Appeal against a decree partitioning joint family properties. High Court found that since parties admitted equal shares and no substantive dispute remained despite a bank loan, the lower court judgment should be upheld and appeal dismissed.
The regular first appeal was dismissed. No costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
NC: 2023:KHC:22988-DB RFA No. 129 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF JUNE, 2023
PRESENT
THE HON'BLE MR. JUSTICE P.S.DINESH KUMAR
AND
THE HON'BLE MR. JUSTICE T.G. SHIVASHANKARE GOWDA REGULAR FIRST APPEAL NO. 129 OF 2017 (PAR)
BETWEEN:
Digitally signed by ANUSHA V Location: HIGH COURT OF KARNATAKA
(BY SHRI. S.G. MUNISWAMY GOWDA, ADVOCATE)
AND:
SRI. K.P. DILIP KUMAR S/O LATE K.N. POOVAIAH AGED ABOUT 43 YEARS R/AT NO.13, NISHANTH PRIDE KAMADHENUNAGAR BEHIND HP CORPORATE OFFICE B. NARAYANAPURA BANGALORE-16 …RESPONDENT
(BY SHRI. S. MUNIRAJU, ADVOCATE- [ABSENT])
THIS RFA IS FILED UNDER SEC.96 R/W ORDER 41, RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 21.10.2016 PASSED IN O.S. NO.2354/2012 ON THE FILE OF THE 24TH ADDL. CITY CIVIL AND SESSIONS JUDGE, BANGALORE CITY. DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.
THIS RFA, COMING ON FOR ADMISSION , THIS DAY, P.S.DINESH KUMAR, J. , DELIVERED THE FOLLOWING:
JUDGMENT
This appeal by the defendants is directed against judgment and decree dated 21.10.2016 in file of XXIV Addl. City Civil and Sessions Judge, Bangalore decreeing the suit for partition and separate possession.
referred as per their status before the Trial Court.
Advocate for the appellants/defendants.
NC: 2023:KHC:22988-DB RFA No. 129 of 2017
4. Briefly stated the facts of the case are, plaintiff,
defendants No.2 & 3 are children of K.N. Poovaiah. He was
the absolute owner of residential site bearing No.31 (item No. 1 in the suit properties). He died intestate on 25.08.1999, leaving behind defendants and plaintiff. After his death, Revenue records were transferred in the name of defendant No.1. Plaintiff and defendants were in joint possession of the suit properties. In the year 2003, defendant No.1 and plaintiff obtained housing loan from Vijaya Bank and they altered the existing house. Ground floor of the suit property was let-out on rent for Rs. 5000/- p.m. All rents were collected by defendant No.1. The loan instalments were paid by plaintiff from 2003 to January 2011 and thereafter defendant No.1 has been repaying the loan. Plaintiff and defendants have constructed a commercial complex in Site No.5AC-989 (item No. 2 in the suit properties). Defendant No.1 has been collecting monthly Rent of Rs.54,450/- from the suit properties. Plaintiff demanded his share, but defendant No.1 refused his demand. Hence, plaintiff has brought the instant suit.
has framed following issues:
1. Whether the plaintiff proves that suit schedule properties undivided joint family are properties of plaintiff and defendants?
2. Whether defendants prove that defendant Nos.1 to 3 have raised loan from Bank and private persons and have constructed building on item No.2 property?
3. Whether Court fee paid is proper?
4. Whether plaintiff is entitled to relief of partition?
NC: 2023:KHC:22988-DB RFA No. 129 of 2017
5. What decree or order?
to P36 marked. Defendant No.1 examined himself as DW.1 and got Exs.D1 to D20 marked. Answering all the issues in the affirmative, the Trial Court has decreed the suit holding that the plaintiff and defendants are entitled for 1/4th share each in the suit properties.
to allow the appeal, submitted that:
NC: 2023:KHC:22988-DB RFA No. 129 of 2017
the parties and that the suit properties are the joint family properties.
of the parties has held that plaintiff and defendants are entitled for 1/4th share in the suit properties by recording thus:
NC: 2023:KHC:22988-DB RFA No. 129 of 2017
“12. This is a peculiar case wherein almost all the contentions of one party are admitted by the other party and actually there remains nothing to be decided by the Court. Both the parties admit that suit schedule sites were purchased by K.N. Poovaiah and that said Poovaiah died intestate. They also admit that residential building was extended by raising loan and that loan was initially repaid by plaintiff and thereafter it was paid by defendant No.1 and that commercial complex was constructed by defendant No.1 and 3 by raising loan. It is also admitted that each of them is entitled for 1/4th share in suit schedule properties and that some portions of commercial building are let out by defendant No.1.
13. In view of admissions of both the parties, I hold that plaintiff is entitled for 1/4th share in suit schedule properties and that each of the defendant is also entitled for 1/4th share. Accordingly I answer issue Nos.1 and 2 in ‘affirmative’.”
1(2020) 9 SCC 1
NC: 2023:KHC:22988-DB RFA No. 129 of 2017
rightly decreed the suit and the impugned judgment calls for
no interference.
dismissed.
No costs.
Sd/JUDGE
Sd/JUDGE
SPS List No.: 2 Sl No.: 8
3 issues framed by the court
Whether the appeal against the trial court decreeing partition must be allowed despite the unresolved loan liability on joint family property?
If the parties admit equal shares are due, does an outstanding bank loan prevent the decree of partition?
Whether the High Court should interfere with the lower court's finding that all accusations of improper conduct by one party were admitted by the other?
Colour shows how this judgement treated each authority
Vineeta Sharma Vs. Rakesh Sharma and OthersFollowed¶64
Vineeta Sharma Vs. Rakesh Sharma and Others (1(2020) 9 SCC 1) · Who else cites this
2 provisions across 1 enactments
SMT. K.P. LOVELY
SMT. K.P. THARA
SRI. K.P. RAJESH
SRI. K.P. DILIP KUMAR
P.S.DINESH KUMAR
T.G. SHIVASHANKARE GOWDA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
