Karnataka High Court
Smt Leelavathi vs Smt Lakshmamma on 30 May, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2024:KHC:18381
RSA No. 1834 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF MAY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 1834 OF 2018 (PAR)
BETWEEN:
1. SMT. LEELAVATHI
W/O. RAMESH
AGED ABOTU 47 YEARS
R/AT THYARANDUR VILLAGE,
GUDDEKOPPE POST,
THIRTHAHALLI TALUK-577 432
...APPELLANT
(BY SRI. PRAKASHA HEGDE K., ADVOCATE)
AND:
1. SMT. LAKSHMAMMA
Digitally signed
by DEVIKA M W/O LATE ANNAIAH POOJARI
Location: HIGH AGED ABOUT 71 YEARS
COURT OF
KARNATAKA 2. SMT. NALINI
W/O. RAMESH
AGED ABOUT 38 YEARS
3. RACHAN
S/O. RAMESH
AGED ABOUT 20 YEARS
4. ROHAN
S/O. RAMESH
AGED ABOUT 12 YEARS
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RSA No. 1834 of 2018
RESPONDENT NOS.3 AND 4 ARE MINORS
REPRESENTED BY THEIR NEXT
FRIEND AND MOTHER BY SMT. NALINI
THE 2ND RESPONDENT
ALL ARE RESIDENT AT INGLADI VILLAGE
DEVANGI POST
THIRTHAHALLI TALUK-577 415.
5. SMT. BHANUMATHI
W/O. BHOJARAJA
AGED ABOUT 49 YEARS
R/AT MALAGURU VILLAGE
GUTHIYEDEHALLI POST,
THIRTHAHALLI TALUK-577411
...RESPONDENTS
(RESPONDENT NOS.1 TO 3 & 5 ARE SERVED &
UNREPRESENTED;
R4 IS MINOR REPRESENTED BY R2)
THIS RSA IS FILED UNDER SEC.100 OF CPC, AGAINST
THE JUDGMENT AND DECREE DTD 14.06.2017 PASSED IN
RA.NO.32/2016, ON THE FILE OF THE SENIOR CIVIL JUDGE
AND JMFC., THIRTHAHALLI, ALLOWING THE APPEAL AND
MODIFYING THE JUDGMENT AND DECREE DATED23.07.2016
PASSED IN OS.NO.84/2013 ON THE FILE OF THE ADDL.CIVIL
JUDGE AND JMFC., THIRTHAHALLI.TRIAL COURT PARTLY
DECREED THE SUIT. APPELLATE COURT ALLOWED THE APPEAL
THE SUIT FOR PARTITION AND SEPARATE POSSESSION.TIME
BARREDCF SUFFICIENTIA 1/18 FOR CD IN FILINGIA 1/18
FILED UNDER SEC.5 OF LIMITATION ACT.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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NC: 2024:KHC:18381
RSA No. 1834 of 2018
JUDGMENT
This matter is listed for admission. Heard the learned
counsel for the appellant.
2. The suit is filed by the appellant/plaintiff before
the Trial Court seeking 1/4th share with respect of suit
schedule properties contending that suit schedule
properties are Hindu undivided joint family properties of
the plaintiff and defendants. Hence, entitled for 1/4th share
and only the 2nd defendant who is the wife of deceased
Ramesh contested the matter that her husband was
managing the family affairs and he was acting as kartha of
the family and admitted the relationship between the
parties. It is contended that earlier house was dilapidated
house and he constructed new house situated at present
in the suit schedule property investing all the funds. He
also converted the wet land 'A' schedule property into
garden land with his hard-earned money as he was
contractor and skilled man. He also borne expenses of
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marriage of his sisters i.e., plaintiff and defendant No.5 by
borrowing loans from the firms. It is contended that her
husband Ramesh is having ½ share in 'A' and 'B' schedule
properties. Therefore, the khata was changed to joint
names of Laxmamma and Ramesh. Subsequently the
khata was changed to the names of defendant Nos.1 to 4.
Hence, the plaintiff is not entitled for 1/4th share in the suit
schedule properties. The Trial Court having considered
both oral and documentary evidence, comes to the
conclusion that the grant was granted in favour of Annaiah
Poojari in the suit schedule properties and also comes to
the conclusion that suit schedule properties are Hindu
undivided joint family properties of the plaintiff and
defendants and answered the issue No.1 as affirmative
and however, answered issue No.2 as partly affirmative in
coming to the conclusion that plaintiff is entitled to 1/4th
share in the ½ share allotted to deceased Annaiah Poojari
over the suit schedule properties.
3. Being aggrieved by the judgment and decree of
the Trial Court, an appeal is filed by the plaintiff before the
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First Appellate Court in R.A.No.32/2016. The First
Appellate Court also allowed the appeal in part in coming
to the conclusion that grant made in favor of the father is
in favour of the family and only daughter is entitled for the
notional partition and entitled for 1 share in the suit
schedule property and defendant No.2 who is the wife of
Ramesh is entitled for 5/8th share in the suit schedule
properties along with defendant Nos.3 and 4 by effective
partition by metes and bounds and modified the same as
1/8th share.
4. Being aggrieved by the judgment of the Trial
Court and also the First Appellate Court, the present
second appeal is filed before this Court. This Court issued
notice to respondents and served the same and none of
them have represented before the Court.
5. Having heard the learned counsel for the
appellant and also on perusal of material when the Trial
Court comes to the conclusion that the suit schedule
properties are Hindu undivided joint family properties and
answered the issue No.1 as affirmative and committed an
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error in granting 1/4th share in ½ share of the suit
schedule properties and the very approach of the Trial
Court is erroneous. The First Appellate Court also
committed an error in coming to the conclusion that grant
made in respect of entire land for the purpose of
cultivation and admittedly the grant is made in favour of
the father and when there is no any testamentary
document and when father left his wife and three children,
ought to have invoked Section 8 of Hindu Succession Act.
The Trial Court as well as the First Appellate Court
committed an error, even assuming that if the property is
granted in favour of the family also, there was no any
partition among the members of the family. The records
also discloses that after the death of the father, only khata
has been changed in the name of the 2nd defendant and
also the mother. There was no any partition in the family,
when such being the aspect of the case, ought to have
invoked Section 8 of Hindu Succession Act and granted the
relief of 1/4th share and the First Appellate Court
committed an error in granting 1/8th share and invoking of
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principles of notional partition is also erroneous on the
part of First Appellate Court. Hence, the matter requires
re-consideration.
6. In view of the discussions made above, I pass
the following:
ORDER
i) The second appeal is allowed.
ii) The judgment and decree of the Trial Court as
well as the First Appellate Court is modified
granting 1/4th share in favour of the
plaintiff/appellant in the suit schedule property.
Sd/-
JUDGE
RHS
