Dismissed

Munigurappa v. Sri Munianjinappa

Karnataka HC18 Feb 2022RSA/115/2013

Case brief

AI extract

What is this about?

This second appeal challenges the confirmation of a trial court judgment dismissing a suit for partition of ancestral and self-acquired property. The High Court held that the father retained full ownership in self-acquired property despite an unregistered partition clause limiting his rights, validating the deed of sale executed to a defendant and dismissing the appeal.

What did the court decide?

Regular second appeal dismissed; judgment and decree of trial court and first appellate court confirmed.

Munigurappa Vs Sri Munianjinappa — Partition | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF FEBRUARY, 2022

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BEFORE

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THE HON’BLE MR.JUSTICE M.G.S.KAMAL

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REGULAR SECOND APPEAL NO.115 OF 2013

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BETWEEN:

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MUNIGURAPPA, S/O DODDATHIMMAIAH, AGED ABOUT 68 YEARS, R/A HAMAM, SHIVAPURA POST, KASABA HOBLI, DODDABALLAPUR TALUK.

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... APPELLANT

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(BY SRI.S.K.ACHARYA, ADVOCATE)

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AND:

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SRI. MUNIANJINAPPA, S/O DODDATHIMMAIAH, AGE MAJOR,

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SMT. BALAMMA, SINCE DEAD BY LRS.,

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2(a) LAKSHMINARAYANA, AGE 40 YEARS, S/O LATE BALAMMA,

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2(b) CHINNAMMA, AGE: 35 YEARS, D/O LATE BALAMMA,

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RESPONDENT NO.1 AND 2

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R/AT HAMAM, SHIVAPURA POST, KASABA HOBLI, DODDABALLAPURA TALUK – 561 203.

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SMT. ANJINAMMA, W/O NARASAPPA, AGE MAJOR, R/A ARALUMALLIGE, KASABA HOBLI, DODDABALLAPURA TALUK – 561 203.

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SMT. VENKATALAKSHMAMMA, W/O MUNINANJAPPA, AGE MAJOR, R/A HAMAM, SHIVAPURA POST, KASABA HOBLI, DODDABALLAPURA TALUK – 561 203.

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…RESPONDENTS

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(BY SRI.T.H.CHIKKAVENKATEGOWDA, ADV., FOR R-1, R-2(a-b), R-3 AND R-4)

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THIS APPEAL IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT & DECREE DATED 23.8.12 PASSED IN R.A.NO.28/2010 ON THE FILE OF PRESIDING OFFICER, FAST TRACK COURT, DODDABALLAPUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 3.6.2010 PASSED IN OS.NO.441/2007 ON THE FILE OF PRINCIPAL CIVIL JUDGE & J.M.F.C., DODDABALLAPURA.

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

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JUDGMENT

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This second regular appeal is filed by the appellant/plaintiff aggrieved by the concurrent findings and conclusions rendered in the judgment and decree dated 03/06/2010 passed in OS.No.441/2007 on the file of the Principal Civil Judge and JMFC, Doddaballapura (for short hereinafter referred to as 'the trial court') and the judgment and decree dated 23/08/2012 passed in RA.No.28/2010 on the file of the Fast Track Court, Doddaballapur (for short hereinafter referred to as 'the first appellate court').

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The parties are referred to as per their

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original rankings before the trial court.

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The plaintiff filed the above suit seeking relief of partition of the suit schedule property,

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claiming half share therein and also to declare that the deed of sale executed by the deceased Doddathimmaiah, Munjunathappa and his family members in favour of defendant No.4 is not binding on the plaintiff. It is the case of the plaintiff that himself and defendants constitute a hindu joint family and that during the lifetime of his parents there was a partition of the joint family property in terms of an Un-Registered Partition Deed dated 26/09/1983 between the plaintiff and his brother Munianjinappa and his parents in which the suit schedule property was reserved for the maintenance of their parents during their lifetime and that after their death the suit schedule property was to be divided between the plaintiff and his brother equally. That the joint family members have been enjoying their respective shares independently ever since the date of said partition. That the deceased parents of the plaintiff in collusion

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with defendants obstructed the plaintiff from enjoying coconut groves which constrained the plaintiff to file suit in OS.No.171/1994 for the relief of declaration and injunction and the said suit was dismissed in view of certain circumstances. In the said partition, there was a condition that his parents shall not sell the suit schedule property or create any third party interest except enjoying the same for their maintenance during their lifetime. That after the demise of his parents, plaintiff demanded for partition of the suit schedule property. That defendant No.4 claimed over the suit schedule property on the premise that defendant No.1 and his family members and the deceased father of the plaintiff had sold suit schedule property in favour of defendant No.4. That defendant No.4 is none other than the wife of defendant No.1. That the said conveyance was fraud played by the

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defendant No.1. As such, the same is not binding on him. Hence, the suit.

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Defendants in the written statement

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contended that the partition among the joint family had taken place very long back and were enjoying their respective shares. The plaintiff had never taken care of his parents during their lifetime and the suit schedule property has been alienated and there is no joint family status. No cause of action to the suit. Defendant No.4 has been in physical possession and enjoyment of the property. Hence, sought for dismissal of the suit.

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The trial court framed issues and recorded

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evidence. The plaintiff, along with 2 additional witnesses have been examined as PWs.1 to 3 and exhibited 8 documents marked as Exs.P1 to 8. The defendant, along with 2 additional witnesses have

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been examined as DWs.1 to 3 and exhibited 9 documents as Exs.D1 to D3.

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On appreciation of evidence, the Trial Court, by its judgment and decree dated 03/06/2010 dismissed the suit. Aggrieved by the same, the plaintiff preferred regular appeal in RA.No.28/2010 before the first appellate court.

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On re-appreciation of the pleading and material evidence, the first appellate court, by its judgment and decree dated 23/08/2012 dismissed the appeal confirming the judgment and decree of the trial court. Being aggrieved and dissatisfied with the same, the plaintiff is before this Court.

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Sri S.K.Acharya, learned counsel for the appellant/plaintiff reiterating the grounds urged in the appeal memorandum submitted that, the dismissal of

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the suit and confirmation by the first appellate court is erroneous as both the courts had misdirected themselves by relying upon the previous judgment rendered while dismissing the suit for partition filed by the plaintiff in OS.No.62/2002 which was confirmed in RFA.No.45/2004 without appreciating the evidence and other materials placed by the plaintiff. That the earlier suit in OS.No.62/2002 filed by the plaintiff was dismissed inasmuch as in terms of partition at Ex.P7 life interest had been created in favour of parents of the plaintiff and that no partition could be sought for during their lifetime. That the observation made in the said judgment rendered in RFA.No.45/2004 could not have come in the way of entertaining the present suit by the plaintiff. Hence, he submits that there is substantial question of law involved in the matter requiring consideration.

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appellant/plaintiff.

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The suit filed by the plaintiff is based on the unregistered partition deed dated 26/09/1983. It is contended by the plaintiff that in terms of the said partition, properties were divided and the parents of the plaintiff were given life time interest in respect of the suit schedule property and they had no right to alienate the same. Hence, alienation made in favour of defendant No.4 was illegal and not binding on the plaintiff. The trial court and the first appellate court have taken note of the fact that the plaintiff had earlier filed the suit in OS.No.62/2002 (Old No.874/1996) for declaration and injunction which came to be dismissed on 20/10/2003 as per Ex.D3 against which plaintiff had filed RFA No.45/2004 before this Court, which was also dismissed on

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03/03/2004 wherein this Court taking note of the fact that notwithstanding the deed of partition dated 26/09/1983 was an unregistered document, the parties had divided their properties and were enjoying their shares separately. It further observed that the stipulation in the unregistered partition deed that the father should take only a limited interest in the property during his lifetime for maintenance and that the said estate to devolve upon his sons after his death, would amount to partial relinquishment of his full ownership rights in the property. That since the said partition deed was an unregistered document, the said stipulation had no legal consequences and could not affect the full ownership rights of the father of the plaintiff and was therefore, unenforceable. It also took note of the fact that the father of the plaintiff had executed a Will and he was still alive, however, at mutual request of the parties mutation was entered

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into in respect of the said share in favour of defendant No.2 therein. The Court also took note of the fact that mere change of khatha at the instance of the father of the plaintiff in favour of defendant No.2 therein did not offend the legal rights of the plaintiff in any manner as he had no interest in the property and there was no cause of action to maintain the suit and consequently dismissed the said RFA confirming the judgment of the trial court therein.

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In the meanwhile, after dismissal of the said suit, a deed of sale dated 03/07/2006 executed by Doddathimmaiah, the father of the plaintiff in favour of Venkata Lakshmamma - defendant No.4, the wife of defendant No.1 herein. The trial court taking note of the fact that the suit schedule property had been purchased by Doddathimmaiah on 06/06/1966 was his self-acquired property and that there is no

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evidence on record to show that the suit schedule property was the ancestral property of the plaintiff. Therefore, the stipulation in the unregistered partition deed had no consequences and could not affect the full ownership of the deceased Doddathimmaiah. That the deceased Doddathimmaiah, during his lifetime, in exercise of his ownership, had executed the deed of sale dated 03/07/2006 in favour of defendant No.4. Accordingly, dismissed the suit. The first appellate court, on re-appreciating the evidence on record confirmed the reasoning and conclusion arrived at by the trial court. No infirmity or illegality can be found with the reasoning and conclusion arrived at by the trial court and the first appellate court and thus, no substantial question of law involved in this appeal requiring consideration. In the result, the following:

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ORDER

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i) Regular Second Appeal No.115/2013 filed by the appellant/plaintiff is dismissed.

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ii) The judgment and decree dated 03/06/2010 passed in OS.No.441/2007 by the trial court and the judgment and decree dated 23/08/2012 passed in RA.No.28/2010 by the first appellate court are confirmed.

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Sd/JUDGE

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Mkm

Munigurappa v. Sri Munianjinappa

Case brief

What is this about?

What did the court decide?

Munigurappa v. Sri Munianjinappa

Case brief

What is this about?

What did the court decide?

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