IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 02ND DAY OF DECEMBER 2019 BEFORE THE HON’BLE MR.JUSTICE H.P. SANDESH R.F.A.No.557 of 2013 (Par.) BETWEEN:
SMT. G. VIJAYAKUMARI, W/O. V. SRINIVAS, D/O. LATE C. GANGUDAIAH, AGE 47 YEARS, RESIDING AT NO.509, 15TH ‘A’ MAIN, 1ST BLOCK, BASAVESHWARANAGAR, 3RD STAGE, BENGALURU-560 079. .. APPELLANT (BY SRI. B.O. CHANDRASHEKAR, ADVOCATE) AND:
1. SRI. G. SRINIVAS, S/O. LATE C. GANGUDAIAH, AGED 42 YEARS, RESIDING AT NO.35/1-1, 6TH CROSS, (KRISHNAPPA COMPOUND) AVALAHALLI, OPPOSITE TO ST. LAWRENCE SCHOOL, BENGALURU -560 029.
2. SMT. JAYAMMA, W/O. LATE C. GANGUDAIAH, AGE 74 YEARS, (RESPONDENT NO.2 EXPIRED ON 29.11.2014, THE APPELLANT, RESPONDENTS 1 AND 3 TO 7 ARE THE LEGAL REPRESENTATIVES OF RESPONDENT NO.2 WHO ARE ALREADY ON RECORD) 3. SRI. UMASHANKAR, S/O. LATE C. GANGUDAIAH, AGE 56 YEARS, 4. SRI. GANGADHAR, S/O. LATE C. GANGUDAIAH, AGE 50 YEARS, 5. SRI. SHIVASHANKAR, S/O. LATE C. GANGUDAIAH, AGE 45 YEARS, 6. SMT. SOUBHAGYA, D/O. LATE C. GANGUDAIAH, AGE 55 YEARS, RESPONDENTS 2 TO 6 ARE RESIDING AT NO.650, NEAR SWAYAMPRABHA KALYANA MANTAPA, 6TH MAIN ROAD, MEENAKSHI NAGAR, KAMAKSHIPALYA, BENGALURU -560 079.
7. SMT. KOUSALYA, D/O. LATE C. GANGUDAIAH, AGE 52 YEARS, RESIDING AT NO.14, 3RD CROSS, SUDHARSHAN LAYOUT, GATTIGERE, RAJARAJESHWARI NAGAR, BENGALURU -560 026. .. RESPONDENTS (BY SRI. PRADEEP NAIK K., ADVOCATE FOR R1; R2 DECEASED;
SRI. M.G. RAVISHA, ADVOCATE FOR R3;
SRI. B.C. SRIRAM REDDY,ADVOCATE FOR R4 & R5; R6 & R7 ARE SERVED) ---
THIS RFA IS FILED UNDER SECTION 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 21.01.2013 PASSED IN O.S. 6869/2006 ON THE FILE OF THE XXII-ADDL. CITY CIVIL AND SESSIONS JUDGE, BENGALURU, PARTLY DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.
THIS RFA COMING ON FOR HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
J U D G M E N T The present appeal is filed challenging the judgment and decree of partition passed in O.S.No.6869/2006 dated 21.01.2013 on the file of XXII Addl. City Civil & Sessions Judge, Bengaluru (C.C.H.No.7).
2. The plaintiff (respondent No.1) in the original suit has filed suit for seeking relief of partition and separate possession of 1/4th share in the suit schedule property and for mesne profits. The Court below after considering both the oral and documentary evidence, granted 1/4th share in favour of plaintiff and defendant Nos.1, 3 and 4 each in the suit schedule property, subject to payment of court fee on their shares. The same has been challenged before this Court by the defendant No.7, questioning the correctness of the judgment and decree passed by the Trial Court in not awarding any share in the ancestral property.
3. Now, the respondent Nos.4 and 5 have filed joint affidavit dated 24.09.2019 before this Court stating that they have no objection for granting notional share in favour of the appellant.
4. The GPA holder of first respondent also filed a separate affidavit dated 02.12.2019, stating that she has no objection for granting notional partition in favour of the appellant out of the share of their father late Sri.C.Gangudaiah.
5. The other respondents did not choose to contest the matter before the lower court and inspite of notice issued against them before this court, they did not choose to engage the counsel and contested the matter.
6. Appellant’s counsel also filed affidavit dated 02.12.2019 before this court stating that the appellant is also agreeable for notional partition in respect of the suit schedule property.
7. The affidavits filed by the respective parties are taken on record. In view of the submission and also respective affidavits filed by the parties, the judgment and decree of the Trial Court is to be modified by allowing the appeal.
8. In view of the discussion made above, I pass the following:-
ORDER (i) Appeal is allowed-in-part.
(ii) The impugned judgment and decree passed in O.S. No.6869/2006 dated 21st day of January 2013 on the file of XXII Addl. City civil & Sessions Judge, Bengaluru (C.C.H.No.7) is modified granting national share in favour of the appellant out of the share of her father.
(iii) The parties have to work out the remedy before the Trial Court in FDP proceedings in terms of the decree passed in this court.
(iv) Office is directed to draw the decree accordingly and send the lower court records forthwith.
Sd/- JUDGE Bss.