Dismissed

Sri. Mahadevappa v. Smt. Drakshayanamma

Karnataka HC26 Mar 2024RSA/1452/2023

Case brief

AI extract

What is this about?

In this regular second appeal concerning partition of joint and self-acquired family properties, the High Court of Karnataka dismissed the appeal. Upholding the lower courts findings, it held that grants were for family benefit and, even if self-acquired by the father, the daughter inherited a share upon his death. The appeal was dismissed confirming the lower court decrees.

What did the court decide?

Appeal dismissed confirming the lower court judgment granting the respondent/plaintiff 1/3rd share in the suit properties and compensation.

Sri. Mahadevappa Vs Smt. Drakshayanamma — Partition | Karnataka HC (2024)

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NC: 2024:KHC:12399 RSA No. 1452 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26^TH DAY OF MARCH, 2024 BEFORE

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THE HON'BLE MR JUSTICE M.G.S. KAMAL

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REGULAR SECOND APPEAL NO. 1452 OF 2023 (PAR/POS)

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BETWEEN:

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SRI. MAHADEVAPPA S/O. LATE DODDABASAPPA (ABATED) R/O. KABBINAKERE VILLAGE KASABA HOBLI HOSADURGA TALUK CHITRADURGA DISTRICT-577 501.

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SRI. RUDRAPPA S/O. LATE MAHADEVAPPA AGED ABOUT 57 YEARS OCC. AGRICULTURIST R/O. KABBINAKERE VILLAGE KASABA HOBLI HOSADURGA TALUK CHITRADURGA DISTRICT-577 501.

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Digitally signed by SUMA B N Location: High Court of Karnataka

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(BY SRI. KANTHARAJAPPA M G., ADVOCATE)

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AND:

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…APPELLANTS

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SMT. DRAKSHAYANAMMA D/O. MAHADEVAPPA W/O. K. SIDDAPPA AGED ABOUT 61 YEARS OCC. HOUSE HOLD WORK R/O. KABBINAKERE VILLAGE PRESENT R/O. ANIVALA VILLAGE KASABA HOBLI, HOSADURGA TALUK CHITRADURGA DISTRICT-577 501.

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NC: 2024:KHC:12399 RSA No. 1452 of 2023

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THE LAND ACQUISITION OFFICER SPECIAL LAND ACQUISITION OFFICE UPPER BHADRA PROJECT CHITRADURGA-577 501.

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…RESPONDENTS

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(BY SRI. GOPALAKRISHNAMURTHY C., ADVOCATE FOR R1)

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THIS RSA IS FIELD UNDER SEC.100 OF CPC., AGAINST THE JUDGEMENT AND DECREE DATED 23.06.2023 PASSED IN RA NO.24/2022 ON THE FILE OF SENIOR CIVIL JUDGE AND JMFC, HOSADURGA DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 13.04.2022 PASSED IN OS NO.1109/2016 ON THE FILE OF PRINCIPAL CIVIL JUDGE AND JMFC, HOSADURGA.

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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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This appeal by the defendant Nos. 1 and 2 aggrieved by the judgment and decree dated 13.04.2022 passed in O.S.No.119/2016 on the file of Principal Civil Judge and JMFC., Hosadurga, which is confirmed by the judgment and decree dated 23.06.2013 passed in R.A.No.24/2022 on the file of Senior Civil Judge and JMFC, Hosadurga.

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The above suit is filed by Smt.Drakshyanamma-

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the plaintiff against her father Mahadevappa and brother Rudrappa seeking partition and separate possession in

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3 - NC: 2024:KHC:12399 RSA No. 1452 of 2023

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respect of nine items of the properties described in the schedule to the plaint.

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It is the case of the plaintiff that her fatherdefendant No.1 had two wives viz., Smt.Rudramma and Smt.Shanthamma. First wife died issueless. The plaintiff and defendant No.2 are the children born to defendant No.1 through his second wife-Smt.Shanthamma. That the

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mother Shanthamma also passed away in the year 2013. Plaintiff and defendant Nos.1 and 2 constituted a joint family and are in joint possession of the suit properties. That the khatha of suit item Nos.1 to 5 is the name of Rudramma and Shanthamma and khatha in respect of item Nos.6 and 8 is in the name of defendant No.1 and khatha in respect of item No.9 is in the name of defendant No.2. That defendant Nos.1 and 2 have no exclusive independent right over the suit properties. As the relationship between the plaintiff and defendants strained, she requested for division of the property. Item Nos.2 and 9 of the suit properties have been acquired by defendant

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No.3- Land Acquisition Officer and compensation in respect

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of the same has been awarded. The plaintiff is entitled for a legitimate share in the suit properties as well as in the compensation. Since the defendants declined to allot the share she was constrained to file the present suit.

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Defendant Nos.1 and 2 have filed a written statement denying the plaint averments with regard to plaintiff being the member of Hindu undivided joint family and being in a joint possession and enjoyment of the suit properties and having got any share in the suit properties as well as in the compensation as claimed in the plaint. It is contended that defendant No.1 after the demise of his 1^st wife married Shanthamma and Item Nos.1 to 5 are the properties originally belong to father of Shanthamma and the said Shanthamma had enjoyed the properties in item Nos.1 to 5 during her life time exercising her ownership thereof. Defendant No.1 performed the marriage of the plaintiff in the year 1981 by giving her gold ornaments and cash and she has been residing separately with her

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husband. That Shanthamma the mother of the plaintiff and 2^nd wife of the defendant No.1 died after prolonged illness and during which time, she had decided to give her properties in item Nos.1 to 5 in favour of defendant Nos.1 and 2. Accordingly, she has distributed the said properties in item Nos.1 to 5 in their favour in the year 1995-96 in the presence of the elders of the village, since then the defendant Nos.1 and 2 have been in possession of the said properties and the plaintiff has got no share therein.

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As regards item Nos.6 and 8 is concerned, it is contended that the said properties are self acquired properties of defendant No.1, acquired by him independently, out of his own efforts and item No.9 was acquired by defendant No.2 independently, out of his own earning. As such, the plaintiff was not entitled for share even in item Nos. 6 to 9. As such sought for dismissal of the suit.

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NC: 2024:KHC:12399 RSA No. 1452 of 2023

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The trial Court framed the following issues:

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ISSUES

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1. Whether the plaintiff proves that, the suit schedule properties are the joint family properties of herself and the defendants?

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2. Whether the defendants prove that the item No.1

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to 5 of the suit schedule properties originally belonged to wife of the 1st defendant Shanthamma?

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3. Whether the defendants proves that the item No.6

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to 8 properties are self acquired properties of the defendant No.1?

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4. Whether the defendants prove that, item No.9 of

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the suit properties is self acquired property of defendant No.2?

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5. Whether the plaintiff is entitled to the relief of

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partition and separate possession?

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6. What order/decree?

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Plaintiff examined herself as PW.1 and produced

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24 documents as Exs.P.1 to P.24. Defendant No.2 himself

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examined as DW.2 and produced 34 documents as Exs.D1 to D.34. Two more witnesses have been examined by defendants as DWs.2 and 3.

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The trial Court on appreciating the evidence answered issue Nos. 1, 2 and 5 in the affirmative and

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issue Nos.3 and 4 in the negative and consequently, decreed the suit by granting 1/3^rd share to the plaintiff in

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the suit properties as well as the in the compensation awarded by the defendant No.3. Aggrieved by the same, defendants preferred regular appeal in R.A.No.24/2022.

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During the pendency of the said appeal 1^st defendant Mahadevappa stated to have passed away, as such appeal as against the 1^st appellant is treated to have abated.

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On considering the grounds urged, the First

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Appellate Court framed following points for its

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consideration:

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1. Whether the plaintiff had established that, the suit schedule property are the joint family properties of herself and the defendants?

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2. Whether the plaintiff had established that, she is

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entitled for the relief of partition as sought?

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3. Whether the defendants had established that,

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item No.6 to 8 properties are self acquired properties of defendant No.1?

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4. Whether the defendants had established that,

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item No.9 property is self acquired property of defendant No.2?

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NC: 2024:KHC:12399 RSA No. 1452 of 2023

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5. Whether the judgment and decree of the trial

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Court is illegal, perverse and called for interference by hands of this Court?

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6. Whether appellant/plaintiff made out a ground to

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produce the document and to examine the witness in this behalf by remanding the suit as prayed in I.A.No.3?

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7. Whether the applicant Chennakeshava made out a

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ground to implead him as defendant No.4 in the suit and appellant No.3 in this appeal as prayed in I.A.No.4?

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8. Whether the respondent No.1/plaintiff had made

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out a ground to direct the respondent No.2/defendant No.3 to deposit the amount in the office of this Court as prayed in I.A.No.2?

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9. What order?

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On re-appreciation of the evidence answered point Nos.1, 2 in the affirmative and point Nos.3 to 8 in the negative, consequently, dismissed the appeal confirming the judgment and decree passed by the trial Court. Being aggrieved by the same defendant No.2 is before this Court in this appeal.

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Learned counsel for the appellant reiterating the grounds urged submitted the trial Court and First Appellate Court have failed to appreciate that the properties in item Nos.1 to 5 were the self acquired properties of Shanthamma, who had given up the said properties in favour of the defendants 1 and 2 during her life time. As regards item Nos.6 and 9, it is submitted that the properties were acquired by defendant Nos.1 and 2 in terms of grant, as such, they are the exclusive owners of the said properties and as such plaintiff has no share in

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the said portion either. Thus, he submits the trial Court and First Appellate Court have failed to appreciate the material evidence giving rise to substantial question of law warranting consideration at the hands of this Court.

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On the other hand, the learned counsel for the respondent/plaintiff justifying the judgment and decree passed by the trial Court submitted that though the defendants 1 and 2 claimed their right over the properties in item Nos.1 to 5 contending that same were given up by

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Shanthamma in their favour, no documentary evidence in that regard has been produced by them. As regards item Nos.6 to 9 is concerned, the learned counsel submits that the trial Court and First Appellate Court have taken note of the evidence produced by the parties, wherein the grant was made for family benefit and as such concluded that the plaintiff was entitled for the share therein. Thus, he submits no grounds are made out giving rise to the substantial question of law requiring consideration at the hands of this Court.

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Heard. Perused the records.

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The admitted fact is that the defendant No.1

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father of the plaintiff and defendant No.2 passed away, during the pendency of the regular appeal before the First Appellate Court. Therefore, the awarding of 1/3^rd share by the trial Court requires a re-look in view of subsequent event.

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After arguing the matter for some, the learned counsel for the appellant fairly submits that as regard to

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NC: 2024:KHC:12399 RSA No. 1452 of 2023

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item Nos.1 to 5 is concerned, appellant has no objection in plaintiff being allotted half share in the said properties. However, he vehemently submits that as regard item Nos.6 to 9 are concerned, the said properties was the self acquired properties of the defendant No. 2 and the plaintiff has no share in the said properties. He refers to the Grant Certificates dated 31.10.1978, 12.06.1974 and 10.04.1974 produced at Ex.D-1 to D-3 respectively. Thus, referring to the Ex.D.1 wherein name of Rudrappadefendant No.2 is shown, learned counsel submits that the

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said document pertains to item No.9 of the suit properties granted in the name of defendant No.2. As regards Ex.D2 and D3, learned counsel submits the same pertains to item Nos.6 to 8 granted in favour of Mahadevappa-the defendant No.1 Thus, the learned counsel for the appellant submits the grant having been made in the name of defendant Nos.1 and 2 as evidenced in the aforesaid Exs.D1 to D3 are not available for partition.

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NC: 2024:KHC:12399 RSA No. 1452 of 2023

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The trial Court at paragraph 36 of its judgment on appreciation of evidence has held that the grant is made for the benefit of all members of the joint family and not for the benefit of any individual. That the grant so made would enure to the benefit of all the members of the family. As such, declined to accept the contention that items Nos. 6 to 9 are self acquired properties of defendant Nos.1 and 2. The First Appellate Court at paragraph 30 of its judgment while appreciating Exs.D1 to D3 has noted that Ex.D1- the grant pertaining to item No.9 of the suit properties was made in the year 1978. That though the said document stand in the name of defendant No.2, the First Appellate Court has noted that as in the year 1978 the age of the defendant No.2 was about 12 years, as such, it was improbable for grant having been made in his name under Ex.D1. The said finding of the First Appellate Court cannot be found fault on any count.

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As regards the grant made in respect of item Nos.5 to 8 under Exs.D2 and D3 is concerned though

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name of Mahadevappa is shown, and even, if it is considered as self acquired property, on his demise, plaintiff being his daughter and class-1 heir is entitled for equal share with defendant No.2, who is the other class one heir.

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In view of the aforesaid facts and the position of the law, no error can be found with the reasoning and findings of the trial Court and First Appellate Court.

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No substantial question of law would arise for consideration, appeal is dismissed confirming the judgment and decree passed by the trial Court and First Appellate Court.

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Sd/JUDGE

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PSJ

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List No.: 1 Sl No.: 23

Sri. Mahadevappa v. Smt. Drakshayanamma

Case brief

What is this about?

What did the court decide?

Sri. Mahadevappa v. Smt. Drakshayanamma

Case brief

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