Remanded

Sri Muniraju v. Sri Veerappa

Karnataka HC22 Nov 2023RSA/1918/2007

Case brief

AI extract

What is this about?

Second appeal against a first appellate order dismissing a partition suit. The High Court allowed the appeal, setting aside the first appellate judgment for proceeding behind the backs of necessary parties. The matter was remitted for a fresh hearing after impleading the absent parties.

What did the court decide?

The impugned judgment and decree dated 04.09.2006 by the Fast Track Court in R.A.No.65/2005 are set aside and the matter is remitted to the First Appellate Court.

Sri Muniraju Vs Sri Veerappa — Partition | Karnataka HC (2023)

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1 - NC: 2023:KHC:41976 RSA No. 1918 of 2007

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 22^ND DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE ASHOK S.KINAGI REGULAR SECOND APPEAL NO. 1918 OF 2007 (PAR)

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BETWEEN:

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SRI MUNIRAJU S/O KRISHNAMMA AGED ABOUT 36 YEARS

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SMT LAKSHMAMMA W/O CHANNEKESHAVAPPA AGED ABOUT 45 YEARS R/AT BANDAHALLI NANDI HOBLI CHIKKABALLAPURA TALUK

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Digitally signed by R DEEPA Location: High Court of Karnataka

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SMT NARAYANAMMA D/O NARASAMMA AGED ABOUT 70 YEARS

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(DIED ON 06.11.2019) APPELLANTS 1 AND 2 ARE TREATED AS LEGAL REPRESENTATIVES)

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1 AND 3 ARE R/AT ARASANAHALLI VILLAGE NANDI HOBLI CHIKKABALLAPUR TALUK

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SMT NARASAMMA W/O NANJUNDAPPA

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2 - NC: 2023:KHC:41976 RSA No. 1918 of 2007

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(DIED ON 21.09.2006 AND

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LEGAL REPRESENTATIVES ARE ALREADY ON RECORD)

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… APPELLANTS

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(BY SRI. G.V. SHASHI KUMAR, ADVOCATE FOR SRI A M SURESH REDDY, ADVOCATE)

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AND:

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SRI VEERAPPA S/O NANJUNDAPPA

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SINCE DEAD BY

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LEGAL REPRESENTATIVES

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1(A) SMT NARAYANAMMA W/O LATE VEERAPPA AGED ABOUT 70 YEARS

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1(B) SRI ASHWATHAPPA S/O LATE VEERAPPA AGED ABOUT 60 YEARS

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1(C) SRI CHENNA KESHAVA MURTHY S/O LATE VEERAPPA AGED ABOUT 45 YEARS

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SRI KEMPANNA S/O NANJUNDAPPA SINCE DEAD BY HIS LRS

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2(i) SMT NARAYAMMA W/O LATE KEMPANNA AGED ABOUT 60 YEARS

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2(ii) SMT LAKSHMAMMA D/O LATE KEMPANNA AGED ABOUT 42 YEARS

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SRI RAMAKRISHNAPPA S/O NANJUNDAPPA AGED ABOUT 73 YEARS

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SINCE DEAD BY

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LEGAL REPRESENTATIVES

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3(a) SMT. RADHAMMA D/O LATE RAMAKRISHNAPPA W/O JAYEGOWDA AGED ABOUT 45 YEARS R/AT No.21, GHATTAMARANAHALLI SHIDLAGHATTA TALUK

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KOLAR DISTRICT – 562 105.

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3(b) SRI MANJUNATH S/O LATE RAMAKRISHNAPPA AGED ABOUT 42 YEARS R/O ARASANAHALLI VILLAGE NANDHI HOBLI

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CHIKKABALLAPUR DISTRICT – 562 105.

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3(c) SMT. HEMAVATHI D/O LATE RAMAKRISHNAPPA W/O T.P. VIJAYAKUMARA AGED ABOUT 40 YEARS R/AT No.42, THIPPENAHALLI VILLAGE SHIDLAGHATTA TALUK CHIKKABALLAPUR DISTRICT – 562 105

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3(d) SMT. GAYATHRI D/O LATE RAMAKRISHNAPPA W/O MUNIGOWDA AGED ABOUT 38 YEARS R/AT No.E-27, BENDIGANAHALLI

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4 - NC: 2023:KHC:41976 RSA No. 1918 of 2007

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NIMBEKAIPURA, BANGALORE EAST BANGALORE - 560 049.

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… RESPONDENTS

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[BY SRI. K. NITISH, ADVOCATE FOR SRI K.V. NARASIMHAN, ADVOCATE FOR R1 (A-C); R2(1) & R2(2) - SERVED; SRI M. SHIVAPRAKASH, ADVOCATE FOR R3 (A, C & D); V/O DATED 16.04.2018, SERVICE TO R3(B) HELD SUFFICIENT]

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THIS RSA IS FILED U/S. 100 OF CPC, AGAINST THE JUDGEMENT & DECREE DATED 4.9.2006 PASSED IN R.A.NO. 65/2005 ON THE FILE OF THE ADDL. SESSIONS JUDGE & PRESIDING OFFICER, FAST TRACK COURT NO.V, CHICKBALLAPUR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGEMENT AND DECREE DATED 30.6.2005 PASSED IN O.S. NO.38/1995 ON THE FILE OF THE CIVIL JUDGE (SR.DN.) & JMFC, CHICKBALLAPUR AND ETC.

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

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JUDGMENT

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This second appeal is filed by the appellants challenging the judgment and decree dated 04.09.2006, passed in R.A.No.65/2005 by the Fast Track Court-V, Chickballapur.

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For the sake of convenience, parties are referred to as per their ranking before the trial Court. Appellants are the plaintiffs and respondent Nos.1(a) to 1(c) are the

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5 - NC: 2023:KHC:41976 RSA No. 1918 of 2007

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legal representatives of deceased defendant No.1, respondent Nos.2(i) and 2(ii) are the legal representatives of deceased defendant No.2 and respondent No.3 is defendant No.3.

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The brief facts leading rise to filing of this appeal are as under:

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The plaintiffs filed a suit for partition and separate possession. It is the case of the plaintiffs that one Nanjundappa, who was the propositus, he had three wives, namely Munemma (first wife), Munemma (second wife) and Narasamma i.e., plaintiff No.4 (third wife). The said Nanjundappa out of wedlock through 1^st wife Munemma had two sons i.e., defendant Nos.1 and 2, out of wedlock through second wife Munemma had one son i.e., defendant No.3 and out of wedlock through Narasamma had three daughters, namely Narayanamma i.e., plaintiff No.3 Jayamma and Krishnamma. Jayamma died leaving behind her daughter Smt. Lakshmamma i.e., plaintiff No.2 and Smt. Krishnamma died leaving behind

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6 - NC: 2023:KHC:41976 RSA No. 1918 of 2007

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her son Sri Muniraju i.e., plaintiff No.1, who has succeeded to their estate respectively. It is the case of the plaintiffs that the suit schedule properties are the ancestral properties of Nanjundappa and the plaintiffs and the defendants are members of the Hindu Undivided Joint Family. There is no partition effected between the plaintiffs and the defendants in the suit schedule properties. The plaintiffs demanded for partition and separate possession, but the defendants declined to effect a partition. Hence, cause of action arose for the plaintiffs to file a suit for partition and separate possession.

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The summons were duly served on defendants

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and defendant Nos.1 and 2 remained absent and placed exparte.

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Defendant No.3 filed the written statement

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denying the averments made in the plaint and contended that the plaintiffs are not entitled for share in the suit schedule properties. It is further contended that there was oral partition between Nanjundappa and his sons and

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during the lifetime of Nanjundappa, he has given properties to plaintiff Nos.2 and 3 and Krishnamma by registered Will dated 21.10.1978, hence, the plaintiffs are not entitled for any share in suit properties. It is contended that the suit filed by the plaintiffs is not maintainable and they have also filed the additional written statement. Hence, prayed to dismiss the suit.

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The Trial Court, on the basis of the above said

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pleadings, framed the following issues:

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1. Whether the plaintiffs prove that they along with defendants constituted a Hindu undivided joint family?

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2. Whether the plaintiffs prove that they are entitled for share in all the suit schedule properties? If so what is the quantum?

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3. Whether defendant No.3 proves that there was already partition between Nanjundappa and his sons before 21.10.1978 and properties as set out in para 10 of the written statement were allotted to the sons of Nanjundappa in the said partition?

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4. Whether the 3^rd defendant proves that Nanjundappa has executed a will dated 21.10.1978 and has given some properties to the plaintiffs as contended in para 10 of ws?

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8 - NC: 2023:KHC:41976 RSA No. 1918 of 2007

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5. Whether defendants prove that the suit is bad for non-joinder of necessary parties?

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6. To what decree or order the parties entitled to?

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The plaintiffs in order to substantiate their case,

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plaintiff No.1 was examined as PW.1 and got marked 9 documents as Exs.P1 to P9. Defendant No.3 was examined as DW-1 and got examined two witnesses as DW-2 & DW-3 and got marked 23 documents as Exs.D1 to

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D23. The trial Court on assessment of oral and documentary evidence, answered issue Nos.1 to 4 in the affirmative, issue No.5 in the negative and issue No.6 as per the final order and consequently, decreed the suit of the plaintiffs. It is ordered and decreed that the plaintiffs are entitled for partition and separate possession of their 4/7^th share in the suit properties and mesne profits are to be separately ascertained.

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Defendant No.3 aggrieved by the judgment and preliminary decree passed in the above said suit, filed an appeal in R.A.No.65/2005. The First Appellate Court, after

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9 - NC: 2023:KHC:41976 RSA No. 1918 of 2007

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hearing the parties, has framed the following points for

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consideration:

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1. Whether appellant proves that the trial Judge has erred in law allotting share to plaintiffs inspite of answering issues No.3 and 4 in the affirmative?

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2. What order?

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The First Appellate Court, on re-assessment of the oral and documentary evidence, answered point No.1 in the affirmative and consequently, allowed the appeal and set aside the judgment and decree passed by the trial Court and dismissed the suit of the plaintiffs. The plaintiffs, aggrieved by the judgment and decree passed by the First Appellate Court, have filed this second appeal.

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This court admitted the appeal on the following re-formulated substantial question of law :

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"Whether the appellants prove that the judgment and decree passed by the First Appellate Court in R.A.No.65/2005 without impleading defendant No.1 and legal representatives of defendant No.2, is arbitrary and erroneous?"

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NC: 2023:KHC:41976 RSA No. 1918 of 2007

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Heard learned counsel for the plaintiffs and

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learned counsel for defendant Nos.1 and 2.

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Learned counsel for the plaintiffs submits that defendant No.3 without impleading defendant No.1 and legal representatives of defendant No.2 had filed the appeal before the First Appellate Court. He submits that the First Appellate Court could have dismissed the appeal solely on the ground of non-joinder of necessary parties. He further submits that the judgment and decree passed by the First Appellate Court is without providing an opportunity to defendant No.1 and legal representatives of defendant No.2. Hence, he prays to allow the appeal.

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Per contra , learned counsel for defendant No.1 and legal representatives of defendant No.2 fairly concedes that defendant No.2 without alleging defendant No.1 and legal representatives of defendant No.2 filed the appeal before the First Appellate Court and submits that matter may be remanded to the First Appellate Court for reconsideration afresh. He submits that the appeal filed by

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NC: 2023:KHC:41976 RSA No. 1918 of 2007

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defendant No.3 before the First Appellate Court is bad for non-joinder of necessary parties. Hence, he submits that the appeal may be disposed of.

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Perused the records and considered the

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submissions of learned counsel for the parties.

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Substantial question of law : It is the case of

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the plaintiffs that Nanjundappa the propositus of the family had three wives i.e., Munemma (first wife), Munemma (second wife) and Narasamma third wife. Nanjundappa out of wedlock through first wife Munemma had two sons i.e., defendant Nos.1 and 2, out of wedlock through second wife Smt. Munemma had one son i.e., defendant No.3 and out of wedlock through Narasamma had three daughters namely Narayanamma, Jayamma and Krishnamma. Jayamma expired leaving behind the daughter i.e., plaintiff No.2 and Krishnamma died leaving behind her son plaintiff No.2. It is the case of the plaintiffs that the suit schedule properties are the ancestral properties of Nanjundappa. The plaintiffs and the

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NC: 2023:KHC:41976 RSA No. 1918 of 2007

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defendants are the members of the Hindu Undivided Family and there is no partition effected between the plaintiffs and the defendants. The plaintiffs being the coparceners are entitled for share in the suit schedule properties. The plaintiffs in order to establish their case, plaintiff No.1 was examined as PW.1. He has reiterated the plaint averments in the examination-in-chief and produced the documents i.e., Exs.P1 to P9 are the RTC extracts. Defendant No.3 was examined as DW.1 and examined two witnesses as DW.2 and DW.3 and got marked 23 documents i.e., Ex.D1 certified copy of the registered Will,

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Exs.D2 to D10 are the RTC extracts, Ex.D11 is the mutation register, Exs.D12 to D14 are the house list extracts, Ex.D15 is the ration card, Exs.D16 to 23 are the RTC extracts. The trial Court on assessment of oral and documentary evidence held that the plaintiffs had proved that they along with the defendants constituted a Hindu Undivided Joint Family and further, the plaintiffs are entitled for share in all the suit schedule properties. Further, defendant No.3 has proved that there was a

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13 - NC: 2023:KHC:41976 RSA No. 1918 of 2007

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partition between Nanjundappa and his sons before 21.10.1978 and the properties as said in para No.10 of the written statement were allotted to sons of Nanjundappa in the said partition and further held that defendant No.3 has proved that Nanjundappa executed a Will dated 21.10.1978 and bequeathing the properties in favour of the plaintiffs but the defendants have failed to prove that the suit is bad for non-joinder of necessary parties. The trial Court decreed the suit. Defendant No.3 aggrieved by the judgment and decree passed by the trial Court preferred an appeal in R.A.No.65/2005 before the First Appellate Court. Defendant No.3 without impleading defendant No.1 and legal representatives of defendant No.2 filed an appeal. The First Appellate Court has not examined the said aspect and proceeded to pass the impugned judgment behind the back of defendant No.1 and legal representatives of defendant No.2. The First Appellate Court could have directed the defendant No.3 to implead defendant No.1 and legal representatives of deceased defendant No.2 as parties. On the contrary, in

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14 - NC: 2023:KHC:41976 RSA No. 1918 of 2007

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the absence of the parties proceeded to pass the impugned judgment. Hence, on this ground alone, the impugned judgment is liable to be set aside. In view of the above, I answer substantial questions of law in affirmative.

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In view of the aforesaid facts and circumstances,

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I proceed to pass the following:

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ORDER

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The appeal is allowed.

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The judgment and decree dated 04.09.2006, passed in R.A.No.65/2005 by the Fast Track Court-V, Chickballapur is set aside.

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The matter is remitted to the First Appellate Court.

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Legal representatives of defendant No.3 are directed to implead the legal representatives of defendant No.1 and defendant No.2 in the appeal. The First Appellate Court thereafter pass appropriate judgment, in accordance with law.

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As the appeal is of the year 2007, the First Appellate Court is directed to dispose of the

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NC: 2023:KHC:41976 RSA No. 1918 of 2007

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appeal within six months from the date of receipt of copy of this judgment.

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Office is directed to transmit the records forthwith to the First Appellate Court.

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This Court has not made any adjudication on the merits in issue.

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Parties are directed to appear before the First Appellate Court on 04.01.2024 without awaiting any further notice.

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All the contentions of the parties are kept open.

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Sd/JUDGE

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SSB

Sri Muniraju v. Sri Veerappa

Case brief

What is this about?

What did the court decide?

Sri Muniraju v. Sri Veerappa

Case brief

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What did the court decide?

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