Dismissed

M N Bramhadevaiah v. Smt. Sudharathna

Karnataka HC1 Sept 2022RSA/814/2018

Case brief

AI extract

What is this about?

Regular Second Appeals filed by legal representatives of a deceased son against a judgment decreeing joint family ancestral property status and awarding equal shares to daughters under amended Section 6 of the Hindu Succession Act. The High Court dismissed the appeals.

What did the court decide?

Both Regular Second Appeals (Nos.814 and 813 of 2018) are dismissed. Pending interlocutory applications are rejected.

M N Bramhadevaiah Vs Smt. Sudharathna — Partition | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 1^ST DAY OF SEPTEMBER, 2022

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BEFORE

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THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

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REGULAR SECOND APPEAL NO.814 OF 2018 (PAR) C/W REGULAR SECOND APPEAL NO.813 OF 2018 (PAR)

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IN RSA NO.814/2018

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BETWEEN:

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M N BRAMHADEVAIAH S/O LATE NAGAKUMARAIAH AGED ABOUT 58 YEARS BUGUDANAHALLI BELLAVI HOBLI TUMAKURU TALUK

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DEAD BY LRS

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G V LATHA W/O LATE M N BRAMHADEVAIAH AGED ABOUT 59 YEARS 27^TH CROSS, SIT EXTENSION TUMAKURU 572102

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SUSHMA B.DEV W/O M P NAVEEN AND D/O LATE M N BRAMHADEVAIAH AGED ABOUT 38 YEARS # 484, 1^ST FLOOR, 8^TH MAIN 2^ND CROSS, VIJAYANAGAR BENGALURU - 560 040.

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NAGADARSHAN @ DARSHAN B DEV S/O LATE M N BRAMHADEVAIAH AGED ABOUT 37 YEARS SRI VEERA TRADERS M/S DARSHAN ENTERPRISES 3^RD MAIN, APMC YARD BATAWADI TUMAKURU – 572 102

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SHRUTHI B DEV D/O LATE M N BRAMHADEVAIAH AGED ABOUT 35 YEARS 27^TH CROSS, SIT EXTENSION TUMAKURU - 572102

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...APPELLANTS

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(BY SRI.R.B.SADASIVAPPA, ADVOCATE FOR SRI.RAJASHEKAR K. ADVOCATE)

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AND

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SMT.SUDHARATHNA D/O LATE NAGAKUMARAIAH W/O CHANDRAKEERTHI AGED ABOUT 56 YEARS FERTILIZER DEALER BH ROAD, GOWRI BIDHANOOR KOLAR DISTRICT – 561 208

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SMT.PRAMILA S/O LATE NAGAKUMARAIAH W/O VEERENDRA KUMAR AGED ABOUT 54 YEARS VIDYA NAGAR, 4^TH MAIN TUMAKURU - 572 102

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NAVARATHNA M N D/O. NAGAKUMARAIAH W/O C N NAGENDRAIAH AGED ABOUT 60 YEARS R/AT BIG BAZAAR STREET CHAMARAJANAGAR – 571 313

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NANDAKUMAR S/O LATE NAGAKUMARAIAH AGED ABOUT 53 YEARS FRONT HOUSE, 4^TH CROSS VIDYANAGAR, TUMKURU – 572 102

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…..RESPONDENTS

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(BY SRI.JWALA KUMAR, ADVOCATE FOR R.1 TO 3; SRI.V.B.SIDDARAMAIAH, ADVOCATE FOR R.4)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 AND ORDER XLII RULE 1 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 04.01.2018 PASSED IN R.A.NO.105/2013, ON THE FILE OF THE I ADDL. DISTRICT AND SESSIONS JUDGE, TUMKUR, ALLOWING THE APPEAL AND MODIFYING THE JUDGMENT AND DECREE DATED 26.10.2013 PASSED IN O.S.NO.172/1997 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE AND CJM., TUMKUR.

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IN RSA NO.813/2018

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BETWEEN:

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M N BRAMHADEVAIAH S/O LATE NAGAKUMARAIAH AGED ABOUT 58 YEARS BUGUDANAHALLI BELLAVI HOBLI TUMAKURU TALUK DEAD BY LRS

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G V LATHA W/O LATE M N BRAMHADEVAIAH AGED ABOUT 59 YEARS 27^TH CROSS, SIT EXTENSION TUMAKURU 572102

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SUSHMA B.DEV W/O M P NAVEEN AND D/O LATE M N BRAMHADEVAIAH AGED ABOUT 38 YEARS # 484, 1^ST FLOOR, 8^TH MAIN 2^ND CROSS, VIJAYANAGAR BENGALURU - 560 040.

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DARSHAN B DEV S/O LATE M N BRAMHADEVAIAH AGED ABOUT 37 YEARS SRI VEERA TRADERS M/S DARSHAN ENTERPRISES 3^RD MAIN, APMC YARD BATAWADI TUMAKURU – 572 102

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SHRUTHI B DEV D/O LATE M N BRAMHADEVAIAH AGED ABOUT 35 YEARS 27^TH CROSS, SIT EXTENSION TUMAKURU - 572102

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...APPELLANTS

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(BY SRI.R.B.SADASIVAPPA, ADVOCATE FOR SRI.RAJASHEKAR K. ADVOCATE)

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AND

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NAVARATHNA M N D/O. NAGAKUMARAIAH W/O C N NAGENDRAIAH

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AGED ABOUT 60 YEARS R/AT BIG BAZAAR STREET CHAMARAJANAGAR – 571 313

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NANDAKUMAR S/O LATE NAGAKUMARAIAH AGED ABOUT 53 YEARS FRONT HOUSE, 4^TH CROSS VIDYANAGAR, TUMKURU – 572 102

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SMT.SUDHARATHA D/O LATE NAGAKUMARAIAH W/O CHANDRAKEERTHI AGED ABOUT 56 YEARS FERTILIZER DEALER BH ROAD, GOWRI BIDHANOOR KOLAR DISTRICT – 561 208

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SMT.PRAMILA S/O LATE NAGAKUMARAIAH W/O VEERENDRA KUMAR AGED ABOUT 54 YEARS VIDYA NAGAR, 4^TH MAIN TUMAKURU - 572 102

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…..RESPONDENTS

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(BY SRI.JWALA KUMAR, ADVOCATE FOR R.1, 3 & 4; SRI.V.B.SIDDARAMAIAH, ADVOCATE FOR R.2)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 AND ORDER XLII RULE 1 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 04.01.2018 PASSED IN R.A.NO.104/2013, ON THE FILE OF THE I ADDL. DISTRICT AND SESSIONS JUDGE, TUMKUR, ALLOWING THE APPEAL AND MODIFYING THE JUDGMENT AND DECREE DATED 26.10.2013 PASSED IN O.S.NO.172/1997 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE AND CJM., TUMKUR.

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THESE REGULAR SECOND APPEALS COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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COMMON JUDGMENT

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Both captioned Regular Appeals are filed by the legal representatives of defendant No.1 questioning the common judgment and decree passed by the Appellate Court in R.A.No.104/2013 and R.A.No.105/2013.

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For the sake of brevity, the parties are referred

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as they are ranked before the Trial Court.

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The original plaintiff, who is father of present plaintiffs and defendants, instituted a suit for partition and separate possession. Pending suit, the original plaintiff Nagakumaraiah died on 06.01.2007 and his daughters were brought on record as plaintiff Nos.1 and 2. The original plaintiff specifically contended in the plaint that suit schedule properties are joint family ancestral properties and defendants have forcibly driven out original plaintiff without providing any share or income in the joint

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family ancestral properties. Hence, suit came to be filed by the father against his sons.

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The present defendants more particularly defendant No.1, who is the eldest son of the original plaintiff namely Nagakumaraiah, contested the proceedings and filed written statement and stoutly denied entire averments made in the plaint. Defendant No.1 contended that there was a partition and in the said partition, the original plaintiff was given 2 k.g. gold, jewellary and cash of Rs.5,00,000/- and therefore, claimed that present suit for partial partition is not maintainable. The defendants also contended that there was a family arrangement in the year 1995 and in the said family arrangements, original plaintiff – Nagakumaraiah and his two sons i.e., defendant Nos.1 and 2 effected partition and item Nos.1 to 4 were allotted to the share of defendant No.1 and item No.5 was allotted to the share of defendant No.2 and 2 K.G. golden ornaments and cash of Rs.5,00,000/- was given to plaintiff No.1 share towards

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her maintenance. Therefore, defendants contended that there is already severance in the family.

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Plaintiff No.1, who is sister of defendant Nos.1

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and 2, has led in oral and documentary evidence. Defendants have led in rebuttal evidence. The Trial Court having assessed the oral and documentary evidence answered issue Nos.1 and 2 in the affirmative, while issue No.3 was answered in the negative. The Trial Court having examined oral and documentary evidence led in by both parties recorded a categorical finding that it is not only item Nos.4 to 6 but item Nos.1 and 2 are also joint family ancestral properties. Having examined rebuttal evidence led in by defendants, Trial Court was not inclined to accept defence set up by defendants in regard to alleged family arrangements. The Trial Court referring to several admissions found that partition set up by defendants in the year 1995 is not proved by producing legal evidence. Trial Court was of the view that post alleged partition was not found to be acted upon and same is not indicated in the

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revenue records. Therefore, the alleged oral partition and family arrangements was negatived by Trial Court and therefore, Trial Court proceeded to decree the suit granting 1/8^th share to plaintiff No.1(a) in item No.1, while plaintiff No.2 and defendant No.1 each were allotted 7/18^th share in item Nos.1 to 6 and item No.1 in the written statement. The Trial Court has also held that Gift Deed dated 03.08.1985 would not bind on defendant No.1.

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Feeling aggrieved by preliminary decree passed by Trial Court in O.S.No.172/1997, defendant No.1 preferred an appeal in R.A.No.104/2013 while defendant No.3, who is also one of the sister of plaintiffs and defendant Nos.1 and 2, preferred an independent appeal in R.A.No.105/2013. The Appellate Court having independently assessed oral and documentary evidence, though concurred with the findings of the Trial Court, however, found that quantification done by the Trial Court is contrary to amended provisions of Section 6 of the Hindu Succession Act. The Appellate Court was of the view

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that plaintiff No.1 and defendant No.3 being the daughters in view of the amended provision of Section 6 of the Hindu Succession Act would acquire status of co-parcenary. Therefore, placing reliance on the judgment rendered by the Hon’ble Apex Court in the case of PRAKASH AND OTHERS VS. PHULAVATI AND OTHERS¹ reversed the findings of the Trial Court in so far as quantification is concerned. The Appellate Court was of the view that if the original plaintiff - Nagakumaraiah is survived by two sons and three daughters, all the children of Nagakumaraiah would succeed equally. Appellate Court partially reversed preliminary decree in so far as quantification of share is concerned. The appeal filed by defendant No.3 in R.A.No.104/2013 was allowed and defendant No.3 was also allotted 1/5^th share in the suit schedule properties. The judgment and decree of the Appellate Court is questioned by the legal representatives of the deceased defendant No.1 in these two appeals.

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1 ILR 2015 KAR 5329

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Heard learned counsel appearing for legal

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representatives of defendant No.1 and learned counsel appearing for plaintiff and learned counsel appearing for respondent Nos.3, 4 and 5.

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Both courts have concurrently held that suit schedule properties are joint family ancestral properties. Both Courts have concurrently recorded a finding that defendants having set up a plea of prior partition have failed to substantiate their defence. Both Courts have held that there is no severance in the family and that suit schedule properties are joint family ancestral properties. If defendants have failed to prove that there was a partition between the original plaintiff Nagakumaraiah and his two sons, then plaintiffs and defendant No.3 are bound to succeed and they are entitled for their legitimate share in terms of amended provision to Section 6 of the Hindu Succession Act. The Hon’ble Apex Court in the case of

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VINEETH SHARMA VS. RAKESH SHARMA

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AND OTHERS² has held that daughters are entitled for equal share in terms of amended provision to Section 6 of the Hindu Succession Act. The concurrent findings recorded by both Courts to the effect that there is no severance in the family do not suffer from any infirmities. The partial modification done by Appellate Court thereby granting equal share to the daughters is strictly in consonance with the principles laid down by the Hon’ble Apex Court in the case of VINEETH SHARMA VS. RAKESH SHARMA AND OTHERS . No substantial question of law arises for consideration in both appeals.

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Accordingly, both appeals are dismissed .

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All pending interlocutory applications, if any, stand

rejected.

Sd/JUDGE

NBM

2 AIR 2020 SC 3717

M N Bramhadevaiah v. Smt. Sudharathna

Case brief

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M N Bramhadevaiah v. Smt. Sudharathna

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