Karnataka High Court
N Beeralingappa vs Sumithra on 6 October, 2010
Author: Ravi Malimath
Bench: Ravi Malimath
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1
IN THE HIGH COURT or KARNATAKA
Dated this the 6"1 day of October = _ E'
BEFORE j;
THE HON'BLE MR. ausrren
RFA No. 1440..§£ zooetmizi
BETWEEN:
N.BeeraIir1gappa "
S/0 Nanjappa . .
Aged ?'«bc-2.179' 60 "3fea§'s-~' A '
Occ;..Seni5§r__«PrirnaIjy'_VI-Ieaithv .
AsS='ista.f1tV .
Primary' H.ea1t11,w Cer'1tr'e ._ V
HQ19.1ke'f«: tram A ' ._ '
H---- E E E.
W/C.-._Nan_]ap_pa~, ' '
' ~ Aged abQut'78 years
VR/ox Near"Man}unatha
Mill, Sihi Neera Hondada Area
«.vHe1a1Ek"er_e Road
-- _ C.1;1i:x'a;i_351_;:ga
Eshvggafappa
SA/0' Nanjappa
" Aged about 56 years
VR/ 0 Near Manjunatha
Saw M111
'A S1h1 Neeru Hondada Area
I-Iolalkere Road
Chltrad urga . . Appellants
(By Sri Basavaraj M Mekki, Advocate)' 5 2-
AND:
1 Sunnthra
D / 0 N Beerahngappa
Age: 31 years .
2 Parvathl =
D / 0 N. Beerahngappa
Aged about 26 years
3 Nanjappa @ Naf1de_esh=.
S/0 Beerahngappa
Aged a1:=.Qui. _ 24 iyearsg
4 . .'
S / o~.N 'BGe1fa11n_ga.pp~a'-- {dead};
Srnt. '2':-avrqjaxnnza _ _
W;/0 N. Be:'e.1jai»mga._p'pa
Age": 53'3rear.S'~ '
OCe_; Househofid ,
t 'V All are"1*e_a1dents of
-Near Hattirrraramma Temple,
' Gtzrujanahatti.
V' " _ "v..(_)'r1ivt1*a'du.rga -- 577 501. ...Respondents
(By Sri Hadirnani, Advocate]
**$*
This RFA fiied under Section 96 of CPC against the
hgjudgrnent and decree dated 74-2006 passed in OS
.:N0.106/2002 on the file of the Civii Judge {Sr.Dn.)
Chitradurga, decreeing the suit for partition and separate
130856881011.
?91''"""""
-3...
This RFA coming on for admission this day, the Court
delivered the following:
JUDGMENT
Aggrieved by the judgment and decree passed by the learned Civil Judge (s°emo;».t_;j Chitradurga, in OS No. 106/ fdecreeing l:fil1eif.__ 1 plaintiffs for partition, the g.defend'an't--s 1. 4!; hinfeifiled the present appeal.
'- he"referred to as per the ranking in the trial C_o'ui}ft;, ..
contend that, defendants 1 and 4 are ' tfthe one Nanjappa and defendant No.3. Nanjappa is " . dead; A 1 and 2 are the daughters, plaintiff No.3 and defendanft No.2 are sons of first defendant. The first if if defenldant married Sarojamma, mother of plaintiffs and defendant No.2 on 19.4.1971 and out of their wedlock, plaintiffs and defendant No.2 were born. Due to differences that arose between them, Sarojarnma was compelled to file a W petition under Section 125 of Cr.P.C seeking mg:;';i;§ilélm}e. in on. Mis. No. 23/1984 before the JMFC';Chitraldurgaf Maintenance at the rate of Rs.1:f)Of/'Inonth :fawfa'rded"'Vto if Sarojamma, Rs.25/ month was (to Rs.50/month each was to plaintiff and Defendant No.2 is residing drefendanvtrever since the differences arose. properties are the ancestral had not been partitioned' 'C' schedule propertjf/if that the first defendant is 1ike1):/.'to ,»retirement. The plaintiffs and defendantsljeingf. possession and enjoyment of the .._andZ;B"-schedule properties are entitled to a share V ---That, the first defendant is working as a Senior fl APrimartyfHjealth Assistant in Health Department and is likely to benefits from 'C' schedule property. Plaintiffs 1 * and 2 were unmarried on the date of filing of the suit due to the carelessness and disinterest of the first defendant. In H spite of claiming marriage expenses, defendant Nctxizefused ,-----n-.--......
the same. When a share in the property was denied. Hence, the present suit for partitpioriq V L l
4. On appearance. the :4CiefenAdantV;_;l;.."._3tlA. separate Written statements: admlittingl tlielljrellationship among the defendan'ts..h_ inter" denied V the if relationship with the plaintiffs. 4' item No.3 of 'A' schedule anditern jsclhedule property are the to the family. it was howiexlrer No.2 of 'A' schedule is purchased and item No.1 belongs to defendant 'i'i1el'finrst defendant went to the extent of his rnar1'ia--ge with Sarojarnma and that the plaintiffs ' That, the plaintiffs and defendants are not '' .i.n"joint 'possession of the property. That, the suit is bad for rnisjolinder of necessary parties and is barred by limitation. 2 » if Hence' it was pleaded that the suit be dismissed.
5. The trial Court on framing 7 issues partly decreed the suit of the plaintiffs holding that the plaintiffs are W .. 5 _ together entitled for 3/1531 share in 'A' and 'B' schedule properties and that they are entitled for partition and separate possession of their respective shares_._".V:The "suit claim in respect of 'C' schedule Hence, the present appeal by defendants 3 in
6. Sri Basavaraj M 1\/Ie1;ki.:._'°theViearned ~E_coiin.S.el appearing for the defenda'n_t_s'---.contends A'th'ev~.ij1.1dgme11tt' and decree of the trial Court__i_s"crroneous and isfiliabie to be set ;1s'ihdé;flfiji¢ thatuthe triai Court committed an errorvvtpmttdetcretiirig«\t11é1°S1ii--t of the plaintiffs based on the findings reco'1'ded in Mis. No. 23/ i984. He contends §_3v:e11i_tho1igh~maintenance was awarded and the matter V stiiirasp "sn'bs'eofient1y compromised between the parties, the 'same is7fr:o5i binding in a civil proceeding. He further contendsv that item No.1 is the self acquired property of deiendant No.3 and item No.2 has been purchased by Atgdedfendant No.4. Hence, these two properties should be ' excluded from partition.
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7. Sri B.S. Hadimani, the learned counsel appearing for the plaintiffs defends the impugned judgment anddecree. He contends that the trial Court has rightl)/fv.i.C§m'e*lto"the conclusion that the plaintiffs are entitled fo'r.__a trial Court has considered all thejaslp"ects of thefvm.at.ter:land; it T. if is not correct to say that the judgmentfandlldefcree. passed solely based on the--v._order phassed, No} 23/ 1984. in View of the admitteti'-relationshiplibyldefendants I and 4, the trial Courtrthe judgment and
3. Heard"lear31ed._counsels.
9". In vienfof the marital dispute between Sarojamma jvlhusbandsdefendant No.1, she was compelled to the other children, namely plaintiffs 2 and 'i'(;v'see.§:Amaintenance she filed a petition in Crl. Mis. No. _ 23/.l'Q.fl34 on the file of JMFC, Chitradura, whereby a A' "maintenance at the rate of Rs.100/month was awarded to her, R525/month was awarded to the first pla and Rs.50/month each was awarded to Thereafter, a compromise was effected, w_he'rein,_f'a house property was given to Sarojammaglin of the~orde_r_passed by the Criminal Court. _compromise 'eifec'.--';e'c1.p in satisfaction of the order paslseldin the"'which compromise petition l f
10. consequent compromise effected clearly disclose that the I31ea:v'V'ofV_ f regard to the disputed relationship h The contention has been taken only to Vfharassytplie Aplairrtiffs and to prolong the proceedings. only __is thei-e...a.nvabsence of any material to support the ' of the appellants, but on the contrary the ".p1'oceedi.tigs,1=VV1n the criminal proceedings as Well as the compromise petition, stand as testimony against the if 'contention of the defendants. Therefore, in View of the settled position with regard to the grant of maintenance and the compromise effected, the contention of the defendants with respect to the disputed relationship necessarily fails. we No other material has been produced by the in support of their claim.
11. Even assumingpthe contention o,f7the' defe.nclan'ts were to be accepted, there 'necessityfforllhim to enter into a compromise and children, that too resulting in 1--1ouse~.llproperty to her. A submission" at the compromise was effected in the Government }ob.."'f"he appear to be as an truth. No person would go to the uextent of a house property in View of the allegations madc--b--j,*'a woman unrelated to him. The evidence V show that Sarojamma is the legally wedded wife of defendant and plaintiffs 1, 2 and 3 are his children. Hence, the contention of the appellants is llmipsconceived and liable to be rejected. The trial Court has considered the evidence and material on record and has rightly passed the impugned order. I find no error which calls for interference. AL'
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12. The defendants denied that 'A' and 'B' 'schedule properties were joint family properties. However', -mate.rial has been shown to dispute the claim of the contending that item No.2 of the:-siiit*--'A' s'lchedulle4_propert'yAisl f purchased by defendant No.4 defendant No.3 would not be.:Vp:st1:_fficieni:lto case' that they are self acquired 'I;l1e"tri,al_..vl:',oui*t came to the conclusion has been shown by these two de'fenda§nltsl'to:l¥s1 theifcase that it is a self acqiiireld fheylgitriall therefore. by considering Exs. to Exs.P4 and P5--assessment extract aswell as and P7-katha extract, rightly came toflthe.eyconclusilon---t--h'at the records disclose that the property V name of the family. The contention of the 'idlefenda'n1:js.a:' to the contrary has remained as a mere coritention. The trial Court while considering the said aspect ~ rightly come to the conclusion that the properties being joint family properties, the plaintiffs are legally entitled to claim a share in the same. I find no error committed by the findings recorded by the trial Court which calls for any ,é~ _11....
interference. The judgment of the trial Court is well reasoned and passed on the facts and circumstancespof the case. For the aforesaid reasons, I find no error loy the trial Court that calls for any interference.
13. £}.W.l in his evidence'-has"'stated.that 8: 3 are the ancestral proplerties. a'D.xW.3 No.2 of 'A' schedule property'l"is_ his self property having purchased thefsamde a registered sale deedylon' ha_s""further stated in his cross examination .th:at~.Vnofpaiftition has been effected with reference to the properties. Ex.D--1 is the sale deed datedi._:l~1;7--2flC0v--«--ine'relation to Item No.2 of 'A' schedule ' was purchased in the name of the 4"' '' defendanvfijg l..WVhen admittedly defendants 1, 3 and 4 are still joint and holding ancestral properties and when the 4"' defendant has no income other than the income from the diancestral property, the purchase of item No.2 in 'A' schedule H property is therefore from the funds generated out of the income of the ancestral property. There is absolutely no ._ 12 ..
material placed by the defendants to show that Item No.1 of 'A' schedule property has been purchased out of the funds outside the joint family properties. Hence, on available material. the trial Court has rightly come tc.;the..;§ogic1».1_'s:o1: 4_ that in View of the admitted position.with.'_:reglard 'toflte:r.n Nos.' ; 1 & 3 of 'A' schedule property and l the suit of the plaintiff l requires" to V The contention of the defendants..that"i--tem l\l'o.-?._of,iA' schedule property was purchased.out thefinldividual funds of the firstlvlldletentiant any material was rightly reject.ed.. no error that calls for any interference) .V The contention of the defendants is that the suit decreed purely on the basis of the order passed in the. criminal proceedings. The contention is rnisconceived 'and liable to be rejected. The trial Court while considering the case of the parties, has gone into the nature of the properties as well as the relationship between them. Based sion on the evidence produced before it, it came to the _13....
that the properties are joint family properties are undivided. In View of the plaintiffs beingsth:efehild1'en of Nanjappa and they having a legal right properties and in the absenceV»of'_any evidlence toithev oonigrary placed by the defendants, thelvlvlétrial tionrt. the impugned Judgment thevstaternent of the defendants that purely based on the orders" in is therefore misconceived V
15. For:"t.he.'_:'ahove, the appeal being devoid of merit, Sd/-s Iudgé