Karnataka High Court
Smt Yashoda vs Kamalamma on 26 June, 2014
Author: Aravind Kumar
Bench: Aravind Kumar
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 26TH DAY OF JUNE, 2014
BEFORE
THE HON'BLE MR.JUSTICE ARAVIND KUMAR
REGULAR FIRST APPEAL NO. 1541/2010
BETWEEN:
1. SMT. YASHODA
W/O LATE SANGAMESH
AGED ABOUT 38 YEARS
2. K.S. CHETHAN
S/O LATE SANGAMESH
AGED ABOUT 18 YEARS
3. K.S. SUMA
D/O LATE SANGAMESH
AGED ABOUT 16 YEARS
APPELLANT NO.3 BEING MINOR
REP. BY HER NATURAL GUARDIAN
MOTHER APPELLANT NO.1
ALL ARE RESIDENTS OF
SHIRAMAGONDANAHALLI VILLAGE
DAVANAGERE-TQ. DIST-577004 ... APPELLANTS
(BY SRI.M.R.HIREMATHAD, ADVOCATES)
AND:
1. KAMALAMMA
W/O LATE KARIYAPLA SHIVAMUTHAPPA
AGED ABOUT 60 YEARS
R/O SULTHAMIPURA VILLAGE
DAVANAGERE-TQ-577006.
2. SMT. LEELA @ MURIGEMMA
W/O R.R. BASAVARAJ
AGED ABOUT 40 YEARS
R/O TARALABALU EXTENSION
2
DAVANAGERE-577 002 ... RESPONDENTS
(BY SRI.R.GOPAL, ADVOCATE FOR R-1 & R-2)
THIS APPEAL IS FILED UNDER ORDER 41, RULE-1
AND 4, R/W SECTION 96 OF C.P.C. PRAYING AGAINST THE
JUDGMENT & DECREE DATED 01.06.2010 PASSED IN
O.S.NO.334/2009 ON THE FILE OF THE II-ADDL. DISTRICT
AND SESSIONS JUDGE, DAVANAGERE, DECREEING THE
SUIT FOR PARTITION AND MESNE PROFITS.
THIS APPEAL COMING ON FOR ORDERS THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This is a defendants' appeal challenging the judgment and decree passed by II Addl.District & Sessions Judge, Davanagere in O.S.No.334/2009 dated 01.07.2010 whereunder suit filed by plaintiff for partition has been decreed.
2. Since suit is of the year 2009, records of trial Court have been secured. By consent of learned Advocates appearing for the parties, this appeal is taken up for final disposal though listed for admission.
3
3. I have heard arguments of Sriyuths M.R.Hiremathad, learned Advocate appearing for appellants and Sri R Gopal, learned Advocate appearing for respondents-1 and 2.
4. Facts in brief leading to filing of this appeal can be crystallized as under:
Plaintiff and defendants are mother and children of late Sri Shivamurthappa. Sri Shivamurthappa's son by name Sri Kubendra, who according to plaintiff, had expired prior to filing of the suit. It was contended by the plaintiff that defendants father Sri Shivamurthappa was the owner of suit schedule property and it was allotted to his share in a division in the family between himself and brothers in the year 1980. After the death of Sri Kubendra, plaintiff claimed to have inherited all rights, title and interest and constituted joint family and on death of Sri Shivamurthappa two years prior to filing of the suit, plaintiff and defendants inherited his right, title and interest of the property. It was contended that first defendant had fallen into bad ways and has been abusing the plaintiff with regard to her age and had driven away from the residence, as such, she was living with her daughter. Despite efforts made by Panchayatdars to settle the dispute, it did not yield any fruits. On account 4 of refusal of defendants to grant a share to plaintiff in the suit schedule property, she claimed partition and separate possession of suit schedule properties by metes and bounds and delivery of 4/9th share to her exclusively.
5. On service of suit summons, defendants appeared. First respondent alone filed written statement which came to be adopted by second defendant by filing a memo. First defendant did not deny relationship between parties and admitted that suit schedule properties were ancestral family properties allotted to the share of his father late Sri Shivamurthappa during the partition amongst his brothers in the year 1980. However, it was contended that during the life time to Sri Shivamurthappa, there was a partition on 12.10.1998 under which 03 acres towards the northern side of item No.1 of suit schedule property had fallen to the share of first defendant's father and similarly, 03 acres towards southern side had fallen to his share and an area of 01 acre 12 guntas towards western side of the suit schedule property had fallen to the share of his brother Sri Kubendran and each of the parties were in enjoyment of their respective shares. It was also contended that Sri Kubendran who had fallen ill was taken care of by first defendant and he had 5 bequeathed 01 acre 12 guntas which had fallen to his share in favour of first defendant under a Will dated 25.01.1999. He also contended that suit for partial partition is not maintainable on the ground that site No.95 which was purchased out of joint family funds has not been included in the suit and also land bearing Sy.No.61/1 measuring 4 acres 20 guntas which was sold to by his father and as such, he sought for dismissal of the suit. Second defendant had prayed for awarding her share in the suit schedule property and contended that she is ready and willing to pay necessary Court fee.
6. Subsequently plaint came to be amended and second defendant filed additional written statement on 31.12.2009 whereunder she admitted contents of the plaint and claimed 1/3rd share in the suit schedule properties and contended that she is ready and willing to pay necessary Court fee.
7. On the basis of the parties, trial Court had framed following issues for being adjudicated:
1. Whether the plaintiff proves that she and defendants are in joint possession and enjoyment of the suit schedule properties? 6
2. Whether the 1st defendant proves that during the life time of Shivamurthappa partitioned the family properties on 12-10-
1998 and in the said partition 3 acres 10 guntas on northern side in suit schedule property item no.1 given to the share of said Shivamurthappa (Husband of plaintiff)?
3. Whether 1st defendant proves that his brother Kuberappa has executed the Will dated 25-1-1999 in respect of 1 acre 12 guntas (which is on western side in the suit property item no.1 and it fallen to his share in the partition) in his favour?
4. Whether the Court fee paid is sufficient?
5. Whether the plaintiff is entitle for partition and separate possession of 4/9th share in the suit schedule properties?
6. Whether the plaintiff is entitle for mesne profits?
7. What order or decree?
Additional Issue:-
1. Whether defendant no.2 prove that she is entitled for 1/3 share in suit property as prayed?7
Plaintiff got herself examined as P.W.1 and also got examined one witness as P.W.2. She produced 9 documents and got them marked as Exs.P-1 to P-9. Defendants did not lead any evidence. Trial Court on appreciation of evidence, has decreed the suit by declaring that plaintiff is entitled for 1/4th share + 1/3rd share in 1/4th share of late Sri Shivamurthappa in the plaint schedule properties. It has also been held that defendants1(a) to (c) being legal heirs of defendant No.1 would be entitled to 1/4th share + 1/3rd share in 1/4th share of late Sri Shivamurthappa in the plaint schedule properties. Trial Court had further decreed the suit in favour of second defendant and holding that she is entitled to 1/4th share + 1/3rd share in 1/4th share of her father late Sri Shivamurthappa. Plaintiff's claim for mesne profits came to be disallowed. It is this judgment and decree which is challenged in this appeal by defendants 1(a) to (c).
8. It is the contention of Mr.Hiremathad, learned Advocate appearing for appellants that trial Court erred in not considering the fact that plaintiff had never questioned the Will dated 25.01.1999 executed by Sri Kubendra, second son of late Sri Shivamurthappa, according to which he had 8 bequeathed an area 01 acres 12 guntas in favour of his brother Sri Sangamesh i.e., deceased-first defendant and non consideration of this vital aspect has resulted in great prejudice. He would also contend that on account of legal representatives of first defendant being unable to place or substantiate their defence in its entirety either by cross examining the plaintiff's witness or by tendering evidence by themselves, they have been deprived of an opportunity and as such, by way of alternate plea, he would seek for remand of present appeal by setting aside the judgment and decree under challenge.
9. Per contra, Sri R.Gopal, learned Advocate appearing for respondents would submit that though sufficient time was granted by the trial Court, it has not been made use of by appellants i.e., defendants 1(a) to (c) to adduce evidence and they have utterly failed to substantiate their defence namely, Will propounded by them which is said to have been executed by Sri Kubendran. Hence, he seeks for dismissal of the appeal.
10. Having heard the learned advocates appearing for parties and on perusal of judgment and decree in question 9 and on reappreciating the entire evidence tendered before trial Court, this Court is of the considered view that following points would arise for my consideration.
(1) Whether judgment and decree passed by trial Court suffers from material illegality or material irregularity for want of non appreciation of available evidence and/ or erroneous appreciation of available evidence?
(2) What order?
11. Admitted facts having been delved upon hereinabove are not being discussed as it would be repetition of facts. It would suffice if geneology of the family of the original propositus is stated, which would be as under:
One Sri Shivamurthappa was married to Smt.Kamalamma and out of their wedlock, three children were born to them namely, two sons and one daughter i.e., Sriyuths Sangamesh, Kubendran and Smt. Leela. On the death of Sri Shivamurthappa, his wife had pleaded in the suit that she was driven out of her family residence and was having shelter in the house of her daughter and therefore filed the suit in question seeking partition and separate 10 possession of her share. Trial Court on appreciation of evidence, decreed the suit as stated herein above.
12. At the outset, contention of Mr.Hiremathad is examined, namely, appellants i.e., defendants 1(a) to (c) should be extended an opportunity to cross examine P.W.1 or tender evidence before trial Court requires to be considered for the purposes of rejection. Records would indicate that sufficient opportunity was granted to defendants-1(a) to (c) to cross examine P.W.1. No plausible explanation is tendered before this Court to indicate as to what prevented them from tendering their evidence and substantiate their defence raised in the written statement. No reasons, whatsoever, is offered. Hence, contention raised by Sri Hiremathad cannot be accepted and it stands rejected.
13. Turning back my attention to main contention of Sri Hiremathad that trial Court did not consider the plea of defendants 1(a) to 1(d) that late Sri Kubendran, namely, second son of late Sri Shivamurthappa had executed a Will dated 25.01.1999, has remained a plea without proof. Neither said Will has seen the light of the day nor defendants entered the witness box to substantiate their claim. In the 11 absence of said Will being produced and in the absence of evidence tendered to substantiate said plea, it cannot be gain said by defendants that trial Court ignored material evidence. Evidence available on record has been rightly appreciated, adjudicated and answered by the trial Court. Said finding recorded by the trial Court does not suffer from any infirmity either on facts or on law calling for interference at the hands of this Court.
14. Undisputedly, parties to the lis submit that original propositus having died intestate and plaintiff and defendants being members of the joint family are entitled to share which has been allotted by the trial Court. Judgment and decree in question does not suffer from any infirmity. Hence, point No.1 is answered in the negative i.e. against appellants- plaintiffs 1(a) to 1(c) and in favour of respondents namely, plaintiff and second defendant.
RE:POINT NO.(2):
15. For the reasons aforestated, I proceed to pass the following :
12
JUDGMENT (1) Appeal is hereby dismissed.
(2) Judgment and decree passed by II Addl.District & Sessions Judge, Davanagere in O.S.No. 334/2009 dated 01.06.2010 is hereby affirmed. (3) No order as to costs.
Sd/-
JUDGE *sp