Karnataka High Court

Smt. Rudramma vs Smt. Gangamma on 4 January, 2024

Author: Ravi V Hosmani

Bench: Ravi V Hosmani

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                                                                NC: 2024:KHC:459
                                                             RSA No. 572 of 2013




                       IN THE HIGH COURT OF KARNATAKA AT BENGALURU
                          DATED THIS THE 4TH DAY OF JANUARY, 2024
                                             BEFORE
                          THE HON'BLE MR JUSTICE RAVI V HOSMANI
                        REGULAR SECOND APPEAL NO.572 OF 2013 (DEC)
                  BETWEEN:
                  1.    SMT. RUDRAMMA
                        W/O LATE H E ESHWARAPPA
                        AGED ABOUT 43 YEARS
                        AGRICULTURIST
                        R/O ANAVERI VILLAGE
                        HOLEHONNUR HOBLI
                        BHDRAVATHI TALUK.
                                                                   ...APPELLANT
                  (BY SRI. K CHANDRASHEKAR.,ADVOCATE)

                  AND:
                  1.    SMT. GANGAMMA
                        W/O LATE EERAPPA
                        AGED ABOUT 78 YEARS
                        RESIDING AT ANAVERI VILLAGE
                        HOLEHONNUR HOBLI
                        BHADRAVATHI TALUK.
                  2.    H V VEERABHADRAPPA
                        S/O LATE EERAPPA
Digitally signed by     AGED ABOUT 63 YEARS
GURURAJ D               RESIDING AT ANAVERI VILLAGE HOLEHONNUR HOBLI
Location: High          BHADRAVATHI TALUK.
Court of Karnataka3.    H PARAMESHWARAPPA
                        S/O LATE EERAPPA
                        AGED ABOUT 59 YEARS
                        RESIDING AT ANAVERI VILLAGE HOLEHONNUR HOBLI
                        BHADRAVATHI TALUK.
                  4.    H E SHIVAPPA
                        S/O LATE EERAPPA
                        AGED ABOUT 53 YEARS
                        RESIDING AT ANAVERI VILLAGE HOLEHONNUR HOBLI
                        BHADRAVATHI TALUK
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                                               NC: 2024:KHC:459
                                          RSA No. 572 of 2013




5.   SMT NANDIBASAMMA
     W/O HANUMANTHAPPA
     D/O LATE EERAPPA
     AGED ABOUT 61 YEARS
     R/AT MANGOTE VILLAGE HOLEHONNUR HOBLI
     BHADRAVATHI TALUK
6.   SMT UMADEVI
     W/O KUMARAPPA
     D/O LATE EERAPPA
     AGED ABOUT 51 YEARS
     R/AT THIMLAPURA VILLAGE HOLEHONNUR HOBLI
     BHADRAVATHI TALUK
7.   SMT LATHA
     W/O THIRTHAPPA
     D/O LATE EERAPPA
     AGED ABOUT 49 YEARS
     R/AT YEDEHALLI VILLAGE HOLEHONNUR HOBLI
     BHADRAVATHI TALUK
                                               ...RESPONDENTS
(BY SRI. D C JAGADEESH.,ADVOCATE)
     THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT & DECREE DTD 31.1.2013 PASSED IN R.A.NO.73/2012
ON THE FILE OF PRESIDING OFFICER, FAST TRACK COURT,
BHADRAVATHI, PARTLY ALLOWING THE APPEAL AND MODIFYING
THE JUDGEMENT AND DECREE DTD 29.2.2012 PASSED IN
OS.NO.21/2010 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC,
BHADRAVATHI. TRAIL COURT DECREED THE SUIT.APPELLATE COURT
PARTLY ALLOWED THE APPEAL SUIT FOR DECLARATION, PARTITION,
SEPARATE POSSESSION AND FOR MESNE PROFITS.

     THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                        JUDGMENT

Challenging judgment and decree dated

31.01.2013 passed by Presiding Officer, Fast Track

Court, Bhadravathi in R.A.no.73/2012 and judgment

and decree dated 29.02.2012 passed by Senior Civil

NC: 2024:KHC:459

Judge and JMFC, Bhadravathi in O.S.no.21/2010, this

appeal is filed.

2. Appellant herein was defendant no.4, while

respondent no.1 was plaintiff, respondents no.2 to 4

were defendants no.1 to 3 and respondents no.5 to 7

were defendants no.5 to 7 before trial Court. For sake

of convenience, they shall hereinafter be referred to

by their rank in suit.

3. Fact in brief are that respondent no.1 herein

namely Smt.Gangamma W/o late Erappa @ Veerappa

had filed suit in O.S.no.21/2010 seeking for decree of

partition and separate possession of her 1/8 t h share in

suit schedule properties, for mesne profits and for

declaration that alleged partition deed dated

17.09.2007 as not binding on plaintiff etc.

4. In plaint, it was stated that plaintiff was

mother of defendants no.1 to 3 and 5 to 7 and

mother-in-law of defendant no.4. Defendant no.4

widow of Eshwarappa son of plaintiff. It was further

stated that suit schedule properties originally

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belonged to Erappa @ Verappa, husband of plaintiff

and were joint family properties of plaintiff and

defendants. However on basis of alleged partition

between sons of Erappa, in year 2007 record of rights

of suit schedule properties were mutated in their

names. And after death of her fourth son Eshwarappa,

defendant no.4 his widow who had gone back to her

maternal home, at instigation of her brother filed

application for change of khata/record of rights in her

name. At that time, she realized that no share was

given to plaintiff nor made arrangements for her

livelihood. Hence, she got issued legal notice to

defendants and on failure to get any response filed

O.S.no.21/2010.

5. Despite entering appearance, only defendant

no.4 filed written statement wherein it was stated that

defendant no.1 namely Veerabhadrappa was not born

to plaintiff, but was son of Smt.Mallamma, first wife of

late Erappa @ Veerappa. Further all daughters got

married during life time of their father and prior to

coming into force of Hindu Succession Act, 2005.

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Therefore, respondents no.5 to 7 were not necessary

parties to suit. However, nature of suit schedule

properties as joint family property was admitted. It

was also stated that earlier there was oral partition

among children of late Erappa @ Veerappa on

18.02.2002 in which plaintiff was allotted 10 guntas of

land in Sy.no.29/2 with condition that after her death

it would pass on to defendant no.1 - Veerabhadrappa.

Likewise, a two ankanas house was also allotted to her

with condition that after her death, 1½ ankanas would

go to husband of defendant no.4 - Eshwarappa and

remaining half ankana would go to defendant no.2 -

Parameshwarappa. It was stated that though plaintiff

had knowledge of same, suit was filed at instigation of

defendants no.2 and 3 to force defendant no.4 to give

up her claims. It was further stated that terms of oral

partition were later reduced into writing and

registered partition deed executed amongst sons of

late Erappa on 17.09.2007 to have khata mutated in

their names. It was contended that plaintiff was not a

coparcener and had no right to claim share.

Suppressing same, plaintiff had filed suit for partition.

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6. Based on pleadings, trial Court framed

following issues:

1. Whether plaintiff proves t hat she defendants i n collusion have ca rved out partiti on a nd have not allot ted share to her delib erately?

2. Whether plaintiff is entitl ed for 1/8 t h share i n the sui t schedul e pr operties as sought?

3. What order or dec ree?

7. Thereafter, plaintiff examined herself as

PW-1, Veereshappa as PW-2 and got marked Exs.P1 to

P8. In response, only defendant no.4 was examined as

DW-1 and no documents were marked.

8. On consideration, trial Court answered

issues no.1 and 2 in affirmative and issue no.3 by

decreeing suit in part and holding plaintiff and

defendants no.1 to 7 were entitled for 1/8 t h share in

all suit schedule properties and declaring that partition

deed dated 17.09.2007 as not binding on plaintiff's

share.

9. Aggrieved thereby, defendant no.4 preferred

R.A.no.73/2012 before Presiding Officer, Fast Track

Court, B hadravathi, urging very same grounds as in

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written statement and contending that plaintiff's

mother was not co-parcener and had no right to seek

partition in joint family properties.

10. Based on contentions urged, first appellate

Court framed following points for determination:

1. Whether the registered pa rtition deed dated 17.09.2007 is not bindi ng on t he s hare of plaintiff i n t he j oi nt family anc es tral properti es?

2. Whether the i mpugned jud gment under appeal is erroneous, illegal, arbitrary, contrary to evidenc e and material on record and t here is a need f or i nterfer ence by this Court?

3. What order?

11. Thereafter by answering point no.1 in

affirmative, point no.2 partly in affirmative, it

answered point no.3 by modifying decree passed by

trial Court and holding plaintiff entitled for 1/64 t h

share and defendants no.1 to 7 entitled to 9/64 t h

share each in all suit schedule properties. Decree

insofar as partition deed dated 17.09.2007 as not

binding on plaintiff was not disturbed.

12. Not satisfied with judgment and decree

passed by both Courts, defendant no.4 is in appeal.

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13. Sri K. Chandrashekar, learned counsel for

appellant submitted that during pendency of this

appeal, original plaintiff - Smt.Gangamma had died

and all legal representatives were already on record.

It was submitted that since all other parties have been

recorded as legal representatives of respondent no.1

by order dated 18.09.2013, decree passed by trial

Court and first appellate Court were required to be

modified by holding defendants no.1 to 7 entitled to

for 1/7 t h share each in all suit schedule properties.

14. Learned counsel for appellant further

submitted that appellants would be satisfied if only

substantial questions of law no.1 was answered and

other substantial questions of law were not pressed.

15. Heard learned counsel for appellant, perused

impugned judgment and decree passed by both Courts

and records. There is no representation on behalf of

respondents. As this appeal is 10 years old, it is taken

up for disposal.

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16. At outset, it is seen that appeal was

admitted to consider following substantial questions of

law:

1. Whether t he Courts b elow were jus tified i n holdi ng t hat the daughte rs of lat e Erappa i.e. respondents no.5 to 7 herei n a re entitled for 9/64th share i nstead of 1/64th shar e, though t he s ons of late Erappa had eff ec ted partition by way of Jubani Hiss e in 2002 itself?

2. Whether the C ourts bel ow erroneousl y ignored the s pecific admissi on made by t he 1st r espondent (plai nti ff) t hat she was allotted 10 guntas of and 2 Anka nas of residential house i n the partition of 2002 bet ween t he s ons of late Erappa?

3. Whether t he C ourts below have f ailed to draw an adverse inf erenc e agai ns t t he sons of lat e Erappa who int enti onally did not c ontest the s ui t?

17. From above, it is seen that original plaintiff

has already died and share allotted to her would

devolve upon defendants no.1 to 7 equally of whom

appellant herein is also a party and her chosen to

receive share as per decree, substantial questions of

law no.2 and 3 are answered as not surviving for

consideration.

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NC: 2024:KHC:459

18. And substantial question of law no.1,

whether daughters would be entitled to equal share as

coparceners or notional share, would stand covered by