Dismissed

Smt. Thimmamma and Anr. v. Sri. Hussainamma and Rs

Karnataka HC12 Nov 2024RSA/200075/2018

Case brief

AI extract

What is this about?

Defendants in a partition suit appealed against concurrent decrees declaring plaintiffs entitled to 1/4th share in ancestral joint family properties. The High Court found no substantial question of law, held plaintiffs entitled to 4/9th share after defendant No.1's death, modified the preliminary decree accordingly and dismissed the appeal.

What did the court decide?

Preliminary decree modified: plaintiffs together allotted 4/9th share in suit schedule properties; appeal dismissed; pending IAs disposed of.

Smt. Thimmamma and Anr. Vs Sri. Hussainamma and Rs — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC-K:8364 RSA No. 200075 of 2018

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IN THE HIGH COURT OF KARNATAKA,

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KALABURAGI BENCH

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DATED THIS THE 12^TH DAY OF NOVEMBER, 2024

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BEFORE

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

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REGULAR SECOND APPEAL NO. 200075 OF 2018 (PAR)

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BETWEEN:

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Digitally signed by SHIVALEELA DATTATRAYA UDAGI Location: HIGH COURT OF KARNATAKA

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SMT. THIMMAMMA W/O DURUGAPPA, AGED ABOUT 75 YEARS, OCC: HOUSEHOLD & AGRICULTURE, R/O. KANNUR VILLAGE, POST: KOLBAL, SINDHANUR TALUK, RAICHUR DISTRICT.

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SRI KARIYAPPA S/O DURUGAPPA, AGE: 51 YEARS, OCC: AGRICULTURIST, R/O. KANNUR VILLAGE, POST : KOLBAL, SINDHANUR TALUK, RAICHUR DISTRICT. …APPELLANTS

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(BY SRI MAHANTESH PATIL, ADVOCATE) AND:

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SMT. HUSSAINAMMA W/O LATE AMBANNA, AGED ABOUT 45 YEARS, OCC: COOLIE

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KUMARI POORNIMA D/O LATE AMBANNA, AGED ABOUT 20 YEARS, OCC: STUDENT

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KUMARI GAYATRI D/O LATE AMBANNA, AGE: 16 YEARS, OCC: STUDENT,

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2 - NC: 2024:KHC-K:8364 RSA No. 200075 of 2018

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ALL R/O KANNUR VILLAGE, POST: KOLBAL, SINDHANUR TALUK, RAICHUR DISTRICT.-584101

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VEERESH S/O AMAREGOUDA HALIMANI, AGE: 32 YEARS, OCC: AGRICULTURIST, R/O. SIDDAPUR VILLAGE, TQ. GANGAVATI, DIST. KOPPAL-583231.

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…RESPONDENTS

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(BY SRI SHIVAKUMAR KALLOOR, ADVOCATE AND SRI BASAWARAJ NADGOUDA ADVOCATE FOR R1 AND R2; R3 IS MINOR UNDER GUARDIAN OF R1; R4 SERVED)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, PRAYING TO SET ASIDE THE JUDGMENT AND DECREE DATED 23.11.2017 PASSED BY THE LEARNED SENIOR CIVIL JUDGE AND JMFC AT SINDHANUR, IN REGULAR APPEAL NO.20/2014 (OLD NO.02/12) AND SET ASIDE JUDGMENT AND DECREE DATED 19.04.2011 IN OS NO.72/2008 PASSED BY THE LEARNED ADDITIONAL CIVIL JUDGE SINDHANUR AND CONSEQUENTLY DISMISS THE SUIT.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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3 - NC: 2024:KHC-K:8364 RSA No. 200075 of 2018

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CORAM: HON'BLE MR. JUSTICE M.G.S.KAMAL

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ORAL JUDGMENT

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(PER: HON'BLE MR. JUSTICE M.G.S.KAMAL)

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This appeal is by defendants No.2 and 3 aggrieved by the judgment and decree dated 19.04.2011 passed in O.S. No.72/2008 on the file of Additional Civil Judge, Sindhanur (hereinafter referred to as ‘the Trial Court’ for short), declaring the plaintiffs/respondents to be entitled for 1/4^th share in the suit schedule properties and further declaring that the agreement of sale dated 02.11.2006 executed by defendant No.3 in favour of defendant No.4 is null and void and not binding on the plaintiffs, which judgment and decree has been confirmed by the judgment and Order Dated 23.11.2017 passed in RA No.20/2014 (Old No.2/2012) on the file the Senior Civil Judge and JMFC, Sindhanur.

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Subject matter of the above suit is the following properties:

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4 - NC: 2024:KHC-K:8364 RSA No. 200075 of 2018

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Survey No.44/P-2 measuring 1 acre situated at Hedigibal.D village in the name of Durugappa (defendant No.1)

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Survey No.44/A measuring 1 acre 34 guntas situated at Hedigibal.D village in the name of Kariyappa (defendant No.3)

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Survey No.12/P-3 measuring 2 acres situated at Kannur village in the name of Durugappa (defendant No.1)

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House No.140 situated at Kannur village in the name of Kariyappa (defendant No.3)

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House No.11 situated at Kannur village in the name of Thimmamma (defendant No.2).

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The present suit is filed by the plaintiffs

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contending inter alia that the plaintiff No.1 is the wife of one late Ambanna, who is the son of defendant No.1, plaintiffs No.2 and 3 are the daughters of said Ambanna and plaintiff No.1. Defendant No.1 is the father-in-law and grandfather respectively of plaintiffs No.1 to 3.

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5 - NC: 2024:KHC-K:8364 RSA No. 200075 of 2018

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Defendant No.2 is the mother-in-law and grandmother of plaintiffs No.1 to 3 respectively. Different No.3 is the brother-in-law and uncle of plaintiffs No.1 to 3 respectively.

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That defendant No.1 is the Karta of the Hindu joint family and that the suit schedule properties are the joint family ancestral properties of the plaintiffs and defendants and they have been in joint possession and enjoyment of the same. That Ambanna passed away on 22.09.2005 leaving behind plaintiffs No.1 to 3 as his legal representatives. Upon his demise the plaintiffs requested for partition and allotment of their shares in the joint family property, which was denied. Further defendant No.1 had entered into an agreement of sale dated 02.11.2006 with defendant No.4 in respect of land bearing survey No.44/P-2 only with an intention of denying the entitlement of the plaintiffs. Hence, sought for partition and declaration.

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6 - NC: 2024:KHC-K:8364 RSA No. 200075 of 2018

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The defendants appeared and filed written-

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statement admitting the relationship and denying the nature of the land. It is specifically contended by the defendants that during the lifetime of Ambanna, there was a partition of the family properties in the year 1994, in which Ambanna was allotted as his share 1 acre 10 guntas of land out of 2 acres of land in survey No.12/P-3 situated at Kannur village. In addition he was also paid Rs.20,000/towards his share. Hence, sought for dismissal of the suit.

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The Trial Court framed the following issues for

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his consideration.

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Whether the plaintiffs prove that suit properties are joint family properties of plaintiffs and defendants?

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Whether the plaintiffs prove that, plaintiffs and defendants constitute and undivided joint family?

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Whether the defendants prove that, husband of plaintiff no.1 and father of plaintiff no.2 has taken his share in the joint family in the year 1994 and lived separately?

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Whether the plaintiffs prove that, they have got 1/4^th share in the suit schedule properties?

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7 - NC: 2024:KHC-K:8364 RSA No. 200075 of 2018

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Whether the plaintiffs prove that registered agreement of sale bearing no.6451/06-07 is not binding on them?

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Whether the plaintiffs are entitled for the relief as prayed for?

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What order or decree?

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Plaintiff No.1 has examined herself as PW1 and

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another witness examined as PW2 and exhibited 12 documents marked as Exs.P1 to P12. Defendant No.1 examined himself as DW1 and defendant No.3 examined himself as DW2 and two additional witnesses were examined as DW3 and DW4. No documents were produced. On appreciation of the evidence, the Trial Court answered issue Nos.1, 3, 4 and 6 partly in the affirmative, issue Nos.2 and 5 in the affirmative and consequently, decreed the suit.

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As regards the execution of agreement dated 02.11.2006 by defendant No.3 in favor of defendant No.4 the Trial Court in respect of Sy.No.44/P2/E, held that the said agreement was not binding on the plaintiffs.

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8 - NC: 2024:KHC-K:8364 RSA No. 200075 of 2018

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Aggrieved by the said judgment and decree, the defendants have preferred appeal in R.A.No.20/2014 (old No.2/2012). Considering the grounds urged therein, the First Appellate Court has framed the following points for its consideration:

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Whether the plaintiffs prove that the suit schedule properties are the joint family properties?

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Whether the defendants prove that the husband of the 1^st plaintiff had taken his share in the joint family properties in the year 1994?

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Whether appellants/defendants prove that the judgment and decree of the Trial Court is not in accordance with law and it is perverse?

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Whether appellants/defendants prove that the interference of this Court is very much necessary to the judgment and decree of the Trial Court?

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What order or decree?

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On re-appreciation of evidence on record, the First Appellate Court answered point No.1 in the affirmative, point Nos.2 to 4 in the negative and consequently dismissed the appeal confirming the judgment and decree

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9 - NC: 2024:KHC-K:8364 RSA No. 200075 of 2018

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passed by the Trial Court. Aggrieved by the same, the appellants/defendant Nos.2 and 3 are before this Court.

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The learned counsel for the appellants reiterating the grounds urged in the memorandum of appeal submitted that the Trial Court and the First Appellate Court have erred in not appreciating provisions of sub-section (3) of section 6 of the Hindu Succession Act, which stipulates that on the death of co-parcener there shall be deemed division of the property to which such co-parcener is entitled, as if a partition had taken place. As such, before the death of defendant No.1, the suit claiming partition by the grandchildren was not maintainable. He further submits that since succession had not opened up, the Trial Court and the First Appellate Court were not justified in decreeing the suit for partition. Thus, giving rise to substantial question of law to be considered at the hands of this Court.

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Per contra, learned counsel for the respondents

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justifying the judgment and decree passed by the Trial

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10 - NC: 2024:KHC-K:8364 RSA No. 200075 of 2018

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Court, which was confirmed by the First Appellate Court submits that admittedly suit schedule properties are the joint family properties. The only contention that was raised before the Trial Court was with regard to the prior partition that allegedly had taken place in the year 1994 under which Ambanna was allotted share in the family properties

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and defendants had not been able to prove the said contention. Thus, he submits that in the light of the admitted position of law and facts, no error or illegality can be found in the judgment and decree passed by the Trial Court and the First Appellate Court.

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Heard. Perused the records.

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There is no dispute of the fact that the suit schedule properties are the ancestral joint family properties possessed by defendants and the plaintiffs. There is also no dispute that the plaintiffs and the defendants are the members of the Hindu joint family. Ambanna admittedly passed away during the year 22.09.2005 leaving behind plaintiffs as his legal heirs.

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11 - NC: 2024:KHC-K:8364 RSA No. 200075 of 2018

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Though in the written statement relationship and nature of the properties has been admitted a specific contention was raised with regard to oral partition purported to have been taken place in the year 1994.

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However, both the Courts have found that it that the defendants have not been able to prove the alleged oral partition by leading any cogent evidence. As such, declined to accept the contentions of the defendants

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and proceeded to decree the suit. Since these suit schedule properties are the joint Hindu family properties, the Trial Court found and held that the agreement dated 02.11.2006 that was entered into between the defendant No.3 and defendant No.4 to be not binding on the shares of the plaintiffs. No infirmity or illegality can be found in the reasons and conclusion arrived at by the Trial Court and the First Appellate Court. No substantial question of law would arise for consideration.

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It is now submitted across the bar that Durugappa-defendant No.1 also passed away during the

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12 - NC: 2024:KHC-K:8364 RSA No. 200075 of 2018

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pendency of the suit. Though the Trial Court and the First Appellate Court have in concurrence decreed the suit allotting 1/4^th share, it is necessary to note that actual sharers are Durugappa-defendant No.1, his son Kariyappa-defendant No.3 and his predeceased sonAmbanna-the husband and father of plaintiffs respectively. Therefore, the suit schedule properties ought to have been divided into 3 shares, 1/3^rd to be allotted jointly to the share of plaintiffs. Since it is now submitted that even Durugappa-defendant No.1 also passed away during the pendency of the suit, the plaintiffs would also entitled for additional share of 1/3^rd out of the share of Durugappa. As such, plaintiffs together are entitled for 4/9^th share [1/3^rd + 1/9^th = 4/9^th ] in the suit schedule properties. The preliminary decree passed by the Trial Court therefore needs to be modified accordingly.

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With the above modification to the preliminary decree, the appeal is dismissed.

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13 - NC: 2024:KHC-K:8364 RSA No. 200075 of 2018

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In view of disposal of main appeal, pending IAs, if

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any, do not survive for consideration and same stand disposed of.

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Sd/(M.G.S.KAMAL) JUDGE

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KBM,SDU LIST NO.: 1 SL NO.: 17 CT:PK

Smt. Thimmamma and Anr. v. Sri. Hussainamma and Rs

Case brief

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Smt. Thimmamma and Anr. v. Sri. Hussainamma and Rs

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