Karnataka High Court
Smt Lakshmamma vs Smt Sudhamani on 15 February, 2024
Author: Krishna S Dixit
Bench: Krishna S Dixit
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RFA No.669 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE KRISHNA S DIXIT
AND
THE HON'BLE MR JUSTICE G BASAVARAJA
REGULAR FIRST APPEAL NO.669 OF 2014 (PAR)
BETWEEN:
1. SMT LAKSHMAMMA,
W/O MUNIYANNA,
AGED ABOUT 70 YEARS,
2. SMT. SUSHEELA
W/O AANJINAPPA,
AGED ABOUT 35 YEARS,
3. KUMARI SHALINI.N.A
D/O AANJINAPPA
AGED ABOUT 17 YEARS,
BEING MINOR REPRESENTED BY
HER MOTHER AND NATURAL GUARDIAN
SMT. SUSHEELA
Digitally signed by
SANDHYA S
Location: High 4. MASTER VIKAS,
Court of Karnataka S/O AANJINAPPA,
AGED ABOUT 15 YEARS,
BEING MINOR REPRESENTED BY
HER MOTHER AND NATURAL GUARDIAN
SMT. SUSHEELA
5. N.M.SHIVANNA,
S/O MUNIYANNA,
AGED ABOUT 38 YEARS,
6. SRI.N.M.ASHOK
S/O MUNIYANNA
AGED ABOUT 35 YEARS,
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RFA No.669 of 2014
7. SRI.N.KEMPEGOWDA
S/O MUNIYANNA
AGED ABOUT 32 YEARS,
THE APPELLANTS NO.1 TO 7 ARE
R/AT NAGENAHALLI POST,
SINGANAYAKANAHALLI POST,
YELAHANKA HOBLI, BANGALORE-560063
...APPELLANTS
(BY SRI. S.P.SHANKAR, SENIOR COUNSEL A/W
SRI. NAGARAJA S., ADVOCATE)
AND:
1. SMT SUDHAMANI
W/O B.NARAYANAPPA
AGED ABOUT 48 YEARS,
2. SRI.N.KIRAN KUMAR GOWDA
S/O B.NARAYANAPPA
AGED ABOUT 23 YEARS,
3. KUMARI N.SOUMYA
D/O B.NARAYANAPPA
AGED ABOUT 19 YEARS,
4. SMT.ANUSUYAMMA
W/O B.CHANDRAPPA,
AGED ABOUT 51 YEARS,
5. SMT.KAVITHA.N.C
D/O B.CHANDRAPPA,
AGED ABOUT 26 YEARS,
6. SMT.SAVITHA.N.C
D/O B.CHANDRAPPA,
AGED ABOUT 26 YEARS,
7. SMT.SUNITHA.N.C
D/O B.CHANDRAPPA,
AGED ABOUT 22 YEARS,
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RFA No.669 of 2014
ALL THE RESPONDENTS
R/AT NAGENAHALLI VILLAGE
SINGANAYAKANAHALLI POST,
YELAHANKA HOBLI,
BANGALORE-560063.
...RESPONDENTS
(BY SRI. PHANIRAJ KASHYAP, ADV. FOR R1 TO R3,
SRI. M.V.JAYAKEERTHI, ADVOCATE FOR R4 TO R7.)
THIS RFA IS FILED UNDER SEC.96 OF CPC AGAINST THE
JUDGMENT AND DECREE DATED 6.3.2014 PASSED IN
O.S.NO.952/2010 ON THE FILE OF THE PRESIDING OFFICER,
FAST TRACK COURT-II, BANGALORE RURAL DIST, BANGALORE,
DECREEING THE SUIT FOR PARTITION & SEPARATE
POSSESSION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, KRISHNA S. DIXIT J., DELIVERED THE FOLLOWING:
JUDGMENT
The appellants being the defendants in a Partition
Suit in O.S.No.952/2010 have presented this appeal for
laying a challenge to the judgment & decree dated
06.03.2014 entered by the learned Judge of Fast Track
Court-II, Bengaluru Rural District, Bengaluru whereby the
suit having been decreed in terms of the plaint prayer and
no share in the property is granted to them.
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2. BRIEF FACTS OF THE CASE:
(a) Respondents 1, 2 & 3 had filed the subject suit
for a decree of partition & separate possession of their
one-half share in the suit schedule properties. The
appellants being the Defendant Nos. 5 to 11 had filed the
Written Statement resisting the suit. On the basis of
pleadings of the parties and the documents accompanying
the same, learned Judge had framed as many as three
principal issues that related to nature of the suit property,
earlier partition as pleaded by these appellants and the
valuation of the property for the purpose of jurisdiction &
court fee.
(b) From the side of Plaintiffs, the 2nd respondent
herein being the 2nd Plaintiff in the court below got himself
examined as PW-1; in his deposition as many as 24
documents came to be marked as Exhibits P-1 to P-24, of
them P-1 & P-2 were genealogical trees and P-3 was a
certified copy of registered Sale Deed dated 28.02.1960.
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Ex.P-4 was death certificate of B.Narayanappa, Ex.P-5 to
P-14 were RTCs; P-15 to P-22 were medical reports; P-23
& P-24 were the Police Complaints.
(c) From the defendant's side the 7th appellant
herein Mr.Kempegowda who was Defendant No.11 in the
suit got examined as DW-1 and 13 documents came to be
marked in his deposition as Exhibits D-1 to D-13. Ex.D-1,
D-3 & D-4 were the registered sale deeds respectively
dated 03.11.2004, 20.11.1935 & 28.02.1967; Ex.D-2
happened to be the geanological tree; Ex.D-5 was
Panchayat Parikath dated 22.07.2004; Ex.D-6 to D-8 are
Mutation Register extracts; Ex.D-9 to D-13 were RTCs.
(d) Learned Trial Judge having heard the
submissions of both the sides and having considered
pleadings of the parties made evidentiary material on
record, has granted the judgment & decree that are put in
challenge.
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3. Learned Sr. Advocate appearing for the
appellants vehemently argues that his clients too being
the persons claiming under the then coparceners, ought to
have been granted one share since they were one of the
three branches of the family and therefore to the extent of
denial of any share, the impugned judgment & decree are
unsustainable. In support of this contention he pressed
into service the earlier partition at Ex.D-5 dated
22.07.2004 in support of his contention. He drew our
attention to the family tree vide Ex.D-1. Learned counsel
appearing for the respondents vehemently contest the
assertion of the appellants drawing attention to the
admission of the appellants side in para 6. They also take
us to the evidentiary material discussed by the learned
Trial Judge and seek dismissal of the appeal.
4. Having heard the learned counsel for the parties
and having perused the appeal papers along with the
original LCR, we decline indulgence in the matter. Firstly,
the court below having considered the pleading of the
parties and weighed evidentiary material has recorded the
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impugned findings. Originally the suit properties
belonged to one Mr.Chikkakempanna and Mr.Byanna who
were the ancestors of Appellants. These two persons had
sold the suit properties to Annayappa vide registered sale
deed dated 20.12.1935; one Mr.Byrappa bought the very
same properties from Annayappa vide registered sale deed
dated 28.02.1960. This Byrappa had married
Smt.Muniyamma. Mr.Muniyanna is the brother of
Smt.Muniyamma. Therefore he cannot be a coparcener
of Byrappa's family. This sale deed does not say anything
about Muniyanna at all. The contention that Mr.Byrappa
had bought the property for the benefit of the joint family
is not vouched by any evidence whatsoever. Merely
because Muniyanna being a brother-in-law was permitted
to reside in the house of Byrappa, he does not partake the
character of coparcener/co-owner, as rightly held by the
court below. That being the position, the suit schedule
properties have devolved upon the plaintiffs and defendant
nos. 1 to 4 being the grand children of deceased Byrappa.
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5. There is absolutely no material to vouch the
version of the appellants that they too claim under
Byrappa. Admittedly appellant no.1 happens to be the
widow of Muniyanna; appellant nos.5, 6 & 7 claim under
this couple. Muniyanna is none other than Byrappa's
brother-in-law i.e., the brother of Smt.Muniyamma. If
that be the position, it is un-understandable as to how
Muniyanna could become a coparcener of the family of
Byrappa, merely because he was residing with the said
family.
6. It is specifically admitted from the side of
appellants in the cross-examination of their witnesses that
pursuant to registered sale deed dated 20.12.1935 that
was marked as Ex.P-3, Byrappa took possession of the
scheduled property from Mr.Anayappa. Even the
Panchayat Parikhat at Ex.D-5 heavily banked upon by the
appellants does not contain Muniyanna's signature. It
also does not say about Muniyanna being a member of the
joint family. If Narayanappa and Chandrappa who
happen to the sons of Byrappa had executed Ex.D-5 as
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contended by these appellants, the name of Muniyanna
who was still alive as on that day would have figured in
the said document as rightly observed by the court below.
Ex.D-5 is disbelieved by the Court below because
Narayanappa was shown to be a man of LTM and not any
signature. Even in Ex.D-1 which is a registered sale deed
dated 03.11.2004, Narayanappa had affixed his LTM and
not signature, whereas document at Ex.D-5 admittedly
does not bear any LTM, but carries some signature
purporting to be of Naryanappa. Strangely, Ex.D-1 is
produced by none other than DW-1 Mr.Kempegowda who
happens to be appellant no.7 herein and was defendant
no.11 in the suit. This apart, the said document is not
registered. There is absolutely no explanation as to why
this document does not mention anything about
Muniyanna, who according to the appellants herein was a
member of coparcener.
7. Learned Sr. Advocate pressed into service the
Apex Court decision in KALE & OTHERS vs. DEPUTY
DIRECTOR OF CONSOLIDATION, AIR 1976 SC 807 to
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contend that the memorandum of family arrangement
even when not registered, will be binding upon the parties
thereto if the same has been acted upon. The decision in
TULASIDHARA vs. NARAYANAPPA, (2019) 6 SCC 409
only reiterates the said proposition. There is no quarrel
with this proposition of law. But, the Panchayat Parikhat
at Ex.D-5 having not been proved, there is no scope for
invoking the ratio of this decision. Even if Muniyanna was
not having any antecedent title to the suit property,
arguably a share could have been given to him had he
been shown to be a member of the family in whose veins
the blood of plaintiffs ancestors was flowing. However,
that is not the case since he happen to the brother of
Muniyamma who was wife of Byrappa. Even aliya
santaana law or the like also would not come to the aid of
appellants since they are not from Dakshina Kannada or
Kerala region wherein such a law obtains; added,
Muniyanna was not the son-in-law of Byrappa but his
brother-in-law.
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In the above circumstances, this appeal being
devoid of merits is liable to be dismissed and accordingly it
is.
Sd/-
JUDGE
Sd/-
JUDGE
LNN
