IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
Civil Appeal No(s). 414/2008
C.V.YOGENDRANATH Appellant(s)
VERSUS
C.V.PALAKSHAN & ORS. Respondent(s)
O R D E R
We have heard learned counsel for the appellant.
Notice has been issued to the all the respondents but no
one is present on behalf of respondent Nos. 1 to 10 and
13 to 16. Ms. Neetic Sharma, learned counsel is present
on behalf of respondent Nos. 11 and 12.
This is an appeal filed by the appellant (defendant
NO.1) questioning the judgment dated 12.09.2005 of the
High Court in Regular First Appeal No. 964 of 2000. The
High Court by its judgment partly allowed the Regular
First Appeal. Aggrieved by the said judgment, defendant
No.1 has come up in this appeal.
Brief facts necessary for deciding this appeal are:
The parties shall be referred to hereinafter as
described in the plaint. The plaintiff and defendant
No.1 were sons of C.S. Veerappa who died on 29.11.1959.
The mother of the plaintiff and defendant No.1 - Smt.
Shanthaveeramma also died on 01.07.1992. The other
defendants were sons, daughters and grandchildren of C.S.
Veerappa. In the lifetime of C.S. Verrappa, a partition
1
took place between him and his children. That partition
was registered on 25.06.1958. In Survey No. 34, 22 cents
were allotted to plaintiff and remaining 45 cents were
allotted to defendant No.1.
Defendant No.1, in the lifetime of his father, sold
an extent of 45 cents allotted to him in Survey No. 34 in
favour of C.S. Veerappa and the plaintiff also sold an
extent of 22 cents which came into his share in partition
in Survey No.34 in favour of defendant No.1.
C.S. Veerappa died on 29.11.1959. Thereafter, a
registered release deed dated 10.02.1960 was executed by
the plaintiff in favour of his mother - Smt.
Shanthaveeramma and a release deed was also executed by
defendant No.1 and sisters in favour of their mother.
The plaintiff purchased the property bearing Survey No.
106/1 on 26.05.1977 from Smt. Shanthaveeramma � the
mother of the plaintiff. Defendant No.1 also purchased
Schedule �B� property from Smt. Shanthaveeramma for
Rs.20,000/- on 04.01.1983. Another sale deed was
executed by Smt. Shanthaveeramma in favour of defendant
No.1 on 05.02.1983 with regard to Schedule �A� property
for consideration of Rs.47,000/-. Smt. Shanthaveeramma
had also executed Will on 15.07.1985 with regard to her
jewellery, movables and cash in favour of the defendants.
After the death of Smt. Shanthaveeramma i.e.
01.07.1992, the plaintiff filed Original Suit NO. 27/94.
In the suit filed by the plaintiff, there were properties
2
at Schedule �A� and �B�. Schedule �A� (bearing Survey
No. 34/2 measuring 0.37 acres), Schedule �B� (bearing
Survey No. 57/2 measuring 0.25 acres), Schedule �C�
contains movables, Schedule �D� contains Fixed Deposit
receipts and silver jewellery and articles of silver and
Schedule �E� contains gold jewellery.
The plaintiff case in the plaint is that the
plaintiff mother was keeping ill and sale deeds dated
04.01.1983 and 05.02.1983 executed in favour of defendant
No.1 were sham transaction. He further pleaded that the
plaintiff has share in all the plaint Schedule
properties. In the suit, the plaintiff prayed for the
following reliefs:
1) For a declaration that the plaint schedule properties
are the family ancestral properties of the plaintiff and
defendants 1 to 10 and the plaintiff is entitled for �
share in the plaint schedule properties.
2) For a further declaration that the alleged Will dated
15.7.1985 is a sham and void document incorporating false
recitals and the rank forged document and not binding
over to the plaintiff.
3) To further declare that the alleged sale deeds dated
4.1.1983 and 5.2.1983 are sham and void documents and not
binding over to the plaintiff.
4) For a direction for partition of the suit schedule
properties into 5 equal shares by metes and bound and
also allotment of one such share to the plaintiff.
3
5) Refer the preliminary decree to the Dy. Commissioner,
Kodagu, Madikeri under Section 54 C.P.C. for partition of
the plaint A and B Schedule properties into 5 equal
shares by metes and bounds and also allotment of share to
the plaintiff.
6) Allot � share to the plaintiff in plaint �C�, �D� and
�E� schedule properties and delivery of the same to the
plaintiff through the process of the court.
7) For a direction to an enquiry under Order 20 Rule 12
and 18 of C.P.C., 1908.
8) To render accounts.
9) Award cost of the suit and grant such other and
further suitable reliefs be granted in favour of the
plaintiff under the circumstances of the case in the
interest of justice and equity.
A written statement was filed by defendant No.1 and
other defendants. Defendant No.1, in his written
statement, has stated that sale deeds dated 04.01.1983
and 05.02.1983 were legal documents executed by Smt.
Shanthaveeramma for a valuable consideration. The Will
dated 15.07.1985 was also validly executed by Smt.
Shanthaveeramma. The allegation in the plaint that she
was ill had been denied and it was pleaded that she was
quite hale and hearty and was in a fit mental condition.
It has further been pleaded that the plaintiff under
Registered Deed of Release dated 10.02.1960 relinquished
all his rights to claim, title and interest in favour of
4
late Smt. Shanthaveeramma, hence, the plaintiff had no
right to claim, title and interest in respect of Schedule
�A� and Schedule �B� properties.
It is further pleaded that the other two sons
including defendant No.1 also relinquished their right to
claim, title and interest in respect of Schedule �A� and
�B� properties in favour of Smt. Shanthaveeramma under
registered Release Deed dated 09.05.1963. The daughters
also executed registered Release Deed dated 24.12.1973.
The parties led oral and documentary evidence. The Trial
Court vide its judgment and order dated 13.10.2000
dismissed the suit of the plaintiff.
Aggrieved by the said judgment, the appeal was filed
before the High Court. The High Court by its judgment
dated 12.09.2005 partly allowed the Regular First
Appeal.
Defendant NO.1, aggrieved by the said judgment, has
come up in this appeal.
Shri S.N. Bhatt, learned counsel for the appellant
contended that the High Court committed an error in
partly decreeing the suit to the extent of 1/6 share
whereas the plaintiff had no share in Schedule �A� and
�B� properties and further, by Will the other scheduled
properties were bequeathed in favour of the other
defendants to which the plaintiff has no right. He
submits that the plaintiff having relinquished his right
in all properties by registered Release Deed dated
5
10.02.1960, he could not have claimed any further share
in any of the scheduled property. The challenge to Will
executed by the mother was unfounded. He submits that
the High Court committed an error in relying on Sections
6 and 8 of the Hindu Succession Act, 1955 (for short
�the Act�) by holding that the plaintiff will also get a
share in notional partition which will be presumed to
have taken place just before the death of C.S. Veerappa.
He submits that the High Court erred in not referring to
the Release Deed dated 10.02.1960 executed by the
plaintiff. Due to this Release Deed, the rights of the
plaintiff, if any, are extinguished by the release in
favour of the mother. There were no grounds to challenge
the sale deed executed in favour of defendant NO.1.
Further, the plaintiff having himself purchased one
property from the mother in the year 1977, he was well
aware that she was the owner of the scheduled properties.
We have considered the submissions made by learned
counsel for the appellant and perused the record.
From the facts, as noted above, there was no dispute
between the parties that the partition was effected on
25.06.1958 by Registered Deed between C.S. Veerappa, the
plaintiff, defendant No.1, third son and the daughter.
After the partition, the share was allocated to the
plaintiff and defendant No.1, defendant NO.1 sold to the
extent of 45 cents in favour of C.S. Veerappa and the
plaintiff sold to the extent of 22 cents in favour of
6
defendant NO.1.
After the death of C.S. Veerappa i.e. 29.11.1959, the
plaintiff executed registered release deed in favour of
the Smt. Shanthaveeramma on 10.02.1960. The Release Deed
has been brought on record as Exhibit D-4 as Annexure P-
1. It shall be useful to extract following portion from
the Release Deed which reads as follows:
�We, all of us, in together have fixed the value
of immovable property i.e. House in Madikeri town,
movable properties and money lending papers.
Since, it is impossible to take out one portion
from these properties; I am releasing all my
rights over the property by this deed on receiving
the value of my share in the said property.
I have received the aforesaid Rs.10,500/- (Rupees
ten thousand five hundred only) in presence of
Sub-Registrar, at the time of registration of this
deed. Accordingly, consideration of this release
deed is paid by you all. There is no balance due.
I am retiring and releasing the legal rights from
my share in the properties and money lending
transactions which were in possession of aforesaid
Sr. Late C.S. Veerappa. From now onwards I will
have no rights over the properties and money
lending transactions of Sr. C.S. Veerappa.
We have came to a conclusion that that the
approximate value of schedule property mentioned
here under belonging to our father is Rs.64,500/-
(Rupees Sixty four thousand five hundred only).
The hand loan and other loan made by my father
should be cleared, out of the value of said
property. Accordingly one portion of the loan
amount of Rs.63,000/- (Sixty three thousand rupees
only) works out to be Rs.10,500/- (Rupees ten
thousand five hundred) only, which is my share.
As explained above I have set off my share on the
said amount.
Now onwards I will have no right over my father�s
share in the property. The immovable properties
in my father�s share are:
After the partition of the house situated at the
center of 0-01 �, Sy. No. 106/1, Municipality
block No.5, Madikeri; a newly constructed house
situated in the land belonging to Karnangeri
village at 0-42 cents, Sy. No. 34, Municipality
Block No. 24, Madikeri and another house adjacent
7
to this house at Sy. No. 57, belonging to the same
village; one Asmin car worth Rs.6,000/- (Six
thousand only); one Revolver, one old typewriter,
one Godrej Steel Stel and one Battery Recharger
and money lending papers. Value of the Lease Deed
executed by Adem Saheb, Madikeri in favour of late
C.S. Veerappa Rs.2,500/- (Two Thousand five
hundred only); trinote executed by the said Adem
Saheb Rs.1,000/- (one thousand only) and fixed
deposit of Rs.14,300/- (Fourteen thousand) only at
The Canara Bank Co-operation Bank in the name of
said Veerappa. In total the present market value
of the property share of Veerappa is Rs.64,500/-
(Sixty four thousand five hundred only).
In case, necessity of my signature arises in
future in respect of any transactions regarding my
father�s property, I will assure of providing all
my co-operation. Accordingly, an amount of
Rs.10,500/- in respect of my share in my father�s
share is received in cash and now onwards I will
have no right over the said property.
Accordingly, I am executing this Release Deed.
SCHEDULE PROPERTIES
1. Tile roofed house in 0-01 � cents, Sy. No.
100/1, Municipality Block No.5, Madikeri.
2. all constructions of the new house in relayed
area, 0-42 cents, Sy. No. 34, block 24.
3. Rakeem land at the center of houses, 0-25
cents, Sy. No. 57, Block No.24.
4. Asteen Car bearing No. MYV233; 1 revolver, 1
typewriter and Godrej Selt and 1 Battery
recharger.
Registered as document No.63 of 1960 of Book 1,
volume 158, page 55/60; Registration fee 37-00 and
charge extra 2-1 in (39-OO) Sub-registrar.�
The Trial Court dismissed the suit relying on Section
14 of the Act and opined that by virtue of Section 14 of
the Act, the mother - Smt. Shanthaveeramma became the
sole owner. The High Court, in this context, referred to
Sections 6 and 8 of the Act. It is useful to extract
following observation of the High Court from its
judgment:
�In order to ascertain the share of heirs in the
property of a deceased co-parcener, it is necessary
in the very nature of things and as the very first
8
step, to ascertain the share of the deceased in the
co-parcenery property. For, by doing that alone
can one determine the extent of the claimant�s
share. Explanation 1 to Section 6 of the Hindu
Succession Act resorts to the simple expedient,
undoubtedly fictional, that the interest of a Hindu
Mitakshara co-parcener shall be deemed to be the
share in the property that would have been allotted
to him if a partition of the property had taken
place immediately before his death�.. All the
consequences which flow from a real partition have
to be logically worked out which means that the
share of the heirs must be ascertained on the basis
that they had separated from one another and had
received a share in the partition which had taken
place during the life time of the deceased. The
allotment of a share is not a processual step
devised merely for the purpose of working out some
other conclusion.�
We are of the view that in so far as the view of the
High Court that Section 14 was relied upon by Trial Court
to hold Smt. Shanthaveeramma to be the sole owner was
not applicable, is correct. In so far as the observation
of the High Court that the interest in Mitakshara School
of Coparcenery shall be deemed to be a share of the
property that would have been allotted to him, had the
partition would have taken place immediately before his
death. The observations are based on Section 6 of the
Act to which no exception can be taken.
In the property, which was with C.S. Veerappa who
died on 29.11.1959, a notional partition can be imagined
in which the plaintiff would receive share. What High
Court missed is that the plaintiff himself by registered
release deed dated 10.02.1960 has released all his rights
in the Schedule �A� and �B� properties and other
properties in favour of his mother. After execution of
9
the release deed by which relinquishing all his rights in
favour of the mother, the right of the plaintiff, which
he would have got on the basis of the partition as
observed by the High Court, shall not continue with him
and shall vest in the mother and thereafter it was the
mother who became the owner of the property. The fact
that on 26.05.1977 the plaintiff himself purchased
property bearing Survey No. 106/1 from the mother itself
makes it clear that it was the mother who was the owner
of the property. Defendant No. 1 has also, by two sale
deeds dated 04.01.1983 and 05.02.1983, purchased the
property from the mother on a valuable consideration.
The sale deeds have not been held to be invalid on any
reason. The plaintiff having relinquished his land by
virtue of release deed, the High Court committed an error
in holding that he shall be entitled to 1/6 share in the
Schedule �A� and �B� properties. With regard to other
Schedule �C� to �E� properties, the Will was executed by
the mother on 15.07.1985. The High Court has not
returned any finding that the Will was not valid. There
being Will executed by Shanthaveeramma with regard to
Schedule �C� to �E� properties, the beneficiaries under
Will shall take their right as per the Will. The High
Court came to the finding that the plaintiff was entitled
to share of the father after his death which was held by
Smt. Shanthaveeramma and that he will have 1/6th share in
the other scheduled properties. The High Court committed
10
an error in holding that Will in favour of defendant No.
1 by Smt. Shanthaveeramma is not binding to the extent
of the plaintiff�s right. The plaintiff having
relinquished his right, there was no question of the Will
not being binding on the plaintiff. Whatever were
bequeathed by the mother by Will were properties in
Schedule �C� to �E� which were her own property. She was
fully competent to bequeath the movables belonging to
her.
In view of the aforesaid conclusion, we are of the
view that the High Court committed an error in partly
allowing the appeal filed by the plaintiff. In result,
the judgment and order of the High Court is set aside and
that of Trial Court is restored.
The civil appeal is allowed accordingly.
� ....................J.
[ ASHOK BHUSHAN ]
� ....................J.
[ K.M. JOSEPH ]
NEW DELHI;
FEBRUARY 13, 2019.
11
ITEM NO.101 COURT NO.11 SECTION IV-A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s). 414/2008
C.V.YOGENDRANATH Appellant(s)
VERSUS
C.V.PALAKSHAN & ORS. Respondent(s)
Date : 13-02-2019 This appeal was called on for hearing today.
CORAM : HON'BLE MR. JUSTICE ASHOK BHUSHAN
HON'BLE MR. JUSTICE K.M. JOSEPH
For Appellant(s) Mr. S. N. Bhat, AOR
Mr. Priyank Jain, Adv.
Mr. D.P. Chaturvedi, Adv.
For Respondent(s) Ms. Neetic Sharma, Adv.
For M/S. M. V. Kini & Associates
UPON hearing the counsel the Court made the following
O R D E R
The civil appeal is allowed in terms of the signed order.
(MEENAKSHI KOHLI) (RENU KAPOOR)
COURT MASTER COURT MASTER
[Signed order is placed on the file]
12
CIVIL APPELLATE JURISDICTION
Civil Appeal No(s). 414/2008
C.V.YOGENDRANATH Appellant(s)
VERSUS
C.V.PALAKSHAN & ORS. Respondent(s)
O R D E R
We have heard learned counsel for the appellant.
Notice has been issued to the all the respondents but no
one is present on behalf of respondent Nos. 1 to 10 and
13 to 16. Ms. Neetic Sharma, learned counsel is present
on behalf of respondent Nos. 11 and 12.
This is an appeal filed by the appellant (defendant
NO.1) questioning the judgment dated 12.09.2005 of the
High Court in Regular First Appeal No. 964 of 2000. The
High Court by its judgment partly allowed the Regular
First Appeal. Aggrieved by the said judgment, defendant
No.1 has come up in this appeal.
Brief facts necessary for deciding this appeal are:
The parties shall be referred to hereinafter as
described in the plaint. The plaintiff and defendant
No.1 were sons of C.S. Veerappa who died on 29.11.1959.
The mother of the plaintiff and defendant No.1 - Smt.
Shanthaveeramma also died on 01.07.1992. The other
defendants were sons, daughters and grandchildren of C.S.
Veerappa. In the lifetime of C.S. Verrappa, a partition
1
took place between him and his children. That partition
was registered on 25.06.1958. In Survey No. 34, 22 cents
were allotted to plaintiff and remaining 45 cents were
allotted to defendant No.1.
Defendant No.1, in the lifetime of his father, sold
an extent of 45 cents allotted to him in Survey No. 34 in
favour of C.S. Veerappa and the plaintiff also sold an
extent of 22 cents which came into his share in partition
in Survey No.34 in favour of defendant No.1.
C.S. Veerappa died on 29.11.1959. Thereafter, a
registered release deed dated 10.02.1960 was executed by
the plaintiff in favour of his mother - Smt.
Shanthaveeramma and a release deed was also executed by
defendant No.1 and sisters in favour of their mother.
The plaintiff purchased the property bearing Survey No.
106/1 on 26.05.1977 from Smt. Shanthaveeramma � the
mother of the plaintiff. Defendant No.1 also purchased
Schedule �B� property from Smt. Shanthaveeramma for
Rs.20,000/- on 04.01.1983. Another sale deed was
executed by Smt. Shanthaveeramma in favour of defendant
No.1 on 05.02.1983 with regard to Schedule �A� property
for consideration of Rs.47,000/-. Smt. Shanthaveeramma
had also executed Will on 15.07.1985 with regard to her
jewellery, movables and cash in favour of the defendants.
After the death of Smt. Shanthaveeramma i.e.
01.07.1992, the plaintiff filed Original Suit NO. 27/94.
In the suit filed by the plaintiff, there were properties
2
at Schedule �A� and �B�. Schedule �A� (bearing Survey
No. 34/2 measuring 0.37 acres), Schedule �B� (bearing
Survey No. 57/2 measuring 0.25 acres), Schedule �C�
contains movables, Schedule �D� contains Fixed Deposit
receipts and silver jewellery and articles of silver and
Schedule �E� contains gold jewellery.
The plaintiff case in the plaint is that the
plaintiff mother was keeping ill and sale deeds dated
04.01.1983 and 05.02.1983 executed in favour of defendant
No.1 were sham transaction. He further pleaded that the
plaintiff has share in all the plaint Schedule
properties. In the suit, the plaintiff prayed for the
following reliefs:
1) For a declaration that the plaint schedule properties
are the family ancestral properties of the plaintiff and
defendants 1 to 10 and the plaintiff is entitled for �
share in the plaint schedule properties.
2) For a further declaration that the alleged Will dated
15.7.1985 is a sham and void document incorporating false
recitals and the rank forged document and not binding
over to the plaintiff.
3) To further declare that the alleged sale deeds dated
4.1.1983 and 5.2.1983 are sham and void documents and not
binding over to the plaintiff.
4) For a direction for partition of the suit schedule
properties into 5 equal shares by metes and bound and
also allotment of one such share to the plaintiff.
3
5) Refer the preliminary decree to the Dy. Commissioner,
Kodagu, Madikeri under Section 54 C.P.C. for partition of
the plaint A and B Schedule properties into 5 equal
shares by metes and bounds and also allotment of share to
the plaintiff.
6) Allot � share to the plaintiff in plaint �C�, �D� and
�E� schedule properties and delivery of the same to the
plaintiff through the process of the court.
7) For a direction to an enquiry under Order 20 Rule 12
and 18 of C.P.C., 1908.
8) To render accounts.
9) Award cost of the suit and grant such other and
further suitable reliefs be granted in favour of the
plaintiff under the circumstances of the case in the
interest of justice and equity.
A written statement was filed by defendant No.1 and
other defendants. Defendant No.1, in his written
statement, has stated that sale deeds dated 04.01.1983
and 05.02.1983 were legal documents executed by Smt.
Shanthaveeramma for a valuable consideration. The Will
dated 15.07.1985 was also validly executed by Smt.
Shanthaveeramma. The allegation in the plaint that she
was ill had been denied and it was pleaded that she was
quite hale and hearty and was in a fit mental condition.
It has further been pleaded that the plaintiff under
Registered Deed of Release dated 10.02.1960 relinquished
all his rights to claim, title and interest in favour of
4
late Smt. Shanthaveeramma, hence, the plaintiff had no
right to claim, title and interest in respect of Schedule
�A� and Schedule �B� properties.
It is further pleaded that the other two sons
including defendant No.1 also relinquished their right to
claim, title and interest in respect of Schedule �A� and
�B� properties in favour of Smt. Shanthaveeramma under
registered Release Deed dated 09.05.1963. The daughters
also executed registered Release Deed dated 24.12.1973.
The parties led oral and documentary evidence. The Trial
Court vide its judgment and order dated 13.10.2000
dismissed the suit of the plaintiff.
Aggrieved by the said judgment, the appeal was filed
before the High Court. The High Court by its judgment
dated 12.09.2005 partly allowed the Regular First
Appeal.
Defendant NO.1, aggrieved by the said judgment, has
come up in this appeal.
Shri S.N. Bhatt, learned counsel for the appellant
contended that the High Court committed an error in
partly decreeing the suit to the extent of 1/6 share
whereas the plaintiff had no share in Schedule �A� and
�B� properties and further, by Will the other scheduled
properties were bequeathed in favour of the other
defendants to which the plaintiff has no right. He
submits that the plaintiff having relinquished his right
in all properties by registered Release Deed dated
5
10.02.1960, he could not have claimed any further share
in any of the scheduled property. The challenge to Will
executed by the mother was unfounded. He submits that
the High Court committed an error in relying on Sections
6 and 8 of the Hindu Succession Act, 1955 (for short
�the Act�) by holding that the plaintiff will also get a
share in notional partition which will be presumed to
have taken place just before the death of C.S. Veerappa.
He submits that the High Court erred in not referring to
the Release Deed dated 10.02.1960 executed by the
plaintiff. Due to this Release Deed, the rights of the
plaintiff, if any, are extinguished by the release in
favour of the mother. There were no grounds to challenge
the sale deed executed in favour of defendant NO.1.
Further, the plaintiff having himself purchased one
property from the mother in the year 1977, he was well
aware that she was the owner of the scheduled properties.
We have considered the submissions made by learned
counsel for the appellant and perused the record.
From the facts, as noted above, there was no dispute
between the parties that the partition was effected on
25.06.1958 by Registered Deed between C.S. Veerappa, the
plaintiff, defendant No.1, third son and the daughter.
After the partition, the share was allocated to the
plaintiff and defendant No.1, defendant NO.1 sold to the
extent of 45 cents in favour of C.S. Veerappa and the
plaintiff sold to the extent of 22 cents in favour of
6
defendant NO.1.
After the death of C.S. Veerappa i.e. 29.11.1959, the
plaintiff executed registered release deed in favour of
the Smt. Shanthaveeramma on 10.02.1960. The Release Deed
has been brought on record as Exhibit D-4 as Annexure P-
1. It shall be useful to extract following portion from
the Release Deed which reads as follows:
�We, all of us, in together have fixed the value
of immovable property i.e. House in Madikeri town,
movable properties and money lending papers.
Since, it is impossible to take out one portion
from these properties; I am releasing all my
rights over the property by this deed on receiving
the value of my share in the said property.
I have received the aforesaid Rs.10,500/- (Rupees
ten thousand five hundred only) in presence of
Sub-Registrar, at the time of registration of this
deed. Accordingly, consideration of this release
deed is paid by you all. There is no balance due.
I am retiring and releasing the legal rights from
my share in the properties and money lending
transactions which were in possession of aforesaid
Sr. Late C.S. Veerappa. From now onwards I will
have no rights over the properties and money
lending transactions of Sr. C.S. Veerappa.
We have came to a conclusion that that the
approximate value of schedule property mentioned
here under belonging to our father is Rs.64,500/-
(Rupees Sixty four thousand five hundred only).
The hand loan and other loan made by my father
should be cleared, out of the value of said
property. Accordingly one portion of the loan
amount of Rs.63,000/- (Sixty three thousand rupees
only) works out to be Rs.10,500/- (Rupees ten
thousand five hundred) only, which is my share.
As explained above I have set off my share on the
said amount.
Now onwards I will have no right over my father�s
share in the property. The immovable properties
in my father�s share are:
After the partition of the house situated at the
center of 0-01 �, Sy. No. 106/1, Municipality
block No.5, Madikeri; a newly constructed house
situated in the land belonging to Karnangeri
village at 0-42 cents, Sy. No. 34, Municipality
Block No. 24, Madikeri and another house adjacent
7
to this house at Sy. No. 57, belonging to the same
village; one Asmin car worth Rs.6,000/- (Six
thousand only); one Revolver, one old typewriter,
one Godrej Steel Stel and one Battery Recharger
and money lending papers. Value of the Lease Deed
executed by Adem Saheb, Madikeri in favour of late
C.S. Veerappa Rs.2,500/- (Two Thousand five
hundred only); trinote executed by the said Adem
Saheb Rs.1,000/- (one thousand only) and fixed
deposit of Rs.14,300/- (Fourteen thousand) only at
The Canara Bank Co-operation Bank in the name of
said Veerappa. In total the present market value
of the property share of Veerappa is Rs.64,500/-
(Sixty four thousand five hundred only).
In case, necessity of my signature arises in
future in respect of any transactions regarding my
father�s property, I will assure of providing all
my co-operation. Accordingly, an amount of
Rs.10,500/- in respect of my share in my father�s
share is received in cash and now onwards I will
have no right over the said property.
Accordingly, I am executing this Release Deed.
SCHEDULE PROPERTIES
1. Tile roofed house in 0-01 � cents, Sy. No.
100/1, Municipality Block No.5, Madikeri.
2. all constructions of the new house in relayed
area, 0-42 cents, Sy. No. 34, block 24.
3. Rakeem land at the center of houses, 0-25
cents, Sy. No. 57, Block No.24.
4. Asteen Car bearing No. MYV233; 1 revolver, 1
typewriter and Godrej Selt and 1 Battery
recharger.
Registered as document No.63 of 1960 of Book 1,
volume 158, page 55/60; Registration fee 37-00 and
charge extra 2-1 in (39-OO) Sub-registrar.�
The Trial Court dismissed the suit relying on Section
14 of the Act and opined that by virtue of Section 14 of
the Act, the mother - Smt. Shanthaveeramma became the
sole owner. The High Court, in this context, referred to
Sections 6 and 8 of the Act. It is useful to extract
following observation of the High Court from its
judgment:
�In order to ascertain the share of heirs in the
property of a deceased co-parcener, it is necessary
in the very nature of things and as the very first
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step, to ascertain the share of the deceased in the
co-parcenery property. For, by doing that alone
can one determine the extent of the claimant�s
share. Explanation 1 to Section 6 of the Hindu
Succession Act resorts to the simple expedient,
undoubtedly fictional, that the interest of a Hindu
Mitakshara co-parcener shall be deemed to be the
share in the property that would have been allotted
to him if a partition of the property had taken
place immediately before his death�.. All the
consequences which flow from a real partition have
to be logically worked out which means that the
share of the heirs must be ascertained on the basis
that they had separated from one another and had
received a share in the partition which had taken
place during the life time of the deceased. The
allotment of a share is not a processual step
devised merely for the purpose of working out some
other conclusion.�
We are of the view that in so far as the view of the
High Court that Section 14 was relied upon by Trial Court
to hold Smt. Shanthaveeramma to be the sole owner was
not applicable, is correct. In so far as the observation
of the High Court that the interest in Mitakshara School
of Coparcenery shall be deemed to be a share of the
property that would have been allotted to him, had the
partition would have taken place immediately before his
death. The observations are based on Section 6 of the
Act to which no exception can be taken.
In the property, which was with C.S. Veerappa who
died on 29.11.1959, a notional partition can be imagined
in which the plaintiff would receive share. What High
Court missed is that the plaintiff himself by registered
release deed dated 10.02.1960 has released all his rights
in the Schedule �A� and �B� properties and other
properties in favour of his mother. After execution of
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the release deed by which relinquishing all his rights in
favour of the mother, the right of the plaintiff, which
he would have got on the basis of the partition as
observed by the High Court, shall not continue with him
and shall vest in the mother and thereafter it was the
mother who became the owner of the property. The fact
that on 26.05.1977 the plaintiff himself purchased
property bearing Survey No. 106/1 from the mother itself
makes it clear that it was the mother who was the owner
of the property. Defendant No. 1 has also, by two sale
deeds dated 04.01.1983 and 05.02.1983, purchased the
property from the mother on a valuable consideration.
The sale deeds have not been held to be invalid on any
reason. The plaintiff having relinquished his land by
virtue of release deed, the High Court committed an error
in holding that he shall be entitled to 1/6 share in the
Schedule �A� and �B� properties. With regard to other
Schedule �C� to �E� properties, the Will was executed by
the mother on 15.07.1985. The High Court has not
returned any finding that the Will was not valid. There
being Will executed by Shanthaveeramma with regard to
Schedule �C� to �E� properties, the beneficiaries under
Will shall take their right as per the Will. The High
Court came to the finding that the plaintiff was entitled
to share of the father after his death which was held by
Smt. Shanthaveeramma and that he will have 1/6th share in
the other scheduled properties. The High Court committed
10
an error in holding that Will in favour of defendant No.
1 by Smt. Shanthaveeramma is not binding to the extent
of the plaintiff�s right. The plaintiff having
relinquished his right, there was no question of the Will
not being binding on the plaintiff. Whatever were
bequeathed by the mother by Will were properties in
Schedule �C� to �E� which were her own property. She was
fully competent to bequeath the movables belonging to
her.
In view of the aforesaid conclusion, we are of the
view that the High Court committed an error in partly
allowing the appeal filed by the plaintiff. In result,
the judgment and order of the High Court is set aside and
that of Trial Court is restored.
The civil appeal is allowed accordingly.
� ....................J.
[ ASHOK BHUSHAN ]
� ....................J.
[ K.M. JOSEPH ]
NEW DELHI;
FEBRUARY 13, 2019.
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ITEM NO.101 COURT NO.11 SECTION IV-A
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Civil Appeal No(s). 414/2008
C.V.YOGENDRANATH Appellant(s)
VERSUS
C.V.PALAKSHAN & ORS. Respondent(s)
Date : 13-02-2019 This appeal was called on for hearing today.
CORAM : HON'BLE MR. JUSTICE ASHOK BHUSHAN
HON'BLE MR. JUSTICE K.M. JOSEPH
For Appellant(s) Mr. S. N. Bhat, AOR
Mr. Priyank Jain, Adv.
Mr. D.P. Chaturvedi, Adv.
For Respondent(s) Ms. Neetic Sharma, Adv.
For M/S. M. V. Kini & Associates
UPON hearing the counsel the Court made the following
O R D E R
The civil appeal is allowed in terms of the signed order.
(MEENAKSHI KOHLI) (RENU KAPOOR)
COURT MASTER COURT MASTER
[Signed order is placed on the file]
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