Smt. Puttamadamma vs Smt. Muniyamma
2022 Latest Caselaw 1955 Kant

                              1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 8TH DAY OF FEBRUARY, 2022

                         BEFORE

       THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA

            R.S.A.No.810/2021(PAR/DEC)

BETWEEN:

SMT. PUTTAMADAMMA,
W/O LATE D.SHIVAPPA,
AGED ABOUT 63 YEARS,
RESIDING AT No.5093/3,
NAGAMMA LAYOUT, 4TH CROSS,
MAIN ROAD, LEFT SIDE,
NANJANGUD TOWN,
MYSURU - 571 301.                    ... APPELLANT

(BY SRI.RAJASHEKAR.S., ADV.)

AND:

1.     SMT. MUNIYAMMA,
       W/O LATE SIDDA,
       AGED ABOUT 49 YEARS,

2.     SMT. BHAGYA,
       D/O LATE SIDDA,
       AGED ABOUT 26 YEARS,

3.     CHANDRIKA,
       D/O LATE SIDDA,
       AGED ABOUT 24 YEARS,

       R-1 TO R-3 ARE R/AT DOOR No.4135,
       4TH CROSS, ANANDAPURA,
       NANJANGUD TOWN,
       MYSURU DISTRICT - 571 301.
                              2



4.    SRI.MAHADEVA,
      S/O LATE HOMBALAMMA,
      AGED ABOUT 52 YEARS,
      RESIDING AT 4TH CROS,,
      2ND MAIN ROAD, SRIRAMPURA,
      NANJANGUD TOWN,
      MYSURU DISTRICT - 571 301.

5.    SMT. PADDU,
      D/O LATE HOMBALAMMA,
      W/O SHIVANNA,
      AGED ABOUT 49 YEARS,
      RESIDING AT DOOR No.173,
      HOSAHALLI VILLAGE,
      NANJANGUD TOWN,
      MYSURU DISTRICT - 571 301.

6.    SRI. MAHADEVA, S/O LATE LAKSHMANA,
      AGED ABOUT 46 YEARS,
      R/AT 4TH CROSS, 2ND MAIN ROAD,
      SRIRAMPURA, NANJANGUD TOWN,
      MYSURU DISTRICT - 571 301.

7.    SRI. VARDHARAJU,
      S/O LAXMAMMA,
      AGED ABOUT 54 YEARS,

8.    SRI. MAYANNA,
      S/O LAXMAMMA,
      AGED ABOUT 51 YEARS,

9.    SRI. PUTTARAJU, S/O LAXMAMMA,
      AGED ABOUT 49 YEARS,

10.   SRI.MAHADEVU,
      S/O LAXMAMMA,
      AGED ABOUT 46 YEARS,

11.   SRI. BANTARAJU,
      S/O LAXMAMMA,
      AGED ABOUT 42 YEARS,
                              3



12.   SRI. MANIKANTA,
      S/O LAXMAMMA,
      AGED ABOUT 39 YEARS,

      R-7 TO R-12 ARE R/AT No.4147/1,
      4TH CROSS, 2ND MAIN,
      SRIRAMPURA, NANJANGUD TOWN,
      MYSURU DISTRICT - 571 301.

13.   SMT. JAYAMMA,
      W/O LATE SIDDU,
      AGED ABOUT 61 YEARS,

14.   SOUNDARYA.S, D/O LATE SIDDU,
      AGED ABOUT 29 YEARS,

      R-13 AND 14 ARE R/AT 4TH CROSS,
      2ND MAIN ROAD, SRIRAMPURA,
      NANJANAGUD TOWN,
      MYSORE DISTRICT - 571 301.

15.   SRI. N.S.NARAYANASWAMY,
      S/O LATE D.SHIVAPPA,
      AGED ABOUT 52 YEARS,
      R/AT M-28, J.C.MAIN ROAD,
      10TH CROSS, UNIVERSITY QUARTERS,
      MANASAGANGOTHRI,
      MYSURU CITY - 570 006.

16.   SRI. N.S.PUTTASWAMY,
      S/O LATE D.SHIVAPPA,
      AGED ABOUT 44 YEARS,
      R/AT No.5093/3,
      NAGAMMA LAYOUT, 4TH CROSS,
      MAIN ROAD, LEFT SIDE,
      K.H.B.COLONY, NANJANGUD TOWN,
      MYSURU DISTRICT - 570 006.

17.   SMT. ANUSUYA,
      W/O LATE SIDDARAJU,
      AGED ABOUT 41 YEARS,
                              4




18.   SPANDANA.N.S.,
      D/O LATE SIDDARAJU,
      AGED ABOUT 23 YEARS,

19.   DARSHAN RAJ.N.S.,
      S/O LATE SIDDARAJU,
      AGED ABOUT 17 YEARS,

      SINCE MINOR REPRESENTED
      BY HIS NATURAL GUARDIAN,
      MOTHE SMT. ANUSUYA,

      ALL ARE R/AT No.5093/3,
      NAGAMMA LAYOUT, 4TH CROSS,
      MAIN ROAD, LEFT SIDE,
      K.H.B. COLONY, NANJANGUD TOWN,
      MYSURU DISTRICT - 571 301.

20.   SMT. SEETHAMMA.N.S.
      D/O LATE SHIVAPPA,
      AGED ABOUT 46 YEARS,
      R/AT No.5093/3,
      NAGAMMA LAYOUT, 4TH CROSS,
      MAIN ROAD, LEFT SIDE,
      K.H.B.COLONY, NANJANGUD TOWN,
      MYSURU DISTRICT - 571 301.

21.   SRI. B.CHIKKAMADAIAH,
      S/O LATE KARIBAVAIAH,
      AGE MAJOR,
      R/AT KUDLAPURA VILLAGE,
      KASABA HOBLI, NANJANGUD TALUK,
      MYSURU DISTRICT - 571 301.

22.   SMT. H.NAGARAJATHNAMMA,
      W/O S.HANUMANTHRAO.
      AGE MAJOR,
      R/AT PANJANAHALLI VILLAGE,
      KASABA HOBLI, GUNDLUPETE TALUK,
      CHAMARAJANAGAR DISTRICT - 571 111.
                           5



23.   SRI.NARAYANA,
      S/O P.C.CHELUVAIAH,
      AGED ABOUT 52 YEARS,
      R/AT EDIGA EXTENSION,
      II CROSS, NANJANGUD TOWN,
      MYSURU DISTRICT - 571 301.

24.   SRI. P.PRABHAKAR,
      S/O P.VENKATESHCHAR,
      AGED ABOUT 56 YEARS,
      R/AT NANJANGUD TOWN,
      MYSURU DISTRICT - 571 301.

25.   SRI. V. BABU,
      S/O P.VENKATESHCHAR,
      AGED ABOUT 59 YEARS,
      R/AT NANJANGUD TOWN,
      MYSRURU DISTRICT - 571 301.

26.   SRI.G.S.SIDDABASAVAIAH,
      S/O SUBBAPPA,
      AGED ABOUT 66 YEARS,
      R/AT GATAVADIPURA VILLAGE,
      KOWLANDE HOBLI,
      NANJANGUD TALUK,
      MYSURU DISTRICT - 571 301.

27.   SRI. D.R.SHANTHAMURTHY,
      S/ORUDREGOWDA,
      AGED ABOUT 51 YEARS,
      R/AT GATAVADIPURA VILLAGE,
      KOWLANDE HOBLI,
      NANJANGUD TALUK,
      MYSURU DISTRICT - 571 301.

28.   SMT.S.VIJAYA,
      W/O N.SHIVANNA,
      AGED ABOUT 56 YEARS,
      R/AT VAKKALAGERI,
      NANJANGUD TOWN,
      MYSURU DISTRICT - 571 301.
                           6



29.   SRI.T.R.RANGASWAMY,
      S/O T.M.RAMASHETTY,
      AGED ABOUT 49 YEARS,
      R/AT TAGADUR VILLAGE,
      BILIGERE HOBLI,
      NANJANGUD TALUK,
      MYSURU DISTRICT - 571 301.

30.   SRI.C.ANTHONY VIJAYARATHNA,
      S/O LATE CHOWRAPPA,
      AGED ABOUT 50 YEARS,
      R/AT NEAR KHB COLONY,
      NANJANGUD TOWN,
      MYSURU DISTRICT - 571 301.

31.   SRI.D.RAJU,
      S/O LATE PUTTAIAH,
      AGED ABOUT 65 YEARS,
      R/AT KAREHALLY VILLAGE,
      KARAVE HOBLI,
      CHAMARAJANAGARA TALUK,
      CHAMARAJANAGARA DISTRICT - 571 313.

32.   SRI.MAHADEVAPPA,
      S/O LATE P.MADEGOWDA,
      AGED ABOUT 54 YEARS,
      R/AT SRIKANTAPURI LAYOUT,
      11TH CROSS, NANJANAGUD TOWN,
      MYSURU DISTRICT - 571 301.

33.   SRI.H.R.RAMACHANDRAIAH,
      AGED ABOUT 46 YEARS,
      R/AT No.2243,
      SRIKANTAPURI LAYOUT,
      11TH CROSS, NANJANAGUD TOWN,
      MYSURU DISTRICT - 571 301.
                                     ... RESPONDENTS

     THIS APPEAL IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 21.12.2019
PASSED IN R.A.No.212/2018 ON THE FILE OF THE IV
                                      7



ADDITIONAL DISTRICT AND SESSIONS JUDGE, MYSURU,
ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT
AND DECREE DATED 02.04.2018 PASSED IN O.S.No.29/2008
ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC.,
NANJANGUD.

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

                             JUDGMENT

1. This is a second appeal by the 2nd defendant.

2. The following relationship of the parties is not in

dispute:

Dodde Nilgiri Siddaiah

Dundaiah

Lakshmana(dead) Lakshmamma(P3) D.Shivappa(D1) Siddu(P4)

Hombalamma-P1 (wife) Puttamadamma-D2 (wife)

Mahadeva-P2 (son)

3. As could be seen from the family tree, two sons and

one daughter of Dundaiah are the plaintiffs who are litigating

against the other son and his wife i.e., the daughter-in-law of

Dundaiah.

4. The plaintiffs instituted the suit seeking for partition

and for a declaration that the Sale Deed dated 09.11.1972

was not binding on their respective shares. It was stated that

the suit properties were the ancestral joint family properties

of the plaintiffs and the 1st defendant and they had

constituted a joint family. It was stated that there was no

division between the family members and the 1st defendant

was managing the suit properties. It was stated that the 1 st

defendant was the only literate person in the family and he

was a Government employee working in the revenue

department and he had, by colluding with revenue officials,

managed to get the khatha registered in his name and

thereafter, executed a Sale Deed in favour of the 2nd

defendant, his wife on 09.11.1972. It was stated that the said

Sale Deed was not binding on their shares and the 2nd

defendant had got the land converted.

5. It was stated that the plaintiffs and defendants, out of

the joint family funds, had constructed a RCC house

measuring 30 feet X 50 feet in the middle of item No.1 of the

suit schedule properties and they were residing there. It was

alleged that since the defendants were trying to alienate the

suit properties and when that was questioned, they received

evasive answers from them, which resulted in the request for

a partition, which was, however, refused and hence, the suit

was filed.

6. D.Shivappa, the 1st defendant filed a written statement

admitting the relationship. Even though he denied the plaint

averments, he ultimately stated that if the Court came to the

conclusion that the suit properties were the joint family

properties, he would also be entitled to a share and he was

ready to pay the Court fee and sought for allotment of his

share. In essence, he supported the plaintiffs, his siblings and

thus opposed his wife, the 2nd defendant.

7. The 2nd defendant, viz., wife of 1st defendant -

Shivappa, stoutly resisted the suit. She stated that the suit

property was her self acquired property since she had

purchased the same under a registered Sale Deed dated

09.11.1972 and hence, the plaintiffs could not seek for a

share in the said property. She stated that her father-in-law

- Dundaiah had owned a house at Srirampura and the land

bearing Sy.No.1303/3 (old survey number) New

Sy.No.1303/3A measuring 10 guntas and Sy.No.1303/3B

measuring 31 guntas, totally measuring 1 acre 1 gunta. She

stated that this land had fallen barren and was not fit for

cultivation.

8. She also stated that about 40 years ago, there had

been a partition in respect of properties of Dundaiah and in

the said partition, the house property had been given to

Lakshmana, the husband of the 1st plaintiff and the father of

the 2nd plaintiff. She also stated that due to non-payment of

land revenue, the land was treated as 'beelu' (fallow) land

and the land was about to be granted to some third person

for non-payment of land revenue and at that time, her father

cleared the arrears of land revenue with a condition that the

land should be conveyed to her. Accordingly, her father had

cleared the arrears of land revenue which was more than the

actual market value of the land and hence, a Sale Deed was

executed in her favour. She, therefore, stated that the Sale

Deed was binding on the plaintiffs.

9. She also stated that she had obtained permission for

using the suit properties for non-agricultural purposes and

her husband had attempted to alienate the properties by

entering into an Agreement of Sale with third persons, for

which, she disagreed and due to this misunderstanding, she

had been assaulted by her husband and criminal proceedings

were also initiated and thereafter, her husband in collusion

with the plaintiffs had ensured that the suit had been filed.

10. By way of an amendment, she also stated that the suit

properties originally belonged to Dundaiah and there was an

oral partition between his wife Siddamma and their four

children and in the said partition, plaintiffs 3 and 4 were

allotted item No.2 property (house property) as their share

and item No.1 property had been allotted to the share of her

husband and the said partition was acted upon. She also

reiterated that the land had fallen fallow and the land revenue

was not paid and her father had arranged for payment of land

revenue and thereafter, the property was conveyed to her.

She also stated that the suit was barred by limitation.

11. The Trial Court, on consideration of the evidence

adduced before it, came to the conclusion that the plaintiffs

had failed to prove that they had constituted a joint Hindu

family with the 1st defendant and they were entitled to 3/4th

share. The Trial Court also held that the plaintiffs had failed

to prove that the Sale Deed executed by the 1st defendant in

favour of his wife, the 2nd defendant was not binding on their

share. The Trial Court held that the 2nd defendant had proved

that there was a partition effected amongst the plaintiffs and

the 1st defendant in the year 1972 and as contended by her,

item No.1 was her self acquired property. The Trial Court has

also held that the suit for partition was barred by limitation.

The Trial Court accordingly dismissed the suit.

12. Being aggrieved, the plaintiffs preferred a regular

appeal.

13. The Appellate Court, on re-appreciation of evidence,

came to the conclusion that the relationship between the

parties was not in dispute and the 2nd defendant had

admitted in her cross-examination that the suit properties

belonged to her father-in-law and that her father-in-law

passed away in 1970. The Appellate Court noticed that she

stated that the suit properties had been sold to her for `800/-

for clearing the loans. The Appellate Court noticed that even

at the time of said sale, the 2nd defendant and her husband,

1st defendant were residing jointly. The Appellate Court also

noticed that out of the four children of Dundaiah, the 1 st

defendant was the only literate person who was working in

the revenue department and at the time of his marriage, his

father was not alive and his mother was residing with him. It

noticed that the 1st defendant admitted that the property was

his father's ancestral property.

14. The Appellate Court came to the conclusion that no

document had been produced to show that there had been a

partition between the plaintiffs and the 1st defendant and in

the light of the fact that the 1st defendant admitted that his

mother was residing with him in 1972 and the house was

constructed about 25 years back, the plea of prior partition

could not be sustained.

15. The Appellate Court also noticed that the plea set up by

the 2nd defendant that the land had been sold to her for

payment of land revenue was contradicting the recital in the

Sale Deed which was to the effect that the property was

being sold to clear the loans and the Appellate Court,

therefore, concluded that the 1st defendant had managed to

get the revenue entries changed in his name by colluding

with the revenue officials and had thereafter, executed a Sale

Deed in favour of his wife.

16. The Appellate Court as regards the plea of limitation

held that the plaintiffs as well as the 1st defendant were

residing together following the death of Dundaiah and till the

death of their mother, they were residing jointly and thus,

this proved that they were in joint possession and as a

consequence, the question of plaintiffs being excluded from

their share did not arise. The Appellate Court also noticed

that there was neither necessary pleadings, nor the required

evidence to establish that the plaintiffs were excluded from

claiming a share and therefore, the suit was not barred by

limitation. The Appellate Court accordingly allowed the appeal

and decreed the suit. The Appellate Court, however, applied

the theory of notional partition and granted each son 1/4th

share and the daughter 1/16th share.

17. It is against these divergent judgments, the present

second appeal has been preferred.

18. It is the undisputed case of the parties that the suit

properties belonged to Dundaiah and he died in the year

1970 even before his son the 1st defendant had married the

2nd defendant. If Dundaiah had died in the year 1970, the

properties stood automatically devolved onto his wife and his

four children in equal shares. Both the Courts have found that

the plea of a partition between the four children of Dundaiah

had not been established at all and the properties were joint.

Thus, if the property had devolved on all the four children of

Dundaiah and his wife, obviously, the 1st defendant could not

have conveyed the entire suit properties to his wife, the 2 nd

defendant. The sale in favour of his wife can at best be only

valid to the extent of the undivided share he possessed and

the sale could not be binding on his siblings.

19. The Appellate Court has in fact noticed that till

Dundaiah's wife was alive, they were residing together and it

has also been recorded by the Appellate Court that a house

has been constructed in item No.1 property in which the

parties had been residing. This finding also establishes that

the family was joint and the properties had not been

subjected to any division. In this view of the matter, the

conclusion of the Appellate Court that each of Dundaiah's

children were entitled to a share cannot be found fault with.

20. The argument of the learned counsel for the appellant

that the suit for partition was barred by limitation by virtue of

Article 110 of the Limitation Act cannot be accepted. Article

110 of the Limitation Act would come into play when a person

who was excluded from a joint family property were to

approach the Court to enforce a right to his share. In other

words, for a person who had been excluded from the joint

family property for a period of 12 years, Article 110 of the

Limitation Act bars the remedy of such person to enforce his

right to claim a share.

21. In the instant case, firstly, there was no plea that the

plaintiffs were excluded from the joint family properties. In

fact, the plea set up by the 2nd defendant was that there had

been an oral partition and by virtue of this plea, it is clear

that the plaintiffs were all in joint possession of the joint

family properties and they were not excluded from it at all. It

has also been recorded by both the Courts that the plaintiffs

and the 1st defendant were residing together even as on the

date the properties had been sold in favour of the 2nd

defendant and this also establishes that the plaintiffs were in

joint possession and had not been excluded from the joint

family properties.

22. The argument of the learned counsel for the appellant

that the revenue entry in favour of the 2nd defendant had

been challenged before the Assistant Commissioner, who

dismissed the appeal in 1998, would be a starting point of

limitation for the suit which had been filed in the year 2008,

cannot be accepted. A challenge to a revenue entry in favour

of the 2nd defendant cannot amount to excluding the plaintiffs

from the joint family properties. At best, it may amount to an

estoppel against the plaintiffs to make any contrary claim

with regard to revenue entries. It is settled law that a

revenue document neither creates, nor extinguishes title in

favour of any person. The argument of the learned counsel

for the appellant, therefore, cannot be accepted.

23. Since it is not in dispute that the suit properties were

the properties of Dundaiah, on his death in 1970, the suit

properties, by operation of law, stood devolved on his wife

and four children in equal shares. On the death of his wife,

his wife's share stood once again devolved on to the four

children of Dundaiah. Consequently, as per the decision of

the Apex Court in VINEETA SHARMA Vs. RAKESH SHARMA

AND OTHERS - AIR 2020 SC 3717 , each of the children of

Dundaiah would be entitled to 1/4th share.

24. To this extent, the judgment of the Appellate Court in

applying the theory of notional partition requires to be

modified, though no appeal has been preferred by the

plaintiffs, since the law as laid down in Vineeta Sharma's

case, would also apply to all on going litigations.

25. There is no substantial question of law arising for

consideration in this appeal and the same is accordingly

dismissed subject to the following modification:

26. The plaintiffs 1 and 2 would together be entitled to 1/4 th

share in the suit properties while the plaintiffs 2, 3 and the 1 st

defendant would each be entitled to 1/4th share.

27. It is hereby made clear that purchase of item No.1 of

suit property by the 2nd defendant would be valid only to an

extent 1st defendant's (her husband) 1/4th share.

Sd/-

JUDGE

PKS