Karnataka High Court
D Shivalingegowda vs Smt Sannamma on 13 March, 2023
Bench: H.P.Sandesh
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RSA No. 1290 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 1290 OF 2017 (PAR)
BETWEEN:
1. D. SHIVALINGEGOWDA
DEAD BY LRS.,
1(a) SMT. SAVITHRAMMA
W/O LATE D. SHIVALINGEGOWDA
AGED ABOUT 61 YEARS
R/AT KAMANAKEREHUNDI VILLAGE
KASABA HOBLI
MYSURU TALUK-570 005.
1(b) SRI NARAYANA K.S.
S/O LATE D. SHIVALINGEGOWDA
AGED ABOUT 47 YEARS
R/AT KAMANAKEREHUNDI VILLAGE
Digitally signed KASABA HOBLI
by SHARANYA T MYSURU TALUK-570 005.
Location: HIGH
COURT OF 1(c) SRI MALIKA
KARNATAKA
S/O LATE D. SHIVALINGEGOWDA
AGED ABOUT 37 YEARS
R/AT KAMANAKEREHUNDI VILLAGE
KASABA HOBLI
MYSURU TALUK-570 005.
...APPELLANTS
(BY SRI. C.R.SUBRAMANYA, ADVOCATE)
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RSA No. 1290 of 2017
AND:
1. SMT. SANNAMMA
D/O LATE RAJEGOWDA
AGED ABOUT 71 YEARS
R/AT KAMANAKEREHUNDI VILLAGE
KASABA HOBLI
MYSURU TALUK-570 005.
2. SMT. YASHODAMMA
W/O LATE LINGARAJU
AGED ABOUT 67 YEARS
R/AT KAMANAKEREHUNDI VILLAGE
KASABA HOBLI
MYSURU TALUK-570 005.
3. PRAKASH
S/O LATE LINGARAJU
AGED ABOUT 45 YEARS
R/AT KAMANAKEREHUNDI VILLAGE
KASABA HOBLI
MYSURU TALUK-570 005.
4. SMT. BHAGYA
D/O LATE LINGARAJU
AGED ABOUT 38 YEARS
R/AT KAMANAKEREHUNDI VILLAGE
KASABA HOBLI
MYSURU TALUK-570 005.
5. SMT. RENUKA
D/O LATE LINGARAJU
AGED ABOUT 38 YEARS
R/AT KAMANAKEREHUNDI VILLAGE
KASABA HOBLI
MYSURU TALUK-570 005.
6. NAGARAJU
S/O LATE BASAVEGOWDA
AGED ABOUT 51 YEARS
R/AT KAMANAKEREHUNDI VILLAGE
KASABA HOBLI, MYSURU TALUK-570 005.
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RSA No. 1290 of 2017
7. PUTTASWAMY
S/O LATE BASAVEGOWDA
AGED ABOUT 46 YEARS
R/AT KAMANAKEREHUNDI VILLAGE
KASABA HOBLI
MYSURU TALUK-570 005.
8. SMT. NAGAMMA
D/O LATE BASAVEGOWDA
W/O LATE CHANNEGOWDA
AGED ABOUT 56 YEARS
R/AT KAMANAKEREHUNDI VILLAGE
KASABA HOBLI
MYSURU TALUK-570 005.
9. SMT. SUDHA
D/O LATE BASAVEGOWDA
W/O SIDDEGOWDA
AGED ABOUT 34 YEARS
R/AT KAMANAKEREHUNDI VILLAGE
KASABA HOBLI
MYSURU TALUK-570 005.
10. SMT. NINGAMMA
D/O LATE BASAVEGOWDA
W/O RAMESH
AGED ABOUT 37 YEARS
R/AT KAMANAKEREHUNDI VILLAGE
KASABA HOBLI
MYSURU TALUK-570 005.
...RESPONDENTS
(BY SRI. P. SRINIVASAIAH, ADVOCATE FOR R1)
THIS RSA IS FILED U/S.100 OF CPC 1908, AGAINST THE
JUDGMENT & DECREE DTD 10.02.2017 PASSED IN
R.A.NO.40/2016 ON THE FILE OF THE VII ADDITIONAL
DISTRICT JUDGE., MYSURU, ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGEMENT AND DECREE DTD: 16.11.15
PASSED IN O.S.NO.143/2011 ON THE FILE OF THE III ADDL.
SENIOR CIVIL JUDGE AND CJM., MYSURU.
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RSA No. 1290 of 2017
THIS APPEAL 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 and the learned counsel
appearing for respondent No.1.
2. This appeal is filed challenging the judgment and
decree dated 10.02.2017 passed in R.A.No.40/2016 on the file
of the VII Additional District Judge, Mysuru.
3. The factual matrix of the case of the plaintiffs
before the Trial Court is that the plaintiffs and defendant Nos.1
to 5 have constituted a joint family. The suit schedule property
is joint family property. Hence, claimed the relief for partition
and separate possession in respect of the suit schedule
property.
4. Defendant No.6 appeared and filed the written
statement stating that he is a bonafide purchaser of the suit
schedule property. Based on the pleadings of the parties, the
Trial Court framed the issues.
RSA No. 1290 of 2017
5. In order to prove the case, the plaintiffs No.2 and 5
have been examined as P.Ws.1 and 2 and got marked the
documents as Exs.P1 to P12. On the other hand, defendant
No.6 and defendant No.1 have been examined as D.Ws.1 and 2
and got marked the documents as Exs.D1 to D20.
6. The Trial Court after considering both oral and
documentary evidence available on record dismissed the suit
filed by the plaintiffs and the same is challenged in
R.A.No.40/2016 by the 5th plaintiff and others have not
challenged the judgment and decree.
7. The First Appellate Court on re-appreciation of both
oral and documentary evidence placed on record came to the
conclusion that the plaintiff Nos.1 to 4 have not challenged the
judgment and decree of dismissal of the suit and the same has
attained its finality. The First Appellate Court in paragraph
No.22 came to the conclusion that the propositus of the family
Rajegowda divided all the family properties amongst his three
children during his lifetime is admitted by the first defendant
who was examined as D.W.2. The 5th plaintiff/appellant is
admittedly daughter of late Rajegowda. After the death of her
RSA No. 1290 of 2017
father, by virtue of Section 8 of the Hindu Succession Act and
as Class-I heir she was entitled for 1/3rd share in the suit
schedule property. But the sale was made excluding the 5th
plaintiff. Hence, the First Appellate Court came to the
conclusion that she is entitled for 1/3rd share in one acre of land
in Sy.No.340/1A of Kesare Village, Mysuru Taluk, which was
sold to the 6th defendant under a registered sale deed dated
13.07.1997. Hence, granted the relief in favour of 5th plaintiff.
8. The learned counsel appearing for the appellants
would vehemently contend the sale was made prior to the
amendment made in 2005. Hence, under Section 6 of the
Hindu Succession Act when the properties are sold prior to
2005, the 5th plaintiff is not entitled for share. The said
contention cannot be accepted for the reason that the father
has died and the property was sold by other legal
representatives excluding the right of 5th plaintiff. Immediately
after the death of her father, the 5th plaintiff is also entitled for
a share in the property left by her father. Hence, Section 8 of
the Hindu Succession Act applies to the case on hand and not
Section 6 of the Hindu Succession Act. Hence, no substantial
question of law is made out. The First Appellate Court has
RSA No. 1290 of 2017
rightly taken Section 8 of the Hindu Succession Act and as
Class-I heir, granted 1/3rd share in respect of 5th plaintiff since
she is not a party to the sale made in favour of defendant No.6,
who is the appellant herein. Hence, I do not find any ground to
admit and frame the substantial question of law.
9. In view of the discussions made above, I pass the
following:
ORDER
The appeal is dismissed.
In view of dismissal of the appeal, I.A.No.1/2020 for stay
does not survive for consideration, the same stands disposed
of.
Sd/-
JUDGE
CP
