The regular second appeal was dismissed. The Court held that suit properties were ancestral and available for partition as they were not proven to be self-acquired. Regarding non-joinder of parties, the Court noted that shares of children from the father's second marriage must be worked out in final decree proceedings.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF APRIL, 2021
THE HON’BLE MR. JUSTICE NATARAJ RANGASWAMY REGULAR SECOND APPEAL NO.567 OF 2018 (PAR)
BETWEEN:
APPELLANTS NO.1 TO 3 IS R/O SHIRAMANAHALLI, HOLAVANAHALLY HOBLI, KORATAGERE TALUK, TUMAKURU DISTRICT – 572 129.
... APPELLANTS
(BY SRI.V.B.SIDDARAMAIAH, ADVOCATE)
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AND:
V. SWETHA, D/O VEERAKYATHAIAH, AGED ABOUT 19 YEARS, R/O CHANNAVEERANAHALLI, SASALU HOBLI, DODDABALLAPUR TALUK – 561 203, BENGALURU RURAL DISTRICT.
… RESPONDENT
(BY SRI.CHANDRAIAH, ADVOCATE)
THIS REGULAR SECOND APPEAL IS FILED UNDER ORDER XLII RULE 1 SEC.100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 31.01.2017 PASSED IN RA.NO.5011/2015 (OLD RA NO.3/2013, ON THE FILE OF THE 4TH ADDITIONAL DISTRICT JUDGE, MADHUGIRI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 26.11.2012 PASSED IN OS.NO.108/2009 ON THE FILE OF THE CIVIL JUDGE AND JMFC., KORATAGERE.
THIS REGULAR SECOND APPEAL COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T
The plaintiff filed a suit contending that she is the daughter of defendant No.2. Defendant No.1 is her grand father, while defendant No.3 is her uncle and defendant No.4 is her aunt. She claimed that the suit properties were the joint family properties of which, defendant No.1 was the Kartha. She also claimed that defendant No.2 started ill-treating the plaintiff and her mother and thereafter,
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drove her out and married again without dissolving the marriage with her mother. The plaintiff claimed that she is entitled to half share out of the 1/4th share of the defendant No.1 in the suit properties and thus, demanded her share in the suit properties. Since the defendants refused, she filed the present suit for partition and separate possession of her share in the suit properties.
that the plaintiff is the daughter of defendant No.2. They denied that the suit properties were ancestral joint family properties of the plaintiff and defendants. They denied the allegation that the mother of the plaintiff was ill-treated and was driven away. They claimed that the plaintiff had no share in the suit properties. They contended that defendant No.3 had purchased the suit item No.2 in terms of a sale deed dated 28.03.2005 and was her self acquisition, which was not partible. They also contended that defendant No.2 had two children from his second wife namely, Dhanajaya and Ranjitha who were not arrayed as
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parties in the suit and therefore, contended that suit was bad for non-joinder of necessary parties.
Court framed the following issues:
2. Whether the defendants No.1 and 2 proves that the land bearing Sy.No.8/2 measuring 1A,37G was the self acquired property of 3rd defendant and 3rd defendant has purchased the said property by registered sale deed dated 28.03.2005 out of his own earnings?
3. Does the defendant No.1 proves that the suit is bad for non-joinder of necessary parties?
4. Is the plaintiff entitle to the relief of partition, if so what is the share she is entitled to?
5. What order or decree?”
PW.1 and she marked documents as Exs.P1 to P6 and also examined two witnesses who were examined as PWs.2 and
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2. What order?”
decree of both the Courts, the defendants have filed this regular second appeal.
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and the defendants. Therefore, in the absence of any proof to show that the suit item No.2 was purchased by defendant No.3, it had to be invariably held that the suit properties were the ancestral properties which are available for partition. In that view of the matter, the finding of the trial Court and the First Appellate Court that the plaintiff is entitled for an undivided share in the suit properties cannot be doubted and does not call for interference. Insofar as the contention that the suit is for bad for non-joinder of necessary parties, defendant No.2 has married second time without dissolving the marriage with the first wife. If defendant No.2 has sired two children from his second wife, their share will have to be worked out in Final Decree proceedings depending upon the outcome of the Judgment of the Apex Court in Revanna Siddappa’s case, 2011 (11) SCC 1. In that view of the matter, the finding recorded by the Court are thoroughly justified and does not call for interference.
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As no substantial question of law arises for consideration in this appeal, the appeal is dismissed .
Sd/JUDGE
NR/-
2 issues framed by the court
Whether the suit is败 for non-joinder of necessary parties regarding children from the father's second marriage?
Whether suit item No.2 is self-acquired property of Defendant No.3 and not available for partition?
Colour shows how this judgement treated each authority
Revanna Siddappa's caseReferred¶54
Revanna Siddappa's case, 2011 (11) SCC 1 · Who else cites this
Shivanna & Ors.
Swetha
Nataraj Rangaswamy
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
