Karnataka High Court
Sri K Thimmaiah vs Smt. Venkatamma on 20 January, 2022
Author: N S Sanjay Gowda
Bench: N S Sanjay Gowda
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RSA No.50 OF 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 20TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
REGULAR SECOND APPEAL NO. 50 OF 2021(PAR)
BETWEEN:
SRI. K. THIMMAIAH,
S/O LATE KUNNAPPA,
AGED AOBUT 71 YEARS,
NO 178, 7TH 'C' CROSS,
7TH 'C' MAIN ROAD,
HAMPI NAGARA,
RPC LAYOUT,
2ND STAGE, VIJAYANAGRA,
BENGALURU 560040.
(SENIOR CITIZEN BENEFIT NOT CLAIMED)
...APPELLANT
(BY SRI. SIDDHARTH B MUCHANDI.,ADVOCATE)
AND:
1. SMT. VENKATAMMA,
W/O LATE SANNAPPA,
AGED ABOUT 58 YEARS,
R/AT MANGALAVARAPETE,
CHANNAPATANA TOWN,
RAMANGARA DISTRICT-562 160.
2. SMT. LAKSHMAMMA,
W/O LATE PUTTALINGAIAH,
AGED ABOUT 63 YEARS,
R/AT BASAVANAPURA,
KASABA HOBLI,
RAMANAGARA TALUK,
Digitally
RAMANAGARA DISTRICT-562 128.
signed by
KIRAN
KUMAR R 3. SMT. RAMADEVI,
Location:
High
Court of
W/O LATE RAMAKRISHNA,
Karnataka
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RSA No.50 OF 2021
AGED ABOUT 49 YEARS,
R/AT PADARAHALLI,
KASABA HOBLI, RAMANAGARA TALUK,
RAMANAGARA DISTRICT-562 159.
4. SRI. VENKATAGIRIGOWDA
S/O LATE RAMAKRISHNA,
AGED AOUT 45 YEARS,
R/AT RAMADEVARAPADHA,
BASAVNAPURA VILLAGE,
B M ROAD, KASABA HOBLI,
MAYAGANAHALLI POST,
RAMANAGARA TALUK,
RAMANAGARA DISTRICT-562 128.
5. SRI. VENKATARAMA,
S/O LATE RAMAKRISHNA,
AGED AOUT 43 YEARS,
R/AT RAMADEVARAPADHA,
BASAVNAPURA VILLAGE,
B M ROAD, KASABA HOBLI,
MAYAGANAHALLI POST,
RAMANAGARA TALUK,
RAMANAGARA DISTRICT-562 128.
6. SRI. VENKATAGIRI
S/O LATE RAMAKRISHNA,
AGED AOUT 45 YEARS,
R/AT RAMADEVARAPADHA,
BASAVNAPURA VILLAGE,
B M ROAD, KASABA HOBLI,
MAYAGANAHALLI POST,
RAMANAGARA TALUK,
RAMANAGARA DISTRICT-562 128.
...RESPONDENTS
(BY SRI. RAJU S.,ADVOCATE FOR R-1 & R-2;
R-3, R-4, R-5 AND R-6 ARE SERVED AND UNREPRESENTED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 16.09.2020 PASSED IN
RA.No.183/2019 ON THE FILE OF THE I ADDITIONAL DISTRICT AND
SESSIONS JUDGE, RAMANAGARA, PARTLY ALLOWING THE
APPEAL AND PARTLY SETTING ASIDE THE JUDGMENT AND
DECREE DATED 24.09.2019 PASSED IN O.S. No.377/2010 ON THE
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RSA No.50 OF 2021
FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM,
RAMANAGARA.
THIS RSA COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This is a second appeal by defendant No.1.
2. Smt.Venkatamma and Smt.Lakshmamma (the sisters of the appellant herein) instituted a suit for partition against the appellant and their other brother Sri.Ramakrishna. They stated that their father Sri.Kunnappa had got the properties in his name in the year 1984-85 and they were joint family properties, as evidenced by the entries in the revenue records. They stated that there had been no division of properties and they were thus entitled to an equal share in the said joint family properties.
3. The suit was contested by defendant No.1/appellant herein. It was stated that on 25.07.1983, there was a partition and in the said partition, the plaintiffs had already got their share and hence, the question of ordering for one more partition would not arise. It was also contended that Item Nos.1 and 2 had been granted to defendant No.1 under the Land Reforms Act, while Item Nos.3 and 4 had been granted by the Government to Kunnappa. It was -4- RSA No.50 OF 2021 stated that since the plaintiffs were signatories to the partition deed dated 25.07.1983, the plaintiffs were not entitled to any share.
4. The other brother/defendant No.2--through his legal representatives also supported the case of defendant No.1.
5. The Trial Court on consideration of the evidence adduced before it came to the conclusion that the plaintiffs had admitted affixture of their left hand thumb impressions on Ex.D-4, the unregistered partition deed dated 25.07.1983 and hence, the partition stood proved. The Trial Court took the view that the father of the plaintiffs had died prior to 09.09.2005 and the partition had also taken place in the year 1983 and therefore, the suit for partition could not be entertained. Accordingly, the Trial Court dismissed the suit.
6. Being aggrieved by the dismissal of their suit, the plaintiffs preferred an appeal.
7. The Appellate Court, on re-appreciation of the evidence, came to the conclusion that though the defendants had set up the plea of earlier partition, as per R.T.C. extracts, it was revealed that -5- RSA No.50 OF 2021 defendant No.2 had got his name entered in the revenue records on the basis of I.H.C. No.2/1985-86. Similarly, in respect of the suit schedule Item No.4, it was held Ex.P-7 revealed that the entry in the names of defendant Nos.1 and 2 had also been made based on I.H.C. No.87/1983-84, whereas the case set up by the defendants was one of the partition.
8. The Appellate Court also took the view that despite the earlier partition set up, the records had not been changed as per the partition and therefore, the plea of the earlier partition could not be accepted, at least in respect of suit schedule Item Nos.3 and 4 are concerned.
9. The Appellate Court also took the view that as per the R.T.C. extracts, suit schedule Item Nos.1 and 2 were stated to have been acquired through a grant and therefore, these properties would have to be considered as the separate properties of the defendants. The Appellate Court accordingly allowed the appeal in part and decreed the suit only in respect of item Nos.3 and 4, while rejecting the claim of the partition in respect of suit schedule Item Nos.1 and 2.
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RSA No.50 OF 2021
10. It is against this divergent finding, the present second appeal has been preferred.
11. It is also pertinent to state here that as against the very same judgment, challenging the denial of share over suit schedule Item Nos.1 and 2, R.S.A. No.670 of 2021 has been preferred by the plaintiffs, which shall be considered separately.
12. By virtue of the fact that the defendants set up the plea that there was an earlier partition, the fact that the suit properties were joint family properties stood automatically admitted. If the suit schedule properties were joint family properties, the defendants would have to establish that the suit schedule properties had been subjected to a partition and the partition had been given effect completely so as to disentitle a fresh claim for partition.
13. Admittedly, the defendants did not even produce the mutation extracts under which the revenue entries were changed pursuant to Ex.D-4. As a matter of fact, the revenue entries were produced by the plaintiffs and were of the year 2010. In the absence of any document to establish that the alleged partition under Ex.D-4 was given effect to in full, the findings of the -7- RSA No.50 OF 2021 Appellate Court that the earlier partition had not been given effect, will have to be accepted.
14. The assertion of the learned counsel for the appellant that the L.T.Ms. on Ex.D-4 had been admitted and therefore, the earlier partition will have to be accepted, is untenable. As stated in the decision of the Hon'ble Apex Court in Vineeta Sharma vs. Rakesh Sharma and others, [2020) 9 SCC 1], [Vineeta Sharma], it is only in exceptional circumstances, where the plea of an earlier partition is supported by a public document and the partition is finally evidenced in the manner as if it had been effected by the decree of a Court, the plea of an earlier partition cannot be accepted.
15. As stated above, the claim that the suit schedule properties were partitioned under Ex.D-4 and the partition was given effect to way back in the year 1983, was not at all proved by the defendants. I am, therefore, of the view that the judgment and decree of the Appellate Court granting 1/4 th share to the two daughters in suit schedule Item Nos.3 and 4 cannot be found fault with. -8-
RSA No.50 OF 2021
16. There is no substantial question of law arising for consideration in this appeal. The appeal is accordingly dismissed.
17. The learned counsel for the appellant submits that during the pendency of the proceedings, suit schedule Item No.4 was acquired by the National Highways Authority of India (NHAI) and a sum of Rs.45,69,841/- had been deposited in the Savings Account No.54004397375 at the State Bank of India, R.P.C. Layout Branch, Bengaluru, which is an account held by the appellant and subsequently, by a communication dated 22.01.2021, NHAI had requested the said Bank to freeze the account in which the said deposit has been made and accordingly, the said account has been frozen. The learned counsel submits that the said amount of Rs.45,69,841/- may be kept separately in a fixed deposit and direction may be issued to de-freeze his account.
18. The learned counsel for respondent Nos.1 and 2, Sri.S.Raju, indicates that he would have no objection for the said course of action.
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RSA No.50 OF 2021
19. In view of the said submission, Rs.45,69,841/- deposited into the account of the appellant by NHAI is directed to be kept in a fixed deposit and the State Bank of India, R.P.C. Layout Branch, Bengaluru, shall de-freeze the said account of the appellant and permit him to operate the same.
20. It is made clear that the amount so deposited shall be apportioned in accordance with the decree passed by the Appellate Court and as affirmed by this Court.
Sd/-
JUDGE RK CT:SN