Muniyappa vs Kendamma & Anr on 28 March, 2008

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Karnataka High Court

Muniyappa vs Kendamma & Anr on 28 March, 2008

Bench: D.V.Shylendra Kumar

 

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1!! THE HIGH courrr or 
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Dated this the 28th (mag; dfMVa£jch;%«  
'rm: Holrnu: MR  l) V'= 
Regular,  A 275 bf"1 39$?'

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MUNIYAPPA,..~,     =
we MUNIVi43N§{;_R'FAPP:\,  _  " 

AGED 35;-Y"EA«RS--,~--':-_V '     »

R/A MI'I'I'£.I~JL§;_I;AHALLI,_  "  

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K.G:F.    _  APPELLANT

M    Aravtind, Adv., for
"   S1-*.i_. MV. Seshachala, Adv.,]

' Q " 1  V »  KENJSAMMA,
 * ...V'w./'ovE_NKATAPPA,

 V.MUi§_5iY.APPA,
" As/0 VENKATAPPA,

""BO'I'H ARE R/A
[SANDRA VILLAGE,
KAMMASANDRA POST,
BETHAMANGALA HOBLI,
BANGARPET TALUK.  RESPONDENTS

[By Sri. N. Murali, Adv., for M[ 3. B. Vccrappa and Associates, Advs.,] 1 § Iulu.

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E 3 3 2 R 2 THIS RSA 18 meg we we es? C?C_4vA§;'n¢;II-EST THE JUDGMENT AND eeeeee {DATED 25.:1.:99e_r.PAeee.e. BY THE ervn, JUDGE, 1-<:,c:;.F,, EN RANO' 38 OF 199:3, ALI',Ve.§VI--;M,_C;e_'rHe APPEAL EN PART AND MODIFYING THE JUeGMENTr.Are:> --DE:c'£2_Ee DT: 25.03.1992 PASSEIL} BY THE ADDL. M~uNs"r:?F;'1.,§5{,<3.P1,'ex: es :~:<:>. 1'?'4<I)F'1984ANDETC., ; "THIS APPEAL, COMING o:§:,1"«'c;%_e rHe§;e1:'~:e'y 'm e' " c:<:rm:rr DELIVERED THE FQ.yLa:>w1;«::::----.. ' ' The second p1a3°3:1tiﬁ' in OS No. 1374/4 possession and mesne as' many as 112 parceie ef " ';}T1OLiS(': propezty, had been ﬁhe sense, except for one pareei of _ e;griei:$t1;zreVV£e1:;ic1 iﬁitem No.10, the suit was decreed fer . """ "claimed by the piajntiﬁ' and was 3130 V r_dee}az:ed4'A'thé;t he Was entitled to recover possession from 'A No.2, but that decree having been reversed by" .eV__r3:ae iower appeliate court in Regular Appeai H * / 1992 preferred by the 23*' defendant in the suit and E the lower appeilate court: having denied the half share in IOURT OF KARNATAKA l-RGH COURI. KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA PJIGH COUR1 respect of several suit: itemsg though had been decreed by ..UUl(I UP KARNATAXA HIGH KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COUR1 3 the trial Court particularly indicating that the was not entitled for any share in respect of .1, 3, 4, 6, 11 and 12 in terms of it$,j;1dgm_e'rit"aiidiiicieereeidated 2:'3.11.1996 this appeal by "

decree as origirialljv grariteéiby the '2. The case of he is the grandson of one Na:1j'appa" " pre---deceased daughtei? of the death of his that his grandfather are the sons of one Mimieiizaiiiy iai3€1'A:he§..'o'1iad partitioned the family properties "1ife__1;ime; that Nanjappa had no other heir and ' :v'"<3iec¥__i'1:1iorjaround the year 1972 and the plaintiff being the G' the properties that had falien to the share o£'~?~ia;1jappa is eati.tled to succeed to all such properties of Nanjappa; that the Stiiit properties are the family properties of Nanjappa and Venkatappa though been partitioned, remained in the joint possession of the parties 4 and therefore, the piaintiﬁh entitiement 0f_'.i\1;_§';1j3if.sV_}1are of Nangappa as a sale successor of be declared and defendants __Tw.'Ii,1_<_>' are" " Vemkatappa, the brether of "

tr) hand ever posseseieit~._V:vL"efA decree to this eifectand meerie 'proﬁts

3. The defendan.¥,i?O..?K%et9e of Venkatappa i1npieadet{ 'uﬁe Kendamma and the 5011 of 1V1;.:~:;V'se<:0I1d Wife Munemma. by 1133116 M Ltr1€§:a.ppa as 2nd defendazlt.

4}, _ While the AIS? iiefenciant, the 15' Wife of Venkatappa '.3 stetetnent, fully supported the claim of plaintiff, évdefendant ﬁled written statement contested the A by way of two pleas, ﬁrstiy that the plaintiff Twa"sV__A:.a1ot a relative of Nanjappa at 211} to claim as a iegal V' " -ﬁeir of Nangeppa and secondly, that no partition had COURT OF KARNATAKA. HJGH KARNATAKA HJGH COURT OF KARNAYAKA HIGH COURT OF KARNATAKA HJGH COURT OF KARNATAKA HIGH COUR1 taken place between Nanjappa and Venkatappa during their Iife time and therefere, the suit sheuid be dismissed, 1.13%.}!!! U!' KARNAIAKA H§G%~i KARNA1-AKA "I63 CQUR1 0; KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF i(ARNAfAE(A HEGH COUR 5

5. It is in the light of such pleadings the had framed the following seven issues.

1. Whether plaintgﬂ' 0 the daughter K 1 A

2. Whethefthe proves is the legal '4 to fvihe" of"'N"anjappa deseribe¢":Z- in the ;.§lt;irit.s:;heciule?

.3. pfcauésthat Nanjappa ;'céLz3uu5red=._th:e properties at a izi'msel_f' and his brother e p£aintzj_7' is entitled for " ' 'dec1arati;5;e.__bftii£e and possession?

is entitled to mesne . defencicmt proves that the suifisbarred bylimitation?

the defendant No. 2 proves that is the owner of the suit schedule * _ properties?

8. To what decree or order?

" '6. Parlies went to trial on such issues. On behaif cf the plaintiff, five persons gave evidence including the plaintiff, who deposed as PW1 and the ﬁrst defendant 8 already been gifted in terms of Ex? 18 by betii-ﬁianjappa and Venkatappa in favour of of Venkaappa. 4

9. It is signiﬁcant to i.e. the wife of Venkatnbne, ilie seeond defendant was ._w_eVi§113p0rteVVdOi the ease of the plaintiff of the piaintiff indicating: as between Nanjapixe ithey were enjeyirig their daughter of Iienciamnixa Le. gifted some of the suit. items to "extent VVVICC/3?? share of Nanjappa under EXP 19 giﬁ:

'n.,eieeei;_i1Ve{d..deposed in favour of the plaintiﬁ' stating that ~. V"O.tICiefe:'«£vﬁas'V.;.3Iior partition between her father Venkatappa Nanjappa; that her father Venkatappa had AA ' xiisteibuted his half share in the properties in favour of his '»'ﬁi'st wife Muniyamma to an extent of 2/ 331 of his share COURT OF KARNATAKA HIGH COURT. KARNATAKA HIGH COURT OF KARNATAKA HJGH COURT OF KARNATAKA I-HGH COURT OF KARNATAKA HIGH COUR' and the remaining 1/ 3rd share had been gven to her under the gift deed Ex? 19. The second defendant was uuuul ur :uummA:sA I-nu ' ' H KARNATAKA HIGH COURT OF KARNATAKA H16!-I COURT OF KARNATAKA HIGH COURT OF KARNATAKA I-HG!-I COUR 9 not a legal heir of Nanjappa, These, the evidence of PW3 Thimmappa -~ who has deposed that there véfas 81 bettveeit Nanjappa and Venliatapgjaaeundwdeven one on behalf of the defendantet: die case of the plaintiff stating tIV1at.V:t'{t1etfe i)i'iQr partition between

10. It is lddetate aggieved second defendant eioneé' 38 of 1992, on the ﬁle of Principal contending that the decree"pessed by the trial court is contrary tohletv the evidence on record etc. In the light suoh the Lower Appeﬂate Court formulated

- »%_t.t'_jthe'£'o11owir1gV'points for its determination :-

Whether the piainteﬂ' has proved that ? Ncmjappa had a daughter by name Chinnakka and he is her son?

2. Whether he has proved that he suit properties had fallen to the share of .'GURT OF KARNATAKA HIGH KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COUR1 1 1 frem the suit items, in respect 01' which had, trial eeurt had granted decree in favour of

11. In the light of this subnlissler:;ei"__the' §;ji:1:1eel for the appellant, the exagninetiela in "ivsltoe be eonfmecl to the answer by tile. judge of the lower appellate c:o':..on E . . %

12. At tlleliime qlfvledlijiseitijlm ieourt had formulated the 'questions of law for e0z1sicle«rf;lijieIl': -thie "seedr1dv~-eippealz I ' lower appellate Court has = . cemleztteel 'an error in coming to the "conc1z§t$rb;*z;' that item Nos. 1, 3, 4, 6, 10, 11 and 12 are not the properties of Nanjappa?

'iﬁ/hether there is any erroneous ﬁnding in 'respect of the gift deed ---- Ex.P. 18?

13'. Appearing on behalf of the appellant Sri Aravind, A * ._lea_med counsel, by drawing attention of the court to the E answer given by the lower appellate court; in respect of point No 2 eubmits that the learned judge of the lower JOURT cs KARNATAKA men co * _ ulvojof i(£t.RNATAKA HIGH coum or KARNATAKA HIGH COURT or KARNATAKA i-IIGH COURT or KARNATAKA I-HGH cook:

be decreed and it does not necessarily girozfe What Venkatapea had gteci under this deed isthe faxniiy properties. The fact that there---- at before is established by oral et%ider1ee._of_"wii:iesSes anti. "

even subsequent such as deed of the year 1967.

19. However, indicated that = of the properties mentio1i1et1*ii_44_"i3't»V. favour of his daughter through " _ daughter, who has deposed thatifher father had distributed his half share " between Vehis step-mother Mtmiyaxnma and herself. also was executed during the life time of has not shown any objection to the same life time. It is for this reason, I hold that while .' A' "these. documents are binding on Nanjappa and therefore 'foh the plaintiﬁ; who is claiming only through him, it does not necessarily mean Nsnjspps did not have any other §/1 IOURT or KARNATAKA HIGH COURTGF. KAR , NATAKA HIGH COURT or KARNATAKA HIGH count or KARNATAKA HIGH count or KARNATAKA men COUR1 22 examinatioI1 is to be answered in favour of t1j1e.._s.ppeilant- plaintiff and against the :espondent~seconi:1.'defendant. _

22. However, that is not mceiiénczi as i9 deeds and EXPQO sale his life time, are of; by Nanjappa or Venkita.;3pa_'_'i tinie and when both of theni' living, ioroperties transacted therein of one or the other to the i mentioned therein have been .resnective deeds bind the parties clauﬁisg 'persons and both the plaintiff and sec:on'ci.. _V_defen'dant. But the same logic Cannot be contended by Sri Murali, learned counsel for ._ :"'t_1";e" that because of this, in respect of all iii}? which the swond defendaziﬂs father ii 'iifenitetappa had indicated to be his also to be taken his tiroperties, though not aetuaﬂy disposed of under any of these instrL1me;{1ts, but retained for himself. I do not accept this submission for the reason that by mere V ..OURT OF KARNATAKA HIGH KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COURT OF KARNATAKA HIGH COUR1 25 than the second defendant or persons under second defendant. It is also made clear. atliecree is for half share of the s13it_if:¢n1s .a1"ier:f_a:{c1udi11g "t3jé~- properties which had alreaﬁy " ::.;f1<:1ei*~.A ] EXPIS, 19 and 20 and ktéqme exteﬁt margin. In respect of the remairﬁﬁg 181111" --.§{:I'1<.~:'é£1l€_:A pfoperties, the p}.aiI1t1'ﬁ' is entitled Om: iuaat he has got half share and §:1i3.ti"£lt_3d 1':'<'3i'V'1*'ec.{o*.r_:c':r:Vg/f of poséession.

23. A;5p§a1_'f;is in as irlciicated above. Panties :01 Ot$O€«e1rVV_ti2eir.Lf<::s_pec'tive costs. Sd/-5"

Judge §Vﬁﬁ§"O

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