Dismissed

Sri Chikkaramu v. Smt Bettamma

Karnataka HC9 Feb 2023RSA/345/2022

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a regular second appeal filed by defendants challenging a trial court judgment on inheritance. The court rejected claims regarding delay and non-impleadment of heirs as matters not appropriate for appeal, holding that such grounds apply in final decree proceedings.

What did the court decide?

The regular second appeal filed under Section 100 CPC is dismissed.

Sri Chikkaramu Vs Smt Bettamma — Succession and Inheritance | Karnataka HC (2023)

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1 - RSA No. 345 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 9^TH DAY OF FEBRUARY, 2023

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH

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REGULAR SECOND APPEAL NO. 345 OF 2022 (PAR)

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BETWEEN:

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SRI CHIKKARAMU S/O LATE KARIBASAVAIAH @ DASAIAH @ BASAVAIAH AGED ABOUT 63 YEARS R/AT B.BETTAHALLI VILLAGE BANNUR HOBLI T. NARASIPURA TALUK MYSURU DISTRICT-571 101.

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SRI BASAVAIAH S/O LATE KARIBASAVAIAH @ DASAIAH @ BASAVAIAH AGED ABOUT 66 YEARS

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Digitally signed by SHARANYA T Location: HIGH COURT OF KARNATAKA

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RETD. OFFICER VETERINARY HOSPITAL MALAVALLI AND NOW R/AT 11^TH CROSS GANDHINAGARA MANDYA-571 401.

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SRI RANGASWAMY S/O LATE KARIBASAVAIAH @ DASAIAH @ BASAVAIAH AGED ABOUT 59 YEARS R/AT DOOR NO.H412 11^TH CROSS, GANDHINAGARA MANDYA-571 401.

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SRI MARISWAMY S/O LATE KARIBASAVAIAH @ DASAIAH @ BASAVAIAH AGED ABOUT 50 YEARS

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RSA No. 345 of 2022

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R/AT 12^TH CROSS GANDHINAGARA MANDYA-571 401. NEW ADDRESS OF APPELLANT NOS.3 & 4, NO.4026, 1^ST CROSS, CHANDAGALU LAYOUT SHANKARANAGARA, MANDYA – 571 401.

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SMT. CHIKKENAMMA @ BETTAMMA D/O LATE KARIBASAVAIAH @ DASAIAH @ BASAVAIAH W/O KUMBARIAH @ KOOSAIAH AGED ABOUT 61 YEARS R/AT BONTHAGAHALLI ARAKERE HOBLI SRIRANGAPATNAT TALUK MANDYA DSITRICT-571 415.

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SMT. RUKMINI D/O LATE KARIBASAVAIAH @ DASAIAH @ BASAVAIAH W/O LAKSHMINARAYANA AGED ABOUT 46 YEARS R/AT B.BETTAHALLI VILLAGE BANNUR HOBLI, T.NARASIPURA TALUK MYSURU DISTRICT AND ALSO R/AT LIG 93 NEW KANTHARAJE URS ROAD NEAR KUMARA MEDICALS KUVEMPUNAGARA MYSURU – 570 023.

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…APPELLANTS

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(BY SRI. Y.K.NARAYANA SHARMA., ADVOCATE [THROUGH VC]) AND:

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SMT. BETTAMMA W/O LATE KARIBASAVAIAH @ K.DASAIAH AGED ABOUT 74 YEARS

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SRI JAYARAMU S/O LATE KARIBASAVAIAH @ K. DASAIAH

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RSA No. 345 of 2022

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AGED ABOUT 50 YEARS WORKING AS ASST GOVT. VETERINARY HOSPIATAL, KIRUGAVALU MALAVALLI TALUK

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RESPONDENT NOS.1 AND 2 ARE R/AT B.BETTAHALLI VILLGE BANNUR HOBLI, T.NARASIPURA TALUK MYSURU DISTRICT-571 101.

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SRI KRISHNAMURTHY S/O LATE KARIBASAVAIAH @ K.DASAIAH AGED ABOUT 47 YEARS TEACHER GOVT. HIGH SCHOOL POORIGALI, NEW EXTENSION R/AT T.NARASIPURA TOWN MYSURU DISTRICT-571 124.

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SMT.LAKSHMAMMA D/O LATE KARIBASAVAIAH @ K.DASAIAH W/O SRI POOJAIAH AGED ABOUT 58 YEARS R/AT CHIDARAHALLI VILLAGE SOSALE HOBLI, T.NARASIPURA TALUK MYSURU DISTRICT-571 120.

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SMT.RAJAMMA D/O LATE KARIBASAVAIAH @ K.DASAIAH W/O SRI VENAKTESH AGED ABOUT 55 YEARS R/AT V.V.NAGARA PANDAVAPURA TOWN AND TALUK MANDYA DISTRICT-571 401.

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SMT. BHAGYA D/O LATE KARIBASAVAIAH @ K.DASAIAH W/O SRI RAMESH AGED ABOUT 34 YEARS R/AT BABURAYANA KOPPALU VILLAGE MANDYA DISTRICT-571 807.

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SMT. GEETHA D/O LATE KARIBASAIAVAH @ K.DASAIAH

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RSA No. 345 of 2022

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W/O SRI SRINIVASA AGED ABOUT 32 YEARS R/AT BONTHAGALLI VILLAGE CHIKKA ANKANAHALLI DAKALE ARAKERE HOBLI SRIRANGAPATNA TALUK MANDYA DISTRICT-571 415.

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…RESPONDENTS

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THIS RSA IS FILED UNDER SECTION 100 R/W. ORDER 41, RULE 1 OF CPC 1908, AGAINST THE ORDER DATED 11.11.2021 PASSED ON IA NO.1 IN R.A.NO.18/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, T.NARASIPURA, REJECTING THE IA NO.1, CONSEQUENTLY DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 04.08.2015 PASSED IN OS NO.56/2014 ON THE FILE OF THE CIVIL JUDGE AND JMFC, T.NARASIPURA.

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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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This matter is listed for admission. I have heard the learned counsel for the appellants. This Court also secured the records of the Appellate Court, since there was an issue with regard to whether evidence has been recorded or not, before the dismissal of the appeal on the ground of limitation.

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RSA No. 345 of 2022

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The factual matrix of the case of the plaintiffs before the Trial Court is that, one Karibasavaiah @ Dasaiah @ Basavaiah had two wives by name Ningamma and Kendamma. First wife Ningamma had a son by name Karibasavaiah @ Dasaiah, who is no more. The plaintiff No.1 is wife and plaintiff Nos.2 to 6 are children of said Karibasavaiah @ Dasaiah. The second wife Kendamma had six children, who are defendant Nos.1 to 6. The suit schedule properties are ancestral and joint family properties of plaintiffs and defendants. After demise of Karibasavaiah @ Dasaiah @ Basavaiah, the plaintiffs and defendants have been in joint possession and enjoyment of the suit schedule properties. After demise of Karibasavaiah, the husband of plaintiff No.1 and defendant No.1 were in possession and enjoyment of the suit schedule properties. The defendant Nos.2 to 6 being the employees of Government are residing in their respective places. The defendant No.1 has got item Nos.1 and 2 of the schedule properties mutated in his name illegally, in order to defraud the share of the plaintiffs. Item Nos.3 and 4 are Chakram Inam property, which are not mutated in the name of any parties. But, the plaintiffs and defendants are in joint possession of the same. The defendant

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RSA No. 345 of 2022

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No.1 tried to sell away the suit schedule properties. So, the plaintiffs got issued legal notice dated 31.12.2013 calling upon the defendant No.1 to allot their share in the suit schedule properties. Inspite of it, the defendant No.1 did not make any partition in the suit schedule properties. Hence, the suit is filed.

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The defendant Nos.1 to 6, though appeared through their counsel, not filed any written statement. The plaintiffs, in order to prove their case, examined the plaintiff No.2 as P.W.1 and also examined two witnesses as P.Ws.2 and 3 and got marked the documents as Exs.P1 to P10.

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The Trial Court, after considering both oral and documentary evidence placed on record, comes to the conclusion that suit schedule properties are ancestral joint family properties of the plaintiffs and defendants and also comes to the conclusion that the plaintiffs are entitled for 1/7^th share in item Nos.1, 2 and 5 of the suit schedule properties. The suit is dismissed as far as item Nos.3 and 4 of the suit schedule properties are concerned.

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RSA No. 345 of 2022

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Being aggrieved by the judgment and decree of the Trial Court, the defendants have filed the appeal in R.A.No.18/2016, wherein there was a delay of 324 days in filing the appeal. The First Appellate Court, recorded the evidence of the parties with regard to the delay is concerned as P.W.1 and R.W.1. Having considered the material on record, the First Appellate Court comes to the conclusion that delay has not been properly explained, in coming to the conclusion that appellants were very well aware about the trial of case before the Trial Court and despite having the knowledge of the trial and disposal of O.S.No.56/2014, the appellants have not come forward to contest the matter. The First Appellate Court also taken note of the fact that F.D.P.1/2016 is also filed and Commissioner’s report is also received and only in order to avoid legitimate share of the plaintiffs and to harass them, the present appeal is filed and also taken note of the fact that, though the appellants appeared through their advocate, did not file any written statement and judgment was pronounced on 04.08.2015 and appeal was filed on 27.07.2016 with the delay of about 358 days and the same has not been explained properly. The First Appellate Court also, taking note of the

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RSA No. 345 of 2022

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evidence available on record, in Para No.21, taken note of the fact that P.W.1 is an educated person and a Central Government employee and taken note of the reasons given in the cross-examination that he had no problem to provide documents to the advocate and the said admission is also taken note of and in Para No.24, the First Appellate Court has taken note of the fact that copying application was filed on 07.04.2016 and copy was ready on 23.04.2016 but, the same was taken on 10.06.2016 and even while the taking the copy of the order also, there was a delay. Hence, dismissed the appeal on the ground of delay. Therefore, the present second appeal is filed before this Court.

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Learned counsel appearing for the appellants would vehemently contend that the plaintiffs, while filing the suit have left out one Smt. Sampathamma, the daughter of Karibasavaiah, who is also having equal share and though, she is no more, her sons are entitled for share. The counsel also would submit that both the Courts committed an error in granting the share without adding the other legal heir Smt. Sampathamma. The learned counsel also would submit that the First Appellate Court has committed an error in

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RSA No. 345 of 2022

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rejecting I.A.No.1 in not appreciating the reasons assigned in the application for condonation of delay. Hence, the substantial question of law arises for this Court is that the First Appellate Court has committed an error in not appreciating the evidence on I.A.No.1 to prove the facts and circumstances of the case, wherein, also sufficient cause was shown and the same was not considered and even in calculating the shares of the parties also, it is erroneous and the legal heirs of Smt. Sampathamma was not impleaded. Hence, it requires interference.

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Having heard the learned counsel appearing for the appellants and the claim of the plaintiffs where they contend that the property belongs to joint family. Shri. Karibasavaiah @ Dasaiah @ Basavaiah had two wives by name Ningamma and Kendamma. The first plaintiff is wife and the plaintiff Nos.2 to 6 are children of said Shri. Karibasavaiah @ Dasaiah and Smt. Ningamma (first wife) and also not in dispute that the defendants are the children of second wife – Smt. Kendamma and also no dispute with regard to the property belongs to the joint family. The very contention of the learned counsel appearing for the appellants is that the appellants could not file written statement before the Trial Court. In the First Appellate

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RSA No. 345 of 2022

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Court, they have challenged the very decree and they have not taken any defense in the Trial Court that the legal heirs of Smt. Sampathamma were not arrayed as parties to the proceedings and the Trial Court granted the decree considering the evidence of the plaintiffs and the documentary evidence.

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The First Appellate Court also considering the evidence which has led to condone the delay. P.W.1, who has been examined as witness in the First Appellate Court with regard to the delay is concerned and came to the conclusion that he is an educated person and working in the Central Government and also not condone the delay of 358 days which has not been properly explained and no documents are placed before the Court on the medical grounds also and taken note of the cross-examination of P.W.1, where he has admitted that he has not provided the document and there was no difficulty to provide the documents to the advocate. The only contention is that his brother had taken treatment for two to three months as an outpatient, but not as an inpatient and the medical records also not placed before the Court.

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RSA No. 345 of 2022

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It is also not in dispute that the properties belong to the joint family. The very contention of the learned counsel appearing for the appellants is that the legal heirs of Smt. Sampathamma, who is also the daughter of the second wife of Karibasavaiah and Kendamma was not arrayed as a party and the same cannot be a ground in the second appeal and the parties can urge the said ground before the final decree proceedings also since the final decree proceedings is not yet decided.

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At this juncture, this Court would like to rely upon the judgment of the Apex Court in the case of VINEETA

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SHARMA v. RAKESH SHARMA AND OTHERS reported in AIR

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2020 SC 3717, held that even with regard to modification of share and any alteration of share, the same can be urged in final decree proceedings. Hence, the first contention cannot be accepted.

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The second contention of the learned counsel appearing for the appellants is that the said Karibasaviah, who is the father of the plaintiffs, was taken in adoption and to that effect, no written statement was filed and also no such defense

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RSA No. 345 of 2022

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was taken before the Trial Court. This is also not a ground in the second appeal and only the substantial question of law is raised with regard to not giving an opportunity and also not arraying the legal representatives of Smt. Sampathamma as parties to the proceedings, the said ground was urged in the First Appellate Court without filing any written statement before the Trial Court. Having taken note of the said fact into consideration, the same cannot be a ground in the second appeal to consider the same.

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Admittedly, no dispute with regard to the relationship between the parties and also no dispute with regard to the property which is involved in the suit is also a joint family property and the only question is not impleading the legal representatives of Smt. Sampathamma as parties in the suit and the parties can seek for an impleadment in respect of legal representatives of Smt. Sampathmma before the final decree proceedings. Hence, I do not find any ground to admit and frame any substantial question of law in the second appeal.

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In view of the discussions made above, I pass the following:

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RSA No. 345 of 2022

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ORDER

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The appeal is dismissed.

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In view of dismissal of the main appeal, I.As, if any do not survive for consideration and the same stand disposed of.

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Sd/JUDGE

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ST,CP List No.: 1 Sl No.: 25

Sri Chikkaramu v. Smt Bettamma

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Sri Chikkaramu v. Smt Bettamma

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