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IN THE HIGH COURT OF KARNATAKA AT
'k
BEFORE
43? 3 '7...,2,»'3 '3 I
:v
THE HONBLE MR. JUsT1cE~is:_;:s{: KEsHAxIA§:AR.§*{AN.a
.§.:i_,.A P
R.S.A. No. 486_§F 2'£}'9_§3
amwszn: é %
1 BASAVANNA- _ if
s/0 LATE_!VEA_I)_'APF'A § .
40 'ms. , O HAN'AGALL1.-V§I,LAGE
MYSORR 1313-':
~ APPELLANT
(BY SR1: H*,§: ',J§13vocATE )
1 MA§§iAD.EV!§i'PA '
V « S;:Q*~C§:{AILI_JARE AN-GADI MADAPPA
}' Sii~$(:Ev.Jf)}:.?:(;;§';A'S§ED BY LRS
(A) "' GiJ1ém.iNGAPPA
S/OLATE MAHADEVAPPA
Medan, R/0 NO 2355,
x MADHWACHAR ROAD
K R MOI-IALLA, MYSORE
MAHADEVASWAMY
S/C} LATE MAHADEVAPPA
MAJOR, R/O NO 2365,
MADHWACHAR ROAD
K R MCJHALLA, MYSORE
DATED THIS ms 13m, AY OFfJFME»BRtI:eXI€Y"§i?f§§)'~
(<3) SiiIVAKUMAR
3/0 LATE MAHADEVAPPA
MAJOR, R/0 NC) 2365,
MADHWACHAR ROAD
K R MOHALLA, MYSORE A "
}vfAJOR_, R,i'().._S.HOP NO 2386/ 1,
% _ 7*"m:'"A:£*E_D 1513:2003 _z*-'A3333 EN"
R.A.NO.244/1993 ON THE FILE..__G1§' THE.__ 1 ..wi):;,"'(:iVIL
JUBGE (SR.DN.), MYSORE, PALRTLY ALLQWINGE THE
APPEAL AND SETTING ASIDE»-~-THE'~.JU{)GIvIENT AND
DEGREE DATED 25.8.93._4_PASE1EI:).I'H..V_'9:S¢NO.478/90 ON
THE FILE OF THE PRL. I MU_NSIEF7, ,MYs:<:;RE.,
THIS RSA :s::0MI:¢(:{ PfGR?~.HEAE3$I§iG THIS DAY,
ma comm DE§,}IVif3REI)'THE"FOL3L,OWI3?G;~
This;"'S<'$:: orid: against the judment
and deczfee cia'e;ed'v1S.o3;~:2'C{§:§ passed by the 1% Additional
{,S1'.I)hI'1L},vV-mmysore, in RA. No.244 of 1993,
kaaheréunde§":1:efizgdgaeut and Decree dated 25.03.1993
paségegftiy Mansiff, Mysore, in 0.8. No.478
_4¢§_199ou, was modified.
" Appeliant is the 2nd pmmufi before the Triai
Appellant and his sister initially fiieai the suit cmly
gigainst their Uncle Mahaéevappa for partition and
$5 , .
rf":;§"~_J"
k'/
separate passassion of their share 1111 the suit schegiule
properties. Item I'I'1 of the Schedule is house _
bearing D001" No2238q 1and item No.2 is .
140.2386 both situateéfiéi i\./£adavah'(;A1j;a;' Sf.I'6£2'{:,.::
However, subsequently, the 'Z114 4'
occupation 0f Item No' 1
Yellappa were impleaded as I)efe:}4gf:f:ei:7:1t::;..:»_2 suit
3) The case of §s;_'_,as follows»
One Ch§i1arc% fifigngaé;:ii {:11ree sons by
name, Madaéfipa; V *Mé§h.édevappa. P1ainI:iff
____ _' 1 Exgjc'/\<_' 523 E
No.1 is the daugigtegfand. No.2 isgghe first son of
Chillare schedule property was
jointly Cg':.'*3'1¢(1 brothers and it was in their
_¥.g;§'i13$1}v}QI'??'i3'*<S.Sé'SS2'l£:5.'é"£: Atvvffién' point of time, the property was
awed; Va.;é::"$.1,1V¢ii;.~.t}ae father of plamfifis had 1/std share in
the Sufi. pgopéfijk. The said Madappa was ailing 'and he
" i:'v'"wVasAAatta¢l¢;t:fi with Paralysis Strake about 24 years prim" to
V' of the suit and his cundition was very bad and
, _!
""*.¥as.graduaHy zieteriorating, as such, he was not in a
2:
/a ':3
F
positien to speak much less uzaderstand anything.
ikfendants were residing separately. Ttlerssfore, the
of the plaintifis was being looked after by his "
long as she was alive. As the father of the i.Aé?as i113 '
an helpless state and was I_
mother, the defendants cameV.rt9_ thé'
Where he was residing, pI'et€3I}(1ui'f'1#V' i3I;£it look
afier the Weifare of both "the brétfier and
gained C()I1f1d€I).G€: of taking
advantage of and helpless
condition:'V'éf['th§iVf, bf Defendant No.1
unduly ,Madappa and obtained the
sale aegcg daf§::iV_"{}fi,(}=i§'3_ 9pertiae'3 i'*s1 not binding on the plaintiifs as they continued
joiat posseasion of the schedule property, as such,
. K are entitled for partition and separate possession of
~ _ ag
their 1/aw share in the schedule groperties. 36 also
\ ?
.i:>E,b /d/,.
centended that there was mt: legal Ilecessity fer ,. V
te alienate the properties.
4) Upon S6I'Vi()6 of suit sumfizongs;
contested the suit interalia cgyrmmiixg " ti1atTt.}:1g:.._._VSfV11}it A
Schedule Property as a Whole .
before the partition and' the shop
portion of the three
brothers, 04.06.1947,
allotted with twu
shops 2385/2, whereas the house
portion was ti; of the mother. He further
.vc9nten5i.§:<l that sfxle deed dated 06.04.1979, the
01' for legal mcessiales ask} the portion.
wlli'Qfi.«;;a§' him undcr tim partition. Therefore,
' the sale ptiglfiié fiéchedule property is on that: plain1:1fi' s.
firxrslée circumstances, he sought for dismissal of the
..
S) In the light of the pleadings of the parties, the
Tria}. Court framed the following issues:-
ISSUES
Whether the plaintiffs prove that the $.”€i; ‘
is maintainable Without
cancaliation of the _
06.04.1979 executed by=..:4t1v§ir..fifat*.1_<ér.'
favour of the defendant?
Whether the p1ama33;§:~’o§e
in jeint posseégsion
with the defeiiciaixf’ tfcxgut fee
menfimrgerj as
p}:.e:if1fiif%;,1to’:}e that the sale
“i/
by -undue ixxfiuenoe and
‘ngi -. c<):i:';=1__'c9"3;* any right to the
M aei2:%naantV%in'~:11e%% "suit properties?
;,y-}Wi1£:the1"H 'vdefcndant proves that the
_ ~._$11§j'p:::"portion was divided among the
Vbfothem and the shop premises
Nos. 2386/1 and 2386/32 fan to
" share 9f the pIaintifi's father?
Whether the plamfifls are entitled to past
mesne profits of RS358/~ claimed?
%
vi} Whether the plaintiffs are entitled to a
share in the suit properties? If so, what
Is their share? é " V' I
vii) What reliefs are the ”
1; Whether the defer;d_ants§ ~._j ‘.2._.aI1d ‘,.£$ :are
tenants in Maligés
2335/1? % ~ %
ii) Whether the Lrcceiving rents
from the V§lefe:1tiar_€t;3~V 1 compelling
6) lard evidence, the utiai Court by its
_§udgme:1t,a11ci tie§§ree’dati:d i§5.()8.93, answered Issue No. 1 in the
ai§:mg:£ivq ;,o1qn1g “the suit of me piaintifi” is maintairmble
\§?it,1i’c.2§1f of the Sake Deed dated 6.4.19?’9,
but 3;1:s.u$$ac=<=:_1fcxii 'I:E:=3's?::1e Nos. 2 and 3 in the negative holding that the
~ -'géive failed to prove that they are in joint possession of
= séhedule properties and they have further failed to prove
the Sale Qeed is vitiated by undue influence. 011 Issue
30.4, the 'Fria1{i:aur1; held that the 1st defendant has pmven that
/»~.
the shop pertion was divided among three brothers and the shop
premises bearing 119.2386/1 fell to ‘($16 share of
father. III that View of the matter, the triai Court; iafixlc
No.4 in tha amrmative. Having regar_djoQ the ‘éiéi(Eé1_1t:é’*»:>v1’:’x,re:¢,a:i:rd
that the shag premises was allotted t.0 §afii§r’~<§f "
under the partition, the trial hékl
suit schedule was an anccgstral the hands
of Madappa, as such, {it} _ abaoiute right to
alienate the said' ifixfipportaé by legal
necessities ngag I§Atv:;A'g'é#iiié'cessity' on the part of
Madappa jgroperty, it was held that the
sale deed axecum 1:s;E is not binding on the 2m!
_ ' " As tfie being the daughter of Madappa and
«. 'E v.= 3'. . –
w_r\<v\a.v.1~..~m.2 K;,~,«'::;@ 3»
V.sh;e even much prior to 1992, the trial Court held
to question the alienation eflected by her
V Vv fatk1e:{'—- I513} Vi€W of the matter, the Trial Court decreed the
and deélama that the 2nd plaintiff is entifled for parfitian
4'_'_§;'::id._V5s'epAaf.1"atse possession of 3/2 (half) share in Item No.1 and I /6th
AT : Si;Lar§é in item No.2. Being aggriewi by the said judgmem: and
""" W
If}
decree, the 1*' dafendant Mahadevappa fikd the
court of Civil Judge, (Sr.Dn.) in RA. of .244 of ' .
7) The First Appellate: co::rt”‘by’« me ;z:§1gm:;1t?’«ku;u1ei’vL% x
appeal, allowed the appeal in t1:;e
judglnent, the First Appellate C0–fifi,rai$;ed._ti2s; gs poirits
for consideration. VV _4 V’
1) Whether the piaa:ti§1’sk%k%%’prqv§- the suit is
maintaé;ia.ble of
the_éa1e;fd§ed dam _cr3′.o’4;:9?9 executed by
in thge defendant?
ii) “;Wheti1ef prove that they were in
Jo11fi§L_ H. of the suit schedule
% ‘ pro;$ei*ti<_é1S§Wit1*1 the defendant and the Court fee
' 1;-n1eI1xt:iom'$d'EfiS 'payable and stxficient?
the plaintifiigpmve that the sale deed is
by undue firihiluence and does not
. V”‘c;§)i::i§}ey any right: to the defendant in the suit
Vvfiroperties?
fir)” Whether the defemlant proves that the shop
portion was divided among the three brothers
11
and the shop premises bearing Nos. 2386′;-..1,
2386/ 2 fell to the share cf the plaintiifs’ ,
V) Whether the plaintiffs are
Inesm profits of R$.7S8/i-..siaimed?’V ” \4 V
vi) Whether the piaintiifs
the suit properties? V 9 6,» WEEK,
Vii) What reiief
8) On re–assesaI3afi§%’1:§t’§)Vt; Q11 rword and also
taking into oon;§§xi:2«;r;a:_’tioIi:_’ evidence, the First
Appe1latc:v;Cou1_;t Ii€fil(1..V_jV£i1attiiéfifitlifir ofthe plaintifis had right to
sell his shaiebnly 6f the suit schedule property and
ttlereforp’, so itein if-3.1 of the suit schedule property is
“gale binding on the 2114 plainw’, as such,
tiie for the partition in Item No’ 1, but they
are 1;oi:..en§ifle;<§'"for any share in Item No.2. In that View of the
H 'In é'i:tz:r,_. ésuit of the plaintiffs in respect of Item No.2 came to
and it was further held that the firs: piaintifi" is
] em::iea for 1/4m share and the 2nd plaintiff is entitled for 3/4th
":éf1are in Item No.1. Being aggrievw by the Judgment and
K ,/'/
g, . /,
I2
Becme passed by the First Appellate Court, the 2%' plazixitifi" has
filed this Secmul Appeal,
9) While admitting the appeal onH__’i’ 8:;!0E§;_2§G23;
foilowing substantial question of 1a~m’vas”rajsa1 fur. é:m1si:ieratiozi
in this appeal. > _ A j
“Whether the Appeuat§}c~» ergécik in
reversing the judgmeqlt a1:Zid”‘déf3Tf§€.,Df share
to the appellant inv and in
rejecting the Qiaim of._t3:ie’-.a}.:§¢f11aiit, of Item
No.2 and3ax?E1f:t:;’E1er:=:t1<=; behalf of the
czontrary to law"
10} ” of notice of thia appeal,
“ci.*:_fgenciAéL11*i*~—1’€’o. 1, who is the contesting party, has
learned counsei.
ii) ifiize heard the learned counsel (>11, both sides on the
.. , ‘A ‘s1.V1::t’)@trf1:1t:iaVi”c..;uestio11 of iaw raised by the Court
12) There is 110 dispute mgardmg the rexaaonsmp
the parties. The 1°’ tiefendant Mabadevappa is
the Junior Petemai Uncle of the piainfifi. Timers also
413731,
14
First Appellate Court; held that crnly item No.1 was
ancestral property at the hands 01′ Madappa as .4 H
same under EX.PI, therefore, Madappa had — M
to aiienate the same, as such, the sgiie or «item
binding 011 the 213*’ plaintifl”. Hawever, A.respeet:’ef
No.2, the First Appellate come; r:a[:s*-hem’i said
property was settled in faréour of’VSi1:éi;-. i’I since
Sm: Nanjamma dried her three
sons, the undivigtietii. /3″:¥’__ of in Item. No.2
became the eféfifiédieppa, as such, he was
entitled ..even with’ out there being any
legal nseceseity’.~V ‘_I’11erefe1te,V””éKhe sale effected by Mactappa
Si1;’1€1e1’*’:e.j;I:3;x;,I):I reHs’pee’t of Item No.2 is binding on the
A.:s:317;§,’h, the plaintilfs are not entitled for any
— VV shaie In so fiar as grant of relief of partition
favouryef the plaintiffs in respect of Item N51 is
the defendants have not challenged the
h of the Courts below. Therefore, in so far as Item
‘»»..44;E*€e.1 is concerned, this Court is not required to consider
said aspect: of the matter. Therefore, the enly question,
eeeeeeee
15
required to be ccmsidered is, as to whether aenia;
share in Item No.2 to the p}aintifl’ is justrified.
13) As neticed above, undeIj”ES{.P1,A_
settled in favour of Smt ‘pa.$”~ef;”;;:ai. ”
gandmother of the plai111;ifi’s; a 1″e:—s:.1 1’it,V
became the absoiute pregaexjpy of “I’I;1erc is
:10 dispute that Smt. leaving
behind her gfellappa and
Malmdevappa; Hindu Succession
Act, the téxfialg Hindu dying itxtesmte shall
devolve accbrding ta. cut in Section 16, firstly,
“upon Lsonés; (including children of any
$01}. or {i%1jghtcr) and the husband. As per
fa.@<"V2.f;g- 't.}1e heirs specified in subsection (1) of
" $ecti§}i:.. 15,' in one entry shall be preferred to those in
.. Slicfgeeciing (army, those included in the same entry
'izzfiie simultaneously. Therefore, all the three S€)I1S of
f~¥anj$1mma succcedeei tn the estate of 81111;. Nanjamma in
AA""'é€;ual shares as per SBCti(}I}S 15 and 16 of the Hindu
\. M
6?: /'
4;
16
Succession Act upon the death of Smt. ,
intestate.
14) As the property at Item iv T
Madappa to an extent of 1/33′? .
cannot constitute as ancestraih’ lV:ik1e }ImI1ds
Mahadevappa. In the of
173. mm KUM’I’A saws
socnmr the division
Bench of thisi What constitutes
“the decision of the Privy
Counsel in thgcasé HUSAIN mm vs.
.§§:sv’.4 (Am 1937 as 233), it has
-»?_1Veid _V properties inherited from the male
é.e$c€;Vi*3;d%a1Vi.t’ V§fi§i;1yA’j:=.i#§:;ulc1 constitute as ancestral properties
and a:’fiy.. inherited fiom the female descendant
” .§§;»mf1<jt- gorifititute as ancestrai property.
15) in “Hindu Law” of 14th Editiora Page 625, the
‘~»-gamed Author Mr.Mu1lah has stated that, it is settled
by a decision of the Judicial ccsmmittee, term
49$
17
‘Anecestral Property’ must be confined ta ”
descemiixlg tcs the children fiom malt line and
that property that the son acqmre’
jointly and equany to that of his ré.:t;éx¥,k_’%T In of
above, it is clear that the ..i11tc.z;e3t of.
the property of Sam. aI;s<3}.ute
property of Madappa, ove1""4"\zV§'*11i<:'i1-,–. right to
alienate, Under .. Appellate
Court has by Madappa in
flavour of in respect of Item
No.2 is the plaintiffs are not
entitled for afiy.snar§ ;n':~tgmL-*No.2 .
of the above, I do not see any error
Appellate Ctmri: in reversing the:
Ref Court in respect of {tam No.2 of the
” is concerned. The finding in this regard is
i§;:.’lat¥3§§0rz;é,nce with law and also evidence on record. There
gounds to interfere with the said fmading of the First
Afjpeiiate Conn. The finding of the Lower Appellate Ccmrt
K ,7
/ rrr ,..»
18
in this regaré is saumi and based 0:: the settled pmwipks
of iaw. As such, there is 110 perversity in the ..
the Court beiow. In this view 61″ the matter, I M
in this appeal. Hatace, tha 3t1bsta;nfiai« .c:g}1’r;sti<'§jiT;§V:v {pf
raised for consideration is anssveredvfiécgidingly and "
appeal is liable to be dismissed;
Acc:csrdirzg1y, the £16 (Eider as
to costs.
h &GR&;kfh M “- j«
I9
KNKJ: RSA.No.486/2003
21.3.2011
Order on ‘Being Spoken To’
The typographical error in mentioning the date of
the judgment is ordered to be corrected as
instead of 18.2.2009. Registry to carry
in this regard and rescan the same and_t*i1e–rea.fter, 4–Aiss__t1e. ‘
corrected certified copy of the t’o_th’e”p0zirt”i_eSr.:i;_*2