson to discharge any such debt: provided that in the case of any debt contracted before the commencement of the hindu succession (amendment) act, 2005, nothing contained in this sub-section shall affect— - 49 - nc:2024. khc:50000 rfa no.323 of 2009 (a)the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or (b)any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the hindu succession (amendment) act, 2005 had not been enacted. explanation. —for the purposes of clause (a), the expression “son”, “grandson” or “great-grandson” shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the hindu succession (amendment) act, 2005. (5) nothing contained in this section shall apply to a partition, which has been effected before the 20th day of december, 2004. explanation.—for the purposes of this section “partition” means any partition made by execution of a deed of partition duly registered under the registration act, 1908 (16 of 1908) or partition effected by a decree of a court." thus, it is clear that the daughter, who could not be a coparcener as per old law, is conferred with the same rights as coparcener. this would inevitably indicate that - 50 - nc:2024. khc:50000 rfa no.323 of 2009 the rights in coparcenary property, which was restricted to male members only, has been enlarged to daughters also.49. thereafter, the apex court in the case of vineeta sharma vs. rakesh sharma12 has laid down the way the amended provisions of section 6 would operate, which reads as below:"133. the severance of status may take place from the date of filing of a suit; however, a decree is necessary for working out the results of the same, and there may be a change of rights during the pendency of the suit for allotting definite shares till final decree is passed. there are cases in which partition can be reopened on the ground of fraud or mistake, etc. or on certain other permissible grounds. in appropriate cases, it can be reopened at the instance of minor also. xxxx 135. a special definition of partition has been carved out in the explanation. the intendment of the provisions is not to jeopardise the interest of the daughter and to take care of sham or frivolous transaction set up in defence unjustly to deprive the daughter of her right as coparcener and prevent nullifying the benefit flowing from the provisions as substituted. the statutory provisions made in section 6(5) change the entire complexion as to partition. however, under the law that prevailed earlier, an oral partition was recognised. in view of change of provisions of section 6, the intendment of the 12 (2020)9 scc1- 51 - nc:2024. khc:50000 rfa no.323 of 2009 legislature is clear and such a plea of oral partition is not to be readily accepted. the provisions of section 6(5) are required to be interpreted to cast a heavy burden of proof upon proponent of oral partition before it is accepted such as separate occupation of portions, appropriation of the income, and consequent entry in the revenue records and invariably to be supported by other contemporaneous public documents admissible in evidence, may be accepted most reluctantly while exercising all safeguards. the intendment of section 6 of the act is only to accept the genuine partitions that might have taken place under the prevailing law and are not set up as a false defence and only oral ipse dixit is to be rejected outrightly. the object of preventing, setting up of false or frivolous defence to set at naught the benefit emanating from amended provisions, has to be given full effect. otherwise, it would become very easy to deprive the daughter of her rights as a coparcener. when such a defence is taken, the court has to be very extremely careful in accepting the same, and only if very cogent, impeccable, and contemporaneous documentary evidence in shape of public documents in support are available, such a plea may be entertained, not otherwise. we reiterate that the plea of an oral partition or memorandum of partition, unregistered one can be manufactured at any point in time, without any contemporaneous public document needs rejection at all costs. we say so for exceptionally good cases where partition is proved conclusively, and we caution the courts that the finding is not to be based on the preponderance of probabilities in view of provisions of gender justice and the rigour of very heavy burden of proof which meets the intendment of explanation to section 6(5). it has to be remembered that the courts cannot defeat the object of the beneficial provisions made by the amendment act.-. 52 - nc:2024. khc:50000 rfa no.323 of 2009 the exception is carved out by us as earlier execution of a registered document for partition was not necessary, and the court was rarely approached for the sake of family prestige. it was approached as a last resort when parties were not able to settle their family dispute amicably. we take note of the fact that even before 1956, partition in other modes than envisaged under section 6(5) had taken place.137. resultantly, we answer the reference as under:137. 1. the provisions contained in substituted section 6 of the hindu succession act, 1956 confer status of coparcener on the daughter born before or after the amendment in the same manner as son with same rights and liabilities. 137.2. the rights can be claimed by the daughter born earlier with effect from 9-9-2005 with savings as provided in section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before the 20th day of december, 2004. 137.3. since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9-9-2005. 137.4. the statutory fiction of partition created by the proviso to section 6 of the hindu succession act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. the fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of class i as specified in the schedule to the 1956 act or male relative of such female. the provisions of the substituted section 6 are required to be given full effect. notwithstanding that a preliminary decree has been passed, the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.-. 53 - nc:2024. khc:50000 rfa no.323 of 2009 137.5. in view of the rigour of provisions of the explanation to section 6(5) of the 1956 act, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the registration act, 1908 or effected by a decree of a court. however, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected (sic effected) by a decree of a court, it may be accepted. a plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.50. this would show that if there is no partition as required under section 6(5) of the amended provisions of the hindu succession act, then the daughters would also become coparceners in their individual capacity since 1956 when the act came into force. there is no such exclusive prospectivity.51. from the above discussion, it is clear that when there is partition of ancestral property, it would not change the nature of ancestrality of property. but the devolution of property happens as per rules setout in section 8 of hindu succession act. the property remains - 54 - nc:2024. khc:50000 rfa no.323 of 2009 to be ancestral in the hands of such sharers and his descendants.52. resultantly, the following aspects would emerge: (a) when there is a partition among the brothers in respect of the ancestral properties, (particularly when there is notional partition on account of application of proviso to section 6 of unamended act) they continue to be the ancestral properties among the smaller coparcenery of each of such brothers, though there is severance among the brothers interse. (b) the property will not change the character of the ancestral property among such sharers of the partition and even if a son is born, then the sons surviving as well as born subsequently would get a share as coparceners. (c) if there is a partition as contemplated under section 6(5) of hindu succession act, prior to - 55 - nc:2024. khc:50000 rfa no.323 of 2009 coming into force of amending act of 2005, the female heirs are entitled to a share, in the notional share that was to be allotted to their father. the concept of notional partition as laid down under the proviso to section 6 of the hindu succession act, would come in play. (d) in case, the partition is effected by the father, who is the karta, during his life time among all the members of the coparcenery in respect of properties acquired by the coparcenery, then each of the sharer would get the property in his individual capacity and the property loses the character of the ancestral property. this is because the coparcenery itself disrupts completely. e) now by amending act of 2005, female heirs are also given the status of coparcener, subject to certain conditions as mentioned in section 6(5).53. in the instant case, no-doubt the partition of the year 1972 among govindareddy and gurumurthy resulted in the suit item nos. 1 and 3 being allotted to - 56 - nc:2024. khc:50000 rfa no.323 of 2009 govindareddy and govindareddy did not effect the partition till his death in the year 1987. therefore, the coparcenery consisting of govindareddy and his sons continued till his death in the year 1987. when he died, the coparcenery of the sons of govindareddy, i.e., defendant nos.1 to 4, 12 would continue, wherein the plaintiffs and other daughters of govindareddy along with defendant no.1 were members. thus, it is evident that the suit schedule item nos.1 and 3 properties are the ancestral properties in the hands of the children of govindareddy.54. the sum and substance of the above discussion is that if this court comes to the conclusion that there is a partition in the year 2003, obviously which is a division, then the suit schedule property would have to devolve as per the extant law. in other words, there shall be a notional partition at the time of death of govindareddy and a share must be given to him along with his wife and sons. in the share that has to be allotted to govindareddy, the - 57 - nc:2024. khc:50000 rfa no.323 of 2009 members of the joint family i.e., class i heirs would get equal share. if this court comes to the conclusion that the partition of the year 2003 is invalid, then by operation of the amended provisions of section 6 of the hindu succession act, and by virtue of the propositions laid down in the case of vineeta sharma, referred supra, the sons and daughters of govindareddy would get equal share. for aforesaid reasons point no.1 is answered in the affirmative.55. having answered the point no.1 as above, we now proceed to consider the next question as to whether the partition of the year 2003 as per ex.p20 (ex.d12) would hold good or not?. re.point no.256. this point need not hold this court for long. it is pertinent to note that the relationship between the plaintiffs and defendants is not in dispute. defendant no.4 has categorically stated in his written statement that partition dated 20-06-2003 is not subscribed by him - 58 - nc:2024. khc:50000 rfa no.323 of 2009 consciously. he alleged that he being illiterate, his signature was taken by defendant nos.1 to 3 forcibly and therefore, it is not binding on him.57. the ocular evidence of pw1-dhanamma, who is none else than plaintiff no.1, would show that she admits that a partition has been entered between her mother, brothers and sister gayatri on 20-06-2003. it is not only once, but in paras 5, 14, and in the cross-examination dated 17-10-2008, she has admitted that there was a partition on 20-06-2003. it must be observed that pw1 was not a party to the said partition. among the plaintiffs, it was only plaintiff no.4 (pw.2) who was a party to it.58. the testimony of pw2, gayatri, would indicate that she alleges that her signature was forcibly taken on the partition deed by taking her to sub-registrar's office. she states that after such registration of the deed at ex.p20, she went to enquire about her share, but she was beaten up by her brothers. however, she admits that she did not file any complaint to the police alleging any fraud - 59 - nc:2024. khc:50000 rfa no.323 of 2009 and misrepresentation. the lengthy cross-examination of pw2 would indicate that she did not take any action in respect of the alleged fraud. obviously, her contention about such fraud and misrepresentation is bereft of any pleadings. therefore, the ocular evidence does not establish that the signature of pw.4 was taken forcibly on ex.p20.59. it is also pertinent to note that the plaintiffs pray for revocation of the partition deed at ex.p20. though the prayer is not happily worded, the trial court has considered the same as cancellation. the trial court granted the relief of cancellation of partition deed on the ground that when govindareddy died, the entire suit schedule property being the individual property of govindareddy, it would devolve upon the class i heirs and therefore, the sons, wife and one unmarried daughter of govindareddy could not have entered a partition by excluding the other married daughters. it did not touch upon the question whether the partition was fraudulent or - 60 - nc:2024. khc:50000 rfa no.323 of 2009 otherwise. therefore, the impugned judgment does not delve with the contention of plaintiff no.4 and defendant no.12 who alleged that it was fraudulent.60. it must be observed that the partition deed which is at ex.p20 states that married daughters are not entitled to the share under the hindu succession act, as it stood amended under karnataka amendment act, as on 20-06-2003, the partition is effected only among the sons, wife and unmarried daughter of govindareddy. however, ex.p20, does not mention anything about the notional partition in which govindareddy would have entitled for a share. it totally excludes the married daughters.61. it is necessary to note that pw.2 by transposing herself as plaintiff no.4, has spoken about the fraud and misrepresentation in executing ex.p20, which is not borne out of the pleadings. the entire reading of the plaint would show that what the original plaintiff nos. 1 and 2 contended was that the partition under ex.p20 being behind their back, it does not bind them and therefore, it - 61 - nc:2024. khc:50000 rfa no.323 of 2009 has to be revoked. there cannot be any doubt that when the plaintiff nos.1 to 3 and 5 were not parties to ex.p20, there was no necessity for them to seek for cancellation of the partition deed, but they could have sought for partition by ignoring ex.p20. therefore, in the absence of convincing evidence, supported by a pleading about the fraud alleged by the plaintiff no.4, the partition deed at ex.p20 cannot be cancelled, but the plaintiffs are entitled for ignoring the same in seeking their share.62. defendant no.12 has also sought for cancellation of the partition deed since his signature was taken on ex.p20 by threat. in para 36 of the impugned judgment, the trial court considers his contention and rejects the claim that ex.p20 is not binding on him. obviously, rejecting the claim of defendant no.12 regarding cancellation of the partition deed and decreeing the suit holding that ex.p20 is liable to be cancelled would be contradictory. as noted supra, instead of holding that the partition deed is not binding on the non-parties to such - 62 - nc:2024. khc:50000 rfa no.323 of 2009 deed, the trial court has granted the relief of cancellation instead of revocation as prayed.63. be that as it may. ex.p20 was validly entered into by plaintiff no.4, her brothers and mother. it was registered before the sub registrar. there is no evidence to show that the document was fraudulently entered or is an outcome of threat and coercion. evidently, ex.p20 does not recognize the share of govindareddy immediately prior to his death in the year 1987 and totally excludes the married daughters. the legislative intent of the 1956 act was not to shunt out the daughters from the share in the joint family property. what the act intended, as it stood prior to amendment, is that the daughters are entitled for a share in the interest of the deceased in the coparcenery property. therefore, ex.p20 overlooks the share entitled by the daughters even as per the pre-amended act. therefore, the plaintiffs are entitled for a share, in the share of govindareddy in the coparcenery property. in that view of the matter, the partition deed has to be - 63 - nc:2024. khc:50000 rfa no.323 of 2009 upheld as evidence of partition, but not in respect of the shares allotted to the parties. under these circumstances, ex.p20 will hold good only in respect of the plaintiff no.4 and defendant nos.1 to 4 and 12 and any other parties claiming under them. consequently point no.2 is answered in the negative.64. the upholding of the partition in the year 2003 and holding of the suit schedule item nos.1 and 3 properties to be the ancestral properties would result in a partition under section 6 of the hindu succession act, prior to amendment. in other words, in the notional partition, which must be considered immediately prior to the death of govindareddy in the year 1987, he would have entitled for 1/6th share and his sons and wife would have got 1/6th share each. since we are calculating the share after the death of defendant no.1, the share would be reduced to 1/5th share each. the said 1/5th share of govindareddy has to be shared among all the 4 sons and 6 daughters of govindareddy. the sons would get 1/5 + - 64 - nc:2024. khc:50000 rfa no.323 of 2009 (1/5 x 1/10=1/50)= 11/50th share each. the daughters would get 1/50th share each.65. the compensation amount received by defendant no.1 (i.e, item no.2 of suit schedule) is utilized by her for the marriage of her daughters. the suit schedule item no.4 house property bearing no.166 situated in doddanekkundi village, bangalore was the property purchased by deceased brother of plaintiffs viz., sri suresh. he died intestate as a bachelor. therefore, the said property would devolve on defendant no.1, muniyamma as class i heir. hence, all her children would get equal share, i.e., 1/10th in the same. hence, the appeal succeeds in part and the following order is passed: order the appeal is allowed in part. it is ordered that plaintiff nos.1 to 5 and mother of defendant nos. 8 to 11 are entitled for 1/50th share each in suit schedule item nos. 1 - 65 - nc:2024. khc:50000 rfa no.323 of 2009 and 3 properties. they are also entitled for 1/10th share each in suit schedule item no.4 property. defendant nos.2 to 4 and 12 are entitled for 11/50th share in item nos.1 and 3 properties and 1/10th share in item no.4 property. the judgment and decree passed by the trial court stands modified accordingly. the parties to the suit being siblings, costs made easy. sd/- (c m joshi) judge tsn* list no.:1. sl no.: 1

Judgment:

- 1 - NC:

2024. KHC:50000 RFA No.323 of 2009 IN THE HIGH COURT OF KARNATAKA AT BENGALURU R DATED THIS THE4H DAY OF DECEMBER, 2024 BEFORE THE HON'BLE MR JUSTICE C M JOSHI REGULAR FIRST APPEAL No.323 OF2009(PAR) BETWEEN: SRI LAKSHMAN REDDY, S/O LATE GOVINDA REDDY, AGED ABOUT53YEARS, R/AT NO.136, DODDANEKUNDI VILLAGE, DODDANEKUNDI POST, BANGALORE-560 037. ...APPELLANT (BY SRI ABHINAV R, ADVOCATE) AND:

1. SMT. G DANAMMA, W/O JAYARAMREDDY, AGED ABOUT55YEARS, R/AT MUNEKOLALU, MARATHALLI POST, BANGALORE-560 037.

2. SMT. KANTHAMMA, W/O NANJUNDAREDDY, AGED ABOUT45YEARS, R/AT NANJAPURA, JIGANI HOBLI, ANEKAL TQ., BANGALORE.

3. SMT. PRAMEELA, W/O GOPAL REDDY, MAJOR.

4. SMT. GAYATHRI, D/O LATE GOVINDAREDDY, MAJOR.

5. SMT. SAROJAMMA, D/O LATE GOVINDAREDDY, MAJOR.-. 2 - NC:

2024. KHC:50000 RFA No.323 of 2009 RESPONDENTS3TO5ARE R/AT NO.136, DODDANEKUNDI VILLAGE, DODDANEKUNDI POST, BANGALORE-560 037.

6. SRI JAYARAM REDDY, S/O LATE GOVINDAREDDY, MAJOR, R/AT NO.136, DODDANEKUNDI VILLAGE, DODDANEKUNDI POST, BANGALORE-560 037. SINCE DECEASED BY HIS LR'S. 6(A) SMT. LOKMATHA, W/O JAYARAMA REDDY, AGED ABOUT71YEARS. 6(B) SRI NATESH N.J, S/O. JAYARAMA REDDY, AGED ABOUT34YEARS. BOTH6A) & 6(B) ARE R/AT NO.158, NEAR CIRCLE, DODDANEKUNDI, BENGALURU-560 037.

7. SRI NANJUNDAREDDY, SINCE DEAD BY HIS LR'S. (A) SMT. ANASUYA, W/O LATE NANJUNDAREDDY, MAJOR. (B) N RAVI, S/O LATE NANJUNDAREDDY, MAJOR. (C) ANIL, S/O LATE NANJUNDAREDDY, MAJOR. (D) SUNIL, S/O LATE NANJUNDAREDDY, MAJOR. ALL R/AT NO.136, DODDANEKUNDI VILLAGE AND POST, BANGALORE-560 037.

8. SMT. NAGARATHNA, D/O LATE YASHODAMMA AND ANNAIAH REDDY, AGED ABOUT34YEARS.-. 3 - NC:

2024. KHC:50000 RFA No.323 of 2009 9. SMT. VANITHA, D/O LATE YASHODAMMA AND ANNAIAH REDDY, AGED ABOUT30YEARS.

10. SRINIVASA REDDY, S/O LATE YASHODAMMA AND ANNAIAH REDDY, AGED ABOUT32YEARS.

11. RAVINDRA, S/O LATE YASHODAMMA AND ANNAIAH REDDY, AGED ABOUT29YEARS. RESPONDENTS8TO11ARE THE R/OF HALANAYAKANAHALLI, VARTHUR HOBLI, A.KRISHNAPPA NAGARA, BANGALORE EAST TQ.

12. SRI SUNDARARAMAREDDY, S/O LATE GOVINDAREDDY, AGED ABOUT55YEARS, R/OF B.GOVINDAREDDY LAYOUT, 7TH CROSS, 3RD MAIN, BEHIND GOVT. SCHOOL, DODDANEKKUNDI VILLAGE AND POST, BANGALORE-37.

13. SRI N.R.SRINATH, S/O LATE RAJAREDDY, AGED ABOUT40YEARS, R/AT BEHIND GOVT.SCHOOL, DODDANEKUNDI, BANGALORE-37.

14. SRI KODANDA, S/O LATE RAMAIAH REDDY, AGED ABOUT56YEARS, R/AT NO.399, 1ST 'D' MAIN, DOMLUR LAYOUT, BANGALORE-71.

15. SRI CHANDRASHEKAR, S/O LATE THIPPAREDDY, AGED ABOUT53YEARS, R/AT NO.89, KEMPAPURA, YEMALUR POST, BANGALORE-37.-. 4 - NC:

2024. KHC:50000 RFA No.323 of 2009 16. SMT. K.LAKSHMI, W/O B.S.SURESH, AGED ABOUT43YEARS, R/AT NO.454, BELLANDUR VILLAGE AND POST, BANGALORE-37.

17. SRI SATISH NAYAK SHROFF, S/O DAMODAR NAYAK SHROFF, AGED ABOUT39YEARS.

18. SMT APARNA NAYAK, W/O SATISH NAYAK SHROFF, AGED ABOUT29YEARS. RESPONDENT NOS. 17 & 18 ARE R/AT NO.681, 1ST B MAIN, 7TH BLOCK, BANASHANKARI III STAGE, II PHASE, BANGALORE-85.

19. SRI B.SURESH, S/O S.BALASUNDARAM, AGED ABOUT39YEARS.

20. SMT. SUJATHA, W/O B.SURESH, AGED ABOUT31YEARS, R/AT NO.8/1, 1ST CROSS, ARTILLARY ROAD, GOWTHAMAPURA, ULSOOR, BANGALORE-8.

21. V.VENKATA KRISHNA REDDY, S/O VENKATARAMI REDDY, AGED ABOUT42YEARS, R/AT IN PENT HOUSE-1, VARS FERNDALE APARTMENTS, 1ST MAIN, KODIHALLI, BANGALORE-37.

22. SMT. PRISHWA LAKRE VINCENT, MAJOR, R/OF B.GOVINDAREDDY LAYOUT, BEHIND GOVT. SCHOOL, DODDANEKKUNDI VILLAGE & POST, BANGALORE-37. …RESPONDENTS (BY SRI PRASANNA KUMAR R.S, ADVOCATE FOR R1 TO R5 (NOC); SRI VISHWANATH SHETTY, ADVOCATE FOR R6 (A&B); - 5 - NC:

2024. KHC:50000 RFA No.323 of 2009 SRI H.R ANANTHA KRISHNAMURTHY, ADVOCATE FOR R7 (A-B) (NOC) [ABSENT].; R7(C) & R7 (D) ARE SERVED; SRI JAYAPRAKASH, ADVOCATE FOR R8-R11; R12, R13, R16, R19 & R20 ARE SERVED; SRI S.M MANJUNATHA, ADVOCATE BY LAW PACK ASSOCIATES FOR R14 & R15 [ABSENT].; SERVICE OF NOTICE TO R17, R18 & R22 ARE HELD SUFFICIENT BY WAY OF PAPER PUBLICATION V/O DATED0602.2014; SRI A MADUSUDHANA RAO, ADVOCATE FOR R21) THIS RFA IS FILED U/S96OF CPC, AGAINST THE

JUDGMENT

AND DECREE DATED2211.2008, PASSED IN OS.NO.5761/2004 ON THE FILE OF THE XXXVIII ADDL. CITY CIVIL JUDGE, BANGALORE, PARTLY DECREEING THE SUIT FOR RELIEF OF REVOCATION OF PARTITION AND SEPARATE POSSESSION. THIS APPEAL HAVING BEEN HEARD AND RESERVED ON2210.2024, COMING ON FOR PRONOUNCEMENT OF

JUDGMENT

THIS DAY, THE COURT DELIVERED THE FOLLOWING: CORAM: HON'BLE MR JUSTICE C M JOSHI CAV

JUDGMENT

This appeal is filed by defendant No.3 in OS No.5761 of 2004 being aggrieved by the judgment and decree dated 22nd November 2008 passed by the learned XXXVIII Additional City Civil and Sessions Judge, Bangalore City.

2. The parties would be referred to as per their ranks before the trial Court for the sake of convenience.

3. The facts of the case as averred in the plaint are that, plaintiff Nos.1 to 5 before the trial Court who are - 6 - NC:

2024. KHC:50000 RFA No.323 of 2009 respondent Nos.1 to 5 herein, claimed the relief of partition and the separate possession of their 1/9th share in the suit schedule properties and for other reliefs which are as below: a) for revocation of Partition Deed dated 20.06.2003. b) for partition of the suit schedule property by metes and bounds and to deliver their 1/9th share in the suit schedule property. c) for separate possession of the plaintiff’s share in the suit schedule property. d) and grant of permanent injunction, restraining the defendants from alienating or dispossessing the suit schedule property. e) for grant of such other relief or reliefs, as this Hon'ble court deems fit to grant under the circumstances of the case, in the interest of justice and equity.

4. Initially, plaintiff Nos.1 and 2 had filed the suit and later, their sisters who were arrayed as defendant Nos. 5 to 7, got transposed themselves as plaintiff Nos. 3 to 5. It is the case of the plaintiffs that they are the daughters of defendant No.1 and their deceased father Govindareddy. It is stated that defendant Nos.1, 2, 3, husband of defendant No.4, defendant No.12 and another deceased Suresh Reddy were their brothers; mother of defendant No.8 to 10 Yashodamma, was another sister of the plaintiff. The family pedigree under Govindareddy is depicted as below: NC:

2024. KHC:50000 RFA No.323 of 2009 - - 7 - - FAMILY TREE NANJA REDDY Govinda Reddy Muniyamma (Wife) (Def-1) Jayram Reddy Lakshman Reddy Dhanamma Yashodamma Nanjunda Reddy Pramila Sundar Ram Sarojamma Suresh Reddy Kantamma Gayathri (Def-2) (Def-3) (Plf-1) Anasuya (wife) (Plf-3) (def-12) (Plf-5) Passed away on (Plf-2) (Plf-4) (passed away on (Def-4) 30.05.2003 29.04.2001 as Bachelor Lokmata (wife) (Res-6a) Ravi Manjula Natesh (Res-6b) Vanitha Nagarathna Ravindra Srinivas Reddy (Def-9) (Def-8) (Def-11) (Def-10) - 8 - NC:

2024. KHC:50000 RFA No.323 of 2009 5. It is relevant to note that initially, the suit was filed against defendant Nos.1 to 12 and later defendant Nos.5 to 7 were transposed as the plaintiffs. Defendant Nos. 13 to 22 were impleaded before the trial Court since they were the purchasers of the properties from the brothers of the plaintiffs. The plaintiffs, contended that their father, late Govindareddy, was allotted the land bearing Sy.No.9/2 measuring 02 acres 27 guntas, situated at Doddanekkundi village, in a partition among his brothers; during his lifetime 10 guntas of land in Sy.No.9/2 was acquired by the Railways; and after the death of Govindareddy, the plaintiffs and defendant Nos. 1 to 12 had succeeded to the property. After death of Govindareddy, defendant No.1 Muniyamma got transferred the Katha (revenue entry) in respect of the said Sy.No.9/2 in her name. Later, 28 guntas of land in the said land was acquired by the Government for formation of the ring road. Therefore, only 01 acre, 27 guntas of land was available to them, as described at item No.1 in the schedule to the plaint. It is also the case of the plaintiffs - 9 - NC:

2024. KHC:50000 RFA No.323 of 2009 that the defendant Nos.1 to 4 have received a compensation amount of Rs.4,20,826/- which was awarded for the acquisition of 28 guntas by the Government and the plaintiffs are also entitled for share in the same. It is contended that defendant Nos.1 to 7 colluding with each other have entered into a partition in the suit schedule properties among themselves under a registered partition deed dated 20-06-2003. In the said partition, the plaintiffs were excluded and therefore, the said partition is not binding on them.

6. Later, when defendant Nos.5 to 7 were transposed as plaintiffs, it appears that they have also acceded to the said contention. Further, it is the case of the plaintiffs that after effecting the partition in the suit schedule properties, defendant Nos.1 to 4 have formed revenue sites in portions allotted to their share and sold the same to different people. Though the defendants were requested to effect partition and give share to plaintiffs, they failed and therefore, the plaintiffs are entitled for - 10 - NC:

2024. KHC:50000 RFA No.323 of 2009 partition and legitimate share. Inter alia, the plaintiffs also contended that the suit schedule properties are the ancestral properties of Govindareddy, who is none other than the father of the plaintiffs and therefore, they being the members of the Hindu undivided family, they are entitled for partition.

7. On issuance of summons, except defendant Nos. 18 and 22, all other defendants appeared before the trial Court.

8. Defendant No.4 died, and his legal heirs were brought on record before the trial Court. In the meantime, defendant No.1 Muniyamma also died and her name was deleted from the cause title.

9. Defendant Nos. 1 to 3 together filed the written statement and admitted the case of the plaintiffs that their father Govindareddy got item No.1 of the suit schedule property in a partition amongst his brothers dated 08-06-1972. They also admitted the relationship between the parties. They admitted that 28 guntas in Sy.No.9/2, - 11 - NC:

2024. KHC:50000 RFA No.323 of 2009 was acquired by the Government for the formation of the ring road but contended that compensation was awarded, and such compensation was received by defendant No.1 Muniyamma and she had spent the same for the benefit of the family. They contended that item Nos.3 and 4 of the suit schedule properties are not the joint family properties and they were belonging exclusively to Govindareddy. Defendant Nos.2 and 3 also contended that since the marriages of the plaintiffs were performed prior to coming into force of the Hindu Succession (Karnataka Amendment) Act, 1990, the plaintiffs are not entitled for a share in the suit schedule properties. However, they admitted that there was a partition on 20-06-2003.

10. Defendant No.4 in his written statement has taken up similar contentions and further contented that he is an illiterate and innocent person and taking undue advantage of the same, defendant Nos.2,3,6 and 12 have got his signature on the document and he was not given proper share in item No.1 of the suit schedule property.-. 12 - NC:

2024. KHC:50000 RFA No.323 of 2009 11. Defendant Nos. 8 to 11 in their written statement have admitted the case of the plaintiffs and they further contended that the their mother Yashodamma, who was the daughter of Govindareddy, is also entitled for equal share in the suit schedule properties and they sought for a decree in their favor.

12. Defendant No.12 in his written statement contended that the suit schedule properties belonged to their father Govindareddy, and they are his self-acquired properties. It was contended that after death of Govindareddy, defendant Nos.1 to 4 had entered into a partition in which they have divided item No.1 of the suit schedule property and defendant Nos.1 to 4 did not include item No.3 and 4 properties in the partition dated 20.06.2003 and they refused to give their share to the daughters of Govindareddy and as such he had opposed the partition. He has taken up similar contention as that of the defendant No.4. He was also categorical in saying that the partition dated 20-06-2003, executed by him and - 13 - NC:

2024. KHC:50000 RFA No.323 of 2009 defendant Nos.1 to 4 is not valid and the same is liable to be cancelled and that he is entitled for a share.

13. Defendant Nos.13 to 16 and 19 to 21 in their written statements have contended that the marriages of the plaintiffs were performed earlier to the amended provisions of the Hindu Succession Act came into force and defendant Nos.1 to 7 had effected the partition in the suit schedule properties under the registered partition deed dated 20-06-2003 and therefore, they being the bona fide purchasers of portions of the suit schedule properties, and the inter-se dispute is not binding on them. They further contended that, if at all, there is any partition to be ordered, then the properties purchased by them must be allotted to their respective vendors in an equitable partition.

14. Based on the above pleadings, the following issues were framed by the trial Court:

1. Whether plaintiffs prove that suit schedule properties are the ancestral and joint family properties consisting of themselves and defendants No.1 to 7 and 12?. - 14 - NC:

2024. KHC:50000 RFA No.323 of 2009

2) Whether plaintiffs prove that they are entitled to a share in the suit properties and if so in which of the suit properties and to what share?.

3) Whether plaintiffs prove that the registered partition deed dated 20.06.2003 executed by defendants No.1 to 4 and 12 and plaintiff No.4 is null and void and not binding on them?.

4) Whether defendant No.12 proves that defendants No.1 to 4 has taken his signature on registered partition deed dated 20.06.2003 by force, and hence the same is not binding on him?.

5) Whether defendants No.2 and 3 prove that defendant No.1 deceased Smt. Muniyamma had received the entire compensation amount of Rs.4,30,826/- from Government and she had spent the said amount for discharging antecedent debts of the family and for the benefits of plaintiffs?.

6) Whether the Court fee paid by plaintiffs is proper and sufficient?.

7) Whether Court fee paid by defendant No.12 on the reliefs claimed by him in his written statement is proper and sufficient?. 8)Whether defendants No.13 to 21 prove that they are the bonafide purchasers of portions of item No.1 of suit schedule property for valuable consideration?.

9) To what reliefs parties are entitled to?.

10) What order or decree?.

15. Plaintiff No.1 was examined as PW1 and plaintiff No.4 was examined as PW2 and Exhibits P1 to P20 were marked in evidence. Defendant Nos. 3, 8, 12, 14, 15, 19, - 15 - NC:

2024. KHC:50000 RFA No.323 of 2009 13, 16, 4b and 21 were examined as DWs. 1 to 10 and Exhibits D1 to D17 were marked on their behalf.

16. After hearing the arguments by both the sides, the trial Court answered the above issues as below and decreed the suit holding that the plaintiffs, defendant No.4A to 4E together and defendant Nos.8 to 11 together and defendant No.12 are entitled for partition and separate possession of their 1/10th share each in item Nos.1, 3 & 4 of the suit schedule properties by holding that the partition deed dated 20-06-2003 is liable to be cancelled; Issue No.1: In the affirmative Issue No.2: Partly in the affirmative, and further hold that plaintiffs are entitled to 1/10th share each in item Nos.1,3 and 4 of suit schedule properties. Issue No.3: In the affirmative. Issue No.4: In the negative. Issue No.5: In the affirmative. Issue No.6: In the negative. Issue No.7: In the negative. Issue No.8: In the affirmative. Issue No.9: Plaintiffs, defendant Nos.4 (a) to 4(e) - 16 - NC:

2024. KHC:50000 RFA No.323 of 2009 together, defendant Nos. 8 to 11 together and defendant No.12 are entitled for partition and separate possession of their 1/10th share each in item Nos. 1,3 and 4 of suit schedule properties, plaintiffs are also entitled to the relief of cancellation of registered partition deed dated 20.06.2003. Issue No.10: As per final order.

17. Being aggrieved by the said judgment, defendant No.3 has approached this Court in appeal.

18. On issuance of notice, respondent Nos.1 to 5; R6(a) and (b); R7(a and b); R8 to R11; R14 and R15; and R21 appeared through their respective counsel. Despite the service of notice R7(c) and 7(d), R12, R13, R16, R19 and R20 remained absent and service of notice to R17, R18 and 22 are held sufficient.

19. On appeal being admitted, the trial Court records have been secured. During the pendency of this appeal, respondent No.6/defendant No.2 died and his legal heirs are brought on the record.-. 17 - NC:

2024. KHC:50000 RFA No.323 of 2009 20. The arguments by learned counsel appearing for the appellant and the learned counsel appearing for the respective respondents were heard.

21. The learned counsel appearing for the appellant submitted that the division of the shares by the trial Court is erroneous. It is submitted that the larger joint family comprising of two brothers of Govindareddy, that is Krishnareddy and Gurumurthy, entered a partition on 08-06-1972 under a registered Partition Deed. In the said partition, item No.1 was allotted to the share of Govindareddy and item Nos.3 and 4 were acquired by a smaller joint family comprising of Govindareddy and his five sons. He submitted that all the sons of Govindareddy were major as on the date of the partition effected through the registered partition deed dated 08-06-1972. Therefore, the joint family status remained amongst Govindareddy and his five sons. He submits that when there was a partition by metes and bounds under a registered Partition Deed dated 20-06-2003, (Exhibit-D12) - 18 - NC:

2024. KHC:50000 RFA No.323 of 2009 between four sons of Govindareddy and plaintiff No.4, the said partition is prior to the Hindu Succession (Amendment) Act, 2005. As per Section 6(5) of the Hindu Succession Act, as amended in 2005, nothing contained in said Section applies to a partition effected prior to 20-12- 2004. Therefore, he submitted that the partition cannot be questioned by the plaintiffs. It is contended that the sale deeds were executed pursuant to the partition in favour of various third parties and the same are not challenged and therefore, the suit is not maintainable. He further submitted that the calculation of the shares by the trial Court is not proper and correct and there should have been a notional partition immediately prior to the death of Govindareddy, so that, the members of the coparcenary are entitled for a share. Therefore, when Govindareddy died, in the notional partition, his five sons would have entitled for 1/6th share in the suit schedule properties and the 1/6th share that would be allotted to Govindareddy, in turn, will be divided by succession under Section 8 of the Hindu Succession Act, wherein the plaintiffs are entitled - 19 - NC:

2024. KHC:50000 RFA No.323 of 2009 for 1/11th of 1/6th share in the suit schedule properties. It is submitted that defendant Nos.2,3, 4 and 12 would be entitled for 1/6th share in their individual capacity as coparceners under Section 6 of the Hindu Succession Act and 1/66th share in the estate of Govindareddy under Section 8 of the Hindu Succession Act. Therefore, the trial Court has erred in calculating the shares also.

22. In this regard, the learned counsel appearing for the appellant has placed reliance on the judgments in the case of 1. Valliammai Achi Vs. Nagappa Chettiar and another1; 2. Vellikannu Vs. R. Singaperumal and another2; 3. Shyam Narayan Prasad Vs. Krishna Prasad and others3; 4. Arshnoor Singh Vs. Harpal Kaur and others4. and 5. Derha Vs. Vishal and another5.

23. Per contra, the learned counsel appearing for the respondents submit that the trial Court has rightly 1 AIR1967SC11532 (2005) 6 SCC6223 AIR2018SC31524 AIR2019SC30985 (2023) 10 SCC524 - 20 - NC:

2024. KHC:50000 RFA No.323 of 2009 concluded that the partition in the year 2003 is not binding on the plaintiffs since the plaintiffs were not included in the said partition, be that in respect of the share of Govindareddy in the coparcenery or in his individual property. He submits that defendant Nos.5 to 7 were later transposed as the plaintiffs and thereby, they have also acceded to the contention of plaintiff Nos.1 and 2 that the partition dated 20-06-2003 is sham and bogus and it is liable to be cancelled.

24. Secondly, he submits that the calculation of the shares by the trial Court is proper since the partition among Govindareddy and his brothers has resulted in the suit schedule properties being his individual properties and therefore, no fault can be found in the calculation of the shares. Thus, he has supported the view taken by the trial Court.

25. In this regard, the learned counsel for the respondents has also placed reliance on the judgments in the case of - 21 - NC:

2024. KHC:50000 RFA No.323 of 2009 1. Commissioner of Wealth Tax, Kanpur and others Vs. Chander Sen and others6; 2. Gurupad Khandappa Magdum Vs. Hirabai Khandappa Magdum and others7, 3. Uttam Vs. Saubhag Singh and others8 and lastly 4. Bhimsi Fakirappa, Bijjur dead by his LRs and others Vs. Nagesh Bhimppa Waddar and others9 rendered by a Division Bench of this Court.

26. In the light of the above contentions urged by both the parties, the questions that need to be decided are:

1. Whether the trial Court erred in holding that the plaintiffs are entitled for 1/10th share each in the suit schedule properties by holding that the suit schedule properties are to devolve u/s 8 of the Hindu Succession Act?.

2. Whether the judgment of the trial Court holding that the partition dated 20-06-2003 is liable to be cancelled is proper, and correct?. Re.Point No.1:

27. The learned counsel appearing for appellant argued that the trial Court erred in holding that the suit 6 (1986) 3 SCC5677 (1978) 3 SCC3838 (2016) 4 SCC689 RFA No.23/2002 C.W. RFA No.1012/2001 DD2212.2022 - 22 - NC:

2024. KHC:50000 RFA No.323 of 2009 schedule properties would devolve upon the legal heirs of deceased Govindareddy under Section 8 of the Hindu Succession Act. It is his contention that there was a partition in the year 2003 among the legal heirs of Govindareddy and therefore, the said partition is saved under the provisions of Section 6(5) of the Hindu Succession Act as it stood amended in the year 2005. On that ground, he submits that nature of the suit schedule property was amenable for partition as per the Hindu Succession Act as it stood prior to the amendment.

28. To fortify his argument, he submits that traditionally, a joint family comprises of male members who are the lineal decedents from common male ancestor together with their mother, wife and unmarried daughters. A Hindu coparcenary comprises of the propositus and the three lineal male decedents. Before 2005, a coparcenary included only the sons, grandsons and great-grandsons and therefore, the coparcenary is the custodian of the ancestral property. He submits that when the share is - 23 - NC:

2024. KHC:50000 RFA No.323 of 2009 allotted in partition, whether the same would constitute a separate property in the hands of the person to whom it is allotted and whether sons, his lineal decedents can make a claim in relation to such property allotted in the partition is no more res-integra. He submits that the property being ancestral, will not loose the character of coparcenary property qua the sons of Govindareddy.

29. It is pertinent to note that in the case on hand, the evidence on record shows that item No.1 i.e., 'Sy.No.9/2' and the house property at item No.3 which is described as "All that house property bearing No.158 measuring East to West 48 feet and North to South 44 feet situated in Dodddanekkundi Village, Bangalore," was part of the Partition Deed of the year 1972 between Govindareddy and his brothers. The said Partition Deed is at Ex.P6 and it discloses that two other brothers of Govindareddy had separated much earlier and therefore, the partition was between Govindareddy and his brother Gurumurthy. In the said partition, the suit schedule - 24 - NC:

2024. KHC:50000 RFA No.323 of 2009 property bearing Sy.No.9/2 and one of the house properties was allotted to Govindareddy. Though the document is not clear as to how the Sy.No.9/2 had come to them; it is not in dispute that the suit schedule property is ancestral property, and it devolved upon the said Govindareddy and Gurumurthy from their father Nanjareddy. The other brothers of Govindareddy and Gurumurthy i.e., Narayanareddy, Gurushamareddy and Krishnareddy have already separated as mentioned in Ex.P6. Therefore, it can safely be held that Govindareddy and Gurumurthy were the co-parceners, who remained joint till the partition in the year 1972 as per Ex. P6.

30. When the partition took place in the year 1972 as per Ex.D12, Sy.No.9/2 and the house property at item No.3 came to the share of Govindareddy. The question is, whether this devolution of the property in favour of Govindareddy under Ex.D12 (also at Ex.P20) would result in the property being self acquired property of - 25 - NC:

2024. KHC:50000 RFA No.323 of 2009 Govindareddy or whether it would remain to be ancestral property in the hands of Govindareddy and his sons?.

31. The trial Court has concluded that it attains the character of individual property of Govindareddy, by virtue of Partition Deed dated 1972. In the impugned judgment, in para 31 and 32, the trial Court observes as below:

"31. From the laws laid down by their Lordships in the above said decisions, it is clear that the property inherited by a son from his father will be his individual property. He inherits the same as an individual and not as Kartha of his own family. Hence, the said property is not the coparcenery property of his sons and his sons will not acquire any right over the said property by birth. Hence, the properties which late Sri. Govinda Reddy and his brother Gurumurthy had inherited from their father, and in which they had effected partition under the partition deed dated 08.06.1972, are their individual properties and they will not become coparcenery properties of their sons i.e., defendant Nos.2 to 4 and 12. Though plaintiffs and defendant Nos. 1 to 4 and 8 to 12 have inherited the suit schedule properties from their ancestors, but, they are not the co-parcenery properties of defendant Nos. 2 to 4 and 12. The laws laid down by their Lordships in the decisions on which the learned Counsel for defendants relied are not aptly applicable to the facts of the present case. Under the circumstances and for the reasons discussed above, I hold that plaintiffs have proved that suit schedule properties (item Nos. 1, 3 and

4) are the ancestral and joint family properties consisting of themselves and defendant Nos. 1 to 4 and 12.-. 26 - NC:

2024. KHC:50000 RFA No.323 of 2009 32. As I have already stated above, the suit properties are individual or separate properties of late Sri Govinda Reddy and they are not co-parcenery properties of defendant Nos. 2 to 4 and 12. Hence, after the death of late Sri Govinda Reddy, plaintiffs, defendant Nos. 1 to 4, mother of defendant Nos. 8 to 11 late Smt. Yeshodamma and defendant No.12, being his Class I heirs, have succeeded to the suit properties (item Nos. 1, 3 and 4), and each of them are entitled for 1/11th share."

(emphasis supplied) 32. The said finding is assailed by the appellant herein who is defendant No.3 before the trial Court. The Shastric Hindu Law, prior to codification in the form of Hindu Succession Act, 1956, or its earlier avatars, recognized the Hindu coparcenary as the sole entity that would hold the title to the family property. The Law of Succession among Hindus flowed from the responsibility of the sons to perform the rituals for the Moksha of their ancestors, from the income generated from property. The successive enactments recognized the rights of women/daughters and right to property. Therefore, the enactments show the conceptual shift from the spiritual acts and obligations of sons towards property oriented, possessive, ownership-based rights and liabilities. Now, - 27 - NC:

2024. KHC:50000 RFA No.323 of 2009 the question before this Court is whether the concept of coparcenary has died, extinguished by virtue of Section 8 of the Hindu Succession Act or whether it exists with certain conditions for succession?.

33. In the case of Valliammai Achi Vs. Nagappa Chettiar and another which is relied by the learned counsel for the appellant as referred supra, the Apex Court while dealing with the rights of father, who had inherited a property from his ancestors in willing away part of it to one of his son, in paras 10 and 11 observed as below: “10. ………….. A father cannot turn joint family property into absolute property of his son by merely making a will, thus depriving sons of the son who might be born thereafter of their right in the joint family property. It is well settled that the share which a co-sharer obtains on partition of ancestral property is ancestral property as regards his male issues. They take an interest in it by birth whether they are in existence at the time of partition or are born subsequently: [see Hindu Law by Mulla, 13th Edn., p. 249, para 223(2)(4)].. If that is so and the character of the ancestral property does not change so far as sons are concerned even after partition, we fail to see how that character can change merely because the father makes a will by which he gives the residue of the joint family property (after making certain bequests) to the son. xxxxxx - 28 - NC:

2024. KHC:50000 RFA No.323 of 2009 11. Further it is equally well settled that “under the Mitakshara law each son upon his birth takes an interest equal to that of his father in ancestral property, whether it be movable or immovable. It is very important to note that the right which the son takes at his birth in the ancestral property is wholly independent of his father. He does not claim though the father….” (see Mulla's Hindu Law, 13th Edn., p. 251, para 224). It follows therefore that the character of the property did not change in this case because of the will of Pallaniappa's father and it would still be joint family property in the hands of Pallaniappa so far as his male issue was concerned. …….” (emphasis supplied) 34. In the case of Vellikannu Vs. R. Singaperumal and another referred supra, the Apex Court in Para 11 noticed the accepted views of all Authors and referred to paras 284 and 285 of Hindu Law by Mulla, 15th Edition (1982) and in para 13, it was noted that, the right of the coparceners would be by birth. In para 15, the law laid down in several other judgments were also noticed. In para 11, it was observed as below: “11. ……….. So far as the rights of coparceners in the Mitakshara law are concerned, the son acquires by birth or adoption a vested interest in all coparcenary property whether ancestral or not and whether acquired before or after his birth or adoption, as the case may be, as a member of a joint family. This is - 29 - NC:

2024. KHC:50000 RFA No.323 of 2009 the view which has been accepted by all the authors of the Hindu law. In the famous principles of Mulla, 15th Edn. (1982) at pp. 284 and 285, the learned author has stated thus: “The essence of a coparcenary under the Mitakshara law is unity of ownership. The ownership of the coparcenary property is in the whole body of coparceners. According to the true notion of an undivided family governed by the Mitakshara law, no individual member of that family, whilst it remains undivided, can predicate, of the joint and undivided property, that he, that particular member, has a definite share, one-third or one-fourth. His interest is a fluctuating interest, capable of being enlarged by deaths in the family, and liable to be diminished by births in the family. It is only on a partition that he becomes entitled to a definite share. The most appropriate term to describe the interest of a coparcener in coparcenary property is ‘undivided coparcenary interest’. The nature and extent of that interest is defined in Section 235. The rights of each coparcener until a partition takes place consist in a common possession and common enjoyment of the coparcenary property. As observed by the Privy Council in Katama Natchiar v. Rajah of Shivagunga [(1863) 9 MIA543, ‘there is community of interest and unity of possession between all the members of the family, and upon the death of any one of them the others may well take by survivorship that in which they had during the deceased's lifetime a common interest and a common possession’.” By referring to Hindu Law by S.V. Gupte, Vol.1, 3rd Edition (1981) at P.162, it was observed that, - 30 - NC:

2024. KHC:50000 RFA No.323 of 2009 "…..till partition, the coparcener is entitled to joint possession and enjoyment of the joint family property and right to claim joint family property by survivorship and the right to demand partition of the joint family property."

Then in para 13, by referring to Hindu Law by N.R. Raghavachariar, it observes while dealing with right by birth that, "every coparcener gets an interest by birth in the coparcenary property and this right by birth relates back to the date of conception".

35. In the case of Shyam Narayan Prasad Vs. Krishna Prasad and others referred supra, in para 12 and 13, it was observed as below:

"12. It is settled that the property inherited by a male Hindu from his father, father's father or father's father's father is an ancestral property. The essential feature of ancestral property, according to Mitakshara Law, is that the sons, grandsons, and great grandsons of the person who inherits it, acquire an interest and the rights attached to such property at the moment of their birth. The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. After partition, the property in the hands of the son will continue to be the ancestral property and the natural or adopted son of that son will take interest in it and is entitled to it by survivorship.

13. In C. Krishna Prasad v. CIT [(1975) 1 SCC160 , this Court was considering a similar question. In the said case, C. Krishna Prasad, the appellant along with his father Krishnaswami Naidu and brother C. Krishna - 31 - NC:

2024. KHC:50000 RFA No.323 of 2009 Kumar formed Hindu Undivided Family up to 30-10- 1958, when there was a partition between Krishnaswami Naidu and his two sons. A question arose as to whether an unmarried male Hindu on partition of a joint Hindu family can be assessed in the status of undivided family even though no other person besides him is a member of the family. It was held that the share which a coparcener obtains on partition is ancestral property as regards male issue. It was held as under: “The share which a coparcener obtains on partition of ancestral property is ancestral property as regards his male issue. They take an interest in it by birth, whether they are in existence at the time of partition or are born subsequently. Such share, however, is ancestral property only as regards his male issue. As regards other relations, it is separate property, and if the coparcener dies without leaving male issue, it passes to his heirs by succession (see p. 272 of Mulla's Principles of Hindu Law, 14th Edn.). A person who for the time being is the sole surviving coparcener is entitled to dispose of the coparcenary property as if it were his separate property. He may sell or mortgage the property without legal necessity or he may make a gift of it. If a son is subsequently born to him or adopted by him, the alienation, whether it is by way of sale, mortgage or gift, will nevertheless stand, for a son cannot object to alienations made by his father before he was born or begotten."

(emphasis supplied) 36. The Apex Court in the case of Arshnoor Singh Vs. Harpal Kaur and others referred supra, distinguishing the judgment in the case of Yudhishter Vs. Ashok - 32 - NC:

2024. KHC:50000 RFA No.323 of 2009 Kumar10 has relied on the judgment in the case of Valliammai Achi (referred supra) and in that case held that the property which came to the share Dharam Singh through partition under a Court decree, among his brothers, remained coparcenary property qua his son, who had become a coparcener in the suit property on his birth in the year 1985.

37. In the recent judgment in the case of Derha Vs. Vishal and another, referred supra, the Apex Court had an occasion to consider the nature of the properties acquired by one Phannuram in a partition among his nephew in 1964. The fact that there was partition between Phannuram and his brother's son Ramnath and sister-in- law was not in dispute. It was held in paras 9 as below:

"9. Once it is held that the properties which were the subject matter of the partition suit were coparcenary properties, the only issue that remains is as to how the said properties were to be divided amongst the legal heirs of Phannuram upon his death in 1959, i.e., after the advent of the Hindu Succession Act, 1956 (for brevity, 'the Act of 1956'). Section 6 of the Act of 1956 would govern the situation, as rightly observed 10 (1987) 1 SCC204 - 33 - NC:

2024. KHC:50000 RFA No.323 of 2009 by the Chhattisgarh High Court. Section 6 of the Act of 1956, as it then stood, states that when a male Hindu died after the commencement of the Act of 1956, having at the time of his death an interest in Mitakshara coparcenary property, his interest in that property shall devolve by survivorship upon the surviving members of the coparcenary. However, the proviso thereto states that, if the deceased left behind him a surviving female relative specified in Class I of the Schedule or a male relative specified in that class who claimed through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under the Act of 1956 and not by survivorship. Explanation 1 clarified that, for the purposes of Section 6, 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 such partition or not."

By observing as above, it was held that Phannuram and his son Vishal would get 1/2 share each and in the half share of Phannuram, his wife and all children would get equal share. The Apex Court in coming to such conclusion has also placed reliance on the judgment in the case of Gurupad Khandappa Magdum Vs. Hirabai Khandappa Magdum and others referred supra and has followed the ratio laid down therein.-. 34 - NC:

2024. KHC:50000 RFA No.323 of 2009 38. From the above observations by the Apex Court, it is clear that whenever there is a partition among the brothers in respect of the ancestral property held by them, the property would not change its nature but it remains as the ancestral property of smaller coparcenery of himself and his male children. Even if a son is born subsequent to such partition of the ancestral property, then he would get rights by birth. The entitlement for a share in the ancestral property cannot be denied.

39. It is worth to note that the observations of the Apex Court in the decisions mentioned above, are flowing from the propositions laid down in the treatises on Hindu Law. In Article 221 of Hindu Law by Mulla, 21st Edition, Page 335 concerning the 'ancestral property', the Author has observed as below:

"221. Ancestral Property - (1) …… Thus, if A inherits property, whether movable or immovable, from his father or father's father, or father's father's father, it is ancestral property, as regards his male issue. If A has no son, son's son, or son's son's son in existence at the time when he inherits the property, he holds the property as absolute owner thereof, and he can deal with it as he - 35 - NC:

2024. KHC:50000 RFA No.323 of 2009 pleases. However, if he has son's son' sons or sons' sons' sons in existence at the time, or if a son, son's son or son's son's son is born to him subsequently, they become entitled to an interest in it by the mere fact of their birth in the family, and A cannot claim to hold the property as absolute owner nor can he deal with the property as he likes. The position has been materially affected after s 8 of the Hindu Succession Act, 1956, came into force. A father cannot change the character of the joint family property into absolute property of his son by merely marking a will and bequeathing it or part of it to the son as if it was the self-acquired property of the father…... (2) xxxxxx (3) Property inherited from collaterals - property inherited from females - Excluding the case of property inherited from a maternal grandfather, it may be said that the only property that can be called ancestral property is property inherited by a person from his father, father's father or father's father's father. Property inherited by a person from any other relation is his separate property, and his male issues do not take any interest in it by birth. Thus, property inherited by a person from collaterals, such as a brother, uncle, etc, or property inherited by him from a female, eg., his mother, is his separate property. (4) Share allotted on partition.-. The share, which a coparcener obtains on partition of ancestral property, is ancestral property as regards his male issue. They take an interest in it by birth, whether they are in existence at the time of partition or are born subsequently. Such share, however, is ancestral property only as regards his male issue. As regards other relations, it is separate, and if the coparcener dies without leaving a male issue, it passes to his heirs by succession. Reference may - 36 - NC:

2024. KHC:50000 RFA No.323 of 2009 also be made to notes under 8 of the Hindu Succession Act, 1956 and the Supreme court and High Court decisions as to ancestral property cited there."

(emphasis supplied) The learned Author also observes that, in the recent judgment by Punjab and Haryana High Court, the propositions laid down in Article 321 and 322 of the treatise were incorrectly interpreted.

40. Further, in the treatises on Mayne’s Hindu Law and Usage, 15th, Edition, in para 295, it is observed as below:

"295. Where ancestral property has been divided between several joint owners, there can be no doubt that if any of them have male issue living at the time of the partition, the share which falls to him will continue to be ancestral property in his hands, as regards has male issue, for their rights had already attached upon it, and the partition only cuts off the claims of the dividing members. The father and his male issue still remain joint. The same rule would apply even where the partition had been made before the birth of male issue or before a son is adopted, for the share which is taken at a partition, by one of the coparceners is taken by him as representing his branch. It was held by the Andhra Pradesh High Court that where a father divided the family property between him and his sons, the share obtained by him was his self- acquired property which he could bequeath to his wife……" (emphasis supplied) - 37 - NC:

2024. KHC:50000 RFA No.323 of 2009 41. The learned counsel appearing for the respondents contends that the provisions of Section 6 of the Hindu Succession Act, as it stood prior to the amendment is applicable, since there is a partition by a registered deed as per Ex. P20 (Ex.D12) dated 20-06- 2003. Therefore, the explanation that the amended provisions will not be applicable if there is partition would aptly come in play. He submits that the Apex Court in the case of Gurupada Kandappa Magdum while giving effect to the provisions of Hindu Succession Act, 1956, has held that the interpretation of Section 6 will have to further the legislative intent regarding enlargement of the share of the female heirs. In the said judgment, it was held as below:

"6. The Hindu Succession Act came into force on June 17, 1956. Khandappa having died after the commencement of that Act, to wit in 1960, and since he had at the time of his death an interest in Mitakshara coparcenary property, the pre- conditions of Section 6 are satisfied, and that section is squarely attracted. By the application of the normal rule prescribed by that section, Khandappa's interest in the coparcenary property would devolve by survivorship upon the surviving - 38 - NC:

2024. KHC:50000 RFA No.323 of 2009 members of the coparcenary and not in accordance with the provisions of the Act. But, since the widow and daughter are amongst the female relatives specified in class I of the Schedule to the Act and Khandappa died leaving behind a widow and daughters, the proviso to Section 6 comes into play and the normal rule is excluded. Khandappa's interest in the coparcenary property would therefore devolve, according to the proviso, by intestate succession under the Act and not by survivorship. Testamentary succession is out of question as the deceased had not made a testamentary disposition though, under the explanation to Section 30 of the Act, the interest of a male Hindu in Mitakshara coparcenary property is capable of being disposed of by a will or other testamentary disposition. xxxxxxx 10. Two things are thus clear: One, that in a partition of the coparcenary property Khandappa would have obtained a 1/4th share and two, that the share of the plaintiff in the 1/4th share is 1/6th, that is to say, 1/24th. So far there is no difficulty. The question which poses a somewhat difficult problem is whether the plaintiff's share in the coparcenary property is only 1/24th or whether it is 1/4th plus 1/24th, that is to say, 7/24th. The learned trial Judges relying upon the decision in Shiramabai which was later overruled by the Bombay High Court, accepted the former contention while the High Court accepted the latter. The question is which of these two views is to be preferred.

11. We see no justification for limiting the plaintiff's share to 1/24th by ignoring the 1/4th share which she would have obtained had there been a partition during her husband's lifetime between him and his two sons. We think that in overlooking that 1/4th share, one unwittingly permits one's imagination to boggle under the oppression of the reality that - 39 - NC:

2024. KHC:50000 RFA No.323 of 2009 there was in fact no partition between the plaintiff's husband and his sons. Whether a partition had actually taken place between the plaintiff's husband and his sons is beside the point for the purposes of Explanation 1. That Explanation compels the assumption of a fiction that in fact “a partition of the property had taken place”, the point of time of the partition being the one immediately before the death of the person in whose property the heirs claim a share.

12. ………………Lord Asquith in his famous passage in East End Dwellings Co. Ltd. v. Finsbury Borough Council [1952 AC109 132 : (1951) 2 All ER587 . He said: “If you are bidden to treat an imaginary state of affairs as real, you must also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it; and if the statute says that you must imagine a certain state of affairs, it cannot be interpreted to mean that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.” xxxxxxxxxxx 14. The interpretation which we are placing upon the provisions of Section 6, its proviso and Explanation 1 thereto will further the legislative intent in regard to the enlargement of the share of female heirs, qualitatively and quantitatively……."

(emphasis supplied) 42. It is pertinent to note that the Apex Court had considered and given effect to the notional or fictional - 40 - NC:

2024. KHC:50000 RFA No.323 of 2009 state of affairs for the purpose of determining the share. It is equally important to note that, it never said or intended that the concept of coparcenary comes to an end. Therefore, this decision is not of any help to augment the argument of respondents.

43. He further contends that the view taken by the Apex Court in the case of C.W.T. Kanpur Vs. Chander Sen and others referred supra, in para 12, 17 and 19 is that, when a male Hindu dies after commencement of the Act, his interest in the Mitakshara coparcenary property shall devolve under Section 6 by survivorship and if he leaves behind a female heir, it shall devolve under Section 8 of the Act.

44. A Division Bench of this Court in a recent judgment in the case of Jayashree Jayanth Vs N Krishnaswamy and others11 has clarified the ratio laid in Chandersen's case, wherein it is observed as below. 11 RFA No.1226 of 2016 DD2210-2024 - 41 - NC:

2024. KHC:50000 RFA No.323 of 2009

"24. If the facts are put to analysis, it becomes very evident that the Hindu Undivided Family consisting of Chander Sen and his father disrupted when partition took place on 10.10.1961. The partnership business that was commenced by them after the partition was not the family business. A sum of Rs.1,85,043/- belonged to Rangilal as the books of accounts showed that it was credit balance in the account of Rangilal. That means this sum exclusively belonged to Rangilal and it devolved on his son Chander Sen in accordance with section 8 of Hindu Succession Act. This sum was not part of the Joint Family property. In para 7 of the judgment it is clearly observed that the amount could not be said to belong to Joint Hindu Family and qua Chander Sen and his sons it was separate property of Rangilal. On Rangilal’s death amount passed on to his son Chander Sen by inheritance. It was in this context that the Hon’ble Supreme Court noticed the effect of section 8 making an observation that son alone would inherit the property of a male Hindu. When Rangilal died, Chander Sen had a son. The presence of Chander Sen’s son did not have the effect of succession by Chander Sen to the said sum to make it a property of joint family. If Shastric Law had been applied, because of presence of Chander Sen’s son at the time of Rangilal’s death, the money that Chander Sen inherited would have become joint family property. But by virtue of section 4 of Hindu Succession Act, it was held that section 8 would come into picture in this kind of situation and Shastric Hindu Law was not applicable. Unfortunately this position is wrongly applied to give a meaning that even devolution by survivorship of a coparcenary property is governed by section 8 which exclusively deals with inheritance of self acquired or separate property of a male Hindu. However it is true that whenever notional partition is effected to determine the share of the deceased male Hindu, since it becomes separate property of the deceased, the devolution of such interest takes place according to section 8.” - 42 - NC:

2024. KHC:50000 RFA No.323 of 2009 45. After observing so, it also considered various judgments of the Apex Court and concluded that whenever devolution of separate or self acquired property of male Hindu takes place, Section 8 is applicable, not Section 6. But wherever Rule of Survivorship is applicable, Section 8 has no applicability. Therefore, the case of Chander Sen has no applicability to the case on hand.

46. Regarding the proposition laid down in the case of Uttam Vs. Soubhagsingh referred supra, the Division Bench observed as below:

"31. Lastly in Uttam, the principles culled out are found in para 18 and they are: (i) When a male Hindu dies after the commencement of the Hindu Succession Act, 1956, having at the time of his death an interest in Mitakshara coparcenary property, his interest in the property will devolve by survivorship upon the surviving members of the coparcenary (vide Section 6). (ii) To proposition (i), an exception is contained in Section 30 Explanation of the Act, making it clear that notwithstanding anything contained in the Act, the interest of a male Hindu in Mitakshara coparcenary property is property that - 43 - NC:

2024. KHC:50000 RFA No.323 of 2009 can be disposed of by him by will or other testamentary disposition. (iii) A second exception engrafted on proposition (i) is contained in the proviso to Section 6, which states that if such a male Hindu had died leaving behind a female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative surviving him, then the interest of the deceased in the coparcenary property would devolve by testamentary or intestate succession, and not by survivorship. (iv) In order to determine the share of the Hindu male coparcener who is governed by Section 6 proviso, a partition is effected by operation of law immediately before his death. In this partition, all the coparceners and the male Hindu's widow get a share in the joint family property. (v) On the application of Section 8 of the Act, either by reason of the death of a male Hindu leaving self-acquired property or by the application of Section 6 proviso, such property would devolve only by intestacy and not survivorship. (vi) On a conjoint reading of Sections 4, 8 and 19 of the Act, after joint family property has been distributed in accordance with Section 8 on principles of intestacy, the joint family property ceases to be joint family property in the hands of the various persons who have succeeded to it as they hold the property as tenants-in-common and not as joint tenants.

32. The above principles make two aspects clear, firstly that devolution of Mithakshara coparcenary property takes place by survivorship, and section 8 is applicable while distributing the notional share of the deceased - 44 - NC:

2024. KHC:50000 RFA No.323 of 2009 male Hindu. The last paragraph in Uttam shows findings on facts of that case, it is not a ratio.

33. The conclusion therefore is that even if the above three decisions had been brought to the notice of the coordinate bench, the legal position would not have changed. This observation is necessary to be made here because judgment in Pushpalatha was authored by one of us."

After saying as above, the Court gave an illustration also, to demonstrate the manner of devolution of the property.

47. It is significant to note that the exception contained in the proviso to Section 6 of the Hindu Succession Act, states that, if a male Hindu had died leaving behind female relative specified in Class I of the schedule or a male relative specified in that Class who claims through such female relative surviving him then the interest of the deceased in the coparcenary property would devolve by testamentary or intestate succession and not by survivorship. This would show that the nature of the property to be a coparcenary property would not change - 45 - NC:

2024. KHC:50000 RFA No.323 of 2009 but it must be partitioned among the coparceners, engrafting a notional share to the deceased male Hindu; and his interest in it only would devolve by intestate succession. Such intestate succession would be as per Section 8 of the Act. Therefore, at any rate, 'the interest of the deceased male Hindu in the coparcenary property' alone would be devolving as per Section 8 but not the entire property. The provisions are very clear in saying that it is only the interest in the coparcenary property but not the entire property.

48. There is one another reason to hold that the concept of coparcenary has not been abrogated or shelved. It is worth to note that by the Amending Act of 2005, the provisions of Section 6 of the Hindu Succession Act, were amended. Both versions of Section 6 read as below: Before amendment:

"6. Devolution of interest in coparcenary property. —When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary - 46 - NC:

2024. KHC:50000 RFA No.323 of 2009 property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act : Provided that, if the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship. Explanation 1.—For the purposes of this section, 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. Explanation 2.—Nothing contained in the proviso to this section shall be construed as enabling a person who had separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein. After amendment:

"6. Devolution of interest in coparcenary property. — (1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall, — - 47 - NC:

2024. KHC:50000 RFA No.323 of 2009 (a)by birth become a coparcener in her own right in the same manner as the son; (b)have the same rights in the coparcenary property as she would have had if she had been a son; (c)be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener: Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004. (2) Any property to which a female Hindu becomes entitled by virtue of sub-section (1) shall be held by her with the incidents of coparcenary ownership and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force in, as property capable of being disposed of by her by testamentary disposition. (3)Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005, his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenary property shall be deemed to have been divided as if a partition had taken place and,— (a)the daughter is allotted the same share as is allotted to a son; - 48 - NC:

2024. KHC:50000 RFA No.323 of 2009 (b)the share of the pre-deceased son or a pre- deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre- deceased son or of such pre-deceased daughter; and (c)the share of the pre-deceased child of a pre- deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be. Explanation. —For the purposes of this sub-section, 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. (4) After the commencement of the Hindu Succession (Amendment) Act, 2005, no court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great- grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt: Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005, nothing contained in this sub-section shall affect— - 49 - NC:

2024. KHC:50000 RFA No.323 of 2009 (a)the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or (b)any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 had not been enacted. Explanation. —For the purposes of clause (a), the expression “son”, “grandson” or “great-grandson” shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005. (5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004. Explanation.—For the purposes of this section “partition” means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court."

Thus, it is clear that the daughter, who could not be a coparcener as per old law, is conferred with the same rights as coparcener. This would inevitably indicate that - 50 - NC:

2024. KHC:50000 RFA No.323 of 2009 the rights in coparcenary property, which was restricted to male members only, has been enlarged to daughters also.

49. Thereafter, the Apex Court in the case of Vineeta Sharma Vs. Rakesh Sharma12 has laid down the way the amended provisions of Section 6 would operate, which reads as below:

"133. The severance of status may take place from the date of filing of a suit; however, a decree is necessary for working out the results of the same, and there may be a change of rights during the pendency of the suit for allotting definite shares till final decree is passed. There are cases in which partition can be reopened on the ground of fraud or mistake, etc. or on certain other permissible grounds. In appropriate cases, it can be reopened at the instance of minor also. xxxx 135. A special definition of partition has been carved out in the Explanation. The intendment of the provisions is not to jeopardise the interest of the daughter and to take care of sham or frivolous transaction set up in defence unjustly to deprive the daughter of her right as coparcener and prevent nullifying the benefit flowing from the provisions as substituted. The statutory provisions made in Section 6(5) change the entire complexion as to partition. However, under the law that prevailed earlier, an oral partition was recognised. In view of change of provisions of Section 6, the intendment of the 12 (2020)9 SCC1- 51 - NC:

2024. KHC:50000 RFA No.323 of 2009 legislature is clear and such a plea of oral partition is not to be readily accepted. The provisions of Section 6(5) are required to be interpreted to cast a heavy burden of proof upon proponent of oral partition before it is accepted such as separate occupation of portions, appropriation of the income, and consequent entry in the revenue records and invariably to be supported by other contemporaneous public documents admissible in evidence, may be accepted most reluctantly while exercising all safeguards. The intendment of Section 6 of the Act is only to accept the genuine partitions that might have taken place under the prevailing law and are not set up as a false defence and only oral ipse dixit is to be rejected outrightly. The object of preventing, setting up of false or frivolous defence to set at naught the benefit emanating from amended provisions, has to be given full effect. Otherwise, it would become very easy to deprive the daughter of her rights as a coparcener. When such a defence is taken, the court has to be very extremely careful in accepting the same, and only if very cogent, impeccable, and contemporaneous documentary evidence in shape of public documents in support are available, such a plea may be entertained, not otherwise. We reiterate that the plea of an oral partition or memorandum of partition, unregistered one can be manufactured at any point in time, without any contemporaneous public document needs rejection at all costs. We say so for exceptionally good cases where partition is proved conclusively, and we caution the courts that the finding is not to be based on the preponderance of probabilities in view of provisions of gender justice and the rigour of very heavy burden of proof which meets the intendment of Explanation to Section 6(5). It has to be remembered that the courts cannot defeat the object of the beneficial provisions made by the Amendment Act.-. 52 - NC:

2024. KHC:50000 RFA No.323 of 2009 The exception is carved out by us as earlier execution of a registered document for partition was not necessary, and the court was rarely approached for the sake of family prestige. It was approached as a last resort when parties were not able to settle their family dispute amicably. We take note of the fact that even before 1956, partition in other modes than envisaged under Section 6(5) had taken place.

137. Resultantly, we answer the reference as under:

137. 1. The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after the amendment in the same manner as son with same rights and liabilities. 137.2. The rights can be claimed by the daughter born earlier with effect from 9-9-2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before the 20th day of December, 2004. 137.3. Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9-9-2005. 137.4. The statutory fiction of partition created by the proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of Class I as specified in the Schedule to the 1956 Act or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed, the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.-. 53 - NC:

2024. KHC:50000 RFA No.323 of 2009 137.5. In view of the rigour of provisions of the Explanation to Section 6(5) of the 1956 Act, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected (sic effected) by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly.

50. This would show that if there is no partition as required under Section 6(5) of the amended provisions of the Hindu Succession Act, then the daughters would also become coparceners in their individual capacity since 1956 when the Act came into force. There is no such exclusive prospectivity.

51. From the above discussion, it is clear that when there is partition of ancestral property, it would not change the nature of ancestrality of property. But the devolution of property happens as per rules setout in Section 8 of Hindu Succession Act. The property remains - 54 - NC:

2024. KHC:50000 RFA No.323 of 2009 to be ancestral in the hands of such sharers and his descendants.

52. Resultantly, the following aspects would emerge: (a) When there is a partition among the brothers in respect of the ancestral properties, (particularly when there is notional partition on account of application of proviso to Section 6 of unamended Act) they continue to be the ancestral properties among the smaller coparcenery of each of such brothers, though there is severance among the brothers interse. (b) The property will not change the character of the ancestral property among such sharers of the partition and even if a son is born, then the sons surviving as well as born subsequently would get a share as coparceners. (c) If there is a partition as contemplated under Section 6(5) of Hindu Succession Act, prior to - 55 - NC:

2024. KHC:50000 RFA No.323 of 2009 coming into force of Amending Act of 2005, the female heirs are entitled to a share, in the notional share that was to be allotted to their father. The concept of notional partition as laid down under the Proviso to Section 6 of the Hindu Succession Act, would come in play. (d) In case, the partition is effected by the father, who is the karta, during his life time among all the members of the coparcenery in respect of properties acquired by the coparcenery, then each of the sharer would get the property in his individual capacity and the property loses the character of the ancestral property. This is because the coparcenery itself disrupts completely. e) Now by Amending Act of 2005, female heirs are also given the status of coparcener, subject to certain conditions as mentioned in Section 6(5).

53. In the instant case, no-doubt the partition of the year 1972 among Govindareddy and Gurumurthy resulted in the suit item Nos. 1 and 3 being allotted to - 56 - NC:

2024. KHC:50000 RFA No.323 of 2009 Govindareddy and Govindareddy did not effect the partition till his death in the year 1987. Therefore, the coparcenery consisting of Govindareddy and his sons continued till his death in the year 1987. When he died, the coparcenery of the sons of Govindareddy, i.e., defendant Nos.1 to 4, 12 would continue, wherein the plaintiffs and other daughters of Govindareddy along with defendant No.1 were members. Thus, it is evident that the suit schedule item Nos.1 and 3 properties are the ancestral properties in the hands of the children of Govindareddy.

54. The sum and substance of the above discussion is that if this Court comes to the conclusion that there is a partition in the year 2003, obviously which is a division, then the suit schedule property would have to devolve as per the extant law. In other words, there shall be a notional partition at the time of death of Govindareddy and a share must be given to him along with his wife and sons. In the share that has to be allotted to Govindareddy, the - 57 - NC:

2024. KHC:50000 RFA No.323 of 2009 members of the joint family i.e., Class I heirs would get equal share. If this Court comes to the conclusion that the partition of the year 2003 is invalid, then by operation of the amended provisions of Section 6 of the Hindu Succession Act, and by virtue of the propositions laid down in the case of Vineeta Sharma, referred supra, the sons and daughters of Govindareddy would get equal share. For aforesaid reasons Point No.1 is answered in the affirmative.

55. Having answered the point No.1 as above, we now proceed to consider the next question as to whether the partition of the year 2003 as per Ex.P20 (Ex.D12) would hold good or not?. Re.Point No.2

56. This point need not hold this Court for long. It is pertinent to note that the relationship between the plaintiffs and defendants is not in dispute. Defendant No.4 has categorically stated in his written statement that partition dated 20-06-2003 is not subscribed by him - 58 - NC:

2024. KHC:50000 RFA No.323 of 2009 consciously. He alleged that he being illiterate, his signature was taken by defendant Nos.1 to 3 forcibly and therefore, it is not binding on him.

57. The ocular evidence of PW1-Dhanamma, who is none else than plaintiff No.1, would show that she admits that a partition has been entered between her mother, brothers and sister Gayatri on 20-06-2003. It is not only once, but in paras 5, 14, and in the cross-examination dated 17-10-2008, she has admitted that there was a partition on 20-06-2003. It must be observed that PW1 was not a party to the said partition. Among the plaintiffs, it was only plaintiff No.4 (PW.2) who was a party to it.

58. The testimony of PW2, Gayatri, would indicate that she alleges that her signature was forcibly taken on the partition deed by taking her to Sub-Registrar's office. She states that after such registration of the Deed at Ex.P20, she went to enquire about her share, but she was beaten up by her brothers. However, she admits that she did not file any complaint to the police alleging any fraud - 59 - NC:

2024. KHC:50000 RFA No.323 of 2009 and misrepresentation. The lengthy cross-examination of PW2 would indicate that she did not take any action in respect of the alleged fraud. Obviously, her contention about such fraud and misrepresentation is bereft of any pleadings. Therefore, the ocular evidence does not establish that the signature of PW.4 was taken forcibly on Ex.P20.

59. It is also pertinent to note that the plaintiffs pray for revocation of the Partition Deed at Ex.P20. Though the prayer is not happily worded, the trial Court has considered the same as cancellation. The trial Court granted the relief of cancellation of partition deed on the ground that when Govindareddy died, the entire suit schedule property being the individual property of Govindareddy, it would devolve upon the Class I heirs and therefore, the sons, wife and one unmarried daughter of Govindareddy could not have entered a partition by excluding the other married daughters. It did not touch upon the question whether the partition was fraudulent or - 60 - NC:

2024. KHC:50000 RFA No.323 of 2009 otherwise. Therefore, the impugned judgment does not delve with the contention of plaintiff No.4 and defendant No.12 who alleged that it was fraudulent.

60. It must be observed that the partition deed which is at Ex.P20 states that married daughters are not entitled to the share under the Hindu Succession Act, as it stood amended under Karnataka Amendment Act, as on 20-06-2003, the partition is effected only among the sons, wife and unmarried daughter of Govindareddy. However, Ex.P20, does not mention anything about the notional partition in which Govindareddy would have entitled for a share. It totally excludes the married daughters.

61. It is necessary to note that PW.2 by transposing herself as plaintiff No.4, has spoken about the fraud and misrepresentation in executing Ex.P20, which is not borne out of the pleadings. The entire reading of the plaint would show that what the original plaintiff Nos. 1 and 2 contended was that the partition under Ex.P20 being behind their back, it does not bind them and therefore, it - 61 - NC:

2024. KHC:50000 RFA No.323 of 2009 has to be revoked. There cannot be any doubt that when the plaintiff Nos.1 to 3 and 5 were not parties to Ex.P20, there was no necessity for them to seek for cancellation of the partition deed, but they could have sought for partition by ignoring Ex.P20. Therefore, in the absence of convincing evidence, supported by a pleading about the fraud alleged by the plaintiff No.4, the partition deed at Ex.P20 cannot be cancelled, but the plaintiffs are entitled for ignoring the same in seeking their share.

62. Defendant No.12 has also sought for cancellation of the partition deed since his signature was taken on Ex.P20 by threat. In para 36 of the impugned judgment, the trial Court considers his contention and rejects the claim that Ex.P20 is not binding on him. Obviously, rejecting the claim of defendant No.12 regarding cancellation of the partition deed and decreeing the suit holding that Ex.P20 is liable to be cancelled would be contradictory. As noted supra, instead of holding that the partition deed is not binding on the non-parties to such - 62 - NC:

2024. KHC:50000 RFA No.323 of 2009 deed, the trial Court has granted the relief of cancellation instead of revocation as prayed.

63. Be that as it may. Ex.P20 was validly entered into by plaintiff No.4, her brothers and mother. It was registered before the Sub Registrar. There is no evidence to show that the document was fraudulently entered or is an outcome of threat and coercion. Evidently, Ex.P20 does not recognize the share of Govindareddy immediately prior to his death in the year 1987 and totally excludes the married daughters. The legislative intent of the 1956 Act was not to shunt out the daughters from the share in the joint family property. What the Act intended, as it stood prior to amendment, is that the daughters are entitled for a share in the interest of the deceased in the coparcenery property. Therefore, Ex.P20 overlooks the share entitled by the daughters even as per the pre-amended Act. Therefore, the plaintiffs are entitled for a share, in the share of Govindareddy in the coparcenery property. In that view of the matter, the Partition Deed has to be - 63 - NC:

2024. KHC:50000 RFA No.323 of 2009 upheld as evidence of partition, but not in respect of the shares allotted to the parties. Under these circumstances, Ex.P20 will hold good only in respect of the plaintiff No.4 and defendant Nos.1 to 4 and 12 and any other parties claiming under them. Consequently point No.2 is answered in the negative.

64. The upholding of the partition in the year 2003 and holding of the suit schedule item Nos.1 and 3 properties to be the ancestral properties would result in a partition under Section 6 of the Hindu Succession Act, prior to amendment. In other words, in the notional partition, which must be considered immediately prior to the death of Govindareddy in the year 1987, he would have entitled for 1/6th share and his sons and wife would have got 1/6th share each. Since we are calculating the share after the death of defendant No.1, the share would be reduced to 1/5th share each. The said 1/5th share of Govindareddy has to be shared among all the 4 sons and 6 daughters of Govindareddy. The sons would get 1/5 + - 64 - NC:

2024. KHC:50000 RFA No.323 of 2009 (1/5 x 1/10=1/50)= 11/50th share each. The daughters would get 1/50th share each.

65. The compensation amount received by defendant No.1 (i.e, item No.2 of suit schedule) is utilized by her for the marriage of her daughters. The suit schedule item No.4 house property bearing No.166 situated in Doddanekkundi Village, Bangalore was the property purchased by deceased brother of plaintiffs viz., Sri Suresh. He died intestate as a bachelor. Therefore, the said property would devolve on defendant No.1, Muniyamma as class I heir. Hence, all her children would get equal share, i.e., 1/10th in the same. Hence, the appeal succeeds in part and the following order is passed:

ORDER

The appeal is allowed in part. It is ordered that plaintiff Nos.1 to 5 and mother of defendant Nos. 8 to 11 are entitled for 1/50th share each in suit schedule item Nos. 1 - 65 - NC:

2024. KHC:50000 RFA No.323 of 2009 and 3 properties. They are also entitled for 1/10th share each in suit schedule item No.4 property. Defendant Nos.2 to 4 and 12 are entitled for 11/50th share in item Nos.1 and 3 properties and 1/10th share in item No.4 property. The judgment and decree passed by the trial Court stands modified accordingly. The parties to the suit being siblings, costs made easy. Sd/- (C M JOSHI) JUDGE tsn* List No.:

1. Sl No.: 1