Karnataka High Court
Mahantha Devaru vs Smt Gowramma on 25 July, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:29332
RSA No. 1607 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 1607 OF 2023 (PAR)
BETWEEN:
MAHANTHA DEVARU
SINCE DEAD BY LRS
1. SRI RAJASHEKHAR SWAMI
AGED ABOUT 67 YEARS
S/O LATE MAHANTHA DEVARAU
2. SRI VARADARAJU @ RAJAPPA
AGED ABOUT 65 YEARS
S/O LATE MAHANTHA DEVARAU
APPELLANT Nos.1 AND 2 ARE
R/AT BARADANAPURA VILLAGE,
JAYAPURA HOBLI,
Digitally signed
by DEVIKA M MYSURU TALUK AND DISTRICT-570008
Location: HIGH
COURT OF 3. PUTTABUDDHI @
KARNATAKA
MAHANTHA SWAMIGALU
AGED ABOUT 75 YEARS
S/O LATE MAHANTHASWAMIGALU
R/AT BARADANAPURA VILLAGE,
JAYAPURA HOBLI,
MYSURU TALUK AND DISTRICT 570008
...APPELLANTS
(BY SRI. P NATARAJU.,ADVOCATE)
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NC: 2024:KHC:29332
RSA No. 1607 of 2023
AND:
1. SMT GOWRAMMA
AGED ABOUT 73 YEARS
W/O CHANDRAPPA @
CHANDRASHEKHARAPPA
D/O SIDDARAMEGOWDA,
R/AT KUDERU VILLAGE,
SANTHEMARALLI HOBLI,
CHAMARAJANAGARA TALUK
AND DISTRICT 571115
NOW R/AT C/O GAJENDRA,
GOWRIGHATTA ROAD,
OPP MALLIKARJUNA MUTT,
NANJANAGUD TOWN,
MYSURU DISTRICT 571301
...RESPONDENT
(BY SRI. ABUBACKER SHAFI.,ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 20.01.2023
PASSED IN RA No.84/2021 ON THE FILE OF THE III
ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MYSURU,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 20.02.2021 PASSED IN OS No.545/2010
ON THE FILE OF THE II ADDITIONAL II CIVIL JUDGE AND
JMFC, AT MYSURU.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
ORAL JUDGMENT
1. Heard the learned counsel for appellant and also the learned counsel for respondent. -3-
NC: 2024:KHC:29332 RSA No. 1607 of 2023
2. The suit is filed before the Trial Court seeking the relief of partition claiming that the plaintiff is also the sister of defendant Nos.1 and 2 and also contend that the suit schedule property belongs to their father and on account of death of their father, he is entitled for 1/3rd share in the suit schedule property. The contention of the defendant that her share was given, but in order to prove the same, nothing was placed on record and hence the Trial Court considering both oral and documentary evidence available on record comes to the conclusion that plaintiff is entitled for 1/3rd share out of the suit schedule properties and also taken note of the fact that another sister passed away that is plaintiff's sister Siddalingamma @ Rajamma, who was unmarried and not led any testamentary document and taken note of Section 15(1)(d) of Hindu Succession Act, the same vest with the other legal heirs of her father. Hence, the Trial Court rightly granted 1/3rd share.
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3. Being aggrieved by the said judgment and decree of the Trial Court, filed an appeal in R.A.No.84/2021 before the First Appellate Court. The First Appellate Court considering the grounds urged in the appeal memo, framed the point for consideration as whether the Trial Court committed an error in granting 1/3rd share and also whether there was already a partition in terms of Panchayat Palu Parikath dated 19.10.1996 since the appellants have contended the same in the appeal and the First Appellate Court on appreciation of both oral and documentary evidence available on record, answered the point Nos.1 to 3 as negative and confirmed the judgment of the Trial Court.
4. Being aggrieved by the said judgment of concurrent finding of Trial Court as well as First Appellate Court, present second appeal is filed. The counsel appearing for the appellant would vehemently contend that both the Courts have committed an error in ignoring the unregistered Panchayat Palu Parikath dated -5- NC: 2024:KHC:29332 RSA No. 1607 of 2023 19.10.1996 which is Ex.D14 and if the document Ex.D14 is considered, the plaintiff/respondent would not get any share in the property and hence this Court has to frame substantial question of law.
5. Per contra, the counsel appearing for the respondent would vehemently contend that the Trial Court considered the relationship between the parties since there is no any dispute and also the property belongs to the father and he died intestate and hence the plaintiff and defendants are entitled for 1/3rd share and accordingly, the Trial Court granted the same and the First Appellate Court confirmed the same. Hence, it does not requires any interference and question of invoking Section 100 of CPC does not arise.
6. Having heard the appellants' counsel and also counsel appearing for the respondents, no dispute with regard to the relationship between the parties. It is also not in dispute that one of unmarried sister was also passed away during the pendency of the suit and she also -6- NC: 2024:KHC:29332 RSA No. 1607 of 2023 not led any testamentary document. Apart from that even father also not led any testamentary document, when such being the case and when the property belongs to the father, the plaintiff also succeeded to the estate of her father and having taken note of the said fact into consideration and though contend that there was already a partition and the same has not been proved and the document Ex.D14 is also unregistered document and the same is also not admissible and hence Trial Court has not accepted the same and the First Appellate Court also not accepted the same. Even the First Appellate Court also framed the issue in view of the contention of Ex.D14 as point No.1 since they relies upon the document Panchayat Palu Parikath dated 19.10.1996 and the same is also not accepted in view of unregistered document and the same also not been proved, when such being the case, I do not find any error committed by the Trial Court in granting the relief of partition as well as apportionment of 1/3rd share, she is entitled for share in respect of property of her father. Hence, I do not find any ground to admit and -7- NC: 2024:KHC:29332 RSA No. 1607 of 2023 frame any substantial question of law invoking Section 100 of CPC.
7. In view of the discussions made above, I pass the following:
ORDER
i) The Second Appeal is dismissed.
ii) In view of dismissal of appeal, pending IAs' if any, do not survive for consideration.
Sd/-
(H.P.SANDESH) JUDGE RHS List No.: 1 Sl No.: 109