Plaintiffs sued for partition claiming half share under a 1969 Will in favour of their father and the defendant. The first appellate court found a registered partition deed had already divided the properties. The High Court dismissed the second appeal, confirming dismissal of the suit.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 17TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR JUSTICE ASHOK S.KINAGI
REGULAR SECOND APPEAL NO. 1064 OF 2015 (PAR)
BETWEEN:
Digitally signed by R DEEPA Location: HIGH COURT OF KARNATAKA
ALL ARE R/O KAGGANAHALLI VILLAGE, AVANI HOBLI, MULBAGAL TALUK KOLAR DISTRICT - 563 141
…APPELLANTS
(BY SRI. HARISH S., ADVOCATE FOR SRI. VINOD REDDY V. & N.S. SHESHADRI, ADVOCATES)
AND:
SRI THIPPAREDDY AGED ABOUT 64 YEARS S/O LATE NALLAREDDY KAGGANAHALLI VILLAGE AVANI HOBLI, MULBAGAL TALUK KOLAR DISTRICT - 563141.
…RESPONDENT
(BY SRI. B.N. UMESH, ADVOCATE)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 26.02.2015 PASSED IN RA.NO.1/2012 ON THE FILE OF THE PRL.DISTRICT & SESSIONS JUDGE, KOLAR, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 16.11.2011 PASSED IN OS.NO.12/2009 ON THE FILE OF THE SENIOR CIVIL JUDGE, MULBAGAL.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE ASHOK S.KINAGI
ORAL JUDGMENT
This regular second appeal is filed by the appellants challenging the judgment and decree dated 26.02.2015 passed in R.A.No.1/2012 by the learned Principal District Judge, Kolar.
their ranking before the trial Court. The appellants are the
plaintiffs, and the respondent is the defendant. The plaintiffs filed a suit for partition and separate possession of half share in the suit schedule properties.
It is the case of the plaintiffs that, the suit properties were owned and possessed by Sri Ramareddy and his wife. They had no issues. The father of plaintiff Nos.1 to 4 and husband of plaintiff No.5 namely Papireddy and the defendant, Thippareddy had looked after the said Ramareddy and his wife till their death and performed obsequies. The said Ramareddy and his wife executed a registered Will in respect of the suit schedule properties jointly in favour of the said Papireddy and Thippareddy. After the death of the testator, the beneficiaries/ propounder have been in joint possession and enjoyment as per the testamentary succession. Papireddy was entitled to a half share, and Thippareddy was entitled to the remaining half share in the suit schedule properties.
The said Papireddy died on 23.08.2003, causing upon his death, the plaintiffs, being the legal representatives, to have succeeded to the undisputed share in the suit schedule properties. The defendant had acted deceitfully to the interest of the plaintiffs and declined to effect partition of the suit properties and allot half share therein to the plaintiffs. Hence, the plaintiffs are constrained to file a suit for partition and separate possession.
the demise of the testator, the Will namely Papireddy and his wife Venkatamma, the testators of the Will i.e., the father of the plaintiffs and the defendant, had joint possession and enjoyment of the suit schedule properties as an absolute owner by way of testators. Subsequently, both Papireddy and Thippareddy partitioned the suit schedule properties, which are the subject matter of the registered Will dated 15.08.1969 executed by testators under a registered partition deed dated 17.12.1977. In the said partition, the properties mentioned in ‘A’ schedule were allotted to the defendant, and the properties mentioned in ‘B’ schedule were allotted to the share of plaintiffs. Further, on the date of the partition deed, both the plaintiffs and the defendant have put in possession of their respective properties, which were allotted to their share, since then, they are enjoying the properties separately. Till the death of Papireddy, he was in possession and enjoyment of ‘B’ Schedule properties. Similarly, the defendant is in possession and enjoyment of the ‘A’ schedule properties fallen to his share. The
defendant submits the defendant has spent a considerable amount out of his earnings to improve the properties that fell to his share and brought the said properties for cultivation. The defendant raised a loan in Pragathi Gramina Bank, Balla Branch, Mulbagal Taluk, on the security of item Nos.1 and 8 of the suit schedule properties to an extent of his share. On the basis of revenue entries, the names of the fathers of the plaintiffs and the defendant are entered in the revenue records. The plaintiffs and the defendant are not the members of the Hindu undivided family, and the suit schedule properties are not the joint family properties of the plaintiffs and the defendant. It is contended that the suit filed by the plaintiffs is barred by limitation. Hence, prays to dismiss the suit.
the parties framed the relevant issues.
NC: 2024:KHC:38490 RSA No. 1064 of 2015
Exs.P1 to P34. In rebuttal, the defendant examined as DW.1 and got marked 6 documents as Exs.D1 to D6 and also examined two witnesses as DW.2 and DW.3. The trial Court after recording the evidence, hearing on both side and on assessment of oral and documentary evidence, decreed the suit of the plaintiffs, declaring that the plaintiffs are entitled to half share in the suit schedule properties. The defendant also entitled to half share in the suit schedule properties. The defendant, aggrieved by the judgment and preliminary decree passed in O.S.No.12/2009 preferred an appeal in R.A.No.1/2012 on the file of learned Principal District Judge, Kolar.
parties framed the points for consideration.
the oral and documentary evidence, allowed the appeal and set aside the judgment and preliminary decree passed by the trial Court and consequently, dismissed the suit of the plaintiffs. The plaintiffs aggrieved by the judgment and
decree passed in R.A.No.1/2012 by the learned Prl. District
Judge, Kolar, have filed this regular second appeal.
Ex.P1 properly. Hence, on these grounds, he prays to allow the appeal.
the suit schedule properties in favour of the father of the plaintiffs and the defendant, Ex.P2 is the demand register extract, Ex.P3 is the assessment register extract, Exs.P4 to P34 are the pahanies. In the course of crossexamination, it was elicited that the partition was effected between the father of the plaintiffs and the defendant and a registered partition deed was executed.
father of the plaintiffs, during his lifetime, he did not challenge the registered partition deed dated 17.02.1977.
In the said partition, ‘A’ schedule properties were allotted to the share of the defendant and ‘B’ schedule properties were allotted to the share of the father of the plaintiffs, and on the basis of the said registered partition deed, the father of the plaintiffs and the defendant were put in possession of their respective shares. Even after the death of Papireddy, the plaintiffs have not challenged the registered partition deed dated 17.02.1977. When there was an already partition, the properties were divided between Papiereddy and Thippareddy, and their names are appearing in the RTC extract. The plaintiffs and the defendant are not members of the Hindu undivided family. The First Appellate Court, considering the entire evidence on record, has rightly held that there was a prior partition between the father of the plaintiffs and the defendant as per the partition deed dated 12.02.1977 as per Ex.D2, and the plaintiffs and the defendants are not the members of Hindu Undivided Family and rightly passed the impugned
NC: 2024:KHC:38490 RSA No. 1064 of 2015
judgments. Hence, I do not find any error in the impugned judgments or any substantial question of law that arises
for consideration in this appeal.
I proceed to pass the following:
ORDER
The appeals are dismissed .
The judgment and decree passed by the First Appellate Court in R.A.No.1/2012 is confirmed.
No order as to the costs.
Sd/(ASHOK S.KINAGI) JUDGE
SSB
1 issue framed by the court
Whether a prior registered partition deed between the plaintiffs' father and the defendant divided the suit properties, barring a suit for partition.
1 provisions across 1 enactments
Sri Ramesh Reddy
Sri Suresh Reddy
Sri Lakshmana Reddy
Sri Anjaneya Reddy
Sri Muddamma
Sri Thippareddy
Ashok S. Kinagi
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
