Sri K B Raju Vs Smt K v Manjula

SMT. K.V. MANJULA W/O MANJUNATH D/O LATE WODEYAR BASAPPA AGED ABOUT 38 YEARS R/O AGASARABEEDI NEAR GULLAMMANA TEMPLE CHANNAGIRI TOWN & POST DAVANAGERE DISTRICT.

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SMT. SANNAMMA W/O LATE WODEYAR BASAPPA AGED ABOUT 76 YEARS R/O T B ROAD, HALEPETE KADUR TOWN, KADUR - 577 548 CHICKMAGALUR DIST.

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2 - NC: 2025:KHC:35279 RSA No. 1382 of 2013

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HC-KAR

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SMT. BAVI SIDDAMMA W/O BULUGAPA NAGANNA AGED ABOUT 61 YEARS R/O SHIVANI TOWN & POST - 577 549 TARIKERE TALUK CHICKMAGALUR DISTRICT.

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SMT. PAVITHRAMMA W/O BEERAPPA D/O WODEYAR BASAPPA AGED ABOUT 58 YEARS R/O NAGAPPA COLONY TARIKERE TOWN - 577 228.

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SRI K.B. HALAPPA S/O LATE WODEYAR BASAPPA AGED ABOUT 56 YEARS R/O T.B. ROAD, HALEPETE KADUR TOWN, KADUR - 577 548 CHICKMAGALUR DIST.

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SMT. LAKSHMIDEVI W/O DEVARAJAPPA D/O LATE WODEYAR BASAPPA AGED ABOUT 51 YEARS R/O NEAR KALYANA MANTAPA AJJAMPURA TOWN - 577 547 TARIKERE ROAD, TARIKERE TALUK CHICKMAGALUR DIST.

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SRI K.B. KUMAR S/O LATE WODEYAR BASAPPA AGED ABOUT 48 YEARS R/O T.B. ROAD, HALEPETE KADUR TOWN, KADUR - 577 548 CHICKMAGALUR DIST.

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…RESPONDENTS

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(BY SRI KIRAN KUMAR K, ADV., FOR SRI CHANDRASHEKAR L, ADV., FOR R-1, R-3, R-4 & R-6; R-7 SERVED; R-2 & R-5 APPEAL ABATED V.C.O. DT.28.04.2025.)

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HC-KAR

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGEMENT & DECREE DTD 13.3.2013 PASSED IN R.A.NO.59/2009 ON THE FILE OF THE PRL. DISTRICT JUDGE, CHIKMAGALUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 22.4.2009 PASSED IN O.S.NO.47/2007 ON THE FILE OF THE CIVIL JUDGE (SR.DN) & JMFC., KADUR.

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

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CORAM: HON'BLE MR. JUSTICE ANANT RAMANATH HEGDE

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ORAL JUDGMENT

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This appeal is filed against concurrent findings in a suit

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for partition and separation possession. The appeal is by

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defendant No.7. The admitted genealogy is as under:-

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WODEYAR BASAPPA & SMT. SANNAMMA (Sannamma-

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defendant No.1)

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Smt. Pavithramma Smt.Lakshmidevi K.B. Raju K.B. Mahesha (Dead) (Daughter) (Daughter) (Son) Un-married (Son)

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Smt. Bavisiddamma K.S.Halappa K.B.Kumara Smt. Manjula (Daughter) (Son) (Son) (Daughter)

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One Sri. Wodeyar Basappa was the propositus.

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Smt. Sanamma was his wife. The couple had seven children.

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Four daughters and three sons.

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HC-KAR

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The suit is filed by one of the daughters Smt. K. V.

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Manjula. First defendant is the mother of

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the plaintiff and the remaining defendants.

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The suit is filed on the premise that after the demise of Wodeyar Basappa, there is no partition in the family and plaintiff claimed 1/5^th share in the suit schedule properties.

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Defendant No.7 contested the suit. Rest of the defendants did not contest the suit. Defendant No.7 took a stand that plaintiff has taken Rs.5 lakhs in cash in the oral partition that has taken place in the family as such, she is not entitled to any share in the suit schedule properties.

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Defendant No.7 also took a contention that there was a registered partition among the brothers of the plaintiff vide registered partition deed dated 07.04.2005 and contended that because of the said partition, the plaintiff is not entitled to any share in the suit schedule properties.

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The Trial Court rejected defendant's contention and granted a decree for partition and separate possession holding that the oral partition pleaded by defendant No.7 is not

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HC-KAR

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established and Rs.5 lakhs said to have been given to the plaintiff in lieu of her share in the family properties is not established.

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The Trial Court also held that the registered partition deed dated 07.04.2005 doesn’t bind the plaintiff as the plaintiff is not a party to the said partition. It is relevant to notice that the Trial Court has granted 9/40^th share to the plaintiff.

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Defendant No.7 filed an appeal and appeal is also dismissed concurring with the findings of the Trial Court. Hence, the present second appeal by Defendant No.7.

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Learned counsel for defendant No.7 would urge that evidence is led to establish the fact that there was oral partition in the family and the plaintiff was given Rs.5 lakhs in cash towards her share in the family properties. It is also urged that on 07.04.2005, there was a registered partition in the family among the brothers and that partition does bind the plaintiff as she had already taken Rs.5 lakhs in the earlier partition and

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HC-KAR

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hence, she was not a necessary party to the subsequent partition dated 07.04.2005 among the brothers.

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It is also urged that the properties being ancestral properties, the plaintiff is not entitled to 9/40^th share. At the most, the plaintiff is entitled to the share in the properties held by the father.

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Learned counsel for the respondents No.1, 3 and 6 would urge that the alleged oral partition pleaded by defendant No.7 is not established. It is not established that plaintiff has taken Rs.5 lakhs in cash towards her share in the family properties. It is also urged that the registered partition dated 07.04.2005 is not binding on the plaintiff for two reasons, namely;

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a) the plaintiff is not a party to the said partition

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b) the said partition is not a valid partition in the eye of law in view of amendment to Section 6 of the Hindu Succession Act, 1956.

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This Court has considered the contentions raised at

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the bar and perused the records.

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HC-KAR

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Both Courts have concurrently held that oral partition pleaded by defendant No.7 is not established and payment of Rs.5 lakhs in cash to the plaintiff is also not established. Those concurrent findings are based on evidence placed on record. This Court does not find any reason to interfere with the said concurrent findings, which are apparently based on the evidence placed on record, which support the view taken by the Trial Court and First Appellate Court.

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As far as the contention that the partition has taken place on 07.04.2005 and deed is registered in accordance with law and does bind the plaintiff is concerned, this Court has to hold that since the contention relating to a previous oral partition is not established, the plaintiff would also be a necessary party to the partition of 2005, pleaded by the defendant No.7, as Section 6 of Hindu Succession Act, 1956 was amended with retroactive effect conferring equal share to the daughter of a coparcener in the coparcenery property if there is no alienation or partition before 20^th December, 2004.

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HC-KAR

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This being the position, the plaintiff the daughter

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would also become a necessary party to the partition and plaintiff not being a party to the said partition, the partition dated 07.04.2005 does not bind the plaintiff.

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There is no dispute that the properties are ancestral properties and this being the position, the plaintiff is also entitled to equal share. It is also brought to the notice of this Court that defendant No.1/mother has died during the pendency of the proceedings. Thus, there are seven class I heirs who inherit suit schedule properties and plaintiff being one among them, is entitled to 1/7^th share. Each of the children of Wodeyar Basappa and Smt. Sannamma is entitled to 1/7^th share.

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The share awarded by the Trial Court is not in accordance with law. Though there is no appeal by the plaintiff to claim higher share, this Court is of the view that the correct share as required under law is to be awarded invoking Order XLI Rule 33 of the Code of Civil Procedure, 1908.

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No substantial question of law would arise.

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HC-KAR

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Hence, the following:-

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ORDER

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(i) The impugned judgment and decree dated 13.03.2013 in RA No.59/2009 on the file of the Principal District Judge, Chikmagalur, are modified.

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(ii) The impugned judgment and decree dated 22.04.2009 in OS No.47/2007 on the file of the Civil Judge (Sr. Dn.), Kadur, are modified.

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(iii) The plaintiff is entitled to 1/7^th share in the suit schedule properties.

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(iv) Each of the sons and daughters of Sri. Wodeyar Basappa and Smt. Sannamma is entitled to 1/7^th share in the suit schedule properties.

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(v) If any of the parties to the proceedings has died and their legal representatives are not brought on record, the share to be awarded to the deceased son or the daughter of the

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