Dismissed

Sri. Nanjundaaradhya v. Smt. B. Siddagangamma

Karnataka HC16 Jul 2024RSA/343/2023

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a regular second appeal against decrees granting a daughter a share in ancestral properties. The Court held the partition of 1989 did not bind the daughter as she was not a party, and while acknowledging the right to a larger share under 2005 Amendment, it found no substantial question of law warranting interference with the lower courts' ratio.

What did the court decide?

The Second Appeal is dismissed. No stay granted. Relief to be formalized in Fresh Decree Proceedings.

Sri. Nanjundaaradhya Vs Smt. B. Siddagangamma — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:27632 RSA No. 343 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF JULY, 2024

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH

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REGULAR SECOND APPEAL NO. 343 OF 2023 (PAR)

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BETWEEN:

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SRI. NANJUNDAARADHYA S/O. LATE BHADRAIAH, AGED ABOUT 60 YEARS, R/AT YELERAMPURA VILLAGE, KOLALA HOBLI, KORATAGERE TALUK, TUMAKURU DISTRICT-572129.

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…APPELLANT

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(BY SRI SOMASHEKHARAIAH R.P., ADVOCATE)

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AND:

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Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

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SMT. B.SIDDAGANGAMMA D/O. N. BHADRAIAH, W/O. S. NATARAJ, AGED ABOUT 64 YEARS, R/AT AKKATAMMANAHALLI VILLAGE, DODDABELAVANAGALA HOBLI, DODDABALLAPURA TALUK, BENGALURU RURAL DISTRICT-561204.

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SMT. SUMANGALAMMA W/O. LATE N. BHADRAIAH, AGED ABOUT 85 YEARS, R/AT YELERAMPURA VILLAGE, KOLALA HOBLI, KORATAGERE TALUK, TUMAKURU DISTRICT-572129.

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…RESPONDENTS

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(BY SRI ABHINAY Y.T., ADVOCATE FOR R1; R2-SERVED)

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NC: 2024:KHC:27632 RSA No. 343 of 2023

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 15.12.2022 PASSED IN R.A.NO.5006/2022 ON THE FILE OF THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE, TUMAKURU, SITTING AT MADHUGIRI. DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 26.11.2021 PASSED IN O.S.NO.25/2014 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND JMFC, MADHUGIRI.

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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 matter was heard earlier in part. Today

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heard the learned counsel for appellant and also learned counsel for respondents.

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The factual matrix of case of plaintiff before the Trial Court that one N.Bhadraiah is the father of the plaintiff and defendant No.2. The defendant No.1 is the mother of the plaintiff and defendant No.2. The said N.Bhadraiah was the kartha of the joint family and he died long back leaving behind the plaintiff and defendants as his legal heirs. The plaintiff and defendants constituted an undivided Hindu joint family governed by Mithakshara school of law. After the death of N.Bhadraiah, the

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defendant No.1 became the Manager of the joint family. The plaintiff is the married daughter of late N.Bhadraiah and she was married to one S.Nataraj and now she is residing in her husband’s house. Suit schedule properties are the ancestral and joint family properties of plaintiff and defendants. After the death of N.Bhadraiah, plaintiff and defendants are in joint possession and enjoyment of the suit schedule properties. Suit schedule properties are not divided between the plaintiff and defendants. The plaintiff is not willing to continue in the joint family as a member, hence about one month back she has demanded and requested the defendants to allot her legitimate share in the suit schedule properties for which the defendants have totally refused to effect the partition. The plaintiff has also convened panchayath but the defendants refused to effect the partition. Since the suit schedule properties are the ancestral land joint family properties, the plaintiff is entitled for 1/3^rd share in the same as per provisions of Hindu Succession Act (Amendment), 2005. Hence, the plaintiff is constrained to file the suit.

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NC: 2024:KHC:27632 RSA No. 343 of 2023

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In pursuance of suit summons, the defendants

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have appeared and filed their written statement. The defendant No.1 being the mother has admitted the relationship but denied that suit schedule properties are the ancestral and joint family properties of plaintiff and defendants. According to her, one Nanjundappa was the common ancestor and he died leaving behind his two sons by name Shivarudraiah and N.Bhadraiah. One Bhadramma is the wife of said Shivarudraiah and he died issue-less. The second son N.Bhadraiah is the husband of defendant No.1 and he was also died during the year 1974. Both Shivarudraiah and N.Bhadraiah were resided separately doing business i.e., Mandi-merchant and he has earned lot of money and properties in his name. The said Shivarudraiah and defendant No.1 got partitioned the ancestral and joint family properties through registered partition deed dated 16.10.1987, accordingly Sy.No.32/1, Sy.No.1/8A1A, Sy.No.33/1A of Yelerampura village and land in Sy.No.14/3, Sy.No.14/4, Sy.No.14/5 of Irakasandra village, Sy.No.22/1, Sy.No.22/2 and Sy.No.22/3 of

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Neelagondanahalli village was given to the share of defendant No.2 represented by his mother i.e., defendant No.1. Subsequently, the said Shivarudraiah died in the month of December 1987 issue-less. The defendant No.1 contended that defendant No.2 has got married in the year 1978 and he has 3 children. After his marriage there was no cordial relationship between defendant No.1 and her daughter-in-law and therefore they once again partitioned the suit schedule properties between defendant No.1 and 2 through registered partition deed dated 25.01.1989. Accordingly, Sy.No.33/1A and Sy.No.22/2 i.e., item No.1 and 5 of the suit schedule properties were allotted to the share of defendant No.1. Accordingly, the defendant Nos.1 and 2 are in possession of the properties allotted to their share. After two years, the defendant No.1 started to reside with defendant No.2 and out of love and affection towards defendant No.2, defendant No.1 executed registered Will dated 22.02.2017 bequeathing the properties allotted to her share in the registered partition deed. Since there was registered partition deed in the year

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1989 itself, the question of effecting partition once again does not arise. The defendant No.2 has also filed written statement contending that at the time of partition, the land in Sy.No.14/3 was not much yielding. Thereafter, the defendant No.2 has made all improvements by taking debts of more than Rs.35,00,000/- and it is not yet discharged. The defendant No.1 has cultivated item Nos.1 to 5 of the suit schedule properties. The defendant No.1 has received an amount of Rs.1,00,000/-. Since there was a partition in the year 1989 itself there was an end of joint family status. The plaintiff is no longer a member of joint family and she has purposefully not disclosed the said facts in the suit. The defendant No.2 has invested Rs.30,00,000/- and installed 8 bore-wells and pump set in the suit schedule properties. He has borrowed loan more than Rs.25,00,000/- from commercial banks and other persons. Suit is also barred by law of limitation. Hence, prayed the Court to dismiss the suit.

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NC: 2024:KHC:27632 RSA No. 343 of 2023

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The Trial Court having considered the pleadings

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of the parties, framed issues and allowed the parties to lead evidence. The plaintiff examined himself as PW1 and got marked Ex.P1 to Ex.P13. On the other hand, the defendant No.2 got examined himself as DW1 apart from two more witnesses as DW2 and DW3 and got marked the documents as per Ex.D1 to Ex.D17. The Trial Court having considered the material on record, comes to the conclusion that item Nos.1 to 9 are the ancestral and joint family properties and not item Nos.10 to 12 and also answered issue Nos.2 and 3 that the partition has taken place between Shivarudraiah and wife of Bhadraiah and also comes to the conclusion that there was a partition between defendant Nos.1 and 2 and answered issue No.2 as plaintiff is entitled for share in item Nos.1 to 9 of suit schedule properties and additional issue regarding liability is concerned, answered as negative regarding discharging debt as contended in paragraph No.14(a) and decreed the suit granting 1/6^th share in respect of the suit schedule properties.

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Being aggrieved by the judgment and decree of the Trial Court, an appeal is filed in R.A.No.5006/2022 before the First Appellate Court. The First Appellate Court having considered the grounds urged in the appeal memo, formulated the point for consideration as whether the Trial Court is right in holding that plaint schedule properties are not the absolute properties of defendant No.1 by virtue of partition deed dated 16.10.1987 as per Ex.D16 and whether the Trial Court right in granting 1/6^th share in the pliant schedule property to the plaintiff. The First Appellate Court answered both the point Nos.1 and 2 as affirmative and point No.3 as negative in coming to the conclusion that it does not requires any interference and also extracted the admission on the part of PW1 in paragraph No.22 and affirmed the judgment of the Trial Court with regard to even allotment of 1/6^th share and dismissed the appeal.

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Being aggrieved by the concurrent judgment of Trial Court as well as First Appellate Court in granting the relief of partition in respect of item Nos.1 to 9, the present

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second appeal is filed. The main contention of the counsel appearing for the appellant before this Court that both the Courts committed an error in decreeing the suit of the plaintiff and admittedly properties are divided between the defendant Nos.1 and 2 on 21.10.1989 i.e., before 20.12.2004 and allotting of share in favour of plaintiff is not in accordance with law and whether the plaintiff can seek share in the properties allotted to the share of defendant No.1 under partition deed dated 16.10.1987 and she has become the absolute owner and the said properties are divided between the defendants among themselves under registered partition deed dated 21.10.1989 itself. When the document of partition was registered in the year 1989 and the plaintiff is having the knowledge of same and hence the suit is barred by limitation and having knowledge about the partition in the year 1989 when there is an admission to that effect, the Trial Court ought not to have granted the relief. The First Appellate Court also rightly considered the said aspect while allotting the share.

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It is also the contention of the counsel that

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when the document in the year 1989 itself came into existence and the same was registered and partition was also intersay between the mother and son, she cannot claim any partition by filing a suit in the year 2014 and hence, committed an error.

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Per Contra, the counsel appearing for the respondent would vehemently contend that it is not in dispute that property belongs to the ancestral property and there is a reference in the document of the year 1987 itself when the partition was taken place between the Shivarudrappa and the wife of Bhadraiah i.e., his brothers and document is also registered on 06.10.1987 and recitals also discloses that it is an ancestral property. The counsel also would submits that no doubt there was registered partition deed between mother and son i.e., 25.01.1989 and at the time of partition also the plaintiff is not a party and the same was not in the knowledge and only she admits that there was a document of the year 1989 and

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when the suggestion was made that she was also present at the time of registration of partition deed and the same is not established and even if she is present at the time of executing the document on 25.01.1989, they would have taken the signature of plaintiff but no such signature was taken and when there was a partition between mother and son and she was not a party and the same is not binding and the said fact is also taken note of by the Trial Court as well as the First Appellate Court.

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In reply to the argument, counsel appearing for

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the appellant brought to notice of this Court the admission elicited from the mouth of PW1 regarding the partition and making improvement in respect of the suit schedule property by the brother and taking into note of clearing of the said loan.

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Having heard the appellant’s counsel and also the counsel appearing for the respondent and having considered the document of partition deed dated 06.10.1987 and the same was registered document and

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both the parties are also not disputes the said document of intersay between the Shivarudrappa and wife of Bhadraiah i.e., mother of the defendant Nos.1,2 and also the plaintiff. Subsequently, there was partition between the mother and son dated 25.01.1989 and the same is also a registered document. No doubt the PW1 admits the partition of the year 1989, but the suggestion was made that she was very much present and also having the knowledge, the said suggestion was denied and nothing is elicited that she was having the knowledge of 1989 document executed in the year 1989 itself and she is a part of the said document and there is a force in the contention of the appellant’s counsel that she was having the knowledge and knowingfully well and kept quite for a period of more than 25 years and to that effect no admission that as on the date of partition between mother and son, she was very much present. When the suggestion was made, she categorically denied that she was very much present. The Trial Court also taken note of that if really she was present at the time of execution of partition deed, they ought to have taken the

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signature of the daughter also and taken note of that when she was not a party to the said partition intersay between the mother and defendant, the same will not binds on the plaintiff.

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The First Appellate Court also on

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re-appreciation of evidence available on record and no doubt in view of the contention of the appellant’s counsel, answers elicited from the mouth of PW1 is also extracted in the judgment of the First Appellate Court and with regard to the admission that she was having the knowledge of partition deed executed in the year 1989 and nothing is elicited and when the suggestion was made, categorically denied by the plaintiff, when she was not a party to the said document of the year 1989 and it is a clear case that when the demand was made for partition and she has made an arrangement for panchayat also and both the defendant Nos.1 and 2 did not agree for the partition.

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The counsel appearing for the appellant also

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brought to notice of this Court that in the cross-

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14 -

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NC: 2024:KHC:27632 RSA No. 343 of 2023

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examination PW1, he has admitted item Nos.1 and 5 are given to mother in terms of the partition deed and also the mother was given property to possession of the son in order to continue the cultivation and in terms of the document of the partition of the year 1989, item Nos.1 and 5 are allotted to the mother and merely she is aware of the said fact into consideration and the same cannot defeat the right of the plaintiff. Even handing over the possession in favour of son to cultivate the property and receiving an amount of Rs.1,00,000/- will not take away the case of the plaintiff when the plaintiff is not a party to the partition and

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her right cannot be defeated and that is only the development subsequent to the partition by handing over the possession to son when she was unable to continue the cultivation and the said admission cannot defeat the right of the plaintiff as contended by the appellant’s counsel. When she was not a party to the partition and when she comes to know about the partition subsequently, she had filed the suit also and claiming the share in respect of her share is concerned in the year 2014 and hence, I do not

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find any ground to reverse the finding of the Trial Court as well as the First Appellate Court. Both the Courts have taken note of the material available on record in respect of item Nos.1 to 9 is concerned and in respect of item Nos.10 to 12 taken note of document are standing in the name of defendant No.2 and the plaintiff failed to prove that those properties are ancestral properties and rightly taken note of both oral and documentary evidence available on record only restricting the claim made in respect of item Nos.1 to 9 and not in respect of item Nos.10 to 12. Hence, I do not find any error committed by the Trial Court as well as the First Appellate Court in granting the relief.

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It is important to note that when the suit is filed, she has claimed for 1/3^rd share since mother and brother and also herself constitute the coparceners in respect of the ancestral property is concerned. The Trial Court granted only 1/6^th share and the same is upheld by the First Appellate Court and in view of the judgment of the Vineetha Sharma’s case, it shall be modified as 1/3^rd share

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and not 1/6^th share and hence the judgment and decree to be modified and while getting the final decree and allotment of share that can be claimed during the F.D.P proceedings and no ground is made out to admit and frame substantial question of law to invoke Section 100 of C.P.C.

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In view of the discussions made above, I pass the following:

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ORDER

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i) The Second Appeal is dismissed.

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ii) In view of dismissal of the appeal, I.As., if any do not survive for consideration, the same stands disposed of.

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RHS

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List No.: 1 Sl No.: 67

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Sd/JUDGE

Sri. Nanjundaaradhya v. Smt. B. Siddagangamma

Case brief

What is this about?

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Sri. Nanjundaaradhya v. Smt. B. Siddagangamma

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