Dismissed

Smt Susheelamma v. Thimmappa

Karnataka HC10 Oct 2013RSA/1232/2009

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed the regular second appeal filed by an appellant challenging the dismissal of her partition suit. The court held that the suit was barred by limitation as she failed to set aside a prior compromise decree within the statutory period, leading to the rejection of her claim.

What did the court decide?

The appeal is dismissed, and the judgment and decree of the first appellate court are upheld.

Smt Susheelamma Vs Thimmappa — Partition | Karnataka HC (2013)

¶1

RSA 1232/2009

¶2

-1-

¶3

IN THE HIGH COURT OF KARNATAKA AT BANGALORE

¶4

DATED THIS THE 10^th DAY OF OCTOBER, 2013

¶5

BEFORE

¶6

THE HON’BLE MR.JUSTICE A.S.PACHHAPURE

¶7

REGULAR SECOND APPEAL No.1232/2009

¶8

BETWEEN

¶9

SMT.SUSHEELAMMA W/O M G MARULAPPA, AGED ABOUT 49 YEARS R/O SINGATERE VILLAGE & POST KADUR TALUK, CHIKKAMAGALUR DISTRICT.

¶10

... APPELLANT

¶11

(By Sri.G. NARAYANA RAO, ADV.)

¶12

AND

¶13

THIMMAPPA S/O DASAPPA, SINCE DECEASED BY HIS LRS.

¶14

1(a) SMT MARULAMMA, W/O LATE THIMMAPPA, AGED ABOUT 71 YEARS,

¶15

1(b) SRI GANGADHARAPPA S/O LATE P D THIMMAPPA, AGED ABOUT 46 YEARS

¶16

1(c) SRI PUTTASWAMY S/O LATE P D THIMMAPPA, AGED ABOUT 40 YEARS

¶17

1(d) SRI RAMASWAMY S/O LATE P D THIMMAPPA, AGED ABOUT 38 YEARS

¶18

-2-

¶19

RSA 1232/2009

¶20

1(e) SRI MALLIKARJUNA

¶21

S/O LATE P D THIMMAPPA,

¶22

AGED ABOUT 37 YEARS

¶23

1(f) SRI AMMAIAH

¶24

S/O LATE P D THIMMAPPA,

¶25

AGED ABOUT 30 YEARS

¶26

2 SMT.ONKARAMMA

¶27

D/O LATE DASAPPA, AGED ABOUT 56 YEARS

¶28

ALL ARE R/A PACHANAHALLY VILLAGE & POST SINGATAGERE HOBLI, KADUR TALUK CHIKKAMAGALUR DISTRICT.

¶29

... RESPONDENTS

¶30

(By Sri.N.R. NAIK & ASSOCIATES, ADV. FOR R1(a to f) and 2

¶31

RSA FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DATED:11.03.2009 PASSED IN R.A.NO.15/2008 ON THE FILE OF THE CIVIL JUDGE, (SR. DN.), KADUR, ALLOWING THE APPEAL AND SETING ASIDE THE JUDGEMENT AND DECREE DATED: 11.10.2006 PASSED IN OS.NO.300/2001 ON THE FILE OF THE PRL. CIVIL JUDGE, (JR. DN.), KADUR.

¶32

THIS APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

¶33

JUDGMENT

¶34

The appellant has challenged the judgment and

¶35

decree dismissing her suit for partition and setting aside the decree of the trial Court on an appeal by the respondents.

¶36

-3-

¶37

RSA 1232/2009

¶38

The facts relevant for the purpose of this appeal are as under;

¶39

The parties will be referred as per their rank before the trial Court for the sake of convenience. The appellant/plaintiff has instituted the suit for declaration, partition and separate possession of her share in the suit schedule properties described in the schedule to the plaint. The first defendant is the mother, deceased defendant No.2 and defendant No.3 are her brothers and defendant Nos.4 and 5 are the sisters. The plaintiff claimed that there was a partition between the parties in the life time of her father under the registered partition deed dated 10.6.1961. In the said partition the suit properties were given to the share of her deceased father. She contended that they were in joint possession of the suit properties with the defendants.

¶40

RSA 1232/2009

¶41

-4-

¶42

The defendants appeared and filed written

¶43

statement denying the allegations and contended that on the death of the father, the first defendant has gifted the suit agricultural lands each measuring 2 acres and 14 guntas to Onkarammadefendant No.5 under a gift deed dated 10.1.1977. So also it was their contention that in respect of the properties fallen to the share of their father, the suit in OS No.44/1977 was filed, wherein the plaintiff was a party and the said suit was compromised on 17.1.1979. Under the compromise, the suit properties have been partitioned amongst the two brothers and Onkaramma the other sister. Therefore, they contend that since from the date of the gift and the compromise decree for partition, the plaintiff has been excluded from the joint possession and therefore the question of the suit properties being family properties does not arise for consideration. On these grounds they sought for dismissal of the suit.

¶44

-5-

¶45

RSA 1232/2009

¶46

The trial Court framed the issues and permitted the parties to lead evidence. Accordingly, the plaintiff examined herself as PW1 and two witnesses PWs.2 and 3 and got marked the documents Exs.P1 to P3. Defendants examined DW1 and Exs.D1 to D15 were marked. The trial Court after hearing the counsel for the parties and on appreciation of the evidence on record partly decreed the suit. Aggrieved by the judgment and decree, the legal representatives of defendant No.2 and defendant No.3 preferred the appeal in RA No.15/2008. The first appellate Court has allowed the appeal and dismissed the suit of the present appellant. Aggrieved by the judgment and decree of the first appellate Court, the present appeal is filed by the plaintiff.

¶47

I have heard the learned counsel for both the parties.

¶48

RSA 1232/2009

¶49

-6-

¶50

It is the submission of the learned counsel for the appellant that the mother defendant No.1 had no authority to gift the suit properties to Onkaramma and therefore he contends that the gift deed is not binding on the interest of the plaintiff. So also he contends that the compromise decree in OS No.44/1977 does not bind the plaintiff for the sole reason that she was not a party to the compromise. He contends that the first appellate Court illegally allowed the appeal of the respondents and dismissed the suit of the appellant. Hence he submits that the first appellate Court having not assigned reasons to its conclusion a substantial question of law arises for consideration.

¶51

Learned counsel for the respondents has

¶52

supported the judgment and decree of the first appellate Court.

¶53

-7-

¶54

RSA 1232/2009

¶55

Perusal of the material placed on record

¶56

reveals that the defendants have produced the certified copy of the compromise decree at Ex.D1. Further, the gift deed was executed by defendant No.1 and she gifted the suit agricultural lands to Onkaramma defendant No.5. Though this gift deed is said to contain the signature of the plaintiff, she has not admitted her signature on the gift deed Ex.D1.

¶57

There is no dispute that the suit

¶58

properties fell to the share of father of the plaintiff under the registered partition deed Ex.D15 dated 10.6.1951. But in respect of these

¶59

properties which fell to the share of the father of the plaintiff, a suit came to be instituted in O.S.No.44/1977 and to the said suit the plaintiff is a party. There was a compromise amongst the two brothers and the other sister and as per the said compromise, the three persons got shared the suit properties equally. Admittedly the plaintiff was a

¶60

-8-

¶61

RSA 1232/2009

¶62

party to the suit, but she was not a party to the compromise decree. Anyhow, it is an admitted fact that she was aware of the suit instituted and was a party to the suit and she ought to have sought for recalling the compromise or at-least sought for setting aside the compromise. The copy of the order and compromise petition is produced at Exs.D2 and D3. So, when the plaintiff was a party to the suit in OS NO.44/1977 and when she admits that there was a compromise in the said suit, it was incumbent upon the plaintiff to seek a relief of setting aside the compromise decree.

¶63

That apart, it is relevant to note that under Article 59 of the Limitation Act, the period of limitation for setting aside the decree or to cancel the decree is three years from the date of knowledge of the compromise decree. When the plaintiff admits that there was a compromise in the suit and when she was a party to the suit, she ought to have instituted the suit within three

¶64

-9-

¶65

RSA 1232/2009

¶66

years from the date of the decree or the disposal of the suit in OS No.44/1977. This compromise decree was drawn on 17.1.1979 and the present suit came to be instituted by the plaintiff in the year 2001. So, the suit itself was barred by limitation. That apart she was excluded from the joint possession of the suit properties from the date of the gift or at-least from the date of the compromise decree that was entered into between the parties. So, when she was excluded from the joint possession of the suit properties, the suit atleast could have been instituted within 12 years from the date of exclusion of the plaintiff from the joint possession. Even on this ground as well the suit is barred by time. So, the first appellate Court has taken into consideration the aforesaid facts and circumstances and assigning proper reasons to overcome the findings of the trial Court, has allowed the appeal of the respondents

¶67

-10-

¶68

RSA 1232/2009

¶69

and has set aside the partition decree granted in favour of the appellant.

¶70

Perusal of the material placed on record

¶71

and the submissions made by the learned counsel for the appellant, does not reveal any substantial question of law for consideration. Consequently, the appeal fails and it is accordingly dismissed.

¶72

*AP/-

Smt Susheelamma v. Thimmappa

Case brief

What is this about?

What did the court decide?

Smt Susheelamma v. Thimmappa

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Manjunatha Vs Kotehal Shivappa

Sri P Jagadeesh Vs Sri E S Padmanabha

Smt Padma Vs Smt N Indramanni @ N Mahadevamma

Alamellamma Vs Smt Subbamma

Subbamma Vs the Commissioner

John Sukrutharaj Vs R Divyeshwari