Allowed

B N Hemachandra @ Krishna v. B N Subbanna

Karnataka HC21 Jun 2023RFA/1386/2009

Case brief

AI extract

What is this about?

Appeal against a partition suit decree rejecting claims for items 1 and 3. The High Court held that self-acquired properties of the first defendant's mother (Puttamma) devolved upon her children and husband. The deceased husband's 1/4th share must be divided equally among all nine heirs. Appeal allowed in part; decree modified.

What did the court decide?

Impugned judgment modified to hold all plaintiffs and defendants Nos. 1 to 7 entitled to equal shares out of 1/4th share of the deceased in items 1 and 3.

B N Hemachandra @ Krishna Vs B N Subbanna — Partition | Karnataka HC (2023)

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1 - NC: 2023:KHC:21744-DB RFA No. 1386 of 2009

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 21^ST DAY OF JUNE, 2023

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PRESENT

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THE HON'BLE MR JUSTICE P.S.DINESH KUMAR

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AND

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THE HON'BLE MR JUSTICE T.G. SHIVASHANKARE GOWDA REGULAR FIRST APPEAL NO. 1386 OF 2009 (PAR)

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BETWEEN:

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B N HEMACHANDRA @ KRISHNA SINCE DECEASED BY LRS.

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1(A) SMT. B.H.VANI

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W/O HARISH D/O LATE B.M.HEMACHANDRA @ KRISHNA AGED ABOUT 40 YEARS R/AT CHOTTANAHALLI VILLAGE NANDIPURA POST, MOODIGERE TALUK CHIKKAMAGALURU DISTRICT

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1(B) SMT.B.H.VEENA

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W/O LAKSHMAN RAJU D/O LATE B.M.HEMACHANDRA @ KRISHNA AGED ABOUT 38 YEARS

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Digitally signed by MALA K N Location: HIGH COURT OF KARNATAKA

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R/AT FLAT NO.55, NEAR HANUPAMA SCHOOL, SAI BABA NAGARA HANDANAHALLI MAIN ROAD, PEENYA II STAGE, BENGALURU - 560 091

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1(C) SRI. B.H. NARASIMHA

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S/O LATE B.N.HEMACHANDRA @ KRISHNA AGED ABOUT 36 YEARS R/AT HOLE BEEDI, NEAR LAKSHMI MEDICALS BELUR TOWN, HASSAN DISTRICT

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1(D) SRI .B.H.HARISH KUMAR S/O LATE B.N.HEMACHANDRA @ KRISHNA AGED ABOUT 34 YEARS

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R/AT HOLE BEEDI, NEAR LAKSHMI MEDICALS BELUR TOWN, HASSAN DISTRICT

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2 - NC: 2023:KHC:21744-DB RFA No. 1386 of 2009

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B N ERANNA @ HIRANNAIAH

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AGED ABOUT 58 YEARS

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WORKING AS KSRTC DRIVER BOTH ARE S/O.LATE B K NARASIMHAIAH R/O.HOLEBEEDI BELUR TOWN - 573 115

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…APPELLANTS

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(BY SRI. C R SUBRAMANYA.,ADVOCATE)

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AND:

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B N SUBBANNA AGED ABOUT 82 YEARS S/O.LATE B K NARASIMHAIAH R/O.HOLEBEEDI BELUR TOWN

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DEAD BY LRS

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1(A) B S PUNDALIKA @ KANTHA S/O.B N SUBBANNA AGED ABOUT 66 STEEL FURNITURE MANUFACTURER HOLEBEEDI, BELUR TOWN - 573 115

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1(B) B S VIJAYAMMA W/O.CHANDRAPPA D/O.LATE B N SUBBANNA AGED ABOUT 48 YEARS ESHWARIHALLY VILLAGE

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SHIKARIPURA TALUK, SHIMOGA DIST - 577 429

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1(C) B S BALASUBRAMANYA @ PRABHA AGED ABOUT 46 YEARS

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SINCE DEAD BY LRS

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1(C)(1) HEMAVATHI

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AGED ABOUT YEARS W/O B.S.BALASUBRAMANYA @ PRABHA

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1(C)(2)PRADEEP AGED ABOUT 26 YEARS

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1(C)(3) VINOD

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AGED ABOUT 24 YEARS, BOTH ARE S/O LATE B.S.BALASUBRAMANYA @ PRABHA

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1(C)(4) SMT. POORNIMA AGED 22 YEARS D/O B.S.BALASUBRAMANYA @ PRABHA

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3 - NC: 2023:KHC:21744-DB RFA No. 1386 of 2009

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ALL ARE R/AT HOLEBEEDI BELUR TOWN HASSAN DISTRICT (CAUSE TITLE AMENDED VIDE ORDER DATED 20.11.2015)

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1(D). B S VENKATESH AGED 44 YEARS

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1(E). B S LOKESHA @ MANJARI AGED 42 YEARS

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1(F) B S HONNEGOWDA @ MAHESHA AGED 40 YEARS

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1(D) TO 1(F) ARE SONS OF LATE SUBBANNA, ALL ARE R/O HOLEBEEDI BELUR TOWN

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B N NEELAMMA W/O.MARIGOWDA

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D/O.LATE B K NARASIMHAIAH R/O.TEMPLE STREET (KEREBEEDI) BELUR TOWN -573 115

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B N ERAMMA W/O.RAMANNAD/O.LATE B K NARASIMHAIAH KEREBEEDI BELUR TOWN - 573 115

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B N NARASAMMA W/O.RAMEGOWDA D/O.LATE B K NARASIMHAIAH AGED 45 YEARS, R/O.TAVARADEVARA KOPPALU HASSAN TALUK - 577 427

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B N KOMALAMMA W/O.LATE PARVATHEGOWDA, D/O.LATE B K NARASIMHAIAH R/O.KIRALLY KASABA HOBLI SAKLESHPURA TALUK - 577 427

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B N KAMALAMMA, AGED 41 YEARS D/O.LATE B K NARASIMHAIAH R/O.DODDI ROAD, K R PURAM HASSAN

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B N PUTTAMMA W/O.P E ANNEGOWDA, AGED 43 YEARS

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4 - NC: 2023:KHC:21744-DB RFA No. 1386 of 2009

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D/O.LATE B K NARASIMAIAH

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D/NO.2556, ARALEPET HASSAN CITY - 573 201

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H A RATHNA. AGED ABOUT 57 YEARS W/O.LATE THIMMARAJU KSRTC DRIVER VALLABHAI ROAD,HASSAN - 573 201

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H A APPU, AGED ABOUT 55 YEARS S/O.ANNAIAH RANGENAHALLI KEMPANAHALLI ROAD CHIKKAMAGALUR

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ANASUYA, AGED ABOUT 52 YEARS W/O.VEERAPPA KANVALLY SRINGERI TALUK CHIKKAMAGALUR DIST

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CHANDRAMMA, AGED ABOUT 49 YEARS W/O.RAJU ADLIMANE ROAD HASSAN

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THULASI, AGED ABOUT 46 YEARS W/O.PARVATHEGOWDA DURGANAGAR 2ND CROSS BELUR

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BHAGYA, AGED ABOUT 44 YEARS W/O.PUNDALIKA HOLEBEEDI BELUR TALUK

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MEENA, AGED ABOUT 38 YEARS W/O.MANJU VIJAYANAGARGOWRI COLONY CHIKKAMAGALUR

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SARALA, AGED ABOUT 40 YEARS W/O.LATE RAGHU

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RANJITHA, AGED ABOUT 20 YEARS W/O.LATE RAGHU

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RACHITHA, AGED ABOUT 18 YEARS W/O.LATE RAGHU

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RESPONDENT NOS. 15 TO 17 ARE R/O.RAMANAHALLI VILLAGE

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CHIKKAMAGALUR TALUK

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SEETHAMMA, AGED ABOUT 50 YEARS W/O.KUMAR R/O.HOLEBEEDIBELUR TOWN

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PAPAMMA, AGED ABOUT 48 YEARS D/O.LATE GOWREGOWDA

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R/O.HOLEBEEDIBELUR TOWN

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GIRIJA, AGED ABOUT 47 YEARS D/O.LATE GOWREGOWDA R/O.HOLEBEEDIBELUR TOWN

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NAGARAJ, AGED ABOUT 45 YEARS D/O.LATE GOWREGOWDA R/O.HOLEBEEDIBELUR TOWN

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LAXMI, AGED ABOUT 42 YEARS W/O.KRISHNA R/O.HOLEBEEDI BELUR TOWN

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SANGEETHA, AGED ABOUT 14 YEARS D/O.LAXMEGOWDA R/O.HAGARE VILLAGE MADIHALLI HOBLIBELUR TALUK, MINOR REP BY FATHER LAXMEGOWDA

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SANTHOSHA, AGED ABOUT 12 YEARS S/O.LAXMEGOWDA R/O.HAGARE VILLAGE MADIHALLI HOBLI BELUR TALUK MINOR REP BY FATHER LAXMEGOWDA

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LAXMEGOWDA, AGED ABOUT 40 YEARS S/O.THAMMAIAH R/O.HAGARE VILLAGE MADIHALLI HOBLI BELUR TALUK …RESPONDENTS

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(BY SRI. C.M.NAGABHUSHAN, ADV. FOR SMT. KAVITHA H C., ADV. FOR R1(A) (1 TO 3), R1(B), R1(C) (1 TO 4), R1(E) R1(F), R3 AND R4; SRI. GIRISH B. BALADARE, ADV. FOR R1(D); VIDE ORDER DATED 31.01.2023, NOTICE TO R2 H/S; R3 TO R5, R6B AND R6C ARE SERVED; VIDE ORDER DATED 19.09.2016 NOTICE TO R8 TO R20 ARE DISPENSED WITH; VIDE ORDER DATED 30.07.2018 NOTICE TO R6(A AND D) ARE HELD SUFFICIENT; R7 SERVED; SRI. K.L.SRINIVASA, ADV. FOR R21 TO R25)

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THIS RFA FILED UNDER SECTION 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 03.10.2009 PASSED IN OS.NO.05/2008 ON THE FILE OF THE CIVIL JUDGE (SR. DN.) AND JMFC, BELUR, PARTLY DECREEING THE SUIT FOR THE PARTITION

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6 - NC: 2023:KHC:21744-DB RFA No. 1386 of 2009

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AND MESNE PROFITS, AND DISMISSING THE SUIT IN RESPECT OF ITEM NOS.1 AND 3 OF THE PLAINTIFFS THEREIN. THIS APPEAL, COMING ON FOR FURTHER HEARING, THIS DAY, T.G. SHIVASHANKARE GOWDA J ., DELIVERED THE FOLLOWING:

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J U D G M E N T

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In this appeal, the plaintiffs have challenged the judgment and decree dated 03.10.2009 passed in O.S.No.5/2008 on the file of the Civil Judge (Sr.Dn.) and J.M.F.C., Belur ('the Trial Court' for brevity), rejecting their claim for partition and separate possession in respect of items No.1 and 3 of the suit schedule properties.

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Appellants are the plaintiffs and respondents

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No.1 to 25 are the defendants before the Trial Court. For the sake of convenience, parties shall be referred as per their status before the Trial Court.

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Brief facts leading to filing of this appeal are, the suit schedule properties are the self-acquired properties of one B.K.Narasimhaiah, father of plaintiffs and defendants No.1 to 7. Narasimhaiah died leaving behind

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the plaintiffs and defendants No.1 to 7 as his heirs. Defendant No.1 is the elder member of the family. The

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7 - NC: 2023:KHC:21744-DB RFA No. 1386 of 2009

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plaintiffs approached him seeking partition and separate possession and he did not acceed to their request. Plaintiffs got issued a notice on 20.09.1985 seeking partition which was replied by him on 5.10.1985. As defendant No.1 did not effect the partition and prolonged it on one pretext or the other, they have filed the instant suit.

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Defendant No.1 alone contested the suit by filing his written statement. He has admitted the relationship between the parties. His defence is that the suit schedule properties are not the self-acquired properties of his father Narasimhaiah. Narasimhaiah had two wives by name Puttamma and Gowramma. Defendants No.1, 3 and 4 are the children of Narasimhaiah through his first wife Puttamma. Plaintiffs No.1 and 2, Defendants No.2, 5, 6 and 7 are the children of Narasimhaiah through his second wife Gowramma. Items No.1 and 3 of the suit schedule properties originally belonged to Puttamma. After her death, Khathas have been changed in the name of Narasimhaiah. Ownership of

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8 - NC: 2023:KHC:21744-DB RFA No. 1386 of 2009

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Puttamma over item No.1 of the suit schedule properties has been declared in O.S.No.2/1945-46, in which Narasimhaiah was also one of the defendants. Defendant No.1 and legal heir of Puttamma is in possession and enjoyment of Item No.1 of the suit schedule properties and the plaintiffs and other defendants have no right to claim share in the said properties. Item No.3 of the suit schedule property is gifted in favour of Puttamma by her mother Chinnamma and thereby Item No.3 is also selfacquired property of Puttamma and on these grounds he sought for dismissal of the suit.

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The Trial Court on the basis of the above

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pleadings, framed following issues:-

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"1. Whether the plaintiffs prove that the suit schedule property are self-acquired properties of Sri.Narasimhaiah, father of plaintiff?

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2. Whether plaintiffs have 2/9th share with suit

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properties?

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3. Whether plaintiffs are entitled for mesne profits?

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NC: 2023:KHC:21744-DB RFA No. 1386 of 2009

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4. Whether D.1, 3 and 4 proves that suit schedule property are the self-acquired properties of Puttamma wife of Narasimhaiah?

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5. Whether D.1, 3, 4 proves that there is already declaration in their favour that they are owners of the suit schedule properties after death of Puttamma, wife of Narasimhaiah?

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6. Whether D.1 is entitled for 1/9th share in the item No.2 of schedule property in the event of redeeming the mortgage?

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7. To what order or decree?"

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6. On behalf of plaintiffs, plaintiff No.1 and

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another witness have been examined as PWs-1 and 2 and 20 documents as per Exs.P-1 to P-20 have been marked. On behalf of defendants, first legal representative of defendant No.1 was examined as DW-1 and marked as many as 22 documents as Exs.D-1 to D-22. The Trial Court after hearing both sides, has held issues No. 1 to 6 in the affirmative and issue No.7 as per the final order and decreed the suit granting 1/9^th share each to the plaintiffs in items No.2 and 4 and dismissed the claim in respect of items No.1 and 3 of the suit schedule properties.

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10 - NC: 2023:KHC:21744-DB RFA No. 1386 of 2009

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Aggrieved by the same, the plaintiffs have filed this appeal on various grounds.

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We have heard the arguments of

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Sri.C.R. Subramanya, learned counsel for the appellants/plaintiffs, Sri.C.M.Nagabhushan, learned counsel for the legal heirs of respondent No.1, respondent No.3 and 4, Sri.K.L. Srinivasa, learned counsel for respondent No.21 to respondent No.25.

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The contention of the learned counsel for the plaintiffs is that, even if it is assumed that items No.1 and 3 of the suit schedule properties belonged to Puttamma, after her death, her husband, Narasimhaiah would be entitled for one share along with his three sons through his first wife Puttamma. Narasimhaiah had died intestate, leaving behind the plaintiffs and defendants No.1 to 7 as his legal heirs and thereby, the plaintiffs and defendants No.1 to 7 are entitled to equal share out of 1/4^th share of Narasimhaiah in items No.1 and 3 of the suit schedule properties.

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11 - NC: 2023:KHC:21744-DB RFA No. 1386 of 2009

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Per contra, learned counsel for the defendants have contended that Ex.D-3 is the document which points

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out that Chinnamma has gifted item No.3 of the suit schedule properties in favour of Puttamma and thereby it is the self-acquired property of Puttamma. Item No.1 of the suit schedule property had fallen to Puttamma’s share as per the decree in O.S.No.2/1945-46 in which Narasimhaiah was also one of the defendants. Learned counsel also has taken us through the admission made by DW-1, that item No.3 of the suit schedule property is the property of Narasimhaiah and therefore, the rejection of share in items No.1 and 3 is unsustainable.

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We have given our anxious consideration to the arguments addressed by the learned counsel for both the parties and perused the records.

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The relationship between the parties is not in dispute. Narasimhaiah had two wives by name Puttamma

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and Gowramma. Defendants No.1, 3 and 4 are the children of Narasimhaiah through his first wife Puttamma.

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Plaintiffs No.1 and 2, defendants No.1, 2, 5, 6 and 7 are the children of Narasimhaiah through his second wife Gowramma. As rightly argued by the learned counsel for the defendants No.1, 3 and 4, self-acquired properties of Puttamma are not amenable for partition between defendants No.1, 3 and 4 with the children of Gowramma.

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The Trial Court has recorded that items No.2 and 4 of the suit schedule properties are only the properties belonging to Narasimhaiah, which can be partitioned between his children through both his wives i.e., plaintiffs and defendants No.1 to 7. This finding of the Trial Court has not been challenged by any of the defendants. Hence, the said finding has attained finality.

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As could be seen from the evidence on record, item No.1 of the suit schedule property had fallen to the share of Puttamma in O.S.No.2/1945-46 in which Narasimhaiah was also one of the defendants. The evidence on record also points out that item No.3 of the suit schedule property originally belonged to Puttamma’s

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mother Chinnamma. She gifted the same in favour of Puttamma through Ex.D3/gift deed. This aspect has not been disputed by the plaintiffs and other defendants. The Trial Court has also recorded the same finding that items No.1 and 3 of the suit schedule properties are the properties belonging to Puttamma, in which neither the plaintiffs nor defendants No.1, 2, 5, 6 and 7 have any share.

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Adverting to the arguments canvassed on behalf of the plaintiffs that Puttamma died leaving behind her husband and three sons i.e., defendants No.1, 3 and 4, we may record that there is no pleading in the written statement filed by defendant No.1 nor this aspect was propounded in the evidence to show that Puttamma bequeathed or settled items No.1 and 3 in favour of her children excluding her husband. It is admitted that Puttamma died prior to death of her husband and thereby the properties of Puttamma i.e., items No.1 and 3 of the suit schedule properties have to devolve upon her three children i.e., defendants No.1, 3 and 4 and also her

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husband Narasimhaiah. The evidence also points out that Narasimhaiah died intestate. Therefore, Narasimhaiah and all his children i.e., plaintiffs and defendants No.1 to 7 shall succeed equally. Hence, we do not find any force in the argument of the learned counsel for defendants No.1, 3 and 5. The Trial Court has committed an error in not dividing the 1/4^th share of Narasimhaiah among the plaintiffs and defendants No.1 to 7. We did not get any answer to the pointed question posed to defendants No.1, 3 and 4 on this aspect.

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Hence, we hold that the plaintiffs No.1 and 2 and defendants No.1 to 7 are equally entitled to share in items No.1 and 3 out of 1/4^th share of Narasimhaiah. Accordingly, the appeal deserves to be allowed. In the result, the following:

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NC: 2023:KHC:21744-DB RFA No. 1386 of 2009

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15 -

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ORDER

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(i) Appeal is allowed in part .

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(ii) The impugned judgment and decree is modified holding that plaintiffs and defendants No.1 to 7 shall be entitled to equal share out of 1/4^th share of B.K.Narasimhaiah in items No.1 and 3 of the suit schedule properties.

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(iii) Rest of the judgment and decree of the Trial

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Court shall remain intact.

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Parties to bear their own costs.

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SD/JUDGE

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SD/JUDGE

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KNM CT-HS

B N Hemachandra @ Krishna v. B N Subbanna

Case brief

What is this about?

What did the court decide?

B N Hemachandra @ Krishna v. B N Subbanna

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

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