Karnataka High Court
Smt Lalithamma vs M K Krishnegowda on 18 December, 2023
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RSA No. 11 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO.11 OF 2021 (PAR)
BETWEEN:
SMT.LALITHAMMA
D/O M P KRISHNEGOWDA
AGED ABOUT 70 YEARS
R/AT DUDDANA HALLI
ATHAGUR HOBLI
MADDUR TALUK
MANDYA DISTRICT
...APPELLANT
(BY SRI.CHANDRASHEKAR H B, ADVOCATE)
AND:
Digitally
1. M K KRISHNEGOWDA
signed by
CHAITHRA A S/O M P KRISHNEGOWDA
AGED ABOUT 75 YEARS
Location:
HIGH R/AT OPP.SPUN SILK MILL
COURT OF MANGALWARPETE
KARNATAKA CHANNAPATNA TALUK
RAMANAGAERA DISTRICT - 571 511
2. SMT.SHANTAMMA
W/O LATE SHAMBUGOWDA
AGED ABOUT 65 YEARS
R/AT MANGALWARPETE
CHANNAPATNA TALUK
RAMANAGARA DISTRICT - 571 511
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RSA No. 11 of 2021
3. RAJESHA
S/O LATE PUTTALINGAIAH
AGED ABOUT 45 YEARS
R/AT DUNDANA HALLI
ATHAGUR HOBLI, MADDUR TALUK
MANDYA DISTRICT - 571 511
...RESPONDENTS
(BY SRI.D.R.RAVISHANKAR, SENIOR ADVOCATE
A/W SRI.SARAVANA S, ADVOCATE)
THIS RSA IS FILED U/SEC.100 OF CPC 1908 AGAINST
THE JUDGMENT AND DECREE DATED 14.08.2020 PASSED IN
RA NO.31/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND JMFC, CHANNAPATNA, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED
31.07.2010 PASSED IN O.S NO.113/2002 ON THE FILE OF THE
PRINCIPAL CIVIL JUDGE AND JMFC, CHANNAPATNA AND
ETC.
THIS APPEAL, COMING ON FOR PART HEARD IN
ADMISSION, THIS DAY, THE COURT DELIVERED THE
FOLLOWING:
JUDGMENT
This captioned second appeal is filed by defendant
No.3 assailing the judgment and decree dated 14.08.2020
rendered by the Appellate Court in R.A.No.31/2015,
wherein findings recorded by the Trial Court that there is a
severance in the family is upheld by the Appellate Court.
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2. For the sake of brevity, the parties are referred as
they are ranked before the Trial Court.
3. The genealogical tree of the family is as under;
M.P.Krishnegowda
|
_________________________________________
| |
Tayamma @ Siddamma Venkatamma
died on 12.08.1983 died on 25.12.1994
| |
| _____________________|_________________
| | |
| Shanthamma Gowramma
| (Died issue less)
| |
______________|__________________|_________________________________
| | | | |
M.K.Kariyappa M.K.Shambhugowda M.K.Krishnegowda Lalithamma M.K.Hanumanthegowda
______________|________________________
| | | | | |
Shiva Nagesh Ramesh Rajesh Poornima Yashoda
4. Brief facts leading to the case are as under;
One Shanthamma, who is the widow of one
M.K.Shambugowda, has instituted the present suit for
partition in O.S.No.113/2002 seeking her legitimate share
in the suit schedule properties by contending that suit
schedule properties are joint family ancestral properties.
5. Defendant No.1 on receipt of summons tendered
appearance and filed written statement and raised a
contention that the present suit is not maintainable as the
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plaintiff had filed a similar suit seeking relief of partition in
O.S.No.272/1981 and later, she restricted her claim only
in respect of permanent injunction and therefore, the said
suit filed by the present plaintiff in O.S.No.272/1981 was
decreed upholding previous partition effected between
family members in the year 1976.
6. The plaintiff has strangely once again filed the
present suit in O.S.No.113/2002 seeking partition.
7. Defendant No.3, who was impleaded, filed written
statement and set up a Will by contending that her brother
M.K.Kariyappa has bequeathed item No.1 property under
registered Will dated 23.12.1996 in favour of her son by
name Rajesh. Defendant No.3 by way of counter claim has
also claimed that item No.2 is also ancestral property and
therefore, claimed her legitimate share in the suit schedule
properties.
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8. Plaintiff and defendants to substantiate their
respective claims have let in oral and documentary
evidence.
9. The Trial Court, while answering issue No.2 partly
in the Affirmative, has taken cognizance of the judgment
rendered in the earlier suit filed in O.S.No.272/1981. The
Trial Court was of the view that the plaintiff cannot
maintain second suit for partition. The Trial Court held that
the dispute in regard to whether there is a severance in
the family or not is examined and decided by the Court in
O.S.No.272/1981. Referring to the materials on record,
the Trial Court was of the view that defendant No.1 has
succeeded in substantiating that there was a partition in
the year 1976.
10. Insofar as claim of defendant No.2 relating to
item No.1 property, the Trial Court at para Nos.19 and 20
was of the view that defendant Nos.2 and 3 are asserting
that item No.1 property is the absolute property of
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M.K.Kariyappa, which necessarily leads to inference that
defendants are not disputing the partition. The Trial Court
has also taken note of the Will set up by the defendants
and has come to the conclusion that neither plaintiff nor
defendant No.1 have disputed the Will. The Trial Court
has recorded a categorical finding that no issues are
framed in that regard as there is no dispute in regard to
the Will. While upholding that there is already partition in
the family, the Trial Court held that plaintiff could not have
maintained second suit seeking relief of partition and
separate possession. Consequently, the suit is dismissed.
11. Though defendant No.3 has sought declaration
questioning the partition effected in the year 1976, based
on the observations made by this Court in the earlier
round of litigation i.e., in RSA No.1634/2012 c/w RSA Crob
No.11/2014, defendant No.3 now intends to question
findings of the fact recorded in the earlier suit bearing
O.S.No.272/1981. Though defendant No.3 was reserved
liberty to work out her remedies and liberty was reserved
questioning preliminary decree passed in
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O.S.No.113/2002, defendant No.3 has not taken any steps
to seek partition by amending the written statement.
Strangely, defendant No.3 has included all the properties
in the appeal memo that was filed before the Appellate
Court in R.A.No.31/2015.
12. On meticulous examination of the written
statement, this Court would find that defendant Nos.2
and 3 contested the suit by contending that item No.1
property is the absolute property of M.K.Kariyappa and he
has bequeathed item No.1 property in favour of defendant
No.2 - Rajesh, who is none other than the son of
defendant No.3.
13. The findings and conclusions recorded by the
Trial Court at paragraph Nos.19 to 21 would clinch the
entire controversy insofar as defendant Nos.2 and 3 are
concerned. If plaintiff's suit is dismissed by recording a
finding that there is already severance in the family.
Defendant Nos.2 and 3, who set up a counter claim and
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also set up a Will alleged to have been executed by one
M.K.Kariyappa, cannot enlarge the scope of enquiry in a
counter claim and unsettle severance in the family, which
has taken place in the year 1976 and the said severance is
given a quietus by the judicial pronouncement by
competent Civil Court in O.S.No.272/1981.
14. Be that as it may, defendant No.3 pursuant to
the liberty reserved by this Court has not sought for
amendment of the written statement and no further
evidence is let in questioning the partition effected in the
year 1976. Merely because all the properties were included
in an appeal memo that in itself will not give a right to
defendant No.3 to question the preliminary decree and
seek share in all the properties held by the family, which
were subject matter of the partition effected in the year
1976.
15. The findings recorded on the Will insofar as
defendant No.2 is concerned, the same is given quietus by
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the Trial Court. The Trial Court has rightly observed that
plaintiff and defendant No.1 have not disputed the Will
executed by M.K.Kariyappa in favour of defendant No.2.
Therefore, there is a categorical finding rendered by the
Appellate Court. If there is no contest in regard to the
Will, the Trial Court was justified in not framing issue on
the Will.
16. Defendant No.3 has not chosen to amend the
written statement to seek relief of partition by questioning
the earlier partition effected in the year 1976.
17. Be that as it may, defendant No.2 in absence of
issue has produced the Will and examined the attesting
witnesses. The Trial Court has taken note of this evidence
and has come to the conclusion that there is no challenge
to the Will. Therefore, in the light of the findings recorded
by the Trial Court that the claim of defendant No.2 based
on the Will is also given a quietus insofar as defendant
No.3 is concerned. The counter claim is confined only in
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respect of item No.2 property. Defendant No.3 without
questioning 1976 partition cannot maintain the counter
claim. All these significant details are rightly dealt by the
Trial Court.
Therefore, no substantial question of law arises for
consideration.
Accordingly, the second appeal is dismissed.
For the reasons stated supra, the amendment sought
in the written statement at this juncture cannot be
entertained. Therefore, amendment application filed in
I.A.No.1/2023 is not maintainable. Accordingly,
I.A.No.1/2023 is rejected.
Sd/-
JUDGE
NBM
