This was a second appeal against a judgment allowing a partition suit for ancestral properties. The High Court, finding the lower courts were correct in declaring the properties ancestral and the appellant father the manager, dismissed the appeal without framing a question.
Regular Second Appeal dismissed at the stage of admission.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JULY 2021
BEFORE
THE HON’BLE MR. JUSTICE E.S.INDIRESH
R.S.A. No.376 OF 2019 (PAR)
BETWEEN:
BOTH ARE R/AT GADIYANKANAHALLI
CHELUR HOBLI GUBBI TALUK-572117
... APPELLANTS
(BY SRI ARUN BHAT, ADVOCATE)
AND:
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RESPONDENT NOS.2 AND 3 ARE R/AT MOOGANAHUNASE CHELUR HOBLI GUBBI TALUK-572117
4. ANITHA
W/O SHIVARAJ AGED ABOUT 40 YEARS R/AT OPP. GOVT. HOSPITAL MADHUGIRI ROAD DOBBESPET NELAMANGALAL TALUK-562111
... RESPONDENTS
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 31.10.2018 PASSED IN RA.NO.75/2016 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC., GUBBI DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 17.08.2016 PASSED IN OS NO.189/2013 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC., GUBBI.
THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE COURT, DELIVERED THE FOLLOWING:
J U D G M E N T
This Regular Second Appeal is filed by defendant Nos.1 and 2 challenging the judgment and decree dated 31.10.2018 in R.A.No.75/2016 on the file of the Additional Senior Civil Judge and JMFC, Gubbi, confirming the judgment and decree dated 17.08.2016 in O.S.No.189/2013 on the file of the Additional Civil Judge and JMFC, Gubbi decreeing the suit of the plaintiff
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holding that the plaintiff and defendant Nos.1 to 5 are entitled equal share in the suit schedule properties.
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constitute Hindu Joint Family and defendant No.1 is the kartha of the joint family. It is further stated that the plaintiff and defendant No.4 are the unmarried daughters of defendant No.1. and as such, the plaintiff has got legitimate share in the suit schedule properties, which are nothing but ancestral properties of the plaintiff. The plaintiff has demanded her share in the suit schedule properties and the same was refused by defendant Nos.1 to 3 and as such, the plaintiff has filed a suit in O.S.No.189/2013 on the file of trial Court seeking relief of partition and separate possession in respect of the suit schedule properties.
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Nos.1 and 2. The trial Court based on the pleadings on
record, formulated the points as under;
documents and the same were marked as Exs.P.1 to 13.
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record by its judgment and decree dated 31.10.2018 dismissed the appeal and thereby, confirmed the judgment and decree passed by the trial Court dated 17.08.2016 in O.S.No.189/2013. Being aggrieved by the judgment and decree passed by the Courts below, defendant Nos.1 and 2 have preferred this Second Regular Appeal.
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the appellants, it is not in dispute that the plaintiff is the daughter of defendant No.1. The propositor of the suit schedule properties was one Giriyappa who died leaving behind two sons and three daughters. Defendant No.1 is the second son of Giriyappa. After demise of Giriyappa, the suit schedule properties get blended into ancestry and as such, the same has become ancestral properties in respect of the plaintiff and therefore, the finding recorded by the trial Court that the suit schedule properties are the ancestral and joint family properties of the plaintiff and defendants is just and proper.
VS. RAKESH SHARMA AND OTHERS reported in AIR
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2020 SC 3717 , plaintiff being the daughter of defendant No.1 is entitled for share in the suit schedule properties as is ordered by the trial Court. Therefore, I do not find any ground to interfere with the impugned judgment and decree passed by the trial Court. I have also carefully examined the findings recorded by the First Appellate Court, whereunder the First Appellate Court after reappreciating the evidence on record had come to the conclusion that the plaintiff has proved her relationship with defendant No.1, who is the father of the plaintiff. The plaintiff has proved that the suit schedule properties are the properties of late Giriyappa and on his demise, the properties were devolved to her father i.e., Kariyappa (defendant No.1). The First Appellate Court has also appreciated the materials on record and observed that defendants have filed an application under Order 7 Rule 11 of CPC., before the trial Court seeking rejection of plaint and the said application was rejected by the trial Court on 20.07.2016 and the said order was not challenged by defendant Nos.1 and 2 and accordingly the same has reached finality. The First Appellate Court
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after re-appreciating the materials on record arrived at the conclusion that the trial Court has rightly decreed the suit holding that the plaintiff and other defendants are entitled for equal share in the suit schedule properties. Having taken note of the fact that both Courts below have considered the entire materials on record so also, the fact that defendants have not contested the matter by filing the written statement before the trial Court nor adduce oral and documentary evidence before the trial Court to establish their case; and on the other hand, the plaintiff has produced the documents before the trial Court to establish the fact that the suit schedule properties are the properties of her grandfather Giriyappa and on his demise, the properties were devolved among the children of late Giriyappa and as such, the suit schedule properties are the ancestral properties of the plaintiff, who is the daughter of defendant No.1. In that view of the matter, I do not find any material to interfere with the wellreasoned judgment and decree passed by the trial Courts below.
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Accordingly, the Regular Second Appeal is
dismissed.
Since the appeal is dismissed at the stage of admission, there is no need to frame substantial question of law as required under Section 100 of CPC.
Sd/JUDGE
NBM
2 issues framed by the court
Whether the trial courts were correct in holding that the suit properties are ancestral and in holding the daughter entitled to a share.
Whether the lower courts appreciated the evidence regarding the devolution of properties upon the demise of the maternal grandfather.
Colour shows how this judgement treated each authority
VINEETA SHARMA VS. RAKESH SHARMA AND OTHERSReferred¶56
VINEETA SHARMA VS. RAKESH SHARMA AND OTHERS reported in AIR 2020 SC 3717 · Who else cites this
2 provisions across 1 enactments
KARIYAPPA
SHIVAKUMAR
VASANTHA
SHIVAMMA
SUJATHA
ANITHA
E.S.INDIRESH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court