Hanumamma Vs Smt. Manjulamma

SMT. PRIYANKA J, D/O LATE MANJULAMMA AND SRI JINJAPPA W/O SRI LOHITH, AGED ABOUT 31 YEARS, R/O BANDALLI VILLAGE, GUDDENAHALLI POST, DODDA HOBLI, HASSAN - 573 220.

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…RESPONDENTS (BY SRI SATHISH S P, ADVOCATE FOR R-1 TO R-3 [CP NO.13467/2024])

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 05.07.2024 PASSED IN RA NO.02/2023 ON THE FILE OF THE II ADDITIONAL DISTRICT AND SESSIONS JUDGE, HASSAN, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 08.11.2022 PASSED IN OS NO.18/2018 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE, HASSAN.

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

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

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NC: 2025:KHC:44315 RSA No. 1386 of 2024

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HC-KAR

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ORAL JUDGMENT

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Heard the appellants' counsel. This matter is listed for Admission.

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This second appeal is filed against the

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concurrent findings. The factual matrix of case of the plaintiff before the trial Court while seeking the relief of partition and separate possession is, that the suit schedule properties are the ancestral and joint family properties and the registered Partition Deed dated 12.01.2018 executed between the defendants is not binding on her. Defendants took the contention that an extent of 02 guntas in Survey No. 85/5 has been taken by the plaintiff as her share by way of palu parikath and got constructed the house in the said property and there was already a partition. Once when she has taken the share, she cannot maintain a suit for partition.

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3. The trial Court having considered the grounds

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which have been urged in the plaint as well as in the

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4 - NC: 2025:KHC:44315 RSA No. 1386 of 2024

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HC-KAR

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written statement and also the oral and documentary evidence answered issue No.1 in the affirmative holding that plaintiff and defendants are the members of Hindu joint family. It has also answered Issue No.2 partly in the affirmative holding that suit schedule properties are the joint family properties, except, Item No. 6 and also comes to the conclusion that partition between the father and sons entered on 12.01.2018 is not binding the plaintiff and granted the relief in favour of plaintiff by granting 5/16th share in the suit Item Nos. 1 to 5 and 7. The same has been challenged before the Appellate Court in RA No.2/2023 by the 4^th defendant. The Appellate Court also

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on considering the grounds which have been urged, comes to the conclusion that trial Court has not committed any error and considered both oral and documentary evidence in a proper perspective and has rightly came to the conclusion that Item No. 1 to 5 and 7 are the ancestral joint family properties belonging to the plaintiff and defendants, that the plaintiff is entitled for 5/16th share

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HC-KAR

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in Item No.1 to 5 and 7 of the suit schedule properties

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and that the registered Partition Deed dated 12.01.2018 executed between the defendants excluding the plaintiff does not binds her share in the suit schedule properties and dismissed the appeal.

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Being aggrieved by the concurrent finding of both the trial Court and the Appellate Court, the present second appeal is filed before this Court by defendant Nos. 2 to 4.

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The main contention of appellants' counsel

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before this Court is that both the Courts committed an error in not appreciating the matter since there is a clear admission on the part of the plaintiff that Item No. 7 of the

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suit schedule property was given to her and also contended that both Courts committed an error in answering the issue with regard to the partition dated 12.01.2018 that it is not binding the plaintiff. When once she has relinquished her share in joint family properties

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NC: 2025:KHC:44315 RSA No. 1386 of 2024

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HC-KAR

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after taking Item No.7 in suit schedule properties and residing in the house constructed by the defendant's/ appellants, the trial Court ought not to have granted the relief in respect of Item No.1 to 5 and 7. The counsel also vehemently contended that when there is a documentary evidence at Ex.P7 and Ex.D3, which clearly disclose that there is a mutation in favour of the plaintiff for having given the share and RTC at Ex.P7 also discloses the entry which evidences the fact of plaintiff already taking her the share in the properties and ought not to have granted the relief of share in the suit schedule properties at Item No. 1 to 5 and 7.

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Having heard the appellants' counsel and also

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on perusal of material available on record, it is not in dispute that the properties which have been pleaded as ancestral properties and also particularly, the counsel appearing to the appellants submitted that Item No.4 is the property purchased by the father and counsel appearing for the appellants also submits that father was

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HC-KAR

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working as a Railway Employee and purchased the same in the year 1998-1999 and when such being the case, the trial Court and Appellate Court ought not to have granted the relief in respect of Item No.4. The counsel also submits that partition has taken place between the father and sons and when the suit was filed, the father was alive. When already there was a partition, the trial Court and also the Appellate Court ought not to have granted the relief in respect of Item No.4. But the fact that, the other items of the properties are the joint family properties are not in dispute.

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The only main contention of the counsel appearing for the appellants that Item No. 4 was purchased during the lifetime of their father, but also while entering into a partition, the plaintiff was not a party, but she was excluded at the time of making the partition and hence, both the Courts have rightly come to the conclusion that the Partition Deed does not bind the plaintiff and also when the suit is filed, Item No. 4 is also

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HC-KAR

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included and specific defence was taken that it is a selfacquired property. Even if it is a self-acquired property, even after filing of the suit also, the father did not execute any testamentary document in favour of any of the legal heirs and automatically, Section 8 attracts when the property belongs to the male member of family dies and equally entitled for a share in the item No.4 and hence, the very contention of the counsel appearing for the appellants cannot be accepted.

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The learned counsel appearing for the appellants would submit that plaintiff ought not have included item No.4 of the properties and the same is the self acquired property of the father. Such contention also cannot be accepted. There cannot be any partial partition also and father died subsequent to the filing of the suit. Even after filing the suit, no testamentary document is executed. When such being the case, plaintiff is entitled for a share in the property left by the father.

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HC-KAR

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However, the counsel appearing for the

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appellants brought to the notice of this Court that Item No.7 was given to the plaintiff and in that property, already she has constructed the house and residing therein and when such submission is made at the time of partitioning the properties in FDP proceedings, the trial Court can take note of the said fact into consideration while making division of the properties in FDP proceedings. There is some force in the contention of the learned counsel for the appellants while allotting share in favour of the plaintiff.

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Therefore, I do not find any other grounds to admit and frame any substantial question of law, since there is concurrent findings and there is no perversity in the said findings. Hence, no grounds are made out to admit and frame any substantial question of law by invoking Section 100 of CPC.

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