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2023 Supreme(Online)(KAR) 20160
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF JANUARY, 2023
BEFORE
THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM
R.S.A.NO. 1718 OF 2009 (PAR)
BETWEEN:
1. SMT. KEMPALAKSHMAMMA
@ DODDA PILLAMMA
W/O S MUDDAPPA
AGED ABOUT 54 YEARS,
R/A ALLAHALLI VILLAGE, KASABA HOBLI
DODDABALLAPURA TQ,
BANGALORE DIST-561 203
2. SMT. RUKMANIYAMMA
W/O LATE GANGADHARAPPA
AGED 50 YEARS
R/AT NO.819, NEAR G RAMAIAH’S HOUSE,
DEVARAJ NAGAR, II WARD
DODDABALLAPURA TQ
BANGALORE DIST-561203
3. SMT. RANGAMMA
SINCE DEAD BY HER LRs
3A). SMT.MAHALAXMI
D/O LATE SIDDAPPA
AGED ABOUT 32 YEARS
3B). KUM.RAKSHITHA.S
D/O LATE SIDDAPPA,
AGED ABOUT 16 YEARS
BOTH ARE R/A D.NO.1810,
2
NEAR G RAMAIAH’S HOUSE, DEVARAJ NAGAR,
II WARD, DODDABALLAPURA TQ,
BANGALORE RURAL DIST-561 203
4. SMT. SAVITHRAMMA
W/O SRINIVASA
AGED 46 YEARS
R/A NO. 270, VEERABHADRANA PALYA
KANAKADASA ROAD, II WARD
DODDABALLAPUR TQ, BANGALORE DIST-561203.
...APPELLANTS
(BY SRI.V ANAND & SRI.V C GOWRISHANKAR, SRI.V.ANAND AND
SRI.MAHESH.H.V, ADVOCATES FOR A3(A))
AND:
1. SMT. KEMPAMMA
W/O LATE MUNIYAPPA
DEACEASED
2. SMT. RATHNAMMA
@ CHIKKA PILLAMMA
W/O SRI KRISHNAPPA
AGED 52 YEARS
R/A KANTANAKUNTE VILLAGE, KASABA HOBLI,
DODDABALLAPURA TQ, BANGALORE DIST-561203
3. SRI K M ANJANEYA
S/O LATE MUNIYAPPA
AGED 41 YEARS
R/A D.NO.1094, CAR STREET,
THERINI BEDDHI, 2ND WARD,
DODDABALLAPURA TOWN
BANGALORE RURAL DIST-561203
4. SRI MUNIKEMPAIAH
SINCE DECEASED BY HIS LRs
3
4A). SRI.SHIVASUBRAMANYA.K.M
S/O LATE MUNIKEMPAIAH,
AGED ABOUT 40 YEARS
4B). SRI.SHIVAKUMAR K.M
S/O LATE MUNIKEMPAIAH,
AGED ABOUT 38 YEARS
4C). SMT.UMADEVI.K.M
D/O LATE MUNIKEMPAIAH,
AGED ABOUT 36 YEARS
R/AT NO.719, 13TH DIVISION,
THIPPAPURA CROSS,
BHUVANESHWARI NAGAR,
DODDABALLAPURA TALUK,
BANGALORE RURAL DISTRICT – 561 203
…RESPONDENTS
(BY SRI.T H CHIKKAVENKATE GOWDA, ADVOCATE FOR R3(NOC);
SRI.G.VENKATESH, ADVOCATE FOR R3;
SRI.V.VISHWANATHA SHETTY, ADVOCATE FOR R4(A-C);
R1 DEAD AS PER CAUSE TITLE;
R2 RATHNAMMA SERVED;
R2 SERVED ON MISC.CIVIL NO.22462/2010)
THIS RSA IS FILED U/S 100 OF CPC., AGAINST THE
AND
DECREE
DATED
7.7.2009
PASSED
IN
R.A.NO.22/2008 ON THE FILE OF THE PRL. DISTRICT & SESSIONS
JUDGE, BANGALORE RURAL DISTRICT, BANGALORE, DISMISSING
THE APPEAL FILED AGAINST THE JUDGMENT AND DECREE DATED:
9.11.2007 PASSED IN O.S.164/2005 ON THE FILE OF THE CIVIL
JUDGE (SR.DN.) DODDABALLAPUR.
THIS APPEAL COMING ON FOR FURTHER HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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JUDGMENT
The captioned second appeal is filed by the defendant
Nos.2, 4 and legal representatives of defendant No.5
questioning the judgment and decree passed by the Appellate
Court in dismissing the suit for partition filed by plaintiff.
2.
For the sake of brevity, the parties are referred to
as per their rank before the trial Court.
3.
The family tree is as under:
Muniyappa (Died on 01.06.1960)
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Akkayamm (died) Thimmakka Kempamma (70 yrs)
1st Wife
2nd wife
3rd Wife
No Children
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Defendant No.1
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Siddappa (60 years get released
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from the joint family Under the
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release deed)
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Munikempaiah Kempalakshmamma Rathnamma Rukmini Rangamma Savithri Anjanappa
65 Years
@ Dodda Pillamma @ Chikka Daughter Daugher Daughter Son 41 years
Son applicant (Living with (Living With (Living with (Living with (Living Defendant 7
Plaintiff
Husband’s House) Husband’s Husband’s Husband’s Husband’s
Defendant 2
House) House) House) House)
Defendant 3 Def 4
Def 5 Def 6
5
4.
The plaintiff Munikempaiah who is the eldest son of
Muniyappa instituted suit for partition and separate possession
by specifically contending that schedule ‘B’ property is
ancestral property and schedule ‘A’ property was purchased by
his father Muniyappa under registered sale deed dated
02.09.1948. Therefore, plaintiff specifically contended that
suit schedule properties are joint family ancestral properties
and plaintiff is in joint possession and enjoyment along with
defendants. The plaintiff also contended that his father
Muniyappa was compelled to mortgage the joint family
ancestral property during his lifetime and plaintiff and
defendants got the suit schedule properties redeemed from
one T. Ananthaiah on 08.08.1984. The plaintiff therefore
contended that defendant Nos.2 to 6 who are his sisters have
received sufficient cash and gold ornaments at the time of
marriage and therefore plaintiff contended that defendant
Nos.2 to 6 are not entitled for any share. Therefore, plaintiff’s
contention was that he along with defendant No.7 alone are
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entitled for half share in the suit schedule properties. The
present suit is filed alleging that the mother and defendant
Nos.1 and 7 have declined to effect partition by metes and
bounds.
5.
Defendant Nos.2 to 6 who are sisters tendered
appearance and filed written statement. Defendant No.4 filed
written statement and it was adopted by defendant Nos.2, 3, 5
and 6. Defendant Nos.2 to 6 stoutly denied the allegation that
they received cash and gold ornaments at the time of
marriage. On the contrary, defendant Nos.2 to 6 claimed that
there is no partition by metes and bounds and therefore, they
are also entitled for equal share and hence, prayed to effect
partition and allot their legitimate share. Defendant No.7, on
the contrary, claimed that there is already partition in the
family between plaintiff and defendant No.7 on 09.08.1989
and therefore, contended that present suit for partition is not
maintainable.
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6.
The plaintiff, defendant Nos.2 to 6 and defendant
No.7 to substantiate their respective claim have led oral and
documentary evidence.
7.
The trial Court having assessed pleadings of the
parties, oral and documentary evidence, answered issue No.1
in the affirmative and held that suit schedule properties are
joint family ancestral prop
