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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

DATED THIS THE 11TH DAY OF SEPTEMBER, 2012

BEFORE

THE HON'BLE MR. JUSTICE SUBHASH B ADI

REGULAR FIRST APPEAL No.1311/2003

BETWEEN :

V SHAMANNA,
AGED ABOUT 53 YEARS,
S/O LATE SRI J.VENKATASWAMY,
R/AT NO.11, 2ND 'B' CROSS
JANGAMAMESTRI GALLI
BALEPET,
BANGALORE 560 053. ...APPELLANT

(BY SRI:B N JAYADEVA, ADVOCATE)

AND :

1 SMT V BHAGYAMMA,
AGED ABOUT 51 YEARS,
D/O LATE SRI J.VENKATASWAMY,
R/O NO.11, 2ND B CROSS,
JANGAMAMESTRI GALLI
BALEPET,
BANGALORE 560 053.

2 SMT V SHARADA,
AGED ABOUT 48 YEARS,
W/O SRI H RAMAKRISHNA,
D/O LATE SRI J.VENKATASWAMY,
R/O NO.11, 2ND B CROSS,
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JANGAMAMESTRI GALLI
BALEPET,
BANGALORE 560 053.

3 MR.RAJANNA,
MAJOR,
S/O SRI MUNIYAPPA,
R/AT PALAJOGIHALLY
MALATHALLI POST,
KASABA HOBLI,
DODDABALLAPUR TALUK,
BANGALORE DISTRICT. ...RESPONDENTS

(BY SRI: GIRISH V, ADV.FOR SRI.BOJARAJ

& SRI.NAGAIAH & SRI.M.S.NAGARAJ, ADVS.FOR R1 AND R2;
NOTICE TO R3 IS DISPENSED WITH)

THIS RFA IS FILED U/S 96 R/W O 41 R 1 OF CPC AGAINST

THE JUDGMENT AND DECREE DATED 22.7.2003 PASSED IN
O.S.NO.3969/93 ON THE FILE OF THE XX ADDL. CITY CIVIL
JUDGE, BANGALORE, DECREEING THE SUIT FOR PARTITION,
SEPARATE POSSESSION AND MESNE PROFITS.

THIS RFA IS COMING ON FOR HEARING, THIS DAY, THE

COURT DELIVERED THE FOLLOWING:

JUDGMENT

This is first defendant’s appeal against the judgment and

decree in O.S.No.3969/1993 dated 22.07.2003 on the file of XX

Additional City Civil Judge, Bangalore.

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2. Parties are referred to as per their ranking in the Trial

Court.

3. Suit is one for partition and separate possession of 1/3rd

each share each of the plaintiffs’ total 2/3rd share.

4. Plaintiffs are the sisters of defendant No.1. Plaintiffs’ case

is that, their mother was possessing sufficient gold ornaments

weighing more than 125 to 150 grams. She sold her gold

ornaments to purchase the suit schedule property under the

registered sale deed dated 09.03.1963 for consideration of

Rs.12,000/- from one Naraynaswamy, Srinivas and V.Rajanna. She

also purchased the suit item No.2 property under the registered sale

deed dated 26.08.1957 for a consideration of Rs.200/-. It was the

separate property, it is “Stridhana” of the mother of the plaintiffs

and the defendant No.1 and their mother died intestate on

27.06.1981. Plaintiff Nos.1 and 2 and defendant No.1 being the

only legal heirs, each one is entitled for 1/3 rd share. However,
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defendant No.1 despite demanding the share, he did not divide the

property, give legitimate share of the plaintiffs and accordingly,

sought for decree for partition and separate possession of 1/3 rd

each.

5. The said suit was contested by the first defendant interalia

contending that, the suit is bad for mis-joinder of parties, as the

second defendant has been added unnecessarily, as no relief could

be granted to second defendant. The first plaintiff being physically

handicapped is not true, but it is true that, she was unmarried.

Marriage of the second plaintiff was performed by the first

defendant. At the time of marriage and subsequently, defeating to

the status of the family, second plaintiff has received the share, as

such, she has no right to claim partition and separate possession in

the suit schedule property. The first defendant had agreed with the

first plaintiff that, the first plaintiff to collect the rents and she has

been collecting the rents till the filing of the written statement. The

first floor of the building was let out to one Sevanthi Bai for
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Rs.5,00/- per month. Defendant No.1 is in exclusive possession of

the suit schedule item No.1 property. The suit schedule item No.1

property being a joint family property, first plaintiff had only right

of residence, she has no right to demand partition in the joint

family property and it being a dwelling house, it cannot be divided

also. There was a family debt and all the debts have been

discharged by the first defendant out of his own money. Therefore,

suit schedule item No.1 property has become absolute property of

defendant No.1. None of the plaintiffs have any right to claim

share in the suit schedule item No.1 property.

6. On the basis of these pleadings, the Trial Court framed the

following issues:

(i) Does the plaintiffs prove that they are entitled for
1/3rd share each in the suit schedule properties?
(ii) Does the defendant proves that suit item No.1 and
2 was the stridhana property of Ramakka?
(iii) Whether the suit is bad for mis-joinder of
parties?
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(iv) Does the defendant proves that the first floor

portion of item No.1 has become his absolute
property?
(v) Whether item No.2 of the suit schedule properties
is not available for partition?
(vi) Whether the plaintiffs hare entitled for partition
and separate possession of the share claimed by
them?
(vii) What order or decree?

7. Before the Trial Court, plaintiff No.1 was examined as

PW-1 and Exs.P1 to P6 were marked in her evidence. Second

plaintiff was examined as PW-2. Defendant No.1 got himself

examined as DW-1 and he had examined one witness as DW-2 and

got marked Exs.D1 to Ex.D9. During the pendency of the appeal,

first plaintiff died unmarried.

8. The Trial Court held that, the plaintiffs have proved that

they are entitled for 1/3rd share each in the suit schedule property.

The defendant No.1 has failed to prove that, the first floor item
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No.1 has become his absolute property. Defendant No.1 has failed

to prove that the plaintiffs have no share in the suit schedule

property and accordingly, decreed the suit for partition and separate

possession of 1/3rd share each for plaintiffs.

9. It is against the judgment and decree, the defendant No.1

is in appeal.

10. Sri.Jayadeva, learned Counsel appearing for the

defendant No.1 contended that, the suit is not maintainable. The

suit property was purchased under Ex.P1 by mother, but in the

plaint it is averred that the suit property was purchased by mother

by selling her gold ornaments, however, Ex.P1 does not contain

any recital that the mother of the plaintiffs and the defendant had

sold the gold ornaments to purchase the property, in turn, the suit

property was purchased by agreeing to discharge the mortgage

amount, as such, the averment in the plaint that the suit property

purchased by sale of gold ornaments is not only true but contrary to

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recital in Ex.P1. He also contended that plaintiffs are unaware that

the suit property item No.1 purchased by mother of the plaintiffs

and the defendant was sold under Ex.D1 to one Ranganatha Shetty

for consideration of Rs.7,500/-, as such, the suit schedule property

claimed by the plaintiffs was not in existence and it was sold.

Thereafter, the mother of the plaintiffs and defendant re-registered

the suit schedule property under another registered sale deed dated

10.04.1963 for consideration of Rs.7,500/- under Ex.D2, however,

it was mortgaged to one T.Narayana Raju for consideration of

Rs.9,000/- under the Ex.D3 and additional charge was created

under Ex.D2 Rs.4,300/-, it was utilised for construction of first

floor. The mother of the plaintiffs and defendant died on

27.06.1981. As per Ex.D5 and Ex.D6, defendant No.1 got the

mortgage redeemed, as such, the plaintiffs have no right, title and

interest in the suit schedule property.

11. He also contended that, the plaintiff No.2 was given in

marriage and at the time of marriage, she received her share.

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12. To the contrary, learned Counsel appearing for the

plaintiff submitted that, though Exs.D1 and D2 are produced to

show that, the property was sold and re-purchased by Ramakka, the

mother of the plaintiffs and the defendant No.1, but the suit is one

for partition and separate possession in respect of the suit schedule

property purchased by mother of the parties. It was purchased by

the mother is not in dispute and she died intestate is also not in

dispute and in such case, plaintiffs and defendant No.1 being Class-

I heirs, all of them are entitled for equal share. He also submitted

that, the entire rent amount was collected by defendant No.1 and

out of the said amount, the mortgage has been redeemed. Even

otherwise, he contended that, there is no evidence that he has

contributed any money for redemption of the mortgage, though

redemption is in the name of defendant No.1 and contended that,

when there is no dispute that the property was self-acquired

property of the mother, plaintiffs and defendant No.1 being

children, they are entitled for equal shares.

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13. In the light of the submissions, the point that arises for

my consideration is:

“Whether the judgment and decree of the trial court

calls for interference?”

14. It is clear from the evidence of both the parties that,

Ramakka was the mother of the plaintiffs and defendant No.1 and

she had purchased the property under registered sale deed Ex.P1.

No doubt, plaintiffs might have stated that, she purchased by sale

of gold ornaments, but it is not the case of the defendant No.1, he

had contributed money for purchase of property under Ex.P1, at the

time of purchase of property under Ex.P1, defendant No.1 was a

minor, there is no other evidence that, the family property was

there and it is contributed from the income of joint family. If the

properties purchased by the mother of the plaintiffs and the

defendant No.1, it becomes her separate property. She must have

sold the property at Mysore and purchased the suit property. Ex.P1

proves that, it is the separate property of Ramakka, the mother of

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the plaintiffs and defendant. It is nobody's case that, she has left

any testamentory document, if she has died intestate, then the

property devolves by succession on Class-1 heirs. Class-1 heirs are

children – sons and daughters.

15. However, it is contended by learned counsel for the

defendant No.1 that, very property was sold under Ex.D1 in favour

of one Ranganatha Shetty for consideration of Rs.7,500/- and

thereafter, it was purchased by Ramakka, mother of the plaintiffs

and defendant No.1 as per Ex.D2 on 10.6.1963. Maybe, the

property has been sold thereafter and it is not mentioned in the

plaint. Fact remains that, the plaintiffs have sought for partition

and separate possession of their mother’s property and even if there

was another transaction, but ultimately it is mother, who has

purchased the property in 1963, very same property was mortgaged

under Ex.D3 to Narayana Raju, for consideration of Rs.9,000/- and

Rs.4,300/-.
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16. It was strongly contended that, the defendant No.1 after

the death of the mother, he redeemed the mortgage in 1983.

Hence, the properties deemed to have been gone to the defendant

No.1 exclusively. Though it is the contention of the defendant

No.1 that he had redeemed out of his self-acquired income, except

the bald statement, there is nothing on record to show that it is

redeemed by his own contribution, but the fact remains that, it is

redeemed. Redemption of mortgage does not disentitle the

plaintiffs from claiming the share in the property, as such, when the

facts are not in dispute that, Ramakka was the owner of the

property and she died intestate leaving behind the plaintiffs and

defendant No.1, they being the only three legal heirs, they are

entitled for equal share and there cannot be any dispute on this

aspect. As such, the Trial Court has rightly decreed awarding 1/3 rd

share each. It is now submitted that, plaintiff No.1 died, if she has

died, her share has to be divided amongst the plaintiff No.2 and

defendant No.1 subject to adjustment, if any, in the final decree

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proceedings.

17. In the circumstances, I find no reason to interfere with

the judgment and decree of the Trial Court.

Accordingly, the appeal fails and same is dismissed.

Sd/-
JUDGE

KNM/DP