Smt. Neelamma and Smt. Vasanthi vs Smt. Sannamuniyamma and Others

Huluvadi G. Ramesh, J.—This is a defendants'' appeal challenging the judgment and decree passed by the Fast Track Court III, Tumkur in RA 232/2006 (Old No. 37/1004) on 15.3.2008. Suit OS 308/989 was filed by the plaintiffs seeking for a partition and separate possession of the respective shares. The suit was contested. The trial court having raised as many as four issues, after inquiry, decreed the suit. Against the said order, defendants filed an appeal before the Fast Track Court Judge, Tumkur. The lower appellate court after inquiry, modified the decree declaring that deceased Erappa had five children and two wives who are entitled for 1/12th share each and defendants/respondents 2 to 6 are entitled for 2/12th share each.

According to the appellants'' counsel, item No. 4(a) has been introduced by the plaintiffs in the lower appellate court although it was the self acquired property of the defendants. It is also submitted, item 5 is also self acquired property and that should also be taken note of and it ought not to have been the subject matter of partition.

According to the respondents'' counsel, except item 4(a) which of course was raised at the time of appeal, in respect of item 5 a plea was taken by the plaintiff at that time and that property i.e., item 5 could not be a subject matter to be once again dealt with as already a finding is given by the lower appellate court and also no contention was taken by the appellants herein in this regard.

It appears, property in items 4(a) & 5 could not have been the subject matter of partition. The contention of the appellants herein is, these two items are self acquired properties. The appellants had no occasion to meet out the case of the respondents before the trial court as they were placed exparte as such, they have not agitated the issue and this item 4(a) has been newly introduced in the appeal though it is self acquired property. Without hearing, such an order has been passed and it affects the interest of the appellants. However, no substantial question of law is raised so far after the appeal is filed except some interim orders now and then. Also, an attempt has also been made by this Court itself directing the parties to go for a settlement.

The substantial question of law that would arise for consideration is whether the lower appellate court is justified in passing the impugned order without affording opportunity to establish whether items 4(a) & 5 are the self acquired properties of defendant 1 / 1st appellant herein.

In respect of the division of properties there would be no objection as it would be as per entitlement. So far as the above noted two items of properties are concerned, the lower appellate court of course, has not given opportunity to the other side to have their say and to stand by their contention as regards items 4(a) & 5 are the self acquired properties or not. Though it is argued by the respondents'' counsel that cross-appeal has not been preferred by the appellants herein as regards the finding given by the trial court in respect of item 5, at this point of time, they cannot raise a plea.

So far as item 4(a) & 5 are concerned, it is for the lower appellate court to look into the matter and after holding an inquiry, pass appropriate orders. Parties are permitted to adduce additional evidence, if any and thereafter, it is for the lower appellate court to dispose of the case according to law, expeditiously. Permitted to file written statement, if any. Appeal is allowed. Matter is remitted to lower appellate court. Send back the records.