IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 23rd DAY OF OCTOBER, 2019 BEFORE THE HON’BLE MR. JUSTICE N.K.SUDHINDRARAO REGULAR FIRST APPEAL NO.920 OF 2009 BETWEEN:
1. VEDAMURTHY, S/O RANGADAMAPPA, AGED ABOUT 55 YEARS, R/AT NO.27/2-57, NANJAPPA LAYOUT, J.P.NAGAR, JARAGANAHALLI, BANGALORE – 560 078.
2. SRI.LAKSHMINARYANA, S/O RANGADAMAPPA, AGED ABOUT 45 YEARS, R/AT NO.9, RAMANNA PET, SIDDANNA LANE, BENGALURU – 560 002.
3. SMT.JAYAMMA, W/O RANGADAMAPPA, DEAD. ...APPELLANTS (BY SRI S R DESHPANDE, ADVOCATE APPEAL AGAINST A-3 IS DISMISSED AS ABATED V/O DATED 6.12.2012) AND:
1. SMT. SUSHEELA, W/O SATHYANARAYANA, AGED ABOUT 34 YEARS, R/AT NO.57, GANIGARA ‘A’ LANE, ULSOOR PET, BANGALORE.
2. M.S.HARSHA, S/O LATE SATHYANARAYANA, AGED ABOUT 23 YEARS, R/O NO.6, 1ST MAIN, A CROSS, NEW GUDDADAHALLI, MYSORE ROAD, BENGALURU – 560 027.
3. SRI.HEMARAJU, S/O RANGADAMAPPA, AGED ABOUT 50 YEARS, R/A NO.27/2-58, NANJAPPA LAYOUT, J.P.NAGAR, JARAGANAHALLI, BANGALORE-78 4. POORNIMA, W/O HEMARAJU, AGED ABOUT 47 YEARS, NO.58, NANJAPPA LAYOUT, JARAGANAHALLI, J.P NAGAR, BANGALORE-78.
5. SMT.KAMALA, W/O LATE GANGADHAR, AGED ABOUT 52 YEARS, R/AT NO.55, OLD CHAMRAJPET, CUBBONPET, BENGALURU – 560 002.
6. SMT.SUDHA, W/O D.JAYASHANKAR, AGED ABOUT 47 YEARS, R/AT NO.13, NEW NO.51, ANJANEYA TEMPLE STREET, NARAYANASHETTY PET, J.M.ROAD CROSS, BENGALURU – 560 002.
(AMENDMENT CARRIED OUT AS PER COURT ORDER DATED: 10.11.17 PASSED ON: IA NO.I/17). … RESPONDENTS (BY SRI M B CHANDRACHOODA, ADVOCATE FOR R1 & R2, SRI S SHAKER SHETTY, ADVOCATE FOR R3 AND R4, SRI C.M.VENKATAREDDY, ADVOCATE FOR R5 AND R6) - - -
THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 30.03.2009 PASSED IN O.S.NO.3639/2004 ON THE FILE OF THE XXXVIII ADDL. CITY CIVIL JUDGE, BANGALORE, PARTLY DECREEING THE SUIT FOR PARTITION, SEPARATE POSSESSION, FUTURE MESNE PROFTIS AND MESNE PROFITS.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY, THE COURT DELIVERED THE FOLLOWING:-
JUDGMENT The appeal is directed against the judgment and decree dated 30/03/2009 passed in O.S. No.3639/2004 wherein the learned 38th Additional City Civil and Sessions Judge, Bengaluru, has partly decreed the suit for partition filed by the plaintiff and granted 2/15th share.
2. In order to avoid overlapping and confusion the parties are addressed in accordance with their ranks and status as stood before the trial Court.
3. The suit was instituted by Smt. Susheela, W/o Sathyanarayana and her son M S Harsha, aged 9 years seeking partition of the suit schedule property claiming 1/4th share in them. It is the claim of the plaintiffs Susheela and her son that the suit schedule property items are all joint family properties belonging to the joint family originally headed by Rangadhamappa.
4. The first plaintiff further claim that she was given in marriage to one Sathyanarayana S/o Rangadhamappa and through the marriage she begot a son who is the plaintiff No.2, aged 9 years on the date of filing of the suit.
5. The defendants are 5 in number. They are – 1. Vedamurthy, aged 50 years; 2. Hemaraju, aged 45 years; 3. Lakshminarayana, aged 40 years; 4.
Jayamma, aged 70 years and 5. Poornima, aged 40 years. All of them except defendant No.4 are the siblings of plaintiff No.1’s husband and sons of Rangadhamappa. Defendant No.4 Jayamma, aged 70 years is the wife of Rangadhamappa and mother of first plaintiff’s husband Sathyanarayana and defendants 1 to 3. Defendant No.5 - Poornima, 40 years stated to be the wife of defendant No.2. Defendants appeared in response to suit summons. Defendants 1, 3 and 4 filed their written statement jointly and defendants 2 and 5 have not filed their written statement.
6. The learned trial Judge adjudicated the matter on the aspects of nature of the properties, undivided share of the plaintiffs as to joint family or self acquired and after considering oral and documentary evidence of PW1, DW.1 and ExP1 to P8 held in favour of the plaintiffs and partly decreed the suit granting 2/15th share in all A and B schedule properties. Being aggrieved against the decree of the suit the defendant Nos.1, 3 and 4 have come up in appeal. Understandably the rest of the parties are respondents.
7. It is necessary to consider another aspect or the development that took place in the appeal, is inclusion of Smt. Kamala, w/o late Gangadhar, aged about 52 years, residing at No.55, Old Chamarajpet, Cubbon Pet, Bengaluru – 560 002 and Smt. Sudha, w/o D Jayashankar, aged about 47 years, residing at No.13, new No.51, Anjaneya Temple Street, Narayanashetty Pet, J M Road Cross, Bangalore – 560 002, as Respondents; because, during the appeal proceedings Smt. Kamala and Smt. Sudha claiming to be the daughters of Rangadhamappa made application to come on record claiming that their interest were ignored by the plaintiff and they stood as necessary parties for the adjudication in the matter of partition.
8. The said application came to be allowed by this Court on 07.09.2016 and the said daughters were permitted to come on record and as reflected in the cause title respondents also include the said two applicants Smt. Kamala and Smt. Sudha, the daughters of Rangadhamappa.
9. Before adverting on the other aspects of the case, it is necessary to focus on the entry of the said daughters who are now respondents No.5 and 6.
10. Learned counsel for the appellants Sri Deshpande would submit that the respondents No.5 and 6 are not entitled for share as partition was not necessary. Learned counsel for the respondents plaintiffs Sri Chandrachooda would submit that examined from any angle the respondents represented by him is having legal and legitimate share in all the suit schedule properties belonging to the family lead by Rangadhamappa.
11. Learned counsel Sri Venkata Reddy appearing for new entrants respondent Nos. 5 and 6 would submit that it was not proper for the plaintiffs or the defendants before the trial Court to have fought the legal battle and get it adjudicated in the absence of the daughters who stood in the same footings as the plaintiffs and the defendants.
12. At this juncture, learned counsel Sri Chandrachooda appearing for the respondent No.1 would submit that if the respondent Nos.5 and 6 are deprived of their share they can work out the same during the final decree proceedings by virtue of their share. As such, the present structure of appropriation cannot be distorted.
13. Now that the admitted facts are Rangadhamappa’s children are Sathyanarayana, the husband of plaintiff No.1, Vedamurthy, defendant No.1, Hemaraju, defendant No.2, Lakshminarayana, defendant No.3, No.5 Poornima Smt. Jayamma W/o late Rangadhamappa and the respondents impleaded during the appeal Smt. Kamala and Smt. Sudha.
14. Now the matter requires to be adjudicated to consider the undivided interest if any of the respondent Nos.5 and 6. In this connection the matter cannot be straight away disposed of on the only ground that they are sisters and the matter to be left to final decree proceedings.
15. On the other hand the pleadings of the daughters regarding the entitlement of share in the suit schedule property and other developments according to their claim are also to be adjudicated which requires the oral evidence of the said respondents, if any, choose to adduce and due to the rush of cases of this Court considering receiving or taking additional cases, it is just and proper to remand the matter to the trial Court to adjudicate on the said aspect. As a result, the present judgment and decree invariably requires to be set aside and the matter to be remanded to the trial Court with a direction that the appellants and the respondents shall appear before the trial Court and shall represent and present their grievances. In order to avoid wastage of judicial time no further notice is required to be issued to the parties as the date is notified here itself.
16. In the result, the appeal is allowed.
Judgment and decree dated 30.03.2009 passed in O.S. No.3639/2004 by the learned 38th Additional City Civil and Sessions Judge, Bengaluru, is set aside.
17. The matter is remanded to the trial Court with a direction that the respondent Nos. 5 and 6 shall be given an opportunity to file their written statements or oral evidence of themselves or all the witnesses, to file documents in respect of their pleadings. At the same time, the existing parties be given opportunity to lead their part of evidence by examining the witnesses filed in the document.
18. The entire proceedings shall be limited to the adjudication of the matter considering the right, title, interest and possession over the schedule property.
19. As the original suit is of the year 2004, the trial Court shall complete the proceedings as expeditiously as possible, however, within the outer limit of three months from the date of first appearance of the parties and dispose of the same in accordance with law and as per the above direction, the parties shall appear before the trial Court on 20.11.2019.
Sd/- JUDGE ykl