Karnataka High Court
Sri Beemanna vs Sri K Venugopal on 24 January, 2022
Bench: N S Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 24TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
R.S.A. No.1142/2020 (PAR)
c/w
R.S.A. No.1168/2020 (PAR)
IN R.S.A.No.1142/2020
BETWEEN:
1. SRI. BEEMANNA,
AGED ABOUT 72 YEARS,
2. SRI. NAGARAJU,
AGED ABOUT 62 YEARS,
3. SRI. KRISHNAPPA,
AGED ABOUT 59 YEARS,
ALL ARE S/O LATE
POOJARI LAKSHMAIAH,
R/O MELINA THATAGALU,
RAILWAY STATION ROAD,
AKKUPETE, DEVANAHALLI TOWN,
BENGALURU RURAL DISTRICT - 562 110.
... APPELLANTS
(BY SRI.S.M.BABU, ADV.)
AND:
1. SRI. K. VENUGOPAL,
AGED ABOUT 39 YEARS,
2. SRI.K. MANJUNATH,
AGED ABOUT 37 YEARS,
2
3. SMT. K. PUSHPA,
AGED ABOUT 33 YEARS,
4. SMT. LEELAVATHI K.,
AGED ABOUT 31 YEARS,
ALL CHILDREN OF
LATE SHARADAMMA AND
LATE SRI. K.V. KRISHNAPPA,
RESIDENTS OF DOOR NO.264,
DODDABAJANEMANE ROAD,
CHIKKABALLAPUR TOWN - 562 101.
5. SRI.M. NARAYANASWAMY,
S/O LATE SRI. PATEL MUNIVENKATAPPA,
AGED ABOUT 54 YEARS,
R/AT TIPPUSULTHAN ROAD,
DEVANAHALLI TOWN,
BANGALORE RURAL DISTRICT - 562 110.
... RESPONDENTS
(BY SRI.V.ANAND, ADV., FOR C/R1 TO R4)
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 03.02.2020
PASSED IN RA.NO.15032/2018 ON THE FILE OF THE V
ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU
RURAL DISTRICT DEVANAHALLI, DISMISSING THE APPEAL
AND FILED AGAINST THE JUDGMENT AND DECREE DATED
06.06.2018 PASSED IN O.S.NO.2127/2006 ON THE FILE OF
THE SENIOR CIVIL JUDGE AND JMFC, DEVANAHALLI.
IN R.S.A.No.1168/2020
BETWEEN:
1. SRI. BEEMANNA,
AGED ABOUT 72 YEARS,
2. SRI. NAGARAJU,
AGED ABOUT 62 YEARS,
3
3. SRI. KRISHNAPPA,
AGED ABOUT 59 YEARS,
ALL ARE S/O LATE
POOJARI LAKSHMAIAH,
R/O MELINA THATAGALU,
RAILWAY STATION ROAD,
AKKUPETE, DEVANAHALLI TOWN,
BENGALURU RURAL DISTRICT - 562 110.
... APPELLANTS
(BY SRI.S.M.BABU, ADV.)
AND:
1. SRI. K. VENUGOPAL,
AGED ABOUT 39 YEARS,
2. SRI.K. MANJUNATH,
AGED ABOUT 37 YEARS,
SMT.K.BHAVANI,
SINCE DEAD,
3. SMT. K. PUSHPA,
AGED ABOUT 33 YEARS,
4. SMT. LEELAVATHI K.,
AGED ABOUT 31 YEARS,
ALL CHILDREN OF
LATE SHARADAMMA AND
LATE SRI. K.V. KRISHNAPPA,
RESIDENTS OF DOOR NO.264,
DODDABAJANEMANE ROAD,
CHIKKABALLAPUR TOWN - 562 101.
5. SRI.M. NARAYANASWAMY,
S/O LATE SRI. PATEL MUNIVENKATAPPA,
AGED ABOUT 54 YEARS,
R/AT TIPPUSULTHAN ROAD,
DEVANAHALLI TOWN,
4
BANGALORE RURAL DISTRICT - 562 110.
.....RESPONDENTS
(BY SRI.V.ANAND, ADV., FOR C/R1 TO R4)
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 03.02.2020
PASSED IN RA.NO.15024/2018 ON THE FILE OF THE V
ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU
RURAL DISTRICT DEVANAHALLI, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DATED
06.06.2018 PASSED IN O.S.NO.2127/2006 ON THE FILE OF
THE SENIOR CIVIL JUDGE AND JMFC, DEVANAHALLI.
THESE APPEALS COMING ON FOR ADMISSION, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
One Sri. Lakshmaiah and Smt. Krishnamma
(defendant No.1) had two daughters and three sons. The
first daughter - Smt. Lakshmikanthamma died issueless.
2. Sri. Beemanna, Sri. Nagaraju and Sri.
Krishnappa (defendant Nos.2 to 4) were the sons of Sri.
Lakshmaiah and Smt. Krishnamma.
3. Smt. Sharadamma was the lone surviving
daughter and her children are the plaintiffs (1 to 5).
4. The children of Smt. Sharadamma instituted
the suit for partition contending that all the suit schedule
properties were ancestral properties of their mother i.e.,
Smt. Sharadamma and they were entitled to a share in
the said properties.
5. This suit was contested by the brothers of
Smt. Sharadamma i.e., defendant Nos.2 to 4. They,
however, admitted the relationship of the parties, but
contended that plaintiffs and defendant Nos. 1 to 4 did
not constitute a hindu joint family. They also denied the
assertion that their father had acquired the suit schedule
properties.
6. The Trial Court, on consideration of the
evidence, came to the conclusion that the plaintiffs and
defendant Nos.1 to 4 did constitute an undivided joint
hindu family properties and the suit schedule properties
were their joint family ancestral properties. The Trial
Court also came to the conclusion that they were in joint
possession and enjoyment of the suit schedule
properties.
7. The Trial Court came to the conclusion that
Item Nos.1 and 4 were the properties of Smt.
Krishnamma, the grand mother of the plaintiffs and Item
Nos.2, 3, 6 and 7 were the self acquired properties of
their father Sri. Lakshmaiah. The Trial Court also came
to the conclusion that Item Nos.5, 8 and 9 were joint
family ancestral properties.
8. The Trial Court accordingly granted 1/4th
share in Item Nos.1 to 4 and 6 to 7 which were the self
acquired properties of Sri. Lakshmaiah and the
properties of Smt. Krishnamma.
9. In respect of the ancestral properties i.e.,
Item Nos.5, 8 and 9, applying the then existing law, the
Trial Court came to the conclusion that by virtue of the
notional partition, the plaintiffs would be entitled to
1/16th share out of the 1/4th share of Sri. Lakshmaiah.
10. The Trial Court, however, dismissed the claim
of the plaintiffs in respect of Item No.10, which was a
property, which had been acquired by defendant Nos.2
to 4 jointly, on the ground that it was their separate
property.
11. Being aggrieved, both the plaintiffs as well as
defendant Nos.2 to 4 preferred an appeal.
12. The Appellate Court on re-appreciation of the
evidence concurred with the finding that Item Nos.1 to 4
and 6 to 7 were the properties of Smt. Krishnamma and
Sri. Lakshmaiah and therefore, the decree granted by
the trial Court in favour of the plaintiffs could not be
found fault with. The finding in respect of the ancestral
properties was also confirmed.
13. Insofar as Item No.10 was concerned, the
Appellate Court, taking note of the fact that there was
admittedly no division of the properties and the
properties had been acquired by the three sons i.e.,
defendant Nos.2 to 4 jointly, when they were joint, the
said property would also have to be construed as a joint
family property.
14. Accordingly, the Appellate Court set aside the
dismissal in respect of Item No.10 and proceeded to
grant the plaintiffs 1/6th share in Item No.10.
15. The Appellate Court also dismissed the appeal
filed by defendant Nos.2 to 4 and thereby, confirmed the
decree of the trial Court.
16. It is against this common judgment passed in
Regular Appeal, which has been filed by the plaintiffs and
by defendant Nos.2 to 4, these second appeals have
been preferred.
17. In light of the fact that the relationship was
not in dispute, the plaintiffs by virtue of being the grand
children of Sri. Lakshmaiah and Smt. Krishnamma would
be entitled to succeed to the share of their mother
Smt. Sharadamma.
18. Since Item Nos.1, 2, 3, 4, 6 and 7 have been
found to be the separate properties of Smt. Krishnamma
and Sri. Lakshmaiah, the grant of 1/6th share to Smt.
Sharadamma, the mother of the plaintiffs and
consequently to the plaintiffs cannot be found fault at all.
19. Similarly, in the light of the finding that Item
Nos.5, 8 and 9 were ancestral properties and in the light
of the judgment rendered by the Apex Court in the case
of Vineetha Sharma Vs. Rakesh Sharma and Ors
reported in AIR 2020 (SC) 3717, the mother of the
plaintiffs would also be entitled to equal share. To that
extent, the decree of Trial Court in respect of Item
Nos.5, 8 and 9 are required to be modified and it will
have to be held that the plaintiffs would be entitled to
1/6th share in Item Nos.5, 8 and 9 also.
20. As far as Item No.10 is concerned, the
Appellate Court has recorded a finding that there was no
acceptable evidence to come to the conclusion that it
had been purchased out of any separate earnings of
defendant Nos.2 to 4. The Appellate Court has noticed
that Item No.10 was admittedly purchased in the name
of defendant Nos.2 to 4 jointly and having regard to the
age of defendant Nos.2 to 4 stated in the said sale deed,
it was obvious that the purchase could have been made
only from the earnings derived from other properties.
This finding, essentially, being a finding of fact, cannot
also to be interfered in second appeal. The finding of the
Appellate Court that Item No.10 was also a joint family
property will therefore have to be accepted and
consequently, the decree granted in Item No.10 will also
have to be affirmed.
21. Since both the Courts have recorded a finding
that Item Nos.1 to 10 are, either, ancestral properties or
separate properties of the grand father and grand
mother of the plaintiffs or joint family property of the
family, the grant of 1/6th share to the plaintiffs cannot
be found fault at all.
Their arises no substantial question of law for
consideration of these second appeals and the same are
accordingly dismissed.
Sd/-
JUDGE
RKA
