Partition suit over chalageni land granted jointly to mother and son by Land Tribunal. Courts below held grant was for the joint family; daughter entitled to 1/6th share. Second appeal dismissed, concurrent findings confirmed.
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NC: 2024:KHC:13074 RSA No. 362 of 2024
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 362 OF 2024 (PAR)
BETWEEN:
SMT HONNAMMA
AGED ABOUT 70 YEARS
W/O LATE KRISHNA ANCHAN
(SINCE DEAD)
Digitally signed by SUMA B N Location: High Court of Karnataka
APPELLANTS NOS. 1-4 CHILDREN OF LATE KRISHNA ANCHAN R/AT "KRISHNA ANCHAN" MARATHOTA HOUSE SASHIHITLU POST MANGALORE TLAUK
…APPELLANTS
(BY SRI. UDAYA PRAKASH M.,ADVOCATE)
AND:
RESPONDENTS NOS. 2 TO 4 ARE R/AT "ANCHAN NILAYA" PADOOR POST
KAPU UDUPI TLAUK -574 106.
RESPONDENT'S NO.5 TO 9 ARE CHILDREN OF LATE APPI ANCHAN R/AT H:4 CHURCH HILL COMPOUDN MUMBAI 400103.
SMT. CHANDRAVATHI ANCHAN AGED ABOUT 41 YEARS W/O KAPEERA AMIN SINCE DECEASED
…RESPONDENTS
(BY SRI. RAKESH KINI., ADVOCATE FOR C/R1)
THIS RSA FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 31.01.2024 PASSED IN RA NO.105/2019 ON THE FILE OF I ADDITIONAL SENIOR CIVIL JUDGE AND CJM, MANGALURU, D.K., DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 30.10.2018 PASSED IN OS NO.182/2015 ON THE FILE OF IV ADDITIONAL CIVIL JUDGE, MANGALURU, D.K.,
THIS APPEAL, COMING ON FOR ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the legal representatives of
defendant No.4 aggrieved by the judgment and decree dated 30.10.2018 passed in O.S.No.182/2015 on the file of IV Additional Civil Judge and J.M.F.C, Mangalore (hereinafter 'the Trial Court') which is confirmed by the judgment and decree dated 31.01.2024 passed in R.A.No.105/2019 on the file of I
Additional Senior Civil Judge and C.J.M., Mangalore (hereinafter 'the First Appellate Court').
Tribunal passed the order in favour of Durgi Hengsu and Krishna Anchan jointly. Accordingly occupancy patta in form
No.10 was also conferred in favour of Durgi Hengsu and Krishna Anchan jointly.
2.1 That said Smt.Durgi Hengsu to one Sri.Koraga Poojary and they had six children namely Kalyani Anchan, Krishna Anchan, Appi Anchan, Devaki Anchan (defendant No.14), Seetha Anchan (plaintiff herein) and Chandravathi Anchan (defendant No.15). That, Smt.Durgi Hengsu and her husband Koraga Poojary passed away inte-state leaving behind the aforesaid six children as their only legal heirs, each being entitled for 1/6th equal share in the 'A' schedule property.
2.2 Aforesaid Kalyani Anchan and her husband Nakra Poojary also passed away inte-state leaving behind their three children namely defendants No.1 to 3. Krishna Anchan passed away leaving behind his wife Honnamma (defendant No.4) and their four children namely defendants No.5 to 8. Appi Anchan and her husband Neelaya Poojary also passed away leaving behind five children namely defendants No.9 to 13 as their legal heirs. Thus the plaintiff, defendants No.14 & 15 each have got 1/6th undivided share in the 'A' schedule property. The defendants No.1 to 3 together have got 1/6th right in the 'A'
NC: 2024:KHC:13074 RSA No. 362 of 2024
schedule property. Similarly defendants No. 4 to 8 together and defendants No.9 to 13 together have 1/6th share undivided right in the 'A' schedule property.
2.3 That when the plaintiff sought for partition of the property the defendant No.4 to 8 more particularly legal representatives of Krishna Anchan have declined to consider the request of the plaintiff, constraining the plaintiff to file the above suit for partition and separate possession.
to the 'A' schedule property have been mutated in the name of Late Krishna Anchan. Upon his demise intestate same have been mutated in favour of defendant Nos.4 to 8. That during the lifetime of Late Krishna Anchan there was an oral partition between the plaintiff and defendants which has been acted upon. In terms of said oral partition the plaintiff and defendants have been allotted shares and the said partition has attained finality. A sketch was prepared in terms of the said partition and accordingly they were allotted the shares in the properties. That in the said partition defendant Nos.4 to 8 being the legal representatives of Late Krishna Anchan have been allotted shares as per sketch No.1, the plaintiff has been allotted the share as per sketch No.2, defendant No.14 as per sketch No.3, defendants No.9 to 13 as per sketch No.4, defendants No.1 to 3 as per sketch No.5 and defendantNo.15 as per sketch No.6. Hence sought for dismissal of the suit.
"1. Whether the Plaintiff proves that she is entitled for
1/6th share in the suit schedule 'A' Property?
2. What Order or Decree?"
NC: 2024:KHC:13074 RSA No. 362 of 2024
ADDITIONAL ISSUES
"1. Whether the defendants No.4 to 8 prove the oral partition between the plaintiff and defendants?
2. Whether the plaintiff is entitled for mesne profits?"
documents marked as Ex.P1 to Ex.P8. Ex.D1 and D2 were marked on confrontation during the course of crossexamination of PW.1. In order to prove their defence, the defendant No.8 examined himself as DW.1 and exhibited 6 documents marked as Ex.D3 to D8. On appreciation of the evidence the Trial Court answered issue No.1 in the affirmative and additional issue Nos.1 and 2 in the negative and consequently partly decreed the suit.
"1. Whether the impugned judgment and decree of the Trial Court dated 30.10.2018 is not proper and thereby calls for interference?
2. What order or decree?"
legal representatives of Smt.Durgi Hengsu were not entitled for share in the suit schedule property. Thus, he submits that these are the two principle grounds which are urged by the appellant before the Trial Court and the First Appellate Court which were not made in her favour giving raise to substantial question of law.
Learned counsel for the appellant relies upon the following judgments of the Co-ordinate Bench of this Court:
1. Nimavva and others Vs. Channaveerayya decided on 26.08.2013 in R.F.A.No.4150/2012 C/w 4025/2013.
2. Arvind and another Vs.Smt.Sunanda decided
on 13.01.2020 in R.F.A.No.100149/2014.
NC: 2024:KHC:13074 RSA No. 362 of 2024
rights in respect to subject land was granted by the Land Tribunal on 22.02.1979. Certified copy of the Order is as per EX.P3.
inheritance. As already noted the occupancy rights in respect of the subject land has been conferred in favour of Smt.Durgi Hengsu and Krishna Anchan. The said property therefore has come out of the purview of being the tenanted land by virtue of said declaration and the said property has become the absolute property of the Smt.Durgi Hengsu and Krishna Anchan. Therefore, reference to Section 24 of the Act is of no avail.
NC: 2024:KHC:13074 RSA No. 362 of 2024
N.Padmamma and others Vs. S.Ramakrishna Reddy and
others reported in (2015) 1 SCC 417.
it clear that the grant of said property was in recognition of pre-existing rights and was for and on behalf of the entire joint family and benefit of the same would enure to the entire family. In the absence of any material evidence contrary to the same having been placed before the Trial Court and the First Appellate Court, the findings and the conclusion arrived at by the Trial Court and confirmed by the First Appellate Court that the grant of occupancy rights made was for and on behalf of the family cannot be found fault with.
Sd/JUDGE
RL
2 issues framed by the court
Whether occupancy rights granted to Durgi Hengsu and Krishna Anchan enured to the entire joint family, entitling plaintiff to a 1/6th share?
Whether Section 24 of the Karnataka Land Reforms Act barred the plaintiff from claiming partition of the land?
Colour shows how this judgement treated each authority
N.Padmamma and others Vs. S.Ramakrishna Reddy and othersRelied on
(2015) 1 SCC 417 · Who else cites this
Nimavva and others Vs. ChannaveerayyaReferred
R.F.A.No.4150/2012 C/w 4025/2013
Arvind and another Vs. Smt.SunandaReferred
R.F.A.No.100149/2014
2 provisions across 2 enactments
Smt Honnamma (deceased, represented by legal representatives Rajendra, Padmakshi, Sharmila, Naveen)
Smt Seetha Anchan
M.G.S. Kamal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
