Karnataka High Court
Smt D Suma vs Smt Yashodamma on 28 June, 2024
Author: Krishna S Dixit
Bench: Krishna S Dixit
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RFA No. 1319 of 2008
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JUNE, 2024
PRESENT
THE HON'BLE MR JUSTICE KRISHNA S DIXIT
AND
THE HON'BLE MR JUSTICE RAMACHANDRA D. HUDDAR
REGULAR FIRST APPEAL NO. 1319 OF 2008 (PAR)
BETWEEN:
1. SMT. D. SUMA,
W/O LATE M. HARISH,
D/O D.V. GANGADHAR,
Digitally signed AGED ABOUT 35 YEARS,
by SHARADA
VANI B
Location: HIGH 2. MISS VYBHAVA,
COURT OF D/O LATE M. HARISH,
KARNATAKA AGED ABOUT 13 YEARS,
MINOR REPRESENTED BY HER MOTHER
AND NATURAL GUARDIAN APPELLANT NO.1
SMT. D. SUMA,
BOTH ARE RESIDING AT NO.3077, 4TH WARD,
DESHADAPETE, DODDABALLAPURA,
BANGALORE RURAL DISTRICT - 561 203.
...APPELLANTS
(BY SRI.S N ASWATHNARAYANA.,SENIOR ADVOCATE A/W
SRI.M. KRISHNAPPA., ADVOCATE)
AND:
1. SMT. YASHODAMMA,
W/O LATE M. MUNIYAPPA,
AGED ABOUT 63 YEARS,
2. SMT. SHYLAJA @ UMA,
D/O HANUR MUNEGWODA,
AGED ABOUT 35 YEARS,
3. M. SATHISH S/O LATE M. MUNIAPPA,
AGED ABOUT 37 YEARS,
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RFA No. 1319 of 2008
4. SMT. MAMATHA,
D/O LATE M. MUNIAPPA,
AGED ABOUT 31 YEARS,
5. CHI. AISHWARYA,
D/O LATE M. HARISH,
MINOR,
6. CHI. APOORVA,
D/O LATE M. HARISH
MINOR,
RESPONDENTS 5 AND 6 ARE
REPRESENTED BY NATURAL
GUARDIAN & MOTHER
SMT. SHYLAJA @ UMA,
AGED ABOUT 38 YEARS,
ALL ARE R/AT NELLUKUNTE,
MARASANDRA CROSS, YELAHANKA TOWN,
DODDABALLAPURA ROAD,
BANGALORE NORTH TALUK.
...RESPONDENTS
(BY SRI.A SAMPATH., ADVOCATE FOR R1 TO R6)
THIS RFA FILED U/S 96 OF THE CPC AGAINST THE
JUDGEMENT AND DECREE DT. 12.9.2008 PASSED IN OS
NO.65/2003 ON THE FILE OF THE CIVIL JUDGE, (SR. DN),
DODDABALLAPUR, DISMISSING THE SUIT FOR PARTITION AND
SEPARATE POSSESSION AND MESNE PROFITS
THIS RFA COMING ON FOR FINAL HEARING, THIS DAY,
KRISHNA S DIXIT.J., DELIVERED THE FOLLOWING:
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RFA No. 1319 of 2008
JUDGMENT
This appeal is directed against the judgment &
decree dated 12.09.2008 whereby, the learned Civil Judge
(Senior Division), Doddaballapur, has dismissed the
partition in O.S.No.65/2003. After service of notice,
respondent-defendants have entered appearance through
their advocate.
2. FOUNDATIONAL FACTS:
(a) 1st appellant-Smt.D.Suma and minor daughter-
Vybhava had filed O.S.No.65/2003 seeking a decree for
partition of properties fully described in the suit schedule,
claiming that they respectively happen to be widow and
daughter of one late Mr.M.Harish. It was alleged in the
plaint that the earlier partition of 1995 being fraudulent,
did not bring disruption of joint status and therefore, the
same was not binding.
(b) The defendants 1 to 6 who happen to be the
respondents herein filed the Written Statement resisting
the suit inter alia contending that the 1st plaintiff is not the
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wife of Mr.M.Harish and therefore, right to seek partition
would not accrue; even otherwise, partition having already
been effected way back in the year 1995, the same cannot
be put in challenge since averredly the 1st plaintiff claims
to have married Mr.M.Harish only in 1996, the 2nd plaintiff
having allegedly begotten thereafter. The suit properties
have already been sold before the institution of the suit
and therefore, suit is bad for non-arraignment of buyers of
the said properties.
(c) On the basis of the pleadings and the
documents produced by the parties, the following seven
principal issues were framed and answered thereto is also
indicated against each of them:
1. Whether plaintiffs prove that they are the
wife & child of the deceased M. Harish and were
the members of the joint family with
defendants?" [in the negative]
2. Whether plaintiffs further prove that suit
schedule movable & immovable properties are of
joint family in nature between them and the
defendants? [in the negative]
3. Whether defendants prove the severance
of status by Partition dt: 06.02.95 during the
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lifetime of Harish and some of the suit schedule
properties are already alienated? [in the
affirmative]
4. Whether plaintiffs' suit is bad for non-
joinder of the two daughters of 2nd defendant as
necessary parties? [in the negative]
5. Whether plaintiffs' Suit Valuation & Court
Fee paid is incorrect & not satisfactory? [in the
affirmative]
6. Whether plaintiffs are entitled to get
Partition, if so at what rate and in which of the
schedule properties? [in the negative]
7. Whether plaintiffs are entitled to get
mesne profits, at what rate? [in the negative]
Out of these seven principal issues, issue Nos.1, 2, 4, 6 &
7 are treated as and issue Nos.3 & 5 are in the.
(d) From the side of plaintiffs, the 1st appellant
herein was examined as PW.1. Three more persons were
examined as PWs.2, 3 & 4. In their deposition, as many as
21 documents were produced and got marked as Exhibits
P.1 to P.21; These documents inter alia comprised of
Voters List, Birth Certificates, Revenue Records,
Genealogical Tree, etc. From the side of defendants, the
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1st defendant-Smt.Shylaja and 2nd defendant-Mr.Satish
were examined as DWs.1 & 2. Four more persons were
examined as DWs.3 to 6; in their deposition, 21
documents came to be produced & marked as Exhibits D.1
to D.21 which inter alia included Death Certificate of
Mr.M.Harish, Genealogical Tree, Ration Card, Electoral List,
Palupatti, Admission Registers, etc. Learned trial Judge
having considered the pleadings of parties and evidentiary
material placed on record, dismissed the suit. The same
has been put in appeal before us.
3. Having heard the learned counsel for the parties
and having perused the Appeal Papers as also the original
Trial Court Records, we decline indulgence in the matter
broadly agreeing with the impugned judgment & decree
entered by the learned trial Judge, of course subject to
one aspect that will be discussed in due course hereafter.
4. Admittedly, there was a partition in the year
1995 which aspect is averred in the plaint itself; palupatti
also has been produced by the side of defendants and
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marked as Exhibit D.19. This partition admittedly
happened prior to the marriage of 1st plaintiff-Smt.D.Suma
with Mr.M.Harish who died years thereafter, having
begotten the 2nd plaintiff as the daughter. This marriage
averredly was not an arranged marriage, since the
spouses belonged to different communities; the marriage
ceremony was performed on 11.05.1995 at Dharmastala;
that being the position, the partition whereby the family
properties were divided, cannot be called in question by
the espouse and daughter of deceased coparcener,
especially when deceased himself had not laid a challenge
to the same though he was living up to eight years after
the partition. There is absolutely nothing in the pleadings
or evidence of the parties that the deceased had at any
point of time raised a little finger against the said
partition. In such a circumstance, court can presume that
deceased as a party to the partition had acquiesced in the
same and therefore, that acquiescence would bind the
plaintiffs who claim under the deceased.
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5. The 2nd plaintiff being the daughter of deceased
Mr.M.Harish also cannot lay a challenge to the partition to
which her father was a party inasmuch as she was born
only on 25.03.1996, the partition having happened on
6.2.1995. In fact, the marriage between her father and
mother admittedly was performed on 11.05.1995.
Therefore, neither she nor her widowed mother fits into a
class of persons who can seek reopening of the partition or
lay a challenge thereto, in the customary rules of Hindu
Law and much less the statute law, as rightly contended
by learned counsel for the respondents. A child in the
womb does not have legal personality till after it sees ray
of the Sun on being born alive vide WALKER vs. GREAT
NORTHERN RAILWAY CO., 28 l.r. (IRE.) 69 (1891).
Salmond's Jurisprudence, 12th Edition, discuss this aspect
of the matter in the Chapter titled "Persons" at page 303.
However, in customary Hindu Law, en ventre sa mere (a
child in the womb) is entitled to a share in the property on
a partition provided that it takes birth (alive), and not
otherwise. All this aspect of the matter does not assume
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much relevance to the case at hand, averred partition
having happened on 6.2.1995 and 1st appellant's marraige
with Mr.M.Harish having been performed much thereafter
i.e., on 11.05.1995.
6. There is force in the submission of learned
counsel appearing for the appellants only to the extent
that the marriage between 1st plaintiff and Mr.M.Harish
was performed at Dharmastala. The original evidence on
which the suit was decided and the additional evidence
placed on record during the pendency of this appeal
pursuant to Co-ordinate Bench's interlocutory order dated
25.08.2014 rendered under Order XLI Rule 27 of CPC,
1908, substantiate the event of marriage. A plausible
explanation has been offered as to why it was performed
at Dharmastala and the parents of 1st appellant were not
present: it was a love marriage solemnized between
persons belonging to different communities; 1st appellant
belongs to Devanga community, whereas deceased
Mr.M.Harish belongs to Vokkaliga community. In such
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marriages, be they anuloma or viloma, parents ordinarily
do not cooperate and much less participate, in tradition
bound communities, although such traditions are fast
withering away yielding place for an egalitarian order. It is
a welcome development ushered in the Makers of our
Constitution.
7. Learned counsel appearing for the appellants
when specifically asked as to why the buyers of the suit
properties that were comprised in the partition of 1995
have not been arrayed as defendants, there is no plausible
explanation for the same. It hardly needs to be stated that
no decree can be passed against persons who have bought
the properties prior to the institution of suit, they being
necessary and proper parties in the light of decision of
Apex Court in RAZIA BEGUM vs. SAHEBZADI ANWAR
BEGUM, AIR 1958 SC 886. Had they bought the subject
properties pendente lite, other factors would have fallen
for consideration. Much debate in this regard was not
undertaken on the floor of the Court, fact matrix having
been what it is. Added to this, no prayer has been made
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for at least a declaration that the subject partition does
not bind the plaintiffs and therefore, would not affect their
arguable interest in the suit properties; much less there is
a prayer for setting it aside. Suffice it to say that the
pleadings from the side of plaintiffs are highly
unsatisfactory and the evidence placed on record does not
impress the court that the trial was properly conducted
from the side of plaintiffs, to say the least. Be that as it
may.
8. All the above being said, one happy
development took place at the hearing of the matter:
whether the contesting respondents were prepared to buy
peace, was the question put; their learned counsel on
instructions of his client made a submission in the
affirmative and accordingly, filed the Memo dated
28.06.2024 which reads as under:
"Respondents are agreeable to pay Rs.1 crore to
the appellants to give up all their right and
claims in the suit schedule properties.
Respondent No.2 undertakes to deposit Rs.1
crore within a period of (3) three months. The
Memo may be taken on record."
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When the said offer was put to the leaned counsel
appearing for the appellants, he said that he has no
instructions from his clients in that regard. Therefore, we
took the pains to pen this judgment on merits too, of
course the offer of contesting respondents having been
made binding and enforceable in the best interest of the
1st appellant-mother and the 2nd appellant-daughter who is
said to have now qualified in law and preparing to join the
Noble Profession. However, the obligation to make the said
payment of Rs.1,00,00,000/- (Rupees One Crore) only, is
made dependent upon the appellants jointly filing an
affidavit in the Registry of this court within three weeks to
the effect that they would accept the payment and give up
all their claims whatsoever qua the suit properties and
acquiesce in the family partition of 1995. If this condition
is not complied with, the obligation to make the payment
which is not treated as ex gratia shall wither away, unless
the time is extended for filing such an undertaking.
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In the above circumstances, we make the following:
ORDER
[i] Although this appeal being unworthy of merits
is liable to be dismissed & accordingly, it is, there shall be
a decree against respondent No.3 Mr.M.Satish S/o late
M.Muniappa for a sum of Rs.1,00,00,000/- (Rupees One
Crore) only, in favour of the appellants. The said
respondent shall make the payment of this amount in
three installments: First installment of Rs.34,00,000/-
(Rupees Thirty Four Lakh) only, to be remitted on or
before 27.07.2024; the second installment of
Rs.33,00,000/- (Rupees Thirty Three Lakh) only, shall be
remitted on or before 26.08.2024 and the remainder i.e.,
Rs.33,00,000/- (Rupees Thirty Three Lakh) only, shall be
remitted on or before 25.09.2024.
[ii] The above remittance of the amount shall be
made in the Registry of this court; should delay be
brooked, the amount would carry interest at the rate of
3% per mensem, initially for a period of six months and at
the enhanced rate of 5% per mensem for the subsequent
period till payment is made.
[iii] Court in its discretion has apportioned the
above amount between the appellants equally and that the
Registrar General shall release the said amount
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accordingly, without brooking any delay, once the
remittance is made.
[iv] During the period of non-payment, whatever
immovable properties belonging to the 3rd respondent shall
not be alienated or encumbered, the obligation to pay the
subject money itself constituting a charge on the said
properties thereon. It is open to the appellants to have
this charge entered in the property records of the 3rd
respondent till after last of the installments is remitted as
directed above.
Costs made easy throughout.
Sd/-
JUDGE
Sd/-
JUDGE
BSV,CBC
