IN THE E-EIGH COURT OF KARN.A'I'A.KA AT
nAmEn: wars wan 25"'nAy 0? JUL%f"é§$3tf\
was HO§'BLE MR.3Usf;c£~VLe}$A3SAHi¥_':'
was HOfl'BLE MR.JUsfI$$--;.HAkAfi§uA}swAMY
RER_R9.$57fi1$99_
BETWEEN ,' ~.*J .'=fa =
1 c§ANNAMMA_ ;j V j:_4afi._ v
W70 3xN3mGawnA;;S9 YRS; "~=
R/p"v3pKA£aRA35bcps:;;'V;
snfififififia "'. <} f"' E'
xauaxancnsmnap"9KQ2zRrIgsaRA-m-*
aanaasogs "w-. *; _ %, .
cnzxxarnyama .g_v._=,»
W70 Mmnzsomnn, 52 Y3s,fu
R/G axneAncfis@RAL}PRppEa2IEsAm&A
Mannvgntz. " "
3 ll ' ..... .. 'V
*«::2.:S.¥z'c::w..=»»2~a::zx. '.
wxo.KaI3gHa&cEsraAL paopsnrxzsna
46 x23; Rio g3maaAAnAM
aanaagoaz-._g APPELANTS
- ~ BHU$§§A.'NIKtEflR, ADVZ}
§ purmaswmmy
_'sfc*LArz nonnzeowsa
'»A "54 YRS, axe DAR QUARTERS
"~aAsxAvznmRA concur
C S TEAL PROBERTIESATNA
BANGALORE
tail
2 SAROJAIIEGA.
s/o mas sown, zcAaIya:«vw.s¢*n.:-'.t :¥§;oé2R'fi:I'Es§A E '
46 ms, R/O soema vI1gv9A:;s:§I'm1R;g '
mammncmsmm. paopaarmsarzia
3 AFZAI.
s/0 MEER, mcroa
R/O T RA =
CEs :smLf- pRc}Pz:£;2rI'Esm11 _
(By Sri 3" 190:5. " 2:1)
:/Vvnkspommms
_;2§51x"'~.3,?f:rI§'E.y;_ or C9: AGAINST THE
azmcamesu um 19_ 3fQv9__E5A,SS«@'*-__II*T _O.S.NO. 126/95 355
was cxvnz. atvoéz,' ..--~Jm'c, ,
nxaozzrssxne'-; :t*Hg"=._st:x1' " yjakmrwxox AND SEPARME
possmssxoufgv 'V V"
5191125., :1e:=§_. .c:§£m_Ie on FOR pmznamny HEARING
. THIS i3.a.ir,_- -J5; , MADE ma FOLLOWING:
ORIIER
afiyééal is filed by the plaintiffs 2
E23 z~ro.126/1995 on 'the file of the
"Senior Division, and JMFC,
being aggrieved by the judgment
arid decree dated 19-8-3.999, dismissing the
suit: filed them for partition and separate
xw
€
plaintiff uo.4. Since suit 1,tttedt1e
properties are the se1f--acqa:i.::ed
Doddegowda, the plaintiffis
1/6"' share each in st;-itt;:' and
sought for division 'vand '
also sought for an znesne
profits frcm suit till the
date of separg*a::t_ The suit
prapertyw of land and
a 1';*£1.-'tax: . 4 .
3;' resisted the suit by
£ii1n§i=writttt;:statement. The relationship
hgtwttn thé patties is adittad. zt is also
' that Doddegowda died two years prior
"t5 the iiiing of the suit. It is stated that
the. ivetments made in the plaint that tha suit
n_.-téhedule properties are the self'-acaquired
Viproperties are false and the plaintiffs are
suppressing the true.» facts to make a wmngful
gain at the csost of the defendant. It is
gm}.
2'?-4---1961 and her two daughters was
also pezrfermed by Doddegewda. -'-the
fourth plaintiff is concVe;:ned,.*"$i1e:j'_~v$¢Fla:;,-9;
in marriage at her 14*" :=.yez;ree...:'
all the jewels and "tiger
dowry. boddegewda ixfthe name
of the husband and
constructed._buiJ5c!.'£z:i9:f'V a Sara
of Rs. 8 raised a
loan eonstruction of the
hou;-;'§!e,_! Z . fazmzsunt was spent by
aadeggfidatfiéetefiewcénstructien of the heuse.
T@e"_foutth:"§1e1ntiff and her husband had
°',ebetE§;fx_aver the first plaintiff and
I 'V utilized the entire earning of
the family. The fourth
..pt1ait::tiff'$ husband is a Policze Head
taecc5stab1e, it is he who am behind this
.--tilitigation. The suggestion made regarding
non--payment of maintenanee and assault by him
and his wife on the first plaintiff is denied.
xsf' e
It is further averted that the plaintiffs
2 to 4 and the second defendant are-_'
and they are residing with
such there is no reason 1.
manga garden. It is
there are 120 1;;-é®s_ are-L'
yielding fruits £91: tw.6' There
was no occasiozi to stay in
Bukkasagara:"t;o and it is
his igrasi the mango
P1a%tafiifix¢#%§ ufi§$«ft#e plaintiffs. The
usufifucfts grcvxe is not 301:! he
agybady fiu:fi"ie$s the third defendant. It is
"averted that the plaintiffs are not
any share as they wexe giver: money
xtk:sre..__" 'thin their share. In the event of
"'xp;xti£1on, the plaintiffs 2 to 4 have to
ikjireimburse the amcsunt spent by Daddegowda for
Vitheiac marriage: and for the upbringing of their
children. Mcmeover, the suit: properties are
W'
f . What Carder?"
5. iblaintiff KG. 1 cue-:1 d}.zx§4:;$i:'g*s:4"V;~
pendency of the suit and sings"-..::.hs;fs~
representatives are r:ss駧:§rgS.,V"'V"th£ey T.
succmd to hex: estate.
7. on behalf' of t;1;iVéf'»vp1V.au1ntif£.sA,Vfiftaintiff
no.1 was exaxninscti7as'--_P¥51F51'4;"----Vj;>ia3,ntiff No.2, as
pm-2 and p.1ainti'ff- ij*;:'c>._:a.__ 'ale plaintiff
No.4 a.s.4..i?W«-:'vV.£c$."2>_§"
13
wauld be entitled for a share in the sfiare of
their mother also. In that View i§ff the
matter, tha trial court was not jmrtifiéd'i§tr
disxnissing the suit of
11. In reply ta this larrnaflqtéungal fart
the first respondent "th,z;;t'ft3:e suit
for partitian Vbg7rmarrie&*@§§ughters ia not
maintainablaa V anwtzzéi.-j has rightly
held that tfi§ suit agheéfilé firqperties are the
ancestral é¢Q§éEtiég’o£ bbdegowda, therefore
the fihdihg fif the trial cart dismissing the
suit of ‘lens p1v._ai~3’;Stif’fs 15 justified and it
**,doe$5ngt gall far interference in this appeal.
V’9_l2@% Hiring regard to the contentions
tt_ urged by tfie learned counsel for the parties.
w”r§heipoifits that arise for our cansideration
(1) Whether, the finding of the trial
aourt that the plaintiffs hava
failed to pmova that the suit
schedule properties are the self-
\jM3
14
acquired properties af late
Doddegawda is justified ox: aalls for
interferance in this
(2) The finding af the
the suit schedule
ancestral propertieg
is ju.stif:i.edV’».__ 102:’ .
interferencit’ in i
(3) The trial co’ur:f:«l.havi’ng’ irhtliltriait that
suit .s.¢hedule”Lv-preqpertiesa Care the
ancestral.” of Doddegawda.
is 3ust_1Hgf_fm_4;1’t”__;L;-:1: fiititivssing the suit
jar; the §p1.§t’£hti.f V’ V
(4): ” and decree cf
‘ ‘the court calls for
in this appeal’?
‘ We “axnswerviiitiie above questions as follows:–
2.’; finding cf the trial court that
‘t’§1e plaintiffs have failed to prove
3 that the suit schemle properties are
the self-wacquired properties of late
Dowegowda is justified and it does net
call for interference in this appeal.
2} The finding of the trial court that
the suit schedule properties are the
ancestral properties of Doddegowda, is
mt»
E5
justified and it does not for
interfarence in this . A’
3) The trial court having hem: thée
scheaale properties» ..:,uf:e afiéégtrai’ ;
properties of wast–..é ‘*n_<::»t .
justified in di.e§mis$j._xig tnet"t'~.sa';t qt
plaintiffs. The-{"'-rp1air:t_i£f_V$ V"<:gat:i§1d he
entitled _.to 1V/1-x:iF*?'«. "ssnare"' –ea.c;{ in the
suit defendant
No.1Vand 2" entitled for
1/:1:;9?§'1- suit sczhadule
__-rlefenant No.1 is
6/10"' share aim: in
V """ H ..§:c'~.:§_§Vad111r$VV'properties.
finding on point No.3.
go .3 ” and decree passed by
tllxe” .. below is liable to be set
aside the final order.
” –ifa; plaintiffs have claimed xfsth
sh.a1:e=,-‘” the suit schechzle properties on the
..preu3:t.§é that the suit schedule properties are
t tiaé selfwacquired properties of late
\fi«J>
hp’
16
15. The first plaintiff is examined as
PW-1 and she has d%sed in her exm1:.:i.netion-
:i.n–c:hief that the suit. schedule peégséeihjfiies
belong to her husband. Suit: 4′
properties consists of.~~t1.0Q mmahlni’
Herself and her husband ”
plants in the suit:
husband was looking ei-tear. he-he éfeaihis <3: the
family during 'a,z:<i after his
death her i.«=.{""iz:c';-3j;2.;:r:g':'V=–:;.£¥:e.:.§"?che affairs of
thei.V%'£a;:».a.i§r…««.._the death at her husband,
she re.sir.$.ihg~.. her daughter plaintiff
3.~¥gj.’4,e.. as heriyisoh drove her out cf the house.
prcperties were net divided
._éhri’1i§i’_~v.,tr£.=e-‘iife-t:i.me of her husband. The yield
suit schedule properties is more than
he R3.1″‘J.a3ch. She is entitled for a share in the
ifiiisuit schedule properties. she hag produced
“:Ex.P-1§the death certificate of her husband.
S:x.P—2 is the death ceremony card of her
husband. Ex.P–3 is the certificate in that
\Q.J>
17
regard. Ex.P~4, P-5 and 9-6 are_tth¢t,RTC
extracts. Ex.P–7 is the khatng””étttatt,
Ex.P~8 and p~9 are the» d&man§} rég1stérlt
extracts of the house.
16. In her ctoé§%ex§fi1n§ti¢nEg$fié’ hat
stated that she I.’:t¢jtVVV'””t1;novtA–Vwhéther her
husband or1ginti;g’tt£§;§§gg$t_ to Badnru
Varageraha1i;;ofJtténtfittngmfitluk. She dnes
not knéfifiiwflethéétmfittt»husbamd possessed
prqpértfitt gt Bétfitrtfitrégarahalli She denied
tut w&tggett£§ttttttt§ her husband sold the
prqgetty.at $atdtrt¢aregerahal1i and purchased
tfitittit sthedaie prqperties. It is further
‘tfit3ta§”th§t her son is employd in Maharashtra
“afia ht £3 residing with his wife and children
at Mtfiatashtra. she has denied the suggestion
Avf’ttflat hex husband performed the marriage of his
tgrand. daughters. sha has also denied the
suggestion that there are 200 nango trees in
the suit schadule prqperties and that the are
‘\,n}«
RI
and settled down at atllatuppe Boddi ans hex
uncle Doddegowda went and :31;
Bukkasagara.
22 . From the appreft;:§.a:*t’i<rA}nA'tt»e;$f~
stated material on *j_1:'e.~gor:;.I',.. 2
found that the p1ainti_.__ff1§_ to pmve
that the suit' "";$t*:§parties are the
se1f–acqnirad prettttigs'ttff§t§ddegowda and
that ttgfggggefitg trtattéé By the defendants
woultmtugttgyrstttftttt}toddegowda had some
village and
thatitttltes was sold. under Ex.D1,
ti:-gereaftér . fgaromrties under Ex.D2 and :33
at Bukkasagara.
‘ re-appreciation of the evidence,
we h-:;1d.’:’that the finding of the trial court is
.. j1;stified and it does not call for
V’ Accordingly we answer paint
17Nos.1 and 2.
24. The trial court having rightly held.
that the suit schedule properties are the
\5′-J’
50% of the suit schedule propert:Les,_..___which
would come to 1/12″‘ share. It in
dispute that the first plaintiff 4_
during the pendency of the’ »s;1it H aieggraxé’ ; a
hex 1/12″” shame would
children plaintiffs 47″ gnc1VV ‘c:1ei{e::’e:a§zts
and 2. Thereforo tug $ignt;ffo and éefendant
Ho. 2 would be share in the
suit schocf’.tt1.g=.f tefandant No. 1
would 6/10″‘ share in
the!’ . The trial court
has the suit of the
pgjaxzztirfs .. holding that the plaintiffs are
to any shara.
* is submitted by the learned
doun$al.’:”‘for the appellant that in View of the
.. to the Act by Amenctnent Act
“”._Vv§¥o?.’39/2005, the plaintiff should. be ciemod to
the co-parceners and would be entitled to
equal share with the first deiendant. In
support of this contention, the learned
‘\;.x./5*’
24
counsel has relied upon a decision this
Coart in mm 20a? KAR 4790 <suga.i';;1:}eiV;~ ,:"v_s.
Gundappa Axnaracli & others) . %
settled in View of a eigklsien F
of this court in RFA No… Athat
of the Amendment: "ls not
retrospective '_ woa'i§ éavgvipivlcable to
pending only in
respect or from the
.$11.:e;*.e'és1on Act , 2005 . In
vie}? Bench of this oourt,
learned single judge,
eiF'3'd ~.the'~_ counsel for the
ollants isnot helpfiul to the appellants.
'V ..;FE't;.rther, there is no merit in the
'l of the learned counsel for the"
first-Vt":.defendant that the suit for partition by
.v::~:ta'rriec1 daughters is not maintainable, as the
l 'Epre.-sent suit filed by the plaintiff is not for
partition of ancestral properties but it is
for partition and possession of the separate
Va}
26
To that extent the judgment and
pass& by the court below dismissing “”
of the plaintiff is liable to %
The finding of the trig},
other respects ranains unait:-;g:ed–‘.”v-
It is open to the
equitable partition’ tlje, decree
proceedings. . if V