IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 26TH DAY OF OCTOBER 2017 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR REGULAR SECOND APPEAL No. 1388 OF 2016 BETWEEN 1. C.Kashi S/o. Chikkanne Gowda, Aged about 40 years.
R/o. Peddannapalya, Chillari Doddi, Kudlur Post, Kollegal Taluk, Chamarajnagar District-571440.
2. Muniyamma W/o. Late Chikkanne Gowda, Aged about 74 years, R/o. Garden House, Hoogyam, Kollegal Taluk, Chamarajnagar District-571440. (By Sri. H.M.Kishor Kumar, Advocate) AND Smt. Muniyamma, W/o. Chinnagudde Gowda, Aged about 45 years, R/o Herambadi Village, Hoogyam Post, Kollegal Taluk, Chamarajnagar District-571440. (By Ms. P.C.Sunitha, Advocate) …Appellants …Respondent This RSA is filed under Section 100 of CPC, against the judgment and decree dated 27.04.2016 passed in R.A.No.33/2012 on the file of Additional District and Sessions Judge, Chamarajanagara sitting at Kollegala, allowing the appeal and setting aside the judgment and decree dated 24.02.2011 passed in O.S.No.157/2006 on the file of the Senior Civil Judge and JMFC, Kollegala.
This RSA coming on for admission this day, the Court delivered the following:
JUDGMENT This Appeal is by defendants 1 and 2 in O.S. No. 157/2006 on the file of the Senior Civil Judge and JMFC, Kollegala. The respondent in this Appeal being the plaintiff brought a suit for partition claiming half share in the suit properties. She pleaded that the suit properties was the self acquisition of her father. First defendant is her brother and second defendant is her step-mother. It appears that the second defendant-Smt. Muniyamma was not made a party when the suit was filed and she was made a party subsequently by impleading her. The only defence taken by the first defendant was that plaintiff was given certain sums of money and a share in the house of the joint family property and, therefore, she was not entitled to claim partition again.
2. Trial Court having evaluated the evidence came to the conclusion that the suit properties were the self acquisition of Chikkannegowda, i.e., the father of the plaintiff and the first defendant, and the husband of the second defendant. The trial Court decreed the suit holding that the plaintiff was entitled to half share in the suit properties.
3. Aggrieved by this judgment, the second defendant preferred an Appeal before the District Court, Chamarajanagara, sitting at Kollegala. The learned first Appellate Court came to the conclusion that since the second defendant was the wife of Chikkannegowda, she was also entitled to equal share in the suit properties and, therefore, modified the judgment of the trial Court holding that the plaintiff and defendants 1 and 2 were equally entitled to 1/3rd share each.
4. Counsel for the appellants submits that the first Appellate Court has committed an error of law in believing Ex.P1 which is a release deed. According to him, the propositus died long back and that the plaintiff was not entitled to share at all.
5. As regards this argument, what needs to be observed is plaintiff is claiming share in her father’s self acquired property. She is not claiming share in the joint family property. The admitted facts are that suit properties were the self acquired properties of Chikkannegowda who is the father of the plaintiff. There is no dispute with regard to relationship. When the properties are the self acquired properties of Chikkannegowda, the plaintiff, first defendant and second defendant will take one- third share each. I do not find any good ground to admit this Appeal. Appeal is dismissed.
Sd/- JUDGE ckl