Manjunatha Reddy vs Pushpa
2023 Latest Caselaw 1459 Kant

                                                  -1-
                                                         RSA No. 1134 of 2021




                           IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                             DATED THIS THE 21ST DAY OF FEBRUARY, 2023

                                              BEFORE

                                THE HON'BLE MR JUSTICE H.P.SANDESH

                           REGULAR SECOND APPEAL NO.1134 OF 2021 (PAR)


                      BETWEEN:


                      1.    MANJUNATHA REDDY
                            S/O LATE HANUMANTHA REDDY
                            AGED ABOUT 49 YEARS
                            YELDUR HOBLI, SRINIVASA TQ
                            KOLAR DISTRICT - 563 138

                      2.    RUKMINI
                            W/O SHANKARAPPA
                            AGED ABOUT 70 YEARS
                            D/O LATE HANUMANTHA REDDY
Digitally signed by
                            R/AT BATARAHALLI VILLAGE
SHARANYA T                  CHITTORE DISTRICT
Location: HIGH              ANDRAPRADESH - 517 408
COURT OF
KARNATAKA
                      3.    PRASAD
                            S/O LATE HANUMANTHA REDDY
                            AGED ABOUT 40 YEARS
                            R/AT MALANGANAHALLI VILLAGE
                            ACHAMPALLI MAJARA, YELDUR HOBLI
                            SRINIVASAPURA TALUK
                            KOLAR DISTRICT - 563 138

                      4.    PADMA
                            W/O NAGARAJ
                            AGED ABOUT 27 YEARS
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                                  RSA No. 1134 of 2021




   D/O LATE HANUMANTHA REDDY
   R/AT PLAY (VI), KASABA HOBLI
   SRINIVASAPURA TALUK
   KOLAR DISTRICT - 563 135

                                        ...APPELLANTS

(BY SRI CHANDRASHEKHARA REDDY K N, ADVOCATE)

AND:

PUSHPA
W/O RAMACHANDRA REDDY
AGED ABOUT 38 YEARS
R/AT MALANGAHALLI VILLAGE
ACHAMPALLIMAJARA
YELDUR HOBLI
SRINIVASAPURA TALUK
KOLAR DISTRICT - 563 138

                                       ...RESPONDENT
(BY SRI MANJUNATHA B V, ADVOCATE)


       THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 27.09.2019
PASSED IN R.A.NO.115/2018 ON THE FILE OF THE I
ADDITIONAL DISTRICT JUDGE, KOLAR AND ETC.



       THIS R.S.A. COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
                               -3-
                                         RSA No. 1134 of 2021




                      JUDGMENT

This matter is listed for admission. Heard the learned

counsel appearing for the respective parties.

2. This appeal is filed challenging the judgment

and decree dated 27.09.2019 passed in R.A.No.115/2018

on the file of the I Additional District Judge, Kolar.

3. The factual matrix of the case of the plaintiff

before the Trial Court is that she is entitled for the relief of

partition and separate possession in respect of the suit

schedule properties contending that suit schedule

properties are the joint family properties enjoyed by

herself and the defendants jointly. In pursuance of suit

summons, the defendants appeared and filed the written

statement contending that the suit is bad for non-joinder

of one Venkatamma W/o late Hanumantha Reddy. It is

also contended that the family has dug three bore-wells by

borrowing a sum of Rs.2 lakh from Krishna, Rs.3 lakh from

G N Nagaraj and Rs.2,50,000/- from Krishnappa and the

same has to be repaid and also contended that their family

RSA No. 1134 of 2021

has borrowed a sum of Rs.4 lakh from SBM, Yelduru

branch by hypothecating suit item Nos.5 to 8 properties.

The Trial Court after considering the material available on

record answered Issue No.1 in the affiramative in coming

to the conclusion that the plaintiff has proved that the suit

schedule properties are the joint family properties,

enjoyed by herself and defendants jointly. However,

answered Issue No.2 in the affirmative in coming to the

conclusion that the suit is bad for non-joinder of one

Venkatamma W/o Hanumantha Reddy and dismissed the

suit and other issues framed against the defendants were

answered negatively.

4. Being aggrieved by the judgment of the Trial

Court, the plaintiff has filed an appeal in R.A.No.115/2018

wherein the First Appellate Court allowed the appeal and

set aside the judgment of the Trial Court and declared that

the plaintiff, defendant No.1 and 3 are entitled for 6/20th

share each and defendant No.2 and 4 are entitled for

1/20th share each over the suit schedule properties.

RSA No. 1134 of 2021

Hence, the present appeal is filed by defendant No.1 to 4

contending that First Appellate Court has committed an

error in granting the share and this Court has to frame the

substantial question of law admitting the appeal.

5. The counsel for the respondent would submit

that the plaintiff is the wife of late Ramachandra Reddy

who is the one of the son of Hanumantha Reddy and no

dispute with regard to the relationship between the

parties. In view of the judgment of the Apex Court in the

case of VINEETA SHARMA VS RAKESH SHARMA

reported in 2020 SCC Online SC 641, all the children are

entitled for equal share i.e., the plaintiff and defendants.

The said Hanumantha Reddy was having three sons and

two daughters and all are entitled for 1/5th share each in

respect of suit schedule properties.

6. Having heard the respective counsel for the

parties and also on perusal of the material available on

record it discloses that when there is no dispute between

the parties with regard to the relationship is concerned,

RSA No. 1134 of 2021

i.e., the plaintiff is the wife of late Ramachandra Reddy

who is the son of Hanumantha Reddy and the defendants

are the two daughters and the sons of Hanumantha

Reddy, all of them are equally entitled for 1/5th share each

in the suit schedule properties. Both the Trial Court as

well as the First Appellate Court has given the finding that

the suit schedule properties are the joint family properties,

and when such finding is given, the First Appellate Court

has granted 1/20th share each only by reversing the

finding of the Trial Court. But on perusal of the judgment

and decree of the First Appellate Court, it shows that

nowhere discussed with regard to the apportioning the

share of 1/20th share each and no basis to allot 1/20th

share for the plaintiff and defendants. Hence, when they

are children of Hanumantha Reddy and properties are also

the joint family properties, all are equally entitled for 1/5th

share each and not as 1/20th share as held by the First

Appellate Court. Hence, the judgment and decree of the

First Appellate Court is modified that plaintiff and

RSA No. 1134 of 2021

defendant Nos.1 to 4 are equally entitled for 1/5th share

each in respect of suit schedule properties.

7. In view of the discussions made above, I pass

the following:

ORDER The appeal is allowed.

The judgment and decree of the First Appellate Court

passed in R.A.No.115/2018 is modified granting 1/5th

share each and the parties are also in the final decree

proceedings can seek for modification of share as 1/5th

share each.

In view of dismissal of the main appeal, I.As. if any,

do not survive for consideration and the same stand

disposed of.

Sd/-

JUDGE

SN