Karnataka High Court

Ramanjanappa vs Suvarnamma on 1 August, 2024

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                                                  RSA No. 1044 of 2015




              IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                   DATED THIS THE 1ST DAY OF AUGUST, 2024

                                      BEFORE

                   THE HON'BLE MR JUSTICE ASHOK S.KINAGI

              REGULAR SECOND APPEAL NO.1044 OF 2015 (PAR)

              BETWEEN:

              1.   RAMANJANAPPA
                   S/O ASWATHAPPA,
                   SINCE DEAD BY HIS LR'S

              (A) SANJEEVAMMA
                  W/O RAMANJANAPPA
                  AGED ABOUT 60 YEARS
                  R/O GANGAVARAM VILLAGE
                  KANAKAPURA MAZRE
                  KASABA HOBLI, PAVAGADA TALUK
                  TUMAKURU DISTRICT - 561 202

              (B) RADHAMMA @ RATHANAMMA
                  D/O RAMANJANAPPA
Digitally         W/O GOPINATH
signed by R       AGED ABOUT 35 YEARS
DEEPA             SANTHEBIDANUR VILLAGE AND POST
Location:         HINDUPUR TALUK
HIGH COURT        ANANTHAPURA DISTRICT - 515 211
OF
KARNATAKA
              (C) PADMAMMA
                  D/O RAMANJANAPPA
                  W/O SHEKARAPPA
                  AGED ABOUT 28 YEARS
                  R/O GANGAVARAM VILLAGE
                  KANAKAPURA MAZRE, KASABA HOBLI
                  PAVAGADA TALUK,
                  TUMAKURU DISTRICT - 561 202.
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                                       NC: 2024:KHC:30808
                                     RSA No. 1044 of 2015




2.   T ANJAIAH
     S/O SANJEEVAMMA,
     AGED ABOUT 32 YEARS,
     R/O GANAVARAM VILLAGE,
     KANAKAPURA MAZRE, KASABA HOBLI,
     PAVAGADA TALUK,
     TUMAKURU DIST-561202
                                            ...APPELLANTS
(BY SRI. VENKATA REDDY S K., ADVOCATE)

AND:

1.   SUVARNAMMA
     W/O RAMANJANAPPA,
     AGED ABOUT 42 YEARS,
     R/O GANAVARAM VILLAGE,
     KANAKAPURA MAZRE, KASABA HOBLI,
     PAVAGADA TALUK,
     TUMAKURU DIST-561202

2.   RAMAKKA
     W/O SUBBARAYAPPA,
     AGED ABOUT 36 YEARS,
     R/O KIRLAKUNTE VILLAGE,
     A.P STATE

3.   ANJANEYALU
     S/O RAMANJANAPPA,
     AGED ABOUT 33 YEARS,
     R/O GANAVARAM VILLAGE,
     KANAKAPURA MAZARE, KASABA HOBLI,
     TUMAKURU DIST-561202
                                          ...RESPONDENTS
(BY SRI. MANJUNATH B.R., ADVOCATE)

     THIS RSA IS FILED UNDER SEC.100 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 13.02.2015 PASSED IN
R.A.NO.136/2006 ON THE FILE OF THE ITINERARY COURT OF
PRL. SENIOR CIVIL JUDGE & JMFC, MADHUGIRI (SITTING AT
PAVAGADA), DISMISSING THE APPEAL AND CONFIRMING THE
JUDGMENT AND DECREE DATED 29.07.2006 PASSED IN
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                                         RSA No. 1044 of 2015




O.S.NO.241/1998 ON THE FILE OF THE CIVIL JUDGE (JR.DN.)
& JMFC, AT PAVAGADA.

    THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:


CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI

                     ORAL JUDGMENT

This regular second appeal is filed challenging the

judgment and decree dated 13.02.2015 passed in

R.A.No.136/2006 by the learned Itinerary Court of Senior

Civil Judge at Pavagada, confirming the judgment and

preliminary decree dated 29.07.2006 passed in

O.S.No.241/1998 by the learned Civil Judge (Jr. Dn.) and

JMFC, Pavagada.

2. The parties are referred to as per their ranking

before the trial Court. The appellants are the defendants

and the respondents are the plaintiffs. The plaintiffs filed a

suit for partition and separate possession.

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3. Brief facts of the case are as under:

It is the case of the plaintiffs that, plaintiff Nos.1 to 3

are the daughters and son of defendant No.1. The suit

schedule properties are the ancestral, undivided, joint

Hindu family properties of the plaintiffs and defendant

No.1. The plaintiffs and the defendants are in joint

possession and enjoyment of the suit schedule properties.

There is no partition among them. The plaintiffs demanded

for partition and separate possession with defendant No.1.

Defendant No.1 refused to effect a partition. Hence, cause

of action arose for the plaintiffs to file a suit for partition

and separate possession.

4. Defendant No.1 filed the written statement

admitting that plaintiff Nos.1 and 2 are his daughters and

plaintiff No.3 is his son. It is pleaded that, the suit

schedule properties are not ancestral properties of the

plaintiffs and defendant No.1. They are the exclusive

properties of one Chinna Aswathappa i.e., the uncle of

defendant No.1. It is contended that in O.S.No.55/1997,

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Chinna Aswathappa gave all his rights in the suit schedule

properties in favour of defendant No.2, who is the son of

defendant No.1. Defendant No.1 has no right, title over

the suit schedule properties. It is contended that, the wife

of defendant No.1 by name Sarojamma filed the petition

for maintenance in Crl.Mis.No.5/1983 seeking

maintenance for herself and plaintiff Nos.1 and 2. The said

petition was dismissed. Plaintiff Nos.1 and 2 are being

married daughters and they are not the co-parceners.

Hence, there is no cause of action to file a suit. Hence,

prayed to dismiss the suit.

5. Defendant No.2 filed the written statement

contending that Chinna Aswathappa gave suit properties

to defendant No.2 under the decree passed in

O.S.No.55/1997. Hence, he became the absolute owner of

the suit schedule properties. Hence, prayed to dismiss the

suit.

6. The trial Court, on the basis of the pleadings of

the parties, framed the issues and additional issues.

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7. The plaintiffs in order to substantiate their case,

plaintiff No.1 was examined as PW.1 and examined one

witness as PW.2 and got marked 12 documents as Exs.P1

to P12. On the other hand, defendant No.1 was examined

himself as DW.1 and examined 03 witnesses as DW2 to

DW4 and got marked 20 documents as Exs.D1 to D20. The

trial Court after recording the evidence of the parties,

hearing both sides and on assessment of oral and

documentary evidence, answered issue Nos.1 to 4 and 6 in

the affirmative, issue No.5 and additional issue Nos.1 to 3

in the negative and issue No.7 as per the final order and

decreed the suit of the plaintiffs declaring that plaintiff

Nos.1 to 3 and defendant No.1 are having 1/4th share each

in all the suit schedule properties and declared that the

decree passed in O.S.No.55/1997 is not binding on the

plaintiffs. The defendants aggrieved by the judgment and

preliminary decree passed by the trial Court, filed the

regular appeal in R.A.No.136/2006 on the file of Senior

Civil Judge, Pavagada.

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8. The First Appellate Court, after hearing the

parties, framed the points for consideration.

9. The first Appellate Court, after re-appreciating

the oral and documentary evidence, answered point Nos.1

and 2 in the negative and point No.3 as per final order.

The appeal was dismissed vide judgment dated

13.02.2015.

10. The defendants aggrieved by the impugned

judgments, have filed this regular second appeal.

11. Heard the learned counsel for the defendants.

12. Learned counsel for the defendants submits

that the courts below have committed an error in granting

1/4th share each to the plaintiffs and defendant No.1. She

also submits that defendant No.2 is born out of void

marriage, but still he is entitled to share in the father's

property as per Section 16(3) of the Hindu Marriage Act,

1955. Hence, the said aspect was not considered by the

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first Appellate Court. Hence, on these grounds, he prays to

allow the appeal.

13. Heard and perused the records and considered

the submissions of the learned counsel for the defendants.

14. It is not in dispute that plaintiff Nos.1 and 2 are

the daughters and plaintiff No.3 is the son of defendant

No.1. Defendant No.2 born to defendant No.1 through his

second wife. Further, it is also not in dispute that the suit

schedule properties are the ancestral joint family

properties of the plaintiffs and defendant No.1. Further,

the plaintiffs and defendant No.1 are the members of the

Hindu undivided family and there is no partition effected

between the plaintiffs and defendant No.1. The plaintiffs,

in order to substantiate their case, plaintiff No.1 was

examined as PW.1 and produced the documents Exs.P1 to

P12 and further, the defendants have taken the defence

that the Chinna Aswathappa had given all the rights in the

suit schedule properties in favour of defendant No.2 by

virtue of a decree passed in O.S.No.55/1997 and further

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claims that the said suit properties are the self acquired

properties of defendant No.2. The trial court, considering

the defence of the defendants, has answered additional

Nos.1 to 3 in para Nos.23 to 25, which read as under:

"23. Reasons for Additional Issue No.1 framed on 29.08.2001: In the cross- examination of DW.4 she admitted she was also present on behalf of the 2nd defendant for putting signature for the compromise decree as per Ex.D16. Further DW.4 deposed that the alleged Chinna Aswathappa who is stated to be uncle of 1st defendants had promise to transfer the suit schedule property in the name of 2nd defendant if she married 1st defendant. Therefore DW.4 admitted Ex.D15 came into force by virtue promise made by alleged Chinna Aswathappa about the marriage with 1st defendant. Here how could it possible for alleged Chinna Aswathappa to promise her by saying that suit schedule properties will be transfer to her son if DW.4 married 1st defendant. This itself goes to show that kept mistress. Further cross-examination of DW.4 it reveals that the name of the Chinna Aswathappa has been mentioned in the mutation and revenue records. DW.4 also deposed the father's name of 1st defendant by name called as Pedda Aswathappa is also mentioned in the voter list. Here DW.4 clearly admitted she has not produced any documents as to show her relationship with Channarayappa. So therefore from the oral evidence of DW.4 in cross-examination it is proved that there were no two Aswathappa's by name Pedda

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Aswathappa and Chinna Aswathappa. Here if actually DW.4 residing and leading life with 1st defendant in the house counstructed in the suit item No.5 at Gangavara village them DW.4 could have deposed the boundaries of the house and also its khatha number. Therefore DW.4 is residing at Kanakapur village as admitted in her cross-examination but not at Gagavara. Therefore the suit schedule properties are not the self-acquired properties exclusively belongs to the alleged uncle Chinna Aswathappa. Accordingly, I answered Additional Issue No.1 in Negative.

24. Reasons for Additional Issue No.2 framed on 29.08.2021: Here in the written statement filed by the defendants 1 and 2 they took contention that alleged Chinna Aswathappa who was the 2nd son of late Channarayappa and given up all his rights in the suit schedule properties to 2nd defendant by virtue of decree in O.S.No.55/1997. Here DW.1 produced Ex.D15 as the decree copy of the compromise petition held on OS.No.55/1997 and Ex.D16 is the compromise petition filed in OS.No.55/1997. Here in this case looking to the plaint copy of OS.No.55/1997 in para second it is stated that the suit schedule properties are the joint family properties and 2nd defendant (1st defendant in this case) was the Kartha of the joint family. Here in the same para two of the plaint in OS.No.55/1997 it is pleaded that about 15 years back the 2nd defendant (1st defendant this case) with an intention to take 2nd wife deserted and neglected the plaintiff (2nd defendant in this case). If actually the suit schedule properties were the self- acquired property of the alleged Chinna

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Aswathappa then what was the necessity to plead that suit schedule properties are the ancestral joint family properties and 2nd defendant (1st defendant in this case) was the kartha of the joint properties. This itself goes to show that there was no Chinna Aswathappa who was stated to be 2nd son of the late Channarayappa. Therefore, the suit schedule properties are not the self-acquired properties of the alleged Chinna Aswathappa. Here persuing the entire oral evidence of DW.1 to 4 their common allegation is that the Sarojamma who is the first wife of the 1st defendant after 4 or 5 years she left out or deserted the 1st defendant and started to lead her life with one Ramanjinappa of Gudisalapalli. Here if actually the DW.4 is the second wife of the 1st defendant, then what was the necessity to plead in the plaint in OS.No.55/1997 stating that the 1st defendant in this case as 2nd defendant in OS.No.55/1997 is going to marry the second wife by deserting the plaintiff (2nd defendant in this case) in OS.No.55/1997. This itself goes to show that the 1st defendant in order to knock of and to deprive the legitimate share of the plaintiffs 1 to 3 with collusion of the plaintiff (2nd defendant in this case) in OS.No.55/1997 compromised and obtained the compromise decree as per Ex.D15 and D16. Here the only father of the 1st defendant Aswathappa was alive while OS.No.55/1997 filed. After the death of father of the 1st defendant Aswathappa on 10.12.1997 then compromise held in collusion with 1st defendant in this case with plaintiff (2nd defendant in this case) in OS.No.55/1997. Therefore soon after the death of Aswathappa the name of the 1st defendant got mutated in

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mutation extract and revenue extracts as per Ex.D1 to D11 and Ex.P1 and P2. Here Ex.D4 to D6 are the original registered sale deed and Hakkupathra stood in the name of Aswathappa. Therefore perusing the Ex.D4 to D7 it is proved that only Aswathappa who was eldest son of late Channarayappa in his name suit items 1 to 4 have been purchased during the lifetime of late Channarayappa. After death of Channarayappa the 1st defendant succeeded over the suit schedule properties by way of succession. Here the 1st defendant, after the death of Aswathappa became a sold surviving co-parcener. Because already the Sanjeevappa who was the brother of Aswathappa died without marriage and issues. Therefore the only legal heir remained was the Aswathappa who was the father of the 1st defendant. The Ex.D7, which is the item No.2 purchased in the name of Sanjeevappa after his death the name of his only brother Aswathappa who is the father of the 1st defendant got mutated in respect of item No.2 as per Ex.D9. Therefore the suit schedule properties are the ancestral st properties of the 1 defendant and not the self-acquired properties of the alleged Chinna Aswathappa and he had no any rights over suit properties to compromise of the 2nd defendant in this case as plaintiff in OS.No.55/1997 before Pavagada Court. Here if actually alleged Chinna Aswathappa was the second son of late Channarayappa he had to make some arrangements by way of giving money to his own daughters by name Laxminarasamma, Vasanthamma and Venkatalaxmamma as stated by DW.3 and DW.4 nowhere whispered about the any arrangements made to them by alleged

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Chinna Aswathappa before the compromise to be held in between the T.Anjaiah as plaintiff in OS.No.55/1997 and 1st defendant nd Ramanjinappa as 2 defendant in OS.No.55/1997. Therefore from the oral evidence of DW 1 to 4 they utterly failed to prove late Channarayappa had 3 sons either by relying the oral evidence or documentary evidence. Here no single scrap of paper purchased by the defendants as to establish the alleged Chinna Aswathappa was the second son of late Channarayappa. Under such circumstances the compromise decree held in OS.No.55/1997 in between the 1st and 2nd defendant in his case and 2nd defendant and plaintiff in OS.No.55/1997 is only to defraud and deprive the legitimate share of the plaintiff 1 to 3 in all the suit schedule properties in this case. Therefore, I answered Additional Issue No.2 in Negative.

25. Reasons for Additional Issue No.3:

It is the burden lies on the 2nd defendant as to prove he is the legitimate son of the 1st defendant Ramanjinappa and it is also burden lies on the 2nd defendant as to prove the marriage held in between Sanjeevamma and 1st defendant as he born to Sanjeevamma through 1st defendant. Here I have elaborately given reasons while answering issue No.1 stating that as admitted by DW.1 to 4 the Sarojamma who is the nature guardian of the plaintiff of 1 to 3 is the first wife of 1st defendant. Here during the subsistence of marriage in between st rd Sarojamma and 1 defendant the 3 plaintiff offspring and as legitimate son of the 1st defendant unless the 1st defendant proves there was non-access and no cohabitation

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since long time with the Sarojamma after 1st and 2nd plaintiff born to Sarojamma through him. Here in the written statement filed by the 1st defendant nowhere it is pleaded that he married Sanjeevamma as second defendant by name Sanjeevamma nowhere pleaded in her written statement that after Sarojamma deserted the 1st defendant she married 1st defendant as second wife. When such being the real truth then how could DW.1 stated in his chief-examination that alleged Chinna Aswathappa got performed his marriage with Sanjeevamma (DW.4) in the year 1985. Here there is no any such pleadings in the written statement filed by 1st and 2nd defendant stating that after Sarojamma deserted 1st defendant, he married Sanjeevamma (DW.4) with intervention of alleged Chinna Aswathappa who was stated to be uncle of the 1st defendant and second son of late Channarayappa. Here oral evidence of DW.2 he deposed that has not attended the second marriage of 1st defendant held with Sanjeevamma. Further DW.2 deposed he doesn't know the father, mother and brothers and sisters of Sanjeevamma. Here could it not possible to depose for DW.4 the names of the father, mother, brothers and sisters of Sanjeevamma when mother of DW.2 and mother of DW.1 are the own sisters as admitted in chief-examination of DW.2. Therefore there was no any second marriage of the 1st held with one Sanjeevamma (DW.4). Here if actually DW.4 is the relative of late Channarayappa then DW.2 could have deposed the relation of DW.4 with late Channarayappa. Because in the chief- examination of DW.4 she deposed that she is

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the great grand daughter of Channarayappa. SO therefore, DW.2 adduced his oral evidence only to protect the interest of the 1st defendant but not real truth."

15. And held that the defendants have failed to

establish that Chinnappa Aswathappa had given all rights

in the suit schedule properties to the defendants by virtue

of a decree passed in O.S.No.55/1997 and also held that

the defendants have failed to prove that the suit schedule

properties are the self acquired properties of defendant

No.2. The trial Court was justified in decreeing the suit of

the plaintiffs. The first Appellate Court on reappreciation of

oral and documentary evidence on record was justified in

dismissing the suit. I do not find any substantial question

of that arises for consideration in this appeal.

16. In view of the aforesaid facts and circumstances,