Karnataka High Court
Sri. Jairam vs Smt. Rajamma on 1 December, 2023
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RSA No. 1711 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO. 1711 OF 2023 (PAR/POS)
BETWEEN:
SRI. JAIRAM,
SON OF LATE LAKKAPPA,
AGED ABOUT 60 YEARS,
RESIDING AT MELEKOTE ROAD,
OPPOSITE VEERABHARA SWAMY TEMPLE,
VEERASAGARA, KASABA HOBLI,
TUMKUR TALUK AND DISTRICT - 572 225.
...APPELLANT
(BY SRI. SIDDAMALLAPPA P.M, ADVOCATE)
AND:
Digitally 1. SMT. RAJAMMA,
signed by
CHAITHRA P DAUGHTER OF LATE LAKKAPPA,
Location: High
Court of AGED ABOUT 60 YEARS
Karnataka
RESIDING AT NEAR PUMP HOUSE,
MELEKOTE ROAD, VEERASAGARA, KASABA HOBLI,
TUMKURU TALUK AND DISTRICT - 572 225.
2. SMT. RAMAKKA,
WIFE OF D BASAVARAJU,
AGED ABOUT 58 YEARS,
RESIDING AT MELEKOTE ROAD,
BEHIND PUMP HOUSE, VEERASAGARA,
TUMKURU TALUK AND DISTRICT - 572 105.
-2-
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RSA No. 1711 of 2023
3. SMT. GIRIJAMMA,
WIFE OF RAJANNA,
AGED ABOUT 48 YEARS,
RESIDING AT BANASHANKARI ROAD,
SHANTHINAGARA, TUMKURU - 571 105.
4. SMT. RATHNAMMA,
WIFE OF RANGAPPA,
AGED ABOUT 35 YEARS,
RESIDING AT PUTTANAPALYA.
HEGGERE POST, KASABA HOBLI,
TUMKURU TALUK AND DISTRICT - 572 215.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 21.06.2023
PASSED IN RA.NO.45/2021 ON THE FILE OF THE PRINCIPAL
SENIOR CIVIL JUDGE AND CJM, TUMAKURU, PARTLY
ALLOWING THE APPEAL AND MODIFYING THE JUDGMENT AND
DECREE DATED 14.06.2021 PASSED IN OS.NO.1041/2008 ON
THE FILE OF THE II ADDITIONAL CIVIL JUDGE AND JMFC,
TUMAKURU.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by defendant
No.2 assailing the concurrent judgments of the Courts
below, wherein plaintiff's suit for partition and separate
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possession filed in O.S.No.1041/2008 is decreed, granting
1/6th share to the plaintiff.
2. For the sake of brevity, the rank of the parties
are referred as they are ranked before the Trial Court.
3. Facts leading to the case are as under:
The plaintiff filed a suit for partition and separate
possession against her mother, who was arrayed as
defendant No.1 and her siblings, who were arrayed as
defendant Nos.2 to 5. The plaintiff contended that the suit
schedule properties, which are lands and houses, are
ancestral properties and after the demise of her father,
Lakkappa, plaintiff and defendants have succeeded to the
estate of the deceased Lakkappa. Plaintiff also alleged that
they have jointly developed the joint family property and
by investing a huge amount, they have constructed three
RCC houses and renovated an old red-titled house. The
present suit is filed alleging that defendants are not willing
to effect partition and give plaintiff's legitimate share.
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4. Defendants, on receipt of summons, tendered
appearance. Though defendant No.2 tendered appearance,
failed to file written statement. His application seeking
permission to file written statement was rejected. The
other defendants, namely, 1 , 3 to 5 filed written
statement; however, they supported defendant No.2 and
contended that he is the sole surviving coparcener and
therefore has inherited all the properties at the exclusion
of plaintiff and other sisters. The other defendants also
contended that plaintiff got married long back. On these
set of grounds, prayed for dismissal of the suit.
5. The Trial Court, in absence of contest, by taking
cognizance of Ex.P.5, found that defendant No.1, who is
the widow of Lakkappa, got her name mutated on the
basis of pavati varasu after the demise of her husband and
father of plaintiff herein on 14.01.1993. The Trial Court,
having recorded findings that suit properties are joint
family properties, decreed the suit granting 1/6th share.
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6. Defendant No.2, feeling aggrieved by the
judgment and decree of the Trial Court, preferred an
appeal before the appellate Court in R.A.No.45/2021. The
Appellate Court, having independently assessed the
evidence on record, was also not inclined to interfere with
the findings and conclusions recorded by the Trial Court.
Referring to Ex.P.5, the Appellate Court was also of the
view that suit schedule properties are joint family
ancestral properties of the plaintiff and defendants. Having
examined Ex.P.5 independently, the Appellate Court was
of the view that defendant No.1's name was mutated on
account of death of Lakkappa. The Appellate Court was of
the view that there are no documents to substantiate that
there was partition during the lifetime of Lakkappa.
Consequently, appeal is dismissed.
7. Heard learned counsel appearing for defendant
No.2. Perused the concurrent findings of the Courts below.
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8. Learned counsel appearing for defendant No.2
reiterating the grounds urged in the appeal memo, would
contend that suit properties are not joint family ancestral
properties but self-acquired property of defendant
No.1/mother and she has gifted the suit schedule
properties to defendant No.2. This stand is taken for the
first time in the second appeal. Both the Courts have
concurrently held that the properties were admittedly
owned by the propositor, Lakkappa and that they are
ancestral properties. If the suit schedule properties are
ancestral properties, defendant No.2 cannot assert
exclusive title based on a gift deed which was not
produced before the Courts below. Be that as it may. If
the properties are ancestral properties, even if there is a
gift deed, the same is void ad initio in the light of law laid
down by the division bench of this Court in the case of
Babu mother Savavya Navelgund and others vs.
Gopinath, reported in AIR 2000 KAR 27.
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9. Both the Courts have taken cognizance of the
fact that defendant No.1/mother and other siblings, while
supporting defendant No.2, who failed to file written
statement, have taken a specific contention that defendant
No.2 being a coparcener, is alone entitled to the suit
schedule properties. Referring to these significant details,
both the Courts have also held that suit properties are
joint family ancestral properties and granted 1/6th share.
Therefore, no substantial question of law would arise for
consideration. The regular second appeal is devoid of
merits and accordingly stands dismissed.
In view of dismissal of second appeal, all pending
applications, if any, do not survive for consideration and
stand disposed of.
Sd/-
JUDGE
HDK
CT: BHK
