Partition dispute among branches of a joint family over shares in ancestral property. The court held defendant No.1 failed to prove adoption, as no giving-and-taking ceremony was established beyond a voter identity card. The first appellate court's one-third shares were set aside; the trial court's decree granting plaintiff half share was confirmed.
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NC: 2024:KHC:37265 RSA NO.1643 OF 2018 C/W RSA.CROB NO.10 OF 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF SEPTEMBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S. INDIRESH REGULAR SECOND APPEAL NO.1643 OF 2018 (DEC)
C/W
R.S.A. CROB. NO.10 OF 2022
IN R.S.A. No.1643 OF 2018
BETWEEN:
MRS. MANJULA W/O MR. KUMARA SWAMY AGED ABOUT 47 YEARS, R/O HURUGILAVADI VILLAGE, GHANDASI HOBLI, ARASIKERE TALUK, HASSAN DISTRICT - 573 119
…APPELLANT
(BY SRI. P. PRASAD, ADVOCATE)
AND:
Digitally signed by SHARMA ANAND CHAYA Location: High Court of Karnataka
BOTH ARE RESIDING AT: HURUGILAVADI VILLAGE, GHANDASI HOBLI, ARASIKERE TALUK, HASSAN DISTRICT - 573 119.
…RESPONDENTS
(BY SRI. KAVERI THIMMAIAH, ADVOCATE)
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C/W RSA.CROB NO.10 OF 2022
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 READ WITH ORDER XLII OF THE CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT AND DECREE DATED 01ST JUNE, 2018 PASSED IN REGULAR APPEAL NO.53 OF 2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., ARASIKERE, PARTLY ALLOWING THE APPEAL AND MODIFYING THE JUDGMENT AND DECREE DATED 09TH SEPTEMBER, 2016 PASSED IN ORIGINAL SUIT NO.369 OF 2014 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE AND JMFC., ARASIKERE.
IN R.S.A. CROB NO.10 OF 2022
BETWEEN:
SRI. MANJEGOWDA S/O LATE HUCCHEGOWDA AGED ABOUT 66 YEARS, R/AT HRUUGILWADI VILLAGE GANDSI HOBLI, ARISIKERE TALUK, HASSAN DISTRICT - 573119
...CROSS OBJECTOR
(BY SMT. KAVERI THIMMAIAH, ADVOCATE)
AND:
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NC: 2024:KHC:37265 RSA NO.1643 OF 2018
C/W RSA.CROB NO.10 OF 2022
...RESPONDENTS
(BY SRI. P.PRASAD, ADVOCATE FOR R1)
THIS REGULAR SECOND APPEAL CROB. IS FILED UNDER SECTION ORDER XLI RULE 22 OF THE CODE OF CIVIL PROCEDURE, AGAINST THE JUDGMENT AND DECREE DATED 01ST JUNE, 2018 PASSED IN REGULAR APPEAL NO.53 OF 2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, ARASIKERE, PARTLY ALLOWING THE APPEAL AND MODIFYING THE JUDGMENT AND DECREE DATED 09TH SEPTEMBER, 2016 PASSED IN ORIGINAL SUIT NO.369 OF 2014 ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE AND JMFC., ARSIKERE.
THESE R.S.A. AND R.S.A. CROB. COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH
ORAL JUDGMENT
Regular Second Appeal No.1643 of 2018 is filed by the plaintiff, challenging the judgment and decree dated 01st June, 2018 passed in Regular Appeal No.53 of 2016 on the file of the Senior Civil Judge and JMFC., Arasikere (for short, hereinafter referred to as 'First Appellate Court'), allowing the appeal in-part by modifying the share of the parties in Original Suit No.369 of 2014 decreed on 09th September, 2016 on the file of the II Additional Civil Judge and JMFC.,
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Arasikere (for short, hereinafter referred to as 'Trial Court').
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propositus Hucchegowda's second son Karigowda @ Nanjegowda has four children. It is also stated in the plaint that, wife of Karigowda @ Nanjegowda and her children have filed Original Suit No.501 of 1993 against the other branch of Hucchegowda and the said suit came to be decreed on 25th May, 2000 and one-forth share in the suit schedule property was allotted in favour of the branch of Karigowda @ Nanjegowda. Thereafter, Final Decree Proceedings No.3 of 2001 was filed to draw the Final Decree as per judgment and decree dated 25th May, 2000 passed in Original Suit No.501 of 1993. In the said proceedings, parties have compromised and Dyavamma W/o Karigowda @ Nanjegowda and her children received Rs.17,500/- and relinquished their right in respect of their one-fourth share in suit schedule property in favour of the other branch. It is also stated in the plaint that, in view of the compromise entered into in Final Decree Proceedings No.3 of 2001, the plaintiff is entitled for half share in the suit schedule property and therefore,
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NC: 2024:KHC:37265 RSA NO.1643 OF 2018 C/W RSA.CROB NO.10 OF 2022
plaintiff filed Original Suit No.369 of 2014, seeking half share in the suit schedule property.
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C/W RSA.CROB NO.10 OF 2022
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and the Trial Court in respect of rejecting the contention regarding the adoption.
"Whether the First Appellate Court was justified in granting 1/3rd share each to respondent Nos.1 and 2, who in fact represent one branch and both together will take half share and not independent 1/3rd share as awarded by the First Appellate Court?"
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Court has granted half share in favour of the plaintiff, same was erroneously interfered with by the First Appellate Court and granted one-third share to the plaintiff and the defendant No.1 has failed to establish adoption made by his natural parent (Eeregowda) in favour of the Hucchegowda (adopted parent). Accordingly, he contended that the Exhibit D1-Identity Card cannot be relied upon to happening of ceremony of Datta Homam. Therefore, he sought for interference of this Court.
the Cross objector that the perusal of the Exhibit D1 would makes it clear that the defendant No.1 was given
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in adoption to Hucchegowda (elder brother of
Eeregowda) S/o Hucchegowda and accordingly, she sought for interference insofar as share of the defendant No.1 is concerned.
for the parties, in order to understand the relationship between the plaintiff and defendants, the genealogical
tree is extracted as under:
Hucchegowda-Gowramma
Hucchegowda Karigowda @ Eregowda Haligegowda
Dyvamma Nanjegowda Kamlamma
Devamma
Manjegowda Manjula (P)
(D1)
adopted Manjegowda Rangegowda Rangamma Thayamma
Manjegowda Jayamma Shanthamma Swamy (D2) Thyamma
(natural born
son) (D1)
that the original propositus Hucchegowda has four children namely 1) Hucchegowda (died issueless) ; 2)
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Karigowda @ Nanjegowda (husband of the plaintiff in Original Suit No.501 of 1993); 3) Eeregowda (father of defendants 1 and 2) ; and 4) Haligegowda (father of the plaintiff) . It is not in dispute that the suit schedule properties are the joint family properties. It is also pertinent to mention here that the branch of Karigowda @ Nanjegowda have filed Original Suit No.501 of 1993, seeking their one-fourth share in the schedule property and the said suit was decreed as per judgment and decree dated 25th May, 2000 (Exhibit P1 and P2). It is
also forthcoming from the records that, Final Decree Proceedings No.3 of 2001 (Exhibit P3) was filed before the Trial Court and in the said proceedings a compromise was entered into between the parties and thereby, the petitioners (branch of Karigowda @ Nanjegowda) therein relinquished their right in favour of the branch of Eeregowda and Haligegowda, having received a sum of Rs.17,500/-. In that view of the matter, entire one-fourth share of Karigowda @ Nanjegowda has been transferred to branch of
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Eeregowda and Haligegowda. Insofar as the share of 1st son of Hucchegowda is concerned, it is the case of defendant No.1 that, he was given in adoption to Hucchegowda and in this regard, document of adoption is not produced and witnesses also not deposed about the ceremony of giving and taking of defendant No.1 taken place between the parents of the defendant No.1. In that view of the matter, as the sole document relied upon by the defendant No.1 is the Voter Identity Card (Exhibit D1), which cannot be accepted to prove the adoption in the absence of the ceremony to be held for giving and taking of the child. Therefore, the contention raised by the defendant No.1 cannot be accepted. As the defendant No.1 failed to establish the adoption through acceptable oral and documentary evidence and that apart, the defendant No.2 was placed ex-parte before First Appellate Court in Regular Appeal No.53 of 2016, makes it clear that, there is no adoption of defendant No.1 by the Hucchegowda.
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Appellate Court is required to be set-aside by confirming the judgment and decree passed by the Trial Court. Accordingly, substantial question of law framed above
favours the plaintiff. In the result, I pass the following:
O R D E R
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NC: 2024:KHC:37265 RSA NO.1643 OF 2018 C/W RSA.CROB NO.10 OF 2022
SD/(E.S. INDIRESH) JUDGE
ARK
3 issues framed by the court
Was the First Appellate Court justified in granting one-third share each to defendants 1 and 2, who together represent one branch entitled only to a half share?
Did defendant No.1 prove his adoption into the branch of Hucchegowda so as to claim an independent share?
Is a successive suit for partition maintainable where all properties were not included in the earlier partition suit?
2 provisions across 1 enactments
Mrs. Manjula
Mr. Manje Gowda
Mr. Swamy
Sri. Manjegowda
E.S. Indiresh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
