IN THE HIGH comm' OF KARNATAKA A3: kk
DATED THIS THE 23"" 1;ya.Yc)I?"3tJ1sIE%2{3o93%
% 3
THE HON'BLE MR. JUST1t(}i14jA-V'gA':r~1.4§;N"'I)' B?Y$1ux12 EDDY
REGULAR 1=I12_s_'1* (PA_R»--SJ)
BETWEEN:
1- J %
Sincg 'iiy his~-._ : eéa1&'l{*ep:e.2a;.e:2tatives:
s/u_;P.M.Easappg%k'k% %
a) " " 4'
Wf0.Latc.B.Sh§va:1na. -'
4; about years
T vDfa._B...Shi_va;1na
._ %Age{i_~vahug£i.'V27 years
' Vliesiding 'at Panchanahalli
" Sitzgalagcm Hubli,
' Kaééur Taltxk,
A' ' ._Chic:kmaga1ur District
I
' :1'. V V. S./o.P.M.Basapm
Major
Residing at Panchanahalli,
Singatagtmt Hobii, Kadur Taiuk,
3
Chiukmagahxr District
(By M/s.H.R.A11an1hakrishnamurlhy & V .
AND: % % J
1. Sri P.B.Maru1appa
S/o.P.M.Basappa
Major
Residing at Panchanalabdli
Singaiagcm Hobli, " '
KadurTa1uk, '- _ i
Chickmagalur ' .'
2.
Residing at Pancha33a11afl_i" " é . ="
Singaiagcge VI-Iubii, V' "
Kadnr T3Ill'i(,,_ w '-
Chipkxfiazgaiur RESPQNDENTS
Ad vacate for Rcspond::n1Nu.I)
* Thigxéaggaag First Appeal is filed tmdezr swim 96 of Code
of Civil Prb:;edurc,}903, against the Judgement and Decree dated
_ _ _ 1;9.1 12003; passed in O.S.No.11S/Q00] an the file uf the Civil
" " Judg¢_.(Se':i'i0r Division) Kadnr, decreeing the suit for partition.
This Appeal seaming on for hearing this day, the Court
the fallowing:
3
Heard the Counsel fer the V'
2. On 13.6.20{j9:,. .V:lA'l_;e {he respondent had
remained abscg11«ai}c} lu this day. When
the case wa:=’é lhc Counsel for the
for the respondent had
H:-.mainr.V-#£i« {sbsént the matter is called out in the
pusl.;3uz.u_:h séssiotrg “1113”-Ctiunscl for the respondent cominues to
the Counsel for the appcllani is heard over
is disposed <31'.
x ‘T The fiascts as are relevant for consideration of this appeal
{are as fulluws :-
The appellants were the defendants I and 2 before the trial
Court. The plaintiff had filed a suit fur partition élfld scparait:
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28 years prior in the suit and it was aileged
defendants were joint famiiy rnetnbegizxrld
properties are jeint fiimily properties ti;~a_it’~itiI1eie:”waS1,i_i1e i
division between the piaintitf life
time of Basappa, he was the suit
properties and after hisi being the eldest
son of Basappzitv It is in this
fashien partition and separate
to have the sale deed
in favoei’nt’ the aside.
: siiit ieentested by the appellants herein, the
issues as tu whether the plaintilt pruves that
it the joint family aiongwilh defendants I and
V V . 2; ekhettiei suit properties are the undivided family pregserties
it it tile.’ thiee; and whether there was a partition as on 1.11.1984 and
‘ share ef the plainiifl’ under a Pahzpatti was granted to him
that the piaintiif was residing separately; and whether the
defendants prove that on 25.11.1990, a partition had taken place
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between themselves and they are in separate possession of their
respective shares; whether defendants I and 2 pnwe..
married sisters have also get their respective as “eiifu1e1i’:3edV
in the written statement; whether thep1si;;iitI’_*;§ii5iie:s’;vtt§éit (ac tales _
made in favour of the third
plaintiff was entitled to the retiet§S**~.sQug1″1iv__for;.VA was
having held in fitvuur of the p1.ai’m:i.t’;’ defeiitianisg are before
this Court.
4. its s;eete£i:5’§§ei:j}kzianfl1akrishna Murthy, on behalf
of the appeliasls, Cetert below has erred in answering issue
< w}1et}§t<s"t¥1.e..(1;-zfendants land 2 prove that their married
got their respective shares as staieal in the written
counsel would seek to point out that the
t3"»~'«.___V'~».interpret:;tien placed by the Court below to hold that the sisters
Vt Pattamma and Laiithamma have been mazried prier te
and prior to the coming into force of the Kamalakn
V Amendment to the Hindu Suceessien Act and that they would net
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" :1oV";}::dr1§£ion .. . '_
be cntitlod to any share in the properties. The
Court is improper admittedly they art: sislors
share under the Hindu Succession
was in error in holding that fllcrroopondonvi? L.
to filo a suit for partition as ho share and
rolinquishcd his right io _V Tho Court below
was in error i11_hQ:l'di._I'zg not been divided
cqually and would not arise. I1
is also not 2: vaiid document as it
is of the same: have not boon proved
and léae: Couri ihcércforodirx cltsar error in holding that there: was
hand, it was the: cotilonlion of the: appellants
lhaI"–duririg' life lime: of their father, rcspondtznl no.1 lmd taken
iris. under Palupalii daied 1.11.1984 and evc:r~sim:o then,
ioogondoni no.1 has been tmjoying his share: and has boon residizag
2 a house bearing No.i36. And further, as between the
defendants Lhcrnsclvos, they have efiwied a division and some
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pruperties have bcen given 10 {kc sisters lowarLl$'*V.}5;§ishina
Kumkuma. The evidence: adduced has not '_
properly- It is pointed out that in lhcvciiuxw uf.er;as:};4::\i;a1hiz§§1liVi::;:, '
the plaintiff has clearly admiticd lh;1i__ _
family, thuugh he does not the Vgagaiar 'he:
come: out of the family agidaat .li1E!€,Vv1"§A6V;uVaS given 2
aortas of land in survey and 30 cucunui
trees in survcy 110.240 and a house
cans-istigg Qf has further dcpuscd to the cflizcl that
he has rcéeivfsd iand detailed at page 119.7 uf his rc-
cxatninfégfiwn wfiich :i;§___§x.hactcd in the body of the appeai memo.
'I:(«1 vicw–vgf«'admissiun as to 111:: plaintiff having separated from
[fies having received his share was ccmfinncd and
*,… 'V._supplem§§i:1cd by Ex.D-2 which is indcmd an unregistered
Hewcvtcr, in the lighi of Secticm 49 uf the Regisiraiiun
thc same can be received as evidence. of any transacliurn
V' tsffeciing such property or cunfcrring sue-h puwur. Hence, the
ulcar admission sf the plaintiff as to flnglainfifi having cums out
of tht: family and having rcueivcd his share. of the
disentitlc the plaintiff to claim.
6 – Viewed from anuther angle, ethan ift!€£cré».w’a$”‘nQ”
as suggested, it the property t3c.ttingingA”tt1__
ththcr was alive was abg:i.:t_12 aa:fi::V:s.t3.(‘ ‘Imtd, htzétiuxtaitfy, the share
0f the ptaintifi would be4″tA!4fi’ tsttvvéqttiiialent to 3 acres of
land. While itiis’ uttattby%kme*tk ,§aa;nat1r admitting that
he has rcce}1;cct_ atz’-fer: he has been cultivating the
same the >;:t:;3attttely and the land to the extent
of ‘7 acrc§’– subsequent to the separation of
‘_ fjntainlitf, to that the share given to the plaintiil’ is
‘ tttiisqttal wuuld nut be rcltwant. Merely on the ground
.théit«t11cfc.V–V’vg:§§~3vi:o change of mutatiun in Eavuur of the plaintiff in
respc’;:ttjnt’V 3 acres of land would not render the: entire extant uf
acquired as on the date of the suit to be constnmd as joint
family pruptsrtics. The plaintiff is thcrcfurt: nut justificd in
sctsking partitiuu at the prupcrty which has been acquired
subsequent to cutting his sham, as admitted. Hence, that trial court
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was in clear crrur in holding that the reliance coia–lLi– ‘_
on Ex.D-I in am face uf clear admisaiuiis.by~lliii_:ii;i:liii§i1il:i’i5i1IiS4;ll’iT.
as to the plainiill’ having reuciycd u;¢«i¢gi,.;g;iu1* :;i;;dlam1:;g;:¢a1
which would be: csqzzivalcnt la
entitled to at a partition, of his
falhcsr. Furthar, the llallwi passed away,
the plainiilf [ha .l}illIt7!”S estate.
In that view: to I/203′ share in the
suit by family during lhc: lifetime of
his rm. l .
is allowed in part while modifying
that the plaintiff would be 61}-iillfsil to truly
I If4″‘-fiizargfv Vthéiestate of the thther and the properties which were
” jbyihizii during his life time. The daughters who were not
(ht: suit in the final decree pruceezlings will have to be
i ljilixxcliudcad since they alsu would get 3 share: in the léztlirsfs share.
ii i The property given to the plaintiff earlier wuuld have {u be
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excluded and the piafmiiff would be entitied to 1f20m Shaw ‘A .
rust uf the {xupcrly hsld the family dtrixtg L:h’::”ii§:.. 4′
falhcr. The decree shall be drawn up
above.