Karnataka High Court
K Neelamma vs Smt K Shailaja on 11 December, 2023
Author: V Srishananda
Bench: V Srishananda
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RFA No. 1127 of 2006
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
REGULAR FIRST APPEAL NO.1127 OF 2006 (PAR)
BETWEEN:
SMT. K. NEELAMMA
W/O. M.A. SRINIVASACHAR,
AGED ABOUT 59 YEARS,
R/AT D.NO.3009/1,
CHIKKAGARADI STREET,
HASSAN-573201. ... APPELLANT
(BY SRI SARAVANA S., ADVOCATE)
AND:
1. SMT. K. SHAILAJA
W/O. LATE NARASIMHAMURTHY K.,
MAJOR, C/O. C.R. KRISHANACHAR
(GOLDSMITH) NO.CS 91/18,
M.G. ROAD, RAMANAGAR-581453.
2. SMT. K. KANTHAMMA
Digitally
signed by R W/O. HIRANACHAR,
MANJUNATHA AGED ABOUT 54 YEARS,
Location: KATTE BEEDI EXTENSION,
HIGH COURT
OF CHICKMAGALUR-577101.
KARNATAKA
3. MOHAMMED SIDDIQUE KHAN
S/O. LATE MOHAMMED ISMAIL KHAN,
NO.192, GEETHAMANDIR ROAD,
LASHKAR MOHALLA,
MYSORE-570001.
(SINCE DECEASED BY LR.)
3(a) SRI NOOR KHAN
S/O. LATE MOHAMMED SIDDIQUE KHAN
AGED MAJOR,
#KARNATAKA AUTO ENGINEERING WORKS,
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RFA No. 1127 of 2006
GEETHA MANDIR ROAD, LASHKAR MOHALLA,
MYSURU-570001.
(AMENDED CARRIED OUT AS PER
COURT ORDER DATED 07/12/2023)
4. SMT. SALAMAT TALAT
D/O. MOHAMMED HASSAN,
EX-WIFE OF ASHMATH,
NO.192, GEETHAMANDIR ROAD,
LASHKAR MOHALLA,
MYSORE-570001. ... RESPONDENTS
(BY SRI ABHINAVA R., ADVOCATE FOR R-4;
R-1, R-2, R-3(A) ARE SERVED)
THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST THE
JUDGMENT AND DECREE DATED 20.03.2006, IN O.S. NO.422/1995
ON THE FILE OF THE PRL. CIVIL JUDGE (SR.DN.) & CJM, MYSORE,
DISMISSING THE SUIT FOR PARTITION AND SEPARATE
POSSESSION.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard Sri Saravana S., learned counsel for the appellant
and Sri Abhinav R., learned counsel for respondent No.4.
2. The present appeal is directed against the judgment
and decree passed in O.S.No.422/1995, on the file of the Prl.
Civil Judge ( Sr.Div.), Mysore, dated 20.03.2006.
3. Parties herein are referred to as plaintiff and
defendants for the sake of convenience as per their original
rank.
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4. A suit came to be filed seeking a decree of partition
against defendant No.1 in respect of 1/3rd share plaintiff over
the following properties:
"SCHEDULE
Premises, bearing Door No.192/1 and 192/2, situated in
Geetha Mandirama Road, Lashkar Mohalla, Mysore-1,
Bounded on the East by: Geetha Mandiram Road, West
by: Conservancy, South by: Kamalamma's house, North
by: Kamalamma's and Asthafa's house (Except
Neelamma's premises measuring 20 x 12 feet in the
South West Corner."
(Hereinafter referred to as "the suit property")
5. Plaintiff laid the claim stating that defendant No.1 is
the wife of plaintiff's brother namely, K.Narasimha Murthy
(sister-in-law of plaintiff) and defendant No.2 is the sister of
the plaintiff. Father of the plaintiff namely, Kariyappachar
died in the year 1973 and mother of the plaintiff - Kalamma
died in the year 1990. The suit property originally belonged to
the father of the plaintiff.
6. Plaintiff and defendant Nos.1 and 2 have got the
suit schedule property by succession and they are enjoying the
suit property. Kalamma and defendant No.1 are trying to sell
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the suit property. Therefore, plaintiff got issued a legal notice.
There was no compliance to the callings of the notice.
Therefore, plaintiff was constrained to file the suit for partition.
7. Upon service of suit summons, defendant No.2
failed to appear before the Court and she was placed ex parte.
Defendant No.1 though appeared through her counsel, did not
choose to file any written statement. Defendant Nos.3 and 4
filed their defence, wherein, they admitted the relationship
between the plaintiff and defendant Nos.1 and 2 and denied the
other averments made in the plaint in toto.
8. Further, the defendants disputed the valuation of
the suit and also contended that defendant No.4 has purchased
the northern portion of the house property from defendant No.2
under the registered sale deed measuring east to west 60 ft.
and north to south 12 ft. and that K.Narasimha Murthy -
brother of the plaintiff and her mother Kalamma executed a gift
deed in favour of the plaintiff on 12.03.1980 in respect of the
property bearing No.192/1-D, measuring east to west 12 ft.
and north to sought 22.3 ft., which was given by the plaintiff
for lease on a monthly rent of Rs.100/- and defendant No.3 has
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purchased a portion of the suit property from defendant No.1
under the registered sale deed dated 25.06.1996 for a
consideration of Rs.2,65,000/- and defendant No.3 is in
possession and enjoyment of the property purchased by her.
Therefore, they sought for dismissal of the suit.
9. Based on the rival contentions of the parties,
learned trial Judge raised the following issues and additional
issue:
"ISSUES
1. Whether the plaintiff proves that she and the
defendants 1 and 2 being the heirs, have got schedule
properties by succession and thereby she is entitle for
1/3rd share in suit schedule properties?
2. Whether the defendant No.3 proves that Smt.
Salamat Talat had purchased northern portion of the
house property bearing No.192, described in para No.7
of the written statement of defendant No.3, from
defendant No.2?
3. Whether the defendant No.3 proves that plaintiff's
mother Kalamma and brother Narasimhamurthy had
given shares to the plaintiff and also to the second
defendant through the gift deed and since then she has
been enjoying plaintiff's share?
4. Whether the defendant No.3 proves that the suit
is barred by time?
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5. Whether the defendant No.3 proves that the suit
is bad for non-joinder of any necessary party?
6. Whether the plaintiff proves that the suit
properties has been properly valued and court fee paid
is correct?
7. Whether the plaintiff proves that she is entitled for
decree or order?
Addl. Issues Dated 16/4/2001
1. Whether the plaintiff has preferential right to
acquire 1/3rd share of 1st defendant as per Sec.22(1) of
Hindu Succession Act?"
10. In order to prove the case of the plaintiff, plaintiff
got examined herself as PW.1 and relied on four documents,
which were exhibited and marked as Exs.P-1 to P-4 comprising
of undelivered postal cover. Ex.P-2 the unserved postal cover
sent through certificate of posting, Ex.P-3 letter i.e., registered
gift deed and Ex.P-4 letter.
11. As against the evidence placed on record by the
plaintiff, defendant No.3 - Mohamed Siddiqui Khan examined
himself as DW.1 and examined two other witnesses Shylaja and
Rukiya Begam as DWs.2 and 3. The defendants have relied on
nineteen documents in all, which were marked as Exs.D-1 to D-
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19 comprising of photographs, sale deed dated 25.07.1991,
khata endorsement, another sale deed, copy of the order, copy
of the partition, tax paid receipts, khata extracts and death
certificate.
12. On conclusion of recording of evidence, learned trial
Judge heard the parties in detail and on cumulative
consideration of oral and documentary evidence placed on
record, has dismissed the suit of the plaintiff principally on the
ground that the plaint schedule property mentioned by the
plaintiff has improper measurement and there is already a
partition between Kalamma and Narasimha Murthy and the
property that has fallen to the share of Narasimha Murthy has
been gifted in favour of his two sisters and therefore, there is
no property available for partition.
13. Being aggrieved by the same, the appellant has
preferred the present appeal reiterating the grounds urged in
the memorandum of appeal, Sri Saravana, learned counsel for
the appellant-plaintiff vehemently contended that the plaintiff
has been non-suited for not properly mentioning the
measurement of the suit property, but the suit property has
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been clearly identifiable by virtue of the boundaries furnished in
the plaint. Therefore, the approach of the learned trial Judge in
dismissing the suit of the plaintiff is incorrect which has
resulted in miscarriage of justice.
14. He further emphasized that if there is discrepancy
in measurement in respect of the suit property, it is settled
principles of law that the property can be identified by
boundaries. He also contended that if there is discrepancy in
measurement and boundaries, it is boundaries that would
prevail and not the measurement and that aspect of the matter
has not been properly appreciated by the learned trial Judge
and wrongly dismissed the suit and sought for allowing the
appeal.
15. He further contended that even after gifting the
portion of the property, there remained some more portion of
the property which had fallen to the share of the father of the
plaintiff and the suit should have been decreed in respect of
that property granting 1/3rd share to the plaintiff and sought for
allowing the appeal.
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16. Per contra, learned counsel representing defendant
No.4, Sri Abhinava R., contended that the learned trial Judge
has rightly appreciated the material evidence on record and
rightly dismissed the suit of the plaintiff by noting that there is
no property available for partition.
17. He also pointed out that there was a partition in the
year 1991 and whatever the property that has fallen to the
share of the plaintiff has been gifted in favour of his two sisters
i.e., plaintiff, defendant No.2. Defendant No.4 has purchased
the property from defendant No.2 and the suit property has
been acquired by defendant No.2 under the gift deed which is
not in dispute and sought for dismissal of the appeal.
18. The other defendants have not chosen to address
arguments before the Court.
19. In the light of the rival contentions urged by the
parties, this Court, perused the material on record meticulously
and raised the following point for consideration:
"(i) Whether the plaintiff has got a right to seek for her
1/3rd share in the suit property?
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(ii) Whether the improper description of the suit
property has resulted in improper frame of the suit,
whereby, plaintiff's suit needs to be dismissed?
(iii) Whether the impugned judgment is suffering from
legal infirmity or perversity and thus, calls for
interference?
(iv) What order?
20. On perusal of the material on record, it is crystal
clear that at an undisputed point of time, the property was
owned by Kariyappachar. He died in the year 1973. By virtue
of natural succession, his wife and children namely, Kalamma,
Neelamma, Narasimha Murthy and Kanthamma succeeded to
the property left behind Kariyappachar.
21. The material on record would go to show that there
was a gift deed executed by Narasimha Murthy and Kalamma in
respect of their share in favour of the plaintiff and defendant
No.2 measuring 12 ft. x 22.4 ft. each on 12.03.1980.
22. Gift deed in favour of Neelamma by Narasimha
Murthy and Kalamma, the subject matter of the land measuring
20 ft. x 12 ft. The gift deed in favour of defendant No.2 -
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Kanthamma had the residential property measuring 12 ft. x
22.4 ft.
23. Thus, after gifting the property in favour of the
plaintiff and defendant No.2, who are the sisters of Narasimha
Murthy, there remained some more properties as the property
left behind Kariyappachar was totally measuring 100 ft. x 100ft.
24. The material on record would go to show that in
respect of the remaining land there was a partition between
Kalamma and Narasimha Murthy, which is registered on
03.07.1991.
25. Kalamma who is the mother of the plaintiff died in
the year 1991 and Narasimha Murthy who is the brother of
plaintiff and defendant No.2 died in the year 1992.
26. As per the partition that took place when Kalamma
and Narasimha Murthy were alive, the property that has fallen
to the share of Narasimha Murthy and Kalamma was being
enjoyed by them as per registered partition and were sold to
defendant Nos.3 and 4 respectively by registered sale deeds.
Therefore, there was no property that was left behind by
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Narasimha Murthy or Kalamma to be claimed by the plaintiff as
against defendants.
27. In other words, since the property that has fallen to
the share of Narasimha Murthy and Kalamma was already
gifted in favour of the plaintiff and defendant No.2 by virtue of
the gift deeds and remaining property has been shared by
Narasimha Murthy and Kalamma by a registered partition deed.
The plaintiff did not possess any right whatsoever to lay her
claim in respect of the suit property.
28. As such, the contention on behalf of the appellant
that only a wrong mentioning of the schedule in the plaint,
which has resulted in the dismissal of the suit cannot be
countenance in law. In other words, even in the absence of
any measurement being mentioned in the plaint schedule,
having regard to the fact that by virtue of the registered
partition, Narasimha Murthy and Kalamma, after the gift deeds
have been executed, got their respective portions which they
were entitled to sell it to any third party as their own right. As
such they have alienated in favour of defendant Nos.3 and 4.
Hence plaintiff does not possess any right whatsoever to seek
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partition in respect of the property sold in favour of defendant
Nos.3 and 4 as a heir of Kariyappachar.
29. Further, the learned trial Judge has also bestowed
his attention that if at all the plaintiff is aggrieved about the
partition that has taken place between Narasimha Murthy and
Kalamma, the same should have been questioned before the
Court and the said partition is a registered partition deed and
there is a constructive notice under Section 3 of the Transfer of
Property Act. Fact remains that registered partition has not
been challenged by the plaintiff, and straight away laying a
claim, that too in the year 1995, is impermissible. As such suit
is rightly dismissed.
30. Further, the plaintiff for the reasons best known,
has not given the measurement of the suit property. At least,
the plaintiff had the benefit of having the gift deed in her favour
and that should have been removed from the suit property so
also the registered gift deed in favour of her sister should have
been deducted. If it is the claim of the plaintiff that the suit is
filed only in respect of the remaining property less the
measurements of the property that has been the subject matter
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of two gift deeds, there was no difficulty for the plaintiff in
mentioning the measurement of the remaining property. Non-
mentioning of the measurement and asking the Court to take
into consideration the boundaries alone would not cure the
defect in the plaint, inasmuch as what the boundaries that has
been given is for 100 ft. x 100 ft. and not for the remaining
property.
31. Under such circumstances, the arguments put forth
on behalf of the appellant that the boundaries will prevail over
the measurements and the trial Court ought not to have
dismissed the suit cannot also be countenanced in law.
32. In view of the aforesaid discussion, the resultant
position would be, the plaintiff has failed to establish the suit
claim as the improper framing of the suit and does not possess
any ground whatsoever to call the impugned judgment as
suffering from legal infirmity or perversity. Accordingly, point
Nos.1 to 3 are answered in the negative.
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33. Reg: Point No.4:
In view of finding of this Court on point Nos.1 to 3 as
above, the following:
ORDER
The appeal is meritless and hereby dismissed.
No order as to costs.
Sd/-
JUDGE
S*
