Partly allowed

Sri Nagalingappa v. Sri Dharaneesha

Karnataka HC1 Jun 2021RSA/3500/2006

Case brief

AI extract

What is this about?

High Court appealed against first appellate court judgment on Hindu succession and partition. Court held plaintiff gets half of father's one-third share in specific properties. No share in properties owned by deceased mother unless will proved. Maintenance claims upheld. Appeals allowed in part.

What did the court decide?

Appeals allowed in part. Plaintiff 2 entitled to half share of 1/3 share of defendant 1 in specified properties. Plaintiff 1 and 3 entitled to maintenance. No share for plaintiff 2 in properties owned

Sri Nagalingappa Vs Sri Dharaneesha — Partition | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 1^ST DAY OF JUNE 2021

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BEFORE

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THE HON’BLE MR.JUSTICE NATARAJ RANGASWAMY

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R.S.A. NO.3500 OF 2006 (PAR)

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C/W

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R.S.A. NO.3499 OF 2006 (PAR)

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R.S.A. NO.3500/2006:

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BETWEEN:

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SRI. NAGALINGAPPA, S/O LATE RAMAIAH, AGED ABOUT 60 YEARS, R/AT CHATTANAHALLI VILLAGE, BAGUR HOBLI, CHANNARAYAPATNA TALUK, HASSAN DISTRICT-573131.

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SMT. JAYAMMA W/O LATE NAGARAJU, AGED ABOUT 60 YEARS, R/AT CHATTANAHALLI VILLAGE, BAGUR HOBLI, CHANNARAYAPATNA TALUK, HASSAN DISTRICT-573131.

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SRI. SHIVAKUMAR S/O LATE NAGARAJU, AGED ABOUT 40 YEARS, R/AT CHATTANAHALLI VILLAGE, BAGUR HOBLI, CHANNARAYAPATNA TALUK, HASSAN DISTRICT-573131.

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SRI. C.N.HARISH S/O LATE NAGARAJU, AGED ABOUT 38 YEARS, R/AT CHATTANAHALLI VILLAGE, BAGUR HOBLI, CHANNARAYAPATNA TALUK, HASSAN DISTRICT-573131. 5. SRI. C.N.MANJUNATH S/O LATE NAGARAJU, AGED ABOUT 36 YEARS, R/AT CHATTANAHALLI VILLAGE, BAGUR HOBLI, CHANNARAYAPATNA TALUK, HASSAN DISTRICT-573131.

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SMT. LAKSHMI W/O RANGANATH, AGED ABOUT 29 YEARS, R/AT VIGNASANTHE VILLAGE, NONAVANKERE HOBLI, THIPTUR TALUK, THUMKUR DISTRICT. 7. SMT. VINODA W/O RAMESH, AGED ABOUT 30 YEARS, R/AT MARGURU SHIVARA VILLAGE, BAGUR HOBLI, CHANNARAYAPATNA TALUK, HASSAN DISTRICT-573131.

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SMT.LAKKAMMA W/O. LATE BELURAIAH R/AT CHATTANAHALLI VILLAGE, BAGUR HOBLI, CHANNARAYAPATNA TALUK, HASSAN DISTRICT. (CAUSE TITLE AMENDED AS PER COURT ORDER DATED 22.04.2021)

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…APPELLANTS

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[BY SRI. NITHISH K.N., ADVOCATE FOR APPELLANT NO.1; SRI. T.P.VIVEKANANDA, ADVOCATE FOR APPELLANT NOs.2 TO 7; SRI. H.K.PAVAN, ADVOCATE FOR APPELLANT NO.8]

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AND:

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SRI. DHARANISHA, S/O NAGALINGAPPA, AGED ABOUT 25 YEARS, R/AT CHATTANAHALLI VILLAGE, BAGUR HOBLI, CHANNARAYAPATNA TALUK, HASSAN DISTRICT-573131.

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…RESPONDENT

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(BY SRI. CYRIL P. PAIS, ADVOCATE FOR RESPONDENT)

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THIS R.S.A. IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE, 1908 AGAINST THE JUDGMENT AND DECREE DATED 30.06.2006 PASSED IN R.A.NO.159/2002 ON THE FILE OF THE CIVIL JUDGE (SR.DN.) CHANNARAYAPATNA, ALLOWING THE APPEAL AND MODIFYING THE JUDGMENT AND DECREE DATED 09.10.2001 PASSED O.S.NO.519/1989 ON THE FILE OF THE CIVIL JUDGE (JR.DN.) AND JMFC, CHANNARAYAPATNA.

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R.S.A. NO.3499/2006:

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BETWEEN:

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SRI. NAGALINGAPPA S/O LATE RAMAIAH, AGED ABOUT 60 YEARS, R/AT CHATTANAHALLI VILLAGE, BAGUR HOBLI, CHANNARAYAPATNA TALUK, HASSAN DISTRICT-573131. …APPELLANT (BY SRI. NITHISH K.N., ADVOCATE)

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AND:

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SMT. PUTTARANGAMMA W/O NAGALINGAPPA, D/O SRI. KODIRANGAIAH, AGED ABOUT 50 YEARS, R/O CHATTANAHALLI VILLAGE, BAGUR HOBLI, CHANNARAYAPATNA TALUK, HASSAN DISTRICT-573131.

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SRI DHARANISHA S/O SRI. NAGALINGAPPA, AGED ABOUT 25 YEARS, R/AT CHATTANAHALLI VILLAGE, BAGUR HOBLI, CHANNARAYAPATNA TALUK, HASSAN DISTRICT-573131.

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SMT. JAYANTHI D/O SRI. NAGALINGAPPA, AGED ABOUT 23 YEARS, R/AT CHATTANAHALLI VILLAGE, BAGUR HOBLI, CHANNARAYAPATNA TALUK, HASSAN DISTRICT-573131.

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SRI. NAGARAJU SINCE DEAD BY LRs

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a) SMT. JAYAMMA W/O LATE NAGARAJU, AGED ABOUT 60 YEARS, R/AT CHATTANAHALLI VILLAGE, BAGUR HOBLI, CHANNARAYAPATNA TALUK, HASSAN DISTRICT-573131.

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b) SRI. SHIVAKUMAR S/O LATE NAGARAJU, AGED ABOUT 40 YEARS, R/AT CHATTANAHALLI VILLAGE, BAGUR HOBLI,

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CHANNARAYAPATNA TALUK, HASSAN DISTRICT-573131.

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c) SRI. C.N.HARISH S/O LATE NAGARAJU, AGED ABOUT 38 YEARS, R/AT CHATTANAHALLI VILLAGE, BAGUR HOBLI, CHANNARAYAPATNA TALUK, HASSAN DISTRICT-573131.

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d) SRI. C.N.MANJUNATH S/O LATE NAGARAJU, AGED ABOUT 36 YEARS, R/AT CHATTANAHALLI VILLAGE, BAGUR HOBLI, CHANNARAYAPATNA TALUK, HASSAN DISTRICT-573131.

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e) SMT. LAKSHMI W/O RANGANATH, AGED ABOUT 29 YEARS, R/AT VIGNASANTHE VILLAGE, NONAVANKERE HOBLI, THIPTUR TALUK, THUMKUR DISTRICT.

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f) SMT. VINODA W/O RAMESH, AGED ABOUT 30 YEARS, R/AT MARGURU SHIVARA VILLAGE, BAGUR HOBLI, CHANNARAYAPATNA TALUK, HASSAN DISTRICT-573131.

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SMT. CHANNAMMA W/O LATE RAMAIAH AGED ABOUT 85 YEARS SINCE DEAD BY HER LR

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a) SMT.LAKKAMMA W/O. LATE. BELURAIAH

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R/AT CHATTANAHALLI VILLAGE, BAGUR HOBLI, CHANNARAYAPATNA TALUK, HASSAN DISTRICT - 573131

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…RESPONDENTS [BY SRI. T.P.VIVEKANANDA, ADVOCATE FOR RESPONDENT NOs.4(a TO f); NOTICE SERVED ON RESPONDENT NOs.1 TO 3 BUT UNREPRESENTED; SRI. H.K.PAVAN, ADVOCATE FOR RESPONDENT NO.5(a)]

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THIS R.S.A. IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE, 1908 AGAINST THE JUDGMENT AND DECREE DATED 30.06.2006 PASSED IN R.A.NO.105/2002 ON THE FILE OF THE CIVIL JUDGE (SR.DN.) CHANNARAYAPATNA, REJECTING THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DATED 09.10.2001 PASSED O.S.NO.519/1989 ON THE FILE OF THE CIVIL JUDGE (JR.DN.) AND JMFC, CHANNARAYAPATNA.

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THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 22.04.2021, COMING ON FOR PRONOUNCEMENT OF JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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R.S.A.No.3499/2006 is filed by the defendant No.1 in O.S.No.519/1989, challenging the judgment and decree of the trial Court in O.S.No.519/1989 which was confirmed in appeal by the First Appellate Court in R.A.No.105/2002.

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R.S.A.No.3500/2006 is filed by the defendant No.1 in O.S.No.519/1989, challenging the judgment and

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decree of First Appellate Court in R.A.No.159/2002 by which the First Appellate Court modified the judgment and decree of the trial Court in O.S.No.519/1989 and declared that the plaintiff No.2 is entitled to 1/6^th share in the suit schedule properties.

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The parties shall henceforth be referred to as they were referred before the trial Court.

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The appellant in both the appeals was the defendant No.1, while the respondent Nos.1 to 3 were the plaintiffs before the trial Court. The other respondents were the defendant Nos.2, 3 and 4 before the trial Court.

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The plaintiff No.1 was the wife of the defendant No.1 while the plaintiff Nos.2 and 3 were their children. The defendant No.2 is the brother of the defendant No.1 while defendant Nos.3 and 4 were their parents. The plaintiff No.1 claimed that after she was given in marriage with the defendant No.1, she was residing with him and that thereafter she was driven out

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by the defendant No.1. She claimed that the defendant Nos.2 to 4 did not take any steps to protect the honour and dignity of the plaintiffs, but sided with the defendant No.1. She contended that the plaintiffs were entitled to maintenance from the properties of the family and that the plaintiff No.2 was entitled to 1/6^th share in the suit schedule properties. The plaintiffs alleged that the defendants were attempting to dispose off the suit properties to deprive the right, title and interest of the plaintiff No.2. The plaintiff No.1 contended that a panchayath was convened for resolution of the dispute. However, the defendants did not heed to the advise of the elders at the panchayath. She claimed that the defendant No.1 thereafter assaulted her, which ended in a complaint before the Nuggehalli Police Station and in that regard, Mr.K.B.Shivanna and Mr.C.L.Shivanna intervened and pacified them. The plaintiffs alleged that the defendant No.1 had created an atmosphere which was not conducive for the plaintiffs to live with him. The plaintiffs amended the plaint and claimed that the defendant No.1 had

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married for the second time, during the subsistence of the first marriage. Therefore, they sought for maintenance of a sum of Rs.6,000/- p.a. and for a declaration that the plaintiff No.2 is entitled to 1/6^th share in the suit properties. The suit properties were spread over three villages namely, Chattanahalli, Navile and Byrapura.

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The defendant No.1 contested the suit and denied the averments of the plaint. He claimed that he had purchased some properties in the name of the plaintiff No.1 in terms of a sale deed dated 23.09.1978. He claimed that there was a partition between the defendants inter-se on 18.04.1972 in terms of which, the defendant No.1 obtained 13 guntas of land in Sy.No.10/2, 0-35 guntas in Sy.No.42 of Chattanahalli and a site. He claimed that he and the defendant No.2 were living separately since 18.04.1972. He claimed that he was a daily wager and his income was not more than Rs.3,000/- per annum. He amended the written statement and claimed that the plaintiff No.1 was allotted the land in Sy.No.44 (0-29

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guntas), Sy.No.44 (0-26 guntas), Sy.No.37 (0-33 guntas), Sy.No.235 (0-08 guntas) of Navile village, Sy.No.1/14 (018 guntas), Sy.No.1/15A (0-06 guntas), Sy.No.17 (0-10½ guntas), Sy.No.17 (0-04 guntas) of Aladahalli, Gandasi Hobli, Arasikere Taluk, as her share in the properties of her father. He claimed that there were 40 yielding trees in Sy.No.37 of Byrapura,. He further claimed that he purchased the land in Sy.No.10/2 of Chattanahalli in the name of the defendant No.1 in terms of a sale deed dated 23.09.1978 and that there were 10 coconut trees. Therefore, he contended that the plaintiffs were having an annual income of more than Rs.20,000/-.

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The plaintiffs filed a reply to this written statement and claimed that the land in Sy.No.37 which was purchased by the plaintiff No.1 was her absolute property and that the other properties mentioned by the defendant No.1, were the properties of her brother.

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The defendant No.1 filed his additional written

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statement denying that he had married for the second

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time. He claimed that since the properties purchased by the plaintiff was purchased by him, he was entitled to a share from the properties that stood in the name of the plaintiff No.1.

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Based on these rival contentions, the Trial

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Court framed the following issues and additional issues:

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1. Whether the plaintiffs prove that the 1^st defendant has treated them cruelly and that he has deserted them?

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1. Whether the plaintiffs prove that plaintiffs 1 and 3 entitled for maintenance at the rate of Rs.6,000/- p.a.?

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1. Whether the plaintiffs prove that the 2^nd plaintiff is entitled for 1/6 share in the suit schedule properties?

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1. To what relief if any are the parties entitled?

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Additional issue framed on 26.7.91:

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1. Whether the plaintiffs prove that 1^st defendant has taken a second wife as contended in the plaint and hence entitled for maintenance on this ground also?

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Additional issue framed on 13.3.1992:

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1. Whether the defendant proves that the plaintiff is having Rs.40,000/- per season out of lands?

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1. Whether the defendant is entitled for half income out of plaintiffs income?

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Additional issues framed on 17.10.1997:

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1. Whether the defendant prove that the properties described in para 5(a) of the written statement are allotted to the share of the plaintiff as averred in the written statement?

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The plaintiff No.1 was examined as PW1. She

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examined two witnesses who had intervened and pacified the plaintiff No.1 and defendant No.1, when a complaint was lodged before the Nuggehalli Police Station, as PW2 and PW3. She did not mark any documents in support of her claim. On the other hand, defendant No.1 was examined as DW1 and defendant No.2 was examined as DW2. The witnesses, who had attested the unregistered

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palupatti dated 18.04.1972, were examined as DWs.3 and 4 and they marked documents Exs.D1 to D11.

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Based on the oral and documentary evidence and the relationship of the parties which was not disputed, the Trial Court held that the plaintiff No.1 is entitled to maintenance of a sum of Rs.2,000/- per annum while plaintiff No.2 was entitled to Rs.4,000/- per annum as maintenance. It held that the plaintiff No.2 is not entitled for a share in the suit properties as the plaintiffs did not produce any documents to establish their claim that the suit properties were joint family ancestral properties and also since there were no sufficient pleadings that supported the claim for partition of the share of the plaintiff No.2.

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Being aggrieved by the aforesaid judgment and decree of the trial Court, the defendant No.1 filed R.A.No.105/2002 while the plaintiff No.2 filed R.A.No.159/2002. The First Appellate Court clubbed both the appeals, secured the records of the trial Court, heard

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the counsel for the parties and after perusing the records of the trial Court framed the following points for consideration:

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1. Whether the Trial Court went wrong in holding that 1^st plaintiff is entitle for yearly maintenance of Rs.2,000/- per year from the date of suit till her death from the 1^st defendant?

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1. Whether the Trial Court erred in holding that the 3^rd plaintiff is entitle for yearly maintenance of Rs.4,000/- per year from the 4^th defendant till her marriage?

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1. Whether the Trial Court has erred in rejecting the prayer of the IInd plaintiff for his 1/6^th share in the suit schedule properties?

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1. Whether the Judgment and Decree of the Trial Court calls for an interference?

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1. What order?

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The First Appellate Court held that except the defendant No.1, none of the other defendants filed their written statement. It held that though defendant No.2 had deposed as DW.2, he had not filed his written statement

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and thus it was a case of proof without pleadings. The First Appellate Court noticed Ex.D5, which is a sale deed dated 10.09.1951 in terms of which, the defendant Nos.1 and 2, represented by the defendant No.4 as their guardian, had purchased land in Sy.No.10/2B (1-01 acres) and Sy.No.42 (3-26 acres) of Chattanahally. It also noticed, Ex.D6 which was a sale deed dated 31.08.1964 that stood in the name of the defendant No.4 by which she purchased Sy.No.335 (2.29 acres) of Anathi Village. Ex.D7 was a sale deed dated 05.05.1971 by which the defendant No.4 purchased Sy.No.38/3 (0-23 guntas) and Sy.No.38/4 (0-23 guntas) of Bairapura Village. Ex.D8 is a sale deed in the name of the defendant No.4 by which she purchased Sy.No.386/9 (2-04 acres) and 385/3 (0-23 guntas). Ex.D9 was a sale deed dated 05.04.1978, by which the defendant No.2 had purchased 3 acres of land in Sy.No.337/1, 337/2 and 337/3 of Anathi Village. Ex.D.10 was a sale deed dated 02.09.1967 in the name of the defendant No.2, by which he purchased Sy.No.8/4 (1-00 acre) of Chattanahalli. The First Appellate Court held that all these

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properties were purchased prior to the partition dated 18.04.1972. It held that, Ex.D11 which was the partition dated 18.04.1972 was doubtful as the defendant No.3 was alive but his signature was not taken on the said document. The First Appellate Court held that, it was for the defendants to prove that the suit properties were self acquired properties of defendant Nos.2 and 4. The First Appellate Court further held that though the plaintiffs failed to produce the documents relating to the suit properties, the defendant No.1 had failed to prove that the properties that fell to the share of the defendant Nos.2 and 4 at the partition dated 18.04.1972, were their self acquisition. The First Appellate Court therefore, held that the properties of the joint family were liable to be partitioned between defendant Nos.1, 2 and 3 and that the plaintiff No.2 had an equal share out of the 1/3^rd share of the defendant No.1 in the suit schedule property. Thus, the First Appellate Court rejected the appeal filed by the defendant No.1 and allowed the appeal filed by the plaintiff

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No.2 and declared that the plaintiff No.2 is entitled for 1/6^th share in the suit properties.

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Being aggrieved by the aforesaid judgment and decree of the First Appellate Court in R.A. Nos.105/2002 and 159/2002, the defendant No.1 has filed these two appeals.

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The records of the Trial Court and the First Appellate Court were secured. During the pendency of these appeals, the legal representatives of defendant No.2 filed I.A.No.1/2020 to transpose them as appellant Nos.2 to 7, which was allowed in terms of the order dated 22.04.2021. Likewise, the legal representative of respondent No.3 filed I.A.No.1/2021 to transpose her as appellant No.8, which was allowed on 22.04.2021. The defendant No.1 filed I.A.No.2/2021 to produce additional documentary evidence namely, a release deed dated 05.05.1971 executed in favour of Lakkamma and Beeraiah

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by the defendant No.4. The legal representatives of defendant No.2 filed I.A.No.3/2021 to produce additional

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documentary evidence namely, a sale deed dated 30.11.1968 executed by Thopegowda in favour of defendant No.2 in respect of land bearing Sy.No.10/9.

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The learned counsel for the defendant No.1/appellant contended that there was pleading, sufficient enough, to support the claim for partition of the share of the plaintiff No.2 in the suit schedule properties. He contended that the plaintiffs did not produce any documentary proof to establish that the plaintiff No.2 had a share in the suit properties and also that the suit properties were ancestral joint family properties. He further contended that the trial Court having noticed that the defendant No.4 had purchased many of the suit properties under various registered instruments had rightly rejected the claim of the plaintiff No.2 for partition. He therefore, contended that the First Appellate Court could not have reversed the finding of the trial Court. He reiterated that there is no presumption that the properties held in the name of the members of the family, belong to

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the joint family. He further contended that even if it is purchased by the joint family in the name of the defendant No.4, in the absence of any proof that the defendant No.4 had put it into the common hotchpot of the joint family, the said property should be considered as her absolute properties in view of Section 14 of the Hindu Succession Act, 1956. In this regard, he relied upon the judgment of Supreme Court in the case of Mallesappa Bandeppa Desai and Anr. Vs. Desai Mallappa alias Mallesappa and Anr. (AIR 1961 Supreme Court 1268) and the judgment of this Court in R.S.A.No.878/2007 in Bettachari and Ors. Vs. Jayamma and Ors. and judgment of this Court in R.F.A. No.197/2002 in T.S.Subbaraju Vs. T.A.Shivarama Setty and Ors .

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Per contra, the learned counsel for the plaintiff No.2 contended that, the defendants themselves had admitted that the suit properties were ancestral properties as per the unregistered partition dated 18.04.1972 (Ex.D11). Therefore, he contended that the defendants

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were estopped from contending to the contrary. He further submitted that the defendant Nos.2 and 4 have not challenged the Judgment and Decree of the Trial Court and therefore, the defendant No.1 cannot take up the cause of the defendant Nos.2 and 4. Therefore, they sought the dismissal of the appeals filed by the defendant No.1.

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I have given my anxious consideration to the arguments canvassed by the learned counsel for the parties.

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A perusal of the records of the trial Court would disclose that there was no dispute regarding relationship of the plaintiffs with the defendant No.1. It is relevant to note that the defendant Nos.2 and 4 did not file their written statement. It is not in dispute that defendant Nos.1, 2 and 3 were members of a joint family. The defendant No.2 was though examined as DW2, he did not produce any evidence to establish that the properties purchased by him were not out of funds of the joint family and or that he had sufficient independent source of

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income. A perusal of the properties involved in the suit would show that the family possessed a large extent of properties and therefore, it can be presumed that the funds of the joint family were utilized by the defendant No.2 to purchase a few properties in his name. The defendant No.2 did not furnish any evidence to establish that he had a separate source of income which was sufficient enough to purchase some properties in his name. He did not challenge the Judgment and Decree of the First Appellate Court and therefore, he is bound by the Judgment and Decree of the First Appellate Court. Having regard to the fact that there is no love lost between the plaintiffs and the defendants, it is understandable that the defendants are attempting to outwit the plaintiffs by claiming that there was an earlier partition on 18.04.1972, in terms of which three properties were allotted to the defendant No.1. As rightly observed by the First Appellate Court, if the defendant No.3 was alive at the time of the partition deed dated 18.04.1972, there was no reason as to why the defendant No.3 had not joined in the execution

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of the partition. Though DWs.3 and 4 were examined, they also could not explain this doubtful circumstance. No suggestions were put to DW1 and DW2 to establish that the properties in the name of the defendant No.4 were brought into the common hotchpot. The defendant No.2 who was examined as DW2 specifically deposed that the properties in the name of defendant No.4 were her absolute properties. Nonetheless, the plaintiffs did not establish that they had any right in or over the properties in the name of the defendant No.4. At any rate Ex.D11 required compulsory registration under Section 17 of the Registration Act, 1908 and therefore, Ex.D11 was inadmissible in evidence and mere marking of a document did not cure this inherent defect. Under the circumstances, plaintiff No.2 was definitely entitled to a share in the properties that stood not only in the name of the defendant No.1, but also which stood in the name of the defendant No.2.

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In so far as the properties which stood in the name of defendant No.4 are concerned, the defendant No.4 did not challenge the judgment and decree of the First Appellate Court. Though the defendant No.1 contended that certain properties that stood in the name of the defendant No.4 were her absolute properties, the Trial Court did not frame an issue to the above effect. The burden to prove that the suit properties were all ancestral joint family properties, was entirely upon the plaintiffs, that too, when the defendant No.1 claimed that the properties purchased by the defendant Nos.2 and 4 were their separate properties. The plaintiff No.1, except deposing that the suit properties were ancestral properties, did not mark any documents in proof thereof. The evidence of PW2 and PW3 is not reliable, as they deposed that they did not have any knowledge about the properties owned by the family of the plaintiffs and defendants. In terms of Ex.D6 dated 31.08.1964, which was a sale deed dated 31.08.1964 that stood in the name of the defendant No.4 by which she purchased Sy.No.335 (2.29 acres) of Anathi

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Village. Ex.D.7 was a sale deed dated 05.05.1971 by which the defendant No.4 purchased Sy.No.38/3 (0-23 guntas) and Sy.No.38/4 (0-23 guntas) of Bairapura Village. Ex.D8 is a sale deed in the name of the defendant No.4 by which she purchased Sy.No.386/9 (2-04 acres) and 385/3 (0-23 guntas). In the face of these documentary evidence, the plaintiffs were bound to plead and prove that the properties that stood in the name of the defendant No.4 were treated as the properties of the joint family. The First Appellate Court could not have ignored Exs.D6, D7 and D8 as it was bound to dispassionately pass a Judgment that deserves to be passed, based on the facts and circumstances of the case. Therefore, the plaintiff No.2 was not entitled to any share in the properties that were owned and possessed by the defendant No.4.

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It is seen that the defendant Nos.1 and 2 had a sister, who is impleaded as a legal heir of the defendant No.3. In view of the law laid down by the Apex Court in Vineeta Sharma vs Rakesh Sharma and Ors. , [(2020)

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9 SCC 1] she too is entitled for an equal share in the suit properties, excluding the properties that stood in the name of the defendant No.4, who is deceased. In so far as the properties in the name of the defendant No.4, the appellant No.8 claimed that a will dated 06.11.2006 was executed by the defendant No.4, which was registered. Consequently, it is for the appellant No.8 to establish the lawful execution of the will by the defendant No.4. If the appellant No.8 fails to prove the will in the manner provided under law, then the defendant Nos.1, 2 and the appellant No.8 are entitled to an equal share in the said properties in view of Section 15 of the Hindu Succession Act, 1956 and they shall take it absolutely. The plaintiff No.2 has no share in the properties that stood in the name of the defendant No.4.

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In view of the above, these appeals are allowed in part and the Judgment and Decree of the Trial Court in O.S.No.519/1989 and the common Judgment and Decrees of the First Appellate Court in R.A.Nos.105/2002

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and 159/2002 are modified and it is declared that the plaintiff No.1 is entitled for maintenance at Rs.2,000/- per year from the date of filing the suit in O.S.No.519/1989 till she is alive. Likewise, the plaintiff No.3 is entitled to maintenance at Rs.4,000/- per year from the date of the suit till the date of her marriage. A charge is ordered to be created in favour of the plaintiff Nos.1 and 3, to the extent of their claim, over the share of the defendant No.1 in the suit properties.

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In so far as the plaintiff No.2 is concerned, he is entitled to half share out of the 1/3^rd share of the defendant No.1 in Sy.Nos.10/2B, 10/9A, 8/4, 42, 10/10, 12/1, 12/2, 12/3, 12/4, 12/5, 12/6, 12/7 and 10/14 situate at Chattanahalli, Bagur hobli, Channarayapatna Taluk and Sy.No.228/1 of Navile village, Bagur hobli, Channarayapatna Taluk and Sy.Nos.337/1, 337/2, 337/3 and 38/53 of Anathi village, Nuggehalli hobli, Channarayapatna Taluk. The suit in respect of the land in Sy.Nos.335, 38/3, 38/4, 38/5 and 386/9 of Anathi village,

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Nuggehalli hobli, Channarayapatna Taluk is dismissed. As regards the land in Sy.No.9/2 of Chattanahalli, Bagur hobli, Channarayapatna Taluk is concerned, the defendant No.1 is reserved liberty to establish that it is not available to be partitioned, during the final decree proceedings. It is made clear that if the defendant No.1 fails to do so, the plaintiff No.2 shall be entitled for half share out of 1/3^rd share of the defendant No.1 therein. In view of the liberty granted as above, I.A.No.2/2021 is disposed off.

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All pending I.As. stand disposed off.

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Sd/JUDGE

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pgg

Sri Nagalingappa v. Sri Dharaneesha

Case brief

What is this about?

What did the court decide?

Sri Nagalingappa v. Sri Dharaneesha

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

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