Karnataka High Court
Smt Puttakalamma vs Smt. Chandramma on 2 July, 2014
Author: Jawad Rahim
Bench: Jawad Rahim
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 2ND DAY OF JULY 2014
BEFORE
THE HON'BLE Dr. JUSTICE JAWAD RAHIM
REGULAR SECOND APPEAL NO.928 OF 2013
BETWEEN:
1. SMT.PUTTAKALAMMA
AGED ABOUT 83 YEARS
W/O LATE BHADRACHAR
R/A SHANUMANGALA
BIDADI HOBLI - 562 109
RAMANAGARA TALUK AND DISTRICT
2. SMT.LALITHAMMA
AGED ABOUT 62 YEARS
W/O CHANDRAPPA
3. SAMPATH KUMAR
AGED ABOUT 58 YEARS
S/O LATE BHADRACHAR
APPELLANTS 2 AND 3 ARE
RESIDING AT BIDADI
TOWN - 562 109
RAMANGARA TALUK AND DIST.
4. HUCHEERAPPA
AGED ABOUT 49 YEARS
S/O LATE BHADRACHAR
R/A SHANUMANGALA
BIDADI HOBLI - 562 109
RAMANGARA TALUK AND DISTRICT
5. SMT.SUVARNA
W/O SRI.RAVI KUMAR
AGED ABOUT 45 YEARS
RESIDING AT BIDADI TOWN - 562 109
RAMANGARA TALUK AND DIST.
... APPELLANTS
2
(BY SRI.N.SUBBASHASTRY, ADV.)
AND:
1. SMT.CHANDRAMMA
AGED ABOUT 67 YEARS
W/O BHASKARACHAR
R/AT DEVALINGAYANAPALYA
BIDADI HOBLI - 562 109
RAMANGARA TALUK & DIST.
2. SMT.KAMALAMMA
W/O RAVISHANKAR
AGED ABOUT 45 YEARS
R/A SHANUMANGALA
BIDADI HOBLI - 562 109
RAMANAGARAM TALUK & DIST.
3. SMT.SUJATHA
W/O BASAVARAJU
AGED ABOUT 43 YEARS
R/A HOLALU VILLAGE
MANDYA TALUK - 571 401
MANDYA DISTRICT
4. SAMPATHKUMAR
S/O BHASKARACHAR
AGED ABOUT 41 YEARS
5. SHIVANNA
S/O BHASKARACHAR
AGED ABOUT 39 YEARS
6. NAGARAJU
S/O BHASKARACHAR
AGED ABOUT 37 YEARS
7. RAVIKUMAR
S/O BHASKARACHAR
AGED ABOUT 39 YEARS
8. KUM.PANKAJA
D/O BHASKARACHAR
AGED ABOUT 32 YEARS
3
9. PRAKASH
S/O BHASKARACHAR
AGED ABOUT 26 YEARS
SINCE DEAD BY HIS LR'S
(a) SMT.LALITHA K.R..
W/O LATE B.PRAKASH
AGED ABOUT 28 YEARS
(b) BABY LIKITHA P
D/O LATE B.PRAKASH
AGED ABOUT 6 YEARS
SINCE MINOR
REPRESENTED BY
HER NATURAL GUARDIAN / MOTHER
SMT.LALITHA K.R.
10. KUM.SHYLAJA
D/O BHASKARACHAR
AGED ABOUT 29 YEARS
11. KUM.MANJULA
D/O BHASKARACHAR
AGED ABOUT 27 YEARS
12. LOKESH
S/O BHASKARACHAR
AGED ABOUT 25 YEARS
RESPONDENTS 4 TO 12 ARE ALL
RESIDING AT
DEVALINGANAPALYA
BIDADI HOBLI - 562 109
RAMANGARA TALUK AND DIST.
13. RAVI KUMAR
S/O BHADRACHAR
AGED ABOUT 49 YEARS
R/A SHANUMANGALA
BIDADI HOBLI - 562 109
RAMANGARAM TALUK & DIST.
...RESPONDENTS
(BY SRI.S.V.PRAKASH ADV. FOR R1 TO R8)
4
THIS RSA IS FILED UNDER SEC.100 OF CPC,
AGAINST THE JUDGEMENT AND DECREE DATED 18.02.2013
PASSED IN R.A.NO.161/2008 ON THE FILE OF PRINCIPAL
SENIOR CIVIL JDUGE AND C.J.M., RAMANGARA, PARTLY
ALLOWING THE APPEAL AND PARTLY SETTING ASIDE THE
JUDGMENT AND DECREE DATED 4.11.2008 PASSED IN
O.S.NO.32/2006 ON THE FILE OF CIVIL JUDGE (JR.DN.)
AND JMFC, RAMANGARAM.
THIS R.S.A COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING
JUDGMENT
Defendants are in second appeal against the judgment in R.A.No.161/2008 whereby, the 1st plaintiff- Smt.Chandramma, step-sister of the appellant has been granted a share in the property of the joint family. The appeal has come up for admission, after notice to the respondents who are represented.
2. Heard regarding admission.
3. From the submissions of the learned counsel on both the sides and on perusal of the judgment of the appellate Court, I find that appeal could be admitted and taken up for final disposal as the issues arising for consideration are within narrow compass. 5
4. Hence, appeal is admitted to consider the following substantial questions of law:
(i) Chandramma, the 1st plaintiff admittedly is the daughter of Bhadrachar who is biological father of the appellants, but the maternity of the plaintiff is through other wife. In view of such undisputed relationship will she not be entitled to a share in which her father would have acquired on division of the joint family properties or whether the determination of share as done by the Appellate Court is right?
(ii) Whether the trial Court was justified in dismissing the suit on question of limitation?
5. The facts not in dispute are Smt.Chandramma filed a suit in O.S.No.32/2006 on the file of Civil Judge (Jr. Dn.) & JMFC seeking a decree for partition of the property described in the schedule to assign to her 1/8th share therein on the premise that she is the daughter of Bhadrachar and the appellants 2 to 12 are her step brothers and sisters, while the 1st appellant is her step-mother. Bhadrachar had married Smt.Gowramma and Puttakalamma. 1st plaintiff is the daughter of Gowramma. 6 1st defendant is the second wife of Bhadrachar. Defendants 2 to 5 are children of 1st defendant, while plaintiffs 2 to 11 are children of 1st plaintiff.
6. The properties described in the schedule are admittedly joint family properties owned and enjoyed by the co-parceners.
7. It is alleged that without her consent, the defendants obtained change of Khatha in their names creating sufficient apprehension in her mind that they would defraud her. Thus, she sought for partition when the defendants failed to accept her request.
8. She sought decree to grant her 1/8th share in the property in question.
9. Defendants 1 to 3 and 5 to 6 entered contest and filed written statement and admitted the genetic relationship between the parties. They also admitted the properties are ancestral properties of Hindu Undivided Family belonging to 1st plaintiff and the defendants. However, they disputed other plaintiffs are entitled to share in the properties in question. Besides they also averred that 1st plaintiff Puttaveeraiah had 3 sons viz., 7 Shrikantachar, Gangachar & Bhadrachar who are all dead. Bhadrachar died on 27.03.1973 and at that time there was no partition. Plaintiff was married and was residing with her husband. 1st defendant and three sons divided the suit property amongst themselves in the year 2001 and each one is entitled to a definite share as spelled out therein. The property is a house property was not included in the partition and thus, the suit for partition is bad. They also described the suit as barred by limitation on the ground their father died in the year 1973 and till 2006 plaintiff having not sought partition has abandoned her right and the suit is therefore is barred in law.
10. The learned trial Judge framed following issues for consideration and accepting the defendants case that suit was barred by limitation, dismissed the suit. Assailing it, the plaintiffs were in R.A.No.1261/2008 reiterating the plea as advanced before the Trial Court. The learned Appellate Judge referring to provision of Article 110 of the Limitation Act opined the suit could be filed within a period of 12 years from the date the person is dispossessed from the joint family properties, but in the instant case, there is no allegation of plaintiff having been dispossessed from the 8 joint family properties. There was no ouster and hence, the suit was maintainable.
11. The said finding is questioned by the defendants in this appeal. Besides the learned appellate Judge has granted decree as prayed for to the plaintiffs, but apportioned the property granting her 49/8th share in the schedule property.
12. Mr.N.Subbashastry, learned counsel appearing for the appellants-defendants would submit first of all the learned Appellate Judge was erred in holding the suit was in time, when Articles 109 & 110 of the Limitation Act would clearly spell out period of limitation as 12 years. If period of limitation is reckoned, from 1973, the suit filed is barred by time. With regard to 49/8th share, he submits it is also incorrect.
13. Mr.S.V.Prakash, learned counsel appearing for the respondents-plaintiffs would submit dismissal of the suit filed by plaintiffs 2 to 5 is just and proper and he has not questioned the same. He submits that the trial Court had erroneously applied Articles 109 & 110 of the Limitation Act 9 to non-suit the plaintiff because both the Articles do not apply to the facts of this case.
14. I am also satisfied that Article 109 of the Act was not applicable because that Article is applicable to a Hindu who seeks setting aside father's alienation of the joint family property, that was not the case on hand. As per Article 110 of the Act is concerned, if a person is excluded from the joint family property, then to enforce the right to seek a share 12 years is described.
15. In the instant case, the defendants have not taken a categorical stand that they had ousted the plaintiff from the joint family and if so, they failed to establish when. In the circumstances, the doctrine of tenancy in common applies and therefore, in the absence of defendants pleading, period of time from when the plaintiffs are excluded from the joint family properties, the learned Trial Judge could not have applied Article 100 of the Act to non- suit the plaintiff. The appellate Court is right in setting aside those findings of the Trial Court.
16. Coming to the issue proper, in view of the admitted genetic relationship between the parties and also 10 the fact that the plaintiff was born prior to 1956 she will be entitled to share with the other children of Bhadrachar in the share that he would acquire. The proposition for division would be a share of Bhadrachar in notional partition had to be determined and the share he would get by notional partition would again be divisible amongst the LRs who are the plaintiffs and defendants. As plaintiffs & defendants are totally 7 in number, the plaintiff No.1 would be entitled to 1/7th share in the share of Bhadrachar, which he would get on partition of the property in question. To this extent, the judgment of the appellate Court needs modification, while I find other findings needs no interference. Hence, the appeal is allowed in part modifying only this share to which the plaintiff would be entitled as 1/7th in the share, which Bhadrachar would acquire on division of the joint family properties and not 49/8th share as determined in the appeal.
Draw up decree accordingly. In the circumstances, no order as to costs.
Sd/-
JUDGE SS