Karnataka High Court
Sri Sann Katappa vs Smt Eramma on 29 February, 2024
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RSA No. 1835 of 2014
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 29TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 1835 OF 2014 (PAR)
BETWEEN:
SRI SANN KATAPPA @ BHEEMAPPA,
SON OF KARIYAPPA,
AGED ABOUT 49 YEARS,
RESIDENT OF CHIKKAMMANAHATTI VILLAGE,
JAGALUR TALUK,
DAVANAGERE DISTRICT.
...APPELLANT
(BY SRI. SIDDAMALLAPPA P M., ADVOCATE)
AND:
1. SMT ERAMMA
WIFE OF SANNA KATAPPA @ BHEEMAPPA,
Digitally signed AGED ABOUT 42 YEARS,
by R DEEPA R/AT ANABUR GOLLARAHATTI VILLAGE,
Location: HIGH ANABUR POST,
COURT OF JAGALUR TALUK,
KARNATAKA DAANAGERE DISTRICT - 577 001
2. KUMARI. K. KATAMMA
DAUGHTER OF SANNA KATAPPA @ BHEEMAPPA,
AGED ABOUT 19 YEARS,
R/AT ANABUR GOLLARAHATTI VILLAGE,
ANABUR POST, JAGALUR TALUK,
DAVANGERE DISTRICT - 577 001
3. SRI. KATAPPA
SON OF KARIYAPPA,
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RSA No. 1835 of 2014
AGED ABOUT 57 YEAR,
RESIDENT OF CHIKKAMMANAHATTI VILLAGE,
JAGALUR TALUK,
DAVANAGERE DISTRICT - 577 001.
4. SMT. KAMALAMMA
WIFE OF SRI MARAPPA
DAUGHTER OF KARIYAPPA
AGED ABOUT 47 YEAR,
RESIDENT OF CHIKKAMMANAHATTI VILLAGE,
JAGALUR TALUK,
DAVANAGERE DISTRICT - 577 001.
...RESPONDENTS
(BY SRI. D.P. MAHESH, ADVOCATE FOR R1 & R2
R3 & R4 ARE SERVED)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 30.7.2014 PASSED IN
R.A.NO.48/2010 ON THE FILE OF THE PRL. SENIOR CIVIL
JUGE, DAVANGERE, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 18.3.2008
PASSED IN O.S.NO.74/2007 ON THE FILE OF THE CIVIL JUDGE
(JR.DN) & JMFC., JAGALUR.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This second appeal is filed by the appellant
challenging the judgment and decree dated 18.03.2008,
passed in O.S.No.74/2007 by the Civil Judge (Jr.Dn.) and
JMFC at Jagalur, confirmed by the judgment and decree
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dated 30.07.2014 passed in R.A.No.48/2010 by the
Prl. Senior Civil Judge at Davanagere.
2. For the sake of convenience, parties are referred
to as per their ranking before the trial Court. The appellant
is defendant No.2, respondent Nos.1 and 2 are plaintiff
Nos.1 and 2 and respondent Nos.3 and 4 are defendant
Nos.1 and 3.
3. The brief facts leading rise to filing of this appeal
are as under:
The plaintiffs filed a suit for partition and separate
possession against the defendants. It is the case of the
plaintiffs, that the plaintiffs and defendants are the
members of Hindu Undivided Family and the suit schedule
properties are the ancestral properties of the plaintiffs and
the defendants. It is contended that defendant No.2 had
acquired the said properties under a registered partition
deed, which took place between defendant Nos.1 and 2.
Further, it is contended that defendant No.2 did not
maintain the plaintiffs. Hence, the plaintiffs filed
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maintenance petition in Crl.Misc.No.32/2006 and the said
miscellaneous petition came to be allowed vide order
dated 24.07.2006, awarding a maintenance amount of
Rs.1,500/- to each plaintiffs from the date of petition. It is
contended that defendant No.2 in order to deprive the
legitimate right of plaintiff No.2, defendant No.2 got
created a nominal partition deed colluding with defendant
No.1. Hence, the plaintiffs approached defendant No.2, but
defendant No.2 refused to effect a partition. Hence, cause
of action arose for the plaintiffs to file a suit for partition
and separate possession claiming half share in the
properties of defendant No.2.
The defendants filed written statement denying the
averments made in the plaint. It is contended that as per
partition deed dated 16.08.2007, the partition was
effected between the defendants and they are in
respective possession of the properties fallen to their
respective share. Hence, prayed to dismiss the suit.
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4. The Trial Court, on the basis of the above said
pleadings, framed the following issues:
Issues
1) Whether the plaintiffs prove that the suit
schedule properties are the joint family
properties of plaintiffs and defendants?
2) Whether plaintiffs further prove that
defendant No.2 neglecting to maintain the
plaintiff No.1 and her daughter plaintiff
No.2 and for that, plaintiff No.1 is entitled
to permanent alimony from him @
Rs.2,000/- per month?
3) Whether the plaintiffs prove that plaintiff
No.2 is having 1/6th share in the suit
schedule properties?
4) Whether the defendants prove that already
partition held between the defendants and
their family members in respect of the suit
schedule properties?
5) Whether the plaintiffs are entitled to get
relief, as prayed?
6) What order and decree?
5. The plaintiffs in order to substantiate their case,
plaintiff No.1 examined himself as PW.1 and examined two
witnesses as PW.2 and PW.3 and got marked 19
documents as Exs.P1 to P19. In rebuttal, defendant Nos.1
and 3 examined themselves as DW.1 and DW.2 and
examined two witnesses as DW.3 and D.W.4 and got
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marked one document as Ex.D1. The trial Court on the
assessment of oral and documentary evidence of the
parties, answered issue Nos.1 to 4 as per final order and
suit of the plaintiff was partly decreed. It is ordered and
decreed that plaintiff No.1 is granted maintenance amount
of Rs.1,000/- per month payable by defendant Nos.2 and
for the same, charge is created over the remaining half
share of the defendant No.2 as her permanent alimony. It
is ordered and decreed that plaintiff No.2 is entitled to get
half share in 2 acres of land in Sy.No.34/6 of
Chikkammanahatti Village i.e., item No.2(d) property and
in 4 guntas allotted to the share of defendant No.2 in suit
schedule item No.2(f) property, as mentioned in Ex.D1
partition deed and she is also entitled to get half share in
the share allotted to defendant No.2 in suit schedule item
Nos.1 and 2(e) properties and copy of Ex.D1 partition
deed is also part and parcel of the decree.
6. Defendant No.2 aggrieved by the judgment and
decree passed in the above said suit, filed an appeal in
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R.A.No.48/2010 on the file of Prl. Senior Civil Judge at
Davanagere. The First Appellate Court, after hearing the
parties, has framed the following points for consideration:
1) Whether lower Court is justified in partly
decreeing the suit O.S.No.74/2007 on
18.03.2008?
2) Whether interference of this Court in the
judgment and decree passed by lower
Court in O.S.No.74/2007 is needed
dismissing the suit as prayed by the
appellant/defendant No.2 in the appeal?
3) Whether interference of this Court in the
judgment and decree passed by lower
Court in O.S.No.74/2007 is needed fully
decreeing the suit as prayed by respondent
No.2/plaintiff No.2 in the appeal?
4) What Order?
7. The First Appellate Court, on re-assessing the
oral and documentary evidence, answered point No.1 in
the affirmative, point Nos.2 and 3 in the negative and
point No.4 as per final order and consequently, dismissed
the appeal filed by defendant No.2 confirming the
judgment and decree passed by the trial Court. Defendant
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No.2 aggrieved by the judgments and decrees passed by
the courts below, has filed this second appeal.
8. Heard learned counsel for defendant No.2.
9. Learned counsel for defendant No.2 submits
that the defendant No.2 has acquired the properties under
a registered partition deed. Hence, the said suit schedule
properties will become the self acquired properties of
defendant No.2. Plaintiff No.2 has no right to claim a share
in the suit schedule properties. He submits that the said
aspect was not considered by the Courts below and
proceeded to pass the impugned judgments. He also
submits that during the lifetime of defendant No.2,
plaintiffs cannot claim a share in the suit schedule
properties. Hence, he submits that the impugned
judgments and decrees passed by the Courts below are
perverse and arbitrary. Hence, on these grounds, he prays
to allow the appeal.
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10. Perused the records and considered the
submissions of the learned counsel for defendant No.2.
11. It is the case of the plaintiffs that defendant
No.2 has acquired the suit schedule properties under a
registered partition deed and the suit schedule properties
are the ancestral properties of plaintiff No.2 and defendant
No.2. Plaintiff No.2 is the member of Hindu Undivided
Family and there is no partition effected between plaintiff
No.2 and defendant No.2. Plaintiff No.2 demanded for
partition and separate possession, but defendant No.2
denied to effect a partition. It is the case of plaintiffs that
defendant No.2 neglected the plaintiffs and did not
maintain the plaintiffs. Hence, the plaintiffs filed a
miscellaneous petition under Section 125 of Cr.P.C., in
Crl.Misc.No.32/2006. The said miscellaneous petition came
to be allowed and Rs.1,500/- per month maintenance was
awarded to each plaintiffs. Thereafter, plaintiff No.2
demanded for partition. In order to establish that the suit
schedule properties are the ancestral properties, plaintiff
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No.1 was examined as PW.1. She has reiterated the plaint
averments in the examination-in-chief. The plaintiffs have
produced the documents i.e., Ex.P1 is the katha extract,
Exs.P2 to P5 are the record of rights, Exs.P6 to P9 are the
land revenue receipts, Exs.P10 and P11 are the mutation
extracts, Exs.P12 to 17 are the RTC extracts, Ex.P18 is the
certified copy of order sheet passed in Crl.Misc.No.8/07,
Ex.P19 is the petition copy. Nothing has been elicited from
the mouth of this witness in the course of cross-
examination. Further, the plaintiffs have also examined
one witness as PW.2. He has deposed that the plaintiffs
are not residing with defendant no.2 since many years. He
does not know whether the defendants partitioned the suit
schedule properties under registered partition deed. PW.3
has also deposed in the same line of PW.2.
12. In rebuttal, defendant Nos.1 and 3 were
examined as DW.1 and DW.2 and got marked one
document as Ex.D1, partition deed. Defendant Nos.1 and 2
have deposed that the partition was effected between
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defendant Nos.1 and 2 and they have executed a
registered partition deed as per Ex.D1 and item No.2(d)
and item No.2(f) was fallen to the share of defendant No.2
in the partition as per Ex.D1.
13. From the perusal of evidence of the plaintiffs
and defendants it is clear that, the suit schedule properties
were acquired by defendant No.2 under a partition deed as
per Ex.D1. The said properties are the ancestral properties
of the plaintiffs and the defendants. As per Section 6 of
the Hindu Succession (Amendment) Act 2005, plaintiff
No.2 being daughter of defendant No.2, is a coparcener, is
entitled for share in the suit schedule properties.
14. Further, the Hon'ble Apex Court in the case of
ARSHNOOR SINGH VS HARPAL KAUR reported in AIR 2019
SC 3098, wherein the Hon'ble Apex Court held that the
male Hindu effected a partition of his inherited property
amongst his sons. The nature of property inherited by his
sons would remain as coparcenery property. In view of law
laid down by the Hon'ble Apex Court though the properties
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were inherited by defendant No.2 under partition deed, it
does not become his self acquired properties but, the
nature of properties inherited by him remains a
coparcenery properties. Admittedly, there is no partition
effected between the plaintiffs and defendant No.2. The
trial Court considering the oral and documentary evidence
was justified in awarding half share to the plaintiffs in the
properties inherited by defendant No.2 under Ex.D1. The
First Appellate Court on reassessment of oral and
documentary evidence has rightly confirmed the judgment
and decree passed by the trial Court. Hence, I do not find
any substantial questions of law that arises for
consideration in this appeal and also I do not find any
error in the impugned judgments.
15. In view of the aforesaid facts and circumstances,
I proceed to pass the following:
ORDER
The appeal is dismissed.
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The impugned judgments and decrees
passed by the Courts below are hereby
confirmed.
No order as to the costs.
In view of dismissal of appeal, I.A.No.1/2014 does
not survive for consideration.
Sd/-
JUDGE
SSB
