Smt Narasamma vs Smt Huchamma
2022 Latest Caselaw 11021 Kant

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 21ST DAY OF JULY 2022

                      BEFORE

       THE HON'BLE MR.JUSTICE ASHOK S. KINAGI

          R. F. A. NO.2474 OF 2007 (PAR)

BETWEEN:

SMT. NARASAMMA
D/O BASAHANUMAIAH
W/O KEMPAIAH
AGED ABOUT 44 YEARS
R/O GIDADAKONENAHALLY
YESHWANTHAPURA HOBLI
BANGALORE NORTH TALUK - 560 002.
                                       ...APPELLANT
(BY SRI. MOHAN S., ADVOCATE)

AND:

1 . SMT HUCHAMMA
    W/O SRI.BASAHANUMAIAH
    AGED ABOUT 67 YEARS

2 . SRI KEMPAIAH
    S/O SRI.BASAHANUMAIAH
    AGED ABOUT 49 YEARS

3 . SRI RAMAKRISHNA
    S/O SRI.BASAHANUMAIAH
    AGED ABOUT 46 YEARS

   ALL ARE RESIDING AT
                            2




    GIDADAKONENAHALLY
    YESHWANTHAPURA HOBLI
    BANGALORE NORTH TALUK - 560 002.
                                   ....RESPONDENTS

(R1, R2, R3 SERVED- UNREPRESENTED
  VIDE ORDER DATED 25.10.2021 APPEAL AGAINST R1
  STANDS ABATED)


     THIS RFA IS FILED UNDER SECTION 96 OF CPC
AGAINST THE JUDGMENT AND DECREE DT.31.7.2007
PASSED IN O.S.NO.7757/2003 ON THE FILE OF THE XVIII
ADDL. CITY CIVIL JUDGE, BANGALORE CCH-32), PARTLY
DECREEING THE SUIT FOR PARTITION AND SEPARATE
POSSESSION.

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

                       JUDGMENT

The appellant aggrieved by the judgment and

decree dated 31.07.2007, passed in O.S.No.

7757/2003 by the XVIII Addl. City Civil Judge (CCH-

32), Bangalore City, has filed this appeal.

2. Parties are referred to as per their ranking

before the Trial Court. The appellant is the plaintiff

and respondents are the defendants before the Trial

Court.

3. Brief facts leading rise to filing of this appeal

are as under:

Plaintiff filed a suit for partition and separate

possession in respect of the suit schedule properties.

It is the case of the plaintiff that the plaintiff and

defendants 2 and 3 are the children of one

Basahanumaiah and defendant No.1 is the wife of said

Basahanumaiah. It is contended that the suit

schedule properties were owned by their father and

upon his death, the properties were inherited by her

and the defendants. Hence she has got equal share

along with the defendants in the suit properties.

Plaintiff requested to effect partition in the suit

schedule properties. Defendants refused to give her

legitimate share in the suit schedule properties.

Hence cause of action arose for the plaintiff to file the

suit. Hence the suit.

3.1. Though summons were served on

defendants 2 and 3, they did not choose to appear.

Hence they were placed ex parte.

3.2. The defendant No.1 has filed consenting

written statement stating that her share in suit

schedule item No.1 may be allotted to her

grandchildren through the plaintiff and her share in

item Nos.2 to 7 may be allotted in favour of the

plaintiff.

3.3. The plaintiff in support of her case

examined herself as PW-1 and got marked documents

Ex.P1 to Ex.P9. Defendant No.1 examined herself as

DW-1. The Trial Court after recording the evidence

and considering the material on record decreed the

suit of the plaintiff in part and held that the plaintiff is

entitled for 1/12th share in the item Nos.1, 5 to 7 of

the plaint schedule properties and dismissed the suit

in respect of item Nos.2 to 4 of the plaint schedule

properties. The plaintiff aggrieved by the judgment

and decree passed by the Trial Court, has filed this

appeal.

4. Heard learned counsel for the plaintiff. None

appeared on behalf of the defendants.

5. Learned counsel for the plaintiff submits that

in view of the law laid down by the Hon'ble Apex Court

in the case of VINEETA SHARMA VS. RAKESH SHARMA &

ORS., reported in AIR 2020 SC 3717, plaintiff is

entitled for equal share in the suit schedule properties.

He submits that the Trial Court has committed an

error in granting 1/12th share in the suit schedule

properties at item Nos.1, 5 to 7. He submits that the

plaintiff is entitled for 1/4th share in the suit schedule

properties. Hence on these grounds, he prays to allow

the appeal and modify the judgment and decree

passed by the Trial Court.

6. Perused the records and considered the

submissions made by learned counsel for the plaintiff.

7. The Trial Court has not framed issues/

points for consideration. Without framing the issues,

the Trial Court proceeded to dispose of the suit. This

Court being the last fact finding Court, can frame the

issues. Hence, this Court is of the opinion that instead

of remanding the matter, can frame the issues under

clause (c) sub section (1) of Section 107 of the Code

of Civil Procedure, 1908. The points/issues that arise

for consideration in this appeal are:

(1) Whether the plaintiff proves that plaintiff is entitled for 1/4th share in the suit

to 7?

(2) Whether the plaintiff proves that the judgment and decree passed by the Trial Court is perverse and arbitrary and hence requires interference ? (3) What order or decree?

8. Point No.1: There is no dispute in regard to

the relationship of plaintiff and defendants. Further

there is no dispute that the suit schedule properties at

item Nos.1, 5 to 7 were purchased by the father of

plaintiff and defendants 2 and 3. Their father died

leaving behind the plaintiff and defendants. The

plaintiff and defendants have inherited the suit

schedule properties No.1, 5 to 7. The plaintiff being

the coparcener is entitled for equal share in the suit

schedule properties No.1, 5 to 7. Further in view of

the law laid down by the Hon'ble Apex Court in the

case of VINEETA SHARMA (SUPRA), plaintiff is entitled

for equal share and the Trial Court has committed an

error in granting 1/12th share to the plaintiff. Plaintiff

is entitled for 1/4th share in the suit schedule item

Nos.1, 5 to 7. In view of the above discussion, I

answer point No.1 in affirmative.

9. Point No.2: The Trial Court considering the

relationship of plaintiff and defendants and the nature

of the suit schedule properties, Trial Court was

justified in decreeing the suit in part, insofar as item

Nos.1, 5 to 7 and was justified in dismissing the suit in

item Nos.2 to 4 of the plaint schedule properties. The

Trial Court has dismissed the suit in respect of item

Nos.2 to 4 of the plaint schedule properties on the

ground that the said properties are granted lands. It

is also admitted that the plaintiff was married and

plaintiff does not fall within the definition of 'family'.

Hence plaintiff is not entitled for share in the suit

schedule item Nos.2 to 4. The judgment and decree

passed by the Trial Court insofar as the extent of

share i.e., 1/12th allotted to the plaintiff is concerned,

is arbitrary. In view of the above, I answer point No.2

partly in affirmative.

10. Point No.3: In view of the above discussion,

the judgment and decree passed by the Trial Court is

liable to be modified. Hence, I proceed to pass the

following:

ORDER

The appeal is allowed in part.

The judgment and decree passed the Trial Court is modified. The plaintiff is entitled for 1/4th share in the suit schedule item Nos.1, 5 to 7.

No order as to cost.

SD/-

JUDGE

RD