Smt Lalithamma vs Sri H G Ningappa @
2022 Latest Caselaw 5678 Kant

                          1




     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 29TH DAY OF MARCH, 2022

                       BEFORE

          THE HON'BLE MR. JUSTICE R. NATARAJ

     REGULAR SECOND APPEAL NO.1132 OF 2021 (PAR)


BETWEEN:

1.     SMT LALITHAMMA
       D/O GUDMI SIDDAPPA,
       AGED ABOUT 68 YEARS,
       HOUSE WIFE,
       R/O HULIGINAHOLE VILLAGE,
       HARIHAR TALUK,
       DAVANAGERE DISTRICT 577001.

2.     SR PANCHAKSHARAPPA
       S/O LATE GUDMI SIDDAPPA,
       AGED ABOUT 64 YEARS,
       R/O HULIGINAHOLE VILLAGE,
       HARIHAR TALUK,
       DAVANAGERE DISTRICT 577001.
                                     ... APPELLANTS
(BY SRI. SANTHOSH R NELKUDRI, ADVOCATE)

AND:

1.     SRI H G NINGAPPA @ LINGAPPA,
       S/O GUDMI SIDDAPPA,
       AGED ABOUT 80 YEARS,
       AGRICULTURIST,
       R/O HULIGINAHOLE VILLAGE,
       HARIHAR TALUK,
       DAVANAGERE DISTRICT 577001.
                               2




2.    SMT SULOCHANAMMA
      D/O GUDMI SIDDAPPA,
      AGED ABOUT 78 YEARS,
      HOUSE WIFE,
      R/O ITIGI VILLAGE,
      RANEBENNUR TALUK,
      HAVERI DISTRICT 581115.

3.    SMT SUVARNAMMA
      D/O GUDMI SIDDAPPA,
      AGED ABOUT 65 YEARS,
      HOUSE WIFE,
      R/O 'C' BLOCK, 1ST CROSS,
      VIDYANAGARA, HARIHAR CITY,
      DAVANAGERE DISTRICT 577001.
                                           ...RESPONDENTS
      THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC AGAINST THE JUDGMENT AND
DECREE DATED 21.10.2021 PASSED IN RA NO.39/2020
ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC,
HARIHAR, PARTLY ALLOWED THE APPEAL AND SETTING
ASIDE THE JUDGMENT AND DECREE DATED 29.02.2020
PASSED IN OS NO.4/2018 ON THE FILE OF THE PRINCIPAL
CIVIL JUDGE AND JMFC, HARIHARA.

     THIS REGULAR SECOND APPEAL COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
                     JUDGMENT

This appeal is filed by the defendant Nos.1 and 2 in

O.S.No.4/2018 challenging the concurrent finding of the

fact that the plaintiff is entitled to an undivided share in

the suit schedule property.

2. The parties shall henceforth be referred as

they were arrayed before the trial Court.

3. The plaintiff claimed that suit schedule

property was allotted to the share of his father Gudmi

Siddappa at a partition, which was evidenced by a deed

dated 07.07.1976. It is claimed that Gudmi Siddappa died

on 23.07.1993 leaving behind his wife Nanjamma, plaintiff

and defendants. The khatha of the suit property was

transferred to the name of Smt. Nanjamma as per IHC

No.161/1993-94 and she died later in the year 2009. The

plaintiff alleged that the said Nanjamma had created a

document purported to be a gift by which, the suit

property was transferred to defendant No.1. He contended

that Smt. Nanjamma had no proprietary right, title or

interest to gift the suit property to defendant No.1 and

therefore sought for partition and separate possession of

his share in the suit property.

4. Defendant Nos.1 to 4 contested the suit and

claimed that the said Gudmi Siddappa was a Teacher at

Government school and that he had purchased the suit

property out of his own income and it was his absolute

property. They claimed that after the death of Gudmi

Siddappa, the suit property was transferred to the name of

his wife Smt. Nanjamma and thereafter, she had

bequeathed the suit property to the defendant No.1,

hence, the plaintiff was not entitled for any share in the

suit property.

5. The trial Court framed the issues and set down

the case for trial. Based on oral and documentary

evidence, the trial Court held that in view of the

undisputed fact that the suit property fell to the share of

Gudmi Siddappa at a partition on 07.07.1976 and the suit

property was his absolute property. Since Gudmi Siddappa

died intestate, the same was liable to be partitioned

amongst the plaintiff and defendants. Hence, granted 2/5th

share to the plaintiff. Being aggrieved by the aforesaid

judgment and decree, defendant Nos.1 to 4 filed

R.A.No.39/2020. The first appellate Court considered that

the plaintiff and the defendants were only legal heirs of

Gudmi Siddappa and therefore by applying Section 8 of the

Hindu Succession (Amendment) Act, 2005 granted equal

share to the plaintiff and defendants. Being aggrieved by

the aforesaid judgment and decree, the present appeal is

filed.

6. The learned counsel for the defendants

submitted that apart from the suit property, another

thrash yard was granted to the share of Gudmi Siddappa,

which was not included in the suit property and therefore,

the suit for partial partition was not maintainable.

7. It is seen from the judgment and decree of the

trial Court and the first appellate Court that all the parties

had agreed to the fact that the suit property fell to the

share of Gudmi Siddappa in terms of a partition dated

07.07.1976. It is nobody's case that Gudmi Siddappa had

executed any document conveying the property to his wife

Smt. Nanjamma. It may be that the revenue records were

transferred to the name of Smt. Nanjamma but that itself

did not mean that the property was transferred to the

name of Smt. Nanjamma and therefore, Nanjamma did not

have any absolute right to convey the suit property to the

defendant No.1.

8. The first appellate Court has rightly applied

Section 8 of the Hindu Succession(Amendment) Act, 2005

and has declared that the plaintiff and defendants are

entitled to 1/5th share in the suit property. In that view of

the matter, this Court does not find any error in

appreciation of the evidence and application of law to the

facts and circumstances of this case. Hence, the appeal is

dismissed.

9. However, if the defendants consider that any

other property allotted to the share of Gudmi Siddappa

was not included in the suit of partition, then they may do

so in final decree proceedings. Final decree Court shall

consider the same and pass appropriate orders.

Sd/-

JUDGE nms