Karnataka High Court
Smt Radhamma vs Sri L Rama Reddy on 11 December, 2023
` 1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.S.A. No.108 OF 2017
C/W
R.S.A Nos.107/2017, 697/2019 &
RSA CROB No.7/2017 IN RSA No.107/2017,
RSA CROB No.8/2017 IN RSA No.108/2017
IN RSA NO.108/2017
BETWEEN:
SRI. L. RAMA REDDY
S/O. LATE SRI. LAKSHMAIAH REDDY,
AGED ABOUT 56 YEARS,
RESIDING AT VITTASANDRA ROAD,
BEGUR VILLAGE AND POST,
BEGUR HOBLI,
BANGALORE SOUTH TALUK,
BANGALORE DISTRICT-68.
...APPELLANT
(BY SRI.Y.R.SADASHIVA REDDY, SR.COUNSEL FOR
SRI.RAHUL.S.REDDY, ADVOCATE)
AND:
1. SMT. KAMALAMMA
D/O LATE SRI. LAKSHMAIAH REDDY,
W/O LATE ANJINAPPA REDDY,
AGED ABOUT 60 YEARS,
RESIDING AT NO.4833,
OLD NO. 1050, BEGUR VILLAGE & POST,
` 2
BEGUR HOBLI,
BANGALORE SOUTH TALUK-68.
2. SMT. RADHAMMA
D/O LATE SRI. LAKSHMAIAH REDDY,
W/O SRI. MUNIRAJU,
AGED ABOUT 44 YEARS,
RESIDING AT BEGUR VILLAGE & POST,
BEGUR HOBLI,
BANGALORE SOUTH TALUK-68.
3. SMT. PREMAMMA
D/O LATE SRI. LAKSHMAIAH REDDY,
W/O SRI. ASHWATHA REDDY,
AGED ABOUT 49 YEARS,
RESIDING AT C/O. NANJA REDDY & KUNTACHIKKANAHALLI,
THIMMAKKA, PADDARAHATTI PALYA,
NEAR KAGGALIPURA,
KANAKAPURA ROAD,
BANGALORE-68.
4. SRI. M. NAGARAJ
S/O SRI. MANJAPPA,
W/O ASHWATHA REDDY,
AGED ABOUT 58 YEARS,
RESIDING AT NO.276,
BEGUR VILLAGE AND POST,
BEGUR HOBLI,
BANGALORE SOUTH TALUK-68.
...RESPONDENTS
(BY SRI.G.V.SHASHI KUMAR, ADVOCATE FOR R2;
SRI.H.P.LEELADHAR, ADVOCATE FOR R1;
R3 SERVED AND UNREPRESENTED;
V/O DTD: 12/1/2021 NOTICE TO R4 D/W)
` 3
THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE
JUDGEMENT & DECREE DTD 28.10.2016 PASSED IN
R.A.NO.371/2012 ON THE FILE OF THE II ADDL. SESSIONS AND
SPL. JUDGE, BENGALURU RURAL DISTRICT, BENGALURU THE
PARTLY ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGEMENT AND DECREE DTD 30.06.2012 PASSED IN
OS.NO.644/2005 ON THE FILE OF THE I ADDL. SR.CIVIL JUDGE,
BENGALURU (R) DISTRICT BENGALURU.
IN RSA NO.107/2017
BETWEEN:
SRI. L. RAMA REDDY
S/O LATE SRI. LAKSHMAIAH REDDY,
AGED ABOUT 56 YEARS,
RESIDING AT VITTASANDRA ROAD,
BEGUR VILLAGE AND POST,
BEGUR HOBLI,
BANGALORE SOUTH TALUK,
BANGALORE DISTRICT-560068.
...APPELLANT
(BY SRI.Y.R.SADASHIVA REDDY, SR.COUNSEL FOR SRI.RAHUL.S
REDDY, ADVOCATE)
AND:
1. SMT. RADHAMMA
D/O LATE SRI. LAKSHMAIAH REDDY,
W/O SRI. MUNIRAJU,
AGED ABOUT 44 YEARS,
RESIDING AT BEGUR VILLAGE & POST,
BEGUR HOBLI, BANGALORE SOUTH TALUK-68.
2. SMT.K.KAMALAMMA
D/O LATE SRI. LAKSHMAIAH REDDY,
` 4
AGED ABOUT 61 YEARS,
RESIDING AT MARUTHI PROVISIONS STORES,
BEGUR VILLAGE & POST,
BEGUR HOBLI,
BANGALORE SOUTH TALUK,
BANGALORE DISTRICT - 68.
3. SMT. PREMAMMA
D/O LATE SRI. LAKSHMAIAH REDDY,
W/O SRI. ASHWATHA REDDY,
AGED ABOUT 49 YEARS,
RESIDING AT C/O. NANJA REDDY & KUNTACHIKKANAHALLI,
THIMMAKKA, PADDARAHATTI PALYA,
NEAR KAGGALIPURA,
KANAKAPURA ROAD,
BANGALORE-68.
4. SRI. M. NAGARAJ
S/O. SRI. MANJAPPA,
W/O. ASHWATHA REDDY,
AGED ABOUT 58 YEARS,
RESIDING AT NO.276,
BEGUR VILLAGE AND POST,
BEGUR HOBLI,
BANGALORE SOUTH TALUK-68.
...RESPONDENTS
(BY SRI.G V SHASHIKUMAR, ADVOCATE FOR R1;
SRI.H.P.LEELADHAR, ADVOCATE FOR R2;
R3 SERVED & UNREPRESENTED;
V/O DTD: 25/2/2021, NOTICE TO R4 IS D/W)
THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE
JUDGEMENT & DECREE DTD 28.10.2016 PASSED IN
R.A.NO.369/2012 ON THE FILE OF THE II ADDL. SESSIONS AND
SPL. JUDGE, BENGALURU RURAL DISTRICT, BENGALURU THE
PARTLY ALLOWING THE APPEAL AND SETTING ASIDE THE
` 5
JUDGEMENT AND DECREE DTD 30.06.2012 PASSED IN
OS.NO.644/2005 ON THE FILE OF THE I ADDL. SR.CIVIL JUDGE,
BENGALURU (R) DISTRICT BENGALURU.
IN RSA NO.697/2019
BETWEEN:
SMT KAMALAMMA
D/O LATE SRI LAKSHMAIAH REDDY
AGED ABOUT 64 YEARS
R/AT NO.4833, OLD NO.1050,
BEGUR VILLAGE AND POST
BEGUR HOBLI
BENGALURU SOUTH TALUK
BENGALURU DISTRICT-560 068
...APPELLANT
(BY SRI.LEELADHAR H P, ADVOCATE)
AND:
1. L RAMAREDDY
S/O LATE LAKSHMAIAH REDDY
AGED ABOUT 59 YEARS
R/AT NO.90, DEVARACHIKKANAHALLY ROAD,
DIO HIGHTS LAYOUT, 1ST MAIN, 3RD CROSS ROAD
BEGUR VILLAGE & POST
BEGUR HOBLI, BENGALURU SOUTH TALUK
BENGALURU-560 068.
PRESENTLY R/AT
NO.102, 1ST CROSS
KITHURU RANI CHENNAMMA ROAD
ROYAL MERIDIAN LAYOUT
DEVARACHIKKANAHALLI MAIN ROAD
BEGUR WARD NO.192
BEGUR VILLAGE, BEGUR HOBLI
BENGALURU-560 114
` 6
2. SMT L.RADHAMMA
D/O LATE LAKSHMAIAH REDDY
W/O MUNIRAJU
AGED ABOUT 47 YEARS
R/AT BEGUR VILLAGE & POST
BEGUR HOBLI
BENGALURU SOUTH TALUK
BENGALURU-560 114
PRESENTLY R/AT
NO.33, CHAMUNDESHWARI NAGAR
DEVARACHIKKANAHALLI MAIN ROAD
NEAR SAINT MARY SCHOOL
BEGUR WARD NO.192
BEGUR VILLAGE, BEGUR HOBLI
BENGALURU-560 114
3. SMT PREMAMMA
D/O LATE LAKSHMAIAH REDDY
W/O ASHWATHREDDY
AGED ABOUT 52 YEARS
R/AT C/O NANJAREDDY
& KUNTACHIKKANAHALLI THIMMAKKA
PEDDARAHATTI PALYA
NEAR KAGGLIPURA
KANAKAPURA ROAD
BENGALURU-560 114
4. M NAGARAJ
S/O MANJAPPA
W/O ASHWATHREDDY
AGED ABOUT 65 YEARS
R/AT NO.276, BEGUR VILLAGE & POST
BEGUR HOBLI, BENGALURU SOUTH TALUK
BENGALURU-560 114
...RESPONDENTS
(BY SRI.Y.R.SADASHIVA REDDY, SR.COUNSEL FOR SRI.RAHUL.S
REDDY, ADVOCATE FOR R1;
` 7
SRI.G.V.SHASHIKUMAR, ADVOCATE FOR R2;
R3 & 4 SERVED & UNREPRESENTED)
THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE
JUDGEMENT & DECREE DTD 28.10.2016 PASSED IN R.A.NO.
371/2012 ON THE FILE OF THE II ADDITIONAL DISTRICT &
SESSIONS JUDGE, BENGALURU RURAL DISTRICT, BENGALURU,
PARTLY ALLOWING THE APPEAL AND SETTING ASIDE THE
JUDGEMENT AND DECREE DTD 30.06.2012 PASSED IN
OS.NO.644/2005 ON THE FILE OF THE I ADDITIONAL SENIOR
CIVIL JUDGE, BENGALURU (R) DISTRICT BENGALURU.
IN RSA CROB NO.7/2017
BETWEEN:
SMT RADHAMMA
D/O LATE LAKSHMAIAH REDDY,
W/O SRI MUNIRAJU,
AGED ABOUT 44 YEARS
R/AT BEGUR VILLAGE & POST,
BEGUR HOBLI,
BENGALURU-560 068
...CROSS OBJECTOR
(BY SRI.G.V.SHASHI KUMAR, ADVOCATE)
AND:
1 . SRI L RAMA REDDY
S/O LATE LAKSHMAIAH
REDDY,
AGED ABOUT 56 YEARS,
R/AT VITTASANDRA ROAD,
BEGUR VILLAGE AND POST,
BEGUR HOBLI,
BENGALURU-560 068
` 8
2 . SMT KAMALAMMA
D/O LATE LAKSHMAIAH REDDY,
W/O LATE ANJINAPPA REDDY,
AGED ABOUT 60 YEARS,
BEGUR VILLAGE AND POST,
BEGUR HOBLI,
BENGALURU-560 068
3 . SMT PREMAMMA
D/O LATE LAKSHMAIAH REDDY,
W/O SRI ASHWATHA REDDY,
AGED ABOUT 49 YEARS
R/AT C/O NANJA REDDY
AND KUNTACHIKKANAHALLI,
THIMMAKKA,
PADDARAHATTI PALYA,
NEAR KAGGALIPURA,
KANAKAPURA ROAD,
BENGALURU-560 068
4 . SRI M NAGARAJ
S/O SRI MANJAPPA,
W/O ASHWATHA REDDY,
AGED ABOUT 58 YEARS
R/AT NO.276,
BEGUR VILLAGE AND POST,
BEGUR HOBLI,
BENGALURU-560 068
...RESPONDENTS
(BY SRI.Y.R.SADASHIVA REDDY, SR.COUNSEL FOR SRI.RAHUL S
REDDY, ADVOCATE FOR R1;
SRI.H.P.LEELADHAR, ADVOCATE FOR R2;
V/O DTD: 15/09/2023, R3 & 4 IS D/W)
THIS RSA.CROB IN RSA NO.107/2017 IS FILED UNDER
ORDER 41 RULE 22 R/W U/S. 100 OF CPC., 1908 AGAINST THE
` 9
JUDGEMENT AND DECREE DATED 28.10.2016 PASSED IN R.A.No.
369/2012 ON THE FILE OF II ADDL. DISTRICT AND SESSIONS
JUDGE, BANGALORE RURAL DISTRICT, BANGALORE, PARTLY
ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND
DECREE DATED 30.6.2012 PASSED IN OS.No.644/2005 ON THE
FILE OF THE I ADDL. SR. CIVIL JUDGE BENGALURU (R) DIST.,
BENGALURU AND ETC.,
IN RSA CROB NO.8/2017
BETWEEN:
SMT RADHAMMA
D/O LATE LAKSHMAIAH REDDY,
W/O SRI MUNIRAJU,
AGED ABOUT 44 YEARS
R/AT BEGUR VILLAGE & POST,
BEGUR HOBLI,
BENGALURU-560 068
...CROSS OBJECTOR
(BY SRI.G.V.SHASHI KUMAR, ADVOCATE)
AND:
1. SRI L RAMA REDDY
S/O LATE LAKSHMAIAH REDDY,
AGED ABOUT 56 YEARS,
ALSO R/AT 90, DEVARACHIKANAHALLI ROAD,
DIO HEIGHTS LAYOUT, I MAIN,
3RD CROSS ROAD, BANGALORE SOUTH TALUK
R/AT VITTASANDRA ROAD,
BEGUR VILLAGE AND POST,
BEGUR HOBLI,
BENGALURU-560 068
2. SMT KAMALAMMA
D/O LATE LAKSHMAIAH REDDY,
` 10
W/O LATE ANJINAPPA REDDY,
AGED ABOUT 60 YEARS,
ALSO R/AT NO.4833, OLD NO.1050
MARUTHI PROVISION STORE,
BENGALURU SOUTH TALUK,
BEGUR VILLAGE AND POST,
BEGUR HOBLI,
BENGALURU-560 068
3. SMT PREMAMMA
D/O LATE LAKSHMAIAH REDDY,
W/O SRI ASHWATHA REDDY,
AGED ABOUT 49 YEARS
R/AT C/O NANJA REDDY
AND KUNTACHIKKANAHALLI,
THIMMAKKA, PADDARAHATTI PALYA,
NEAR KAGGALIPURA,
KANAKAPURA ROAD,
BENGALURU-560 068
4. SRI M NAGARAJ
S/O SRI MANJAPPA,
W/O ASHWATHA REDDY,
AGED ABOUT 62 YEARS
R/AT NO.276, BEGUR VILLAGE AND POST,
BEGUR HOBLI,
BENGALURU-560 068
...RESPONDENTS
(BY SRI.Y.R.SADASHIVA REDDY, SR.COUNSEL FOR SRI.RAHUL S
REDDY, ADVOCATE FOR R1; SRI.H.P.LEELADHAR, ADVOCATE FOR
R2; R3 SERVED & UNREPRESENTED; V/O DTD: 15/09/2023,
NOTICE TO R4 IS D/W)
THIS RSA.CROB IN RSA NO.108/2017 IS FILED UNDER
ORDER XLI RULE 22 R/W SEC.100 OF CPC.,1908 AGAINST THE
JUDGEMENT & DECREE DTD 28.10.2016 PASSED IN R.A.NO.
` 11
371/2012 ON THE FILE OF II ADDL. SESSIONS AND SPL. JUDGE,
BANGALORE RURAL DISTRICT, BANGALORE PARTLY ALLOWING
THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE
DTD 30.6.2012 PASSED IN OS.NO.644/2005 ON THE FILE OF THE I
ADDL. SENIOR CIVIL JUDGE, BANGALORE (R) DISTRICT,
BANGALORE.
THESE RSA's AND RSA CROB's HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT ON 17.11.2023, COMING ON FOR
PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
JUDGMENT
Before I advert to the facts, it would be useful for this
Court to cull out the family tree submitted by the parties
which is as under:
Kadirappa
|
------------------------------------------
| |
Thayamma Narasimhaih
Thimmaiah Govamma
| |
Lakshmaiah Reddy ---------------------------------------
(zÀvÀÄÛ JAzÀÄ §gɬĹgÀÄvÁÛgÉ) | | |
Muniyamma Muniyamma Narasamma Ramaiah
|
------------------------------------------------------
| | | |
Kamalamm Rama Reddy Premamma Radhamma
(Def -2) (Def -1) (Def -3) (Plaintiff)
2. One Kadirappa is the propositus of the family who
had a daughter and son by name Thayamma and
Narasimhaiah respectively. The plaintiff and defendant Nos.1
to 3 are the grandchildren of Thayamma. Thayamma had a
son by name Lakshmaiah Reddy who is married to
Muniyamma. The plaintiff and defendant Nos.1 to 3 are the
children of said Lakshmaiah Reddy and Muniyamma. One of
the daughter of Lakshmaiah Reddy instituted a suit in
O.S.No.644/2005 seeking relief of partition and separate
possession of her 1/4th share in the suit schedule properties
and also sought for declaration that sale deed dated
10.11.2006 executed by defendant No.1 in favour of
defendant No.4 in respect of portion of item No.1 is null and
void and not binding on the plaintiff. The plaintiff contended
that suit properties are joint family ancestral properties of
plaintiff and defendant Nos.1 to 3. The plaintiff further
contended that Sy.No.20/7 in item No.2(2), Sy.No.97/1 in
item No.3(1), Sy.No.102/1 in item No.1(3), Sy.No.83/7 (item
No.7 and Sy.No.83/6 (item No.9) are owned by her mother
Muniyamma, while Sy.No.103/2 in item No.1(2), Sy.No.102/4
in item No.1(1), Sy.No.96/2 in item No.4(1), Sy.No.64/2 in
item No.5(2), Sy.No.81/6 in item No.6(1), Sy.No.96/3 in item
No.4(2) and item No.8 which is a house property are inherited
by Lakshmaiah Reddy through his mother Thayamma. On
these set of pleadings, plaintiff has filed the present suit
seeking her 1/4th share in the suit schedule properties.
3. The defendant No.1 who is the contesting party
filed written statement and admitted the relationship between
the parties. The defendant No.1 further contended that he
constituted undivided Joint Hindu family along with his father
Lakshmaiah Reddy and therefore, defendant No.1 contended
that after demise of Lakshmaiah Reddy, he being a sole male
survivor has succeeded to all the suit schedule properties and
is in exclusive possession. Defendant No.1 further contended
that plaintiff and defendant Nos.2 and 3 who are married long
back were gifted with gold ornaments and sites were also
given to them towards their legitimate share and therefore,
contended that plaintiff and defendant Nos.2 and 3 are not
entitled for any share. The defendant No.1 also contended
that defendant Nos.2 and 3 have already relinquished their
share by executing affidavit in his favour and therefore,
contended that defendant Nos.2 and 3 are not entitled for any
share. The defendant No.1 has filed additional written
statement by contending that there is a suit pending in respect
of item No.9 and therefore, contended that item No.9 is not
available for partition. Insofar as item No.8 is concerned,
defendant No.1 claimed that he is the absolute owner and
therefore, plaintiff is not entitled for any share.
4. Defendant Nos.2 and 3 who are sisters of plaintiff
and defendant No.1 filed written statement and contended
that they are also entitled for legitimate share in the suit
schedule properties. The defendant No.4 - Nagaraj has also
tendered written statement and has accepted the defence set
up by the defendant No.1 and has specifically contended that
defendant No.1 had a saleable title and accordingly has
executed the sale deed in his favour and therefore, sought for
dismissal of the suit insofar as item No.1 is concerned.
5. Plaintiff and defendants to substantiate their
respective claim have let in oral and documentary evidence.
6. The trial Court having examined the material on
record held that suit properties are ancestral properties and
therefore, decreed the suit filed by the plaintiff granting 1/4th
share in the suit schedule properties. The trial Court further
declined to grant any share to defendant Nos.2 and 3 on the
ground that they have relinquished their share by way of
affidavit which are marked at Exs.D-11 and D-12.
7. Defendant No.1 feeling aggrieved by the grant of
1/4th share to the plaintiff questioned the preliminary decree
by preferring appeal in R.A.No.369/2012 and sought for
dismissal of the plaintiff's suit. Defendant No.2 - Kamalamma
challenged the judgment and decree dated 30.06.2012 by
filing appeal in R.A.No.371/2012 insofar as denial of her 1/4th
share in the suit schedule properties.
8. The appellate Court as a final fact finding authority
has independently assessed the entire material on record. The
appellate Court, however, reversed the finding of the trial
Court wherein plaintiff was allotted 1/4th share. While appeal
filed by the defendant No.2 was also allowed in part and the
reasons assigned by the trial Court on relinquishment of share
by way of affidavit was reversed by the appellate Court. The
appellate Court further held that plaintiff and defendant Nos.2
and 3 being sisters are not entitled to equal share at par with
the defendant No.1/brother. The appellate Court modified the
preliminary decree by granting 1/8th share in Sy.Nos.102/4,
103/2, 20/6 and 97/2. Further, appellate Court held that
plaintiff and defendant Nos.2 and 3 are entitled for 1/4th share
in Sy.No.102/1, 20/7 and 97/1. Appellate Court further
dismissed the suit insofar as item Nos.7 and 9 by recording a
finding that these properties are not available for partition.
Appellate Court also held that sale deed executed by
defendant No.1 in favour of defendant No.4 insofar as item
No.1 is concerned is not binding on plaintiff and defendant
Nos.2 and 3 and also held that plaintiff and defendant Nos.2
and 3 are entitled for mesne profits in the suit schedule
properties and ordered for enquiry as to mesne profits under
Order XX Rule 12 of CPC.
9. Feeling aggrieved, defendant No.1 has filed
RSA.No.107/2017 questioning the judgment and decree
passed in R.A.No.369/2012. Defendant No.1 has also filed
RSA.No.108/2017 questioning the judgment and decree
passed in R.A.No.371/2012. The plaintiff feeling aggrieved by
the judgment and decree passed in R.A.No.369/2012 wherein
her share is reduced by the appellate Court has filed
RSA.Crob.No.7/2017. The plaintiff has also questioned the
dismissal of the suit insofar as item Nos.7 and 9 are
concerned. The plaintiff has also filed RSA.Crob.No.8/2017
questioning the judgment and decree passed in
R.A.No.371/2012 feeling aggrieved by the granting of 1/8th
share in the properties and dismissal of the suit in item Nos.7
and 9. The defendant No.2 - Kamalamma has filed
RSA.No.697/2019 challenging the judgment and decree
passed in R.A.No.371/2012 insofar as dismissing her claim in
respect of item Nos.7 and 9 and granting notional share in all
the suit schedule properties.
10. Learned Senior Counsel reiterating the grounds
urged in the second appeal would contend that the appellate
Court erred in reversing the findings of the trial Court on
Exs.D-11 and D-12. Referring to Exs.D-11 and D-12, he
would vehemently argue and contend that defendant Nos.2
and 3 have voluntarily relinquished their share and therefore,
he would contend that the findings recorded by the appellate
Court on Exs.D-11 and D-12 is perverse and would warrant
interference. To buttress his arguments, he has placed
reliance on the judgment rendered by the Hon'ble Apex Court
in the case of H.Vasanthi vs. A.Santha (Dead) Through
LRs. and Others1. Referring to the dictum laid down by the
Apex Court in the judgment cited supra, he would contend
that among co-owners in a joint family, there can be oral
relinquishment and therefore, he would point out that
appellate Court erred in reversing the finding of the trial Court
in holding that relinquishment is not proved by defendant No.1
insofar as share of defendant Nos.2 and 3 in the properties are
concerned.
11. Per contra, learned counsel appearing for defendant
Nos.2 and 3 supporting the finding of the appellate Court on
Exs.D-11 and D-12 would vehemently argue and contend that
there cannot be oral relinquishment of property rights in
immovable property and therefore, he would contend that the
findings recorded by the appellate Court on the alleged
relinquishment by defendant Nos.2 and 3 is in accordance with
law and would not warrant any interference at the hands of
this Court. Learned counsel appearing for defendant Nos.2
2023 Live Law (SC) 655
and 3 has also equally countered the contention of the learned
Senior Counsel that Sy.No.103/2 was reassigned Sy.No.103/1.
He would point out that Sy.No.103/1 is a newly assigned
number and therefore, no serious prejudice is caused to
defendant No.1 if the decree is amended and newly assigned
Sy.No.103/1 is reflected in the decree that would be passed by
this Court.
12. Learned counsel appearing for the plaintiff
reiterating the grounds urged in the cross appeal would point
out that admittedly the suit schedule properties were self
acquired properties of their father Lakshmaiah Reddy and
Muniyamma. Sy.No.20/7 in item No.2(2), Sy.No.97/1 in item
No.3(1), Sy.No.102/1 in item No.1(3), Sy.No.83/7 (item No.7
and Sy.No.83/6 (item No.9) were acquired by their mother
Muniyamma and therefore, plaintiff and defendant Nos.1 to 3
being class-I heirs would inherit the properties left behind by
their mother under Section 15 of Hindu Succession Act. He
would further point out that item Nos.4 to 9 were admittedly
owned by plaintiff and defendant Nos.1 to 3's grandmother
Thayamma and after her death, Sy.No.103/2 in item No.1(2),
Sy.No.102/4 in item No.1(1), Sy.No.96/2 in item No.4(1),
Sy.No.64/2 in item No.5(2), Sy.No.81/6 in item No.6(1),
Sy.No.96/3 in item No.4(2) and item No.8 have devolved upon
the only son Lakshmaiah Reddy who is the father of plaintiff
and defendant Nos.1 to 3. Therefore, he would point out that
plaintiff and defendant Nos.1 to 3 would inherit the properties
left behind by their father as tenants in common under Section
8 of the Hindu Succession Act.
13. Learned counsel appearing for the plaintiff
questioning the finding of the appellate Court insofar as item
Nos.7 and 9 are concerned would vehemently argue and
contend that it is nobody's case that these two items were not
owned by plaintiff's parents. Insofar as item Nos.7 and 9 are
concerned, he would place reliance on Ex.P-25. Referring to
the said document which is the sale deed, he would point out
that item Nos.7 and 9 were purchased by Muniyamma.
Referring to these significant details, he would point out that
appellate Court has dismissed the plaintiff's claim insofar as
item Nos.7 and 9 and no reasons are assigned. The appellate
Court has also ignored clinching evidence on record which
clearly establishes that item No.7 and item No.9 are also the
properties owned by their father and mother and therefore,
the plaintiff and defendant Nos.1 to 3 are entitled to seek
legitimate share in these two items also.
14. Heard learned Senior Counsel for defendant No.1,
learned counsel appearing for defendant Nos.2 and 3 and
learned counsel appearing for the plaintiff. This Court vide
order dated 07.03.2017 has formulated the following
substantial question of law in RSA.No.108/2017:
"When defendant Nos.2 and 3 by taking into
consideration the financial assistance rendered to them
and marriage expenses of their daughters met by the
1st defendant, have given up their right, title and
interest in respect of their shares in the suit property in
favour of the 1st defendant by executing a document to
that effect and as such they are not entitled for any
share in the suit properties. Whether the first appellate
Court was justified in allowing R.A.No.371/2012
preferred by the defendant Nos.2 and 3 and holding
that the defendant Nos.2 and 3 are entitled to 1/8th
share in the suit properties?"
15. In the light of the substantial question of law
formulated by this Court and having heard learned Senior
Counsel, learned counsel appearing for defendant Nos.2 and 3
and learned counsel appearing for the plaintiff, this Court has
formulated additional substantial questions of law in connected
appeals and cross appeals which are as under:
1) Whether the finding of the appellate Court that
plaintiff and defendant Nos.2 and 3 are entitled for
share notionally in the suit schedule properties is
perverse, palpably erroneous and contrary to Section 8
of the Hindu Succession Act insofar as properties held
by Lakshmaiah Reddy and contrary to Section 15 of the
Hindu Succession Act insofar as properties held by
Muniyamma is concerned?
2) Whether the appellate Court erred in
dismissing the suit insofar as item Nos.7 and 9 are
concerned and that there is no dispute in regard to
existence of these two properties?
My findings on substantial question of law framed in
16. The defendant No.1 is disputing the rights of
defendant Nos.2 and 3 on the ground that his two sisters have
relinquished their share and therefore, they are not entitled
for any share. It would be useful for this Court to cull out
Ex.D-11 which is a declaration by way of affidavit given by
defendant No.3. Since the declaration given by defendant
No.2-Kamalamma vide Ex.D-12 is also identical, this Court
would deem it fit to cull out only one declaration which reads
as under:
"I, PREMA, W/o Sri Ashwatha Reddy, aged 42 years R /
@ Patareddy Palya village, Uttarahally Hobli, Bangalore
South Taluk, do hereby declare that the properties land
bearing Sy NO.64/1 36 guntas, Sy No.81/7 measuring 20
guntas. Sy No.97/2 measuring 1 acre 12 guntas, Sy
No.96/2 measuring 18 guntas, Sy No.102/4 measuring 2
acres 17 guntas Sy No.103/1 measuring 4 Acres 10
guntas, Sy No.96/3 measuring 1 Acre 04 guntas Sy
No.64/2 measuring 18 guntas Sy No.81/6 measuring 38
gunts, Sy No.20/7 measuring 4 guntas, Sy No.97/1
measuring 1 Acre 24 guntas, Sy No.102/1 measuring 1
Acre 28 guntas and Sy No.83/7 measuring 26 guntas, all
are situating at Begur Village, Hobli, Bangalore South
Taluk, are the properties absolutely vested with my
brother Rama Reddy S/o Late Lakshmaiah Reddy of
Begur Village. I further declare that I have no right, title,
interest and possession to the extent of any portion of
the above said properties in any manner.
I further ratify that it is my brother Rama Reddy is at
liberty to enjoy the said properties exclusively for
himself. My brother Rama Reddy has got every right to
dispose the above said properties on his own wish and
will.
I further declare & ratify that I have no claim of share
over the above said properties in any manner.
I declare that what is stated above are all true and
correct to the best of my knowledge, information and
belief."
17. On reading this declaration, this Court needs to
examine as to whether the declaration in the form of affidavit
can legally convey right and title in an immovable property.
On examining the recitals in the affidavit, this Court is more
than satisfied that there cannot be any relinquishment of right
in respect of immovable property by way of affidavit. It is
trite law that a relinquishment deed can be executed only by
way of a registered document and if a tenant in common who
has independent right in the properties left behind by father
and mother intends to convey his or her right in the
properties, that has to be done only by way of a registered
relinquishment deed. In the present case on hand, Exs.D-11
and D-12 are not even relinquishment deeds. They are in the
form of a declaration by way of affidavit and therefore, I am of
the view that the said declaration in the form of affidavit
alleged to have been executed by defendant Nos.2 and 3 vide
Exs.D-11 and D-12 does not take away their rights in the
property as these declarations by way of affidavit would not
amount to transfer of immovable property.
18. In adjudication of matters pertaining to
relinquishment of property rights, the judicious gaze of the
courts invariably falls upon the sanctity of legal formalities,
especially those prescribed in the annals of statutory
provisions. A salient facet of this legal mosaic lies in the
discerning interpretation of the imperative laid down by the
legislature, which unequivocally mandates that a
relinquishment deed must be in writing and duly registered to
be accorded judicial cognizance. The legal terrain, as
illuminated by the Transfer of Property Act, elucidates the
irrevocable requirement that a relinquishment deed, being a
solemn instrument of property rights, must not only find
expression in written form but must also undergo the
solemnization ritual of registration. This imperative mandate
is not a mere procedural formality but a substantive condition
precedent, meticulously enshrined to ensure legal efficacy and
authenticity in the realm of property transactions.
19. It is in this background, this Court is not inclined to
accede to the contention of defendant No.1 that defendant
Nos.2 and 3 have relinquished their share by way of affidavit.
As the legal canvas unfolds, the foundational precept is
encapsulated in the diktat that an affidavit, however solemn
and conscientiously crafted, cannot supplant the legal
imperative enshrined in the statute. Therefore, what emerges
from the above said principles is that the law stands as an
unyielding sentinel, decreeing that a relinquishment to be
recognized as a potent legal instrument, must adhere
scrupulously to the statutory prescription of being in written
from and duly registered. In consonance with the legislative
intent, the Courts are constrained to uphold the legal sanctity
embedded in the requirement of registration and therefore,
this Court in catena of judgments has consistently held that
there cannot be relinquishment either by way of affidavit or by
vardhi to the revenue authorities.
20. In the present case on hand, there is not even a
written deed which can be recognized as a legal instrument of
relinquishment. The declarations by way of affidavit which are
set up by defendant No.1 vide Exs.D-11 and D-12 have no
sanctity in the eye of law and do not carry any evidentiary
value. The appellate Court has rightly examined the
evidentiary value of Exs.D-11 and D-12 and has declined to
deny defendant Nos.2 and 3 their legitimate share in the suit
schedule properties. Accordingly, the substantial question of
law framed by this Court is answered partly in the affirmative
and against the defendant No.1.
21. The contention of defendant No.1 that defendant
Nos.2 and 3 have taken their legitimate share during their
marriage and accordingly, have executed a document to that
effect and therefore, they are not entitled for share cannot be
acceded to. Therefore, this Court is of the view that appellate
Court was justified in allowing the appeal filed by defendant
Nos.2 and 3 in R.A.No.371/2012. However, this Court is of
the view that appellate Court erred in granting 1/8th share to
defendant Nos.2 and 3 which is dealt with by this Court in the
additional substantial question of law framed by this Court.
My findings on first additional substantial question of
law:
22. It is not in dispute that Sy.No.103/2 in item
No.1(2), Sy.No.102/4 in item No.1(1), Sy.No.96/2 in item
No.4(1), Sy.No.64/2 in item No.5(2), Sy.No.81/6 in item
No.6(1), Sy.No.96/3 in item No.4(2) and item No.8 were
inherited by plaintiff and defendant Nos.1 to 3's father namely
Lakshmaiah Reddy. Lakshmaiah Reddy being the only son of
Thayamma has inherited the properties left behind by his
mother. If these significant details are looked into, then
plaintiff and defendant Nos.1 to 3 will succeed to the estate of
their father under Section 8 and not under Section 6 of Hindu
Succession Act as claimed by defendant No.1. The most
redeeming feature of Section 8 is the framing of a uniform rule
of intestate succession to the estate of a male Hindu dying
after the commencement of Hindu Succession Act. Section 8
prescribes the general rule of intestate succession to the
property of a male Hindu. If plaintiff and defendant Nos.1 to
3's father Lakshmaiah Reddy have inherited the property
through their mother, Section 6 of Hindu Succession Act is not
at all applicable to those suit schedule properties. If
Lakshmaiah Reddy has inherited the properties of his mother
under Section 15, then the succession by survivorship under
Section 6 has no application in the present case on hand. The
appellate Court has virtually misread the entire pleadings and
evidence on record while quantifying the shares of plaintiff and
defendant Nos.1 to 3. The appellate Court has wrongly
applied the principles governing the law relating to intestate
succession to the estate of a male Hindu. Therefore, appellate
Court grossly erred in granting 1/8th share notionally to
plaintiff and defendant Nos.2 and 3 in Sy.No.103/2,
Sy.No.102/4, Sy.No.20/6, Sy.No.97/2. If Sy.No.103/2 in item
No.1(2), Sy.No.102/4 in item No.1(1), Sy.No.96/2 in item
No.4(1), Sy.No.64/2 in item No.5(2), Sy.No.81/6 in item
No.6(1), Sy.No.96/3 in item No.4(2) and item No.8 are self
acquired properties of Lakshmaiah Reddy, plaintiff and
defendant Nos.1 to 3 will inherit these properties as tenants in
common under Section 8 of Hindu Succession Act. Therefore,
appellate Court erred in reversing the quantification done by
the trial Court in granting equal share to plaintiff.
23. From the pleadings and oral and documentary
evidence, it is clearly evident that there is no dispute that item
Nos.1 to 3 which consists of other properties were admittedly
owned by the mother of plaintiff and defendant Nos.1 to 3
namely Muniyamma. Section 15 of the Hindu Succession Act
provides general rule of succession in the case of a female
Hindu. Section 15 provides for any property inherited by a
female Hindu from her father or mother dying intestate shall
devolve firstly, upon the sons and daughters (including the
children of any predeceased son or daughter) and the
husband. If Sy.No.20/7 in item No.2(2), Sy.No.97/1 in item
No.3(1), Sy.No.102/1 in item No.1(3), Sy.No.83/7 (item No.7
and Sy.No.83/6 (item No.9) properties were held by
Muniyamma, then plaintiff and defendant Nos.1 to 3 would
inherit the properties left behind by their mother in terms of
Section 15 of Hindu Succession Act and not under Section 6.
Therefore, even in these properties, plaintiff and defendant
Nos.1 to 3 together would be entitled to take equal share.
24. In the light of discussion made supra, the appellate
Court has not properly understood the law relating to intestate
succession of properties left behind by a male Hindu as well as
a female Hindu. The quantification arrived at by the appellate
Court is found to be perverse, palpably erroneous and contrary
to admitted facts in regard to the nature of the properties.
Therefore, quantification done by the appellate Court in
granting share to the plaintiff and defendant Nos.2 and 3
notionally suffers from serious infirmities. Accordingly, the
first additional substantial question of law is answered in the
affirmative.
My findings on second additional substantial question of
law insofar as item Nos.7 and 9 are concerned:
25. The findings recorded by the appellate Court in
regard to item Nos.7 and 9 i.e., Sy.Nos.83/7 and 83/6
respectively suffers from serious perversity. Para 11 of the
written statement filed by defendant No.1 clinches the entire
controversy between the parties insofar as item Nos.7 and 9 is
concerned. On reading para 11, it is clearly evident that
defendant No.1 has also not disputed the existence of item
Nos.7 and 9 property. Ex.P-25 which is the sale deed clearly
demonstrates that item Nos.7 and 9 properties were
purchased by Muniyamma and therefore, this property was
available and by way of intestate succession under Section 15
of Hindu Succession Act, the property held by the mother of
plaintiff and defendant Nos.1 to 3 would devolve upon her
children. Therefore, the findings recorded by the appellate
Court insofar as item Nos.7 and 9 is concerned suffers from
serious infirmities and accordingly, substantial question of law
in that regard is answered in the affirmative.
26. For the reasons stated supra, I pass the following:
ORDER
(i) The second appeal filed by defendant No.2 in
RSA.No.697/2019 and the cross appeals filed by plaintiff in
RSA.Crob.Nos.7/2017 and 8/2017 are allowed. The appeals
filed by defendant No.1 in RSA.Nos.108/2017 and 107/2017
are dismissed;
(ii) The judgment and decree passed by the appellate
Court in R.A.Nos.369/2012 and 371/2012 are hereby
modified. The plaintiff and defendant Nos.1 to 3 being tenants
in common in the properties left behind by their father
Lakshmaiah Reddy are entitled for 1/4th share each and they
succeed as tenants in common under Section 8. The plaintiff
and defendant Nos.1 to 3 are also entitled for 1/4th share each
in the properties left behind by their mother Muniyamma
under Section 15. Therefore, plaintiff and defendant Nos.1 to
3 are entitled for 1/4th share each in all the suit schedule
properties left behind by their father Lakshmaiah Reddy and
their mother Muniyamma;
(iii) In the light of order dated 02.03.2021 passed by this
Court, while drawing the decree, the survey number shall be
amended and shown as Sy.No.103/1;
(iv) The sale deed dated 10.11.2006 executed by
defendant No.1 in favour of defendant No.4 in respect of
portion of item No.1 is null and void and not binding on
plaintiff and defendant Nos.2 and 3;
(v) The pending interlocutory application, if any, does
not survive for consideration and stands disposed of
accordingly.
Sd/-
JUDGE
CA
