Allowed

Eshwarappa v. Kotturamma Dead by Lrs

Karnataka HC13 Jul 2023RSA/1516/2011

Case brief

AI extract

What is this about?

In this regular second appeal regarding a partition suit, the High Court recalculated the shares of the joint purchasers (Kotturamma and Gangadharappa) after accepting additional evidence of sale deeds. The court modified the lower courts' decree to reflect the correct remaining shares of both parties after deducting alienated portions and excluding areas where purchasers had constructed houses.

What did the court decide?

The appeal was allowed; the judgment and decree of the trial and first appellate courts were modified to reflect the correct shares of the appellants and respondents after deducting alienated portions

Eshwarappa Vs Kotturamma Dead by Lrs — Partition | Karnataka HC (2023)

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NC: 2023:KHC:24521 RSA No. 1516 of 2011

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 13^TH DAY OF JULY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SHIVASHANKAR AMARANNAVAR

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REGULAR SECOND APPEAL NO. 1516 OF 2011 (Par)

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BETWEEN:

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ESHWARAPPA, S/O LATE GANGADHARAPPA, SINCE DEAD BY HIS LRS.

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1(a) SMT. RENUKAMMA W/O C.N.SHIVASHANKARA MURTHY, AGED 40 YEARS, R/O DODDAMETIKURKE AT & POST, KANAKATTE HOBLI, ARASIKERE TALUK, HASSAN DISTRICT.

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Digitally signed by LAKSHMINARAYANA MURTHY RAJASHRI Location: HIGH COURT OF KARNATAKA

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1(b) K.MALLIKARJUNA S/O LATE K.G.ESHWARAPPA,

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AGED 38 YEARS, R/O KANAKATTE THOTADAMANE, ARASIKERE TALUK, HASSAN DISTRICT.

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AMENDED AS PER THE ORDER DATED: 13.01.2017.

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JAYADEVAPPA, S/O LATE GANGADHARAPPA, AGED ABOUT 59 YEARS,

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SHIVAKUMAR S/O LATE GANGADHARAPPA, AGED ABOUT 51 YEARS,

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APPELLANTS ARE R/O KANAKATTE THOTADAMANE, ARASIKERE TALUK, HASSAN DISTRICT - 573 144

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…APPELLANTS

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(BY SRI G.C.SHANMUKHA, ADVOCATE)

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NC: 2023:KHC:24521 RSA No. 1516 of 2011

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AND:

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KOTTURAMMA DEAD BY LRS

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(a) ANNAPOORNAMMA, W/O MARULAPPA, AGED ABOUT 76 YEARS, KADALAMAGE VILLAGE, KANAKATTE HOBLI, ARASIKERE TALUK, HASSAN DISTRICT - 573 144.

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HALAMMA W/O MAHADEVAPPA, AGED ABOUT 81 YEARS, DODDAMETIKURKE VILLAGE, KANAKATTE HOBLI, ARASIKERE TALUK, HASSAN DISTRICT - 573 117.

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SHARADAMMA, DEAD BY HER LRS

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(a) SRI BASAVRAJAPPA, S/O JAGGE BASAPPA, AGED ABOUT 81 YEARS, KADALAMAGE VILLAGE, KANAKATTE HOBLI, ARASIKERE TALUK, HASSAN DISTRICT- 573 144.

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(b) SMT. NAGARATHNA, W/O MALLIKARJUNA, AGED ABOUT 38 YEARS, CHIKKONDIHALLI, KANAKATTE HOBLI, ARASIKERE TALUK, HASSAN DISTRICT - 573 144.

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(c) SMT. SUNANDAMMA, W/O HIRIYANA, AGED ABOUT 41 YEARS, KADALAMAGE VILLAGE, KANAKATTE HOBLI, ARASIKERE TALUK, HASSAN DISTRICT - 573 144.

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SRI VEERABHADRAPPA, S/O LATE REVANNA, AGED ABOUT 61 YEARS, KANAKATTE THOTADA MANE, ARASIKERE TALUK, HASSAN DISTRICT - 573 144.

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SMT.RATHNAMMA, W/O CHANNABASAPPA, AGED ABOUT 53 YEARS, NIDIVALLI VILLAGE, PANCHANAHALLI HOBLI, KADUR TALUK, CHICKMAGALUR DISTRICT - 573 132.

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SRI BASAVARAJU, S/O LATE GANGADHARAPPA, AGED ABOUT 58 YEARS, KANAKATTE THOTADAMANE, ARASIKERE TALUK, HASSAN DISTRICT - 573 144.

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SMT.MADAMMA, DEAD BY LRS

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(a) SRI KANTAIAH, S/O LATE SHIVANNAJJA, AGED ABOUT 61 YEARS, CHIKKAMATIKURKE VILLAGE, KANAKATTE HOBLI, ARASIKERE TALUK, HASSAN DISTRICT - 573 144.

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NC: 2023:KHC:24521 RSA No. 1516 of 2011

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(b) SMT.LATHA, W/O SHIVAKUMAR, AGED ABOUT 43 YEARS, KANAKATTE THOTADAMANE, ARASIKERE TALUK, HASSAN DISTRICT - 573 144.

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(c) SRI PRAKASH, S/O KANTAIAH, AGED ABOUT 43 YEARS, CHIKKAMATIKURKE VILLAGE, KANAKATTE HOBLI, ARASIKERE TALUK, HASSAN DISTRICT - 573 117.

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(d) SMT.SUMA W/O SHIVAKUMAR, PHYSICAL TEACHER, GOVT. HIGHER PRIMARY SCHOOL, KORA - 572 128. TUMKUR TALUK & DISTRICT.

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…RESPONDENTS

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(BY SMT.PREETI KAREDDY, ADVOCATE FOR SRI BASAVARAJ KAREDDY, ADVOCATE FOR R1, R2, R3(A-C), R4-5, R6, R7(A), 7(B), 7(C) ARE SERVED, R7(d)-DELETED)

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THIS REGULAR SECOND APPEAL FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 30.07.2010 PASSED IN R.A.No.165/2008 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE, HASSAN, REJECTING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 10.07.2008 PASSED IN O.S.No.56/2005 ON THE FILE OF THE CIVIL JUDGE (SR.DN.)& ADDL.CJM, ARSIKERE AND ETC.,

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THIS REGULAR SECOND APPEAL COMING ON FOR DICTATING JUDGMENT, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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JUDGMENT

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This appeal is filed praying to set aside the judgment and decree passed in R.A.No.165/2008 dated 30.07.2010 by the Principal District Judge, Hassan and judgment and decree dated 10.07.2008 passed in O.S.No.56/2005 by the Civil Judge (Sr.Dn.) and Additional CJM, Arsikere and to dismiss the suit.

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The parties will be referred to as per their rankings in the Trial Court.

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The appellants were defendant Nos.2, 3 and 5 and Respondent Nos.1 to 5 are the legal representatives of plaintiff and Respondent No.6 is defendant No.4 and Respondent No.7(a) to (d) are legal representatives of defendant No.7.

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The plaintiff, Kotturamma had filed suit in O.S.No.56/2005 for the relief of partition of her half share in the suit schedule properties and to declare that the house constructed by defendant Nos.9 to 11 are illegal and to dispossess the said persons and also for mesne profits.

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There are three items of properties, i.e., (i) Sy.No.277 measuring 15 acres 17 guntas; (ii) Sy.No.273 measuring 2 acre 25 guntas and (iii) Sy.No.332 measuring 1 acre 35 guntas. It is the case of the plaintiff that she and Gangadharappa jointly purchased 5 items of properties including three items of suit schedule properties under registered Sale Deed dated 01.08.1947 and they are in joint possession. It is stated that the plaintiff and Gangadharappa sold two items of the properties to defendant No.14 and delivered possession of alienated properties to defendant No.14. The said two properties were sold to defendant No.14 have not been included in the suit and there is no claim of the plaintiff against the legal representatives and they are made as formal parties to the suit. It is stated that Gangadharappa had alienated 6 acres 20 guntas of the land in Sy.No.277 to one Siddabasappa who is now no more and is represented by his legal representatives, i.e., defendants No.9 to 11. It is stated that the plaintiff was under the control of Gangadharappa and was playing fraud which resulted in

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alienation of 1 acre 20 guntas and 10 guntas of land bearing Sy.No.277 respectively to the defendant No.12 Hiriyanna and defendant No.13 Ramesha and they have constructed their house. It is further stated that due to such fraud played by Gangadharappa, plaintiff Kotturamma sold 5 guntas of land in Sy.No.332 in favour of defendant No.12 Hiriyanna. It is stated that Gangadharappa himself has sold 2 guntas of land in Sy.No.273 to one Channabasappa who had constructed a house and who is now no more and he is represented by his legal representative of defendant No.8 who is in possession of the suit property. It is stated that in the remaining area in Sy.No.273, the legal representatives of Siddabasappa have constructed houses illegally and they were in possession. In all, they have constructed four houses. It is stated that there was no sale of any property in Sy.No.332 to Siddabasappa. Even then, four houses were illegally constructed in 5 guntas of land in Sy.No.332. It is stated that the said alienation by Gangadharappa does not bind the plaintiff. The plaintiff demanded her

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share in the property with defendant No.1, which was not

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made and therefore, she filed a suit.

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The defendant Nos.1 to 5 filed common written

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statement and defendant Nos.9 to 11 have also filed common written statement and their contentions are almost identical.

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In the written statement, they admitted purchase of five items of the properties including the suit schedule properties by late Gangadharappa and plaintiff Kotturamma under a Sale Deed dated 01.08.1947. They admitted the said alienations by plaintiff but denied regarding existence of the house of some defendants except in Sy.No.332. They contended that there was no fraud played by late Gangadharappa on plaintiff, Kotturamma and she had voluntarily alienated the properties as alleged by her in favour of defendant Nos.12 and 13 measuring 1 acre 20 guntas and 10 guntas respectively in Sy.No.277. They contended that there was no alienation in Sy.No.273 as alleged by the plaintiff but

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NC: 2023:KHC:24521 RSA No. 1516 of 2011

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the alienation was in Sy.No.332 and there was a house in the said land. They contended that the plaintiff voluntarily

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sold 1 acre 20 guntas in Sy.No.277 to defendant No.12, Hiriyanna and subsequently, purchased 20 guntas of land from him and the same itself shows that the alienation was voluntarily. It is stated that Gangadharappa sold 5 guntas of land in Sy.No.332 on 18.12.1958 and there was a house at that place. So, the said houses were constructed after getting the purchased land in the year 1975 and there is a delay of 30 years in filing the suit. With these, they prayed to dismiss the suit.

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On the basis of the said pleadings, the Trial

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Court has framed the following issues:

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ªÁ¢ UÀAUÁzsÀgÀ¥Àà£ÀªÀgÀ »rvÀPÉÌ ¹QÌ ªÉÆÃ¸ÀzÀ PÀÄvÀAvÀæzÀ°è DvÀ£À ¤zÉðÃ±À£ÀzÀ ªÉÄÃgÉUÉ ¸ÀªÉð £ÀA.227gÀ°è 1 JPÀgÉ 20 UÀÄAmÉ d«ÄÃ£À£ÀÄß 12£ÉÃ ¥ÀæwªÁ¢ ¥ÀgÀ¨sÁgÉ ªÀiÁrzÁÝgÉ JA§ÄzÀ£ÀÄß gÀÄdÄªÁvÀÄ¥Àr¸ÀÄªÀgÉÃ?

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¹zÀÝ§¸À¥Àà ¸ÀªÉð £ÀA.332gÀ°è 0.5 UÀÄAmÉ ¥ÀæzÉÃ±ÀzÀ°è PÀnÖgÀÄªÀ 3 ªÀÄ£ÉUÀ¼ÀÄ PÁ£ÀÆ£ÀÄ ¨Á»gÀ JAzÀÄ ªÁ¢ gÀÄdÄªÁvÀÄ¥Àr¸ÀÄªÀgÉÃ?

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ªÁ¢ zÁªÁ µÉqÀÆå¯ï ¸ÀéwÛUÉ ¸ÀjAiÀiÁzÀ ZÀPÀÄÌ§A¢ ªÀÄvÀÄÛ «¹ÛÃtðªÀ£ÀÄß M¢V¹gÀÄªÀÅ¢®èªÉÃ?

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ªÁ¢AiÀÄ zÁªÉUÉ PÁ®¥Àj«Äw ¨ÁzsÀPÀ EzÉAiÉÄÃ?

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ªÁ¢ ºÁdgÁärz À PÀZÁÑ £ÀPÉëAiÀÄ°è ªÀÄvÀÄÛ CzÀgÀ ¸ÀAUÀwUÀ¼ÀÄ ¸Àj E®èªÉÃ?

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ªÁ¢ zÁªÁ µÉqÀÆå¯ï LlA £ÀA.1 jAzÀ 3gÀ°è CzsÀð »¸Áì ºÀPÀÌ£ÀÄß ªÀÄvÀÄÛ ¸Áé¢Ã£À ºÉÆAzÀ®Ä CºÀðgÉÃ?

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ªÁ¢AiÀÄÄ ¥sÀ¸À®Ä £ÀµÀÖPÉÌ CºÀðgÉ?

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AiÀiÁªÀ rQæ CxÀªÁ DzÉÃ±À?

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To prove the case, the plaintiff examined PWs-1

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to 5 and got marked Exs.P1 to P17. The defendants examined DWs-1 to 4 and got marked Exs.D1 to D27. The Trial Court after hearing arguments on both sides and appreciating the evidence on record answered Issue Nos.1 to 4 in the negative, Issue Nos.3, 5, 6 partly in affirmative and Issue No.7 in the affirmative and partly decreed the suit holding that legal representatives of plaintiff are entitled to 7 acres 3-1/2 guntas in Sy.No.277, 12-1/2 guntas in Sy.No.273 and 32-1/2 guntas in Sy.No.332, in the balance of the area only after excluding the areas sold

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to the contesting defendants and the houses they have constructed.

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Aggrieved by the said judgment and decree of

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the Trial Court, the legal representatives of the plaintiff filed appeal in R.A.No.164/2008 and defendant Nos.1 to 6 and legal representatives of defendant No.7 filed appeal in R.A.No.165/2008 on the file of the Principal District Judge, Hassan. After hearing the arguments on both the sides, and re-appreciating the evidence on record, the First Appellate Court has formulated following points for consideration:

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Whether the judgment and Decree passed by the learned Senior Civil Judge, Arasikere, in O.S.No.56/2005, dated 10.7.2008 by decreeing the suit of the plaintiff in part in respect of the suit schedule properties by seeking partition of their share is justified under law?

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Whether the Judgment and Decree passed in O.S No.56/2005, dated 10.7.2008 is call for interference as contended by the parties in both the appeals?

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What order?

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The First Appellate Court has answered Point

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No.1 in the affirmative and point No.2 in the negative and passed common judgment dismissing both the appeals confirming a decree passed by the Trial Court. Aggrieved by the said judgment and decree, the Trial Court and the First Appellate Court in R.A.No.165/2008, the defendant Nos.2, 3 and 5 have filed this second appeal. The legal representatives of appellant Nos.1 and 4(d) have not challenged the judgment and decree passed by the First Appellate Court in R.A.No.164/2008. This appeal came to be admitted to consider the following substantial questions of law:

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a) Whether the Courts below are justified in decreeing the suit without interpreting Exs.D1, D-11, D-12, P-7, P-10 and P-11?

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b) Whether the Courts below are justified in decreeing the suit for partition as there is already partition between Sri Gangadharappa and Smt. Kotturamma long back as is evident from the sale deed executed by Sri Gangadharappa as per Ex.D-1, D-11 and sale deed executed by Smt. Kotturamma as per Ex.D-12?

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c) Whether the Courts below are justified in decreeing the suit for mesne profits as the plaintiffs are in actual possession of their respective shares even prior to 1954?

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The learned counsel for the appellant has filed I.A.No.1 of 2023 under Order 41 Rule 27 r/w Section 151

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of CPC seeking permission to produce the following documents:

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1) Certified copy of the registered Sale Deed dated 08.10.1958 executed by Hariyanna, Son of Siddappa in favour of Kotturama (the plaintiff) in respect of Sy.No.273/1 measuring 0-20 guntas of Kanakatte Village, Arasikere Taluk.

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2) Certified copy of the registered Sale Deed dated 28.04.1980 executed by Smt.Kotturamma, Wife of Revanna and her son K.R.Veerabhadraiah in favour of K.Ramesh in respect of Sy.No.277 measuring 0-10 guntas of Kanakatte Village, Arasikere Taluk.

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The learned counsel for the respondents

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submitted no objection to allow the said application and to

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take on record the documents produced under the said application as additional evidence.

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The learned counsel for the appellant has contended that the plaintiff has not mentioned the entire extent of land purchased jointly by Kotturamma and Gangadharappa under Sale Deed dated 01.08.1947 and they have shown less extent of land. He further argued that under Ex.D1 Sale Deed, Gangadharappa sold 6 acres 20 guntas in Sy.No.277 and 5 guntas in Sy.No.332 in favour of Siddabasappa (now represented by his legal representatives - defendant Nos.9 to 11). Gangadharappa also executed Sale Deed dated 02.01.1959 (Ex.D11) and sold 2 guntas of land Sy.No.332 in favour of Channabasappa who is now represented by his legal representative - defendant No.8. He further argued that Kotturamma executed the Sale Deed dated 29.11.1954 (Ex.D12) in favour of defendant No.12 Hiriyanna to an extent of 1 acre in Sy.No.273, 1 acre 20 guntas in Sy.No.277 and 5 guntas in Sy.No.332. He further submitted that Koturamma sold 10 guntas of land in Sy.No.277 under Sale Deed dated 28.04.1980 and certified copy of sale deed has been produced as additional

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evidence under I.A.No.1/2019. He further argued that Kotturamma re-purchase 20 guntas of land in Sy.No.273 from Hiriyanna under Sale Deed dated 08.10.1958 (sought to be produced as additional evidence under I.A.No.1 of 2023). He further submits that as the two Sale Deeds sought to be produced under I.A.No.1 of 2023 are relevant

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for ascertaining the exact share of Kotturamma and Gangadharappa after sale in the properties jointly purchased by them. He further argued that the Trial Court even though has taken into consideration some of the alienations made by Gangadharappa and Kotturamma but the same has not been properly calculated, what is the remaining extent of land and what is the exact share of Kotturamma and Gangadharappa in the suit schedule properties. Hence, he prayed for setting aside the judgments and decrees passed by the Trial Court and the First Appellate Court and to calculate the exact share of Kotturamma and Gangadharappa in the suit schedule properties after deducting the properties sold by them.

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The learned counsel for the respondent contended that the extent of properties shown in the suit schedule in respect of Item Nos.1 to 3 of the suit schedule properties is not the total extent of the properties jointly purchased by the plaintiff Kotturamma and Gangadharappa under Sale Deed 01.08.1947. He also conceded that the Trial Court has not calculated the share of the plaintiff and Gangadharappa in the suit schedule properties by taking into consideration the alienations made by them. Hence, he prayed for modifying the judgment and decree passed by the Trial Court and awarding correct share of plaintiff Kotturamma in the suit schedule properties.

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Plaintiff – Kotturamma and Gangadharappa jointly purchased 5 items of properties under sale deed dated 01.08.1947 (Ex.P.5). Out of the said properties, the plaintiff and Gangadharappa (husband of defendant No. 1 and father of defendant Nos. 2 to 7) jointly sold survey No. 241/1 measuring 6 guntas, house and backyard under

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sale deed dated 07.03.1949. After sale of those two

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properties remaining 3 properties are;

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i. survey No. 277 measuring 27 acres 27 guntas

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ii. survey No. 273/1 measuring 3 acres 7 guntas

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iii. survey No. 332 measuring 2 acres.

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As the purchase of the said properties is a joint purchase, Kotturamma and Gangadharappa (husband of defendant No.1 and father of defendant Nos. 2 to 7) are having equal share in the said properties. In the said 3 items of properties some portions were sold by Kotturamma and some portions were sold by Gangadharappa. The contention of plaintiff – Kotturamma that Gangadharappa played fraud and as a result there was alienation of said properties has been negatived by the trial Court and the first appellate Court did not interfere with the said finding in the appeal filed by the legal representatives of plaintiff. The legal representatives

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of plaintiff did not challenge the said findings of the first appellate Court. Defendant Nos. 8 to 14 are purchasers of portions of suit schedule properties and some of the purchasers have constructed houses on the properties purchased by them. Plaintiff’s contention that the house is constructed by defendant Nos. 9 to 11 is illegal has been negatived by the trial Court and the first appellate Court did not interfere with the said finding. The plaintiff has not challenged the findings of the first appellate Court by filing second appeal. The trial Court did not grant any relief against purchasers (defendant Nos. 9 to 11) as sought by the plaintiff and the same is affirmed by the first appellate Court and the plaintiff did not challenge the same. Therefore, defendant Nos. 8 to 14 who are purchasers are entitled to title and possession of the properties purchased by them either from Kotturamma or from Gangadharappa. Therefore, now what remains to be considered is the exact share of Kotturamma (now dead by her legal representatives) and Gangadarappa (husband of defendant No.1 and father of defendant Nos. 2 to 7). Said

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Kotturamma and Gangadharappa are having ½ share each in 3 items of properties including the portions of the properties sold by them. For considering the portions sold by Kotturamma and Gangadharappa the alienations made by them under sale deeds Ex.D.1, Ex.D.11, Ex.D.12 and sale deeds sought to be produced as additional evidence dated 08.10.1958 and 28.04.1980 are required to be taken into consideration. Therefore, the said certified copies of the two sale deeds sought to be produced under I.A. No. 1/2023 are relevant and the counsel for respondents has no objections to allow the said application

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and receive the said two certified copies of the sale deeds on record as additional evidence. Hence, I.A. No. 1/2023 is allowed and the documents filed along with the said application are taken on record. As the said two sale deeds are not disputed by the respondents, there is no necessity of leading any further oral evidence on those sale deeds.

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The total extent of the properties jointly purchased by Kotturamma and Gangadharappa in survey

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No. 277 is 27 acres 27 guntas. Out of the said property, Gangadharappa sold an extent of 6 acres 20 guntas under sale deed Ex.D.1 dated 18.12.1958. In the said survey No. 277 Kotturamma sold an extent of 1 acre 20 guntas under sale deed Ex.D.12 dated 29.11.1954 in favour of defendant No.12 – Hariyanna. Kotturavva also sold an extent of 10 guntas in survey No. 277 under sale deed dated 28.04.1980 (produced under I.A. No. 1/2023). Therefore, the total extent sold by Kotturamma is 1 acre 30 guntas and total extent sold by Gangadharappa is 6 acres 20 guntas in survey No. 277. As the total extent of survey No. 277 is 27 acres 27 guntas (as per Ex.P.5 – sale deed), half share of Kotturamma and Gangadharappa comes to 13 acres 33-½ guntas. In that half share, the properties sold by Gangadharappa and Kotturamma have to be deducted to ascertain their share after alienations made by them. Therefore, in the half share of Gangadharapa, i.e. 13 acres 33-½ guntas he has sold 6 acres 20 guntas and therefore, he is entitled to remaining extent measuring 7 acres 13-½ guntas. So also the half

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share of Kotturamma is 13 acres 33-½ guntas in survey No. 277 and she has sold 1 acre 30 guntas and after deducting the same, remaining share of plaintiff – Kotturamma is 12 acres 3-½ guntas.

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The total extent of property jointly purchased by Kotturamma and Gangadharappa in survey No. 273/1 is 3 acres 07 guntas. In that, half share of Gangadharappa and Kotturamma comes to 1 acre 23-½ guntas each. In that Gangadharappa did not alienate any portion but Kotturamma has sold 1 acre under Ex.D.12 sale deed in favour of defendant No.12 and repurchased 20 guntas under sale deed dated 08.10.1958 (produced under I.A. No. 1/2023). Therefore, after deducting the properties sold by Kotturamma and considering the re-purchase by her, her share in survey No. 273 comes to 1 acres 3-½ guntas. Share of Gangadharappa in survey No. 273 is one acre 23-½ guntas as he did not alienate any portion in it.

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The total extent of survey No. 332 is 2 acres as per sale deed dated 01.08.1947 (Ex.P.5) jointly purchased by Kotturamma and Gangadharappa. In that survey No. 332 Gangadharappa sold 7 guntas i.e., 5 guntas under Ex.D.1 sale deed in favour of Siddabasappa (by his legal representatives – defendant Nos. 9 to 11) and sold 2 guntas under sale deed Ex.D.1 in favour of Channabasapa (represented by legal representative – defendant No. 8). Kotturamma sold 5 guntas in survey No. 332 under sale deed dated 29.11.1954 – Ex.D.12 in favour of Hariyanna (defendant No.12). In survey No. 332 out of total extent of 2 acres, half share of Kotturamma and Gangadharappa comes to 1 acre each. In the said land Kotturamma has sold 5 guntas and her remaining share is 35 guntas. Gangadharappa sold 7 guntas and his remaining share is 33 guntas in survey No. 332. The total extent of item Nos. 1 to 3 of the suit schedule is not correctly shown in the plaint as per sale deed dated 01.08.1947 (Ex.P.5). The trial Court and the first appellate Court did not correctly take into consideration the total extent of the properties

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jointly purchased by Kotturamma and Gangadharappa and the exact portions of the properties sold by them to calculate their exact share in the said 3 items of suit schedule properties. Therefore, the share allotted to the plaintiff by the trial Court as affirmed by the first appellate Court requires to be modified. In the result, the substantive questions of law are answered accordingly.

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In the result, the following;

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O R D E R

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The appeal is allowed. The judgment and decree passed by the trial Court in O.S. No. 56/2005 affirmed by the first appellate Court in R.A. Nos. 164/2008 and 165/2008 are modified as under:

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i. Legal representatives of plaintiff – Kotturamma are entitled to 12 acres 3-½

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guntas in survey No. 277, 1 acre 3-½ guntas in survey No. 273/1 and 35 guntas in survey

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No. 332.

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ii. Legal representatives of Gangadharappa, i.e, defendant Nos. 1 to 7 are entitled to 7 acres 13-½ guntas in survey No. 277, 1 acre 23-½ guntas in survey No.273/1 and 33 guntas in survey No. 332.

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iii. Said shares of Kotturamma (by her legal representatives) and Gangadharappa (by defendant Nos. 1 to 7) are in the remaining area excluding the areas sold to defendant Nos. 8 to 14 and houses constructed by them.

¶144

iv. Draw the preliminary decree accordingly.

¶145

v. In the final decree proceedings if the Court comes across any other alienation made by Kotturamma and Gangadharappa, it is to be deducted from their respective shares.

¶146

DH, LRS

¶147

Sd/JUDGE

Eshwarappa v. Kotturamma Dead by Lrs

Case brief

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Eshwarappa v. Kotturamma Dead by Lrs

Case brief

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