Ratnamma W/O Late Jogigowda @ … vs Kamalamma W/O Channegowda on 9 July, 2009

The ms, of the 3rd defendant in 0.8. 233/ 8f9~ é§1:the

file of the Principal Civil Judge (Jr.Dn.),

befsre this Court in this second.-‘ V’

legality and correctness 0f the the

T below decreeing the suit 1

&2.

2) Though fieen impleaded
to the apggéa-1} {20$?Vvf.%I’V }X§pre11ate Court as

resporitierits,’ not been impleaded to this

seconci aifipfial Res;-ondents 1 & 2 fiied the

< _sui,"§;"3:3e§=:1{(ir;_g reiief V 0f.pa1'1:itioI1 and separate passession of

tfi'§.€;25:* _ "~$-.:I"1.tf«§,I*e in all 1:116 suit scheduifi properties.

P.'i2¥;§%ii:ii'f_A % mg is the daughter of p1am:ia" N<).1«

and her husband Cihazmegewda.

“:3; The case 0f the plaintiifs in brief was that,

“‘0fi€ Clharznegcwda @ Kunte Channegowda was the

propositus of the family. 36 had in afl 5 sans namaiji,

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Chaimegowda was entitled to. However, the defendants

did not heed te their requests. Therefore,

had no aitertlative but to file the S1133: seeking;ti1e.’ef

partitien and separate possession of “–:$ha1″e’$.–«..

D{‘3f€1′}.d8.I1tS- 3 to 4 contested

written statement denying-..__ the ge’erreefJ1’e§ss._Vof_’§

gerzealogz furnished by T_ fxeeemmg to
Deferzdants»-~ 1 he @, Kunte

Chatmegowda had sens 5 as stated by

the ificeegvgjirlg te the ziefendants one
Muddegmévda son of Charmegowda and the

saidVI\2iuddegQWc§,a;’–::i1ied :iesueless Iieavirzg behind his only

” V’ «_wi1i:;~: °KaragaA.mm3;”‘ “”” “therefore, the said Karagamma is

to the suit. ‘They further contendeci that

Ker;ggegew’§:§e;,AV.K0dig0wda and I-Iumarigowda, the three

5.: V_§é{u2″1te Channegowda were not gven in adoption

A te–.nf§1er families as contended by the plaintiffs. Thus,

V% disputed the adoption of these persons. They

V further eentended that Beregowda (Defenéant Ne.1) had

one more 503:} by name Nathegowda, who died issueiess
leaving behiztid his wife Puttachazmamma and t1’K§”»Said

Puttachannamma though a necessary

been impleaded as party] defendant to ‘L.i_’h1e1fs,.e

they contended that the suit is;__ barffof’

neceseary parties. In vieW.»0f.___the ebeve, ~:-4%

to 4 contended that the are ‘ 6fi’§tit}€d for
1/631 share as sought _1_:he suit schedule

properties. In. my fcaf ‘-the “eeIi;£er:§i0ns raised by

WI’i§1tE3I} statement,
subseqizefitiy, ‘:1e;”é;é,i-.:}§:ieiI’$ of Kengegowda, Kedigowda,

§{11II;arigew§iiaV’§&?eh1’*e iinfiieaded as Defendants: ‘2’ to 18.

fizxrehasefs ef some of the properties were

I vlffiefendant Nos. 5 82. 6. However, none ef

the””-.hei3:’S Kengegowda, Kedigewda aztzd Humarigewda

eenteeieel the ‘suit, nor any of them filed: written

‘”:3fa”3;ement.

4) In the light: ef the pieadéngs of the parties, the

tria} Court, framed several issues and additicmal issues.

After parties led evidence, the trial Court held thefi-filejee

sons of Chajrmegowda namely, Kengegowda;

Humexigowda, have been giveI)…..i11′ ac1(>}V}:$t;i:5;£i,L;V» fie ,e1:11eru

families during the lifetime ef iTé;tiier’T[

The trial 0911:’: also held defeedafiie f’ai1ed”

to prove that QhaIH1egewdaVAeha£i’:-oi1e_mete’ vsexrxfiby naxne
Muddegowda and died leaving
behind his ogglpgggiie Vk “trial Court also
held that to prove that one
Nathe{;ex£?da:.:%§fee:?flthe of Defendant No-.1«
8oregeeT§e;~ the matter, me Trial Court

held flilat is §*:oVf}::2:’3.d for non–joi1”::der of necessary

=T1′;e f1 irther held that the pIa3′;11:ifi’s

{hat the properties are all joint: famiiy

the piaintifis have 1/6311 share in all the

sehedule properties. Accordingly, the trial Court

e._é'(§Veereed the suit and declared that the p:am:ifi’s»1 & 2

-migether are entitieé for 1/em share in all the suit

sehedtfle properties and also directed that an enquiry

,&_

shall be held with regard to the 1nesz1e–profits as

provided under Order 20 Rule 12 of

aggrieved by the said Judgment and Dec:fe%§;’iibii€?:’::1e§’;8,1

representatives of the 3rd defe:_1da:1t, ‘j;2*1 g:d

bmught on record during the

appeal in RA. No.111/20O5_V:bef0reA'”t3ie at-

Mandya. Being dis~s.g1f£isfie§}_.a;e;iL.*1″t}1_e of share
granted by the: , filed appeal in
RA. 1 12/ 2005;”), V’ hmd together
by the V-{7§_fI$’1eer_ the Fest Traet Court-IV at
Mandfiéve; ‘andy and decree dated

03.02.20{§9, diese’1ieseéi’ifie appeal filee by the LES. ef the

~'”~.__3″?_f §1efe21fi’ani,AA”i;::1…..I§?«A. Ne.1i1/2805 and gnawed the

V,e13peai’v..ffiev(i. :b3? the plaintiffs in RA. No.11?/2005 and

meéified :’t:§§iew..3’1.V1dge1:aerzt of the trial Court by holding time:

the pieiiitiffs —1 £35 2 together are entitled for 1/433 share

A “if the suit schedule properties. Being aggieved by

h file said judgement and decree, the LES, of the 3511

defendarit are in appeal befere this Court.

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5) I have heard Sri. Amamafli Simha, learned

counsel appearing for the appeilants in botli

appeals and perused the judgarnems of the

6) Learned counsel j;

vehemenfly contended that both «t;’1_e”*f3eut’té; L?

committed serious error in ‘£hafQ_VV:(Zvhaiig1eg0wda,
the propositus of theA—.fé;mi£s} ” so13′.eHa11d not 6
some as contemied by,t$1e in this regard,
both the Veefmpleteiy ignored the
evide:eee.–.of .. W/0. Muddegowda. He

further cE;1;teI1ded.’4i;3jat:’::t;he Courts below have committed

_ A’ ergjefitf holding: Kengegowda, Kodigowda arid

‘ §iu:ea§jgeW§ia.we:e given in adoption to ether families. It

his “submission that even if the finding of the

eei1¢w that these three sons of Channegewda had

A if gven in acieption to other families is accepted, the

fgiaetum of adoption could not divest their Vested rights,

namely the rights acquired by them in eewpareenaxy

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property by birih as provided by Sectien 12 (2)03) of the

Hindu Adoption and Maintenance Act, 1956, flxefézfore,

the heirs sf these three persons are entit1¢~d~–

share in the co-parcenary property

position has not been considereciii iv

is his further submission that thmggh C(‘yg”tf”3.1:1*.>:4_V{‘3’£7i(_§;ff3}I1(:£”,_ ‘;

has been led to Show that Bo:€:g§}w*da Iiadkaiiéotficr son by
name Natixegowda, ti3.{§§:%’* i;6;’1z}iv»_»have omitted to
Consider the same a:1d~1.:1f:is’ -has in erroneous

.iudgement_ :53′ 3′ b¢1o:a%. With these

$1,11i)II1i§§SiO1’lS; ‘*31€.._ C€’)3’l’£§§31£i_€;-5} I that the matter requires
(3(}I1Si€}.$I’é?’£’?’1i'()I}. i’)V:;;’ and therefore, the appeal
d:3sr*;_§1f?ées,.to a.c;iIi1i{£§:d.

lfivhave bestowed my aitenfion to the

“‘:3.:.1EmiSsii’_;z;swfiatiaée by the ieamad counsel for the

V V’ _ ap1§ei1a1its.v kfiowevsr, I find no substance in any of these

H K 4” :c:-:>;*13;c3:}fie;:11s. Both the Courts beiow have concmtrently

–‘ that Kengegewda, Kodigawda and

” “”Hu§narigow§a, the 3 sens 9:’ Chaxmegawda ware given in

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adoption to other families during the lifetime: of their

father. Both the Courts below have rej::*;¢té_'(_1.V:”‘t13e

contentions urged by Befondants- 1 to 4

This being a question of fact,-I oaI1not’_4′ VVo’o7i)jée11titlr:ci*1:o”,oof§éiéior tho

correctness of the so-;:’.(;1V f111;:1’i31g ‘_:of ‘fa_ot 1;o(:’o1’-flojd by the

Courts below.

8) itos i’é:gféi””VCoz1tentioI}s urged

with wfersnée to to oii§i4oocfion (2) of Section-« 12
of the Vfiizoidu Maintenance Act, no doubt,

the said praofifsoo Siatos the mere: adoption would not

,.._div’£éj§1′: the ‘Iightoo”‘i%os£od on the adopted. child prior to

course, a co-par<:onar of the joint famiiy

actyooirevs right in the comparcemaljy property by birth.

*'~.__V'fiowes?eVr,A:' in the case on hand, Dofendants– I to 4, who

o:&'ooI1ioStod the suit, did not raise any defence in this

V% hohaif, nor the LES. of those 3 persons, who were

V broughi on record Suosoquonfiy contested the suit by

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eiainiing the share in the property by enforeiI1gV_.f_1_’1e

previso of sub–seetie1t:: (2) to Section 12. of the .

Therefore, the Courts below had I10 H

consider the said aspect ef the ::;:.éite1e~; «As ” {)a,ftie’s

have not raised these eoz1te:3t;.io1″;s,*..i’€”-is ne1:;;_e’pi°eper*:.’te%V”

permit these appeilants to urgeV”fl%:i;es;e eef:tef1tiLeI1W’§§.}{‘ei9 etxe
firs’: time before this e,ppee’_L A Hence, I
reject the said c0:1_ter1tio;1_,_vXff?i1efj.’__Vee;ge:*§i contention
that _;Ii1Aac?2 by name
Muddegoyvfie. ‘Sm1:. Karagemlna,
stated be Sa;iVé’§ziudciege\a.7da has been

examined – fithe trial Court, both the

_ “below i1e§§Ie’ diebelieved her evidence and have

Muddegowda was not the son of

(§i1e§er;e§e€i?_£i_e;;i;;'”The said Karagamma did not file any

jap§1§ea:fien” ieefore the trial Court seeking to implead

V’ ‘A es party” en the geufid that her husband

hIfi;e@:’ieg0Wda is the sen of Chaxmegewéa. Ne eviéence

‘ ezerthy ef aeeeptaflce has been produced to substantiate

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the said contention. Therefore, both the: Co11:’t:{ ‘i3¢loW

have mcorded the concurrent finding sf fact

Muddegowda was not the son of . .V

being a question of fact, cannijt beT’A(?oi1$id erad~w’in £11.13

seconci appeal.

9) From thft above,’ V’ “(:1§53ar A’ ilpon the
death of Channcgowdét; .§)’y”a’:V’i1§}ti§jri5i;§.Vi3;§.jrtiti0n, the (:0-
parcenary profiértées divided among

other su§€i:iv_ing”‘.’ me’:}::;jbéi’~53 r:§f’_ “the family namley,

Boreg{§s.vdT9;TA.. V1) and Jogigowda (433
Cififtifldzéiliiiy. ‘IV’l:”x13:S’,f of these two surviving sons

of chaJmegm;aakgotAha1f (V2) sham. P1aiI1tii¥s- 1 35 2 are

dafighiéf 01′ Channegowda, S/0. Boregawda.

,_.’I’h_€ ‘ ” 4VV(3h émnegoWda pre–~d€:<:eased his father.

'I'1'ic:.1j;<:foV_m, L' the death of $aid Channegowda by a

"':10tjor.ia1&:'paz'£ifi0;"1, Wife and daughter Gf Chaimegoavda

entitled to 1/4m share in all the suit schedule

-~pt§*{::perties, :0 which Chazmegowda was entitied is and

Boragowda was; entitied to the I’eI1}air1i:1g 1/4th share.

1
K
\ .

u to disturb the said abservatjons.

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Upon the death of Chanzlegowda, the shares to w§1}it:h he

was entitled to namely 1/4th» was to be

his Wife, éaughter namely, P1air1tjfi’s~ I

nameiy, ifiefendant No.2. HoWeդer,::fiIifiӤi1g

of {ha suit, both Boregawdg Iizis

(Defefidants -~ 1 85 2} died plaixltfifs
and three daughte’r%_”‘:’*as 1’ refifisentatixres.
Therefore, the allotmgnt-:’»1 piaintiffs by
the Lower. étbéjordance with law.

The Vbeefl anottea to the
daughtgrg ‘N._()::«.-‘ 1 & 2. D6f¢E*3I1C§3I1tS- 3 85 4

togethef “apt? Vthe remaining 2/431 shares.

&i’11v1!:§i,’Vvti:e vvgfipfseflate Court has rightly modified
of share allotted by the trial Court. In
iiudgeznerit of the Lewer Appeilate Court,
;%¥fi¥.3%Nati$ns have been with regard to working

V’ V’ v:d§1t”Qf Efiuities in faveur of the purchasers of saeomc of the

‘ 0f the suit scheduje properties. 1 have no masons

In my epi_n:lcen,’ the

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judgement; and decree passed by the Lower Appeilate

Court is in accordance with law and does for

imerferenee and there is no error of iawi T’ ‘

the Lower Appellate Court. In

do not see any merit in any.o;{‘_ tt1e&g1fe’undseV1i:”ged«’a1i;d.’t}1e’~ e

eentemions of the learned eet11e;ee§ ‘vepfvisfsllzant-5 in
these appeais. The VLi1at»eifi%IQ1ve question
ef law. Therefore, ere be rejected.

10). _II§)._ of . the’ atéove’ Vdiseussions I see no

§”0uIi:d” ‘E0 Hence, the appeals are
rejectef} ffikitifiotlf; .e§d1i1.§tted.

e Sd/-in
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