Karnataka High Court
Smt. Rathnamma vs Smt Kenchamma on 4 July, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 55 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 55 OF 2023 (PAR)
BETWEEN:
SMT. RATHNAMMA
SINCE DECEASED
REPRESENTED BY HER LRS
1. SMT. NIRMALA
D/O LATE SRI. N. RANGAIAH,
W/O SRI. GOVINDARAJULU,
AGED ABOUT 52 YEARS,
NOW RESIDING AT 507,
5TH FLOOR, MEGA SANNIDHANA
4TH CROSS, GRAPES GARDEN
SM ROAD, T.DASARAHALLI,
BENGALURU-560057
Digitally signed
by DEVIKA M 2. SMT. VEENA
Location: HIGH D/O LATE SRI. N. RANGAIAH
COURT OF W/O LATE SRI. VENKATESH MURTHY
KARNATAKA
AGED ABOUT 50 YEARS,
DOOR NO.315, MEGA KAMAL RESIDENCY,
SRS ROAD, PEENYA,
BENGALURU-560 058.
3. SMT. VATHSALA
D/O LATE SRI. N. RANGAIAH,
W/O SRI. V.N. RANGANATH
AGED ABOUT 48 YEARS,
7/1, 1ST MAIN, KRISHNA BLOCK,
SHESHADRIPURAM
BENGALURU-560020
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RSA No. 55 of 2023
4. MISS. KAVITHA
D/O LATE SRI. N. RANGAIAH
AGED ABOUT 45 YEARS,
5. SRI. THILAK
S/O LATE SRI. N. RANGAIAH,
AGED ABOUT 43 YEARS
BOTH APPELLANT NOS. 4 AND 5 ARE
R/AT NO. 109, 1ST FLOOR, 19TH MAIN,
J.C. NAGAR, KURUBARAHALLI
BENGALURU-560086.
...APPELLANTS
(BY SRI. T.A. CHANDRA SEKHAR, ADVOCATE)
AND:
1. SMT KENCHAMMA
W/O CHIKKANNA
D/O SATHYAPPA
AGED ABOUT 75 YEARS,
AGRICULUTURIST,
R/O DURGAVARA VILLAGE,
KASABA HOBLI,
CHALLKERE TALUK,
CHITRADURGA DISTRICT.
...RESPONDENT
(BY SRI. SPOORTHY HEGDE N., ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 05.07.2022
PASSED IN R.A.NO.12/2021 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC, CHALLAKERE, DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 30.01.2020 PASSED IN O.S.NO.169/2009 ON THE FILE
OF THE PRINCIPAL CIVIL JUDGE AND JMFC, CHALLAKERE.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RSA No. 55 of 2023
JUDGMENT
1. This matter is listed for admission. Heard
learned counsel for appellants and learned counsel for
respondent.
2. The factual matrix of the case of the plaintiff
before the Trial Court while seeking the relief of partition
and separate possession contended that one
Chaluvadappa had two sons namely Yallappa and
Sathyappa. The said Yallappa had a son by name Rangaiah
who is the husband of 1st defendant and father of
defendant Nos.2 to 6. The 2nd son of Chaluvadappa by
name Sathyappa had a daughter Kenchamma, who is the
plaintiff in the case. The plaintiff's father Sathyappa and
grand father of defendant Nos.2 to 6 by name Sathyappa
and grandfather of defendant Nos.2 to 6 by name Yallappa
were brothers. The properties are the ancestral and joint
family properties of the plaintiff and defendants. Originally
the suit schedule properties were belonged to original
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propositus Chaluvadappa. The grand father of defendant
Nos.2 to 6 and father of plaintiff Yallappa and Sathyappa
were ignorant and illiterate persons and they have no
worldly wise knowledge. After the death of their father
they were not made any attempts to change the khata of
suit schedule properties. But they were in joint possession
and enjoyment of the suit schedule properties. After the
death of said Yallappa and Sathyappa, their legal heirs
i.e., plaintiff and father of the defendant Nos.2 to 6 had
been in joint possession and enjoyment of the suit
schedule properties as joint owners thereof.
3. It is contended by the plaintiff that in the
meanwhile one Yogaraj S/o Chaluvadappa of Belegere
village taking the advantage of the weakness of aforesaid
persons and also taking the advantage of the similar
names appeared in revenue documents, the said Yograj
S/o Chaluvadappa moved an application to the revenue
authorities to change the katha of suit schedule properties
in his name on the basis of inheritance. Accordingly the
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revenue authorities without making proper enquiry
mutated in the joint names of Yogaraj S/o Chaluvadappa
and his mother Lakkamma W/o Chaluvadappa of Belegere
Village. Though the katha of suit schedule properties were
changed in the name of the Yograj and his mother, but
plaintiff and N.Rangaiah had been in joint possession and
enjoyment of suit properties. That in the year 1999 the
plaintiff and father of defendant Nos.2 to 6 have got
knowledge about the change of katha of suit properties in
the joint names of Yogaraj and his mother. After knowing
the said fact, immediately challenged the said mutation
proceedings before the Assistant Commissioner at
Chitradurga in R.A.No.69/99-2000. The said appeal was
instituted only in the name of N.Rangaiah who is the
cousin brother of plaintiff and senior male member of the
family thereby the plaintiff was not actively participated in
the appeal proceedings. In that appeal the respondents
have appeared and submits no objection and consented
for allowing the appeal, accordingly the Assistant
Commissioner, Chitradurga has allowed the appeal on
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16.06.2000. As per the orders passed in R.A.No.69/99-
2000, the revenue authorities have changed the katha of
suit schedule properties in the name of N.Rangaiah who is
the cousin of plaintiff. At that time the plaintiff had also
expressed for entering her name with her brother
N.Rangaiah in the khata of suit properties jointly. But, the
said N.Rangaiah one or the other reason prolonged the
matter and moreover the plaintiff and her brother
N.Rangaiah were in cordial terms with each other and also
both were in joint possession and enjoyment of the suit
schedule properties, thereby the plaintiff had not made
efforts to change the katha of suit properties. The katha of
suit properties were standing in the name of N.Rangaiah.
Thereafter, the said N.Rangaiah and his son Thilak i.e.,
defendant No.6 colluding with each other, taking the
advantage of the Katha standing in the name of the
N.Rangaiah and in order to deprive the plaintiff's
legitimate share in item No.1 of suit schedule property by
creating false genealogical tree and submit the same
before the Sub-Registrar, Challakere and got-up the
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collusive partition deed in respect of item No.1 of suit
schedule property. The said N.Rangaiah and defendant
No.6 have no exclusive right over the item No.1 of suit
schedule property by making division under the registered
partition deed dated 12.08.2008. The alleged partition
deed is a collusive one and got-up the same behind the
back of plaintiff, thereby the alleged partition deed dated
12.08.2008 is not binding on the plaintiff's legitimate half
share.
4. It is also the case of the plaintiff that revenue
authorities without making any proper enquiry,
mechanically changed the katha of item No.1 of suit
property in the names of N.Rangaiah and Thilak. When the
plaintiff demanded the share, not allowed the plaintiff and
for grant certification and hence demanded ½ share in
respect of the suit schedule properties. When they refused
to give any share, hence without any alternative filed the
suit. In pursuance of the suits summons, the defendants
appeared and filed written statement contending that the
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suit schedule property exclusively belongs to Rangaiah
and the plaintiff is not entitled for any share and also
contended that the plaintiff is not having any right or
interest or share or claim over the suit schedule
properties. Hence, prayed the Court to dismiss the suit.
5. The Trial Court having considered the pleadings
of the parties framed the issues in keeping the contentions
raised by the plaintiff and also allowed the parties to lead
evidence and parties have lead their evidence. The Trial
Court having consider material available on record, comes
to the conclusion that property admittedly belongs to the
Chaluvadappa and Chaluvadappa had two sons i.e., the
Yallappa and Sathyappa and plaintiff is the daughter of
Sathyappa and 1st defendant is the wife of the son of the
said Yallappa did not accept the contention of the
defendants that the property belongs to N.Rangaiah and
Ex.D1 to Ex.D6 are revenue entries of records of rights
and index of land and Form No.5 and Form No.6 records of
right. The Trial Court taking into note of the material
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placed before the Court comes to the conclusion that when
the property belongs to the Chaluvadappa the plaintiff is
also entitled for ½ share and comes to the conclusion that
registered partition deed not binding on the plaintiff.
Hence, the Trial Court granted the relief of ½ share.
6. Being aggrieved by the said judgment and
decree of the Trial Court, an appeal is filed in
R.A.No.12/2021. The First Appellate Court having
considered the grounds urged in the appeal memo,
formulated the point whether the judgment and decree is
contrary to law and evidence on record and whether it
requires interference. On appreciation and re-assessing
evidence available on record, taking into note of material
available on record that there was no any division between
the Yallappa and Sathyappa during their life time and also
taking into note of the property document are standing in
the name of Chaluvadappa and the same was transferred
in the name of Rangaiah S/o Yallappa and also considered
the material on record that both Yallappa and Sathyappa
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are the sons of the said Chaluvadappa and there was no
any division between both of them and also considering
the evidence available on record, particularly both oral and
documentary evidence, comes to the conclusion that the
Trial Court has not committed any error in granting
½ share since the plaintiff is the daughter of said Yallappa
and the same is extracted in paragraph No.41 considering
the admission on the part of the witnesses and dismissed
the appeal.
7. Being aggrieved by the said judgment and
decree of concurrent finding, present second appeal is filed
before this Court. The counsel appearing for the appellant
would vehemently contend that both the Courts fail to
consider the document of Ex.D1 to Ex.D6 particularly
those documents clearly discloses that the property stands
in the name of Rangaiah and those documents are clearly
demonstrate that father of the plaintiff left out the family
property, in such a situation left out person ought to have
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made the claim within a period of 12 years failing which
the right of person is deemed to have barred by time.
8. The counsel also would vehemently contend
that when the property stands in the name of Rangaiah,
during the life time of Sathyappa, when he did not claim
any share, the plaintiff cannot claim any share. Hence, this
Court has to frame the substantial question of law whether
both the Courts have committed an error in granting the
relief in favour of the plaintiff when she waived her right.
Both the Courts fail to take note of the fact that plaintiff
claim is barred by law. The very approach of both the
Courts is erroneous.
9. Per Contra, the counsel appearing for the
respondent would vehemently contend that the property
belongs to Chaluvadappa is not in dispute and the fact that
the relationship between the parties that the
Chaluvadappa had two sons by Yallappa and Sathyappa is
also not in dispute. The plaintiff is also the daughter of the
Sathyappa is also not in dispute. Only contention that the
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Sathyappa who is the father of the plaintiff has waived his
right during his life time and the said contention cannot be
accepted. No dispute with regard to the fact that the
property belongs to the Chaluvadappa and mere entry
made in the name of Rangaiah cannot prove that he is an
exclusive owner of the property. Both the Courts taking
into note of material available on record, rightly granted
½ share in respect of the suit schedule properties.
10. Having heard learned counsel for appellants and
learned counsel for respondent and also considering the
material available on record, there is no dispute with
regard to the relationship between the parties and also the
Chaluvadappa is the propositus of the family is also not in
dispute. The property also earlier standing in the name of
the Chaluvadapa is also not in dispute. Subsequently, the
properties are transferred in favour of the grand son is
also not in dispute and also no khata was changed in the
name of the sons of the Chaluvadappa i.e., Yallappa and
Sathyappa is also not in dispute. Having taken note of the
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said fact into consideration and mere changing of entry in
the male member of the family that too a grand son will
not defeat the right of son of the Chaluvadappa. No
documentary evidence is placed before the Court that
during the lifetime of Sathyappa waived his right in
respect of the properties. The Trial Court also taken note
of the said fact into consideration particularly in paragraph
No.21 and in detail discussed the same including Section 6
of the Hindu Succession Act and also taken note of
material available on record, particularly the defendant
contended that the property belongs to the N.Rangaiah
and none of the documents produced before the Court
discloses that the property is the exclusive property of the
said N.Rangaiah. When such being the case, having
consider both the evidence of plaintiff as well as
defendants, both the Courts comes to the conclusion that
when the property belongs to the Chaluvadappa and
having two sons and the plaintiff is the daughter of one
Sathyappa and defendants are wife and son of one
Rangaiah who is the grandson of Chaluvadappa and they
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represents the family of Yallappa and hence they get ½
share and also the daughter of Sathyappa get ½ share and
in apportioning the property also not committed any error.
Even First Appellate Court also while re-appreciating the
evidence also in paragraph No.41 taking into note of
admission on the part of witnesses that exclusively
property belongs to the Chaluvadappa and having two
sons and there was no any partition between the Yallappa
and Sathyappa. Hence, I do not find any error committed
by the both the Trial Court and also the First Appellate
Court in granting ½ share. The very contention of the
appellant's counsel that the document Ex.D1 to Ex.D6
have not been considered by both the Courts cannot be
accepted. Those documents are only with regard to the
revenue entries standing in the name of Rangaiah that too
transfer was made in respect of the male member of the
family that will not make any exclusive right and Trial
Court and First Appellate Court have considered the issue
No.3 when specific pleading was made that the property
belongs to the one Rangaiah and the same is not the
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property belongs to the Rangaiah and the property
belongs to Chaluvadappa and hence legal heirs have
entitled for equal share. Hence, I do not find any error
committed by both the Courts.
11. In view of the discussions made above, I pass
the following:
ORDER
i) The Second Appeal is dismissed.
ii) In view of dismissal of the appeal, I.As., if any do not
survive for consideration, the same stands disposed of.
Sd/-
JUDGE
RHS
