Karnataka High Court
Rajendran. N vs Smt. Gowramma on 8 November, 2023
Author: S.R.Krishna Kumar
Bench: S.R.Krishna Kumar
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NC: 2023:KHC:40050
RFA No. 630 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 8TH DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR
REGULAR FIRST APPEAL NO.630 OF 2018 (PAR)
BETWEEN:
1. RAJENDRAN. N
S/O. NARAYANAPPA,
AGED ABOUT 33 YEARS,
2. CHANDRA SHEKAR
S/O. NARAYANAPPA,
AGED ABOUT 31 YEARS,
3. SMT. VANITHA
D/O. NARAYANAPPA,
AGED ABOUT 29 YEARS,
ALL ARE R/O. A.K. COLONY,
DODDANUKKUNDI, BANGALORE EAST TALUK
AND NOW RESIDING AT AYAPPANAGAR,
1ST BLOCK, 1ST MAIN, K.R. PURAM,
BENGALURU-560 036.
...APPELLANTS
(BY SRI. SRINIVAS V., ADVOCATE)
Digitally
signed by AND:
VANDANA S
Location: 1. SMT. GOWRAMMA
HIGH
COURT OF W/O. LATE HANUMAPPA,
KARNATAKA AGED ABOUT 65 YEARS.
2. SMT. BHAGYAMMA
D/O. LATE HANUMAPPA,
AGED ABOUT 42 YEARS,
3. MANJUNATHA
S/O. LATE HANUMAPPA,
AGED ABOUT 40 YEARS,
4. SMT. LAKSHMI
D/O. LATE HANUMAPPA,
AGED ABOUT 37 YEARS,
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RFA No. 630 of 2018
5. M. KENCHAPPA
S/O. LATE MUNIKENCHAPPA,
AGED ABOUT 65 YEARS,
6. MUNIRAVI
S/O. KENCHAPPA,
AGED ABOUT 37 YEARS,
7. NARAYANAPPA
S/O. LATE MUNIKENCHAPPA,
AGED ABOUT 58 YEARS.
8. MUNIYAPPA
S/O. LATE MUNIKENCHAPPA,
AGED ABOUT 50 YEARS.
9. BYLAPPA
S/O. LATE MUNIKENCHAPPA,
AGED ABOUT 47 YEARS.
10. SMT. GULLAMMA
D/O. LATE MUNIKENCHAPPA,
AGED ABOUT 83 YEARS,
11. SMT. NARASAMMA
D/O. LATE MUNIKENCHAPPA,
AGED ABOUT 62 YEARS.
RESPONDENT NOS.1 TO 11
ARE R/O DODDANUKKUNDI VILLAGE
K.R.PURAM, BENGALURU EAST TALUK.
12. G. VENKATADARI
S/O. G. VENKATAIAH,
AGED ABOUT 48 YEARS,
13. BASAVAIAH
S/O. LATE VENKATESHWARALU,
AGED ABOUT 51 YEARS,
RESPONDENT NOS.12 & 13 ARE
R/O.201, FORT VIEW APARTMENT,
NANJAREDDY COLONY, AIRPORT ROAD,
BANGALORE-17.
14. A. RAMAKRISHNA REDDY
S/O. LATE ANNAIAH REDDY,
AGED ABOUT 78 YEARS,
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RFA No. 630 of 2018
R/AT MUNNEKOLLALA VILLAGE,
VARTHUR HOBLI,
BANGALORE SOUTH TALUK.
15. AUSTIN ROACH
S/O. LATE P.A. ROACH,
AGED ABOUT 59 YEARS,
R/O. NO.1212, 100 FEET ROAD,
HAL II STAGE,
BANGALORE-560 009.
16. MRS. NEELU SHARMA
W/O. NEERAJ SHARMA,
AGED ABOUT 46 YEARS,
17. NEERAJ SHARMA
S/O. O.P. SHARMA,
AGED ABOUT 47 YEARS,
RESPONDENT NOS.16 & 17 ARE
R/O. NO.V-7, 8, 9, AIRFORCE STATION,
PALAM, DELHI-110 010,
P. 359/1, OFFICERS QUARTERS,
GANGAMMA CIRCLE, JALAHALLI,
BANGALORE-19.
18. SURESH REDDY
S/O. SHANKAR.C,
AGED ABOUT 43 YEARS,
19. MRS. GEETIKA REDDY
W/O. SURESH REDDY,
AGED ABOUT 41 YEARS,
RESPONDENT NOS.18 & 19 ARE
R/O. NO.244, FERNS CITY,
OUTER RING ROAD,
DODDANUKKUNDI,
MARATHAHALLI,
BANGALORE-37.
...RESPONDENTS
(BY SRI. S. SHIVANANDA, ADV. FOR R15;
SRI. D.K. NAGARAJ, ADVOCATE FOR R-18 & R-19;
VIDE ORDER DATED 25.04.2018 NOTICE TO R-1 TO R-14,
R-16 & R-17 ARE D/W)
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NC: 2023:KHC:40050
RFA No. 630 of 2018
THIS RFA IS FILED UNDER SECTION 96 OF THE CPC AGAINST
THE JUDGMENT AND DECREE DATED 02.02.2018 PASSED ON I.A.NO.2 IN
O.S.NO.5244/2013 ON THE FILE OF THE XXXIX ADDITIONAL CITY CIVIL
AND SESSIONS JUDGE, BANGALORE CITY, ALLOWING I.A.NO.2 FILED
U/O VII RULE 11 R/W/S 151 OF CPC FOR REJECTION OF PLAINT.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
This appeal by the plaintiffs in O.S.No.5244/2013 is directed against the impugned order dated 02.02.2018 passed by the XXXIX Addl. City civil & Sessions Judge, Bengaluru City, whereby the application - I.A.No.2 filed by respondent Nos.18 and 19 - defendant Nos.18 and 19 under Order VII Rule 11 r/w Section 151 CPC for rejection of plaint was allowed by the Trial Court, which consequently proceeded to dismiss the suit filed by the appellants
- plaintiffs.
2. Heard learned counsel for the appellants and learned counsel for the respondents and perused the material on record.
3. A perusal of the material on record will indicate that the appellants are the children of one Narayanappa and grand children of late Munikenchappa, who is alleged to have expired prior to institution of the suit. Appellants - plaintiffs instituted the aforesaid suit for partition and separate possession of their alleged share in 5 NC: 2023:KHC:40050 RFA No. 630 of 2018 the suit schedule immovable properties and for other reliefs. In the said suit, the appellants' father, Narayanappa was arrayed as defendant No.7 while his brothers, sisters and other family members were arrayed as the remaining defendants. It was specifically contended by the plaintiffs that the suit schedule properties were granted in favour of their grandfather, Munikenchappa and after his demise, the properties devolved upon his heirs and legal representatives viz., the plaintiffs and defendants, who were members of Hindu undivided joint family governed by Mitakshara Law and the suit schedule properties were joint family properties in which the plaintiffs and defendants were entitled to a share. It was further contended that since some of the defendants had alienated the suit schedule properties in favour of the defendant Nos.16 to 19 vide registered Sale Deeds 11.06.2021, 21.09.2002, 07.05.2003 and 28.07.2011 without giving the plaintiffs their legitimate share in the properties and since the said Sale Deeds were not binding upon the plaintiffs, they had instituted the aforesaid suit for partition and other reliefs.
4. The defendant Nos.18 and 19, who were alinees in respect of the suit schedule properties not only filed their written 6 NC: 2023:KHC:40050 RFA No. 630 of 2018 statement contesting the suit but also filed the instant application - I.A.No.2 under Order VII Rule 11 CPC seeking rejection of the plaint on the ground that the there was no cause of action for the suit, which was barred by limitation and not maintainable in law as well as for non-joinder of necessary parties. The said application having been opposed by the plaintiffs, the Trial Court proceeded to pass the impugned order allowing the application thereby rejecting the plaint and consequently, dismissing the suit, aggrieved by which the appellants are before this Court by way of the present appeal.
5. In addition to reiterating the various contentions urged in the memorandum of appeal and referring to the material on record, learned counsel for the appellants submits that the Trial Court committed an error in rejecting the plaint on the ground that the suit schedule properties were the separate and self acquired properties of the plaintiffs' grandfather - Munikenchappa, without appreciating that upon his demise, the suit schedule properties had become ancestral / joint family properties in the hands of the children of Munikenchappa including Narayanappa, the plaintiffs' father was arrayed as defendant No.7 in the suit. It was contended 7 NC: 2023:KHC:40050 RFA No. 630 of 2018 that since the suit schedule properties were ancestral / joint family properties, in which the plaintiffs were entitled to an undivided share along with the defendants, the alienations made in favour of the defendant Nos.15 to 19 were not binding upon the plaintiffs and so long as there were averments in the plaint regarding the suit schedule properties being joint family properties and the relationship between the parties was not in dispute, the Trial Court could not have rejected the plaint based on the defence put-forth by the defendant Nos.18 and 19, which was extraneous to examination / adjudication of an application under Order VII Rule 11 CPC. It was therefore contended that the impugned order passed by the Trial Court deserves to be set aside and the suit be restored to the file of the Trial Court for disposal on merits, in accordance with law.
6. Per contra, learned counsel for respondent Nos.18 and 19 would support the impugned order and submit that there is no merit in the appeal and the same is liable to be dismissed. Learned counsel placed reliance upon the judgment of the Apex Court in the case of Uttam Vs. Saubhag Singh and others - (2016) 4 SCC 68.
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7. I have given my anxious consideration to the rival submissions and perused the material on record.
8. The points that arises for consideration in the present appeal are as under:
(i) Whether the Trial Court was justified in holding that the suit filed by the plaintiffs was not maintainable thereby rejecting the plaint and consequently, dismissing the suit?
(ii) Whether the impugned order passed by the Trial Court is correct and proper ?
9. Before adverting to the rival contentions, it has to be stated that it is well settled that for the purpose of consideration of an application under Order VII Rule 11 CPC for rejection of the plaint, it is only the plaint averments and documents produced by the plaintiffs that are relevant and germane and neither the defence put-forth by the defendants or the documents produced by them nor the contentions urged in the application can be looked into for the purpose of rejection of plaint. In this context, it is necessary to refer to the Genealogical Tree of the family of Munikenchappa and extract the relevant portions of the plaint of the appellants - plaintiffs, which are as under:
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NC: 2023:KHC:40050 RFA No. 630 of 2018 FAMILY TREE OF MUNIKENCHAPPA Hanumaiah@ Kenchappa Narayanappa Bylappa Muniyappa Gullamma Narasamma Hanumappa (Def No.5) (Def No.7) (Def No.9) (Def No.8) (Def No.10) (Def No.11) Rajendran (son) Chandra Shekar (son) Vanitha (daughter) (Plaintiff No.1) (Plaintiff No.2) (Plaintiff No.3) Bhagyamma Manjunath Lakshmi (Def No.2) (Def No.3) (Def No.4) Para Nos.2, 3, 4, 5 and 6 of the plaint averments reads as under:
"2. That the plaintiffs submit the defendant No.7 is the father of the plaintiff. The defendant No.1 is the aunt of the plaintiffs and the defendants No.2 to 4 is the children of defendant No.1. The defendant No.5 is the uncle of the plaintiffs and defendant No.6 is the son of the defendant No.5. The defendant Nos.8 and 9 are the uncle of the plaintiffs and the defendant Nos.10 and 11 are the aunt of the plaintiffs and thus the plaintiffs and the defendants No.1 to 11 have constituted Hindu Undivided Joint Family and are governed by Hindu Mithakasara School of Law and the copy of the Genealogical tree is herewith produced and marked as Annexure A.
3. That the plaintiffs submit that Sri.Munikenchappa, who has been working as Thoti in and 10 NC: 2023:KHC:40050 RFA No. 630 of 2018 around the said village and the said Munikenchappa, who is none other than the grand father of the plaintiffs and on the basis of the services rendered by Munikenchappa the land bearing Sy.No.56 measuring 1 Acre 26 guntas and Sy.No.7 measuring 0.27 guntas situated at Doddanukkandi Village K.R.Pura, Bangalore South Taluk, and now Bangalore East Taluk and his name has been entered in the Record of rights from the 1967-68 till 1997-98 are herewith produced as Annexures B series.
4. That, the plaintiffs submit that the afore-said Munikenchappa has been exercising his absolute ownership over the said leads in question and he died leaving behind Gullamma, who is defendant No.10, Hanumaiah, who is no more leaving behind the defendants No.1 to 4, Kenchappa, defendant No.5 Narasamma, who is defendant No.11 Narayanappa, who is the defendant No.7, Muniyappa and Bylappa, who is the defendants No.8 and 9 to succeed his estate and subsequent to the death of Munikenchappa the afore-said male members viz., Hanumanthaiah, Kenchappa, Narayanappa and Bylappa and Muniyappa came to be entered in Sy.No.56 and Sy.No.7 and the copy of the same is herewith produced and marked as Annexure C.
5. That, the plaintiffs submit that the said land bearing Sy.No.56 measuring 1 Acre 26 guntas and Sy.No.7 measuring 0.27 guntas situated at Doddanekkundi Village, KR Puram Hobli, Bangalore East Taluk, which is more fully described in the schedule hereunder and hereinafter referred to as SUIT SCHEDULE PROPERTIES.
6. That the plaintiffs submit that the defendants 1 to 11 have been in joint possession and enjoyment of the suit 11 NC: 2023:KHC:40050 RFA No. 630 of 2018 schedule properties and the suit schedule properties has not been partitioned so far between the plaintiffs and the defendants 1 to 11."
10. In Uttam's case supra, the Apex Court has held as under:
"18. Some other judgments were cited before us for the proposition that joint family property continues as such even with a sole surviving coparcener, and if a son is born to such coparcener thereafter, the joint family property continues as such, there being no hiatus merely by virtue of the fact there is a sole surviving coparcener. Dharma Shamrao Agalawe v. Pandurang Miragu Agalawe (1988) 2 SCC 126, Sheela Devi v. Lal Chand (2006) 8 SCC 581 and Rohit Chauhan v. Surinder Singh (2013) 9 SCC 419:
(2013) 4 SCC (Civ) 377 were cited for this purpose. None of these judgments would take the appellant any further in view of the fact that in none of them is there any consideration of the effect of Sections 4, 8 and 19 of the Hindu Succession Act. The law, therefore, insofar as it applies to joint family property governed by the Mitakshara School, prior to the amendment of 2005, could therefore be summarised as follows:
(i) When a male Hindu dies after the commencement of the Hindu Succession Act, 1956, having at the time of his death an interest in Mitakshara coparcenary property, his interest in the property will 12 NC: 2023:KHC:40050 RFA No. 630 of 2018 devolve by survivorship upon the surviving members of the coparcenary (vide Section 6).
(ii) To proposition (i), an exception is contained in Section 30 Explanation of the Act, making it clear that notwithstanding anything contained in the Act, the interest of a male Hindu in Mitakshara coparcenary property is property that can be disposed of by him by will or other testamentary disposition.
(iii) A second exception engrafted on proposition (i) is contained in the proviso to Section 6, which states that if such a male Hindu had died leaving behind a female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative surviving him, then the interest of the deceased in the coparcenary property would devolve by testamentary or intestate succession, and not by survivorship.
(iv) In order to determine the share of the Hindu male coparcener who is governed by Section 6 proviso, a partition is effected by operation of law immediately before his death. In this partition, all the coparceners and the male Hindu's widow get a share in the joint family property.
(v) On the application of Section 8 of the Act, either by reason of the death of a male Hindu leaving self-
acquired property or by the application of Section 6 proviso, such property would devolve only by intestacy and not survivorship.
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(vi) On a conjoint reading of Sections 4, 8 and 19 of the Act, after joint family property has been distributed in accordance with Section 8 on principles of intestacy, the joint family property ceases to be joint family property in the hands of the various persons who have succeeded to it as they hold the property as tenants-in- common and not as joint tenants.
19. Applying the law to the facts of this case, it is clear that on the death of Jagannath Singh in 1973, the joint family property which was ancestral property in the hands of Jagannath Singh and the other coparceners, devolved by succession under Section 8 of the Act. This being the case, the ancestral property ceased to be joint family property on the date of death of Jagannath Singh, and the other coparceners and his widow held the property as tenants-in-common and not as joint tenants. This being the case, on the date of the birth of the appellant in 1977 the said ancestral property, not being joint family property, the suit for partition of such property would not be maintainable. The appeal is consequently dismissed with no order as to costs."
11. A perusal of the aforesaid plaint averments will indicate that the plaintiffs have put-forth the following contentions:
(a) Plaintiffs and defendants belongs to a Hindu Undivided Family governed by Mitakshara Law;14
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(b) The plaintiffs' father Narayanappa - defendant No.7 was the son of late Munikenchappa, paternal grandfather of the plaintiffs and defendant No.5, 8 to 11 were the other children of Munikenchappa.
(c) The suit schedule properties had been granted in favour of Munikenchappa prior to 1967 itself and he was exercising absolute ownership over the said lands.
12. The plaint averments indicate that the plaintiffs have unequivocally and unambiguously admitted, averred and stated that the suit schedule properties were the separate and self acquired properties of Munikenchappa. Further, except stating that the plaintiffs and defendants were members of the Hindu Undivided Family, there is no clear averment in the plaint that the suit schedule properties were either joint family / ancestral properties; on the other hand, the plaintiffs themselves admit that the properties were the separate and self acquired properties of Munikenchappa leading to the sole inference that the properties would devolve upon the plaintiffs' father Narayanappa, defendant No.7 and other children of Munikenchappa under Section 8 r/w Section 19 of the Hindu Succession Act, 1956 (for short, 'the HSA 15 NC: 2023:KHC:40050 RFA No. 630 of 2018 Act') as a result of which, the plaintiffs would not be entitled to claim any share in the suit schedule properties during the lifetime of their father - Narayanappa, the defendant No.7 in the suit as held in Uttam's case supra.
13. In this context, it is also relevant to state that even assuming that the plaint averments can be construed and treated as plaintiffs having put-forth contentions that the suit schedule properties were joint family / ancestral properties, even then, in the light of the undisputed fact that the properties were granted in favour of Munikenchappa somewhere around 1967 and he died subsequently, i.e., after coming into force of the HSA Act in the year 1956, the suit for partition filed by the plaintiffs - grandchildren against their father - Narayanappa and other children of Munikenchappa was not maintainable in the light of the judgment of the Apex Court in Uttam's case supra, wherein it is held that irrespective of whether the suit schedule properties were joint family / ancestral properties or the separate and self acquired properties of Munikenchappa, they would devolve by succession in accordance with Sections 6 and 8 r/w Section 19 of the HSA Act by virtue of which the children of Munikenchappa including the 16 NC: 2023:KHC:40050 RFA No. 630 of 2018 plaintiffs' father Narayanappa, defendant No.7, would become tenants-in-common in respect of the suit schedule properties and since the said succession in their favour would be per capita and not per stirpes, during the life time of the children of Munikenchappa including Naryanappa, none of the grand children including the plaintiffs would be entitled to put-forth any claim in respect of the suit schedule properties and consequently, the suit filed by the plaintiffs, grandchildren of Munikenchappa against their father Narayanappa, defendant No.7 and other children of Munikenchappa was not maintainable in law. It is therefore clear that having regard to the plaint averments and the law laid down by the Apex Court in Uttam's case supra, the Trial Court was fully justified in coming to the conclusion that the suit of the plaintiffs seeking partition and other reliefs against their father - Naryanappa and his siblings, all being children of the plaintiffs' grandfather Munikenchappa was not maintainable warranting rejection of the plaint and consequent dismissal of the suit.
14. In their application - I.A.No.2, the defendant Nos.18 and 19 had also urged several other contentions including limitation, non-joinder, etc., for the purpose of seeking rejection of 17 NC: 2023:KHC:40050 RFA No. 630 of 2018 the plaint; however, in view of the findings recorded by me above that the suit filed by the plaintiffs, grandchildren of Munikenchappa for partition and other reliefs during the life time of their father - Narayanappa, defendant No.7, was not maintainable and barred by law especially in the light of the judgment of the Apex Court in Uttam's case supra, I am of the considered opinion that it may not be necessary to discuss the other contentions urged by the parties for the purpose of disposal of the present appeal. As stated supra, the Trial Court has correctly and properly considered and appreciated the plaint averments and the documents produced by the plaintiffs and has arrived at the correct conclusion that the suit was not maintainable and the plaint was liable to be rejected.
15. Upon re-appreciation and re-consideration of the entire material on record, I am of the view that the impugned order passed by the Trial Court does not warrant any interference by this Court in the present appeal, which is accordingly devoid of merits and is hereby dismissed.
Sd/-
JUDGE DHA / SV List No.: 1 Sl No.: 64