Dismissed

Smt Dyavamma v. Smt Rangamma

Karnataka HC19 Apr 2024RSA/1761/2022

Case brief

AI extract

What is this about?

Defendants' second appeal against a concurrent partition decree granting the plaintiff daughters 1/4th share each in suit items 1 to 4. Counsel conceded equal entitlement, seeking only preferential allotment of a Dharmika Inam land item to defendant No.2. The High Court held such equities could be worked out in final decree proceedings and dismissed the appeal.

What the court decided

AI extract

Smt Dyavamma Vs Smt Rangamma — Partition | Karnataka HC (2024)

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NC: 2024:KHC:15617 RSA No. 1761 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19^TH DAY OF APRIL, 2024

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BEFORE

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THE HON'BLE MR JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO. 1761 OF 2022

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(PA/DE/IN)

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BETWEEN:

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Smt. Dyavamma, W/o Late Halebeedaiah, Aged about 88 years, R/At Kote Beedi, Shanthigrama, Hassan Taluk, Hassan District 573220.

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

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Smt Gangammma, W/o Thimmappa, Aged about 65 years, R/At Opp Sri Ganapathi Temple M G Road, Hassan Town, Hassan District 573201.

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…Appellants

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(By Sri. S P Ramesha.,Advocate)

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AND:

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Smt. Rangamma, W/o Thimmaiah, Aged about 62 years R/At Shanthigrama, Hassan Taluk, Hassan District-573220.

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NC: 2024:KHC:15617 RSA No. 1761 of 2022

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Smt.Jayamma, W/o Thimmappa, Aged about 58 years, R/A Vivekanagara, Near Land Army Office, Hassan Town, Hassan District-573201.

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…Respondents

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This Regular Second Appeal is filed under Section 100 of CPC praying to call for the entire records from the Courts below and set aside the judgment and decree dated 15.12.2014 passed by the Prl.Civil Judge and JMFC, Hassan, in O.S.No.314/2010 and also set aside the judgment and decree dated 09.06.2022, passed by the II Addl.Senior Civil Judge and JMFC at Hassan in R.A.No.12/2015 and consequently allow the Regular Appeal filed by the appellants and dismiss the suit filed by the respondents with costs in the interest of justice and equity.

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This Regular Second Appeal coming on for Orders, this day, the Court delivered the following :

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JUDGMENT

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This appeal is filed by the defendants being

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aggrieved by the judgment and decree dated 15.12.2014, passed in O.S.No.314/2010, on the file of Prl.Civil Judge and J.M.F.C., Hassan ('trial Court' for short), which is modified by the judgment and decree dated 09.06.2022, passed in R.A.No.12/2015, on the file of II Addl.Senior Civil Judge and J.M.F.C., Hassan.

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NC: 2024:KHC:15617 RSA No. 1761 of 2022

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The above suit in O.S.No.314/2010 is filed by the plaintiffs seeking 1/3^rd share each in the suit schedule properties and separate possession and mesne profits and also for consequential relief of permanent injunction restraining the defendants from alienating the suit schedule properties to the third persons.

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The case of the plaintiffs is that defendant No.1 is the wife of late Halebeedaiah and she is the natural mother of plaintiffs and defendant No.2. That both plaintiffs and defendants constitute a joint Hindu family jointly cultivating the suit schedule properties since the said properties are their ancestral properties. That the revenue records of these properties were in the name of Halebeedaiah and after his demise, same have been changed to the name of defendant No.1 since she is the wife of late Halebeedaiah, who is the mother of plaintiffs and defendant No.2. That defendant No.1 at the ill-advise of defendant No.2, who is a worldly wise lady, started making efforts to alienate the properties. Being

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NC: 2024:KHC:15617 RSA No. 1761 of 2022

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constrained by the same, the plaintiffs sought for partition and allotment of their share in the suit schedule properties, the denial of which has resulted in they filing the present suit.

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The defendant Nos.1 and 2 have appeared before the trial Court and filed their written statement disputing the case of the plaintiffs. It is contended that the husband of plaintiff No.2 is none other than the husband of defendant No.2. It is contended that the suit schedule properties were granted in favour of defendant No.1 and they are not the ancestral properties. That the plaintiffs who were married long ago are not entitled to their shares as they are leading a happy marital life in their respective matrimonial home. Hence, they sought for dismissal of the suit.

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Based on the pleadings, the trial Court hs framed the following issues for consideration.

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"1. Whether the plaintiffs prove that they and the defendants are the members of Hindu Undivided

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NC: 2024:KHC:15617 RSA No. 1761 of 2022

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Family and the suit properties are their ancestral properties?

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2. If so, whether the plaintiffs further proves that they have got 1/3^rd share in the suit schedule properties?

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3. Whether the defendant No.1 proves that the suit schedule properties are self-acquired properties?

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4. Whether the plaintiff proves that the 1^st defendant is illegally attempting to sell the suit properties?

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5. Whether the plaintiffs are entitled for mesne profits? If so, at that rate?

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6. Whether the plaintiffs are entitled for the reliefs sought in the plaint?

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7. What order or decree?"

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The plaintiffs examined two witnesses as PWs.1 and 2 and 29 documents were produced and got marked

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from Exs.P-1 to P-29. On behalf of the defendants, one witness was got examined as DW-1 and 53 documents were got produced and marked as Exs.D-1 to D-53.

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On appreciation of the pleadings and evidence, the

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trial Court answered issue Nos.1, 2, 5 and 6 partly in

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NC: 2024:KHC:15617 RSA No. 1761 of 2022

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affirmative and issue Nos.3 and 4 in the negative and

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consequently partly decreed the suit as under :

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" ORDER

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Suit filed by the plaintiffs is hereby partly decreed with cost.

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Consequently, it is declared that plaintiffs are entitled to get 1/4^th share each in the item No.3 & 4 of the suit schedule properties along with separate possession.

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The relief sought for by the plaintiffs in connection with item No.1, 2 & 5 properties is hereby rejected.

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The relief of mesne profit to be considered in detail at the time of final decree proceedings in connection with the item No.3 & 4 properties.

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The equitable relief of permanent injunction

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sought for by the plaintiffs hereby dismissed.

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Draw preliminary decree accordingly."

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Being aggrieved by the same, the defendants

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preferred regular appeal in R.A.No.12/2015. The plaintiffs

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also filed Cross-objections (Cross-Appeal) in the said Regular Appeal. Considering the grounds urged in the

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NC: 2024:KHC:15617 RSA No. 1761 of 2022

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memorandum of appeal, the First Appellate Court framed the following points for its consideration.

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" 1. Whether the trial Court was justified in holding that item No.3 of the plaint schedule properties is ancestral property?

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2. Whether IA.No.2 filed by the appellants under section 107 R/w Order 14 Rule 5 of C.P.C., is deserves to be allowed ?

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3. Whether judgment and decree of the trial Court with respect to item No.3 calls for interference ?"

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In the Cross-objections, the First Appellate Court framed the following points for its consideration.

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" 4 . Whether the trial Court was justified in

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recording findings that in Ex.P-14 there is a restriction even for the partition of suit item No.1 and 2 without prior permission of the Government and as such plaintiff cannot claim partition of these properties?

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5. Whether the trial Court was justified in dismissing the suit of the plaintiffs holding that plaintiffs have failed to prove that suit item No.5 is ancestral property?

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8 - NC: 2024:KHC:15617 RSA No. 1761 of 2022

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6. Whether the judgment and decree of the trial Court with respect to item No.1 and 2 calls for interference?

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7. Whether the judgment and decree of trial Court in dismissing the suit of the plaintiffs with respect to item No.5 calls for interference by this Court?

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8. What order or decree?"

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On appreciation of the pleadings and evidence,

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the first Appellate Court answered point Nos.1, 5 and 6 in the affirmative and point Nos.2, 3, 4 and 7 in the negative and consequently, dismissed the Appeal filed by the defendants and partly allowed the Cross-appeal filed by the plaintiffs as under :

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ORDER

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The appeal filed by the appellants/defendants under Order 41 Rule 1 of C.P.C. is hereby dismissed.

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Cross Appeal filed by the plaintiffs/respondents under Order 41 Rule 22 of C.P.C., is hereby allowed in part with respect to item No.1 and 2.

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NC: 2024:KHC:15617 RSA No. 1761 of 2022

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Cross Appeal filed by the plaintiff/respondents with respect to item No.5 is dismissed. Judgment and decree of the trial Court in dismissing the suit of the plaintiffs with respect to item No.1 and 2 is hereby set aside.

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The judgment and decree of the trial Court with respect to item No.3 to 5 is hereby confirmed. The plaintiffs/respondents are entitled to 1/4^th share each in suit item No.1 to 4. Defendants/appellants are also entitled for 1/4^th share each in item No.1 to 4.

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IA.No.2 filed by the appellants under Section 107 and Order 14 Rule 5 of C.P.C. is hereby dismissed.

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Considering the relationship of the parties, I direct the parties to bear their own cost.

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Office to draw decree accordingly."

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Being aggrieved by the same, the defendants are

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before this Court.

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Heard. Perused the records.

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Sri. S.P.Ramesh, learned counsel for the

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appellants submits that during the pendency of the appeal,

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the defendant No.1 - Smt.Dyavamma has passed away

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and he also fairly concedes that plaintiffs and defendant

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10 - NC: 2024:KHC:15617 RSA No. 1761 of 2022

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No.2 being the three daughters of defendant No.1 are entitled for equal shares. However, it is his submission that since item No.3 of the suit schedule property, which is a Dharmika Inam land was being managed and looked after by the deceased defendant No.1 and defendant No.2 and the said property be allotted to the share of defendant No.2. Thus, he submits that, except seeking this preferential right for allotment of the said property, he submits that there is no other issue being raised in this appeal.

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In view of the aforesaid facts and submissions this Court is of the considered view that such equities can be worked out in the Final Decree Proceedings by filing appropriate application therein and if such application is filed by appellants herein the same shall be considered by the Final Decree Proceedings Court in accordance with law.

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With the above observations, since there are no substantial questions of law involved in this appeal for consideration, the Appeal stands dismissed .

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11 -

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NC: 2024:KHC:15617 RSA No. 1761 of 2022

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In view of disposal of the main appeal, the

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pending IAs., if any, does not survive for consideration.

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Sd/JUDGE

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BK/ List No.: 1 Sl No.: 12

Smt Dyavamma v. Smt Rangamma

Case brief

What is this about?

What the court decided

Smt Dyavamma v. Smt Rangamma

Case brief

What is this about?

What the court decided

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