(Prayer: This RSA is filed under Section 100 of CPC, 1908 praying to set aside the judgment and decree passed by the Learned Senior Civil Judge, Haveri in R.A.No.60/2011 dated:10.07.2012 by confirming the judgment and decree passed by the Civil Judge, Savanur in O.S. No.3/2009 dated 03/09/2011; cost of the this appeal and etc.)

Oral Judgment

1. Even though the appeal is at the stage of admission, as per the request of the learned counsel for the appellant, it is heard on merits.

2. This is the appeal filed by claimant/plaintiff under Section 100 C.P.C. praying for modification of the judgment and decree dated 10.07.2012 in R.A.No.60/2011 on the file of Senior Civil Judge, Haveri and for confirmation of the judgment and decree dated 03.09.2011 passed in O.S.No.3/2009 on the file of Civil Judge, Savanur.

3. Parties would be referred with their ranks, as they were before trial Court for the sake of convenience and clarity.

4. Plaintiffs have filed the suit before trial Court praying for partition and separate possession of their 1/4th share in suit schedule properties by metes and bounds and for such other reliefs.

5. After recording evidence and hearing both sides, the trial Court has decreed the suit and granted 1/4th share each to plaintiffs in suit schedule properties by metes and bounds.

6. Aggrieved by the said judgment and decree, both defendant Nos.1 and 2 have filed appeal in R.A.No.60/2011.

7. After hearing arguments, the First Appellate Court has modified the decree and granted 1/8th share each to the plaintiffs on the ground that the original propositus died in the year 1976 and thus, has granted 1/8th share based on notional partition and not considered the Hindu Succession Act (Amendment), 2005 (in short, ' the Act, 2005').

8. Aggrieved by the same, plaintiff No.1/appellant has preferred the present second appeal.

9. During pendency of this appeal, plaintiff No.1 died and her legal representatives are brought on record.

          2. The substantial question of law arose in this case is that:

          "Whether the share granted by the Appellate Court to appellant is in accordance with the principles of Hon'ble Apex Court in Vineeta Sharma Vs. Rakesh Sharma and others reported in (2020) 9 SCC 1?"

          3. Finding on this point is in negative for the following reasons:

          4. On perusal of the judgments passed by the Trial Court and Appellate Court and as per the submission of learned counsel for the legal representatives of appellant Sri M.H. Patil, the facts of the case are that plaintiff Nos.1 and 2 and defendant No.2 are sisters and defendant No.1 is their sister-in-law. One Basappa was the original propositus who died on 13.06.1976 leaving behind his wife, three daughters and a son. Later, his wife also died; then, the son of original propositus died leaving behind his wife as his legal heir (defendant No.1). It is an admitted fact that suit schedule properties bearing R.S.Nos.154/1A measuring 30 guntas and 154/1B measuring 5 acres, 9 guntas are the ancestral properties of father of plaintiffs and defendant No.2-Sri Basappa. He inherited those properties from his father. After his death, it is succeeded and inherited by plaintiffs and defendant No.2 and husband of defendant No.1- Shankarappa Mudagalla. After death of Shankarappa Mudagalla, his wife-defendant No.1 succeeded to his share.

          5. The Hon'ble Apex Court in Vineeta Sharma vs. Rakesh Sharma & Ors., (2020) 9 SCC 1 held in paragraph No.129 that a coparcener need not be alive on the date of commencement of 'the Act, 2005'. The relevant portion of said judgment reads as follows:

          "129. Resultantly, we answer the reference as under:

          (i) The provisions contained in substituted Section 6 of the Hindu Succession Act, 1956 confer status of coparcener on the daughter born before or after amendment in the same manner as son with same rights and liabilities.

          (ii) The rights can be claimed by the daughter born earlier with effect from 9.9.2005 with savings as provided in Section 6(1) as to the disposition or alienation, partition or testamentary disposition which had taken place before 20th day of December, 2004.

          (iii) Since the right in coparcenary is by birth, it is not necessary that father coparcener should be living as on 9.9.2005.

          (iv) The statutory fiction of partition created by proviso to Section 6 of the Hindu Succession Act, 1956 as originally enacted did not bring about the actual partition or disruption of coparcenary. The fiction was only for the purpose of ascertaining share of deceased coparcener when he was survived by a female heir, of ClassI as specified in the Schedule to the Act of 1956 or male relative of such female. The provisions of the substituted Section 6 are required to be given full effect. Notwithstanding that a preliminary decree has been passed the daughters are to be given share in coparcenary equal to that of a son in pending proceedings for final decree or in an appeal.

          (v) In view of the rigor of provisions of Explanation to Section 6(5) of the Act of 1956, a plea of oral partition cannot be accepted as the statutory recognised mode of partition effected by a deed of partition duly registered under the provisions of the Registration Act, 1908 or effected by a decree of a court. However, in exceptional cases where plea of oral partition is supported by public documents and partition is finally evinced in the same manner as if it had been affected by a decree of a court, it may be accepted. A plea of partition based on oral evidence alone cannot be accepted and to be rejected outrightly."

          6. Relying on the above said principle noted in the above citation and as plaintiffs and defendant No.2 who are daughters shall be considered as coparceners along with Shankarappa Mudagalla. The Act, 2005 is a beneficiary legislation and thus, as per the dictum of Vineeta Sharma's case, they are considered as coparceners. Hence, after death of the father and mother of plaintiff Nos.1, 2 & defendant No.2 and father-in-law of defendant No.1, plaintiff No.1, defendant No.2 and their brother Shankarappa Mudagalla would succeed to the properties and they were considered as a coparceners. Hence, all of them will get 1/4th share each in suit schedule properties by metes and bounds. However, the learned Appellate Judge has not considered this principle properly and has granted only 1/8th share each to plaintiffs, which is erroneous and it needs interference.

          7. Hence, this Court passes the following:

ORDER

          i) The appeal filed under Section 100 C.P.C. is allowed by modifying the judgment and decree dated 10.07.2012 in R.A.No.60/2001 on the file of Senior Civil Judge, Haveri and by conforming the judgment and decree dated 03.09.2011 in O.S.No.3/2009 on the file of Civil Judge, Savanur, that 1/4th share each in suit schedule properties is granted to appellant and also to respondent No.3.

          ii) Draw modified preliminary decree accordingly.