Karnataka High Court

Smt Munigangamma vs Smt Munigangamma on 1 April, 2022

Bench: R. Nataraj

                          1




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 1ST DAY OF APRIL, 2022

                        BEFORE

           THE HON'BLE MR.JUSTICE R. NATARAJ

             R.S.A. NO. 817 OF 2020 (PAR)

BETWEEN:

SMT. MUNIGANGAMMA
D/O DODDAIAH,
AGED ABOUT 46 YEARS,
R/AT BATTARAHALLI,
YENTAGANAHALLI POST,
NELAMANGALA TALUK-562123
BANGALORE RURAL DISTRICT.
                                              ...APPELLANT
(BY SRI. V.F.KUMBAR, ADVOCATE (THROUGH VC))

AND:

1.     SMT. MUNIGANGAMMA
       W/O REVANNA
       D/O HANUMAIAH,
       AGED ABOUT 76 YEARS,
       R/AT CHIKKANAHALLI,
       MAGADI TALUK-562 120

SRI. PUTTAIAH
SINCE DEAD BY HIS LRS

2.     SMT. DODDABYLAMMA
       W/O LATE PUTTAIAH,
       AGED ABOUT 76 YEARS,
       R/AT YENTAGANAHALLI,
       KASABA HOBLI,
       NELAMANGALA TALUK 562 123
                          2




3.   SMT. ASWATHAMMA
     W/O LAKKAPPA,
     AGED ABOUT 56 YEARS,
     R/AT NO.113, KAMAKSHIPALYA,
     2ND CROSS, WARD NO.17,
     MARUTHINAGAR,
     BANGALORE-560 079.

4.   SMT. MANJAMMA
     W/O MAREGOWDA,
     AGED ABOUT 59 YEARS,
     R/AT MADHURE VILLAGE,
     MADHURE HOBLI,
     DODABALLAPURA TALUK-561203.

5.   SMT. HANUMAKKA
     W/O SRI. RANGASWAMAIAH,
     AGED ABOUT 58 YEARS,

     (SINCE DEAD ON 21.04.2021,
     REPRESENTED BY
     RESPONDENT NO.6 AND 7
     WHO ARE ALREADY ON RECORD)

6.   SRI. YATISH
     S/O RANGASWAMAIAH AND
     LATE HANUMAKKA
     AGED ABOUT 27 YEARS

7.   SRI. ARUN
     S/O RANGASWAMAIAH AND
     LATE HANUMAKKA
     AGED ABOUT 25 YEARS,

     RESPONDENTS NO.5 TO 7
     ARE RESIDING AT:
     NO.17, 16TH MAIN ROAD,
     WARD NO.16, KAMALANAGAR,
     BENGALUR-560079.

8.   SMT. CHIKKAMMA
     W/O BASAVARAJU
     AGED ABOUT 56 YEARS,
                              3




       R/AT. NO.26, WARD NO.20,
       7TH CROSS, SHIVANAGAR (SHIVANAHALLI)
       BANGALORE-560 010.

9.     SRI. CHIKKANNA
       LATE PUTTAIAH,
       AGED ABOUT 53 YEARS,
       R/AT.NO. YENTAGANAHALLI,
       KASABA HOBLI,
       NELAMANGALA TALUK-561 203.

       SINCE DEAD
       REPRESENTED BY HIS LRS

9(a)   SMT. GEETHA,
       W/O LATE CHIKKANNA
       AGED ABOUT 45 YEARS

9(b)   MASTER PAVAN GOWDA
       S/O LATE CHIKKANNA
       AGED ABOUT 16 YEARS

9(c)   KUM. HARSHITHA
       D/O LATE CHIKKANNA
       AGED ABOUT 13 YEARS

       BOTH 9(b) AND (c) ARE MINORS
       REPRESENTED BY THEIR MOTHER AND
       NATURAL GUARDIAN
       SMT. GEETHA
       W/O LATE CHIKKANNA
       AGED ABOUT 45 YEARS

       ALL ARE RESIDING AT
       R/AT.NO. YENTAGANAHALLI,
       KASABA HOBLI,
       NELAMANGALA TALUK-561 203.

10.    SRI. BYRANNA
       S/O LATE PUTTAIAH,
       AGED ABOUT 51 YEARS,
       R/AT. NO. YENTAGANAHALLI,
       KASABA HOBLI,
                            4




     NELAMANGALA TALUK-561 203.
                                           ...RESPONDENTS

(NOTICE SERVED ON RESPONDENTS NO.3, 6, 7 AND 10 AND
UNREPRESENTED;
VIDE ORDER DATED 23.02.2021, RESPONDENTS NO.3 TO 10
ARE TREATED AS LEGAL REPRESENTATIVES OF DECEASED
RESPONDENT NO.2;
VIDE ORDER DATED 22.09.2021, RESPONDENTS NO.6 AND 7
ARE TREATED AS LEGAL REPRESENTATIVES OF DECEASED
RESPONDENT NO.5;
NOTICE   SERVED      ON    RESPONDENT      NO.9(a)    AND
UNREPRESENTED;
PROPOSED RESPONDENTS NO.9(b) AND (c) ARE MINORS
REPRESENTED BY RESPONDENT NO.9(a);
VIDE ORDER DATED 24.03.2022 NOTICE TO RESPONDENTS
NO.1, 4 AND 8 ARE HELD SUFFICIENT)

     THIS R.S.A. IS FILED UNDER SECTION 100 OF CODE OF
CIVIL PROCEDURE, 1908 AGAINST THE JUDGMENT AND
DECREE DATED 18.02.2020 PASSED IN RA NO.21/2012 ON THE
FILE OF THE SENIOR CIVIL JUDGE AT NELAMANGALA
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 03.11.2012 PASSED IN OS NO.492/1995
ON THE FILE OF THE CIVIL JUDGE AND JMFC., NELAMANGALA.

     THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                       JUDGMENT

This appeal is filed by the unsuccessful plaintiff in

O.S. No.492/1995 challenging the concurrent finding of

fact recorded by both the Courts that the plaintiff is not

entitled to any share in suit Items No.2 to 4 in view of a

release deed (Ex.D-2) executed by her grandfather in

favour of the father of defendant No.2.

2. The parties shall henceforth be referred as

they were arrayed before the Trial Court.

3. The suit in O.S. No.492/1995 was filed for

partition and separate possession in respect of four Items

of agricultural land and one house property. It was the

claim of the plaintiff that the suit properties were the joint

family ancestral properties of her grandfather Hanumaiah

and his brother Hanumanthaiah. It is claimed that after

their death, the plaintiff and defendants had succeeded to

the same and were in joint possession and enjoyment of

the same. The defendant No.2 was the only male member

of the joint family and all the revenue records stood in his

name. The defendants were attempting to alienate the

suit properties to deprive the legitimate right of the

plaintiff therein. The plaintiff alleged that though she

demanded the defendants to effect partition, the same was

postponed on one or the other reason. The plaintiff laid a

demand two weeks prior to filing of the suit for partition

and separate possession of her share which was refused.

Hence, she filed a suit for partition and separate

possession of her share.

4. The defendant No.2 contested the suit and

contended that the grandfather of the plaintiff

(Hanumaiah) had executed a deed of release on

26.03.1964 in favour of the father of defendant No.2 and

had taken the Item No.1 of the suit schedule as his share

in the joint family properties. He contended that the

plaintiff, therefore, cannot lay any claim to the suit Items

No.2 to 4.

5. Based on these rival contentions, the Trial

Court framed the followings issues and set down the case

for trial :

i. Whether the plaintiff proves that the plaintiff and defendants constitute the members of joint family?

ii. Whether the plaintiff further proves that the suit schedule properties are the joint family properties of the plaintiff and defendants? iii. Whether the plaintiff is entitled for partition and separate possession of 1/4th share in the suit schedule property?

iv. Whether the second defendant proves that the plaintiff's grandfather had released from the family by executing the registered release deed dated 26.03.1964 in favour of 2nd defendant's father?

v. Whether the 2nd defendant proves that the plaintiff's grandfather had taken the first item of the suit schedule property under the said release deed dated 26.03.1964, therefore for the question of partition of suit schedule property does not arise at all?

vi. Whether the 2nd defendant proves that he has perfected his title by adverse possession with respect to Item No.1 of the suit schedule property?

vii. What decree or order?

Additional Issues :

i. Whether the L.Rs. of the 2nd defendant proves that the Item No.1 of the suit schedule property was sold out in favour of the 3rd defendant and the sale deed was executed by 2nd defendant on 18.06.1996?

ii. Whether the L.Rs. of the 2nd defendant proves that the plaintiff and the 1st defendant have no right over the Item No.1 of the suit schedule property?

6. The plaintiff was examined as P.W.1 and she

marked documents as Exs.P-1 to P-9 and also examined a

witness as P.W.2. The defendant No.2 was examined as

D.W.1 and he marked documents as Exs.D-1 and D-2 and

examined defendant No.3 and defendant No.2(g) as

D.Ws.2 and 3.

7. Based on the oral and documentary evidence,

the Trial Court held that the defendant No.2 had proved

the lawful execution of the release deed by the grandfather

of the plaintiff in favour of the father of defendant No.2

and that the grandfather of the plaintiff had received suit

Item No.1 as his share out of the joint family estate. The

Trial Court also noticed that the plaintiff and defendant

No.3 had compromised their claim in respect of suit Item

No.1, and therefore, the plaintiff was not entitled to any

share in any of the properties and hence dismissed the

suit.

8. Being aggrieved by the aforesaid Judgment

and Decree, the plaintiff filed R.A. No.21/2012. The First

Appellate Court secured the records of the Trial Court,

heard the counsel for the parties and framed the following

points for consideration :

i. Whether the Trial Court erred in holding that the plaintiff and the defendants No.1 and 2 have not constituted Hindu Undivided Joint Family and the suit schedule properties are not their ancestral properties?

ii. Whether the Judgment and Decree dated 03.11.2012 passed in O.S. No.492/1995 by the Civil Judge and J.M.F.C., Nelamangala, is liable to be set aside?

iii. Whether the plaintiff has made out bonafide grounds to permit her to produce the additional evidence in the present appeal?

iv. What order or decree?

9. The First Appellate Court held that the release

deed at Ex.D-2 was executed on 26.03.1964 by the

grandfather of the plaintiff in favour of the father of

defendant No.2 and therefore, the plaintiff was bound by

the said release deed in respect of the suit Items No.2 to 4

and hence dismissed the appeal.

10. Being aggrieved by the aforesaid finding of

fact, the present Regular Second Appeal is filed.

11. The learned counsel for plaintiff submitted that

even though there was a release deed at Ex.D-2, the same

was not acted upon since the revenue records were not

transferred to the name of father of defendant No.2. He

submitted that the defendant No.2 was in possession of

the suit properties and therefore, both the Courts

committed an error in not considering the circumstances

which pointed to the fact that the defendant No.2 was in

possession.

12. I have perused the records of the Trial Court