Karnataka High Court
Sri Muniraju vs Sri Veerappa on 22 November, 2023
-1-
NC: 2023:KHC:41976
RSA No. 1918 of 2007
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF NOVEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 1918 OF 2007 (PAR)
BETWEEN:
1. SRI MUNIRAJU
S/O KRISHNAMMA
AGED ABOUT 36 YEARS
2. SMT LAKSHMAMMA
W/O CHANNEKESHAVAPPA
AGED ABOUT 45 YEARS
R/AT BANDAHALLI
NANDI HOBLI
CHIKKABALLAPURA TALUK
3. SMT NARAYANAMMA
D/O NARASAMMA
Digitally signed AGED ABOUT 70 YEARS
by R DEEPA
Location: High (DIED ON 06.11.2019)
Court of
Karnataka APPELLANTS 1 AND 2 ARE TREATED
AS LEGAL REPRESENTATIVES)
1 AND 3 ARE R/AT
ARASANAHALLI VILLAGE
NANDI HOBLI
CHIKKABALLAPUR TALUK
4. SMT NARASAMMA
W/O NANJUNDAPPA
-2-
NC: 2023:KHC:41976
RSA No. 1918 of 2007
(DIED ON 21.09.2006 AND
LEGAL REPRESENTATIVES
ARE ALREADY ON RECORD)
... APPELLANTS
(BY SRI. G.V. SHASHI KUMAR, ADVOCATE FOR
SRI A M SURESH REDDY, ADVOCATE)
AND:
1. SRI VEERAPPA
S/O NANJUNDAPPA
SINCE DEAD BY
LEGAL REPRESENTATIVES
1(A) SMT NARAYANAMMA
W/O LATE VEERAPPA
AGED ABOUT 70 YEARS
1(B) SRI ASHWATHAPPA
S/O LATE VEERAPPA
AGED ABOUT 60 YEARS
1(C) SRI CHENNA KESHAVA MURTHY
S/O LATE VEERAPPA
AGED ABOUT 45 YEARS
2. SRI KEMPANNA
S/O NANJUNDAPPA
SINCE DEAD BY HIS LRS
2(i) SMT NARAYAMMA
W/O LATE KEMPANNA
AGED ABOUT 60 YEARS
2(ii) SMT LAKSHMAMMA
D/O LATE KEMPANNA
AGED ABOUT 42 YEARS
-3-
NC: 2023:KHC:41976
RSA No. 1918 of 2007
3. SRI RAMAKRISHNAPPA
S/O NANJUNDAPPA
AGED ABOUT 73 YEARS
SINCE DEAD BY
LEGAL REPRESENTATIVES
3(a) SMT. RADHAMMA
D/O LATE RAMAKRISHNAPPA
W/O JAYEGOWDA
AGED ABOUT 45 YEARS
R/AT No.21, GHATTAMARANAHALLI
SHIDLAGHATTA TALUK
KOLAR DISTRICT - 562 105.
3(b) SRI MANJUNATH
S/O LATE RAMAKRISHNAPPA
AGED ABOUT 42 YEARS
R/O ARASANAHALLI VILLAGE
NANDHI HOBLI
CHIKKABALLAPUR DISTRICT - 562 105.
3(c) SMT. HEMAVATHI
D/O LATE RAMAKRISHNAPPA
W/O T.P. VIJAYAKUMARA
AGED ABOUT 40 YEARS
R/AT No.42, THIPPENAHALLI VILLAGE
SHIDLAGHATTA TALUK
CHIKKABALLAPUR DISTRICT - 562 105
3(d) SMT. GAYATHRI
D/O LATE RAMAKRISHNAPPA
W/O MUNIGOWDA
AGED ABOUT 38 YEARS
R/AT No.E-27, BENDIGANAHALLI
-4-
NC: 2023:KHC:41976
RSA No. 1918 of 2007
NIMBEKAIPURA,
BANGALORE EAST
BANGALORE - 560 049.
... RESPONDENTS
[BY SRI. K. NITISH, ADVOCATE FOR
SRI K.V. NARASIMHAN, ADVOCATE FOR R1 (A-C);
R2(1) & R2(2) - SERVED;
SRI M. SHIVAPRAKASH, ADVOCATE FOR R3 (A, C & D);
V/O DATED 16.04.2018,
SERVICE TO R3(B) HELD SUFFICIENT]
THIS RSA IS FILED U/S. 100 OF CPC, AGAINST THE
JUDGEMENT & DECREE DATED 4.9.2006 PASSED IN R.A.NO.
65/2005 ON THE FILE OF THE ADDL. SESSIONS JUDGE &
PRESIDING OFFICER, FAST TRACK COURT NO.V,
CHICKBALLAPUR, ALLOWING THE APPEAL AND SETTING
ASIDE THE JUDGEMENT AND DECREE DATED 30.6.2005
PASSED IN O.S. NO.38/1995 ON THE FILE OF THE CIVIL JUDGE
(SR.DN.) & JMFC, CHICKBALLAPUR AND ETC.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This second appeal is filed by the appellants
challenging the judgment and decree dated 04.09.2006,
passed in R.A.No.65/2005 by the Fast Track Court-V,
Chickballapur.
2. For the sake of convenience, parties are referred
to as per their ranking before the trial Court. Appellants
are the plaintiffs and respondent Nos.1(a) to 1(c) are the
NC: 2023:KHC:41976
legal representatives of deceased defendant No.1,
respondent Nos.2(i) and 2(ii) are the legal representatives
of deceased defendant No.2 and respondent No.3 is
defendant No.3.
3. The brief facts leading rise to filing of this appeal
are as under:
The plaintiffs filed a suit for partition and separate
possession. It is the case of the plaintiffs that one
Nanjundappa, who was the propositus, he had three
wives, namely Munemma (first wife), Munemma (second
wife) and Narasamma i.e., plaintiff No.4 (third wife). The
said Nanjundappa out of wedlock through 1st wife
Munemma had two sons i.e., defendant Nos.1 and 2, out
of wedlock through second wife Munemma had one son
i.e., defendant No.3 and out of wedlock through
Narasamma had three daughters, namely Narayanamma
i.e., plaintiff No.3 Jayamma and Krishnamma. Jayamma
died leaving behind her daughter Smt. Lakshmamma i.e.,
plaintiff No.2 and Smt. Krishnamma died leaving behind
NC: 2023:KHC:41976
her son Sri Muniraju i.e., plaintiff No.1, who has succeeded
to their estate respectively. It is the case of the plaintiffs
that the suit schedule properties are the ancestral
properties of Nanjundappa and the plaintiffs and the
defendants are members of the Hindu Undivided Joint
Family. There is no partition effected between the plaintiffs
and the defendants in the suit schedule properties. The
plaintiffs demanded for partition and separate possession,
but the defendants declined to effect a partition. Hence,
cause of action arose for the plaintiffs to file a suit for
partition and separate possession.
4. The summons were duly served on defendants
and defendant Nos.1 and 2 remained absent and placed
exparte.
5. Defendant No.3 filed the written statement
denying the averments made in the plaint and contended
that the plaintiffs are not entitled for share in the suit
schedule properties. It is further contended that there was
oral partition between Nanjundappa and his sons and
NC: 2023:KHC:41976
during the lifetime of Nanjundappa, he has given
properties to plaintiff Nos.2 and 3 and Krishnamma by
registered Will dated 21.10.1978, hence, the plaintiffs are
not entitled for any share in suit properties. It is
contended that the suit filed by the plaintiffs is not
maintainable and they have also filed the additional
written statement. Hence, prayed to dismiss the suit.
6. The Trial Court, on the basis of the above said
pleadings, framed the following issues:
1. Whether the plaintiffs prove that they along
with defendants constituted a Hindu
undivided joint family?
2. Whether the plaintiffs prove that they are
entitled for share in all the suit schedule
properties? If so what is the quantum?
3. Whether defendant No.3 proves that there
was already partition between Nanjundappa
and his sons before 21.10.1978 and
properties as set out in para 10 of the written
statement were allotted to the sons of
Nanjundappa in the said partition?
4. Whether the 3rd defendant proves that
Nanjundappa has executed a will dated
21.10.1978 and has given some properties to
the plaintiffs as contended in para 10 of ws?
NC: 2023:KHC:41976
5. Whether defendants prove that the suit is bad
for non-joinder of necessary parties?
6. To what decree or order the parties entitled
to?
7. The plaintiffs in order to substantiate their case,
plaintiff No.1 was examined as PW.1 and got marked 9
documents as Exs.P1 to P9. Defendant No.3 was
examined as DW-1 and got examined two witnesses as
DW-2 & DW-3 and got marked 23 documents as Exs.D1 to
D23. The trial Court on assessment of oral and
documentary evidence, answered issue Nos.1 to 4 in the
affirmative, issue No.5 in the negative and issue No.6 as
per the final order and consequently, decreed the suit of
the plaintiffs. It is ordered and decreed that the plaintiffs
are entitled for partition and separate possession of their
4/7th share in the suit properties and mesne profits are to
be separately ascertained.
8. Defendant No.3 aggrieved by the judgment and
preliminary decree passed in the above said suit, filed an
appeal in R.A.No.65/2005. The First Appellate Court, after
NC: 2023:KHC:41976
hearing the parties, has framed the following points for
consideration:
1. Whether appellant proves that the trial Judge
has erred in law allotting share to plaintiffs
inspite of answering issues No.3 and 4 in the
affirmative?
2. What order?
9. The First Appellate Court, on re-assessment of
the oral and documentary evidence, answered point No.1
in the affirmative and consequently, allowed the appeal
and set aside the judgment and decree passed by the trial
Court and dismissed the suit of the plaintiffs. The
plaintiffs, aggrieved by the judgment and decree passed
by the First Appellate Court, have filed this second appeal.
10. This court admitted the appeal on the following
re-formulated substantial question of law :
"Whether the appellants prove that the
judgment and decree passed by the First
Appellate Court in R.A.No.65/2005 without
impleading defendant No.1 and legal
representatives of defendant No.2, is arbitrary
and erroneous?"
- 10 -
NC: 2023:KHC:41976
11. Heard learned counsel for the plaintiffs and
learned counsel for defendant Nos.1 and 2.
12. Learned counsel for the plaintiffs submits that
defendant No.3 without impleading defendant No.1 and
legal representatives of defendant No.2 had filed the
appeal before the First Appellate Court. He submits that
the First Appellate Court could have dismissed the appeal
solely on the ground of non-joinder of necessary parties.
He further submits that the judgment and decree passed
by the First Appellate Court is without providing an
opportunity to defendant No.1 and legal representatives of
defendant No.2. Hence, he prays to allow the appeal.
13. Per contra, learned counsel for defendant No.1
and legal representatives of defendant No.2 fairly
concedes that defendant No.2 without alleging defendant
No.1 and legal representatives of defendant No.2 filed the
appeal before the First Appellate Court and submits that
matter may be remanded to the First Appellate Court for
reconsideration afresh. He submits that the appeal filed by
- 11 -
NC: 2023:KHC:41976
defendant No.3 before the First Appellate Court is bad for
non-joinder of necessary parties. Hence, he submits that
the appeal may be disposed of.
14. Perused the records and considered the
submissions of learned counsel for the parties.
15. Substantial question of law: It is the case of
the plaintiffs that Nanjundappa the propositus of the
family had three wives i.e., Munemma (first wife),
Munemma (second wife) and Narasamma third wife.
Nanjundappa out of wedlock through first wife Munemma
had two sons i.e., defendant Nos.1 and 2, out of wedlock
through second wife Smt. Munemma had one son i.e.,
defendant No.3 and out of wedlock through Narasamma
had three daughters namely Narayanamma, Jayamma and
Krishnamma. Jayamma expired leaving behind the
daughter i.e., plaintiff No.2 and Krishnamma died leaving
behind her son plaintiff No.2. It is the case of the plaintiffs
that the suit schedule properties are the ancestral
properties of Nanjundappa. The plaintiffs and the
- 12 -
NC: 2023:KHC:41976
defendants are the members of the Hindu Undivided
Family and there is no partition effected between the
plaintiffs and the defendants. The plaintiffs being the
coparceners are entitled for share in the suit schedule
properties. The plaintiffs in order to establish their case,
plaintiff No.1 was examined as PW.1. He has reiterated the
plaint averments in the examination-in-chief and produced
the documents i.e., Exs.P1 to P9 are the RTC extracts.
Defendant No.3 was examined as DW.1 and examined two
witnesses as DW.2 and DW.3 and got marked 23
documents i.e., Ex.D1 certified copy of the registered Will,
Exs.D2 to D10 are the RTC extracts, Ex.D11 is the
mutation register, Exs.D12 to D14 are the house list
extracts, Ex.D15 is the ration card, Exs.D16 to 23 are the
RTC extracts. The trial Court on assessment of oral and
documentary evidence held that the plaintiffs had proved
that they along with the defendants constituted a Hindu
Undivided Joint Family and further, the plaintiffs are
entitled for share in all the suit schedule properties.
Further, defendant No.3 has proved that there was a
- 13 -
NC: 2023:KHC:41976
partition between Nanjundappa and his sons before
21.10.1978 and the properties as said in para No.10 of the
written statement were allotted to sons of Nanjundappa in
the said partition and further held that defendant No.3 has
proved that Nanjundappa executed a Will dated
21.10.1978 and bequeathing the properties in favour of
the plaintiffs but the defendants have failed to prove that
the suit is bad for non-joinder of necessary parties. The
trial Court decreed the suit. Defendant No.3 aggrieved by
the judgment and decree passed by the trial Court
preferred an appeal in R.A.No.65/2005 before the First
Appellate Court. Defendant No.3 without impleading
defendant No.1 and legal representatives of defendant
No.2 filed an appeal. The First Appellate Court has not
examined the said aspect and proceeded to pass the
impugned judgment behind the back of defendant No.1
and legal representatives of defendant No.2. The First
Appellate Court could have directed the defendant No.3 to
implead defendant No.1 and legal representatives of
deceased defendant No.2 as parties. On the contrary, in
- 14 -
NC: 2023:KHC:41976
the absence of the parties proceeded to pass the
impugned judgment. Hence, on this ground alone, the
impugned judgment is liable to be set aside. In view of the
above, I answer substantial questions of law in affirmative.
16. In view of the aforesaid facts and circumstances,
I proceed to pass the following:
ORDER
The appeal is allowed.
The judgment and decree dated
04.09.2006, passed in R.A.No.65/2005 by the
Fast Track Court-V, Chickballapur is set aside.
The matter is remitted to the First Appellate
Court.
Legal representatives of defendant No.3 are
directed to implead the legal representatives of
defendant No.1 and defendant No.2 in the appeal.
The First Appellate Court thereafter pass
appropriate judgment, in accordance with law.
As the appeal is of the year 2007, the First
Appellate Court is directed to dispose of the
- 15 -
NC: 2023:KHC:41976
appeal within six months from the date of receipt
of copy of this judgment.
Office is directed to transmit the records
forthwith to the First Appellate Court.
This Court has not made any adjudication
on the merits in issue.
Parties are directed to appear before the
First Appellate Court on 04.01.2024 without
awaiting any further notice.
All the contentions of the parties are kept
open.
Sd/-
JUDGE
SSB
