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2012 Supreme(Kar) 1163
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
B.V. Pinto, J.
Chandrashekaraiah —Appellant
Vs.
Rangappa and others —Respondent
R.F.A. No. 883 of 2005 (PAR)
Decided on : 16-11-2012
Advocate Appeared:
Mr. S.K. Venkata Reddy, for the Appellant
Mr. Murali B.S., for the Respondent
The main legal point established is the determination of ancestral properties and the entitlement of the plaintiff to a share based on the family structure.
Headnote:
res judicata - Partition - O.S. No. 26/1998 - Hindu undivided joint family properties - Ancestral properties - Panchayath Palu Patti - Desertion - Illegitimate marriage - Maintenance suit - Minor's suit through mother - Fresh suit for partition - Amendment to cause-title - Shares allotable - Appeal
Fact of the Case:
The plaintiff filed a suit seeking partition and separate possession of ancestral properties. The defendants denied the ancestral nature of the properties and claimed self-acquisition. The trial court dismissed the suit, but the plaintiff appealed.
Finding of the Court:
The appellate court found that the suit schedule properties were ancestral and liable for partition. It determined the plaintiff's entitlement to a 1/8th share in the properties and directed the trial court to draw the final decree.
Issues: 1. Dismissal of the plaintiff's suit 2. Plaintiff's entitlement to a share in the ancestral properties 3. Final decree
Ratio Decidendi: The court held that the suit schedule properties were ancestral and available for partition. It determined the plaintiff's entitlement to a 1/8th share based on the family structure and directed the trial court to proceed with the final decree.
Final Decision: The appeal was allowed, the trial court's judgment was set aside, and the plaintiff's suit was decreed. The plaintiff was declared entitled to a 1/8th share in the ancestral properties, and the trial court was directed to draw the final decree.
B.V. PINTO, J.—This appeal is filed challenging the Judgment dated 8.4.2005 passed by the Addl. Civil Judge [Sr. Dn], Tumkur in O.S. No. 26/1998 dismissing the suit of the plaintiff seeking for a partition and separate possession of the suit schedule properties.
2. The plaintiff has filed the suit against the defendants alleging that the plaint schedule property belonged to one Venkatappa, who is the propositus. The said Venkatappa had three sons by name Rangappa-first defendant, Mudlaiah, who has died unmarried and Shivanna the second defendant. The sons of late Venkatappa constituted Hindu undivided joint family and they are in joint possession of the suit properties. The first defendant is none other than the father of the plaintiff and according to the plaintiff, the first defendant has got half share in the schedule property and the second defendant has also got half share in the schedule property. It is further submitted by him that the first defendant has two sons by name Chandrashekaraiah-the plaintiff and late Rudraiah through the first wife-Rangamma. Defendants No. 3 & 4 are also the sons of defendant No. 1 through the second wife-Gowramma, who is now arrayed as respondent No. 5. It is submitted by the plaintiff that the suit schedule properties are ancestral properties and joint family properties of plaintiff and defendant Nos. 1 and 2. It is further submitted that the first defendant has managing the joint family properties and affairs of the joint family as being the eldest son of the family. The first defendant has deserted his first wife without any reasonable cause and had taken second wife about 29 years back. During the lifetime of first wife, the second marriage had been entered into and defendants No. 3 & 4 are born to them. Since the marriage is illegal, the plaintiff submits that they are not entitled to any share in the suit schedule properties. Hence, they have sought for partition in the suit schedule properties since defendant No. 1 when demanded, did not allot the share of the plaintiff in the suit schedule properties.
3. The defendants filed the written statement contending that it is false to say that the first defendant had two sons namely., the plaintiff and late Rudrappa through the first wife and further admitting that defendants No. 3 & 4 are the sons of first defendant through his second wife-Gowramma. The defendants have also denied that the suit schedule properties are ancestral joint family properties of the plaintiff and defendants No. 1 & 2. It is also denied that the first defendant was managing the joint family properties and affairs of the joint family being the eldest member of the family. It is also denied that the first defendant has deserted the first wife without any reasonable cause and had taken the second wife about 29 years back during the lifetime of the first wife. It is also contended in the written statement that the averment in the plaint that the second marriage is illegal is false and that the claim of the plaintiff that defendants No. 3 & 4 are not entitled to any share has been denied by the defendants. It is further contended by the defendants that the suit in the present form is not maintainable and that there is no cause of action to the suit. It is also the case of the defendants that the suit schedule properties are joint family properties of defendants No. 1 and 2 and that they have admitted that the joint family properties were divided about 6 years back under Panchayath Palu Patti and accordingly katha and pahani have been transferred in their respective names and they are in exclusive possession of their respective shares. It is the case of the defendants that the mother of plaintiff and wife of the first defendant had deserted the first defendant as she was having some illicit connection with another person. It is only after such desertion that the first defendant has taken the 5th respondent as his wife and through such relationship defendants No. 3
