In the High Court of Karnataka at Bangalore
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1 ® IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 16 TH DAY OF APRIL 2013 BEFORE: THE HON’BLE MR.JUSTICE ANAND BYRAREDDY REGULAR FIRST APPEAL NO.534 OF 2003 CONNECTED WITH REGULAR FIRST APPEAL No. 394 of 2003 REGULAR FIRST APPEAL No..669 of 2003 IN R.F.A.No.534 of 2003 BETWEEN: 1. Sri. Swamy, Son of Late Chandregowda, Major, 2. Smt. Puttamma, Wife of Late Chandregowda, Major, Both are residents of Palahalli Village, Belagola Hobli, Srirangapatna Taluk, Mandya District. …APPELLANTS (By Shri. K.V. Narasimhan, Advocate ) 2 AND: 1. Smt. Thimmamma, Wife of Late Thimmegowda, Major, Resident of Palahalli Village, Belagola Hobli, Srirangapatna Taluk. 2. Smt. Parvathamma, Wife of Naganna, since dead by her legal representatives are a) Naganna, Son of T. Mariyappa, Aged about 57 years, b) P.N. Yoganarasimha, son of Sri. Naganna, Aged about 32 years, c) Sri. P.N. Yadhukumar, Son of Sri. Naganna, Aged about 28 years, d) Smt. N. Jayalakshmi, wife of Kempegowda, aged about 31 years, resident of No. 1963, 4th Cross, K-Block, Kuvempunagar, Mysore – 23. e) Smt. N. Vijayalakshmi, Daughter of Sri. Naganna, Aged about 26 years, f) Smt. N. Ambika, daughter of Sri. Naganna, 3 aged about 24 years, respondent Nos. 2(a) to (c) and (e) and (f) are Residents of Palahalli Village, Belgola Hobli, Srirangapatna Taluk, Mandya District. [cause title amended as per the order dated 9.9.2009] 3. Sri. L. Prakasha, Sonof P.N. Lakshmayya, Major, Resident of Palahalli Village, Belagola Hobli, Srirangapatna Taluk. 4. Sri. Shivanna, Son of P.N. Lakshmayya, Major, Resident of Palahalli Village, Belagola Hobli, Srirangapatna Taluk. 5. Sri. P.G. Somashekara, Son of Gundappa, Major, Resident of Palahalli Village, Belagola Hobli, Srirangapatna Taluk. 6. Sri. Ningegowda, Son of Devegowd, Major, Resident of Palahalli Village, Belagola Hobli, Srirangapatna Taluk. 4 7. Sri. P.M.S. Gowda, Son of Palahalli Marigowda, Major, Drill Teacher, Vahini High School, Palahalli Village, Belagola Hobli, Srirangapatna Taluk. … RESPONDENTS (By Shri. T.N. Raghupathy, Advocate for Respondent Nos. 2 (a, c to f) Shri. G.S. Bhat, Advocate for Caveator/Respondent No.1 Respondent Nos. 3 to 7 and Respondent No.2(b) are served and unrepresented) ***** This Regular First Appeal is filed under section 96 of Code of Civil Procedure, 1908, with a prayer to against the judgment and decree dated 2.12.2002 passed in O.S.No.73/1989 on the file of the Principal Civil Judge (Sr.Dn.) and Judicial Magistrate First Class, Srirangapatna, decreeing the suit for partition and separate possession. IN R.F.A.No.394 of 2003 BETWEEN: 1. Smt. Parvathamma, Aged about 53 years, Wife of Sri. Naganna, Since deceased by her Legal representatives are a) Naganna, Son of T. Mariyappa, Aged about 55 years, b) P.N. Yoganarasimha, son of Sri. Naganna, 5 Aged about 30 years, c) P.N. Yadhukumar, Son of Sri. Naganna, Aged about 26 years, d) N. Jayalakshmi, wife of Kempegowda, aged about 29 years, resident of No. 1963, 4th Cross, K-Block, Kuvempunagar, Mysore – 23. e) N. Vijayalakshmi, Daughter of Naganna, Aged about 24 years, f) N. Ambika, daughter of Naganna, aged about 22 years, Appeallant Nos. 1(a) to (c) and (e) and (f) are Residents of Palahalli Village, Belgola Hobli, Srirangapatna Taluk, Mandya District. [cause title amended as per the order dated 16.02.2004] …APPELLANTS (By Shri. T.N. Raghupathy, Advocate) AND: 1. Smt. Thimmamma, Major, Wife of Sri.Thimme Gowda, Residing at Palahalli, 6 Belagola Hobli, Srirangapatna Taluk, Mysore District. 2. Sri. Swamy, Major, Son of Late Chandregowda, 3. Smt. Puttamma, Major, Son of Late Chandregowda, 4. Sri. L. Prakasha, Major, Son of Sri. Lakshmayya, 5. Sri. Shivanna, Major, Son of Sri. Gundappa, 6. Sri. P.G. Somasekhara, Major, Son of Sri. Gundappa, 7. Sri. Ninge Gowda, Major, Son of Sri. Deve Gowda, 8. Sri. P.M.S. Gowda, Major, Sonof Sri. Mavi Gowda, Respondent Nos. 2 to 8 are Residing at Palahalli, Belagola Hobli, Srirangapatna Taluk, Mysore District. …RESPONDENTS (By Shri. G.S. Bhat, Advocate for M/s. G.S. Bhat and Associates for Respondent No.1 7 Shri. K.V. Narasimhan, Advocate for Respondent No.2 Respondent Nos. 3 , 4, 6 to 8 are served Notice to respondent No.5 is dispensed with) This Regular First Appeal is filed under section 96 of Code of Civil Procedure, 1908, with a prayer to against the judgment and decree dated 2.12.2002 passed in O.S.No.73/1989 on the file of the Civil Judge (Sr.Dn.) and Judicial Magistrate First Class, Srirangapatna, decreeing the suit for partition and separate possession. IN R.F.A.No.669 of 2003 BETWEEN: L. Prakasha, Son of P.N. Lakshmayya, Resident of Palahalli Village, Belagola Hobli, Srirangapatna Taluk. …APPELLANT (Shri. L. Prakasha, party-in-person) AND: 1. Thimmamma, Wife of Late Thimme Gowda, Aged about 60 years, Resident of Palahalli Village, Belagola Hobli, Srirangapatna Taluk. 2. Swamy, Minor, Son of Late Chandre Gowda, By guardian natural mother Respondent No.3 Puttamma. 3. Puttamma, Wife of Late Chandre Gowda, Aged about 45 years, 8 4. Parvathamma, Wife of Naganna, 5. Shivanna, Son of P.N. Lakshmayya, 6. P.G. Somashekara, Son of Gundappa, 7. Ningegowda, Son of Devegowda, Respondent nos. 3 to 7 are Major, Resident of Palahalli Village, Belagola Hobli, Srirangapatna Taluk. 8. P.M.S. Gowda, Son of Palahalli Marigowda, Aged about 30 years, Drill Teacher, Vahini High School, Palahalli, Belagola Hobli, Srirangapatna Taluk. …RESPONDENTS (By Shri. G.S. Bhat, Advocate for M/s. G.S.Bhat and Associates, for Caveator/Respondent NO.1 Shri. K.V. Narasimhan, Advocate for Respondent No.2 Respondent Nos. 3, 5, 6 are served Respondent no.4 – abated) ***** This Regular First Appeal is filed under section 96 read with Order XLI Rule 1 of Civil Procedure, 1908, with a prayer to against the judgment and decree dated 2.12.2002 passed in O.S.No.73/1989 on the file of the Civil Judge (Sr.Dn.) and 9 Judicial Magistrate First Class, Srirangapatna, decreeing the suit for partition and separate possession. These Regular First Appeals, having been heard and reserved on 18.03.2013 and coming on for Pronouncement of Orders this day, the Court delivered the following:- JUDGMENT These appeals are heard and disposed of by this common judgment, as all the appeals arise out of the same judgment. 2. The parties are referred to by their rank before the trial court for the sake of convenience. 3. The first respondent in the appeal in RFA 534/2003 was the plaintiff before the trial court. The suit was one for partition and separate possession of the one-third share claimed by the plaintiff , in the suit schedule properties. The trial court decreed the suit and has granted a two-sixth share – the defendants have filed the above appeals. 10 The following is the genealogical tree of the family :- Golangana Dasappa Huchegowda Shivamma Puttaboramma (1 st wife of Huchegowda) (2 nd wife of Huchegowda) Thimamma Chandregowda Parvathi (Plaintiff) (Def.No.3) Puttamma W/o Chandregowda (Defendant No.2) Swamy (Defendant No.1) 4. The appeal in RFA 534/2003 is filed by the defendant nos.1 and 2. Defendant no.1, Swamy, is the grandson of Hutchegowda and the son of Chandre gowda. Defendant no. 2, Puttamma, is the widow of Chandre gowda. 5. The appeal in RFA 394/2003 is filed by defendant no. 3, Parvathamma, the daughter of late Huchegowda. 11 6. The appeal in RFA 669/2003 is filed by defendant no. 4, L. Prakash, who is the purchaser of land bearing Survey no. 447/2 , measuring 61 acres, one of the items of the suit schedule properties. The case of the plaintiff was that, Golangana Dasappa had a son, Hutchegowda, who had two wives, namely, Shivamma and Puttaboramma. The plaintiff, Thimmamma, was the only daughter of Shivamma. Puttaboramma, the second wife of Hutchegowda had two children, Chandregowda & Parvathamma. Defendants 1 and 2, Swamy and Puttamma are the son and widow, respectively, of deceased Chandregowda, who had pre-deceased his father, Hutchegowda. Parvathamma is defendant no. 3. The plaintiff claimed that all the suit properties are the ancestral properties of Hutchegowda. After his death, the plaintiff claimed that she was entitled to one-third share in the suit properties. It was contended that the third defendant had sold some of the properties without the consent of the plaintiff or the other members of the family. 12 The first defendant admitted the relationship of the parties and supported the case of the plaintiff. It was also contended by the said defendant that apart from the suit schedule properties, deceased Hutchegowda had held one more item of land measuring 6 acres and sought that the same be directed to be included in the suit schedule. It was however, denied that the plaintiff was in enjoyment of the suit properties, jointly, with the first defendant. It was claimed that while Hutchegowda had a half share in the suit properties, Chandregowda was entitled to the remaining extent. After the death of Hutchegowda, the plaintiff- Thimmamma, defendants 1, 2 and 3 were entitled to an equal share in respect of the properties fallen to the share of Hutchegowda. On that basis the first defendant claimed partition and separate possession of his two-third share in the suit properties. As also the item of land not included in the plaint. Defendant no. 2 contended that she had filed a suit in OS No.44/1988, for partition and separate possession of a three- fourth share in the ancestral properties, as the next friend of her son, the first defendant.