Smt Jamuna Rani Vs Smt Jayamma

SMT JAMUNA RANI W/O KUMAR D/O LATE RAMANNA AGED ABOUT 33 YEARS R/A AMBEDKAR NAGARA KERALAPURA ROAD HOLENARASIPURA TOWN HOLENARASIPRUA TALUK HASSAN DISTRICT - 573 211

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Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

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ASLO NOW R/AT NO.3265, 4^TH CROSS, 6^TH MAIN GAYATHIRNAGAR BENGALURU - 560 021

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SMT MOHANA KUMARI W/O SUNANDAKUMARA AGED ABOUT 31 YEARS

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SMT SANDHYA RANI D/O RAMANNA D AGED ABOUT 29 YEARS

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APPELLANTS NO.2 AND 3 ARE R/AT AMBEDKAR NAGARA KERALAPURA ROAD

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HC-KAR

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HOLENARASIPURA TOWN HOLENARASIPRUA TALUK HASSAN DISTRICT - 573 211

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…APPELLANTS

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(BY SRI. LEELADHAR H.P., ADVOCATE)

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AND:

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SMT JAYAMMA

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W/O LATE PUTTARAMAIAH AGED ABOUT 79 YEARS R/A KOTE CHANNAPATNA TOWN CHANNAPATNA TALUK BENGALURU RURAL DISTRICT PIN - 562 160

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PRESENTLY R/AT C/O THE RAJ NO.41, LIC COLONY BEHIND AYAPPA FARM YASHWANTHPURA

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BENGALURU NORTH - 560 022

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SRI MANJUNATH S/O LATE B K NARASIMHAPPA AGED ABOUT 59 YEARS

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SRI SHVIAKUMARA S/O LATE G K NARASIMHAPPA AGED ABOUT 54 YEARS

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SL.NO.2 AND 3 ARE R/AT NO.1500, C AND D BLOCK SANJE RAVI ROAD KUVEMPU NAGAR MYSORE CITY - 570 023

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HC-KAR

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SMT SANNIRAMMA W/O CHANNAIAH AGED ABOUT 84 YEARS R/AT SRI RAMA NAGARA HALEKOTE HOBLI HOLENARASIPURA TALUK HASSAN DISTRICT - 573 211

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SRI VASANTH S/O LATE CHIKKAIAH MAJOR IN AGE R/A BORANAHALLI VILLAGE HALEKOTE HOBLI HOLENARASIPURA TALUK HASSAN DISTRICT - 573 211

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SMT JAYAMMA W/O ANNAIAH MAJOR IN AGE R/A ANEKANNAMBADI VILLAGE HALLI MYSORE HOBLI HOLENARASIPURA TALUK HASSAN DISTRICT - 573 211

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PRESENTLY R/AT A K COLONY AMBEDKAR NAGAR HOLENARASIPURA TOWN HOLENARASIPURA TALUK HASSAN DISTRICT - 573 211

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SRI H R RANGASWAMY S/O RANGAIAH MAJOR IN AGE R/AT PWD QUARTERS WARD NO.14,

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HC-KAR

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ARAKALAGUDU TOWN ARAKALAGUDU TALUK HASSAN DISTRICT - 573 201

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SRI DASA PRAKASH S/O LATE NARASIMHAIAH MAJOR IN AGE R/A NEAR VIJAYA VITTALA BHAJANA MANDIR BAJPE, MANALORE TOWN SOUTH CANARA DISTRICT PIN - 575 001

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SRI M S PRADEEP S/O SHANTHARAJU MAJOR IN AGE R/A MALALI VILLAGE SAKALESHPURA TALUK HASSAN DISTRICT - 573 124

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SMT H R SHASHIREKHA W/O LATE S HANUMANTHAPPA MAJOR IN AGE R/A WARD NO.20, NEW LAYOUT DR. AMBEDKAR NAGAR HOLENARASIPURA TOWN HOLENARASIPIURA TALUK HASSAN DISTRICT - 573 211

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…RESPONDENTS (BY SRI. S.V. PRAKASH, ADVOCATE FOR C/R1 R8 AND R9 SERVED VIDE ORDER DATED 15.07.2025, NOTICE TO R10 IS HELD SUFFICIENT VIDE ORDER DATED 28.08.2025, NOTICE TO R6 IS HELD SUFFICIENT VIDE ORDER DATED 26.01.2025, NOTICE TO R2, R3, R5 TO R7 IS HELD SUFFICIENT)

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HC-KAR

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 17.01.2024 PASSED IN R.A.NO.21/2020 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC HOLENARASIPURA, DISMISSING THE APPEAL AND MODIFYING THE JUDGEMENT AND DECREE DATED 01.02.2020 PASSED IN OS NO.137/2015 ON THE FILE OF THE CIVIL JUDGE, JMFC, HOLENARASIPURA.

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

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

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ORAL JUDGMENT

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This second appeal is filed against the concurrent findings of the Trial Court and the First Appellate Court.

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Heard the learned counsel for the appellants

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and learned counsel appearing for respondent No.1.

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The factual matrix of the case of plaintiff before the Trial Court, while seeking the relief of partition and separate possession is that the suit schedule properties are ancestral joint family properties and hence, she is entitled to a share over the suit schedule properties.

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HC-KAR

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In pursuance of the suit summons, defendant

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No.4 has appeared and filed the written statement contending that suit is barred by limitation. Hence, the Trial Court framed the issues and allowed the parties to lead evidence. During the course of trial, the plaintiff herself examined as PW1 and got marked 21 documents as Exs.P1 to P21. On the other hand, defendant No.4 herself examined as DW1 and got marked 2 documents as Exs.D1 and D2. The other defendants did not lead any evidence.

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The Trial Court having considered both oral and documentary evidence, met the issues framed by the Trial Court in comes to the conclusion that suit schedule properties are ancestral joint family properties and that the suit is not barred by limitation as contend by defendant No.4. The Trial Court granted 1/6^th share to the plaintiff and also held that defendant Nos.4 to 6 are entitled for 1/2 share along with 1/6^th share. It also comes to the conclusion that mother had passed away prior to

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HC-KAR

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09.09.2005 and therefore, defendant Nos.1 and 2 have no right over the suit schedule properties. The Trial Court also held that sale made by defendant No.4 in respect of Item No.1 in favour of defendant Nos.6 to 12 does not bind the plaintiff. Aggrieved by the said judgment and decree, defendant Nos.4 to 6 preferred an appeal before the Appellate Court.

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The First Appellate Court also having considered

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the grounds which have been urged in appeal memo, formulated the points for determination i.e.,

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i. Whether the Trial Court was justified in holding that plaintiff is entitled for partition?

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ii. Whether the Trial Court was justified in partly decreeing the suit holding that as on 2005 Dyavannaiah was not alive as such, the plaintiff is entitled for notional partition in the suit schedule properties?

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iii. Whether the cross-objection filed by the plaintiff is in time and whether judgment and decree of the Trial Court requires any interference?

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HC-KAR

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The First Appellate Court having reassessed

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both oral and documentary evidence, comes to the conclusion that Trial Court was justified in holding that plaintiff is entitled for 1/6^th share and other points for consideration were answered as ‘negative’ and also reassessed both oral and documentary evidence available on record were modified.

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The judgment and decree of the Trial Court in coming to the conclusion that plaintiff and defendant No.3 being the daughters of late Dyavanna, they are entitled for 1/4^th share each in all the suit schedule properties by metes and bounds. Likewise, defendant Nos.1 and 2 being the sons of late Devamma, they together entitled for 1/4^th share in all the suit schedule properties. Defendant Nos.4 to 6 being the daughters of late Ramanna, they together entitled for 1/4^th share in all the suit schedule properties. Accordingly, equal share were granted in respect of the children of original propositors. Being aggrieved by these

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HC-KAR

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concurrent findings, defendant Nos.4 to 6 have preferred the present second appeal.

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The main contention of the learned counsel appearing for the appellants before this Court is that both the Courts have committed an error in considering the suit of the plaintiff for partition and the First Appellate Court was not justified in interfering with the judgment and decree of the Trial Court and erroneously modified the same. It is contended that the Appellate Court committed an error in answering the point Nos.2 to 4 as ‘negative’ and point No.1 as ‘affirmative’. Hence, this Court has to admit the appeal and frame substantial question of law.

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Per contra , the learned counsel appearing for respondent No.1 would vehemently contends that the Trial Court by referring to the Phulavati case, had granted 1/6^th share, but in view of the judgment of the Hon’ble Apex Court in the case of Vineeta Sharma , the Trial Court has rightly granted 1/6^th share. Hence, it does not

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HC-KAR

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require any interference or modification in accordance with law.

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Having heard the learned counsel appearing for

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the appellants and also the learned counsel appearing for the respondent No.1, it is not in dispute that one Dyavannaiah, propositor and head of the family, had four children, the fourth one is daughter, who filed the suit for claiming partition and made her sister's children as defendant Nos.1 and 2. She arrayed her sister as defendant No.3 and her brother's children as defendant Nos.4 to 6. Hence, there is no dispute between the parties

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with regard to the relationship. It is also not in dispute with regard to the fact that properties belong to the family.

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The learned counsel appearing per the appellants submits that defendant Nos.4 to 6 have already sold the property, but the plaintiff was not a party to the said sale deed. Hence, such being the case, both the Trial

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HC-KAR

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Court and Appellate Court have considered the material available on record in the proper perspective. Since the share of the plaintiff was not given and she was not a party to any alienation and the same was not binding the plaintiff, which has also been observed by the Trial Court while passing the order. Though the trial Court committed an error in apportioning the share, but the First Appellate Court modified the same and has rightly apportioned the share as 1/4^th .

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When such being the case, when the question of law and also facts have been considered by both the Courts, I do not find any error or any perversity in the findings of Trial Court and the Appellate Court in granting the share in favour of the plaintiff. Hence, no ground is made out to admit the appeal or to frame substantial questions of law invoking Section 100 of the CPC.

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