High Court Karnataka High Court

B Shivanna (Dead) vs P B Marulappa on 23 June, 2009

Karnataka High Court
B Shivanna (Dead) vs P B Marulappa on 23 June, 2009
Author: Anand Byrareddy
   

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,

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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:

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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:

%

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

Z

" :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

_/5

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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.