Dismissed

Giddaiah v. Kalamma

Karnataka HC27 Sept 2021RSA/735/2019

Case brief

AI extract

What is this about?

The High Court dismissed a second appeal filed by a plaintiff challenging the confirmation of a decree decreeing partition of ancestral property. The court upheld the trial and appellate courts' finding that land granted to one member but possessed by the joint family forms ancestral property shared by all members.

What did the court decide?

Regular Second Appeal No.735 of 2019 is dismissed at the stage of admission as no substantial question of law is made out.

Giddaiah Vs Kalamma — 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 27^TH DAY OF SEPTEMBER, 2021

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BEFORE

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THE HON’BLE MR. JUSTICE E.S. INDIRESH

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REGULAR SECOND APPEAL NO.735 OF 2019

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BETWEEN:

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Giddaiah S/o late Mallaiah Aged about 54 years Agriculturist R/o Gowrikere Nandipura Village and Post Kasaba Hobli Mudigere Taluk-577 132.

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…Appellant

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(by Sri H Mohan Kumar, Advocate)

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AND:

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Kalamma Since deceased by her LRs

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Rudraiah

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Since deceased by his LRs

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2a. Nagaraja

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Aged 37 years S/o late Rudraiah R/o Gowrikere Nandipura Village and Post Kasaba Hobli Mudigere Taluk- 577132.

…Respondents

(Respondent served)

This Regular Second Appeal is filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 01^st February, 2019 passed in Regular Appeal No.17 of 2018 on the file of the Senior Civil Judge and JMFC, Mudigere, dismissing the appeal and confirming the judgment and decree dated 26^th June, 2018 passed in Original Suit No.152 of 2015 on the file of the Additional Civil Judge and JMFC, Mudigere. This Appeal coming on for Admission, this day, the Court delivered the following:

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JUDGMENT

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This Regular Second Appeal is preferred by the plaintiff challenging the judgment and decree dated 01^st February, 2019 passed in Regular Appeal 17 of 2019 on the file of Senior Civil Judge, Mudigere, confirming the judgment and decree dated 26^th June, 2018 passed in Original Suit No.152 of 2015 on the file of the Additional Civil Judge and JMFC, Mudigire, decreeing the suit of the plaintiff.

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For the sake of convenience, parties in this appeal are referred to with respect to their status before the trial Court.

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It is the case of the plaintiff that the plaintiff and defendant No.2 are the children of defendant No.1 and late Mallaiah. The said Mallaiah died leaving behind the plaintiff and defendants as his legal heirs. The suit schedule property was acquired by the father of the plaintiff and after his death, katha

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was changed in the name of defendant No.2, despite the fact that the plaintiff is also having equal share in the suit schedule property and as such, the plaintiff demanded share in the suit schedule property and same was refused by the defendants. Hence, the plaintiff filed Original Suit No.152 of 2015 on the file of the trial Court.

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On service of notice, defendants 1 and 2 appeared and filed detailed written statement. Defendant No.1 died during the pendency of the suit and as such, the plaintiff and defendant No.2 are the legal heirs to the suit schedule property. It is the specific defence of the defendant that the suit schedule property was acquired by his father-Mallaiah and after his death, the revenue entries changed into the name of the defendant. It is his further claim that Mallaiah had acquired another property in Survey No.65/1p2 measuring 1.38 acres in Nandipura village of Mudigere Taluk and same was granted in favour of the plaintiffs under LR No.15/74-75 which is also the ancestral property of plaintiff and defendants and as such the defendant is also entitled for share in the said property. The trial Court, based on the pleadings on record formulated the following issues for its consideration:

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1. Whether the plaintiff proves that the suit schedule property is the ancestral and joint family property of the plaintiff and defendants?

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2. Whether the plaintiff proves that Survey.No. 65/1p2, measuring 1.38 acres in Nandipura village is also an ancestral and joint family property?

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3. Whether the plaintiff proves that he is entitled to 1/3^rd share in the suit schedule property?

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4. What order or decree?

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Plaintiff was examined as PW1 and defendant was examined as DW1. Plaintiff has produced eighteen documents as per Exhibits P1 to P8 and the defendant also produced 18 documents as per Exhibits D1 to D18. The trial Court, after considering the material on record, by its judgment and decree dated 26^th June, 2018 decreed the suit holding that the plaintiff and defendant No.2 are entitled to half share in the suit schedule property, including the property bearing Survey No.65/1p2 of Nandipura village, Mudigere Taluk. Being aggrieved by the judgment and decree passed by the trial Court, plaintiff has preferred Regular Appeal No.17 of 2018 before the First Appellate Court and same was resisted by the defendant. The First Appellate Court, after considering the material on record, by its judgment and decree dated 01^st February, 2019, dismissed the appeal, consequently, confirmed the judgment and decree

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passed by the trial Court. Bering aggrieved by judgment and decree passed by the courts below, the plaintiff has presented this second appeal.

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I have hared Sri H Mohan Kumar, learned counsel appearing for the appellant. Respondent is served.

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Sri Mohan Kumar, learned counsel appearing for the appellant contended that inclusion of the land bearing Survey No;65/1p2 which is a self-acquired property of the plaintiff, is bad in law as the said property was granted in favour of the plaintiff and therefore, the said finding recorded by both the courts below is contrary to records and as such, he submitted that the judgment and decree passed by both the courts below requires interference in this second appeal.

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Having considered the arguments advanced by the learned counsel for the appellant, I have carefully considered the material on record. It is not in dispute that the plaintiff and defendant are the children of late Mallaiah and defendant No.1Smt. Kalamma, who died during the pendency of the suit. The plaintiff has sought for partition in respect of the suit schedule property bearing Survey No.67/P1 measuring two acre of land.

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However, the defendant No.2 has filed written statement contending that the land bearing Survey No.65/1p2 measuring 1.38 acre in Nandipura Village, of Mudigere Taluk was granted in favour of the plaintiff which is also an ancestral property of plaintiff and defendant. In this regard, the finding recorded by the trial Court would clearly establish the fact that the defendant No.2 got separated from the joint family in the year 1984. Exhibit D3 and D5 would substantiate the fact that the suit schedule property was granted to the father of the plaintiff and defendant No.2 in the year 2013-14 and as such, the finding recorded by the trial Court with regard to suit schedule property is just and proper. In respect of the land bearing Survey No.65/1p2 is concerned, it is relevant to extract the finding recorded by the trial Court at paragraphs 16 to 18 of the judgment. The same reads as under:

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“16. It is to be noted that during the course of PW.1, he has stated as follows:

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£ÀªÀÄä vÀAzÉ §zÀÄQgÀÄªÁUÀ¯ÉÃ ¥Á®Ä ªÀiÁr PÉÆnÖgÀÄªÀÅzÀjAzÀ C°èAzÀ £ÁªÀÅ £ÀªÀÄä £ÀªÀÄä d«ÄÃ¤£À°è ¸Áé¢üÃ£ÀzÀ°èzÉÝÃªÉ JAzÀgÉ ¸Àj. Further he sates that £Á£ÀÄ £À£Àß vÀAzÉ ©lÖ ºÀ¼É ªÀÄ£ÉAiÀÄ¯ÉèÃ EgÀÄvÉÛÃ£É.

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17. During the cross-examination of DW.1, he has stated as follows:

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ªÁ¢ CªÀjUÉ ªÀÄAdÆgÁVgÀÄªÀ eÁUÀzÀ°è CªÀgÉÃ ¸Áé¢üÃ£ÀzÀ°èzÁÝgÉ JAzÀgÉ ¸ÁQë ¸Àj £ÁªÉ®è £ÀªÀÄä vÀAzÉ PÁ®zÀ°è MnÖUÉ EzÀÝ CzÉÃ ¸À.£ÀA.£À°èzÉ J£ÀÄßvÁÛgÉ and further has stated that ¸À¢æ eÁUÀzÀ°è ªÁ¢ ¸Áé¢üÃ£Á£ÀÄ¨sÀªÀzÀ°è EzÁÝgÉ ¸ÁQë CzÀgÀ°è £ÀªÀÄä vÀAzÉ PÀnÖ¹zÀ MAzÀÄ ªÀÄ£É ªÀÄvÀÄÛ ªÁ¢ PÀnÖ¹zÀ E£ÉÆßAzÀÄ ªÀÄ£É EzÉ J£ÀÄßvÁÛgÉ.

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18. Therefore, these admissions and statements made by the plaintiff and defendant No.2 show that Survey.No.65/2 is granted to the plaintiff. The schedule property was granted to the father of the plaintiff and defendant No.2 and the defendant No.2 is in continued possession of the same. The admission by the plaintiff that the house built by the father is in that the house built by the father is in the survey number granted to him and he is still living in that house shows that the whole family was in possession of the said land even though it was granted to the plaintiff. Further, the defendant No.2 has stated that the whole family was living in the house situated at Survey No.65 before he separated from the family in 1984.”

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Though land in Survey No.65/1p2 is granted in favour of the plaintiff however, the admission made by the plaintiff that his father had built a house in the said land and the entire family was in possession of the said land even though it was granted to

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plaintiff and same was not disputed by the defendant in the evidence, and as such, the finding recorded by the trial Court that the plaintiff and defendant No.2 are entitled for half share each in the suit schedule property as well as the land bearing Survey No.65/p2, is just and proper.

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I have also carefully examined the finding recorded by the First Appellate Court. The First Appellate Court after reappreciating the entire material on record had come to a conclusion that the land Survey No.65/1p2 measuring 1.38 acres, though standing in the name of the plaintiff, however, the joint family of Mallaiah are residing in the said property and built an house and enjoying in the same as the members of the joint family and in view of the same, the finding recorded by the First Appellate Court is just and proper and therefore, it is well-settled principle of law that any land granted in favour of the member of the joint family shall also enure to the share of the members of the joint family at the time of division of the properties and therefore, the finding recorded by both the courts below is just and proper and no interference is called for in this appeal, accordingly, appeal is liable to the dismissed. Since the appellant has not made out any ground for framing substantial

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question of law as required under Section 100 of the Code of Civil Procedure, appeal stands dismissed at the stage of admission.

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Sd/JUDGE

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lnn

Giddaiah v. Kalamma

Case brief

What is this about?

What did the court decide?

Giddaiah v. Kalamma

Case brief

What is this about?

What did the court decide?

What the court decided

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