Gangaiah vs Smt H.G. Gangambika
2023 Latest Caselaw 134 Kant

                          1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 3RD DAY OF JANUARY, 2023

                        BEFORE

 THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

     REGULAR SECOND APPEAL NO.1123 OF 2016 (PAR)

BETWEEN:

GANGAIAH
S/O LATE CHANNAIAH
DEAD BY HIS L.RS.,

1.     SMT.PARVATHAMMA
       W/O LATE GANGAIAH
       AGED ABOUT 78 YEARS

2.     SMT.GANGAMMA
       W/O LATE GANGAIAH
       AGED ABOUT 63 YEARS

3.     SRI.H.G.GANGADHARA
       S/O LATE GANGAIAH
       AGED ABOUT 40 YEARS

       ALL ARE R/AT HALASABELE
       VILLAGE, KASABA HOBLI
       MAGADI TALUK
       RAMANAGARA DISTRICT - 562120

                                       ... APPELLANTS

(BY SRI.RAVISHA M.G., ADVOCATE)

AND
                            2



SMT.H.G.GANGAMBIKA
W/O L.M.SHIVAKUMAR &
D/O LATE GANGAIAH
AGED ABOUT 33 YEARS
R/AT LAKSHMIPURA VILLAGE
KOTTAGALA HOBLI
RAMANAGARA TALUK AND DISTRICT

                                        .....RESPONDENT

(BY SRI.RAJA SUBRAMANYA BHAT, ADVOCATE)

     THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC., AGAINST THE JUDGMENT AND
DECREE DATED 21.03.2016 PASSED IN R.A.NO.90/2012
ON THE FILE OF THE 1ST ADDITIONAL DISTRICT AND
SESSIONS JUDGE, RAMANAGAR, REJECTING THE APPEAL
AND CONFIRMING THE JUDGEMENT AND DECREE DATED
12.03.2012 PASSED IN O.S.NO.48/2007 ON THE FILE OF
THE ADDITIONAL SENIOR CIVIL JUDGE, RAMANAGAR AND
ETC.

     THIS REGULAR SECOND APPEAL COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:


                     JUDGMENT

The captioned second appeal is filed by the

unsuccessful defendants, who have questioned the

concurrent findings of the Courts below, wherein the

plaintiff's suit for partition is decreed by both Courts

granting 1/3rd share in the suit schedule properties.

2. For the sake brevity, the parties are referred

as they are ranked before the Trial Court.

3. The geological tree of the family is as under;

Channaiah (dead) | Gangaiah (D.1) _______________|______________ | | st Parvathamma (1 wife) Gangamma (2nd wife) | | No issues H.G.Gangadhar (D.2) H.G.Gangambika (plaintiff)

4. The plaintiff is the daughter born through

Smt.Gangamma - 2nd wife of Gangaiah. The plaintiff

has filed the present suit against her father Gangaiah,

who was arrayed as defendant No.1 in

O.S.No.48/2007. The plaintiff contended that suit

schedule properties are joint family ancestral

properties and there is no partition by metes and

bounds. The plaintiff alleged that though she

demanded her legitimate share in the suit schedule

properties, the defendants refused to effect partition

by metes and bounds.

5. On receipt of summons, 2nd defendant, who is

the son born through second wife - Smt.Gangamma

and brother of the plaintiff - Smt.Gangambika,

contested the proceedings by filing written statement.

Defendant No.2 set up a plea of prior partition.

Defendant No.2 claimed that his father has effected

partition on 15.03.1994. In the said family

arrangements, defendant No.2 has taken

responsibility of performing the marriage of the

plaintiff. Therefore, defendant No.2 contended that

he has spent Rs.5,00,000/- towards marriage of the

plaintiff and Rs.1,00,000/- towards dowry and a sum

of Rs.70,000/- was also spent for purchasing a site at

Sy. No.9/14 of Hosahalli. Defendant No.2 contended

that schedule 'A' property was allotted to his 1st wife

- Smt.Parvathamma and schedule 'B' property was

allotted to the second wife - Smt.Gangamma and

schedule 'C' property was allotted to defendant No.2.

Defendants have also filed additional written

statement contending that at the time of partition, it

was agreed that house property should not be

included in the partition as the same was reserved for

aged parents. On these set of defences, sought for

dismissal of the suit.

6. Plaintiff and defendant No.2 have led in oral

and documentary evidence to substantiate their

respective claims. The Trial Court having assessed the

oral and documentary evidence answered issue No.1

in the negative. The plea of prior partition set up by

defendant No.2 was negatived by the Trial Court. Trial

Court disbelieved Ex.D.1, which is set up by defendant

No.2 alleging that under panchayath parikath, there

was a partition. The said document was held to be

not a valid document. The contention of defendant

No.2 that plaintiff has already received a sum of

Rs.1,50,000/- was also not accepted by the Trial

Court. Trial Court treating the plaintiff as a coparcener

proceeded to decree the suit granting 1/3rd share.

7. Feeling aggrieved by the judgment and

decree of the Trial Court, defendant No.2 and legal

representatives of Gangaiah preferred an appeal

before the Appellate Court. The Appellate Court being

a final fact finding authority has independently

assessed oral and documentary evidence. On

examining the evidence on record, the Appellate Court

has also declined to rely on Ex.D.1. The Appellate

Court was also of the view that Ex.D.1, which is an

unregistered document, is not admissible in evidence

and therefore, refused to place reliance on Ex.D.1.

Consequently, the findings and conclusions recorded

by Trial Court were concurred by the Appellate Court

and the appeal was dismissed. These concurrent

findings are under challenge.

8. Heard learned counsel appearing for the

defendants and learned counsel appearing for the

plaintiff.

9. Perused the concurrent findings of the Courts

below.

10. The plaintiff is the daughter born through

2nd wife - Smt.Gangamma. Both Courts conferring

status of coparcener on plaintiff, who is the daughter

of Gangaiah, have proceeded to grant 1/3rd share.

Though the findings of both Courts below conferring

coparcenary status of a daughter appears to be

patently erroneous, however, this Court is of the view

that even otherwise, 1/3rd share allotting to the

plaintiff is strictly in consonance with the principles

laid down by the Hon'ble Apex Court in the case of

REVANASIDDAPPA AND ANOTHER VS.

MALLIKARJUN AND OTHERS1.

11. Admittedly, the daughter born through

second wife filed a partition suit against her father -

Gangaiah who was arrayed as defendant No.1. Since

relationships are not in dispute, partition suit during

the life time of Gangaiah was not at all maintainable.

However, during pendency of the suit, plaintiff's father

Gangaiah died. Having regard to the fact that right to

seek partition is recurring cause of action, I am of the

view that on account of death of plaintiff's father -

Gangaiah, the present suit for partition is very much

maintainable. However, ignoring the fact that plaintiff

and defendant No.2 are children born out of void

marriage, both Courts were not justified in conferring

coparcenary status of plaintiff and defendant No.2.

Even otherwise, since parties are governed under

2011(11) SCC 1

Madras Presidency, as per the law prevailing under

Madras Presidency, Smt.Parvathamma, who is the

1st wife, will not take share at par with her husband.

On the contrary, Smt.Parvathamma will take share

notionally in the properties left behind by her husband

- Gangaiah. Accordingly, plaintiff and defendant No.2,

who are daughter and son respectively, would take

share in the properties left behind by Gangaiah. Even

if plaintiff and defendant No.2 are not treated as

coparceners, under Section 8 of the Hindu Succession

Act along with 1st wife - Smt.Parvathamma, they are

entitled for 1/3rd share. Smt.Gangamma, who is the

2nd wife, is not entitled for any share.

12. Both Courts have concurrently held that

Ex.D.1 is not valid document. The alleged payment of

Rs.1,50,000/- to the plaintiff towards her legitimate

share is also not substantiated by defendant No.2.

In that view of the matter, this Court is of the

view that 1/3rd share granted by the Courts below is in

accordance with law. No substantial question of law

arises for consideration in this appeal.

Accordingly, the appeal is dismissed.

In view of dismissal of the appeal, the

interlocutory applications, if any, do not survive for

consideration and accordingly, they are dismissed.

Sd/-

JUDGE

NBM