1

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 3RD DAY OF AUGUST 2012

PRESENT

THE HON’BLE MR.JUSTICE D.V.SHYLENDRA KUMAR

AND

THE HON’BLE MR.JUSTICE B.MANOHAR

RFA.NO.1093/2010(PAR-INJ)

BETWEEN:

1. SMT.SARASWATHI GOPINATH,W/O.LATE SRI.R.GOPINATH,AGED ABOUT 64 YEARS.

2. ROHIT.G. @ RAMALINGAM,S/O.LATE SRI.R.GOPINATHAGED ABOUT 34 YEARS.

BOTH OF THEM RESIDING ATNO.27/2, 1ST MAIN ROAD,JAYAMAHAL,BANGALORE – 560 046. …APPELLANTS

(BY SRI.K.P.ASOKUMAR, SRI.K.HONNAIAH, ADVS)

AND:

1. MS.UMA RAM,D/O.LATE SRI.B.R.RAM,AGED ABOUT 67 YEARS,

2

2. MS.RAJINI RAM,D/O.LATE SRI.B.R.RAM,AGED ABOUT 52 YEARS,

BOTH OF THEM RESIDINGAT NO.27/2, 1ST MAIN ROAD,JAYAMAHAL,BANGALORE – 560 046.

3. SMT.PRABHA VISHWANATH,W/O.K.N.VISHWANATH,AGED ABOUT 72 YEARS,RESIDING AT NO.30,MOUNTAIN ROCK ROAD,1ST BLOCK EAST,YANAGANAGAR,BANGALORE – 560 011.

4. SMT.VEENA,W/O.HEMACHANDRA KUPPALLI,AGED ABOUT 62P/O.BOX NO.60515, POLO ALTO,CALIFORNIA 94306, USA.

5. B.R.RAM,S/O.LATE B.C.RAMALINGAM,SINCE DEAD, THE PLAINTIFFNOS.1 AND 2 AND DEFENDANTNOS. 2 TO 5 ARE THE LR’SOF THE DEFENDANT NO.1,(WHO ARE RESPONDENTS1, 2, 3 AND 4 AND APPELLANTS)

….RESPONDENTS

(BY SRI.S.SHEKAR SHETTY FOR MARIGOWDA, ADV FORR1 TO R3, R.4 VEENA SERVED, REP BY GPA HOLDER, R.5DEAD)

3

RFA FILED U/S.96 OF CPC, AGAINST THEJUDGMENT AND DECREE DATED: 12.03.2010 PASSED INOS.NO.9264/1997, ON THE FILE OF THE 1-ADDL.CITYCIVIL AND SESSIONS JUDGE, BANGALORE DECREEINGTHE SUIT FOR DECLARATION, PARTITION ANDINJUNCTION.

THIS APPEAL IS COMING ON FOR HEARING THISDAY, B.MANOHAR, J., DELIVERED THE FOLLOWING: -

J U D G M E N T

The appellants are defendants 2 and 3 in

O.S.No.9264/1997, being aggrieved by the judgment

and decree dated 12-3-2010 passed by the I Additional

City Civil and Sessions Judge, Bangalore City filed this

appeal.

2. For the purpose of better understanding of the

facts of the case, ranking of the parties is referred to as

in the Trial Court.

3. The plaintiffs 1 and 2 filed O.S.No.9264/1997

seeking for partition and separate possession of the suit

schedule property by declaring that the settlement deed

dated 13-4-1970 executed by the deceased first

4

defendant in favour of R.Gopinath who is the husband

and father of the defendants 2 and 3 is not binding on

them and also sought for permanent injunction

restraining the defendants in the suit from interfering or

disturbing the peaceful possession and enjoyment of

right to stay in the suit schedule property.

4. The case of the plaintiffs is that they are the

unmarried daughters and defendants 4 and 5 are the

married daughters of the first defendant and defendants

2 and 3 are the wife and son of the deceased

R.Gopinath, who is the son of the first defendant. The

plaintiffs and defendants have formed a Hindu

undivided family. The first defendant was the ‘Kartha’

of the said family. The joint family succeeded the

properties left by the grandfather of the plaintiffs

B.C.Ramalingam and after his death, the first defendant

succeeded the properties held by B.C.Ramalingam.

5

They have contended that there was a registered

partition between the B.C.Ramalingam, who is the

grand father of the plaintiffs and B.R.Mariappa who is

the brother of B.C.Ramalingam. In the said partition,

five items of the properties have fallen to the share of

B.C.Ramalingam, and after his death, the first

defendant who is the only son of B.C.Ramalingam,

succeeded all the five items of the properties. The first

defendant along with plaintiffs and defendants 2 and 3

was residing in two items of the properties and leased

out the remaining three items of the properties to the

tenants. The first defendant being a “Kartha” of the

joint family, has utilised the income from other

properties for their family maintenance and also

invested the family income for establishment of

business in ROLEX watches at Bangalore. In the said

business, he has earned lot of money and out of the

said income, he has purchased the property bearing

6

No.72/2 situated at 1st Main Road, Jayamahal,

Bangalore on 6-2-1967. Thereafter, he has constructed

a residential house in the said property in the year 1970

from and out of the income of joint family properties.

Further, the plaintiffs also averred in the plaint that for

the purpose of construction of the house, the first

defendant sold two items of the properties on

26-10-1964 and 12-11-1965 in favour of

Kodandaswamy and Shakuntala respectively. Further,

availed the loan from the Life Insurance Corporation

(‘LIC’ for short) after pledging the Insurance Policy of

R.Gopinath, who is the son of the first defendant and

also mortgaging the suit schedule property to the LIC.

For the purpose of availing loan from the LIC, the first

defendant executed a deed of settlement settling the

property in respect of the suit schedule property in

favour of his son R.Gopinath on 13-4-1970. The

settlement deed was executed only for the purpose of

7

raising loan for construction of building on the suit

schedule property and there is no intention to settle the

property in favour of the said R.Gopinath. The said

document is a sham document. Further, in the year

1975, the first defendant constructed first floor by

alienating item No.4 property in favour of

T.M.Krishnaswamy Modaliar on 30-6-1975 and

thereafter, item No.3 property was also sold in favour of

M.Neelakantan on 16-10-1978. It is the specific case of

the plaintiffs that the suit schedule property was

purchased out of the nucleus of the joint family

properties. The plaintiffs and defendants have right

over the suit schedule properties. Further, the first

defendant has repaid the loan amount to the LIC. The

plaintiffs and defendants 1 to 3 are residing in the same

house. The plaintiffs are the unmarried daughters and

they are entitled for a share in the properties.

8

5. In view of coming into force of Hindu Women’s

Right to Property Act, 1995 and the amendment to

Hindu Succession Act, 1956 as amended by Hindu

Succession Act, (Amendment Act of 2005) the plaintiffs

became the co-parcener by birth in their own right and

liabilities in the same manner as the son. Hence, they

are entitled for equal share in the suit schedule

properties. The defendants 2 and 3 got the katha in

respect of the suit schedule property in collusion with

the first defendant and intimidating the plaintiffs under

the threat of dispossession from the suit schedule

property in collusion with the first defendant.

Accordingly, they issued legal notice seeking for

partition. However, reply has been given to the effect

that defendants 2 and 3 have become the absolute

owners of the properties by virtue of settlement deed

dated 13-4-1970 executed by the first defendant in

favour of Late R.Gopinath. In view of that the plaintiffs

9

had filed a suit seeking for partition and separate

possession and also for declaration.

6. The first defendant entered appearance and filed

the written statement and defendants 2 and 3 and

defendants 4 and 5 have filed separate written

statements. The first defendant in his written

statement has denied the averments made in the plaint,

however admitted the relationship between the parties

and also admitted that late R.Gopinath was the

husband of the second defendant and father of the third

defendant and was his only son. He also admitted that

Gopinath was working as a High Rank Officer in the

Indian Army. It is admitted that the first defendant

purchased the suit schedule property in the year 1967

and constructed the house on the said property after

availing loan from the LIC on pledging the insurance

policies of R.Gopinath. Since R.Gopinath met with a

10

serious accident, for his benefit, the first defendant

settled the property in his favour as per the registered

settlement deed dated 13-4-1970 and katha has been

made in the name of his son R.Gopinath. Further he

has denied that the plaintiffs have got right over the suit

schedule properties and that they are entitled for any

share in the suit schedule properties. He has

specifically contended that right of the plaintiffs are

extinguished long back immediately after execution of

the settlement deed in favour of R.Gopinath, in the year

1970. Hence, the question of partitioning the property

at this length of time does not arise, though the first

defendant admitted that he has purchased the suit

schedule property and constructed the house after

obtaining the loan from the LIC on the insurance policy

of R.Gopinath. Since he is the owner of the properties,

he has settled the property in favour of the sole co-

parcener R.Gopinath and the plaintiffs have no right

11

whatsoever in respect of the suit schedule property.

The settlement deed is not a sham document. The

plaintiffs are residing along with the first defendant.

Hence, they are not entitled for any partition in the suit

schedule property and sought for dismissal of the same.

7. The defendants 2 and 3 filed written statement

contending that the plaintiffs have no right whatsoever

in the suit schedule property. Originally,

B.C.Ramalingam who is the father of the first defendant

and grad father of the plaintiffs and defendants 4 and 5

got five items of the properties in the family partition in

the year 1940. In the family partition between

B.C.Ramalingam and the first defendant, four items of

the properties were allotted to the first defendant and

one item of the properties bearing No.1 and 1/A, (New

Nos.495 and 496), OPH Road, Bangalore was fallen to

the share of B.C.Ramalingam. The said

B.C.Ramalingam, bequeathed the said property in

12

favour of his grandson R.Gopinath in the year 1956 and

the said B.C.Ramalingam died in the year 1958. From

the rental income of the building at OPH Road,

Bangalore, the first defendant purchased the suit

schedule property in the year 1967 and thereafter after

availing loan on the Insurance Policy of R.Gopinath, a

residential house was constructed in the suit schedule

property. R.Gopinath joined the Military Service as a

Major in Indian Army in the year 1962 and he got

married in the year 1968. The residential house has

been constructed on the suit schedule property from

and out of the income of R.Gopinath. Further the first

defendant was not doing any work for the livelihood and

he was a punter in a Turf Club. From the earnings of

R.Gopinath the residential house was constructed on

the suit schedule property and some of the joint family

properties were sold by the first defendant for the family

necessities and for the marriage of daughters. Since the

13

suit schedule property was purchased and construction

was made from and out of the income of R.Gopinath

and R.Gopinath is the only son of the first defendant

and the only co-parcener, the first defendant settled the

property in favour of R.Gopinath, as per the registered

Settlement Deed dated 13-4-1970. The plaintiffs are

fully aware of the said facts. After a lapse of 27 years,

the suit has been filed seeking for partition and also

declaration. Hence, the suit filed by the plaintiffs is not

maintainable on the ground of delay and latches.

Further, the amendment to the Hindu Succession Act

(Karnataka amendment) brought into force from the

year 1994 and also amendment to Hindu Succession

Act, 2005 will not be applicable to the present case

since the property was already settled in the year 1970

in favour of R.Gopinath and the plaintiffs have no right

whatsoever, in respect of suit schedule property and

sought for dismissal of the suit.

14

8. The defendants 4 and 5 filed written statement

supporting the stand of the plaintiffs and contended

that the site on which a residential house was

constructed by the first defendant is out of rental

income and the business in ROLEX watches. After

purchase of the suit schedule property, loan was raised

for the construction of the house by pledging the

Insurance Policy of their Brother R.Gopinath and the

loan amount was settled by the first defendant. Since

the LIC insisted for the additional security of immovable

property, the first defendant executed the registered

settlement deed on 13-4-1970, which is only for the

purpose of raising loan. The said document is a sham

document. In view of Section 6 of the Hindu Succession

Act 2005, the defendants 4 and 5 have become the co-

parceners and are entitled for a share in the suit

schedule properties and sought for decreeing the suit.

15

9. On the basis of the pleadings of the parties, the

court below framed the following issues and also

additional issues:

Issues:

(1) Do the plaintiffs prove that the

settlement deed dated 13.4.1970executed by defendant No.1 in favour ofhis son R.Gopinath in respect ofschedule property was only a nominalone, not acted upon and that defendantNo.1 had no authority to settle property

and thus not binding on them?

(2) Do the plaintiffs prove that they areentitled for a share in the scheduleproperty? If so, to what extent?

(3) Do defendant Nos.2 & 3 prove that theplaintiffs were married prior to 1990 andthus, there was severance of status inthe joint family and thus the partitionwas deemed to have taken place on11.6.1987 and thus the plaintiffs do notget any right to such partition as stated

in pare 1(i) of the Written Statement?

(4) Do the defendant No.2 and 3 prove thatB.C.Ramalingam, the father of the firstdefendant bequeathed to R.Gopinath, aproperty bearing No.1, Old Poor House

road, Bangalore by virtue of Will dated3.3.1956 and that the first defendant

16

purchased the schedule property fromout of the income derived from thatbequeathed property as well as other

contribution made by Gopinath as statedin para-2 of the written statement?

(5) Do defendant Nos.2 & 3 further provethat the house in the schedule propertywas constructed by R.Gopinath?

(6) Do defendant Nos.2 & 3 prove that thesuit is time barred?

(7) Do defendant Nos.2 & 3 prove that thesuit is bad for non-joinder of necessary

parties?

(8) What order or decree?

Additional.Issues dated 6.11.2006

(1) Whether the suit of the plaintiff is notmaintainable in law?

(2) Whether there arose a cause of action forplaintiff to file this suit againstdefendants?

Addl.Issues dated 24.9.2008

(1) Whether the defendant Nos. 4 & 5 provethat the suit schedule property is thejoint family ancestral property as

contended in para-2 of the writtenstatement?

17

(2) Whether they further prove that thesettlement deed dated 30.4.1970

executed by the defendant No.1 infavour of his son R.Gopinath is notbinding on these defendants?

(3) Whether the defendant Nos.4 and 5 arealso entitled to the share in the suit

schedule property? If so, to what extent?

10. In order to prove their case, the first plaintiff was

examined as P.W.1 on behalf of herself as well as the

second plaintiff and got marked the documents as

Ex.P1 to Ex.P10 and also examined one of the witnesses

as P.W.2. On behalf of the defendants, the defendant

No.2 was examined as D.W.1 and also examined two

other witnesses as D.W.2 and D.W.3 and got the

marked the documents as Ex.D.1 to Ex.D.23.

11. The Trial Court considering the oral and

documentary evidence let in by the parties held issue

No.1 in the affirmative and insofar as issue No.2 is

concerned, it has held that the plaintiffs and defendants

18

are entitled for 1/5th share each, issue Nos. 3 to 7 in the

negative, Additional issue No.1 dated 6-11-2006 in the

negative and issue No.2 dated 6-1-2006 in the

affirmative and additional issues No.1 to 3 dated

24-09-2008 in the affirmative. Consequently by its

judgment and decree dated 12-3-2010 decreed the suit

filed by the plaintiffs and declared that the settlement

deed dated 13-4-1970 executed by the first defendant in

favour of R.Gopinath is not binding on the plaintiffs and

defendants 4 and 5 are entitled for the 1/5th share each

and defendants 2 and 3 are entitled for 1/5th share.

Further restrained the defendants 2 and 3 from

interfering or disturbing the peaceful possession of the

plaintiffs over the suit schedule property. Being

aggrieved by the judgment and decree dated 12-3-2010

defendants 2 and 3 filed this appeal.

12. Sri.K.P.Asokumar, learned counsel appearing for

the appellants contended that the judgment and decree

19

passed by the Trial Court is contrary to law and

evidence on record. The finding of the court below on

issue No.1, 3 to 7 is perverse. The Trial Court

misunderstood and misread the scope of amendment to

the Hindu Succession Act of the year 1994 as well as

the amendment of the year 2005. Learned counsel

further contended that as per the family partition

between B.C.Ramalingam and the first defendant, four

items of the properties were allotted to the first

defendant and B.C.Ramalingam retained the property

situated at OPH Road, Bangalore. The said property

was bequeathed by B.C.Ramalingam in favour of his

grandson R.Gopinath as per the Will dated 3-3-1956

and the said B.C.Ramalingam died in the year 1958. In

view of the execution of the said Will, R.Gopinath

became the absolute owner of the property situated at

OPH Road, Bangalore. At the time of executing the Will,

the said R.Gopinath was minor and the first defendant

20

was also looking after the said property and collecting

the rent from the property situated at OPH road.

R.Gopinath joined the Military services in the year 1962

as a High Rank Officer. From his salaried income and

the rental income from the OPH Road Property, the first

defendant purchased the suit schedule property since

R.Gopinath was working in the Border Security of the

country. Thereafter, the first defendant constructed the

house in the year 1970 after availing loan from the LIC

on pledging the policies of R.Gopinath, further

R.Gopinath has paid the loan installments and

produced the documents in this regard as Ex.D9 to

Ex.D13. Since, R.Gopinath was the only son of the first

defendant and co-parcener, the first defendant settled

the properties as per the Settlement Deed dated

13-4-1970 in favour of R.Gopinath. The plaintiffs and

defendants 4 and 5 are fully aware of the said facts. The

plaintiffs were residing with defendants 1 to 3 in the

21

same house. After registering the Settlement Deed

dated 13-4-1970, katha was made in the name of

R.Gopinath in respect of the suit schedule property and

after his death in the year 1987, katha has been

changed in the name of the second defendant in the

year 1988 itself. The plaintiffs are fully aware of the

said facts also. After lapse of 27 years, the suit for

partition and declaration has been filed. Under Article

109 of the Limitation Act, the limitation for filing the

suit is 12 years from the date of alienee taking

possession. The suit filed by the plaintiffs is barred by

limitation. The finding of the Trial Court that the first

defendant purchased the property from the rental

income derived from other three properties and the

income from ROLEX watch business is totally incorrect.

No materials have been produced to show as to what is

the income from the ROLEX Watch business and also

the rental income. The appellants have produced the

22

documents to show that from the salaried income of

R.Gopinath and the rental income from the property

situated at OPH Road, Bangalore, the first defendant

purchased the properties and also by obtaining the loan

on the Insurance Policy of R.Gopinath, constructed a

residential house, since R.Gopinath was holding a

transferable post. In view of that, it is clear that

R.Gopinath is the only one co-parcener and his father

has settled the property in favour of R.Gopinath. There

was absolutely no impediment in settling the property

since the suit schedule property became the absolute

property of R.Gopinath and katha has been effected in

his name.

13. Hence the first defendant as per the registered

settlement deed dated 13-4-1970 settled the properties

in favour of R.Gopinath. After his death in the year

1987, katha has been effected in the name of the second

defendant. The property is not available for partition

23

from the year 1970 itself. The question of plaintiffs

seeking partition in the year 1997 on the basis of

Section 6-A of the Hindu Succession Act and also

amendment to Section 6 of the Hindu Succession Act of

the year 2005 does not arise. The reading of Section 6

of the amended Act, 2005, made it clear that Section 6

will not affect or invalidate any dispossession of

alienation including any partition or testamentary

disposition of property, which has taken place before

29th December 2004. In the instant case the suit

schedule property has been testamentarily disposed on

13-4-1970 itself and the property is not available for

partition. He also relied upon the judgments reported

in AIR 2009 SC 2649 G.SEKAR V/S GEETHA &

OTHERS; 2008 (4) KCCR 2333: M.PRITHVIRAJ AND

OTHERS V/S.SMT.LEELAMMA.N AND OTHERS; ILR

2010 KAR 1484 PUSHPALATHA.N.V. V/S V.PADMA &

OTHERS; AIR 2008 SC 1438 B.K.MUNIRAJU V/S

24

STATE OF KARNATAKA AND OTHERS; and 2006(8)

SCC 581 SHEELA DEVI & OTHERS V/S LALCHAND &

ANOTHER.

14. Sri.K.P.Asokumar further contended that the suit

is liable to be dismissed for non-joinder of parties. All

the children of the first defendant were not made parties

to the suit. Further some of the daughters of the

second defendant and the grandson and daughters of

the first defendant were also not made parties. In a

partition suit, unless all the family members are made

parties, the suit cannot be maintained. Further he has

contended that all the joint family properties which were

sold by the first defendant are not included.

O.S.No.6732/2006 has been filed seeking for partition

and separate possession of OPH Road property. Hence,

it is clear that during the pendency of the said suit, the

suit for partition in respect of only one property is not

maintainable. The reasoning of the Trial Court that

25

there is no transfer or alienation of the suit schedule

property permanently and settlement deed is not a

transfer is totally incorrect. The Trial Court has

misunderstood and misread the settlement deed and

also the effect of settlement deed and sought for setting

aside the judgment and decree by allowing this appeal.

15. Sri.Shaker Shetty, learned Counsel appearing for

respondents 1 to 3 submits that the suit schedule

property was purchased by the 5th respondent on

6-2-1967 from the nucleus of joint family fund.

Defendants 2 and 3 were not the members of the joint

family as on the date of purchase and they were not

competent to speak about the transaction took place in

the year 1967. In the partition between the grand

father of plaintiffs 1 and 2 and his brother

B.C.Marigowda, the five items of the properties were

allotted to the share of B.C.Ramalingam. After his

death, 5th respondent i.e. B.R.Ram succeeded the estate

26

of the deceased. These respondents were residing in a

joint family in 2 items of the properties and remaining

three items of the properties were let out to the tenants.

From the rental income, the father of plaintiffs 1 and 2

started ROLEX watch business and earned lot of money,

out of which, he purchased the suit schedule property

and constructed the ground floor in the year 1970 and

first floor in the year 1975. The respondents being

unmarried daughters have a right over the suit schedule

property as per the Indian Succession Act (As amended

by Karnataka Act 23/94 w.e.f. 30-7-1994), on this

premise, the suit was filed seeking for partition and

separate possession. In view of the non-obstante clause

in Section 6-A of the Act, the female co-parcener

becomes a co-parcener of the family from the date of her

birth. Admittedly, there was no partition in the family.

In view of 2005 amendment to Section 6 of the Act, even

27

the married daughter is also entitled to claim the same

right as the unmarried daughter.

16. Sri.Shaker Shetty further submits that the

Settlement Deed of the year 1970 is a sham document;

created only for the purpose of taking loan from the LIC

and it will not make any difference to the interest and

share of the plaintiffs in the joint family properties. He

further contended that the plaintiffs need not seek for a

declaration by virtue of amendment to the Hindu

Succession Act and they are entitled for a share in the

joint family properties as co-parcener. Since the suit

schedule property was purchased out of the nucleus of

joint family properties, the share in the joint family

properties cannot be denied to the plaintiffs and there is

no limitation prescribed seeking for partition and

sought for dismissal of the appeal. He also relied upon

the judgment reported in AIR 1972 SC 1279

(M.N.ARYAMURTHI AND ANOTHER v/s

28

M.L.SUBBARAYA SETTY(DEAD) BY HIS LEGAL

REPRESENTATIVES AND OTHERS); (2007)6 SCC 401

(M.VENKATARAMANA HEBBAR (DEAD) BY LRS. v/s

M.RAJAGOPAL HEBBAR AND OTHERS); ILR 2010

KAR 1484 (PUSHPALATHA N.B. v/s V.PADMA AND

OTHERS); and AIR 1980 SC 695 (THE RAJASTHAN

STATE ROAD TRANSPORT CORPORATION, JAIPUR

v/s NARAIN SHANKER AND ANOTHER ETC., ETC.).

17. We have carefully considered the arguments

addressed by the parties and oral and documentary

evidence let in by the parties.

18. The points that arise for consideration in this

appeal are:

(i) Whether the suit schedule property

was purchased from the nucleus of

joint family fund?

(ii) Whether the plaintiffs are entitled for a

share in the suit schedule property on

29

the basis of the amendment made to

the Hindu Succession Act?

(iii) Whether the suit filed by the plaintiffs

is barred by limitation?

19. The records clearly disclose that the suit schedule

property was purchased by the first defendant who is

the father of plaintiffs 1 and 2 and defendants 4 and 5

and father-in-law of defendant No.2 and grandfather of

defendant No.3 on 6-2-1967. Thereafter, a residential

house was constructed in the year 1970 and first floor

was constructed in the year 1975. It is the specific case

of the plaintiffs that in a family partition between

B.C.Ramalingam who was the grandfather of the

plaintiffs and his brother B.C.Marigowda, five items of

properties were allotted to the share of

B.C.Ramalingam. After his death, the first defendant

succeeded the estate of the deceased and residing in two

items of the properties and let out three items of the

30

properties. From the rental income of the other three

properties, the first defendant started ROLEX watch

business and purchased the suit schedule property and

constructed a house thereon. The plaintiffs claim that

the suit schedule property was purchased out of

nucleus of the joint family fund and constructed a

residential building thereon. Hence, they are entitled

for a share in view of the amendment to the Hindu

Succession Act. On the other hand, defendants 2 and

3 have contended that the first defendant is the son of

B.C.Ramalingam. He was the sole co-parcener. In the

family partition, 4 items of the properties were allotted

to first defendant and B.C.Ramalingam retained the

property situated at OPH Road, Bangalore. The

husband of the second defendant R.Gopinath is the only

son of first defendant. The grandfather B.C.Ramalingam

bequeathed his share of the property in favour of

R.Gopinath in the year 1956 and B.C.Ramalingam died

31

in the year 1958. Since then R.Gopinath, became the

absolute owner of the said properties. It is the specific

case of the defendants 2 and 3 that R.Gopinath joined

the Military services as a Major in the Indian Army in

the year 1962. From the rental income of OPH

property bequeathed in favour of R.Gopinath and from

his salaried income, the first defendant purchased the

suit schedule property and not from the nucleus of the

joint family fund. After taking loan by pledging the

Insurance Policy of R.Gopinath, loan was availed from

the LIC and constructed the house. R.Gopinath is the

only co-parcener. Accordingly, first defendant settled

the entire property in favour of R.Gopinath as per

Settlement Deed Ex-D4 dated 13-4-1970. The said

R.Gopinath bequeathed the said property as per the Will

of the year 1984 in favour of the first appellant. Hence,

the plaintiffs have no right whatsoever, in respect of the

suit schedule property. Since the property has already

32

been settled in favour of the husband of the second

defendant appellant and father of the third defendant

appellant in the year 1970 itself, the question of seeking

partition after lapse of 27 years does not arise. Further,

the plaintiffs have no dispute in respect of other joint

family properties, which were alienated by the father of

the plaintiffs. In view of the amendment to Section 6 of

the Hindu Succession Act, the testamentary succession

cannot be reopened at this length of time.

20. On behalf of the plaintiffs, the first plaintiff

examined herself as P.W.1 and got marked the

documents as Ex.P1 to Ex.P10. In her evidence she has

reiterated the plaint averments. In the cross-

examination she had admitted the partition of the

family properties between B.C.Ramalingam and

B.R.Ram and properties bearing Nos.6, 7, 8, and 10 of

Nadarthi Lane Cross were allotted to B.R.Ram and the

property bearing Old Nos.1 and 1A (New Nos.495 and

33

496) situated at OPH Road, Bangalore has fallen to the

share of B.C.Ramalingam. Further, she has admitted

that as per Ex.D4, the suit schedule property has been

settled in favour of R.Gopinath, by the father of the

plaintiffs in the year 1970. She has also admitted that

they were residing in the same house with defendants 1

to 3. She also admitted that out of four items of the

properties, two items of the properties were sold on

26-10-1964 and 12-11-1965 and other two items of the

properties have been sold on 30-6-1975 and

16-10-1978. However, she denied the suggestion made

by the defendants that after considerable deliberation, a

settlement deed was executed in favour of her brother in

the year 1970 by her father. She also admitted that OPH

Road property was retained by her grandfather

B.C.Ramalingam. However, she denied the suggestion

to the effect that she was not aware of executing the

said settlement deed in favour of R.Gopinath. She has

34

not disputed that the property stands in the name of

R.Gopinath and after his death, katha of the said

property was effected in the name of the first appellant

and her son. Further she also admitted that in the year

1962, R.Gopinath was appointed as a Major in the

Indian Army and after pledging the insurance policy,

loan was availed from the LIC for construction of the

house. However, the loan amount was repaid by her

father B.R.Ram. She also admitted that after the death

of her brother, the first appellant had paid the tax of the

schedule property to the Corporations. She also

admitted that OPH Property rent is being received by

the first appellant and she has not made any efforts to

collect the rents from the tenants of the OPH Road

property. However, she has denied the bequeathing of

OPH Road property in favour of R.Gopinath. She also

admitted that apart from the plaintiffs and defendants 4

and 5, she has got one more sister. Further two

35

children of the second defendant were also not made

parties.

21. Further she has examined his brother-in-law

K.L.Vishwanath as P.W.2. In the examination-in-chief

he has stated that the first defendant purchased the site

and constructed the house after availing loan from LIC

on the Policy of R.Gopinath and the first defendant

repaid the loan amount to the LIC.

22. The second defendant examined herself as D.W.2

and reiterated the averments made in the written

statement. In the cross-examination she deposed that

she was residing along with her father-in-law and she

do not know as to how much rent was being collected

from the suit schedule property. The father-in-law

being the Kartha of the family was maintaining the

family and collecting rents. She admitted that her

father-in-law was doing the business of ROLEX watch.

36

However denied the suggestion made by the plaintiffs

that out of the rental income and the income from

ROLEX watch business, the first defendant purchased a

site on 6-2-1967 situated at Jayamahal. She further

stated that for construction of the house in the suit

schedule property, the insurance policy of her husband

R.Gopinath was pledged and loan was obtained. The

property situated at OPH Road was bequeathed in the

name of her husband by his grandfather and katha also

stands in his name. However, her father-in-law was

collecting the rents, since R.Gopinath was in Military

service transferring from one place to another. She also

denied the suggestion made by the plaintiffs that the

first defendant has repaid the entire loan amount of

Rs.45,000/- on the other hand, she has got marked

Ex.D16 to D-21 to show that her husband had repaid

the loan amount to the LIC. She got marked Ex.D.9 to

Ex.D13 i.e. the tax paid receipts to show that katha

37

stands in her name after the death of her husband. She

also deposed that she is a B.Sc. graduate. Since her

husband was in the transferable job, she used to go

along with him to various places wherever he was

transferred. They were residing at Lucknow, Pune,

Jhansi and Delhi. In the year 1970, her husband was

posted to Bangalore. She further stated that her

husband joined Military service in the year 1962 and

she got married to him in the year 1968. Further her

husband has declared the OPH property as well as the

suit schedule property as the property owned by him to

the Central Government. The second defendant

examined two other witnesses as D.W2 and D.W3 to

show that her husband was working as a Colonel in the

Indian Army and he had made a declaration with regard

to the properties owned by him as per Ex.D7 and

Ex.D.8.

38

23. On appreciating the oral and documentary

evidence, it is explicit that the first defendant purchased

the suit schedule property on 6-2-1967, though the

plaintiffs claim that out of the rental income of the

ancestral properties and the business in the ROLEX

watch, the site was purchased in the year 1967.

However, no document has been produced to show as to

what was the rental income and the income from the

ROLEX watch business. In the family partition between

B.C.Ramalingam and the first defendant Ex.D.1, four

properties were allotted to the share of the first

defendant and B.C.Ramalingam retained the property

situated at OPH Road, Bangalore. The said property

was bequeathed in the name of his grandson

R.Gopinath, who is the son of the first defendant

working as a Major in the Indian Army and joined the

services in the year 1962 and he was married to the

second defendant in the year 1968. Since he was in the

39

Military services which is a transferable job, the first

defendant was collecting the rents of OPH Road

property. The case of the defendants is that in view of

the rental income of the OPH Road and contribution

made by the husband of the second defendant, the first

defendant purchased the site at Jayamahal in the year

1967 for Rs.31,460/-. Thereafter, on pledging the

insurance policy of R.Gopinath, the first defendant

availed loan from LIC and constructed a residential

house thereon. Though the property was purchased in

the name of the first defendant, it is on behalf of the

husband of the second defendant, wherein he had

financed for purchase of the said site and construction

of the house. Accordingly, the first defendant executed

a settlement deed on 13-4-1970 and not for the purpose

of availing loan from the LIC. In fact, as on the date of

executing the settlement deed, R.Gopinath was the

absolute owner of the OPH Road property and it was

40

bequeathed by his grandfather. The said property could

have been given as a mortgage for obtaining the loan.

Since R.Gopinath is the only son of the first defendant

and the only other co-parcener, there is nothing wrong

in one co-parcener settling the property on the other co-

parcener. As on the date of settling the property in the

year 1970, the plaintiffs were not the co-parcener and

the amendment to the Hindu Succession Act has come

into force in the year 1994.

24. From the date of settlement deed R.Gopinath

became the absolute owner and katha has been effected

in his name, which is an indication that the settlement

deed is not only a real, valid but also acted upon and

the transfer of the suit schedule property having taken

place well before the amended provisions of Sec.6 of the

Hindu Succession Act 1956 was legislated, the saving of

prior transaction as per the proviso is also attracted and

therefore, the plaintiffs have no right, interest

41

whatsoever in respect of the suit schedule property.

Hence, it is held that the suit schedule property is not

the joint family property.

25. The plaintiffs filed the suit on the basis of the

amendment to the Hindu Succession Act as amended

by the Karnataka Act No.23/1994 (coming into force

from 30-7-1994) and also 2005 amendment to the

Hindu Succession Act. They contended that they are

the unmarried daughters; they had become the co-

parcener and they are entitled for their share in the

joint family properties from the date of their birth.

Section 6 of the Hindu Succession Act reads as under:

6. Devolution of interest in coparcenary

property – (1) On and from the commencementof the Hindu Succession (Amendment) Act2005, in a joint Hindu family governed by theMitakshara law, the daughter of a coparcenershall. –

42

(a) by birth become a coparcener in herown right in the same manner as theson;

(b) have the same rights in the coparcenaryproperty as she would have had if shehad been a son;

(c) be subject to the same liabilities inrespect of the said coparcenary propertyas that of a son.

and any reference to a Hindu Mitaksharacoparcener shall be deemed to include areference to a daughter of a coparcener;

Provided that nothing contained in this sub-section shall affect or invalidated anydisposition or alienation including anypartition or testamentary disposition property,which had taken place before the 20th day of

December, 2004.

(2) Any property to which a female Hindubecomes entitled by virtue of sub-section (1)shall be held by her with the incidents ofcoparcenary ownership and shall be regardednotwithstanding anything contained in this

Act or any other law for the time being in forcein, as property capable of being disposed ofby her by testamentary disposition.

43

26. Reading of Section 6 provides for parity of right in

the co-parcener property among the male and female

members of the Hindu joint family. The daughter of the

co-parcener becomes a co-parcener by birth in her own

rights and liabilities in the same manner as the son.

However, Section 6(1) shall not affect or invalidate any

dispossession or alienation or partition or testamentary

disposition, which has taken place before 20th December

2004. The language employed in the provision is

unambiguous and clear. The intention was to save the

earlier disposition, alienation including any partition or

testamentary disposition of the property, which has

taken place before 20th December 2004. In the instant

case, admittedly as per the settlement deed dated

13-4-1970, the property has been settled in favour of

the sole co-parcener. Section 6 of the Hindu Succession

Act protected the alienation or testamentary disposition

made prior to 20th December 2004 even if we hold that

44

the suit schedule properties are the joint family

properties. The Hon'ble Supreme Court in a judgment

reported in 2011(6) KLJ 307(SC) GANDURI

KOTESHWARAMMA AND ANOTHER v/s CHAKIRI

YANADI AND ANOTHER clearly held that Section 6(1)

will not invalidate dispossession or alienate including

any partition or testamentary disposition taken place

before 20th December 2004. The Division Bench of this

court in a judgment reported in ILR 2010 KAR 1484

cited supra has clearly held that Section 6(1) will not

affect the alienation made prior to 20th December 2004.

Further in a judgment reported in AIR 2009 SC 2649 in

the case of SEKAR v/s GEETHA AND OTHERS, the

Apex Court clearly held that “Neither the 1956 Act nor

the 2005 Act seeks to reopen vesting of a right where

succession had already been taken place. The operation

of the said statute is no doubt prospective in nature.”

In view of the declaration of law by the Hon'ble Supreme

45

Court and also this Court, the plaintiffs are not entitled

for any share in the suit schedule property. Apart from

that the plaintiffs have not objected for alienating the

other joint family properties and they have failed to

prove that the suit schedule property was purchased by

the first defendant from and out of the nucleus of joint

family fund. Hence, point No.2 is also held against the

plaintiffs.

27. Insofar as the third issue is concerned, admittedly

the plaintiffs were residing along with defendants 1 to 3

in the same house. The plaintiffs are fully aware of

taking of loan from the LIC pledging the insurance

policy of R.Gopinath. Further they were also aware of

the alienation of the joint family properties for the legal

necessities. Even after construction of the house, some

of the ancestral properties were sold in the years 1975

and 1978 and it is difficult to accept the contention of

46

plaintiffs that they were not aware of the execution of

settlement deed in favour of R.Gopinath. The plaintiffs

are not illiterate ladies. They have toured India and

foreign countries also. Further, katha of the suit

schedule property stands in the name of R.Gopinath till

his death and after his death, the katha was transferred

in the name of the second defendant and she was

collecting rents from the tenants of OPH Road Property.

Hence it is difficult to believe that the plaintiffs were not

aware of the execution of registered settlement deed in

favour of R.Gopinath. The suit has been filed after

lapse of 27 years of execution of the registered

settlement deed. Under Article 109 of the Limitation

Act, the suit has to be filed within 12 years from the

date of alienee taking possession of the property.

Further, the amendment to the Hindu Succession Act

came into force on 30-7-1994 and within three years of

coming into force of the Act, they ought to have filed the

47

suit. In the instant case, suit has been filed on

12-12-1997 that is beyond three years. Hence, the suit

filed by the plaintiffs is barred by limitation. Further,

the plaintiffs themselves have admitted that they have

got one more sister and she was not made party to the

suit and also two children of the second defendant who

have also got share in the properties were not made

parties to the suit. Hence, the suit filed by the plaintiffs

is non-joinder of necessary parties. For all these

reasons, the appellants have to succeed in the appeal.

The Trial Court without considering all these aspects of

the matter mainly on the ground that there is no

transfer or alienation of the suit schedule property

permanently and in view of the amendment to the

Hindu Succession, the plaintiffs are entitled for their

share in the suit schedule property, without noticing the

cut off date fixed under proviso to Section 6(1) of the

amended Act of 2005 has decreed the suit and held that

48

the plaintiffs are entitled to their share in the suit

schedule property. When the plaintiffs claim that the

suit schedule property was purchased from the nucleus

of the joint family properties, it is for the plaintiffs to

prove the same. However, no document has been

produced and the Trial Court without critically

examining the evidence on record decreed the suit.

Further, the husband of the second defendant and

father of the third defendant was the sole co-parcener

and he is entitled to succeed the estate. Apart from

that, in view of the settlement deed, the plaintiffs have

no right in the suit schedule property, which was

purchased from and out of the salaried income of

R.Gopinath. These aspects of the matter have not been

considered by the Trial Court. The order passed by the

Trial Court cannot be sustained in the eye of law.

Further the judgments relied upon by the

49

respondents/plaintiffs are also not applicable to the

facts of the present case.

28. Accordingly we pass the following:

ORDER

The appeal is allowed. The judgment and decree

dated 12-3-2010 made in O.S.No.6294/1997 is set

aside. Accordingly, the suit filed by the plaintiffs is

dismissed.

Sd/-

JUDGE

Sd/- JUDGE

mpk/-*