Karnataka High Court
Mahantha Devaru vs Smt Gowramma on 25 July, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:29332
RSA No. 1607 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 1607 OF 2023 (PAR)
BETWEEN:
MAHANTHA DEVARU
SINCE DEAD BY LRS
1. SRI RAJASHEKHAR SWAMI
AGED ABOUT 67 YEARS
S/O LATE MAHANTHA DEVARAU
2. SRI VARADARAJU @ RAJAPPA
AGED ABOUT 65 YEARS
S/O LATE MAHANTHA DEVARAU
APPELLANT Nos.1 AND 2 ARE
R/AT BARADANAPURA VILLAGE,
JAYAPURA HOBLI,
Digitally signed
by DEVIKA M MYSURU TALUK AND DISTRICT-570008
Location: HIGH
COURT OF 3. PUTTABUDDHI @
KARNATAKA
MAHANTHA SWAMIGALU
AGED ABOUT 75 YEARS
S/O LATE MAHANTHASWAMIGALU
R/AT BARADANAPURA VILLAGE,
JAYAPURA HOBLI,
MYSURU TALUK AND DISTRICT 570008
...APPELLANTS
(BY SRI. P NATARAJU.,ADVOCATE)
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NC: 2024:KHC:29332
RSA No. 1607 of 2023
AND:
1. SMT GOWRAMMA
AGED ABOUT 73 YEARS
W/O CHANDRAPPA @
CHANDRASHEKHARAPPA
D/O SIDDARAMEGOWDA,
R/AT KUDERU VILLAGE,
SANTHEMARALLI HOBLI,
CHAMARAJANAGARA TALUK
AND DISTRICT 571115
NOW R/AT C/O GAJENDRA,
GOWRIGHATTA ROAD,
OPP MALLIKARJUNA MUTT,
NANJANAGUD TOWN,
MYSURU DISTRICT 571301
...RESPONDENT
(BY SRI. ABUBACKER SHAFI.,ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 20.01.2023
PASSED IN RA No.84/2021 ON THE FILE OF THE III
ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MYSURU,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 20.02.2021 PASSED IN OS No.545/2010
ON THE FILE OF THE II ADDITIONAL II CIVIL JUDGE AND
JMFC, AT MYSURU.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
ORAL JUDGMENT
1. Heard the learned counsel for appellant and
also the learned counsel for respondent.
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2. The suit is filed before the Trial Court seeking
the relief of partition claiming that the plaintiff is also the
sister of defendant Nos.1 and 2 and also contend that the
suit schedule property belongs to their father and on
account of death of their father, he is entitled for 1/3rd
share in the suit schedule property. The contention of the
defendant that her share was given, but in order to prove
the same, nothing was placed on record and hence the
Trial Court considering both oral and documentary
evidence available on record comes to the conclusion that
plaintiff is entitled for 1/3rd share out of the suit schedule
properties and also taken note of the fact that another
sister passed away that is plaintiff's sister Siddalingamma
@ Rajamma, who was unmarried and not led any
testamentary document and taken note of Section
15(1)(d) of Hindu Succession Act, the same vest with the
other legal heirs of her father. Hence, the Trial Court
rightly granted 1/3rd share.
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3. Being aggrieved by the said judgment and
decree of the Trial Court, filed an appeal in
R.A.No.84/2021 before the First Appellate Court. The First
Appellate Court considering the grounds urged in the
appeal memo, framed the point for consideration as
whether the Trial Court committed an error in granting
1/3rd share and also whether there was already a partition
in terms of Panchayat Palu Parikath dated 19.10.1996
since the appellants have contended the same in the
appeal and the First Appellate Court on appreciation of
both oral and documentary evidence available on record,
answered the point Nos.1 to 3 as negative and confirmed
the judgment of the Trial Court.
4. Being aggrieved by the said judgment of
concurrent finding of Trial Court as well as First Appellate
Court, present second appeal is filed. The counsel
appearing for the appellant would vehemently contend
that both the Courts have committed an error in ignoring
the unregistered Panchayat Palu Parikath dated
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19.10.1996 which is Ex.D14 and if the document Ex.D14 is
considered, the plaintiff/respondent would not get any
share in the property and hence this Court has to frame
substantial question of law.
5. Per contra, the counsel appearing for the
respondent would vehemently contend that the Trial Court
considered the relationship between the parties since there
is no any dispute and also the property belongs to the
father and he died intestate and hence the plaintiff and
defendants are entitled for 1/3rd share and accordingly,
the Trial Court granted the same and the First Appellate
Court confirmed the same. Hence, it does not requires any
interference and question of invoking Section 100 of CPC
does not arise.
6. Having heard the appellants' counsel and also
counsel appearing for the respondents, no dispute with
regard to the relationship between the parties. It is also
not in dispute that one of unmarried sister was also
passed away during the pendency of the suit and she also
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not led any testamentary document. Apart from that even
father also not led any testamentary document, when such
being the case and when the property belongs to the
father, the plaintiff also succeeded to the estate of her
father and having taken note of the said fact into
consideration and though contend that there was already a
partition and the same has not been proved and the
document Ex.D14 is also unregistered document and the
same is also not admissible and hence Trial Court has not
accepted the same and the First Appellate Court also not
accepted the same. Even the First Appellate Court also
framed the issue in view of the contention of Ex.D14 as
point No.1 since they relies upon the document Panchayat
Palu Parikath dated 19.10.1996 and the same is also not
accepted in view of unregistered document and the same
also not been proved, when such being the case, I do not
find any error committed by the Trial Court in granting the
relief of partition as well as apportionment of 1/3rd share,
she is entitled for share in respect of property of her
father. Hence, I do not find any ground to admit and
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frame any substantial question of law invoking Section 100
of CPC.
7. In view of the discussions made above, I pass
the following:
ORDER
i) The Second Appeal is dismissed.
ii) In view of dismissal of appeal, pending IAs' if
any, do not survive for consideration.
Sd/-
(H.P.SANDESH)
JUDGE
RHS
