Karnataka High Court
Puttegowda vs Sannamma on 6 August, 2024
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RSA No. 2098 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF AUGUST, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO.2098 OF 2011 (DEC)
BETWEEN:
PUTTEGOWDA
S/O RAMEGOWDA,
SINCE DEAD BY HIS LR'S
1. SMT. PUTTAMMA
W/O LATE PUTTEGOWDA
AGED ABOUT 68 YEARS
2. SRI. RAMESH D.P
S/O LATE PUTTEGOWDA
AGED ABOUT 40 YEARS
THE APPELLANTS No.1 AND 2 ARE
R/AT DASARAKOPPALU VILLAGE
Digitally HALLYMYSORE HOBLI
signed by R
DEEPA HOLENARASIPURA TALUK
HASSAN DISTRICT - 573 211.
Location:
HIGH COURT
OF 3. SMT. YASHODHA
KARNATAKA W/O RANGASWAMY
AGED ABOUT 48 YEARS
R/AT No.22, 4TH MAIN
CEIS LAYOUT, BOGADI 2ND STAGE
MYSURU - 570 026
4. SMT. GOWRAMMA @ INDIRA
W/O RAJU
AGED ABOUT 44 YEARS
BEKKERE VILLAGE
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RSA No. 2098 of 2011
PERIYAPATNA TALUK
MYSORE - 571 107.
5. SMT. LALITHA
W/O SURESH
AGED ABOUT 36 YEARS
R/AT 'K' BLOCK
R.K. NAGAR, MYSURU.
...APPELLANTS
(BY SRI. H.D. SOMESHA, ADVOCATE FOR
SRI. RAJARAM SOORYAMBAIL, ADVOCATE FOR A2-A5
SMT. M.R. MAMATHA, ADVOCATE FOR A1-A5)
AND:
1. SANNAMMA
W/O KALEGOWDA,
AGED ABOUT 66 YEARS,
R/S THATHANAHALLY VILLAGE,
HALLYMYSORE HOBLI,
HOLENARASIPURA TALUK 573211.
2. SMT. KALAMMA
W/O DYAVEGOWDA,
SINCE DEAD BY LEGAL REPRESENTATIVE'S
2(A) SMT. JAYAMMA
W/O PUTTEGOWDA
DEVARAMUDDANAHALLI VILLAGE
SAVANURU POST, HALLIMYSORE HOBLI
HOLENARASIPURA TALUK
HASSAN DISTRICT.
2(B) SMT. PUTTALAXMI
W/O RAJEGOWDA
MANUGANAHALLI VILLAGE
SEEGOL POST, SALIGRAMA HOBLI
K.R. NAGARA TALUK, MYSURU DISTRICT.
2(C) SMT. SUNANDA
W/O LATE RAMACHANDRA, MAJOR
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RSA No. 2098 of 2011
2(D) MISS. HARSHITHA
D/O LATE RAMACHANDRA
2(E) MASTER KIRAN
S/O LATE RAMACHANDRA
MINOR
SINCE REP. BY HIS MOTHER, SMT. SUNANDA
RESPONDENT 2(C) AND 2(D) ARE
R/AT SOMANAHALLI VILLAGE
HALLI MYSORE HOBLI
HOLENARASIPURA TALUK
...RESPONDENTS
[BY SRI. VIJAY KUMAR T., ADVOCATE FOR R1
R2(A), R2(C), R2(D) ARE SERVED
R2(E) IS MINOR REP. BY R2(C)
V/O DATED 11.04.2022 NOTICE TO R2(B) H/S]
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE ORDER DATED 8.9.2011 PASSED IN R.A.NO.18/2010 ON
THE FILE OF THE SENIOR CIVIL JUDGE & JMFC.,
HOLENARASIPURA, ALLOWING THE APPEAL AND SETTING
ASIDE THE JUDGMENT AND DECREE DATED 2.8.2010 PASSED
IN O.S.NO.180/1995 ON THE FILE OF THE CIVIL JUDGE &
JMFC., HOLENARASIPURA.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI
ORAL JUDGMENT
This regular second appeal is filed by the appellant
challenging the judgment and decree dated 08.09.2011,
passed in R.A.No.18/2010 by the Senior Civil Judge,
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Holenarisipura, setting aside the judgment and decree
dated 02.08.2010, passed in O.S.No.180/1995 by the Civil
Judge & JMFC, Holenarasipura.
2. For the sake of convenience, parties are
referred to as per their ranking before the trial Court. The
appellant is the defendant No.1 who died during the
pendency of this appeal and his legal representatives are
brought on record. Respondent No.1 is the plaintiff;
respondent No.2 is defendant No.2 who died during the
pendency of the suit and her legal representatives are
brought on record.
3. The brief facts leading rise to filing of this
appeal are as under:
Plaintiff filed a suit for partition and separate
possession. It is the case of the plaintiff that one
Ramegowda was the original propositus. He had a wife by
name Sannamma and both of them had 3 children i.e.,
plaintiff and defendants No.1 and 2. It is the case of the
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plaintiff that, the suit schedule property is the self-
acquired property of the plaintiff's father. The parents of
the plaintiff's father got the suit property through
darakasth. After the demise of father of the plaintiff, said
property was transferred in the name of plaintiff's mother.
The mother of the plaintiff died leaving behind the plaintiff
and defendants No.1 and 2. She executed a gift deed in
favour of defendant No.1. It is contended that, the
mother has no right to execute registered gift deed in
respect of the suit schedule property. It is contended that,
the plaintiff being the coparcener is entitled for the share
in the suit schedule property. Hence the plaintiff
demanded for partition and separate possession. The
defendants refused to effect partition. Hence cause of
action arose for the plaintiff to file the suit for partition and
separate possession.
4. Defendant No.1 filed written statement
admitting the relationship between the plaintiff and
defendants and it is contended that the parents of plaintiff
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and defendants died long back. The father of the plaintiff
performed the marriage of plaintiff and defendant No.2
and the plaintiff married about 40 years back and residing
in her husband's house and it is contended that, the
plaintiff is not entitled for share in the suit schedule
property. On these grounds sought for dismissal of the
suit.
5. The Trial Court, on the basis of the above said
pleadings, framed the following issues:
(1) Whether the plaintiff proves that the suit
schedule property is the self acquired
property of her deceased mother by name
Sannamma as alleged?
(2) Whether the plaintiff proves that she is the
absolute owner of the suit schedule
property as alleged?
(3) Whether the plaintiff is entitled for Mesne
Profits U/O 20 Rule 12 of CPC? If so, at
what rate?
(4) Whether the plaintiff is entitled for the relief
of declaration, partition and separate
possession to an extent of 1/3rd share in
the schedule property as prayed for?
(5) What order or decree?
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6. In order to prove the case of the plaintiff, the
plaintiff examined herself as PW-1 and got marked 7
documents as Exs.P1 to P7. In rebuttal, defendant No.1
examined as DW-1 and got marked 4 documents as
Exs.D1 to D4. The trial Court after assessing the oral and
documentary evidence of the parties, answered issue
Nos.1 to 4 in the negative; and issue No.5 as per the final
order. The suit of the plaintiff was dismissed vide
judgment dated 02.08.2010.
7. The plaintiff aggrieved by the dismissal of the
suit, filed an appeal in R.A.No.18/2010. The First
Appellate Court, after hearing the parties, has framed the
following points for consideration:
(1) Whether the plaintiff / appellant proves that
the suit schedule property is a joint family
property or co-parcenery property?
(2) Whether the plaintiff is entitled 1/3rd share
in the suit property?
(3) Whether the respondent No.1 proves that
the plaintiff and defendant No.2 were
married prior to 1956?
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(4) Whether the judgment and decree of the
trial Court is erroneous, opposed to law,
facts, evidence on record and liable to be
set aside or varied?
(5) What order?
8. The First Appellate Court, after hearing the
learned counsel for the parties and on re-assessing the
oral and documentary evidence, answered point Nos.1, 2
and 4 in affirmative; point No.3 in negative; and point
No.5 as per the final order. The first Appellate Court
allowed the appeal and set aside the judgment and decree
passed by the trial Court and suit of the plaintiff was
decreed. It is held that the plaintiff is entitled for 1/3rd
share in the suit schedule property by metes and bounds.
It is also held that the plaintiff is entitled for mesne profits
under Order XX Rule 12 of CPC and directed to initiate
separate proceedings for mesne profit. The defendant
No.1, aggrieved by the impugned judgment and decree
passed by the first Appellate Court, has filed this second
appeal.
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9. This court admitted the appeal on 08.01.2024,
to consider the following substantial question of law :
"Whether the Appellate Court has
committed error in holding that the plaintiff is
entitled for 1/3rd share in the suit schedule
property?"
10. Heard learned counsel for the parties.
11. Learned counsel for the defendant No.1 submits
that the plaintiff married about 40 years back. She is not
entitled for equal share in the suit schedule property and
the first Appellate Court has committed an error in
granting 1/3rd share to the plaintiff since the suit schedule
property was granted in favour of the father of the plaintiff
and defendants. Hence on these grounds, prays to allow
the appeal.
12. Per contra, learned counsel for the plaintiff
submits that the plaintiff being the daughter of late
Ramegowda, in view of amendment to Section 6 of the
Hindu Succession (Amendment) Act, 2005, the daughters
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become the coparceners in their own right in the same
manner as the son and they have the same rights in the
coparcenary property as they would have had if they had
been sons. Admittedly the suit schedule property was
granted in favour of plaintiff's father and there is no
partition effected between the plaintiff and the defendants
and they are the members of Hindu undivided family. He
submits that the plaintiff is entitled for equal share in view
of the law laid down by the Hon'ble Apex Court in the case
of VINEETA SHARMA VS. RAKESH SHARMA reported in AIR
2020 SC 3717. Hence on these grounds, prays to
dismiss the appeal.
13. Perused the records and considered the
submissions of learned counsel for the parties.
14. SUBSTANTIAL QUESTION OF LAW: There is no
dispute in regard to the relationship between the plaintiff
and the defendants and there is also no dispute that the
suit schedule property was granted under darakasth in
favour of the father of plaintiff and further the plaintiff and
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the defendants are the members of Hindu undivided family
and there is no partition effected between the plaintiff and
defendants. The plaintiff in order to substantiate her case,
examined herself as PW-1 and got marked Exs.P1 to P7.
Ex.P1 is the registered gift deed alleged to have been
executed by her mother in favour of defendant No.1;
Ex.P2 is the RTC extract; Ex.P3 is the record of rights;
Ex.P4 is the index of land; Ex.P5 is the RTC extract; Ex.P6
is the record of rights; Ex.P7 is the index of land.
15. In the course of cross-examination, it was
suggested to PW-1 that the suit land is the self-acquired
property of the mother of the plaintiff. The said fact was
denied by PW-1 and further it is suggested that defendant
No.1 became the absolute owner by virtue of Ex.P1.
16. In rebuttal, defendant No.1 examined himself
as DW-1 and he reiterated the written statement
averments in the examination-in-chief and got marked
Ex.D1, the grant certificate which discloses that the said
land was granted in the name of Ramegowda, i.e., father
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of defendants No.1 and 2; Ex.D2 is the RTC extract in
respect of the suit property standing in the name of father
of plaintiff and defendants; Ex.D3 and D4 are the voters
list.
17. From the perusal of the overall evidence of
plaintiff and defendant No.1, Ex.D1 is the grant certificate
which clearly discloses that the suit schedule property was
granted in favour of father of plaintiff and defendants. The
father of the plaintiff and defendants died leaving behind
the plaintiff and defendants as his legal heirs. The said
Ramegowda died intestate. The said property devolved
upon the plaintiff and defendants. The plaintiff and
defendants are entitled for equal share as per Section 8 of
the Hindu Succession Act. Admittedly, there is no
partition effected between the plaintiff and defendants.
The first Appellate Court considering the overall evidence
of the parties, held that the suit schedule property is the
joint family property of the plaintiff and the defendants
and rightly granted 1/3rd share to the plaintiff. The first
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Appellate Court was justified in passing the impugned
judgment. Hence I do not find any error in the impugned
judgment. Accordingly, I answer the substantial question
of law in the negative.
18. In view of the above discussion, I proceed to
pass the following:
ORDER
The appeal is dismissed.
The judgment dated 08.09.2011, passed
by the first Appellate Court in R.A.No.18/2010,
is hereby confirmed.
No order as to the costs.
Sd/-
(ASHOK S. KINAGI)
JUDGE
RD
