Karnataka High Court
Sri.Papaiah vs Smt.Papamma on 2 February, 2022
Bench: N S Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 2ND DAY OF FEBRUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
R.S.A. No.920/2021 (PAR/POS)
BETWEEN:
1. SRI.PAPAIAH,
S/O JANNEHAHALLY PALAIAH,
AGED ABOUT 63 YEARS,
2. SMT.PALAKKA,
W/O BANGARAIHA,
AGED ABOUT 58 YEARS,
BOTH ARE AGRICULTURIST,
RESIDING AT BORAPPANAHATTY
VILLAGE, CHALLAKERE TALUK - 577 522.
... APPELLANTS
(BY SRI.B.M.SIDDAPPA, ADV.)
AND:
SMT. PAPAMMA,
W/O GODAGU BORAIAH,
AGED ABOUT 69 YEARS,
AGRICULTURIST,
RESIDING AT CHITRAIANAHATTY,
CHALLAKERE TOWN - 577 522,
CHITRADURGA DISTRICT.
... RESPONDENT
THIS RSA IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 09.11.2020
PASSED IN RA NO.46/2019 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC, CHALLAKERE, PARTLY ALLOWING
THE APPEAL AND MODIFYING THE JUDGMENT AND DECREE
2
DATED 22.02.2019 PASSED IN O.S.NO.239/2012 ON THE
FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC,
CHALLAKERE.
THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This is a second appeal by the defendants.
2. Papamma - the daughter of Jennenahalli
Palaiah, through his first wife Boramma, filed the suit
seeking for partition against her step brother and step
sister, namely Papaiah and Palaksha, who were born to
her father through his second wife Papamma. It was her
case that the suit property was a joint and ancestral
property of her father and on his death, she had a right
to inherit 1/3rd share and since the same was refused, a
suit for partition was filed.
3. The defendants, her step siblings admitted the
relationship between the parties. They however stated
that the plaintiff and defendants were divided about fifty
years ago and were living separately and during the life
time of their father Jennenahalli Palaiah, the plaintiff was
married and at that time, she was given cash and gold
ornaments as her share.
4. It was stated that the defendants and their
mother had sold the land bearing Sy.No.172 measuring
24 guntas on 27.12.2000 to Chanabasappa for valuable
consideration of Rs.30,000/- and the plaintiff had
received her share of the sale consideration. It was also
stated that Channabasappa had inturn sold the property
to Rudra Muniappa and he was a necessary party to the
suit.
5. A plea was also set-up that the suit property
was the self-acquired property of his father and he had
not provided him any share and hence, he had filed a
suit against his father and mother. It was stated that in
the said suit, a compromise was arrived at whereby the
properties were divided and on the basis of said
compromise decree, the revenue records had also been
changed.
6. It was stated that the defendant had sold 1
acre 20 guntas out of 3 acres 9 guntas to Jayaveerappa
and had retained 8 guntas. It was also stated that his
father had sold 1 acre 14 guntas to one K S Jayanna on
14.06.1985 and after his death, the defendant had
sought for mutation of his name in the revenue records
in respect of 8 guntas which was however, objected to
by the plaintiff. He stated that this 8 guntas was allotted
to his mother Papamma in the compromise and she had
executed a will in favour of the 2nd defendant and
therefore, the plaintiff's claim for partition could not be
maintained.
7. The Trial Court on appreciation of the evidence,
recorded a finding that since the relationship was not in
dispute and it had been established that suit properties
were the ancestral and joint family properties of the
plaintiff and defendants, the suit of the plaintiff was
required to be decreed and had accordingly, granted 1/6
share by applying the 'theory of notional partition'.
8. Being aggrieved, defendants preferred an
appeal. In the appeal, the Appellate Court on re-
appreciation of the evidence came to the conclusion that
there was no error in the finding recorded by the Court
and having regard to the fact that the relationship was
not in dispute, the plaintiff being a daughter, by virtue of
the amended provisions of Section 6 of The Hindu
Succession Act, 1956 was entitled to an equal share.
The Appellate court accordingly dismissed the appeal,
but modified the decree and granted the plaintiff 1/3rd
share.
9. As against these concurring judgments, the
present second appeal has been preferred.
10. The argument of the learned counsel for the
appellant is that the suit was not maintainable since the
purchasers of the property from their mother and father
had not been arrayed as parties. He contended that by
virtue of the compromise, there was a division of the
properties and therefore, under the division, the suit
properties had fallen to the share of their mother and as
a consequence of the earlier partition, the plaintiff
cannot claim share.
11. As noted above, the relationship of the parties
is not in dispute. Thus, if it is held that the properties
belonged to the family, by virtue of the amended
provisions of Section 6 of the Hindu Succession Act,
1956, both the plaintiff and defendants would be each
entitled to 1/3 share since they are the only legal heirs
of Jennenahalli Palaiah.
12. The fact that the defendants set-up the plea
that 1st defendant had instituted a suit for partition
against his father also establishes the fact that the suit
properties were the joint family and ancestral properties.
If it is the admitted case of all the legal heirs of
Jennenahalli Palaiah that the suit properties were the
ancestral properties, the plaintiff would be entitled to 1/3
share.
13. The argument that the plaintiff was bound by
the earlier compromise and the consequential partition,
cannot be accepted, firstly, because the compromise
decree was not registered and secondly, because the
plaintiff was not a party to those proceedings.
14. In that view of the matter, I am of the view
that no substantial question of law arises for
consideration in the second appeal and the same is
accordingly dismissed.
In view of the disposal of the main appeal on
merits, all the pending applications also stand disposed
of.
Sd/-
JUDGE
BRN
