IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 17TH DAY OF JULY, 2019 PRESENT THE HON’BLE MRS. JUSTICE B. V. NAGARATHNA AND THE HON’BLE MR. JUSTICE K. NATARAJAN REGULAR FIRST APPEAL NO.202 OF 2016 (PAR) BETWEEN:
1. SMT. YELLAMMA W/O. L. NANJAREDDY, D/O. LATE YELLAPPA, AGED ABOUT 60 YEARS.
2. SMT. GULLAMMA W/O. LATE RAMAREDDY, D/O. LATE YELLAPPA, AGED ABOUT 75 YEARS.
BOTH ARE RESIDING AT B. HOSAHALLI VILLAGE, SARJAPURA HOBLI, ANEKAL TALUK, BENGALURU URBAN DISTRICT, BENGALURU – 562 125.
... APPELLANTS (BY SRI H.R. LAKSHMANA REDDY, ADVOCATE) AND:
1. SMT. GOWRAMMA W/O. LATE SAMPANGI, AGED ABOUT 65 YEARS.
2. SRI MUNIRAJU S/O. LATE SAMPANGI, AGED ABOUT 53 YEARS.
3. SRI SRINIVASA REDDY S/O. LATE SAMPANGI, AGED ABOUT 46 YEARS.
RESPONDENT NOS.1 TO 3 ARE RESIDING AT KUTHAGHANAHALLI VILLAGE, SARJAPURA HOBLI, ANEKAL TALUK, BENGALURU URBAN DISTRICT – 562 125.
4. SMT. JAMUNA W/O. SIDDA REDDY, D/O. LATE SAMPANGI, AGED ABOUT 43 YEARS, RESIDING AT NEKKUNDI VILLAGE, SARJAPURA HOBLI, ANEKAL TALUK, BENGALURU URBAN DISTRICT – 562 125.
5. SMT. VIMALAKSHI W/O. PAPA REDDY, D/O. LATE SAMPANGI, AGED ABOUT 41 YEARS, RESIDING AT B. HOSAHALLI VILLAGE, SARJAPURA HOBLI, ANEKAL TALUK, BANGALORE URBAN DISTRICT – 562 125.
6. SRI NANJUNDA REDDY S/O. LATE YELLAPPA, AGED ABOUT 69 YEARS.
7. SRI RAMESH K.N.
S/O. NANJUNDA REDDY, AGED ABOUT 46 YEARS.
8. SRI VENKATASWAMY REDDY S/O. NANJUNDA REDDY, AGED ABOUT 44 YEARS.
9. SRI PILLA REDDY S/O. LATE YELLAPPA, AGED ABOUT 66 YEARS.
10. SRI ANANDA S/O. PILLA REDDY, AGED ABOUT 37 YEARS.
11. SRI MUNI REDDY S/O. LATE YELLAPPA, AGED ABOUT 62 YEARS.
12. SRI SURESH S/O. MUNI REDDY, AGED ABOUT 44 YEARS.
RESPONDENT NOS.6 TO 12 ARE RESIDING AT KUTHAGANAHALLI VILLAGE, SARJAPURA HOBLI, ANEKAL TALUK, BANGALORE URBAN DISTRICT – 562 125.
13. SMT. BHARATHI W/O. SANTHOSH, D/O. MUNI REDDY, AGED ABOUT 42 YEARS, RESIDING AT ALLALASANDRA VILLAGE, OPP: PATALAMMA TEMPLE, GKVK POST, BANGALORE – 560 065.
14. SMT. PARVATHI W/O. PRAKASH, D/O. MUNI REDDY, AGED ABOUT 40 YEARS, RESIDING AT BOORAGUNTE VILLAGE, SARJAPURA HOBLI, ANEKAL TALUK, BANGALORE URBAN DISTRICT – 562 125.
15. SMT. SUNITHA W/O. SRINIVAS, D/O. MUNI REDDY, AGED ABOUT 38 YEARS, RESIDING AT SARJAPURA VILLAGE, SARJAPURA HOBLI, ANEKAL TALUK, BANGALORE URBAN DISTRICT – 562 125.
16. SRI PRATEEK KUMAR S/O. PRAFUL KUMAR, REPRESENTED BY HIS G.P.A. HOLDER, SRI VENKATESH MUTTA, S/O. SRI KRISHNA RAO, SITARAMMUTTA, AGED ABOUT 42 YEARS, RESIDING AT SOFIA MONZIL, NO.187, RMV 2ND STAGE, 12TH CROSS, DOLLARS COLONY, BANGALORE – 560 054.
... RESPONDENTS (R5 & R13 ARE SERVED AND UNREPRESENTED;
R1 TO R4, R6 TO R12 AND R14 TO R16: NOTICE DISPENSED WITH VIDE COURT ORDER DATED 14-12-2018) * * * THIS REGULAR FIRST APPEAL IS FILED UNDER ORDER 41 RULE 1 READ WITH SECTION 96 OF CODE OF CIVIL PROCEDURE AGAINST THE JUDGMENT AND DECREE DATED 9-10-2015 PASSED IN O.S. NO.1043 OF 2014 ON THE FILE OF THE SENIOR CIVIL JUDGE, ANEKAL, DISMISSING THE SUIT FOR PARTITION, SEPARATE POSSESSION AND DECLARATION.
THIS REGULAR FIRST APPEAL COMING ON FOR FINAL HEARING, THIS DAY, NAGARATHNA, J., DELIVERED THE FOLLOWING:
J U D G M E N T The plaintiffs in Original Suit No.1043 of 2014 have preferred this appeal assailing the dismissal of the suit by judgment and decree dated 9-10-2015 passed by the Senior Civil Judge and Judicial Magistrate First Class at Anekal, Bengaluru Rural District.
2. For the sake of convenience, parties herein shall be referred to in terms of their status before the trial Court.
3. The Plaintiffs filed the suit seeking relief of partition and separate possession of their 1/6th share in the suit schedule properties and for a declaration that sale deeds dated 15-9-2009 and 30-11-2009 are not binding on the plaintiffs in respect of the suit properties. The suit properties are two parcels of agricultural land as stated in the plaint. It is the case of the plaintiffs that the plaintiffs and defendant Nos.1 to 15 are the members of the Hindu undivided joint family and the suit properties are ancestral and joint family properties of the said family. Plaintiffs and defendant Nos.6, 9 and 11 are the children of late Yellappa. Defendant No.1 is the wife of late Sampangi, who is the son of late Yellappa and defendant Nos.2 to 5, 7, 8, 10 and 12 to 15 are the grand-children of late Yellappa. During the lifetime of the father of the plaintiffs, a panchayat was held and partition was effected between the father and his sons and palu patti was drawn on 11-8-1986. In the said partition, the suit properties were allotted to the share of the father of the plaintiffs and remaining properties were allotted to his sons. During the lifetime, father of the plaintiffs was in exclusive possession and enjoyment of the suit properties as an absolute owner, after partition dated 11-8-1986. After his death, i.e. on 22-3-2004, the plaintiffs and defendant Nos.1, 6, 9 and 11 jointly succeeded to the suit properties by way of inheritance as they are the only legal heirs to succeed to the same. That the father of the plaintiffs had not disposed the said properties in favour of any person during his lifetime. But after his death, defendant No.11, in collusion with Revenue Authorities, managed to get revenue entries made in his name vide MR No.48/2007-08. Thereafter, defendant No.11 alienated suit item No.1 in favour of defendant No.16 by registered sale deed dated 15-9-2009. Plaintiffs were not aware of the said transaction. That the said alienation is not binding on the plaintiffs. Subsequently, defendant Nos.1 to 3 and 6 to 15 have alienated suit item No.2 in favour of defendant No.16 under another registered sale deed dated 30-11-2009 without any intimation to the plaintiffs. The said sale deed is also not binding on the plaintiffs. On the basis of said alienation, the defendants have denied the legitimate share of the plaintiffs in the suit properties. The defendants refused to allot any share in the suit properties to the plaintiffs, after the death of their father although they demanded their legitimate share. Hence, the plaintiffs filed the suit seeking the aforementioned reliefs.
4. In response to the suit summons and Court notices issued by the trial Court, all the defendants i.e., defendant Nos.1 to 16 remained absent and were placed ex-parte. The case was posted for plaintiffs’ evidence. Plaintiff No.1 examined herself as P.W.1 and she produced thirty-two documents which are marked as Exs.P.1 to P.32. Plaintiffs were not cross-examined by the defendants, since the defendants were placed ex-parte. They did not let-in any evidence in the matter.
5. The trial Court raised the following points for its consideration:
i. Whether the plaintiffs prove that they are the members of the Hindu Undivided Joint Family and the suit properties are the ancestral and joint family properties of them?
ii. Whether the plaintiffs are entitled for the relief as sought for?
iii. What order or decree?
6. On the basis of material on record, the trial Court answered point Nos.1 and 2 in the negative and dismissed the suit by judgment and decree dated 9-10-2015. Being aggrieved by the dismissal of their suit, the plaintiffs have preferred this appeal.
7. We have heard Sri H.R. Lakshmana Reddy, learned counsel for the appellants, respondent Nos.5 and 13 have been served and are unrepresented and they were also placed ex-parte before the trial Court and notice to respondent Nos.1 to 4, 6 to 12 and 14 to 16 has been dispensed with vide order dated 14-12-2018, as the said respondents were placed ex-parte before the trial Court and we have perused the material on record.
8. Learned counsel for the appellants contended that the appellants-plaintiffs are the daughters of late Yellappa and Thayamma. That the said couple had four sons and two daughters, namely Gullamma, Sampangi, Nanjunda Reddy, Pilla Reddy, Muni Reddy and Yellamma. That during the lifetime of their father-Yellappa, there was a partition effected between their father and his sons i.e., plaintiffs’ brothers and palu patti was drawn on 11-8-1986. That the suit schedule properties fell in the share of their father pursuant to partition and he was in enjoyment of the said properties since then and that the sons of Yellappa, being brothers of the plaintiffs, have been allotted respective shares and they are in enjoyment of those shares along with the respective family members. But as far as suit schedule properties are concerned, pursuant to the partition effected on 11-8-1986, they fell to the share of the father-Yellappa. That he died intestate without leaving any Will. On his death, succession opened and the plaintiffs and other siblings are entitled for an equal 1/6th share in the suit properties. Plaintiffs demanded their share in the properties, but they came to know that the suit properties are alienated by the defendants without any intimation even to the plaintiffs. Hence, the plaintiffs sought for 1/6th share in the suit properties. That all the defendants remained ex-parte before the trial Court. But the trial Court has failed to appreciate the evidence let-in by the plaintiffs and has simply dismissed the suit. He contended that the right, title and interest of the plaintiffs in the suit schedule properties arose once their father-Yellappa died on 22-3-2004 and succession opened. That the siblings of the plaintiffs ought to have given a rightful share to the plaintiffs. The same not being done, they are constrained to file the suit, but the trial Court has simply dismissed the suit. He submitted that the judgment and decree of the trial Court be set aside and the plaintiffs be granted 1/6th share in the suit properties.
9. Having heard learned counsel for the appellants and on perusal on the material on record, at the outset, it is mentioned that all the defendants being not only siblings and family members of the siblings of the plaintiffs, but also alienees remained ex-parte before the trial Court. They did not file any written statement contesting the suit filed by the plaintiffs. They did not cross-examine the plaintiffs and neither did they let-in any evidence, as they had not filed written statement and were placed ex-parte before the trial Court. Be that as it may, the trial Court ought to have examined as to whether the appellants herein had any right, title and interest over the suit schedule properties and thereafter to consider the points raised by it. The trial Court has answered issue No.1 in the negative by holding that the plaintiffs are not the members of Hindu undivided joint family and that, they are not entitled to any share in the suit properties. The trial Court has failed to appreciate the fact that there was division of the suit schedule properties as early as on 11-8-1986 between father and brothers of the appellants and palu patti was drawn on 11-8-1986. In that partition, the suit schedule properties were allotted to the father of the appellants. That he died intestate without making any testament with regard to any succession or bequest in respect of the said properties. Hence, on his demise, the said properties had to be equally divided between the children, as his wife had also predeceased. Six children of Yellappa were each entitled to 1/6th share of the said properties. This is strictly not a case of partition but of succession. The trial Court has not appreciated the said aspect and instead has reasoned that the plaintiffs were no longer part of the joint family. That was not the consideration to be made in the instant case. As already noted, this is a case of succession to the properties of the father, which was allotted to him at a partition which had taken place on 11-8-1986 and not a case of partition and separate possession by division by metes and bounds of the ancestral and joint family properties. Further, the trial Court has also held that the plaintiffs are married daughters and living in their respective matrimonial houses had lost joint family status and that since 2004, they have slept over their rights, vis-à-vis suit schedule properties and hence, dismissed the suit. In our view, the reasoning of the trial Court is erroneous. The plaintiffs had not lost their right, title and interest over the suit schedule properties although they are married and residing in their respective matrimonial houses. Further, the plaintiffs are asking for the division of their share in the properties which right commenced on the demise of their father and the same could not have been denied to them merely because they filed a suit in the year 2014, whereas the father died in the year 2004.
10. In the circumstance, the judgment and decree of the trial Court is set-aside. The suit filed by the plaintiffs is decreed by holding that they are entitled to 1/6th share in the suit schedule properties and that the alienations made by the defendants in favour of defendant No.16 are not binding on the plaintiffs.
11. The appeal is allowed in the aforesaid terms.
12. Registry to draw a preliminary decree in the aforesaid terms.
No costs.
SD/- JUDGE SD/- JUDGE kvk