Karnataka High Court
Gundappa vs Hanumaiah on 14 December, 2023
Author: V Srishananda
Bench: V Srishananda
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NC: 2023:KHC:45452
RFA No. 419 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
REGULAR FIRST APPEAL NO. 419 OF 2013 (PAR)
BETWEEN:
1. GUNDAPPA,
AGED ABOUT 56 YEARS,
S/O LATE LAKKANNA.
2. RAMANNA,
AGED ABOUT 56 YEARS,
S/O LATE LAKKANNA.
3. GALISWAMY,
AGED ABOUT 56 YEARS,
S/O LATE LAKKANNA.
4. MARANNA,
AGED ABOUT 56 YEARS,
Digitally S/O LATE LAKKANNA,
signed by R
MANJUNATHA
Location: APPELLANTS 1 TO 4 ARE
HIGH COURT
OF R/AT BABASABARAPALYA,
KARNATAKA
KENGERI HOBLI,
VIDYAPEETA POST,
BANGALORE - 560 060.
5. SMT.LAKKAMMA,
AGED ABOUT 58 YEARS,
D/O LATE LAKKANNA,
W/O DODDAMARIYAPPA,
R/AT EMMIGEPURA,
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RFA No. 419 of 2013
KENGERI HOBLI,
BANGALORE - 560 060.
6. SMT. MUNIYAMMA,
AGED ABOUT 51 YEARS,
D/O LATE LAKKANNA,
W/O KARIYANNA,
R/AT THALAGATTAPURA,
BANGALORE - 560 062
7. SMT. MUNIHANUMAKKA,
AGED ABOUT 46 YEARS,
D/O LATE LAKKANNA,
W/O KRISHNAPPA,
R/AT MYLASANDRA,
KENGERI HOBLI,
BANGALORE - 560 060.
...APPELLANTS
(BY SRI. H. JAYAKARA SHETTY, ADVOCATE;
VIDE ORDER DATED:26.08.2021 APPEAL
AS AGAINST A5 AND A6 ABATED)
AND:
1. HANUMAIAH,
AGED ABOUT 44 YEARS,
BABASABARAPALYA,
KENGERI HOBLI,
VIDYAPEETA POST,
BANGALORE - 560 060.
2. SMT.MUNIBYRAMMA
AGED ABOAUT 54 YEARS,
W/O LATE HANUMAIAH.
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RFA No. 419 of 2013
3. LAKSHMAMMA
AGED ABOUT 34 YEARS,
D/O LATE HANUMAIAH.
4. THIMMAKKA,
AGED ABOUT 33 YEARS
W/O LATE HANUMAIAH.
5. BHAGYA,
AGED ABOUT 31 YEARS,
W/O LATE HANUMAIAH.
6. NAGAMMA,
AGED ABOUT 29 YEARS,
W/O LATE HANUMAIAH.
7. GUNDAPPA,
AGED ABOUT 54 YEARS,
W/O LATE HANUMAIAH,
RESPONDENTS 2 TO 7 ARE
R/AT BABASABARAPALYA,
VIDYAPEETA POST, KENGERI,
HOBLI, BANGALORE SOUTH TALUK,
BANGALORE - 560 060.
AND PRESENTLY RESIDING AT
HONAGANAHATTI TAVAREKERE HOBLI,
BANGALORE - 562 130.
8. SMT. CHANNAMMA,
AGED ABOUT 61 YEARS,
D/O GUNDAPPA.
9. SMT. SARASWATHI,
AGED ABOUT 41 YEARS,
D/O CHANNAMMA.
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RFA No. 419 of 2013
10. SHIVAMMA,
AGED ABOUT 34 YEARS,
S/O CHANNAMMA.
11. MUNIRATHNA,
AGED ABOUT 32 YEARS,
D/O CHANNAMMA.
12. JAGADISH,
AGED ABOUT 30 YEARS,
S/O CHANNAMMA.
RESPONDENTS 8 TO 12 ARE
R/AT NO.120,
IN FRONT OF DR. A.I.T COLLEGE,
3RD MAIN, 2ND CROSS,
RANI CHANNAMMA ROAD,
KENGUNTE (MALLATHALLI),
BANGALORE - 560 056.
13. SMT. GAYATHRI,
D/O LATE CHANNA MARAPPA,
W/O GUNDAPPA,
AGED ABOUT 36 YEARS.
14. SMT. MANJULA,
D/O LATE CHANNA MARAPPA,
W/O GUNDAPPA,
AGED ABOUT 36 YEARS.
15. SRI. MUNIRAJU,
S/O LATE CHANNA MARAPPA,
AGED ABOUT 31 YEARS.
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RFA No. 419 of 2013
16. SRI. BASAVARAJU C.,
S/O LATE CHANNA MARAPPA,
AGED ABOUT 28 YEARS.
...RESPONDENTS
(BY SRI. M. SHIVPRAKASH, ADVOCATE FOR R1;
SRI. H. NARASIMHA MURTHY, ADVOCATE FOR R8 TO R12;
SRI. K.J. MAHENDRA, ADVOCATE FOR R2 AND R7;
SRI. VASANTH RAJ, ADVOCATE FOR R3 TO R6;
SMT. VIDYA SELVAMNY, ADVOCATE FOR R13 TO R16)
THIS RFA IS FILED U/SEC.96, R/W O-41, RULE-1 OF
CPC, AGAINST THE JUDGMENT AND DECREE
DATED:29.11.2012 PASSED IN O.S.1855/1993 ON THE FILE OF
THE XVIII-ADDL. CITY CIVIL AND SESSIONS JUDGE,
BENGALURU, PARTLY DECREEING THE SUIT FOR PARTITION
AND SEPARATE POSSESSION.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard Sri.H. Jayakara Shetty, learned counsel for the
appellants, Sri. M. Shivprakash, learned counsel for respondent
No.1 and Smt.Vidya Selvamny for respondent Nos.13 to 16.
2. Present appeal is filed challenging the validity of the
judgment and decree passed in O.S.No.1855/1993, dated
29.11.2012 on the file of Addl. City Civil and Sessions Judge,
Bengaluru (CCH-10).
3. Suit of the Plaintiff came to be decreed in part as
under.
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4. Smt.Vidya Selvamny files a memo with the family
pedigree. Admittedly, the suit filed by the plaintiffs did not
contain all the sharers as parties to suit especially,
grandchildren of Sri.Thimmarayappa. Plaintiffs also claim that
their common propositor is Sri.Gundegowda who took the joint
family property. He had two sons namely, Sri.Hanumaiah and
Sri.Thimmarayappa.
5. Plaintiffs laid a claim under the branch of
Sri.Hanumaiah, whereas the impleading applicants laid claim
under the branch of Sri.Thimmarayappa. Sri.Thimmarayappa
had two wives namely, Smt.Kempamma and Smt.Channamma.
Having regard to the age of the children of Smt.Channamma as
per the family pedigree, Sri.Thimmarayappa might have
married Smt.Channamma, much earlier to the Hindu
Succession Act 1956, came into force. Therefore, the children
of Smt.Channamma cannot be considered as illegitimate
children. Now the applicants are grandchildren of
Sri.Thimmarayappa claiming under their father namely,
Sri.Kemapaiah, one of the son of Sri.Thimmarayappa through
Smt.Channamma.
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6. In the absence of all the parties being impleaded to
the suit, suit in the Trial Court could not have been
maintainable.
7. At this stage, Sri.M. Shivprakash, learned counsel
for the plaintiffs in the Court below submits that whoever
known to the plaintiffs, among children of Sri.Thimmarayappa
are impleaded, inasmuch as the children of Sri.Lakshamana one
of the son's of Sri.Thimmarayappa through 2nd wife
Smt.Channamma, has been made as a party.
8. When Sri.Lakshamana has been made as a party, it
should not now lie in the mouth of the plaintiffs that they were
not aware of the other children of Sri.Thimmarayappa through
Smt.Channamma namely, Sri.Kempaiah, Smt.Bettathimmkka
and Smt.Marakka.
submit that, Smt.Marakka, who is the daughter of
Sri.Thimmarayappa through Smt.Channamma has already filed
another suit in O.S.No.5410/2013 pending on the file of Addl.
City Civil Judge, Bengaluru, wherein, the present respondent
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Nos.13 to 16 have been made as defendants and so also the
plaintiffs and the appellants before this Court.
10. Admittedly, in the absence of all the sharers being
impleaded, impugned judgment and decree only with regard to
one branch of joint family, is impermissible. Therefore,
impugned judgment and decree cannot be sustained in the eye
of law.
11. Sri.M. Shivprakash, learned counsel submits that in
the event of this Court setting aside the impugned judgment
and decree, an opportunity be provided for the plaintiffs to
implead all the parties instead of dismissing the suit for non
joinder of necessary parties.
12. Appellants have no objection for the same, so also
respondent Nos.13 to 16.
13. Accordingly, without expressing any further opinion
on the merits of the matter following:
ORDER
i. Appeal is allowed.
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ii. Impugned judgment and decree passed in
O.S.No.1855/1993, dated 29.11.2012 on
the file of Addl. City Civil and Sessions
Judge, Bengaluru (CCH-10) is, hereby set
aside.
iii. Matter is remitted to the Trial Court for
fresh disposal in accordance with law.
iv. Plaintiffs are permitted to implead all
sharers in the suit. If any such application
is filed by the plaintiffs, the Trial Court shall
allow the same and proceed with the case
in accordance with law.
v. Taking note of the fact that already another
suit is filed in O.S.No.5410/2013, parties
are at liberty to seek clubbing of both the
cases by filing necessary application before
the Principal City Civil Judge, Bengaluru.
vi. If such transfer petition is filed, the same
shall be considered by the learned Principal
City Civil Judge, Bengaluru, in accordance
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with law and assign both the suits to one
and the same Court to avoid multiplicity of
proceedings and also contradictory
judgments being passed in both the suits.
vii. With this observation, parties are directed
to appear before the Trial Court without
further notice on 04.01.2024.
viii. Trial Court shall thereafter allow the
plaintiffs to implead all the necessary
parties and proceed with the case in
accordance with law.
ix. It is made clear that this Court has not
expressed any opinion on the merits of the
matter.
x. No orders as to costs.
Sd/-
JUDGE
AT
CT:SNN
