IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 11TH DAY OF APRIL, 2019 BEFORE THE HON’BLE MR. JUSTICE SREENIVAS HARISH KUMAR REGULAR FIRST APPEAL No.892 OF 2018 BETWEEN:
Shri. Velu, S/o. Late Nateshan, Aged about 58 years, R/at Door No.U-56, 6th Cross, 2 Main, K.P.Agrahara, Bengaluru-23. (By Sri. Premkumar, Advocate) AND:
1. Sri. Arumugam, S/o. Late Nateshan, Aged about 54 years, Now at No.121, 3rd Main, Binnypet, Bengaluru-23.
2. Sri. Jaganathan, S/o. Late Nateshan, Aged about 59 years, R/at No.U-56, 2nd Main, 6th Cross, K.P.Agrahara, Bengaluru-560023.
3. Smt. Govindamma, D/o. Late Nateshan, …Appellant Aged about 48 years, C/o. Sri. Velu, No.U-56, 2 Main, 6th Cross, K.P.Agrahara, Bengaluru-23.
4. Smt. Shakunthala, W/o. Sri. Annamalai, Aged about 68 years, R/at No.2, 2nd Main, Marriappanpalya, Bengaluru-560021.
... Respondents (By Sri. G.B.Nandish Gowda, Advocate C/R1) This RFA is filed under Section 96 of CPC against the judgment and decree dated 07.02.2018 passed in O.S.No.5329/2013 on the file of the XXX Additional City Civil and Sessions Judge, Bengaluru decreeing the suit for partition and separate possession.
This RFA coming on for admission this day, the Court delivered the following:
JUDGMENT Heard the appellant’s counsel and the counsel for caveator/respondent No.1 at the time of admission.
2. The facts pleaded are as below:
Plaintiff is the brother of defendant Nos.1 to 3. The father of the plaintiff and defendant Nos.1 to 3, namely, Nateshan and defendant No.4 Shakunthalamma are brother and sister respectively and through a sale deed dated 01.02.1975 marked Ex.P.3, they purchased the plaint schedule property jointly. The plaintiff claimed partition in the plaint schedule property after the death of his father.
Defendant Nos.2 to 4 filed written statement contending that plaint schedule property was the self acquired property of the fourth defendant and she alone was entitled to dispose of it according to her will and wish. They contended that joint family did not exist so that the plaintiff could claim partition.
Though in the written statement the defendant Nos.2 to 4 did not contend about the Will said to have been executed by the fourth defendant, as can be seen from the impugned judgment, they made an application under Order VII Rule 11 of CPC by producing a Will dated 16.07.2009 said to have been executed by the fourth defendant bequeathing the entire property in favour of third defendant.
The trial Court after recording the evidence came to conclusion that the plaint schedule property was purchased by Nateshan, the father of plaintiff and defendant Nos.1 to 3, and defendant No.4 Shakunthalamma jointly. Nateshan did not dispose of his share during his lifetime. So far as his half share is concerned, it devolves equally on his children according to Section 8 of the Hindu Succession Act. With regard to share of defendant No.4, it has been observed that she died issueless and since her husband had pre deceased, her half share also devolves on the plaintiff and defendant Nos.1 to 3. For these reasons, the trial Court has held that the plaintiff and defendant Nos.1 to 3 are entitled to 1/4th share each in the suit schedule property. Suit has been decreed accordingly. With regard to Will, it has been observed that defendant Nos.1 to 3 have not made any attempt to prove it.
3. Assailing this judgment, defendant No.2 has preferred this appeal. In the above set of circumstances I do not think that defendant No.2 is really aggrieved by the impugned judgment. If the Will said to have been executed by defendant No.4 in favour of defendant No.3 is considered, the latter becomes the aggrieved party, not the appellant. Moreover execution of the Will is not proved. The plaintiff’s father Nateshan and defendant No.4 were joint purchasers of the property. If defendant No.4 died issueless and her husband predeceased her, the plaintiff and the defendant Nos.1 to 3 would succeed to her share also and thereby they get equal share in the entire property. On perusal of the judgment of the trial Court I find that it has rightly come to conclusion that the plaintiff is entitled to 1/4th share. Needless to say that the defendant Nos.1 to 3 are also entitled to 1/4th share each. In these circumstances I do not find any merit in this appeal. Appeal is dismissed.
Sd/- JUDGE KMV/-