In a partition suit appeal, the High Court corrected the Trial Court for failing to grant share in certain properties, holding they belong to the joint family based on documentary and oral evidence.
Appellant entitled to 1/8th share in items 10 to 13 of the plaint schedule properties; impugned judgment and decree modified accordingly.
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:19392-DB RFA No. 1772 of 2010
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH 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. 1772 OF 2010 (PAR)
BETWEEN:
SMT. GOWRAMMA 60 YEARS W/O SRI.SHANTHARAJAIAH R/AT NO. 690 7TH CROSS 3RD BLOCK BEL LAYOUT VIDYARANYAPURA
BANGALORE CITY-560 097. …APPELLANT
(BY SRI.CHANDRAIAH, ADVOCATE)
AND:
Digitally signed by MALA K N
Location: HIGH COURT OF KARNATAKA
- 2 - NC: 2023:KHC:19392-DB RFA No. 1772 of 2010
D/O LATE MARIYAPPA.
SON OF LATE CHKKAMARIYAPPA.
LRS OF RSPT-1, RSPET-2 & 3 ARE ALL R/AT SOMASETTY HALLI VILLAGE CHIKKABANAVARA POST YASHAVANTHAPURA HOBLI BANGALORE NORTH TALUK PIN-560 097.
(BY SRI.V.VIJAYASHEKARA GOWDA, ADVOCATE FOR R1 (A, C, D & F); R1(B & E) SERVED [ABSENT] SRI.A.M.RAMA MURTHY REDDY, ADVOCATE FOR R2 [ABSENT]; R3 & R6 SERVED; V/O DTD. 25/08/2014 R4 DELETED; SMT.R.RADHA AND SRI.R.YOGESH, ADVOCATE FOR R5 [ABSENT] SRI.T.N.SHIVAREDDY, ADVOCATE FOR R7[ABSENT])
THIS RFA IS FILED U/S 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 18.01.2010 PASSED IN O.S.461/2007 ON THE FILE OF THE PRL. CIVIL JUDGE(SR. DN.), BANGALORE RURAL DISTRICT, BANGALORE, PARTLY DECREEING THE SUIT FOR PARTITION AND ETC.,
THIS APPEAL COMING ON FOR FURTHER HEARING, THIS DAY, T.G.SHIVASHANKARE GOWDA J., DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is by plaintiff No.1 against the
judgment and decree dated 18.01.2010 passed in O.S.No.461/2007 on the file of the Principal Civil Judge (Sr.Dn.), Bangalore Rural District, Bangalore, ('the Trial Court' in brevity), partly decreeing the suit
for partition and separate possession.
Chikkamariyappa died issueless, he was a talented person, worked at abroad and earned lot of properties including item Nos.7 and 8 of the plaint schedule property. He put the said properties to the common hotchpot of the joint family. After the death of the parents, plaintiff and defendants continued in the joint family enjoying the properties. The family was being managed by defendants No.2 to 6. Item No.11 is the shop premises situated at Gokula, Mathikere, Bangalore, in which the family was running business in the name of 'Savitha Traders', which was earning Rs.50,000/- per month. The plaintiffs approached the defendants No.2 to 6 demanding partition and separate possession. Declining to part with the suit properties, they offered them a sum of Rs.2,00,000/each. Even the movable assets earned by Marisiddappa, the bachelor brother was also not disclosed to them. Hence, seeking partition and separate possession of 1/9th share, the plaintiffs have filed the suit.
through their Advocate, but they have not filed their written statement. Defendants No.5 to 7 though served with summons have remained exparte. In order to prove their case, both the plaintiffs examined themselves as PWs-1 and 2 and one witness as PW-3
and marked 36 documents as Exs.P1 to P36.
"1. Whether plaintiffs prove that they are entitled for their legitimate 1/9th share each in all the suit schedule properties?
2. Whether the plaintiffs further prove that they are entitled for mesne profits from the date of suit to the date of partition and separate possession of their share in suit schedule properties?
3. What order?"
placed on behalf of the plaintiffs and come to the
conclusion that items No.1 to 9 of the plaint schedule properties are the joint family properties and accordingly accepted the case of the plaintiffs and decreed the suit, declaring that the plaintiffs are entitled for 1/8th share in item Nos.1 to 9 of the plaint schedule properties by metes and bounds. The Trial Court did not pass any order in respect of items No.10 to 13. Aggrieved by the same, the plaintiff No.1 has filed this appeal on various grounds.
the plaintiff that plaintiff's claim has not been opposed by the defendants. Plaintiffs have produced sufficient documentary evidence to show the existence of items No.10 to 13 of the plaint schedule properties also. Inspite of it, without assigning any reason, the Trial Court has omitted to grant relief. No reason has been
assigned by the Trial Court as to why the relief has
not been granted in respect of the said properties.
Hence, he sought for interference by this court and for granting a decree in respect of these items also.
No.13 of the plaint schedule property measures 1 acre 4 guntas of land in Sy.No.129/2 situated at Singanayakanahalli village Yeshwanthapura Hobli, Bangalore North Taluk.
for partition and separate possession of 1/8th share each to plaintiffs and defendants.
schedule) by Marisiddappa, the brother of the plaintiffs and defendants. The oral evidence of PWs-1 to 3 is in consonance with the recitals of Ex.P3/sale deed as regards items No.12 and 13 of the plaint schedule are concerned.
do not find any reasons have been assigned by the Trial Court in not granting share in the said items. There is no reason to disbelieve the evidence placed in support of the pleadings of the plaintiffs in respect of items No.10 to 13 of the plaint schedule properties as the joint family properties of the plaintiffs and defendants. Hence, the plaintiff No.1/appellant is entitled to seek partition of her 1/8th share in items No.1 to 13 of the plaint schedule properties. The Trial Court has lost sight of these aspects, hence, interference is warranted and the appeal deserves to be allowed. In the result, the following:
ORDER
(i) Appeal is allowed.
(ii) The impugned judgment and decree is modified.
(iii) The plaintiff No.1/appellant is entitled to 1/8th share in items No.10 to 13 of the plaint schedule
property, in addition to the share granted in items No.1 to 9 by the Trial Court.
(iv) Rest of the decree of the Trial Court shall remain in tact.
In view of disposal of this appeal, I.A.No.1/2021 is allowed . Misc.Cvl.21624/2010
stands disposed of .
Parties to bear their own costs.
SD/JUDGE
SD/JUDGE
KNM List No.: 2 Sl No.: 3
2 issues framed by the court
Whether the Trial Court erred in omitting to grant partition of share in items Nos. 10 to 13 of the plaint schedule property?
Whether the plaintiffs are entitled to 1/8th share in all the listed suit schedule properties including those previously ignored?
2 provisions across 1 enactments
SMT. GOWRAMMA
SMT.SHARADAMMA
SRI.SHIVA KUMAR
SMT.KANYAKUMARI
SMT.MANJULA
SRI.GANAPATHI
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
