Karnataka High Court
Smt.Adhilakshmi W/O K Mahadeva vs Sri.K Chidanand S/O K Thippanna on 7 May, 2024
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RFA No. 764 of 2010
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 07TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE S RACHAIAH
REGULAR FIRST APPEAL NO. 764 OF 2010 (PAR)
BETWEEN:
1. SMT ADHILAKSHMI
W/O. K. MAHADEVA
AGED 49 YEARS
2. SRI. LAKSHMINARAYANA
S/O K. MAHADEVA
AGED 30 YEARS
3. KUM. PADMA
D/O K. MAHADEVA
AGED 29 YEARS
4. SRI. M SOMASHEKAR
S/O K. MAHADEVA
AGED 27 YEARS
ALL APPELLANTS R/A
NO. 756, 66TH CROSS
KUMARASWAMY LAYOUT, 1ST STAGE
BANGALORE - 560 078.
...APPELLANTS
(BY SRI. A RAM MOHAN, ADVOCATE)
AND:
SRI. K. CHIDANAND
S/O K. THIPPANNA
MAJOR
R/A NO.224, 73RD CROSS
KUMARSWAMY LAYOUT, 1ST STAGE
BANGALORE - 560 078.
...RESPONDENT
(BY SRI. MURALI N, ADVOCATE)
THIS RFA IS FILED U/S.378(1) AND (3) OF CR.P.C PRAYING
TO SET ASIDE JUDGMENT AND DECREE PASSED IN OS NO 612/2002
ON 25-01-2010 BY THE FIRST ADDITIONAL CITY CIVIL AND
SESSIONS JUDGE (CCH-2) BANGALORE AND ETC.,
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RFA No. 764 of 2010
THIS APPEAL HAVING BEEN HEARD AND RESERVED ON
08.02.2024, COMING ON FOR PRONOUNCEMENT OF JUDGMENT,
THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT
1. This appeal is filed by the appellants who are
unsuccessful in the original suit filed by them. The Trial
Court by the judgment and decree dated 25.01.2010 in
O.S No.612/2002 dismissed the original suit filed for
partition and separate possession of the property.
2. The rank of the parties in the Trial Court will be
considered henceforth for convenience.
Brief facts of the case:
3. The appellant No.1 is the wife of deceased K.Mahadev
and other appellants are the children. The father of
K.Mahadev was allotted suit schedule property under the
dramatist quota by the BDA in the year 1976-1977.
Before registration of the said property, Sri.K.Thippanna
father of K.Mahadeva died. All the legal representatives
of the deceased K.Thippanna consented to transfer the
property in the name of Smt.Lakshmamma, who is the
wife of Thippanna. Accordingly, the BDA registered the
property on 03.07.1998 in favour of Smt.Lakshmamma.
It is further stated that the said Smt.Lakshmamma, after
registration of the property, bequeathed the property in
favour of the defendant. By virtue of the 'Will', the
defendant was enjoying the property by taking
possession thereof without partition of the said property
in favour of the plaintiffs though he knew that it is a joint
family property. Hence, the appellants herein filed
original suit for partition and separate possession of the
suit schedule property.
4. Heard Sri A Ram Mohan, learned counsel for the
appellants and Sri Murali N, learned counsel for the
respondent.
5. It is the contention of the learned counsel for the
appellants that the Trial Court failed to appreciate the
evidence on record and passed the impugned judgment
and decree which is against the evidence on record and
therefore, the said judgment and decree is required to be
set aside.
6. It is further contended that it is an admitted fact that the
appellants are wife and children of K.Mahadev who is the
son of the deceased K.Thippanna and Smt.Lakshmamma.
The appellants are co-parceners of the property of
deceased Smt.Lakshmamma and they are entitled to
have a share in the said property. Merely because one of
the co-parceners relinquished his rights over the
property, that may not be absolved the other
co-parceners to have share over the other schedule
property.
7. It is further submitted that plaintiff No.1 was working in
the garment factory and contributed for the welfare and
sustenance of the joint family. Plaintiff Nos.2 and 3 were
also working in private sector and providing money to the
joint family. Neither the defendant nor the allottee
purchased the BDA property without the contribution of
the plaintiffs. In fact, the defendant and her mother had
no independent income to get the BDA property
registered.
8. It is further submitted that the plaintiffs were requesting
the defendant on several occasions for partition the
property and put them in possession of the said property.
However, the said requests were being postponed without
making partition.
9. It is further submitted that since the property allotted in
the name of the kartha of the family namely
Sri.K.Thippanna, by consent of K.Mahadev and the
defendant, the BDA registered the property in the name
of wife of the original allottee. Therefore,
Smt.K.Lakshmamma being a co-sharer cannot make 'Will'
the entire property. Therefore, the property has to be
divided among the legal representatives of original
allottee. Making such submission, the learned counsel for
the appellants prays to allow the appeal.
10. Per contra, the learned counsel for the respondent
submitted that the relationship of the plaintiffs is
admitted and further submitted that Sri.K.Mahadeva
being the brother of the defendant was staying away
from the house in the year 1978-79. Therefore, the
question of contributing for the welfare of the joint family
property does not arise.
11. It is further submitted that in fact the brother of the
defendant namely Sri.K.Mahadev executed declaration
agreement by stating that he had no right over the
property. The plaintiffs have not proved that the property
is a joint family property, therefore, they are not entitled
for partition of the property. The 'Will' executed by the
deceased Lakshmamma in favour of the defendant has
been duly registered before the Sub Registrar and
therefore, it cannot be doubted. The registered
relinquishment deed executed by the husband of plaintiff
No.1 and father of other plaintiffs dated 15.03.2000 after
knowing that the 'Will' was executed by the deceased
Lakshmamma in favour of the defendant. Therefore, the
plaintiffs/appellants are not entitled for any relief. Making
such submission, the learned counsel for the respondent
prays to dismiss the appeal.
12. Having heard the learned counsel for the respective
parties and also perused the judgment and decree passed
by the Trial Court, the points which arise for my
consideration are:
i) Whether the Trial Court appreciated the pleadings
of the case properly in respect of joint family
property or not?
ii) Whether the plaintiffs / appellants proved that
they have contributed for the sustenance of joint
family property?
iii) Whether the findings of the Trial Court in
dismissing the suit is justified?
iv) What order?
13. The suit is filed by the wife and children of K.Mahadev
who is none other than the brother of the defendant. It is
the claim of the plaintiffs that the suit property was
allotted to Sri.K.Thippanna by the BDA under dramatist
quota. However, the said Sri.K.Thippanna died before
registration of the property. Later, the said property was
transferred to the wife of K.Thippanna who was none
other than the mother-in-law of plaintiff No.1 and
grandmother of other plaintiffs.
14. Even though the property has been allotted in favour of
K.Thippanna, he died before its registration and
subsequently after making necessary payment to the
authority, the property has been transferred to the wife
of original allottee. Therefore, the said property become
absolute property of Smt.Lakshmamma in terms of
Section 8 of Hindu Succession Act. As such, it can be
inferred that Smt.Lakshmamma is the absolute owner of
the property. Mere allotment of the property in favour of
K.Thippanna without its registration does not confirm any
title over the said property.
15. When the plaintiffs failed to prove the status of the joint
family property, there is no occasion for this Court to
interfere with the findings of the Trial Court in respect of
dismissal of the suit. Moreover, the plaintiffs have no
right over the property when the brother of the defendant
was alive. If at all, if any partition is required to be
sought, the brother of the defendant had to file suit for
partition against the defendant. In the present suit, the
brother of the defendant has not been made as a
necessary party and it is also seen from the record that
the said elder brother of the defendant had executed
relinquishment deed in favour of the defendant, that has
not been challenged.
16. When the plaintiffs have failed to prove that the
property is a joint family property and it has to be
partitioned among the family members, remaining issues
are not required to be answered. However, for the sake
of satisfaction, it can be considered. Even though PW.1
stated in her evidence that she contributed amount to
purchase the property, it cannot confer the right for
partition as the allottee namely Smt.Lakshmamma
becomes absolute owner of the property. The plaintiffs
are not entitled for any share even though the property
to be partitioned as K.Mahadev being one of the sons of
Lakshmamma is alive. Moreover, the said K.Mahadev
relinquished his right to the defendant. Therefore, the
findings of the Trial Court in dismissing the suit is
justified and therefore, I declined to interfere with the
said findings.
17. In the light of the observations made above, the points
which arose for my consideration are answered as
under:-
Point No.(i) - "Affirmative"
Point No.(ii) - "Negative"
Point No.(iii) - "Affirmative"
Point No.(iv) - "As per the final order"
18. Hence, I proceed to pass the following:-
ORDER
The appeal is dismissed without any costs and the parties
are hereby bear their respective costs.
Sd/-
JUDGE
Bss
