Karnataka High Court
Smt.Susheelamma vs Sri.Munishamappa on 1 February, 2024
-1-
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RFA No. 1106 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE C M JOSHI
REGULAR FIRST APPEAL NO. 1106 OF 2014 (PAR)
BETWEEN:
SMT.SUSHEELAMMA,
WIFE OF B.S.KRISHNAPPA,
AGED ABOUT 48 YEARS,
RESIDING AT BHUVANAHALLI,
KASABA HOBLI, MALUR TALUK,
KOLAR DISTRICT - 563 130.
...APPELLANT
(BY SRI Y.R.SADASIVA REDDY, SENIOR ADVOCATE FOR
SRI RAHUL S. REDDY AND SUNANDA SARKAR, ADVOCATES)
AND:
1. SRI.MUNISHAMAPPA,
SON OF LATE DODDASEETHAPPA,
SINCE DIED BY LR'S
1(A) SMT. MUNIYAMMA,
Digitally signed W/O LATE MUNISHAMAPPA,
by AGED ABOUT 75 YEARS,
ANNAPURNA G R/AT BELAMANGALA VILLAGE,
Location: High JADIGENAHALLI HOBLI,
Court of HOSAKOTE TALUK,
Karnataka BANGALORE RURAL DISTRICT - 562 114.
2. SRI. RAMAKRISHNAPPA,
SON OF MUNISHAMAPPA,
AGED ABOUT 61 YEARS.
3. SRI. NAGARAJAPPA
SON OF MUNISHAMAPPA,
AGED ABOUT 52 YEARS.
ALL ARE RESIDING AT
BELAMANGALA VILLAGE,
-2-
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RFA No. 1106 of 2014
JADIGENAHALLI HOBLI, HOSAKOTE TALUK,
BANGALORE RURAL DISTRICT- 562 114.
4. SRI. MUNIRAJU,
AGED ABOUT 42 YEARS,
SON OF LATE KOLATHURAPPA,
BELAMANGALA VILLAGE,
JADIGENAHALLI HOBLI,
HOSAKOTE TALUK,
BANGALORE RURAL DISTRICT.
...RESPONDENTS
(BY SRI.M.A. VENUGOPAL ADVOCATE FOR R1(A);
SRI K.P. THRIMURTHY, ADVOCATE FOR R2;
SRI K.N. SHIVA REDDY, ADVOCATE FOR R3;
R4 SERVED AND UNREPRESENTED)
THIS RFA IS FILED UNDER SEC.96 R/W ORDER 41 RULE (1)
OF THE CPC., AGAINST THE JUDGMENT AND DECREE DATED
30.04.2014 IN O.S.NO.401/2010 ON THE FILE OF PRESIDING
OFFICER, FTC-II, BANGALORE RURAL DISTRICT, BANGALORE,
DISMISING THE SUIT FOR PARTITION AND SEPERATE POSSESSION.
THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard Sri Y.R.Sadasiva Reddy, learned Senior Counsel for
Sri Rahul S. Reddy and Sunanda Sarkar, for the appellant and
Sri K.P.Thrimurthy, learned counsel for respondent No.2.
2. Being aggrieved by the judgment in
O.S.No.401/2010, passed by Presiding Officer, FTC II
Bangalore Rural District, Bangalore, dated 30.04.2014, the
plaintiff is before this Court in the appeal.
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3. The plaintiff who was the daughter of defendant
No.1-Munishamappa and sister of defendant Nos.2 and 3, filed
a suit for partition before the trial Court contending that the
suit schedule properties are joint family ancestral properties
and she had been deprived of her share in the same.
4. It was contended that the joint family possess
immovable properties which are ancestral and some of the
properties there were tenancy rights and they were cultivated
by the ancestors and accordingly, occupancy rights would be
granted in the name of defendant No.1. She claimed the joint
possession and enjoyment of the joint family properties and
therefore, she is entitled for equal share. It was also alleged
that defendant No.3-Nagarajappa had filed the
O.S.No.204/1993 before the Civil Judge, Senior Division,
Bangalore Rural District for partition, after contest, the said suit
came to be decreed on 17.09.1996, in which, Nagarajappa was
held to be entitled for 1/3rd share in the ancestral properties
and he was denied of the share in the tenanted lands as they
were self acquired properties of Munishamappa. Against the
said judgment, defendant No.3-Nagarajappa preferred
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RFA.No.647/1996 and later, it came to be withdrawn on the
ground that the parties have settled the same amicably.
5. In the meanwhile, the plaintiff came to know about
the proceeding in O.S.No.204/1993, in which, she was kept
out, due to the hostile attitude of defendant Nos.1 to 3.
Therefore, she filed O.S.No.696/1996 on 04.09.1996 on file of
the Principal Senior Civil Judge, Bangalore Rural District and it
was opposed by defendant Nos.1 to 3. The said suit came to be
rejected on the preliminary issue that the plaintiff has no rights
in the properties since, she was married earlier to 1994 i.e.,
before the advent of the Karnataka Amendment of Hindu
Succession Act, 1956. Therefore, she could not take any action
in the matter. But later, defendant Nos.1 to 3 did not act in
furtherance of the decree for partition in O.S.No.204/1993, till
date and no final decree proceeding were taken. The properties
continued to be the joint family Properties. Thereafter, in the
year 2005, the provisions of Section 6 of the Hindu Secession
Act., 1956, came to be amended and therefore, she became a
coparcener and as such, she filed the present suit in
O.S.No.401/2010 before the Trial Court contending that she
has 1/4th share in the properties and the same be granted to
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her. It was also contended that the demand made by the
plaintiff for her share were turned down by the defendants and
therefore, she was constrained to file the present suit.
6. Defendant Nos.1 to 3 appeared before the trial
Court and resisted the suit by filing the written statement
contending that in O.S.No.204/1993, the decree has become
final and the plaintiff was not having any manner of right, title
or interest in the suit schedule properties and therefore, the
present suit filed by the plaintiff is not maintainable. It was also
contended that the plaintiff was married more than 20 years
back and at no point of time, she was in possession and
enjoyment of the property. However, the relationship between
the parties was admitted.
7. On the basis of the above pleadings, the following
issues were framed by the trial Court:
"1. Whether the plaintiff proves that, the genealogical tree as
set out by them is proper and correct?
2. Whether the plaintiff proves that, the plaint schedule
properties and ancestral and joint family properties?
3. Whether the defendants prove that the suit is bad for
mis-joinder and non-joinder of necessary parties?
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4. Whether the defendants prove that there was already a
partition of the schedule properties by metes and bounds?
5. Whether the defendants prove that, the court fee paid on
the plaint is not correct and liable to pay the court fee on
advolerem on the market value?
6. To what relief the plaintiff is entitled for?
7. To what orders or decree?"
8. The plaintiff was examined as PW.1 and Exs.P1 to
40 were marked in evidence and no evidence was led on behalf
of the defendants.
9. After hearing the arguments, the trial Court
answered issue Nos.1, 4 and 5 in the affirmative and issue
Nos.2 and 3 in the negative and proceeded to dismiss the suit.
Being aggrieved by the said judgments, the plaintiff is before
this Court in appeal.
10. On issuance of notice, respondent Nos.2 and 3 have
appeared through their counsel. During pendency of the suit,
respondent No.1 i.e., Munishamappa has died and his wife
Muniyamma is brought on record. The trial Court records have
been secured.
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11. Learned counsel for the appellant/plaintiff submits
that the trial Court has dismissed the suit of the plaintiff on the
ground that there was a partition by way of the decree in
O.S.No.204/1993 and therefore, the partition being prior to
coming into force of the amended the provisions of Section 6 of
the Hindu Succession Act, a suit by daughter during lifetime of
her father is not maintainable. It is further submitted that now
defendant No.1-Munishamappa who is none other than the
father of the plaintiff is no more and therefore, the properties
standing in the name of Munishamappa would devolve upon the
legal heirs as per Section 8 of the Hindu Succession Act.
Therefore, he submits that the properties which were standing
in the name of Munishamappa, even according to the decree in
O.S.No.204/1993, would be the self acquired properties of
Munishamappa and they would devolve upon the plaintiff in
equal share. Therefore, to that extent, the decree has to be
passed by setting aside the impugned judgment.
12. Learned counsel for respondent No.2 submit that
the properties which have already vested with defendant Nos.2
and 3 cannot be disturbed in view of the fact that shares are
already determined. He submits that he has no objection to
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divide the properties which had fallen to the share of
Munishamappa and were owned by Munishamappa in his
individual capacity.
13. It is evident that the decree in O.S.No.204/1993
categorically stated that defendant No.3-Nagarajappa is
entitled for 1/3rd share in item Nos.4 to 9 but he is not entitled
for any share in item Nos.1 to 3 of the suit schedule properties
therein, since they are the self acquired properties of
Munishamappa. There cannot be any doubt that the said decree
is not challenged and it has become final. It is an admitted fact
that the appeal filed against the said decree has been
withdrawn by the parties. So also, the reasoning given by the
trial Court that there was a partition much prior to the
provisions of amended act of Hindu Succession Act came into
force also holds good. Obviously, the plaintiff did not have any
right to institute a suit for partition prior coming into force of
the amending provisions of the act. The Karnataka Amendment
of Hindu Succession Act nearly provided a right to daughter at
a partition.
14. Under these circumstances, the reasoning given by
the trial Court in the impugned judgment, cannot be disturbed.
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However, it is an admitted fact that during the pendency of this
appeal, respondent No.1/defendant No.1-Munishamappa died.
As a consequence, the share allotted to defendant No.1 would
have to devolve upon his Clause-I heirs. Hence, the plaintiff,
defendant Nos.2, 3 and defendant No.1(a) are entitled for
equal share. Evidently, Munishamappa possessed item Nos.1 to
3 and 1/3rd share in item Nos.4 to 9 of the schedule property in
O.S.No.204/1993. These item Nos.1 to 3 properties of the
schedule of O.S.No.204/1993 are the item Nos.3, 4 and 8 in
the present suit. Hence, the appeal deserves to be allowed to a
limited portion and hence, the following:
ORDER
The appeal is allowed-in-part.
The appellant/plaintiff is entitled for 1/4th share in item
Nos.3, 4 and 8 of the suit schedule and 1/12th share in rest of
the properties.
Draw decree accordingly.
Sd/-
JUDGE
PTM,NR
