Second appeal by defendant's legal representatives challenging decree granting plaintiff one-third share in joint family properties, contending an unregistered 1990 Palu Parikath effected partition and suit was time-barred. Court found plaintiff did not sign or act on the document and dismissed the appeal at admission.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF AUGUST, 2024 BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH REGULAR SECOND APPEAL NO.1116/2024 (DEC/PAR)
BETWEEN:
Digitally signed by RUPA V Location: HIGH COURT OF KARNATAKA
BOTH ARE R/AT ALANHALLI VILLAGE OPP. BASAVANAGUDI MYSURU TALUK.
…APPELLANTS
(BY SRI. S.P. KULKARNI, SR. COUNSEL FOR SRI. VASANTHAKUMAR K.M. ADV.,)
AND:
W/O LATE SHIVANNA AGED ABOUT 72 YEARS R/AT ALANHALLI VILLAGE MYSURU TALUK AND DISTRICT.
RESPONDENTS 5, & 6 ARE R/AT NO.2872, 2ND CROSS PAMPAPATHI ROAD SARASWATHIPURAM MYSURU-570 001.
…RESPONDENTS
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 25.04.2024 PASSED IN RA NO.39/2023 ON THE FILE OF THE V ADDITIONAL DISTRICT JUDGE, MYSURU, DISMISSING THE APPEAL AND FILED AGAINST THE JUDGMENT AND DECREE DATED 12.01.2023 PASSED IN OS.No.552/2006 ON THE FILE OF THE PRINCIPAL JUDGE, COURT OF SMALL CAUSES, MYSURU.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH
ORAL JUDGMENT
This appeal is preferred by legal representatives of defendant No.1 challenging the judgement and decree dated 25.04.2024 passed in R.A.No.39/2023 on the file of V Additional District Judge, Mysuru, confirming the judgement and decree dated 12.01.2023 passed in O.S.No.552/2006 on the file of Principal Judge, Court of Small Causes, Mysuru.
referred to as per their ranking before the Trial Court.
4 and 6 of the schedule properties are the self acquired
properties of her father and item No.5 was acquired out of the income derived from the joint family properties. Accordingly, it is contended by the plaintiff that, the plaintiff is entitled for share in the suit schedule properties. It is further stated in the plaint that the plaintiff, late C.Lingappa and late C.Basappa are the children of Chikkachannaiah and therefore they constitute the joint family. It is the case of the plaintiff that defendant No.2 has sold item No.4 of the schedule property in favour of defendant No.3 without the consent of the plaintiff and therefore, the plaintiff has filed the suit seeking relief of partition and separate possession in respect of the suit schedule properties.
ancestral properties of plaintiff and defendant Nos.1 and 2. The defendant No.4 has purchased the schedule property as per the registered sale deed for valuable consideration.
NC: 2024:KHC:33424 RSA No.1116 of 2024
and produced 52 documents and same were marked as Exs.D-1 to D-52.
NC: 2024:KHC:33424 RSA No.1116 of 2024
8. I have heard Sri.S.P.Kulkarni, learned Senior
Counsel appearing on behalf of Sri. Vasantha Kumar K.M., learned counsel for the appellants.
share in item Nos.1, 2, 3 and 6 of suit schedule properties in favour of the plaintiff. In this regard he refers to the judgment of this Court in the case of Rangahanumaiah now dead by LRs vs. Devaraju and others reported in 2023(5) KCCR 289 and submits that both the Courts below have erred in answering the issue regarding limitation and therefore, he sought for interference of this Court. He also refers to the judgment of this Court in the case of K.C.Thimma Reddy vs. K.Govinda Reddy reported in 1999 (1) KLD 496 and submits that both the Courts below have arrived at a conclusion that Ex.D-49 is unregistered document and same cannot be admitted and the said finding is contrary to the judgment of this Court referred to above and accordingly sought for interference of this Court. He also referred to the evidence of PW-1 and submitted that PW-1 herself has admitted about the division of properties on 20.11.1990 and as such, learned Senior Counsel appearing for the appellants submitted that the finding recorded by both the Courts below requires to
be interfered with under Section 100 of Code of Civil
Procedure and accordingly sought for interference.
the parties, the Genealogical Tree is extracted below:
Genealogical Tree
Chikkachennaiah (Died)
Deviramma (Died) _____________________________ C.Lingappa (Died) C.Basappa (Died) Gowramma Rathnamma Kempammani (Died) _______________ Maheshwari L.Mahadevaswami L.Shailaja
are the children of Chikkachannaiah. It is not in dispute that the suit schedule properties are the joint family properties of the parties. It is the contention of the plaintiff that she is entitled for 1/3rd share in the suit schedule properties. On the other hand, the defendant Nos.1 and 2 have urged in the written statement that there was an oral partition between the parties and same was reduced into writing on 20.11.1990 - Ex.D-49 and the same has been acted upon by the parties and therefore sought for dismissal of the suit.
NC: 2024:KHC:33424 RSA No.1116 of 2024
that on the basis of the oral partition same was reduced into writing during the year 1990, however, the perusal of Ex.D-49 would indicate that there is no recital regarding the earlier partition entered into between the parties. Since the said partition has not been acted upon by the parties and further as the plaintiff is not a signatory to the said document as well, the finding recorded by the Trial Court is just and proper, decreeing the suit of the plaintiff insofar as item Nos.1, 2, 3 and 6 of the schedule properties are concerned which are the properties belonging to the plaintiff and defendant Nos.1 and 2 along with their father. In that view of the matter, the finding recorded by the Trial Court is justified.
NC: 2024:KHC:33424 RSA No.1116 of 2024
division of properties, however, she has deposed voluntarily that there was no partition in respect of the suit schedule properties. In that view of the matter, the findings recorded by both the Courts below that the suit is not barred by time, is just and proper and the same does not require interference in this appeal. Accordingly, the judgments referred to by the learned Senior Counsel appearing for the appellants are not applicable to the case on hand as Ex.D-49 has not been acted upon by the parties. That apart, there is no recital in Ex.D-49 relating to the oral partition referred to by the defendants in the written statement. In that view of the matter as there is no reference or whisper about Ex.D-49 division of the properties at the behest of the parties, both the Courts below have rightly arrived at a conclusion that the plaintiff is entitled for 1/3rd share in item Nos.1, 2, 3 and 6 of the schedule properties and accordingly, appeal deserves to be dismissed at the stage of admission as the appellants have not made out a case for framing of substantial question of
NC: 2024:KHC:33424 RSA No.1116 of 2024
law as required under Section 100 of Code of Civil Procedure. Accordingly, appeal is dismissed.
Sd/(E.S.INDIRESH) JUDGE
BSR List No.: 1 Sl No.: 40
2 issues framed by the court
Whether the unregistered Palu Parikath (Ex.D-49) of 20.11.1990 evidences a partition that deprives the plaintiff of a share?
Whether the suit for partition is barred by limitation given the claimed 1990 division?
Colour shows how this judgement treated each authority
Rangahanumaiah now dead by LRs vs. Devaraju and othersDistinguished¶14
2023(5) KCCR 289
K.C.Thimma Reddy vs. K.Govinda ReddyDistinguished¶14
1999 (1) KLD 496
1 provisions across 1 enactments
Smt. Rathnamma
Sri. L. Mahadevaswamy
Smt. L. Shylaja
Smt. Gowramma
Smt. Maheshwari
Sri. K.V. Manjunatha Rao
E.S.Indiresh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
