Such being the case, I am of the considered opinion
that a beneficiary of Section 6 of the Hindu Succession
Act cannot claim a benefit by way of partition as regard
to joint family properties without reference to the
properties already received by her at the time of
marriage as dowry/gift or otherwise. The said properties
at an undisputed point of time forming part of the joint
family property and the plaintiff having received it, the
same would also have to be made part of the partition
suit in order for the partition to be equitable hence,
those properties would also be amenable to partition.
Hence, the contention of Sri.A.Nagarajappa, learned
counsel for the petitioner that these properties were
independently purchased (Item no. 9 from Defendant
no. 9 and Item No. 10 from third parties) and would not
be amenable for partition is an issue that would have to
be decided after trial and cannot be adjudicated upon at
this stage. The assertions clearly and categorically made
is that the 1st defendant had executed nominal sale
deeds in respect of item Nos.9 and 10 properties. {Para 16}
17. It is for the parties to establish during the course of trial
as to whether the properties belonged to the joint family
or not. If the properties belong to the joint family, then
the same would be amenable for partition. If the
plaintiffs were able to establish that the properties had
been independently purchased out of their own funds
and the said properties are not joint family properties,
then the same would not be amenable for partition.
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
WRIT PETITION NO.39982 OF 2018 (GM-CPC)
SMT.HEMALATHA Vs SRI.VENKATESH
BEFORE
MR. JUSTICE SURAJ GOVINDARAJ
Dated: 16TH DAY OF FEBRUARY, 2022
1. The petitioner is before this Court seeking for the
following reliefs;
i) Issue a writ, order or direction in the nature of
certiorari in quashing the impugned order
passed by the City Civil Judge, Bengaluru
dated 08.08.2018 on I.A.No.7 in O.S.
No.4739/2014 vide Annexure-A.
ii) Grant such other relief/s as this Hon'ble Court
deems fit under the circumstances of the case,
in the interest of justice and equity.
2. The suit in O.S.No.4739/2014 has been filed by the
petitioner herein seeking for partition of the various
joint family properties described in the schedule thereto
claiming that as a female member of the joint family,
she had an interest in the said properties by virtue of
the amendment to Section 6 of the Hindu Succession
Act.
3. While the suit was pending, I.A.No.7 had been filed by
the 4th defendant the brother of the plaintiff before the
trial Court seeking for addition of two properties in the
schedule of the plaint as item Nos.9 and 10. Assertion
of the 4th defendant in the application was that
3.1. Item No.9 property measuring 1 acre situate in
Sy. No.17/2 of Pallerayanahalli Village, Amruthur
Hobli, Kunigal Taluk, Tumkur District had been
given as dowry at the time of marriage of the 1st
plaintiff - petitioner. Defendant No.1 had, at the
time of marriage of the 1st plaintiff, executed
nominal sale deed in favour of Channaiah - the
father-in-law of the 1st plaintiff and as such, the
said property was also amenable for partition
since the said item has been given as dowry at
the time of the marriage of the 1st plaintiff -
petitioner.
3.2. Item No.10, had been purchased by defendant
No.1 out of his own funds. He had executed a
power of attorney in favour of 1st plaintiff and her
husband at the time of her marriage and later on,
a sale deed came to be executed by the 1st
defendant in favour of the 1st plaintiff and her
husband on 15.05.2006. On these grounds, it was
contended that this is also a family property and
would be amenable for partition.
4. The said application came to be objected to by the
Plaintiffs contending that the property had been
purchased by the father-in-law of the 1st plaintiff -
Chennaiah out of his own funds from third parties much
before the marriage of the 1st plaintiff and that the
same is not a joint family property. If at all the 1st
defendant had any right in the property, the 1st
defendant ought to have filed a declaratory suit to
establish ownership. In respect of item No.10 property,
it was contended that this property had also been
purchased from the 3rd party at the market value and
therefore, could not be amenable for partition.
5. The Trial Court, after hearing the arguments of the
counsels, allowed the application though by way of
cryptic order.
6. Sri.A.Nagarajappa, learned counsel for the petitioner
would submit that there are no reasons which had been
given by the Trial Court for allowing the application for
amendment and therefore, such order is required to be
set-aside. He reiterates the submissions made in the
objection to the application for amendment and again,
submits that item No.9 has been purchased by the 1st
plaintiff's father-in-law and item No.10 has been
purchased by the husband of the 1st plaintiff out of their
own funds and therefore, they are not amenable for
partition.
7. Sri.Prithvi Raj B.N., learned counsel for respondent
No.4, who was defendant No.4 in the Trial Court,
reiterates that the properties covered item Nos.9 and
10, which was sought to be introduced by way of
amendment, were given as dowry and therefore, in a
suit for partition, the said properties would also be
amenable for partition. He supports the order of the
learned Trial Court and states that the said order need
not be interfered with.
8. Sri.K.Venkateshaiah, learned counsel for respondent
No.5, who was plaintiff No.2 in the Trial Court, adopts
the arguments of Sri.A.Nagarajappa, learned counsel for
the petitioner.
9. None appears for respondent Nos.1 to 3.
10. Heard Sri.A.Nagarajappa, learned counsel for the
petitioner and Sri.Prithvi Raj B.N, learned counsel for
respondent No.4 and Sri.K.Venkateshaiah, learned
counsel for respondent No.5.
11. The above petition gives rise to certain interesting
questions, which read as under;
11.1. Whether in a suit for partition, the properties
which had been given as dowry or otherwise
at the time of marriage of the daughter
plaintiff, who is claiming a right of partition
under Section 6 of the Hindu Succession Act,
would be amenable for partition and the
same would be included in a suit for
partition?
11.2. Whether the impugned order suffers from
any legal infirmity requiring this Court to
interfere with the said order?
12. Answer to Point No.1: Whether in a suit for
partition, the properties which had been given as
dowry or otherwise at the time of marriage of the
daughter plaintiff, who is claiming a right of
partition under Section 6 of the Hindu Succession
Act, would be amenable for partition and the same
would be included in a suit for partition?
13. The contention of defendant No.4 - applicant before the
Trial Court is that item Nos.9 and 10 properties, which
were sought to be added to the plaint by way of an
amendment were given as dowry to the family of the
1st plaintiff during the time of her marriage. At the
request of in-laws of the 1st plaintiff, a nominal sale
deed was executed in favour of the father-in-law of the
1st plaintiff. As regards item Nos.10 a nominal sale
deed was executed in favour of the husband of the 1st
plaintiff.
14. The suit, admittedly, has been filed for partition
claiming a right in the joint family properties by virtue
of the amendment to Section 6 of the Hindu Succession
Act. The said amendment being a salutary one having
been brought in to provide equal rights to a woman in
the joint family properties.
15. In the present case, interestingly the claim of the 4th
defendant is that certain joint family properties had
been given to the 1st plaintiff and her family members
as dowry during her marriage. That is to say that a
portion of the joint family property was made available
for plaintiff No.1 as either dowry/gift or share in the
property at the time of marriage. This court at present
is not concerned with the offences of Dowry if any,
there being no complaint in regard thereto.
16. Such being the case, I am of the considered opinion
that a beneficiary of Section 6 of the Hindu Succession
Act cannot claim a benefit by way of partition as regard
to joint family properties without reference to the
properties already received by her at the time of
marriage as dowry/gift or otherwise. The said properties
at an undisputed point of time forming part of the joint
family property and the plaintiff having received it, the
same would also have to be made part of the partition
suit in order for the partition to be equitable hence,
those properties would also be amenable to partition.
Hence, the contention of Sri.A.Nagarajappa, learned
counsel for the petitioner that these properties were
independently purchased (Item no. 9 from Defendant
no. 9 and Item No. 10 from third parties) and would not
be amenable for partition is an issue that would have to
be decided after trial and cannot be adjudicated upon at
this stage. The assertions clearly and categorically made
is that the 1st defendant had executed nominal sale
deeds in respect of item Nos.9 and 10 properties.
17. It is for the parties to establish during the course of trial
as to whether the properties belonged to the joint family
or not. If the properties belong to the joint family, then
the same would be amenable for partition. If the
plaintiffs were able to establish that the properties had
been independently purchased out of their own funds
and the said properties are not joint family properties,
then the same would not be amenable for partition.
18. This aspect would have to be ascertained by the Trial
Court only after trial. Hence, I answer Point No.1 by
holding that in a suit for partition, the properties which
had been given as dowry or otherwise at the time of
marriage of the daughter plaintiff, claiming a right of
partition under Section 6 of the Hindu Succession Act,
would be amenable for partition and the same would
have to be included in a suit for partition.
19. Answer to Point No.2: Whether the impugned
order suffers from any legal infirmity requiring
this Court to interfere with the said order?
20. As observed above the order of the Trial Court could
have been better worded and could have provided
better reasoning, however in view of the discussion
above the ultimate order which is passed by the trial
court is proper and correct requiring no interference at
the hands of this Court.
21. In view of the above, this writ petition stands dismissed.
22. In view of dismissal of the writ petition, all pending
interlocutory applications stand dismissed and interim
orders stand discharged.
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