Dismissed

B Sanjeevareddy v. B Hanumanthareddy

Karnataka HC9 Jan 2020RSA/486/2012

Case brief

AI extract

What is this about?

In a regular second appeal regarding partition of ancestral properties where a partition deed allotted shares to parents, the High Court dismissed the appeal. It held the Appellant is entitled to a 1/2 share as the Will allegedly executed by the mother in favor of the Respondent's son was not proved due to lack of beneficiary's participation in the suit. The preliminary decree for partition was ju

What did the court decide?

The regular second appeal is dismissed; the preliminary decree of partition allowing the plaintiff a 1/2 share is maintained.

B Sanjeevareddy Vs B Hanumanthareddy — Partition | Karnataka HC (2020)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF JANUARY 2020

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BEFORE

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THE HON’BLE MR.JUSTICE NATARAJ RANGASWAMY

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REGULAR SECOND APPEAL NO.486 OF 2012 (PAR)

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BETWEEN:

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B.SANJEEVAREDDY S/O LATE BHEEMAPPA, AGED ABOUT 65 YEARS, OCC: AGRICULTURIST, R/AT K.D.KOTE VILLAGE, CHALLAKERE TALUK, CHITRADURGA DISTRICT-577522.

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... APPELLANT

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(BY SRI. H.KANTHARAJA, ADVOCATE)

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AND:

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B.HANUMANTHAREDDY, S/O LATE BHEEMAPPA, AGED ABOUT 65 YEARS, OCC: AGRICULTURIST, R/AT K.D.KOTE VILLAGE, CHALLAKERE TALUK, CHITRADURGA DISTRICT-577522.

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... RESPONDENT

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(BY SRI. S.C.VIJAYAKUMAR, ADVOCATE)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND

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DECREE DATED 13.02.2012 PASSED IN R.A. NO.44/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE, CHALLAKERE ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 06.04.2010 PASSED IN O.S. NO.108/2009 ON THE FILE OF THE CIVIL JUDGE (JR.DN.) & JMFC, MOLAKALMURU. TRIAL COURT DISMISSED THE SUIT. APPELLATE COURT ALLOWED THE APPEAL. THE SUIT FOR PARTITION AND SEPARATE POSSESSION.

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THIS REGULAR SECOND APPEAL IS COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This regular second appeal is filed by the

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defendant in the suit challenging the judgment and decree passed by the Lower Appellate Court in R.A.No.44/2010 dated 13.02.2012.

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The facts which are evident from O.S.No.108/2009 are that at a partition between

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the plaintiff, the defendant and their parents dated 16.06.1979, the suit schedule properties were allotted to the share of the parents of the plaintiff and the defendant for their maintenance. It is stated that father of the plaintiff and the defendant died 21 years prior to

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the filing of the suit and consequently, the revenue documents of the suit schedule properties were transferred in the name of the plaintiff, the defendant and their mother Smt.Nagamma. It is stated that after the death of Smt.Nagamma intestate, the plaintiff and the defendant are entitled to ½ share in the suit schedule properties.

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Per contra , the defendant admitted that the

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suit schedule properties were the subject matter of the partition and that the suit properties were allotted to the share of the parents. The defendant contended that his mother Smt.Nagamma executed a Will dated 27.10.2003 in favour of his son Naveen which was duly registered. He contended that the suit properties were allotted to the share of the parents and hence, Smt.Nagamma became the absolute owner by virtue of provision of Section 14(1) of the Hindu Succession Act

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and thus, contended that she was entitled to bequeath the suit schedule properties to the defendant’s son.

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The Trial Court noticing the rival pleadings

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framed the following issues.

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¥ÀæwªÁ¢AiÀÄ ªÀÄUÀ£À ºÉ¸ÀjUÉ ªÁ¢AiÀÄ vÁ¬Ä §Ä¢Þ ¸Áé¸ÀÛöå E®è¢zÁÝUÀ ºÁUÀÆ ¯ËQPÀ eÁÕ£À E®è¢zÁÝUÀ «¯ï ¥ÀvÀæªÀ£ÀÄß ¥ÀæwªÁ¢ ¸ÀÈ¶Ö¹gÀÄvÁÛ£É JA§ÄzÀ£ÀÄß ªÁ¢ ¸Á©üÃvÀÄ¥Àr¹gÀÄªÉÃ?

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1. vÀ£ÀUÉ zÁªÁ D¹ÛAiÀÄ°è CzsÀð ¨sÁUÁA±ÀzÀ ºÀPÀÄÌ EzÀÄÝ, ¸ÀzÀj D¹ÛAiÀÄ£ÀÄß ¥ÀævÉåÃPÀ ¸Áé¢üÃ£À ºÉÆAzÀ®Ä CºÀðjgÀÄvÁÛgÉ JA§ÄzÀ£ÀÄß ªÁ¢ ¸Á©üÃvÀÄ¥Àr¹gÀÄªÀgÉÃ?

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1. ªÁ¢AiÀÄÄ F zÁªÉAiÀÄ°è PÉÆÃjgÀÄªÀ ¥ÀjºÁgÀªÀ£ÀÄß ºÉÆAzÀ®Ä CºÀðgÉÃ?

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1. ªÀiÁqÀÄªÀ DeÉÕ CxÀªÁ rQæ?”

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Before the Trial Court the plaintiff was examined as PW1 and he marked Exs.P1 to P3 which are the RTCs in respect of the suit properties and the letter written by the plaintiff to the Tahsildar, while the defendant was examined as DW1 and he marked Exs.D1 to D7 including the Will that was allegedly executed by Smt.Nagamma.

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The Trial Court considering the pleadings, oral and documentary evidence, dismissed the suit by its judgment and decree dated 06.04.2010. Aggrieved by the aforesaid judgment and decree, the plaintiff filed R.A.No.44/2010. The Lower Appellate Court noted the undisputed fact that the suit properties were earlier allotted to the parents of the plaintiff and the defendant

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and upon their death, the suit properties fell to the share of the plaintiff and the defendant in equal share. The Lower Appellate Court held “the defendant has not proved execution of the Will by examining the witnesses”. Consequently, the Lower Appellate Court left with no other alternative, allowed the appeal and decreed the suit in terms of its judgment and decree dated 13.02.2012. The defendant is in appeal against the aforesaid judgment and decree before this Court.

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This appeal was listed for admission on 18.01.2014 and the following substantial question of law was framed:

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“1. Whether the lower appellate court was justified in reversing the finding of trial court regarding execution of Will by deceased Smt.Nagamma in favour of her grand-son Naveen, who is son of B.Sanjeevareddy, defendant in the original suit?”

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The aforesaid substantial question is

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answered in the affirmative for the following reasons:

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The suit schedule properties is undoubtedly an

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ancestral property which belonged to the family of the plaintiff and the defendant and in terms of an unregistered partition dated 16.06.1979, the suit property was allotted to the share of the parents for their maintenance. The father of the plaintiff and the defendant expired consequent to which the revenue documents of the suit properties were mutated in favour of the plaintiff and the defendant as well as their mother

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– Smt.Nagamma. After the death of Smt.Nagamma, the plaintiff has presented the suit for partition of his ½ share in the suit properties. The defendant set up a Will allegedly executed by Smt.Nagamma in favour of the son of the defendant. It is this document that swayed in the mind of the Trial Court which ultimately dismissed the suit.

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The counsel for the appellant strenuously

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contended that the Lower Appellate Court allowed the appeal on the ground that the defendant had not proved the execution of the Will. Admittedly, the defendant was not the beneficiary of the alleged Will, but it was his son. Therefore, it was not incumbent upon the defendant to prove the execution of the Will, but it was only for the beneficiary to do so.

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It is well settled that the person who sets up a Will in a suit for partition, he is bound to prove the validity of execution of the Will as contemplated under Section 68 of the Indian Evidence Act and Section 63 of the Indian Succession Act. In the present case, the beneficiary is not arrayed as a party and the defendant who claimed that his mother had executed a Will, made no efforts to bring the beneficiary on record or seek impleadment in the proceedings. In the absence of such an effort, the Lower Appellate Court, had no other

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alternative than to decree the suit for partition and declare that the plaintiff is entitled for their ½ share in the suit properties.

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It is well settled that in a suit for partition, the Court which draws a preliminary decree merely declares the share of the plaintiffs in exercise of its power under Order XX Rule 18 of the Code of Civil Procedure. The final adjudication as to whether the plaintiff is entitled for a share in the suit properties and as to whether the plaintiff can be put in possession of the properties has to be decided in final decree proceedings. If at all, there is a Will executed by Smt.Nagamma in favour of the son of the defendant, the same will have to be proved in accordance with law, either independently by the beneficiary in an appropriate suit or he may seek impleadment in the final decree proceedings that may be initiated by the plaintiff and prove the Will as provided under law. The

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Lower Appellate Court was therefore justified in passing the preliminary decree of partition.

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It is also well settled that a judgment binds only the parties to the proceedings as held by the Hon’ble Apex Court in the case of Tirumala Tirupati Devasthanams Vs. K.M.Krishnaiah reported in (1998)

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3 SCC 331.

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In view of the above, the Lower Appellate

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Court was justified in reversing the judgment and decree of the Trial Court and thus this appeal does not merit consideration. Hence, this regular second appeal is dismissed subject to the observations made above.

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Counsel for the appellant does not press I.A.No.1/2012. Therefore, I.A.No.1/2012 is rejected.

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Sd/JUDGE

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B Sanjeevareddy v. B Hanumanthareddy

Case brief

What is this about?

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B Sanjeevareddy v. B Hanumanthareddy

Case brief

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