Dismissed

Basavarajappa v. Navilappa

Karnataka HC12 Jun 2024RSA/1391/2013

Case brief

AI extract

What is this about?

This regular second appeal concerned a partition suit. The High Court held that since a prior partition was established as a fact, the validity of a deceased heir's will was irrelevant to the partition claim. The appeal was dismissed, maintaining the lower courts' finding that the suit was not maintainable. The Court reserved liberty for the plaintiff to file a separate suit regarding the deceased

What did the court decide?

The appeal was dismissed; the trial court judgment and first appellate court order were confirmed.

Basavarajappa Vs Navilappa — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:20835 RSA No. 1391 of 2013

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 12^TH DAY OF JUNE, 2024

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BEFORE

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THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ REGULAR SECOND APPEAL NO. 1391 OF 2013 (PAR)

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BETWEEN:

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BASAVARAJAPPA, S/O MELAPPA, AGED ABOUT 61 YEARS, AGRICULTURIST, R/O ARABILACHI VILLAGE, HOLEHONNUR HOBLI, BHADRAVATHI TALUK 577 301.

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…APPELLANT

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(BY SRI. PRASAD B.S., ADVOCATE)

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AND:

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Digitally signed by NARAYANAPPA LAKSHMAMMA Location: HIGH COURT OF KARNATAKA

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NAVILAPPA S/O THIMMAPPA, ARABILACHI VILLAGE, HOLEHONNUR HOBLI, BHADRAVATHI TALUK, DEAD BY LRS

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1(A). SMT NEELAMMA W/O LATE NAVILAPPA, AGED ABOUT 76 YEARS, OCC: HOUSE HOLD WORK, R/O ARABILACHI VILLAGE, BHADRAVATHI TALUK.

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1(B). K.N. DEVENDRAPPA S/O LATE NAVILAPPA, AGED ABOUT 56 YEARS.

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1(C). K.N. MANJAPPA, S/O LATE NAVILAPPA,

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2 - NC: 2024:KHC:20835 RSA No. 1391 of 2013

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AGED ABOUT 56 YEARS.

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1(D). K.N. CHANDRAPPA, S/O LATE NAVILAPPA, AGED ABOUT 54 YEARS.

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1(E). K.N. NAGARAJAPPA, S/O LATE NAVILAPPA, AGED ABOUT 52 YEARS.

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1(F). K.N. GADIGESHAPPA, S/O NAVILAPPA, AGED ABOUT 51 YEARS.

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1(G). K.N. NAGARATHNAMMA, D/O LATE NAVILAPPA, AGED ABOUT 46 YEARS.

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1(H). K.N. THIMMAPPA, S/O LATE NAVILAPPA, DEAD BY HIS LEGAL HEIR

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1(H)(A). SMT. BHAGYAMMA W/O LATE K.N. THIMMAPPA, AGED ABOUT 56 YEARS, ALL ARE R/O ARABILACHI VILLAGE, BHADRAVATHI TALUK, SHIMOGA DISTRICT 577 301.

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…RESPONDENTS

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(BY SRI. M.V. MAHESHWARAPPA, ADVOCATE FOR R1(D AND F); V/O DATED 27.09.2023, R1(A), R1(E), R1(G), R1(H)(A) H/S;

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R1(B), R1(D), R1(F) SERVED AND UNREPRESENTED; APPEAL AGAINST R1(C) ABATES

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT & DECREE DATED 13.3.2013 PASSED IN

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3 - NC: 2024:KHC:20835 RSA No. 1391 of 2013

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R.A.NO.127/2012 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, BHADRAVATHI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 31.3.2012 PASSED IN O.S.NO.141/2007 ON THE FILE OF THE ADDL. SR. CIVIL JUDGE & JMFC., BHADRAVATHI.

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

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JUDGMENT

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The appellant who is the plaintiff before the Trial Court in OS No.141/2007 is before this Court seeking for following reliefs:

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" IT IS THEREFORE PRAYED that, this Hon'ble High

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Court may be pleased to set-aside judgment and decree dated 13.03.2013 passed by the learned Fast Track Court, at Bhadravathi in R.A.No.127/2012 in confirming the judgment and decree dated 31.03.2012 passed by the Learned Addl. Senior Civil Judge, at Bhadravathi in O.S No.141/2007 in the interest of justice and equity"..

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In the suit in O.S No.141/2007 the plaintiff therein had sought for partition of the properties scheduled in the plaint claiming that the said properties are the joint family properties. The Trial court has come to the categorical conclusion that the plaintiff's father Melappa, defendants’ father Thimmappa and one other brother

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4 - NC: 2024:KHC:20835 RSA No. 1391 of 2013

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Nanjappa had already partitioned their properties in the year 1950, in terms of Ex.D5 and as such came to a conclusion that the partition having already been effected, the suit once again is filed for partition of the very same family and its properties was not maintainable. The further contention of the plaintiff that the defence taken by defendant No.1 i.e., uncle Nanjappa had bequeathed the property in his favour being challenged by the plaintiff, such challenge was rejected on the ground that the plaintiff was not claiming the right over property of Nanjappa, but was claiming partition of the entire properties and as such, the requirement to consider validity or otherwise of the Will of late Nanjappa would not arise. Challenging the same, the plaintiff filed an appeal in R.A. No.127/2012 which also came to be dismissed on 13.03.2013 for the very same reason. It is challenging the judgment of both the Trial Court and First Appellate Court that the appellant is before this Court.

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The contention of the Sri.Prasad.B.S., learned counsel for the appellant is that even if the partition were to be accepted, the plaintiff would have a right over the

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5 - NC: 2024:KHC:20835 RSA No. 1391 of 2013

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property of Nanjappa since the plaintiff occupied the similar possession as that of defendants both being the sons of the brothers of late Navilappa. As such validity or otherwise of the Will of Nanjappa was required to be gone into by the Trial Court and first Appellate Court, a finding thereon to be rendered, the same not having been done, his submission is that the judgment of both the Trial Court and the First Appellate Court are not in accordance with law and are required to be set aside.

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Learned counsel for respondent No.1(d and f) would submit that once the partition is admitted, the suit of the plaintiff was not maintainable in so far as the property which had fallen to the share of Nanjappa is concerned. Since the same form the separate and individual property of Nanjappa over which the plaintiff cannot claim any right, title and interest on account of he being a joint family member and as such, he submits that the judgment passed by the Trial Court and First Appellate Court being proper and correct, does not require any interference.

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6 - NC: 2024:KHC:20835 RSA No. 1391 of 2013

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Having heard both the counsel, I am of the considered opinion that there is no substantial question of law, which arises for consideration in the present matter requiring admission of the present matter inasmuch as the issue between the parties is one relating to fact, the factual aspect being whether the properties of the family have been partitioned or not, the Trial Court having come to the categorical conclusion that the in terms of Ex.D5, there was a partition effected between the members of the family and this aspect having attained finality, it cannot now be contended that the validity of the Will said to be executed by Nanjappa in favour of defendants, ought to have been considered by the Trial Court and First Appellate Court. The claim, if any, of the plaintiff as regards to the properties fallen to the share of Nanjappa cannot be said to be on account of the joint family property, the said claim could only be on account of survivorship as being a Class-II legal heirs of said Nanjappa which is now sought to be claimed in the suit and as such I am of the considered opinion that the Trial

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NC: 2024:KHC:20835 RSA No. 1391 of 2013

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Court would not be required to go into that aspect since it is not an issue in the suit.

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In that view of the matter, the above appeal stands

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dismissed .

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The Judgment and decree dated 31.03.2012 passed by the Trial Court in O.S. No.141/2007 and the order dated 13.03.2013 passed by the First Appellate Court in R.A. No. 127/2012 are confirmed.

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The plaintiff is however reserved liberty to file a suit, if so permissible and if and when filed, the Trial Court to consider the matter on the merits including that of limitation. All questions in respect of that claim are left open.

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Pending IAs stands dismissed.

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Sd/JUDGE

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KBM List No.: 1 Sl No.: 28

Basavarajappa v. Navilappa

Case brief

What is this about?

What did the court decide?

Basavarajappa v. Navilappa

Case brief

What is this about?

What did the court decide?

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