Karnataka High Court
Smt Susheelamma vs Sri Antony Swamy on 26 July, 2023
Author: Shivashankar Amarannavar
Bench: Shivashankar Amarannavar
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NC: 2023:KHC:26011
RSA No. 1509 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JULY, 2023
BEFORE
THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR
REGULAR SECOND APPEAL NO. 1509 OF 2014 (PAR)
BETWEEN:
1. SMT. SUSHEELAMMA
W/O ANTHONYSWAMY
AGED ABOUT 63 YEARS
2. SRI JAYAPRAKASH
S/O ANTHONYSWAMY
AGED ABOUT 39 YEARS
3. SRI YESURAJ
S/O ANTHONYSWAMY
AGED ABOUT 37 YEAR
4. SRI KANTHARAJU
S/O ANTHONYSWAMY
AGED ABOUT 35 YEARS
Digitally signed by
LAKSHMINARAYANA
MURTHY RAJASHRI
Location: HIGH ALL ARE RESIDING AT
COURT OF
KARNATAKA
CHIKKA KAMMANAHALLI VILLAGE
BEGUR HOBLI, GOTTIGERE POST
BANGALORE SOUTH TALUK
BANNERGHATTA ROAD
BANGALORE - 560 083.
5. SMT. YAGA MARIYAMMA
W/O CHOURI RAJU
D/O ANTHONYSWAMY
SINCE DEAD BY HER LR's
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NC: 2023:KHC:26011
RSA No. 1509 of 2014
(a) SHILPAKUMARI
D/O LATE YAGA MARIYAMMA
AGED ABOUT 27 YEARS
(b) SHYLAKUMARI
D/O LATE YAGA MARIYAMMA
AGED ABOUT 26 YEARS
BOTH ARE R/AT DORASANYPALYA VILLAGE
BILEKAHALLLI POST, B G ROAD
BANGLORE - 560 076.
7. ROASE MARY
W/O MOSES
D/O ANTHONYSWAMY
AGED ABOUT 42 YEARS
R/AT BHYRATHI VILLAGE
DODDA GUBBI POST
BAGALUR ROAD
BANGALORE.
...APPELLANTS
(BY SRI MURALI B S, ADVOCATE)
AND:
1. SRI ANTONY SWAMY
S/O LATE CHINNAPPA
AGED ABOUT 63 YEARS
R/AT CHIKKA KAMMANAHALLI VILLAGE
GOTTIGERE POST, BEGUR HOBLI
BANGALORE SOUTH TALUK
BANGALORE - 560 083.
2. SRI RAMESH
S/O V RAMARAJU,
AGED ABOUT 50 YEARS
M/S RAJA GROUPS IRIS NO.318,
III CROSS, 1ST BLOCK, JAYANAGAR
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NC: 2023:KHC:26011
RSA No. 1509 of 2014
RESIDENTIAL LAYOUT
BANGALORE - 560 011.
...RESPONDENTS
(BY SRI VIVEK B N, ADVOCATE FOR
SRI ABHINAV R, ADVOCATE FOR R2)
===
THIS RSA IS FILED UNDER SEC.100 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 040.8.2014 PASSED IN
R.A. NO. 101/2013 ON THE FILE OF THE PRINCIPAL DISTRICT
JUDGE, BANGALORE RURAL DISTRICT, BANGALORE,
DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT AND
DECREE DATED 04.12.2012 PASSED IN O.S. NO. 549/2007 ON
THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE,
BANGALORE RURAL DISTRICT, BANGALORE.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed praying to set aside the judgment and decree dated 04.08.2014 passed by the Principal District Judge, Bengaluru Rural District in R.A. No. 101/2013 and judgment and decree dated 04.12.1012 passed by II Additional Senior Civil Judge, Bengaluru Rural District in O.S. No. 549/2007 and to decree the suit atleast insofar as 2 acres of land out of the suit property by moulding the relief.
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NC: 2023:KHC:26011 RSA No. 1509 of 2014
2. Heard learned counsel appellants and learned counsel for respondent No. 2.
3. Appellant Nos. 1 to 6 were plaintiff Nos. 1 to 6 and respondent Nos. 1 and 2 were defendant Nos. 1 and 2 before the trial Court in O.S. No. 549/2007.
4. Parties will be referred to as per their rankings in the trial Court.
5. Plaintiffs filed a suit for partition claiming their share in suit schedule property bearing survey No. 20/6 measuring 6 acres situated at Kammanahalli village, Begur Hobli, Bengaluru South taluk. It is the case of the plaintiffs that late Sri. Chinnappa was the absolute owner and in possession of the suit property. Defendant No.1 is the son of late Sri. Chinnappa and the plaintiffs are the wife and children of defendant No. 1. During the life time of late Sri. Chinnappa he had sold 4 acres out of 6 acres in survey No. 20/6 in favour of Sri. Marikuttappa son of Sri. Chinnappa by registered sale deed dated 03.01.1972. Said Sri. Marikuttappa inturn sold the same in favour of Sri. K.V. -5- NC: 2023:KHC:26011 RSA No. 1509 of 2014 Ramakrishna Raju under registered sale deed dated 02.07.1982. Subsequently, he sold the same in favour of Sri. Jabasthenappa and Smt. Shantamma wife of Joseph by executing registered sale deed dated 01.09.1988. Thereafter, Smt. Shantamma sold 4 acres in favour of defendant No. 2 by sale deeds dated 02.04.1992 and 08.04.1992. It is the further case of plaintiffs that defendant No. 1 was major, all the purchasers have not obtained permission from the competent Civil Court, sale was not within the knowledge of defendant No. 1 and defendant No. 1 was addicted to bad vices and neglected to safeguard the interest of the plaintiffs. Taking undue advantage of the situation, defendant No. 2 had managed to obtain the sale deed from defendant No. 1 in respect of remaining 2 acres of land in the suit property. It is contended that defendant No. 1 has no independent right to execute the sale deed. It is contended that defendant No. 2 has not derived any manner of right over the suit property. As defendants refused the claim of plaintiffs for partition of the property, suit came to be filed. -6-
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6. Defendant No. 1 filed written statement admitting the relationship and averments of the plaint and prayed for disposal of the suit in accordance with law. Defendant No. 2 filed written statement and contended that the suit is barred by limitation. Concept of joint family is not applicable to the plaintiffs as they are Christians by birth. Defendant No. 2 purchased the suit property and became absolute owner and is in possession. He converted the suit property, formed layout and sold sites to various persons. Purchasers of sites are in possession and enjoyment of their respective sites. With this he prayed to dismiss the suit. The trial Court framed the following issues for consideration.
1. Whether the plaintiffs prove that they are the joint owners of the suit property?
2. whether the defendant No.2 proves that they are the bonafide purchasers?
3. whether the defendant No.2 proves that the suit is barred by limitation?
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4. whether the plaintiffs are entitled to the relief of partition?
5. what order or decree?
7. Plaintiff No. 2 has been examined as P.W.1 and got marked Ex.P.1 to Ex.P.22. Defendants have not led any evidence. The trial Court, appreciating the evidence on record, answered issue Nos.1 and 4 in the negative and held that issue Nos. 2 and 3 would not survive for consideration and dismissed the suit.
8. The plaintiffs, aggrieved by the judgment and decree passed by the trial Court filed an appeal in R.A. No. 101/2013 before the Principal District Judge, Bengaluru Rural District, Bengaluru (first appellate Court). The first appellate Court after hearing arguments formulated the following points for consideration:
1. Whether the suit property can be said to be joint family or ancestral property in which the plaintiffs can claim a share?-8-
NC: 2023:KHC:26011 RSA No. 1509 of 2014
2. Is the suit barred by time?
3. Whether the judgment and decree of the trial Court calls for interference?
9. The first appellate Court has answered point Nos.1 and 3 in the negative and point No. 2 in the affirmative and dismissed the appeal confirming the judgment and decree passed by the trial Court.
10. This second appeal has been filed challenging the judgments and decrees passed by the trial Court and the first appellate Court.
11. Learned counsel for appellants would contend that plaintiff Nos.2 to 6 who are the children of defendant No. 1 have birth right in the suit property to the extent to 2 acres which has been inherited by their father defendant No. 1. He referred to the provisions of Section 33 of the Indian Succession Act, 1925 (hereinafter referred to as `the Act') stating that plaintiff Nos.2 to 6 are entitled to a share in the suit property. He also referred to the -9- NC: 2023:KHC:26011 RSA No. 1509 of 2014 provisions contained under Section 25 of the Act wherein what is lineal consanguinity has been stated. By referring to those provisions he contends that plaintiff Nos.2 to 6 are lineal descendants of late Sri. Chinnappa - grandfather.
12. Learned counsel for respondent No. 2 would argue that the plaintiff Nos. 2 to 6 being the children of defendant No. 1 will not get any birth right in the property of their grandfather after his death or in the property of defendant No. 1 who is their father and who inherited the property from their grandfather late Sri. Chinnappa. He argued that defendant No.1 who inherited 2 acres of land in suit schedule property has sold the same in favour of defendant No.2 and no property is available for partition. He further argued that during the life time of Sri. Anthony Swami plaintiff Nos. 2 to 6 will not get any right to seek partition in the property of defendant No. 1. He further argued that there is no concept of coparcenary or joint family property as in Hindu Law among Christians. He
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NC: 2023:KHC:26011 RSA No. 1509 of 2014 relied upon the provisions contained in Section 27 of the Act stating that plaintiff Nos. 2 to 6 are not the lineal descendants of late Sri. Chinnappa. He argued that the trial Court and first appellate Court taking into consideration all these aspects have rightly dismissed the suit of the plaintiffs seeking partition of the suit property.
13. It is not in dispute that defendant No. 1 - Anthony Swami is the son of late Sri. Chinnappa and Smt. Ighneshamma. Plaintiffs themselves have pleaded in the plaint that the suit property is the absolute property of late Sri. Chinnappa. It is not in dispute that the said late Sri. Chinnappa sold 4 acres of land in the suit property bearing survey No. 20/6 during his life time. Defendant No.1 being the son of late Sri. Chinnappa and Smt. Ighneshamma, on their death, has inherited the remaining 2 acres of land in survey No. 20/6. Defendant No. 1 has sold the said 2 acres of land in survey No. 20/6 in favour of defendant No.2 by two sale deeds dated 01.04.1992 and 25.05.1992. The plaintiffs have not sought any relief in
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NC: 2023:KHC:26011 RSA No. 1509 of 2014 respect of those two sale deeds executed by defendant No.1 in favour of defendant No. 2. It is also not in dispute that parties are Christians and governed by the provisions of the Act. As the suit schedule property bearing survey No. 20/6 measuring 6 acres is absolute property of late Sri. Chinnappa he had got right to alienate the same. Said late Sri. Chinnappa sold 4 acres of land by sale deed dated 02.07.1982. After the death of late Sri. Chinnappa and his wife Smt. Ighneshamma, defendant No. 1 being the only son inherited remaining 2 acres of land in survey No. 20/6. Learned counsel for plaintiffs would contend that defendant No.1 is not having absolute right to alienate the said two acres of land in survey No. 20/6 and the plaintiff Nos. 2 to 6 are also having interest in the said property as it is inherited by defendant No.1 from his father.
14. To consider the above aspect the provisions which are relevant are Sections 25, 33 and 37 of the Act which reads as under:
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25. Lineal Consanguinity.- (1) Lineal consanguinity is that which subsists between two persons, one of whom is descended in a direct line from the other, as between a man and his father, grandfather and great-
grandfather, and so upwards in the direct ascending line, or between a man and his son, grandson, great-grandson and so downwards in direct descending line.
(2) Every generation constitutes a degree, either ascending or descending.
(3) A person's father is related to him in the first degree, and so likewise is his son; his grandfather and grandson in the second degree; his great-grandfather and great- grandson in the third degree, and so on.
33. Where intestate has left widow and lineal descendants, or widow and kindred only, or widow and no kindred.- Where the intestate has left a widow-
(a) if he has also left any lineal descendants, one-thirds of his property shall belong to his widow, and the remaining two-thirds shall go to
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NC: 2023:KHC:26011 RSA No. 1509 of 2014 his lineal descendants, according to the rules hereinafter contained;
(b) save as provided by section 33A, if he has left no lineal descendant, but has left persons who are of kindred to him, one-half of his property shall belong to his widow, and the other half shall go to those who are kindred to him, in the order and according to the rules hereinafter contained;
(c) if he has left none who are of kindred to him, the whole of his property shall belong to his widow.
37. Where intestate has left child or children only.- Where the intestate has left surviving him a child or children, but no more remote lineal descendant through a deceased child, the property shall belong to his surviving child, if there is only one, or shall be equally divided among all his surviving children.
15. It is not in dispute that late Sri. Chinnappa died intestate. The Rules in case of intestate are contained in
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NC: 2023:KHC:26011 RSA No. 1509 of 2014 Chapter II of Indian Succession Act. The parties are Christians. Plaintiff Nos. 2 to 6 are children and plaintiff No. 1 is the wife of defendant No. 1. Father of defendant No.1 late Sri. Chinnappa and his mother Smt. Ighneshamma died. As parents of defendant No.1 died intestate, whether plaintiff Nos. 2 to 6 being the grandchildren will inherit the property left behind by their grandfather? Defendant No.1 is the only son of late Sri. Chinnappa and Smt. Ighneshamma. As per clause (a) of Section 33, where intestate has left a widow and also left any lineal descendants 1/3rd of his property will belong to his widow and remaining 2/3rd will go to his lineal descendants. Late Sri. Chinnappa died and was survived by his wife Smt. Ighneshamma and defendant No.1 - Sri. Antony Swami. After the death of late Sri. Chinnappa, his wife Smt. Ighneshamma also died. Said Smt. Ighneshamma also died intestate. Who are the lineal descendants of late Sri. Chinnappa and Smt. Ighneshamma is required to be considered. As per sub- section (1) of Section 25 of the Act lineal consanguinity is
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NC: 2023:KHC:26011 RSA No. 1509 of 2014 that which subsists between two persons, one of who is descended in a direct line from the other, as between a man and his father, grandfather and great-grandfather, and so upwards in the direct ascending line, or between a man and his son, grandson and great-grandson and so downwards in direct descending line. As per sub-section (2) of Section 25 of the Act every generation constitutes a degree and it may be either ascending or descending. As per sub-section (3) of Section 25 of the Act a persons' father is related to him in the first degree and so likewise is his son. The grandfather and grandson in the second degree. The great grandfather and great grandson in the third degree and so on. The distribution of the property where there are no lineal descendants is provided under Sections 37 to 40. As per Section 37 if the intestate has left surviving him a child or children, but no more remote lineal descendants through a deceased child, the property shall belong to his surviving child, if there is only one, or shall be equally divided among all his surviving children. Defendant No.1 is the only surviving child of late Sri.
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NC: 2023:KHC:26011 RSA No. 1509 of 2014 Chinnappa and Smt. Ighneshamma and therefore he inherited the property to the exclusion of grandchildren of late Sri. Chinnappa, namely, plaintiff Nos. 2 to 6. Therefore, defendant No.1 has solely inherited the property left behind by his father late Sri. Chinnappa and mother Smt. Ighneshamma which is to an extent of 2 acres in the suit schedule property bearing survey No. 20/6. Said 2 acres of land has been sold by defendant No. 1 in favour of defendant No. 2. As defendant No. 1 is the sole surviving heir of late Sri. Chinnappa and Smt. Ighneshamma, he has right to alienate the property inherited by him. As defendant No.1 is alive, even if the property is not sold, plaintiffs cannot make a claim for share in the property of defendant No.1. Therefore, plaintiff Nos.2 to 6 being the children of defendant No.1 cannot claim birth right in the property inherited by their father as in Hindu Law even though the said property is inherited by their father as they are Christians and governed by Indian Succession Act, 1925. The trial Court and the first appellate Court have held that the plaintiffs
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NC: 2023:KHC:26011 RSA No. 1509 of 2014 have no right to seek share in the property of their father defendant No. 1 during his life time and more so it is sold by him to defendant No.2. Both the Courts have held that no property is available and the plaintiffs cannot challenge the alienation made by defendant No.1 who is their father or by late Sri. Chinnappa - grandfather. Both the Courts have rightly dismissed the suit of the plaintiffs. No substantial question of law arises for consideration in this appeal. Hence, appeal is dismissed.
Sd/-
JUDGE LRS List No.: 1 Sl No.: 25 Ct.sm