Karnataka High Court
Smt. Devaki vs A Padmanabha on 8 July, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:25918
RSA No. 198 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 198 OF 2024 (PAR)
BETWEEN:
1. SMT. DEVAKI
W/O LATE A.DAMODARA,
AGED ABOUT 71 YEARS,
R/O KUKKANDOORU HOUSE,
JALSOOR VILLAGE,
SULLIA TALUK, D.K.-574239
PRATAP,
SINCE DEAD HIS LEGAL HEIRS
2. SMT. NAGAVENI
W/O LATE PRATHAP,
AGED ABOUT 43 YEARS,
Digitally signed R/O KUKKANDOORU HOUSE,
by DEVIKA M JALSOOR VILLAGE,
Location: HIGH SULLIA TALUK, D.K.-574239
COURT OF
KARNATAKA 3. MISS. KHUSHI (MINOR)
AGED ABOUT 12 YEARS,
R/O KUKKANDOORU HOUSE,
JALSOOR VILLAGE,
SULLIA TALUK, D.K.-574239
PRAKASH
(SINCE DEAD HIS LEGAL HEIRS)
4. SMT. SOUMYA,
S/O LATE PRAKASH,
AGED ABOUT 39 YEARS,
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NC: 2024:KHC:25918
RSA No. 198 of 2024
R/O KUKKANDOORU HOUSE,
JALSOOR VILLAGE,
SULLIA TALUK, D.K.-574239
5. CHIRAG A
S/O LATE PRAKASH,
AGED ABOUT 14 YEARS,
R/O KUKKANDOORU HOUSE,
JALSOOR VILLAGE,
SULLIA TALUK, D.K-574239
6. YOGISHA
S/O LATE A. DAMODARA,
AGED ABOUT 45 YEARS,
R/O KUKKANDOORU HOUSE,
JALSOOR VILLAGE,
SULLIA TALUK, D.K-574239
7. VEENA
D/O LATE A. DAMODARA,
AGED ABOUT 43 YEARS,
R/O KUKKANDOORU HOUSE,
JALSOOR VILLAGE,
SULLIA TALUK, D.K-574239
(APPELLANTS NO.1 TO 5 AND 7 ARE
REPRESENTED BY THEIR GPA HOLDER
APPELLANT NO.6)
...APPELLANTS
(BY SRI. SACHIN B.S., ADVOCATE)
AND:
1. A. PADMANABHA
S/O AITHAPPA GOWDA,
AGED ABOUT 68 YEARS,
C/O MALINGESHWARA INDUSTRIES,
NEAR CHENNAKESHWARA TEMPLE,
SULLIA, KASABA VILLAGE,
SULLIA TALUK,
D.K. DISTRICT-574239
...RESPONDENT
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NC: 2024:KHC:25918
RSA No. 198 of 2024
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 12.10.2023
PASSED IN R.A.NO.01/2020 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC, SULLIA, D.K., ALLOWING THE APPEAL
AND MODIFYING THE JUDGMENT AND DECREE DATED
20.11.2019 PASSED IN O.S.NO.21/2012 ON THE FILE OF THE
CIVIL JUDGE AND JMFC, SULLIA.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. Heard the learned counsel for the appellants. This matter is listed for admission.
2. The factual matrix of case of the plaintiff before the Trial Court while seeking the relief of partition, he is the sons of late Aithappa Gowda and grand son of late Krishnappa Gowda. That late A.Damodhara, the husband of 1st defendant and the father of the defendant Nos.2 to 5 is the brother of plaintiff and son of Aithappa Gowda. The relationship between the plaintiff, Aithappa Gowda, Krishanppa Gowda as well as Late A.Damodhara Gowda husband of 1st defendant and defendant Nos.2 to 5 is described in the 'A' schedule and late Krishnappa Gowda -4- NC: 2024:KHC:25918 RSA No. 198 of 2024 owned properties morefully described in 'B' Schedule which were self acquired properties. In respect of the said properties, on 29.12.1951 settling the above properties in favour of his grand sons i.e., sons of Aithappa Gowda through Aithappa Gowda namely late Chennakeshava Gowda, Late Vinoda, late A.Damodhara Gowda. At the relevant time when settlement deed was executed, the plaintiff was in his mother's womb. The plaintiff was born on 01.12.1952. hence, the plaintiff had acquired 1/4th right in the 'B' schedule property under the settlement deed. That late Krishanappa Gowda died on 08.02.1952. The plaintiff's father Aithappa Gowda was died in the year 1975 and his wife Akkayya also died. The plaintiff's elder brother Chennakeshava @ Keshava who got 1/4th right in 'B' schedule property under settlement deed and died issueless on 20.06.1996 and he was not married. Similarly, the plaintiff's another elder brother Vinoda who also had 1/4th right, died in the year 1967 and he was not married. Hence, consequent to the deaths of Chennakeshava @ Keshava and Vinoda, their 1/4th share -5- NC: 2024:KHC:25918 RSA No. 198 of 2024 right each devolved on plaintiff and late A.Damodhara Gowda and they began to enjoy the 'B' schedule properties as settles with equal rights. After the death of late A.Damodhara Gowda in the year 1998, his ½ right devolved on defendants under Hindu Succession Act. Thus, the defendants have ½ right in above properties and plaintiff has remaining ½ right.
3. It is also the contention that the plaintiff was in possession of portion of 'B' schedule property as per arrangement between himself and late A.Damodhara Gowda only for one year when late A.Damodhara Gowda was alive, though there has been no partition of the above property. That since March 2001 defendants again handed over the plaintiff's share to him and up to 30.10.2009 the plaintiff was in possession and enjoyment of his share over the plaintiff schedule property. Since 30.10.2009 upto day, however, plaintiff has been residing separately and presently, he is not in possession and enjoyment of the above property. The plaintiff is in joint and constructive -6- NC: 2024:KHC:25918 RSA No. 198 of 2024 possession of the plaint 'B' schedule property. It is contended that the land bearing Sy.No.255/2 to an extent of 1.45 acres of Jalsoor village of Sullia Taluk, D.K is the kana, bane land of the joint owned property of the plaintiff and defendants and the same has been granted property and on behalf of the betterment of the joint owned property, got the grant in the name of the defendant No.4 as per NCRSR.No.271/98-99 for on behalf of the family and for the grant the money and labour was invested by the grantee and plaintiff. The income accrued out of the joint owned property was invested and in the settlement deed No.587/51-52 dated 29.12.1951 also the above said Sy.No. 255/2 to an extent of 1.45 acres is included and it is described in the above said registered settlement earlier in possession and enjoyment of settler of the above said settlement deed. There was no necessity to incur any liability or debt. The plaintiff being entitled to half share, called upon the defendants orally to effect division of 'B' schedule property and allot and deliver his share on -7- NC: 2024:KHC:25918 RSA No. 198 of 2024 15.12.2011 and request was refused. Hence, the plaintiff filed the suit.
4. It is also contended that the 'B' schedule property consists of areca garden and coconut plantation. There are also pepper vines in the above property. The property fetches annual net income of 3 candies of Areca, 1000 coconuts, after deducting all cultivation expenses, the defendants are bound to tender income received by them since the property in their possession and pay the plaintiff his share of income thereof to deliver the possession.
5. In pursuance of the suit summons, the defendant Nos.6 to 22 are impleaded subsequently in the suit, but none of them chosen to contest the suit and only defendant N.3 contested the case by filing written statement and admits the relationship between the parties contended that the 'B' schedule properties were the ancestral properties which were acquired by late Krishnappa Gowda by filing the suit for partition. At the -8- NC: 2024:KHC:25918 RSA No. 198 of 2024 time of partition as per the decree of the Court, late Krishnappa Gowda and his son Aithappa Gowda were alive and as such both Krishnappa Gowda and Aithappa Gowda have equal right over 'B' schedule properties. The settlement deed executed by late Krishnappa Gowda is valid only to the extent of children of Aithappa Gowda living at the relevant time i.e., on the date of execution of settlement deed. The condition stipulated in the settlement deed that children to be born in future and the same cannot create any right. Hence, the children born to Aithappa gowda after 29.12.1951 has no right over the suit schedule properties. The Trial Court having considered the pleadings of the parties, framed the issues and allowed the parties to lead evidence and having considered the material on record, granted the relief of ½ share in respect of 'B' schedule properties with metes and bounds in favour of the plaintiffs and the defendant Nos.1 to 5 are entitled for remaining ½ share.
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NC: 2024:KHC:25918 RSA No. 198 of 2024
6. Being aggrieved by the judgment and decree of the Trial Court, an appeal is filed in R.A.No.1/2020 before the First Appellate Court. The First Appellate Court having considered the grounds urged in the appeal memo particularly framed the point for consideration whether the plaintiff acquired ½ share in the 'B' schedule property by virtue of the settlement deed dated 29.12.1951 executed by his late grand father Krishnappa Gowda and also framed point for consideration that defendant No.4 proves that the suit item No.4 of 'B' schedule property is his self acquired property and whether the Trial Court committed an error in granting the relief of ½ share and whether it requires interference.
7. The First Appellate Court having re-assessed both oral and documentary evidence placed on record, answered the point No.1 as affirmative in coming to the conclusion that the plaintiff is entitled for a share in 'B' schedule property in view of settlement deed and also answered the point No.2 as negative that the defendant
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NC: 2024:KHC:25918 RSA No. 198 of 2024 No.4 has not proved that the same is a self acquired property and confirmed the judgment of the Trial Court, however, modified the judgment and decree in coming to the conclusion that plaintiff and defendant Nos.1 to 5 are entitled for each 4/12th share in the suit schedule properties. The defendant Nos.6 to 22 are being the legal heirs of deceased Radamma, Savithri, Yashwanthi and Rajeswari are together entitled for 4/12th share in the suit properties. The allotment and adjustment of shares of defendant Nos.6 to 22 on equitable consideration is left open to be raised in the final decree proceedings.
8. Having heard the appellants' counsel and also on perusal of material available on record, it is not in dispute with regard to the relationship between the parties and also no dispute with regard to the execution of settlement deed dated 29.12.1951 by late Krishnappa Gowda. On the other hand, it is the contention of the 4th defendant that suit item No.4 of 'B' schedule property is a self acquired property and both the Courts having taken
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NC: 2024:KHC:25918 RSA No. 198 of 2024 note of the very intention of the said Krishanppa Gowda who has executed the settlement deed and admittedly the plaintiff born subsequent to the execution of document of settlement deed dated 29.12.1951 and also with regard to the claim made by the parties also, though provision was made and some of them are passed away without any issues. Hence, it is also the claim of the plaintiff that with regard to right which devolves upon him enlarging the share. The very contention of the appellants' counsel that in view of the document of settlement deed, the plaintiff will not get any share, the said contention cannot be accepted. The very contention that the Trial Court as well as First Appellate Court committed an error in granting the share in favour of the plaintiffs though there was no any provision. The said contention cannot be accepted. The recital of the document is also extracted by both the Courts that the very intention of the settler is very clear that if any person born in future also, will get the share. Hence, I do not find any error committed by the Trial
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NC: 2024:KHC:25918 RSA No. 198 of 2024 Court as well as the First Appellate Court in granting the relief in favour of the plaintiff.
9. The other contention that defendant No.1 got the property allotted in his favour and the same also cannot be accepted. The very document of settlement deed itself, it is mentioned that item No.4 of the 'B' Schedule property is also the property of the family and when such being the case, the very contention of the appellant that item No.4 of the property granted on Dharkasth in favour of the defendant cannot be accepted and grant is also for the benefit of the family. When such being the case, when all these factors are taken note of by the Trial Court as well as First Appellate Court, I do not find any error committed by the Trial Court as well as the First Appellate Court in appreciating the material on record.
10. The counsel appearing for the appellants relied upon the Patna High Court judgment reported in 1973 SCC Online Pat 152 in case of Lakshmi Devi and
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NC: 2024:KHC:25918 RSA No. 198 of 2024 others V/s Shankar Jha and others and also the privy council judgment i.e., 1914 SCC Online PC 28 in case of Musammat Hiran Bibi and others V/s Musammat Sohna Bibi and these judgments will not comes to the aid of the appellants. The Trial Court also in considering the similar issues in paragraph No.20 relied upon the judgment of the Apex Court reported in AIR 2004 SC 2665 in case of P.M.Devaru Ganapathi Bhat V/s Prabhakar Ganapathi Bhat held that there is no ban on transfer of interest in favour of an unborn person under Section 20 permits an interest being created for the benefit of an unborn person to acquire interest upon his birth. In view of the said principles laid down in the judgment of the Apex Court which has been relied upon by the Trial Court, the very contention of the appellants' counsel that these two judgments comes to the aid of the appellant also cannot be accepted. Hence, no merit to admit the second appeal and to frame any substantial question of law and question of invoking Section 100 of CPC does not arise.
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NC: 2024:KHC:25918 RSA No. 198 of 2024
11. In view of the discussions made above, I pass the following:
ORDER
i) The Second Appeal is dismissed.
ii) In view of dismissal of the appeal, I.As., if any do not survive for consideration, the same stands disposed of.
Sd/-
JUDGE RHS List No.: 1 Sl No.: 107