Dismissed

Sri K M Manjunath v. Smt Vijayalakshmi

Karnataka HC6 Jan 2023RSA/306/2022

Case brief

AI extract

What is this about?

The High Court of Karnataka, bench of H.P. Sandesh, rejected the First Appeal filed regarding the partition of ancestral property. The Court observed that the First Appellate Court correctly applied Vineeta Sharma to grant equal shares to daughters and modified the trial decree accordingly. No ground was found to remit the matter.

What did the court decide?

The appeal was dismissed; the order of the First Appellate Court granting modified shares stands.

Sri K M Manjunath Vs Smt Vijayalakshmi — Partition | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6^TH DAY OF JANUARY, 2023

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BEFORE

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THE HON'BLE MR. JUSTICE H.P. SANDESH

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R.S.A.NO.306/2022

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BETWEEN:

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SRI K.M. MANJUNATH, AGED ABOUT 50 YEARS, S/O LATE K.M. MUNISHAMI, R/AT NEAR NAGAAKUNTE, KATARIPALYA, KOLAR CITY - 563101.

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...APPELLANT

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(BY SRI PRAVEEN KUMARA NIRVANI, ADVOCATE)

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AND:

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SMT. VIJAYALAKSHMI, AGED ABOUT 54 YEARS, D/O LATE K.A. MUNISHAMI, W/O VENKATACHALAPATHI, R/AT NO.30, 5^TH CROSS, CAMBRIDGE COLONY ROAD, JAI BHAVANI LAYOUT, K.R.PURAM, BANGALORE-560036.

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SMT. NETHRAVTHI, AGED ABOUT 52 YEARS, D/O LATE K.A. MUNISHAMI, W/O T. VENKATACHALAM, R/AT NO.523, 3^RD CROSS, GAVIPURAM GUTTAHALLI, BHAVINI NAGAR, BANGALORE-560019.

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SRI K.M. PRABHAKAR, AGED ABOUT 66 YEARS, S/O.LATE K.A. MUNISHAMI.

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SMT. SULOCHANAMMA, DEAD BY LRS NO OTHER LRS EXCEPT APPELLANT AND RESPONDENT NOS.1 TO 3

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SRI V.MURALIDHAR, AGED ABOUT 43 YEARS, S/O LATE K.M. VENKATARAVANAPPA.

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SRI V. NAGABHUSHAN, AGED ABOUT 34 YEARS, S/O.LATE K.M. VENKATARAVANAPPA. RESPONDENT NOS.5 AND 6 ARE R/AT NAGARAKUNTE, KATARIPALYA, KOLAR CITY - 563101.

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SMT. SHIVALEELA, AGED ABOUT 26 YEARS, W/O SIDDAMMA N. KERAKAMATTE, R/AT 21^ST CROSS, VIJAYANAGAR, VIDHYAGIRI, BAGALKOT - 587102.

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SMT. S. GEETHA, AGED ABOUT 29 YEARS, W/O JAGADEESH R. BAGALI, R/AT NO.72/1, SRI SAI KRUPA NILAYA, NEAR TELEPHONE EXCHANGE OFFICE, KOLAR - 563101.

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SRI KRISHNAPPA, AGED ABOUT 49 YEARS, S/O.LATE MUNISHAMAPPA, R/AT BEGLI BENAJENAHALLI, KASABA HOBLI, KOLAR TALUK - 563130. ...RESPONDENTS

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THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 04.08.2021 PASSED IN RA.No.65/2020 ON THE FILE OF THE I ADDITIONAL DISTRICT JUDGE, KOLAR, ALLOWING THE APPEAL AND MODIFYING THE JUDGMENT AND DECREE DATED 09.06.2020 PASSED IN OS No.96/2012 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM., AT KOLAR.

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THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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This matter is listed for admission today. Heard the learned counsel for the appellant.

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This appeal is filed challenging the judgment and decree dated 04.08.2021, passed in R.A.No.65/2020, on the file of the I Additional District Judge, Kolar.

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The factual matrix of the case of the plaintiffs before

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the Trial Court is that the property belongs to one Munishami, who is the father of the plaintiffs and defendant Nos.1 and 2 and no share was given to the plaintiffs and hence without any other option, they filed a suit for partition and separate possession in respect of the suit schedule property. The defendants appeared and filed the written statement sating that they have partitioned the property after the death of the father and already there was

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a partition and the plaintiffs cannot maintain any suit for the relief of partition. The Trial Court having considered the pleadings of the plaintiffs and the defendants, framed the issue with regard to whether the plaintiffs are entitled for a share in the suit schedule property and also raised the issue with regard to the claim of the defendants whether there was already a partition and whether the same is binding on the plaintiffs. The Trial Court after considering both oral and documentary evidence placed on record answered issue Nos.1 and 2 in the affirmative in coming to the conclusion that the plaintiffs are entitled for a share in the suit schedule property. However, answered issue Nos.3 to 6 in the negative and granted 1/3^rd share in favour of the plaintiffs and 1/9^th share in favour of the defendants and hence the same was questioned by the plaintiffs before the First Appellate Court.

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The First Appellate Court having considered the material available on record and on re-appreciation of the evidence both the question of fact and question of law dealt with relying upon the judgment of the Apex Court in the case of VINEETA SHARMA v. RAKESH SHARMA reported in (2020) 9

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SCC 1, wherein it is held that the daughters are also coparceners that of the son and modified the judgment granting 1/4^th share. Hence, the present appeal is filed by the defendant No.2.

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The very contention of the learned counsel for the appellant in this appeal is that the father had given site in Bangalore in favour of the daughters and those properties are not included. On perusal of the defence, it is stated that site was given in Bangalore, but no details and descriptions are given and also not set out the defence of including the property which were given to the plaintiffs. Only set up the defence that already there was a partition between the defendant Nos.1 and 2 after the death of the father in 2002. Admittedly, Munishami died in 1988 and no dispute with regard to the same and no dispute with regard to the fact that the plaintiffs are the daughters of Munishami. Now the wife of Munishami i.e, Smt. Sulochanamma is also no more and hence the share of each of the parties are enlarged. Having taken note of this fact into consideration, the First Appellate Court modified the judgment granting 1/4^th share in respect of suit schedule property.

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The contention of the learned counsel for the

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appellant that the matter has to be remanded to the Trial Court cannot be accepted and there are no grounds to remand the matter on question of law and fact. The First Appellate Court on re-appreciation of the evidence, in paragraph No.26 of the judgment taken note of the judgment and decree of the Trial Court granting share in favour of the plaintiffs has not been challenged by the appellant and even not filed any cross-appeal or cross-objection and now the defendant contend that granting of share in favour of the plaintiffs is erroneous and the same cannot be accepted when no appeal is filed. The First Appellate Court modified the judgment of the Trial Court taking note of they are equally entitled for a share in the property left by the father Munishami and no error is committed by the Appellate Court. When such being the material available on record, I do not find any ground to admit the appeal and frame the substantial question of law to decide the issue in the matter. Both the Courts have given anxious consideration to the claim made by the plaintiffs before the Trial Court and the Appellate Court and the Appellate Court modified the judgment considering the principles laid down in the judgment of the Apex Court in the

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case of Vineeta Sharma (supra) and hence there is no merit in the appeal to admit and frame substantial question of law invoking Section 100 of CPC.

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In view of the discussions made above, I pass the

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following:

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ORDER

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The appeal is dismissed.

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Sd/JUDGE

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Sri K M Manjunath v. Smt Vijayalakshmi

Case brief

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Sri K M Manjunath v. Smt Vijayalakshmi

Case brief

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