Dismissed

Smt. Radha v. Smt. Gangamma

Karnataka HC26 Oct 2023RSA/754/2020

Case brief

AI extract

What is this about?

This second appeal concerns a partition suit dismissed regarding specific properties. The High Court upheld lower courts' findings that alienations prior to Section 6 amendment save the properties from division and that family necessity alienations bind the plaintiff. The appeal was dismissed.

What did the court decide?

The regular second appeal is dismissed. All pending applications are disposed of.

Smt. Radha Vs Smt. Gangamma — Partition | Karnataka HC (2023)

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1 - NC: 2023:KHC:37968 RSA No. 754 of 2020

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 26^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM REGULAR SECOND APPEAL NO. 754 OF 2020 (PAR)

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BETWEEN:

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SMT. RADHA, AGED ABOUT 42 YEARS, W/O BORE GOWDA, D/O LATE HANUMANTHAIAH, R/AT TOTADAGUDDADHAHALLI, POST: NAGASANDRA, DASANAPURA HOBLI, BENGALURU NORTH, BENGALURU - 560 073.

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…APPELLANT

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(BY SRI. ARUN BHAT, ADVOCATE)

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AND:

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Digitally signed by REKHA ANKAIAH Location: High Court of Karnataka

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SMT. GANGAMMA, W/O LATE HANUMANTHAIAH, AGED ABOUT 59 YEARS,

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SRI. ANJANAMURTHY, S/O LATE HANUMANTHAIAH, AGED ABOUT 52 YEARS,

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SMT. SAROJAMMA, D/O LATE HANUMANTHAIAH, AGED ABOUT 50 YEARS,

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NC: 2023:KHC:37968 RSA No. 754 of 2020

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SRI. GANGARAJU, S/O LATE HANUMANTHAIAH, AGED ABOUT 48 YEARS,

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SRI. SRINIVASA. S/O LATE HANUMANTHAIAH. AGED ABOUT 46 YEARS,

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SRI. LAKSHAMAN, S/O LATE HANUMANTHAIAH, AGED ABOUT 44 YEARS,

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SRI. RAMESH, S/O LATE HANUMANTHAIAH, AGED ABOUT 42 YEARS,

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SRI. GANGADHAR, S/O LATE HANUMANTHAIAH, AGED ABOUT 28 YEARS,

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KUMARI SUMALATH, D/O LATE HANUMANTHAIAH, AGED ABOUT 30 YEARS,

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RESPONDENT NO.1 TO 9 ARE RESIDENT OF TOTADAGUDDAHALLI, POST: NAGASANDRA, DASANAPURA HOBLI, BENGALURU NORTH, BENGALURU - 560 073.

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SRI. S. GANGARAJU, S/O LATE SIDDARAMAIAH, AGE 58 YEARS, R/AT TOTADAMANE

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3 - NC: 2023:KHC:37968 RSA No. 754 of 2020

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THOTADAGUDDAHALLI, NAGASANDRA POST, DASANPURA HOBLI, BENGALURU NORTH, BENGALURU - 560 073.

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SRI. GOVINDAPPA, S/O LATE LINGAPPA, AGED ABOUT 65 YEARS, R/AT TOTADA GUDDAHALLI NAGASANDRA, DASANAPURA HOBLI, BENGALURU NORTH, BENGALURU - 560 073.

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SMT. SAVITRAMMA, W/O S.S. NAGARAJ, AGED ABOUT 46 YEARS, R/AT JAVARAMMA VATARA, NEAR AMBAMAHESHWARI TEMPLE, KAMAKSHIPALYA, BENGALURU - 560 079.

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SRI. H. RAJANNA, S/O B. HANUMANTHAIAH, AGED ABOUT 46 YEARS, R/AT "PAVITHRA NILAYA", POST T. DASARAHALLI, CHIKKASANDRA, NEAR SRIRAM BHAJANA MANDIRA, BENGALURU - 560 057.

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…RESPONDENTS

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 31.10.2019 PASSED IN

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NC: 2023:KHC:37968 RSA No. 754 of 2020

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RA.NO.11/2016 ON THE FILE OF THE VIII ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 05.12.2015 PASSED IN OS.NO. 437/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE NELAMANGALA.

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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 plaintiff questioning the concurrent judgments of the Courts below, wherein the plaintiff's suit for partition is dismissed insofar as suit item Nos.E, F and J. The plaintiff an assailing the concurrent judgments insofar as denying share in the above suit properties.

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For the sake of brevity, the rank of the parties are

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referred as they are ranked before the Trial Court.

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The family tree of the parties is as under:

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NC: 2023:KHC:37968 RSA No. 754 of 2020

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Hanumanthaiah (Dead)

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Hanumanthaiah (Defendant -1)

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(Wives)

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Late Gangama Smt.Gangamma 1.Sri.Anjanmurthy, 1.Sri.Gangaraju, (Defendant No.2) (Defendant No.8) 2.Smt.Sarojamma, 2.Kumari Sumalatha

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(Defendant No.3) (Defendant No.9)

3.Sri.Gangaraju,

(Defendant No.4)

4.Sri.Srinivasa,

(Defendant No.5), 5.Sri.Lakshaman,

(Defendant No.6),

6.Sri.Ramesh,

(Defendant No.7),

7.Smt.Radha

(Plaintiff)

6 - NC: 2023:KHC:37968 RSA No. 754 of 2020

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The plaintiff instituted a suit for partition in O.S.No.943/2006 (New No.437/2009) questioning the alienation made by her father, Hanumanthaiah and her brothers. The plaintiff, who is the daughter of defendant No.1 and sister of defendants No.2 to 9, feeling aggrieved by the alienations made by her father and brothers, has instituted the present suit by contending that the suit schedule properties are joint family properties and therefore, the alienations made by her father and brothers do not bind on her legitimate share. Accordingly, she prayed for partition by metes and bounds by allotting her legitimate share in the suit schedule properties.

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Defendant Nos.10 and 13 contested the proceedings by filing written statement. Parties in support of their contentions have let in oral and documentary evidence.

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The Trial Court, having assessed the evidence on record, however, found that alienation made by defendant No.1 in favour of defendant Nos.10 and 13

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7 - NC: 2023:KHC:37968 RSA No. 754 of 2020

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insofar as item Nos.E and F are concerned is much prior to amendment to Section 6 of the Hindu Succession Act, 1956 (for short, 'Act'). It is in this background, the Trial Court was of the view that alienation by defendant No.1 relating to item Nos.E and F, which are dated 05.11.2001 and 20.12.2004 is clearly saved in lieu of the provisions of Section 6 and therefore proceeded to hold that plaintiff cannot claim share in item Nos.E and F.

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While examining the alienation made by her father insofar as item No.J is concerned, the Trial Court found that the alienation is for legal necessity and therefore proceeded to hold that the alienation made by her father/defendant No.1 insofar as item No.J is concerned binds plaintiff and therefore, she is not entitled for share in item No.J.

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8. Feeling aggrieved by the judgment and decree

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of the Trial Court, plaintiff preferred an appeal before the appellate Court. The Appellate Court, on re-appreciation of

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8 - NC: 2023:KHC:37968 RSA No. 754 of 2020

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oral and documentary evidence, proceeded to concur with the reasoning and conclusions recorded by the Trial Court. Referring to provision 6 of the Act, the Appellate Court was also of the view that the alienation of item Nos.E, F and D properties is much prior to amendment to Section 6 of the Act and therefore, the plaintiff, being the daughter, who had no subsisting or independent right, has no locus to seek share in the properties alienated much prior to amendment to Section 6 of the Act.

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The Appellate Court, while examining the alienation of item No.J., proceeded to concur with the findings and reasons assigned by the Trial Court. The Appellate Court, referring to the pleadings in the plaint held that there are absolutely no allegations against her father for having alienated item No.J in 2006. The Appellate Court has also recorded a categorical finding that item No.J is sold by defendant No.1 who is the kartha of the family, for family necessity. Therefore, the Appellate

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NC: 2023:KHC:37968 RSA No. 754 of 2020

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Court held that alienation of item No.J binds the plaintiff and therefore, she is not entitled for share.

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Heard learned counsel appearing for the plaintiff. Perused the concurrent judgments rendered by the Courts below.

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On examination of the alienation made by defendant No.1, this Court would find that both the Courts have not applied the provisio to Section 6 insofar as the alienation made by defendant No.1 in favour of defendant Nos. 11 and 12. These alienations were admittedly also found to be prior to amendment to Section 6 of the Act; however, defendant Nos.11 and 12 have not questioned the judgment of the Trial Court.

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Insofar as alienation made by defendant No.1 in favour of defendant Nos.10 and 13 relating to item Nos.E and F is concerned, both sales are much prior to amendment to Section 6, and therefore, plaintiff is not entitled to seek partition in respect of item Nos.E and F.

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10 - NC: 2023:KHC:37968 RSA No. 754 of 2020

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Since item Nos.E and F were sold prior to amendment to Section 6 of the Act, the alienation made by the kartha before 20.12.2004 is clearly saved and therefore, concurrent findings recorded by the Courts below in declining share in item Nos.E and F does not warrant any interference at the hands of this Court. Both the Courts have concurrently held that the alienation by Kartha, insofar as item No.J property is concerned, is for family necessity. Therefore, I am not inclined to re-asses the evidence on record.

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Be that as it may. The alienation made in favour of defendant Nos.11 and 12, which are dated 30.08.2003 and 04.01.2006, though saved in the light of provision to Section 6 of the Act, both the Courts have granted share to the plaintiff only on the ground that there is no contest by defendant Nos.11 and 12. The plaintiff has succeeded in securing a share in respect of item sold to defendant Nos.11 and 12 though they are saved under the provisio to Section 6. Even otherwise, the plaintiff family

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11 -

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NC: 2023:KHC:37968 RSA No. 754 of 2020

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possesses sufficient properties and the plaintiff can exercise her equitable right in the properties retained by the family. Therefore, this Court is of the view that no serious prejudice is caused to the plaintiff even if no share is granted in item No.J property.

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Therefore, no substantial question of law would arise for consideration. Accordingly, the regular second appeal is dismissed .

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In view of dismissal of second appeal, all pending applications, if any, do not survive for consideration and stand disposed of.

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Sd/JUDGE

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HDK List No.: 1 Sl No.: 11 CT: BHK

Smt. Radha v. Smt. Gangamma

Case brief

What is this about?

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Smt. Radha v. Smt. Gangamma

Case brief

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