Karnataka High Court

Smt. Kasturi vs Vasudev Marate on 7 January, 2022

Bench: M.G.S. Kamal

                             1



 IN THE HIGH COURT OF KARNATAKA BENGALURU

       DATED THIS THE 07TH DAY OF JANUARY, 2022

                         BEFORE

         THE HON'BLE MR.JUSTICE M.G.S. KAMAL

              RSA No.648 OF 2016 (PAR)
BETWEEN:

SMT. KASTURI
AGED ABOUT 49 YEARS
D/O VASUDEVA MARATE
R/AT. V.P. NAGAR
3RD CROSS, KUNJIBETTU
UDUPI TALUK AND DISTRICT.
                                         ... APPELLANT
(BY SMT. MIHIKA HEGDE FOR
     SRI. ARUN SRIKUMAR, ADVOCATE)
AND:

1.     VASUDEV MARATE
       AGED ABOUT 72 YEARS
       S/O LATE NARAYANA BHAT
       R/AT DURGA, KARKALA
       UDUPI DISTRICT- 576 117

2.     MOHAN MARATE
       AGED ABOUT 55 YEARS
       S/O VASUDEV MARATE
       R/AT DURGA, KARKALA
       UDUPI DISTRICT - 576 117.

3.     PRASHANTI
       AGED ABOUT 52 YEARS
       D/O VASUDEV MARATE
       R/AT DHARMASTHALA, KARKALA
       UDUPI DISTRICT - 576 117.

4.     SURESH
       AGED ABOUT 47 YEARS
                            2



     S/O VASUDEV MARATE
     R/AT DURGA, KARKALA
     UDUPI DISTRICT- 576 117.

5.   PANDURANGA
     AGED ABOUT 45 YEARS
     S/O VASUDEV MARATE
     R/AT DURGA, KARKALA
     UDUPI DISTRICT - 576 117.

6.   RAJANI
     AGED ABOUT 43 YEARS
     S/O VASUDEV MARATE
     R/AT SHANKARNARAYANA
     DURGA, KARKALA
     UDUPI DISTRICT - 576 117.

7.   PURUSHOTHAM MARATE
     AGED ABOUT 66 YEARS
     S/O LATE NARAYANA BHAT
     R/AT DURGA, KARKALA
     UDUPI DISTRICT - 576 117.

8.   VIGNESHWARA MARATE
     AGED ABOUT 64 YEARS
     S/O LATE NARAYANA BHAT
     R/AT DURGA, KARKALA
     UDUPI DISTRICT - 576 117.
                                           ...RESPONDENTS
(BY SRI. SACHIN B.S., ADVOCATE FOR C/R1)

     THE REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC AGAINST THE JUDGEMENT AND DECREE
DATED: 29.01.2016 PASSED IN R.A. NO.72/2010 ON THE FILE
OF PRINCIPAL DISTRICT JUDGE, UDUPI DISTRICT, UDUPI,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND   DECREE    DATED:03.11.2010    PASSED    IN   O.S.
NO.103/2006 ON THE FILE OF SENIOR CIVIL JUDGE, A.C.J.M.,
KARKALA.

     THIS APPEAL COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
                                    3



                           JUDGMENT

The present regular second appeal is filed under

Section 100 of CPC by the appellant/plaintiff aggrieved by

the judgment and decree dated 29/01/2016 passed in

RA.No.72/2010 on the file of the Principal District Judge

at Udupi (for short 'the First Appellate Court'), in and by

which, the first appellate Court while dismissing the

appeal confirmed the judgment and decree dated

03/11/2010 passed in O.S.No.103/2006 on the file of the

Senior Civil Judge and Additional CJM, Karkala (for short

'the Trial Court).

2. The brief facts leading up to filing of the

appeal are that; the plaintiff and defendants are the

members of joint family holding plaint 'A' schedule

properties as ancestral properties. Some of the

properties were granted in favour of the defendant No.1

by the Land Tribunal. That defendant No.1 is her father.

That the plaintiff is entitled for 1/9th share in the entire

plaint 'A' schedule property. Hence, the suit for partition.

3. Defendants appeared and filed written

statement contending that original propositus was one

Vaman Bhat, who died leaving behind him his sons

namely, Narayana Bhat, Anirudha Bhat and Ganapathi

Bhat. That the said Narayana Bhat died leaving behind

his children namely, Anantha Bhat, Rama Bhat, Mahadeva

Bhat, Vasudeva Marate, the defendant No.1,

Purushotham Marate, the defendant No.7, Vigneshwara

Marate, the defendant No.8, Yashoda, Varada, Uma @

Gowri and Sharada. Anantha Bhat and Mahadeva Bhat

died leaving behind their children. Anirudha Bhat and

Ganapathi Bhat died leaving behind their children.

Mahadeva Bhat died issueless. All the heirs of Vaman

Bhat have constituted Hindu Undivided Family. That there

was a suit for partition filed earlier in OS.No.35/1965 on

the file of the Principal Munsiff Court, Karkala in respect

of the suit schedule properties by Vasantha @ Krishna

Marate, son of Anatha Bhat. Against the judgment and

decree passed in said suit, an appeal was preferred

before the Civil Judge (Senior Division), Udupi in

A.S.No.39/1967, wherein a preliminary decree was

passed allotting share to the parties and on disposal of

the said proceedings, RSA.No.471/1971 was preferred

before this Court. This Court, by its judgment and decree

dated 17/11/1975 confirmed the judgment of the Civil

Judge (Senior Division), Udupi. Thereafter, Final Decree

Proceedings was initiated in FDP.No.2/1979. The

Preliminary decree was referred to Deputy Commissioner

of Dakshina Kannada for division. However, actual

partition has not taken place thus for. The defendant

No.1 is the father of the plaintiff. The plaintiff being the

daughter had filed suit prematurely. Hence, sought for

dismissal of the suit.

4. The Trial Court based on the pleadings

framed issues and recorded evidence. The plaintiff

examined herself as PW.1 and exhibited 15 documents

marked as Exs.P1 to P15. On the other hand, defendant

No.1, who is the father of the plaintiff examined himself

as DW.1, exhibited 3 documents as Exs.D1 to D3. That

apart, the Court has also marked 4 documents as Exs.C1

to C4 being the plaint in OS.No.35/1965, judgment and

decree in OS.No.35/1965 and revised preliminary decree

passed therein.

5. The Trial Court, on appreciation of the

pleadings and evidence on record dismissed the suit.

Aggrieved by the same, the plaintiff filed Regular Appeal

in RA.No.72/2010. The first appellate court by its

judgment and decree impugned herein dismissed the

appeal confirming the judgment and decree of the trial

court. Being dissatisfied with the same, the plaintiff is

before this Court.

6. Learned counsel for the appellant/plaintiff

reiterating the grounds urged in the appeal memorandum

submitted that though the suit schedule properties have

been the subject matter of a suit in OS.No.35/1965

wherein a preliminary decree has already been passed

and revised preliminary decree has also been passed and

Final Decree Proceedings was also initiated, she submits

that the plaintiff being entitled for a share in her father's

property the decree in her favour in the present suit

would have merged with the pending final decree

proceedings. She further submits that the since the Final

Decree Proceedings have remained inconclusive, she is

not in a position to claim her share of properties which

have been allotted to the share of her father, but the

courts below erred in dismissing the suit holding that the

same was not maintainable and pre-matured. Hence, the

substantial question of law be involved in the matter for

consideration.

7. Heard the learned counsel for the

appellant/plaintiff. Perused the records and reasoning

given by the trial court and the first appellate court. It is

not in dispute that the suit schedule properties were the

joint family ancestral properties. That a suit in

OS.No.35/1965 had been filed by one of the members of

the family for partition of the suit schedule properties.

The said proceeding was carried in a regular appeal

before the Civil Judge (Senior Division), Udupi in

A.S.No.39/1967 and thereafter before this Court in

RSA.No.471/1971 resulting in preliminary decree allotting

the share to the members of the family. The Preliminary

Decree passed in the said OS.No.35/1965 had attained

finality and the same has not been reversed. Admittedly,

the Final Decree Proceedings have also been initiated and

Deputy Commissioner has been appointed to give effect

to the Preliminary Decree. The Final Decree Proceedings

however have not been concluded dividing the properties

by metes and bounds. Be that as it may, in terms of

Preliminary Decree, the share of the defendant

No.1/father of the plaintiff has been admittedly

determined. The plaintiff, if at all is entitled for any share

in the suit schedule properties in accordance with law

would be entitled for share which has already been

allotted to her father. This aspect of the matter has

taken note of by the trial court and the First Appellate

Court. The trial court at paragraph 16 of its judgment

has observed hereinunder:

"16. Although DW.1 in his cross-examination has admitted that some of the joint family members who are enjoying the properties filed declaration, that means to show that there was an arrangement in the family those who are in possession, they have filed declaration before the Land Tribunal, obtained occupancy right. similarly 1st defendant who was in possession of plaint 'A' schedule property filed declaration for and on behalf of entire family. Even though occupancy right granted, properties were also subject matter in O.S.No.35/1965. Once the preliminary decree is passed when there is no

actual division by metes and bounds in final decree, plaint 'A' schedule properties are not allotted to the branch of 1st defendant, question of claiming share by the plaintiff from 1st defendant in plaint 'A' schedule properties is not correct since 1st defendant's share itself is uncertain. It is not the case of the plaintiff that even after passing of preliminary decree, though final decree was filed division by metes and bounds, outside the court the parties have orally or by agreement divided the properties in OS.No.35/1965 in which plaint 'A' schedule properties are fallen to the share of defendants No.1, 7 and 8. So when there is no such contention or particulars it cannot be said that the plaintiff is entitled for share in plaint 'A' schedule properties. As rightly contended by the defendants that these plaint 'A' schedule properties are subject matter in OS.No.35/1965 there is also preliminary decree, 1st defendant's share has been declared. When such being the fact, the remedy for the plaintiff is to apply for final decree and get separated the share of 1st defendant and then claim share out of 1st defendant's share. Therefore, present suit claiming partition in plaint 'A' schedule properties from the defendants is not maintainable".

The said reasoning cannot be found fault with. In

the facts and circumstances of the matter, this Court is of

the considered view that no substantial question of law

involves in the matter for consideration. Hence, the

following: