Yallamma and Others vs V. Ramaiah and Others

N. Kumar, J.

The plaintiff has preferred this Regular First Appeal challenging the judgment and decree of the Trial Court dismissing the suit for partition and separate possession on the ground that the plaintiff being a daughter born prior to 1956, is not entitled to any share in the coparcenary property as amendment Act of 2005 to the Hindu Succession Act is not attracted.

For the purpose of convenience, the parties are referred to as they are referred to in the Trial Court.

The subject matter of the suit is land bearing Sy. No. 369, 373 and 374 of Thamasandra gate, Harohalli Hobli, Harohalli village, Kanakapura Taluk Ramangar District measuring in all about 6 acres with Pump house, farm house and trees, which are morefully described in the plaint schedule with boundaries and hereinafter referred to as ''the schedule property''. The case of the plaintiffs is that in the year 1948 their father N. Venkatappa purchased the schedule property in the name of his wife Smt. Puttamma. The original sale deed dated 08.02.1948 is produced and marked as Ex. P1. Venkatappa died on 18.03.1992 and Puttamma died on 21.05.1993. Both of them died intestate. It is the further case of the plaintiffs that she has given sufficient funds for improvement of the schedule property to the hands of the 1st defendant V. Ramaiah, who is deceased. It is with that money a Well was dug, a pump house was constructed, a farm house was constructed and several trees are grown. As her parents have died intestate, the plaintiffs and defendants being their children are entitled to 1/5th share each. As the defendants refused to part with their share and they have also not taken any steps to get the mutation entries changed after the death of their parents, they filed the suit for partition and separate possession.

The defendants were duly served, but they did not enter appearance. However, the defendants 3 and 4 the two daughters, filed an application for transposing them as plaintiffs 2 and 3. The Trial Court, on appreciation of the oral and documentary evidence on record held that the plaintiffs being daughters, who are all born prior to 1956 are not entitled to any share in the ancestral property of the father. Therefore, it dismissed the suit of the plaintiffs. Aggrieved by the said Judgment and Decree, the plaintiffs are in appeal.

The learned counsel for the plaintiffs, assailing the impugned order contends that the schedule property is the self-acquired property. According to him, the father purchased the property in the name of his wife and therefore, by virtue of either Section 8 or by Section 15 of the Hindu Succession Act, all the children are entitled to equal share and the Trial Court committed a serious error in declining to grant a share on the ground that it is an ancestral property and that the plaintiffs having born prior to 1956 and they being daughters are not entitled for share.

Even in this Court, the respondents though served have remained absent. Therefore, the point that arises for our consideration is as under:

"Whether the Trial Court was justified in declining to grant the relief to the daughters born prior to 1956, in the property of their parents?"

The Trial Court has confused itself in passing the impugned order. The specific averment in the plaint is that the father of the plaintiffs and defendants purchased the schedule property in the name of the wife. Registered sale deed Ex. P1 is produced, which is dated 08.02.1948. Though the plaintiffs contend that the father purchased the property in the name of the wife, no evidence is adduced to substantiate the said case. However, the fact remains that the schedule property belongs to the mother. In the absence of any evidence, that property is her Streedhan property. On her death, the said property devolves to her children in equal share. She died intestate in the year 1993. Therefore, under Section 15 of the Hindu Succession Act, all the class-I heirs are entitled to a share. The Trial Judge, appears to have been influenced by the latest amendment to the Hindu Succession Act brought about in the year 1956 conferring the status of coparcenary to the daughters and the interpretation placed by this Court holding that the daughters born prior to 1956 are not conferred the status of coparcenary and therefore, the daughters are not entitled to equal share with the sons. The said amendment and the judgment which the Trial Court has kept in mind has no application to the facts of this case.

This is a case where the property stands in the name of the mother. Registered sale deed is produced. Mother died intestate in the year 1993, Section 15 of the Hindu Succession Act is attracted and therefore all the three daughters and two sons, who are Class-I heirs are entitled to equal share. In that view of the matter, the judgment and decree passed by the Trial Court is liable to be set-aside. Hence, we pass the following order:

"(a) Appeal is allowed.

(b) The Judgment and Decree of the Trial Court is hereby set-aside.

(c) The suit of the plaintiff is decreed declaring that the plaintiffs (three daughters) and defendants (two sons), all of them are entitled to equal share i.e., 1/5 share each in the schedule property.

(d) Parties to bear their own cost."