1 IN THE HIGH COURT or KARNATAKA AT BANGALORE DATED THIS THE 14"'nAY OF SEPTEMBER, gfilb, PRESENT ' llla THE HON'BLE MR. JUSTICE KiL. EANEEEEEE-_ f AND V . E _ E W THE HON'BLE MR. JEETIEE §.MAH§HfihLm: REGULAR FIRST APPEAL Ea 1334}2Eb§ (EAR) BETWEEN: A. x l l Sunandamma w/o late ,_l . .u, . -, Gangadharappa.Dyuteg 50:yearSf_"%' Occz Household fibzkyl _V 4 x"l"" R/at 'Guru Kdttfirashwa;a_fiilaya', 2" Main Road; gear M,N§C¢fiveEt, Nituvalli}-Dévafiage£at- ""Wl .. APPELLANT (By Advoaate Sri§§hanEappa for Sri.B.M.Siddappa) AND: v.u ' V X_1 1 1. Thjgpaana Gayakwad s/o " *.Tu1ajappa, 66 yéars, ._.Rfo_D90r»Rc,1l70/1, '_T@ Main fldad; 1" Cross, Vinqbhafiagar, Davanagere. 2. Dri§ergG}R.Mnrthy s/o late 'aTulajappa, major, ';Ashwini Clinic, Doddapet, 'fifiavanagare. . Rfiérappa s/o late Tulajappa, Major, r/o Door No.775, Ganeshpet, Davanagere. C" 2 4. Krishnamuthy s/o late Tulajappa, Major, R/o Door No.776, , Ganeshpet, Davangere. 5. K.N.Anantha Ram Shetty s/o K.Nanjunda Shetty, major, M/s Nanjundeshwara Agencies, M.G.Road, D.No.590/1, Davanagere. 6. Nagaraj V.Anddimutt s/o K.Nanjunda Shetty, major, Swamy Paints & Hardware, Door No.390/2, M.G.Road,"; Davanagere. "Ni" 7. Murugesh V.Andelimutt s/ojj Late Veerabasaiah,'majorg:5 ._i M/s Swamy Paints & hardware," 'v" No.390/2, M,Q,Road, _ V,_ . Davanagereii i.l.i,i:" l,'"*-, 8. K.M.Mellikarjunaos/o*.' Maheshwarappa'Arappa,,x Major, Door No.775,'5 Ganeshpet, pavanagese. .. RESPONDENTS
;fr,_(Re§,,g,a5, éd&W7V .. served)
,(R–3, 4 §”8 .. Service held sufficient)
–.–….-u.__
This fiegular First Appeal is filed under Sec.96
–fof’$PC against the judgment and decree dated 3.9.2004
__passedxin o.s.No.61/1997 on the file of the I Addl.
_V,Ci9il Judge (Sr.Dn.), Davanagere, dismissing the suit
Bxfor partition and possession.
~d””This Appeal is coming on for final hearing this
‘ijvday, MANJUNATH J. delivered the following:
é”.
3
J I} D G M E N T ‘
Legality and correctness of the judgment and
decree passed by the I Addl. Civil Judge {$rrDn.),
Davanagere in 0.S.No.61/1997 dated
in question in this appeal. _
2. We have heard the counsel V-3′:”or—.the appellant.
3. Appellant was the plainti’1’ff:’–._in ‘~
filed the suit for partition”*~..andV.separatezvv”possession
of her 1/5″‘ share inthe &.suit:’–sizhednle”-property and
also for”nnVesnie_ lnplliiccording to the plaint
avermentsga plaint’i’v’f_ff._»l”and,’.-defendants 1 to 4 are the
children of one Tuhiatjvappa and they are the members of
V-disjointA.Farni«l}f”Vand that after the death of
having 1/ 5″‘ share . Therefore, she
partition as the defendants were not
‘<.l«l..j'jpwi_lling t.or~ divide the properties in accordance with
Law in respect of the panchayat convened in
of December, 1996.
6/
4
Befendants 2 to 4 contested the case. They
admit the relationship between the partiesxlI_ They
contended that they have another sister fhy¥;fiame
Anuradha Chillal who has not been made as 3 party #6;
the suit and that plaintiff; ahdj?Ahtradhaf;ghii1aia5
being two sisters were given ‘in .marriagg:Vj While
celebrating their marriagefl they were given in cash
and. kind and jewels”%towards; their, share and that
plaintiff who married ih–thegyear;l§5fi cannot claim a
share in the,prépertyfe_Accordingly, they requested
the court to diseiss the suit:}
Based on fthefypleadings, following issues were
framed by the”trialbccditf
1.j Whether: the’ plaintiff proves that suit
” ‘schedule ‘A’ and ‘B’ properties are self
_ acquired properties of deceased Tulajappa
V=which«are available for partition?
2,f whhthef the plaintiff further proves that
‘.suit 5C’ schedule ‘properties are available
‘for partition?
. §Whether the defendants prove that father of
plaintiff and defendants performed the
marriages of plaintiff and Anuradha Chillal
and given sufficient movable pxoperty at the
time of marriage?
‘pm
(i,/
4. Whether the defendant proves that, there is
no cause of action as contended in the
written statement?
5. Whether the defendant proves that tfié suit
is bad for non–joinder of necessary parties?
6. Whether plaintiff is entitled for the decrees
sought?
7. What decree or order?:i
In order to prove theiruifiésfisctives contentions,
plaintiff got examinedn herself das lfiwsl wand relied
upon Exs.P-1
e10. No oral and documentary evidence
was let in on behalf of the defendants. Trial court
after cghéideting “the; e§:a¢nce let in by the
Plaintiff }he1d~ that r§uit. ‘A’, ‘B’ and ‘C’ are
ancestiglu Pro?§ftiesd and suit item. No.’D’ has not
Ioeen. by “” ‘plaintiff, issues 3 & 4 in the
negative, “issue ;No.S in the affirmative and issue
°~Ho.6 fin Vthefi negative. Accordingly, suit was
–cfdismissed,on the ground that plaintiffmappellant did
tunottimplead her sister Anuradha Chillal and therefore
fcaee to the conclusion that the suit is bad for non-
iaijeinder of proper parties. Court held that plaintiff
63/
6
is entitled to claim 1/30″ share. Accordingly, suit
was dismissed. Challenging the legality’ and
correctness of the same, present appeal Vislgfiled.
Even though respondents are served, they; are nun-
represented. In the circumstances, we have heard the_
counsel for the appellant.
4. The main contention us the appel1;fi$”before us
is that trial court having that”-Apljaintiff is
entitled for 1/30″‘ shareh in Lschedule–‘A’ to ‘C’,
committed a serious error in dismissing the suit on
the ground that nlaintiff did not implead her sister
Anuradha thillallimficcording to him, even if Anuradha
Chillal had not ifipleaded as a party to the suit as
:her share is deterfiined by the court holding that she
is also entitled to claim 1/3W” share, trial court
v”<should,have.granted share in favour of the plaintiff-
rlfappellantv in respect of' her share in the ;property
sddenarcating share of Anuradha Chillal as the share of
'5Anuradha Chillal cannot be taken away either by the
Vigiplaintiff or by defendants 1 to 4.
(S/.
7
5. Having” heard. the counsel for ‘the parties, the
only point to be considered in this appeal
“Whether the trial court is _justifiediain
dismissing the suit on the ground~thatfplaintiffy
did not implead her sister Anuradhalchillaliwhohh
is a necessary and proper party to”tha.5uit§*p
6. So far as the share allotted by the court below
to the plaintiff, challenged the
same. Therefore, _sfi¢,ii§_”ag§g;éved only for
dismissing her suit on the ground of non–joinder of
necessary’ partiesg.K yhdhittedly; suit is filed for
partition and separate possession. Even if a sharer
has not been impleaded} it was the duty of the court
to direct ghe parties to implead the sharer or in the
alternatiyeyflhold Wthat sister who has not been
impleaded= is. also entitled to claim share by
Ahallotting_”her share; so that in Final Decree
hӤroceedings sister who has not been arrayed as party
“olcouldfnot claim her share as the share of Anuradha
%~i: ldhillal cannot be taken away by the plaintiff or by
63/