Karnataka High Court
T S Thriveni vs T S Santhaveni Alias Shanthamma on 5 November, 2024
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NC: 2024:KHC:44471
RSA No. 1300 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 5TH DAY OF NOVEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 1300 OF 2024 (PAR)
BETWEEN:
T S THRIVENI
W/O BASAVARAJU
D/O LATE. B. SIDDAPPA,
AGED ABOUT 52 YEARS,
R/O THOREMAVINAHALLI
VILLAGE, KASABA HOBLI,
TURUVEKERE TALUK, -572201
...APPELLANT
(BY SRI. SHRUTHI S P., ADVOCATE)
AND:
1. T S SANTHAVENI ALIAS SHANTHAMMA
W/O MOHAN
Digitally signed D/O LATE. B. SIDDAPPA
by SUNITHA K
S AGED ABOUT 52 YEARS, R/O KAREHALLY,
SHETTIKERE HOBLI,
Location: HIGH
COURT OF CHIKKANAYAKANAHALLI TALUK,
KARNATAKA TUMKUR DISTRICT - 572226
2. T.S. USHADEVI ALIAS USHADEVI
W/O M.S. BASAVARAJU
D/O LATE. B. SIDDAPPA,
AGED ABOUT 49 YEARS,
R/O K. MATHIGHATTA,
KASABA HOBLI, GUBBI TALUK,
TUMKUR DISTRICT.-572226
...RESPONDENTS
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NC: 2024:KHC:44471
RSA No. 1300 of 2024
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 27.04.2024
PASSED IN RA.NO.10041/2022 ON THE FILE OF THE V
ADDITIONAL DISTRICT AND SESSIONS JUDGE, TUMAKURU
(SITTING AT TIPTUR) DISMISSING THE APPEAL AND
CONFIMRING THE JUDGMENT AND DECREE DATED 21.07.2022
PASSED IN O.S.NO.19/2018 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC, TURUVEKERE.
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI
ORAL JUDGMENT
This regular second appeal is filed challenging the
judgment and decree dated 27.04.2024 passed in
R.A.No.10041/2022 by the V Additional District and
Sessions Judge, Tumakuru sitting at Tiptur and judgment
and preliminary decree dated 21.07.2022 passed in
O.S.No.19/2018 by the Senior Civil Judge and JMFC,
Turuvekere.
For convenience, parties are referred to as per their
ranking before the trial Court. The appellant is defendant,
and the respondents are the plaintiffs.
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3. The brief facts leading rise to the filing of this
appeal are as under:
Plaintiffs filed suit against the defendant for partition
and separate possession, contending that one B. Siddappa
was the original propositus of the family of defendant and
plaintiffs. Plaintiff No.1 is the wife of B. Siddappa, and
plaintiffs No.2 and 3 are the daughters of B. Siddappa. It
is the case of the plaintiffs that suit schedule properties
are the ancestral and joint family properties of
B. Siddappa. Said B. Siddappa died on 13.11.2011.
B. Siddappa had executed a Will on 13.08.1998 regarding
the suit schedule properties. Plaintiffs No.2 and 3 filed a
petition for probate in P&SC No.10007/2016. The petition
came to be dismissed because plaintiffs No.2 and 3 did not
prosecute the said case. The defendant is claiming the
right based on the relinquishment deed dated 07.12.2011,
said to have been executed by plaintiff No.1 in favour of
the defendant. It is contended that plaintiffs No.2 and 3
have not executed any relinquishment deed relinquishing
their right in favour of the defendant. It is contended that
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the defendant and her husband got executed
relinquishment deed from plaintiff No.1 by playing fraud.
It is contended that the Will is in defendant's custody. The
plaintiffs demanded partition and separate possession, but
the defendant refused. Hence, a cause of action arises for
the plaintiffs to file a suit for partition and separate
possession.
4. Defendant filed a written statement admitting
the relationship between the parties. It is contended that
plaintiff No.1 executed a relinquishment deed on
07.12.2011 relinquishing her right over the suit schedule
property in favour of plaintiffs No.2 and 3 and the
defendant by receiving an amount of Rs.40,000/-. Plaintiff
No.1 has no share in the suit schedule property. Hence,
prays to dismiss the suit.
5. The Trial Court, based on the aforesaid
pleadings, framed relevant issues.
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6. Plaintiffs to prove their case plaintiff No.1 was
examined as PW-1 and marked 27 documents as Ex.P.1 to
Ex.P.27. Defendant was examined as DW-1 and examined
one witness as DW-2 and marked four documents as
Ex.D.1 to Ex.D.4.
7. After recording the evidence, the trial Court
rightly decreed the case of plaintiffs No.2 and 3 with cost
and dismissed the suit of plaintiff No.1. It is declared that
the registered release deed dated 07.12.2011 executed by
plaintiff No.1 in favour of plaintiffs No.2, 3 and defendant
is binding on the plaintiff No.1. Plaintiffs No. 2 and 3 are
entitled to 1/3rd share each in the suit properties by metes
and bounds. The defendant is also entitled to 1/3rd share
in the suit schedule property by metes and bounds on
payment of the required Court fee of her share.
8. Defendant aggrieved by the judgment and
preliminary decree passed in O.S.No.19/2018 preferred
appeal in R.A.No.10007/2022 on the file of V Additional
District and Sessions Judge, Tumakuru, sitting at Tiptur.
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The Appellate Court, after reassessing the oral and
documentary evidence, dismissed the appeal and
confirmed the judgment and decree passed by the trial
Court. Defendant aggrieved by the impugned judgments,
filed this regular second appeal.
9. Heard the learned counsel for the defendant.
10. Learned counsel for the defendant submits that
plaintiff No.1 had executed a relinquishment deed,
relinquishing her rights over the suit schedule properties
by accepting Rs.40,000/-. The plaintiffs are not entitled to
share in the suit schedule property. The Courts below have
committed an error in passing the impugned judgments.
Hence, on these grounds, prays to allow the appeal.
11. Perused the record and considered the
submissions of the learned counsel for the defendant.
12. There is no dispute regarding the relationship of
the plaintiffs and defendant and the nature of the suit
schedule property. It is the defendant's defence that
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plaintiff No.1 relinquished her right in favour of plaintiffs
No.2, 3 and the defendant. Admittedly, the suit schedule
property was owned and possessed by the original
propositus i.e., B. Siddappa. Plaintiff No.1 had no right to
relinquish the right in favour of plaintiffs No.2, 3 and
defendant. The plaintiffs No.2 and 3 have not executed
any relinquishment deed relinquishing their rights in
favour of the defendant. Admittedly, the suit schedule
properties are ancestral joint family properties of the
plaintiffs and defendant, and they are the members of the
Hindu undivided family, and no partition is effected
between the plaintiffs No.2, 3 and the defendant.
Plaintiffs No.2 and 3 are entitled to the share in the
suit schedule properties. The trial Court, considering the
relationship between the parties and the nature of the suit
schedule properties, has rightly passed the impugned
judgment, rightly decreed the suit of the plaintiffs No.2
and 3 and granted 1/3rd share each to plaintiffs No.2 and 3
and defendant. The Appellate Court, on reassessment of
oral and documentary evidence has rightly confirmed the
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judgment and preliminary decree passed in
O.S.No.19/2018. Hence, the judgments and decrees
passed by the Courts below are just and proper and does
not call for any interference.
13. I do not find any substantial question of law
that arises for consideration in this appeal.
14. Accordingly, I proceed to pass the following:
ORDER
(i) Appeal is dismissed.
(ii) Judgment and decree dated 27.04.2024
passed in R.A.No.10041/2022 by the V
Additional District and Sessions Judge,
Tumakuru sitting at Tiptur and judgment and
preliminary decree dated 21.07.2022 passed
in O.S.No.19/2018 by the Senior Civil Judge
and JMFC, Turuvekere are hereby confirmed.
No order as to the cost.
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In view of the dismissal of the appeal, I.A.No.3/2024
does not survive for consideration. Accordingly, disposed
of.
Sd/-
(ASHOK S.KINAGI)
JUDGE
BVK
