Defendants in a partition suit appealed against a decree granting the plaintiffs one-half share. The High Court held Muniyanna, brother-in-law of ancestor Byrappa, was not a coparcener and the unproved Panchayat Parikhat could not support the claimed earlier partition; appeal dismissed.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 15TH DAY OF FEBRUARY, 2024
PRESENT
THE HON'BLE MR JUSTICE KRISHNA S DIXIT
AND
THE HON'BLE MR JUSTICE G BASAVARAJA REGULAR FIRST APPEAL NO.669 OF 2014 (PAR)
BETWEEN:
Digitally signed by SANDHYA S
Location: High Court of Karnataka
AGED ABOUT 15 YEARS, BEING MINOR REPRESENTED BY HER MOTHER AND NATURAL GUARDIAN SMT. SUSHEELA
…APPELLANTS
(BY SRI. S.P.SHANKAR, SENIOR COUNSEL A/W SRI. NAGARAJA S., ADVOCATE)
AND:
ALL THE RESPONDENTS R/AT NAGENAHALLI VILLAGE SINGANAYAKANAHALLI POST, YELAHANKA HOBLI, BANGALORE-560063.
…RESPONDENTS
(BY SRI. PHANIRAJ KASHYAP, ADV. FOR R1 TO R3, SRI. M.V.JAYAKEERTHI, ADVOCATE FOR R4 TO R7.)
THIS RFA IS FILED UNDER SEC.96 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 6.3.2014 PASSED IN O.S.NO.952/2010 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT-II, BANGALORE RURAL DIST, BANGALORE, DECREEING THE SUIT FOR PARTITION & SEPARATE POSSESSION.
THIS APPEAL, COMING ON FOR FINAL HEARING, THIS DAY, KRISHNA S. DIXIT J., DELIVERED THE FOLLOWING:
JUDGMENT
The appellants being the defendants in a Partition Suit in O.S.No.952/2010 have presented this appeal for laying a challenge to the judgment & decree dated 06.03.2014 entered by the learned Judge of Fast Track Court-II, Bengaluru Rural District, Bengaluru whereby the suit having been decreed in terms of the plaint prayer and no share in the property is granted to them.
(a) Respondents 1, 2 & 3 had filed the subject suit for a decree of partition & separate possession of their one-half share in the suit schedule properties. The appellants being the Defendant Nos. 5 to 11 had filed the Written Statement resisting the suit. On the basis of pleadings of the parties and the documents accompanying the same, learned Judge had framed as many as three principal issues that related to nature of the suit property, earlier partition as pleaded by these appellants and the valuation of the property for the purpose of jurisdiction & court fee.
(b) From the side of Plaintiffs, the 2nd respondent herein being the 2nd Plaintiff in the court below got himself examined as PW-1; in his deposition as many as 24 documents came to be marked as Exhibits P-1 to P-24, of them P-1 & P-2 were genealogical trees and P-3 was a certified copy of registered Sale Deed dated 28.02.1960.
Ex.P-4 was death certificate of B.Narayanappa, Ex.P-5 to
P-14 were RTCs; P-15 to P-22 were medical reports; P-23
& P-24 were the Police Complaints.
(c) From the defendant’s side the 7th appellant herein Mr.Kempegowda who was Defendant No.11 in the suit got examined as DW-1 and 13 documents came to be marked in his deposition as Exhibits D-1 to D-13. Ex.D-1,
D-3 & D-4 were the registered sale deeds respectively dated 03.11.2004, 20.11.1935 & 28.02.1967; Ex.D-2 happened to be the geanological tree; Ex.D-5 was Panchayat Parikath dated 22.07.2004; Ex.D-6 to D-8 are Mutation Register extracts; Ex.D-9 to D-13 were RTCs.
(d) Learned Trial Judge having heard the submissions of both the sides and having considered pleadings of the parties made evidentiary material on record, has granted the judgment & decree that are put in challenge.
appellants vehemently argues that his clients too being the persons claiming under the then coparceners, ought to have been granted one share since they were one of the three branches of the family and therefore to the extent of denial of any share, the impugned judgment & decree are unsustainable. In support of this contention he pressed into service the earlier partition at Ex.D-5 dated 22.07.2004 in support of his contention. He drew our attention to the family tree vide Ex.D-1. Learned counsel appearing for the respondents vehemently contest the assertion of the appellants drawing attention to the admission of the appellants side in para 6. They also take us to the evidentiary material discussed by the learned Trial Judge and seek dismissal of the appeal.
impugned findings. Originally the suit properties belonged to one Mr.Chikkakempanna and Mr.Byanna who were the ancestors of Appellants. These two persons had sold the suit properties to Annayappa vide registered sale deed dated 20.12.1935; one Mr.Byrappa bought the very same properties from Annayappa vide registered sale deed dated 28.02.1960. This Byrappa had married Smt.Muniyamma. Mr.Muniyanna is the brother of Smt.Muniyamma. Therefore he cannot be a coparcener of Byrappa’s family. This sale deed does not say anything about Muniyanna at all. The contention that Mr.Byrappa had bought the property for the benefit of the joint family is not vouched by any evidence whatsoever. Merely because Muniyanna being a brother-in-law was permitted to reside in the house of Byrappa, he does not partake the character of coparcener/co-owner, as rightly held by the court below. That being the position, the suit schedule properties have devolved upon the plaintiffs and defendant nos. 1 to 4 being the grand children of deceased Byrappa.
contended by these appellants, the name of Muniyanna who was still alive as on that day would have figured in the said document as rightly observed by the court below. Ex.D-5 is disbelieved by the Court below because Narayanappa was shown to be a man of LTM and not any signature. Even in Ex.D-1 which is a registered sale deed dated 03.11.2004, Narayanappa had affixed his LTM and not signature, whereas document at Ex.D-5 admittedly does not bear any LTM, but carries some signature purporting to be of Naryanappa. Strangely, Ex.D-1 is produced by none other than DW-1 Mr.Kempegowda who happens to be appellant no.7 herein and was defendant no.11 in the suit. This apart, the said document is not registered. There is absolutely no explanation as to why this document does not mention anything about Muniyanna, who according to the appellants herein was a member of coparcener.
contend that the memorandum of family arrangement
even when not registered, will be binding upon the parties thereto if the same has been acted upon. The decision in TULASIDHARA vs. NARAYANAPPA, (2019) 6 SCC 409
only reiterates the said proposition. There is no quarrel with this proposition of law. But, the Panchayat Parikhat at Ex.D-5 having not been proved, there is no scope for invoking the ratio of this decision. Even if Muniyanna was not having any antecedent title to the suit property, arguably a share could have been given to him had he been shown to be a member of the family in whose veins the blood of plaintiffs ancestors was flowing. However, that is not the case since he happen to the brother of Muniyamma who was wife of Byrappa. Even aliya santaana law or the like also would not come to the aid of appellants since they are not from Dakshina Kannada or Kerala region wherein such a law obtains; added, Muniyanna was not the son-in-law of Byrappa but his brother-in-law.
NC: 2024:KHC:6548-DB RFA No.669 of 2014
In the above circumstances, this appeal being devoid of merits is liable to be dismissed and accordingly it
is.
Sd/JUDGE
Sd/JUDGE
LNN List No.: 1 Sl No.: 48
2 issues framed by the court
Whether the appellants, claiming under Muniyanna who was the brother-in-law of Byrappa, were entitled to a share in the suit schedule properties as members of the coparcenary.
Whether the unregistered Panchayat Parikhat evidencing an earlier family arrangement was proved and binding.
Colour shows how this judgement treated each authority
Kale & Others vs Deputy Director of ConsolidationDistinguished¶7
AIR 1976 SC 807 · Who else cites this
Tulasidhara vs NarayanappaReferred¶7
(2019) 6 SCC 409 · Who else cites this
1 provisions across 1 enactments
Smt Lakshamma
Smt Susheela
Kumari Shalini N A
Master Vikas
N M Shivanna
Sri N M Ashok
Krishna S Dixit
G Basavaraja
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
