Dismissed

Sri. K.M. Somashekar v. Smt. G. Huchhamma

Karnataka HC21 Jul 2023RSA/259/2017

Case brief

AI extract

What is this about?

A regular second appeal by a defendant challenging a partition decree. The High Court held that an alienation of an undivided interest does not make the alienee a tenant in common, but merely entitled to work out rights in partition proceedings. The appeal was dismissed.

What did the court decide?

Regular Second Appeal dismissed; Judgment and Decree of the First Appellate Court and Trial Court affirmed.

Sri. K.M. Somashekar Vs Smt. G. Huchhamma — Partition | Karnataka HC (2023)

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NC: 2023:KHC:25437 RSA No. 259 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 21^ST DAY OF JULY, 2023

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BEFORE

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THE HON'BLE MS. JUSTICE JYOTI MULIMANI REGULAR SECOND APPEAL NO.259 OF 2017 (PAR)

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BETWEEN:

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SRI. K.M. SOMASHEKAR S/O LATE MARIYAPPA, AGED ABOUT 47 YEARS, R/AT KANNAMANGALA VILLAGE, MADHURE HOBLI, DODDABALLAPUR TALUK, 4^TH WARD, DODDABALLAPUR - 561 203.

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…APPELLANT

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(BY SRI. CHANDRASHEKAR P. PATIL., ADVOCATE)

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AND:

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Digitally signed by THEJASKUMAR N Location: HIGH COURT OF KARNATAKA

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SMT. G. HUCHHAMMA D/O LATE GANGAIAH, AGED ABOUT 59 YEARS, R/AT BASAVESHWARANAGAR, 4^TH WARD, DODDABALLAPUR

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TALUK AND DISTRICT - 561 203.

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SMT. LAKSHMINARASAMMA W/O NARASIMHAIAH, AGED ABOUT 50 YEARS, R/AT NANDIHALLI, HIREHALLI POST, URDIGERE HOBLI, TUMKUR TQ & DIST - 561 202.

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SRI BASAVARAJU S/O LATE GANGAIAH,

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AGED ABOUT 58 YEARS.

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NC: 2023:KHC:25437 RSA No. 259 of 2017

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SMT. BHAGYAMMA W/O LATE KRISHNAMURTHY, AGED ABOUT 52 YEARS.

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SRI MANJUNATH W/O LATE KRISHNAMURTHY, AGED ABOUT 32 YEARS,

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RESPONDENT NOS.3 TO 5 ARE R/AT HALENAHALLI VILLAGE, MADURE HOBLI, PURUSHANAHALLI POST, DODDABALLAPUR TALUK & DIST - 561 203.

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SMT. LALITHAMMA W/O HOSARANGAIAH, AGED ABOUT 62 YEARS, R/AT CHIKKASOLURU, DODDASOLURUR POST, MAGADI TALUK, RAMANAGAR DISTRICT - 562 120.

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…RESPONDENTS

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(BY SRI.SAMARTH PRAKASH, ADVOCATE FOR R1 & R2; R3 TO R6 ARE SERVED)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CPC., SEEKING CERTAIN RELIEFS.

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

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JUDGMENT

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Sri.Chandrashekar P.Patil, learned counsel for appellant

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has appeared in person.

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This is an appeal from the Court of the IV Additional

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District and Sessions Judge, Doddaballapura.

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3 - NC: 2023:KHC:25437 RSA No. 259 of 2017

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For the sake of convenience, the status of the

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parties shall be referred to as per their ranking before the Trial Court.

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4. The plaint averments are stated as under:

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The plaintiffs and defendants 2 & 5 and husband of the third defendant & father of fourth defendant are the children of one Gangaiah. The suit schedule properties are ancestral and joint family properties of Late.Gangaiah. The said Gangaiah died in the year 1981. After his death, the katha of the suit schedule properties were changed in the name of his wife Smt.Gangamma and defendants 2 & 5. It is said that the parties continued in the joint possession and enjoyment of the suit schedule property. It is also averred that one of the son of Gangaiah i.e., the husband of third defendant and father of the fourth defendant Sri.Krishna Murthy died leaving behind defendants 3 & 4 as his legal heirs. It is alleged that the second defendant with the help of defendants 1, 3 & 4 made an attempt to dispose of the suit schedule properties. Hence, a suit for partition and for separate possession was filed.

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NC: 2023:KHC:25437 RSA No. 259 of 2017

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In response to the service of suit summons, defendants 1, 3 & 4 appeared in person. Defendants 2 & 5 entered their appearance through counsel. Defendant No.6 also appeared through his counsel and filed a separate written statement contending that he has purchased the land to an extent of 04 Acres in suit schedule property. The defendants urged several pleas and prayed for the dismissal of the suit.

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Based on the above pleadings, the Trial Court framed Issues and to substantiate the same, the plaintiffs led their evidence and documents were marked and exhibited. Defendants neither adduced oral evidence nor marked any documents.

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On the trial of the action, the Trial Court decreed the suit and declared that the plaintiffs are entitled for 1/6^th share each in the suit schedule properties. Aggrieved by the Judgment and Decree of the Trial Court, the sixth defendant preferred an appeal before the First Appellate Court in Regular Appeal No.10035/2016. On appeal, the Judgment and Decree of the Trial Court was confirmed and the appeal came to be rejected.

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5 - NC: 2023:KHC:25437 RSA No. 259 of 2017

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Hence, this Regular Second Appeal is filed by the sixth defendant under Section 100 of the Code of Civil Procedure.

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Sri.Chandrashekar P.Patil., learned counsel for the appellant urged several contentions. Heard, the contentions urged on behalf of the appellant and perused the records with utmost care.

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Learned counsel Sri.Chandrashekar P.Patil., in presenting his arguments, strenuously urged that both Courts have erred in decreeing the suit for partition. He argued by saying that defendant No.2, his wife and son Gangaraju sold an extent of 04 acres in Sy.No.1/1A for valuable consideration under a registered sale deed dated:17.03.2006 in favor of defendant No.6. It is also contended that the sale was for family necessity. Counsel vehemently contended that both the Courts have granted share in the said survey number by over-looking the prior partition. therefore, he sought to contend that both Courts have erred in granting share in Item No.1 of the suit schedule property.

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I have heard the contention about the purchase of the property to an extent of 04 Acres by defendant No.6. The

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6 - NC: 2023:KHC:25437 RSA No. 259 of 2017

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relationship between the plaintiffs and defendants 1 to 5 is not in dispute. It is also not in dispute that Gangaiah was the original owner of the suit schedule properties. What is required to be considered is whether the transfer is of an undivided interest in the whole of the family property, the transferee will get whatever may be allotted to the transferor's share in a suit for partition. A coparcener may alienate either his undivided share in the whole of the family property or his undivided share in certain specific family property or the whole of a specific item of the family property. In all these cases, the alienee does not acquire an interest in the property so as to become a tenant in common with the members of the family entitled to possession but only an equity to stand in his vendor's shoes and to work out his right by means of a partition.

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In the present case, the share is allotted to the second defendant who is none other than the vendor of appellant. Hence, in my considered view, the appellant being the purchaser of a undivided share in one of the item of suit schedule properties, cannot question the grant of share in a suit for partition. As already noted above, at best he can step in

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NC: 2023:KHC:25437 RSA No. 259 of 2017

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his vendor's shoes and work out his remedies in Final Decree Proceedings.

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Therefore, in my considered view, the grant of share and decree of suit for partition is neither vitiated by non-consideration of material evidence on record nor there is an erroneous approach to the matter.

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The substantial questions of law are answered accordingly. Resultantly, the Regular Second Appeal is

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dismissed .

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Sd/JUDGE

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TKN List No.: 1 Sl No.: 54

Sri. K.M. Somashekar v. Smt. G. Huchhamma

Case brief

What is this about?

What did the court decide?

Sri. K.M. Somashekar v. Smt. G. Huchhamma

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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