Monday 23 May 2022

Can the daughter claim partition of joint family property without bringing property given to her towards dowry in hotchpotch?

 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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