Disposed

Sri J J Anantharaj v. J J Shantharaju

Karnataka HC27 Mar 2024RSA/313/2024

Case brief

AI extract

What is this about?

Partition suit by one son of Jainara N. Jinnappa seeking his share in ancestral and self-acquired properties. Trial court decreed 10/63rd share; first appellate court confirmed. Second appeal contesting maintainability, prior partition of 1977 and self-acquisition claim failed; equal shares per Vineetha Sharma directed.

What did the court decide?

Appeal disposed of; parties to have equal shares per Vineetha Sharma; final decree proceedings directed to be completed within one year.

Sri J J Anantharaj Vs J J Shantharaju — Partition | Karnataka HC (2024)

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NC: 2024:KHC:12577 RSA No. 313 of 2024

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 27^TH DAY OF MARCH, 2024

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BEFORE

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THE HON'BLE MR JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL No. 313 OF 2024 (PAR)

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BETWEEN:

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SRI J J ANANTHARAJ S/O LATE JAINARA N JINNAPPA AGED ABOUT 76 YEARS TELUGU STREET, VIRAJPET TOWN VIRAJPET - 571 218.

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…APPELLANT

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(BY SRI ANIKETH KUNIKULLAYA U, ADVOCATE SRI SACHIN B S, ADVOCATE)

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AND:

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J J SHANTHARAJU S/O LATE JAINARA N. JINNAPPA AGED AOUT 86 YEARS THITHIMATHI VILLAGE AND POST VIRAJPET, KODAGU DISTRICT - 571 254.

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

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SRI J J APPAJI S/O LATE SRI JAINARA N JINAPPA AGED ABOUT 64 YEARS H NO.3949, 3^RD CROSS 5^TH MAIN, GAYATHRINAGAR BANGALORE - 560 021. SINCE DEAD BY HIS LR's.

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J A ANANDA W/O LATE J J APPAJI AGED ABOUT 65 YEARS

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J A MAHAVEER S/O LATE SRI J J APPAJI AGED ABOUT 44 YEARS BOTH R/O No.1238, FLAT No.A4 4^TH FLOOR, VISHWAMITRA ENCLAVE

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NC: 2024:KHC:12577 RSA No. 313 of 2024

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DOUBLE ROAD, BEML LAYOUT 3^RD STAGE, RAJARAJESHWARI NAGAR BANGALORE - 560 098.

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H D KAMLAMMA W/O LATE DHARANENDRA D/O LATE SRI JAINARA N JINAPPA AGED 66 YEARS, OLD POST OFFICE ROAD OPP TO WATER TANK, HASSAN - 573 201.

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H J SUSHEELA W/O LATE JNANENDRA D/O LATE SRI JAINARA N JINNAPPA AGED 55 YEARS, TELUGARA STREET NEAR PANDURANGA, TEMPLE HASSAN - 573 201.

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J J CHANDRA KUMARI D/O J N JINNAPPA AGED ABOUT 50 YEARS DEVANAGERI VILLAGE & POST VIRAJPET TALUK KODAGU DISTRICT - 571 218.

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J N NAGARAJ S/O LATE SRI JAINARA N JINNAPPA AGED ABOUT 60 YEARS DEVANAGERI VILLAGE AND POST VIRAJPET TALUK

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KODAGU DISTRICT - 571 218.

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LATHA W/O LATE RATHNA KUMAR AGED ABOUT 56 YEARS C/O G M RAVIKUMAR PADMA NIVAS, CHINNAPPA REDDY LAYOUT DODDA NAKODU, BANGALORE - 560 037.

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MASTER J R BHARATH S/O LATE RATHNA KUMAR AGED ABOUT 19 YEARS, SINCE MINOR REPRESENTED BY HIS MOTHER AND NATURAL GUARDIAN

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3 - NC: 2024:KHC:12577 RSA No. 313 of 2024

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SMT. LATHA, W/O LATE RATHNA KUMAR C/O G M RAVIKUMAR PADMA NIVAS CHINNAPPA REDDY LAYOUT DODDA NAKODU BANGALORE - 560 037.

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J N RAJA S/O LATE NEMIRAJ AGED ABOUT 60 YEARS TELUGARA STREET NEAR ANGALAMMA TEMPLE VIRAJPET - 571 218.

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J N RAVI S/O LATE NEMIRAJ AGED ABOUT 58 YEARS R/O CHIKPET, VIRAJPET KODAGU DISTRICT - 571 218.

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J N SURENDRA S/O LATE NEMIRAJ AGED ABOUT 33 YEARS C/O VEERABHADRAIAH, DOOR NO.1183, 7^TH CROSS 3^RD MAIN, T BASAVANAHALLI MAHESHWARI NAGAR BANGALORE - 560 048.

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JAINARA C PADMARAJ S/O LATE CHANDRAPPA AGED 83 YEARS DEVANAGIRI VILLAGE AND POST VIRAJPET TALUK KODAGU - 571 218.

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VASUNDRA W/O PADMARAJ AGE ABOUT 86 YEARS DEVANAGIRI VILLAGE AND POST VIRAJPET TALUK KODAGU - 571 218.

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NC: 2024:KHC:12577 RSA No. 313 of 2024

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JAINARA ARUN KUMAR S/O PADMARAJ AGE 45 YEARS JAIN STREET, VIRAJPET TALUK KODAU - 571 218.

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…RESPONDENTS

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(BY SRI RAMESH P KULAKARNI, ADVOCATE FOR C/R -3)

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED: 26.07.2023 PASSED IN RA NO.5012/2019 ON THE FILE OF THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, KODAGU, MADIKERI SITTING AT VIRAJPET, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 15.12.2018 PASSED IN OS.NO.79/2007 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, VIRAJPET AND ETC.,

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THIS 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 defendant No.1 aggrieved by

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the judgment and decree dated 15.12.2018 passed in O.S.No.79/2007 on the file of Senior Civil Judge, Virajpet (hereinafter 'the Trial Court') and which is confirmed by the judgment and order dated 26.07.2023 passed in R.A.No.5012/2019 on the file of II Additional District and Sessions Judge, Kodagu-Madikeri sitting at Virajpet (hereinafter 'the First Appellate Court').

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The above suit in O.S.No.79/2007 is filed by the

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plaintiff against the defendants seeking relief of partition and

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NC: 2024:KHC:12577 RSA No. 313 of 2024

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separate possession and allotment of his 10/72^nd share in the

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suit schedule properties in his favour.

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The case of the plaintiff is that;

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3.1 One Jainara.N.Jinappa had six sons and three daughters. The said Jainara.N.Jinnappa owned and possessed both ancestral and self acquired properties at Mythadi Village, Devanageri Village and in Virajpet Town. That during the year 1958, he had acquired a house in block No.2 of Virajpet Town which was surrounded by vacant land measuring to an extent of 9½ cents as detailed in plaint "A" schedule property. That he had acquired all the properties at Mythadi village, which is more specifically detailed in "B" schedule to the plaint.

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3.2. That the said Jainara N.Jinnappa passed away on 29.03.1987 and his wife predeceased him on 24.02.1982 leaving behind the plaintiff and defendants as their legal heirs. That the properties situated at Devanageri Village is the ancestral property of the said Jainara N.Jinappa, which includes both wetland and bane lands which are more

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NC: 2024:KHC:12577 RSA No. 313 of 2024

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specifically detailed in the schedule "C" to the plaint. But 2.70 acres in Sy.No.172/4 of wetland was purchased by Late J.N.Jinnappa.

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3.3 That during the life time of the said Jainara N.Jinnappa, the suit schedule properties were not divided amongst his legal heirs. Subsequent to the death of the said Jainara N.Jinnappa his sons by name J.J.Nemiraj and J.J.Rathna Kumar have also passed away. As such, legal heirs of deceased J.J.Nemiraj and J.J.Rathna Kumar were made as parties to this suit.

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3.4 That after the demise of said Jainara N.Jinappa, the plaintiff, and the defendants Nos.1, 2 and 5 to 11 were in joint possession and enjoyment of all the suit schedule properties.

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3.5 That during the lifetime of the said J.N.Jinnappa he had executed a Will on 20.4.1984 which was duly registered before the Sub Registrar, Virajpet bequeathed his self acquired property at Virajpet Town, Which is schedule "A" to the plaint in favour of the plaintiff. The plaintiff filed a suit

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against the defendant No.1 in O.S.No.4/1998 for the relief of declaration and possession and said suit was dismissed on 11.01.2007 on technical grounds. In the said Judgment it was made clear that all the properties left behind by the said Jainara N.Jinnappa had not been partitioned by metes and bounds and they were deemed to be in joint possession. As such the plaintiff approached the defendants Nos.1, 2 and 5 to 11 seeking partition of the suit schedule properties. Which was not complied with, constraining the plaintiff to file the above suit.

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Though, summons were served to defendant Nos.2 and 8 did not appear before the Trial Court and were placed ex-parte. The defendant No.1 filed his written statement admitting the relationship between the parties and denying other plaint averments and contended that;

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4.1 The properties of Late Jinnappa were partitioned by metes and bounds as per the partition Mahazar dated 24.04.1977 got prepared and executed by Late Jinnappa and the same was acted upon by all the children of Late J.N.Jinnappa. While partitioning the properties of Mythadi

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and Devanageri Villages of Virajpet Town and Taluk, also confirmed the acquisition and possession of "A" schedule property by defendant No.1. It is further contended that since the partition has not been taken place, there is no question of re-opening of the same.

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4.2 It is contended that the present suit was hit by principle of res-judicata, since the matter had been already been adjudicated by the Competent Court in O.S.No.04/1998. Wherein the plaintiff had failed to establish his exclusive ownership over the "A" schedule property.

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4.3. It is further contended that "A" schedule property were purchased in the name of Late J.N.Jinnappa by the defendant No.1 since he was a minor by the time of the registration and that late J.N.Jinnappa was only a nominal owner, defendant No.1 earned the money by his income as

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a Tailor. Since the defendant was a minor, the property could not be purchased in his name. It is contended that, defendant himself developed "A" schedule property by investing huge sums of money and in also maintaining by paying electrical and water connection charges. He submits

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that all the expenses money was paid by the defendant himself by his tailoring work. That the partition dated 24.04.1977 effected in the presence of the elders of the family and villagers. That he had also contributed in having tenants evicted from the property by paying compensation. Thus contending as above sought for dismissal of the suit. Defendant No.5 filed his written statement adopting the written statement filed by the defendant Nos.3 and 4.

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Based on the pleadings, the Trial Court framed the

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following issues and additional issue for its consideration:

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"1) Whether the plaintiff proves that the suit schedule properties are the joint family properties and are joint possession of the suit schedule properties of plaintiff and defendants?

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2) (Issue No.2 deleted as per order dated 30.08.2013).

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3) Whether the plaintiff proves that, he has 10/72 share in the suit schedule property?

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4) Whether the Defendant No.1 proves that 'A' schedule property is the self acquired property of defendant No.1?

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5) Whether the defendant No.5 proves that, the suit schedule properties where already partitioned in the year 1977 hence the present suit is not maintainable?

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6) Whether the plaintiff is entitled for the relief of partition and separate possession as prayed in the suit?

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7) What order or decree?

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NC: 2024:KHC:12577 RSA No. 313 of 2024

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Additional Issue

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1) Whether the defendants No.1 and 7 prove that suit of the plaintiff is hit under the principles of Resjudicata?"

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The plaintiff examined himself as PW1 and exhibited

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10 documents marked as Ex.P1 to Ex.P21. In order to prove their defence, defendant No.1 has been examined himself as DW1. one additional witness has been examined in favour of

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the defendants as DW.2. Defendant No.10 has been examined as DW.3, defendant No.6 has been examined as DW.4 and exhibited 94 documents marked as Ex.D1 to Ex.D94. On appreciation of the evidence the Trial Court answered issue No.1 in the affirmative, issue No.3 and 6 partly in the affirmative, issues Nos.4, 5 and additional issue No.1 in the negative and consequently decreed the suit holding that the plaintiff is entitled for partition and separate possession of 10/63^rd share in the plaint schedule properties and also declared that defendant Nos.1, 2, 6 are entitled to 10/63^rd share each in the plaint schedule properties and defendant Nos.7 and 8 are together entitled for 10/63^rd share and defendant Nos.9 to 11 are together entitled to 10/63^rd share each in plaint schedule property. While defendant

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NC: 2024:KHC:12577 RSA No. 313 of 2024

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Nos.3 to 5 are entitled to 10/63^rd share each in the plaint schedule properties.

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Being aggrieved by the aforesaid judgment and decree defendant No.1 filed an appeal in R.A.No.5012/2019

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before the First Appellate Court. Considering the grounds urged the First Appellate Court framed the following points for its consideration:

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"1) Whether the appellant has made out ground that the judgment and decree passed by the trial court is capricious, not based on sound principles of law, facts and circumstances?

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2) What Order?"

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On re-appreciation of the evidences, the First

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Appellate Court answered point No.1 in the negative and consequently dismissed the appeal confirming the judgment

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and decree passed by the Trial Court. Being aggrieved by the same defendant No.1-appellant is before this Court.

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Sri.Aniketh Kunikullaya. U, learned counsel for the appellant reiterating the grounds urged in the memorandum of the appeal in principle contended that the present suit ought not to have been decreed as the same was barred in

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NC: 2024:KHC:12577 RSA No. 313 of 2024

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view of provision of Order II Rule 2 of CPC. In that, he firstly submits that in the earlier suit in O.S.No.04/1988, which was filed by the plaintiff for declaration of his title based on the Will, he ought to have sought for larger relief and no relief was sought subsequent to filing of the suit. He relies upon the judgments of the Apex Court in case of Gurbux Singh Vs. Bhooralal reported in AIR 1964 SC 1810. Secondly , it is his further submission that alternatively the present suit ought to have been dismissed as the same is hit by constructive res-judicata. Thirdly , he submitted that the Trial Court and the First Appellate Court have failed to appreciate the earlier partition dated 24.04.1977, in terms of which family properties were divided, same ought not to have re-opened. Thus, learned counsel for the appellant on these three principle grounds submitted that substantial question of law would arise for consideration in this appeal.

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Per contra , Sri.Ramesh.P.Kulakarni, learned

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counsel for the respondent submits that the earlier suit was for declaration of title based on the Will and was not for partition. He submits that even the defendant-appellant

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NC: 2024:KHC:12577 RSA No. 313 of 2024

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herein had set-up a plea of gift, the said suit was dismissed negating the claim of both the defendant No.1 and plaintiffs. He further submits that there was categorical finding in the said suit that the family properties remained joint family properties. As such, he submits that neither there was a prohibition as contemplated under Order II Rule 2 of CPC or hit by the principles of res-judicata. As regards, the earlier partition dated 24.07.1977 is concerned it is contended that

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the said plea was raised even in the earlier suit in O.S.No.04/1988 and the same has been negated. Thus he submits that no substantial question of law would arise for consideration in this appeal. However, he adds that a decree

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was passed by the Trial Court when the law with regard to shares of the parties has not been settled then. As such the decree may have to be modified, awarding equal shares to the parties.

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Heard. Perused the records.

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The relationship between the parties being the

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children and descendents of one Jainara N.Jinnappa is not in dispute. It is also not in dispute that the suit schedule

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properties includes both ancestral and joint family properties. Though the appellant contended that the suit is not maintainable in view of dismissal of the earlier suit in O.S.No.04/1988, the Trial Court at paragraph Nos.42 and 43 of its judgment appreciated the contentions urged by the defendants/appellant therein with regard to applicability or otherwise of provisions of Section 11 of the C.P.C. The Trial Court has held that the earlier suit was dismissed holding that plaint 'A' schedule property is the joint family properties of Jainara N.Jinnappa. At paragraph No.43, the Trial Court has also found that in the earlier suit in O.S.No.04/1988 has been held that the partition dated 24.04.1977 is not binding. Since the reliefs sought in the earlier suit was one for declaration of title and recovery of the possession, not for partition of the plaint schedule properties, the Trial Court has come to the conclusion that the same was neither prohibited under Order II Rule 2 of C.P.C nor was hit by principle of resjudicata.

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The First Appellate Court has concurred the said findings arrived at by the Trial Court. No irregularity or

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illegality can be found with the said reasoning and conclusion arrived at by the Trial Court and confirmed by the First Appellate Court. The judgment relied upon by the learned counsel for the appellant in the case of Gurbux

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Singh(Supra) is not applicable in the present case, as the present case is one for partition and not for declaration of title or possession.

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As regard the submission made on earlier partition made dated 24.04.1977, the Trial Court and the First Appellate Court have found that the said issue which was raised by the defendant in the earlier suit in O.S.No.04/1988 has been negated. Therefore, the same could not be reagitated as the earlier finding remained unchallenged. Further, both the Trial Court and the First Appellate Court have also drawn adverse inference as the so called earlier partition dated 24.04.1977 has not been brought on record by the defendant No.1, though he heavily relied upon the same. In that view of the matter and in view of admitted position of law no fault can be found with the said reasoning negating the contention of the earlier partition.

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As regard to the claim of the appellant of he purchasing the property in the name of his father earning from his avocation as a Tailor, the same cannot be countenanced for the reasons; Firstly , He was a minor when some of the suit items were purchased by Jainara N Jinnappa. Secondly , no material evidence has been brought on record with regard to he having contributed exclusively for the purchase of some of the suit items. Thirdly , there is no prohibition in law in purchasing of the property in the name of a minor. Thus , he acquiring the property in the name of his father contributing as a minor in the absence of any material evidence is highly improbable. The Trial Court and the First Appellate Court having come to the conclusion based on the pleading and material evidence placed on record decreeing the suit cannot be found fault with. Therefore, no substantial question of law would arise for consideration in this appeal. Appeal deserved to be dismissed.

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However, it is necessary at this juncture to refer to judgment of Apex Court in the case of Vineetha Sharma

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NC: 2024:KHC:12577 RSA No. 313 of 2024

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Vs.Rakesh Sharma and others reported in (2020) 9 SCC

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1, the suit schedule properties include both ancestral and self acquired properties of Jainara N Jinnappa. In view of the law laid down by the Apex Court in the present suit parties being the sons, daughters and grandchildren of some of the deceased children Jainara N. Jinappa are entitled for equal share. The equities may have to be worked out in the Final Decree Proceedings in the light of laid down by the Apex Court in the case of Vineetha Sharma (Supra). Accordingly, appeal is disposed of .

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Smt.Chandrakumari, one of the daughters of deceased Jainara N Jinnappa stated to have passed away during the pendency of the suit as a spinster.

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Parties shall co-operate for expeditious disposal of the Final Decree proceedings within an outer limit of one year from the date of receipt of certified copy of this Order.

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Sd/JUDGE

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Sri J J Anantharaj v. J J Shantharaju

Case brief

What is this about?

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Sri J J Anantharaj v. J J Shantharaju

Case brief

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