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R IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF OCTOBER, 2024 PRESENT THE HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR AND THE HON'BLE MR JUSTICE UMESH M ADIGA REGULAR FIRST APPEAL NO.1226 OF 2016 (PAR)
BETWEEN:
JAYASHREE JAYANTH W/O. JAYANTH BALAKRISHNA, AGE. 61 YEARS, R/O.183 PRESTIGE NORTH WEST COUNTY RAJANUKUNTE, OFF DODDABALLAPUR RD, BANGALORE-560064.
- APPELLANT (APPELLANT REPRESENTED BY GPA HOLDER SRI. JAYANTH BALAKRISHNA, PARTY-IN-PERSON)
AND:
1. N. KRISHNASWAMY S/O. P.B. NANJIAH, AGE. 89 YEARS, R/O. NO.21/67, MAIN ROAD, METTYAPALAYAM-641301, COIMBATORE DISTRICT, TAMIL NADU.
2. PREMALEELA KRISHNASWAMY W/O. N. KRISHNASWAMY, AGE. 69 YEARS, R/O. 21/1/67, MAIN ROAD, METTYAPALAYAM-641301, COIMBATORE DISTRICT, Digitally signed by TAMIL NADU. (DELETED AS PER ORDER DATED VEERENDRA KUMAR K M 26.08.2010)
Location: HI GH COURT OF
3. MALLIKA MURALI BABU D/O. N. KRISHNASWAMY, KARNATAKA AGE. 56 YEARS, R/O. KRISHNALEELA, 59/E, MAIN ROAD, METTUPALAYAM-641 301, COIMBATORE DISTRICT, TAMIL NADU.
REPRESENTED BY HER LRS
3.(A) PRETIKA MANOJ D/O LATE MALLIKA AGED ABOUT 32 YEARS, 3.(B) AMITA MURALI BABU D/O LATE MALLIKA AGED ABOUT 30 YEARS, BOTH R/O. ‘KRISHNALEELA’ 59/E, MAIN ROAD, METTUPALAYAM-641301 COIMBATORE DISTRICT, TAMIL NADU.
4. R. MURALI BABU (HUSBAND OF MALLIKA MURALI BABU), S/O. H.A. RANGASAMY, AGE. 60 YEARS, R/O. KRISHNALEELA, 59/E, MAIN ROAD, METTUPALAYAM-641 301, COIMBATORE DISTRICT, TAMIL NADU.
5. R. THIMMAMMAL W/O. N. RAMOO GOWDER, AGE. 90 YEARS, R/O. 21/1/53, MAIN ROAD, METTUPALYAM-641 301, COIMBATORE DISTRICT, TAMIL NADU.
6. R. CHANDRASEKHAR S/O. N. RAMOO GOWDER, AGE. 75 YEARS, R/O. 21/1/53, MAIN ROAD, METTUPALAYAM-641 301, COIMBATORE DISTRICT, TAMIL NADU.
7. USHA UMAPATHI W/O. R. UMAPATHI, AGE. 65 YEARS, R/O. LASYA, 91/1, KASTURI APARTMENTS, OFF: KASTURI RANGA ROAD, ALWARPET, CHENNAI-600 018.
8. PREETHAM UMAPATHI S/O. R. UMAPATHI AGE. 43 YEARS, R/O LASYA, 91/1, KASTURI APARTMENTS, OFF: KASTURI RANGA ROAD, ALWARPET, CHENNAI-600 018.
9. VIKRAM UMAPATHI S/O. R. UMAPATHI, AGE. 39 YEARS, R/O LASYA, 91/1, KASTURI APARTMENTS, OFF: KASTURI RANGA ROAD, ALWARPET, CHENNAI-600 018.
10. PREETHI SHIVRAM D/O SHYMALA DEVARAJ, AGE. 51 YEARS, R/O NO.41416, MISSION DRIVE, PALMDALE, CALIFORNIA-93551, USA.
11. PRIYA DEVARAJ D/O SHYMALA DEVARAJA, AGE. 48 YEARS, R/O NO.41416, MISSION DRIVE, PALMDALE, CALIFORNIA-93551, USA.
12. VASANTHA PADMANABHA D/O N. RAMOO GOWDER, AGE. 71 YEARS, R/O NO.41416, MISSION DRIVE, PALMDALE, CALIFORNIA-93551, USA.
13. MALATHI KRISHNASWAMY D/O N. RAMOO GOWDER, AGE. 69 YEARS, R/O NO.10/B, KRUPA, BORIAHGOWDER STREET, L.S.PURAM, METTUPALAM-641 301, COIMBATORE DISTRICT, TAMIL NADU.
14. SUJATHA CHANDAPPA W/O N. CHANDAPPA, AGE. 83 YEARS, R/O NO.6/9, PRIMROSE ROAD, GURAPPA AVENUE, BANGALORE-560 025.
15. NANJARAJ CHANDAPPA S/O N. CHANDAPPA, AGE. 57 YEARS, R/O NO.6/9, PRIMROSE ROAD, GURAPPA AVENUE, BANGALORE-560 025.
16. CHANDINI SURYA KUMAR S/O N. CHANDAPPA, AGE. 64 YEARS, R/O NO.26, MARIANNAPALYA, HEBBAL, BANGALORE-560 024.
17. NANDINI AMAR KUMAR D/O N. CHANDAPPA, AGE. 61 YEARS, R/O NO.68, ASOKA PILLAR ROAD, NEAR CANARA BANK, II BLOCK, JAYANAGAR, BANGALORE-560 011.
18. K.KANTHARAJ REPRESENTED BY LRS, 18.(A) M V MALATHI W/O. LATE K KANTHARAJ, AGED ABOUT 58 YEARS, 18.(B) K KESHAVARAJ S/O LATE K KANTHARAJ, AGED ABOUT 40 YEARS, BOTH R/O. NO.11/150, K K NAGAR, COIMBATORE MAIN ROAD, MTTUPALAYAM-641301.
19. RENUKA LAKSHMANAN D/O KAMALA KRISHNARAJ, AGE. 55 YEARS, R/O NO.11/150, K.K. NAGAR, COIMBATORE MAIN ROAD, METTUPALAYAM-641 301.
- RESPONDENTS (BY SRI. KASHYAP N. NAIK, ADVOCATE FOR CR R1,R2,R3 (A & B) TO R13;
V/O DATED 23.05.2023, R15 TO R17 SHALL BE TREATED AS LR’S OF R14;
SRI. DHANANJAYA JOSHI, SENIOR COUNSEL FOR SRI. S.H. PRASHANTH & SRI. JAYAKUMAR N.D., ADVOCATES FOR R15, R16, C/R17 & R18 (A & B);
SRI. AKSHAY B.M., ADVOCATE FOR R19 AND PROPOSED R20)
THIS REGULAR FIRST APPEAL IS FILED UNDER ORDER XLI RULE 1 R/W SEC.96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 05.07.2016 PASSED IN OS NO.6285/2008 ON THE FILE OF THE XXXVII ADDL. CITY CIVIL SESSIONS JUDGE, (CCH-38), BENGALURU CITY, DISMISSING THE SUIT FOR PARTITION & ETC.
| Date on which the appeal was reserved for judgment | 20.08.2024 |
| Date on which the judgment was pronounced | 22.10.2024 |
CORAM: HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR AND HON'BLE MR JUSTICE UMESH M ADIGA
CAV JUDGMENT
(PER: HON'BLE MR JUSTICE SREENIVAS HARISH KUMAR)
This first appeal is directed against judgment dated 05.07.2016 in O.S.No.6285/2008 on the file of XXXVII Additional City Civil and Sessions Judge, Bengaluru (CCH-38), dismissing the suit as not maintainable.
2. The factual background in brief is as below:
2.1. One Bore Gowda of Pura Village, Hiresave Hobli, Channarayapatna Taluk, Hassan District was the propositus. He had two daughters, namely, Lakshmidevi and Devaramma, and a son by name P.B.Nanjiah. Thayammal was the first wife of P.B.Nanjiah. Through her he begot a son by name Devaiah Gowder. After the death of Thayammal, he married Lingammal through whom he begot three sons, namely, Ramoo Gowder, Chandappa and Krishnaswamy. Plaintiff is the daughter of Krishnaswamy, who is the first defendant in the suit. Second defendant was plaintiff’s mother and she was deleted from the array of parties by order dated 26.08.2010. Defendant No.3 is the second daughter of the first defendant. Fourth defendant is the husband of third defendant. Defendant No.5 is the wife of Ramoo Gowder. Defendants No.6 to 13 belong to the branch of Ramoo Gowder. Defendants No.14 to 17 belong to the branch of N.Chandappa and defendants No.18 and 19 belong to the branch of Devaiah Gowder.
2.2. Bore Gowda died on 15.10.1936 and his son P.B.Nanjiah predeceased him on 10.10.1936.
2.3. Plaintiff’s suit is for partition and separate possession of her 1/8th share in the properties described in the plaint schedule. Schedule A consists of immovable landed properties, schedule B consists of Bank Accounts, plants and machinery and, assets and shares in some companies. Schedule ‘C’ consists of residential apartments at Coimbatore and two pieces of agricultural lands. According to the plaintiff items 1 to 3 of plaint ‘A’ schedule belong to the Hindu Undivided Family of Bore Gowda. These properties devolved on Devaiah Gowder, Ramoo Gowder, Chandappa and Krishnaswamy. The cousins of these four brothers claimed occupancy rights on these three lands under the provisions of Karnataka Land Reforms Act, but their claim was rejected and therefore these items belonged to the joint family. In regard to other properties the plaintiff has given a long description of the way how they were acquired by the joint family, but it is not necessary to refer to all those details; it is enough if it is stated that according to the plaintiff the other properties also belong to the joint family.
2.4. The plaintiff refers to three partition deeds dated 04.03.1955, 26/27.04.1966 and 22.02.1994. It is stated in the plaint that by virtue of partition dated 04.03.1955, Ramoo Gowder and Devaiah Gowder were allotted separate shares and the shares of Chandappa and Krishnaswamy were kept jointly. Under partition deed of the year 1966, Krishnaswamy, the first defendant was allotted certain other properties. The partition deed dated 22.02.1994 refers to a share being given to third defendant. It is stated that the plaintiff’s signature was taken on this document as a witness. Plaintiff was denied share on an erroneous interpretation of law and therefore this partition did not bind her interest. The allegation of the plaintiff is that her father i.e., the first defendant has been hostile to her interest. The attitude of the first defendant towards the plaintiff resulted in depriving her of legitimate share in all the properties belonging to the joint family.
3. The first defendant filed a lengthy written statement, the gist of which is that:
3.1. P.Bore Gowda, the propositus died on
15.10.1936. His only son P.B.Nanjiah died on 10.10.1936. Items 1 to 3 of the plaint schedule no doubt belong to the ancestral joint family, but they were being cultivated by some others who claimed grant of occupancy rights under the provisions of Karnataka Land Reforms Act. The Land Tribunal granted occupancy rights in favour of one Kalaiah. The order of the Tribunal was challenged by the first defendant and his brothe
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