Research › Search › Judgment

Karnataka High Court · body

2023 DIGILAW 1162 (KAR)

Manjunath v. Nagarathna

2023-10-04

ANANT RAMANATH HEGDE

body2023
JUDGMENT : Mr. Anant Ramanath Hegde, J. - The decree granting 1/4th share in the suit properties which comprised of two agricultural lands and two residential houses, is the subject matter of this appeal. 2. The admitted genealogy of the parties is as under:- 3. One Fakkirappa was the propositus. He had three sons, Channabasappa, Basavanneppa and Puttappa. In the year 1971, there was a partition after the death of Fakkirappa. In the said partition, Channabasappa, Basavanneppa and Puttappa got the properties partitioned. While affecting the partition, the share was also allotted to Tippanna-the son of Channabasappa. The share is also allotted to Basavaraj-the natural son of Channabasappa, who is said to have gone in adoption to Basavanneppa- the brother of Channabasappa. 4. This Court is only concerned with the devolution of share in the branch of Channabasappa and not concerned with the devolution of share to the branches of Basavanneppa and Puttappa, as the suit is filed claiming share in the properties allotted to the share of Channabasappa. 5. Channabasappa was allotted Sy.No.24/2B measuring 4 acres 5 guntas 8 anas in Malapur village, Haveri taluk. Tippanna was allotted Sy.No.24/2C, measuring 4 acres 2 guntas in Malapur village, Haveri taluk. After the death of Channabasappa, Tirakavva and Tippanna inherited the property of Channabasappa, namely, Sy.No.24/2B. After the death of Tirakavva, Tippanna inherited her share. Tippanna's wife Shantamma predeceased Tippanna. During the life time of Tippanna, his daughter Nagaratna filed a suit claiming share in the property allotted to the share of Channabasappa inherited by Tippanna and also and the share allotted to Tippanna, in the partition of 1971. In the said suit, the children of Tippanna are also made as parties as defendants No.2, 3 and 4 and Tippanna who was alive was arrayed as defendant No.1. Tippanna died during the pendency of the suit. The plaintiff and defendants No.2 to 4 are the legal representatives of the deceased Tipanna and they were already on record. 6. The defendants have raised a defense stating that Basavaraj, the genetic son of Channabasappa is also a necessary party to the suit. It is also pleaded by the defendants that huge money was spent towards the marriage of the plaintiff and also to treat the plaintiff when she was suffering from hernia. The defense was not accepted. The Trial Court decreed the suit. 7. It is also pleaded by the defendants that huge money was spent towards the marriage of the plaintiff and also to treat the plaintiff when she was suffering from hernia. The defense was not accepted. The Trial Court decreed the suit. 7. Aggrieved by the aforementioned judgment and decree, defendants No.2 to 4 are in appeal. 8. Learned counsel for the appellants would submit that the valid defense is raised disputing the adoption of Basavaraj and no issue is framed in this regard. He would also contend that enough money was spent towards the marriage of the plaintiff and to treat her ailments, and the money is spent towards the marriage and treatment of the plaintiff should be construed as a share allotted to the plaintiff. Thus, it is urged that the trial Court erred in not appreciating the contents of the appellants. 9. Sri N.P. Vivekmehta, the learned counsel for the respondent-plaintiff would urge that DW1 in the cross-examination has categorically admitted that all the suit schedule properties are the ancestral properties in which the plaintiff is having equal share and the trial Court is justified in decreeing the suit. 10. After considering the contentions raised at the Bar, the following points arise for consideration:- i) Whether the Trial Court is justified in holding that the plaintiff is having equal share? ii) Whether the trial Court is justified in not answering the contention that Basavaraj is not a necessary party to the suit? 11. As far as the contention of the defendants that Basavaraj is also necessary party to the suit, it is to be noticed that the plaintiff in the plaint has clearly stated that Basavaraj has gone in adoption to Basavanneppa. Admittedly, Basavanneppa had no issues and though this contention is specifically pleaded, there is a vague and evasive denial in the written statement and it is also required to be noticed that Basavaraj has not claimed any share in the properties after the death of Channabasappa or Tirakavva. It is also required to be noticed that the contention of the defendants that Basavaraj is also a necessary party and that he has not gone in adoption goes against the interest of the defendants. It is also relevant to note the in the partition of 1971 which is evidenced in Ex.P6, Basavarj is shown as son of Basavenneppa. This mutation is not questioned. It is also relevant to note the in the partition of 1971 which is evidenced in Ex.P6, Basavarj is shown as son of Basavenneppa. This mutation is not questioned. Moreover, Basavaraj himself is not claiming that he is not gone in adoption and is not claiming any share in the property of Channabasappa. 12. For the aforementioned reasons, this Court is of the view that there is no difficulty in accepting the plea of the plaintiff that Basavaraj has gone in adoption. 13. The partition of 1971 which is evidenced in M.E.No.1151 marked at Ex.P6, reveals that Basavaraj is described as son of Basavenneppa. There is no cross examination to this document suggesting that name of Basavaraj is wrongly described as the son of Basavenneppa. Assuming that Basavaraj is not gone in adoption to Basavenneppa, the defendants themselves could have moved the application to impleade Basavaraj as a party to the proceedings. Hence, the defendants cannot raise any grievance relating to non joinder of Basavaraj as a party to the proceedings. 14. For the aforementioned reasons, this Court is of the view that the judgment and decree passed by the Trial Court do not call any interference. Hence, the following:- ORDER The appeal is dismissed. The judgment and decree dated 22.08.2014 passed by the Principal Senior Civil Judge, Haveri, in O.S. No.74/2012 are confirmed.