Karnataka High Court
Smt. Padma vs Smt. Ningamma on 26 July, 2024
Author: V Srishananda
Bench: V Srishananda
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RSA No. 2418 of 2011
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 26TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
REGULAR SECOND APPEAL NO. 2418 OF 2011
BETWEEN:
1. SMT. PADMA
AGED ABOUT 41 YEARS,
W/O BORAIAH,
R/O ARTHIUKKADA VILLAGE
AND POST, SRIRANGAPATNA TALUK,
MANDYA DISTRICT.
2. SMT. CHOWDAMMA
BY HER LRS:
2(A). SMT. RATHNAMMA,
W/O CHIKKAIAH,
AGED ABOUT 42 YEARS,
OCC: HOUSEHOLD WORK,
R/AT KAYATMARANAHALLI VILLAGE,
Digitally
signed by 1ST CROSS ROAD,
MALATESH BASAVANAGUDI ROAD,
KC H.NO. 1628, MYSORE
Location: TALUK & DISTRICT:MYSORE
HIGH
COURT OF 2(B). SMT.KUMARI,
KARNATAKA W/O ANAND,
AGED ABOUT 45 YEARS,
OCC: HOUSEHOLD WORK,
R/AT KAYATMARANAHALLI VILLAGE,
1ST CROSS ROAD,
BASAVANAGUDI ROAD, H.NO. 1628,
MYSORE TALUK & DISTRICT:MYSORE
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RSA No. 2418 of 2011
2(C). SRI.SURESH,
S/O RAJANNA,
AGED ABOUT 42 YEARS,
OCC:CARPENTER,
R/AT KAYATMARANAHALLI VILLAGE,
1ST CROSS ROAD,
BASAVANAGUDI ROAD,
H.NO. 1628,
MYSORE TALUK & DISTRICT: MYSORE
2(D). SMT. SHRUTI,
W/O RAJESH,
AGED ABOUT 29 YEARS,
OCC:HOUSEHOLD WORK,
R/AT KAYATMARANAHALLI VILLAGE,
1ST CROSS ROAD, BASAVANAGUDI ROAD,
H.NO. 1628,
MYSORE TALUK & DISTRICT:MYSORE
2(E). SMT. HEMA,
D/O RAJANNA,
AGED ABOUT 32 YEARS,
OCC: HOUSEHOLD WORK,
R/AT KAYATMARANAHALLI VILLAGE,
1ST CROSS ROAD, BASAVANAGUDI ROAD,
H.NO. 1628, MYSORE
TALUK & DISTRICT: MYSORE
2(F). SMT.SHOBHA,
D/O RAJANNA,
AGED ABOUT 34 YEARS,
OCC:HOUSEHOLD WORK,
R/AT KAYATMARANAHALLI VILLAGE,
1ST CROSS ROAD, BASAVANAGUDI ROAD,
H.NO. 1628, MYSORE
TALUK & DISTRICT:MYSORE
2(G). SMT.REKHA,
D/O RAJANNA,
AGED ABOUT 30 YEARS,
OCC:HOUSEHOLD WORK,
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RSA No. 2418 of 2011
R/AT KAYATMARANAHALLI VILLAGE,
1ST CROSS ROAD, BASAVANAGUDI ROAD,
H.NO. 1628, MYSORE
TALUK & DISTRICT:MYSORE
2(H). SMT. KAVYA,
D/O CHIKKAIAH,
AGED ABOUT 22 YEARS,
OCC: HOUSEHOLD WORK,
R/AT KAYATMARANAHALLI VILLAGE,
1ST CROSS ROAD, BASAVANAGUDI ROAD,
H.NO.1628, MYSORE
TALUK & DISTRICT:MYSORE
2(I). SRI. MANOJ,
S/O CHIKKAIAH,
AGED ABOUT 19 YEARS,
R/AT KAYATMARANAHALLI VILLAGE,
1ST CROSS ROAD, BASAVANAGUDI ROAD,
H.NO.1628, MYSORE
TALUK & DISTRICT:MYSORE
3. SMT. ALAMELAMMA
AGED ABOUT 53 YEARS,
W/O CHIKKASWAMY,
R/O HOSAKOTE VILLAGE,
NANJANGUD TALUK
MYSORE DISTRICT
...APPELLANTS
(BY SRI. R.B. ANNEPPANAVAR, ADVOCATE)
AND:
1. SMT. NINGAMMA
AGED ABOUT 71 YEARS,
W/O LATE BALAJI SIDDAIAH @ SIDDAIAH
2. SMT. LAKSHAMMA @ LAKSHMI
AGED ABOUT 41 YEARS,
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RSA No. 2418 of 2011
W/O LATE NAGARAJU
S/O LATE BALAJI SIDDAIAH
2(A). SRI. RAVI
AGED ABOUT 23 YEARS,
S/O LATE NAGARAJU
2(B). KUM. ASWINI
AGED ABOUT 21 YEARS,
D/O LATE NAGARAJU
2(C). KUM. NANDINI
AGED ABOUT 19 YEARS,
D/O LATE NAGARAJU
3. SRI. SRINIVAS
AGED ABOUT 46 YEARS,
S/O LATE BALAJI SIDDAIAH
4. SRI. RAMANNA
AGED ABOUT 43 YEARS,
S/O LATE BALAJI SIDDAIAH
5. SRI. GOVINDU
AGED ABOUT 40 YEARS,
S/O LATE BALAJI SIDDAIAH,
6. SRI. VENKATESH
AGED ABOUT 33 YEARS,
S/O LATE BALAJI SIDDAIAH
RESPONDENTS NO.3 TO 6 ARE
RESIDING AT NO.1437, 12TH CROSS,
KYATHAMARANAHALLI,
NAZARBAD MOHALLA, MYSORE
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RSA No. 2418 of 2011
7. SRI. M.S. AZEEZUDDIN,
BY HIS LR:
7(A). SMT. RIHANA AZEEZUDDIN,
W/O LATE M.S.MIR AZEEZUDDIN
AGED ABOUT 71 YEARS,
7(B). SRI.M.A.IRFAN AHMED,
S/O LATE M.S.MIR AZEEZUDDIN.
AGED ABOUT 48 YEARS
7(C). SMT.M.A.SHABANA,
D/O LATE M.S.MIR AZEEZUDDIN.
AGED ABOUT 46 YEARS
7(D). SRI. M.A.RIZWAN AHMED,
S/O LATE M.S. MIR AZEEZUDDIN.
AGED ABOUT 43 YEARS,
ALL ARE RESIDING AT NO.280,
6TH MAIN, 'C' LAYOUT,
HANUMANTHANAGAR, BANNIMANTAPA,
MYSURU-570 015
...RESPONDENTS
(BY SRI. Y.K. NARAYANA SHARMA, ADVOCATE)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 28.9.2011 PASSED IN
R.A.NO.178/2011 ON THE FILE OF THE I ADDL. DISTRICT
JUDGE, MYSORE, DISMISSING THE APPEAL, PARTLY ALLOWING
THE CROSS OBJECTION FILED AGAINST THE JUDGMENT AND
DECREE DATED 17.2.2011 PASSED IN O.S.NO.618/2009 ON
THE FILE OF THE II ADDL. SR. CIVIL JUDGE, MYSORE.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RSA No. 2418 of 2011
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL JUDGMENT
Heard Sri. Aneppanavar, learned counsel for the
appellant.
2. Present Second Appeal is filed by the first
plaintiff challenging the judgment passed in
O.S.No.618/2019 and confirmed in R.A.No.178/2011
whereby the suit of the plaintiff came to be dismissed.
3. Facts in brief which are utmost necessary for
disposal of the appeal are as under:
4. A suit came to be filed by the appellant and two
others namely Chowdamma and Alamelamma in respect
of the agricultural land and tow house property which are
respectively.
5. The claim of the plaintiff is that, suit properties
are their joint family properties and Balaji Siddaiah alias
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Siddaiah was the Kartha of the joint family properties.
Plaintiffs claim that they are the daughters of said
Siddaiah and they were married and they were staying
with their respective husbands.
6. Defendant Nos.3 to 6 are the sons of Siddaiah.
There was another son other than defendant No.3 to 6 by
name Nagaraju who pre-deceased Siddaiah. First
defendant is the wife of Sri. Siddaiah. Defendant No.2 is
the wife of Nagaraju. Defendant Nos.2(A-C) are the
children of Nagaraju and Defendant No.2. Seventh
defendant is the purchaser of portion of the property and
he is stranger to the family.
7. It is the specific case that defendant Nos.1 to 6
sold the property in favour of 7th defendant denying the
right title and interest of the plaintiffs in the suit property
whereby rights of the plaintiffs were jeopardized and
sought for grant of their share in the suit property.
8. Purusant to the suit summons issued,
defendants entered appearance. Defendant Nos.1 to 6 had
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sold the property in favour of 7th defendant and did not
choose to contest the suit by filing the written statement.
It is the 7th defendant who contested the suit by filing the
detailed written statement denying the maintainability of
the suit as well as the other contentions raised in the
plaint. It was the specific case of the 7th defendant that
defendant Nos.1 to 6 having sold the property in favour of
the 7th defendant, instigated the plaintiff to file the suit
and sought for dismissal of the suit.
9. The suit was also filed by 7th defendant against
defendant Nos.1 to 6 in O.S.No.158/2005 which ultimately
got disposed of before this Court in RFA.No1073/2009,
whereunder, the 7th defendant was to pay additional sale
consideration in a sum of Rs.5,00,000/- to defendant
Nos.1 to 6 and therefore, sought for dismissal of the suit.
Based on the rival contentions, the Trial Court raised
necessary issues and two additional issues.
10. The learned Trial Judge after due Trial, held
that plaintiffs are the daughters of Siddaiah and they are
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the members of joint family but dismissed the suit of the
plaintiff stating that they had no right to in sofaras the
properties are concerned and if at all they have got any
claim, they can work out their claim from defendant Nos.1
to 6.
11. Being aggrieved by the dismissal of the suit, all
the plaintiffs filed an appeal before the district Court,
Mysore in RA.No.178/2011.
12. Learned Judge in the First Appellate Court
heard the parties in detail and raised as many as 7 points
and dismissed the appeal by answering that the findings
recorded by the Trial Court on issue No.4 which is a
rebuttal issue namely there is no cause of action to file the
suit is correct and so also the finding recorded by the Trial
Court on issue No.5 that the suit property was not
properly valued is just and correct and dismissed the
appeal.
13. Learned Judge in the First Appellate Court also
recorded a categorically finding that the applications filed
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by the plaintiffs-appellant for amendment of the plaint as
well as to place additional evidence on record would serve
no purpose, in view of the findings recorded by the First
Appellate Court that there was no cause of action to file
the suit which has been held in affirmative by the Trial
Court is correct and dismissed the appeal.
14. However, the learned Judge in the First
Appellate Court, allowed the cross objections in part and
finding recorded by the Trial Judge on issue No.2 stood set
aside.
15. Being further aggrieved by the same, one of
plaintiffs namely Padma, who was the first plaintiff before
the Trial Court, alone has preferred the present second
appeal on the following grounds.
16. Following substantial questions of law are also
raised in the appeal memorandum.
I. Whether the both courts below are justified
in dismissing the suit of the plaintiffs for partition,
though the both courts below have observed that
the schedule properties are the joint family
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properties and the plaintiffs are the daughters, and
there is no partition in the family, and the section
6A of the Succession Act and the reported decision
2005(1)KCCR 508-2005(5) KLJ 32 DB and the
decision rendered in RFA 326/2004 between
Pushpalatha Vs Padma Division Bench of this
Hon'ble Court dated 19.03.2010 and lordship Justice
Kumar in the reported decision RFA 326/2004 dated
19.03.2010 and Hon'ble Supreme Court in the
reported decision AIR 2011 SCW 732, 2007 (3)
Supreme 794, 2007 (6) SCC 401, AIR 2009 NOC
1847 (P&H) clearly held that the daughters are
entitled to equal share in the Joint family properties.
II. Whether the both courts below are justified
in dismissing the suit of the plaintiffs, though the
benefit of the Section 6A is very much applicable as
the suit for specific performance filed by the
purchaser M.S. Meer Azeezuddin decreed only in the
year 2009 i.e. on 10.09.2009, subsequent to the
2004, apart the daughters are not parties to sale
deed nor to any documents and that validity of sale
and very decree of O.S. 158/2005 is challenged in
another RFA 1073/2009 which is pending, since
both courts not applied mind at law nor correct facts
though they have equal share in the joint family
property and without consent of the daughters sold
the schedule property which is not binding on them
is settled law.
III. Whether the both courts below are
justified in dismissing the suit of the plaintiffs, when
the law of land is settled that, the entitlement of
daughters in joint family properties, just other
brothers sold joint family properties without consent
of the plaintiffs, it is not binding on the daughters as
they are not parties to the sale deed. But lower
appellate court allowed the cross appeal of 7th
defendant and illegally held the finding on issue No
2 are in correct and agreement of sale is binding on
married daughters though they have independent
separate right under Sec 6 (A) amended Hindu
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succession Act. Therefore, the lower appellate court
not justified in its findings since the suit for partition
filed by daughters in is quite maintainable.
IV. Whether the lower appellate court justified
in refusing to partition dismissing the suit, with
wrong interpretation of Section 6A, though this
Hon'ble Court in the reported decision AIR 2010 Kar.
124 (DB) passed in RFA 326/2004 dated 19.03.2010
clearly clarified as the proviso of section 6A is not
application to subsequent alienations and disposition
to 20.12.2004, in the present case the decree of the
specific performance is on 10.09.2009 which is
subsequent to the 20.12.2004. Therefore the lower
appellate court totally erred in wrong interpretation
of proviso section 6A to the present case though it is
not applicable, which is substantial question of law.
Therefore, interference of this Hon'ble Court is
necessary.
V. whether the courts below justified for relief
of sales made by brothers or agreements not
binding on sisters or daughters the separate court
fee has to pay under sec 24 of KSV and CF Act on
market value though the Hon'ble Supreme court
itself held not necessary.
VI. Whether the courts below justified the
partition suit to be dismissed as the other properties
of family acquired by MUDA Mysore not shown in
schedule, or other properties sold by mother and
brothers not shown since they are all saved by 2004
amended act. which are not available as the law
itself bar to include those properties.
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17. Sri. R. B. Anneppanavar, learned counsel for
appellant, re-iterating the grounds urged in the appeal
memorandum vehemently contended that the relationship
of the plaintiffs with the defendant Nos.1 to 6 is not in
dispute and therefore, they were entitled for the share in
property and that has not been properly considered by the
learned Trial Magistrate and learned Judge in the First
Appellate Court, resulting in miscarriage of justice and
sought for admitting the appeal on the aforesaid
substantial question of law for further consideration.
18. Defendant Nos.1 to 6 have admitted the
services of Sri. Y. K. Narayana Sharma who sails with the
appellant.
19. Learned counsel for defendant No.7
Sri. Subhash, supported the impugned judgment.
20. Having heard the parties in detail, this Court
perused the material on record meticulously.
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21. On such perusal of the material on record, the
only tact that is admitted by the 7th defendant is that
plaintiffs are the daughters of Siddaiah.
22. Admittedly, after the death of Siddhaiah, it is
Ningamma who managed the property and for the family
necessities, alienated the property in favour of the 7th
defendant.
23. There was some rift which made the 7th
defendant to file O.S.No.158/2005 which ultimately got
disposed of before this Court in RFA.No.1073/2009
referred to supra, where under the 7th defendant was
directed to pay additional sale consideration in a sum of
Rs.5,00,000/- and the same has also been complied by
the 7th defendant.
24. If at all, if any claim is there for plaintiff, it is
against their own mother Smt. Ningamma and other
defendants who are the brothers and sisters-in-law and
nephews and niece.
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25. Therefore, the claim against the 7th defendant
whose rights have been crystallized in RFA.No1073/2009,
cannot allowed to be reagitated by the sisters, in a second
round of litigation in the form of the suit before the Trial
Court which has been rightly dismissed by the First
Appellate Court as well.
26. Therefore, in view of the foregoing discussion,
this Court is of the considered opinion that the substantial
questions of law raised in the appeal memorandum does
not merit for further consideration.
27. Resultantly, the following:
ORDER
i) Appeal is merit less and is hereby dismissed.
ii) No order as to costs.
Sd/-
(V SRISHANANDA)
JUDGE
LDC
