Karnataka High Court
Smt Chandrakanthamma vs G M Nagarathnamma on 9 January, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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RSA No. 564 of 2018
C/W RSA No. 565 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF JANUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 564 OF 2018 (PAR)
C/W
REGULAR SECOND APPEAL NO. 565 OF 2018 (PAR)
IN RSA NO.564/2018
BETWEEN:
1. SMT CHANDRAKANTHAMMA
W/O LATE G M MAHADEVAIAH
AGED ABOUT 59 YEARS
2. G N SANDEEP
S/O LATE G M MAHADEVAIAH
AGED ABOUT 34 YEARS
3. SMT G M CHETHAN
Digitally signed W/O NANJUNDAPPA
by SUMA B N AGED ABOUT 39 YEARS
Location: High
Court of
Karnataka ALL ARE RESIDING AT
GUDEMARANAHALLI HAND POST,
HAMLET OF BEERAVARA,
SOLUR HOBLI, MAGADI TALUK
RAMANAGARA DISTRICT - 562 127.
...APPELLANTS
(BY SRI. SADASHIVAIAH K.G., ADVOCATE)
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RSA No. 564 of 2018
C/W RSA No. 565 of 2018
AND:
1. G M NAGARATHNAMMA
D/O LATE MALLESHAIAH G P
AGED ABOUT 62 YEARS
GUDEMARANAHALLI HAND POST
SOLUR HOBLI, MAGADI TALUK
RAMANAGARA DISTRICT - 562 127.
2. SMT C M SOWBHAGYAMMA
D/O LATE G P MALLESHAIAH
W/O SHIVALINGAIAH
AGED ABOUT 60 YEARS
R/AT HONNARAYANAHALLI VILLAGE
THAYAMAGONDLU HOBLI
NELAMANGALA TALUK - 562 123.
...RESPONDENTS
(BY SRI. GANGADHARAPPA A V., ADVOCATE FOR R1;
R2 - SERVED & UNREPRESENTED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC, 1908
AGAINST THE JUDGMENT AND DECREE DATED 25.11.2017
PASSED BY THE LEARNED III ADDL. DISTRICT AND SESSIONS
JUDGE, RAMANAGARA IN R.A.NO.58/2014, ALLOWING THE
APPEAL FILED AGAINST THE JUDGMENT AND DECREE DATED
27.08.2014 PASSED BY THE LEARNED SENIOR CIVIL JUDGE
AND JMFC., MAGADI IN O.S. NO.273/2014 (OLD O.S.
NO.184/2010) AND OLD No. O.S. NO.66/1999 AND
CONSEQUENTLY DISMISS THE SAID SUIT FILED BY THE 1ST
RESPONDENT.
IN RSA NO.565/2018
BETWEEN:
1. SMT CHANDRAKANTHAMMA
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RSA No. 564 of 2018
C/W RSA No. 565 of 2018
W/O LATE G M MAHADEVAIAH
AGED ABOUT 54 YEARS
2. G N SANDEEP
S/O LATE G M MAHADEVAIAH
AGED ABOUT 32 YEARS
3. SMT G M CHETHAN
W/O NANJUNDAPPA
AGED ABOUT 34 YEARS
ALL ARE RESIDING AT
GUDEMARANAHALLI HAND POST,
HAMLET OF BEERAVARA,
SOLUR HOBLI, MAGADI TALUK
RAMANAGARA DISTRICT - 562 127.
...APPELLANTS
(BY SRI. SADASHIVAIAH K G., ADVOCATE)
AND:
1. G M NAGARATHNAMMA
D/O LATE MALLESHAIAH G P
AGED ABOUT 62 YEARS
GUDEMARANAHALLI HAND POST
SOLUR HOBLI, MAGADI TALUK
RAMANAGARA DISTRICT - 562 127.
2. SMT C M SOWBHAGYAMMA
D/O LATE G P MALLESHAIAH
W/O SHIVALINGAIAH
AGED ABOUT 60 YEARS
R/AT HONNARAYANAHALLI VILLAGE
THAYAMAGONDLU HOBLI
NELAMANGALA TALUK - 562 123.
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RSA No. 564 of 2018
C/W RSA No. 565 of 2018
...RESPONDENTS
(BY SRI. GANGADHARAPPA A V., ADVOCATE FOR R-1;
R2 - SERVED & UNREPRESENTED)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DTD 25.11.2017
PASSED IN RA.NO.61/2014, ON THE FILE OF THE III
ADDL.DISTRICT AND SESSIONS JUDGE, RAMANAGARA,
DISMISSING THE APPEAL FILED AGAINST THE JUDGMENT AND
DECREE DATED:27.08.2014 PASSED IN O.S.NO.273/2014 (OLD
NO.184/2010) OLD NO.66/1999 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC., MAGADI.
THESE APPEALS, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
These appeals were admitted by this Court by order
dated 02.09.2021 for consideration of the following
substantial question of law:
"i). Whether the Courts below are justified in
rejecting the claim of the plaintiffs with regard
to Item Nos.4 and 5 of the suit schedule
properties?
ii). Whether the First Appellate Court is
justified in interfering with the judgment and
decree passed by the trial Court with regard to
allotment of shares?".
2. Appellants who are before this Court are the
legal representatives of one G.M.Mahadevaiah who was
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defendant No.1 in the suit filed by respondent No.1 in
O.S.No.273/2014 for the relief of partition and possession
in respect of the suit schedule properties.
3. It is the case of the respondent/plaintiff that
G.P.Malleshaiah was the father of plaintiff and defendants
1 and 2. That the plaint schedule properties were the
absolute properties of said G.P.Malleshaiah. Said
G.P.Malleshaiah passed away in the year 1982 leaving
behind plaintiff and defendants being his children each
entitled for 1/3rd share, right, title and interest in the suit
schedule properties. It was contended despite repeated
requests defendant No.1 did not come forward
constraining her to file the suit.
4. On service of summons defendants 1 and 2
appeared. During the pendency of the suit defendant No.1
died. As such his wife and children were brought on
record as defendant No.1(a) to 1(c). It is contended on
behalf of defendant No.1 that plaintiff is not a member of
joint family and she has no share in the suit properties.
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That she was ousted from the family and there is no
relationship of joint family members between the plaintiff
and defendants. As she is residing in her husband's place
she seized to be member of the joint family. That the
Defendant No.1 during his life time had developed suit
schedule properties borrowing loan, financial assistance
from financial institutions and retirement benefits and he
alone is entitle for suit schedule properties. Neither the
plaintiff nor defendant No.2 contributed to the joint family
properties and they were excluded from the joint family
ever since they married. As such sought for dismissal of
the suit. Defendant No.2 one of the daughters of
G.P.Malleshaiah supported the case of the plaintiff.
5. Trial Court framed the following issues and
recorded the evidence:
"1. ªÁ¢ vÀ£Àß ªÁzÀ ¥ÀvæÀzÀ PÀArPÉ 3gÀ°è w½¹gÀĪÀAvÉ, zÁªÁ
¸ÀévÀÄÛUÀ¼ÀÄ vÀ£Àß vÀAzÉAiÀÄ ¸ÀéAiÀiÁfðvÀ ¸ÀévÄÀ ÛUÀ¼ÉAzÀÄ CªÀgÄÀ wÃjPÉÆAqÀ
£ÀAvÀgÀ vÀ£ÀUÉ CzÀgÀ°è 1:3gÀµÄÀ Ö C«¨sÁfvÀ »¸Éì EzÉ JAzÀÄ
gÀÄdĪÁvÀÄ¥Àr¸ÀĪÀgÉÃ?
2. 1£Éà ¥ÀæwªÁ¢AiÀÄ ªÁgÀ¸ÄÀ zÁgÀgÄÀ vÀªÄÀ ä ¥ÀæwªÁzÀ ¥Àvæz
À À 2£ÉÃ
PÀArPÉAiÀÄ°è w½¹gÀĪÀAvÉ F zÁªÉ HfðvÀªÁUÀvÀPÌÀ zÀ®è JAzÀÄ
gÀÄdĪÁvÀÄ¥Àr¸ÀĪÀgÉÃ?
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3. ªÁ¢ zÁªÉAiÀÄ°è PÉýgÀĪÀ ¥ÀjºÁgÀªÀ£ÄÀ ß ¥ÀqÉAiÀÄ®Ä CºÀðgÉÃ?
4. AiÀiÁªÀ DzÉñÀ CxÀªÁ rQæ?".
6. Plaintiff examined herself as PW-1 and exhibited
19 documents marked as Ex.P-1 to P-19 and two
witnesses were examined on behalf of defendants and
exhibited fourteen documents marked as Ex.D-1 to D-14.
On appreciation of evidence trial court answered issues 1
and 3 partly in affirmative and issue No.2 in the negative
and consequently partly decreed the suit vide its Judgment
and Decree dated 27.08.2014 holding that the plaintiff was
entitled for her share only in respect of item Nos.1 to 3 of
suit schedule properties and in Sy.No.36/2 of item No.5 of
the suit schedule properties and dismissed the suit of the
plaintiff with regard to item No.4 of the property and in
respect of Sy.No.36/4 and 36/6 of item No.5 of the suit
schedule properties. Being aggrieved by the same plaintiff
preferred regular appeal in R.A.No.58/2014 and
defendants filed R.A.No.61/2014.
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7. On consideration of the grounds urged, the first
appellate court framed following points for its
consideration:
IN RSA No.564/2018 & RSA No.565/2018
"1. Whether the defendants have proved
that, the plaintiff is ousted from the family
since 1977 and therefore she has seized to
become the member of joint family?
2. Whether the LRs of 1st defendant have
proved that, G.P. Malleshaiah died in the year
1982 and hence, cause of action has arisen
from that date and therefore, the suit filed in
the year 1999 is barred by limitation?
3. Whether the LRs of 1st defendant have
proved that, the plaintiff has married a person
of different religion and therefore, she is not
entitled to claim share by virtue of Section 26
and 27 of Hindu Succession Act?.
4. Whether the plaintiff has proved that,
she is entitled for share in all the suit schedule
properties?
5. Whether the trial court is justified in
decreeing the suit of the plaintiff in part?
6. What Order?".
8. On re-appreciation of evidence the first appellate
court by Judgment and order dated 25.11.2017 allowed
the appeal in R.A.No.58/2014 filed by plaintiff and
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dismissed appeal in R.A.No.61/2014 filed by legal
representatives of defendant No.1 and decreed the entire
suit of the plaintiff awarding 1/3 share right, title and
interest in respect of all the items of suit schedule
properties.
9. Being aggrieved by the same legal
representatives of defendant No.1 are before this Court.
It is necessary to note that though this Court vide order
dated 02.09.2021 had formulated two substantial
questions of law as above. Learned counsel of appellants
as well as respondent No.1 in unison submit that first
substantial question of law does not arise for consideration
and same appears to be a mistake, and request first
substantial question of law to be deleted and appeal be
restricted only to second substantial question of law.
Submission taken on record.
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10. Learned counsel for appellants reiterating the
grounds urged in the memorandum of appeal submits
appellants are aggrieved by only two circumstances
namely, first Appellate Court permitted amendment of the
plaint by the plaintiff at the stage of consideration of first
appeal and accepting of additional documents filed by the
plaintiff under Order 41 Rule 27 of CPC.
11. It is their further case that first appellate court
having allowed the amendment to the plaint and having
taken additional documents on record ought to have
provided an opportunity to the appellants to file the
written statement and to disprove the additional evidence.
In furtherance to the above contentions learned counsel
submits that the properties which are included have been
developed and improved by the defendant No.1 during his
life time and improvement made by the defendant No.1
has not been taken into consideration. The same would
affect the right, share and entitlement of defendant No.1.
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He submits that denial of opportunity of filing additional
written statement and plea to question the veracity of the
documents has resulted in miscarriage of justice. As such
substantial question of law has to be answered in the
affirmative.
12. In response Sri.A.V.Gangadharappa, learned
counsel for respondent No.1 submits that amendment did
not alter or change the nature and scope of the suit. The
amendment is only in the nature of clarification more
particularly, reducing the area of land. Production of
documents was is in support of the plea taken in the
plaint. As such there was no prejudice or injustice caused
to the defendants as alleged. He further submits that
there is no dispute of the fact that all the suit schedule
properties were acquired by G.P.Malleshaiah, father of the
plaintiff and defendants. That upon his demise plaintiff and
defendants 1 and 2 were entitled to 1/3rd share by
operation of law. He fairly submits if there are any
improvements made by defendant No.1 to any of the suit
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schedule properties an enquiry in that regard may be
ordered to be held in Final Decree proceedings and upon
proof, the equities could be adjusted.
13. If learned counsel for the appellant submits that
conducting of such an enquiry in Final Decree Proceedings
is ordered the grievance of the legal representatives of
defendant No.1 would be met with.
14. Heard. Perused the records.
15. As noted above, there is no dispute that suit
schedule properties belong to G.P.Malleshaiah, father of
plaintiff and defendants 1 and 2. It is not the case either
of the plaintiff or the defendants that the suit properties
are joint family or ancestral property. As such by
application of Section 8 of the Hindu Succession Act
plaintiff and defendants are entitled to 1/3 equal share in
the suit schedule properties. First appellate court having
taken these aspects into consideration has decreed the
suit and allotted 1/3rd share to the plaintiff. Defendant
No.2 supported the case of the plaintiff. If defendant No.2
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is directed to pay court fee with regard to her 1/3rd share,
appellants would have no qualms with regard to division of
the properties allotting 1/3 equal share. The only
grievance of the appellant is non consideration of plea of
improvements made to suit schedule properties. In view of
the submissions made by learned counsel for respondent
No.1 and conceded by learned counsel for appellants, this
Court is of the view that present appeal be disposed of
reserving liberty to the appellants to furnish any material
before the Final Decree Proceedings with regard to
improvements if any made by deceased defendant No.1,
on production of such material evidence accompanied by
appropriate application, the trial Court shall afford
opportunity to the plaintiff and defendants and if it is
found that the deceased defendant No.1 had indeed
effected any improvements to any of the schedule
properties equities be made accordingly while allotting the
share.
With the above observation appeals are disposed of.
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It is also submitted by counsel for the parties that
portion of the some of the suit schedule properties were
acquired for the purpose of widening of road and
compensation amount has been deposited. Needless to
mention compensation amount to which the parties are
entitled shall also be in proportion to the entitlement of
their share in the properties which aspect shall be
considered by the trial court while disposing the case.
Parties shall co-operate for expedite disposal of Final
Decree proceedings. The trial Court shall dispose of the
matter within an outer limit of six months from the date of
receipt of certified copy of this order.
Sd/-
JUDGE
SBN
