Allowed

Smt. K P Sreemathi v. Smt. Jayamma

Karnataka HC3 Aug 2021RSA/708/2019

Case brief

AI extract

What is this about?

High Court allowed the Regular Second Appeal. The Court held that the First Appellate Court wrongly modified the trial Court's decree by allotting a 1/42nd share. Applying Vineeth Sharma, the Court corrected the successor's share to 1/7th.

What did the court decide?

Impugned judgment and decree dated 05.02.2019 in R.A. No.20/2016 set aside; Judgment and decree dated 20.06.2015 in O.S. No.400/2013 modified to entitle plaintiff to 1/7th share.

Smt. K P Sreemathi Vs Smt. Jayamma — Succession and Inheritance | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 3^RD DAY OF AUGUST 2021

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BEFORE

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THE HON’BLE MR. JUSTICE E.S.INDIRESH

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R.S.A. No.708/2019

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BETWEEN:

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SMT. K.P. SREEMATHI W/O SHANTHAIAH D/O LATE K.P.C.PUTTALINGEGOWDA AGED ABOUT 74 YEARS R/AT NO.41, 2^ND CROSS MARUTI LAYOUT, NEAR BCC LAYOUT CHANDRA LAYOUT BENGALURU-560 040.

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... APPELLANT

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(BY SRI T.V. VIJAY RAGHAVAN, ADVOCATE)

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AND:

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SMT. JAYAMMA W/O. LATE K.P.C. PUTTALINGEGOWDA AGED ABOUT 81 YEARS R/AT FEEROZ FARM KASABA HOBLI RAMANAGARA TALUK AND DISTRICT

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SMT. NAGARATHNAMMA W/O LATE K.P.VIJAYAKEERTHY AGED ABOUT 51 YEARS R/AT FEEROZ FARM KASABA HOBLI RAMANAGARA TALUK AND DISTRICT

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PRESENTLY RESIDING AT R/A 1^ST CROSS

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WARD NO.25 HANUMANTHANAGAR RAMANAGAR TOWN RAMANAGARA – 562159

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SMT. SUKANYA W/O LATE VIJAYAKEERTHI AGED ABOUT 45 YEARS R/AT FEEROZ FARM KASABA HOBLI RAMANAGARA TALUK AND DISTRICT. PRESENTLY RESIDING AT C/O ANAND NEAR OLD POPULAR SCHOOL WARD NO.30, MALLESHWARAM EXTENSION NEAR POPULAR SCHOOL RAMANAGAR TOWN RAMANAGARA -562159

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K.P. DHANANJAYA S/O. LATE K.P.C. PUTTALINGEGOWDA AGED ABOUT 60 YEARS R/A KANNAMANGALA DODDI, KASABA HOBLI RAMANAGARA TALUK AND DISTRICT

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PRESENTLY RESIDING AT C/O CHAMA SHETTRU WARD NO.30, MALLESHWARAM EXTENSION NEAR POPULAR SCHOOL RAMANAGAR TOWN RAMANAGARA– 562159.

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K.P. MRUTHYANJAYA S/O. LATE K.P.C. PUTTALINGEGOWDA AGED ABOUT 68 YEARS R/AT NO.17, MARUTHI EXTENSION, BCC LAYOUT, CHANDRA LAYOUT BENGALURU-560040

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PRESENTLY R/AT NO.308/C, 10^TH CROSS IDEAL HOME, RAJARAJESWARI NAGARA BENGALUR-560098.

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K.P. LAVA S/O LATE K.P.C PUTTALINGEGOWDA AGED ABOUT 49 YEARS R/AT FEEROZ FARM KASABA HOBLI RAMANAGARA TALUK AND DISTRICT PRESENTLY RESIDING AT C/O NARAYANAPPA WARD NO.30. MALLESHWARAM EXTENSION NEAR POPULAR SCHOOL RAMANAGAR TOWN RAMANAGARA-562159

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K.P. KUSHA S/O. LATE K.P.C PUTTALINGEGOWDA AGED ABOUT 49 YEARS R/AT FEEROZ FARM KASABA HOBLI RAMANAGARA TALUK AND DISTRICT

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... RESPONDENTS

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(BY SRI. B.O.CHANDRASHEKAR, ADVOCATE FOR R1 TO 5; SRI. K.MOHAN, ADVOCATE FOR R6 & 7)

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THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 05.02.2019 PASSED IN RA.NO.20/2016 ON THE FILE OF THE III ADDL. DISTRICT AND SESSIONS JUDGE RAMANAGARA ALLOWING THE APPEAL AND MODIFYING THE JUDGMENT AND DECREE DATED 20.06.2015 PASSED IN O.S. NO.400/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE, RAMANAGARA.

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

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J U D G M E N T

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Though this matter was listed for orders, however, learned counsel appearing for the parties submitted that the matter be taken up for final disposal in view of the fact that the issue raised in the appeal has been settled by the Hon’ble Apex Court in the case of VINEETH SHARMA VS. RAKESH SHARMA AND OTHERS reported in AIR 2020 SC 3717 .

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This Regular Second Appeal is preferred by the plaintiff, challenging the judgment and decree dated 05.02.2019 in R.A No.20/2016 on the file of the III Additional District and Sessions Judge, Ramanagara modifying the judgment and decree dated 20.06.2015 passed in O.S.No.400/2013 on the file of the Additional Senior Civil Judge, Ramanagara.

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For the sake of convenience, the parties in this

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appeal shall be referred to in terms of their status and ranking before the trial Court.

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It is the case of the plaintiff that the plaintiff is the daughter of defendant No.1 and late K.P.C Puttalingegowda. It is further stated in the plaint that late K.P.C.Puttalingegowda died on 13.02.2005 leaving behind his wife Smt.Jayamma (defendant No.1) and six children including the plaintiff. However, one of the sons of K.P.C.Puttalingegowda i.e., K.P.Vijayakeerthi is pre-deceased to his father. It is also stated in the plaint that defendant Nos.2 and 3 are the wives of late K.P.Vijayakeerthi. It is also averred in the plaint that the suit schedule properties are the joint family properties of late K.P.C.Puttalingegowda and as such, the plaintiff is having legitimate share to an extent of 1/6^th share in the suit schedule properties and she demanded partition and separate possession in respect of the suit schedule properties. However, the same was resisted by the defendants and as such, the plaintiff filed O.S.No.400/2013 on the file of the trial Court seeking relief of partition and separate possession. However, the defendant Nos.1, 4, 5 and 6 have not filed written statement before the trial Court and defendant Nos.2, 3

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and 7 were served but unrepresented and as such, the trial Court placed them exparte. Based on the pleadings on record, the trial Court formulated the following issues for its consideration.

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ªÁ¢ zÁªÁ D¹ÛUÀ¼ÀÄ J¯Áè MlÄ Ö PÀÄlÄA§zÀ ºÁUÀÆ dAn D¹Û CAvÀ ¸Á©üÃvÀÄ¥Àr¸ÀÄªÀªÀgÉÃ?

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ªÁ¢ zÁªÉAiÀÄ°è PÉÆÃjzÀAvÉ ¥ÀævÉåÃPÀ «¨sÁUÀ ºÁUÀÆ ¸Áé¢üÃ£ÀvÉUÉ rQæ ¥ÀqÉAiÀÄ®Ä CºÀðgÉÃ?

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AiÀiÁªÀ rQæ CxÀªÁ DzÉÃ±À?

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The plaintiff was examined as P.W.1 and she produced seven documents and the same were marked as Exs.P1 to 7. On the other hand, no evidence was adduced by the defendants.

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The trial Court after considering the available materials on record by its judgment and decree dated 20.07.2015 in O.S.No.400/2013 decreed the suit and held that the plaintiff is entitled for 1/6^th share in the suit schedule properties. Being aggrieved by the judgment and decree passed by the trial Court, defendant No.4 has preferred an appeal in

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R.A.No.20/2016 on the file of the First Appellate Court and the same was resisted by the plaintiff and other defendants. The First Appellate Court after re-appreciating the materials on record by its judgment and decree dated 05.02.2019 modified the judgment and decree passed by the trial Court and as such, held that the plaintiff is entitled for 1/42 share over the suit schedule properties. Being aggrieved by the modification of the share made by the First Appellate Court, the plaintiff has preferred this Regular Second Appeal.

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Heard Sri.T.V.Vijay Raghavan, learned counsel appearing for the appellant and Sri Mohan, learned counsel for the respondents.

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Learned counsel Sri.T.V.Vijay Raghavan

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appearing for appellant contended that it is not in dispute with regard to the relationship between the parties and late K.P.C.Puttalingegowda died leaving behind six children and his wife and therefore, all the children are entitled for equal share along with their

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mother i.e., defendant No.1 and as such, the modification of the share made by the First Appellate Court requires to be interfered in this appeal.

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Per contra , Sri.K.Mohan, learned counsel appearing for respondent Nos.6 and 7 sought to justify the impugned judgment and decree passed by the Courts below.

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Having considered the rival submissions made by the learned counsel appearing for the parties, the substantial question of law requires to be answered in this appeal is;

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Whether the impugned judgment and decree passed by the Courts below is in accordance with law declared by the Hon’ble Apex Court in the case of VINEETH

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SHARMA VS. RAKESH SHARMA AND

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OTHERS reported in AIR 2020 SC 3717?

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It is not in dispute that the plaintiff is the daughter of K.P.C.Puttalingegowda and defendant No.1. K.P.C.Puttalingegowda died leaving behind his wife and

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six children, however, the second son by name Sri.K.P.Vijayakeerthi is pre-deceased to him. It is also not in dispute that the said K.P.Vijayakeerthi had two wives i.e., defendant Nos.2 and 3. Perusal of the finding recorded by the trial Court signifies the fact that the defendants have not filed written statement and not contested the suit on merits. It is also forthcoming from the records that the Exs.P.2 to 7 i.e., RTC extracts marked before the trial Court would indicate that the suit schedule properties are the ancestral and joint family properties of the plaintiff and defendants and therefore, in view of the law declared by the Hon’ble Apex Court in the case of VINEETH SHARMA VS. RAKESH SHARMA AND OTHERS reported in AIR 2020 SC 3717 ,

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the status of the daughters have been made as coparceners in the ancestral and joint family properties and as such, the daughters are also entitled for equal share as that of their brothers. In that view of the matter, the impugned judgment and decree passed by the trial Court requires modification in this appeal. Since the trial Court decreed the suit and allotted 1/6^th

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share to the plaintiff, however, since the mother of plaintiff i.e., defendant No.1 is alive and therefore, the plaintiff is entitled for 1/6^th share in the suit schedule properties and to that extent, the judgment and decree passed by the trial Court requires modification. I have also gone through the findings recorded by the First Appellate Court, wherein the First Appellate Court has modified the judgment and decree passed by the trial Court and allotted 1/42 share to the plaintiff in respect of the suit schedule properties and the said finding is contrary to the law declared by the Hon’ble Apex Court in the case of VINEETH SHARMA VS. RAKESH SHARMA AND OTHERS (stated supra). In that view of the matter, the impugned judgment and decree dated 05.02.2019 in R.A.No.20/2016 passed by the First Appellate Court is set-aside and the judgment and decreed dated 20.06.2015 in O.S.No.400/2013 passed by the trial Court is modified and held that the plaintiff is entitled for 1/7^th share in the suit schedule properties of late K.P.C.Puttalinge Gowda. Having considered the factual aspects on record and the law declared by the

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Hon’ble Apex Court in the case of VINEETH SHARMA VS. RAKESH SHARMA AND OTHERS (stated supra), the substantial question of law framed above is answered in favour of the plaintiff holding that the plaintiff is entitled for 1/7^th share in the suit schedule properties. Hence, the following;

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ORDER

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The appeal is allowed.

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The judgment and decree dated 05.02.2019 in R.A.No.20/2016 passed by the First Appellate Court is set-aside.

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The judgment and decree dated 20.06.2015 in O.S.No.400/2013 passed by the trial Court is modified holding that the plaintiff is entitled for 1/7^th share.

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Sd/JUDGE

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NBM

Smt. K P Sreemathi v. Smt. Jayamma

Case brief

What is this about?

What did the court decide?

Smt. K P Sreemathi v. Smt. Jayamma

Case brief

What is this about?

What did the court decide?

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