Karnataka High Court
Smt Vidyarani vs Sri Ramesh on 18 December, 2023
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RSA No. 306 of 2013
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 306 OF 2013 (PAR)
BETWEEN:
1. SMT VIDYARANI
W/O LATE N JAYAPRAKASH
AGED ABOUT 47 YEARS
2. KUM KALPANA J
D/O LATE N JAYAPAKASH
AGED ABOUT 23 YEARS
BOTH ARE R/A NO.E/340
19TH STREET, PERIYAR NAGAR
CHENNAI-600 001.
...APPELLANTS
(BY SRI. VINAY N., ADVOCATE FOR
SRI. MANMOHAN P N., ADVOCATE)
AND:
Digitally
signed by R 1. SRI RAMESH
DEEPA S/O LATE N NARAYANA RAO
Location: AGED ABOUT 51 YEARS
High Court of
Karnataka 2. SRI N MANJUNATH
S/O LATE N NARAYANA RAO
AGED ABOUT 48 YEARS
R/AT DOOR NO. 401,
15TH WEST CROSS ROAD,
ASHOKA ROAD, MYSORE - 570 001
3. SMT RAJKUMARI BAI
D/O LATE N NARAYANA RAO
AGED ABOUT 46 YEARS
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RSA No. 306 of 2013
4. SMT LALITHA BAI
D/O LATE N NARAYANA RAO
AGED ABOUT 44 YEARS
5. SMT SHOBAVATHI
D/O LATE N NARAYANA RAO
AGED ABOUT 42 YEARS
6. SMT GAYATHRI
D/O LATE N NARAYANA RAO
AGED ABOUT 40 YEARS
6A. MISS. SWAPNA
D/O LATE GAYATHRI
AGED ABOUT 38 YEARS
R/AT No.58/12, 1ST MAIN
2ND CROSS, MAHESHWARI NAGAR
MAHADEVAPURA
BANGALORE - 560 048
6B. MR. RAHUL
S/O LATE GAYATHRI
AGED ABOUT 38 YEARS
R/AT No.58/12, 1ST MAIN
2ND CROSS, MAHESHWARI NAGAR
MAHADEVAPURA
BANGALORE - 560 048
7. SMT SUNITHA
W/O MANJUNATHA
AGED ABOUT 43 YEARS
R/A DOOR NO. 401,
15TH WEST CROSS ROAD
ASHOKA ROAD, MYSORE - 570 001
RESPONDENTS No.1,3 TO 6 ARE
R/AT No.149, 5TH CROSS, GANESH NAGAR
N.R. MOHALLA, NEAR THIBBADEVI THEATER
MYSURU - 570 007.
...RESPONDENTS
(BY SRI. P. SUBRAMANYA BHAT, ADVOCATE FOR R7
R1, R2, R3, R5, R6(A), R6(B) ARE SERVED
V/O DATED 30.01.2020 APPEAL AGAINST R4 IS ABATED)
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RSA No. 306 of 2013
THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DTD 31.10.2012 PASSED IN
R.A.NO.792/2010 ON THE FILE OF II ADDITIONAL DISTRICT
JUDGE, MYSORE, C/c II ADDITIONAL DISTRICT JUDGE,
MYSORE, PARTLY ALLOWING THE APPEAL AND CONFIRMING
THE JUDGEMENT AND DECREE DTD 23.11.2009 PASSED IN
OS.NO.177/1997 ON THE FILE OF I ADDITIONAL CIVIL
JUDGE (SR.DN.), MYSORE.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This second appeal is filed by the appellants
challenging the judgment and decree dated 31.10.2012,
passed in R.A.No.792/2010 by the II Additional District
Judge at Mysore, modifying the judgment and decree
dated 23.11.2009, passed in O.S.No.177/1997 by the I
Additional Civil Judge (Sr.Dn.), Mysore.
2. For the sake of convenience, parties are referred
to as per their ranking before the trial Court. The
appellants are the plaintiffs and the respondents are the
defendants. Plaintiff No.1 is the wife and plaintiff No.2 is
the daughter of late N.Jayaprakash.
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3. The brief facts leading rise to filing of this appeal
are as under:
The plaintiff filed the suit for partition and separate
possession, who is one of the children of defendant No.1.
It is the case of the plaintiffs that Sri N.Jayaprakash died
in a motor cycle leaving the plaintiffs as his legal heirs.
Plaintiff No.1 was harassed to get a dowry by the
defendants and she left her matrimonial house and started
leaving separately. It is the case of the plaintiffs that suit
item No.1 is the ancestral property of late N.Jayaprakash,
suit item No.2 is the self acquired property of late
N.Jayaprakash, suit item No.3 is the joint family property,
suit item No.5 is the jewels possessed by plaintiff No.1
which were not handed over to the plaintiffs at the time
when she had left her matrimonial home and suit item
No.6 is the certificate of M/s Peerless General Finance and
Investment Company Ltd., in which the plaintiffs and
defendant No.1 have a share. During the pendency of the
suit, the plaintiffs got deleted item No.4 of the suit
schedule properties. The plaintiffs requested the
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defendants to effect a partition. The defendants did not
effect a partition. The plaintiffs have constrained to file a
suit for partition and separate possession.
4. Inspite of service of summons, defendant Nos.4
to 7 remained absent and they have placed exparte.
5. Defendant Nos.1 to 3 filed the common written
statement contending that the husband of plaintiff No.1
derived only 1/8th share in suit item No.1 and the plaintiffs
have derived 2/24th share not 9/32 as claimed by them.
Insofar as item No.2 is concerned, it is an individual
property of defendant No.1 and it is in possession of
defendant Nos.1 to 3 and the said item No.2 is not the self
acquired property of late N.Jayaprakash. Suit item No.3
was purchased by Smt. M.Suneetha i.e., the wife of
defendant No.3 out of Streedhana provided by her mother
and it stands in her name. The plaintiffs have no right, title
or interest over the suit schedule property. The suit is bad
for non-joinder of necessary party. Hence, on these
grounds, sought for dismissal of the suit.
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6. Insofar as item No.4 is concerned, the plaintiffs
got deleted the prayer in respect of item No.4. Defendant
No.2 filed the additional written statement.
7. The Trial Court, on the basis of the above said
pleadings, framed the following issues:
1. Are the plaintiffs entitled to 9/32rd share in
item No.1 of the plaint schedule?
2. Do plaintiffs prove that suit item No.2 was
the self acquired property of 1st plaintiff's
deceased husband Jayaprakash?
3. Does 3rd defendant prove that item No.3 of
plaint schedule is her Stridhana property?
4. Do plaintiffs prove that item No.3 of plaint
schedule was acquired out of the money
jointly belonging to the family of Jayaprakash
and others?
5. Are the plaintiffs entitled to 2/3rd share in the
compensation awarded in M.V.C.379/89 on
the file of District Judge and M.A.C.T.,
Mandya?
6. Do plaintiffs prove that the gold items
mentioned in plaint schedule were possessed
by 1st plaintiff and that they were retained by
the defendants when the plaintiffs left the
matrimonial home of 1st plaintiff?
7. Is the suit properly valued and the Court fee
paid sufficient?
8. What decree order?
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8. In order to prove the case of the plaintiffs,
plaintiff No.1 was examined as PW-1 and got marked 8
documents as Exs.P1 to P8. Defendant No.3 was
examined as DW-1 and got marked one document as
Ex.D1. The trial Court on assessment of the oral and
documentary evidence, answered issue Nos.1 to 3 as per
the discussion, issue Nos.4, 6 and 7 in the negative and
issue No.5 does not arise and issue No.8 as per the final
order and consequently, suit of the plaintiffs was partly
decreed with cost. It is ordered and decreed that the
plaintiffs are entitled for partition by metes and bounds
and separate possession of their 17/163rd share only in
item Nos.1 and 2 of the suit schedule properties only. The
suit in respect of other items was dismissed.
9. The plaintiffs aggrieved by the judgment and
decree passed in the above said suit, filed an appeal in
R.A.No.792/2010 before II Additional District Judge at
Mysore. The First Appellate Court, after hearing the
parties, has framed the following points for consideration:
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1. Whether the quantum of share granted to
the plaintiffs in item No.1 and 2 is correct or
not?
2. Whether the plaintiffs are entitled for share
in items 3, 5 and 6 of the plaint schedule?
3. Whether 8th defendant proves that item No.3
of the plaint schedule is her self acquired
property?
4. Whether the suit against 8th defendant is
barred by limitation?
5. Whether the valuation made is incorrect and
Court fee paid is insufficient?
6. Whether the judgment and decree of the trial
Court is erroneous calling for interference by
this Court?
10. The First Appellate Court, on re-assessing the
oral and documentary evidence, answered point Nos.1, 2
and 4 in the negative, point No.3 does not survive for
consideration, point No.5 in the affirmative and point No.6
partly in the affirmative and consequently, allowed the
appeal in part and modified the judgment and decree
passed by the trial Court. It is ordered and decreed that
the plaintiffs are entitled for 23/112th share in plaint 'A'
schedule item No.1 and 1/8+1/64 share in item No.2 of
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the plaint schedule properties. Rest of the judgment and
decree of the trial Court was confirmed. The plaintiffs,
aggrieved by the judgments and decrees passed by the
courts below, have filed this second appeal.
11. Heard learned counsel for the plaintiffs.
12. Learned counsel for the plaintiffs submits that
the plaintiffs have produced the material on record to
establish that suit item Nos.3, 5 and 6 are the joint family
properties of the plaintiffs and the defendants, but the
courts below have not properly appreciated the material
placed on record. He submits that at the time of marriage
of plaintiff No.1 with deceased Jayaprakash, the parents of
plaintiff No.1 gave gold ornaments i.e., mentioned on item
No.5 of the suit schedule properties. He submits that it is
her separate property. He submits that in suit item No.5
one gold chain, tops gold one pair, one gold ring and one
gold chain were given to her by her parents and the said
gold ornaments are with defendant No.1. He submits that
the said aspect was not properly considered by the courts
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below. Hence, he submits that the courts below have
committed an error in passing the impugned judgments.
Hence, on these grounds, he prays to allow the appeal.
13. Perused the records and considered the
submissions of learned counsel for the plaintiffs.
14. In order to substantiate the case of the
plaintiffs, plaintiff No.1 examined herself as PW.1 and she
has reiterated the plaint averments in the examination-in-
chief and the plaintiffs in support of their case produced
the documents marked as Ex.P1 is the birth certificate of
plaintiff No.2, Ex.P2 is the wedding card of plaintiff No.1,
Ex.P3 is the copy of legal notice, Ex.P4 is the postal
acknowledgment, Exs.P5 and P6 are the copy of Nil
encumbrance certificate in respect of suit schedule
properties, Exs.P7 and P8 are the receipts of Nil
encumbrance certificates. In the course of cross-
examination, PW.1 admits that suit item No.1 was
purchased by her father-in-law's father and after his
death, the same was partitioned amongst his sons. PW.1
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also admits that her father-in-law had derived only item
No.1 of the suit schedule properties from his father
Nanjappa. It is the case of the plaintiffs that item No.2 of
the suit schedule properties was purchased by the
husband during his lifetime and he had constructed a
building. The said fact has been denied by defendant
Nos.1 to 3 and contended that the said property is the self
acquired property of defendant No.1. In order to
demonstrate that late N.Jayaprakash had purchased item
No.2 of the suit schedule properties, the plaintiffs have not
produced any records. Further, the suit item No.2 was
purchased and house was constructed before the marriage
of plaintiff No.1 with deceased N.Jayaprakash. Further, the
plaintiffs have not produced any material on record to
show that her husband has contributed for purchasing the
suit item No.2 and also for constructing the house over
item No.2 of the suit schedule properties. Even the
defendants have not produced any records to show that
the said item No.2 was purchased out of joint family
nucleus. However, the trial Court has recorded a finding
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that both the plaintiffs and the defendants have not
produced any records to show that the properties were
purchased out of self earning and held that the suit item
No.2 of the suit schedule properties is the joint family
properties of the plaintiffs and defendants. Insofar as suit
item No.3 is concerned, the said property was standing in
the name of DW.1 wife namely Sunitha and the plaintiffs
have not arrayed Sunitha as defendant in the said suit.
Item No.3 was purchased in the name of wife of DW.1 i.e.,
in the name of Sunitha. In order to show that the father of
late Jayaprakash had purchased item No.3 of the suit
schedule properties in the name of wife of DW.1., plaintiff
No.1 contended that her father-in-law contributed for
purchasing of suit item No.3, but the plaintiffs have not
produced any records to show that the father of
Jayaprakash had contributed for purchasing item No.3 of
the suit schedule properties. In the absence of the
documents, the courts below have justified in holding that
the plaintiffs have failed to prove that item No.3 is the
joint family property of the plaintiffs and the defendants.
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Insofar as suit item No.5 is concerned, it is the case of the
plaintiffs that at the time of marriage of plaintiff No.1 with
deceased N.Jayaprakash, said item No.5 was given in the
marriage by her parents. In order to establish the said
fact, plaintiff No.1 has not produced any records to show
that the gold ornaments were given to plaintiff No.1 by her
parents at the time of her marriage. Even plaintiff No.1
failed to prove that suit item No.3 is the joint family
property of the plaintiffs and the defendants. If at all if the
father of the plaintiff No.1 had gifted item No.5 of the suit
schedule properties at the time of marriage, the plaintiffs
cannot claim a share in item No.5 of the suit schedule
properties.
15. As observed above, the plaintiffs have failed to
establish that item No.5 of suit schedule properties was
given to PW.1 by her parents in the marriage. The learned
counsel for the plaintiffs submits that plaintiffs have not
claimed any share in item No.6 of the suit schedule
properties. His submission is placed on record. The courts
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below have properly appreciated the material on record
and rightly held that the plaintiffs are not entitled for share
in item Nos.3, 5 and 6 of the suit schedule properties.
Hence, I do not find any grounds to interfere with the
impugned judgments and decrees and no substantial
question that arises for consideration in this appeal.
16. In view of the aforesaid facts and circumstances,
I proceed to pass the following:
ORDER
The appeal is dismissed confirming the
judgment and decree dated 31.09.2013, passed
in R.A.No.792/2010 by the II Additional District
Judge at Mysore.
No order as to the costs.
Sd/-
JUDGE
SSB
