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2024 DIGILAW 88 (KAR)

Sunanda v. V Srinivasa

2024-01-30

C.M.JOSHI

body2024
JUDGMENT C M Joshi, J. Being aggrieved by the judgment and decree passed by the VII Additional Civil Judge, Bangalore, (CCH 19) in OS No.1743/1997, on 20-02-2006, the plaintiff is before this Court in appeal questioning the share allotted to her. 2. The brief facts that are necessary for the purpose of this appeal are that: The plaintiff happens to be the daughter of Venkatanarasappa and Padmavathamma. Apart from Padmavathamma, Venkatanarasappa had two other wives by name Susheelamma and Shamalamma. Venkatanarasappa died intestate on 10-4-1974 leaving behind him Nagarathnamma, daughter from first wife-Susheelamma; plaintiff and defendants No.1 and 2 from the second wife i.e. defendant No.3 Padmavathamma; and one Manjunatha from his third wife-Shamalamma. After the death of Venkatanarasappa, the children of three wives of Venkatanarasappa entered into a registered partition and divided the property which was standing in the name of Venkatanarasappa. The property standing in the name of Venkatanarasappa was purchased by him under a sale deed dated 03-08-1955. After the death of Venkatanarasappa, the three wives of Venkatanarasappa and their children entered into a partition on 19-03-1980 and daughter of Susheelamma was given her share in the form of cash and the suit schedule property was divided into half and the branch of Padmavathamma and Shamalamma were given each of the said portion. 3. The plaintiff is seeking partition in respect of the property which had fallen to the share of Padmavathamma, the mother of the plaintiff and defendants No. 1 and 2. Defendant No.3 Padmavathamma died on 11-06-2015 and therefore, the lis remains between the plaintiff and defendants No. 1 and 2. 4. In the written statement, defendants No. 1 and 2 denied the claim of the plaintiff, but they contended that they had performed the marriage of the plaintiff and also spent for her education and that the plaintiff had also assured that any money that would be paid by defendant Nos. 1 and 2 would be returned to them. A panchayat was held and it was decided that the suit schedule property has to be divided among defendants No. 1 and 2 only and in return they shall maintain defendant No.3 till her death and also look after the education and marriage of the plaintiff. 1 and 2 would be returned to them. A panchayat was held and it was decided that the suit schedule property has to be divided among defendants No. 1 and 2 only and in return they shall maintain defendant No.3 till her death and also look after the education and marriage of the plaintiff. Therefore, they contended that the plaintiff is not entitled for any share in the suit schedule property and they had also spent more than Rs.2,00,000/- by borrowing money and looked after defendant No.3 and also spent for the marriage of the plaintiff. They also contended that defendant No.3 who was allotted 1/3rd of the share in the partition has executed a release deed on 4-12-1996 relinquishing her right in the suit schedule property. On these grounds, they contended that the suit is not maintainable and same be dismissed. 5. On the basis of the above pleadings, the trial Court framed the following issues: 1. Does plaintiff prove that under the registered partition deed dated 19.3.1980 suit property was allotted to her along with defendants 1 to 3? 2. Does plaintiff prove that she is in joint possession and enjoyment of the suit property? 3. Whether the defendants prove that the suit property is the ancestral property? 4. Whether the defendants prove that there was a partition on 20.3.1982 and in that partition a share was allotted to the plaintiff and she has received her share as stated in para 11 of the written statement? 5. Whether the plaintiff is entitled to 1/3rd share in the suit property? 6. Whether the plaintiff is entitled to mesne profits? 7. What order or decree? 6. The plaintiff was examined as PW.1 and Exhibits P1 to P3 were marked. The defendants neither chose to cross- examine PW1 nor they led any evidence. 7. When the matter is posted for arguments, neither plaintiff nor defendants urged their arguments and hence, the matter was posted for judgment. 8. The trial Court on the basis of the pleadings, evidence and documents available on record, answered the issue Nos. 1 and 2 in the affirmative in favour of plaintiff, issue No.3 in affirmative in favour of defendants and issue No.4 in the negative and awarded 4/36th share in the suit schedule property to the plaintiff. 9. 8. The trial Court on the basis of the pleadings, evidence and documents available on record, answered the issue Nos. 1 and 2 in the affirmative in favour of plaintiff, issue No.3 in affirmative in favour of defendants and issue No.4 in the negative and awarded 4/36th share in the suit schedule property to the plaintiff. 9. Being aggrieved by the same, the plaintiff is before this Court in appeal contending that the trial Court erred in holding that the suit schedule property is the ancestral property but it was the self acquired property of her father and therefore, the plaintiff is entitled for equal share. 10. On issuance of notice, service of notice respondent No.1 is held sufficient and respondent No.2 remained absent though the notice was served through paper publication and respondent No.3 is reported to be dead and appellant and respondent No. 1 and 2 are her LRs. 11. The appeal was admitted and the trial Court records have been secured. The arguments by learned counsel for the appellant is heard. 12. After having heard the learned counsel for the appellant and after perusing the records, the short point that arises for consideration is, Whether issue No.5 decided by the trial Court that the suit schedule property is the ancestral property is proper and correct? 13. Admittedly, the defendants have not led any evidence in the matter. It is the specific case of the plaintiff that her father Venkatanarasappa had purchased the property under a sale deed and thereafter, the said property was divided between the wives and children of Venkatanarasappa. The plaintiff and defendants No. 1 and 2 represented through defendant No.3 Padmavathamma was awarded half share in the suit schedule property and the remaining half was given to the share of Shamalamma and her son. The portion of the property allotted to Padmavathamma and her children is the suit schedule property. 14. The learned counsel for the appellant submits that the property was purchased by Venkatanarasappa and therefore, it was not the ancestral property in his hand. When he died, the self acquired property of Venkatanarasappa devolve upon his wives and children by succession. Evidently, the plaintiff and defendants No. 1 and 2 are the three children born to Venkatanarasappa and Padmavathamma. Admittedly, Padmavathamma was the second wife and therefore, it cannot be held that she is the legally wedded wife. When he died, the self acquired property of Venkatanarasappa devolve upon his wives and children by succession. Evidently, the plaintiff and defendants No. 1 and 2 are the three children born to Venkatanarasappa and Padmavathamma. Admittedly, Padmavathamma was the second wife and therefore, it cannot be held that she is the legally wedded wife. However, in view of the recent judgment of the Apex Court in the case of Revanasiddappa and another Vs. Mallikarjun and others reported in 2023 SCC Online SC 1087, the children of Venkatanarasappa are entitled for share. In view of the partition between the branches of Padmavathamma, Susheelamma and Shamalamma, the property that fell to the branch of Padmavathamma has to be termed as the self acquired property of Venkatanarasappa and at no stretch, it could have been held that it is the ancestral property. Therefore, the finding of the trial Court on issue No.5 that it is the ancestral property does not stand for any reasoning. While deciding issue No.5, the trial Court has not considered the fact that the property was purchased by Venkatanarasappa. It simply says that it is an ancestral property and absolutely no reasons are assigned by the trial Court to hold that it is the ancestral property. Therefore, the conclusion reached by the trial Court on issue No.5 is not sustainable in law. The suit schedule property which was partitioned between Padmavathamma and Shamalamma had not acquired the status of the ancestral property at any point of time. 15. Therefore, the finding of the trial Court is not sustainable in law so far as it relates to issue No.5 is concerned. As a consequence, the plaintiff is entitled for 1/3rd share in the suit schedule property in view of the demise of Padmavathamma on 11-6-2015. 16. Though the defendants have contended that a relinquishment deed had been executed by Padmavathamma, they have not adduced any evidence and there is no iota of evidence to show that defendant No.3 had relinquished her rights. Therefore, the appeal deserves to be allowed in part. Hence, the following: ORDER (i) The appeal is allowed in part. (ii) The impugned judgment of the trial Court in OS No.1743/1997 dated 20-02-2006 is set aside. Therefore, the appeal deserves to be allowed in part. Hence, the following: ORDER (i) The appeal is allowed in part. (ii) The impugned judgment of the trial Court in OS No.1743/1997 dated 20-02-2006 is set aside. (iii) The suit of the plaintiff for partition and separate possession of her share by metes and bounds is decreed to the effect that plaintiff is entitled for 1/3rd share in the suit schedule property. (iv) The rejection of the claim for mesne profits is confirmed. (v) Rest of the order passed by the trial Court remain unaltered.