Karnataka High Court
Sri B M Ramasubaiah vs Sri K M Ramachandrappa on 21 November, 2023
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NC: 2023:KHC:41748
RSA No. 630 of 2007
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 630 OF 2007 (DEC)
BETWEEN:
1. SRI B M RAMASUBAIAH
S/O LATE SANGISETTY MALLAPPA
SINCE DEAD BY HIS LR'S
1(a) B.R. SHASHIKALA
D/O B.M. RAMASUBBAIAH
1(b) B.R. SHIVAPRASAD
S/O B.M. RAMASUBBAIAH
1(c) B.R. PRAMEELA
D/O B.M. RAMASUBBAIAH
1(d) B.R. SUMITRA
D/O B.M. RAMASUBBAIAH
Digitally signed
by R DEEPA ALL ARE R/AT BATLAHALLI VILLAGE AND POST,
Location: High CHINTHAMANI TALUK - 563 125
Court of
Karnataka CHIKKAMAGALURU DISTRICT.
2. SRI B S CHIKKA VENKATARAYAPPA
S/O SUBBARAYAPPA, HINDU,
MAJOR, R/AT BATLAHALLI VILLAGE AND POST,
MUNGANAHALLI HOBLI,
CHINTHAMANI TALUK - 563 125
... APPELLANTS
(BY SRI. N.S. SESHADRI, ADVOCATE)
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NC: 2023:KHC:41748
RSA No. 630 of 2007
AND:
SRI K M RAMACHANDRAPPA
S/O LATE KARIPISETTY MALLAPPA
MAJOR,
KONAPPALLI VILLAGE,
MUNGANAHALLI HOBLI,
CHINTAMANI TALUK - 563 125.
... RESPONDENT
(BY SRI. V VISHWANATH., ADVOCATE FOR
SRI. N. HARIPRASAD, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 31.01.2007
PASSSED IN R.A. No.91/2005 ON THE FILE OF THE CIVIL
JUDGE (SR. DVN.) & JMFC, CHINTAMANI, ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE
DATED 25.08.2005 PASSED IN O.S. No.83/2001 ON THE FILE
OF THE PRL. VIVIL JUDGE (JR. DN.) & JMFC, CHINTAMANI.
THIS RSA COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This second appeal is filed by the appellants challenging the judgment and decree dated 31.01.2007, passed in R.A.No.91/2005 by the Civil Judge, (Sr.Dvn.) and JMFC, Chinthamani.
2. For the sake of convenience, parties are referred to as per their ranking before the trial Court. The appellants are the legal representatives of plaintiff No.1 and plaintiff No.2 and respondent is the defendant. -3-
NC: 2023:KHC:41748 RSA No. 630 of 2007
3. Plaintiffs filed a suit for declaration of title and also declaring that the decree passed in favour of the father of defendant against the Government in O.S.No.154/1981 with respect to suit property is not binding on the plaintiffs and also sought for permanent injunction restraining the defendant from interfering with the plaintiffs peaceful possession and enjoyment of the suit schedule property in any manner.
4. The brief facts leading rise to filing of this appeal are as under:
It is the case of the plaintiffs, that the plaintiffs are the absolute owners of the suit schedule property i.e., the property bearing Sy.No.139/2 measuring 39 guntas, which is the ancestral property of the plaintiffs. Earlier, the property was acquired by one Seethamma w/o Konappa through her husband. Later on, the said property was transferred in the name of Sangisetty Mallappa and Subbarayappa on pavathivarsu basis and mutation is also effected in the name of said persons. Plaintiff No.1 is the -4- NC: 2023:KHC:41748 RSA No. 630 of 2007 son of Sangisetti Mallappa and plaintiff No.2 is the son of Subbarayappa. The plaintiffs have acquired half share each in the suit schedule property. The first plaintiff's father Sangisetty Mallappa had three sons by name Rama Subbaiah i.e., plaintiff No.1, B.M.Venkatarayappa and B.M.Narayanaswamy. The second son of Mallappa i.e., B.M.Venkatarayappa released from the family on 15.12.1978 by executing registered release deed in favour of plaintiff No.1 and his father. Later, the plaintiffs and another son have partitioned the remaining joint family property on 08.06.1998 by virtue of registered partition deed. Plaintiff No.1 got half share i.e., 39 ½ guntas under
the registered partition deed, which is registered. On the basis of the registered partition deed, the name of plaintiff No.1 was entered in the revenue records. Likewise, plaintiff No.2 has also got half share from his deceased father to an extent of 39 ½ guntas. It is contended that the plaintiffs are in possession of their respective shares without any interference. The defendant has no right, title, interest or possession over the suit schedule property and -5- NC: 2023:KHC:41748 RSA No. 630 of 2007 by suppressing the material facts has filed a suit for permanent injunction in O.S.No.154/1981 against the Government and obtained a decree for permanent injunction. The defendant has mis-represented the facts by producing the right of record and index of land and has got decreed the suit. It is contended that the defendant is not in possession of the suit schedule property. The defendant and his father has been misutilised the documents in order to grab the suit schedule property, which exclusively belongs to plaintiffs' family. The names mentioned in the right of record and index of land of suit schedule property is of two different families and not to the single family. Against the mutation order, the original owner Sangisetty Mallappa and his son Rama Subbaiah also father of defendant No.2 has filed an appeal before the Assistant Commissioner, Chickballapur. The Assistant Commissioner had disposed of the appeal by setting aside the orders and remanded the matter for fresh disposal, in accordance with law. After remand, the Tahasildar has passed an order to struck of the name of Karipisetty -6- NC: 2023:KHC:41748 RSA No. 630 of 2007 Mallappa. It is further stated that the defendant and his father were trying to insert their names in the RTC by producing the copy of judgment passed in O.S.No.154/1981. The defendant is not admitting the plaintiffs' possession and also trying to effect the peaceful possession and enjoyment of the plaintiffs over the suit schedule property. Hence, cause of action arose for the plaintiffs to file a suit for declaration and injunction.
5. The defendant filed a written statement denying the averments made in the plaint except admitting the relationships of plaintiffs with their father. It is contended that the suit property was acquired by Smt. Konamma W/o Karipisetty Ramireddi from her ancestors. The mother of Konamma is Seethamma W/o Karipisetty Ramireddi. Karipisetty Ramireddi and Chikkasubbarayappa were the children of Karipisetty Venkatappa and Ramamma. The said Konamma and her husband died issueless. The suit property was succeeded by the grand father of the defendant and after his demise, father of defendant -7- NC: 2023:KHC:41748 RSA No. 630 of 2007 succeeded and he was the absolute owner in peaceful possession and enjoyment over the suit schedule property. During the year 1981, when the Government Authority interfered over the suit land for acquisition, the father of the defendant filed a suit in O.S.No.154/1981 against the Chief Secretary, Deputy Commissioner, Kolar, Assistant Commissioner, Chikkaballapur, Tahsildar, Chintamani, Village Secretary, Munganahalli panchayat. The said suit was decreed in favour of the defendant's father. After his demise, the defendant and his family members succeeded to the estate of their father and they are in peaceful possession and enjoyment of the suit property till date. The plaintiffs on collusion of the Revenue Authorities made an entry in the name of the plaintiffs in the revenue records for which the defendant filed an application before the Tahsildar for rectification of entries. The Tahsildar, Chintamani issued notice to the plaintiffs. The plaintiffs appeared and they filed their objections and contended that the names of defendant's father and grand father's are the plaintiffs ancestors but after due enquiry and -8- NC: 2023:KHC:41748 RSA No. 630 of 2007 mahazar was drawn, the Tahsildar, Chintamani rectified the mutation and re-written in the name of father of defendant and changed the khata in favour of defendant. All the relevant reports stands in the name of defendant as an absolute owner and continued in peaceful possession and enjoyment of the suit schedule property. The plaintiffs suppressed the true facts and misrepresented the Court. It is contended that the suit in O.S.No.141/1998 is pending filed against the plaintiff No.1 and by his brothers. It is contended that the plaintiffs are totally strangers to the suit property and they have no any manner of right title interest or possession over the suit land at any point of time. Both the plaintiffs are colluded each other and created a partition deed without showing the source of property to get illegal benefit at the cost of defendant. The alleged partition deed between the plaintiffs are created, forged and fabricated and collusive document could deprive the right of the defendant. The suit is not maintainable either under law or on facts and same is liable to be dismissed. Hence, prayed to dismiss the suit. -9-
NC: 2023:KHC:41748 RSA No. 630 of 2007
6. The plaintiffs got amended the plaint. The defendant filed the additional written statement to the amended plaint denying the averments made in para No.2(a) of the amended plaint. It is contended that the defendant is in possession of the suit land since several decades and prayed to dismiss the suit.
7. The Trial Court, on the basis of the above said pleadings, framed the following issues:
1. ªÁ¢UÀ¼ÀÄ zÁªÁ¸ÀéwÛ£À°è vÀ¯Á CzsÀ𠻸ÉìAiÀÄ ªÉÄÃ¯É vÀªÀÄä ¸ÁéªÀÄåªÀ£ÀÄß ¸Á©ÃvÀÄ¥Àr¸ÀÄvÁÛgÉAiÉÄ?
2. ªÁ¢UÀ¼ÀÄ ¥ÀæwªÁ¢UÀ¼À vÀAzÉ C¸À®Ä zÁªÉ ¸ÀASÉå.154/ 81 gÀ°è ¥ÀqÉzÀ rQæ ªÉÆøÀ¢AzÀ ¥ÀqÉ¢zÀÄÝ CzÀÄ ªÁ¢UÀ¼À ªÉÄÃ¯É §AzsÀ£ÀPÁjAiÀiÁVgÀĪÀÅ¢®è JA§ÄzÀ£ÀÄß ¸Á©ÃvÀÄ¥Àr¸ÀÄvÁÛgÉAiÉÄ?
3. ªÁ¢UÀ¼ÀÄ vÁªÀÅ zÁªÁ¸ÀéwÛ£À ¸Áé¢üãÁ£ÀĨsÀªÀzÀ°ègÀĪÀÅzÀ£ÀÄß ¸Á©ÃvÀÄ¥Àr¸ÀÄvÁÛgÉAiÉÄ?
4. ¥ÀæwªÁ¢ vÀ£Àß vÀAzÉ ªÀÄvÀÄÛ vÁvÀ CªÀgÀÄ zÁªÁ¸ÀéwÛ£À ªÀiÁ°ÃPÀgÁVzÀÄÝ £ÀAvÀgÀ vÁ£ÀÄ zÁªÁ¸ÀéwÛ£À ¸ÁªÀÄå ªÀÄvÀÄÛ ¸Áé¢üãÀªÀ£ÀÄß vÀ£Àß vÀAzɬÄAzÀ ¥ÀqÉzÀÄPÉÆArgÀĪÀÅzÀ£ÀÄß ¸Á©ÃvÀÄ¥Àr¸ÀÄvÁÛ£ÉAiÉÄ?
5. ªÁ¢UÀ¼ÀÄ ¥ÀæwªÁ¢ zÁªÁ¸ÀéwÛ£À°è CPÀæªÀÄ ¥ÀæªÉñÀ ªÀiÁrzÁÝ£É JA§ÄzÀ£ÀÄß ¸Á©ÃvÀÄ¥Àr¸ÀÄvÁÛgÉAiÉÄ?
6. ªÁ¢UÀ¼ÀÄ zÁªÉAiÀÄ°è PÉýzÀAvÉ ¥ÀjºÁgÀ ¥ÀqÉAiÀÄ®Ä ºÀPÀÄ̼ÀîªÀgÁVgÀÄvÁÛgÉAiÉÄ?
7.AiÀiÁªÀ DzÉñÀ CxÀªÁ rQæ?
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NC: 2023:KHC:41748 RSA No. 630 of 2007 C¥ÀgÀ «ªÁzÁA±À:
1. ªÁ¢UÀ¼ÀÄ zÁªÁ¸ÀéwÛ£À ¥ÀƪÀðzÀ PÀqÉ 2 UÀÄAmÉ RgÁ¨ï d«ÄãÀÄ EzÉ ªÀÄvÀÄÛ ¯ÉÆÃPÉÆÃ¥ÀAiÉÆÃV E¯ÁSÉAiÀĪÀgÀÄ zÁªÁ¸ÀéwÛ£À ªÀÄzsÀåzÀ°è gÀ¸ÉÛAiÀÄ£ÀÄß ªÀiÁrzÀÄÝ CzÀÄ §lèºÀ½î¬ÄAzÀ aAvÁªÀit PÀqÉ ºÁzÀÄ ºÉÆÃUÀÄvÀÛzÉ ºÁUÉÆ ¸ÀĪÀiÁgÀÄ 10 ªÀµÀðUÀ½AzÀ zÁªÁ¸ÀévÀÛ£ÀÄß G¼ÀĪÉÄ ªÀiÁrgÀĪÀÅ¢®è JAzÀÄ ªÁzÀ ¥ÀvÀæzÀ ¥ÁågÁ 2-J £À°è ºÉýgÀĪÀÅzÀ£ÀÄß ¸Á©ÃvÀÄ¥Àr¸ÀÄvÁÛgÉAiÉÄ?
8. In order to prove the case of the plaintiffs, plaintiff Nos.1 and 2 were examined themselves as PW-1 and PW-2 and got marked 60 documents as Exs.P1 to P60. Defendant examined himself as DW-1 and got marked 22 documents as Exs.D1 to D22. The trial Court after considering the oral and documentary evidence of the parties, answered issue Nos.1 to 3, 5 and 6 and additional issue No.1 in affirmative and issue No.4 in negative consequently, decreed the suit of the plaintiffs.
9. The defendant aggrieved by the judgment and decree passed in the above said suit, filed an appeal in R.A.No.91/2005 before the Civil Judge, (Sr.Dvn.) and JMFC, Chinthamani.
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NC: 2023:KHC:41748 RSA No. 630 of 2007
10. The First Appellate Court, after hearing the parties, has framed the following points for consideration:
1. Whether the appellant/defendant prove that the judgment and decree passed by the trial Court is perverse, arbitrary, erroneous and against to law and this Court interference is necessary?
2. Whether the I.A.No.2 filed by the appellant/defendant is allowed at this stage of the appeal?
3. What order?
11. The First Appellate Court, on re-assessment of oral and documentary evidence placed on record by the parties, answered point No.1 in affirmative, point No.2 does not arise for any consideration and consequently, allowed the appeal with cost and reversed the judgment and decree passed by the trial Court and consequently, dismissed the suit of the plaintiffs. The plaintiffs, aggrieved by the judgment and decree passed by the First Appellate Court in R.A.No.91/2005, has filed this second appeal.
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NC: 2023:KHC:41748 RSA No. 630 of 2007
12. This court admitted the appeal on the following substantial question of law :
Whether the lower appellate Court is justified in coming to the conclusion that in the facts and circumstances of the case, Section 15(2)(a) of the Hindu Succession Act, 1956 is applicable?
13. Heard learned counsel for the plaintiffs and also the learned counsel for the defendant.
14. Learned counsel for the plaintiffs submits that Konamma died issueless. He submits that Konappa was the owner of the suit schedule property and he married to Seethamma and they had a daughter by name Konamma. Konamma died issueless. After the death of Konamma, the property was transferred in the name of Sangisetty Mallappa i.e., the father of plaintiff No.1. There was a partition in the family of Sangisetty Mallappa and the said property was allotted to the share of plaintiff No.1 and the property was transferred in the name of plaintiff No.1. The petition was filed before the Tahsildar under Sections 24 and 25 of the Karnataka Land Revenue Act, 1964 (for
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NC: 2023:KHC:41748 RSA No. 630 of 2007 short 'the Act'). He submits that as the property was standing in the name of Konamma, the defendant is the husband of Konamma and the plaintiffs are the parental relatives of Konamma as per Section 15(2)(a) of Hindu Succession Act, 1956 (for short 'the Act of 1956'). The defendant is not entitled for devolution of property of Konamma. It is only plaintiffs who are entitled for estate of deceased Konamma, as she has inherited the said property from her parents and in order to buttress his arguments, he has placed a reliance on the judgment of Hon'ble Apex Court in the case of V. DANDAPANI CHETTIAR VS BALASUBRAMANIAN CHETTIAR reported in 2003 6 SCC 633 and he also submits that the plaintiffs have produced Ex.P12 i.e., the katha stands in the name of plaintiffs' father and he also produced Ex.P54. By virtue of Ex.P54, the entries were entered in the name of plaintiffs' father. He submits that during the course of cross-examination, DW.1 has admitted that the suit schedule property was owned by Konamma. He submits that the First Appellate Court without considering the said
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NC: 2023:KHC:41748 RSA No. 630 of 2007 aspect has proceeded to pass the impugned judgment. He submits that the impugned judgment passed by the First Appellate Court is arbitrary and erroneous and hence, prays to allow the appeal.
15. Learned counsel for the defendant submits that Konamma has acquired the said property from her ancestor i.e., from her mother i.e., Seethamma. The said Konamma and her husband died issueless. He submits that the suit property succeeded by the grand father of the defendant and against the father of the defendant. Thereafter, the defendant has succeeded to the property. He submits that the defendant became the absolute owner and in peaceful possession and enjoyment of the suit schedule property. Further, in order to show that the defendant is in possession of the suit schedule property, he has produced record of rights, which discloses that the name of the defendant is appearing in the record of rights. Further, he submits that in the year 1981, the Government tried to interfere into the suit land for
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NC: 2023:KHC:41748 RSA No. 630 of 2007 acquisition. The father of the defendant filed a suit in O.S.No.154/1981 for permanent injunction against the Government Officials. The said suit was decreed. He submits that after the death of defendant's father, the property was divided in between the defendant and his brother. The said suit property has fallen to the share of the defendant and name of the defendant is appearing in the revenue records. He submits that the plaintiffs are strangers to the family of the defendant. The plaintiffs have no right, title or interest over the suit schedule property. He submits that the First Appellate Court was justified in passing the impugned judgment. Hence, he submits that the impugned judgment passed by the First Appellate Court is just and proper and does not call for any interference. Hence, prays to dismiss the appeal.
16. Perused the records and considered the submissions of learned counsel for the parties.
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NC: 2023:KHC:41748 RSA No. 630 of 2007
17. Substantial question of law: The plaintiffs reiterated the plaint averments in the examination in chief and got marked the documents i.e., Ex.P1 is the genealogical tree, Ex.P2 copy of RTC, Ex.P3 is the endorsement, Ex.P4. genealogical tree, Ex.P5 copy of mutation, Ex.P6 is the patta receipt, Ex.P7 is the notice, Ex.P8 is the application given by defendant No.1 to the Tahsildra, Ex.P9 is the notice, Ex.P10 is the genealogical tree, Ex.P11 is the order copy of Tahsildar, Chintamani, Ex.P12 index of lands and record of rights, Exs.P13 to P23 are the copies of RTC, Exs.P24 and 25 tax paid receipts, Exs.P26 and P27 are the copies of mutation, Ex.P28 is the partition deed dated 08.07.1998, Ex.P29 is the patta receipt, Ex.P30 is the copy of release deed dated 15.12.1978, Ex.P31 is the order copy of Assistant Commissioner, Chickballapur, Ex.P32 is the plaint copy of O.S.No.154/1981, Ex.P33 is the copy of valuation slip of O.S.No.154/1981, Ex.P34 is the copy of written statement of O.S.No.154/1981, Ex.P35 is the copy of issues in O.S.No.154/1981, Ex.P36 is the copy of judgment of
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NC: 2023:KHC:41748 RSA No. 630 of 2007 O.S.No.154/1981, Ex.P37 is the copy of decree of O.S.No.154/1981, Exs.P38 to P40 are the copy of RTC, Exs.P41 to 42 are the index of land and record of rights, Exs.P43 to 44 are the copy of deposition in O.S.No.154/1981, Exs.P45 and P46 is the copy of application and order passed on the application filed under Order 39 Rule 1 and 2 of CPC in O.S.No.8/1981, Exs.P47 and P48 copy of application filed under Section 80(2) of CPC and affidavit in O.S.No.8/1981, Exs.P49 and P50 copy of application filed under Section 94(e) of CPC and affidavit in O.S.No.8/1981, Ex.P51 objections filed in O.S.No.154/1981, Ex.P52 is the copy of petition filed unde Sections 24 and 25 of Kanrataka Land Revenue Act in O.S.No.154/1981, Ex.P53 is the copy of vakalath filed in O.S.No.154/1981, Ex.P54 is the application filed by Mallappa to Deputy Commissioner, Kolar, Ex.P55 is the application filed by Lakshmanreddy to Tahsildar, Chintamani taluk, Ex.P56 is the notice, Ex.P57 is the application filed by B.S.Narayanaswami to the Revenue Inspector, Exs.P58 and P59 are the copies of order passed
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NC: 2023:KHC:41748 RSA No. 630 of 2007 by Tahsildar, Chintamani, Ex.P60 is the index. It is the case of the plaintiffs that the suit schedule property was owned by the ancestors of Seethamma and after her death, Konamma has succeeded to the suit schedule property being a daughter of Seethamma. Konamma died issueless. The suit schedule property was reverted back to their dynasty by effecting mutation in favour of Sangisetty Mallappa and Subbarayappa on pavathivarsu. Later on, the names of the plaintiffs were found in the revenue records on the basis of registered partition deed dated 08.06.1998. The plaintiffs succeeded to the property of Konamma. In the course of cross examination, it is elicited that the suit property was transferred in the name of PW.1 from his family. He pleaded ignorance that how the property came to them. He admits that he knows Subbarayappa and said Subbarayappa is the original prepositus of his kind. He further admits that the prepositus of his family is Sangisetty Mallappa. The father of Sangisetty Mallappas name is Siddappa. Siddappa has an elder brother i.e., Peddanna and he do not know the
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NC: 2023:KHC:41748 RSA No. 630 of 2007 fathers' name of Peddanna and Siddappa. Peddanna's son is Doddasubbarayappa, Chickasubbarayappa, Mallappa and Jayaramappa and Konappa. Peddanna's first son is Doddasubbarayappa. The son of Siddappa isnamely Sangisetty Mallapa i.e., father of PW.1. The plaintiffs are three brothers namely Ramasubbaiah i.e., PW.1, Venkatarayappa and Narayanaswami. The suggestion was put to PW.1 that there was a partition between Siddappa and Peddanna. He answered that the plaintiff and his brothers got divided the properties. He states that he do not know when Doddasubbaraya and Chickasubbaraya and his brothers got partitioned the properties and further he do not know when Sangishetty Mallappa and Doddasubbaraya got partitioned the properties as he was minor at that time. He pleads ignorance that on 05.12.1959, Sangisetty Mallapa and Doddasubbaraya got partitioned the properties and he further says that he do not know that Doddasubbarayappa and his brothers got divided on 19.07.1971 through the registered partition. It was admitted by PW.1 that 30 guntas of land was allotted
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NC: 2023:KHC:41748 RSA No. 630 of 2007 to the plaintiffs' family and remaining was allotted to the share of Pedanna and further stated that in order to prove the partition they have produced the records. He admits that in order to establish that the properties were changed in the name of his father, he has not produced any records. Ramasubbaih was examined as PW.1 and he has reiterated the examination-in-chief deposition. The plaintiffs also examined one more witness as Venkatarayappa and was also deposed in the same lines of PW.1.
18. In rebuttal, the defendant was examined as DW.1 and he has reiterated the written statement averments in the examination in chief and got marked documents i.e., Exs.D1 and D2 are the copies of RTC, Exs.D3 is the order copy of Tahsildar, Ex.D4 is the notice, Ex.D5 is the copy of RTC, Ex.D6 is the copy of mutation register, Ex.D7 is the copy of partition deed, Ex.D8 is the copy of RTC, Ex.D9 is the copy of mutation, Exs.D10 and D11 are the genealogical tree, Ex.D12 is the copy of order
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NC: 2023:KHC:41748 RSA No. 630 of 2007 passed by Assistant Commissioner, Chickballapura, Ex.D13 is the copy of RTC, Ex.D14 is the copy of judgment in O.S.No.154/1981, Ex.D15 is the copy of decree in O.S.No.154/1981, Exs.D17 and D18 are the copy of written statement and verifying affidavit filed in O.S.No.141/1998, Ex.D19 is the copy of deposition of DW.1 in O.S.No.141/1998, Ex.D20 is the record of right and Exs.D21 and D22 are the record of rights and index of lands.
19. From the perusal of the evidence of plaintiffs and defendant, the case of the plaintiffs is that the suit property was originally owned by Seethamma and after her demise, it was succeeded by her daughter Konamma, who died issueless. The plaintiffs have not produced any records to show their relationship with Konamma and PW.1 admits that there are no persons by name Subbarayappa in their family. If at all the suit schedule property was owned by Konamma, there should be a perfect relationship between konamma and the prepositus
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NC: 2023:KHC:41748 RSA No. 630 of 2007 of the plaintiffs family and the plaintiffs have not clarified how the plaintiffs family is related to Konamma. The entire case is depending on the relationship of the plaintiffs with Konappa, Seethamma and Konamma. If the plaintiffs establishes the relationship with the Konappa, Seethamma and Konamma, then the plaintiffs will succeeds to the property of deceased Konamma. On the other hand, the defendant has denied the relationship of plaintiffs' family with deceased Seethamma, Konappa and Konamma. The parties have not produced any records to show their relationship with deceased Seethamma, Konappa and Konamma. There is no dispute in regard to the ownership of Seethamma in respect of suit schedule property and also after her demise, the property was transferred in the name of Konamma.
20. In order to consider the case in hand, it is necessary to examine Section 15 of the Act of 1956, which reads as under:
"15. General rules of succession in the case of female Hindus.―(1) The property of a
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NC: 2023:KHC:41748 RSA No. 630 of 2007 female Hindu dying intestate shall devolve according to the rules set out in section 16,―
(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;
(b) secondly, upon the heirs of the husband;
(c) thirdly, upon the mother and father;
(d) fourthly, upon the heirs of the father; and
(e) lastly, upon the heirs of the mother. (2) Notwithstanding anything contained in sub-section (1),―
(a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-
deceased son or daughter) not upon the other heirs referred in sub-section (1) in the order specified therein, but upon the heirs of the father; and
(b) any property inherited by a female Hindu from her husband or from her father-in- law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon
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NC: 2023:KHC:41748 RSA No. 630 of 2007 the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband."
21. Clause A of Sub-Section 2, Section 15 of the Act of 1956 envisage that any property inherited by a female Hindu from her father or mother shall devolve in the absence of son and daughter not upon the other heirs referred in Section 15(1) of the Act of 1956, in the order specified therein, but upon the heirs of the father and as per clause B of Section 15(2) of the Act of 1956, any property inherited by female Hindu from her husband or from her father-in-law in the absence of any son or daughter will devolve upon the heirs of the husband.
22. In the instant case, the suit schedule property belongs to Konappa husband of Seethamma. Neither the plaintiffs nor the defendant proved their relationship with Konappa and after the demise of Konappa, the property was succeeded by mother of Konamma i.e., Seethamma. Admittedly, Seethmma has succeeded to the property of
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NC: 2023:KHC:41748 RSA No. 630 of 2007 Konappa and after her death, Konamma succeeded to the property. The Konamma has inherited the property from her father / mother. At the cost of repetition, the parties have note proved their relationship with Konamma.
23. As per Clause A of Section 15(2) of the Act of 1956, the property of a female Hindu, devolve upon the heirs of the father and as per Clause B of Section 15(2) of the Act of 1956 the property devolve upon the heirs of the husband. The plaintiffs have failed to prove that they are related to the husband of Konamma and the defendant has also failed to prove that they are related to Konamma. Neither plaintiffs nor defendants have inherited the properties of Konamma. Neither plaintiffs nor defendants fetches the suit schedule property in any manner.
24. From the perusal of the records produced by both the parties, it does not disclose that the suit schedule property belongs to the dynasty of the plaintiffs and the defendant. The First Appellate Court considering the source of title, by virtue of the Act, had recorded a finding
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NC: 2023:KHC:41748 RSA No. 630 of 2007 that the plaintiffs have not derived any title in the suit schedule property. It is well established principles of law that the property standing in the name of female member of the Hindu joint family, there is no presumption that it belongs to the joint family and the burden is on the party making assertion that it is a joint family property to prove the assertion. In the absence of any evidence to prove assertion, it is presumed that the property standing in the name of female member of the joint family is her separate property and the same is not available for partition among other members of the joint family. The First Appellate Court on reassessment of oral and documentary evidence has rightly passed the impugned judgment holding that the suit schedule property was the separate property of late Seethamma during her life time and after her death, suit schedule property was succeeded by her only daughter Konamma. Since Konamma died issueless as she has acquired title of suit property through her mother, the said property goes to the share of legal representatives of her father and not to the heirs of her husband. The
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NC: 2023:KHC:41748 RSA No. 630 of 2007 conclusion arrived by the First Appellate Court is based on the records. I have perused the judgment relied upon by the learned counsel for the plaintiffs. The said decision is not applicable to the case in hand. Hence, I do not find any error in the impugned judgments. In view of the above discussion substantial question is answered in the affirmative.
25. In view of the aforesaid facts and circumstances, I proceed to pass the following:
ORDER The appeal is dismissed.
The judgment and decree dated 31.01.2007, passed in R.A.No.91/2005 by the Civil Judge, (Sr.Dvn.) and JMFC, Chinthamani, is confirmed.
No order as to the costs.
I.A.No.1/2015 is dismissed.
Sd/-
JUDGE SSB