1 in the High Court of Karnataka at Bengaluru
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1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 25 TH DAY OF FEBRUARY, 2015 BEFORE THE HON’BLE MR.JUSTICE B.S.PATIL R.S.A.No.838/2010 c/w R.S.A.No.1260/2010 IN R.S.A.No.838/2010: BETWEEN 1. S.R.KRISHNA MURTHY S/O LATE S. RAMAKRISHNA RAO, AGED ABOUT 60 YEARS, NOW NO.330, 6 TH WARD, VINAYAKANAGAR, GOWRIBIDANUR TOWN. 2. SMT. S.R. NAGARATHNAMMA, D/O LATE RAMAKRISHNA RAO, & W/O LATE RAMAMOHANA RAO, AGED 58 YEARS, R/O KANCHISAMUDRAM VILLAGE, LEPAKSHI MANDALAM, HINDUPUR TALUK. ... APPELLANTS (By Sri.RAHAMATHULLA SHARIFF, ADV.) AND 1. NAGAPPA S/O CHIKKANAHALLI NANJAPPA, SINCE DEAD BY L.Rs. (a) H.N.CHANDRASHEKAR S/O NAGAPPA AGED ABOUT 50 YEARS (b) H.N.NATESHA S/O LATE NAGAPPA AGED ABOUT 43 YEARS 2 (c) H.N.MAHESHA S/O LATE NAGAPPA AGED ABOUT 35 YEARS ALL ARE R/AT SADASHIVA BADAVANE, HIREBIDANUR VILLAGE, KASABA HOBLI, GANGASANDRA POST, GOWRIBIDANUR TALUK, CHIKKABALLAPURA DISTRICT. 2. S.R. ANANTHANARAYANA, S/O LATE RAMAKRISHNA RAO, SINCE DEAD BY L.RS. (A) SRI RAMAKRISHNA AGED ABOUT 35 YEARS S/O LATE S.R.ANANTHANARAYANA (B) SRINIVASA AGED ABOUT 30 YEARS S/O LATE S.R.ANANTHANARAYANA (C) SMT.VANAJA W/O PRASANNA KUMAR D/O LATE S.R.ANANTHANARAYANA AGED ABOUT 30 YEARS R/O GANGASANDRA VILLAGE, KASABA HOBLI, GOWRIBIDANUR TALUK CHIKKABALLAPUR DISTRICT. (A) & (B) R/O CHIGATAGERE VILLAGE, KASABA HOBLI, GOWRIBIDANUR TALUK CHIKKABALLAPUR DISTRICT. (AMENDED VIDE COURT ORDER DT.29.1.2013) 3. R. RAJANNA, S/O LATE RAMAKRISHNA RAO, AGED 60 YEARS, R/O HIREBIDANUR VILLAGE, GANGASANDRA POST, GOWRIBIDANUR TALUK. ... RESPONDENTS (By Sri.HARISH H.V., ADV. FOR R1(a-c), SRI I.THARANATH POOJARY, ADV. FOR R2(A-C) 3 IN R.S.A.No.1260/2010 BETWEEN S.R.KRISHNA MURTHY S/O LATE S. RAMAKRISHNA RAO, AGED ABOUT 60 YEARS, NOW NO.330, 6 TH WARD, VINAYAKANAGAR, GOWRIBIDANUR TOWN. … APPELLANT (By Sri.RAHAMATHULLA SHARIFF, ADV.) AND 1. NAGAPPA S/O CHIKKANAHALLI NANJAPPA, SINCE DEAD BY L.Rs. a. H.N.CHANDRASHEKAR S/O NAGAPPA AGED ABOUT 50 YEARS b. H.N.NATESHA S/O LATE NAGAPPA AGED ABOUT 43 YEARS c. H.N.MAHESHA S/O LATE NAGAPPA AGED ABOUT 35 YEARS ALL ARE R/AT SADASHIVA BADAVANE, HIREBIDANUR VILLAGE, KASABA HOBLI, GANGASANDRA POST, GOWRIBIDANUR TALUK, CHIKKABALLAPURA DISTRICT. 2. S.R. ANANTHANARAYANA, S/O LATE RAMAKRISHNA RAO, SINCE DEAD BY L.RS. (A) SRI RAMAKRISHNA AGED ABOUT 35 YEARS S/O LATE S.R.ANANTHANARAYANA (B) SRINIVASA AGED ABOUT 30 YEARS S/O LATE S.R.ANANTHANARAYANA 4 (C) SMT.VANAJA W/O PRASANNA KUMAR D/O LATE S.R.ANANTHANARAYANA AGED ABOUT 30 YEARS R/O GANGASANDRA VILLAGE, KASABA HOBLI, GOWRIBIDANUR TALUK CHIKKABALLAPUR DISTRICT. (A) & (B) R/O CHIGATAGERE VILLAGE, KASABA HOBLI, GOWRIBIDANUR TALUK CHIKKABALLAPUR DISTRICT. 3. R. RAJANNA, S/O LATE RAMAKRISHNA RAO, AGED 60 YEARS, R/O HIREBIDANUR VILLAGE, GANGASANDRA POST, GOWRIBIDANUR TALUK. ... RESPONDENTS (AMENDED VIDE COURT ORDER DT.21.1.2015) (By Sri.HARISH H.V., ADV. FOR R1(a-c), SRI I.THARANATH POOJARY, ADV. FOR R2(A-C) THESE APPEALS FILED U/S 100 OF CPC , AGAINST THE JUDGMENT AND DECREE DATED 15.12.2009 PASSED IN R.A.NO.21/2006 ON THE FILE OF THE PRESIDING OFFICER, FAST TRACK COURT, CHIKKABALLAPUR, DISMISSING THE APPEAL CONFIRMING THE JUDGMENT AND DECREE DATED 24.12.2005 PASSED IN O.S.NO.54/1990 ON THE FILE OF THE CIVIL JUDGE (JR.M, DN.), GAURIBIDANUR. THESE APPEALS COMING ON FOR ORDERS THIS DAY, THE COURT DELIVERED THE FOLLOWING: JUDGMENT These appeals have been admitted to consider the following substantial questions of law: 5 The substantial question of law that have been framed for consideration after hearing both the parties are: 1. Whether the Court below have committed an error in recording the findings that S.R.Ananthnarayan and R.Rajanna had 1/4 th share items in the Suit Schedule Property upon death of Rama Krishna Rao, which ignores the fact that Smt. Subbamma widow of Rama Krishna Rao was alive at the time when Rama Krishna Rao died and also when the sale deed was executed as at Exs.P1 and Ex.P2- 1974? 2. Whether the Court below erred in holding that there was no material to establish that Gundappa was one of the sons of Rama Krishna Rao? Appellants are defendants 3 and 5 before the Trial Court. The trial Court has partly decreed the suit for partition filed by the 1 st respondent. The lower appellate Court confirmed the same. Aggrieved by the same, this Regular Second Appeal has been filed. 2. It is contended by the learned counsel appearing for the appellants that Smt. Subbamma was 6 the absolute owner of the Suit Schedule Properties. There is absolutely no material placed by way of evidence or any oral or documentary evidence before the Trial Court to prove the said plea taken. In the absence of evidence to probabalize this version, both the Courts below have rightly held that there was no material produced to show that Smt. Subbamma was the absolute owner of the Suit Schedule Property. 3. Indeed the records would reveal that particularly Exs.P7 and P8 Record of Rights show that property stands in the name of joint family and suit schedule property was a joint family property and upon the death of Rama Krishna Rao, the family acquired the same. After the death of Rama Krishna Rao, his property devolved in favour of other members of the family. Names of Smt. Subbamma and her children have been entered in the Revenue Records showing that the properties were joint family properties. Both the courts below, after appreciating the records, have found that the property which is the subject matter, of the suit is an ancestral 7 property held by the joint family. In the absence of any evidence to the contrary adduced by the defendants, the concurrent findings of facts cannot be disturbed exercising jurisdiction under Section 100 of CPC. 4. In so far as Gundappa being one sons of Smt. Subbamma is concerned, he was not made party to the suit for partition. It is seen from the findings recorded by the Courts below that it was the specific case of the appellant that Gundappa was not seen --- an there was no person in existence by that name as son of Rama Krishna Rao and Subbamma. Even though such contention was taken and even in the wake of specific issue framed regarding non-joinder of Gundappa to the suit for partition, the defendant did not place any material before the Court to establish that there is a son by name Gundappa left behind by the Rama Krishna Rao. In her evidence, Subbamma does not depose regarding the legal representatives of the Gundappa and his whereabouts. Indeed the plaintiffs have made efforts to take notice to the address of Gundappa as furnished 8 during the pendency of the suit by the defendants themselves, but the said notice was returned with a postal shara with no such person was found in the address. As a defendants failed to produce the birth certificate or the ration card or voter list or any such documents to show that such person by name Gundappa was in existence and was the brother and was left behind as one of the sons of Rama Krishna Rao, both the Courts below were right and justified in decreeing the suit. Therefore, the substantial question of law framed in this regard deserves to be answered against the appellant. 5. Insofar as the findings recorded by both the Courts below holding that plaintiffs were entitled for partition and separate possession of 1/4 th share on the premises that their vendors S.R.Ananthnarayan and R.Rajanna were entitled for 1/4 th share in the joint family property is concerned, both the courts have lost sight of the fact that Subbamma, widow of Ramakrishna Rao was also a surviving heir left behind by Ramakrishna Rao along with three sons and a daughter. She was alive 9 when a portion of property was sold in favour of the plaintiff. The vendors of the plaintiff namely S.R.Ananthnarayan and R.Rajanna could have sold only their share in the joint family property and not more than that. Therefore, the extent of share of the two sons S.R.Ananthnarayan and R.Rajanna is required to be worked out as on the date the sale was effected. Notional partition is required to be resorted to. Had Ramakrishna Rao been alive and a partition were to take place, he would have got 1/4 th share along with his three sons, who would also get 1/4 th share each. Out of the 1/4 th share, which deceased Ramakrishna Rao would have got, his sons, widow and daughter would be entitled to get equally. Therefore, the vendors S.R.Ananthnarayan and R.Rajanna would be entitled to alienate only that share as worked out herein above in favour of the plaintiff. Therefore, to this extent, the preliminary decree drawn which is under challenge requires to be modified. Therefore, it is made clear that the entitlement of the plaintiff would be only to the extent of share which 10 S.R.Ananthnarayan and R.Rajanna would have got and not beyond that. Accordingly, the substantial question raised is answered. 6. With regard to the contention urged by the learned counsel for the appellant based on Section 14(1) of the Hindu Succession Act urging that Subbamma became the absolute owner of the property as she was in possession of the same, I do not find any foundation in the pleadings for this contention.