Case No: Regular First Appeal no. 100221 of 2016 c/w Regular First Appeal No. 100197 of 2016.
Case Title: Akkamahadevi & Others And Neelambika & Others
CORAM: Justice Sreenivas Harish Kumar and Ramchandra D Huddar
Appearance
Appellants: Advocate J S Shetty
Respondent: H.N. Gularaddi, Anand P Bagewadi
Date of judgment:
Introduction
The High Court of Karnataka has contended that the daughters leaving their share only in the agricultural property belonging to a joint family, which is partitioned among the sons of the propositus, cannot be deemed to have abandoned their shares in other joint family properties and they can seek partition of those properties.
Facts of the case
The plaintiff’s suit was for partition and separate possession of their 1/10th share each in thirteen landed properties. The plaintiffs claimed partition in schedule ‘A’ and schedule ‘B’ properties on the score that they were all ancestral joint family properties. They came to know that defendants 1 to 11 created a false partition deed for their convenience, obtained their signatures and the signatures of defendants 12 and 13 deceitfully, and obtained the mutations of the properties to their names. They stated that this mutation did not affect their share in the properties. Property bearing R.S.No.556/1A/1+2+3A measuring 7 acres and 24 guntas exclusively belonged to third plaintiff but it was also included in the partition.
The tenth defendant filed a written statement which was adopted by defendants 1 to 9 and 11. The specific contention in the written statement is that the first plaintiff was born before 1956 and therefore she cannot claim any share. On 05.04.2000 there took place a partition in the presence of the elders and since the plaintiffs and the defendants 1 to 13 were parties to the partition, they cannot claim partition again. The revenue entries were mutated based on the partition. It is also contended that items 10, 11, and 12 are the self-acquired properties of defendants 10 and 11. In this view suit is to be dismissed.
In this view, plaintiffs 1 and 2 and defendant 13 would become entitled to claim share. With these findings, the Trial Court partly decreed the suit holding that plaintiffs 1 and 2 were each entitled to 1/10th share in schedule ‘B’ properties and dismissed the suit in respect of schedule ‘A’ properties.
G.Sekar Vs. Geetha and others1 and Narasimhmurthy Vs. Susheelabai (Smt.) and other cases were linked.
the defendants have admitted that the house properties belonged to the joint family. Because of this reason plaintiffs 1 and 2 have been given share in the house properties. There is no infirmity in this part of the judgment. Therefore the defendant’s appeal is to be dismissed and the plaintiff’s appeal is to be allowed to grant share in properties.
Analysis of the court
The Court observed that the restrictive right contained in Section 23 of the Act cannot be held to continue despite the 2005 amendment.
Acco rdingly it dismissed the appeals.
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