Karnataka High Court
Sri D L Chandrashekar S/O Late D S ... vs Smt Kalyanamma @ Manchamma on 7 October, 2020
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
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IN THE HIGH COURT OF KARNATAKA BENGALURU
DATED THIS THE 7th DAY OF OCTOBER, 2020
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
REGULAR FIRST APPEAL NO.92 OF 2006 (PA/DE/IN)
BETWEEN:
SRI.D.L.CHANDRASHEKAR,
S/O LATE.D.S.LINGAPPAGOWDA,
MAJOR, AGE 49 YEARS,
R/O DEVARAHALLI VILLAGE,
KIKKERI HOBLI, K.R.PET TALUK,
MANDYA DISTRICT-571 401.
... APPELLANT
(BY SRI.NITISH FOR SRI.K.V.NARASIMHAN, ADVOCATE)
AND:
1. SMT.KALYANAMMA @ MANCHAMMA,
W/O LATE. D.S.LINGAPPAGOWDA,
MAJOR, 63 YEARS,
R/O DEVARAHALLI,
KIKKERI HOBLI,
K.R.PET TALUK,
MANDYA DISTRICT-571 401.
2. SRI.D.L.BALAKRISHNA,
S/O LATE D.S.LINGAPPAGOWDA,
MAJOR, 45 YEARS,
WORKING IN AYURVEDIC COLLEGE,
BELLARY 583 101.
3. SMT.JAYALAKSHMI,
W/O. D. NANJAPPA,
MAJOR, 45 YEARS,
2
R/O KIKKERI,
K.R.PET TALUK,
MANDYA DISTRICT.
4. SMT.PARVATHAMMA,
W/O H.NANJUNDEGOWDA,
MAJOR, 43 YEARS
R/O KOTAKANAHALLI
SANTHEBACHEHALLI HOBLI
K.R.PET TALUK,
MANDYA DISTRICT.
5. SMT.KAMALAMMA,
W/O. THAMMANNAGOWDA,
MAJOR, 43 YEARS,
R/O SANTHEBACHEHALLI,
KIKKERI HOBLI,
K.R.PET TALUK,
MANDYA DISTRICT.
6. SMT.VARALAKSHMI,
W/O RAMAKRISHNA,
MAJOR, 38 YEARS,
R/O AIKANAHALLI,
KIKKERI HOBLI, K.R.PET TALUK,
MANDYA DISTRICT.
7. SMT.KUSUMA,
W/O. VENKATEGOWDA,
MAJOR, 39 YEARS,
R/O. GONDIHALLI
KIKKERI HOBLI, K.R.PET TALUK,
MANDYA DISTRICT.
8. SRI.KUMAR,
S/O BOJEGOWDA,
MAJOR, 32 YEARS,
R/O GOODA HOSAGALLI
KIKKERI HOBLI, K.R.PET TALUK,
MANDYA DISTRICT.
9. SMT.GIRIJAKUMARI,
W/O. A.B.PRABHAKAR,
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MAJOR, 34 YEARS,
R/O. NO.288, GANGOTHRI,
HUDCO LAYOUT,
MYSORE-570 001.
... RESPONDENTS
(BY SRI.V.B.SIDDARAMAHAIH, ADVOCATE FOR R1
V/O DTD. 29.08.2006, NOTICE TO R3 TO 6 DISPENSED WITH.
R2, R7 TO R9 ARE SERVED)
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THIS RFA IS FILED UNDER SECTION 96 OF CIVIL
PROCEDURE CODE, 1908, CHALLENGING THE JUDGMENT AND
DECREE DATED 14.10.2004 IN OS.NO.58/1992 PASSED BY
ADDITIONAL CIVIL JUDGE (SR.DN) SRIRANGAPATNA.
THIS RFA COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The appellant- 1st defendant has appealed against the judgment and decree of the trial Court.
2. Learned counsels Sri.Nitish, for Sri.K.V.Narasimhan for appellant and Sri.V.B.Siddaramaiah, for respondent No.1 have appeared through video conferencing.
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3. For the sake of convenience, parties herein shall be referred to in terms of their status before the trial Court.
4. The short facts of the case are these: - one D.S.Lingappagowda is the prepositus of the family had four wives, namely, Smt.Nanjamma, Smt.Devamma, Smt.Kalyanamma and Smt.Kalyanamma @ Manchamma. Smt.Nanjamma had no issues. Smt.Devamma begot a daughter by name Jayalakshmi, who is defendant No.3 in the suit. Through the third wife Smt.Kalyanamma, Chandrashekar, Sri.Balakrishna, Smt.Parvathamma, Smt.Kamalamma, Smt.Varalakshmi and Smt.Kusuma and Smt.Padmamma were born. They are defendant Nos.1 and 2 and 4 to 7 in the suit. At the time of filing of the suit, Smt.Padmamma was dead, as such her son by name Kumar had been arrayed as defendant No.8. The fourth wife of D.S.Lingappagowda by name Smt.Kalyanamma is plaintiff and her daughter Girija Kumari is defendant No.9. 5
Plaintiff contended that her husband D.S.Lingappagowda during his life time had given shares to defendant Nos.1 and 2 in the properties that he possessed. He retained plaint 'A' schedule properties to his share.
D.S.Lingappagwoda had executed a registered Will dated 12.09.1990 bequeathing plaint 'A' schedule properties in favour of plaintiff. D.S.Lingappagwoda died on 12.09.1990 testate. Contending that she became the owner of plaint 'A' schedule properties and claimed to be in possession, plaintiff brought action seeking declaration of her title concerning plaint 'A' schedule properties and permanent injunction concerning it. Plaintiff also sought for grant of share in all the suit schedule properties in case, the Courts were to hold that Will is not proved.
Defendant Nos.1 and 2 filed their joint written statement inter-alia contended that there was no partition between them and D.S.Lingappagwoda during the time of latter. Land in Sy.No.40/B measuring an extent of 12 acres, situated at Kalenahalli Village, Kikkeri Hobli, 6 K.R.Pete Taluk has not been included in the plaint schedule hence, contended that the suit is bad for partial partition. They also denied the alleged Will and prayed for dismissal of the suit.
Defendant No.5 filed separate written statement and contended that the Will is concocted. She further contended that 'A' schedule properties as described in the plaint are the joint family properties and plaintiff has not included Sy.No.40/B in the plaint schedule, as such the suit is liable to be dismissed.
5. On the basis of above pleadings, the trial Court has framed the following issues:
1. Whether the plaintiff proves that at a partition in the family, plaint 'A' schedule had fallen to the share of her husband?
2. Whether the plaintiff proves that her husband had made a Will giving Life Estate to her in plaint 'A' schedule properties?
3. Whether the suit is bad for non-joinder of necessary parties and properties?7
4. Whether the plaintiff proves that she was in lawful possession of plaint 'A' schedule properties as on the date of suit?
5. Whether the plaintiff proves the alleged interference.
6. Whether the plaintiff proves that she is entitled to declaration and permanent injunction or partition and separate possession or maintenance and charge prayed for?
7. To what reliefs parties are entitled?
To substantiate the case, plaintiff got examined herself as PW1 and one Shivasiddu as PW2 and produced 32 documents which were exhibited and marked as Exs.P1 to P32. On the other hand, defendant Nos.1 and 2 examined as DW1 and DW2 and produced 32 documents which were exhibited and marked as documents at Exs.D1 to D50.
On the trial of the action, the Court held that the alleged Will dated 22.09.1990 is shrouded with suspicious circumstances and there is already a finding recorded in 8 O.S.No.35/1992 that the Will is not proved. Plaintiff has failed to proved that D.S.Lingappagwoda had executed a Will in her favour with his free will and consent. The trial Court found that plaint 'A' schedule properties are the joint family properties and plaint 'B' schedule properties are ancestral properties and plaintiff was granted 1/10th share in plaint 'A' schedule properties and 1/30th share in plaint 'B' schedule properties.
6. Sri. Nitish learned counsel for defendant No.1 submits that the judgment and decree passed by the trial Court is opposed to probabilities of the case and material on record. He contended that the trial Court has not appreciated the evidence in a right perspective.
Counsel submitted that it is an established principle of law that suit for partial partition is not maintainable. A further submission was made that Defendant No.1 had specifically contended that the land in Sy.No.40/B has not been included in the suit and as such, the suit is liable to 9 be dismissed. However, this aspect of the matter has not been properly appreciated by the trial Court.
Next, he submitted that the calculation of share by the trial Court is not proper. A further submission was made that plaintiff has not proved any of the issues. Therefore, he sought to urge that the same is illegal and prayed that the Court be pleased to allow the appeal and dismiss the suit.
7. Learned counsel Sri.V.B.Siddaramaiah, while justifying the judgment and decree submitted that defendant No.5-Smt.Kamalamma, the daughter of D.S.Lingappagowda had filed a suit in O.S.No.35/1992 on the file of Additional Civil Judge (Sr.Dn), Srirangapatna seeking relief of partition and separate possession of 1/10th share of plaint schedule properties and for mense profits. The said suit came to be decreed in part holding that plaintiff is entitled for 1/10th share in all the suit schedule properties and rejected the relief of ascertainment of 10 mense profits or for settlement of accounts in respect of suit schedule properties.
Aggrieved by the said judgment and decree, plaintiff had preferred an appeal in RA.No.23/2001 and one Smt.Lakshmidevamma and R.Ramakrishna had preferred appeal in RA.No.6/2001 before the Appellate Court. Both appeals were clubbed and a common judgment and decree was passed on 26.07.2006 by dismissing the appeals. Aggrieved by the said judgment and decree plaintiff- Smt.Kalyanamma and one Smt.Lakshmidevamma and R.Ramakrishna preferred appeals before this Hon'ble Court in RSA No.3017/2006 and RSA No.2780/2006. This Court dismissed both the appeals on 10.01.2012.
Lastly, he submitted that defendant No.1 having accepted the share granted in the earlier suit is estopped from contending that the grant of share is bad in law. Accordingly, he submitted the appeal may be dismissed. 11
8. I have considered the contentions urged on behalf of both the parties and perused the material on record with care.
The short point that would arise for consideration is whether the judgment and decree of the trial Court would call for any interference?
The facts are sufficiently stated. The suit giving rise to this appeal was brought by plaintiff seeking the relief of declaration, injunction and partition.
There is no controversy that there were three coparceners in the family namely, D.S.Lingappagowda, Chandrashekar and Balakrishna. As such, by notional partition the share of D.S.Lingappagowda worked down to be 1/3rd. The 1/3rd share of D.S.Lingappagowda has to be divided among his ten heirs. The trial Court decreed the suit holding that plaintiff is entitled for 1/10th share in plaint 'A' schedule properties and 1/30th share in B schedule properties.
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In this Court, defendant No. 1 adhered to the contention that plaint 'A' schedule properties are the joint family properties and plaint 'B' schedule properties are ancestral properties and that suit for partial partition is not maintainable and that calculation of share is not correct.
I find myself unable to accept this contention. It would be relevant to note that defendant No.5- Kamalamma, the daughter of D.S.Lingappagowda, had filed a suit in O.S No. 35/1992 on the file of Additional Civil Judge (Sr.Dn) at Srirangapatna seeking relief of partition and separate possession. Plaintiff- Kalyanamma was 1st defendant and defendant No. 1 -D.L Chandrashekar was 5th defendant in the said suit.
Suit was filed in respect of five landed properties. They are:
1. Sy.No.34/1 measuring 38 acres;
2. Sy.No.37 measuring 40 acres;
3. Sy.No.48/5 measuring 41 acres;13
4. Sy.No.1/18 measuring 7 acres;
5. Sy.No.40/B measuring 4 hectares 86 acres.
On the trial of the action the trial Court decreed the suit on 15.02.2001 holding plaintiff and defendants are equally entitled for 1/10th share in the plaint 'A' schedule properties and plaintiff was granted 1/30th share in plaint 'B' schedule properties. Aggrieved by the judgment and decree, Smt.Kalyanamma filed RA No.23/2001 and one Smt.Lakshmidevamma and R. Ramakrishna filed appeal in RA No.06/2001. Both the appeals were clubbed and were dismissed on 26.07.2006. Against the dismissal of the appeal, two appeals in RSA No.3017/2016 and RSA No.2780/2006 were filed before this Court and said appeals were also dismissed on 10.01.2012. The judgment and decree of this Court has attained finality.
While arguing the case, learned counsel Sri.V.B.Siddaramaiah vehemently urged that defendant No.1 has accepted the judgment and decree in the earlier 14 suit and contesting the suit for their legitimate share is bad in law.
I find considerable force in the said contention. It is perhaps well to observe that defendant No.1 has not challenged the judgment and decree passed in O.S.No.35/1992 and the same has attained finality. I propose to say that defendant No.1 having accepted the grant of share in the said suit cannot contend that grant of share in the present suit is not proper and in correct.
In my opinion there is nothing in the facts proved to justify the interference with the judgment and decree of the trial Court.
Accordingly, the appeal is dismissed. No order as to costs.
Sd/-
JUDGE SB