IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 6TH DAY OF DECEMBER, 2019 PRESENT THE HON'BLE MRS. JUSTICE B.V.NAGARATHNA AND THE HON’BLE MR. JUSTICE SURAJ GOVINDARAJ R.F.A. NO.1704 OF 2017 (PAR) BETWEEN:
1. SMT. JAYAMMA AGED ABOUT 83 YEARS W/O LATE S.V.HANUMANTHE GOWDA R/AT NO.36, 1ST MAIN ROAD 1ST STAGE, 2ND CROSS INDIRANAGAR BENGALURU-560038 2. SMT. S.H. PRAMILA AGED ABOUT 67 YEARS D/O LATE S.V. HANUMANTHE GOWDA W/O RAMACHANDRA R/AT NO.496/D, 15TH MAIN 15TH ‘B’ CROSS, 4TH SECTOR HSR LAYOUT, BENGALURU-560034 3. SRI. S.H. PRAKASH AGED ABOUT 65 YEARS S/O LATE S.V. HANUMANTHE GOWDA R/AT NO.36, 1ST MAIN ROAD 1ST STAGE, 2ND CROSS INDIRANAGAR, BENGALURU-560038 4. SMT. MANJULA AGED ABOUT 59 YEARS W/O LATE S.H. ASHOK KUMAR R/AT NO.36, 1ST MAIN ROAD 1ST STAGE, 2ND CROSS INDIRANAGAR, BENGALURU-560038 5. SRI. SURAJ @ LAKSHIMI KANTH AGED ABOUT 27 YEARS S/O LATE S.H.ASHOK KUMAR R/AT NO.36, 1ST MAIN ROAD 1ST STAGE, 2ND CROSS INDIRANAGAR BENGALURU-560038 ... APPELLANTS (BY SRI. RAHAMATHULLA SHARIFF, ADVOCATE) AND:
MRS. S.H. LEELAVATHI AGED ABOUT 57 YEARS D/O LATE S.V. HANUMANTHE GOWDA R/AT NO.3810, 6TH CROSS “B” BLOCK, 2ND STAGE RAJAJINAGAR BENGALURU-560010 ... RESPONDENT (BY SRI. M.S. NAGARAJA, ADVOCATE FOR C/RESPONDENT) THIS APPEAL IS FILED UNDER SECTION 96 OF CODE OF CIVIL PROCEDURE, AGAINST THE JUDGMENT AND DECREE DATED 30.06.2017 PASSED IN OS NO.1036/2010 ON THE FILE OF THE XV ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BANGALORE, PARTLY DECREEING THE SUIT FOR PARTITION AND SEPARATE POSSESSION THIS APPEAL COMING ON FOR ADMISSION AND HAVING BEEN RESERVED FOR JUDGMENT ON 15.10.2019 THIS DAY, SURAJ GOVINDARAJ J., PRONOUNCED THE FOLLOWING:
JUDGMENT 1. This appeal is preferred by defendants No.1 to 5 being aggrieved by the Judgment and decree of partition passed by the learned XV Additional City Civil and Sessions Judge, Bengaluru (‘trial Court’ for short) in O.S. No.1036/2010 on 30.06.2017.
2. For the sake of convenience, the parties shall be referred to in terms of their status before the trial Court.
3. The plaintiff-Leelavathi in the plaint had averred as follows:
3.1. Sri. Hanumanthe Gowda had two sons, by name Prakash and Ashok Kumar and two daughters, by name Pramila and Leelavathi. Hanumanthe Gowda died in the year 1982 leaving behind his wife Smt. Jayamma and aforesaid children as his legal heirs. Ashok Kumar had predeceased Hanumanthe Gowda leaving behind his wife Manjula and son Suraj as his legal heirs.
3.2. Hanumanthe Gowda’s father Venkata Byregowda had three sons viz., S.V. Hanumanthe Gowda, S.V.Ashwathaiah and S.V.Gangappa. After the death of Venkata Byregowda, partition took place amongst the three sons of Venkata Byregowda and in the said partition, properties mentioned in the suit schedule ‘C’ to ‘J’ had fallen to the share of Hanumanthe Gowda.
3.3. Hanumanthe Gowda was an employee of the Education Department and had also applied for allotment of a site to CITB, who allotted a site in Indiranagar measuring 60 feet x 40 feet (‘A’ schedule property). Agreement of sale was executed on 8.09.1965 followed by a sale deed on 21.08.1981 by CITB in favour of Hanumanthe Gowda, who later on applied for a loan and constructed a house thereon consisting of ground, first and second floors.
3.4. Schedule ‘A’ and ‘B’ properties were self- acquired properties of Hanumanthe Gowda and he died intestate on 9.8.1982. Plaintiff and defendants were in joint possession and enjoyment of the suit schedule properties.
3.5. Prior to the filing of the Suit, plaintiff had approached the defendants and requested them to effect partition and to give her share in the suit schedule properties. However, defendants did not come forward to do the same. Plaintiff had also alleged that defendants were receiving rents of more than Rs. One lakh per month and no portion of the same was being paid to her. Hence, a legal notice was also issued, but the defendants did not come forward to accede to the reuest of the plaintiff.
3.6. Defendant No.2, S.H.Pramila had also filed a suit in the year 1994 in O.S.No.378/1994 against her mother and others seeking for partition whereunder the present plaintiff was arrayed as defendant No. 5. Defendant No.2 had withdrawn the suit for the reasons best known to her.
4. On filing of the suit, summons was issued.
Defendants appeared through their counsel and they have filed the following common written statement:
4.1. The relationship between the parties is admitted, however, the claim of the plaintiff is denied.
4.2. It is denied that Hanumanthe Gowda had constructed ground, first and second floors in the ‘A’ schedule property.
4.3. It is stated that on the death of Hanumanthe Gowda, defendant No. 3 was looking after the affairs of the Hindu undivided family.
4.4. It is alleged that the plaintiff was not mingling with other members of the family and had reNounced the world. It is further alleged that plaintiff had expressed her intention to lead her life as spinster and had voluntarily renounced the world and was living as a sanyasin.
4.5. In the meanwhile, Ashok Kumar died, thereafter, plaintiff used to pick up quarrels with the wife of deceased Ashok Kumar and she voluntarily left the house in the year 1989 and started living separately.
4.6. The defendants had made sincere efforts to convince the plaintiff to join the joint family, she did not listen to the request of the defendants and she refused to stay with them.
4.7. It is alleged that in the year 1993, a panchayat was held and in the said panchayat, partition was effected between the family members and a panchayat palupatti had been prepared. In terms thereof, ‘A’ schedule property was allotted to the share of defendant Nos.3, 4 and 5 and ‘B’ schedule properties had been allotted to the shares of the plaintiff and defendant No. 2. After partition, ‘B’ schedule property has been sold in the year 2007. Defendant No. 2 received her share in the sale proceeds of ‘B’ Schedule property, but the plaintiff refused to receive her share and the amounts are still lying in the hands of her mother, which is kept in Fixed Deposit account of the plaintiff.
4.8. In the said partition, items Nos. C, F and H properties were allotted to the shares of defendant No. 1. ‘D’ and ‘G’ scheduled properties were allotted to the share of Defendant No. 3, ‘E’, ‘I’ and ‘J’ scheduled properties were allotted to the share of Defendants No. 4 and 5. It is further alleged that after partition, Defendant No. 3 sold away ‘D’ schedule property.
4.9. As regards the construction of the house on CITB site mentioned supra, the defendants allege that Hanumanthe Gowda had applied for a loan for a sum of Rs.40,000/-. However, the Bank had sanctioned only Rs.20,000/- on 6.5.1982. Then the construction was started but before the completion of construction, Hanumanthe Gowda died on 9.8.1992.
4.10. Thereafter, defendant No. 1 sold the jewellery to repay the amounts as she was unable to repay the loan. In the year 1987, the Bank brought ‘A’ schedule property for auction when the defendant No. 1 obtained money from her mother and brothers and discharged the Bank loan. It is on that basis, it is alleged that defendant No. 1 became absolute owner of ‘A’ schedule property and the same is self acquired property of defendant No. 1. It is alleged that the suit property has lost its character of Joint undivided property.
4.11. Defendant No. 1 has given her consent to allot ‘A’ schedule property which belongs to her to defendant Nos. 3 to 5. It is alleged that after partition in the year 1993, defendants No.3 to 5 demolished the old house and thereafter, they have constructed two adjacent houses by raising independent loans and they are regularly discharging loans borrowed by them. Hence, the plaintiff can not claim any rights in the said property.
4.12. It is on this basis, the defendants denied the claim of the plaintiff alleging that she had separated voluntarily from the joint family and she is living as a sannyasin, that she had renounced the world long back, that the property was already partitioned and that some of the properties claimed were not joint family properties.
5. Based upon the aforesaid pleadings, the trial Court framed the following issues and additional issues:
1. Whether the plaintiff proves that suit schedule properties are the joint family properties of herself and defendants?
2. Whether the plaintiff proves that she is entitled for 1/5th share in suit schedule properties?
3. Whether defendants prove that plaintiff and all the defendants got partition of all the joint family properties in the year 1993 by way of panchayath palupatti, in that partition suit ‘B’ schedule property is allotted to the share of plaintiff and defendant No. 2 Smt. S.H. Prameela?
4. Whether defendants prove that the suit B schedule property was allotted to plaintiff and defendant No.2 jointly and the said property was sold in the year 2007 and on humanitarian grounds, half of the sale proceeds is safely kept in the name of defendant No.1 in order to safeguard the interest of plaintiff?
5. Whether the plaintiff is entitle for partition and separate possession of her share from the suit schedule property?
6. To what order or decree?
ADDITIONAL ISSUE FRAMED ON 17/10/2012:
“Whether the suit is barred by limitation?”
ADDITIONAL ISSUE WAS FRAMED ON 16/7/2015:
“Whether the court fee paid by the plaintiff is sufficient?”
6. Plaintiff examined herself as PW-1 and marked 26 documents as Exhibits P1 to P26. Defendants Nos.3 and 4 were examined as DWs-1 and 2, respectively and they marked 15 documents as Exhibits D1 to D15. Arguments on behalf of the parties were heard and the Judgment was passed by the trial Court on 30.6.2017 answering the above issues as under:
Issue No.1: In the affirmative.
Issue No.2: In the affirmative.
Issue No.3: In the negative Recasted Issue No.4: In the affirmative. Isue No.5: In the affirmative.
Addl. Issue framed On 17/10/2012: Will not survive for consideration.
Addl. Issue framed On 16/7/2015: Will not survive for conserdation.
Issue No.6: As per final order.
7. Consequently the suit was partly decreed and the office was directed to draw up preliminary decree impugned herein as under:
“ORDER Suit is partly decreed with costs.
Plaintiff is entitle for partition and separate possession of 1/5th share in ‘A’ schedule property subject to proportionate share in the loan liability.
Plaintiff is entitle for partition and separate possession of 1/5th share in th 1/3rd share of her father in ‘C’, ‘E’, ‘G’, ‘H’, ‘I’ & ‘J’ schedule properties by metes and bounds.
Plaintiff is entitle to receive her 1/5th share in the 1/3rd share of her father in the sale proceeds of ‘B’, ‘D’ & ‘F’ schedule properties and she is also entitle for mesne profits in respect of rents received form ‘A’ schedule property to be assessed U/O.20 Rule 12 of CPC in the separate proceedings.
Draw preliminary decree accordingly.”
8. The trial Court in its judgement took note of the following facts:
8.1. The fact that relationship between the parties was admitted in the common written statement on behalf of the defendants.
8.2. It was admitted that the properties mentioned in Schedule ‘C’ to ‘J’ are ancestral properties, it has also been admitted that CITB had allotted sites pertaining to ‘A’ schedule property to Hanumanthe Gowda in the year 1965.
8.3. The trial Court took note of the fact that the defendants tried their level best to convince the plaintiff to agree for marriage and they failed. They also tried to get her to rejoin the family, in which also the defendants failed.
8.4. The trial Court also took note of the fact that in 1994, the defendant No. 2 had filed a suit against the defendant No. 1 and other members of the joint family in O.S.No.378/1994 for partition and separate possession of her share in the suit schedule properties, which was withdrawn by her.
8.5. The trial court held that merely because the defendant No. 1 had repaid the loan, she would not get title over the property and therefore, she had no authority to give consent to allot ‘A’ schedule property to the share of defendant Nos.3 to 5 alone.
8.6. As regards panchayat palupatti, the trial court held that it was an unregistered partition deed having no value in the eye of law, more so, the plaintiff was not a party to it nor was she present at the time when it was reduced to writing and therefore, the same can not be said to be binding on the plaintiff.
8.7. The trial Court rejected the contention of defendants 3 and 4 as regards their allegation that they had borrowed loans to construct the house since no documents had been produced relating thereto.
8.8. The trial court took into account the admission made by DW-1 in his cross-examination that he is getting rent of Rs.70,000 to Rs.75,000/- per month in respect of first, second and third floors, out of which there was nothing being paid to the plaintiff or defendant No. 2.
8.9. The trial court with regret noted that though the father – Hanumanthe Gowda had died in the year 1982, neither the defendant No. 1-mother nor the brothers took up the aspect of marriage of their younger sister and ignored her. The trial court also with regret noted that even though defendant No.3, being the eldest brother of the plaintiff, was aware that she was residing separately, he made no attempt to help her nor did he make partition of the properties on a legal notice being issued by her. It has also been observed that the defendant No. 3 has not acted as a responsible brother of the plaintiff and has not been taken care of the plaintiff.
8.10. The trial court observed that it was only in the year 2001-2002 that defendant No. 3 applied for sanction to alter the existing building. Therefore, it rejected the claim of defendant No. 3 that he had demolished the existing house and constructed the new house therein.
8.11. The trial Court took note of the fact that defendants 3 and 4 have sold some of the properties without the consent or knowledge of the plaintiff which alienations are not binding on the plaintiff and that she is entitled for partition and separate possession of 1/5th share in the self acquired properties of her father Hanumanthe Gowda in ‘A’ and ‘B’ schedule properties and further that she is entitled to partition and separate possession in the share of her father in the properties mentioned in ‘C’ to ‘J’ schedule properties applying the principle of notional partition. It is this Judgment which is assailed by the defendants/appellants herein.
9. On service of notice the Plaintiff-respondent has entered appearance.
10. When the matter came up for admission, the counsel for the defendants/appellants submitted that they would try and explore settlement of the dispute. Hence, matter was adjourned from time to time to facilitate such settlement, however, no settlement was arrived at.
11. The matter was taken up for admission, we have heard the learned counsel for appellants/defendants and learned counsel for the respondent/plaintiff on admission and indicated our view that there is no defect in the judgement of the trial court.
12. At this stage, learned Counsel for the appellants submitted that this is a Regular First Appeal under Section 96 CPC, and therefore, 12.1. the lower court records should be called for ;
12.2. it should be admitted as a matter of course; and 12.3. could not be disposed of at the stage of admission.
13. Per contra, learned counsel for the respondent submits that if this court were of the opinion that no grounds were made out in the appeal, the same could be disposed of at the admission stage itself, instead of the appeal languishing for a considerable period of time. We propose to deal with this aspect before adverting to the merits of the matter.
14. Appeals or Regular First Appeals are dealt with by Order XLI of the Civil Procedure Code 1908 (hereinafter referred to as ‘CPC' for brevity). The said Order XLI contains various rules which are categorized in terms of the timelines of the appeal and procedure to be adopted by the Court while dealing with such Appeals.
14.1. Rules (1) to (4) deal with the form of appeal and the compliance with the technicalities before a Memorandum of Appeal is considered to be in order.
14.2. Rules (5) to (8) deal with the provisions of interim orders including that of the stay of the impugned judgement conditional or otherwise.
14.3. Rules (9) to (15) deal with the procedure on admission of appeal.
14.4. In the present case what is relevant is Order 41 Rule 11(1).
14.5. The said provision prior to the extensive amendments carried out in the year 2002 read as under :-
"Order 41, Rule 11 prior to 2002 Amendment:
“Power to dismiss appeal without sending notice to Lower Court-
(1) The Appeallate Court after sending for the record if it thinks fit so to do, and after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day, may dismiss the appeal without sending Notice to the Court from whose decree the appeal is preferred and without serving Notice on the respondent or his pleader.
(2) If on the day fixed or any other day to which the hearing may be adjourned the appellant does not appear when the appeal is called on for hearing, the Court may make an order that the appeal be dismissed.
(3) The dismissal of an appeal under this rule shall be notified to the Court from whose decree the appeal is preferred.
(4) Where an appellate Court, n being the High court, dismisses an appeal under sub-rule (1), it shall deliver a judgment, recording in brief its grounds for doing so, and a decree shall be drawn up in accordance with the judgment”.
14.6. The said provision subsequent to the extensive amendments carried out in the year 2002 reads as under:-
"Order 41, Rule 11 after 2002 Amendment:
“(1) The Appellate Court, after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day may dismiss the appeal.
(2) If on the day fixed or any other day to which the hearing may be adjourned the appellant does not appear when the appeal is called on for hearing, the court may make an order that the appeal be dismissed.
(3) The dismissal of an appeal under this rule shall be notified to the court from whose decree the appeal is preferred.
(4) Where an Appellate Court, not being the High Court, dismisses an appeal under sub-rule (1), it shall deliver a judgment, recording in brief its grounds for doing so, and a decree shall be drawn up in accordance with the judgment”.
15. In view of the arguments advanced by the learned counsel for the parties, the points that arise are:
15.1. Whether before hearing a matter for admission, it is necessary to call for records of the trial court?
15.2. Whether a Regular First Appeal under Section 96 C.P.C., being an appeal on facts and law, should be admitted mechanically, without any hearing under Order XLI, Rule 11 C.P.C.?
16. There can be no counter to the proposition that every possible effort should be made to reduce arrears of litigation, as a necessary requirement thereof, frivolous, malafide and irresponsible litigation/appeals must be weeded out at the earliest. It was for this reason that extensive amendments were made to the CPC in the year 2002 to hasten up the proceedings in various suits and proceedings.
17. The most appropriate time for this being at the stage of admission of an Appeal.
18. The wordings of Order XLI Rule 11 prior to and post amendment of 2002 have been extracted hereinabove. It is clear that before the 1999 amendment in C.P.C. (w.e.f 1.7.2002), Order XLI, Rule 11 contained the words "after sending for the record if it (appellate Court) thinks fit so to do". After the said amendment, these words are not found in Order XLI, Rule 11. Hence, the first question is answered by holding that there is no requirement to call for records of the trial court at admission stage if there is no appreciation of evidence required at that stage. If the same is required, only then the matter would have to be admitted and records needs to be called for.
19. A Regular First Appeal is always subject to Order XLI, Rule 11 C.P.C. and therefore it must be heard and carefully scrutinized by the appellate Court at the threshold stage. If an Appeal is devoid of merits and does not deserve to be admitted, every appellate Court is enjoined with a duty to dismiss the first appeal at the stage of Order XLI Rule 11 by giving appropriate reasons.
20. Order XLI, Rule 11 C.P.C. is a mandatory provision of the CPC. No alleged convention or practice can be permitted to over-ride the Statute. Accepting the appellant's submission would amount to holding that Order XLI, Rule 11 does not apply to appeals filed under Section 96 CPC.
21. Order XLI, Rule 11A was introduced into the C.P.C. by the 1976 amendment, which mandates the appellate Court to hear every appeal under Order XLI, Rule 11 as expeditiously as possible preferably within sixty days of the filing of the Memorandum of the Appeal, which clearly indicates that a serious duty has been cast upon the appellate Court by Order XLI, Rule 11 CPC to ensure that frivolous meritless appeals do not remain pending for admission or be admitted to clutter the boards of the Courts and such appeals should be dismissed at the threshold. It is absolutely essential for every appellate Court to carefully and thoroughly examine the appeal at that stage for finding out whether the appeal deserves admission or is frivolous and without merit.
22. This court in Sri M.C. Mohammed S/O Hassan vs Smt. Gowrmmma W/O Jayarama Reddy reported in AIR 2007 Kant 46, ILR 2006 KAR 4584, 2007 (1) KarLJ 378, held that:
“24. In the light of the provisions of Order XLI Rule 11, Section 128 of CPC and the provisions of the Rules made by this Court under Section 122 of CPC, we do not find there is any justification in the contention of the learned Counsel for the appellant that the appeal can not be disposed of at the admission stage. We hold that the Regular First Appeals are required to be posted for admission and also are required to be heard for admission and it is only after the Court satisfies itself of the prima facie case for admission, either the Court may admit or may issue Notice, if no case is made out for admission or if the matter could be disposed of after hearing both the contesting sides at the stage of admission itself the Court can dispose of the appeal at the admission stage.”
23. Therefore, we answer the second question by holding that in appropriate cases, the Appeal could be summarily disposed of at the admission stage itself.
24. With the preliminary questions raised by the Defendants/Appellants having been held against the Defendants/Appellants, we now come to the merits of the matter.
25. The points that arise for our determination on merits of the matter are as under:
i) Whether the Judgment of the trial Court requires an interference ?
ii) What order ?
26. The learned counsel for the Defendants/Appellants contends that the trial court has not taken into consideration the pleadings as filed. According to the learned councel for the appellant the trial court ought to have considered as under:
26.1. The fact that the Plaintiff had voluntarily separated without taking any properties as she wanted to live a life of a sanyasin. Hence she had no right over the properties.
26.2. The fact that defendant No. 1 discharged the loan thereby making her the absolute owner of the property;
26.3. The fact that the plaintiff having separated voluntarily, the rest of the family members have effected a partition of the properties, which can not be disturbed;
26.4. That certain of the documents viz., Exhibits-D5, D11 an D13 have not been considered and if the same had been considered, it would establish that the properties had been partitioned;
26.5. That the trial court failed to look into the contents of panchayat palupatti;
26.6. That they were not given sufficient opportunity to argue their case; and 26.7. That the trial court has not discussed all the issues framed.
27. Based on the above contentions, learned counsel submits that the judgement and decree passed by the XV Additional City Civil and Sessions Judge, Bangalore City in O.S.No.1036/2010 dated 30.06.2017 is liable to be set aside and the suit be dismissed.
28. Per Contra, the learned counsel for the respondent/plaintiff submits as follows;
28.1. All the parties have addressed their arguments at length;
28.2. The decision of the trial court is based on the submissions made by the defendants in the written statement, admissions in their evidence and the submissions made duing the course of arguments;
28.3. The judgment and decree of the trial court does not suffer from any legal infirmities;
28.4. The appeal filed is only to frustrate the rights of the plaintiff;
28.5. That the appeal filed is frivolous and vexatious. It further does not raise any issue to call for interference with the judgment and decree passed by the trial court and hence, the appeal has to be dismissed in limine;
29. Hence, counsel for plaintiff/respondent submits that the judgment and decree passed by the trial court is proper, valid and cannot be faulted with. The appeal is liable to be dismissed and the impugned judgment and decree to be confirmed by this Court.
30. The records and facts are not in dispute and the only question of substance which is raised in the Memorandum of Appeal is as regards the effect of unregistered panchayat palupatti and certain ancillary matters. Apart from this, there is nothing of substance which has been put forward in the Memorandum of Appeal. In view of the discussion and finding as regards the scope and applicability of Order XLI Rule 11, we have taken up this matter for disposal, there being no need to re- appreciate the evidence on record.
31. In the appeal, the defendants have categorically stated that they made repeated requests to the plaintiff to rejoin the family but she did not. Even though she was warned by the defendants that if she failed to join the family, she will be ousted from legal relationship and her rights would cease. The defendants in the appeal claim that on account of refusal by the plaintiff to join the family and her intention to live her life as a spinster and sanyasini, she is disqualified to succeed to the estate of late Hanumanthe Gowda. They have once again reiterated the contentions raised in the trial Court. Except for making the very same perfunctory allegations, they have been unable to make out any ground of substance to challenge the impugned judgment and decree.
32. None of the contentions raised by the defendants/appellants in the Memorandum of Appeal would help them in assailing the impugned judgment and decree.
33. The trial court was right in not considering the panchayat palupatti for the reason that it was not registered and more so, when the plaintiff was not a party to it. There can not be a partition of the properties effected in-absentia and particularly in the absence of a family member. We find that such an action on the part of the defendants/appellants is contrary to all tenets of law.
34. The division of properties made is also ex-facie inequitable, bulk of the properties having been allotted to the parties to the partition deed. If at all the defendants were aggrieved by the plaintiff not coming forward for a partition, the proper methodology to be adopted by them was to sue the plaintiff for partition in accordance with law. The defendants/appellants not having done so, can not Now take advantage of their unilateral act of effecting an in-absentia partition so as to oust the plaintiff from the family and force her to take the sale proceeds of a property which was sold after having allotted to her.
35. All the contentions/grounds which have been set-forth in the Memorandum of Appeal have been considered by the trial court as is evident in its detailed judgment. The trial court had given sufficient opportunity to the defendants to address their arguments. From the record and judgment, we find that the trial Court has discussed and decided on all the issues raised.
36. The actions on the part of defendants Nos.3 and 4 in getting the katha transfered on the basis of panchayat palupatti will not further the case of the defendants since these are unilateral acts committed by the defendants. Merely because the plaintiff was living separately does not change the character of the family. In fact, there are several averments made by the defendants themselves wherein they have alleged that they have asked the plaintiff to join the family. Thus, even according to the defendants, their actions and their statement at that point of time would indicate that they regarded the plaintiff to be a part of the family. Thus, now to contend that there was severance of the joint family status insofar as the plaintiff is concerned on account of her living separately or on the basis of panchayat palupatti is not sustainable. This contention is also negatives the actions on part of the Defendants themselves in allotting a portion of the property in-absentia to the Plaintiff. If at all the defendants truly believed that the plaintiff was not entitled to any share in the property, they would not have allotted a share to the plaintiff, this allotment made according to us would bely the contention now raised by the defendant.
37. The relationship of the parties being accepted, the mode and methodology of acquisition of right over the properties by Hanumanthe Gowda being admitted, the calculation done by the trial court as regards the entitlement of the plaintiff in those properties can not be disputed as the quantification is in accordance with law.
38. In view of the reasoning hereinabove, the Judgment and decree dated 30.06.2007 passed in O.S.No.1036/2010 by the learned XV Additional City Civil and Sessions Judge, Bengaluru is proper and in accordance with law, therefore, does not require any interference. Hence, the appeal is liable to be dismissed.
Accordingly, the appeal is dismissed. Parties to bear their own cost.
Sd/- JUDGE Sd/- JUDGE ln