Karnataka High Court
Smt. T S Shymala vs T S Srikanta Prasad on 25 November, 2024
Author: Krishna S Dixit
Bench: Krishna S Dixit
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RFA No. 1638 of 2013
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. 1638 OF 2013 (PAR)
BETWEEN:
SMT. T S SHYMALA,
SINCE DEAD REP. BY HER LR'S.
MR. RAMADAS,
S/O LATE D NARAYANASETTY,
AGED ABOUT 83 YEARS,
R/AT NO. 80, MIG-1, GROUP 1,
K H B COLONY, HOOTAGALLI,
MYSORE, KARNATAKA-570 018.
...APPELLANT
(BY SRI PADMANABHA V MAHALE, SENIOR COUNSEL A/W
Digitally SRI V RANGARAMU, ADVOCATE)
signed by
NANDINI R
AND:
Location:
High Court
of Karnataka 1. T S SRIKANTA PRASAD,
S/O LATE T N SOMASHETTY,
AGED ABOUT 62 YEARS.
2. T S SUBBALAKSHMI,
D/O LATE T N SOMASHETTY,
AGED ABOUT 59 YEARS.
BOTH ARE R/AT NO.11,
NEW NO.121, 3RD MAIN,
YADAVAGIRI, MYSORE-570 001.
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RFA No. 1638 of 2013
3. T S GIRIJAMBA,
D/O LATE T N SOMASHETTY,
W/O RAMESH,
AGED ABOUT 64 YEARS,
WORKING AS TEACHER,
NO.137, 4TH GROUP, K.H.B COLONY,
HOOTAGAHALLI, MYSORE-570 020.
4. SMT. CHANDRAKALA,
W/O LATE T S RAJASHEKAR,
AGED ABOUT 48 YEARS.
5. RASHMI,
D/O LATE T S RAKASHEKAR,
AGED ABOUT 20 YEARS.
R-4 & 5 ARE R/AT NO.11,
NEW NO.121, 3RD MAIN,
YADAVAGIRI-570 001,
MYSORE.
...RESPONDENTS
(BY SRI N SHANKARA NARAYANA BHAT, ADVOCATE FOR
R-1 TO R-5)
THIS RFA IS FILED U/SEC.96 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 22.07.2013 PASSED IN
O.S.463/2009 ON THE FILE OF THE II-ADDL. CITY CIVIL
JUDGE, MYSORE, DISMISSING THE SUIT FOR PARTITION AND
SEPARATE POSSESSION.
THIS APPEAL, 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
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RFA No. 1638 of 2013
ORAL JUDGMENT
(PER: HON'BLE MR JUSTICE C M JOSHI)
Being aggrieved by the judgment of dismissal dated
22-07-2013 in OS No.463/2009 by the learned II
Additional Senior Civil Judge and CJM, Mysore, the plaintiff
is before this Court in appeal.
2. Brief facts of the case are:
The plaintiff and defendants No. 1 to 3 and husband
of defendant No.4 were the sons and daughters of
T.N.Somashetty and Savitramma. T.N.Somashetty
inherited the suit schedule properties and he died intestate
on 09-06-1989 leaving behind him, his wife Savitramma,
the plaintiff and defendants No.1 to 3 and one
T.S.Rajashekhar, the husband of defendant No.4. They
being the Class-I legal heirs had inherited the suit
schedule properties with 1/5th share each in it. It is
contended that during life time of T.S.Rajashekhar, he
used to manage the joint family properties and whenever
the plaintiff demanded for partition, he postponed the
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same on one or the other pretext. The plaintiff came to
know that defendants No.1 to 3 and T.S. Rajashekhar
attempted to sell the plaint schedule properties, and
therefore, she caused a legal notice on 18-02-2009,
seeking partition. Instead of complying the same, an
untenable reply was given on 25-02-2009, wherein, the
request for partition was denied on the ground of an
earlier partition. Therefore, the plaintiff was constrained to
file the suit for partition.
3. During the pendency of the suit, the plaintiff
included a property situated at Chamarajanagar on the
ground that she came to know about it recently. The said
property was mortgaged by the original owner to the
brother of the plaintiff and since it was not redeemed, the
mortgagor filed a suit for redemption and the said suit was
pending.
4. On being summoned by the trial Court, the
defendants appeared through their counsel and contested
the matter by filing written statement. They denied that
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plaintiff had succeeded to the suit schedule properties as
Class-I heir of T.N.Somashetty. They contended that item
Nos.2 and 3 of the plaint schedule properties were
already divided between defendant No.1, T.S.Rajashekhar
and their father during the life time of T.N. Somashetty
and T.N.Somashetty had sold his share during his life
time. Mutation entries have been effected to that effect in
the year 1988. The plaintiff, defendants No.2 and 3 had
offered to release their share in item No.1 of the suit
schedule properties and accordingly, the plaintiff had
received more than Rs.65,000/- towards her share.
Therefore, the plaintiff has no right, title, or interest in the
suit schedule property and moreover, the plaintiff was
born on 13-3-1946 and as such, she is not entitled for
seeking any relief in the suit.
5. On the basis of the above pleadings the
following issues and additional issue were framed by the
trial Court:
1. Whether the plaintiff proves that she is the Class I
legal heir of deceased Somashetty and jointly
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succeeded the suit schedule properties along with the
defendants?
2. Whether defendants proves that the suit schedule
properties are already been partitioned and the plaintiff
has received more than Rs.65,000/- in lieu of her
share?
3. Whether the suit is properly valued and Court fee
paid is sufficient?
4. Whether the plaintiff is entitled for partition and
separate possession? If so, what is her share?
5. What order or Decree?
ADDL. ISSUE
1. Whether the Defendant No.3 proves that the suit is
bad for non-joinder of necessary parties?
6. Plaintiff examined herself as PW1 and Exhibits
P1 to P12 were marked on her behalf. Defendants No.3
and 4 were examined as DWs.1 and 2 and Exhibits D1 to
D140 were marked on their behalf. After hearing the
arguments, the trial Court answered issue Nos. 1,3,4 and
addl. issue No.1 in negative and issue No.2 in the
affirmative while dismissing the suit. Being aggrieved, the
plaintiff is before this Court.
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7. During the pendency of the appeal, the
plaintiff/appellant herein died and her legal heir was
brought on record.
8. On issuance of notice, the defendants/
respondents have appeared through their counsel and on
admitting the appeal, the trial Court records have been
received.
9. We have heard the arguments by learned
Senior counsel Sri Padmanabha Mahale along with Sri V.
Rangaramu, for the appellant and learned counsel Sri N.
Shankar Narayana Bhat, for the respondents.
10. Learned Senior counsel for the appellant
submits that the impugned judgment is not sustainable in
law, inasmuch as after discarding Ex.D140, which is a
partition deed sans registration, there was nothing to show
prior partition. Moreover, the appellant and her sisters
were not party to the same and it was not proved as
required under law. Therefore, the partition between the
siblings of the plaintiff was not established. It is submitted
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that when the father of the plaintiff died, even though it is
construed that the suit schedule properties are the
ancestral properties, plaintiff was entitled for a share in
the share that her father had in the ancestral property. He
submits that the plaintiff had sufficient income from her
provision stores and had lent money for the marriage of
the husband of defendant No.4 i.e., Rajashekhar and the
refund of the said sum by Rajashekhar is wrongly
construed by the trial Court as the part of the share of the
plaintiff in the suit schedule property. He also points out
that DW1 in her testimony before the trial Court speaks of
a Will executed by Somashetty, but it is not produced or
pleaded. He further submits that the trial Court wrongly
applied the principles enunciated in the case of
Pushpalatha Vs. Padma (AIR 2010 Karnataka 124) and
denied the share to the plaintiff on the ground that she is
born prior to 1956. Therefore, the version of defendants is
not believable and as such, the appeal deserves to be
allowed.
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11. Per contra, learned counsel appearing for the
respondents submits that even though the trial Court had
not relied on Ex.D140, Partition Deed, it had considered
the documents produced by DW2 which unequivocally
established that she had received Rs.65,000/- towards her
share. The husband of plaintiff and his brothers had
mortgaged the property to T.N.Somashetty and
redemption suit filed by them was dismissed and
therefore, in order to harass the defendants, the present
suit is filed. The failure on the part of the husband of the
plaintiff and his brothers to redeem the property would
indicate their financial capability and therefore, lending
money to T.S.Rajashekhar for his marriage is not
believable. He has supported the reasoning given by the
trial Court in dismissing the suit.
12. In the light of the above submissions, the only
point that arises for our consideration is:
Whether there was a partition between the plaintiff
and defendants and the plaintiff had received
Rs.65,000/- towards her share?
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13. The trial Court in its impugned judgment
though held that Ex.D140 is not proved, but observed
that the other evidence shows there was a partition. It
noticed that plaintiff failed to explain the receipt of
Rs.65,000/- and the circumstances showed that the
plaintiff was not capable of paying Rs.65,000/- to her
brother T.S.Rajashekhar as a loan for his marriage. The
husband of plaintiff and his brothers mortgaging their
property to T.N.Somashetty and they filing OS
No.86/2004, its dismissal and later the appeal being
allowed, shows that item No.4 of the suit schedule is not
amenable for partition. However, the circumstances
showed that plaintiff had received Rs.65,000/- and she
failed to explain the same with cogent evidence.
Therefore, it held that the suit is liable to be dismissed.
14. The reliance placed by the trial Court on the
decision in the case of Pushpalatha Vs. Padma, though
not sustainable, it is relevant to note that in the case of
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Vineeta Sharma Vs. Rakesh Sharma1 the Apex Court
had observed in para 135 as below:
"135. A special definition of partition has been carved
out in the Explanation. The intendment of the provisions is
not to jeopardise the interest of the daughter and to take
care of sham or frivolous transaction set up in defence
unjustly to deprive the daughter of her right as coparcener
and prevent nullifying the benefit flowing from the provisions
as substituted. The statutory provisions made in Section
6(5) change the entire complexion as to partition. However,
under the law that prevailed earlier, an oral partition was
recognised. In view of change of provisions of Section 6, the
intendment of the legislature is clear and such a plea of oral
partition is not to be readily accepted. The provisions of
Section 6(5) are required to be interpreted to cast a heavy
burden of proof upon proponent of oral partition before it is
accepted such as separate occupation of portions,
appropriation of the income, and consequent entry in the
revenue records and invariably to be supported by other
contemporaneous public documents admissible in evidence,
may be accepted most reluctantly while exercising all
safeguards. The intendment of Section 6 of the Act is only to
accept the genuine partitions that might have taken place
under the prevailing law and are not set up as a false
defence and only oral ipse dixit is to be rejected outrightly.
The object of preventing, setting up of false or frivolous
(2020)9 SCC 1
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defence to set at naught the benefit emanating from
amended provisions, has to be given full effect......"
15. Thus, it is clear that partition, if it is clear,
cogent, acted upon, parties enjoying their respective
portions with revenue entries as per such enjoyment, they
partake the character of a partition.
16. In the case on hand, defendants have
contended that there was a partition in the year 1988. The
revenue records produced at Ex. D1 to D23, D68 to 94
and the tax paid receipts produced at Ex.D24 to 67 would
go to show that the partition between T.N.Somashetty and
his sons, who constituted a coparcenary has found its way
to the revenue records. These revenue records clearly
show that the name of either the plaintiff or defendants
No. 2 and 3 was not entered in the records. Moreover, the
partition in the year 1988 is the source for the mutation
entry.
17. The cross-examination of PW1 shows that
though she admits that certain money was received by
her from her brother T.S.Rajashekhar, she states that it
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was for repayment of the loan which she had lent to
T.S.Rajashekhar for his marriage. She denies that her
financial condition was weak. It is relevant to note that the
judgment in OS No.86/2004 show that suit for redemption
was filed by her husband and his brothers after 30 years
of the mortgage. The mortgage was in favour of another
deceased brother of the plaintiff i.e., Parthasarathy. Later,
Parthasarathy died and Savitramma succeeded to interest
in the mortgaged property and after her death, it devolved
upon her children.
18. Therefore, the contention that she had sufficient
income to lend loan to T.S.Rajashekhar, cannot be inferred
from her evidence. On the other hand, the documents
produced by defendant No.4, in the form of pass books of
the bank accounts of herself and T.S.Rajashekhar would
show that a sum of Rs.62,200/- was paid by way of
cheques. The last transaction is in the year 1981. This
lends support to the contention that such payment was
made towards her share in the partition. It is also relevant
to note that mortgage was in the year 1974, suit in OS
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No.86/2004 came to be filed in the year 2004 and
admittedly, the marriage of T.S.Rajashekhar was in the
year 1981, but the plaintiff had married in the year 1976.
Therefore, the conclusions reached by the trial Court that
the plaintiff had received a sum of Rs.65,000/- towards
her share in the property is natural, more probable and
acceptable. Moreover, she has not explained the receipt of
Rs.65,000/- from T.S.Rajashekhar in her pleadings even
though she had been informed about it by the reply notice
of the defendants. The partition in the year 1988 having
been established by the defendants, the plaintiff is not
entitled to seek a partition. The Will spoken to by DW1 in
her cross-examination is not of much relevance as it is
only elicited in the cross examination. Therefore, we hold
that no fault can be found in the judgment of the trial
Court and on the other hand, we concur with the same.
The point raised above is answered in the negative. The
appeal is bereft of any merits and therefore, it is liable to
be dismissed. Hence, we pass the following:
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ORDER
The appeal is dismissed.
Costs made easy.
Sd/-
(KRISHNA S DIXIT)
JUDGE
Sd/-
(C M JOSHI)
JUDGE
tsn*
