A M Krishnappa @ Kitty Vs Smt Yasodamma

This RFA is FILED UNDER SEC.96 R/W ORDER XLI RULE 1 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 26.11.2013 PASSED IN O.S.NO.4654/1996 ON THE FILE OF THE XXII ADDL. CITY CIVIL & SESSIONS JUDGE, Bangalore, DECREEING THE SUIT FOR PARTITION.

¶40

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

¶41

[CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH

¶42

4 -

¶43

NC: 2025:KHC:42697 RFA No. 272 of 2014

¶44

HC-KAR

¶45

ORAL JUDGMENT

¶46

This appeal is preferred by the defendant Nos.4 and 5, assailing the judgment and decree dated 26.11.2013 passed in O.S. No.4654/1996 on the file of XXII Additional City Civil and Sessions Judge, Bengaluru, decreeing the suit of the plaintiff.

¶47

For the sake of convenience, the parties are referred to as per their ranking before the Trial Court.

¶48

The plaint averments are that the plaintiffs, defendant No.2 and one Siddalingamma are the children of Munivenkatappa and Narasamma (defendant No.1). It is the case of the plaintiffs that the suit schedule properties are the joint family properties of the plaintiffs and defendant Nos.1 to 3 and as such, sought for share in the suit schedule properties. Hence, the plaintiffs have filed O.S.No.4654/1996 seeking relief of partition and separate possession in respect of the suit schedule properties.

¶49

Defendant Nos.1 and 2 entered appearance and filed written statements. During the pendency of the suit, defendant No.1 died. Defendant Nos. 4 and 5, who claims to be the purchasers of the 'A' Schedule property, filed a detailed

¶50

5 -

¶51

NC: 2025:KHC:42697 RFA No. 272 of 2014

¶52

HC-KAR

¶53

written statement. Defendant No.3, was served, remained absent and was accordingly placed ex-parte .

¶54

Defendant Nos. 1 and 2, have taken a specific plea that the 'A' Schedule property was sold in favour of defendant Nos.4 and 5 with the consent of the plaintiffs, to discharge the debts raised by late Munivenkatappa and therefore, sought for dismissal of the suit with regard to the 'A' Schedule property.

¶55

It is also the case of defendant Nos.1 and 2 that the defendant No.2 acquired the 'B' Schedule property from the Government and constructed a house and accordingly, denied the claim made by the plaintiffs. Defendant Nos. 4 and 5 entered appearance and filed detailed written statement and contented that, the defendant Nos.4 and 5 are bona fide purchasers of the 'A' Schedule property and these properties have been sold in favour of defendant Nos.4 and 5 with the consent of other coparceners of the joint family and accordingly, they sought for dismissal of the suit.

¶56

The Trial Court based on the pleadings on record, formulated the issues and the evidence was recorded. The Trial Court by its judgment and decree dated 01.08.2005, decreed

¶57

6 - NC: 2025:KHC:42697 RFA No. 272 of 2014

¶58

HC-KAR

¶59

the suit of the plaintiffs. Being aggrieved by the same the defendant Nos.4 and 5 have preferred RFA No.1436/2005 before this Court and the Division Bench of this Court vide judgment and decree dated 11.01.2012, allowed the appeal, consequently set aside the judgment and decree dated 01.08.2005 and remanded the matter to the Trial Court for fresh consideration. After remand made by this Court, the Trial Court has formulated the following issues and additional issues, which reads as under:

¶60

“1. Whether the plaintiffs prove that suit schedule 'A' and 'B' properties are the self acquired properties of late Munivenkatappa?

¶61

2. Whether defendant Nos.1 and 2 prove that late Munivenkatappa borrowed a loan from different persons and banks to the tune of Rs.2,00,000/-?

¶62

3. Further defendant Nos.1 and 2 prove that for the purpose of discharging loan borrowed by late Munivenktappa, 'A' schedule property has been sold out to defendant Nos.4 and 5?

¶63

4. Whether defendant No.2 proves that 'B' schedule house is his self acquired property?

¶64

5. Whether defendant Nos. 4 and 5 prove that they are the bona fide purchasers of 'A' schedule property for valuable consideration without notice?

¶65

7 -

¶66

NC: 2025:KHC:42697 RFA No. 272 of 2014

¶67

HC-KAR

¶68

6. Whether plaintiffs 1 and 2 prove that they are entitled to 1/5^th share in the suit schedule properties?

¶69

7.What Decree or Order?

¶70

Additional Issue:

¶71

1. Whether defendants No.4 and 5 prove that suit filed by plaintiff for partial partition is not maintainable?”

¶72

In order to establish their case, the plaintiff No.1 was examined herself as P.W.1 and produced seven documents and same were marked as Exs.P1 to P7. On the other hand, the defendants have examined five witnesses as D.W.1 to D.W.5 and got Marked eighteen documents, which were marked as Exs.D1 to D18.

¶73

The Trial Court after considering the material on record, by its judgment and decree dated 26.11.2013, decreed the suit of the plaintiffs and being aggrieved by the same, the defendant Nos.4 and 5 have presented this Regular First Appeal.

¶74

I have Heard Sri. Sreevatsa, learned Senior Counsel appearing on behalf of Sri. Mahantesh S Hosmath, learned counsel for the appellants and Sri. M C Ravi Kumar, learned counsel appearing for the respondent Nos.1 and 2.

¶75

8 -

¶76

NC: 2025:KHC:42697 RFA No. 272 of 2014

¶77

HC-KAR

¶78

Sri. Sreevatsa, learned Senior Counsel appearing

¶79

for the appellants, without inviting the attention of the Court to the findings recorded by the Trial Court on all the issues, raised a preliminary objection that the suit filed by the plaintiffs is not maintainable, as the plaintiffs have not included all the properties of the joint family of late Munivenkatappa and his children and as such, he referred to the Schedule property in the Sale Deed dated 12.07.1971 (Ex.D13) and consequential revenue entry made as per Ex.D14.

¶80

In this regard, Sri. Sreevatsa, learned Senior Counsel appearing for the appellants invited the attention to the judgment of the Hon'ble Supreme Court in the case of KENCHEGOWDA (SINCE DECEASED) BY LRS. VS. SIDDEGOWDA ALIAS MOTEGOWDA , reported in (1994) 4 SCC 294 and the judgment of the Division Bench of this Court in RFA NO.100081/2017 , disposed of on 13.06.2023 and submitted that in light of the non-inclusion of all the joint family properties, the suit for partial partition is not maintainable.

¶81

Per contra, Sri. M.C. Ravikumar, learned counsel appearing for respondent Nos.1 and 2, sought to justify the

¶82

9 -

¶83

NC: 2025:KHC:42697 RFA No. 272 of 2014

¶84

HC-KAR

¶85

impugned judgment and decree passed by the Trial Court and he argued that the appellants herein have purchased the 'A' Schedule property and to that extent, the judgment and decree of the Trial Court, which requires to be confirmed, as the non-inclusion of the property at Ex.D13 would not affect the equitable claim made by the defendant Nos.4 and 5 and therefore, the appeal requires to be dismissed. It is also argued by Sri. M.C. Ravikumar that, the appellants herein have to work out their remedy elsewhere and the same judgment and decree which is challenged in the present appeal would not affect the rights of defendant Nos.4 and 5 and as such, sought for dismissal of the appeal.

¶86

In the light of the submission made by the learned counsel appearing for the parties, the points for consideration in this appeal is as follows:

¶87

"1. Whether the suit is maintainable without adding remaining joint family properties?

¶88

2. Whether the judgment and decree requires interference in this appeal?"

¶89

10 -

¶90

NC: 2025:KHC:42697 RFA No. 272 of 2014

¶91

HC-KAR

¶92

I have carefully perused the judgment and decree

¶93

dated 11.01.2012 passed in RFA No.1436/2005 at Paragraph Nos.6 to 8, which reads as follows:

¶94

“6. Having heard the counsel for the parties, we have to consider two points in this appeal:

¶95

1. Whether the plaintiffs prove that the suit schedule properties are the self-acquired properties of their father?

¶96

2. Whether the defendants prove that they are the bonafide purchasers for valuable sale consideration?

¶97

7. So far as point No.1 is concerned, plaintiffs have not placed any materials to show how and when Munivenkatappa purchased the suit schedule properties. In other words, without producing any document plaintiffs are asserting schedule properties as self-acquired properties of Munivenkatappa. If really the suit schedule properties are self-acquired properties of Munivenkatappa as these properties worth more than Rs.100/-, there shall be registered sale deed in his favour and it is granted by the Government, there shall be an order of grant, but no such document is produced by the plaintiffs. We have also seen mutation records produced by the defendants. Ex.D-3 is the mutation register which discloses that after the death of Munivenkatappa, as legal heirs, khata has been transferred to the name of his widow Narasamma and his son Siddalingappa. From Ex.D-3 also it cannot be inferred whether schedule properties were self-acquired properties of Munivenkatappa or not. Be that as it may, in one breath PW-1 has admitted that schedule property as ancestral property of her father. Even though in the next sentence she has deposed that it is the self-acquired property of her father. Based on mere oral evidence, no court can give a finding whether

¶98

11 -

¶99

NC: 2025:KHC:42697 RFA No. 272 of 2014

¶100

HC-KAR

¶101

schedule properties were self-acquired properties or not. If no really, there is no sale deed or grant made in favour of the father of the plaintiffs, share granted to the plaintiffs on the date of the suit would get reduced and they are not entitled for 1/5th share as the suit was instituted before amendment to Hindu Succession Act. In the circumstances, we are of the view that findings of the court below on issue No.1 is erroneous and liable to be set aside.

¶102

8. In view of our finding on point No.1, we are of the opinion that matter requires to be remanded to the trial court to give a specific finding to enable the parties to produce the documents if any and they are also at liberty to amend their pleadings and lead further evidence. In view of our finding on point No.1, there is no necessity for us to consider point No.2 and the said question shall also be reconsidered by the court below.”

¶103

Even without going into the merits of the case, I have carefully examined the arguments advanced by the learned counsel appearing for the parties, particularly with regard to the non-inclusion of the property mentioned in Ex.D13. In this regard, it is relevant to extract paragraph No.16 of the judgment of the Hon'ble Supreme Court in Kenche Gowda (supra), which reads as under:

¶104

“16. Therefore, what has been held is that the property had not been allotted in favour of the first defendant in the partition. That is very different from holding that the case of partition had not been accepted by the first appellate court. This being so, a decree for

¶105

12 -

¶106

NC: 2025:KHC:42697 RFA No. 272 of 2014

¶107

HC-KAR

¶108

partition could not have been passed on a mere application for amendment. In fact, as rightly urged by the learned counsel for the appellant that the causes of action are different and the reliefs are also different. To hold that the relief of declaration and injunction are larger reliefs and smaller relief for partition could be granted is incorrect. Even otherwise, a suit for partial partition in the absence of the inclusion of other joint family properties and the impleadment of the other co-sharers was not warranted in law. Thus, we find no difficulty in allowing these appeals which are accordingly allowed. The judgment and decree of the trial court as affirmed by the first appellate court are restored. However, there shall be no order as to costs.”

¶109

17. The Hon'ble Supreme Court in the case of

¶110

S.SATNAM SINGH & OTHERS V. SURENDER KAUR &

¶111

ANOTHER , reported in AIR 2009 SC 1089 at paragraph No.16, has held as follows:

¶112

"16. Before adverting to the rival contentions of the parties, it must be kept in mind the principle that ordinarily a party should not be prejudiced by an act of court. It must also furthermore be borne in mind that in a partition, suit where both the parties want partition, a defendant may also be held to be a plaintiff. Ordinarily, a suit for partial partition may not be entertained. When the parties have brought on records by way of pleadings and/or other material that apart from the property mentioned by the plaintiff in his plaint, there are other properties which could be a subject matter of a partition, the court would be entitled to pass a decree even in relation thereto."

¶113

(Emphasis supplied)

¶114

13 - NC: 2025:KHC:42697 RFA No. 272 of 2014

¶115

HC-KAR

¶116

Following the declaration of law made by the

¶117

Hon'ble Supreme Court in the above cases, it has to be held that a suit for partial partition is not maintainable without including the entire joint family properties. In the present case, though the property mentioned in Ex.D13 has not been included in the suit schedule properties, however, it is forthcoming from the records with regard to the non-inclusion of the Schedule mentioned in Ex.D13 in the Schedule properties.

¶118

Though the learned counsel appearing for respondent Nos.1 and. 2 submitted that the plaintiffs have no knowledge about the property mentioned in Ex.D13, however, the Schedule property in Ex.D13 is not included in the suit schedule properties and in that view of the matter, I find force in the submission made by Sri. Sreevatsa, learned Senior Counsel appearing for the appellants as to the maintainability of the suit is concerned. In order to put an end to the division of properties between the plaintiffs and the defendants in accordance with law and having arrived at a conclusion that the property mentioned in Ex.D13 has not been included in the suit schedule properties, I am of the view that, the point for

¶119

14 -

¶120

NC: 2025:KHC:42697 RFA No. 272 of 2014

¶121

HC-KAR

¶122

consideration referred to above, favours the appellant's herein

¶123

to remand the matter to the Trial Court to put an end to the controversy with regard to inclusion of the property mentioned in Ex.D13 in the suit schedule properties.

¶124

Hence, I pass the following:

¶125

ORDER

¶126

The appeal is allowed .

¶127

The judgment and decree dated 26.11.2013 passed in O.S. No.4654/1996 on the file of XXII Additional City Civil and Sessions Judge, Bengaluru, is hereby set aside.

¶128

The matter is remanded to the Trial Court to reconsider the issue afresh and to ensure that the property mentioned in Ex.D13 shall be included in the suit schedule properties, and such other properties if any for resolution of the dispute between the parties.

¶129

It is also made clear that, all the contentions of the parties are kept open and they are permitted to adduce evidence, if any, in the circumstances of the case.

¶130