Partition appeal by daughter challenging trial court's refusal to grant her share in 2 acres alienated by her father via a 1976 sale deed to his sons-in-law. The High Court held the decades-delayed challenge untenable and dismissed the appeal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
NC: 2024:KHC:39412 RFA No. 928 of 2015
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 23RD DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA REGULAR FIRST APPEAL NO. 928 OF 2015 (PAR)
BETWEEN:
SMT. DEVAMMA, D/O H. SANNA SHETTY, CHIKKAMMA SHEDTHI, W/O KARIYAIAH, AGED ABOUT 69 YEARS, RESIDENT OF HALEGOTE VILLAGE, VIA HEBBALE, KUSHANAGAR HOBLI, SOMWARPET TALUK - 571 236, KODAGU DISTRICT, REPRESENTED BY HER GPA HOLDER SRI. BRAHMA.
…APPELLANT
(BY SRI. RANJAN KUMAR K, ADVOCATE)
AND:
Digitally signed by MALATESH K C Location: HIGH COURT OF KARNATAKA
RESPONDENT NO.1 AND 2 ARE RESIDING AT HALEGOTE VILLAGE, VIA HEBBALE,KUSHANAGAR HOBLI, SOMWARPET TALUK - 571 236, KODAGU DISTRICT.
D/O H. SANNA SHETTY, W/O BHEMMAIAH, AGED 65 YEARS, RESIDING AT KANAKA BLOCK, HEBBALE VILLAGE, KUSHANAGAR HOBLI,
NC: 2024:KHC:39412 RFA No. 928 of 2015
SOMWARPET TALUK - 571 236, KODAGU DISTRICT.
THIS RFA IS FILED UNDER SEC. 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 13.03.2015 PASSED IN OS NO. 129/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE, MADIKERI PARTLY DECREEING THE SUIT FOR PARTITION, SEPARATE POSSESSION AND FOR CANCELLATION OF SALE DEED.
THIS APPEAL, COMING ON FOR HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE V SRISHANANDA
ORAL JUDGMENT
Plaintiff’s appeal challenging the validity of the judgment and decree passed in O.S.No.129/2010, being aggrieved by denying the share in item No.1 of the suit properties to the extent of 2 acres.
“Sy.No.37 measuring 2.70 acres of lands assessed at Rs.19.81 of Sagu Kushki lands situated at Halegote village, Hebbale post, Somwarpet Taluk, Kodagu District.”
necessary for disposal of the appeal are as under:
3.1. Suit properties originally belonged to one
Harijana Shetty, which he had acquired from his ancestors. He had two sons viz., Shetty Kariya and Harijana Sanna Shetty.
3.2. Parties pleaded that there was a partition between Shetty Kariya and Harijana Sanna Shetty but the pleadings are not clear as to when the said partition has
taken place. Harijana Sanna Shetty who is the father of plaintiff, said to have borrowed some loan and to repay the said loan, he sold portion of item No.1 of the suit properties to the extent of 2 acres to his sons in law viz., Bheemaiah and Kamaiah by virtue of a registered sale deed dated 10.05.1976.
3.3. Genealogical tree is culled out hereunder for the sake of convenience and clarity:
Harijana Shetty (Died)
Shetty Kariya (Died) Harijana Sanna Shetty (Died) Swamy (Defendant No.1)
Devaraju Devamma Kalamma Devaramma (Defendant No.2) (Plaintiff No.1) (Defendant No.3)
Shobha (Defendant No.4)
3.4. Devamma being the eldest daughter of Harijana
Sanna Shetty, filed a suit seeking relief of partition in respect of all the suit properties by contending that her
father Harijana Sanna Shetty had no authority to sell the portion of item No.1 of the suit properties in favour of his sons in law, who are the husband of defendant Nos.3 and father of defendant No.4.
defendants appeared and filed written statement admitting the relationship among the parties.
cannot seek share to the entire extent of 2 acre 70 cents in item No.1 of the suit properties.
NC: 2024:KHC:39412 RFA No. 928 of 2015
learned Trial Judge raised following issues:
1. Whether the plaintiff proves that the suit schedule properties are the ancestral properties of plaintiff and the defendants No.1 to 4 and they are in joint possession and enjoyment of the same?
2. Whether the plaintiff is having 1/5th share in the suit schedule properties?
3. Whether the plaintiff proves that, the sale deed dated 10-05-1976 purported to be executed by his father and father of defendant No.3 and grand father of defendant No.4 is null and void and not binding on the plaintiff?
4. Whether the plaintiff is entitled for partition and separate possession of his share by metes and bounds as prayed in the suit?
5. Whether the defendants No.1 to 3, 4 and 6 prove that one H.Sanna Shetty who is father of the plaintiff and defendant No.3 and his brother Shetty Kariya have partitioned the properties inherited by them from their father Harijana Shetty during their life time?
6. Whether these defendants further prove that the said Sanna Shetty was allotted an area of 2.00 acres in Sy.No.37 forming the northern portion of item No.1 of the plaint schedule property along with other properties and the said Sanna Shetty who clear the loan dues to Canara Bank, Hebbale and develop his other properties and also for legal necessity sold the said area to defendants No.5 and 6 for valid sale consideration on 10-05-1976?
7. Whether the suit is bad for non-joinder of necessary parties?
NC: 2024:KHC:39412 RFA No. 928 of 2015
8. Whether the plaintiff is entitled for the reliefs as prayed for?
9. What order or decree?
documentary evidence placed on record, learned Trial Judge heard the arguments of the parties. Thereafter, decreed the suit of the plaintiff in part.
“The suit of the plaintiff is partly decreed.
The suit schedule properties have to be divided into two equal shares. The total extent of the suit schedule properties is 8.58 acres. It has to be divided into 4.29 acres and 4.29 acres. One portion of half share i.e., 4.29 acres has to be allotted to the legal heirs of Harijana Sanna Shetty. In that half share 2.00 acres has to be allotted to defendants No.5 and 6 as per sale deed dated 10.05.1976. In the remaining extent, the plaintiff is entitled for 1/3rd share.
The claim of the plaintiff in respect of cancellation of sale deed dated 10.05.1976 is dismissed.
No order as to mesne profit.
Under the facts and circumstances of the case, no order as to costs.
Draw preliminary decree accordingly.”
NC: 2024:KHC:39412 RFA No. 928 of 2015
respect of item No.1 of the suit properties in entirety, the
plaintiff is in appeal on following grounds:
NC: 2024:KHC:39412 RFA No. 928 of 2015
appellant reiterating the grounds urged in the appeal memorandum, contended that the Trial Court erred in not decreeing the suit in its entirety and therefore, sought for allowing the appeal.
NC: 2024:KHC:39412 RFA No. 928 of 2015
and 6 managed to cajole the father of the plaintiff and get a normal sale deed executed in their favour vide Ex.P.4. Therefore, she has also got a right over the suit property.
NC: 2024:KHC:39412 RFA No. 928 of 2015
1. Whether the plaintiff has made out a case for decreeing the suit in its entirety?
2. Whether the plaintiff is entitled for the share as claimed in the suit including item No.1 in its entirety?
3. Whether the impugned judgment is suffering from legal infirmity or perversity?
4. What order?
REG.POINT Nos.1 TO 3:
NC: 2024:KHC:39412 RFA No. 928 of 2015
years when the Hindu succession Act, 1956 came into force, if at all, if she is aggrieved by the alienation that has been taken place on 10.05.1976 by her father, she should have questioned that alienation within three years thereafter. Admittedly, suit is filed in the year 2010. A sale deed of the year 1976, is called in question in the year 2010.
relied upon by the plaintiff which is marked at Ex.P.4, itself there is a clear recital that item No.1 of the suit property
NC: 2024:KHC:39412 RFA No. 928 of 2015
absolutely belonged to Harijana Sanna Shetty. In his lifetime, he did not challenge the said sale deed.
as under:
“The cause of action for the suit arose on first week of November 2010 and 13-11-2010 at Halegote Village, Somwarpet Taluk, Kodagu Distrcit within the jurisdiction of this Hon’ble Court.”
10.05.1976, the averments made in the cause of action paragraph as referred to supra has no meaning whatsoever and therefore, it is an imaginary cause of action at least insofar as the alienation that has taken place as per Ex.P.4. Revenue entries were mutated and parties have enjoyed the properties all those years without any hindrance.
NC: 2024:KHC:39412 RFA No. 928 of 2015
REG.POINT No.4:
NC: 2024:KHC:39412 RFA No. 928 of 2015
ORDER
Sd/(V SRISHANANDA)
JUDGE
KAV List No.: 1 Sl No.: 58 CT: BHK
2 issues framed by the court
Whether the plaintiff was entitled to a share in the entirety of item No.1 including the 2 acres sold by her father in 1976?
Whether the trial court judgment suffered from legal infirmity or perversity?
2 provisions across 2 enactments
SMT. DEVAMMA
SWAMY
DEVARAJU
KAMALAMMA
SHOBHA
BHEEMAIAH
V SRISHANANDA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
