Karnataka High Court
Smt Chikathayamma vs Smt Mahadevamma on 24 July, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:30511
RSA No. 501 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 501 OF 2019 (PAR)
BETWEEN:
1. SMT. CHIKATHAYAMMA
W/O SOMASHEKARA,
AGED ABOUT 46 YEARS
R/AT NARASEGOWDARA COLONY VILLAGE,
SONAHALLI DHAKALE,
BILIKERE HOBLI,
HUNSUR TALUK,
MYSURU DISTRICT-571105.
...APPELLANT
(BY SRI MANJESH H.M., ADVOCATE)
AND:
1. SMT. MAHADEVAMMA
Digitally signed
by DEVIKA M W/O LATE KRISHNEGOWDA,
Location: HIGH AGED ABOUT 51 YEARS
COURT OF MANDIGANAHALLI VILLAGE,
KARNATAKA HOSAAGRAHARA POST,
K.R.NAGAR TALUK
MYSURU DISTRICT-571602.
2. SMT. SHIVAMMA
W/O LATE JAVAREGOWDA,
AGED ABOUT 58 YEARS
R/AT KURAGAHALLI VILLAGE,
BELAVADI POST,
MYSURU TALUK AND
DISTRICT-570018.
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NC: 2024:KHC:30511
RSA No. 501 of 2019
3. SRI. VEERABHADREGOWDA
S/O LATE RUDREGOWDA,
AGED ABOUT 68 YEARS
R/AT SONAHALLI VILLAGE,
BILIKERE HOBLI,
HUNSUR TALUK
MYSURU DISTRICT-571105.
4. SMT.PUTTAMMA
W/O MARIGOWDA,
AGED ABOUT 63 YEARS
R/AT KAVERI EXTENSION, TOLGATE,
KUMBARAKOPPALU MAIN ROAD,
MYSURU CITY-571401.
5. SMT. HONNAMMA
W/O RANGASWAMY,
AGED ABOUT 43 YEARS,
R/AT KURAGAHALLI VILLAGE,
BELAVADI POST,
YELAWALA HOBLI,
MYSURU TALUK-570 018.
6. SMT. NINGAMMA
W/O LATE RUDREGOWDA,
AGED ABOUT 73 YEARS,
R/AT NO.223, KAVERI EXTENSION,
KUMBARAKOPPALU MAIN ROAD,
MYSURU CITY-571401.
7. SRI. PARMESHA
S/O LATE RUDREGOWDA,
AGED ABOUT 53 YEARS,
R/AT THOTADAMANE,
BALAGANCHI POST,
HIRISEVE HOBLI,
CHANNARAYAPATANA TALUK
HASSAN DISTRICT-573124.
8. SRI RAMESHA
S/O VEERABADREGOWDA
AGED ABOUT 45 YEARS
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NC: 2024:KHC:30511
RSA No. 501 of 2019
R/AT NO.32, BEHIND PRIMARY SCHOOL
KURGALLI VILLAGE, BELAVADI POST
YELAWALA HOBLI
MYSURU DISTRICT-570001.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 17.12.2018
PASSED IN R.A.NO.24/2016 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE AND JMFC, HUNSUR, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 11.01.2016 PASSED IN O.S.NO.25/2008 ON THE FILE
OF THE CIVIL JUDGE AND JMFC, HUNSUR.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
ORAL JUDGMENT
This matter is listed for admission. Heard the learned counsel appearing for the appellant.
2. The present appeal is filed against the concurrent finding of both the Courts. The main contention of the plaintiffs before the Trial Court that the suit schedule property belongs to the ancestral and joint family property and defendant Nos.2 to 4 colluding with each other, illegally alienated the suit schedule property on 16.03.2015 in favour of defendant No.1 since they have -4- NC: 2024:KHC:30511 RSA No. 501 of 2019 no absolute right to sell the suit schedule property. However, defendant No.1 took the contention that the very filing of the suit for the relief of partition is bad for non-joinder of necessary parties as well as other properties. The Trial Court having taken note of both oral and documentary evidence placed on record comes to the conclusion that the suit schedule property is the ancestral and joint family property and hence, defendant Nos.2 to 4 have no right to sell the property in favour of defendant No.1 and the plaintiffs are not a party to the said sale deed and hence, partly decreed the suit of the plaintiffs holding that the plaintiffs are entitled to 1/7th shares each in the suit schedule property and defendant No.1 is entitled to shares of her vendors. Being aggrieved by the judgment and decree of the Trial Court, an appeal was preferred by defendant No.1 in R.A.No.24/2016 and the First Appellate Court having considered the grounds urged in the appeal memo, framed the Points for consideration and after reassessing both oral and documentary evidence placed on record comes to the conclusion that Trial Court -5- NC: 2024:KHC:30511 RSA No. 501 of 2019 has rightly decreed the suit of the plaintiffs and thereby confirmed the judgment of the Trial Court and dismissed the appeal filed by defendant No.1. Being aggrieved by the concurrent finding of both the Courts, the present second appeal is filed before this Court.
3. The main contention of the counsel for the appellant that both the Courts have committed an error in holding that the appellant and respondents constituted the Hindu Joint family at the time of filing the suit and the very approach of both the Courts is erroneous. The counsel further would vehemently contend that the father of respondent Nos.2 to 8 died more than 25 years back according to PW1 evidence alone hence, the suit is not maintainable under the Hindu Succession Act and plaintiff No.2 got married 30 years back and settled in her husband house. Hence, she does not come under the joint family status. Hence, finding of both the Courts in this regard is perverse and capricious. Under such circumstances, the Trial Court ought not to have granted 1/7th share in favour -6- NC: 2024:KHC:30511 RSA No. 501 of 2019 of the plaintiffs and the First Appellate Court also committed an error in confirming the judgment and decree of the Trial Court. Hence, it requires interference of this Court.
4. Having heard the learned counsel appearing for the appellant and also on perusal of the material available on record it is not in dispute that the property belongs to the deceased Rudregowda and it is also not in dispute that defendant Nos.2 to 4 have sold the suit schedule property in favour of defendant No.1. Admittedly, the plaintiffs are not the parties to the said sale deed. The property belongs to Rudregowda who is the father of plaintiffs and defendant Nos.2 to 4 and though an attempt is made before the Trial Court stating that relationship has not been proved, but the fact that they are the children of Rudregowda and the same is also not in dispute and no evidence is adduced in this regard. The Trial Court also considering the relationship between the parties in detail discussed the answer elicited from the mouth of the -7- NC: 2024:KHC:30511 RSA No. 501 of 2019 witnesses with regard to the relationship is concerned and also discussed with regard to the rights of the parties is concerned wherein it is elicited that the property was belongs to Rudregowda and during the lifetime of said Rudregowda, there was no partition. When there is no dispute with regard to the relationship between the family members of the said Rudregowda and the said Rudregowda died intestate, hence, all the Class-I heirs are entitled for the relief of partition.
5. The First Appellate Court also having considered the grounds urged in the appeal memo, in detail discussed both oral and documentary evidence placed on record and also discussed applicability of Section 6 of the Hindu Succession Act wherein it is contended that as per their genealogical tree which was obtained on 15.12.2004, their father i.e., Rudregowda is no more and further, throughout their pleadings, they themselves have contended that the suit schedule property is their ancestral and joint family property and partition ought to -8- NC: 2024:KHC:30511 RSA No. 501 of 2019 have been effected. The First Appellate Court also having considered the said grounds taken note of the document at Ex.P2 which reveal that the suit schedule property is a granted land to the deceased Rudregowda. Whereas, the concept of ancestral and coparcenary property comes into effect only when the property has been devolved from the male common ancestor of 3rd or 4th generation. The First Appellate Court also taken note of the fact that first wife of Rudregowda is no more. As per the settled law, the illegitimate children also have equal right in the self acquired property of their father on his demise. The First Appellate Court also taken note of Section 8 of the Hindu Succession Act and rightly comes to the conclusion that plaintiffs are also entitled for a share in the suit schedule property since they are not parties to the sale deed executed in favour of defendant No.1 by defendant Nos.2 to 4.
6. Though the counsel for the appellant would vehemently contend that relationship has not been -9- NC: 2024:KHC:30511 RSA No. 501 of 2019 proved, but the fact that the plaintiffs are the children of Rudregowda is also not in dispute. The persons who have sold the property in favour of defendant No.1 are also the legal representatives of said Rudregowda. When the plaintiffs were not made as a party to the sale deed executed in favour of defendant No.1 by defendant Nos.2 to 4, the Trial Court as well as the First Appellate Court having taken into note of the fact that the property was granted land in favour of deceased Rudregowda and Section 8 also attracts while granting the share. When such being the case, I do not find any error committed by both the Courts while granting the relief of partition. Thus, there is no grounds to admit the second appeal invoking Section 100 of CPC.
7. In view of the discussions made above, I pass the following:
ORDER The regular second appeal is dismissed.
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NC: 2024:KHC:30511 RSA No. 501 of 2019 In view of dismissal of the main appeal, I.A. if any, does not survive for consideration and the same stands disposed of.
Sd/-
(H.P.SANDESH) JUDGE SN List No.: 1 Sl No.: 72