Karnataka High Court

Sri A K Subbaiah vs Smt Puliyanda Prema on 4 April, 2022

Bench: R. Nataraj

                              1




IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 4TH DAY OF APRIL, 2022

                             BEFORE

           THE HON'BLE MR.JUSTICE R. NATARAJ

           R.S.A. NO. 232 OF 2022 (PAR/INJ)
BETWEEN:

SRI. A.K. SUBBAIAH,
S/O LATE KUTTAPPA,
AGED 47 YEARS,
RESIDING AT BADAGARAKERI VILLAGE,
SRIMANGALA HOBLI,
VIRAJPET TALUK,
SOUTH KODAGU-571217.
                                                   ...APPELLANT
(BY SRI. SIDDHARTH B MUCHANDI, ADVOCATE )

AND:

SMT. PULIYANDA PREMA,
W/O PULIYANDA DEVAIAH,
AGED ABOUT 41 YEARS,
R/A RADHA TOURIST HOME ROAD,
2ND BLOCK, OPP. AGRICULTURAL SCIENCE
CENTRE QUARTERS, GONIKOPPAL,
VIRAJPET TALUK,
SOUTH KODAGU-571213.
                                               ...RESPONDENT

        THIS R.S.A. IS FILED UNDER SECTION 100 OF CODE OF
CIVIL    PROCEDURE,   1908    AGAINST   THE   JUDGMENT     AND
DECREE DATED 30.09.2021 PASSED IN R.A.NO.5016/2019 ON
THE FILE OF THE II ADDITIONAL DISTRICT AND SESSIONS
JUDGE,      KODAGU-MADIKERI,      SITTING     AT     VIRAJPET,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
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AND DECREE DATED 01.01.2019 PASSED IN O.S.NO.195/2019
ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC,
VIRAJPET.


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


                         JUDGMENT

This appeal is filed by the unsuccessful plaintiff in

O.S.195/2015 challenging the concurrent finding of fact by

both the Courts that the plaintiff is not entitled to half

share in the suit properties and therefore he is not entitled

to perpetual injunction restraining the defendant from

alienating the suit property.

2. The parties shall henceforth be referred to as they

are arrayed before the Trial court.

3. The plaintiff and defendant were husband and wife.

The plaintiff and defendant filed M.C.No.25/2011 before

the Senior Civil Judge, Virajpet under Section 13 of the

Hindu Marriage Act, 1955. It is stated that

contemporaneously, mother of the plaintiff had filed

O.S.No.55/2011 against her sons, daughter in law and

grand son for partition of her share in the family properties

and for maintenance. The said suit was compromised

before the Lok Adalath and the suit properties were

allotted to the defendant towards her share and for the

share of her son A.S.Vipin Uthappa. In view of the

compromise entered into the marriage between the

plaintiff and defendant was dissolved by order dated

27.06.2011. The custody of the minor child was delivered

to the defendant. Later the minor son of the defendant

expired. The plaintiff alleged that he came to know that

the defendant was attempting to alienate the suit property

and therefore filed the present suit claiming his half share

in the properties and for perpetual injunction.

4. The defendant contested the suit and claimed that

the suit properties were allotted towards the share of the

defendant and her minor son. She also admitted that she

had undertaken to maintain her son out of the income

generated from the suit property and that she would not

sell the same until the minor attained the age of majority.

She claimed that her son expired and therefore she is

entitled to use the suit properties as she desired. She

denied the allegation of the plaintiff that she had remarried

and that she was attempting to alienate the suit

properties. Based on the rival contentions the Trial Court

framed the following issues;

i. "Whether the plaintiff proves that he is entitled for half share in the suit schedule properties by metes and bounds?

ii. Whether the plaintiff proves that the defendant has remarried on Mr.Puliyanda Devaiah?

iii. Whether the defendant proves that what share the plaintiff had allotted to her and her deceased son Vipin Uthappa in compromise decree in O.S.No.55/11 are her exclusive properties?

iv. What order or Decree? "

5. The plaintiff was examined as P.W.1 and marked

documents as per Ex.P.1 to Ex.P.11. The GPA holder of the

defendant was examined as D.W.1 and marked document

as per Ex.D.1.

6. Based on the oral and documentary evidence, the

Trial Court held that the suit property was jointly allotted

to the defendant and her son, therefore, the defendant had

half share in the suit property, while her son owned the

remaining half. It held that since the son of defendant had

expired, his interest in the property devolved upon the

defendant, being the class-I legal heir under Section 8 of

the Hindu Succession Act, 1956. It therefore held that the

defendant had succeeded to the share of her son and

became the full owner of the suit properties. It further held

that assuming that the defendant had remarried, that was

not a disqualification for her to hold the property belonging

to the family which was allotted to her share. Thus the

Trial Court dismissed the suit.

7. An appeal preferred there from by the plaintiff before

the First Appellate court also met the same fate. Being

aggrieved by the aforesaid judgment and decrees, present

appeal is filed. Learned counsel for the plaintiff submitted

that the purpose of allotting the suit properties at the Lok

Adalath was to ensure the maintenance of the minor son

and was definitely not with an intention to permit the

defendant to encumber it. Learned counsel submitted that

since the son of the plaintiff had expired, the defendant

had no subsisting interest in the suit property. He further

submit that the defendant had remarried and therefore she

was not entitled to succeed to the properties of the family.

8. The records reveal that in a suit for partition filed in

O.S.No.55/2011 the parties were referred for mediation

before the Lok Adalath. The parties reported a compromise

interms of which the suit schedule properties were allotted

to the defendant and her minor son. It was not

contemplated under the compromise that the plaintiff shall

not alienate the suit property. On the contrary the relevant

portion of Ex.P.6 which was the compromise decree in

O.S.No.55/2011 read as follows;

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9. It is thus evident that the suit properties was

exclusively allotted to the share of defendant and her

minor son and they were at liberty to deal with the said

properties as they desired. As rightly held by the Trial

Court and the First Appellate Court upon the death of her

son, the defendant succeeded to his interest and therefore

the plaintiff could not claim any share in the suit

properties. The Trial Court and The First Appellate Court

considered the oral and documentary evidence and have

rightly held that the plaintiff is not entitled to any relief

and therefore there is no merit in the appeal. Hence the

appeal is dismissed.