Karnataka High Court
Smt Gangamma vs Sri Aswathiah @ Aswathanarayana on 25 November, 2024
Author: Krishna S Dixit
Bench: Krishna S Dixit
-1-
NC: 2024:KHC:47988-DB
RFA No. 307 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 25TH DAY OF NOVEMBER, 2024
PRESENT
THE HON'BLE MR JUSTICE KRISHNA S DIXIT
AND
THE HON'BLE MR JUSTICE C M JOSHI
REGULAR FIRST APPEAL NO. 307 OF 2017 (PAR)
BETWEEN:
1. SMT. GANGAMMA,
AGED ABOUT 49 YEARS,
W/O SRI. HANUMANTHARAYAPPA,
R/AT NO.77/1, SRI. VENKATESWARA NILAYA,
4TH CROSS, K.K.ROAD,
T.DASARAHALLI, BANGALORE-560 057.
2. SMT. NAGARATHNAMMA,
AGED ABOUT 46 YEARS,
W/O HANUMANTHARAYAPPA,
R/AT NO.2, 1ST MAIN, 3RD CROSS,
KEMPEGOWDA NAGAR, T.DASARAHALLI,
BANGALORE-560 057.
Digitally signed 3. SMT. RANGAMMA,
by CHETAN B
C AGED ABOUT 44 YEARS,
Location: HIGH W/O THIMMARAYAPPA,
COURT OF R/O NO.227/1, SRI. VENKATESWARA NILAYA,
KARNATAKA
4TH CROSS, K.K.ROAD, T.DASARAHALLI,
BANGALORE-560 057.
...APPELLANTS
(BY SRI. NITIN RAMESH.,ADVOCATE)
AND:
1. SRI. ASWATHIAH @ ASWATHANARAYANA,
AS PER V.C.O DATED 15.09.2022;
R1 DIED ON 07.10.17
REP BY HIS LRS A.NO.1 TO 3 & R2 & 3
ALREADY ON RECORD.
-2-
NC: 2024:KHC:47988-DB
RFA No. 307 of 2017
2. SRI. A. VENKATESH,
AGED ABOUT 52 YEARS,
S/O SRI. ASWATHAIAH @ ASWATHANARAYANA,
R/O NO.39, LAKSHMIPURA VILLAGE,
VIDYARANYAPURA POST,
YESHWANTHPUR HOBLI,
BANGALORE-560 097.
3. SRI. A. MANJUNATH,
AGED ABOUT 36 YEARS,
S/O SRI. ASWATHAIAH @ ASWATHANARAYANA,
R/O NO.227, NEAR POST OFFICE,
4TH CROSS, 2ND 'A' MAIN ROAD, K.K.ROAD,
T.DASARAHALLI, BANGALORE-560 057.
4. SMT. ANUSUYA T R,
AGED ABOUT 30 YEARS,
W/O SRI. A. MANJUNATH,
R/O NO.227, NEAR POST OFFICE,
4TH CROSS, 2ND 'A' MAIN ROAD, K.K.ROAD,
T.DASARAHALLI, BANGALORE-560 057.
...RESPONDENTS
(V.C.O DATED 15/9/2022, R2 & R3 LR'S OF DECEASED R1;
R2, R3 & R4 ARE SERVED BUT UNREPRESENTED)
THIS RFA FILED UNDER SEC.96 OF CPC, AGAINST THE
JUDGMENT DECREE DTD 01.12.2016 PASSED IN O.S.
NO.4658/2016 ON THE FILE OF THE VIII ADDL. CITY CIVIL
SESSION JUDGE, (CCH-15) AT BENGALURU DISMISSING THE
SUIT FOR PARTITION.
THIS RFA, COMING ON FOR FINAL HEARING, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE KRISHNA S DIXIT
and
HON'BLE MR JUSTICE C M JOSHI
-3-
NC: 2024:KHC:47988-DB
RFA No. 307 of 2017
ORAL JUDGMENT
(PER: HON'BLE MR JUSTICE C M JOSHI)
Being aggrieved by the judgment and decree in
O.S.No.4658/2016 dated 1.12.2016, the plaintiffs are
before this court in appeal.
2. The plaintiffs and defendants No.2 & 3 are
siblings born to defendant No.1 - Sri.Aswathanarayana.
The plaintiffs being the daughters of defendant No.1 have
instituted the suit against defendants 1 to 3. The plaintiffs
contended that Rangahanumaiah was the propositus of the
joint family and he had four children and during his
lifetime, he and his children had acquired immovable
properties and when Rangahanumaiah died intestate, the
joint family consisting of his four children inherited the suit
schedule properties. Thereafter, there was an oral partition
between four sons of Rangahanumaiah and the land
Sy.No.33/1 fell to the share of defendant No.1, who is
father of plaintiffs. The contention of the plaintiffs is that
they being the daughters, are also entitled for a share in
the partition dated 18.04.2016 that took place between
NC: 2024:KHC:47988-DB
the defendant Nos.1 to 3 inter se, where they were kept
out. It was also alleged that the partition deed executed
amongst defendants 1 to 3 and later, the 4th defendant
being gifted with one of the property by her husband i.e.,
3rd defendant, is not binding on the plaintiffs and
therefore, they are entitled for a share.
3. On being summoned by the Trial Court, the
defendants did not appear to contest the suit.
4. After recording the evidence of one of the
plaintiffs, Exhibits P1 to P9 being marked, the Trial Court
framed only one point to the effect that whether the
plaintiffs are entitled for the relief sought for. By holding
that the evidence placed on record by the plaintiffs does
not disclose all the facts to opine that the plaintiffs have
tried to mislead the court only to get the collusive decree,
had dismissed the suit. The reason to hold that the
plaintiffs had misled the court was that all the documents
showing that the name of the plaintiffs was also shown in
the revenue records, was not placed before it.
NC: 2024:KHC:47988-DB
5. The learned counsel appearing for the
appellants/plaintiffs submit that there was no reason to
opine that the plaintiffs have filed a collusive suit. It is also
submitted that the only question the Trial Court should
have looked into is to find out whether the suit schedule
properties are the joint family properties or not and
whether they are amenable for partition between the
plaintiffs and defendants.
6. It is submitted that when the properties were
standing in the name of Rangahanumaiah and some other
properties were acquired by the joint exertion of the
defendant No.1 and his brothers, the properties remained
to be joint family properties and as such, on the demise of
Rangahanumaiah, the plaintiffs are also entitled for a
share while the defendant No.1 and his sons got
partitioned on 18.4.2016. Therefore, this aspect was never
looked into by the Trial Court and as such, the impugned
judgment is not sustainable in law.
NC: 2024:KHC:47988-DB
7. On a careful perusal of the impugned judgment
as well as the records, it is evident that the moot question
that was before the Trial Court was to find out whether the
plaintiffs and defendants had succeeded to or had acquired
any right in the suit schedule properties, for, they being
either the properties devolved upon them from
Rangahanumaiah or being acquired by the joint exertion of
Rangahanumaiah and the defendants 1 to 3. The Trial
Court did not bestow its attention to look whether the
plaintiffs and defendants 1 to 3 were coparceners having
an interest in the properties. Therefore, the Trial Court
coming to the conclusion that the plaintiffs have not
placed any document on record to show that their names
also appeared in the revenue records of the joint property,
does not stand for any reason.
8. It is the case of the plaintiffs that even though
there was a partition among defendants 1 to 3 on
18.04.2016, such partition is not binding on them since
they had already acquired a right in the property that had
NC: 2024:KHC:47988-DB
fallen to the share of defendant No.1 in the partition
among his brothers. Obviously, this aspect is not
considered by the Trial Court.
9. Therefore, we are of the view that an
appropriate point has not been considered by the Trial
Court on the basis of the available material. Hence, the
matter has to be sent back to the Trial Court to answer the
point raised by the plaintiffs in the suit i.e., whether the
suit schedule properties are the ancestral or the acquired
properties of the joint family of Rangahanumaiah and his
children and it devolved upon dependant No.1 as ancestral
property. After answering the said question, the Trial
Court has to dispose of the matter, in accordance with law,
of course, after affording another opportunity to the
defendants to place their contention if any, in the matter.
10. We direct that the Trial Court shall complete the
exercise within a period of eight months from the date of
receipt of copy of order of this court.
NC: 2024:KHC:47988-DB
The appeal is accordingly allowed in terms of the
above order.
Costs made easy.
Sd/-
(KRISHNA S DIXIT)
JUDGE
Sd/-
(C M JOSHI)
JUDGE
cbc
