Karnataka High Court
Smt. Muniyamma vs Smt. Subbalakshmamma on 22 April, 2024
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RFA No. 1069 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE
REGULAR FIRST APPEAL NO. 1069 OF 2011 (PAR)
BETWEEN:
SMT. MUNIYAMMA
AGED ABOUT 96 YEARS,
W/O LATE SRI A V BEERAPPA,
R/AT ARALERI VILLAGE, ARALARI POST,
MALUR TALUK, KOLAR DISTRICT.
...APPELLANT
(BY SRI G PAPI REDDY, SENIOR COUNSEL FOR
SRI S M RAGHAVENDRA, ADVOCATE)
AND:
1. SMT. SUBBALAKSHMAMMA,
AGED ABOUT 76 YEARS,
W/O LATE A V BEERAPPA,
R/AT ARALERI VILLAGE, ARALARI POST,
MALUR TALUK, KOLAR DISTRICT.
Digitally
signed by C
HONNUR SAB 2. SMT JAYALAKSHMAMMA,
Location: AGED ABOUT 70 YEARS,
HIGH COURT W/O LATE A V BEERAPPA,
OF
KARNATAKA R/AT NO.95, OUTHOUSE, M M ROAD,
FRAZER TOWN, BANGALORE - 560 005.
3. SMT A B NEELA @ NEELAMMA,
AGED ABOUT 58 YEARS,
W/O B S SHAMU, R/AT NO.1001,
3RD CROSS, HOSAKERE HALLI,
BSK 3RD STAGE, BANGALORE - 560 085.
4. SMT A B SHARADAMMA,
AGED ABOUT 62 YEARS,
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RFA No. 1069 of 2011
W/O VEERAPPA,
RESIDENT OF SANTHEHALLI,
SANTHEHALLI POST,
MALUR TALUK, KOLAR DISTRICT.
5. SRI VISVESHWARAIAH,
AGED ABOUT 75 YEARS,
S/O MUNIYAMMA,
R/OF ARALERI VILLEGE, ARALERI POST,
MALUR TALUK, KOLAR DISTRICT.
6. SRI A B RAJENDRA,
AGED ABOUT 61 YEARS,
S/O SUBBALAKSHMAMMA,
R/OF ARALERI VILLAGE,
ARALERI POST, MALUR TALUK,
KOLAR DISTRICT.
7. A B LALITHAMMA,
AGED ABOUT 72 YEARS,
D/O J SUBBALAKSHMAMMA,
RESIDENT OF ARALERI VILLAGE,
SANTHEHALLI POST, MALUR TALUK,
KOLAR DISTRICT.
8. DR KANAKA SANTOSH,
AGED ABOUT 51 YEARS,
D/O JAYALAKSHMAMMA,
NO.152, 24TH MAIN,
KARTHIK MATERNITY CLINIC,
HSR LAYOUT, AGARA,
BANGALORE - 560034.
9. SRI A B JAGADEKAREERA,
AGED ABOUT 49 YEARS
S/O JAYALAKSHMAMMA,
R/OF ARALERI VILLAGE,
ARALERI POST, MALUR TALUK,
KOLAR DISTRICT.
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RFA No. 1069 of 2011
10. SRI A B MRUTYUNJAYA,
SINCE DEAD BY HIS LRS
10.(a) SMT SHYALAJA,
AGED ABOUT 42 YEARS,
W/O LATE A.B.MRUTHYUNJAYA.
10.(b) SRI RAGHAVENDRA,
AGED ABOUT 18 YEARS,
S/O LATE A.B.MRUTHYUNJAYA.
10.(c) MASTER RAJNESH,
AGED ABOUT 13 YEARS,
S/O LATE A.B.MRUTHYUNJAYA
ALL ARE RESIDING AT, ARALERI VILLAGE,
ARALERI POST, MALUR TALUK,
KOLAR DISTRICT.
11. SHIVASHANKARE,
AGED ABOUT 36 YEARS,
S/O JAYALAKSHMAMMA
C/O MRUTHYNAJAYA,
R/OF ARALERI VILLAGE, ARALARI POST,
MALUR TALUK, KOLAR DISTRICT.
...RESPONDENTS
(BY SRI H B CHANDRASHEKAR, ADVOCATE FOR R3 AND R4
R-10 (C) IS MINOR, R1, R5, R6, R8, R10(A & B) ARE SERVED
V/O/DT: 03.02.2015 NOTICE TO R2, R7, R9 & R11 ARE
DISPENSED WITH)
THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 1.3.2011 PASSED IN
O.S.NO.6103/2004 ON THE FILE OF THE XVIII ADDL. CITY CIVIL
JUDGE, BANGALORE, (CCH 10), DISMISSING THE SUIT FOR THE
PARTITION AND SEPARATE POSSESSION.
THIS APPEAL COMING ON FOR FURTHER HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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RFA No. 1069 of 2011
JUDGMENT
1. This appeal is arising from the judgment and
decree in O.S. No.6103/2004 on the file of XVIII Additional
City Civil Judge, Bengaluru. The suit for partition is filed by
one Muniyamma against Subbalakshmamma and
Jayalakshmamma. The suit is filed on the premise that the
suit property is allotted to the share of the plaintiff -
Muniyamma, defendants No.1 and 2 - Subbalakshmamma
and Jayalakshmamma along with the husband of the plaintiff
and defendants No.1 and 2 Sri A. V. Beerappa.
2. There is no dispute that A. V. Beerappa married
Muniyamma, Subbalakshmamma and Jayalakshmamma. It is
stated that all these three marriages have taken place before
the commencement of the Hindu Marriage Act, 1955. Thus,
all the three marriages are valid.
3. It is stated that plaintiff has a son and daughter
from the said marriage with A. V. Beerappa. 1st defendant -
Subbalakshmamma has two sons and three daughters from
her marriage with A. V. Beerappa and the 2nd defendant viz.,
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3rd wife has two sons and two daughters from her marriage
with A. V. Beerappa. Defendants No.3 to 11 are the children
from three wives. During the pendency of the suit,
defendants No.3 and 4 got themselves impleaded and also
took a stand that all the children from A. V. Beerappa from
his three wives are necessary parties to the suit and
accordingly, the remaining children of A. V. Beerappa were
impleaded as parties. After impleading them as parties, the
remaining children did not contest the suit.
4. Admittedly, there was a partition in the family
which was registered on 11.09.2000. It is stated that there
was a oral partition. The oral partition was reduced into
writing and registered on 11.11.2000. The Trial Court has
dismissed the suit on the premise that the plaintiff cannot
claim his share in the property in view of the clause in the
partition deed dated 11.09.2000.
5. Aggrieved by the dismissal of the suit, the plaintiff
is in appeal.
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6. Sri G. Papi Reddy, the learned Senior counsel
appearing for the appellant would contend that the judgment
and decree under challenge are untenable. It is his
contention that the property is jointly allotted to the share of
A. V. Beerappa and to his three wives in the partition of
2000. Accordingly, the plaintiff acquired ¼ share in the suit
schedule property in the partition. After the death of
A. V. Beerappa who died intestate, his share will also devolve
upon the plaintiff along with other heirs. He would contend
that interpretation of the partition deed by the Trial Court in
holding that the plaintiff does not have any share in the
property is an erroneous interpretation. He would submit
that once the property is jointly allotted to the share of the
plaintiff and remaining two wives of A. V. Beerappa. Thus,
the property would be the joint property of the
aforementioned four persons. The clause in the partition deed
that in case A. V. Beerappa is to sell the property to facilitate
his treatment, then the children of A. V. Beerappa would
inherit the property, has no application. It is urged that the
said clause is void under Section 10 of the Transfer of
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Property Act, 1882. He would also submit that assuming that
the property in the hands of the plaintiff - first wife is a
limited estate, then also by virtue of application of Section
14(1) of the Hindu Succession Act, 1966, the plaintiff would
acquire absolute right over the property as she was in
possession of the property pursuant to the partition of 2000.
Thus, he would contend that the Trial Court could not have
dismissed the suit and he would urge that the decree for
partition is to be passed in favour of the plaintiff/appellant.
7. Learned counsel for the respondents submits that
the allegation of interpolation in the partition deed made by
the plaintiff is not established. When the allegation of
interpolation is not established, the Court has to hold that the
property has to be inherited by all the children of
A.V.Beerappa after the demise of A.V.Beerappa. He would
also submit that after the demise of A.V.Beerappa even in the
absence of the interpolation, which is referred to above in the
partition deed of the year 2000, children of A.V.Beerappa will
inherit the property as class-I heirs, as such the suit is not
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maintainable. He would further submit that the Trial Court
has also given a finding that the suit is bad for non-joinder of
necessary parties and for this reason also, the Trial Court has
rightly dismissed the suit as all the sharers are not made
parties to the suit.
8. This Court has considered the contentions raised at
the bar.
9. The following points arise for consideration:
(i) Whether the plaintiff is able to establish that
the suit property is allotted to the share of
A.V.Beerappa and his three wives in the
partition of the year 2000?
(ii) Whether the suit is bad for non-joinder of
the necessary parties?
10. As can be noticed from the partition deed of the
year 2000, it is evident that the said partition deed speaks
about the previous partition in respect of several properties
among the children of A.V.Beerappa. The partition deed of the
year 2000 marked at Ex.P1 also refers to the suit property,
which is a residential house and the said suit property as per
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the recital, in the last page of the partition deed is allotted to
the share of A.V.Beerappa and his three wives. The last
sentence would also reveal that A.V.Beerappa is entitled to
sell the property to bear his medical expenses and thereafter,
the children are entitled to have the property equally.
11. In case, the property is sold by A.V.Beerappa to
bear his medical expenses, there is no question to his children
inheriting the property equally after his demise. Thus, the last
sentence in the partition deed of the year 2000 has to be
construed as the right being conferred on the children in
respect of sale consideration amount, if any, left in the hands
of A.V.Beerapa, at the time of his death.
12. It is relevant to note that the defendants have not
disputed the recital in the partition deed. Thus, what can be
noticed from the partition deed is the properties are allotted to
the share of A.V.Beerappa and his three wives. A.V.Beerappa
admittedly died intestate. Thus, his 1/4th share in the suit
property would devolve upon all the his three wives, as all the
three marriages are valid marriages, which have taken place
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before the commencement of Hindu Marriage Act, 1955. In
addition, all his children from his three wives also inherit his
1/4th share. The wives of A.V.Beerappa will have 1/4th share
each under the deed of partition and in addition to that they
will also have equal share along with the children in 1/4th
share left behind by A.V.Beerappa. The Trial Court has not
considered this aspect in the proper prospective. The trial
Court proceeded on the erroneous footing that the last
sentence in the partition deed is not proved to be an
interpolation as alleged by the plaintiff. The last sentence in
the partition deed does not take away the right of the plaintiff
which is recognised in the earlier part of the partition deed.
13. As far as the contention relating to the non-joinder
of necessary parties is concerned, it is to be noticed that both
the son and daughter of Smt. Muniyamma are made parties to
the suit and two sons and one daughter of Smt.
Subbalakshmamma the second wife are also made parties and
among two sons and two daughters of the third wife Smt.
Jayalakshmamma, one son is made a party and both
daughters are made parties. This being the position, this
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Court is of the view that there is a substantial representation
of each branch and no injustice is caused. Accordingly, the
suit is not bad for non-joinder of necessary parties.
14. Now the Court has to consider the quantum of
share. Since the Court has held that in the partition of year
2000, the A.V. Beerappa and his three wives were allotted
share in the suit property, the plaintiff will have 1/4th share in
the suit property and A.V.Beerappa and his remaining two
wives will have 1/4th share each in the suit property. Since
A.V.Beerappa died intestate, his 1/4th share would devolve
upon his Class I heirs, namely his wives and children.
A.V.Beerappa is survived by six daughters and five sons. So
his 1/4th share would devolve upon all eleven children and
three wives. Thus, each of the children will have 1/56th share.
Each of his wives will have 1/4th plus 1/56th share in the suit
properties. In other words, the plaintiff will have 15/56th share
in the suit properties.
15. Hence, the following:
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ORDER
i) The appeal is allowed in-part.
ii) The judgment and decree dated 01.03.2011
passed by XVIII Additional City Civil Judge,
Bengaluru are set aside.
iii) The suit of the plaintiff is decreed in part.
Plaintiff is entitled to 15/56th share in the suit
schedule property.
iv) Registry shall draw preliminary decree
accordingly.
v) It is also made clear that in case the final
decree proceeding is filed, the petitioner in
the final decree proceeding shall implead all
the children of deceased A.V.Beerappa or
their successors in case any of the children of
A.V. Beerappa are not surviving, as parties
to the proceedings.
vi) No order as to costs.
Sd/-
JUDGE
BRN/PHM
