Sri S N Nanjappa Vs Smt Thimmamma

9(a). SRI. PUNITH B. S/O LATE JAYAMMA AGED ABOUT 35 YEARS C/O BALAKRISHNA C.T. R/AT NO.114, TUBINIKERE AMRUTHUR POST KUNIGAL TALUK TUMKUR DISTRICT - 572111.

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9(b). SMT. SUNITHA B. D/O LATE JAYAMMA

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W/O LATE R. VENKATESH AGED ABOUT 28 YEARS R/AT NO.55, 6^TH 'B' CROSS NEAR PUSHPA BAR CHOWDESHWARINAGAR LAGGERE BENGALURU - 560058.

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…RESPONDENTS

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(BY SRI. V B SIDDARAMAIAH., ADVOCATE)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE, AGAINST THE JUDGMENT AND DECREE DATED 18.12.2015 PASSED IN R.A.NO.7/2008 ON THE FILE OF II ADDL. DISTRICT JUDGE, TUMKUR, ALLOWING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 04.09.2007 PASSED IN O.S.NO.46/2002 ON THE FILE OF SENIOR CIVIL JUDGE (SR.DN.), ADDL. MACT., KUNIGAL.

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

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

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ORAL JUDGMENT

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This appeal is preferred by the plaintiff assailing the Judgment and Decree dated 18.12.2015 in R.A.No.7/2008 on the file of II Addl. District Judge at Tumakuru, allowing the appeal and setting aside the Judgment and Decree dated 04.09.2007 in

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O.S.No.46/2002 on the file of Civil Judge (Sr.Dn.) and Addl.

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MACT, at Kunigal, decreeing the suit of the plaintiff in part.

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It is the case of the plaintiff that, the plaintiff is the son of Nanjundaiah. It is also stated in the plaint that, the father of the plaintiff had married Ningamma (mother of the plaintiff) and after the death of said Ningamma, the father of the plaintiff - Nanjundaiah married Thimmamma (defendant No.1). Defendant Nos.2 to 8 are the children of defendant No.1 and late Nanjundaiah. It is the specific case of plaintiff that, in the year 1979, there was a partition between himself and his father Nanjundaiah in respect of some of the joint family properties. It is also stated that, father of the plaintiff - Nanjundaiah has retained some of the properties which are the schedule property in the suit and therefore, the plaintiff and the defendants being Class I heirs of late Nanjundaiah are entitled for 1/2 share in the suit schedule properties. Hence, the plaintiff has filed O.S.No.46/2002 before the Trial Court, seeking relief of partition and separate possession in respect of the suit schedule properties.

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After service of summons, the defendants entered appearance and filed detailed written statement. It is the case of the defendants that defendant Nos.2 to 8 and the plaintiff are the children of Nanjundaiah. It is also stated that plaintiff was the son of Nanjundaiah through his first wife - Ningamma. The defendants further stated in the written statement that the suit is not maintainable as the plaintiff has not included all the joint family properties of late Nanjundaiah and his children and accordingly, defendants have stated in the written statement that apart from item Nos.1 to 6 of the suit schedule properties, the remaining properties, namely item Nos.7 to 11 are also to be added as joint family properties in the suit for devolution of respective shares in the suit schedule properties. Accordingly, it is the case of the defendants that item Nos.1 to 11 of the suit schedule properties have to be devolved among children of Nanjundaiah equitably and accordingly, defendants have sought for equal share in the suit schedule properties.

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Based on the pleadings on record, the Trial Court has formulated issues for its consideration. In order to establish his case, the plaintiff has examined three witnesses as P.W.1 to

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P.W.3 and got marked seven documents as Exs.P1 to P7. The defendants examined four witnesses as D.W.1 to D.W.4 and marked 17 documents as Exs.D1 to D17. The Trial Court after considering the material on record, partly decreed the suit holding that plaintiff is entitled for 11/81 share in all the suit schedule properties by metes and bounds. Feeling aggrieved by the same, the defendants have preferred R.A.No.7/2008 before the First Appellate Court and same was resisted by the plaintiff. The First Appellate Court, after re-appreciating the material on record by Judgment and Decree dated 18.12.2015, allowed the appeal, consequently, set aside the Judgment and Decree dated 04.09.2007 in O.S.No.46/2002 and held that the defendants are also entitled for share in all the items of the suit schedule properties including item Nos.7 to 11 of written statement schedule properties. Feeling aggrieved by the same, the plaintiff has preferred this Regular Second Appeal.

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This Court, by order dated 14.08.2023, has formulated the following substantial question of law:

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"1. Whether the First Appellate Court is justified in modifying the judgment and decree of the trial

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Court when DW-1 in cross-examination has clearly admitted that the suit schedule properties are retained by his father for his life maintenance and he has no objection to give a share to the plaintiff in the suit schedule properties?

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2. What order?"

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I have heard Sri. P.M. Gopi, learned counsel for the appellant/plaintiff and Sri. V.B. Siddaramaiah, learned counsel for the respondents/defendants.

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Learned counsel for the appellant contended that, there is no dispute with regard to devolution of property between the plaintiff and his father - Nanjundaiah during 1979 and the said partition effected between the parties has been acted upon and in this regard, he refers to Ex.D17, wherein, mutation has been changed as per the M.R.No.20/79-80 and also the document referred to in I.A.8/2025 filed before this Court under Order XLI Rule 27 of CPC. By referring to the additional documents produced by the plaintiff, learned counsel for the appellant submitted that, there was a partition on 26.05.1979 and same has been acted upon by the parties and in that view of the

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matter, the finding recorded by the Trial Court holding that the plaintiff is entitled for share in the plaint schedule properties is just and proper, however, the defendants have wrongly included certain properties, namely, item Nos.7 to 11 and therefore, he contended that, since the partition has been acted upon between the parties as per the documents at Ex.D17 and the document filed along with I.A.8/2025 and therefore, he sought for interference of this Court.

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It is also contended by the learned counsel for the appellant by referring to the finding recorded by the First Appellate Court, at para No.31 that, the First Appellate Court has committed an error in re-appreciating the material on record by arriving at the conclusion that the entire schedule property from item No.1 to 11 have to be devolved amongst the plaintiff and defendants and the said finding recorded by the First Appellate Court requires to be interfered with by confirming the Judgment and Decree passed by the Trial Court, and accordingly, he sought for interference of this Court.

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Per contra, Sri. V.B. Siddaramaiah, learned counsel for the respondents, invited the attention of the Court to the evidence of

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P.W.1, wherein P.W.1 in cross-examination has agreed that there was no partition in the joint family properties and entire suit schedule properties are belonging to the father of the plaintiff and defendant Nos.2 to 8 and further, P.W.1 himself deposed that there was no division of suit schedule properties during the lifetime of Nanjundaiah and the said fact would indicate that the entire suit schedule properties including item Nos.7 to 11 of written statement schedule properties have to be devolved amongst the plaintiff and the defendants equally. It is also argued by the learned counsel appearing for the respondents that even assuming that there was a partition between the plaintiff and his father Nanjundaiah, however, the said partition would amount to distribution of inequitable share amongst the plaintiff and defendants as defendant Nos.2 to 8 are also entitled for equal share along with the plaintiff in the entire suit schedule properties and accordingly, sought for disposal of the appeal.

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In the light of the submissions made by the learned counsel appearing for the parties, I have carefully examined the finding recorded by both the Courts below. Perused the original

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records. To understand the relationship between the parties, it is relevant to extract the genealogy tree of the parties which is as

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under:

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NANJUNDAIAH
(DEAD)
NINGAMMA THIMMAMMA
(DEAD) (D1)
S.N.NANJAPPA 1. S.N. Nanjegowda - D2
(PLAINTIFF)
2. S.N. Kapanigowda -D3
3. S.N. Shivaraju - D4
4. S.N. Srikantaiah - D5
5. S.N. Devaraju - D6
6. S.N.Jagadeesh - D7
7. S.N. Padmavathi - D8
8. S.N. Jayamma - D9
impleaded as R4 in
RA 7/2008

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Perusal of the genealogy tree would indicate that the original propositus Nanjundaiah had two wives namely Ningamma (mother of plaintiff through Nanjundaiah) and defendant Nos.2 to 8 (born in wedlock between Nanjundaiah and Thimmamma (d1) ). It is also not in dispute that Nanjundaiah married Thimmamma after the death of Ningamma. Indisputably it is the case of the plaintiff that there was a partition during 1979 and in the said partition, wherein

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properties have been devolved between Nanjundaiah and the plaintiff and those properties were not included in the suit schedule properties. It is the case of the plaintiff that plaintiff is entitled for share allotted to Nanjundaiah during partition said to have been effected during 1979. The entire case of the plaintiff is that division of properties during 1979 has been acted upon by the parties. In this regard, I have carefully examined Ex.D17 wherein the mutation entry has been made as per M.R.No.20/79-80 which stipulates that partition between the plaintiff and his father Nanjundaiah, the date mentioned in Ex.D17 is based on the division of properties on 06.10.1979. In the backdrop of these aspects, as the plaintiff has filed an application in I.A.8/2025, wherein the division of properties between the plaintiff and his father Nanjundaiah as per the partition deed dated 26.05.1979 appended to the application, and taking into consideration that there is discrepancy in the date mentioned in the Ex.D17 and the document filed by the plaintiff/ appellant in I.A.8/2025 as 26.05.1979, I am of the view that, material evidence of the parties plays a vital role to understand the division of properties between the parties, in respect of the entire properties of the plaint schedule and

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properties in the written statement. In this regard, P.W.1 in cross-examination dated 13.11.2006 admits that the entire item Nos.1 to 11 of the plaint schedule and written statement schedule properties are belonging to their father Nanjundaiah. It

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is also stated that these properties are ancestral properties of late Nanjundaiah. It is further stated that, there is no division of properties between late Nanjundaiah along with plaintiff as well as defendant Nos.2 to 7 in respect of the suit schedule properties. In the cross-examination, held on 13.11.2006, the plaintiff admits as follows:

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"¥ÀæwªÁ¢UÀ¼ÀÄ ¸À°è¹gÀÄªÀ vÀPÀgÁgÀÄ CfðAiÀÄ°ègÀÄªÀ «ZÁgÀUÀ¼À£ÀÄß w½zÀÄPÉÆArgÀÄvÉÛÃ£É. £À£ÀUÉ vÀPÀgÁj£À°ègÀÄªÀ LlA £ÀA:1 jAzÀ 11 ¸ÀévÀÄÛUÀ¼ÀÄ UÉÆwÛgÀÄvÀÛªÉ. ¥ÀæwªÁ¢UÀ¼ÀÄ ¸À°è¹gÀÄªÀ ¥ÀæwªÁzÀ ¥ÀvÀæzÀ°ègÀÄªÀ µÉqÀÆå¯ï ¸ÀévÀÄÛ £ÀªÀÄä vÀAzÉAiÀÄ ¦vÁæfðvÀ ¸ÀévÀÄÛUÀ¼ÀÄ CAzÀgÉ ¤d. ¥ÀæwªÁzÀ ¥ÀvÀæzÀ°ègÀÄªÀ µÉqÀÆå¯ï ¸ÀévÀÄÛUÀ¼À°è £À£ÀUÀÆ ªÀÄvÀÄÛ ¥ÀæwªÁ¢UÀ¼É®èjUÀÆ ¸ÀªÀÄ¨sÁUÀ EzÉ CAzÀgÉ ¸ÁQë £À£ÀUÉ ªÀiÁvÀæ ¨sÁUÀ EzÀÄÝ, ¥ÀæwªÁ¢UÀ½UÉ ¨sÁUÀ EgÀÄªÀÅ¢®è C£ÀÄßvÁÛgÉ. £Á£Ä ªÁzÀ ¥À vÀ æzÀ °è vÀ ÆÃj¹gÉ ÄªÀ ¸À évÀ ÄÛUÀ ¼À Ä £À ªÀ Ää ¦vÁæfðvÀ À D¹ÛU¼À Ä CAzÀ gÀ ¸É j.À zÁªÁ ¸ÀévÀÄÛUÀ¼À°è £À£ÀUÀÆ ªÀÄvÀÄÛ

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¥ÀæwªÁ¢UÀ¼É®èjUÀÆ ¸ÀªÀÄ£ÁV ºÀQÌzÉ CAzÀgÉ ¥ÀæwªÁ¢UÀ½UÉ ºÀPÀÄÌ EgÀÄªÀÅ¢®è C£ÀÄßvÁÛgÉ. ¥æwªÁzÀ ¥À vÀ æzÀ °ègÀ ÄªÀ µÀ qÉ Æå¯À ï ¸évÀ ÄÛUÀ ¼À gÀ «£É Æå zÁR¯À UÉ ¼À Ä £À £À ß vÀ AzÀ ºÉ ¸É j£À °èªÀ .É zÁªÁ ¸ÀévÀÄÛ ªÀÄvÀÄÛ ¥ÀæwªÁzÀ ¥ÀvÀæzÀ°ègÀÄªÀ ¸ÀévÀÄÛUÀ¼À°è PÉ®ªÀÅ LlA D¹ÛUÀ¼À SÁvÉ £À£Àß ºÉ¸ÀjUÉ §zÀ¯ÁªÀuÉAiÀiÁVªÉ. £Á£ÀÄ £À£Àß vÀAzÉ PÉÆnÖzÀÝ ¥Á®Ä¥ÁjPÀwÛ£À DzsÁgÀzÀ ªÉÄÃ¯É PÉ®ªÀÅ LlA ¸ÀévÀÄÛUÀ¼À SÁvÉAiÀÄ£ÀÄß £À£Àß ºÉ¸ÀjUÉ §zÀ¯ÁªÀuÉ ªÀiÁrPÉÆArgÀÄvÉÛÃ£É. ¸ÀªÉð£ÀA:180, 154, 204 d«ÄÃ£ÀÄUÀ¼ÀÄ ¸Àt¨Á UÁæªÀÄzÀ°èzÀÄÝ, EªÀÅUÀ¼À SÁvÉAiÀÄ£ÀÄß ¥Á®Ä¥ÁjPÀwÛ£À DzsÁgÀzÀ ªÉÄÃ¯É £À£Àß ºÉ¸ÀjUÉ §zÀ¯ÁªÀuÉ ªÀiÁr¹PÉÆArgÀÄvÉÛÃ£É. £À£Àß vÀAzÉ F ¥ÁjPÀwÛ£ÀÄß 1979 £ÉÃ E¸À«AiÀÄ°è ªÀiÁrzÀÝgÀÄ. F ¥Á®Ä¥ÁjPÀvÀÄÛ £À£Àß vÀAzÉAiÀÄ §½ EzÀÄÝ, CªÀgÀÄ FUÀ wÃjPÉÆArgÀÄvÁÛgÉ. ££À ß vÀ AzÀ É wÃjPÆ¼É ÄîªÀ ¸À ªÀ ÄAiÀ ÄzÀ °è CªÀ gÀ Ä £À £À ß ªÀ ÄvÀ ÄÛ ¥À æwªÁ¢UÀ ¼À À eÆvÉ ªÁ¸É ªÀ iÁqÀ ÄwÛzÀ ÝgÀ Ä. À "

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(emphasis supplied)

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It is also the deposition of plaintiff that there was a partition during 1979. Nothing is deposed in the evidence of P.W.1 with regard to on which date particularly the partition had

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taken place between the plaintiff with his father Nanjundaiah. He admits in the cross-examination dated 13.11.2006, as follows:

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" ¥ÁjPwÛ£À °è £À ªÀ Ää vÀ AzÀ ¥É æwªÁ¢UÀ ½UÀ AiÉ iÁªÀ ÅzÀ Ã D¹Û É PÆnÖgÉ °®è.À £À£Àß vÀAzÉ ¥ÀæwªÁ¢UÀ½UÉ ¥ÁjPÀwÛ£À°è AiÀiÁªÀ PÁgÀtPÁÌV D¹ÛUÀ¼À£ÀÄß PÉÆnÖgÀ°®è JA§ §UÉÎ £À£Àß eÉÆvÉ ºÉÃ½gÀÄªÀÅ¢®è. ££À ß vÀ AzÀ wÃjPÉ ÆAqÉ £À AvÀ gÀ CªÀ gÀ GvÀ ÛgÀ À QæAiiÁ¢ PÁAiÀ ÄðUÀ ¼À £À ß¯Áè £Á£É Ä ªÀ ÄvÀ ÄÛ ¥À æwªÁ¢UÀ ¼À Ä ¸À ÃjÉ ªiÁrgÀ ÄvÀ ÛÃ£É .É £Á£ÀÄ JµÀÖ£ÉÃ E¸À«AiÀÄªÀgÉUÉ MlÄÖ PÀÄlÄA§zÀ°èzÉÝ JAzÀÄ ºÉÃ¼À¯ÁUÀÄªÀÅ¢®è. £À£Àß vÀAzÉ

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§zÀÄQzÁÝUÀ ªÁ¸ÀªÀiÁqÀÄwÛzÀÝ ªÀÄ£ÉAiÀÄ°è FUÀ 1£ÉÃ ¥ÀæwªÁ¢ ªÁ¸ÀªÀiÁqÀÄwÛzÁÝgÉ. £À£ÀUÉ ªÁ¸À ªÀiÁqÀ®Ä ¨ÉÃgÉ ªÀÄ£É ©lÄÖ PÉÆnÖzÁÝgÉ. ¥æwªÁzÀ ¥À vÀ æzÀ °ègÀ ÄªÀ LlA £À A:1 jAzÀ 11À g°ègÀ ÄªÀ ¸À évÀ ÄÛUÀ ¼À °è ¥À æwªÁ¢UÀ ¼À Ä ªÀ iÁvÀ æ ¸Áé¢üÃ£À zÀ °èzÁÝgÀ .É ¸ÁQë ¥Ä£À ºÀ ºÀ Ã¼É ÄvÁÛgÀ £Á£É Ä ªÀ ÄvÀ ÄÛ ¥À æwªÁ¢UÀ ¼À ®ègÉ Æ À ¥æwªÁzÀ ¥À vÀ æzÀ °ègÀ ÄªÀ ¸À évÀ ÄÛUÀ ¼À ¸Áé¢üÃ£À zÀ °èzÀ ÝÃªÉ C£É ÄßvÁÛgÀ . É zÁªÁ ¸évÀ ÄÛUÀ ¼À °è £Á£À Ä ªÀ ÄvÀ ÄÛ ¥À æwªÁ¢UÀ ¼À ®ègÉ Æ MmÁÖV À ¸Áé¢üÃ£zÀ °èzÀ ÝÃªÉ . É zÁªÁ ¸évÀ ÄÛUÀ ¼À °è À ªÄvÀ ÄÛ À ¥æwªÁzÀ À ¥vÀ æzÀ °ègÀ ÄªÀ ¸À évÀ ÄÛUÀ ¼À °è §gÀ ÄªÀ DzÁAiÀ ÄªÀ £À Äß £Á£À Ä ªÀ ÄvÀ ÄÛ À ¥æwªÁzÀ UÀ ¼À ®ègÉ Æ ¥À qÀ zÉ ÄPÀ Æ¼É ÄîwÛzÀ ÝÃªÉ .É "

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(emphasis supplied)

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It is also deposed by P.W.1 that he is not aware about the existence of document - palu parikattu. It is also forthcoming from the cross-examination of P.W.2, that the defendant Nos.2 to 7 are doing the occupation of coolie. P.W.2 also admits that the schedule properties mentioned in the plaint as well as the written statement are the properties belonging to Nanjundaiah. He also in unequivocal words deposed as follows:

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P.W.3 in the cross-examination dated 23.02.2007 deposed

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that plaintiff and defendants are entitled for share in the suit schedule properties. It is stated in the cross-examination dated 23.02.2007 which reads as under:

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(emphasis supplied)

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The aforementioned aspects make it clear that there was

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no partition in the family of plaintiff along with his father Nanjundaiah. Even if it is the case of the plaintiff that certain properties have been retained by his father Nanjundaiah which are the suit schedule properties for his maintenance.

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In that view of the matter, taking into consideration the admission made by P.W.1 to P.W.3 that there was no partition in the joint family properties of plaintiff and defendants along with their father Nanjundaiah, and therefore, I am of the view that, the finding recorded by the Trial Court has to be interfered with and the said erroneous finding of the Trial Court was rightly set right by the First Appellate Court in the impugned Judgment and Decree. In that view of the matter, the substantial question of law referred to above, favours the defendants.

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Nextly, in so far as the conclusion arrived at that the entire item Nos.1 to 11 of the suit schedule properties are the ancestral properties of the plaintiff and defendant Nos.1 to 9 and as such the defendant No.1 along with plaintiff and defendant Nos.2 to 9 are entitled for 1/10 share in the suit schedule properties, demarcating the share of their father Nanjundaiah by 1/10^th

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share. Thereafter the plaintiff and defendant Nos.1 to 9 are entitled for 1/100 share in the 1/10 share of their father in the suit schedule properties. Hence, plaintiff and defendant Nos.2 to 9 are entitled for 1/10 + 1/100 share. Defendant No.1 is entitled to 1/100 share.

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In that view of the matter, the modification of the shares has to be made, as noted above. Hence, I pass the following:

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ORDER

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(i) The Regular Second Appeal is dismissed.

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(ii) The Judgment and Decree in R.A. No.7/2008, dated 18.12.2015 on the file of II Addl. District Judge at Tumakuru, is hereby confirmed. However, with regard to rights of the parties concerned, the modification has been made with regard to the shares of the parties, as stated above.

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(iii) The Judgment and Decree dated 04.09.2007 in O.S.No.46/2002 on the file of Civil Judge (Sr.Dn.) and Addl. MACT, at Kunigal, is hereby set aside.

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(iv) I.A.1/25 filed by the respondent is allowed as the

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shares of the parties have been made in terms of the observation made above. The execution of the registered gift deed dated 17.08.2024 by the plaintiff in favour of his daughter in law - Smt. Laxmamma is hereby held as not binding on the defendants.

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(v) I.A.8/25 filed by the plaintiff under order 41 rule 27 of CPC is hereby dismissed. All remaining I.As. are dismissed, in view of disposal of the appeal as stated above.

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SD/(E.S.INDIRESH) JUDGE

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sac

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List No.: 1 Sl No.: 47

Sri S N Nanjappa v. Smt Thimmamma

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Sri S N Nanjappa v. Smt Thimmamma

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