Sri A P Rudramuni vs Kumari Niriksha
2022 Latest Caselaw 11786 Kant

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  IN THE HIGH COURT OF KARNATAKA AT BENGALURU

    DATED THIS THE 13TH DAY OF SEPTEMBER, 2022

                     BEFORE

THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

           R.S.A NO. 245 OF 2022(PAR)

BETWEEN:

1. SRI A P RUDRAMUNI
S/O LATE DR A PUTTAVEERAPPA
AGED ABOUT 45 YEARS
R/AT ARAKERE VILLAGE
NEAR DANAWADI BUS STOP
HOLEHONNURU HOBLI,
BHADRAVATHI TALUK - 577201
SHIVAMOGGA DISTRICT

2. SMT MANJULA
W/O MALLIKARJUNA BELAGAL
D/O LATE DR A PUTTAVEERAPPA
AGED ABOUT 50 YEARS
R/AT DOOR NO 849/1, A BLOCK
SAHAKARA NAGARA, BENGALURU - 560092

                                      ...APPELLANTS

(BY SRI.K P BHUVAN, ADVOCATE)

AND:

1. KUMARI NIRIKSHA
D/O A P SREEDHAR
AGED ABOUT 7 YEARS
MINOR
                          2


2. SMT SUBHA K S
W/O A P SREEDHAR
AGED ABOUT 42 YEARS

BOTH ARE RESIDENTS OF
C/O SHIVAMURTHY D
HOUSE NO 1929/13, HARIHARESHWARA NILAYA
20TH CROSS, VIDYANAGARA
LAST BUS STOP, DAVANGERE CITY - 577001

3. SRI A P SREEDHARA
S/O LATE DR A PUTTAVEERAPPA
AGED ABOUT 48 YEARS
REAL ESTATE AGENT, NO 325/5, 10TH F BLOCK
SAHAKARA NAGARA, BENGALURU - 560092

                                    ...RESPONDENTS

(BY SRI.MANJUNATHA S V, ADVOCATE FOR CR1 & R2)


     THIS RSA IS FILED UNDER SECTION.100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 22.10.2021
PASSED N RA No.5009/2020 ON THE FILE OF THE IV
ADDITIONAL    DISTRICT   AND    SESSIONS    JUDGE,
SHIVAMOGGA, SITTING AT BHADRAVATHI., DISMISSING
THE APPEAL AND CONFIRMING THE JUDGMENT AND
DECREE DATED 29.02.2020 PASSED IN OS No.35/2014
ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND
JMFC, BHADRAVATHI.


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

The captioned second appeal is filed by

defendants 2 and 4 questioning the concurrent

judgments and decrees of the Courts below wherein

the suit for partition filed by plaintiffs is partly decreed

granting half share in 1/4th share of first defendant.

2. For the sake of convenience, the parties

are referred to as per their rank before the Trial Court.

3. The family tree is as under:

A.Puttaveerappa (Died) | Smt.Gouramma (Wife)(died) |

------------------------------------------------------------------------

       |                            |                            |
A.P.Sreedhara                A.P.Rudramuni                  Manjula
Son                          Son                            Daughter
48 Years                     45 Years                       50 Years
(Resp-3)                     (Appellant-1)               (Appellant-2)
     |
Subha.K.S
Wife
42 years(Resp-2)
       |
Kum.Niriksha
Daughter
7 years (Resp-1)



     4.     The      plaintiffs     are       daughter    and    wife

respectively of first defendant.              The second plaintiff

claimed that she is the legally wedded wife of first

defendant and their marriage was solemnized on

28.11.2004. In the wedlock, the first plaintiff was

born on 28.7.2012. Second plaintiff has contended

that due to harassment by first defendant, she was

compelled to return to her parental home at

Davanagere. The plaintiffs have further contended

that after the death of propositus Dr. Puttaveerappa,

who died on 24.3.2014, the first defendant started

acting adversely to the interest of plaintiffs. The

plaintiffs also contended that first defendant with a

malafide intent has executed the registered

relinquishment deed on 16.4.2013. Hence, the

present suit for partition.

4(a) On receipt of summons, the first defendant

and defendants 2 to 4 contested the proceedings.

First defendant filed written statement. Defendants 2

to 4 filed independent written statement. On the

contrary, the first defendant alleged that it is the

second plaintiff who had harassed the first defendant.

She further pleaded that second plaintiff had raised

loan of Rs.10,00,000/- from second defendant in

order to purchase a residential house. The first

defendant further claimed that she has purchased a

residential house in her name. Hence, he prayed for

dismissal of the suit.

4(b) The plaintiffs to substantiate their claim let

in evidence by examining second plaintiff has P.W.1

and relied on documentary evidence vide Exs.P1 to 49

while defendants examined second defendant as

D.W.1 and first defendant as D.W.2 and relied on

documentary evidence vide Exs.D1 to 13.

4(c) The Trial Court having assessed the oral

and documentary evidence held that suit schedule

properties are joint family ancestral properties while

the contention of defendants 2 and 3 that suit

properties were self acquired properties of propositus

Dr. Puttaveerappa was negatived by the Trial Court.

The Trial Court also held that the relinquishment deed

executed by first defendant in favour of defendants 2

and 3 will not bind the first plaintiff and accordingly

decreed the suit granting half share in 1/4th share of

first defendant who is none other than the father of

first plaintiff. The said judgment is confirmed by the

Appellate Court in R.A.No.5009/2020.

4(d) Feeling aggrieved by the concurrent

judgments and decrees of the Courts below,

defendants 2 and 4 have preferred the present second

appeal.

5. Heard the learned counsel for the

defendants 2 and 4 and the learned counsel for the

plaintiffs. Perused the concurrent findings of the

Courts below.

6. The short point that needs consideration is:

"Whether the relinquishment deed executed by first defendant in favour of defendants 2 and 4 would bind the first plaintiff?"

7. The first plaintiff is the daughter of first

defendant. In view of amendment to Section 6 of the

Hindu Succession Act, the first plaintiff assumes the

status of co-parcener. Therefore, first defendant had

no absolute right to relinquish his share in favour of

defendants 2 and 4 under registered relinquishment

deed dated 16.04.2013 vide Ex.D2. If first plaintiff

had independent right as a co-parcener, irrespective

of the registered relinquishment deed dated

16.4.2013, she is entitled for her share in the suit

schedule properties, which are admittedly ancestral

properties. Both the Courts have concurrently held

that suit schedule properties are joint family ancestral

properties. If that is so, the first plaintiff is entitled

for a share.

8. There is a subsequent development. It is

found that during the pendency of the regular appeal

before the Appellate Court, the widow of propositus

Dr. A. Puttaveerappa by name Gowramma, who was

third defendant in the suit has passed away. It

appears she has died intestate. In that view of the

matter, the share of all co-parceners stand enlarged.

Though this Court is not inclined to interfere with the

concurrent judgments of the Courts below, it is always

open for the plaintiffs to bring to the notice of the final

decree Court and if there is death, the preliminary

decree passed in O.S.No.35/2014 is liable to be

modified. Therefore, the plaintiffs who are defendants

can request the final decree Court to modify the

decree on account of death of Smt. Gowramma who is

arrayed as third defendant.

9. For the foregoing reasons, I do not find any

infirmity or illegality in the judgments and decrees of

the Courts below. No substantial question of law

arises for consideration.

10. Accordingly, the second appeal is

dismissed.

Sd/-

JUDGE

*alb/-