Dismissed

Smt Mariyamma v. Akkamma

Karnataka HC18 Nov 2023RSA/1825/2016

Case brief

AI extract

What is this about?

The High Court dismissed the second appeal filed by unsuccessful plaintiffs. The suit for partition was dismissed by lower courts due to non-joinder of necessary family branches. The High Court refused to remit the matter but directed the plaintiffs to file a fresh suit including all necessary parties.

What did the court decide?

The appeal was dismissed. Appellants were directed to file a fresh suit including all necessary family members.

Smt Mariyamma Vs Akkamma — Partition | Karnataka HC (2023)

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NC: 2023:KHC:41323 RSA No. 1825 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 18^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM

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REGULAR SECOND APPEAL NO.1825 OF 2016 (PAR)

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BETWEEN:

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SMT.MARIYAMMA D/O KENCHAPPA W/O VENKATESHAPPA AGED 70 YEARS

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GOPALAPPA S/O VENKATESHAPPA AGED 54 YEARS

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NARAYANAMMA D/O VENKATESHAPPA AGED 39 YEARS

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Digitally signed by CHAITHRA A Location: HIGH COURT OF KARNATAKA

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ALL ARE RESIDENT OF NAMBIGANAHALLI VILLAGE KASABA HOBLI, MALUR TALUK KOLAR DISTRICT - 583 101

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…APPELLANTS

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(BY SRI. NEERAJA KARANTH, ADVOCATE)

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AND:

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AKKAMMA D/O NARAYANAPPA

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2 - NC: 2023:KHC:41323 RSA No. 1825 of 2016

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W/O KRISHNAPPA AGED 49 YEARS NAMBIGANAHALLI VILLAGE KASABA HOBLI, MALUR TALUK KOLAR DISTRICT - 583101

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KRISHNAPPA S/O NARAYANAPPA AGED 39 YEARS R/AT IMMADAHALLI WHITEFIELD

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BENGALURU - 562081

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NANJAMMA D/O LATE KENCHAPPA AGED 59 YEARS KADAGATHUR VILLAGE KYALANURU HOBLI KOLAR TALUK AND DISTRICT - 583101

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KRISHNAPPA S/O LATE KENCHAPPA AGED 54 YEARS NAMBIGANAHALLI VILLAGE KASABA HOBLI, MALUR TALUK KOLAR DISTRICT - 583101

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VENKATAMMA

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D/O LATE KENCHAPPA W/O BYRAPPA AGED 47 YEARS KADAGATHUR VILLAGE KYALANURU HOBLI KOLAR TALUK AND DISTRICT - 583101

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VENKATESHAPPA S/O LATE KENCHAPPA AGED 36 YEARS NAMBIGANAHALLI VILLAGE

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NC: 2023:KHC:41323 RSA No. 1825 of 2016

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KASABA HOBLI, MALUR TALUK KOLAR DISTRICT - 583101

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…RESPONDENTS

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(BY SRI.UMESH B.N, ADVOCATE FOR R.1; R.2, 3 AND 5 ARE SERVED AND UNREPRESENTED)

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THIS RSA IS FILED U/SEC.100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD:02.01.2016 PASSED IN R.A.NO.35/2010 ON THE FILE OF THE I ADDL. DISTRICT AND SESSIONS JUDGE, KOLAR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD:05.01.2010 PASSED IN OS.NO.15/2007 ON THE FILE OF THE LEARNED II ADDL. SENIOR CIVIL JUDGE KOLAR AND ETC.

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

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JUDGMENT

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The captioned second appeal is filed by unsuccessful plaintiffs, who have questioned the concurrent judgments and decrees of both Courts, wherein the plaintiffs suit for partition and separate possession is dismissed by both Courts on the ground of non-joinder of necessary parties.

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4 - NC: 2023:KHC:41323 RSA No. 1825 of 2016

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Though the learned counsel appearing for the

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appellants - plaintiffs tried to persuade this Court that this matter may be remitted back to enable the plaintiffs to implead all family members, having examined the family tree furnished along with this appeal memo, I am not inclined to accede to the said contention.

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Learned counsel appearing for the appellants -

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plaintiffs submits that the suit is dismissed only on the ground of non-joinder of necessary parties.

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In the present suit, only legal heirs born

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through 3rd and 4th wife of one Kenchappa are litigating the present suit. It is elicited during trial that the propositus Kenchappa had 9 brothers. The Trial Court having taken cognizance of this fact has come to the conclusion that though the suit properties are joint family ancestral properties, the present partition suit filed by the legal heirs of Kenchappa's branch is not maintainable without including the other nine braches. If Kenchappa

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NC: 2023:KHC:41323 RSA No. 1825 of 2016

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had 9 brothers, this Court is not inclined to admit and remit the matter to the Trial Court. This Court is of the

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view that both Courts were justified in dismissing the suit

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only on the ground of non-joinder of necessary parties.

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Therefore, I am of the view that no substantial

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question of law arises for consideration. No interference is warranted at the hands of this Court.

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However, it is made clear that since there is a

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finding recorded by both Courts that suit schedule properties are joint family ancestral properties, this Court is of the view that judgment rendered in O.S.No.15/2007 will not come in the way of plaintiffs in instituting a fresh suit and seek partition by including all other nine branches.

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The plaintiffs can maintain a fresh suit as it is

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a trite law that right to seek partition is a recurring cause of action and since suit is dismissed by both Trial Court

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NC: 2023:KHC:41323 RSA No. 1825 of 2016

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only on the ground of non-joinder of necessary parties, it is always open for the plaintiffs to file a comprehensive suit by including all the branches, who are necessary parties to decide the lis between the parties and to effect partition by metes and bounds.

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With these above observations, this appeal is dismissed.

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Pending applications, if any, are also dismissed.

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Sd/JUDGE

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NBM List No.: 1 Sl No.: 10

Smt Mariyamma v. Akkamma

Case brief

What is this about?

What did the court decide?

Smt Mariyamma v. Akkamma

Case brief

What is this about?

What did the court decide?

What the court decided

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