Karnataka High Court
Chikkanna vs H.K. Chikkaiah on 18 January, 2023
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RSA No. 1725 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO. 1725 OF 2014 (PAR)
BETWEEN:
1. CHIKKANNA
S/O LATE KULLAMUDDAIAH
AGED ABOUT 49 YEARS,
R/AT SIDDAPPAJI ROAD,
H D KOTE TOWN,
H D TALUK-571114
...APPELLANT
(BY SRI. SRUTI C CHAGANTI.,ADVOCATE)
AND:
Digitally
signed by 1. H.K. CHIKKAIAH
CHAITHRA A S/O LATE KULLAMUDDAIAH
Location: AGED ABOUT 65 YEARS
HIGH RESIDING AT SIDDAPAJI ROAD
COURT OF
KARNATAKA H D KOTE TOWN,
H D KOTE TOWN-571114
2. MARICHIKKAIAH
S/O LATE KULLAMUDDAIAH
DEAD BY HIS LEAGL REPRESENTATIVES
SMT MALLAMMA
W/O MARICHIKKAIAH
AGED ABOUT 56 YEARS,
RESIDING AT SIDDAPAJI ROAD
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RSA No. 1725 of 2014
H D KOTE TOWN,
H D KOTE TOWN-571114
3. RAVICHANDRAMMA
D/O MARICHIKKAIAH
AGED ABOUT 28 YEARS,
RESIDING AT SIDDAPAJI ROAD
H D KOTE TOWN,
H D KOTE TOWN-571114
4. BETTAIAH
S/O LATE KULLAMUDDAIAH
AGED ABOUT 54 YEARS,
RESIDING AT SIDDAPAJI ROAD
H D KOTE TOWN,
H D KOTE TOWN-571114
...RESPONDENTS
(BY SRI. P CHANDRASHEKAR FOR R1 TO R4.,ADVOCATE)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 25.7.2014 PASSED IN
R.A.NO.65/2008 ON THE FILE OF THE SENIOR CIVIL JUDGE &
JMFC., HUNSUR, PARTLY ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DATED
17.4.2008 PASSED IN O.S.NO.3/2001 ON THE FILE OF THE
CIVIL JUDGE (JR.DN) H.D.KOTE AND ETC.
THIS APPEAL, COMING ON FOR PART HEARD IN
ADMISSION, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
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RSA No. 1725 of 2014
JUDGMENT
The captioned second appeal is filed by the unsuccessful defendant No.2 feeling aggrieved by the divergent findings of the Courts below, wherein the plaintiffs suit was decreed by the Appellate Court granting share in item Nos.2 and 3 and the claim of the plaintiffs in respect of item Nos.1 and 4 was declined by the Appellate Court and Will in favour of defendant No.2 in respect of item Nos.1 and 4 was upheld by the Appellate Court also.
2. For the sake of brevity, the parties are referred as they are ranked before the Trial Court.
3. The genealogical tree of the family is as under;
Kullamuddaiah | Doddamma (D.1) _________________________|_____________________ | | | | H.M.Chikaiah Marichikaiah Bettaiah Chikkanna (P.1) (P.2) (P.3) (D.2)
4. The plaintiffs and defendant No.2 are the sons of one Kullamuddaiah and the present plaintiff Nos.1 to 3 are -4- RSA No. 1725 of 2014 the brothers of defendant No.2. The plaintiffs instituted a suit for partition against their mother - Doddamma, who was arrayed as defendant No.1 and brother as defendant No.2. The plaintiffs further contended that suit schedule properties are joint family ancestral properties and therefore, claimed that they are in possession and enjoyment over the suit schedule properties. The plaintiffs pleaded that their father Kullamuddaiah died on 21.06.1998. The plaintiffs further pleaded that on account of difference among women folk, they are residing separately since 20 years and they are willing to reside jointly. The plaintiffs specifically pleaded that they constitute undivided joint Hindu family along with defendant No.2, while present suit is filed alleging that defendant Nos.1 and 2 in collusion with revenue officials have tried to change the katha exclusively in the name of defendant No.2 and therefore, plaintiffs requested the defendants to effect partition by metes and bounds and allot their legitimate shares in the suit schedule properties. -5- RSA No. 1725 of 2014 Though panchayath was convened, deliberations took place in the panchayath, the same did not yield any positive results. Therefore, the present suit is filed.
5. The defendants on receipt of summons tendered appearance and filed written statement and admitted the relationship between the parties.
6. The defendants on the contrary claimed that there was a partition in the year 1977-78 during the life time of Kullamuddaiah. The defendants claimed that in the said partition, item No.2 was retained by Kullamuddaiah for his maintenance along with his wife, while item No.3 was allotted exclusively to defendant No.2. The defendants claimed that item No.2 was self acquired property of Kullamuddaiah. The defendants also further pleaded that the lands, which were granted in favour of plaintiffs, were allotted to their legitimate share in a family partition. Defendant No.2 has also set up a -6- RSA No. 1725 of 2014 Will by contending that his father bequeathed item Nos.1 and 4 under Will dated 28.02.1989. On these set of grounds and having set up a plea of prior partition, the defendants sought for dismissal of the suit.
7. The plaintiffs and defendants to substantiate their respective claims have led in oral and documentary evidence. The Trial Court dismissed the suit on the ground that all necessary parties are not arrayed in the suit for partition. The Trial Court also non-suited the plaintiffs on the ground that suit for partial partition is not maintainable. At para No.11 of the judgment, the Trial Court was of the view that plaintiffs have taken their legitimate shares in a partition effected in the year 1977-78. The Trial Court referring to the evidence on record during trial found that the daughters of Kullamuddaiah were also necessary parties and they are not impleaded in the suit. Therefore, the Trial Court was of the view that the suit for partial partition is not -7- RSA No. 1725 of 2014 maintainable. Consequently, the suit was dismissed in entirety.
8. Feeling aggrieved by the judgment and decree of the Trial Court, the plaintiffs preferred an appeal before the Appellate Court. The Appellate Court being a final fact finding authority has independently assessed the entire evidence on record. The Appellate Court, while examining the claim of defendant No.2 based on testamentary succession vide Ex.D.8, found that the plaintiffs have not seriously disputed the bequeath made by Kullamuddaiah in favour of defendant No.2 insofar as item Nos.1 and 4 are concerned. While taking cognizance of Ex.P.9, which is the document indicating revocation of Will vide Ex.D.8, the Appellate Court also found that this document appears to be doubtful. Therefore, the Appellate Court was not inclined to accept the genuineness of the alleged revocation of Will vide Ex.D.8. In fact, the Appellate Court has recorded a categorical finding that Kullamuddaiah has -8- RSA No. 1725 of 2014 not revoked the Will vide Ex.D.8 and therefore out rightly rejected Ex.P.9 as a fictitious document.
9. The Appellate Court, while examining the evidence on record relating to item Nos.2 and 3, found that these two properties were admittedly standing in the name of Kullamuddaiah. Though item No.3 is a granted land, however, the evidence on record clearly indicates that it was admittedly standing in the name of Kullamuddaiah. Therefore, in absence of testamentary succession covering these item Nos.2 and 3, the Appellate Court was of the view that Kullamuddaiah having died intestate, the said suit item Nos.2 and 3 would devolve upon his legal heirs by way of succession and therefore, the plaintiffs and defendant No.2 together have inherited item Nos.2 and 3.
10. The claim of defendant No.2 that plaintiffs were also granted with some lands and the said lands were the subject matter of 1977-78 partition and therefore, the present suit is not maintainable, was not acceded to. The -9- RSA No. 1725 of 2014 Appellate Court on re-appreciation of the evidence was of the view that there is absolutely no materials on record indicating that the lands, which were granted to the plaintiffs in the year 1977-78, were also ancestral properties.
11. In regard to maintainability of the suit for non- arraying the daughter of Kullamuddaiah, the Appellate Court found that during trial, a memo was filed stating that daughters of Kullamuddaiah and sisters of the plaintiffs and defendant No.2 have died issue-less. Though the said memo was strongly resisted by defendant No.2, the Appellate Court found that except resisting the memo by filing objections, it is not the case of defendant No.2 that plaintiff's two sisters have died leaving behind class-I heirs. It is in this background, the Appellate Court was of the view that the plaintiffs cannot be non-suited for not arraying two daughters of Kulla Muddaiah.
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RSA No. 1725 of 2014
12. The plea of prior partition set up by defendant No.2 was also not accepted by the Appellate Court. The Appellate Court having independently assessed the evidence on record found that the said defence set up by defendant No.2 is not substantiated by producing clinching rebuttal evidence. In absence of clinching rebuttal evidence, the Appellate Court was of the view that the defence in regard to prior partition is not substantiated by defendant No.2. On these set of grounds, the Appellate Court was of the view that the evidence on record clearly demonstrates that there was a testamentary succession in respect of item Nos.1 and 4, while item Nos.2 and 3 being ancestral properties are available for partition. The Appellate Court, in this background, proceeded to allow the appeal in part granting 1/4th share in item Nos.2 and 3. These divergent findings are under challenge by defendant No.2.
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RSA No. 1725 of 2014
13. Heard learned counsel appearing for the defendant No.2 and learned counsel appearing for the plaintiffs. I have given my anxious consideration to the divergent findings recorded by both Courts.
14. The subject matter of the suit are four items, while defendant No.2 has succeeded in proving that he has succeeded to item Nos.1 and 4. In view of testamentary arrangements made by his father, the Trial Court, however, proceeded to dismiss the suit on the ground that the properties held by the plaintiffs are not included in the suit and therefore, the Trial Court was of the view that the suit for partial partition is not maintainable. In absence of defence and issue in regard to non-joinder of necessary parties, the Trial Court referring to the evidence on record during trial found that Kullamuddaiah apart from four sons, had also two daughters. Therefore, it is in this background, the Trial Court proceeded to non-suit the plaintiffs.
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RSA No. 1725 of 2014
15. While the Appellate Court on re-appreciation of evidence on record took a contrary view in regard to non- joinder of necessary parties. Referring to the memo, the Appellate Court found that two sisters, who were not initially arrayed, have died issueless. It is nobody's case that two daughters of Kullamuddaiah have died leaving behind class-I heirs. Defendant No.2, who intended to non-suit the plaintiffs on account of non-joinder of necessary parties, has also not furnished any details indicating that two daughters of Kullamuddaiah have not died issueless but they have left behind class-I heirs and they would be the necessary parties in the partition suit. These findings recorded by the Appellate Court is just and reasonable for want of specific defence and details relating to legal heirs, if any, left behind by two daughters.
16. The findings of the Appellate Court in regard to plea of prior partition does not suffer from any infirmities. In a partition suit, it is a trite law that every party is a
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RSA No. 1725 of 2014plaintiff. Mere bald averments in the written statement indicating that suit for partial partition is not maintainable, is not sufficient and having taken such a stand, defendant No.2 has not substantiated that the lands granted to the plaintiffs way back in the year 1977 were also ancestral properties. Firstly, there are no sufficient details found in the written statement and further during trial, no documents are produced to substantiate the pleadings in the written statement in regard to non-inclusion of properties held by the plaintiffs. This Court would find that defendant No.2 has not sought partition in three items as alleged by him. If the grants were made on behalf of family or if the grants made in favour of plaintiffs would enure to the benefit of the family, then there has to be specific pleading. Except averments in the written statement, no documents are produced indicating as to what was the nature of grant and as to how defendant No.2 is a family member and is entitled for share in the lands that were granted to the plaintiffs.
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RSA No. 1725 of 2014
17. The Appellate Court has held that defendant No.2 has failed to prove that properties held by the plaintiffs are also joint family ancestral properties. Therefore, the findings of the Trial Court that the present partition suit excluding the properties held by the plaintiffs and therefore, suit for partial partition is not maintainable was rightly reversed by the Appellate Court.
18. The Appellate Court has also taken cognizance of the fact that no specific issue is framed in regard to maintainability of the suit for partial partition. Be that as it may, defendant No.2 has virtually succeeded in taking a residential house and an agricultural land measuring 2 acres 11 guntas. Now, on account of preliminary decree passed by the Appellate Court, the plaintiffs and defendant No.2 have further taken 1/4th share in remaining two items i.e., item Nos.2 and 3. If the evidence on record indicates that item Nos.2 and 3 were also held by their father - Kullamuddiah and he died intestate leaving behind
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RSA No. 1725 of 2014two items, then this Court is of the view that plaintiffs are also entitled for share in these two items. Mere separate residence in itself would not constitute severance and that would not take away the legitimate right of the sons in the properties left behind by their father. Therefore, the judgment and decree rendered by the Appellate Court is in accordance with law. I do not find any illegalities and infirmities in the judgment rendered by the Appellate Court.
No substantial question of law would arise for consideration in this appeal.
Accordingly, the appeal is dismissed.
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JUDGE NBM List No.: 1 Sl No.: 5