Ananthamma Vs Thimmareddy

THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD. 29.01.2013 PASSED IN R.A.NO.45/2012 & R.A.NO.46/2012 ON THE FILE OF ADDITIONAL DISTRICT JUDGE (FAST TRACK COURT, CHITRADURGA, ALLOWING R.A.45/2012 AND DISMISSING R.A.46/2012 FILED AGAINST THE JUDGEMENT AND DECREE DTD. 24.05.2012 PASSED IN OS.NO.7/2011 ON THE FILE OF SENIOR CIVIL JUDGE, CHALLAKERE. TRAIL COURT DECREED THE SUIT. APPELLATE COURT ALLOWED R.A.45/2012 AND DISMISSED R.A.46/2012. SUIT FOR DECLARATION, PARTITION AND SEPARATE POSSESSION.

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THIS APPEAL, COMING ON FOR FINAL 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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NC: 2026:KHC:20651 RSA No. 799 of 2013

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HC-KAR

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ORAL JUDGMENT

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This Regular Second Appeal is preferred by the plaintiffs assailing the judgment and decree dated 29.01.2013 in R.A.No.45/2012 and R.A.No.46/2012 on the file of the Additional District Judge (Fast Track Court), Chitradurga (hereinafter termed as 'First Appellate Court'), modifying the judgment and decree dated 24.05.2012 in O.S.No.7/2011 on the file of the Senior Civil Judge, Challakere (hereinafter termed as 'Trial Court'), decreeing the suit of the plaintiffs and the counter claim filed by the defendants.

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

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The relevant facts for adjudication of this appeal are

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that, the plaintiffs and defendant No.1 are the children of Kokkala Mudalagiriyappa and defendant No.2-wife. It is stated in the plaint that one of the brothers of the plaintiffs– Gurumurthy, and his wife died without leaving behind any children. Therefore, the plaintiffs have sought partition of the suit schedule properties, stating that the scheduled properties are the joint family properties of their father-Kokkala

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NC: 2026:KHC:20651 RSA No. 799 of 2013

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HC-KAR

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Mudalagiriyappa. Accordingly, they sought for partition in suit schedule property by filing the suit in O.S.No.7/2011 before the Trial Court.

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After service of notice, defendants entered

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appearance and filed detailed written statement denying the averments made in the suit.

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It is the case of the defendant No.1 that 'B'

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schedule property is not the

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family property of the plaintiffs and also stated that the suit 'A' schedule property is the ancestral property of the father of the plaintiffs and defendant No.1. It is further stated that, after the death of the father-Kokkala Mudalagiriyappa, the defendants and another son-Gurumurthy were in possession of the 'A' schedule property and as such, the said Gurumurthy had filed a suit for partition in O.S.No.117/2006 against the defendants, in collusion with defendant No.2, wherein defendant No.2 has sought for 1/3^rd share in the suit 'A' schedule property. It is also stated that, in the said suit, the competent Court decreed the suit, holding that defendant No.1 is entitled for 1/3^rd share in the suit schedule property. In view of the same, defendant

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HC-KAR

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No.1, being only surviving son of defendant No.2 and therefore,

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it is contended by defendant No.1 that he is entitled for 1/2 share in the suit schedule properties. Accordingly, he sought for dismissal of the suit.

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Further, the defendant No.2 has filed separate written statement, admitting the fact that the suit properties are the ancestral and joint family properties of the plaintiffs and defendants. It is stated that the 'B' schedule property was acquired by Gurumurthy and he had invested for construction of house. Therefore, it is contended by defendant No.2 that the 'B' schedule property is the self acquired property of her sonGurumurthy, who died without leaving behind any children. Accordingly, sought for dismissal of the suit.

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Based on pleadings on record, the Trial Court has formulated the issues and additional issues for its consideration. In order to establish their case, the plaintiff No.2 herself was examined as P.W.1 and got marked twenty two (22) documents as Ex.P.1 to Ex.P.22. Defendants have examined as D.W.1 and D.W.2 and got marked three (3) documents as Ex.D.1 to Ex.D.3.

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NC: 2026:KHC:20651 RSA No. 799 of 2013

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HC-KAR

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The Trial Court after considering the material on

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record, by its judgment and decree dated 24.05.2012, decreed the suit, holding that the plaintiffs are entitled for 2/4^th share in 'A' and 'B' schedule properties and defendants are entitled for 1/4^th share each in 'A' and 'B' schedule properties. Further declared that, the judgment and decree passed in O.S.No.117/2006 dated 09.09.2008 is not binding on the share of the plaintiffs.

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Being aggrieved by the same, defendant No.1 has preferred R.A.No.45/2012 and R.A.No.46/2012 challenging the judgment and decree passed by the Trial Court. The said appeals were contested by the plaintiffs. The First Appellate Court after re-appreciating the material on record by its judgment and decree dated 29.01.2013, allowed R.A.No.45/2012 and dismissed R.A.No.46/2012 in respect of the relief sought in the counterclaim with respect to 'B' schedule properties. Being aggrieved by the same, the plaintiffs have preferred this appeal.

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This Court vide order dated 21.01.2020, formulated the following substantial question of law:

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HC-KAR

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"1. Whether the Court below were justified in awarding 1/4^th share to the plaintiffs in the suit schedule properties disregarding the fact that they were entitled to only a moiety out of the notional share of the propositus?

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2. Whether the Court below failed to apply Section 15 of the Hindu Succession Act, 1956 in so far as the property that was succeeded to by the deceased Guruurthy and whether Section 15(2)(b) of the said Act was to be invoked in respect of vested interest of the widow of Gurumurthy?"

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Heard Sri.H. Kantharaj, learned Senior Counsel for

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Sri.Ravi H.K., learned counsel appearing for the appellant and Sri. V. Subash Reddy, learned counsel appearing for the respondent No.1.

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Sri.H. Kantharaj, learned Senior Counsel appearing for the appellants invited the attention of the Court to the genealogical tree produced in the appeal and also contended that, defendant No.2 and another brother of the plaintiffsGurumurthy are no more. Therefore, the entire suit schedule properties belonged to the father of the plaintiffs-Kokkala Mudalagiriyappa as joint family properties. Therefore, the

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HC-KAR

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plaintiffs and defendant No.1 are entitled for equal shares of 1/3^rd each in respect of the suit schedule properties. Accordingly, learned Senior Counsel sought for interference of this Court.

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Per Contra, Sri. V. Subash Reddy, learned counsel appearing for respondent No.1 sought to justify the impugned judgment and decree passed by the First Appellate Court.

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In the light of the submission made by the learned counsel appearing for the parties, the relationship between the parties is not disputed and the Genealogical tree of the parties reads as under:

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Kokkala Mudalagiriyappa S/o Kokkala Thimmappa (dead) Rangamma (Defendant No.2)

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W/o Kokkala Mudalagiriyappa

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72 years

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Ananthamma Thimmareddy K.M. Gurumurthy Jayalakshmi (Plaintiff No.1) (Defendant No.1) (dead) (Plaintiff No.2)

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Sulochanamma

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(Dead) (Issueless)

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NC: 2026:KHC:20651 RSA No. 799 of 2013

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HC-KAR

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Perusal of the Genealogical tree would indicate that the plaintiffs and defendant No.1 are the children of Kokkala Mudalagiriyappa and Rangamma (defendant No.2). It is also not in dispute that the plaintiffs had another brotherK.M.Gurumurthy, who died without leaving behind any issue and his wife-Sulochanamma is also no more.

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It is also submitted by the learned counsel appearing for the parties that defendant No.2 died on 16.02.2020 and the said fact is undisputed.

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In that view of the matter, taking into consideration the factual aspects on record, as the suit schedule properties are the joint family properties of the Kokkala Mudalagiriyappa, and the defendant No.2 is no more, I am of the view that the plaintiffs and defendant No.1 are entitled for equal shares i.e., 1/3^rd share each in the suit schedule properties. The substantial question of law, is answered in favour of the plaintiffs.

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Following the declaration of law laid down by the Hon'ble Supreme Court in the case of Vineeta Sharma v. Rakesh Sharma and Ors., reported in (2020) 9 SCC 1 , the daughters are also considered to be the co-parceners by birth,

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HC-KAR

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on par with the sons. Therefore, the plaintiffs and defendant

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No.1 are entitled for equal shares in the suit schedule properties.

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Accordingly, I pass the following:

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O R D E R

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(i) The Regular Second Appeal is allowed .

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(ii) Judgment and decree dated 24.05.2012 passed in O.S.No.7/2011 on the file of Senior Civil Judge, Challakere and judgment and decree dated 29.01.2013 passed in R.A.No.45/2012 and R.A.No.46/2012 on the file of Additional District Judge (Fast Track Court), Chitradurga is accordingly modified, holding that the plaintiffs and defendant No.1 are entitled for 1/3^rd share each in the suit schedule properties.

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(iii) Office is directed to draw the decree accordingly.

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Sd/(E.S.INDIRESH) JUDGE

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AMM, List No.: 2 Sl No.: 41

Ananthamma v. Thimmareddy

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Ananthamma v. Thimmareddy

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