Karnataka High Court
Smt. Rathnamma vs Smt Kenchamma on 4 July, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
-1-
NC: 2024:KHC:25340
RSA No. 55 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 55 OF 2023 (PAR)
BETWEEN:
SMT. RATHNAMMA
SINCE DECEASED
REPRESENTED BY HER LRS
1. SMT. NIRMALA
D/O LATE SRI. N. RANGAIAH,
W/O SRI. GOVINDARAJULU,
AGED ABOUT 52 YEARS,
NOW RESIDING AT 507,
5TH FLOOR, MEGA SANNIDHANA
4TH CROSS, GRAPES GARDEN
SM ROAD, T.DASARAHALLI,
BENGALURU-560057
Digitally signed
by DEVIKA M 2. SMT. VEENA
Location: HIGH D/O LATE SRI. N. RANGAIAH
COURT OF W/O LATE SRI. VENKATESH MURTHY
KARNATAKA
AGED ABOUT 50 YEARS,
DOOR NO.315, MEGA KAMAL RESIDENCY,
SRS ROAD, PEENYA,
BENGALURU-560 058.
3. SMT. VATHSALA
D/O LATE SRI. N. RANGAIAH,
W/O SRI. V.N. RANGANATH
AGED ABOUT 48 YEARS,
7/1, 1ST MAIN, KRISHNA BLOCK,
SHESHADRIPURAM
BENGALURU-560020
-2-
NC: 2024:KHC:25340
RSA No. 55 of 2023
4. MISS. KAVITHA
D/O LATE SRI. N. RANGAIAH
AGED ABOUT 45 YEARS,
5. SRI. THILAK
S/O LATE SRI. N. RANGAIAH,
AGED ABOUT 43 YEARS
BOTH APPELLANT NOS. 4 AND 5 ARE
R/AT NO. 109, 1ST FLOOR, 19TH MAIN,
J.C. NAGAR, KURUBARAHALLI
BENGALURU-560086.
...APPELLANTS
(BY SRI. T.A. CHANDRA SEKHAR, ADVOCATE)
AND:
1. SMT KENCHAMMA
W/O CHIKKANNA
D/O SATHYAPPA
AGED ABOUT 75 YEARS,
AGRICULUTURIST,
R/O DURGAVARA VILLAGE,
KASABA HOBLI,
CHALLKERE TALUK,
CHITRADURGA DISTRICT.
...RESPONDENT
(BY SRI. SPOORTHY HEGDE N., ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 05.07.2022
PASSED IN R.A.NO.12/2021 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC, CHALLAKERE, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 30.01.2020 PASSED IN O.S.NO.169/2009 ON THE FILE
OF THE PRINCIPAL CIVIL JUDGE AND JMFC, CHALLAKERE.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
-3-
NC: 2024:KHC:25340
RSA No. 55 of 2023
JUDGMENT
1. This matter is listed for admission. Heard learned counsel for appellants and learned counsel for respondent.
2. The factual matrix of the case of the plaintiff before the Trial Court while seeking the relief of partition and separate possession contended that one Chaluvadappa had two sons namely Yallappa and Sathyappa. The said Yallappa had a son by name Rangaiah who is the husband of 1st defendant and father of defendant Nos.2 to 6. The 2nd son of Chaluvadappa by name Sathyappa had a daughter Kenchamma, who is the plaintiff in the case. The plaintiff's father Sathyappa and grand father of defendant Nos.2 to 6 by name Sathyappa and grandfather of defendant Nos.2 to 6 by name Yallappa were brothers. The properties are the ancestral and joint family properties of the plaintiff and defendants. Originally the suit schedule properties were belonged to original -4- NC: 2024:KHC:25340 RSA No. 55 of 2023 propositus Chaluvadappa. The grand father of defendant Nos.2 to 6 and father of plaintiff Yallappa and Sathyappa were ignorant and illiterate persons and they have no worldly wise knowledge. After the death of their father they were not made any attempts to change the khata of suit schedule properties. But they were in joint possession and enjoyment of the suit schedule properties. After the death of said Yallappa and Sathyappa, their legal heirs i.e., plaintiff and father of the defendant Nos.2 to 6 had been in joint possession and enjoyment of the suit schedule properties as joint owners thereof.
3. It is contended by the plaintiff that in the meanwhile one Yogaraj S/o Chaluvadappa of Belegere village taking the advantage of the weakness of aforesaid persons and also taking the advantage of the similar names appeared in revenue documents, the said Yograj S/o Chaluvadappa moved an application to the revenue authorities to change the katha of suit schedule properties in his name on the basis of inheritance. Accordingly the -5- NC: 2024:KHC:25340 RSA No. 55 of 2023 revenue authorities without making proper enquiry mutated in the joint names of Yogaraj S/o Chaluvadappa and his mother Lakkamma W/o Chaluvadappa of Belegere Village. Though the katha of suit schedule properties were changed in the name of the Yograj and his mother, but plaintiff and N.Rangaiah had been in joint possession and enjoyment of suit properties. That in the year 1999 the plaintiff and father of defendant Nos.2 to 6 have got knowledge about the change of katha of suit properties in the joint names of Yogaraj and his mother. After knowing the said fact, immediately challenged the said mutation proceedings before the Assistant Commissioner at Chitradurga in R.A.No.69/99-2000. The said appeal was instituted only in the name of N.Rangaiah who is the cousin brother of plaintiff and senior male member of the family thereby the plaintiff was not actively participated in the appeal proceedings. In that appeal the respondents have appeared and submits no objection and consented for allowing the appeal, accordingly the Assistant Commissioner, Chitradurga has allowed the appeal on -6- NC: 2024:KHC:25340 RSA No. 55 of 2023 16.06.2000. As per the orders passed in R.A.No.69/99- 2000, the revenue authorities have changed the katha of suit schedule properties in the name of N.Rangaiah who is the cousin of plaintiff. At that time the plaintiff had also expressed for entering her name with her brother N.Rangaiah in the khata of suit properties jointly. But, the said N.Rangaiah one or the other reason prolonged the matter and moreover the plaintiff and her brother N.Rangaiah were in cordial terms with each other and also both were in joint possession and enjoyment of the suit schedule properties, thereby the plaintiff had not made efforts to change the katha of suit properties. The katha of suit properties were standing in the name of N.Rangaiah. Thereafter, the said N.Rangaiah and his son Thilak i.e., defendant No.6 colluding with each other, taking the advantage of the Katha standing in the name of the N.Rangaiah and in order to deprive the plaintiff's legitimate share in item No.1 of suit schedule property by creating false genealogical tree and submit the same before the Sub-Registrar, Challakere and got-up the -7- NC: 2024:KHC:25340 RSA No. 55 of 2023 collusive partition deed in respect of item No.1 of suit schedule property. The said N.Rangaiah and defendant No.6 have no exclusive right over the item No.1 of suit schedule property by making division under the registered partition deed dated 12.08.2008. The alleged partition deed is a collusive one and got-up the same behind the back of plaintiff, thereby the alleged partition deed dated 12.08.2008 is not binding on the plaintiff's legitimate half share.
4. It is also the case of the plaintiff that revenue authorities without making any proper enquiry, mechanically changed the katha of item No.1 of suit property in the names of N.Rangaiah and Thilak. When the plaintiff demanded the share, not allowed the plaintiff and for grant certification and hence demanded ½ share in respect of the suit schedule properties. When they refused to give any share, hence without any alternative filed the suit. In pursuance of the suits summons, the defendants appeared and filed written statement contending that the -8- NC: 2024:KHC:25340 RSA No. 55 of 2023 suit schedule property exclusively belongs to Rangaiah and the plaintiff is not entitled for any share and also contended that the plaintiff is not having any right or interest or share or claim over the suit schedule properties. Hence, prayed the Court to dismiss the suit.
5. The Trial Court having considered the pleadings of the parties framed the issues in keeping the contentions raised by the plaintiff and also allowed the parties to lead evidence and parties have lead their evidence. The Trial Court having consider material available on record, comes to the conclusion that property admittedly belongs to the Chaluvadappa and Chaluvadappa had two sons i.e., the Yallappa and Sathyappa and plaintiff is the daughter of Sathyappa and 1st defendant is the wife of the son of the said Yallappa did not accept the contention of the defendants that the property belongs to N.Rangaiah and Ex.D1 to Ex.D6 are revenue entries of records of rights and index of land and Form No.5 and Form No.6 records of right. The Trial Court taking into note of the material -9- NC: 2024:KHC:25340 RSA No. 55 of 2023 placed before the Court comes to the conclusion that when the property belongs to the Chaluvadappa the plaintiff is also entitled for ½ share and comes to the conclusion that registered partition deed not binding on the plaintiff. Hence, the Trial Court granted the relief of ½ share.
6. Being aggrieved by the said judgment and decree of the Trial Court, an appeal is filed in R.A.No.12/2021. The First Appellate Court having considered the grounds urged in the appeal memo, formulated the point whether the judgment and decree is contrary to law and evidence on record and whether it requires interference. On appreciation and re-assessing evidence available on record, taking into note of material available on record that there was no any division between the Yallappa and Sathyappa during their life time and also taking into note of the property document are standing in the name of Chaluvadappa and the same was transferred in the name of Rangaiah S/o Yallappa and also considered the material on record that both Yallappa and Sathyappa
- 10 -
NC: 2024:KHC:25340 RSA No. 55 of 2023 are the sons of the said Chaluvadappa and there was no any division between both of them and also considering the evidence available on record, particularly both oral and documentary evidence, comes to the conclusion that the Trial Court has not committed any error in granting ½ share since the plaintiff is the daughter of said Yallappa and the same is extracted in paragraph No.41 considering the admission on the part of the witnesses and dismissed the appeal.
7. Being aggrieved by the said judgment and decree of concurrent finding, present second appeal is filed before this Court. The counsel appearing for the appellant would vehemently contend that both the Courts fail to consider the document of Ex.D1 to Ex.D6 particularly those documents clearly discloses that the property stands in the name of Rangaiah and those documents are clearly demonstrate that father of the plaintiff left out the family property, in such a situation left out person ought to have
- 11 -
NC: 2024:KHC:25340 RSA No. 55 of 2023 made the claim within a period of 12 years failing which the right of person is deemed to have barred by time.
8. The counsel also would vehemently contend that when the property stands in the name of Rangaiah, during the life time of Sathyappa, when he did not claim any share, the plaintiff cannot claim any share. Hence, this Court has to frame the substantial question of law whether both the Courts have committed an error in granting the relief in favour of the plaintiff when she waived her right. Both the Courts fail to take note of the fact that plaintiff claim is barred by law. The very approach of both the Courts is erroneous.
9. Per Contra, the counsel appearing for the respondent would vehemently contend that the property belongs to Chaluvadappa is not in dispute and the fact that the relationship between the parties that the Chaluvadappa had two sons by Yallappa and Sathyappa is also not in dispute. The plaintiff is also the daughter of the Sathyappa is also not in dispute. Only contention that the
- 12 -
NC: 2024:KHC:25340 RSA No. 55 of 2023 Sathyappa who is the father of the plaintiff has waived his right during his life time and the said contention cannot be accepted. No dispute with regard to the fact that the property belongs to the Chaluvadappa and mere entry made in the name of Rangaiah cannot prove that he is an exclusive owner of the property. Both the Courts taking into note of material available on record, rightly granted ½ share in respect of the suit schedule properties.
10. Having heard learned counsel for appellants and learned counsel for respondent and also considering the material available on record, there is no dispute with regard to the relationship between the parties and also the Chaluvadappa is the propositus of the family is also not in dispute. The property also earlier standing in the name of the Chaluvadapa is also not in dispute. Subsequently, the properties are transferred in favour of the grand son is also not in dispute and also no khata was changed in the name of the sons of the Chaluvadappa i.e., Yallappa and Sathyappa is also not in dispute. Having taken note of the
- 13 -
NC: 2024:KHC:25340 RSA No. 55 of 2023 said fact into consideration and mere changing of entry in the male member of the family that too a grand son will not defeat the right of son of the Chaluvadappa. No documentary evidence is placed before the Court that during the lifetime of Sathyappa waived his right in respect of the properties. The Trial Court also taken note of the said fact into consideration particularly in paragraph No.21 and in detail discussed the same including Section 6 of the Hindu Succession Act and also taken note of material available on record, particularly the defendant contended that the property belongs to the N.Rangaiah and none of the documents produced before the Court discloses that the property is the exclusive property of the said N.Rangaiah. When such being the case, having consider both the evidence of plaintiff as well as defendants, both the Courts comes to the conclusion that when the property belongs to the Chaluvadappa and having two sons and the plaintiff is the daughter of one Sathyappa and defendants are wife and son of one Rangaiah who is the grandson of Chaluvadappa and they
- 14 -
NC: 2024:KHC:25340 RSA No. 55 of 2023 represents the family of Yallappa and hence they get ½ share and also the daughter of Sathyappa get ½ share and in apportioning the property also not committed any error. Even First Appellate Court also while re-appreciating the evidence also in paragraph No.41 taking into note of admission on the part of witnesses that exclusively property belongs to the Chaluvadappa and having two sons and there was no any partition between the Yallappa and Sathyappa. Hence, I do not find any error committed by the both the Trial Court and also the First Appellate Court in granting ½ share. The very contention of the appellant's counsel that the document Ex.D1 to Ex.D6 have not been considered by both the Courts cannot be accepted. Those documents are only with regard to the revenue entries standing in the name of Rangaiah that too transfer was made in respect of the male member of the family that will not make any exclusive right and Trial Court and First Appellate Court have considered the issue No.3 when specific pleading was made that the property belongs to the one Rangaiah and the same is not the
- 15 -
NC: 2024:KHC:25340 RSA No. 55 of 2023 property belongs to the Rangaiah and the property belongs to Chaluvadappa and hence legal heirs have entitled for equal share. Hence, I do not find any error committed by both the Courts.
11. In view of the discussions made above, I pass the following:
ORDER
i) The Second Appeal is dismissed.
ii) In view of dismissal of the appeal, I.As., if any do not survive for consideration, the same stands disposed of.
Sd/-
JUDGE RHS List No.: 1 Sl No.: 95