N G Krishna Murthy vs N A Narayanappa (Since Dead)
2023 Latest Caselaw 547 Kant

                                       -1-
                                               RFA No. 1368 of 2006




                 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                    DATED THIS THE 9TH DAY OF JANUARY, 2023

                                   BEFORE
                   THE HON'BLE MR JUSTICE N S SANJAY GOWDA
                  REGULAR FIRST APPEAL NO. 1368 OF 2006 (PAR)
            BETWEEN:

            1.    N.G.KRISHNA MURTHY
                  (DEAD BY HIS LRS)

            1(a) MUTHAKKA (SINCE DEAD)

            1(b) SMT.T.G.SAROJA
                 W/O.N.G.KRISHNAMURTHY
                 AGED ABOUT 53 YEARS

            1(c) N.K.RAMESH
                 S/O.G.KRISHNA MURTHY
                 AGED ABOUT 29 YEARS

                  APPELLANTS NO.1(a) TO 1 (c) ARE
                  R/O.S.NAGENAHALLI
                  HADONAHALLI POST, DODDABALLAPURA TALUK
Digitally
signed by         BANGALORE RURAL DISTRICT-561 203
PANKAJA S
Location:
HIGH        2.    N.G.GOPALA GOWDA
COURT OF
KARNATAKA         S/O LATE N.GIDDAPPA
                  AGED ABOUT 45 YEARS,
                  R/O S.NAGENAHALLI, HADONHALLI POST
                  DODDABALLAPURA TALUK-561 203
                  BANGALORE RURAL DISTRICT

                                                     ...APPELLANTS
            (BY SRI.K.MURTHY, ADVOCATE)
                           -2-
                                   RFA No. 1368 of 2006




AND:

1.     N.A.NARAYANAPPA (SINCE DEAD)
       S/O. LATE AKKALAPPA
       AGED ABOUT 54 YEARS
       R/O S.NAGENAHALLI, HADENAHALLI POST
       DODDABALLAPUR TALUK-561 203

1(a) SMT.JAYAMMA
     AGED ABOUT 46 YEARS
     D/O LATE N.A.NARAYANAPPA
     R/AT TUBAGERE, DODDABALLAPURA
     BANGALORE RURAL DISTRICT

1(b) SRI.SRINIVAS
     AGED ABOUT 44 YEARS
     S/O. LATE N.A.NARAYANAPPA
     R/AT S.NAGENAHALLI
     HADENAHALLI POST, DODDABALLAPURA TALUK
     BANGALORE RURAL DISTRICT-561 203

1(c) KRISHNAVENI
     AGED ABOUT 30 YEARS
     D/O LATE N.A.NARAYANAPPA
     R/AT S.NAGENAHALLI
     HADONAHALLI POST, DODDABALLAPURA TALUK
     BANGALORE RURAL DISTRICT-561 203

1(d) VIJAYKUMAR
     AGED ABOUT 26 YEARS
     S/O.LATE N.A.NARAYANAPPA
     R/AT S.NAGENAHALLI
     HADONAHALLI POST, DODDABALLAPURA TALUK
     BANGALORE RURAL DISTRICT-561 203
                           -3-
                                RFA No. 1368 of 2006




1(e) DHANALAKSHMI
     AGED ABOUT 22 YEARS
     D/O.LATE N.A.NARAYANAPPA
     R/AT NELLUKUNTE VILLAGE
     TUBUGERE HOBLI,
     DODDABALLAPURA TALUK
     BANGALORE RURAL DISTRICT-561 203

2.   RAMACHANDRA
     S/O LATE AKKALAPPA
     AGED ABOUT 49 YEARS
     R/O S.NAGENAHALLI,
     HADENHALLI POST
     DODDABALLAPURA TALUK-561 203
     BANGALORE RURAL DISTRICT

3.   VENKATAPPA
     S/O LATE AKKALAPPA
     AGED ABOUT 42 YEARS
     R/O S.NAGENAHALLI,
     HADENHALLI POST
     DODDABALLAPURA TALUK-561 203
     BANGALORE RURAL DISTRICT

4.   NARASAPPA
     DEAD BY HIS LRS

     VENKATAMMA
     W/O LATE NARASAPPA
     AGED ABOUT 67 YEARS,
     R/O S.NAGENAHALLI,
     HADENHALLI POST,
     DODDABALLAPURA TALUK
     BANGALORE RURAL DISTRICT

5    ANANTHAMMA
     W/O NARAYANAPPA
     D/O LATE NARASAPPA
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                                    RFA No. 1368 of 2006




      AGED ABOUT 52 YEARS
      R/O PAPPALDINNE,
      TUBUGERE HOBLI
      DODDABALLAPURA TALUK-561 203
      BANGALORE RURAL DISTRICT

6     ASHWATHNARAYANA
      S/O LATE NARASAPPA
      AGED ABOUT 59 YEARS
      R/O S.NAGENAHALLI,
      HADENHALLI POST,
      DODDABALLAPURA TALUK-561 203
      BANGALORE RURAL DISTRICT

7     DEVARAJU
      S/O LATE NARASAPA
      AGED ABOUT 42 YEARS
      R/O S.NAGENAHALLI, HADENHALLI POST
      DODDABALLAPURA TALUK-561 203
      BANGALORE RURAL DISTRICT

8     SHARADAMMA
      W/O LATE NARASAPA
      AGED MAJOR,
      R/O JATHAWARA HOSAHALLI
      CHICKBALLAPUR TALUK-561 203
      KOLAR DISTRICT

9.    ASHWATHANARAYANA
      S/O NARASAPPA
      AGED ABOUT 37 YEARS
      R/O S.NAGENAHALLI,
      HADENHALLI POST
      DODDABALLAPURA TALUK-561 203
      BANGALORE RURAL DISTRICT

10.   DEVARAJU
      S/O NARASAPPA
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                                      RFA No. 1368 of 2006




     AGED ABOUT 29 YEARS
     R/O S NAGENAHALLI,
     HADENAHALLI POST
     DODDABALAPURA TALUK-561 203
     BANGALORE RURAL DISTRICT

                                          ...RESPONDENTS

(BY SRI. N.V.MANJUNATH, ADVOCATE FOR R1 (A TO E)
     SRI.V.F.KUMBAR, ADVOCATE FOR R2 & R3
     SRI G.C.SHANMUKHA, ADVOCATE FOR R8,
     R4, R5, R6, R7, R9 & R10 ARE SERVED)


      THIS RFA FILED U/S 96 OF CPC AGAINST THE
JUDGEMENT AND DECREE DT.22.04.2006 PASSED IN
O.S.NO.146/2002 (OLD NO.97/99) ON THE FILE OF THE
CIVIL    JUDGE  (SR.DN.)  DODDABALLAPUR,   PARTLY
DECREEING THE SUIT FOR PARTITION AND SEPARATE
POSSESSION AND ETC.


     THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:



                       JUDGMENT

1. This is an appeal by Sri N.G.Krishna Murthy and Sri

N.G.Gopala Gowda, defendants 4 and 5 respectively.

2. The suit was filed for partition stating the following

genealogy:

RFA No. 1368 of 2006

Papegowda S/o Giddegowda (Dead)

Giddamma Venkatamma Narasamma W/o Bommegowda W/o.Nadipimyakallappa W/o. Muniyappa (Dead) (Dead) (Dead Issueless)

Narasappa (D1) _______________________________

___________________ Akkalappa (Dead) Muthakka

Ashwathnarayana Devaraj ____________________ _____________

(D2) (D3)

Narayanappa Ramachandra Venkatappa N.G.Krishna N.G.Gopala (P1) (P2) (P3) Murthy Gowda (D4) (D5)

3. As could be seen from the said genealogy, the case

of the plaintiffs was that the propositus Pape Gowda had

three daughters namely Giddamma, Venkatamma and

Narasamma. Giddamma had a son by name Narasappa,

who, in turn, had two sons Ashwathanarayana and

Devaraj and they were arrayed as defendants 1 to 3.

4. According to the plaintiffs, Venkatamma had a son by

name Akkalappa and a daughter by name Muthakka @

Muthamma. Akkalappa had three sons namely

RFA No. 1368 of 2006

Narayanappa, Ramachandra and Venkatappa i.e., the

plaintiffs. Muthakka had two sons namely N.G.Krishna

Murthy and N.G.Gopala Gowda i.e., defendants 4 and 5.

5. In fact, when the suit was filed, N.G.Krishna Murthy

and N.G.Gopala Gowda had not been arrayed as

defendants. However, the plaintiffs filed an application to

bring them on record stating that they were the sons of

Muthakka and were, therefore, entitled to come on record.

6. The simple case put forth by the plaintiffs was that

the suit properties were the properties of Pape Gowda and

on his death, the properties devolved on to the branches

of Giddamma and Venkatamma, his two daughters in

equal shares, since the other daughter Narasamma had

died issueless.

7. Defendants 4 and 5 i.e., the children of Muthakka

who had been impleaded subsequently, however, took up

the contention that Pape Gowda had one foster son by

name Akkalappa, who had a son called Giddappa, who was

RFA No. 1368 of 2006

married to Muthakka (daughter of Venkatamma) and out

of the said wedlock, defendants 4 and 5 were born. It was

contended by them that by virtue of the fact that

Akkalappa was the foster son of Pape Gowda, plaintiffs

had no cause of action at all and the suit was required to

be dismissed.

8. The Trial Court framed five issues and after analysing

evidence, recorded a finding that the plaintiffs had proved

that the suit properties were the joint family properties

and they were entitled to 1/4th share. The Trial Court also

recorded a finding that the defendants had failed to

establish that plaintiffs had been given a share in the

family properties and after selling away those properties,

they had filed the suit for partition and were, therefore,

not entitled to seek a share.

9. In the light of the fact that Pape Gowda had

admittedly two daughters called Giddamma and

Venkatamma, on his death, the properties would devolve

RFA No. 1368 of 2006

on them in equal shares. Plaintiffs, being the grandsons of

Venkatamma through her son Akkalappa and defendants 4

and 5 being the grandsons of Venkatamma through her

daughter Muthakka, were together collectively entitled for

½ share.

10. As a consequence, the children of Akkalappa (son of

Venkatamma) would collectively be entitled to 1/4th share,

while the children of Muthakka (daughter of Venkatamma)

would together be entitled to 1/4th share. Defendants 1 to

3, representing the branch of Narasappa, son of

Giddamma would collectively be entitled to ½ share.

11. Learned counsel for the appellants, however,

contended that Akkalappa was the adopted son and this

was evidenced by the recitals in the Mortgage Deed of the

year 1923. He submitted that in the said document, Pape

Gowda himself had admitted that he had adopted

Akkalappa and therefore, Akkalappa was entitled to the

entire properties by virtue of being the only son and also

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RFA No. 1368 of 2006

having regard to the fact that Giddamma had passed away

in 1964 and Venkatamma had passed away in 1930.

12. He also contended that since Giddamma and

Venkatamma themselves did not have any right to initiate

the suit for partition, their children did not possess a right

to seek for partition.

13. Learned counsel for the respondents/plaintiffs, on the

other hand, supported the impugned judgment and decree

and contended that no fault could be found with the

judgment passed by the Trial Court.

14. As stated above, the present appellants were

impleaded, not as the grandsons of Akkalappa, who was

stated to have been adopted by Pape Gowda, but, they

had been impleaded (i.e., the appellants/ N.G.Krishna

Murthy and N.G.Gopala Gowda) as the sons of Muthakka,

the daughter of Venkatamma. Since they were impleaded

by virtue of being the grandsons of Akkalappa, their right

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RFA No. 1368 of 2006

to claim a share would be dependent on the share that

Akalappa possessed in the suit properties.

15. However, on being impleaded as defendants 4 and 5,

they took up the contention that they were entitled to

entire properties. Defendants 4 and 5 in their written

statement stated as follows:

"Defendants state that one Akkalappa was the fostered son of Papegowda. Papegowda had 4 daughters namely Giddamma, Venkatamma, Narasamma and Puttakkamma. He had no sons. Hence he has fostered Akkalappa during his lifetime. Papegowda during his lifetime has given some immovable properties to his daughters namely Giddamma, Venkatamma, Narasamma and Puttakkamma have no issues. The properties remained in the name of Papegowda are succeeded by his fostered son Akkalappa. This fact is demonstrated by the Barabaluti Register Extract issued by the Revenue Authorities. Akkalappa died during 1959 leaving behind his only son Giddappa and 4 daughters namely Chinnamma, Venkatamma,

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RFA No. 1368 of 2006

Papamma and Lakshmamma, Chinnamma and Papamma are no more Gopalegowda, N.G.Krishna Murthy, Puttamma are the children of N.Giddappa. After the death of N.Giddappa children are cultivating the suit lands. Defendants state that the khata and the Pahani in respect of all the schedule properties was in the name of Akkalappa. It is submitted that for the last several decades the Khata and the R.T.C. continued in the name of Akkalappa. Giddappa who succeeded the properties of Akkalappa was also shown in the R.T.C. cultivation column No.12."

16. As could be seen from the said averments in

paragraph 6, the present appellants stated that Akkalappa

was the foster son of Pape Gowda. They did not even set

up a plea that their grandfather Akkalappa had been

adopted by Pape Gowda. In the absence of an elementary

plea regarding Akkalappa being adopted by Pape Gowda,

the appellants/defendants 4 and 5 cannot obviously

contend that there was an adoption made by Pape Gowda.

Since defendants 4 and 5 themselves admitted that their

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RFA No. 1368 of 2006

grandfather had merely been fostered by Pape Gowda,

they cannot claim any share on behalf of Akkalappa. This

is because a foster son does not get a share in the

property of the father and it is only a son, who has been

taken in adoption in accordance with law, would be

entitled to succeed to the property of his adoptive father.

17. Learned counsel for the appellants, however, sought

to place reliance on the registered Mortgage Deed of the

year 1923 in which there was an averment that Pape

Gowda adopted Akkalappa and that subsequent revenue

documents also indicated the entry of Akkalappa's name.

18. However, by virtue of the fact that defendants 4 and

5 themselves admitted that Akkalappa was only a foster

son of Pape Gowda, they cannot go beyond their plea and

contend that there was a valid adoption so as to claim that

they succeeded to the properties by virtue of being the

son of Pape Gowda.

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RFA No. 1368 of 2006

19. Since the entire plea of defendants 4 and 5 stems

from the fact that Akkalappa was the foster son of Pape

Gowda, their claim that they were entitled to succeed to

the property of Pape Gowda cannot survive. There is no

ground to entertain the appeal and the appeal is

accordingly dismissed.

Sd/-

JUDGE

PKS CT:AN