Partly allowed

Smt. Muniyamma v. Smt. Subbalakshmamma

Karnataka HC22 Apr 2024RFA/1069/2011

Case brief

AI extract

What is this about?

An appeal against dismissal of a partition suit. The court held the appellant is entitled to a share based on a 2000 partition deed and subsequent inheritance by the appellant after the father's intestate death, allowing the appeal in part and quantifying the share.

What did the court decide?

The judgment and decree of 01.03.2011 are set aside; appellant is decreed to 15/56th share in the suit property.

Smt. Muniyamma Vs Smt. Subbalakshmamma — Partition | Karnataka HC (2024)

¶1

¶2

NC: 2024:KHC:15889 RFA No. 1069 of 2011

¶3

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶4

DATED THIS THE 22^ND DAY OF APRIL, 2024

¶5

BEFORE

¶6

THE HON'BLE MR JUSTICE ANANT RAMANATH HEGDE REGULAR FIRST APPEAL NO. 1069 OF 2011 (PAR)

¶7

BETWEEN:

¶8

SMT. MUNIYAMMA AGED ABOUT 96 YEARS, W/O LATE SRI A V BEERAPPA, R/AT ARALERI VILLAGE, ARALARI POST, MALUR TALUK, KOLAR DISTRICT.

¶9

…APPELLANT

¶10

(BY SRI G PAPI REDDY, SENIOR COUNSEL FOR SRI S M RAGHAVENDRA, ADVOCATE)

¶11

AND:

¶12

SMT. SUBBALAKSHMAMMA, AGED ABOUT 76 YEARS, W/O LATE A V BEERAPPA, R/AT ARALERI VILLAGE, ARALARI POST, MALUR TALUK, KOLAR DISTRICT.

¶13

Digitally signed by C HONNUR SAB Location: HIGH COURT OF KARNATAKA

¶14

SMT JAYALAKSHMAMMA, AGED ABOUT 70 YEARS, W/O LATE A V BEERAPPA, R/AT NO.95, OUTHOUSE, M M ROAD, FRAZER TOWN, BANGALORE - 560 005.

¶15

SMT A B NEELA @ NEELAMMA, AGED ABOUT 58 YEARS, W/O B S SHAMU, R/AT NO.1001, 3^RD CROSS, HOSAKERE HALLI,

¶16

BSK 3^RD STAGE, BANGALORE - 560 085.

¶17

SMT A B SHARADAMMA, AGED ABOUT 62 YEARS,

¶18

2 - NC: 2024:KHC:15889 RFA No. 1069 of 2011

¶19

W/O VEERAPPA, RESIDENT OF SANTHEHALLI, SANTHEHALLI POST, MALUR TALUK, KOLAR DISTRICT.

¶20

SRI VISVESHWARAIAH, AGED ABOUT 75 YEARS, S/O MUNIYAMMA, R/OF ARALERI VILLEGE, ARALERI POST, MALUR TALUK, KOLAR DISTRICT.

¶21

SRI A B RAJENDRA, AGED ABOUT 61 YEARS, S/O SUBBALAKSHMAMMA, R/OF ARALERI VILLAGE, ARALERI POST, MALUR TALUK, KOLAR DISTRICT.

¶22

A B LALITHAMMA, AGED ABOUT 72 YEARS, D/O J SUBBALAKSHMAMMA, RESIDENT OF ARALERI VILLAGE, SANTHEHALLI POST, MALUR TALUK, KOLAR DISTRICT.

¶23

DR KANAKA SANTOSH, AGED ABOUT 51 YEARS, D/O JAYALAKSHMAMMA, NO.152, 24^TH MAIN, KARTHIK MATERNITY CLINIC, HSR LAYOUT, AGARA, BANGALORE - 560034.

¶24

SRI A B JAGADEKAREERA, AGED ABOUT 49 YEARS S/O JAYALAKSHMAMMA, R/OF ARALERI VILLAGE, ARALERI POST, MALUR TALUK, KOLAR DISTRICT.

¶25

¶26

NC: 2024:KHC:15889 RFA No. 1069 of 2011

¶27

SRI A B MRUTYUNJAYA, SINCE DEAD BY HIS LRS

¶28

10.(a) SMT SHYALAJA, AGED ABOUT 42 YEARS, W/O LATE A.B.MRUTHYUNJAYA.

¶29

10.(b) SRI RAGHAVENDRA, AGED ABOUT 18 YEARS, S/O LATE A.B.MRUTHYUNJAYA.

¶30

10.(c) MASTER RAJNESH, AGED ABOUT 13 YEARS, S/O LATE A.B.MRUTHYUNJAYA

¶31

ALL ARE RESIDING AT, ARALERI VILLAGE, ARALERI POST, MALUR TALUK, KOLAR DISTRICT.

¶32

SHIVASHANKARE, AGED ABOUT 36 YEARS, S/O JAYALAKSHMAMMA C/O MRUTHYNAJAYA, R/OF ARALERI VILLAGE, ARALARI POST, MALUR TALUK, KOLAR DISTRICT.

¶33

…RESPONDENTS (BY SRI H B CHANDRASHEKAR, ADVOCATE FOR R3 AND R4 R-10 (C) IS MINOR, R1, R5, R6, R8, R10(A & B) ARE SERVED V/O/DT: 03.02.2015 NOTICE TO R2, R7, R9 & R11 ARE DISPENSED WITH)

¶34

THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 1.3.2011 PASSED IN O.S.NO.6103/2004 ON THE FILE OF THE XVIII ADDL. CITY CIVIL JUDGE, BANGALORE, (CCH 10), DISMISSING THE SUIT FOR THE PARTITION AND SEPARATE POSSESSION.

¶35

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

¶36

¶37

NC: 2024:KHC:15889 RFA No. 1069 of 2011

¶38

JUDGMENT

¶39

This appeal is arising from the judgment and decree in O.S. No.6103/2004 on the file of XVIII Additional City Civil Judge, Bengaluru. The suit for partition is filed by one Muniyamma against Subbalakshmamma and Jayalakshmamma. The suit is filed on the premise that the suit property is allotted to the share of the plaintiff - Muniyamma, defendants No.1 and 2 - Subbalakshmamma and Jayalakshmamma along with the husband of the plaintiff and defendants No.1 and 2 Sri A. V. Beerappa.

¶40

There is no dispute that A. V. Beerappa married Muniyamma, Subbalakshmamma and Jayalakshmamma. It is stated that all these three marriages have taken place before the commencement of the Hindu Marriage Act, 1955. Thus, all the three marriages are valid.

¶41

It is stated that plaintiff has a son and daughter from the said marriage with A. V. Beerappa. 1^st defendant - Subbalakshmamma has two sons and three daughters from her marriage with A. V. Beerappa and the 2^nd defendant viz.,

¶42

5 - NC: 2024:KHC:15889 RFA No. 1069 of 2011

¶43

3^rd wife has two sons and two daughters from her marriage with A. V. Beerappa. Defendants No.3 to 11 are the children from three wives. During the pendency of the suit, defendants No.3 and 4 got themselves impleaded and also took a stand that all the children from A. V. Beerappa from his three wives are necessary parties to the suit and accordingly, the remaining children of A. V. Beerappa were impleaded as parties. After impleading them as parties, the remaining children did not contest the suit.

¶44

Admittedly, there was a partition in the family which was registered on 11.09.2000. It is stated that there was a oral partition. The oral partition was reduced into writing and registered on 11.11.2000. The Trial Court has dismissed the suit on the premise that the plaintiff cannot claim his share in the property in view of the clause in the partition deed dated 11.09.2000.

¶45

Aggrieved by the dismissal of the suit, the plaintiff is in appeal.

¶46

¶47

NC: 2024:KHC:15889 RFA No. 1069 of 2011

¶48

Sri G. Papi Reddy, the learned Senior counsel appearing for the appellant would contend that the judgment and decree under challenge are untenable. It is his contention that the property is jointly allotted to the share of A. V. Beerappa and to his three wives in the partition of 2000. Accordingly, the plaintiff acquired ¼ share in the suit schedule property in the partition. After the death of A. V. Beerappa who died intestate, his share will also devolve upon the plaintiff along with other heirs. He would contend that interpretation of the partition deed by the Trial Court in holding that the plaintiff does not have any share in the property is an erroneous interpretation. He would submit that once the property is jointly allotted to the share of the plaintiff and remaining two wives of A. V. Beerappa. Thus, the property would be the joint property of the aforementioned four persons. The clause in the partition deed that in case A. V. Beerappa is to sell the property to facilitate his treatment, then the children of A. V. Beerappa would inherit the property, has no application. It is urged that the said clause is void under Section 10 of the Transfer of

¶49

¶50

NC: 2024:KHC:15889 RFA No. 1069 of 2011

¶51

Property Act, 1882. He would also submit that assuming that the property in the hands of the plaintiff - first wife is a limited estate, then also by virtue of application of Section 14(1) of the Hindu Succession Act, 1966, the plaintiff would acquire absolute right over the property as she was in possession of the property pursuant to the partition of 2000. Thus, he would contend that the Trial Court could not have dismissed the suit and he would urge that the decree for partition is to be passed in favour of the plaintiff/appellant.

¶52

Learned counsel for the respondents submits that the allegation of interpolation in the partition deed made by the plaintiff is not established. When the allegation of interpolation is not established, the Court has to hold that the property has to be inherited by all the children of A.V.Beerappa after the demise of A.V.Beerappa. He would also submit that after the demise of A.V.Beerappa even in the absence of the interpolation, which is referred to above in the partition deed of the year 2000, children of A.V.Beerappa will inherit the property as class-I heirs, as such the suit is not

¶53

8 - NC: 2024:KHC:15889 RFA No. 1069 of 2011

¶54

maintainable. He would further submit that the Trial Court has also given a finding that the suit is bad for non-joinder of necessary parties and for this reason also, the Trial Court has rightly dismissed the suit as all the sharers are not made parties to the suit.

¶55

This Court has considered the contentions raised at

¶56

the bar.

¶57

The following points arise for consideration:

¶58

(i) Whether the plaintiff is able to establish that the suit property is allotted to the share of A.V.Beerappa and his three wives in the partition of the year 2000?

¶59

(ii) Whether the suit is bad for non-joinder of the necessary parties?

¶60

As can be noticed from the partition deed of the year 2000, it is evident that the said partition deed speaks about the previous partition in respect of several properties among the children of A.V.Beerappa. The partition deed of the

¶61

year 2000 marked at Ex.P1 also refers to the suit property, which is a residential house and the said suit property as per

¶62

9 - NC: 2024:KHC:15889 RFA No. 1069 of 2011

¶63

the recital, in the last page of the partition deed is allotted to the share of A.V.Beerappa and his three wives. The last sentence would also reveal that A.V.Beerappa is entitled to sell the property to bear his medical expenses and thereafter, the children are entitled to have the property equally.

¶64

In case, the property is sold by A.V.Beerappa to bear his medical expenses, there is no question to his children inheriting the property equally after his demise. Thus, the last sentence in the partition deed of the year 2000 has to be construed as the right being conferred on the children in respect of sale consideration amount, if any, left in the hands of A.V.Beerapa, at the time of his death.

¶65

It is relevant to note that the defendants have not disputed the recital in the partition deed. Thus, what can be noticed from the partition deed is the properties are allotted to the share of A.V.Beerappa and his three wives. A.V.Beerappa admittedly died intestate. Thus, his 1/4^th share in the suit property would devolve upon all the his three wives, as all the three marriages are valid marriages, which have taken place

¶66

10 - NC: 2024:KHC:15889 RFA No. 1069 of 2011

¶67

before the commencement of Hindu Marriage Act, 1955. In addition, all his children from his three wives also inherit his 1/4^th share. The wives of A.V.Beerappa will have 1/4^th share each under the deed of partition and in addition to that they will also have equal share along with the children in 1/4^th share left behind by A.V.Beerappa. The Trial Court has not considered this aspect in the proper prospective. The trial Court proceeded on the erroneous footing that the last sentence in the partition deed is not proved to be an interpolation as alleged by the plaintiff. The last sentence in the partition deed does not take away the right of the plaintiff which is recognised in the earlier part of the partition deed.

¶68

As far as the contention relating to the non-joinder of necessary parties is concerned, it is to be noticed that both the son and daughter of Smt. Muniyamma are made parties to the suit and two sons and one daughter of Smt. Subbalakshmamma the second wife are also made parties and among two sons and two daughters of the third wife Smt. Jayalakshmamma, one son is made a party and both daughters are made parties. This being the position, this

¶69

11 - NC: 2024:KHC:15889 RFA No. 1069 of 2011

¶70

Court is of the view that there is a substantial representation of each branch and no injustice is caused. Accordingly, the suit is not bad for non-joinder of necessary parties.

¶71

Now the Court has to consider the quantum of share. Since the Court has held that in the partition of year 2000, the A.V. Beerappa and his three wives were allotted share in the suit property, the plaintiff will have 1/4^th share in the suit property and A.V.Beerappa and his remaining two wives will have 1/4^th share each in the suit property. Since A.V.Beerappa died intestate, his 1/4^th share would devolve upon his Class I heirs, namely his wives and children. A.V.Beerappa is survived by six daughters and five sons. So his 1/4^th share would devolve upon all eleven children and three wives. Thus, each of the children will have 1/56^th share. Each of his wives will have 1/4^th plus 1/56^th share in the suit properties. In other words, the plaintiff will have 15/56^th share in the suit properties.

¶72

Hence, the following:

¶73

12 - NC: 2024:KHC:15889 RFA No. 1069 of 2011

¶74

ORDER

¶75

i) The appeal is allowed in-part .

¶76

ii) The judgment and decree dated 01.03.2011 passed by XVIII Additional City Civil Judge, Bengaluru are set aside.

¶77

iii) The suit of the plaintiff is decreed in part. Plaintiff is entitled to 15/56^th share in the suit schedule property.

¶78

iv) Registry shall draw preliminary decree accordingly.

¶79

v) It is also made clear that in case the final decree proceeding is filed, the petitioner in the final decree proceeding shall implead all the children of deceased A.V.Beerappa or their successors in case any of the children of A.V. Beerappa are not surviving, as parties to the proceedings.

¶80

vi) No order as to costs.

¶81

Sd/JUDGE

¶82

BRN/PHM

¶83

List No.: 1 Sl No.: 9

Smt. Muniyamma v. Smt. Subbalakshmamma

Case brief

What is this about?

What did the court decide?

Smt. Muniyamma v. Smt. Subbalakshmamma

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sri Manohar Gopal Vs Sri Ganesh Baliga

C. Doddaeeraiah Vs the State of Karnataka

Sri H Devaraj Vs Smt Farkunda

Kalleshappa S/O Poojar Shanthappa Vs Anasuyamma D/O Late Kariganur Lingappa

M R Shankaranarayana Vs M R Somashekar

Kumari G Jaganmatha Devi Vs Registrar of Co. Operative Societies