Sooramma W/O Late Soorappa vs Obamma
2022 Latest Caselaw 5918 Kant

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           IN THE HIGH COURT OF KARNATAKA
                    DHARWAD BENCH

       DATED THIS THE 01ST DAY OF APRIL, 2022

                      PRESENT
      THE HON'BLE MRS.JUSTICE K.S. HEMALEKHA
                 RSA No.100788/2015
BETWEEN:

1.   SMT. SOORAMMA W/O. LATE SOORAPPA,
     AGED ABOUT 60 YEARS,

2.   SHANTAMMA D/O. LATE SOORAPPA,
     AGED ABOUT 32 YEARS,

3.   YANKAMMA D/O. LATE SOORAPPA,
     AGED ABOUT 39 YEARS,

4.   BHAGYAMMA W/O. YARISWAMY
     D/O.SOORAPPA, AGED ABOUT: 40 YEARS,
     R/O. DHARMAPUR VILLAGE,
     TALUK:SANDUR, DIST:BALLARI-586 212.

5.   MAREMMA W/O. YALLAPPA AND
     D/O. HANUMANTHAPPA,
     AGED ABOUT 44 YEARS.

6.   OBAMMA W/O. THIPPESWAMY AND
     D/O. HANUMANTHAPPA,
     AGED ABOUT 43 YEARS.

7.   NAGENDRAPPA S/O. HANUMANTHAPPA,
     AGED ABOUT 42 YEARS.
                                           ...APPELLANTS
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(BY SRI. M.N.BIKKANNAVAR FOR SRI. ANAND R. KOLLI, ADVOCATE)

AND

1.    SMT. OBAMMA,
      SINCE DEAD BY LEGAL HEIRS.

1(A). DODDA BHEEMAPPA S/O. HANUMANTHAPPA,
      AGED ABOUT 40 YEARS,
      OCC: AGRICULTURIST,
      R/O. YERABANAHALLI VILLAGE,
      TALUK: SANDUR,
      DIST: BALLARI-586 212.

2.    BHEEMAPPA S/O. HANUMANTHAPPA,
      AGED ABOUT 38 YEARS,
      OCC: AGRICULTURIST,
      R/O. YERABANAHALLI VILLAGE,
      TALUK: SANDUR,
      DIST: BALLARI-586 212.
                                             ...RESPONDENTS

      THIS APPEAL IS FILED UNDER SECTION 100 OF THE CPC,
AGAINST THE JUDGMENT AND DECREE DATED 05.09.2015
PASSED IN R.A. NO.27/2013 ON THE FILE OF THE SENIOR CIVIL
JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, KUDLIGI,
ALLOWING THE APPEAL, AND SETTING ASIDE THE JUDGMENT
AND DECREE DATED 11.03.2013 AND THE DECREE PASSED IN
O.S. NO.85/2009 ON THE FILE OF THE CIVIL JUDGE AND
JUDICIAL MAGISTRATE FIRST CLASS AT SANDUR, DISMISSING
THE SUIT FILED FOR PARTITION.


      THIS APPEAL COMING ON FOR ADMISSION, THIS DAY, THIS
COURT, DELIVERED THE FOLLOWING:
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                        JUDGMENT

The present appeal by the defendants assailing the

judgment and decree dated 05.09.2015 in RA No.27/2013

on the file of Senior Civil Judge and JMFC, Kudligi reversing

the judgment and decree dated 11.03.2013 in OS

No.85/2009 on the file of Civil Judge and JMFC, Sandur.

2. Heard the learned counsel for appellant.

3. The parties herein are referred to as per the

ranking before the trial Court.

4. The suit is filed for partition and separate

possession claiming half share in the suit schedule ancestral

joint family properties. It is the contention of the plaintiff

that one Tippeswamy is the father of the plaintiff and

defendant No.1 is the wife of Surappa who is also the son of

Tippeswamy. It is the further contention of the plaintiff that

defendant Nos.2 to 4 are the children of the said Surappa

and the plaintiff and defendants constituted a Hindu

undivided joint family. The defendants having declined to

effect partition in the suit schedule properties which are the

ancestral joint family properties sought for partition and

separate possession.

5. The defendant Nos.1 to 4 appeared through their

counsel and defendant No.1 filed his written statement and

the same was adopted by defendant Nos.2 to 4. During the

pendency of the suit plaintiff impleaded defendant Nos. 5 to

7 and the said defendants adopted the written statement

filed by defendant No.1. It is denied by the defendants that

the suit schedule properties are the ancestral joint family

properties of the plaintiff and defendants and as such the

plaintiff and defendants constituted a Hindu undivided joint

family. It is contended that the plaintiff is no way concerned

to the suit -B schedule properties and the said properties

have been devolved upon the defendants by way of

inheritance and they are the exclusive owner of the suit

schedule properties.

6. The trial Court on basis of the pleadings of the

parties framed the following;

ISSUES

1. Whether the plaintiffs proves that the suit

schedule 'B' properties are the joint family

properties of themselves and defendants ?

2. Whether the plaintiffs proves that they got share

in the suit schedule properties ?

3. Whether the defendants proves that the suit is

bad for non-joinder of necessary parties ?

4. Whether the plaintiffs are entitled to the relief as

sought for ?

5. What order or Decree ?

RECASTED ISSUES FRAMED ON 08.03.2013

1. Whether the plaintiffs prove that the suit 'B'

schedule properties are the ancestral and joint

family properties of themselves and defendants

as contended in the plaint ?

2. Whether the plaintiffs are entitled for ½ share in

the suit 'B' schedule properties ?

3. Whether the plaintiffs are entitled for the relief

as sought for ?

4. What order or decree ?

7. The trial Court on basis of the pleadings,

evidence and material on record dismissed the suit of the

plaintiff holding that the plaintiff has failed to prove the

relationship between the plaintiff and the defendants and

thus considering the schedule - B properties as ancestral

joint family properties of the plaintiff and the defendants

does not arise and held that the plaintiff is not entitled for

half share in the suit schedule - B properties.

8. Aggrieved by the judgment and decree of the

trial Court the plaintiff preferred RA No.27/2013. The First

Appellate Court framed the following points for

consideration;

POINTS

1. Whether the genealogy produced by the

plaintiffs is proper and correct ?

2. Whether the plaintiffs prove that suit schedule

properties are the joint family properties of the

plaintiffs and defendants ?

3. Whether the plaintiffs are entitled for the relief

as sought for ?

4. Whether the defendants prove that suit is bad

for non joinder of necessary parties ?

5. Whether it requires interference by this Court, as

the judgment passed by the lower Court is

illegal, capricious and against to the law ?

6. What order ?

9. The Lower Appellate Court on reassessing the

pleadings and material on record held that the plaintiff has

proved that there is a relationship between the plaintiff and

the defendants and the suit schedule-B properties are the

joint family properties of the plaintiff and the defendants

and accordingly granted half share in the suit schedule-B

properties.

10. Aggrieved by the judgment and decree of the

First Appellate Court the defendants have preferred the

appeal.

11. Sri. M. N. Bikkannavar for Sri. Anand R. Kolli,

the learned counsel for the appellant would contend that

the First Appellate Court was not justified in decreeing the

suit of the plaintiff and holding that the suit properties are

the ancestral joint family properties of the plaintiff and the

defendants and there arises a substantial question of law

which needs to be considered by this Court.

12. During the pendency of the suit the original

plaintiff Obamma died and her legal heir was brought on

record as plaintiff No.1(a). The plaintiff in order to

substantiate the contention that plaintiff No.1 is the

daughter of Tippeswamy and Kavali Gouramma has

examined plaintiff No.1(a) as PW.1 and got marked

documents at Ex.P.1 to 6.

13. Ex.P-1 to 4 are the record of rights in respect of

item No.1 of suit schedule - B properties showing the name

of the father of the plaintiff.

14. The defendant No.3 got himself examined as

DW.1 and defendant No.7 as DW.2. What could be gathered

from the material on record is that the defendant other

than merely denying that the plaintiff and defendant do not

constitute a Hindu undivided family and suit schedule- B

properties are not the ancestral joint family of the plaintiff

and the defendants no substantial material placed has to

show there is no relationship of the plaintiff and the

defendant and that the plaintiff is not the daughter of late

Tippeswamy. The trial Court on erroneous finding of fact

held that the defendants have specifically denied suit

schedule - A genealogy without there being any material or

evidence in this regard. On the contrary the perusal of cross

examination of DW.1 would clearly depict that DW.1 has

admitted about late Tippeswamy having 3 children by name

Mareppa, Obamma and Surappa and also admitted that the

suit schedule properties are the ancestral joint family

properties belonging to Tippeswamy. The defendants having

failed to discharge that schedule - A genealogy is not

proper and non furnishing any material to show that

schedule - A genealogy does not reflect the relation

between the parties. The trial Court was not justified in

dismissing the suit of the plaintiff.

15. The First Appellate Court considering the

pleadings, evidence of PW.1 and DW.1 and 2 and Ex.Ps-1 to

6 and Ex.Ds.1 to 9 held that the plaintiff has proved the

genealogy as per schedule - A and the DWs.1 and 2 having

admitted the relationship in the cross examination decreed

the suit of the plaintiff by reversing the judgment and

decree of the trial Court.

16. Perusal of the genealogy as per schedule - A

would clearly depict that Obamma is the daughter of

Tippeswamy and Surappa is the son of Tippeswamy and

defendant Nos.1 to 4 are the wife and children of Surappa.

The said genealogy is not specifically denied by the

defendants and no corroborative evidence is lead to the

effect that Obamma is not the daughter of Tippeswamy and

having not specifically asserted and proved regarding the

genealogy to be not true the Appellate Court was justified

in holding that the plaintiff is entitled for share in the suit

schedule properties.

17. Though the defendant tried to dispute the

relationship of the plaintiff and that the suit properties are

not the ancestral joint family properties of the plaintiff and

defendants. The lower Appellate Court on considering the

oral and documentary evidence held that the properties are

the joint family properties of the plaintiff and defendants. It

is the contention of the learned counsel for appellant that

the plaintiff is not entitled for any share in the suit schedule

properties as Obamma the plaintiff is the daughter and that

she cannot be held as the coparcener in the joint family

properties. The Law insofar as Section 6 of Hindu

Succession Amendment Act 2005 is no more a res integra,

in view of the dictum of the Apex Court in the case of

Vineeta Sharma Vs. Rakesh Sharma and Others

reported in (2020) 9 SCC 1 wherein the Apex Court has

held that the daughters are entitled for the equal share in

the ancestral joint family properties and thus the judgment

and decree of the First Appellate Court allotting share to the

plaintiff does not call for any interference. Thus in view of

the dictum of the Apex Court in the case of Vineeta

Sharma stated supra appeal filed by the defendants is

devoid of merits and no substantial question of law arises in

this appeal.

18. In the result, this Court pass the following:

ORDER

i) The appeal filed by defendants is hereby

dismissed.

ii) The judgment and decree dated 05.09.2015 in

RA No. 27/2013 on the file of Senior Civil Judge

and JMFC, Kudligi is hereby confirmed.

No order as to costs.

Sd/-

JUDGE PJ