Dismissed

Smt Sharadamma C/O Basappa Doddamallappara v. Smt Basamma W/O Basappa Doddamallappara

Karnataka HC11 Aug 2022RFA/687/2006

Case brief

AI extract

What is this about?

The High Court dismissed an appeal challenging a partial decree in a partition suit. The court found the Trial Court correctly held that the first appellant, a second wife, had no rights to the property, but noted she was excluded from holding owner status alongside others. The decree otherwise stands as the appeal failed to prove legal infirmity.

What did the court decide?

The appeal is dismissed. No orders as to costs.

Smt Sharadamma C/O Basappa Doddamallappara Vs… — Succession and Inheritance | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 11^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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REGULAR FIRST APPEAL No.687 OF 2006 (DEC)

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BETWEEN:

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1 . SMT. SHARADAMMA C/O BASAPPA DODDAMALLAPPARA AGED ABOUT 64 YEARS

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2 . Ms. RENUKAMMA D/O SHARADAMMA C/O BASAPPA DODAMALLAPPARA, AGED ABOUT 22 YEARS,

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BOTH ARE RESIDING AT SINGATAGERE VILLAGE, THARAGANAHALLI POST, HONNALI TALUK, DAVANGERE DISTRICT - 577 217.

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...APPELLANTS

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(BY SRI P M SIDDAMALLAPPA, ADVOCATE FOR SRI MYLARAIAH ASSOCIATES)

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AND:

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1 . SMT. BASAMMA

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W/O BASAPPA DODDAMALLAPPARA AGED ABOUT 64 YEARS

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R/AT SINGATAGERE VILLAGE THARAGANAHALLI POST, HONNALI TALUK.

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2 . SMT. HANUMMA W/O BASAVARAJAPPA AGED ABOUT 49 YEARS R/AT MATTI VILLAGE DAVANGERE TALUK AND DISTRICT - 577 001. 3 . SMT. BENAKAMMA W/O LATE BELAKERAPPA AGED ABOUT 47 YEARS R/AT JADAGANAHALLI VILLAGE HONNUR POST, DAVANGERE DISTRICT - 577 001. 4 . SMT. GANGAMMA W/O HANUMANTHAPPA AGED 45 YEARS, R/A MALE KUMBALUR VILLAGE HONNALI TALUK DAVANGERE DISTRICT - 577 001.

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...RESPONDENTS

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(BY SRI RAVI H K, ADVOCATE FOR SRI H KANTHARAJ & ASSOCIATES FOR R1 TO R4)

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THIS REGULAR FIRST APPEAL FILED U/S.96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 23.02.2006 PASSED IN O.S.NO.472/02 ON THE FILE OF THE CIVIL JUDGE (SR.DN), HARIHAR, PARTLY DECREEING THE SUIT FOR DECLARATION AND PERMANENT INJUNCTION.

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THIS REGULAR FIRST APPEAL COMING ON FOR FURTHER HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:-

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JUDGMENT

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Heard Shri P.M.Siddamallappa, learned counsel for the appellants and Shri Ravi.H.K., learned counsel for the respondents.

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The present appeal is filed challenging the judgment and decree passed in O.S.No.472 of 2002 on the file of the learned Civil Judge (Senior Division), Harihara.

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For the sake of convenience, the parties are referred to as plaintiffs and defendants as per their original ranks before the Trial Court.

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Brief facts of the case are as under:

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A suit came to be filed by the plaintiff declaring that Partition Deed dated 19.05.2001 is illegal and not binding on the plaintiffs and also sought for declaration that the plaintiffs are the absolute owners in possession of the suit schedule properties as they

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are succeeding to the estate of deceased defendant No.1 and consequential relief of permanent injunction.

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The plaint averments further reveal that Basappa who is the first defendant is the owner of the suit schedule properties and he married Basamma who is the first plaintiff. From the marriage, plaintiff Nos.2 to 4 were born and thereafter, Basappa contracted second marriage with the second defendant, Smt.Sharadamma (first appellant herein) and second appellant, Smt.Renukamma was born from the said marital tie.

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When the matter stood thus, on 19.05.2001, Basappa said to have effected a registered partition by executing a deed on 19.05.2001 settling the half share of the suit properties in favour of the third defendant. Having come to know about the same, a suit was filed by the plaintiffs stating that Basappa had no right to settle

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the half share in the suit properties in favour of the third defendant and sought for suitable orders.

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On receipt of suit summons, defendants appeared and filed written statement interalia contending that plaintiff Nos.2 to 4 have nothing to do with the subject matter of the suit and their right to succeed to the assets of the first defendant would only occur after the death of the first defendant and during his lifetime plaintiffs have no right, title or interest over the suit properties and sought of dismissal of the suit.

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Based on the rival contentions, the Trial Court framed the following issues and additional issues:

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1. Whether plaintiffs prove that the partition deed dated 19.05.2001 executed by defendant No.1 in favour of defendant Nos.2 and 3 is illegal and same is not binding on the plaintiffs?

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2. Whether plaintiff No.1 is entitled for the maintenance of Rs.2,000-00 per month from defendant No.1 and to create charge over the suit properties in lieu of maintenance?

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3. Whether plaintiffs are entitled for the reliefs sought for?

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4. What order or decree ?

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Additional Issues:-

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1. Whether suit of the plaintiff No.2 to 4 is maintainable?

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2. Whether plaintiffs prove that they are in possession & enjoyment of suit schedule properties?

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3. Whether the suit properties are properly valued and Court Fee paid is sufficient?

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In order to prove the case of the plaintiffs, first plaintiff Smt.Basamma got examined herself as PW-1. She also examined two witnesses, namely, S.R.Hanumanthappa and S.M.Hanumanthappa as PW-

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2 and PW-3. Plaintiff relied on Exs.P1 to P10, which are as follows:

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Ex.P.1 C.C. of Record of Rights. Ex.P.2 - doEx.P.3 -do- Assessment Extract. Ex.P.4 -do- Mutation Register Extract. Ex.P.5 Genealogical tree Ex.P.6 Copy of legal notice Ex.P.7 Three postal Acknowledgments. to P.9

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Ex.P.10 C.C. of Mutation Register Extract.

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In so far as defendants are concerned, third defendant Smt.Renukamma got examined herself as DW-1. Three more witnesses are also examined on behalf of defendants, namely, T.Siddappa, H.K.Nagendrappa and Rudrappa as DWs2, 3 and 4.

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On behalf of the defendants, in all 26

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documents were marked as Exs.D1 to D26, which are as under:

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Ex.D.1 to D.3 Three photos Ex.D.4 C.C. of Sale deed dt. 7.4.80 Ex.D.5 Mutation Register Extract copy Ex.D.7 Genealogy tree Ex.D.8 Birth Certificate of defendant No.3 Ex.D.9 Original Partition Deed dated 19.5.2001 Ex.D.10 Voter's list Ex.D.11 Copy of legal notice Ex.D.12 to D.14 Identity cards issued by Election Commission of India. Ex.D.15 Mutation Register Extract copy Ex.D.16 to D.25 R.T.C. Extracts. Ex.D.26 Marriage Invitation Card.

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On conclusion of the evidence of the

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parties, the learned Trial Judge heard the parties and decreed the suit of the plaintiff as under:

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"The suit of the plaintiffs is hereby partly decreed against the defendants. It is hereby declared that the registered Partition Deed dated 19.05.2001 is illegal and not binding upon the plaintiffs. Further, it is declared that the plaintiffs and defendant No.3 are owners of the suit schedule properties. In respect of grant of permanent injunction against the defendants, the suit is hereby dismissed. Both parties should bear their own costs. Draw decree accordingly".

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Being aggrieved by the said judgment and

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decree, the defendants No.2 and 3 have filed the present appeal on the following grounds:

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" That the impugned judgment and Decree of the Trial court is otherwise opposed to law, facts and probabilities of the case. Hence the same is liable to be set aside.

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That the impugned judgment and Decree of the Trial court is very much capricious, perverse, illegal and bad in law and the same is liable to be set-aside in limine.

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That the impugned judgment and Decree of the Trial court is very much against to the principles of natural justice and liable to be set aside.

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That the impugned judgment and Decree of the Trial court is highly arbitrary in nature and suffers for want of proper and convincing reasoning and the reason one assigned by the Trial Court is one-sided and falls from judicious appreciation. As such, the same is liable to be set aside.

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That, the Trial Court is not justified in passing the impugned judgment and decree and thereby committed miscarriage of justice.

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That, the impugned Judgment and Decree of the Trial court is very much against to the principles of natural justice and liable to be set aside.

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That, the impugned Judgment and Decree of the Trial court is highly arbitrary in nature and suffers for want of proper and convincing reasoning and the reason one assigned by the Trial Court is one-sided and falls from judicious appreciation. As such, the same is liable to be set aside.

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That, the Trial Court has committed miscarriage of justice in not appreciating the oral and documentary evidence placed

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on record on behalf of the defendants and erred in discarding the material piece of evidence and as such, the impugned Judgment and Decree is liable to be set aside.

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That the Trial Court has erred in considering and appreciating the evidence produced on behalf of the plaintiffs as per PW.1 to PW.3 and Exts. P.1 to P.10. As such, the impugned Judgment and Decree of the trial court is liable to be set aside.

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That, the Trail Court has erred in not appreciating the evidence of the appellants and thereby erred in passing the impugned Judgment and Decree.

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That, the Trial Court has erred in not considering the evidence produced on behalf of the appellants as DW.1 to DW.4 and the documentary evidence produced by the appellants got marked Ext. D.1 to D.26 which clearly establish the claim of the appellants. Hence, the impugned Judgment and Decree is very much bad in law and liable to be set-aside.

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That, the trial court has totally erred in decreeing the suit of the respondents for the relief of declaration & partition though plaintiffs have failed to establish their possession over the property in dispute by producing the cogent and convenience material evidence.

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That, the trial court has totally erred by declaring that the Registered Partition

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Deed dated 19.5.2001 executed by the defendant No.1 in favour of the defendant Nos.2 & 3 is illegal though the material on record is clearly established that the said document executed by the defendant No.1 is out of his free will. As such, the impugned judgment and decree of the Trial court is otherwise bad in law and liable to be se aside.

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That, the trial court also erred by holding that the defendant No.2 is not the legally wedded wife of the defendant No.1 though the defendant No.1 in his document i.e., partition deed dated 19.5.2001 and the subsequent conduct of the defendant No.1 clearly accepted that the defendant No.2 is the second wife of the defendant No.1. As such, she is also one of the successor-in-title after the demise of the defendant No.1. Hence, the impugned Judgment and Decree of the trial court is very much bad and liable to be set aside.

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That the trial court has erred by declaring that the plaintiffs and the defendant No.3 alone are the owners of the suit schedule properties and thereby excluded the defendant No.2, which is very much illegal and unsustainable in the eye of law. Hence, the Impugned judgment and decree of the Trial court is very much bad and liable to be set aside.

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That, the trial court was not justified in decreeing the suit of the plaintiffs/respondents though the document i.e., the partition deed dated

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19.5.2001 executed by the defendant No.1 in favour of the defendant No.2 is a settlement in the family. When that document is a settlement in favour of the members of the family, that prevails over the intention behind the defendant No.1. If not that been treated as partition, that ought to have been treated as a Will, wherein the defendant No.1 has got every right to create testamentary in favour of anybody out of the extent of the property wherein he is entitled to the share to the extent of his undivided share. What all th documents executed is a document genuine and to be accepted. As such, to the extent of the property which one are the subject matter of the document dated, 19.5.2001, the defendant No.2 and 3 have acquired absolute right, title, interest and possession. As such, the trial court is not justified in declaring that the said document dated 19.5.2001 is null and void document, Hence, the impugned judgment and decree of the trial court is very much bad and liable to be set aside.

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That, in any view of the matter, the impugned Judgment and Decree of the Trial Court is very much bad and not sustainable in law and liable to be set aside.

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That, the appellant may be permitted to urge any other legal grounds at the time of hearing the above appeal on its merits.

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Reiterating the above grounds, Shri.P.M. Siddamallappa, learned counsel for the appellant vehemently contended that the Trial Court erred in decreeing the suit of the plaintiffs. He further argued that since the property is that of Basappa, he had every right to effect the partition between himself and the third defendant by Deed dated 19.05.2001 and therefore, plaintiffs’ suit ought to have been dismissed and prayed for allowing the appeal.

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Per contra, Shri Ravi.H.K., learned counsel appearing for the respondents, vehemently contended that the Trial Court has rightly decreed the suit of the plaintiff in as much as Basappa did not have right over the suit property to settle it in favour of the third defendant half portion thereof by Deed dated 19.05.2001and sought for dismissal of the appeal.

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In view of the rival contentions, this Court perused the material on record. On such perusal, following points would arise for consideration:

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i. Whether the appellant has made out a case that Basappa had every right to execute the Deed dated 19.05.2001 by settling half share in the suit properties in favour of the third defendant?

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ii. Whether the impugned judgment is suffering from legal infirmity or perversity and thus calls for interference?

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In the case on hand, the relationship is not

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in dispute. Admittedly, Basappa has married the second defendant-Smt.Sharadamma during the subsistence of the first marriage. Therefore, Smt.Sharadamma would not get any right whatsoever over the suit schedule property being the second wife. However, Smt.Renukamma being the daughter born to the second wife in the property of Basappa would

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be entitled to equal share that of the other daughters born to Basappa through Smt.Basamma.

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It is an admitted fact that Basappa died on 08.07.2003 during the pendency of the suit. However, the material on record would show that Basappa did not possess absolute right to settle the half share in the suit schedule property in favour of Smt.Renukamma and therefore, the Trial Court has rightly concluded that the plaintiffs are entitled to seek a declaration that the Deed dated 19.05.2001 is not binding on them. However, so far as the decree of the Trial Court that plaintiffs and defendant No.3 are the owners of the suit schedule property needs a slight modification in as much as Smt.Sharadamma, being the second wife does not get any right in the suit schedule property. In other words, to that extent, the impugned judgment needs interference. The plaintiffs however did not seek any relief for partition.

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Therefore, it is always open for the plaintiffs to seek for share in the property for their 1/5^th share in the property by filing appropriate suit.

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In pursuance of the Settlement Deed dated 19.05.2001, Smt.Renukamma is in possession of half share of the suit properties as is contended by the appellants and not disputed by the respondents. Therefore, it is always open for the plaintiffs to take appropriate action against the defendants seeking partition of their 1/5^th share in the suit schedule properties including possession.

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Absolutely, there is no material on record to interfere with the impugned judgment and decree. Factum of possession is in dispute and therefore, the plaintiffs are entitled to take necessary action, in accordance with law.

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With these observations, this Court is of the considered opinion that the appellants have not made any good grounds to interfere with the findings recorded by the Trial Court except to the extent that first appellant, Smt.Sharadamma would not get any right in the suit schedule properties. Accordingly, points are answered and following order is passed.

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ORDER

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The Appeal is dismissed . No orders as to costs.

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Sd/JUDGE

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Smt Sharadamma C/O Basappa Doddamallappara v. Smt Basamma W/O Basappa Doddamallappara

Case brief

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Smt Sharadamma C/O Basappa Doddamallappara v. Smt Basamma W/O Basappa Doddamallappara

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