Dismissed

Smt C Rudramma D/O Late Chalavadi Lingappa v. C Rudrappa S/O Late Chalavadi Lingappa

Karnataka HC22 Jun 2024RSA/100913/2023

Case brief

AI extract

What is this about?

Second appeal by defendant against concurrent decrees granting her, her brother and mother one-third shares each in their deceased father's property under the Hindu Succession Act. Court found no substantial question of law; dismissed appeal along with applications for condonation of delay and stay.

What the court decided

AI extract

Smt C Rudramma D/O Late Chalavadi Lingappa Vs C Rudrappa S/O… — Partition | Karnataka HC (2024)

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NC: 2024:KHC-D:8447 RSA No. 100913 of 2023

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 22^ND DAY OF JUNE, 2024

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BEFORE

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THE HON'BLE MR JUSTICE C.M. POONACHA

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REGULAR SECOND APPEAL NO. 100913 OF 2023 (PAR-)

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BETWEEN:

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SMT. C.RUDRAMMA D/O LATE CHALAVADI LINGAPPA AGE: 52 YEARS, OCC: HOUSEHOLD WORK/ DEVADASI, R/O. 4TH WARD, OLD DAROJI, TQ. SANDUR-583129, DIST. BALLARI.

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…APPELLANT

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(BY SRI R.H.ANGADI, ADVOCATE)

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AND:

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C. RUDRAPPA S/O LATE CHALAVADI LINGAPPA AGE: 54 YEARS, OCC: AGRICULTURIST, R/O. WARD NO.17, CHALAVADI KERE-583201, HOSAPETE, TQ: HOSAPETE, DIST. BALLARI.

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Digitally signed by SAROJA HANGARAKI Location: HIGH COURT OF KARNATAKA DHARWAD BENCH DHARWAD

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SMT. CHALAVADI GANGAMMA W/O LATE CHALAVADI LINGAPPA AGE: 79 YEARS, OCC: HOUSEHOLD WORK, R/O. WARD NO.17, CHALAVADI KERE 583201, HOSAPETE, TQ. HOSAPETE, DIST. BALLARI

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…RESPONDENTS

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THIS RSA IS FILED U/S. 100 OF CPC, PRAYING TO SET ASIDE THE IMPUGNED JUDGMENT AND DECREE PASSED IN RA NO.18/2021, DATED 07.01.2023, BY THE SENIOR CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, KUDLIGI, SITTING AT SANDURU, CONFIRMING THE JUDGMENT AND DECREE IN OS NO.48/2019, DATED 23.11.2020, BY THE CIVIL JUDGE AND JUDICIAL MAGISTRATE FIRST CLASS, SANDURU AND CONSEQUENTLY DISMISS THE SUIT OF THE PLAINTIFFS TO MEET THE ENDS OF JUSTICE.

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NC: 2024:KHC-D:8447 RSA No. 100913 of 2023

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

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JUDGMENT

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The present second appeal is filed by the defendant under Section 100 of Code of Civil and Procedure, 1908¹ challenging the judgment and decree dated 07.01.2023 passed in R.A No.18/2021 by the Senior Civil Judge and JMFC, Kudligi, Sitting at Sandur² and the judgment and decree dated 23.11.2020 passed in O.S No.48/2019 by the Civil Judge and JMFC, Sandur³ , whereunder, the suit for partition has been decreed by the Trial Court, which is affirmed by the First Appellate Court.

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Along with the above appeal, I.A No.1/2023 is filed for condonation of delay of 150 days in filing the appeal. In the affidavit accompanying the application, it is deposed that the appellant was suffering from high fever and cold and the Doctor has advised him to take rest. In this process, he did not contact his advocate to file the appeal within time. It is relevant to note that no medical certificate is produced along with the said application in support of the reasons mentioned. In order to favorably consider I.A No.1/2023, the merits of the matter has

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1 Hereinafter referred to as ‘CPC’

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2 Hereinafter referred to as the ‘First Appellate Court’

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3 Hereinafter referred to as the ‘Trial Court’

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3 - NC: 2024:KHC-D:8447 RSA No. 100913 of 2023

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also been considered and submissions of the learned counsel for the appellant was heard for admission.

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The parties will be referred to as per their ranking before the Trial Court, for the sake of convenience.

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It is the case of the plaintiffs that plaintiff No.1 and the defendant are the children of plaintiff No.2 and deceased Chalavadi Lingappa. That the father of plaintiff No.1 and the defendant, during his lifetime, was issued Government patta of the suit schedule property and accordingly, the revenue records in respect of the suit schedule property was changed his name. That he cultivated the suit land till his lifetime and he died on 09.10.2003 leaving behind the plaintiffs and defendant has his legal heirs. That after the death of father of plaintiff No.1, the plaintiffs and defendant continued as the Hindu Joint Family members and cultivated the suit property jointly.

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It is the further case of the plaintiffs that the defendant, without the knowledge and consent of the plaintiffs, got mutated the suit schedule property in her name in the year 2015-2016 as per MR No.H102/2015-2016 and this fact came to the knowledge of the plaintiffs and they demanded for partition of the suit properties. That the defendant denied to

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NC: 2024:KHC-D:8447 RSA No. 100913 of 2023

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give the share to the plaintiffs. Hence, the plaintiffs have filed the suit for partition. After issuance of suit summons, the defendant entered appearance through her counsel. However, she did not filed any written statement.

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The Trial Court framed the following points for consideration:

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i. “Whether the plaintiffs proves that, the deceased Chalavadi Lingappa having the property in his name?

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ii. Whether the deceased Chalavadi Lingappa died intestate?

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iii. Whether the plaintiffs are having equal share in the suit schedule property?

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iv. What order or decree?”

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1. The plaintiff No.1 examined himself as PW.1. Ex.P1 to

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Ex.P13 were marked.

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The Trial Court by its judgment and decree dated 23.11.2020, decreed the suit and passed the following order:

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“The suit of plaintiffs is decreed. The plaintiffs and defendant are equally having 1/3^rd share in the suit schedule property.

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By considering relationship of parties no order as costs.

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Draw preliminary decree accordingly.”

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5 - NC: 2024:KHC-D:8447 RSA No. 100913 of 2023

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1. Being aggrieved, the defendant preferred R.A

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No.18/2001. The First Appellate Court framed the following points for consideration:

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i. “Whether the appellant proves that she was not provided sufficient opportunity by the Trial Court to contest the suit and therefore the impugned judgment is liable to be set-aside and remanded to the Trial Court by permitting her to file written statement and to contest the suit?

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ii. Whether the appellant proves that interference with the judgment and decree passed by the Trial Court is necessary?

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iii. What order or decree?”

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The First Appellate Court by its judgment and decree dated 07.01.2023, dismissed the appeal filed by the defendant with cost. Being aggrieved, the present second appeal is filed.

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Learned counsel for the appellant vehemently contends that the defendant did not have an opportunity to contest the suit and hence, an opportunity be afforded. He further contends that both the Courts have concurrently erred in decreeing the suit of the plaintiff.

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The submission of learned counsel for the appellant has been considered and the material on record has been perused.

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6 - NC: 2024:KHC-D:8447 RSA No. 100913 of 2023

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It is relevant to note that the Trial Court upon a reappreciation of the oral and documentary evidence on record has recorded findings that the suit property was standing in the name of deceased Chalavadi Lingappa and he died intestate and that the plaintiffs and defendant are the Class-I heirs of the deceased. The Trial Court noticing Sections 8, 9 and 10 of the Hindu Succession Act, 1956⁴ , held that the plaintiffs and the defendant are having 1/3^rd share each in the suit schedule property.

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Aggrieved by the judgment and decree passed by the Trial Court, the defendant preferred R.A No.18/2021 before the First Appellate Court. Having regard to the fact that the defendant had entered appearance through her counsel before the Trial Court and did not file any written statement, since the first appeal has been preferred invoking Section 96 of the CPC, the defendant ought to have averred before the First Appellate Court, the grounds on which the judgment and decree of the Trial Court was required to be set aside. It was incumbent on the defendant to set out the case of the defendant on merits before the First Appellate Court. However, it is forthcoming

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4 Hereinafter referred to as the ‘Act of 1956’

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7 - NC: 2024:KHC-D:8447 RSA No. 100913 of 2023

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from the judgment of the First Appellate Court that the defendant has not set out any defence in opposition to the case put forth by the plaintiffs in the plaint.

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It is further relevant to note that neither before the First Appellate Court nor before this Court, the defendant has disputed the case put forth by the plaintiffs, that the property was the absolute property of their father Chalavadi Lingappa. The relationship between the parties is also not disputed.

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The First Appellate Court upon a re-appreciation of the oral and documentary evidence on record has held that despite adequate opportunity, the defendant did not file any written statement before the Trial Court. Further the First Appellate Court noticed that the suit schedule property was granted in favour of the deceased Chalavadi Lingappa and he left behind as his legal representatives, the plaintiffs and the defendant and they are entitled to 1/3^rd share each in the suit property. Hence, the First Appellate Court held that no useful purpose would be served in remanding the matter to the Trial Court. Hence, the First Appellate Court has dismissed the appeal of the defendant with cost.

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8 - NC: 2024:KHC-D:8447 RSA No. 100913 of 2023

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It is forthcoming from the aforementioned the fact that the property having been granted in favour of deceased Chalavadi Lingappa is not disputed by the defendant. Further, the fact that the plaintiff No.1 and defendant are the children of deceased Chalavadi Lingappa, as also the plaintiff No.2 being the mother of the plaintiff No.1 and the defendant is undisputed. It is thus clear that the parties are the sole surviving legal heirs of the propositus Chalavadi Lingappa. Hence, the Trial Court has rightly noticed the relevant provisions of the Act of 1956 and held that they are entitled to 1/3^rd share each.

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The First Appellate Court was justified in recording the finding that no useful purpose would be served, if the matter is remanded to the Trial Court. The findings recorded by the First Appellate Court affirming the judgment and decree of the Trial Court is just and proper.

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The appellants have failed in demonstrating that the concurrent findings recorded by both the Courts are contrary to any specific, oral or documentary evidence on record. The appellants have failed in demonstrating that any substantial question of law arises for consideration in the above appeal.

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NC: 2024:KHC-D:8447 RSA No. 100913 of 2023

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In view of the aforementioned, no useful purpose would be served in favourably considering I.A No.1/2023. Hence, I.A No.1/2023 is dismissed and consequently, the above appeal is dismissed.

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In view of the dismissal of the appeal, I.A No.2/2023 for stay is also dismissed.

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Sd/JUDGE

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PMP CT:GSM List No.: 1 Sl No.: 26

Smt C Rudramma D/O Late Chalavadi Lingappa v. C Rudrappa S/O Late Chalavadi Lingappa

Case brief

What is this about?

What the court decided

Smt C Rudramma D/O Late Chalavadi Lingappa v. C Rudrappa S/O Late Chalavadi Lingappa

Case brief

What is this about?

What the court decided

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Issues for consideration

Statutes considered

Parties & counsel

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