Karnataka High Court
Smt Gowramma vs Smt Manasa on 9 January, 2024
Author: H.T. Narendra Prasad
Bench: H.T. Narendra Prasad
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RFA No. 165 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.T. NARENDRA PRASAD
REGULAR FIRST APPEAL NO. 165 OF 2019 (PAR)
BETWEEN:
1. SMT GOWRAMMA
W/O LATE MALLAPPA
AGED ABOUT 70 YEARS
2. SRI SIDDARAJU
S/O LATE MALAPPA
AGED ABOUT 37 YEARS
APPELLANTS NO.1 & 2 ARE
RESIDING AT SARAIPALYA VILLAGE
THANISANDRA DHAKLE
ARABIC COLLEGE POST
BANGALORE-560045.
Digitally signed
by
DHANALAKSHMI 3. SMT MAHALAKSHMAMMA
MURTHY W/O LINGAPPA
Location: High
Court of AGED ABOUT 51 YEARS,
Karnataka D/O LATE MALAPPA R/AT NO.1
VIDYASAGAR VILLAGE
SARAIPALYA K R PURAM HOBLI
BANGALORE EAST TALUK
BANGALORE-560045
ALSO R/AT KUMBARHALLI
JIGANI HOBLI, ANEKAL TALUK.
4. SMT SHANTHA
W/O RAMANJINAPPA
D/O LATE MALAPPA
AGED ABOUT 49 YEARS
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RFA No. 165 of 2019
R/AT NO.2, SY NO.35/1
VIDYASAGARA VILLAGE
(SARAIPALYA) K R PURAM HOBLI
BANGALORE EAST TALUK
BANGALORE-560045.
5. SMT GEETHAMMA
W/O MARAPPA
D/O LATE MALAPPA
AGED ABOUT 47 YARS
R/AT KHATA NO.177/35/1
VIDYASAGARA VILLAGE (SARAIPALYA)
K.R.PURAM HOBLI
BANGALORE EAST TALUK
BANGALORE-560045
...APPELLANTS
(BY SMT. Y.P. VIJAYA VASANTHA KUMARI, ADVOCATE)
AND:
1. SMT MANASA
W/O LATE MAHENDRA
AGED ABOUT 36 YEARS
2. MASTER HARSHITH
AGED ABOUT 14 YEARS
S/O SMT MANASA
SINCE MINOR REP BY NATURAL
GUARDIAN AND GUARDIAN
RESPONDENT NO.1
BOTH ARE RESIDING AT
SARAIPALYA VILLAGE
THANISANDRA DHAKLE
ARABIC COLLEGE POST
BANGALORE-560053.
3. THE COMMISSONER
BANGALORE DEVELOPMENT AUTHORITY
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RFA No. 165 of 2019
T CHOWDAIAH ROAD
BANGALORE-560020.
4. THE LAND ACQUISITION OFFICER
BANGALORE DEVELOPMENT AUTHORITY
BANGALORE-560020
...RESPONDENTS
(BY SRI. JAGADISH K N.,ADVOCATE FOR C/R1 & 2:
SRI.KIRAN C.V., ADVOCATE FOR R3 & R4)
THIS RFA IS FILED UNDER SECTION 96 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 29.11.2018 PASSED IN
OS.NO.2360/2010 ON THE FILE OF THE IX ADDL.CITY CIVIL
AND SESSIONS JUDGE BANGALORE DECREEING THE SUIT FOR
PARTITION AND SEPARATE POSSESSION.
THIS APPEAL, COMING ON FOR FINAL DISPOSAL, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This appeal under Section 96 of CPC is filed by the
appellants-defendant Nos.1 to 5 challenging the
judgment and decree dated 29.11.2018 passed by the
IX Additional City Civil and Sessions Judge, Bengaluru
(CCH-5) in O.S.No.2360/2010, whereby the suit filed by
the plaintiffs has been partly decreed.
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2. For the sake of convenience, the parties are
referred to as per their ranking before the Trial Court.
3. Brief facts of the case of the plaintiffs is that the
plaintiff No.1 married one Mahendra, who is the son of
defendant No.1 and brother of defendant Nos.2 to 5.
The marriage took place on 11.02.2007 at Bengaluru.
Out of the said wedlock, a male child i.e. plaintiff No.2
was born on 29.11.2007. Thereafter, the husband of
plaintiff No.1 died on 29.11.2008 leaving behind
plaintiffs. Further case of the plaintiffs is that the suit
schedule properties are joint family properties of
plaintiffs and defendant No.1 to 5. Malappa is the
propositus, who is the father-in-law of plaintiff No.1 and
grand father of plaintiff No.2 and he died intestate on
05.06.2009. Defendant No.1 is the wife of Malappa,
defendant No.2 is the son and defendant Nos.3 to 5 are
the daughters of Malappa.
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4. Further case of the plaintiffs is that defendant
No.1 to 5 are in the possession of the properties. After
the death of husband of plaintiff No.1, she demanded
her legitimate share over the suit schedule properties.
Defendant No.1 to 5 have denied to give the share of
the plaintiffs. Hence, she has issued legal notice to
defendant No.1 to 5 on 17.11.2009. When defendant
No.1 to 5 refused to effect the partition, the plaintiffs
have filed the suit in O.S.No.2360/2010 before the City
Civil Judge, Bengaluru for partition and separate
possession and claiming 1/3rd share in the suit schedule
properties.
appeared through their counsel and filed the written
statement. Defendant Nos.1 and 2 have filed written
statement contending that the suit filed by the plaintiffs
is not maintainable either in law or on facts. Further
defendant No.1, who being the Kartha of the family had
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acquired item Nos.1 and 2 of the suit schedule
properties. During the life time of Malappa, there was
an oral partition between the family members in the
year 2000. In some portion of item No.2 of the suit
schedule property roughly measuring 20 feet X 20 feet,
a house has been constructed and given to the husband
of plaintiff No.1. Remaining portion of item No.2 of the
suit schedule property was given to defendant No.1 for
her maintenance. Hence, the suit item Nos.1 and 2 of
the properties are self acquired properties of defendant
No.1 and these properties are her Streedhana
properties. Further, they have contended that suit item
No.3 has been purchased by defendant No.2 by
registered Sale Deed dated 30.07.2002. It is self
acquired property of defendant No.2. Hence, they
sought for dismissal of the suit.
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6. On the basis of the pleadings of the parties, the
trial Court has framed the following issues and
additional issue:
Issues:
"1. Whether the plaintiff proves that she and
defendants No.1 and 2 have succeeded to the estate
of late Mallappa in respect of the suit schedule
properties?
2. Whether the plaintiff proves that she and the
defendants have in joint possession of the suit
schedule properties?
3. Whether the defendants prove that there is a
oral partition during the life time of plaintiff No.1's
husband i.e., in the year 2000 and in the oral
partition of the family a share has been allotted to
plaintiff No.1's deceased husband?
4. Whether the suit of the plaintiff is hit by non
joinder of necessary parties?
5. Whether the plaintiff is entitled for the reliefs
claimed in the suit?
6. What order or decree?
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Additional issue:
1. Whether the defendant No.2 proves that item
No.3 of the suit schedule property is his self acquired
property?"
7. To prove the case, plaintiff No.1 has been
examined as PW-1 and she has also examined one
witness Gowramma as PW-2 and produced 84
documents. Defendant No.1 to 5 has examined one
Lakshmamma as DW-1 and produced five documents.
On appreciation of oral and documentary evidence, the
trial Court has answered issue Nos.1, 2 and 5 in the
affirmative and issue Nos.3 and 4 in the negative and
pass the following decree:
"This suit filed by plaintiff is hereby decreed as
prayed for.
Consequently the plaintiffs are entitled to 7/18th
share in the item No.1 and 3 of the suit schedule
properties by metes and bounds. The plaintiffs are
held to be entitled for 7/18th share in the
compensation amount regarding the acquisition of
the suit schedule property item No.2.
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In the circumstances, both the parties shall bear
their own costs.
Draw preliminary decree accordingly."
8. Being aggrieved by the judgment and decree
passed by the trial Court, defendant Nos.1 to 5 are
before this Court in this appeal.
9. Learned counsel appearing for the appellants/
defendant Nos.1 to 5 has raised the following
contentions:
a) Firstly, the suit item No.3 has been purchased by
defendant No.2 by registered Sale Deed dated
30.07.2002. Hence, it is self acquired property and it is
not available for the partition. The trial Court has erred
in holding that the suit item No.3 is joint family
property.
b) Secondly, there was an oral partition among the
family members in the year 2000. Portion of suit item
No.2 has been allotted to the share of husband of
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plaintiff No.1. Therefore, the present suit for partition is
not maintainable. Item No.1 and remaining portion of
suit item Nos.2 have been given to defendant No.1 as
her maintenance. Hence, these properties are called
Streedhana and suit item No.2 was acquired for public
purpose and not available for the partition. Therefore,
the plaintiffs have no right to claim any partition.
c) Thirdly, in view of law laid down by the Hon'ble
Apex Court in the case of PRAKASH AND ORS. Vs.
PHULAVATHI AND ORS. reported in 2016 2 SCC 36, the
daughters are also entitled for equal shares. The decree
passed by the trial Court is contrary to the law laid down
by the Apex Court in the above case (supra). Hence, she
sought for allowing the appeal.
10. Per contra, the learned counsel appearing for the
respondents/plaintiffs has raised the following
contentions:
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a) Firstly, there was no any oral partition among
plaintiff No.1's husband and defendant Nos.1 to 5. The
suit schedule properties are joint family properties.
Defendant No.2 has purchased item No.3 of suit
schedule property by registered Sale Deed dated
30.07.2002 from the income of the joint family
properties. He has no separate source of income.
Therefore, the trial Court has rightly held that the suit
schedule properties are joint family properties.
b) Secondly, the suit item Nos.1 and 2 are standing
in the name of defendant No.1, who is the Kartha of the
family and they are not Streedhana properties. Since
the plaintiffs are entitled for the share in the joint family
properties, the trial Court has rightly decreed the suit.
Hence, he sought for dismissal of the appeal.
11. Heard the learned counsel for the parties. Perused
the judgment and preliminary decree and original
records.
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12. After hearing the learned counsel for the parties,
the point that arises for consideration in this appeal is:
"Whether the judgment and decree passed by
the trial Court is perverse, arbitrary and
contrary to the law laid down by the Hon'ble
Apex Court in the case of 'PHULAVATHI'
(supra)?".
13. It is not in dispute that plaintiff No.1 is the wife of
Mahendra, who is the son of defendant No.1 and brother
of defendant Nos.2 to 5. It is not in dispute that plaintiff
No.2 was born on 29.11.2007 out of the wedlock of
plaintiff No.1 and Mahendra. It is also not in dispute that
Mahendra died on 29.11.2008 and Malappa is the
propositus and he died on 05.06.2009. Defendant No.1
is the wife of Malappa, defendant No.2 and Mahendra
are the sons and defendant Nos.3 to 5 are the daughters
of Malappa. It is also not in dispute that suit item Nos.1
and 2 are acquired by husband of defendant No.1 in the
partition dated 19.12.2002 among his brothers. The
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specific contention of defendant Nos.1 and 2 is that item
No.3 has been purchased by defendant No.2 by
registered Sale Deed dated 30.07.2002 and it is his self
acquired property. In respect of the very same pleading,
the trial Court has framed an additional issue. To prove
the same, the defendant Nos.1 and 2 have not produced
any document to show that defendant No.2 was having
his own income to purchase suit item No.3.
14. As on the date of Sale Deed i.e. dated 30.07.2002,
defendant No.2 was aged about 20 years and it is not
the case of defendant No.2 that he was working and
earning money. The trial Court after considering the
evidence of the parties and material available on record,
has rightly held that suit item No.3 has been purchased
from the joint family income and rightly held that the
suit item No.3 is also joint family property.
15. In respect of oral partition between family
members in the year 2000 is concerned, defendant No.1
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to 5 except pleading in the written statement, they have
not proved the same. Therefore, the trial Court has
rightly held that the suit schedule properties are joint
family properties and there was no oral partition in the
year 2000 and rightly held that the plaintiffs and
defendant No.1 to 5 are entitled for their shares in the
suit schedule properties.
16. In respect of determination of shares is concerned,
the trial Court has not considered the amendment made
to the Hindu Succession Act, 1956. In view of law laid
down by the Hon'ble Apex Court in the case of
'PHULAVATHI' (supra), the daughters are also entitled
for equal shares along with the sons. Accordingly, the
shares of the parties are required to be re-determined.
Hence, I pass the following order:
ORDER
a) The appeal is allowed-in-part.
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b) The judgment and decree passed dated
29.11.2018 passed by the IX Additional City Civil
and Sessions Judge, Bengaluru (CCH-5) in
O.S.No.2360/2010 in respect of holding that
plaintiffs and defendant Nos.1 to 5 are entitled
for share in the suit schedule properties, is
upheld.
c) The judgment and decree passed by the
trial Court in respect of determination of shares
among the plaintiffs and defendant Nos.1 to 5,
is modified. It is held that the plaintiffs are
entitled for 1/6th share and defendant Nos.1 to
5 are entitled for 1/6th share each in item Nos.1
and 3 of the suit schedule properties by metes
and bounds.
d) Plaintiffs are entitled for 1/6th share in the
compensation amount regarding acquisition of
the suit schedule property item No.2.
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e) Parties to bear their own costs.
17. In view of disposal of the main appeal, all pending
application do not survive for consideration and the
same are also disposed of.
Sd/-
JUDGE
HA
