Allowed

T Channagiriyappa v. Smt Gangamma

Karnataka HC18 Mar 2024RFA/1039/2011

Case brief

AI extract

What is this about?

In a regular first appeal filed under Section 96 of CPC against a partition suit decree, the High Court held the suit barred by limitation as filed after majority. However, upon a valid compromise settling the dispute between the appellant and three daughters for Rs. 5 lakhs, the court modified the decree in their favor and allowed the appeal to dismiss the suit against them separately.

What did the court decide?

The appeal against respondents No. 1 to 3 allowed and suit dismissed on acceptance of compromise for Rs. 5 lakhs. Appeal against remaining respondents remitted for hearing on merits as they were absen

T Channagiriyappa Vs Smt Gangamma — Partition | Karnataka HC (2024)

¶1

1 - NC: 2024:KHC:11032 RFA No. 1039 of 2011

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 18^TH DAY OF MARCH, 2024

¶4

BEFORE

¶5

THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE

¶6

REGULAR FIRST APPEAL NO. 1039 OF 2011 (PAR)

¶7

BETWEEN:

¶8

T CHANNAGIRIYAPPA, S/O THIMMAIAH, AGED ABOUT 52 YEARS, R/AT NO.427/1, NELLAKEDARAHALLI VILLAGE, NAGASANDRA POST, BANGALORE-560 073.

¶9

…APPELLANT

¶10

(BY SRI SHARATH S GOWDA, ADVOCATE)

¶11

AND:

¶12

SMT GANGAMMA, D/O LATE VENKATAPPA, AGED ABOUT 30 YEARS.

¶13

Digitally signed by PRAMILA G V Location: HIGH COURT OF KARNATAKA

¶14

SMT MUNIRATHNAMMA D/O LATE VENKATAPPA, AGED ABOUT 28 YEARS.

¶15

SMT SUJATHA, D/O LATE VENKATAPPA, AGED ABOUT 26 YEARS, RESPONDENTS 1 TO 3 ARE R/AT ANDRAHALLI VILLAGE, YESHVANTHAPURA HOBLI, BANGALORE NORTH, BANGALORE - 560 091.

¶16

SMT KEMPAMMA, DELETED W/O LATE VENKATAPPA, V/C/O DT:07.12.22 AGED ABOUT 66 YEARS,

¶17

SINCE DEAD BY HER LRS WHO ARE ALREADY ON RECORD (AMENDED VIDE COURT ORDER DT:05.03.2024.

¶18

2 - NC: 2024:KHC:11032 RFA No. 1039 of 2011

¶19

SRI MANJU, S/O LATE VENKATAPPA, AGED ABOUT 24 YEARS.

¶20

SRI NARASHIMAMURTHY, S/O LATE VENKATAPPA, AGED ABOUT 44 YEARS.

¶21

SRI RAJA,

¶22

S/O LATE VENKATAPPA, AGED ABOUT 40 YEARS, RESPONDENTS 4 TO 7 ARE RESIDING AT ANDRAHALLI VILLAGE, YESHAVANTHAPURA HOBLI, BANGALORE NORTH, BANGALORE-560 091.

¶23

…RESPONDENTS

¶24

(BY SRI P M NARAYANA SWAMY, ADVOCATE FOR R1 TO R3, R7, R5, R6 - SERVED, V/O/DT: 07.12.2022 - R4 IS DECEASED R1 TO R3 AND R5-R7 ARE LRS OF R4)

¶25

THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 23.4.2011 PASSED IN O.S.17147/2006 ON THE FILE OF THE XXVIII ADDL. CITY CIVIL JUDGE, MAYO HALL UNIT, BANGALORE, (CCH 29), DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.

¶26

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

¶27

3 - NC: 2024:KHC:11032 RFA No. 1039 of 2011

¶28

JUDGMENT

¶29

Appellant and respondents are before this Court. Learned counsel for the appellant and learned counsel for respondents No.1 to 3 identify their respective parties. The appellant and the respondents No.1 to 3 have filed Compromise Petition under Order XXIII Rule 3 of Code of Civil Procedure (for short hereinafter referred to as 'CPC') reporting settlement. However, the respondents No.5 to 7 though served are not represented by anyone and are not present before the Court. Since, there is a decree in favour of respondents No.5 to 7, who were defendants No.2 to 4, this Court is of the view that the appeal of the appellant has to be considered on merits as against respondents No.5 to 7.

¶30

This appeal is arising from the judgment and decree

¶31

in O.S.No.17147/2006 on the file of XXVIII Additional City Civil Court, Mayo Hall unit, Bengaluru.

¶32

The suit is one for partition by the daughters of one Kempamma. Kempamma was arrayed as the 1^st defendant. The 2^nd defendant is the grand son of Kempamma through her deceased son Venkatachala. The 3^rd and 4^th defendants are the

¶33

¶34

NC: 2024:KHC:11032 RFA No. 1039 of 2011

¶35

sons of Kempamma. The 5^th defendant is the purchaser of the property from Kempamma. Kempamma and her four sons namely Venkatachala, Narasimha Murthy, Rajanna @ Raja and Thopaiah sold the suit property under the registered sale deed dated 19.10.1994. Thopaiah died issueless. Hence, he is not a party to the proceeding. Venkatachala died before the suit, hence his son is arrayed as a party.

¶36

Before the Trial Court, Kempamma and her grand son Manju and her two sons namely Narasimha Murthy and Rajanna @ Raja remained exparte . Even before this Court they have remained absent, despite service of notice.

¶37

The plaintiffs who are the daughters of Kempamma filed a suit for partition. The suit is filed against their mother and brothers. The mother sold the property under registered sale deed dated 19.10.1994. In the plaint the plaintiffs have not sought cancellation of the sale deed. The plaintiffs contend that the property is the joint family property of the plaintiffs and the defendants No.1 to 4. The defendants No.1 to 4 remained exparte. Defendant No.5 who is the purchaser from defendant No.1 contested the suit. The suit is decreed holding

¶38

¶39

NC: 2024:KHC:11032 RFA No. 1039 of 2011

¶40

that each of the plaintiffs is having 1/7^th share in the suit property. Aggrieved by the said judgment and decree, the defendant No.5 - purchaser is in appeal.

¶41

Learned counsel for the appellant would submit that

¶42

the plaintiffs' suit is barred by limitation. It is also his submission that the defendant No.1 purchased the property under registered sale deed dated 17.05.1972. As such, the property is a self-acquired property. He would submit that the suit is decreed without considering these two vital aspects of the matter. He would also submit that the appellant has produced the application for production of additional evidence to show that the property was purchased by defendant No.1 under registered sale deed dated 17.05.1972.

¶43

After considering the submissions made and also considering the materials on record, the following points arise for consideration:

¶44

(i) Whether the suit of the plaintiffs' is barred by limitation?

¶45

(ii) Whether the suit property was the absolute property of the first defendant?

¶46

¶47

NC: 2024:KHC:11032 RFA No. 1039 of 2011

¶48

From the records placed before this Court, it is evident that the suit is filed for the relief of partition and separate possession by the three daughters of Kempammadefendant No.1. The plaint does not disclose anything about the sale transaction by Kempamma who has sold the property along with her sons under the registered sale deed dated 19.10.1994. The suit is filed in the year 2006. The plaintiffs have produced the family tree reflecting their age. The said family tree is marked at Ex.P1. From the said family tree, which is the plaintiffs' document it is evident that plaintiff No.1Gangamma was aged 30 years and plaintiff No.2Munirathnamma was aged 28 years and plaintiff No.3-Sujatha was aged 26 years in the year 2010. The suit is filed in the year 2006. Thus, it is evident that all the plaintiffs had crossed the age of 18 years and the suit was filed beyond three years after attaining the age of majority. In that view of the matter, the suit is barred by limitation.

¶49

It is also relevant to note that apart from stating that the suit property is a joint family property, no material is placed before this Court to establish the said contention. The fact that the mother of the plaintiffs acquired the property

¶50

¶51

NC: 2024:KHC:11032 RFA No. 1039 of 2011

¶52

under the registered sale deed dated 17.05.1972 is borne out from Ex.P.12. In the absence of any other document, to show that the properties are ancestral properties in the hands of defendant No.1-Kempamma, this Court is unable to agree with the reasoning assigned by the Trial Court that the properties are the joint family properties. As already noticed, the suit is barred by limitation. However, the Trial Court has not considered this particular aspect.

¶53

It is also relevant to note that sons of Kempamma have sold the property by joining Kempamma in execution of sale deed. Hence, there cannot be a decree in favour of sons of Kempamma or the grand son of Kempamma who claimed through her sons.

¶54

Accordingly, the impugned judgment and decree in so far as defendants No.1 to 4 are concerned are set aside.

¶55

Now, the plaintiffs who are respondents No.1 to 3 are present before this Court and the defendant No.5 - who is the appellant before this Court have settled the dispute. The appellant and respondents No.1 to 3 have presented the Compromise Petition under Order XXIII Rule 3 of CPC. The

¶56

¶57

NC: 2024:KHC:11032 RFA No. 1039 of 2011

¶58

learned counsel for the appellant and respondents No.1 to 3 have identified their respective parties.

¶59

The Compromise Petition reads as under:

¶60

The Appellant and the Respondent No.1, 2 and 3 who are the Plaintiffs before the Trial Court jointly submit as under:

¶61

1. The present Appeal is directed against the Judgment and Decree dated 23.04.2011 in O.S.No.17147/2006 by the Court of the XXVIII Addl.City Civil Judge, Mayo Hall Unit, Bangalore (CH-29).

¶62

2. It is submitted that, the Plaintiffs who are the daughters of Defendant No.1-Kempamma filed a suit for Partition in respect of the Suit property bearing Sy.No.103/1, measuring 1 Acre 12 guntas including 2 guntas kharab, situated at Andrahalli Village, Yeshwanthpura Hobli, Bangalore North Taluk, which was purchased by the 5^th Defendant under a registered Sale Deed dated 19.10.1994, from Defendant No.1 and her male issues.

¶63

3. It is submitted that, Defendant No.1 and the lineal descendants through male coparceners,

¶64

9 - NC: 2024:KHC:11032 RFA No. 1039 of 2011

¶65

have remained absent and have been placed ex-parte before the Trial Court as well as before this Hon'ble Court in this Appeal.

¶66

4. It is submitted that, during the pendency of this Appeal, daughters of the 1^st Defendant who are the Plaintiffs, who are making a claim for partition of the Suit Schedule Property, at the aid and advise of their well wishers as well as their respective counsels, have arrived into settlement and have decided withdraw their claim by confirming the right, title and interest of the 5^th Defendant/Appellant as the absolute owner of the Suit Schedule Property by receiving a sum of Rs.5,00,000/- only. (Rupees Five Lakhs Only).

¶67

5. It is submitted that, the Plaintiffs/Respondent No.1 to 3 confirm the right, title and interest of the 5^th Defendant/Appellant based on the Sale Deed dated 19.10.1994.

¶68

6. It is submitted that, the Plaintiffs further confirm that they shall not make any other claim of whatsoever nature in respect of the Suit Schedule Property and will not interfere with the possession of the Appellant or any

¶69

10 -

¶70

NC: 2024:KHC:11032 RFA No. 1039 of 2011

¶71

other person claiming under the Appellant, over the Suit Schedule Property.

¶72

7. It is submitted that, the Plaintiffs/Respondent No.1 to 3 have acknowledged on this day, the 18^th Day of March, 2024, the payment of sum of Rs.5,00,000/- only, (Rupees Five Lakhs Only) vide three Cheque bearing No.989449, 989450, 989451 dated 18.03.24 drawn on Karnataka Bank, in the name of Plaintiffs for Rs.1,66,000/-, Rs.1,67,000/and Rs. 1,67,000/- respectively.

¶73

8. It is submitted that, the Plaintiff/Respondent No.1 to 3 and the 5^th Defendant/Appellant have arrived into settlement in terms stated above, out of their free will and consent, without any fraud, coercion or undue influence after fully understanding the contents and nature of the suit.

¶74

9. It is submitted that, the parties have been explained with the contents of this Compromise Petition in their mother tongue, and after fully understanding the contents and consequences thereof, they have willingly attested their signatures in confirmation of the settlement.

¶75

11 - NC: 2024:KHC:11032 RFA No. 1039 of 2011

¶76

WHEREFORE, this Hon'ble Court may be pleased to take this Compromise Petition on record and, allow this Appeal and consequently dismiss the suit of the Plaintiffs, in the interest of justice and equity.

¶77

In terms of the settlement, plaintiff/respondents No.1 to 3 have agreed to withdraw their claim on receipt of Rs.5 lakhs from the appellant/defendant No.5. The appellant has issued a cheque in favour of the plaintiff/respondents No.1 to 3 as described in paragraph No.7 of the Compromise Petition. Respondents No.1 to 3 acknowledge the receipt of aforementioned cheques described in paragraph No.7 of the Compromise Petition. The cheques are handed over to respondents No.1 to 3 in the presence of the learned counsel appearing for respondents No.1 to 3.

¶78

After having gone through the contents of the Compromise Petition, this Court has made an enquiry with the parties. The parties who are present before this Court submit that they have voluntarily entered into the settlement having understood the terms of the settlement. This Court does not find any impediment to accept the terms of the settlement.

¶79

12 -

¶80

NC: 2024:KHC:11032 RFA No. 1039 of 2011

¶81

Accordingly, the judgment and decree in favour of respondents No.1 to 3 are modified in terms of the Compromise Petition. Accordingly, the appeal against respondents No.1 to 3 is disposed of in terms of the Compromise Petition.

¶82

Registry to draw the decree accordingly.

¶83

Since remaining respondents are not before this Court, this Court is of the view that the appeal is to be decided on merits in so far as the decree in favour of remaining respondents.

¶84

Appeal is allowed and consequently, the suit is

dismissed.

Sd/JUDGE

GVP

List No.: 1 Sl No.: 20

T Channagiriyappa v. Smt Gangamma

Case brief

What is this about?

What did the court decide?

T Channagiriyappa v. Smt Gangamma

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

Case details

Similar cases

Sri. M Y Dass Vs Smt. Gowramma

M/S Veeravahana Udyog Pvt. Ltd. Vs Regional Provident Fund Commissioner-Ii

Smt.B.N Asha Vs M/S. the Management of Mysore Hindi Prachara Parishad

Sri.Madhusudhana Vs the Commissioner

M/S Cvc Biorefineries Pvt. Ltd. Vs Sri Shivalingaiah R

The Bangalore Development Authority Vs Smt B N Kokila