Case Note & Summary
The first appeal arose from the judgment dated 05.07.2016 in O.S.No.6285/2008 passed by the XXXVII Additional City Civil and Sessions Judge, Bengaluru, which dismissed the suit for partition as not maintainable. The suit was filed by Jayashree Jayanth, daughter of N. Krishnaswamy (first defendant), seeking partition and separate possession of 1/8th share in the properties described in three schedules. The plaintiff claimed that the properties belonged to the Hindu Undivided Family of Bore Gowda, the propositus, and devolved through his son P.B. Nanjiah and later to his grandsons. The defendants contested the suit, asserting that the properties were either self-acquired by P.B. Nanjiah or had already been partitioned through deeds dated 04.03.1955, 26/27.04.1966, and 22.02.1994. They argued that the plaintiff was not a coparcener before the 2005 amendment to the Hindu Succession Act and that Section 29A of the Tamil Nadu Hindu Succession (Amendment) Act applied. The trial court framed eight issues and treated Issue No. 4 regarding maintainability as a preliminary issue. It held that the suit was not maintainable, relying on the Supreme Court decisions in Eramma vs Virupana and Others (AIR 1966 SC 1879), Commissioner of Wealth Tax, Khanpur vs Chander Sen (AIR 1986 SC 1753), and Uttam vs Saubhag Singh (citation incomplete). The trial court concluded that under Section 8 of the Hindu Succession Act, 1956, devolution of property inherited by a male Hindu from his father is by succession and not survivorship, and therefore the plaintiff could not claim a share in the properties which were already partitioned or were self-acquired. On appeal, the High Court was to determine the correctness of this finding, but the provided judgment text is incomplete and does not contain the final decision, ratio decidendi, or operative directions.
Headnote
Not mentioned due to incomplete judgment text; final decision and court's own ratio not available.
Issue of Consideration
Whether a suit for partition by a daughter claiming coparcenary rights is maintainable after the Hindu Succession (Amendment) Act, 2005, when the properties had been subjected to prior partition deeds, and whether the properties are joint family properties or self-acquired properties of the father.
Case Details
2024 LawText (KAR) (10) 15
Regular First Appeal No. 1226 of 2016 (PAR)
Sreenivas Harish Kumar, Umesh M Adiga
Party-in-person (for appellant); Kashyap N. Naik, Dhananjaya Joshi (Senior Counsel), S.H. Prashanth, Jayakumar N.D., Akshay B.M. (for respondents)
Jayashree Jayanth (represented by GPA holder Jayanth Balakrishna)
N. Krishnaswamy and others
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Nature of Litigation
Suit for partition and separate possession of 1/8th share in joint family properties.
Remedy Sought
The plaintiff sought partition and separate possession of her claimed share in the suit schedule properties.
Filing Reason
The plaintiff alleged that she was denied her legitimate share in the joint family properties by her father due to a misinterpretation of law and three partition deeds dated 04.03.1955, 26/27.04.1966, and 22.02.1994, which she contended did not bind her interest.
Previous Decisions
The trial court (XXXVII Additional City Civil and Sessions Judge, Bengaluru) dismissed the suit as not maintainable by answering preliminary issue No. 4 against the plaintiff.
Issues
Whether the suit for partition filed by the plaintiff is maintainable?
Whether the suit properties are ancestral/joint family properties or self-acquired properties of the first defendant?
Whether the plaintiff acquired coparcenary rights by birth under the Hindu Succession (Amendment) Act, 2005?
What is the effect of prior partition deeds on the plaintiff's claim?
Submissions/Arguments
Plaintiff argued that the properties belonged to the Hindu Undivided Family of Bore Gowda and devolved on the branches of the family, and that she was denied a share under an erroneous interpretation of law, with her signature on the 1994 partition deed being only as a witness and her father being hostile to her interest.
First defendant contended that the properties were either self-acquired by P.B. Nanjiah and later partitioned, or were not part of the joint family after the partitions; that the plaintiff was not a coparcener before the 2005 amendment and Section 29A of the Tamil Nadu Act applied; and that the cause of action did not arise on 02.09.2005.
Other defendants adopted the first defendant's written statement.
Judgment Excerpts
It is held that there are two modes of devolution of interest, namely survivorship and succession.
The trial court ... answered issue No.4 against the plaintiff and dismissed the suit as not maintainable and hence this appeal.
If the findings of the trial court are seen, it can be noticed that it has discussed the position in regard to succession before and after coming into force of Hindu Succession Act, 1956.
Procedural History
The plaintiff filed O.S.No.6285/2008 for partition. Defendants filed written statements. The trial court framed eight issues and treated issues 2 and 4 as preliminary issues. Issue 2 regarding Order II Rule 2 CPC was not pressed. Issue 4 regarding maintainability was answered against the plaintiff, and the suit was dismissed on 05.07.2016. The plaintiff then filed this Regular First Appeal.
Acts & Sections
- Code of Civil Procedure, 1908: Order XLI Rule 1, Section 96, Order II Rule 2
- Karnataka Land Reforms Act:
- Hindu Succession Act, 1956: Section 6, Section 8
- Hindu Succession (Amendment) Act, 2005:
- Tamil Nadu Hindu Succession (Amendment) Act: Section 29A
