Karnataka High Court
Sri R Srinivas vs Sri Lakshmaiah on 3 January, 2023
Bench: N S Gowda
-1-
RFA No. 1667 of 2006
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR JUSTICE N S SANJAY GOWDA
REGULAR FIRST APPEAL NO. 1667 OF 2006 (PAR)
BETWEEN:
SRI R.SRINIVAS
AGED ABOUT 59 YEARS
R/O SUBBAIAH PALYA
BANASAVADI ROAD
M.S.NAGARA POST
BANGALORE- 33
...APPELLANT
(BY SRI. S.R.DESHPANDE , ADVOCATE)
AND:
1. SRI.LAKSHMAIAH
S/O LATE CHIKKAMADAIAH
MAJOR,
R/O SUBBAYYANA PALYA
NEAR AYYAPPA TEMPLE
BANASWADI ROAD, M.S.NAGARA POST
Digitally BANGALORE -33
signed by
PANKAJA S 2. SMT.GEETHA
Location: W/O. SHASHIDHAR, MAJOR
High Court R/O SUBBAYYANAPALYA
of Karnataka
BANASAWADI ROAD, M.S.NAGAR
BANGALORE- 33
-2-
RFA No. 1667 of 2006
3. SRI. DHANUS KOTI
S/O GOVINDA SWAMY KOTI
MAJOR, R/O No.204,
NERAR BHARGAVA NILAYA,
SUBBAIAHNAPALYA, M.S.NAGARA,
BANASWADI ROAD
BANGALORE- 33
4. R.RAJANNA
AGED ABOUT 64 YEARS
5. SMT.NAGARATHNA
AGED ABOUT 48 YEARS
THE DEFENDANTS ARE CHILDREN
OF M.RAMAIAH
AND ARE RESIDING AT SUBBAIAH PALYA
BANASAVADI ROAD, M.S.NAGARA POST
BANGALORE -33
6. SRI.T.SASIDHARAN
S/O M.THAMBUSWAMY
AGED ABOUT 48 YEARS
R/AT SADASHIVA MUDALIAR ROAD
MURPHY TOWN
BANGALORE-8
7. SMT.P.J.USHABAI
W/O.SRI N.V.MEGHANATHAN
AGED ABOUT 55 YEARS
RESIDING AT NO.48
6TH MAIN ROAD
SHAMANNA LAYOUT
EX. SERVICEMEN COLONY
BANASWADI
BANGALORE-43
...RESPONDENTS
(BY SRI. KESHAV REDDY, ADVOCATE FOR R4
SRI.HARISH O.K. & SRI.K.L.SREENIVAS,
ADVOCATES FOR R5;
-3-
RFA No. 1667 of 2006
R1- SERVED;
PROPOSED R6 IS SERVED;
V/O/D DATED 3/1/2013 NOTICE TO R2 & R3 IS
HELD SUFFICIENT;
V/O/D 28/1/2011, NOTICE TO R7 IS HELD SUFFICIENT)
THIS RFA IS FILED UNDER ORDER XLI RULE 1 OF CODE
OF CIVIL PROCEDURE, 1908 AGAINST THE JUDGMENT AND
DECREE DATED 12.04.2006 PASSED IN O.S. No.5698/1998 ON
THE FILE OF THE XVII ADDL.CITY CIVIL JUDGE, BANGALORE
CITY (CCH.NO.16) DISMISSING THE SUIT FOR PARTITION AND
ETC.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. The son of the deceased original plaintiff is in appeal
challenging the dismissal of the suit that he had instituted
for partition against his brother and two others.
2. The suit was filed by the father of the appellant
contending that the suit property had been re-granted to
his father--Chikkamadaiah on 14.10.1958 by the Special
Deputy Commissioner and thereafter, there was a partition
effected on 17.08.1967 amongst the plaintiff, his brother
(defendant No.1) and his mother--Thippamma. It was
contended that, in the said partition, the suit property
RFA No. 1667 of 2006
measuring 22 guntas of Sy.No.203 was allotted to the
share of his mother--Thippamma. It was also stated that
Thippamma died intestate in the year 1968 and as a
consequence, the plaintiff and defendant No.1 became
entitled to half a share in the suit property and since the
same was not given to the plaintiff despite several
demands, the suit had been instituted.
3. The suit was contested by defendant No.1.
Defendant No.1 admitted the relationship as also the fact
that the land had been re-granted to his father and
thereafter there had been a partition among him, plaintiff
and his mother. It was also admitted that in the said
partition of the year 1967, the suit property had fallen to
the share of his mother--Thippamma.
4. Defendant No.1 contended that on the death of
Thippamma in the year 1968, the suit property was
equally divided between Thippamma's two sons i.e., the
RFA No. 1667 of 2006
original plaintiff and defendant No.1 and therefore, there
was no question of demanding a partition afresh.
5. It was also contended that the original plaintiff and
defendant No.1 had sold several lands which had been
allotted as their shares to the third parties and therefore,
the question of seeking for partition at this stage was not
permissible.
6. The Trial Court framed three issues. The first issue
was as to whether the plaintiff had proved that the suit
property was allotted in the partition dated 17.08.1967 to
Thippamma and the second issue framed was whether the
plaintiff had proved that he was entitled to get half share
in the suit property. The Trial Court also framed another
issued as to whether defendants had proved that the suit
property was also the subject matter of partition dated
17.08.1967 and after the death of Thippamma, it was
divided equally.
RFA No. 1667 of 2006
7. After trial, the Trial Court on consideration of the said
documents, recorded a finding that the plaintiff had proved
that there was a partition effected on 17.08.1967 and the
suit property had fallen to the share of Thippamma. The
Trial Court also recorded a finding that after the death of
Thippamma, the property that had fallen to her share had
been subjected to a partition between the plaintiff and
defendant No.1 and there were also certain transactions
carried pursuant to the partition which in turn established
a partition had been effected between the plaintiff and
defendant No.1 in respect of the property that had been
allotted to their mother Thipamma and consequently, it
held that the plaintiff was not entitled to half a share in
the suit property and it proceeded to dismiss the suit.
8. It is the contention of the learned counsel for the
appellant that the decision of the Trial Court was incorrect.
He argued that there was no documents produced and
marked indicating that there was a partition before the
RFA No. 1667 of 2006
death of Thippamma and that the properties partitioned
subsequent to the death of Thippamma were in fact
alienated by the plaintiff. He submitted that since it was
admitted case of both parties that the suit property was
allotted to the share of Thippamma and on her dying
intestate, both the plaintiff and defendant No.1 would
have to be held to be entitled to half a share.
9. From the narration of facts above, it becomes clear
that it is not in dispute that the suit property was re-
granted to Chikkamadiah--father of the original plaintiff
and defendant No.1. It is also admitted that the original
plaintiff, defendant No.1 and their mother--Thippamma
did enter into a partition on 17.08.1967, in which, the suit
property fell to the share of Thippamma.
10. The only dispute between the parties is whether on
the intestate death of Thippamma there was a partition
and if there was no partition of Thipamma's share after
her death, by virtue of her intestate death, the original
RFA No. 1667 of 2006
plaintiff and the 1st defendant became entitled to half
share.
11. The question therefore that needs to be decided is as
to whether on the death of Thippamma, the suit property
was divided between the plaintiff and defendant No.1 or
not?
12. The Trial Court has recorded a clear finding that the
certified copy of the gift deed executed by the plaintiff
clearly indicated that the plaintiff had gifted his share of
Thipamma's property to S.R.Venkataswamy and
S.R.Narayanaswamy. The Trial Court has also noticed that
the brother of the plaintiff, one Rajanna had also
challenged the gift. These facts when read cumulatively,
clearly establish that there was indeed a partition between
the original plaintiff and the 1st defendant of the property
that had been allotted to the share of Thippamma, after
her death in 1968.
RFA No. 1667 of 2006
13. The fact that the plaintiff had gifted the share that
had been allotted to him pursuant to the death of his
mother-Thippamma to S.R.Venkataswamy and
S.R.Narayanaswamy also confirms the fact that there was
indeed a partition after the death of Thippamma.
14. In the light of the fact that the evidence produced by
the parties clearly indicate that there was a partition
effected between the original plaintiff and the 1st
defendant regarding the share of Thippamma after her
death and the plaintiff had himself dealt with the said
property by executing a gift deed, it is clear that the Trial
Court was justified in dismissing the suit.
15. I find no reason to interfere with the judgment of the
Trial Court and the appeal is accordingly dismissed.
SD/-
JUDGE
RK
CT: AN
