Dismissed

Smt Lalithamma v. M K Krishnegowda

Karnataka HC18 Dec 2023RSA/11/2021

Case brief

AI extract

What is this about?

This second appeal against a decree dismissing a suit for partition was dismissed. The court held that a prior partition in 1976 had become final. An appellant was barred from filing a second suit for partition. A respondent who had not questioned the prior partition could not maintain a counter-claim or amend the statement to seek more properties.

What did the court decide?

The second appeal is dismissed, and the amendment application is rejected.

Smt Lalithamma Vs M K Krishnegowda — Specific Performance | Karnataka HC (2023)

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1 - NC: 2023:KHC:46183 RSA No. 11 of 2021

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 18^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM REGULAR SECOND APPEAL NO.11 OF 2021 (PAR)

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BETWEEN:

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SMT.LALITHAMMA D/O M P KRISHNEGOWDA AGED ABOUT 70 YEARS R/AT DUDDANA HALLI ATHAGUR HOBLI MADDUR TALUK MANDYA DISTRICT

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…APPELLANT

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(BY SRI.CHANDRASHEKAR H B, ADVOCATE)

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AND:

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Digitally signed by CHAITHRA A Location: HIGH COURT OF KARNATAKA

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M K KRISHNEGOWDA S/O M P KRISHNEGOWDA AGED ABOUT 75 YEARS R/AT OPP.SPUN SILK MILL MANGALWARPETE CHANNAPATNA TALUK RAMANAGAERA DISTRICT – 571 511

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SMT.SHANTAMMA W/O LATE SHAMBUGOWDA AGED ABOUT 65 YEARS R/AT MANGALWARPETE CHANNAPATNA TALUK RAMANAGARA DISTRICT – 571 511

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2 - NC: 2023:KHC:46183 RSA No. 11 of 2021

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3. RAJESHA

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S/O LATE PUTTALINGAIAH AGED ABOUT 45 YEARS R/AT DUNDANA HALLI ATHAGUR HOBLI, MADDUR TALUK MANDYA DISTRICT – 571 511

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…RESPONDENTS

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(BY SRI.D.R.RAVISHANKAR, SENIOR ADVOCATE A/W SRI.SARAVANA S, ADVOCATE)

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THIS RSA IS FILED U/SEC.100 OF CPC 1908 AGAINST THE JUDGMENT AND DECREE DATED 14.08.2020 PASSED IN RA NO.31/2015 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, CHANNAPATNA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 31.07.2010 PASSED IN O.S NO.113/2002 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, CHANNAPATNA AND ETC.

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

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JUDGMENT

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This captioned second appeal is filed by defendant

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No.3 assailing the judgment and decree dated 14.08.2020

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rendered by the Appellate Court in R.A.No.31/2015, wherein findings recorded by the Trial Court that there is a severance in the family is upheld by the Appellate Court.

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NC: 2023:KHC:46183 RSA No. 11 of 2021

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For the sake of brevity, the parties are referred as

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they are ranked before the Trial Court.

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The genealogical tree of the family is as under;

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M.P.Krishnegowda

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|________
|
Tayamma @ Siddamma
died on 12.08.1983 die
||
|
Venkatamma
d on 25.12.1994
||| |---|---|---| |
|
___
| |
| Shanthamma
|
(Died issue less)
| |
_____||
| | |
M.K.Kariyappa M.K.Shambhugowda M.K.Krishnegowda
|
|
|
Gowramma
________
| |
Lalithamma M.K.Hanuma
||

nthegowda
| |
| |
Shiva Nagesh|________
| | |
Ramesh Rajesh Poornima|
|
Yashoda|

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Brief facts leading to the case are as under;

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One Shanthamma, who is the widow of one

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M.K.Shambugowda, has instituted the present suit for partition in O.S.No.113/2002 seeking her legitimate share in the suit schedule properties by contending that suit schedule properties are joint family ancestral properties.

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Defendant No.1 on receipt of summons tendered

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appearance and filed written statement and raised a contention that the present suit is not maintainable as the

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NC: 2023:KHC:46183 RSA No. 11 of 2021

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plaintiff had filed a similar suit seeking relief of partition in O.S.No.272/1981 and later, she restricted her claim only in respect of permanent injunction and therefore, the said suit filed by the present plaintiff in O.S.No.272/1981 was decreed upholding previous partition effected between family members in the year 1976.

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The plaintiff has strangely once again filed the

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present suit in O.S.No.113/2002 seeking partition.

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Defendant No.3, who was impleaded, filed written

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statement and set up a Will by contending that her brother M.K.Kariyappa has bequeathed item No.1 property under registered Will dated 23.12.1996 in favour of her son by name Rajesh. Defendant No.3 by way of counter claim has also claimed that item No.2 is also ancestral property and therefore, claimed her legitimate share in the suit schedule properties.

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5 - NC: 2023:KHC:46183 RSA No. 11 of 2021

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Plaintiff and defendants to substantiate their

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respective claims have let in oral and documentary evidence.

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The Trial Court, while answering issue No.2 partly in the Affirmative, has taken cognizance of the judgment rendered in the earlier suit filed in O.S.No.272/1981. The Trial Court was of the view that the plaintiff cannot maintain second suit for partition. The Trial Court held that the dispute in regard to whether there is a severance in the family or not is examined and decided by the Court in O.S.No.272/1981. Referring to the materials on record, the Trial Court was of the view that defendant No.1 has succeeded in substantiating that there was a partition in the year 1976.

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Insofar as claim of defendant No.2 relating to item No.1 property, the Trial Court at para Nos.19 and 20 was of the view that defendant Nos.2 and 3 are asserting that item No.1 property is the absolute property of

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6 - NC: 2023:KHC:46183 RSA No. 11 of 2021

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M.K.Kariyappa, which necessarily leads to inference that defendants are not disputing the partition. The Trial Court has also taken note of the Will set up by the defendants and has come to the conclusion that neither plaintiff nor defendant No.1 have disputed the Will. The Trial Court has recorded a categorical finding that no issues are framed in that regard as there is no dispute in regard to the Will. While upholding that there is already partition in the family, the Trial Court held that plaintiff could not have maintained second suit seeking relief of partition and separate possession. Consequently, the suit is dismissed.

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Though defendant No.3 has sought declaration questioning the partition effected in the year 1976, based on the observations made by this Court in the earlier round of litigation i.e., in RSA No.1634/2012 c/w RSA Crob No.11/2014, defendant No.3 now intends to question findings of the fact recorded in the earlier suit bearing O.S.No.272/1981. Though defendant No.3 was reserved liberty to work out her remedies and liberty was reserved questioning preliminary decree passed in

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NC: 2023:KHC:46183 RSA No. 11 of 2021

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O.S.No.113/2002, defendant No.3 has not taken any steps

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to seek partition by amending the written statement. Strangely, defendant No.3 has included all the properties in the appeal memo that was filed before the Appellate Court in R.A.No.31/2015.

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On meticulous examination of the written statement, this Court would find that defendant Nos.2 and 3 contested the suit by contending that item No.1 property is the absolute property of M.K.Kariyappa and he has bequeathed item No.1 property in favour of defendant No.2 – Rajesh, who is none other than the son of defendant No.3.

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The findings and conclusions recorded by the Trial Court at paragraph Nos.19 to 21 would clinch the entire controversy insofar as defendant Nos.2 and 3 are concerned. If plaintiff’s suit is dismissed by recording a finding that there is already severance in the family. Defendant Nos.2 and 3, who set up a counter claim and

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8 - NC: 2023:KHC:46183 RSA No. 11 of 2021

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also set up a Will alleged to have been executed by one M.K.Kariyappa, cannot enlarge the scope of enquiry in a counter claim and unsettle severance in the family, which has taken place in the year 1976 and the said severance is given a quietus by the judicial pronouncement by competent Civil Court in O.S.No.272/1981.

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Be that as it may, defendant No.3 pursuant to the liberty reserved by this Court has not sought for amendment of the written statement and no further evidence is let in questioning the partition effected in the year 1976. Merely because all the properties were included in an appeal memo that in itself will not give a right to defendant No.3 to question the preliminary decree and seek share in all the properties held by the family, which were subject matter of the partition effected in the year 1976.

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The findings recorded on the Will insofar as defendant No.2 is concerned, the same is given quietus by

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9 - NC: 2023:KHC:46183 RSA No. 11 of 2021

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the Trial Court. The Trial Court has rightly observed that plaintiff and defendant No.1 have not disputed the Will executed by M.K.Kariyappa in favour of defendant No.2. Therefore, there is a categorical finding rendered by the Appellate Court. If there is no contest in regard to the Will, the Trial Court was justified in not framing issue on the Will.

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Defendant No.3 has not chosen to amend the written statement to seek relief of partition by questioning the earlier partition effected in the year 1976.

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Be that as it may, defendant No.2 in absence of issue has produced the Will and examined the attesting witnesses. The Trial Court has taken note of this evidence and has come to the conclusion that there is no challenge to the Will. Therefore, in the light of the findings recorded by the Trial Court that the claim of defendant No.2 based on the Will is also given a quietus insofar as defendant No.3 is concerned. The counter claim is confined only in

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10 -

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NC: 2023:KHC:46183 RSA No. 11 of 2021

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respect of item No.2 property. Defendant No.3 without questioning 1976 partition cannot maintain the counter claim. All these significant details are rightly dealt by the Trial Court.

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Therefore, no substantial question of law arises for consideration.

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Accordingly, the second appeal is dismissed.

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For the reasons stated supra, the amendment sought in the written statement at this juncture cannot be entertained. Therefore, amendment application filed in

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I.A.No.1/2023 is not maintainable. Accordingly,

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I.A.No.1/2023 is rejected.

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Sd/JUDGE

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NBM

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List No.: 1 Sl No.: 3

Smt Lalithamma v. M K Krishnegowda

Case brief

What is this about?

What did the court decide?

Smt Lalithamma v. M K Krishnegowda

Case brief

What is this about?

What did the court decide?

What the court decided

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