Karnataka High Court
Deenadayal vs Smt.Sarojama on 3 September, 2024
Author: V. Srishananda
Bench: V. Srishananda
-1-
NC: 2024:KHC:35943
RFA No.195 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 3RD DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE V. SRISHANANDA
REGULAR FIRST APPEAL NO.195 OF 2015 (PAR)
BETWEEN:
DEENADAYAL
AGED ABOUT 61 YEARS
SINCE DEAD BY HIS LR'S.
1(a). SMT. MANJULA
Digitally W/O LATE DEENADAYAL
signed by AGED ABOUT 52 YEARS.
MALATESH
KC 1(b). SARAVANAKUMAR D
Location: S/O LATE DEENADAYAL
HIGH AGED ABOUT 32 YEARS.
COURT OF
KARNATAKA
1(c) BALASUBRAMANI D
S/O LATE DEENDADYAL
AGED ABOUT 28 YEARS.
ALL ARE R/AT. NO.36
OLD BYAPPANAHALLI
M.S. NAGAR POST, BENGALURU-560033.
...APPELLANTS
(BY SRI. K.B. LOKANATH, ADV.,)
AND:
SMT. SAROJAMA
W/O A. SUBRAMANI
SINCE DEAD BY HER LEGAL HEIRS.
1. SMT. INDRANI .R
W/O RAMACHANDRAN
AGED ABOUT 68 YEARS
R/A NO.72, KANNAPPA BUILDING
OLD BYAPPANAHALLI
IST CROSS, BANGALORE.
-2-
NC: 2024:KHC:35943
RFA No.195 of 2015
A. SUBRAMANI
SINCE DEAD BY HIS LEGAL HEIRS.
2. INDRANI
W/O LATE SUBRAMANI .A
AGED ABOUT 64 YEARS.
3. LOGANAYAKI
D/O LATE SUBRAMANI .A
AGED ABOUT 48 YEARS.
4. NIRMALA
D/O LATE SUBRAMANI .A
AGED ABOUT 50 YEARS.
ALL ARE R/AT NO.64
OLD BYAPPANAHALLI
M S NAGAR POST
BANGALORE.
5. SHIVA
S/O LATE SUBRAMANI .A
AGED ABOUT 56 YEARS
R/A NO.64, OLD BYAPPANAHALLI
M S NAGAR POST, BANGALORE-33.
6. INDRANI
W/O LATE SHANMUGAM
AGED ABOUT 50 YEARS
R/A NO.17, 2ND MAIN ROAD
M S NAGAR, OLD BYAPPANAHALLI
BANGALORE-33.
7. DHANALAKSHMI
D/O LATE SUBRAMANI .A
W/O MOGAN
PATEL OLD BUILDING
OLD NO.13, OLD BYAPPANAHALLI
M S NAGAR POST, BANGALORE-33.
...RESPONDENTS
(BY SRI. H.N. PRAKASH, ADV., FOR R2
SRI. A. MADHUSUDHANA RAO, ADV., FOR R1, & R3 TO R5
R6 SERVED AND UNREPRESENTED
V/O DTD:17.08.2022 APPEAL AGAINST R7 IS DISMISSED)
---
-3-
NC: 2024:KHC:35943
RFA No.195 of 2015
THIS RFA IS FILED U/O 41 RULE-1 R/W SEC.96 OF CPC.,
AGAINST THE JUDGMENT AND DECREE DATED 20.12.2014 PASSED
IN O.S. NO.556/2004 ON THE FILE OF THE XLIII ADDL. CITY CIVIL &
SESSIONS JUDGE, CCH-44, BENGALURU, DISMISSING THE SUIT
FOR PARTITION AND SEPARATE POSSESSION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE V. SRISHANANDA
ORAL JUDGMENT
Unsuccessful plaintiff is the appellant whose suit seeking
partition and separate possession in respect of the following
immovable properties came to be dismissed:
SCHEDULE-A
Immovable property bearing No.36 situate in Old
Byappanahalli, Bangalore-33, consisting of a house and 4
shops measuring East to West 30 feet, North to South 40
feet bounded on the
East by : Vanitha Building belonging to
Krishnaswamy
West by : 20 feet Road
North by : House of Guramma
South by : Vanitha Building belonging to
Krishnaswamy
SCHEDULE-B
Property bearing site No.17 situate in Old Byappanahalli,
Bangalore-33 consisting of a residential house measuring
East to West 30 feet, North to South 40 feet bounded on
NC: 2024:KHC:35943
East by : Schedule C property bearing
No.18
West by : Road
North by : House of Veeraraghavan and
South by : Property of Rajareddy
SCHEDULE-C
Property bearing site No.18 situate in Old Byappanahalli,
Bangalore-33 measuring East to West 30 feet, North to
South 40 feet bounded on the
East by: Road
West by: Schedule-B property bearing No.17
North by: House of Narayanamma D/o Siddappa
South by: Property of Rajareddy
2. Facts in brief which are utmost necessary for the
disposal of the appeal are as under:
Appellant being the first plaintiff and Sarojamma who was
the first wife of first defendant filed a suit for partition against
A.Subramani and others. It is the contention of the plaintiffs
that plaintiffs and defendants constituted a Hindu joint family
and the family owned suit properties are the joint family
properties.
3. It is further contention of the plaintiffs that first
defendant deserted the first wife and the children born to the
first wife and got married Smt. Indrani. From the second
NC: 2024:KHC:35943
marriage, Shiva, Loganayaki and Nirmala were born. First
defendant further contended that the suit properties being the
joint family properties, first defendant having deserted the
plaintiffs, he is entitled for the share in the properties.
4. During the pendency of the suit, first wife
Smt.Sarojamma died and her legal representatives namely
Dhanalakshmi and Indrani were also included as party
defendants who were also party as plaintiffs.
5. Pursuant to the suit summons, first defendant filed
written statement contending that suit properties are the self
acquired properties of the first defendant and therefore, the
allegations which were contrary to the written statement
contents were all false and there was no property which was
owned by joint family and as such, suit for partition was not
maintainable.
6. Learned Trial judge, in view of the rival contentions,
raised the following issues:
"(1) Does plaintiff prove the suit schedule properties
are the joint family properties as alleged.
NC: 2024:KHC:35943
(2) Do defendant Nos.1 and 2 prove that the suit
schedule properties are the self acquired properties of
defendant No.1?
(3) Do defendant Nos.1 and 2 prove that B and C
schedule properties are sold to defendant No.3 for legal
necessity?
(4) Is plaintiff entitled to 1/2 share in schedule A, B
and C properties?
(5) What order or decree?"
7. In order to establish the case of the plaintiffs, first
plaintiff got examined himself as PW-1 and placed on record as
many as 20 documents which were exhibited and marked as
Exs.P1 to P20 comprising of certified copy of the sale deeds and
English translations thereof, legal notice, postal cover
genealogical tree, electoral identification cards, death certificate
of first defendant, encumbrance certificates in respect of suit
properties and ration card. On his behalf, there was one
witness by name Shegar Mudaliar who was examined as PW-2.
8. As against the evidence placed on record by the
plaintiffs, second wife of first defendant namely S.Indiramma @
S.Indirani was examined as DW-1 and S.Chandrashekhariah
and V.Chandra who were witnesses to the Will executed by first
defendant were examined as DWs-2 and 3. On behalf of the
NC: 2024:KHC:35943
defendants, Will executed by first defendant was marked as
Ex.D1 and sale deed as to how first defendant acquired the
property was marked as Ex.D2, transfer order and certificates
were marked as Exs.D3 to D8, Bank passbooks were marked as
Exs.D9 to D11, tax paid receipts were marked as Exs.D12 and
D13, another Will was marked as Ex.D14, medical certificate of
first defendant was marked as Ex.D15, tax paid receipts were
also marked as Exs.D16 to D18, another certificate was marked
as Ex.D19, cancellation of Will and another Will were marked as
Exs.D20 and D21.
9. On conclusion of the recording of evidence, the
learned Trial Judge, on cumulative consideration of the oral and
documentary evidence placed on record by the parties,
recorded a categorical finding that the suit properties are self
acquired properties of the first defendant. The learned Trial
Judge also noted that during the lifetime of the first defendant,
suit for partition was not maintainable.
10. Further, during the pendency of the suit, first
defendant died and therefore, enquiry was held whether the
plaintiffs would succeed to the properties if the first defendant
NC: 2024:KHC:35943
has died intestate. It is at this juncture, the Will marked at
Exs.D1, D14 and D21 and cancellation of Will vide Ex.D20 was
considered by the learned Trial Judge in detail.
11. Thereafter, the learned Trial Judge recorded a
categorical finding that the plaintiffs are not entitled for share
in view of the fact that the properties are self acquired
properties of first defendant and no proof was placed on record
by the plaintiff to prove that suit properties are the joint family
properties. Therefore, Will executed by first defendant is valid
and dismissed the suit of the plaintiffs. It is that judgment
which is challenged by the unsuccessful plaintiff on the
following grounds.
"The Judgment and Decree passed by the Trial Court
is arbitrary, caprecious, without considering the documents
on record, and contrary to Section-8 of the Hindu
Succession Act.
The Trial Court ought to have considered that, when
the appellant and the Respondents constitute Hindu Joint
Family, they were residing in one roof, when the father of
the appellant married second wife, the appellant and his
mother and sisters are residing separately from his father.
The Appellant and his family members are residing in one
portion of 'A' Schedule Property, it clearly shows that, the
Suit Schedule Properties are the joint family properties.
NC: 2024:KHC:35943
The Lower Court ought to have considered that, the
father of the appellant purchased the suit schedule
properties in the year 1967, out of the joint family funds,
the father of the 2nd Respondent, the grand-father of the
appellant had a properties in Tamilnadu, after selling the
properties in Tamilnadu, the father of the appellant
purchased the suit schedule properties in Bangalore in the
year 1967.
The Trial Court has committed an error while passing
the judgment and decree, during the pendency of the suit,
the father of the appellant died, under these circumstances,
the daughters and sons of 1st wife and daughter and sons
of 2nd wife are entitled to get a equal share, even in the self
acquired properties of the Respondent No.2 the father of
the appellant, the Lower Court came to the conclusion that,
the suit scheduled properties are the self acquired
properties of the 2nd Respondent, he has purchased the
properties subsequent to the properties of his grand-father,
executed. The Trial Court committed a serious error in
deciding the above point while passing the order.
Viewed from any angle, the Trial Court has not
considered Section-8 of the Hindu successions Act, when,
the father of the appellant died during the pendency of the
suit, the legal heirs of wife and legal heirs of 2nd wife are
entitled to get a equal share in the ancestrals and in the
self acquired properties, without considering all these
points and documents dismissed the suit for partition filed
by the appellant."
- 10 -
NC: 2024:KHC:35943
12. Sri.K.B.Lokanath, learned counsel for the appellant,
reiterating the grounds urged in the appeal memorandum,
contended that the learned Trial Judge erred in law in recording
a finding that the suit properties are self acquired properties of
the first defendant ignoring the material evidence placed on
record on behalf of the plaintiffs and therefore, the appeal
needs to be admitted for further consideration.
13. He also pointed out that the Will executed by first
defendant referred to supra is not proved in accordance with
law and therefore, dismissal of suit of the plaintiffs has resulted
in miscarriage of justice and sought for admitting the appeal for
further consideration.
14. Per contra, Sri.A.Madhusudhana Rao, learned
counsel for the contesting respondents supports the impugned
judgment by contending that after filing of the present appeal,
the very appellants have sold a portion of the property in item
No.1 of the suit properties which pre-supposes the validity of
the Will on which the defendants have laid the claim and the
learned Trial Judge has placed his reasoning on the said Will.
Thus, the impugned judgment is passed by appreciating the
- 11 -
NC: 2024:KHC:35943
material evidence on record in a pragmatic manner and sought
for dismissal of the appeal.
15. He also pointed out that the first defendant during
his lifetime has sold the suit item Nos.2 and 3 to the alienees
and in the absence of the alienees being made as party,
defendant No.3 Indrani and the recitals in the sale deed
executed by first defendant in favour of defendant No.3 would
clearly go to show that it is the self acquired property of first
defendant. Therefore, no further enquiry needs to be carried
out in this appeal by admitting the same and sought for
dismissal of the appeal.
16. Having heard the parties in detail, this Court
perused the material on record meticulously. On such perusal
of the material on record, it is crystal clear that the defendants
were successful in placing the title to the suit property
inasmuch as first defendant was no more by the time trial
commenced. Further, second wife of first defendant got
examined herself as DW-1 and also got examined two more
witnesses to substantiate the contents of the Will.
- 12 -
NC: 2024:KHC:35943
17. The material on record would also go to show that
at undisputed point of time, it is the first defendant who
acquired the title to the suit properties and at that point of
time, there was no other income other than the self-acquisition
of the first defendant.
18. Plaintiffs failed to place on record any material
evidence except oral evidence of PW-2 to show that there
existed the joint family and the first defendant got joint family
income and from that income, first defendant has earned the
suit properties.
19. In the absence of any such semblance of proof, the
appellants cannot rely upon the presumption unless the initial
burden is discharged by the plaintiffs to show that there existed
a joint family nucleus. Therefore, application of doctrine of joint
family nucleus and spill over is not applicable to the case on
hand which has been rightly appreciated by the learned Trial
Judge while recording a categorical finding that the suit
properties are self acquisition of the deceased first defendant.
Therefore, the question of plaintiffs claiming their share as joint
- 13 -
NC: 2024:KHC:35943
family members would not arise at all. Therefore, dismissal of
suit on that ground is just and proper.
20. This would take this Court to the next limb of
argument on behalf of plaintiffs that after the death of first
defendant, plaintiffs being the children and first wife, are
entitled to the share in the properties left behind by first
defendant.
21. It is at that juncture, the Will executed by first
defendant came into the picture and the proof of the Will has
been satisfactorily established by the defendants. Infact,
during the life time of the first defendant, suit item Nos.2 and 3
were sold. Further, it is submitted on respondent which is not
disputed by the learned counsel for the appellants that portion
of the property of suit item No.1 is also alienated by the
appellants, which pre-supposes the validity of the Will executed
by first defendant.
22. Therefore, by admitting the appeal, no useful
purpose would be served inasmuch as appellants have also
accepted the Will and alienated the portion of item No.1 of suit
properties as per the registered Will executed by first
- 14 -
NC: 2024:KHC:35943
defendant. Under such circumstances, following order is
passed.
ORDER
(i) Appeal grounds are merit less.
(ii) Accordingly, admission declined.
(iii) Appeal dismissed.
(iv) No costs.
Sd/-
(V SRISHANANDA)
JUDGE
RV
