Karnataka High Court
A. G. Byrappa vs Smt. Chandramathi on 6 December, 2023
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RSA No. 2106 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO. 2106 OF 2016 (PAR)
BETWEEN:
1. A. G. BYRAPPA
S/O. GIDDAIAH,
DEAD BY LRS,
PARVATHAMMA,
AGED ABOUT 84 YEARS,
W/O A.G. BYRAPPA,
1(B). A. B. SHASHIDHAR,
AGED ABOUT 49 YEARS,
S/O A.G. BYRAPPA,
1(C). A. B. LOHITHAKSHI,
AGED ABOUT 47 YEARS,
D/O. A.G. BYRAPPA,
Digitally signed
by SUCHITRA 1(D). A. B. MEENAKSHI,
MJ
AGED ABOUT 45 YEARS,
Location: HIGH
COURT OF D/O. A.G. BYRAPPA,
KARNATAKA
1(E). A. B. VENKATESH,
AGED ABOUT 42 YEARS,
S/O. A.G. BYRAPPA,
1(F). A. B. ASHA
AGED ABOUT 39 YEARS,
D/O. A.G. BYRAPPA,
1(G). A. B. SHIVA
AGED ABOUT 37 YEARS,
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RSA No. 2106 of 2016
S/O. A.G. BYRAPPA,
ALL ARE RESIDENTS OF
AGANI VILLAGE, HANBAL HOBLI,
SAKLESHPUR TALUK,
HASSAN DISTRICT - 573 134.
...APPELLANTS
(BY SRI. VIJAY B.K, ADVOCATE FOR A1(A) TO (D)
AND A1(F) AND A1(G);
SRI. ABHIJITH M.M, ADVOCATE FOR A1(E) )
AND:
1. SMT. CHANDRAMATHI,
W/O. GUNDAPPA,
AGED ABOUT 37 YEARS,
R/AT VENKATAHALLI VILLAGE,
HANBAL HOBLI, SAKLESHPUR TALUK,
HASSAN DISTRICT - 573 134.
2. SMT. KAMALAKSHI,
W/O. LATE A.G. VASANTHAPPA,
AGED ABOUT 53 YEARS,
3. RAVI,
AGED ABOUT 35 YEARS,
S/O A. G. VASANTHAPPA,
4. NAGARAJU,
AGED ABOUT 30 YEARS,
S/O A. G. VASANTHAPPA,
RESPONDENTS 2 TO 4 ARE
R/AT AGANI VILLAGE,
HANBAL HOBLI, SAKLESHPUR TALUK,
HASSAN DISTRICT - 573 134.
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RSA No. 2106 of 2016
5. SMT. N. PREMA,
AGED ABOUT 40 YEARS,
W/O YUVARAJU,
R/AT HOUSE NO. 357,
6TH CROSS ROAD, 7TH MAIN ROAD,
RPC LAYOUT, VIJAYANAGAR,
BANGALORE - 560 040.
6. SUSHMITA,
AGED ABOUT 21 YEARS,
D/O M.M. CHANDRA,
GADABANAHALLI VILLAGE,
VASTHARE HOBLI,
CHIKMAGALUR TALUK AND DISTRICT - 577 101.
7. SMT. V. G. SIDDAMMA,
AGED ABOUT 89 YEARS,
W/O. K.T. SOMEGOWDA,
AGANI VILLAGE, SAKLESHPUR TALUK,
HASSAN DISTRICT - 573 134.
...RESPONDENTS
(BY SRI. P.P. JAYAKUMARA, ADVOCATE FOR R1;
SRI. K.K. MANJUNATH, ADVOCATE FOR R6;
R2 TO 5 AND 7 ARE SERVED AND UNREPRESENTED)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 17.08.2016 PASSED IN
R.A NO. 2/2015 ON THE FILE OF THE III ADDL. DISTRICT
JUDGE, HASSAN, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGEMENT AND DECREE DATED 26.11.2014 PASSED IN
OS NO.17/2011 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND J.M.F.C., SAKALESHPUR.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RSA No. 2106 of 2016
JUDGMENT
The captioned second appeal is filed by the legal
heirs of defendant No.1, who have questioned the
concurrent judgments of the Courts below, wherein
plaintiff's suit seeking partition and separate possession is
decreed granting 1/10th 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. The family tree of the family is as under:
Giddaiah, Died - Wife Maramma Died
A.G.Byrappa A.G.Vasanthappa,
1(a) Parvathamma, Smt.Kamalakshi,
Aged about 84 years W/o late A.G.
W/o A.G.Byrappa Vasanthappa,
Aged about 53 years,
1(b) A.B. Shashidhar,
Aged about 49 years, Smt.Chandramathi,
S/o A.G.Byrappa W/o Gundappa,
Aged about 37 years,
1(c) A.B.Lohithakshi,
Aged about 47 years, Ravi,
D/o A.G.Byrappa, Aged about 35 years,
S/o A.G.Vasanthappa,
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1(d) A.B.Meenakshi, Nagaraju,
Aged about 45 years, Aged about 30 years,
D/o A.G.Byrappa S/o A.G.Vasanthappa,
1(e) A.B.Venkatesh, Sushmita,
Aged about 42 years, Deceased daughter
S/o A.G.Byrappa, Aged about 21 years,
D/o M.M.Chandra,
1(f) A.B.Asha Gadabanahalli Village,
Aged about 39 years, Vasthare Hobli,
D/o A.G.Byrappa, Chikmagalur taluk &
District.
1(g) A.B.Shiva, A.G.Vasanthappa
Aged about 37 years, Grand daughter
S/o A.G.Byrappa.
xxx
4. The plaintiff has instituted the present suit by
contending that suit schedule properties are joint family
ancestral properties and plaintiff and defendants constitute
an undivided joint hindu family. Plaintiff has claimed that
original propositus Giddaiah @ Gidda had two sons,
namely, A.G.Byrappa , who is defendant No.1 and
A.G.Vasanthappa, who is the father of plaintiff and
defendants No.3 and 4 and husband of defendant No.2.
Plaintiff has contended that suit schedule properties are
joint family ancestral properties and there is no partition
to that effect. The present suit is filed alleging that
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defendant No.1, though there is no partition, has meddled
with ancestral properties by alienating items No.1 and 2 in
favour of defendant No.7, hence the present suit.
5. On receipt of summons, defendants No.1(a) to
1(g) tendered appearance and filed written statement and
have set up a plea of prior partition.
6. Plaintiff and defendants to substantiate their
respective claims have let in oral and documentary
evidence.
7. The Trial Court having examined the pleadings
and oral and documentary evidence, answered issue No.5
in the negative. While answering issue No.5 in the
negative, the Trial Court held that defendants have failed
to prove the alleged partition set up in the written
statement between the branches of A.G.Vasanthappa
(father of plaintiff) and A.G.Byrappa i.e., defendant No.1.
While answering this issue in the negative, the Trial Court
has examined the evidence let in by the defendants. The
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Trial Court found that except oral evidence, no
documentary evidence is produced by the defendants to
substantiate that there was severance in 1966. Referring
to oral evidence let in by the defendants, the Trial Court
also found that defendants are not sure as to when the
partition was effected. According to, legal representatives
of defendant No.1, the partition took place in 1966. While
defendants No.2 and 3 have claimed that partition was
effected in 1970. The Trial Court while answering issues
No.6 and 7 in the negative, held that legal representatives
of defendants No.1 to 3 have failed to substantiate that
items No.1 to 3 and 5 are self-acquired properties of
defendant No.1 and items No.9 and 10 are self-acquired
properties of defendants No.2 and 3. The contention of
defendants No.2 and 3 that plaintiff has received
Rs.1,00,000/- towards her legitimate share was also
negatived by the Trial Court. Having taken cognizance of
Exs.P.4 to 8 and 14, the Trial Court held that suit schedule
properties are still standing in the joint name of two
brothers, namely, A.G.Vasanthappa and A.G.Byrappa. In
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absence of rebuttal evidence to demonstrate that there is
severance in the family, the Trial Court proceeded to
dismiss the suit.
8. The legal heirs of defendant No.1-Byrappa
feeling aggrieved by the judgment and decree of the Trial
Court, preferred an appeal before the appellate Court in
R.A.No.2/2015. The Appellate Court, being the final fact-
finding authority, has independently assessed the entire
evidence on record. The Appellate Court, having re-
assessed the entire evidence on record, was also not
inclined to accept the plea of prior partition set up by the
defendants. The Appellate Court has in fact meticulously
examined the records and found that defendants have
virtually taken 16 adjournments and thereafter, 3
witnesses are examined. In spite of sufficient
opportunities, no documentary evidence is produced to
substantiate the factum of partition set up in the written
statement. There is a further categorical finding that
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appeal is filed only to drag on the matter and deny the
fruits of decree to the plaintiff.
9. While examining the alienations made by the
defendants, the Appellate Court has taken note of the fact
that these alienations were made in 2008-09 and
therefore, they would not bind the plaintiff's legitimate
share. On these set of grounds, the Appellate Court has
dismissed the appeal. These concurrent judgments are
under challenge by the legal heirs of defendant No.1.
10. Heard the learned counsel appearing for the
parties. Perused the concurrent findings of the Courts
below.
11. The defendants have resisted the partition suit
on two counts. Firstly, the defendants have claimed that
there is severance in the family in view of the partition
effected in 1966. Both the Courts for want of rebuttal
evidence let in by the defendants, have concurrently held
that defendants have failed to substantiate that there is
severance in the family. Both the Courts while taking note
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of the revenue records, which are placed on record by the
plaintiff, held that suit properties are still standing in the
name of two brothers, namely, A.G.Vasanthappa and
A.G.Byrappa. In absence of documentary evidence
indicating severance, both the Courts were justified in
decreeing the suit. Both the courts have concurrently held
that the legal heirs of defendants No.1, 2 and 3, have
failed to substantiate that the suit schedule properties
indicated in issues No.6 and 7 are their self-acquired
properties. Issues No.6 and 7 are rightly answered in the
negative and against the defendants. 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
