Karnataka High Court
Smt. Lakshmamma vs Shanthamma on 1 February, 2022
Bench: N S Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
REGULAR SECOND APPEAL No.700 OF 2020 (PAR)
BETWEEN:
1. SMT. LAKSHMAMMA,
D/O LATE CHINANNA,
AGED ABOUT 72 YEARS,
2. SRI.GURUMURTHAPPA,
S/O LATE CHINNANNA,
AGED ABOUT 58 YEARS,
BOTH ARE R/O HOLERAHALLI VILLAGE,
VEMGAL HOBLI,
KOLAR TALUK - 563 102.
... APPELLANTS
(BY SRI.THEERATHEGOWDA, ADV.)
AND:
1. SHANTHAMMA
SINCE DEAD BY LR'S
a) SRI.VENKATAPPA,
S/O NOT KNOWN
AGED ABOUT 73 YEARS,
b) SRI.SRINIVAS,
S/O LATE VENKATAPPA,
2
AGED ABOUT 38 YEARS,
c) SRI.SUDHAKARA,
S/O LATE VENKATAPPA,
AGED ABOUT 36 YEARS,
ALL ARE R/AT BURUDAKUNTE VILLAGE,
CHILAKALNEPRU HOLI,
CHINTHAMANI TALUK,
CHIKKABALAPURA DISTRICT - 563 125.
d) SMT.LAKSHMI @ LAKSHMAMMA,
W/O RAMESH,
AGED ABOUT 33 YEARS,
R/AT KONEPALLI VILLAGE,
CHIKKALNERPU HOBLI,
CHINTAMANI TALUK,
CHIKKABALLAPUR DISTRICT - 563 125.
2. SMT.SHASHIKALA,
D/O LATE UMADEVI,
W/O THIMMARAYAPPA,
AGED ABOUT 42 YEARS,
3. SMT.RADHAMMA,
D/O LATE CHINNANNA,
AGED ABOUT 50 YEARS,
RESPONDENT 2 AND 3 ARE
RESIDING AT HOLERHALLI VILLAGE,
VEMGAL HOBLI,
KOLAR TALUK - 563 102.
... RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 28.02.2018
PASSED IN RA No.83/2015 ON THE FILE OF THE III
ADDL.SENIOR CIVIL JUDGE KOLAR DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
3
DATED 03.07.2015 PASSED IN OS No.301/2011 ON THE
FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC., KOLAR.
THIS APPEAL COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This is a second appeal by defendant Nos.1 and 2.
2. Smt.Shanthamma, the plaintiff, instituted a suit
seeking for partition. It was the case of Smt.Shanthamma
that her father Sri.Chinnanna had five children namely
Kumari Lakshmamma (defendant No.1), Smt.Shanthamma
(plaintiff), Sri.Gurumurthappa (defendant No.2), Late
Smt.Umadevi (mother of defendant No.3) and
Kumari Radhamma (defendant No.4).
3. It was her case that the suit properties were the
ancestral and joint family properties of the plaintiff and
defendant Nos.1 to 4 and after the death of her father,
Sri.Chinnanna, the defendant No.2 being the only male
member of the joint family was managing the affairs of the
joint family properties.
4. It was stated that after the demise of Sri.Chinnanna,
defendant No.2 got his name mutated in the revenue
records behind the back of the plaintiff and other
defendants and despite a demand made for partition, the
same was not acceded to and hence the suit.
5. Defendant Nos.1 and 2 entered appearance and filed
the written statement. They did not admit the relationship
as pleaded in the plaint and went on to deny all the other
averments. It was stated that after the death of
Sri.Chinnanna, defendant No.2 performed the marriage of
the plaintiff by selling the land situated at Perjenahalli
Village and had given her gold ornaments as her share.
6. It was also sated that after the death of
Sri.Chinnanna, the plaintiff, defendant Nos.1, 2 and 4 had
jointly alienated the land bearing Sy.No.93/1, measuring
1 acre 14 guntas on 14.11.2009 for a sale consideration of
Rs.14,00,000/-. It was stated that the share of the
plaintiff was given in cash and she was released from the
Joint family and therefore, she did not have any share in
the suit properties.
7. The Trial Court on consideration of the evidence
adduced before it, came to the conclusion that it had been
established that the plaintiff and defendant Nos.1 to 4
constituted a joint Hindu undivided family and she was in
joint possession of the suit properties along with the
defendants. The trial Court also held that the plaintiff was
entitled to 1/5th share in the suit properties by virtue of the
admitted relationship.
8. The Trial Court concluded that defendant No.2 had
failed to prove that the plaintiff had relinquished her share
in the joint family properties by taking cash or by way of
gold ornaments. The trial Court accordingly decreed the
suit and granted the plaintiff 1/5th share.
9. Being aggrieved, defendant Nos.1 and 2 preferred an
appeal.
10. The Appellate Court on re-appreciation of the
evidence, found no reason to disagree with the finding of
the Trial Court, the appellate Court accordingly confirmed
the decree of the trial Court and dismissed the appeal.
11. In its reasoning, the Appellate Court noticed that
there was no document produced to show that the plaintiff
was given her share by way of cash and therefore, there
was no question of her relinquishing her share and getting
herself released from the family.
12. Against these concurrent judgments, the present
second appeal has been preferred.
13. The relationship of the parties is not in dispute. The
only contention raised by defendant Nos.1 and 2 is that
the plaintiff had received her share in cash when the land
bearing Sy.No.93/1 was sold for Rs.14,00,000/- and
thereby, relinquished her share.
14. Admittedly, there is no registered document
evidencing the relinquishment. Both the Courts have
recorded a clear finding of fact that the defendant was not
been able to establish that the plaintiff had received her
share in cash and she had relinquished her share.
15. In the light of the concurrent findings of the Courts
below and further, in view of the fact that the relationship
of the plaintiff was not disputed and the suit properties
were the joint family ancestral properties, the grant of
1/5th share to the plaintiff cannot be found fault with.
16. There is no question of law arising for consideration
in this appeal. Accordingly, the second appeal is
dismissed.
Sd/-
JUDGE
GH
