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2023 Supreme(Online)(Kar) 32957
IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 28TH DAY OF FEBRUARY 2023 BEFORE THE HON’BLE MR.JUSTICE N.S.SANJAY GOWDA R.F.A.No.714/2009(PAR)
C/w R.F.A.CROB.No.7/2010 In R.F.A.No.714/2009 BETWEEN:
1. SHRI.NARAYANASWAMY, S/O LATE KRISHNA REDDY, AGED ABOUT 42 YEARS, R/AT 6THCROSS,LAKSHMI LAYOUT, MENEKOLALU, MARATHALLI POST, BENGALURU – 560 037.
2. SHRI.RAJASHEKAR REDDY, S/O LATE KRISHNA REDDY, AGED ABOUT 42 YEARS, R/AT 6TH CROSS, LAKSHMI LAYOUT, MENEKOLALU, MARATHALLI POST, BENGALURU – 560 037.
… APPELLANTS (BY SRI.ASHOK.B.PATIL, ADVOCATE)
AND:
1. SMT.RATHNAMMA, W/O LATE GURUMURTHY REDDY, SINCE DECEASED BY HER LRs., 1(a) SRI.G.NARAYANASWAMY, SINCE DECEASED BY HIS LRs., 1(a)(i) SMT.KANTHA.K.Y W/O LATE G.NARAYANA SWAMY, AGED 60 YEARS, R/AT No.56, 5TH B CROSS, OMBR LAYOUT, CHIKKA BANASAWADI, BENGALURU – 560 043.
1(a)(ii) SRI.ARVIND.N, S/O LATE G.NARAYANA SWAMY, AGED 33 YEARS, R/AT No.56, 5TH B CROSS, OMBR LAYOUT, CHIKKA BANASAWADI, BENGALURU – 560 043.
1(a)(iii) SMT. AKILA.N., D/O LATE G.NARAYANA SWAMY, W/O VIJAY KUMAR.H.N., AGED 32 YEARS., R/AT No.9, NEAR RAMA TEMPLE, CARMELARAM POST, HALANAYAKANAHALLI, BENGALURU – 560 035.
1(b) SRI.KRISHNA REDDY, S/O LATE GURUMURTHY REDDY, SINCE DECEASED BY HIS LRs., 1(b)(i) SMT.ANITHA, W/O LATE G.KRISHNA REDDY, AGED ABOUT 56 YEARS, R/AT No.56, 5TH B CROSS, OMBR LAYOUT, CHIKKA BANASAWADI, BENGALURU – 560 043.
1(b)(ii) SRI.SUNIL REDDY.K.
S/O LATE G.KRISHNA REDDY, AGED ABOUT 30 YEARS, R/AT No.56, 5TH B CROSS, OMBR LAYOUT, CHIKKA BANASAWADI, BENGALURU – 560 043.
1(b)(iii) SRI.VIJAY REDDY.K., S/O LATE G.KRISHNA REDDY, AGED ABOUT 28 YEAS, R/AT No.56, 5TH B CROSS, OMBR LAYOUT, CHIKKA BANASAWADI, BENGALURU – 560 043.
1(c) SMT.KOUSALYA, D/O LATE GURUMURTHY REDDY, AGED ABOUT 60 YEARS, R/AT No.56, 5TH B CROSS, OMBR LAYOUT, CHIKKA BANASAWADI, BENGALURU – 560 043.
1(d) SMT. ANUSUYA, D/O LATE GURUMURTHY REDDY, SINCE DECEASED BY HIS LRs., 1(d)(i) SRI.ANIL KUMAR, S/O KODANDA REDDY, AGED ABOUT 35 YEARS, R/AT No.56, 5TH B CROSS, OMBR LAYOUT, CHIKKA BANASAWADI, BENGALURU – 560 043.
1(d)(ii) SRI.ARUN REDDY, S/O KODANDA REDDY, AGED ABOUT 33 YEARS, R/AT No.56, 5TH B CROSS, OMBR LAYOUT, CHIKKA BANASAWADI, BENGALURU – 560 043. 1(e) SMT.RADHA, D/O LATE GURUMURTHY REDDY, AGED ABOUT 52 YEARS, R/AT No.56, 5TH B CROSS, OMBR LAYOUT, CHIKKA BANASAWADI, BENGALURU – 560 043.
1(f) SRI.RAMESH REDDY, SINCE DECEASED BY HIS LRs., 1(f)(i) SMT. ROOPA, W/O RAMESH REDDY, AGED ABOUT 42 YEARS, R/AT No.56, 5TH B CROSS, OMBR LAYOUT, CHIKKA BANASAWADI, BENGALURU – 560 043.
1(f)(ii) SMT.VENNILA R.REDDY, D/O RAMESH REDDY, AGED ABOUT 26 YEARS, R/AT No.56, 5TH B CROSS, OMBR LAYOUT, CHIKKA BANASAWADI, BENGALURU – 560 043.
1(f)(iii) BHARATH R.REDDY, S/O RAMESH REDDY, AGED ABOUT 18 YEARS, R/AT No.56, 5TH B CROSS, OMBR LAYOUT, CHIKKA BANASAWADI, BENGALURU – 560 043.
1(g) SRI.G. RAJENDRA REDDY, SINCE DECEASED BY LRs., 1(g)(i) SMT.CHAYA W/O LATE G.RAJENDRA REDDY, AGED ABOUT 40 YEARS, R/AT No.56, 5TH B CROSS, OMBR LAYOUT, CHIKKA BANASAWADI, BENGALURU – 560 043.
1(g)(ii) MASTER ESHWAR R.REDDY, S/O LATE G.RAJENDRA REDDY, AGED ABOUT 9 YEARS, R/AT No.56, 5TH B CROSS, OMBR LAYOUT, CHIKKA BANASAWADI, BENGALURU – 560 043.
1(g)(iii) MASTER DAKSHA R REDDY, S/O LATE G.RAJENDRA REDDY, AGED ABOUT 8 YEARS, R/AT No.56, 5TH B CROSS, OMBR LAYOUT, CHIKKA BANASAWADI, BENGALURU – 560 043.
2. SMT. JAYAMMA, SINCE DECEASED BY LRs., 2(a) SRI.NAGARAJA REDDY, S/O VEERAPPA REDDY, AGED ABOUT 32 YEARS, R/AT KOTTANUR VILLAGE, MOUNT ST.JOSEPH COLLEGE POST, BENGALURU – 560 038.
2(b) SMT. INDRAMMA, W/O ANJINAPPA, AGED ABOUT 54 YEARS, 2(c) SMT. SUGANA, W/O HANUMANTHA REDDY, AGED ABOUT 50 YEARS, 2(d) SMT. NIRMALA, W/O HANUMANTHA REDDY, AGED ABOUT 48 YEARS, 2(e) SMT.SARASWATHAMMA, W/O GOPALA REDDY, AGED ABOUT 46 YEARS, R-2(b) TO R-2(e)
R/AT No.89, NEAR ST.JOSEPH’S COLLEGE, SHANKARNAGAR CIRCLE, KOTHANUR, BENGALURU – 560 086.
2(f) SMT.RENUKA, W/O LATE CHANDRASHEKARA REDDY, AGED ABOUT 44 YEARS, R/AT No.13, KEMPAPURA, YEMMLUR POST, BENGALURU – 560 037.
2(g) SMT.PRABHAVATHI, W/O KRISHNA REDDY, AGED ABOUT 42 YEARS, R/AT No.CHIKKANEKKUNDI, VIA VARATUR, MUTHASANDRA POST, BENGALURU – 560 087.
2(h) SMT.SHOBHA, W/O SRINIVAS REDDY, AGED ABOUT 30 YEARS, R/AT No.22, BASAVANAPURA VILLAGE, ELECTRONIC CITY POST, BENGALURU – 560 100.
2(i) SRI.K.N.KODANDA REDDY, S/O LATE K.N.NARAYANA REDDY, AGED ABOUT 58 YEARS, 2(j) SMT.K.PUNITHA, W/O N.NARASIMHA MURTHY, AGED ABOUT 36 YEARS, 2(k) SRI.K.BABU, S/O KODANDA REDDY, AGED ABOUT 33 YEARS, 2(l) SRI. SUNIL REDDY, S/O KODANDA REDDY, AGED ABOUT 31 YEARS, R-2(g) TO (k) ARE R/AT No.12, KEMPAPURA, YEMMLUR POST, BENGALURU – 560 037.
3. SMT. VIMALA, W/O SUBBARAMA REDDY, AGED ABOUT 54 YEARS, R/AT MENEKOLALU, LAKSHMI LAYOUT, 6TH CROSS, MARATHALLI POST, BENGALURU – 560 037.
4. SMT.KANAKA, W/O JANARADHANA REDDY, R/AT LAKSHMI LAYOUT, 6TH CROSS, NEAR GANESH PROVISIONS, MENEKOLALU VILLAGE, MARATHALLI POST, BENGALURU- 560 037. SINCE DEAD BY LRs., 4(a) JAGANATH REDDY, S/O REDDAPPA REDDY, 4(b) SHRI MOHAN, S/O LATE KANAKA, AGED ABOUT 27 YEARS, 4(c) KUM. KAVYA, D/O LATE KANAKA, AGED ABOUT 24 YEARS, ALL ARE R/AT LAKSHMI LAYOUT, 6TH CROSS, MONNEKOLLALA, BANGALORE – 560 037.
5. SMT.SUGUNA, W/O KRISHNA REDDY, AGED ABOUT 50 YEARS, R/AT RAYASANDRA, SARJAPURA HOBLI, HUSKUR POST, ANEKAL TALUK.
6. SMT. SHANTHAMMA, W/O RAGHAVENDRA REDDY, AGED ABOUT 48 YEARS, R/AT LAKSHMI LAYOUT, 6TH CROSS, NEAR GANESH PROVISIONS, MENEKOLALU, MARATHALLI POST, BENGALURU – 560 037.
… RESPONDENTS (BY SRI. T.N.VISHWANATHA, ADVOCATE FOR R-1(a)(i) &
R-1(a)(iii) to R-1(g)(iii) & R-2(a TO l);
VIDE ORDER DATED:12.08.2013, APPEAL AGAINST R-4 IS ABATED;
R-3, R-4(a), R-4(b), R-4(c), R-5 & R-6 ARE SERVED AND UNREPRESENTED)
THIS APPEAL IS FILED UNDER SECTION 96 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED:21.04.2009 PASSED IN O.S.No.408/2005 ON THE FILE OF THE XXXVIII ADDITIONAL CITY CIVIL JUDGE, BANGALORE, PARTLY DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION AND MESNE PROFITS.
In R.F.A.CROB.No.7/2010 BETWEEN:
SMT.RATHNAMMA, W/O LATE GURUMURTHY REDDY, AGED ABOUT 76 YEARS, R/AT No.5, CHIKKBANASAVADI, OMBR MAIN ROAD, BANGALORE – 560 043. … CROSS OBJECTOR (BY SRI. H.M.SHIVALINGAIAH, ADV.)
AND:
1. SRI.NARAYANASWAMY, S/O LATE KRISHNA REDDY, AGED ABOUT 42 YEARS, R/AT 6TH CROSS, LAKSHMI LAYOUT, MUNEKOLALU VILLAGE, MARATHHALLI POST, BANGALORE – 560 037.
2. SRI.RAJASHEKAR REDDY, S/O LATE KRISHNA REDDY, AGED ABOUT 40 YEARS, R/AT 6TH CROSS, LAKSHMI LAYOUT, MUNEKOLALU VILLAGE, MARATHHALLI POST, BANGALORE – 560 037.
3. SMT. JAYAMMA, SINCE DECEASED BY LR., 3(a) SRI.NAGARAJA REDDY, S/O VEERAPPA REDDY, AGED ABOUT 32 YEARS, R/AT KOTTANUR VILLAGE, MOUNT SENT JOSEPH COLLEGE POST, BANGALORE – 560 038.
4. SMT VIMALA, W/O SUBBA RAMA REDDY, AGED ABOUT 54 YEARS, R/AT 6TH CROSS, LAKSHMI LAYOUT, MUNEKOLALU VILLAGE, MARATHHALLI POST, BANGALORE – 560 037.
5. SMT. KANAKA, W/O JANARDHANA REDDY, DEAD BY HER LRs., 5(a) SRI. JAGANNATH REDDY, S/O REDDAPPA REDDY, AGED ABOUT 53 YEARS, 5(b) SRI. MOHAN, S/O JAGANNATH REDDY, AGED ABOUT 29 YEARS, R-5(a) & R-5(b) ARE R/AT 6TH CROSS, LAKSHMI LAYOUT, MUNEKOLALU VILLAGE, MARATHHALLI POST, BANGALORE – 560 037.
5(c) SMT.A.KAVYA, W/O SUNDEEP, AGED ABOUT 26 YEARS, R/AT No.90, OODY VILLAGE, MAHADEVAPURA POST, NEAR ABT PARCEL SERVICE, BANGALORE – 560 048.
6. SMT.SUGUNA, W/O KRISHNA REDDY, AGED ABOUT 50 YEARS, R/AT RAYASANDRA, SARJAPURA HOBLI, HUSKUR POST, ANEKAL TALUK.
7. SMT. SHANTHAMMA, W/O RAGHAVENDRA REDDY, AGED ABOUT 48 YEARS, R/AT 6TH CROSS, LAKSHMI LAYOUT, MUNEKOLALU VILLAGE, MARATHHALLI POST, BANGALORE – 560 037.
… RESPONDENTS (BY SRI. ASHOK.B.PATIL, ADVOCATE FOR R-1 TO R-2;
R-3(a), R-4, R-5(a), R-5(b), R-5(c), R-6 AND R-7 ARE SERVED AND UNREPRESENTED)
THIS R.F.A. CROB IS FILED IN R.F.A.No.714/2009 FILED UNDER ORDER 41, RULE 22 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED:21.04.2009 PASSED IN O.S.No.408/2005 ON THE FILE OF THE XXXVIII ADDITIONAL CITY CIVIL JUDGE, BANGALORE PARTLY DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.
THIS APPEAL ALONG WITH R.F.A. CROB HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 24.01.2023, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. This appeal and the cross objection arise out of a decree of partition granted by the Trial Court in favour of Rathnamma and Jayamma against their brother Krishna Reddy.
2. One Ramaiah Reddy had one son called Krishna Reddy and two daughters Rathnamma and Jayamma.
3. Rathnamma and Jayamma instituted the suit seeking for partition and separate possession of nine agricultural properties, which were all situate at Munekolalu Village, Varthur Hobli, Bengaluru South Taluk against the legal heirs of their only brother Krishna Reddy. 4. It was their case that the suit properties were acquired by their grandfather Muniyappa who had three sons namely Papaiah Reddy, Ramaiah Reddy and Sidda Reddy. They stated that there was a partition effected by way of a registered Partition Deed on 26.10.1969 between the branch of their father Ramaiah Reddy (represented by their brother Krishna Reddy) and the branch of Papaiah Reddy (their uncle).
5. It may be pertinent to state here that the registered Partition Deed dated 26.10.1969 contains a recital that the third son of Muniyappa i.e., Sidda Reddy had got himself separated and had also executed a Relinquishment Deed dated 26.10.1969 along with his son and therefore, the joint family constituted only the remaining two sons of Muniyappa namely Papaiah Reddy and Ramaiah Reddy (father of the plaintiffs).
6. They stated that after the partition, they continued to be the members of a Hindu undivided joint family along with their brother Krishna Reddy and his wife and children. It was stated that since they and the branch of their brother had succeeded to the share of their father, who had died intestate, they were each entitled to 1/3rd share and despite demands being made to their brother during his life time, the properties had not been partitioned. They stated that even after his death, though several requests were made, the partition was not effected and they were, therefore, constrained to file a suit.
7. The wife and children of Krishna Reddy had been arrayed as defendants 1 to 7. The wife of Krishna Reddy namely Jayamma and their two sons namely Narayanaswamy and Rajashekar Reddy entered appearance and contested the suit by filing a written statement.
8. They stated that Rathnamma and Jayamma had each received a sum of Rs.2,00,000/- from their brother Krishna Reddy in 1982 and had released their share in the suit properties in favour of Krishna Reddy and thus, the joint family status stood terminated and extinguished on that day itself.
9. They admitted the relationship as stated by Rathnamma and Jayamma, but they contended that the joint family stood extinguished in the year 1982 itself and Rathnamma and Jayamma being 77 and 72 years and having been married and settled down with their respective families 50 years ago, they would not be entitled to contend that they constituted a Hindu undivided joint family. They stated that Krishna Reddy had exclusively succeeded to the share of Ramaiah Reddy under the registered Partition Deed dated 26.10.1969 and the suit for partition in respect of these properties was not maintainable. They also stated that after the receipt of Rs.2,00,000/-, Rathnamma and Jayamma had executed a Release Deed dated 30.12.1982 and having received their share and having executed the Release Deed, they had no right to seek for partition and thus, the suit was liable to be dismissed.
10. The Trial Court framed four issues.
11. On behalf of the plaintiffs, plaintiff No.1 – Rathnamma was examined as P.W.1 and got eight documents admitted in evidence and marked as exhibits.
12. On behalf of defendants, defendant No.6 – Narayanaswamy was examined as D.W.1 and two more witnesses were examined as D.W.2 and D.W.3 and no document was marked on their behalf.
13. The Trial Court, on assessment of the evidence adduced before it, came to the conclusion that Rathnamma and Jayamma had proved that the suit properties were joint family properties and they were entitled to 1/6th share. The
