Karnataka High Court
G Kumar vs Smt. Chowdamma on 13 October, 2020
Author: Jyoti Mulimani
Bench: Jyoti Mulimani
1
IN THE HIGH COURT OF KARNATAKA BENGALURU
DATED THIS THE 13th DAY OF OCTOBER, 2020
BEFORE
THE HON'BLE MS. JUSTICE JYOTI MULIMANI
REGULAR FIRST APPEAL NO.885 OF 2005 (PAR)
BETWEEN:
G.KUMAR,
S/O LATE GOOLAIAH,
R/O K.SHETTAHALLI VILLAGE AND HOBLI,
SRIRANGAPATNA TALUK,
MANDYA DISTRICT - 571 438.
... APPELLANT
(BY SRI R.S.RAVI, ADVOCATE)
AND:
1. SMT.CHOWDAMMA
W/O LATE GOOLAIAH,
AGED MAJOR.
2. KEMPARAJU,
S/O LATE GOOLAIAH,
AGED MAJOR.
3. GANGADHARA,
S/O LATE GOOLAIAH,
AGED MAJOR.
SL.NO.1 TO 3 ARE R/AT
K.SHETTAHALLI VILLAGE AND HOBLI,
SRIRANGAPATNA TALUK,
MANDYA DISTRICT - 571 438.
2
4. SMT.LAKSHMAMMA,
W/O D.C.SUNDAR,
AGED MAJOR,
R/O KANCHANAHALLI ROAD,
SOUTH COLONY, BANNUR HOBLI,
T.N.PURA TALUK,
MYSORE DISTRICT - 570 138.
5. SMT.SAVITHRAMMA,
W/O M.CHIKKA MANCHAIAH,
AGED MAJOR,
DOOR NO.29, MANDARA NILAYA,
B.C.C. LAYOUT, NEAR ATTIGUPPE,
II STAGE, VIJAYANAGAR,
BANGALORE - 560 079.
6. SMT.PUSHPA,
W/O C.KRISHNAPPA,
AGED MAJOR,
DOOR NO.4219, 6th CROSS,
GANDHINAGAR,
MYSORE DISTRICT - 570 017.
7. SMT.MANJULA,
W/O A.V.CHANNA VEERAPPA,
AGED MAJOR,
DOOR NO.7/1596, 6TH CROSS,
K.R.ROAD, SUBASHNAGAR,
MANDYA DISTRICT - 571 401.
... RESPONDENTS
(BY SRI.V.SRINIVAS, ADVOCATE FOR R1, R3, R4 AND R6;
R2 AND R5 ARE SERVED)
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THIS RFA IS FILED UNDER SECTION 96 OF CIVIL
PROCEDURE CODE, 1908, CHALLENGING THE JUDGMENT AND
DECREE DATED 04.03.2005 PASSED BY ADDITIONAL CIVIL
JUDGE (SR.DN) SRIRANGAPATNA, IN OS.NO.114/1997.
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THIS RFA COMING ON FOR HEARING, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Plaintiff has preferred this appeal. Learned counsels Sri.R.S.Ravi, learned counsel for appellant and Sri.V.Srinivas, learned counsel for respondents have appeared through video conferencing.
2. For the sake of convenience, parties herein shall be referred to in terms of their status before the trial Court.
3. The short facts are these: One Goolaiah was the Kartha of the family. Smt.Chowdamma-Defendant No.1 is his wife. Plaintiff and defendants 2 to 7 are the sons and daughters of Goolaiah and Smt.Chowdamma. Goolaiah died on 03.11.1996. It is stated that defendants 2, 4 to 7 were married during the life time of Goolaiah. Defendants 4 to 7 being the daughters were residing at their matrimonial home.
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It is averred that after the death of Goolaiah, defendant No.3 was looking after the management of the family. As he was not properly managing the family properties, plaintiff demanded his legitimate share in the family properties, but defendants 1 to 3 denied his legitimate share. Contending that the suit schedule properties are ancestral properties and that he has got a share, plaintiff brought action for partition and separate possession.
Defendants 1 to 5 appeared through their counsel and defendants 6 and 7 remained absent and were placed exparte.
Defendant No.1 filed her written statement and defendants 2 to 5 adopted the same. It is contended that Goolaiah died testate as he had executed a Will on 20.11.1995. Contending that Goolaiah had settled the properties, plaintiff is not entitled for share in the properties. Accordingly, they sought for dismissal of the suit.
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On the basis of above pleadings, the trial Court has framed the following issues:
1) Whether the plaintiff proves that the suit schedule properties are ancestral and joint family properties of plaintiff and defendants?
2) Whether the plaintiff is entitled for partition and separate possession of 9/32th share in the suit schedule properties by metes and bounds?
3) Whether the plaintiff is entitled for mesne profits as prayed for?
4) Whether the defendants prove that this Court has no pecuniary jurisdiction to try the suit.
5) Whether the defendants prove that all the suit schedule properties of deceased Goolaiah?
6) Whether the defendants further prove that the deceased Goolaiah during his lifetime had executed a Will on 23.11.1995 and bequeathed the properties in favour of plaintiff and defendants?
7) Whether the defendants further prove that the plaintiff is entitled for a share of properties 6 according to the Will executed by deceased Goolaiah?
8) What order or decree the parties are entitled to?
Additional issues:
1) Do the defendants prove that the suit schedule land is tenancy land under the Land Reforms Act?
2) What order or decree?"
To prove his case, plaintiff got examined himself as PW-1 and one H.Shivakumar as PW.2. Plaintiff produced 11 documents which were marked as Exs.P1 to P11. Defendant No.1 examined herself as DW.1 and three more witnesses were examined as DWs.2 to DW.4 and filed 24 documents which were marked as Exs.D1 to Ex.D24(g).
On trial of the action, learned Judge found Items 1 to 8 are self-acquired properties of Late Goolaiah and Item 9 is the ancestral property of plaintiff and defendants. Learned Judge decreed the suit holding that plaintiff and defendants 1 to 7 have got equal right and that plaintiff is 7 entitled for 1/8th share in Items 1 to 8 of the plaint schedule properties and 9/32th share in respect of Item 9 of plaint schedule property.
The facts have been sufficiently stated. Plaintiff has challenged the judgment and decree of the trial Court.
4. Learned counsels Sri.R.S.Ravi, for plaintiff and Sri.V.Srinivas, for defendants made a joint submission that in view of the amendment to Section 6 of Hindu Succession Act 1956 and the law laid down by the Hon'ble Supreme Court in the case of Vineeta Sharma Vs. Rakesh Sharma and Others reported in 2020(2) Kar. L.R 161 (SC), plaintiff and defendants are equally entitled for 1/8th share in Item 9 of the suit schedule property. Accordingly, they submitted that the judgment and decree may be modified holding that plaintiff and defendants are equally entitled for 1/8th share each in Item 9 of the suit schedule property.
5. I have considered the above submissions and perused the material on record with care. 8
It is not in dispute that the law on the subject has been recently settled by the Hon'ble Apex Court in Vineeta Sharma Vs. Rakesh Sharma and Others. In view of the law laid down by the Hon'ble Supreme Court, it can be safely held that plaintiff and defendants are entitled for 1/8th share each in Item 9 of the suit schedule property.
With these observations, the appeal stands disposed of.
Registry to draw the modified decree accordingly. Parties to bear their own costs.
Sd/-
JUDGE SB