Smt Rudramma W/O Late Nagendrappa vs Sri Dasharathappa S/O Late … on 1 June, 2009

IN THE HIGH COURT op' KARNATAKA AT sANGA1.a1§:i:'_T~~% V

DATED THIS THE 161: DAY OF JUNE 29¢?" :'   *' 

BEFORE

THE HON'BLE MR. JUSFICE} A;sT13oi?A._i~:NA  
REGULAR srscom A?PE,AL rm. "465; 

BETWEEN :

1 RUDRAMMA '  ._ 3. _ ~
W10 LATE NAGENDRAPPA   
AGED ABOUT 77 YEARS"  . '

2 UMMA1=é*r:iY  ''
sgo LATEJPEAGENLERAPPA .
AG..gE1:>.AoBU'rj3.? ";'EA~!!?_S"' .. ' -

3 MU§é??.HAPPA"w--   . 4 J
s/0 Lain: NAGEND-ARAPPA
map AB0I}'}"3'7 YEARS

 A V. §LLi;'nR'E..«REs1D':§Sié AT PHREGANUR
= --. 1VvI1,:;a;;§s;%,"c§1ANNAG:R: TALUK  APPELLANTS

(*5? '9}2_-
CHANNAGIRI TALUK I

3 RAJAPPA
AGED ABOUT 53 YEARS

4 USHA D/O RAJAPPA
AGED ABOUT 26 YEARS

5 MANJUNATHA s/0 R'A;iAP?A__  L
AGED ABOUT 2: YEARS _ 5 :

REsP0NDgz~£1jS'-3 TC!'5ART£§ ,  V:
R/A GUNDERI;HO£.ALKERE frzxwx 
CHITRA.-D'uR.Qa.vLw1s'rR;;:t:;~"~..   *~ 

6 ANUSUYAM_MA--1:;:._ __ 
w/16:) NANJU.NDA'?PA.  .
AGED ABOUT YF._ARS""--._ '
R /A*..1AKA'1'HI Ko..Pi">A,' VSHLMGGA

T SARGJAMMA   
Wm LATE MURUGENDRAPPA
.-.'t{Z3ED' ABOUT  }'__E£.RS

V.  ':8 LA ' ».i51e.a.é;ANNA-~..

 fs;o"L.A'rE*:s5UgUG;:NmeAPPA
 Z?n{3E'DfA.I30I.j'i"'23 YEARS

  9  sAbrrH(::S?HA

Sf'? LATE MURUGENDRAPPA
AGE?) ABOUT 21 YEARS

. :réE=sPeNDENTs 7 TO 9 ARE
~ ._ REESIDING AT CHIKKALAGHATTA
 VILLAGE, SHFTRADURGA DIST.  RESPON£3EN"'I'S

"mi? SR:: BASAVARAJ PGOJAR s, ADV. FOR

I{AC'zA¥I}EE&J GOWDA PATXL, ADV. FORE-1'1 85 '3')

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TEES APPEAL IS FiLED U/S 100 CFC AGAENS'}' 'TIei'E

JUDGMENT 85 DEGREE DTD: 29.07.2005 PASSED Es: 'E.A.E:>.'=.
50/2003 ON THE FILE OF' THE i ADDL. crvn, JUD_(3'E'{SR_.*ED_N.}-V 
DAVANAGEEE, ALLOWING THE APPEAL AND sE'rr1NGA.As!i3E '
THE JUDGMENT AND DEGREE DTE) 3.3.2003 _PA.SSvEI3"--1N._OS " .,
373/94 ON THE FILE OF' THE CIVIL 3.99.33 {e'IR.DN1--L&. JMFQV;

CHANNAGIR1.

This Appeal coming on for  dE:,y_,Afhe" 'V

delivered the foflorwing ; ' _ .
Junemeiw: 
The appeflants herei.fi--:3reA_V_th;ew  No.1,2 and 3

in O.S.No.373/1994. Th¢.,fi:{4st.,x~c§{s~;pQ;n<'1egit'~%1:¢x7Eia2. was befom

the   said seeking for a judgment and
decree   possession of the suit

scheduie  ,TI'V['he';:es};$'c:1;t j f   '

ancesttrai property, has altered ti1e:"1.q1i.é_i:ti1Ixi'~.Qvf 
against the one granted by 
share to the piaintifi' andfithc  'I;.1'1:::-:1:;--;§:A1'e;v1::;r1a1:1ts 1
to 3 are not ouly  t1L;¢   shares as done
by the trial Couxt and th4f:.VLe:§»7§::r  but is also
aggieved by    property is the
ancezstral   family.

  the appeal on 24.7.2007
has  fine  question of law for
co1:x£'*5f'.1§.§I*e3t+i§0n.".V  ' .' 

VA '   Lower Appellate Court was

A  V Ti  fgm in holding that the pIaintifl' rs

 kaarfifion and separate possession of
""'---9/"§V8'"'*'s:hare in the suit schedule property ?'

A'   in the light of the said judmcntl and the

K   question of law flamed by this Court, a brief

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reference to the facts invelved would indicate  M

the reiationship between the partjee; 'Ibex 

dispute inasmuch as the plainfifl 2 2  

3 are the sons of late Nagendfep:;:iat_white the  Viiefefident 'V

is his wife. The defendants 4,   'd:a.ugi3teIs of
late Nagendmppa. The   widow of the
deceased son of   8 and
9 are the  4'   born to his
deceased    p1a1'ntifi' was before
the    being one of the sons of Late
Nagendratipaétwvae  shape in the suit schedule

property; _ S1'4J".vt(:€!_  xtérlefioztship and the fact that the

 V.   AoAg1'g:n'  owned by the grandfather of the

  the enly question. would be the

naniret of fritefence set up by the contesting defendants

 deferniant Nos. 1 to 3. It is their contention that the

   son of late Nagendrappa viz., the husband of the

 .._" {:iefe;11dant No.7 had executed a xelinquishment deed in

  gespfict of the property in question after receiving a sum of

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Rs.10,00G/~ and therefore, he would not be ~ V.

share. Even in respect of the plaintifi", it is coniefided  H

they have been residing separately f;)f"ti:1e.   

and as such the plamtifi cannot   to. 

member of the joint family.  M    

5. While noticing the 1'iva1__e6nte1;tionS;«tE1e  Court
has asclverted to the evi<'1e1zikf:e'o'.f Rfe{;"1~1V.yiv,}";~et;1e plaintiif and
also the evidence, of  :12  and

Chidanan:  _ ieiied on at Exhs.P1 to P6
also  "been.  regard to the properties.

Further the to D4 is also taken note

 ,_o_f.  at_1a1yeii:g...tb_e said evidence, the trial Court has

the }::13::i1«:2113.sioxt;. that even though it was contended

that. tiiere jxeiijzquishment deed, the same has not been

  the learned counsel for the appellant

x V' :€:0xI1¥ie3:gds fhat this aspect of the matter has been admitted by

--   considering the fact that the documents said to

T " lsém the nature of Ielinquishxnent deed has neither been

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produced and marked not has anything been indjevatedittto

show that the same has been Iegistered in  _

iaw, the same does not emme to the   u  

defendants to put forth such cont£;;1fiQ.ne«A.éa_13;d_   e

trial Court was justified in zejectisrgg the    3

6. Further with   .,eex;tenfiei1  the
piaintifi" was residing    Court has

appmpziately n;::iiL~:-3:13.' the: 1neéi213*'wieetsixiitggtsepaxately would

not indit§s1te_ the __severance of status of the joint

famfl y  vetliéiezeferewttxe ssiirinéeententioxl was rightly rejected

by the; trisj   "  "

A   'Inseef%.:r_ as the said findings with regard to the

safiiti*e'ef ._ fl*am1ly' and the entitlement of a share in

V . the EIIOPCITY, the Lower Appellate Court has also

  these aspects of the matter and has re»-

 the evidence and has come to the conclusion

Vt   the trial Court was justified in this regemzl. Insofar as

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the said finding is concerned, evczn this  

considering the said aspect and on noticing  .

Courts below have Inferred to the I ;:fsI;i_(1£=:n.<:_t" "av%,ii1af$1;:v"9n " " 'V

Iecorcl and have rendered a finding 6: ra«;m¥itAh=j;§ega":d 

joint status of the family. The'TVpz:(§pe1'Vt2y-V_1§i::ir;g 

property is for the benefit of the  df family.
Hence, the said finding   be interfered

 __ 'q1:fc:vs_tio}:1 that would arise for
consflerafiofi' is   the allomcnt of share as

made ;by _the 'V   The Lower Appellate Court

   'I131'  was not jusfificd in denying the

  and in that regard, the trial Court

was not  in allotfing om-*:--sixth share has come to the

  txsnclusitsjgii' that even if the daughters ware maxxitad prior to

    into force of the Karnataka amendment Act in

V'  year 1994, tht: Court below has taken mate of the fact

 ihc daughters would be entiticé $0 a sham in the

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property that would be allottsd to the share of " 

fiatber viz., Nagcndrappa on notional partzitiozlh  

share has been allotted to the daugh5e£~s"as. wan. .; <It::j;st.in_t1Ai:2at

context, the Lower Appc§}atcV   étjtjté ~ ft} x 

conclusion that the share to   48th
share in the instant cva-ag. "'h§1vinig«  this
aspect of the matter what'   -I.1o1;i<:ed is that
even though   a 'providing for
entitiement  3   was qualified by
the evefits Q1;   into force of the Act, the
subs<:q13,etitV._  made to Section 6 of the

Hindu; 3ugccs?sg:»nV_' Ad {rouge}. indicate that the female heir

  'V ' -so 'v:'rnuEd:"'t"bé trea. ¢_ tad as a coparcencr.

A   Aéonsiiicfing the nature of amendment to the

 '~___VE{a1*nAatak.a;_ :Act as well as the Ccizntral Act, the iaarned Juégc:

    in the case of SUGALABAI vs GUNDAPPA A

 ,._fiMARAQ1 AND OTHERS (ILR 2007 Kar 4790) has held that

 , Jthe amcndmcnt made to the Central Act would apply even to

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pending proceedings. Hence the contention of the learned

counsel for the respondent by placing reliance on theedsaid

judgment would have to be accepted. If that be ” H

instant case, independent of what has been ‘

Lower Appefiate Court, shares will b.é1iie”tc. made”

in View the amendment made the Act. d’

if that aspect of the matter in the
deceased Nagendrappa, there ecfiaaieeners who
are entitled to a sham 5Tjtsi§:.:eV Nagendrappa

the flatlter to partition, on notional
partition his Wife ‘(Efi defend_ani) though not a coparcener will

be entitied held by the Apex Court in

“GURB.{?A9v. ..K%iAi~i:3A}’>PA MAGDUM vs. HIRABAI

“”KHA:?5DA}3P§§»v4Y9i§($.fiUM AND ores [(1978) 3 sec 383] and as

snch.__4″V£/Qfhdsfiaie would have to he aifiotted to his sham.

file piajntifi” and defendants 3. to 6 Weuld be

to 1/9&1 sham each and the defendants ‘3’, 8 and 9

Weauld be entitled to 1/9* share. Since

‘4 u*.N’a.g€11drappa has died prior to the partition, out of the

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notional share allotted to him, ail his legal heirs .

entifled to a sham each and as such ‘Véham, V’ ” ”

the plaintifi” and defendants 1 to 6 ‘bejeVe1’3;i:it;1et’:1 “f::’.1′ ” :Ij;–grn-:;’

share and the defendants Nude?’-.. §19o1.1_.1§1

entitled to 118th share in’ asdditiqeé iheir if each
(1/9* +1/ath in 1/9* =–*e%e%%2t’t/’7’i??’ : in efiem, the
piaintifi’ and defendantsvA1..te:–6 1/8*” share
each in the 7 to 9
are together 1′ ffi terms of the above,
the is answmed partly in
favour of in favourof the defendants
since of shares asmade above.

V “I12 above, the appeal stands disposed of

shall draw up the iaeliminaxy decree

% 35/…

Judge

” Alec/bms