Remanded

H R Ramaswamy v. H R Basavaraju

Karnataka HC31 Mar 2021RSA/2620/2011

Case brief

AI extract

What is this about?

This appeal challenges a decree dismissing a partition suit regarding a specific property item (Item No.6) classified as self-acquired by a brother. The High Court remitted the matter for a fresh trial to determine if the item was joint family property and to ascertain the share of the absent defendants.

What did the court decide?

The impugned judgment regarding suit Item No.6 is set aside and remitted to the Trial Court for a fresh trial to determine ownership and shares.

H R Ramaswamy Vs H R Basavaraju — Partition | Karnataka HC (2021)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 31^ST DAY OF MARCH, 2021

¶4

BEFORE

¶5

THE HON’BLE MR.JUSTICE NATARAJ RANGASWAMY

¶6

R.S.A. NO.2620 OF 2011 (PAR)

¶7

BETWEEN:

¶8

H.R. RAMASWAMY S/O LATE RUDREGOWDA, AGED ABOUT 55 YEARS

¶9

H.R. OMKARAPPA S/O LATE RUDREGOWDA, AGED ABOUT 53 YEARS

¶10

BOTH ARE RESIDENTS OF HONNENAHALLY VILLAGE, KASABA HOBLI, HANIKERE POST, BELUR TALUK, PIN CODE: 573115 HASSAN DISTRICT.

¶11

…APPELLANTS

¶12

(BY SMT. B.P. RADHA, ADVOCATE FOR SRI. B. RAMASWAMY IYENGAR, ADVOCATE)

¶13

AND:

¶14

H.R. BASAVARAJU S/O LATE RUDREGOWDA AGED ABOUT 46 YEARS C/O RUDRAIAH, YAGATI MALLIKARJUNA NILAYA MALLESHWARA NAGAR, ARASIKERE TOWN HASSAN DISTRICT-573103.

¶15

H.R. JAYADEVAPPA S/O LATE RUDREGOWDA

¶16

¶17

AGED ABOUT 59 YEARS RANGE FOREST OFFICER, SOCIAL FOREST OFFICER, SOCIAL FOREST DIVISION, ZILLA PANCHAYAT OFFICE BUILDING, AKSHOKA NAGAR, MANGALORE, PIN: 575001. 3. SMT. GODAVARI W/O N GIRISH AGED ABOUT 51 YEARS R/AT D.NO.1111, C/O LAKSHMANA RAJ II CROSS, 4^TH MAIN, VIJAYANAGAR, BANGALORE-40. 4. SMT. PARVATHAMMA W/O LATE RUDREGOWDA AGED ABOUT 85 YEARS R/AT D.NO.1111, C/O LAKSHMANA RAJ II CROSS, 4^TH MAIN, VIJAYANAGAR, BANGALORE-40.

¶18

Expired on 13.05.2016. Amended as per order dated 16.01.2017.

¶19

…RESPONDENTS

¶20

(BY SRI. M.K. BHASKARAIAH, ADVOCATE FOR R1 TO R3; R4-DECEASED;

¶21

VIDE COURT ORDER DATED 16.01.2017 APPELLANTS AND R1 TO R3 ARE LRs OF DECEASED R4)

¶22

THIS R.S.A. IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE, 1908 AGAINST THE JUDGMENT AND DECREE DATED 20.08.2011 PASSED IN R.A.NO.1/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE, BELURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 30.09.2008 PASSED IN O.S.NO.57/2007 ON THE FILE OF THE CIVIL JUDGE (JR.DN.) & JMFC, BELUR.

¶23

THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

¶24

¶25

JUDGMENT

¶26

This appeal is filed by defendants No.2 and 3 challenging the judgment and decree passed by the Trial Court in O.S. No.57/2007 and R.A. No.1/2009. Both the Courts held that the plaintiffs are entitled to an undivided 1/6^th share in the suit property along with the defendants.

¶27

The parties shall henceforth be referred to as

¶28

they were arrayed before the Trial Court.

¶29

The plaintiffs filed O.S. No.57/2007 for partition and separate possession of his 1/6^th share in the suit schedule properties. The defendants No.1 to 3 are his brothers, defendant No.4 is their sister and defendant No.5 is their mother. He contended that the suit schedule Items No.1 to 5 and 7 to 9 and 11 properties were acquired during the life time of father of plaintiff and defendants No.1 to 4, while suit Item No.10 of the suit schedule property was acquired by exchanging the joint family properties bearing Sy. Nos.41/1 and 42 while Item No.6 was purchased by the joint family in the name of

¶30

¶31

defendant No.1. He contended that the katha of suit Items No.1 to 5, 7 to 9 and 11 stood in the name of mother of plaintiff and defendants No.1 to 4. He contended that his demand for partition and separate possession was not accepted, and therefore, he was constrained to file a suit for partition and separate possession of his 1/6^th share in the suit properties.

¶32

The suit was contested by defendants No.1, 4 and 5. However, defendants No.2 and 3 were placed ex parte . Defendant No.1 admitted the case of the plaintiff that the suit Items No.1 to 5, 7 to 11 were ancestral joint family property and that the plaintiff was entitled to 1/6^th share in the suit schedule properties. However, defendant No.1 contended that suit Item No.6 was purchased by him out of his own fund and that neither the plaintiff nor defendants No.2 to 4 had any right, title or interest. Therefore, he sought for dismissal of the suit as regards Item No.6. Defendants No.4 and 5 filed their written statement demanding their 1/6^th share in the suit schedule properties.

¶33

¶34

5. Based on these contentions, the Trial Court

¶35

framed the following issues :

¶36

1. Whether the first defendant proves that Item No.6 of the suit schedule property is his self acquired property as contended by him?

¶37

2. Whether the plaintiff is entitled for partition and separate possession of his share in the suit schedule properties? If so to what share?

¶38

3. Whether the plaintiff is entitled for past and future mesne profits as prayed?

¶39

4. Whether the plaintiff is entitled for reliefs sought?

¶40

5. What order or decree?

¶41

The plaintiff was examined as P.W.1 and he

¶42

marked documents at Exs.P-1 to P-16, while defendant No.1 was examined as D.W.1.

¶43

Based on the oral and documentary evidence,

¶44

the Trial Court decreed the suit insofar as Items No.1 to 5 and 7 to 10 of the suit schedule properties. The suit in so far as Item No.6 is concerned was dismissed.

¶45

¶46

8. Feeling aggrieved by the aforesaid judgment

¶47

and decree, defendants No.2 and 3 filed R.A. No.1/2009 and contended that they were placed ex parte before the Trial Court. They contended that they were not well and could not participate in the proceedings. The First Appellate Court refused to consider the cause shown for the non-appearance of defendants No.2 and 3 before the Trial Court and held that defendants No.2 and 3 had not placed on record any material to establish that the suit reliefs granted by the Trial Court was unjust. The First Appellate Court, therefore, dismissed the appeal and confirmed the judgment and decree of the Trial Court.

¶48

Feeling aggrieved by the aforesaid decree of

¶49

the Courts below, defendants No.2 and 3 have filed this appeal. During the pendency of this appeal, an application is filed in I.A. No.1/2021 for production of additional documents, one of the documents that is sought to be placed on record is the sale deed in respect of suit Item No.6 that stood in the name of defendant No.1. It is seen that in terms of this document that the suit item No.6 was

¶50

¶51

purchased in the name of defendant No.1 when he was 22 years old. The learned counsel for the appellant would submit that defendant No.1 did not have any known source of income when he was 22 years old, and therefore, it has to be presumed that suit Item No.6 was purchased in the name of defendant No.1 by the members of the joint family.

¶52

Notice of this application as well as the appeal was issued to respondents No.1 to 3. Though the respondents have engaged a counsel, there is no appearance for them today.

¶53

In view of the fact that defendants No.2 and 3 were placed ex parte and the impugned judgment and decree passed by the Trial Court in respect of suit Item No.6 was without any basis and that too without defendant No.1 making any effort to establish his self-acquisition and without even he making any effort to mark the sale deed under which he purchased suit Item No.6, the Courts

¶54

¶55

below committed an error in excluding suit Item No.6 from being partitioned possession.

¶56

The learned counsel for the appellant, defendants No.2 and 3 did not dispute the fact that suit Items No.1 to 5, 7 to 10 were the joint family properties and that they along with the plaintiffs and defendants No.1, 4 and 5 are entitled to 1/6^th share in the said properties. However, the learned counsel contended that the defendants No.2 and 3 are also entitled to an equal share in the suit Item No.6 and that without disturbing the findings recorded by the Trial Court insofar as suit Item Nos.1 to 5, 7 to 10, the appeal may be remitted to the Trial Court only to consider the question as to whether defendants No.2 and 3 are entitled to any share in the suit Item No.6. In view of the aforesaid submission and in view of the document placed on record as additional evidence, the impugned judgment and decree insofar as suit Item No.6 is concerned is set aside and the case is remitted back to the Trial Court to conduct a fresh trial as to whether the suit Schedule Item No.6 is the property

¶57

¶58

which belonged to the joint family and if yes, whether defendants No.2 and 3 are entitled for a share therein. The additional documents sought to be produced before this Court shall be placed before the Trial Court. The appellants herein/defendants No.2 and 3 shall appear before the Trial Court on 19.04.2021 and file their written statement on 19.04.2021 only in respect of suit Item No.6. The Trial Court shall frame issues and dispose off the same within a period of six months from 19.04.2021. The liberty granted to the appellants/defendants No.2 and 3 is subject to they paying cost of Rs.5,000/- each to defendant No.1 before the Trial Court on 19.04.2021.

¶59

Sd/JUDGE

¶60

hnm

H R Ramaswamy v. H R Basavaraju

Case brief

What is this about?

What did the court decide?

H R Ramaswamy v. H R Basavaraju

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

Mahadeva Vs Lokesh. M

Mr. Walter Stephen Mendes Vs Mrs Patcy Figreda

Sri Lokesh M Vs Sri Mahadeva

Ananda Vs Sannahuchchegowda

Smt B G Gowramma Vs Smt Navaneetha Nagaraja Shetty

Mr. Ranjeeth Singh Vs Mr. Shivananda