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2022 DIGILAW 95 (KAR)

Beemanna v. K. Venugopal

2022-01-24

N.S.SANJAY GOWDA

body2022
JUDGMENT Neranahalli Srinivasan Sanjay Gowda, J. - One Sri. Lakshmaiah and Smt. Krishnamma (defendant No. 1) had two daughters and three sons. The first daughter - Smt. Lakshmikanthamma died issueless. 2. Sri. Beemanna, Sri. Nagaraju and Sri. Krishnappa (defendant Nos. 2 to 4) were the sons of Sri. Lakshmaiah and Smt. Krishnamma. 3. Smt. Sharadamma was the lone surviving daughter and her children are the plaintiffs (1 to 5). 4. The children of Smt. Sharadamma instituted the suit for partition contending that all the suit schedule properties were ancestral properties of their mother i.e., Smt. Sharadamma and they were entitled to a share in the said properties. 5. This suit was contested by the brothers of Smt. Sharadamma i.e., defendant Nos. 2 to 4. They, however, admitted the relationship of the parties, but contended that plaintiffs and defendant Nos. 1 to 4 did not constitute a hindu joint family. They also denied the assertion that their father had acquired the suit schedule properties. 6. The Trial Court, on consideration of the evidence, came to the conclusion that the plaintiffs and defendant Nos. 1 to 4 did constitute an undivided joint hindu family properties and the suit schedule properties were their joint family ancestral properties. The Trial Court also came to the conclusion that they were in joint possession and enjoyment of the suit schedule properties. 7. The Trial Court came to the conclusion that Item Nos. 1 and 4 were the properties of Smt. Krishnamma, the grandmother of the plaintiffs and Item Nos. 2, 3, 6 and 7 were the self acquired properties of their father Sri. Lakshmaiah. The Trial Court also came to the conclusion that Item Nos. 5, 8 and 9 were joint family ancestral properties. 8. The Trial Court accordingly granted 1/4th share in Item Nos. 1 to 4 and 6 to 7 which were the self acquired properties of Sri. Lakshmaiah and the properties of Smt. Krishnamma. 9. In respect of the ancestral properties i.e., Item Nos. 5, 8 and 9, applying the then existing law, the Trial Court came to the conclusion that by virtue of the notional partition, the plaintiffs would be entitled to 1/16th share out of the 1/4th share of Sri. Lakshmaiah. 10. The Trial Court, however, dismissed the claim of the plaintiffs in respect of Item No. 10, which was a property, which had been acquired by defendant Nos. Lakshmaiah. 10. The Trial Court, however, dismissed the claim of the plaintiffs in respect of Item No. 10, which was a property, which had been acquired by defendant Nos. 2 to 4 jointly, on the ground that it was their separate property. 11. Being aggrieved, both the plaintiffs as well as defendant Nos. 2 to 4 preferred an appeal. 12. The Appellate Court on re-appreciation of the evidence concurred with the finding that Item Nos. 1 to 4 and 6 to 7 were the properties of Smt. Krishnamma and Sri. Lakshmaiah and therefore, the decree granted by the trial Court in favour of the plaintiffs could not be found fault with. The finding in respect of the ancestral properties was also confirmed. 13. Insofar as Item No. 10 was concerned, the Appellate Court, taking note of the fact that there was admittedly no division of the properties and the properties had been acquired by the three sons i.e., defendant Nos. 2 to 4 jointly, when they were joint, the said property would also have to be construed as a joint family property. 14. Accordingly, the Appellate Court set aside the dismissal in respect of Item No. 10 and proceeded to grant the plaintiffs 1/6th share in Item No. 10. 15. The Appellate Court also dismissed the appeal filed by defendant Nos. 2 to 4 and thereby, confirmed the decree of the trial Court. 16. It is against this common judgment passed in Regular Appeal, which has been filed by the plaintiffs and by defendant Nos. 2 to 4, these second appeals have been preferred. 17. In light of the fact that the relationship was not in dispute, the plaintiffs by virtue of being the grandchildren of Sri. Lakshmaiah and Smt. Krishnamma would be entitled to succeed to the share of their mother Smt. Sharadamma. 18. Since Item Nos. 1, 2, 3, 4, 6 and 7 have been found to be the separate properties of Smt. Krishnamma and Sri. Lakshmaiah, the grant of 1/6th share to Smt. Sharadamma, the mother of the plaintiffs and consequently to the plaintiffs cannot be found fault at all. 19. Similarly, in the light of the finding that Item Nos. 5, 8 and 9 were ancestral properties and in the light of the judgment rendered by the Apex Court in the case of Vineetha Sharma vs. Rakesh Sharma And Ors. 19. Similarly, in the light of the finding that Item Nos. 5, 8 and 9 were ancestral properties and in the light of the judgment rendered by the Apex Court in the case of Vineetha Sharma vs. Rakesh Sharma And Ors. reported in AIR 2020 (SC) 3717 , the mother of the plaintiffs would also be entitled to equal share. To that extent, the decree of Trial Court in respect of Item Nos. 5, 8 and 9 are required to be modified and it will have to be held that the plaintiffs would be entitled to 1/6th share in Item Nos. 5, 8 and 9 also. 20. As far as Item No. 10 is concerned, the Appellate Court has recorded a finding that there was no acceptable evidence to come to the conclusion that it had been purchased out of any separate earnings of defendant Nos. 2 to 4. The Appellate Court has noticed that Item No. 10 was admittedly purchased in the name of defendant Nos. 2 to 4 jointly and having regard to the age of defendant Nos. 2 to 4 stated in the said sale deed, it was obvious that the purchase could have been made only from the earnings derived from other properties. This finding, essentially, being a finding of fact, cannot also to be interfered in second appeal. The finding of the Appellate Court that Item No. 10 was also a joint family property will therefore have to be accepted and consequently, the decree granted in Item No. 10 will also have to be affirmed. 21. Since both the Courts have recorded a finding that Item Nos. 1 to 10 are, either, ancestral properties or separate properties of the grandfather and grandmother of the plaintiffs or joint family property of the family, the grant of 1/6th share to the plaintiffs cannot be found fault at all. Their arises no substantial question of law for consideration of these second appeals and the same are accordingly dismissed.