1»: THE HIGH coum' on KARNATAKA AT
DATED THIS THE 18TH DAY OF FEBRUA}.?I'!.."2%0(:)§:>::: 1 A; "
BEFORE
THE HONBLE MR. JUS'I'ICEK..I§I. V
.R_.§.A. No. 43:sM"o§'_~;>_o03
1 BASAVANNA
s/0 LATE MA'D__APPA""' ; % % =
40 ms, R/o:13HANAGALL1%%v:LmGE
MYSORE"TALUK:; N1Y.3..0RE ~ms*r %
(BY sR1:1L1 Q AB-.vocATE )
AND:
1 Lwmnfivmépg
._ 0% ._Ci-EILLAREVANGADI MADAPPA
A T'sI1§a::E"~!)'%:é§:a:AsED BY ms
H (A) 'GURULINGAPPA
3/9 LATE MAI-IABEVAPPA
.% " MAJOR, R/O NO 2365,
"MAD-HWACHAR ROAD
K 12 MOHALLA, MYSORE
(B) MAHADEVASWAMY
S] 0 LATE MAHADEVAPPA
MAJOR, R/O NO 2365,
MADHWACHAR ROAD
K R MOHALLA, MYSORE
gfill
(C) SHIVAKUMAR
s/0 LATE MAHADEVAPPA
MAJOR, R/O N0 2365,
MADHWAGHAR ROAD
K R MOHALLA, MYSORE
(D) NAGALAMBIKA V
W/O CHANDRASHEKARX' « «_
I)/O LATE MAHADEVAPPA ..
MAJOR, R/O N0 2365,
MADI-IWACHAR R0;-iD~.._V '-
K R MOHALLA,
c/0 MEHABOOB _
MAJOR, PROPRIETOR,!. V
G.M.P. CYCLE. if
2336/2,.'?'IfiC.I§QS'S;_""-..,.__ .
MmHwAcHARRo.w-.
K 12 MCJHALLA,
MARIYAPFA 1} "
.1yiMoR., R/3...gI~EOP NO 2386/1,
f «, _7TH'"'CRQ'€-.3, MADHWACHAR ROAD
K13 MYSORE - nmsmn
VIBE C.O.
DT.26.7.04
YELWPA
' AA O"C"HILL.ARE ANGADI MADAPPA
" V VMAJGR, R/0 NO 2386,
' 'EEADHWACHAR ROAD
K R MOHALLA, MYSORE.
S12-IANTHAMMA
D/O LATE MADAPPA
w/0 DYAVANNA
MAJOR, R] 0 DARIPURA,
JAIPURA HOBLI
TALUK AND DIST MYSORE
RESPONDEI§¥'I'S* "
(BY SR1 : K s RAMASWAMY IYENGAR, ADvQ¢g§;giA'M%){ % " A'
RSA FILED U/S.l0O OF A(}AiNSfi"%wfi1jH E_
JUDGMENT AND DEGREE DATED 15.3 .2003'~PASSED
R.A.NO.244/1993 ON THE FILE OF I AIJDL'; CIVIL
JUDGE (SR.DN.), MYSORE, ' PAR'rLY'~ AL;.ow11eGWrHE
APPEAL AND SE'i'TING ASIDE"=j1'HE JUD_GMEN'Ef AND
DEGREE DATED 25.8.93 PASS;-;D_'»m'vVQ.s.N0.47819o ON
THE FILE OF THE PRL. I '_M'~!JNS:IFF,: MYS()RE.
THIS RSA IS COMING o:1§I':%t:):2 THIS DAY,
THE COURT DELISIEREI)"FHE..fP{)LL{)Y€n'IN§}i'4
.... _ ' u
'I'hi$ St'$co1§xi- aga311s' t the judgment
and decree 1.5.%o3%;2o63 passed by the 1~=: Additional
cm Jgidgga; (v$r.DI;.);"""2fiysore, in RA. No.244 of 1993,
V$iir1§:<=:ét*¢'7 ti11:i{§':r;:V:t.'ie~:J'i;.ci@ent and Decree elated 25.08.1993
-- E Munsifi} Mysore, in O.S. No.478
- i .. « .4 _éf..,1990, modified.
' I3} Appellant is the 23*' plaintifi before the 'l'nal'
T Appellant and his sister med the suit only
a ié.ga1':ast their Umzic Mahadevappa for mrtition and
separate possession of their share in the suit scheduke
properties. Item No.1 of the Schedule is house
beaxing Door No.238q1and item No.2 is
No.23!-36 both situated at Madavaotxar u " =
However, subsequently, the 2"" -
occupation of Item No.1 and' arxotiiee,
Yellappa were impleaded as 2 suit
3) The case of the piaii1t~3i?s:'in:_:I1t§IId1;ngA' VA
Schedule Property as a whole fie'
before the partition _ag_e, the shop
portion of time ivetnong thtee
brothers, 04.06. 1947,
ailotted with two
shops 2336/2, whereas the house
portion was of the mother. He further
deed dated 06.04.1979, the
of for leg! necessities sold the mrtien
V p him under the partition Therefore,
é property is bmidlnggw on the p1ammfe' ' .
e circumstances, he sought for diemissal of the
5) In the light ofthe pleadings of the mties, the
/7
Triai Court framed the following issues» //
18%
Whether the Flaintifis Prove that ' 1
is ma1n1:a2.na' ' me without'
cancellation of the
06.04.1979
execuugby ”
favour of the aefcmaxafi
Whether the ,_ mm
in joint possession
with tggeaefqatida-as ma%%me,¢o.m fee
._as 3i3jj«3:i1’§iéiént?
that the sale
‘hy’1.;£due immense and
‘does gateway any right to the
. _ défen;_:’iant’–“$uit properties?
hgthef A defendant proves that the
1 portion was divided among the
and the shop premises
Nos. 2386/1 and 2386/2 £311 to
” share of the plaintifl’s fither?
Whether the plainfifis are entitled to past
means profits of Rs.758/– 033%?
/W.
vi) Whether the plaintifis are entitled
share: in the suit propertim? If so, ”
Istheirshare?
Vii} What reiiefs are the 3 ‘
i} Whether the defengiafita. L2 the
tenants in t;e§rin;g%f*Ne.23s5/2 and
2386/1’? T =
ii) receiving’ ‘ rents
desmaams»2 3 and compeiling
N<$:.3';tx:VVpga;;v'reaf£Vf:~§'vvtfo_hir:;?'
6) evidence, the trial Court by its
judgmegat and ude:§1fee.’dafed&§5.O8.93, answered Issue No.1 in the
am :mA suit of the p1aintifi’ is mainmigmble
of the Sale Deed dated 5.4.1979,
but Iéséue Nos. 2 and 3 in the neytive holding that the
‘ ” –;V3VVl’.’«.e*s;.,i,AA1:1VtT:Lifi’:;-1.’ hive failed to prove that they are in joint possession of
A preperfies and they have further failed to prove
t.bat% the Sale Deed is vitiated by umue influence. On Issue
VA “$0.4, the Trial Court held that the 1” defemant ms proved ttmt
(3 .
V
the shop portion was divided among three brothers and the shop
premises bearing No.2386/1 fell to the share of t1’l8;}’)1fiI.iIltiES
father. In that View of the matter, the trial Court
No.4 in the amrxnative. Having rcgaxd to the
that the shop premises was
under the partiu’oI1, the trial Court 1’tIon.”t1x1e ‘A
suit schedule was an ancestral haiids
of Madappa, as such, ‘”Msdap}5s” ‘”I._l’O a bsoi1 3.te right to
alienate the said pmpertf V by legal
necessities and s:ii:c§ j’sthei§e vgzss’ on the part of
Madappaio property, it was held that the
sale deed is not binding on the 2’1′
F pzaintifi; ‘ As the being the daughter of Madappa and
‘ ‘-\’\o., ‘;:;s”5 as on
1/ even much prior to 1992, the trial Court hcki
shsis to question. the alienation efiected by her
V V’ View of the matter, the Trial Court decreed the
ma deszams that the 2nd pminsfi is entitled for partJ;t1o’ ‘ n
possession of 95 (halt) share in Item No. 1 and 1/6*’
T in item No.2. Being aggrieved by the said judment and
«o
decree, the 1″ defendant Mahadevappa filed appeal before the
court of Civil Judge, (Sr.Dn.) in RA. of .244 of 1993.’ .
7) Tm First Appellate by
appeal, allowed the appeal in if
judgment, the First Appellate
10
for consideration.
i)
Whether the A-;3._Ei’I1t§Afl’s;;_ vgiriweezhet the suit is
maintainable of
the gaze aeec1dat¢;a .;)e.;e4u.19%r9 executed by
in ef the defemant?
“–Whe&1e13′:’f11e prove that they were in
joi1;i;t._ peeeefiéseon of the suit scheduie
” eepropei-tiee the defendant and the Court fee
ggexafiorxed payable and suficient?
” ei’ the p1aint1fi3gp’ rove that the sale deed ‘m
_ W
by undue influence and does not
* _ eonvey any right to the defendant in the suit
properdee?
Whether the defendant proves that the shop
portion was divided among the three brothers
W
11
and the shop premises bearing W V.
2386/2 fiell to the smre ofthe 1
v) Whether the plaintiffs
mesnc Profits ofRs.758/ –._ e,
vi) Whether the
the suit propejrws? VAEf-ab;-whet is efmre?
vii) What mliefare the to?
8) on recent} and also
taking’ into evidence, the First
fiaat’fatJ-set of the p1a.in!:ifi’s had right to
sell his ef the suit schedule property and
__tI1eref9;_§e,’V in itejn No.1 of the suit schedule property is
is not binding on the 21*’ plaintiff} as such,
for the partition in Item No. 1, but they
H V’ are enfifletff’ for any share in Item Ne.2. In that View of the
‘ H H ” emit of the plainfifi in respect of Item No.2 came to
and it was further 13:16 that the first plaintifi” is
‘I ene’–1-film for 1/4:-In share and the 2nd pxamm is eneued for 3/4th
in Item No.1. Being aggfieved by the Judment and
I’?
«y
12
“Decree passed by the First Appdlate Court, the 29¢. has
filed this Second Appeal.
9) While admittitg the gm
following substantial questixm Qt”
inthis appeal ‘ _ V A 3 fl ‘
‘whetlmr me%%%%%JAppe1ia:t§=A%g§a;¢ c?rred in
reversing the share
to the appellant gjfoperty and in
rejecting (Sf respect of Item
No.2 aixgl that behalf 0f the
contraxy to law’
10_)_ of notice of this appeal,
‘Vrespoii§ié11t,?def¢nd§§itit”‘iib.1, who is the contesting party, has
learned cotmsel.
ii) Ixéve heard the learned counsel on both sides on the
Question of Law raised by the Court.
12) There is no cfmpute regrding the relationship
A».._4’4between the paras’ s. The 1″ defendant Mahadcvappa is
the Junior Paternal Uncie of the plainfifls. There also
W
13
appears to be no serious dispute that both Item Nos. 1
k;\\e,~c C;
2 of the plaizzt schedule wfi owned by cwme Angage
Madappa, the paternal grand father of the
Name’ mma was the wife of Chil1are__A ngadi ‘ V
paternal grandmother of the plaintifle. 1’-I.
owned by Chillarc Angadi
ii). the fiont and house pogtion si€ie;– It mt in
serious dispute that Ta dated
04.06.1949, the shop
portions iiis house portion to his
wife Smt. vffarg” 5a’ m’ evidence that Sri. Madappa
executed theeale deed 06.04.1979 marked as Ex.I}1
‘V aof 1′; defehdant Mahadevappa in respect of
his share in Item No.2. 1: is the case of
: VV properties are ancestral propertnes’ at
fihe hantieiaf Madappa and since there was no legal
for Madappa te alienate the propert1es’ , ttw
. K in favour of the 1″ defendant under Ex.D1 is not
[binding on the plaintiff, as such, the 2nd plaintifi’ is
entitled for shaxe in both the properties. However, the
/J’
14
First Appeflate Court held that only Item I~{q._~ 2
ancestral property at the hands of Madappa as gjgi
same under Ex.P1, therefore, Mads;p§a”‘ 2:ad n.<;3
to alienate the same, as such, the is
binding on the 2nd pxaimifi".
No.2, the First Appelme said property was settled in favéffiixr' and since sm. Name' mm. her three sons, the in Item No.2 became as such, he was entitled wstho' ut there bang' any
legal x1¢c¢ssity: ‘1’i1aréfoic,V”‘f11e sale etfected by Mactappa
Aum;1gr%%jé:x;%n1 meg: of mm No.2 is bindm on the
a§s s i:_1jch, the plaintifis are not entitled for any
i sha1″e In so far as gant of relief of parfition
V A’ ¥
i’avou”r.__£3f mm piainflfis in respect of Item No.1 is
the defendants have not challewd the
. of the Courts below. Therefore, in so far as Itiem
$10.1 is concerned, this Court is not required to comider
said aspect of the matter. Therefore, tm only question
/M
15
required to be considered is, as to whether deniggl’-.,
share in Item No.2 to me plaintifiisjustrified.
13) As noticed above, 1mder E5(;P1,’_
settled in favour of Smt.
grandmother of the piaintifis. a “1’ea1_i,1;t;V:”It:L?§i£;i¥I<;.2
became the absolute progjsxfiy of Tilers is
rm dispute that Smt. leaving
behind her Yenappa and
Mahadcvappa'. Hindu Succession
Act, the 1L§;"o1::_e1AI?AtAV3V?'L'<;x.tV' feztiialg I-Iintiu dying intestate shall
devolve to eut in Section 16, firstly,
_ upon j;§;1¢" ('iat%l§_gh.hers (including children of any
or daughter) and the husband. As per
s¢c13o?:1%'isg heirs specified in subsectsion (1) of
Sectioisz in one entzy smll be preferred to those in
a.t iVyn eatry, those inclucled in its same entry
simnltarxeously. Therefore, all the thme sons of
VT sueceeded no the estate of 81111;. Nanjamma in
shares as per Sections 15 and 16 of the H1nd' u
if?
16
Succession Act upon the dmth of Salt.
intestate.
14) As the property at Item No.2 was K
Madappa to an extent of 1/3″‘ J
cannot constitute as axmest1fe;E_ prdpmxiy at ? }r3.a§:isf.iA.¥;<
Mahadevappa. In the case of
Vs. -Hm sums
socmw mama division
Bench of this constitutes
the decision of the Privy
Counsel in HUSAIN mm vs.
mm 1937 to 233;, it has
properties inherited from the male
ifiouki constitute as ancestral properties
inherited from the female descendant
' Lfi:}s;m;t16t«.po1istitute as ancestral property.
i 15) In 'Hindu law' of 14th Edition Page 625, the
ieamed Author Mr. Mullah has stated that, it is settled
by a decision of the Judicial committee, terns:
17
‘Anecestral Property’ must be confined to ”
descending to the children fiom male fine and o o
that property that the son
jointly and equally to that of nfm or»
above, it clear that the o£t1te¥’cSt_Vof in
the property of Smt. éosolute
property of Madappa, right to
alienate. Under: Appelhte
Court has: by Madappa in
favour of: in respect of Item
No.2 is V the plaintiflh are not
entitled to: ‘gn%:r?.c::;o’No.2 .
of the above, I do not we any error
Appellate Court in reveming the
of Court in respect of Item No.2 of the
o ;s;c11Tet:h;11e is comemed. The finding in this regard is
Aaocordoance with law and also evidence on record. There
grounds to interfbre with the said fuxiim ofthe F’n*st
flopeflam Court. The finding of the Lower Appefiate Court
&
18
in this regard is sound and based on the settkad a,
of law. As such, there is no perversity in the
the Court below. In this View of k’
in this appeal. Hence, the
reused’ for consideration is aeficmfcfine. igfiyg
appeal is liable to be dism1eeed.Aeeeeee’ j
Accordingly, the no order as
to costs.
:er’«»’ –