Dismissed

Sri. Renukappa v. Smt. Sarvamangala

Karnataka HC8 Aug 2022RFA/40/2011

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed the appeal against a trial court decree awarding a plaintiff daughter 1/6th share in joint family property. The court held the alleged family settlement deed was unproven and her right to partition could not be denied solely due to inter-caste marriage.

What did the court decide?

Appeal dismissed; original decree affirming 1/6th share share and entitlement to partition maintained.

Sri. Renukappa Vs Smt. Sarvamangala — Partition | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 8^TH DAY OF AUGUST, 2022

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BEFORE

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THE HON’BLE MR. JUSTICE V. SRISHANANDA

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R.F.A.No.40/2011(PAR)

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BETWEEN

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SRI. RENUKAPPA S/O LATE T P REVANASIDDAPPA AGED ABOUT 58 YEARS R/AT "RENUKA NILAYA" NO.659, 10^TH MAIN, 5^TH BLOCK, RAJAJINAGAR, BANGALORE 560 010

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...APPELLANT

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(BY SRI K VARAPRASAD, ADVOCATE)

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AND

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1 . SMT. SARVAMANGALA W/O SRI R PRASANNA SINCE DEAD, BY HER L.Rs

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1(a)^{SRI PRASANNA R} S/O LATE D.RAMASWAMY IYENGAR AGED ABOUT 70 YEARS R/AT NO.659, 62^ND CROSS, 5^TH BLOCK, RAJAJINAGAR, BANGALORE - 560010

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1(b) SMT.YASHASWINI B D/O PRASANNA R AGED ABOUT 35 YEARS

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R/AT NO.659, 62^ND CROSS 5^TH BLOCK, RAJAJINAGAR, BANGALORE - 560010

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1(c) SMT.YAMINI.P D/O PRASANNA R AGED ABOUT 32 YEARS R/AT NO.659, 62^ND CROSS 5^TH BLOCK, RAJAJINAGAR, BANGALORE - 560010

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2 . MISS POORNIMA D/O LATE SMT RENUKAMBA AGED ABOUT 25 YEARS C/O SRI C S PRABHAKAR BANANA MERCHANT, SREE DEEPA PLANTATION MUNDI NO.29, APMC YARD, BINNYPET, BANGALORE -560023

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3 . MISS P POOJA D/O LATE SMT RENUKAMBA AGED ABOUT 21 YEARS C/O SRI C S PRABHAKAR BANANA MERCHANT, SREE DEEPA PLANTATION MUNDI, NO.29, APMC YARD, BINNYPET, BANGALORE -560023

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4 . MASTER VINAY S/O LATE GIRIJAMBA AGED ABOUT 22 YEARS R/O NARAYANA SWAMY BUILDING, 1^ST FLOOR, BEHIND PLD BANK, RAMANAGARAM DISTRICT

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5 . SMT SUNANDA

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W/O SRI SIDDALINGESHWARA AGED ABOUT 47 YEARS R/AT "RENUKA NILAYA", NO.659, 10^TH MAIN, 5^TH BLOCK RAJAJINAGAR,

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BANGALORE -560010

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6 . SMT JAYALALITHA W/O SRI YOGISH AGED ABOUT 43 YEARS R/AT NO.659, 10^TH MAIN, 5^TH BLOCK, RAJAJINAGAR, BANGALORE -560010

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7 . SRI SRINIVAS AGED ABOUT 37 YEARS R/AT OUT HOUSE, NO.659, 10^TH MAIN, 5^TH BLOCK, RAJAJINAGAR, BANGALORE -560010

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8 . SMT SUDHA AGED ABOUT 40 YEARS PROP: EESHA TAILORS, R/AT NO.659, GROUND FLOOR, 10^TH MAIN, 5TH BLOCK, RAJAJINAGAR, BANGALORE 560010

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9 . SRI MOHAN KUMAR AGED ABOUT 30 YEARS R/AT NO.659, 1^ST FLOOR, 10^TH MAIN, 5^TH BLOCK, RAJAJINAGAR, BANGALORE 560010

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10 . SRI SHUBOD KUMAR AGED ABOUT 30 YEARS

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R/AT NO.659, 1^ST FLOOR, 10^TH MAIN, 62^ND CROSS, 5^TH BLOCK,RAJAJINAGAR, BANGALORE 560 010

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11 . SRI GUDDU AGED ABOUT 28 YEARS R/AT NO .659, 1^ST FLOOR, 10^TH MAIN, 62^ND CROSS, 5^TH BLOCK, RAJAJINAGAR, BANGALORE 560010

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...RESPONDENTS

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(BY SRI RAVINDRANATH.K, ADVOCATE FOR R1(a to c); SRI RAMESH ANANTHAN, ADVOCATE FOR R2 AND R3ABSENT; NOTICE TO R6, R7 SERVED -UNREPRESENTED; VIDE ORDER DATED 21.10.2011 NOTICE TO R4, R5, R8 TO R11 HELD SUFFICIENT)

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THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 30.06.2010 PASSED IN O.S.NO.3783/2008 ON THE FILE OF THE XXXVIII ADDL. CITY CIVIL & SESSIONS JUDGE, BANGALORE, PARTLY DECREEING THE SUIT FOR PARTITION, SEPARATE POSSESSION AND MESNE PROFITS.

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THIS APPEAL COMING ON FOR HEARING, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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Heard Sri.K.Varaprasad, learned counsel for

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appellant and Sri.Ravindranath K., learned counsel for respondents 1(a) to 1(c).

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The first defendant being aggrieved by the

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Judgment and preliminary decree passed in O.S.No.3783/2008 dated 30.06.2010 on the file of XXXVIII Additional City Civil Judge, Bengaluru has preferred this appeal.

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Brief facts of the case are as under:

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First respondent (deceased now represented by legal representatives respondents 1(a) to (c) husband and children) filed a suit against the appellant and other siblings who are defendants 1 to 6 and tenants of suit schedule properties as defendants 7 to 11, seeking 1/6^th share in the suit schedule properties and also enquiry into future mesne profits.

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The genealogy as under:

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GENEALOGY

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T.P.Revana Siddappa(Late)
Husband
K.Muddamma (Late)
Wife
Renukamba D1 Girijamba Plaintiff D5 D6 Bharathi
(Late) Renukappa Late Sarvamangala Sunanda Jayalalitha (Late)
54 years 47 years un-married
un-married
Siddalingesh Yogesh
Husband Husband
C.S.Prabhu
Husband Shubhakar
53 years R.Prasanna
Husband 54 years
Husband No Vignesh
Childrens 9years
Son
D2 D3 D4
Poornima Pooja Vinay
22 years 17 years 13 years
Daughter Daughter Son
P.Yashasini P.Yamini
21 years 18 years
Daughter
Daughter

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Admittedly, the plaintiff is daughter of Sri.T.P.Revana Siddappa and Smt.K.Muddamma. Upon their death, plaintiff demanded partition of the suit

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schedule properties seeking her 1/6^th share in the suit schedule properties. Same was denied by the first defendant/appellant. As such the plaintiff was constrained to file the suit narrating her right to seek for partition in the plaint schedule properties.

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On receipt of suit summons, first defendant appeared before the trial court and filed detailed written statement denying the plaint averments in toto. Further first defendant contended that plaintiff after her marriage with the respondent No.1(a), cease to be a member of joint family and therefore she has no right to seek for partition.

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It is specifically contended that since the plaintiff married an inter-caste person the parents of plaintiff and first defendant suggested that all relationship of plaintiff with the family to be put to end by paying a sum of Rs.50,000/-. Accordingly

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Rs.50,000/- was paid, family settlement letter is executed by plaintiff. As such suit is not maintainable.

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Based on the rival pleadings, trial court framed

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following issues:

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"1. Whether plaintiff prove that she is entitled to a share in the suit schedule property and if so to what share, and in which of the suit schedule properties?

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2. Whether defendant No.1 prove that towards her share in the joint family properties, plaintiff has received a sum of Rs.50,000/- from their father and executed a deed of family settlement?

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3. Whether plaintiffs are entitled to the relief sought for?

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4. What order or decree?"

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In order to prove the issues, plaintiff got

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herself examined as PW-1 and relied on 18 documents marked as Exs.P-1 to P-18(a) comprising of death

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certificate of her parents, family pedigree and encumbrance certificates in respect of suit schedule properties, revenue records in respect of schedule properties, legal notice, five postal covers and notices which are inside the postal covers.

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On behalf of the defendants, first defendant got himself examined as DW-1 and also he examined five more witnesses DW-2 to DW-6 and however defendant did not produce any documentary evidence to substantiate the defence.

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Learned trial Judge on conclusion of the trial and hearing arguments of parties answered issues as under:

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"Issue No.1 - In the affirmative and further hold that plaintiff is entitled to 1/6^th share in all the suit schedule properties.

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Issue No.2 - In the negative

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Issue No.3 - Partly in the affirmative and partly in the negative

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Issue No.4 - As per final order"

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and partly decreed suit of the plaintiff granting 1/6^th share in the suit schedule properties. There was also an order for enquiry to mesne profits as contemplated under Order XX Rule 12 CPC.

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Being aggrieved by the same, first defendant

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has filed the above appeal on the following grounds.

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That the impugned Judgment and Decree is contrary to the material on record and opposed to the well established principles of law, and therefore the same is liable to be set aside.

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That the Court below has not at all assigned any valid or justifiable reasons while passing the impugned Judgment and Decree and therefore the same is liable to be set aside.

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That the Court below has not at all taken into consideration that the Respondent No.1 got inter caste marriage in the year 1985 and has already

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released herself from all the family relationships with the Appellant and other members of the family by executing family settlement deed by receiving the amount. In this view of the matter, the suit of the Respondent No.1 is not maintainable in law and therefore the same ought to have been dismissed by the court below. Without doing so, has grossly erred in passing the impugned Judgment and Decree, which is highly erroneous and illegal and therefore the same is liable to be set aside.

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That the Court below has failed to take into consideration that ever since the death of father of the Appellant, all the burden of looking after the family affairs including that of performing the marriage of his unmarried sisters fell upon him and out of his hard earned money and painstaking labour, has performed the marriages of his sisters and they are living separately with their respective family and as such there is no joint-family available for partition. In this view of the matter, the suit itself is not maintainable and the same ought to have been dismissed. Without doing so, has grossly erred in passing the impugned Judgment and Decree, which is highly erroneous and illegal and therefore the same is liable to be set aside.

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That the Court below has grossly erred in passing the impugned Judgment and Decree by construing

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the amended Hindu Succession Act, 2005 to be retrospective. It is to be noted at this juncture that succession opened on the date of death of the Appellant's father in the year 1987 and the share to which each member of the family is entitled to, is determined as on that date and hence the right to a particular share is vested in the son on the date the succession opened and that right cannot be taken away by making the said provision retrospective. Nowhere in Sec.6 of the Amended Act, is it stated that the said provision is retrospective. In this view of the matter, the amended provision of the Act is not applicable to the case on hand. Without considering this aspect of the matter, the Court below has grossly erred in passing the impugned Judgment and Decree which is highly erroneous, illegal and arbitrary and therefore the same is liable to be set aside..

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That the court below has failed to take into consideration that since the Amended Act, 2005 is not applicable to the case on hand, it is only Sec.6 of the unamended Act that comes into play while allotting any share to the daughters. In that, a notional partition is to be effected prior to the death of Appellant's father in which event his father would have got ½ share, and by virtue of the proviso to Sec.6 of the unamended Act, in the ½ share of the Appellant's father, the Appellant and his six sisters

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would be entitled to 1/7th share each, and thus the Respondent No.1 is entitled only for 1/14th share. However, the Court below has allotted 1/6th share to the Respondent No.1 without there being any rationale or justifiable reason and therefore the impugned Judgment and Decree is highly erroneous, illegal, arbitrary and unconstitutional.

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That the Court below has grossly erred in passing the impugned judgment and Decree awarding mesne profits to the Respondent No.1. The Court below failed to take into consideration that the Respondent No.1 is residing in a portion of the suit schedule property and the Appellant is not receiving any monetary benefit in this regard and therefore she is not entitled for grant of mesne profit. Further, the rents received by the Appellant are very nominal and the same are being utilized for the family purpose. Without considering the same, the court below has grossly erred in passing the impugned Judgment and Decree which is erroneous and illegal and therefore liable to be set aside.

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Viewed from any angle and at any stretch of imagination, it could clearly be held that the impugned Judgment and Decree is highly erroneous, illegal, arbitrary and unconstitutional besides not sustainable in the eye of law and therefore the same

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warrants the active interference of this Hon'ble Court to promote justice and prevent injustice."

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Reiterating the grounds urged in the appeal memorandum, learned counsel for appellant Sri.K.Varaprasad Vehemently contended that once when plaintiff has accepted a sum of Rs.50,000/- and relinquished her share in the suit schedule properties by executing family settlement letter, she is estopped from contending contra and to seek partition in the suit schedule properties is not permissible and thus sought for allowing the appeal.

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Per contra, Sri.K.Ravindranath, learned counsel for plaintiff and contesting respondent vehemently contended that the alleged family settlement letter is not even brought before the court. Except mentioning the same in the written statement by the appellant, there is no proof of the alleged family

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settlement and any amount of oral testimony would not take away right of the plaintiff in seeking partition in the suit schedule properties.

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He has also pointed assuming that such family settlement exists, since the same is not registered, same would not take away the rights of the plaintiff in seeking partition in the suit properties and thus sought for dismissal of the appeal.

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In view of the rival contentions following points arise for consideration:

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(1) Whether the plaintiff has successfully established that she is entitled for 1/6^th share in the suit schedule properties.

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(2) Whether the impugned Judgment and decree suffers from legal infirmity and perversity and thus calls for interference.

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(3) What order?

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In the case on hand in order to prove the relationship among parties, the family pedigree is marked at Ex.P-3 referred to supra. There is no dispute with regard to relationship among the parties and admittedly suit schedule properties are the joint family properties in as much as there is no contra pleading to the said aspect of the matter. When the relationship is admitted and nature of the property is admitted, the scope and ambit of the suit for partition reduces to considerable extent.

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In order to deny the share of the plaintiff in the suit schedule properties first defendant has taken up contention in the written statement stating her share is already settled by the alleged family settlement and letter has been executed by plaintiff by taking a sum of Rs.50,000/-.

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In this regard, except oral evidence placed by first defendant and also oral testimony of DW-2 to DW6, there is no material on record whereby one could satisfactorily infer that the plaintiff knowing fully well that by taking a sum of Rs.50,000/- has relinquished her share in the suit schedule property. In the absence of plausible proof to prove the alleged family settlement, the trial court has recorded a finding that the plaintiff being one of the daughters born to Revana Siddappa and Muddamma is entitled to 1/6^th share in the suit schedule properties.

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On re-appreciation of material on record cumulatively, the plaintiff being the daughter is entitled for the share and just because she has married an intercaste person, her right in the suit schedule properties cannot be denied. Alleged family settlement not proved

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by defendants by placing sufficient evidence on record as discussed supra.

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Therefore this court is of the considered opinion the findings recorded by the trial court is just and proper and none of the grounds urged in the appeal memorandum would be sufficient to annul the findings recorded by the learned trial Judge. Accordingly point No.1 is answered in the affirmative. Consequently point No.2 in the negative.

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Regarding Point No.3 - In view of the findings of this court on point No.1 and point No.2, following order is passed:

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ORDER

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Appeal sans merit and stands dismissed.

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However, learned counsel for the appellant has pointed out that there is mistake in the name of the

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village as also in the suit schedule item in as much as in item No.3 measurement has been mentioned as 1 acre 27 guntas but what is available is only 27 guntas in item No.3 so also in item No.4 as against 1 acre. The joint family possessed only 20 guntas of land. His submission is placed on record.

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Learned counsel for contesting respondent submits that he has already made necessary amendment in the pending Final Decree Proceedings in this regard. If no such amendment carried out, the trial court shall take into note the above discrepancies while passing the final decree.

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Sd/JUDGE

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SBN

Sri. Renukappa v. Smt. Sarvamangala

Case brief

What is this about?

What did the court decide?

Sri. Renukappa v. Smt. Sarvamangala

Case brief

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What did the court decide?

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