Karnataka High Court
Sri Srinivasareddy vs Smt. Aswathamma on 11 January, 2023
Bench: H.P.Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A.NO.1372/2022 (PAR)
BETWEEN
1. SRI SRINIVASAREDDY
S/O CHIKKATHIRUPILLAPPA
AGED ABOUT 67 YEARS
2. SMT. LAKSHMIDEVAMMA
W/O LATE VENKATAREDDY
AGED ABOUT 54 YEARS
3. SMT. SUMITHRA
D/O LATE VENKATAREDDY
AGED ABOUT 34 YEARS
4. SRI VASANTHKUMAR
S/O LATE VENKATAREDDY
AGED ABOUT 31 YEARS
5. SRI RAGHU
S/O LATE VENKATAREDDY
AGED ABOUT 29 YEARS
ALL ARE R/OF CHINNASANDRA
VILLAGE POST
CHINNASANDRA GRAM PANCHAYATH
2
CHINTAMANI TALUK
CHIKKABALLAPURA DISTRICT-561201
...APPELLANTS
(BY SRI NAIK N R, ADVOCATE)
AND
SMT ASWATHAMMA
W/O MUNIVENKATAPPA
SINCE DEAD BY HER LRS
1. SRI MUNIVENKATAPPA
S/O HANUMANTAPPA
AGED ABOUT 64 YEARS
2. SRI VINOD
S/O MUNIVENKATAPPA
AGED ABOUT 41 YEARS
RESPONDENTS 1 AND 2 ARE
R/O KULTHUR, KASABA HOBLI
HOSAKOTE TALUK
BANGALORE RURAL DISTRICT-560067
3. SMT SWETHA
D/O MUNIVENKATAPPA
W/O PRAVEENKUMAR
AGED ABOUT 36 YEARS
R/O DODDAHULLUR , HOSAKOTE TALUK
BANGALORE DISTRICT-560067
SMT. THIRUPILLAMMA
W/O LATE CHIKKATHIRUPILLAPPA
SINCE DEAD BY HER LRS
3
4. SMT. NARAMMA @ NARAYANAMMA
W/O VENKATAREDDY
AGED ABOUT 69 YEARS
5. SRI C T RAMAKRISHNAPPA
S/O LATE CHIKKATHIRUPILLAPPA
AGED ABOUT 67 YEARS
RESPONDENTS 4 AND 5 ARE
R/O CHINNASANDRA
VILLAGE AND POST
CHINTAMANI TALUK
CHIKKABALLAPUR DISTRICT-561201
... RESPONDENTS
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 08.08.2022
PASSED IN R.A.NO.62/2014 ON THE FILE OF THE SENIOR CIVIL
JUDGE & JMFC AT CHINTAMANI AND ETC.
THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This matter is listed for admission. Heard the learned
counsel appearing for the appellants.
2. This appeal is filed challenging the judgment and
decree dated 08.08.2022 passed in R.A.No.62/2014 on the file of
the Senior Civil Judge and JMFC at Chintamani.
3. The factual matrix of the case of the plaintiff before
the Trial Court she is the daughter of the Chikkathirupillappa and
defendant No.1 who is the mother of the plaintiff. Husband of
defendant No.5, late Venkatareddy died leaving behind
defendant Nos.5 to 8 as his legal heirs. It is the claim of the
plaintiff that the suit schedule properties are the ancestral and
joint family properties of plaintiff and defendants and she is the
member of Hindu joint family and she is entitled for 1/5th share
in the suit schedule properties and the defendants have
appeared and admitted the relationship between the parties and
they have admitted that suit schedule properties are cultivated
by the plaintiff and defendants jointly, no partition has taken
place in terms of the written statement filed by defendant No.3.
Defendant Nos.4 and 7 in the written statement contended that
the suit schedule properties are not ancestral and joint family
properties as contended by the plaintiff and defendant Nos.1 to 3
and further contended that defendant Nos.1 to 3 are acting
detrimental to the interest of plaintiff and contend that the
plaintiff is not having any share in the suit schedule properties.
4. The plaintiff in order to substantiate her claim,
examined herself as PW1 and got marked the documents at
Ex.P1 to P13. On the other hand, defendant No.4 examined
himself as DW1 and not marked any documents. The Trial Court
after considering both the oral and documentary evidence
considered the relationship between the parties and answered
Issue Nos.1 to 4 as affirmative in coming to the conclusion that
the suit schedule properties are the ancestral and joint family
properties and the plaintiff is the member of the Hindu joint
family and granted 1/6th share in the suit schedule properties in
favour of the plaintiff and also granted 1/6th share each in favour
of defendant Nos.1 to 4 and also granted 1/6th share in favour of
defendant Nos.5 to 8 together though claim was made in respect
of 1/5th share, it was granted 1/6th share in favour of the
plaintiff.
5. Being aggrieved by the judgment and decree of the
Trial Court, an appeal was filed. The First Appellate Court
considering the grounds urged in the appeal, formulated the
points that whether the plaintiff and the defendants are the
members of the Hindu joint family and whether the finding of the
Trial Court that suit schedule properties are the ancestral and
joint family properties of the plaintiff and defendants is correct
or not and whether the Trial Court committed an error in
granting 1/6th share in the suit schedule properties in favour of
the plaintiff. Having considered the grounds and also on re-
appreciation of evidence on record particularly, evidence of PW1
and DW1 and also the documentary evidence, the First Appellate
Court also comes to the conclusion that no dispute with regard
to the relationship between the parties and the plaintiff is the
daughter of one Chikkathirupillappa and the defendant No.1 and
comes to the conclusion that the suit schedule properties are
also the ancestral and joint family properties and there was no
any partition in the family hence, granted 1/6th share in the suit
schedule properties.
6. Being aggrieved by the judgment and decree of the
Trial Court as well as the First Appellate Court, the counsel for
the appellants vehemently contend that law laid down under
Sections 6 and 8(1) of the Hindu Succession Act is applicable or
not to the case on hand, the Court has to frame a substantive
question of law and whether the plaintiff-late Ashwathamma has
proved her joint status as she is enjoying the suit schedule
properties jointly along with the family members as on the date
of filing of the suit. Hence, the Court has to frame a substantive
question of law to that effect also since, the plaintiff was not in
joint possession and not having any joint status. Hence, it
requires int.
7. Having heard the learned counsel appearing for the
appellants and also on perusal of the material available on
record it is clear that it is the claim of the plaintiff that she is the
daughter of defendant No.1 and Chikkathirupillappa and to that
effect there is no dispute between the parties and relationship
has been admitted. It is also the contention of the plaintiff that
suit schedule properties are ancestral and joint family properties
and the same has been admitted by defendant Nos1. to 3 in the
written statement and defendant Nos.4 and 7 who have filed
separate written statement have denied the same. The Trial
Court having considered the evidence on record particularly, the
evidence of PW1 and also the documents at Ex.P1 to P13 comes
to the conclusion that suit schedule properties are ancestral and
joint family properties. The main contention of the learned
counsel for the appellants before this Court that the plaintiff-
daughter has approached the Trial Court after lapse of 40 years
by filing a suit seeking a relief of partition and the same is
barred by law and said contention cannot be accepted and
admittedly, no partition was taken place among the members of
the joint family. When such being the case, granting of 1/6th
share considering the legal heirs of Chikkathirupillappa, I do not
find any error committed by both the Courts and the Apex Court
also in the case of VINEETA SHARMA VS RAKESH SHARMA
reported in 2020 SCC Online SC 641 held that daughters are
also co-parcener as that of son. When such principles is laid
down and it is a settled law that the daughters are also entitled
for the relief of partition, I do not find any ground to frame any
substantive question of law by admitting the appeal invoking
Section 100 of CPC as there is no merit in this appeal.
8. In view of the discussions made above, I pass the
following:
ORDER
The appeal is dismissed.
In view of dismissal of the main appeal, I.A. if any,
does not survive for consideration and the same stands
disposed of.
Sd/-
JUDGE
SN
