- The Karnataka HC has, in Hemalatha vs. Venkatesh held that the properties given as dowry or otherwise at the time of marriage to the daughter would be included in the partition suit instituted by the daughter. Only then, according to the Court, can an equitable division of the assets be done without injustice to the rest of the family members.
- In the instant case, a suit was filed by the petitioner seeking for the partition of the joint family property as a coparcenary under section 6 of the HIndu Succession Act as the daughter of the family. While the suit was pending, an application was filed by the brother of the petitioner (Defendant no. 4) to include two other properties in the suit which were gifted to the petitioner as dowry.
- The first property was a land measuring one acre which was gifted as dowry by the execution of a sale deed in favour of Channaiah, the petitioner’s father-in-law. The second property was purchased by the first defendant out of his own money and was given in dowry to the petitioner and her husband at the time of her marriage.
- This application was objected to by the petitioner on the ground that the first property mentioned was bought by the petitioner’s father in law out of his own funds much before the marriage of the petitioner and her husband. The same was also contended with regard to the second property as well.
- It was also contended that if the defendant had any right in the property, the correct way would have been to file a declaratory suit to establish ownership.
- This application was allowed by the Trial Court.
- The Counsel for the petitioner had argued that the application was allowed by the Trial Court without sufficient reasons being accorded to it. The same is liable to be set aside.
- The Hon’ble HC held that a beneficiary of section 6 of the HSA cannot claim a benefit by way of partition without reference to the properties already gifted to her at the time of marriage as dowry or gift or otherwise. The properties were undisputedly a part of the joint family property and were gifted to the petitioner as such, the same would have to be made part of the suit so that the same is equitable.
- The Court also observed that it is for the parties to decide whether the properties belonged to the joint family or not, and the same has to be decided during the course of the trial. If the parties were able to establish that the property was purchased by them out of their own funds then the same would not be amenable to partition. This has to be ascertained by the trial court only after trial.
- Thus, in view of the above, the writ petition was dismissed.
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