Kitty Shetty vs Smt Sudha D Shetty
2022 Latest Caselaw 12101 Kant

     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 23RD DAY OF SEPTEMBER, 2022

                         BEFORE

       THE HON'BLE MR.JUSTICE UMESH M ADIGA

       REGULAR FIRST APPEAL No.252 OF 2007 (PAR)

BETWEEN:

KITTY SHETTY
AGED ABOUT 75 YEARS
WIDOW OF GOPAL SHETTY
BANABETTU MANE, HAVANJE VILLAGE
UDUPI TALUK - 567 101.                 ...APPELLANT

(BY SRI SAMPAT ANAND SHETTY, ADVOCATE)

AND:

1.     SMT.SUDHA D SHETTY
       D/O SMT.GIRIJA SHETTY
       AGED ABOUT 60 YEARS.

2.     VRINDA SHETTY
       AGED ABOUT 36 YEARS

3.     NANDA SHETTY
       AGED ABOUT 35 YEARS.

4.     SANDHYA SHETTY
       AGED ABOUT 35 YEARS.

5.     GANESH SHETTY
       AGED ABOUT 29 YEARS.

       RESPONDENTS No.2 TO 5 ARE
       CHILDREN OF 1ST RESPONDENT
                              2         RFA 252/2007




      ALL ARE R/AT "GOWRI HOUSE"
      DR.AMBEDKAR ROAD, POST: PUTTUR
      UDUPI TALUK - 567 101.

6.    CHANDAYYA SHETTY
      AGED ABOUT 88 YEARS.

7.    SMT.GIRIJA SHETTY
      AGED ABOUT 79 YEARS.

8.    SMT. KAMALA SHETTY
      AGED 62 YEARS.

      RESPONDENTS 6 TO 8 ARE
      CHILDREN OF KRISHNAMMA SHETTY.

9.    BHASKARA SHETTY
      AGED ABOUT 62 YEARS.

10.   RAGHURAM SHETTY
      AGED ABOUT 58 YEARS.

11.   SHARADA R HEGDE
      AGED ABOUT 55 YEARS.

12.   UMESH SHETTY
      AGED ABOUT 50 YEARS.

13.   SADANANDA SHETTY
      AGED ABOUT 46 YEARS.

14.   VASANTHA SHETTY
      AGED ABOUT 44 YEARS.

15.   SHALINA SHETTY
      AGED ABOUT 42 YEARS.

16.   SHYAMALA SHETTY
      AGED ABOUT 32 YEARS.
                              3      RFA 252/2007




      RESPONDENTS 9 TO 16 ARE
      CHILDREN OF 7TH RESPONDENT
      SMT.GIRIJA SHETTY.

17.   YASHODA SHETTY
      AGED ABOUT 48 YEARS.

18.   SAROJINI SHETTY
      AGED ABOUT 45 YEARS.

19.   UDAYA SHETTY
      AGED ABOUT 42 YEARS.

      RESPONDENTS 17 TO 19 ARE
      CHILDREN OF 8TH RESPONDENT.

20.   KARTHIK SHETTY
      AGED ABOUT 42 YEARS.

21.   KAUSHIK SHETTY
      AGED ABOUT 25 YEARS.

22.   KAVYA SHETTY
      AGED ABOUT 22 YEARS.

      RESPONDENTS 20 TO 22 ARE
      CHILDREN OF 11TH RESPONDENT
      SHARADA R HEGDE.

23.   SEEMA
      D/O YASHODA SHETTY.
      AGED ABOUT 24 YEARS

24.   SHOBHITHA
      D/O SAROJINI SHETTY,
      AGED ABOUT 19 YEARS.
                              4        RFA 252/2007




25.   NAME NOT KNOWN
      8 YEARS BY GUARDIAN
      MOTHER 15TH RESPONDENT
      SALINI SHETTY

26.   KARUNAKARA SHETTY,
      AGED ABOUT 55 YEARS.

27.   SAVITRI SHEDTHI,
      AGED ABOUT 50 YEARS.

28.   SUNANDA SHETTY,
      AGED ABOUT 50 YEARS.

29.   ASHA SHEDTHI,
      AGED ABOUT 48 YEARS.

30.   SHAKUNTHALA SHEDTHY
      AGED ABOUT 46 YEARS.

31.   SURESH SHETTY,
      AGED ABOUT 45 YEARS.

32.   JYOTHI SHEDTHY,
      AGED ABOUT 42 YEARS.

33.   REVATHI SHEDTHY,
      AGED ABOUT 40 YEARS.

34.   ARUNA SHETTY,
      AGED ABOUT 38 YEARS.

35.   SHALI SHEDTHY,
      AGED ABOUT 36 YEARS.

36.   KARUNAKAR SHETTY,
      AGED ABOUT 55 YEARS.

      RESPONDENTS No.27 to 36
      ARE CHILDREN OF KITTI SHEDTHY
                               5                    RFA 252/2007




      RESPONDENTS No.6, 7, 9 TO 16
      20 TO 22 AND 27 RESIDING AT
      NAGARMUTTA, HOSALA VILLAGE POST,
      BARKUR, UDUPI TALUK,
      UDUPI DISTRICT - 567 101.

      RESPONDENTS 8, 17, 18, 19, 23 AND 24
      RESIDING AT KAMMANNU OF PADU THONSE
      VILLAGE, UDUPI TALUK, UDUPI DISTRICT.

      RESPONDENTS 26 TO 35 ARE RESIDING AT
      BANABETTU HOUSE, HAVANJE VILLAGE,
      UDUPI TALUK AND DISTRICT - 567 101.

37.   SMT.RATHNA SHETTY,
      MAJOR.

38.   SMT.SUMATHI SHEDTHI,
      MAJOR.

39.   KUSUMA SHEDTHI,
      MAJOR.

      RESPONDENTS 36 TO 39 ARE
      CHILDREN OF LATE THEJAPPA SHETTY,
      RESIDING AT BANA BETTU HOUSE,
      HAVANJE VILLAGE,
      UDUPI TALUK AND DISTRICT - 567 101.
                                             ...RESPONDENTS

(SHRI A.ANAND SHETTY, ADVOCATE FOR R1;
 vide order dated 21.03.2013 notice to R2 to R4
 is held sufficient; vide order dated 10.08.2010
 appeal against R6, R7 & R16 stands abated)

     THIS REGULAR FIRST APPEAL FILED UNDER SECTION 96
OF CPC., AGAINST THE JUDGEMENT AND DECREE DATED
26.09.2006 PASSED IN O.S.No.96/1996 ON THE FILE OF THE
                                 6                  RFA 252/2007




ADDITIONAL CIVIL JUDGE (SR.DN.), UDUPI DECREEING THE
SUIT FOR PARTITION.

     THIS REGULAR FIRST APPEAL HAVING BEEN HEARD AND
RESERVED ON 5TH SEPTEMBER, 2022 AND COMING ON FOR
PRONOUNCEMENT OF JUDGMENT, THIS DAY, THE COURT
DELIVERED THE FOLLOWING:

                         JUDGMENT

Defendant No.21 in O.S.No.96/1996 on the file of

Additional Civil Judge (Sr.Dn.,), Udupi has preferred this

appeal challenging the judgment and decree passed in the

said suit dated 26.09.2006.

2. For the sake of convenience, the parties herein

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

3. Plaintiffs filed suit for partition contending that

the suit properties were joint family properties and

plaintiffs were entitled for 5/26th share in the said

property. Plaintiffs have demanded for partition with

defendants No.21 to 31 and the other defendants. They

did not agree to effect partition. Therefore, plaintiffs were

constrained to file the suit.

7 RFA 252/2007

were that 'A' schedule property was self-acquired property

of Smt.Krishnamma Shedthi; late Goapala Shetty during

his lifetime, was managing the suit property. Hence, it is

liable to be divided into four equal shares. With these

reasons, they prayed to dispose of the case.

5. Defendant No.32 (Defendants No.32 to 35 were

added as parties after they filed R.F.A.No.396 of 1999)

contended that Smt.Krishnamma Shedthi and her brothers

entered into an agreement dated 16.06.1939 for

enjoyment of the suit property and accordingly, they have

been enjoying the same. The parties are governed by the

Hindu Succession Act, 1956 and not under Aliyasanthana

Law. Therefore, each brother of Smt.Krishnamma Shedthi

were entitled for 1/4th share. Defendants No.32 to 35

were entitled for 1/4th share. The suit was bad for non-

joinder of necessary parties.

8 RFA 252/2007

6. From the rival contentions of the parties, the

Trial Court framed the following issues:

"1. Whether the defendants 21 to 31 proves that the plaint 'A' schedule properties are the self acquired properties of Smt.Krishmma Shedthi?

2. Whether the plaintiff proves that they are entitled to 5/26th share in the plaint 'A' schedule properties?

3. What is the correct income of the plaint 'A' Schedule properties?

4. Whether the suit has not been properly valued for purposes of court fees and jurisdiction?

5. Whether the plaintiff proves that the defendants 21 to 31 have misappropriated the income of 'A' schedule properties?

6. Whether the plaintiff proves that they are entitled to share of income?

7. To what relief?"

7. The plaintiff examined herself as PW-1 and got

marked documents Exs.P1 to 13 and closed her evidence.

                                    9                            RFA 252/2007




The defendants examined            DWs-1 to 3 and got marked

documents Exs.D1 and D2 and closed their evidence.

8. The learned Trial Judge after hearing the

arguments answered Issue No.1 and additional Issue No.1

in the negative, Issue No.2 partly in the affirmative and

partly decreed the suit, granting 5/28th share in the suit

properties in favour of plaintiffs, by judgments decree

dated 26.09.2006.

9. The learned Advocate for the appellant

contends that there are no pleadings in the plaint that

parties are governed by Aliyasanthana Law.

Smt.Krishnamma Shedthi died after the year 1956.

Therefore, under Section 7(2) of the Hindu Succession Act,

1956, the property has to be divided as per the provisions

of the said Act. Therefore, proper share be allotted to

appellants. The learned Advocate for Respondents

contended that this point is no more in dispute, either

before the Trial Court or in the appeal, when Respondent 10 RFA 252/2007

No.36 filed an appeal before this Court in R.F.A.No.396 of

1999; therefore, appellant cannot take the said contention

in the present appeal. Hence, prayed to dismiss the

appeal.

10. It is true that in the plaint averments, it is not

mentioned that parties are governed the Aliyasanthana

Law of Inheritance. This suit was earlier decreed by the

Trial Court by judgment and decree dated 18.04.1988

allotting 5/27th share in favour of the plaintiff. In the said

judgment, the learned Trial Judge held that parties were

governed by Aliyasanthana Law of inheritance. The

members of the family claiming share in the undivided

joint family property. Therefore, contention of the present

appellant before the Trial Court that Section 8 of 15 of

Hindu Succession Act were applicable for partition of

family property was rejected by the Trial Court.

11. The said judgment and decree dated

18.04.1998 was challenged by Respondent No.36 herein, in 11 RFA 252/2007

R.F.A.No.396/1999 before this Court; while disposing of

the said appeal, this Court in the judgment dated

11.06.2004, in para Nos.6 and 7, observed as under:

6. "Admittedly the parties are bound by "Aliyasanthana", each branch representing the females as head of the family are entitled for share what so ever in accordance with law, under the provisions of "Aliyasanthana, now governed by Hindu succession Act. In the light of the I.A. filed by the respondents, having agreed that the appellant is also entitled for share in the " Aliyasanthana property", the matter requires remand for determination of the share, in accordance with law."

7. "Accordingly, only to the extent of determining the share, the matter is remanded. In so far as the other portion of the decree, made absolute. The appellants/s and the respondents are hereby directed to appear before the learned Additional civil Judge (Sr.Dn.), Udupi, on 12.07.2004."

12 RFA 252/2007

12. In view of the above said finding, it is clear that

both the parties admitted that they are governed by

Aliyasanthana Law of Inheritance. The said point was not

at all in dispute, at the time of deciding R.F.A.No.396 of

1999. For limited purpose of assessing share of appellant,

in R.F.A.No.396/1999 matter was remanded to the Trial

Court. Thereafter, the learned Trial Judge reconsidered the

facts and passed the impugned judgment dated

26.09.2006. Therefore, contentions of appellant that

Aliyasanthana Law of Inheritance is not applicable to the

case, is not sustainable.

13. According to genealogy and findings of the Trial

Court, property was belonging to Smt.Maire Shedthi, who

died prior to 1956 and right of succession arose to the

party at that point of time. Ex.P1 is Settlement Deed,

which discloses that parties were governed by

Aliyasanthana Law and property were Aliyasanthana family

properties. It was not proved before the Trial Court that 13 RFA 252/2007

properties were self-acquired properties of Late Smt.

Krishnamma Shedthi. Therefore, Sections 8 or 15 of the

Hindu Succession Act are not applicable to the facts of the

present case. The said contention was rightly rejected by

the Trial Court in its judgment dated 18.04.1988. That was

not challenged by the appellant herein and it was

confirmed by this Court in R.F.A.No.396 of 1999.

14. The learned Trial Judge on the basis of

pleadings and evidence passed the impugned order

allotting 5/28th share in the suit property, in favour of

plaintiffs and 1/28th share, together in favour of

Respondents No.21 to 31. The said assessment of share is

proper and correct.

15. The appellant has filed I.A. dated 20.06.2014

under Order 41 Rule 27 of C.P.C. The said document do

not show that suit properties were self-acquired property

of Smt.Krishnamma Shedthi. On the contrary, they show

that they were ancestral properties. The said documents 14 RFA 252/2007

are not relevant to prove contention of the appellant in the

present suit and it requires to be rejected.

16. It appears that appellant has not looked into

her written statement while preparing appeal memo and

taken several grounds of appeal, which were not her

defence before the Trial Court. Except disputing the

shares to be allotted to plaintiffs, she has admitted most of

the facts stated in the plaint. However, in the appeal

memo, those facts are disputed; it is stated that the suit

was bad for non-joinder of necessary parties; properties

were not liable for partition, etc., which are not

sustainable.

17. In view of the above discussion, I pass the

following:

ORDER

i) The Appeal is dismissed with costs.

ii) The judgment and decree dated

26.09.2006 passed by the Court of the 15 RFA 252/2007

Additional Civil Judge (Sr.Dn.) Udupi in

O.S.No.96 of 1996 is confirmed.

iii) I.A.No.2 of 2014 filed under Order XLI

Rule 27 r/w Section 151 of CPC is

rejected.

Sd/-

JUDGE

DH