IN THE HIGH COURT OF KARNATAKA AT BANGALORE BEFORE THE HON'BLE MR.JUSTICE BUDIHAL. R.B. REGULAR SECOND APPEAL No.1373/2012 (PAR)

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1 1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 29 TH DAY OF NOVEMBER 2013 BEFORE THE HON'BLE MR.JUSTICE BUDIHAL. R.B REGULAR SECOND APPEAL No.1373/2012 (PAR) BETWEEN Veerabadrappa, S/o. Late Chandrappa, Aged about 65 years, Agriculturists, R/o. Shivani Village, Tarikere Taluk. Chikkamagalur District APPELLANT (By Sri. S.C. Vijayakumar, Adv.) AND 1. Swetha, D/o. Devaraj, W/o. Jagadeesh, Aged about 24 years, House hold work, R/o. Lingadahalli village, Tarikere Taluk, Chikkamagalur District Anitha, D/o. Devraj, Aged about 21 years, House hold work,

2 2 C/o. Jayanna, Teacher, Lingadahalli Village and Post, Tarikere Taluk, Chikkamagalur District Devaraj, S/o. Late Chanadappa, Aged about 57 years, Agriculturists, R/o. Shivani Village, Tarikere Taluk, Chikkamagalur District Smt. Jayamma, W/o. M. Mohankumar, House wife, Aged about 50 years, R/o. H.B. Main Road, Srirampura, Hosadurga Taluk Chitradurga District Smt. Anasuya, W/o. Basavaraj, Aged about 48 years, House wife, Anivala Post, Hosadurga Taluk, Chitradurga District RESPONDENTS (By Sri. K.P. Bhuvan, Adv. for M/s. Purna Law Associates, Adv. for R-1 and R-2 R-3 and R-5 served, Unrepresented R-4 deleted vide order dated ) This RSA is filed U/S 100 of CPC against the judgment and decree dated passed in R.A. No.208/2010 on the file of the Principal District Judge at Chikmagalur, dismissing the appeal and confirming the Judgment and decree dated: passed in O.S.No.1/2006 on the file of the Senior Civil Judge and Principal J.M.F.C. at Tarikere.

3 3 This RSA having been heard and reserved for orders, coming on for pronouncement of judgment, this day, the Court delivered the following: JUDGMENT This appeal is preferred against the judgment and decree dated passed by the Principal District Judge, Chikmagalur, in R.A. No.208/2010, who confirmed the judgment and decree dated passed in O.S. No.1/2006 by the Senior Civil Judge and Principal JMFC, Tarikere. 2. Brief facts of the case are that respondent Nos.1 and 2 herein were the plaintiffs before the trial Court. The plaintiffs filed the aforesaid suit for partition and separate possession of 2/3 rd share out of 1/5 th share in the suit schedule properties and also sought for mesne profits in respect of the suit schedule properties. It was contended by the plaintiffs in the said suit that, the defendants and themselves were the members of the Hindu undivided family and the suit schedule properties were the joint family

4 4 properties till the date of filing of the suit. The propositor Mahadevappa was the Kartha of the joint family having two sons, namely, Chandappa (defendant No.1) and Rudrappa. The said Padiyappa and his wife Eramma had no issues and khatha of the respective shares was entered in their names. Before the death of said Padiyappa, family partition was performed between Chandappa and himself. But, unfortunately, Padiyappa and his wife died without issues and without appointing any one as legal representatives. Therefore, the respective properties fallen to the share of Padiyappa were reverted back to Chandappa and katha was entered in the name of Chandappa as legal representative of Padiyappa. The said Chandappa had three sons and two daughters. The second son of Chandappa died leaving behind his wife Rathnamma. They also had no issues. The plaintiffs are the daughters of Devaraju, the 3 rd son of Chandappa. It was contended that due to family dispute between their father and mother, they were residing separately. Their father did not provide any maintenance to them and their mother. The defendants were intended to sell

5 5 the joint family properties to third parties without any family necessity, but, to meet their personal expenses. The mother of the plaintiffs filed a suit in O.S. No.26/2002 for partition and separate possession and for mesne profits as minor guardian. But, she did not take care of the Court proceedings and the said suit was dismissed for non prosecution. Hence, the plaintiffs lost confidence in their mother and accordingly, filed the aforesaid suit. 3. In response to summons, defendants Nos.1 to 3 appeared. The 2 nd defendant filed written statement and the same was adopted by defendant Nos.1 and 3. They contended that the suit was not maintainable in law and the suit itself was infructuous. It was further contended that the suit be dismissed for non joinder of necessary parties. It was further contended that Padiyappa had executed a Will bequeathing his properties in favour of defendant No.2 and almost half of the suit schedule properties were the properties of defendants No.2. The entire suit schedule properties were not the joint family properties. The plaintiffs mother is in Government

6 6 service drawing sufficient salary. She has deserted her husband and she is living herself with her two children leading life arbitrarily. The plaintiffs or their mother never come to the defendants nor have they claimed partition in family properties at any time. Unfortunately, defendant No.3, who is father of plaintiffs, is away from the plaintiffs and their mother. Defendant No.2 has got right over Southern half of the suit item Nos.1 and 3, Western half of the suit item Nos.2 and 5, Eastern half of the suit item No.4 and Western two ankanas in item No.5, as per the Will of late Padiyappa executed on Hence, they prayed for dismissal of the suit. 4. The Trial Court decreed the suit of the plaintiffs partly giving 2/3 rd share in 1/5 th share that fallen to the father of the plaintiffs. Defendants challenged the said judgment and decree by filing R.A. No.208/2010 on the file of the Principal District Judge, Chikmagalur, and the said Court by its judgment and decree dated dismissed the appeal confirming the judgment and decree passed by the

7 7 Trial Court. Aggrieved by the said decree, the appellant has preferred the present appeal before this Court. 5. I have heard the learned Counsel appearing for the appellant and the learned Counsel appearing for the respondents. 6. Learned Counsel for the appellant during the course of his arguments submitted that Smt. Ratnamma, wife of Chandrappa was not impleaded as a party even though the said contention was taken in the written statement and there is an issue to that effect. He submitted that on this count itself, the suit ought to have been dismissed by the Trial Court. He further submitted that P.W.1 during the course of cross examination has clearly admitted that Rathnamma, wife of Chandrappa, is alive and in spite of clear admission by P.W.1, the Trial Court has decreed the suit. He further submitted that since necessary parties are not impleaded, the suit is not maintainable. In this connection, the learned Counsel relied on the decision of the Apex Court in case of KENCHEGOWDA (SINCE DECEASED) BY LEGAL

8 8 REPRESENTATIVES VS. SIDDEGOWDA ALIAS MOTEGOWA reported in [(1994) 4 SCC 294]. The learned Counsel further made a submission that though the defendants led evidence to show that Padiyappa had executed a Will in favour of defendant No.2-Veerrabhadrappa and the said witness has been examined to prove the same, the Trial Court as well as the First Appellate Court have not properly appreciated the oral and documentary evidence. Therefore, he submitted that substantial questions of law are involved in the present appeal and that the same is to be admitted. 7. On the other hand, learned Counsel appearing for the respondents, during the course of his arguments, submitted that since defendant Nos.2 and 3 have admitted in their evidence about jointness of the family and that the suit schedule properties are the joint family properties, it is sufficient to decree the suit of the plaintiffs. He submitted that the Will is not at all proved by the defendants and hence, the Trial Court has rightly rejected the contention of the defendants regarding proof of the Will. He made a

9 9 submission that though Rathnamma, wife of deceased Chandrappa, is not impleaded as a party, but while calculating shares in the suit schedule properties, the Trial Court has rightly taken into consideration the persons entitled for the share in the said properties and accordingly, granted shares to the plaintiffs. Even if Rathnamma is alive, she can very well join in the final decree proceedings and get her claim. The learned Counsel further submitted that there are no substantial questions of law involved in this appeal and with regard to facts, both the Courts below have recorded a concurrent finding. He submitted that since there is no merit in the appeal, the same is not called for admission and prays for dismissal of the appeal. 8. I have perused the judgment and decrees of both the Courts below, the contentions raised in the appeal memorandum and also the proposed substantial questions of law stated by the appellant in the appeal memorandum. With regard to contention of the plaintiffs that the suit schedule properties are the joint family properties and they

10 10 are in possession and enjoyment of the said properties, the Trial Court has culled out the oral evidence of defendant No.2- D.W.1 Veerabhadrappa, wherein, he has clearly admitted that all the suit schedule properties are in joint possession and enjoyment of the plaintiffs and the defendants. So also in the oral evidence of D.W.2, there is an admission by the said witness that the suit schedule properties are in possession and enjoyment of the members of the joint family. In view of these admissions by D.Ws.1 and 2, the plaintiffs are able to establish that the suit schedule properties are the joint family properties and they are in possession and enjoyment of the said properties. It is the contention of the defendants in the written statement that Mahadevappa, the propositor, had two sons, namely, Chandappa and Rudrappa. Padiyappa got partitioned the properties with his brother Chandappa and subsequently, the said Padiyappa executed a Will in favour of defendant No.2-Veerabhadrappa bequeathing his properties which fallen to his share and hence, the properties as shown in the Will and about which, detailed contentions have been raised in the written statement are not

11 11 the joint family properties and they are not in joint possession and enjoyment of the members of the joint family. The Trial Court as well as the First Appellate Court have appreciated the oral and documentary evidence on record. The materials on record would go to show that none of the attesting witnesses have been examined before the Trial Court nor the scribe has been examined to prove the said Will. The witnesses examined as D.Ws.3 and 4 have not at all adduced satisfactory and acceptable evidence and they are not at all the persons who were present at the time of execution of the Will. They have no personal knowledge about the execution of the Will. Therefore, the Trial Court has not accepted the evidence of D.Ws.3 and 4 and it has treated their evidence as hearsay evidence. 9. Apart from that, the other attending circumstances regarding Will is concerned, though it is the contention of the defendants that the Will is executed by Padiyappa in the year 1974, but till the date of filing of the suit, it has never seen the light of the day nor the defendants have taken any steps

12 12 by lodging a report before the Revenue Authorities to get the name of Veerabhadrappa entered in the records as per the Will. It is only when the plaintiffs filed the aforesaid suit, the defendants have set up a plea that there is a Will executed by Padiyappa and this aspect has been clearly appreciated by the Trial Court. The trial Court held that there are suspicious circumstances with regard to execution of the Will, which have not been explained by the defendants satisfactorily. Therefore, the Trial Court has rightly held that the Will is not proved. 10. The defendants have contended that Smt. Rathnamma, wife of Chandrappa, though she was alive at the time of filing of the suit, was not impleaded as a party and hence, the suit ought to have been dismissed on the said ground. In this connection, learned Counsel for the appellant has relied upon the judgment referred to above. I have perused the principle enunciated in the said decision, but, in the present case, it is not the case of the defendants that all the family properties are not included in the present suit. It

13 13 is their contention that one of the sons of Chandappa expired and Smt. Rathnamma, wife of the deceased Chandrappa, though still alive was not made a party to the suit. Since all the suit schedule properties are included in the suit and as the defendants were not able to prove that all the properties are not included and it is also not the case of the defendants in the written statement that some of the family properties are left out and the present suit is only a suit for partial partition, the principle enunciated in the said decision relied upon by the learned Counsel for the appellant is not applicable in view of the facts and circumstances involved in the case on hand. 11. While calculating the share of the plaintiffs, the Trial Court has correctly taken into consideration that Chandappa was having three sons and two daughters. Only 1/5 th share, which has to be allotted to the share of the father of the plaintiffs was taken into consideration and out of 1/5 th share, 2/3 rd share was allotted to the plaintiffs. As it is rightly contended by the learned Counsel for the respondents even if Rathnamma, wife of the deceased Chandrappa is alive

14 14 and she was not made a party to the suit, she can implead herself in the final decree proceedings and her share will be taken into consideration and the decree can be passed in her favour as there is no bar for passing more than one preliminary decree. Therefore, looking to the entire materials on record, I am of the opinion that both the Courts below have rightly come to the conclusion in decreeing the suit of the plaintiffs. The Courts below have neither committed illegality nor have taken any perverse or capricious view in decreeing the suit of the plaintiffs. The appellant has also not established that any relevant facts were ignored by both the Courts below or any irrelevant facts have been taken into consideration by the Courts below in decreeing the suit of the plaintiffs. No substantial question of law is involved in the present appeal to be tried by this Court. Hence, the appeal is not entitled to be admitted and it is liable to be dismissed. It is accordingly dismissed. Cs/- Sd/- JUDGE