Karnataka High Court
Mr K J Mathew vs Smt K J Elsy on 3 January, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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RSA No. 673 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 673 OF 2018 (PAR)
BETWEEN:
MR K J MATHEW
S/O LATE THOMAS JOHN
AGED ABOUT 71 YEARS
POST:GAYYA VILLAGE-571253
SIDDAPUR, VIRAJPET TALUK
SOUTH KODAGU.
...APPELLANT
(BY SRI. G. BALAKRISHNA SHASTRY FOR
SRI. BASAVARAJ GODACHI .,ADVOCATES)
AND:
1. SMT K J ELSY
D/O LATE THOMAS JOHN
Digitally
signed by AGED ABOUT 66 YEARS
SUMA B N R/A NO.490/1
Location: C/O VIJAYALAKSHMI RAMEGOWDA BOGADI
High Court MYSORE-570 026.
of Karnataka
2. SMT K J MARY
W/O LATE SEDU MADHAVAN
AGED ABOUT 72 YEARS
NO.922, "POURNAMI"
3RD STAGE, GOKULAM
MYSORE-570 002.
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RSA No. 673 of 2018
3. SRI K J JOSEPH
S/O LATE THOMAS JOHN
AGED ABOUT 62 YEARS
LECTURER, MANASA GANGOTRI
MYSORE-570 006.
4. SMT K J ANNI SABU
W/O SABU VARGHESE
AGED ABOUT 57 YEARS
NO.10/22, 2ND STAGE
B E M L LAYOUT, SRIRAMPURAM
MYSORE-570 008.
...RESPONDENTS
(BY SRI. MANU PRABHAKAR KULKARNI.,ADVOCATE FOR R1;
R2 & R4- SERVED UNREPRESENTED
R3- SERVICE OF NOTICE DISPENSED WITH
V/O DATED:25.11.2019)
THE REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC, AGAINST THE JUDGMENT AND
DECREE DATED 09.01.2018 PASSED IN RA.NO.02/2015,
ON THE FILE OF THE II ADDL.DISTRICT AND SESSIONS
JUDGE, KODAGU, MADIKERI, SITTING AT VIRAJPET AND
ETC.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RSA No. 673 of 2018
JUDGMENT
This appeal is filed by the defendant No.2 being
aggrieved by the judgment and Order dated 09.01.2018
passed in R.A.No.02/2015 on the file of II Additional
District and Sessions Judge, Kodagu, Madkeri sitting at
Virajpet (hereinafter referred as 'the First Appellate Court')
by which the First Appellate Court while allowing the said
appeal set aside the judgment and decree dated
10.08.2015 passed in O.S.No.50/2009 on the file of Senior
Civil Judge and JMFC, Virajpet by which the suit of the
respondent had been dismissed and consequently decreed
the suit of the plaintiff in part holding that the plaintiff is
entitled for 1/10th share in the suit properties.
2. The above suit in O.S.No.50/2009 was filed by the
plaintiff-respondent No.1 against the appellant and
respondent Nos.2 to 5 for relief of partition and separate
possession for 1/5th share in the schedule properties. It is
the case of plaintiff that she is sister of the defendants and
daughter of one late Thomas John who died intestate
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leaving behind plaintiff and defendants as his legal heirs to
succeed to the suit schedule properties of the late Thomas
John and that same formed joint family properties of the
plaintiff and defendants. The defendant Nos.2 and 3 are
in possession and enjoyment of the suit schedule
properties, receiving all benefits, depriving the plaintiff,
defendant Nos.1 and 4 of their legitimate share therein.
The plaintiff being the daughter of late Thomas John was
entitle of equal share in the suit properties and hence
sought for partition and possession of her 1/5th share in
suit schedule properties.
3. The defendant No.2 filed a written statement
denying the plaint averments and however admitting the
relationship of the parties. It is admitted that the suit
properties were purchased by late Thomas John under
registered deeds of sale. It is contended that in terms of
registered deed of settlement/partition dated 04.03.1987
suit schedule properties were settled by late Thomas John
in his favour, as well as in favour of defendant No.3 on the
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one part, while defendant No.2 and mother Marry John on
the other part. That in the said settlement properties
described in the Schedule 'B' were jointly allotted to
defendant No.2 and his mother Marry John. The said
schedule 'B' comprised of 1.45 acres of land in
Sy.No.175/1, 1.00 acres of land in Sy.No.172/2, 1.39
acres of land in Sy.No.173 and 174/1. The father Thomas
John passed away on 06.09.1992 and their mother Marry
John passed away in the year 1996. That upon the
demise of their mother, defendant No.2 became the
absolute owner of the entire suit Schedule 'B' property. It
is also contended that the plaintiff has been paid
Rs.10,000/- during the year 1994 itself and since the
schedule properties were settled by late Thomas John, the
plaintiff had no share, right, title and interest of the same.
Hence, sought for dismissal of the suit.
4. Defendants No.3 also filed his written statement
admitting the relationship and further contending that as
per the deed of settlement dated 04.03.1987 the said late
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Thomas John had settled the properties in his favour and
defendant No.3 on one part and defendant No.2 and his
mother Marry John on the other part. That the properties
described in Schedule 'A' to the deed of settlement were
allotted to the share of said late Thomas John and
defendant No.3 which comprised of land measuring 2.46
acres of land in Sy.No.175/1, 0.54 acres of land in
Sy.No.173, 2.24 acres of land in Sy.No.174/1 of Guhya
Village and no properties were given to the plaintiff and
defendant No.1 being the daughters of Thomas John and
Marry John. It is also contended that the said late Thomas
John had executed a Will dated 08.07.1991 registered as
document No.4 of 1991-92 in the Office of Sub-Registrar,
Virajpet bequeathing 1/2 of his share in the properties
described in Schedule 'A' to the settlement deed in favour
of defendant No.3 with the direction to defendant No.3 to
pay Rs.10,000/- to the plaintiff in view of her share and
defendant No.3 had paid the same. It is also contended
that by another Will dated 15.10.1991 the said late
Thomas John cancelled the earlier Will dated 08.07.1991
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and bequeathed his 1/2 share in favour of defendant No.3
exclusively. As such the defendant No.3 has become
absolute owner of the entire properties described in
Schedule 'A' to the settlement deed. That the plaintiff had
no share, right, title and interest in the suit schedule
properties. Hence, sought for dismissal of the suit.
5. The Trial Court framed the issues and recorded
evidence the plaintiff examined herself as Pw-1 and
exhibited eight documents, four witnesses have been
examined on behalf of defendants and exhibited seven
documents marked as Ex.D1 to Ex.D7. The Trial Court on
appreciation of evidence, dismissed the suit on the
premise that the plaintiff has claimed equal share in terms
of Section 6 of Hindu Succession (Amendment) Act, 2005
and that since there has been registered partition deed
already executed on 04.03.1987, the suit was not
maintainable and accordingly dismissed the suit.
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6. Being aggrieved by the same the plaintiff
preferred regular appeal in R.A.No.02/2015 on the file of
the First Appellate Court.
7. The First Appellate Court considering the grounds
urged in the appeal framed the points for consideration
and consequently decreed the suit in part declaring that
the plaintiff is entitled for 1/10th share in the suit schedule
properties. Being aggrieved by the same the defendant
No.2 is before this Court in this appeal.
8. This Court by Order dated 12.12.2019 admitted
the appeal for consideration of following substantial
question of law.
"Whether the finding by the appellate
Court on the question of limitation in favour
of the respondent No.1 would be justified in
the light of the undisputed facts of the case
and the decision of the Hon'ble Supreme
Court in the case of Jagatram Vs.
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Varinder Prakash reported in 2006 (4)
SCC 482."
9. Sri.G.Balakrishna Shastry, learned counsel
appearing for Sri.Basavaraj Godachi, learned counsel for
the appellant reiterating the grounds urged in the
memorandum of appeal submits that in terms of deed of
partition dated 04.03.1987 defendant No.2 was allotted
Schedule 'B' properties with the conditions of he clearing
all the outstanding loan of the father late Thomas John.
That the defendant No.2 had accordingly cleared all the
loan and thereby become the absolute owner of the said
property, which fact has not been taken into consideration
by the First Appellate Court. He submits that upon receipt
of Rs.10,000/-, the plaintiff had relinquished all her rights
in respect of schedule properties, as such the plaintiff was
not entitled for any share in the properties. The First
Appellate Court has not properly appreciated the payment
and receipt of Rs.10,000/- in lieu of share of the plaintiff in
respect of schedule properties. The finding of First
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Appellate Court that 1/4th share of Thomas John and
1/4th share of Marry John devolved upon their children
and therefore they are entitled for 1/4th share in schedule
properties was erroneous. Hence, sought for allowing of
the appeal.
10. In response, Sri. Manu Prabhakar Kulkarni,
learned counsel for the respondent No.1 submitted that in
the deed of partition dated 04.03.1987 apparently
Schedule 'A' property was jointly allotted in the name of
father Thomas John and defendants No.3 while property
described as Schedule 'B' was jointly allotted in the name
of mother Marry John and defendants No.2. He submits
that even assuming that the said partition was indeed
executed, defendants Nos.2 and 3 would be entitled for
only 1/4th share each in the schedule properties and
remaining share of the properties which was allotted in the
name of Thomas John and Marry John are available for
partition. He submits that the First Appellate Court has
taken these aspects of the matter and has accordingly
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allotted 1/10th share in favour of the appellant warranting
no interference.
11. Heard. Perused the records.
12. Though the parties are Christians by their faith in
view of notification dated 23.07.1868 which is taken note
of in the case of Alica @ Alice Vs Percival Pelix Pinto
and Others reported in 1962 Mysore Law Journal 146
as well as in the case of Anthappa and others Vs
Distinappa @ Subbanna reported in ILR 2006
Karnataka 1576, the native Christians of the then
Province of Mysore were exempted from applicability of
Indian Succession Act and were governed under the
provisions of Hindu Law. Therefore the Trial Court and the
First Appellate Court had proceeded to consider the case of
plaintiff under the provisions of Indian Succession Act and
there is no dispute with regard to this aspect of the
matter. As rightly taken note of by the Trial Court as well
as the First Appellate Court though, the plaintiff has
claimed that the suit schedule properties are the ancestral
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properties, the documents on record would reveal that the
suit schedule properties were purchased by late Thomas
John under registered deed of sale dated 20.09.1956
consisting of land in Sy.No.174/1 measuring 3 acres 24
guntas, Sy.No.172/2 measuring 1 acre, Sy.No.175/1
measuring 5 acres 18 guntas and Sy.No.173 measuring
0.54 Acres all situated in Guhya Village. The Trial Court
and the First Appellate Court taking note of these material
evidences have came to the conclusion that the suit
schedule properties were self acquired properties of said
Thomas John. The Trial Court and the First Appellate
have also taken into consideration of partition deed dated
04.03.1987, that was executed by Thomas John during his
life time in terms of which aforesaid properties were jointly
allotted in the names of said Thomas John, his wife Marry
John and his sons namely defendant Nos.2 and 3 jointly.
In that property described as schedule 'A' to the said
partition deed have been jointly allotted in the names of
Thomas John and defendant No.3 while schedule 'B' have
been jointly allotted in the names of Marry John and
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defendant No.2. Though, defendant No.3 had tried to set-
up execution of Will dated 08.07.1991 and 05.10.1991 by
Thomas John, it appears that defendant No.3 has not
stepped into the witness box to prove the genuineness or
otherwise of the Will. Defendant No.2 has not set-up any
contention with regard to the will in the written statement.
Further the defendant No.2 is also not beneficiary under
the said Will. The Trial Court dismissed the suit on a
simple ground that there was a registered partition dated
04.03.1987 and in view of the Section 6 of the Hindu
Succession (Amendment) Act, 2005, since there was a
prior partition plaintiff was not entitled to the share in the
property. Accordingly, dismissed the suit.
13. However, the First Appellate Court on further
probe into the matter has held that though defendant
Nos.2 and 3 were able to prove execution deed of partition
dated 04.03.1987, they failed to prove that upon demise
of Thomas John and Marry John in the year 1992 and 1996
respectively, they became the absolute owners to the
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entire extent of the land. The First Appellate Court has
taken into consideration of the fact that in terms of
aforesaid deed of partition, property described in the
Schedule 'A' to the said deed of partition was allotted
jointly allotted in the name of Thomas John and defendant
No.3. While property described in the Schedule 'B' to the
said deed of partition was allotted jointly allotted in the
name of Marry John and defendant No.2. In other words
1/4th of the share each was allotted in the names of
Thomas John, Marry John and defendant Nos.2 and 3
respectively.
14. That since the defendant Nos.2 and 3 have failed
to establish the fact of they becoming the absolute owner
of the entire extent of the land, the First Appellate Court
has come to conclusion that 1/4th each of the share of the
property which was allotted in name of Thomas John and
Marry John (half of entire properties) was available for
partition and thus the plaintiff being the daughter of the
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Thomas John and Marry John was entitled for 1/10th share
of the suit schedule properties.
15. Since the defendants had also contended that the
plaintiff upon receipt of Rs.10,000/- had relinquished her
share, right, title, interest in the suit schedule properties
and said factum of relinquishment not having been proved
in the manner known to law, the First Appellate Court as
rightly allotted 1/10th share in favour of plaintiff.
16. The contention of the appellant that the plaintiff
aught to have filed the suit within twelve years from the
date of demise of the parents would not apply to the facts
of the present case as the portion of the property which
was allotted to the share of the father and mother has
remained undivided and no cogent evidence is led and
proved with regard to plaintiff being excluded from the
properties. In that view of the matter, substantial
question of law raised has to be answered in the
affirmative.
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17. The reasoning assigned by the First Appellate
Court while answering point No.07 at paragraph Nos.28,
29 and 30 of the impugned judgment and Order cannot be
found fault with.
18. There appears to be no irregularities or illegalities
in the finding and conclusion arrived at by the First
Appellate Court in the impugned judgment as noted
above.
Accordingly, appeal is dismissed.
Sd/-
JUDGE
RL
