C.P. Kempe Gowda and Others vs Lakshmamma and Others

B.V. Nagarathna, J—This second appeal is filed by defendants in O.S. No. 22/2001, assailing the judgment and decree passed in R.A. No. 44/2007, dated 15/1/2013, passed by the Presiding Officer at Ramanagara, confirming the judgment and decree dated 1/9/2007, passed in O.S. No. 22/2001, by the Prl. Civil Judge (Sr.Dn.) at Ramanagara.

For the sake of convenience, parties shall be referred to, in terms of the status before the trial court.

Respondent Nos. 1 and 2 herein, who are the plaintiffs in O.S. No. 22/2001, filed the suit for partition and separate possession of the plaintiffs'' 1/3rd share each in the suit properties and for permanent injunction restraining the defendants from alienating the suit properties.

It was contended that plaintiffs and defendant No. 1 are the children and defendant No. 2 - Smt. Munithayamma is the wife of late Puttananjaiah. That Puttananjaiah died intestate. After the death of the said Puttananjaiah, the plaintiffs and defendants had succeeded to the suit properties and that they were entitled to an equal share in the suit properties under the provisions of the Hindu Succession Act, 1956 (Karnataka Amendment) which came into effect in 1994.

It was contended that they had demanded partition of the suit properties, but the defendants did not accede to their demand and therefore, in order to assert their rights, they were constrained to file the suit.

After service of suit summons and notice from the trial court, defendants appeared and filed their written statement admitting the relationship between the parties, but denying the share of the plaintiffs in the suit properties. It was contended that the defendants had spent exorbitant amounts towards the marriage of the plaintiffs and that they had taken care of the children of the plaintiffs and had attended to plaintiffs requirements, even after their marriage as and when it was requested. Therefore, they were not entitled to any share in the suit scheduled properties.

It was denied that the plaintiffs had 1/3rd share in the suit properties and also the suit was barred by limitation. Contending that there was no cause of action for the plaintiffs to file the suit, they sought dismissal of the suit.

Though defendant Nos. 1 and 2 have taken the aforesaid common contentions, they nevertheless filed separate written statements.

On the basis of the rival pleadings, the trial court framed the following issues:

i) Do the plaintiffs prove that they are entitled to 1/3rd share each in the suit properties as alleged?

ii) Do the plaintiffs prove the invasion of their right over the suit properties as alleged?

iii) Whether the suit is properly valued for the purpose of Court Fee and Court Fee paid is sufficient?

iv) Whether the plaintiffs are entitled for the reliefs of the partition and separate possession and also for permanent injunction as prayed?

v) What Order or Decree?

In support of their case, the plaintiffs examined two witnesses and produced 21 documents, which were marked as Exs. P-1 to P-21, while the defendants examined three witnesses and produced 19 documents, which were marked as Exs. D-1 to D-19.

On the basis of the evidence on record, the trial court answered Issue Nos. 1 and 4 partly in the affirmative, Issue Nos. 2 and 3 in the affirmative and decreed the suit in part and declared that plaintiff Nos. 1 and 2 and defendant Nos. 1 and 2 were entitled to 1/8th share each, 5/8th share and 1/8th share respectively in the suit properties. In other words, the plaintiffs were entitled to 1/8th share in the suit properties by metes and bounds. A decree for permanent injunction was also granted to the plaintiffs, restraining the defendants from alienating 1/8th share of each of the plaintiffs.

Being aggrieved by the judgment and decree of the trial court dated 1/9/2007, defendants filed R.A. No. 44/2007 before the Fast Track Court at Ramanagara.

In the Regular Appeal, the first appellate court formulated the following points for its consideration:

i) Whether the plaintiffs prove that they are entitled to 1/3rd share each in the suit properties as alleged?

ii) Whether the plaintiffs are entitled for the reliefs of the partition and separate possession and also for permanent injunction as prayed for?

iii) Whether the judgment and decree of the court below is perverse, capricious and arbitrary one?

iv) Whether the judgment and decree of the court below is liable to be set aside?

v) What order?

After hearing the learned counsel for the parties, it held point Nos. 1 and 2 partly in the affirmative, point Nos. 3 and 4 in the negative and dismissed the appeal on 15/1/2013.

Being aggrieved by the judgment and decree dated 15/1/2013, passed by the first appellate court, the defendants have filed this regular second appeal.

I have heard the learned counsel for appellants.

He contended that the respondent/plaintiffs are not entitled to any share in the suit properties as the appellants had taken care of them after the demise of Puttananjaiah and had spent a huge amounts towards their marriage and that all the financial assistance was rendered to the respondent/plaintiffs as and when they requested even after their marriage. Hence, the courts below were not right in holding that the plaintiffs were entitled to any share in the suit properties. It was also contended that after the marriage of the respondent/plaintiffs, they were not entitled to any right, title and interest in the ancestral property of the appellant/defendants and on the demise of Puttananjaiah, it was only the appellant/defendants, who were entitled to succeed to the suit properties.

He also contended that Puttananjaiah died sometime in the year 1954, but the suit for partition was filed only in the year 2001 and that the suit was barred by limitation. Drawing my attention to the various portions of impugned judgment and decree, he contended that substantial questions of law would arise in the second appeal, which would merit a detailed consideration on admission.

Having heard the learned counsel for the appellants and on perusal of the material on record, it is noted that the relationship between the parties is not in dispute. Late Puttananjaiah and his wife Munithayamma had three children i.e., plaintiff Nos. 1 and 2 and defendant No. 1.

It is also not in dispute that late Puttananjaiah had died intestate and he had right, title and interest in the joint family or ancestral properties, that is the suit properties and that there was no partition during the life time of Puttananjaiah. After his death plaintiffs and defendants succeeded to the same. The suit was filed in the year 2001 when the Karnataka Amendment was in operation. The fact that subsequently Parliament has amended the Hindu Succession Act, 1956, particularly, Section 6 of the Act, cannot be lost sight of.

Both the courts below held that the suit properties were ancestral properties and that there was no partition of the suit properties during the life time of Puttananjaiah. That Puttajanjaiah died intestate that the parties had succeeded to the suit properties and that subsequently there had been no division of the properties after the death of Puttananjaiah.

While there can be no error in these findings, it is noted that the courts below have not applied Section 6 as amended by the Parliament in the year 2005. As that provision had become applicable subsequent to the amendment of the Act and has substituted the Karnataka Amendment, it had to be applied to the facts of the case by the courts below.

The courts below have infact lost sight of the fact that the plaintiffs who are the daughters of Puttananjaiah are entitled to a share equal to defendant No. 1, the son of Puttananjaiah and accordingly, ought to have divided the suit schedule properties in that manner. In which event, the share of the plaintiffs would have been greater than what has been allotted by the courts below.

Thus, while recognizing the applicability of the amended Section 6 of the Act, the courts below had not taken note of the fact that the plaintiffs i.e., the daughters of Puttananjaiah have an equal share as of defendant No. 1, his son. The courts below have made a notional partition between defendant No. 1 the son and has granted the plaintiffs a share only in the share of Puttananjaiah which is incorrect. As a result, 1/4th share is granted to defendant No. 1, which is contrary to the provisions of Section 6 of the Act as has been amended in the year 2005. As a result, the share granted to defendant No. 1 is on the higher side and consequently, the share granted to defendant No. 2 is also on the higher side.

In fact, in my view, if at all anybody has been aggrieved by the judgment and decrees of the courts below, it is the plaintiffs and not the defendants, who by an erroneous method, have been allotted a higher share. Therefore, no substantial question of law arises in this appeal.

The appeal is dismissed.