G V Jagannatha vs H V Shanthamma
2022 Latest Caselaw 3676 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 4TH DAY OF MARCH 2022

                        BEFORE

          THE HON'BLE MR.JUSTICE R.NATARAJ

  REGULAR SECOND APPEAL NO.84 OF 2016 (PAR)

BETWEEN:

G.V. JAGANNATHA
S/O G.K.VENKATESHAN @ APPU,
AGED ABOUT 59 YEARS,
R/AT GANJIGUNTE VILLAGE,
MULBAGAL TALUK,
KOLAR TALUK-563131

APPELLANT DIED ON 10.06.2018
LRs., OF THE APPELLANT
1(a)   SMT. SUJATHAMMA
       AGED ABOUT 55 YEARS,
       W/O LATE G.V.JAGANNATHA

1(b)   SRI. G.J.VENKATESH
       AGED ABOUT 37 YEARS,
       S/O LATE G.V.JAGANNATHA      Amended as per the
                                    order of this Hon'ble
1(c)   SRI. LAKSHMIKANTH            Court dated 22.10.2021.
       AGED ABOUT 33 YEARS,
       S/O LATE G.V.JAGANNATHA
       ALL ARE RESIDENTS OF
       GANJIGUNTE VILLAGE,
       AVANI HOBLI,
       MULBAGAL TALUK,
       KOLAR DISTRICT.                ...APPELLANTS
(BY SRI. VARUN PAPI REDDY, ADVOCATE FOR
SRI. PAPI REDDY G., AND ASSTS., ADVOCATES (THROUGH
VIDEO CONFERENCE))
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AND:

1.     H.V. SHANTHAMMA
       W/O LATE G.V.SATHYANARAYANA
       AGED ABOUT 74 YEARS,

2.     G.S. BHASKAR
       S/O LATE G.V.SATHYANARAYANA,
       AGED ABOUT 49 YEARS,

3.     RAVI SHANKAR
       S/O LATE G.V.SATHYANARAYANA,
       AGED ABOUT 44 YEARS,

4.     G.V.RANGANATH
       S/O LATE G.K.VENKATESHAN @ APPU,
       AGED ABOUT 54 YEARS,

5.     G.V.MADHU
       S/O LATE G.K.VENKATESHAN @ APPU,
       AGED ABOUT 49 YEARS,

6.     KRISHNA IYER @ ASHOK
       S/O LATE SRINIVASA IYER
       AGED ABOUT 39 YEARS,

7.     CHANDRASHEKHAR
       S/O LATE G.V.RAMAMURTHY,
       AGED ABOUT 36 YEARS,
       RESPONDENTS 1 TO 7 ARE RESIDING
       AT GANJIGUNTE VILLAGE,
       AVANI HOBLI,
       MULBAGAL TALUK-563131.

SMT. JAYAMMA, DEAD BY LRs.,

8.     SARASWATHI
       W/O SUBRAMANIYAM,
       D/O LATE G.K.ANANTHA IYER
       AGED ABOUT 67 YEARS,
       R/AT NO. 96/2, 8TH CROSS,
       TEMPLE STREET, MALLESWARAM,
       BANGALORE-560003.
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9.    CHAMPAKAVALLI
      W/O KRISHNAMURTHY,
      D/O LATE G.K.ANANTHA IYER
      AGED ABOUT 64 YEARS,
      R/AT CAR STREET, GANESH NAGAR
      TYAGARAJANAGAR 2ND BLOCK,
      BANGALORE - 28.

10.   SHARADA
      D/O LATE G.K.ANANTHA IYER
      AGED ABOUT 57 YEARS,
      R/AT KAMALA NILAYA,
      NO. 43, 6TH MAIN, 1ST CROSS,
      CHIKKALASANDRA
      BANGALORE-560061.

11.   PRASANNAMMA
      W/O LATE SRINIVASA IYER
      AGED ABOUT 69 YEARS,
      R/AT GANJIGUNTE VILLAGE,
      AVANI HOBLI, MULBAGAL TALUK-563131.

12.   BHAGYAMMA
      W/O JAYARAM,
      D/O LATE VENKATESH IYER @ APPU,
      AGED ABOUT 64 YEARS,
      R/AT MELUR VILLAGE AND HOBLI,
      SIDLAGHATTA TALUK,
      CHIKKABALLAPUR DISTRICT-562102.    ...RESPONDENTS

(THE CAUSE TITLE IS AMENDED VIDE COURT ORDER DATED
20.04.2021)

      THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF THE CIVIL PROCEDURE CODE, 1908 AGAINST
THE JUDGMENT AND DECREE DATED 09.11.2015 PASSED IN
R.A. NO.111/2012 ON THE FILE OF THE II ADDL. DISTRICT AND
SESSIONS JUDGE, KOLAR, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 21.08.2012
PASSED IN O.S NO.194/2007 ON THE FILE OF THE SENIOR
CIVIL JUDGE, MULBAGAL.
     THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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                             JUDGMENT

This appeal was filed by the plaintiff challenging the

Judgment and Decree of the Court of Senior Civil Judge,

Mulbagal (henceforth referred to as the 'Trial Court') in

O.S. No.194/2007 dated 21.08.2012 as well as the

Judgment and Decree of the Court of II Additional District

and Sessions Judge, Kolar, (henceforth referred to as the

'First Appellate Court') in R.A. No.111/2012 dated

09.11.2015 in so far as it related to declaring the shares of

defendant Nos.8 to 11 and allotting the share of Sri

Nagaraja Aiyer to the defendant No.3 by virtue of the Will

executed by Sri Nagaraja Aiyer in favour of defendant No.3

as per Ex.D8.

2. The parties shall henceforth be referred to as

they were arrayed before the Trial Court. The appellant

was the plaintiff while the respondents were the

defendants.

3. The suit in O.S. No.194/2007 was filed for

partition and separate possession. The genealogy of the

plaintiff, defendant Nos.1 to 7 and defendant Nos.12 and

13 that can be gathered from the judgment of the Trial

Court is as follows:

G.K.Venkateshan @ Appu Iyer Wife Savithramma (Dead)

G.V.Sathyanarayana G.V.Srinivasa G.V.Nagaraja Iyer G.V.Ramamurthy G.V.Jagannatha G.V.Ranganatha G.V.Madhu Bhagyamma (Dead) Iyer (Dead) (Dead) 59 years 49 years 40 years (Defendant Wife (Dead) Unmarried Wife (plaintiff) Wife (Defendant No.13) H.V.Shanthamma Wife Saraswathamma Wife Savithramma No.5) 70 years Prasannamma 52 years Sujathamma (Defendant Wife (Defendant No.1) 65 years 42 years No.4) Vijayamma (Defendant (Dead) No.12)

Bhaskar G.S.Ravishankar G.S.Krishna Iyer G.R.Chandrashekar G.J.Venkatesh G.J.Lakshmikanth 45 years 40 years @ Ashok 27 years (Defendant (Defendant 29 years (Defendant No.7) No.2) No.3) (Defendant No.6)

4. The plaintiff claimed that the suit properties

were joint family ancestral properties and that he was

entitled to 1/6th share in the suit schedule properties out of

the half share of his father.

5. The defendant Nos.1 to 3 admitted their

relationship with the plaintiff. They contended that their

predecessor, Sri G.V.Venkateshan, had inherited some

properties from his father and purchased some and that all

his family members enjoyed it, who later succeeded to

them. They denied that after the death of Sri

G.V.Venkateshan, Sri Sathyanarayana Iyer, the husband of

defendant No.1, was acting as the kartha of the family and

that some of the properties were purchased in his name.

They claimed that the properties in the name of the

husband of defendant No.1 were his absolute properties,

on which, he had raised a loan from the Primary Land

Development (PLD) Bank. However, they contended that

due to the insistence by the bank, all the members of the

family had signed the loan documents, but they did not

have any right on them. They contended that Sri G.V.

Venkateshan/Sri Venkatesh Iyer had a brother named Sri

Anantha Iyer, who died leaving behind the defendant

Nos.8 to 11. They claimed that suit item Nos.6 to 14 were

the ancestral properties which were divided between Sri

G.V. Venkateshan and Sri Anantha Iyer and they were

residing separately. They claimed that Sri G.V.

Sathyanarayana Iyer, the husband of defendant No.1, was

living separately and was cultivating suit item Nos.2 and 3

as a tenant in respect of which he was granted occupancy

rights. In addition, item No.5 was granted to him by the

Government and he later purchased suit item No.1 out of

the income from the suit item Nos.2, 3 and 5. They

therefore, claimed that the plaintiff was not entitled for a

share in suit item Nos.1 to 5. The defendant Nos.1 to 3

claimed that the brother of the plaintiff, namely, Sri

Nagaraja Aiyer, had executed a Will dated 21.12.1998

which was duly registered before the office of the Sub-

Registrar, Mulbagal. They claimed that by virtue of the

aforesaid Will, Sri Nagaraja Aiyer had bequeathed his

undivided share in the suit properties in favour of

defendant No.3. They claimed that certain other properties

were not included in the suit and that many coparceners

were not arrayed as parties in the suit.

6. The defendant Nos.8 to 10 admitted the

relationship but denied the entitlement of the plaintiff for

partition in respect of all the suit properties. The defendant

No.11 supported the defendant Nos.1 to 3. The defendant

No.12 supported the plaintiff, while the defendant No.13

adopted the written statement of defendant Nos.8 to 11.

7. Based on the oral and documentary evidence

on record, the Trial Court held that there was no partition

in the joint family and there was no division of the

properties of the joint family and hence, held that two

brothers, namely, Sri Venkatesh Iyer and Sri Anantha

Aiyer were entitled to half share each in the suit schedule

properties. It further held that the legal heirs of Sri

Venkatesh Iyer are entitled to 1/7th share each in the half

share allotted to Sri Venkatesh Aiyer. In view of the Will

dated 21.12.1998, the Trial Court held that the share of Sri

Nagaraja Aiyer had to be allotted to defendant No.3 in the

suit. The Trial Court further held that defendant Nos.8 to

11 being the children of Sri Anantha Iyer were entitled to

1/4th share each out of the half share allotted to him.

8. Being aggrieved by the aforesaid Judgment

and Decree, the plaintiff filed R.A. No.111/2012 contending

that the deceased Sri Nagaraja Aiyer had though executed

a Will, but yet the properties mentioned in the Will did not

correspond with the suit schedule properties and therefore,

the said Will dated 21.12.1998 was inoperable.

9. The First Appellate Court after considering the

contentions raised, held that the Trial Court had rightly

held that there was no partition between Sri Venkateshan /

Sri Venkatesh Iyer and Sri Anantha Iyer and that the

defendant Nos.1 to 3 had not established that item Nos.1

to 5 were the exclusive properties of the husband of

defendant No.1. It also held that the deceased Sri

Nagaraja Aiyer had executed a Will in favour of the

defendant No.3 bequeathing his undivided interest in the

suit properties and therefore, the Trial Court was justified

in apportioning the share of Sri Nagaraja Aiyer to

defendant No.3 and hence, dismissed the appeal.

10. Being aggrieved by the aforesaid, the present

Regular Second Appeal is filed.

11. The learned counsel for the appellants

submitted that Sri Venkateshan and Sri Anantha Iyer had

partitioned the properties and that suit item Nos.6 to 17

were allotted to the share of Sri Venkateshan and

therefore, the defendant Nos.8 to 11 claiming through Sri

Anantha Iyer were not entitled to a share. He contended

that defendant Nos.8 to 11 did not file any pleadings or

enter the witness box to stake their claim. He further

contended that Sri Nagaraja Aiyer could not have executed

the Will bequeathing his undivided share in the suit

schedule properties and that the suit properties had to be

distributed only amongst his surviving coparceners. He

relied upon the judgment of the Hon'ble Apex Court in

A.RAGHAVAMMA AND ANOTHER VS. A.

CHENCHAMMA AND ANOTHER reported in AIR 1964

SC 136 and contended that Sri Nagaraja Aiyer could not

have executed such a Will as he continued to be a member

of the joint family.

12. In the case on hand, the plaintiff was not able

to establish the partition between Sri Venkateshan /

Venkatesh Aiyer and Sri Anantha Iyer, who were

undisputedly entitled to half share in the suit properties.

The defendant Nos.1 and 2 who claimed that suit item

Nos.1 to 5 were owned by their predecessor, did not

challenge the decree of the Trial Court granting a share in

those properties. The fact that Sri Nagaraja Aiyer had

executed a Will (Ex.D8) in respect of his undivided share in

the suit properties in favour of defendant No.3 is not in

dispute. Though it is contended that the properties

mentioned in the Will did not correspond to the suit

properties, such a contention was not urged before the

Trial Court and no effort was made by the plaintiff to

establish that the properties that were the subject matter

of the Will were not the properties which were mentioned

in the suit schedule. When the defendant No.1 being the

sister-in-law of the plaintiff, admitted that Sri

G.V.Venkateshan had a brother named Sri Anantha Iyer,

which was proved in evidence and the plaintiff not having

proved the partition of the suit properties between Sri

G.V.Venkateshan and Sri Anantha Iyer, the inevitable was

bound to follow, namely the division of the estate into two

parts and allotting proportionate share to the legal heirs.

Courts cannot dwell on technicality to deprive the lawful

rights of the parties. The contention that Sri Nagaraja Iyer

could not have executed a Will is raised only to be rejected

as he had bequeathed his undivided share to the

defendant No.3, which was not barred. The plaintiff

therefore cannot assail this finding of fact that Sri

Venkateshan and Sri Anantha Iyer were entitled to half

share in the suit properties and that defendant Nos.8 to 11

were entitled to succeed to the share of Sri Anantha Iyer.

13. Therefore, the Trial Court and the First

Appellate Court were justified in apportioning the share of

Sri Nagaraja Aiyer to defendant No.3. Since the

plaintiff/appellants did not raise any other question of law

or fact, this Appeal lacks merit and the same is dismissed.

14. The pending interlocutory application stands

disposed off.

Sd/-

JUDGE

sma