The High Court
Case Details
- 1 - NC: 2025:KHC:11821-DB RFA No. 174 of 2024 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20TH DAY OF MARCH, 2025 PRESENT THE HON'BLE MR JUSTICE K.SOMASHEKAR AND THE HON'BLE MR JUSTICE VENKATESH NAIK T REGULAR FIRST APPEAL NO.174 OF 2024 (PAR) BETWEEN: 1. SMT. LALITH S. CHETTI W/O. LATE K.R. SRINIVASCHETTI AGED ABOUT 63 YEARS RESIDING AT NO.229/215 SRI KALKI ASHIRVAD 2ND CROSS, SIR M.V. ROAD BEERAPPA ROAD CHIKKABALLAPURA-562 101. 2. SRI K.N. SHARATH S/O. LATE SRINIVASCHETTY AGED ABOUT 39 YEARS RESIDING AT NO.229/215 SRI KALKI ASHIRVAD 2ND CROSS, SIR M.V. ROAD BEERAPPA ROAD CHIKKABALLAPURA-562 101. 3. SMT. K.S. SWAPNA (BHAVANI) D/O. LATE SRINIVASCHETTY W/O. SATHISH AGED ABOUT 41 YEARS RESIDING AT NO.1224 11TH A CROSS, 24TH MAIN HSR LAYOUT, 1ST SECTOR BENGALURU-560 102. Digitally signed by MOUNESHWARAPPA NAGARATHNA Location: High Court of Karnataka (BY SRI DILIP KUMAR I.S., ADVOCATE) …APPELLANTS - 2 - NC: 2025:KHC:11821-DB RFA No. 174 of 2024 AND:
Legal Reasoning
SMT. D.V. KOUSALYA W/O. LATE K.R. CHANDRASHEKAR AGED ABOUT 54 YEARS RESIDING AT #374 SRINIVASNILAYA KOLATLUBHEEDHI WARD NO.9 CHIKKABALLAPURA-562 101. (BY SRI K. SHIVAJI RAO, ADVOCATE) * * * …RESPONDENT THIS REGULAR FIRST APPEAL IS FILED UNDER SECTION 96 READ WITH ORDER XLI, RULE 1 OF THE CODE OF CIVIL PROCEDURE, 1908, AGAINST THE JUDGMENT AND DECREE DATED 17-8-2022 PASSED IN ORIGINAL SUIT NO.204 OF 2018 ON THE FILE OF THE II ADDITIONAL J.M.F.C., CHIKKABALLAPURA, PARTLY DECREEING THE SUIT FOR PARTITION. SENIOR JUDGE CIVIL AND THIS REGULAR FIRST APPEAL IS COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR JUSTICE K.SOMASHEKAR and HON'BLE MR JUSTICE VENKATESH NAIK T ORAL JUDGMENT (PER: HON'BLE MR JUSTICE VENKATESH NAIK T.) This appeal is filed by the defendants challenging the judgment and decree dated 17-8-2022 passed by the II Additional Senior Civil Judge and Judicial Magistrate First Class, Chikkaballapura, in Original Suit No.204 of 2018. - 3 - NC: 2025:KHC:11821-DB RFA No. 174 of 2024 2. For the sake of convenience, the parties are hereinafter referred to as per their rankings before the trial Court. The appellants are the defendants and the respondent is the plaintiff. 3. Plaintiff filed a suit against the defendants for partition and separate possession in respect of the suit schedule properties. The suit schedule properties are the joint family properties of the husband of the plaintiff and the husband of defendant No.1. Earlier, the suit schedule properties were revenue land. Later, it was converted for non-agricultural purpose and sites were formed. Thus, all expenses were borne by the husband of the plaintiff. Khata and other documents were standing in the name of the husband of the plaintiff, i.e. Sri K.R. Chandrashekar, along with the husband of defendant No.1, by name, Sri K.R. Srinivaschetti. Now, the husband of the plaintiff and the husband of defendant No.1 are no more. The plaintiff in order to meet the family commitments and to improve sites, approached the defendants to assist and requested them to separate the properties, but the defendants refused to divide the suit schedule properties. Hence, the plaintiff filed a suit for partition. - 4 - NC: 2025:KHC:11821-DB RFA No. 174 of 2024 4. After initiation of the suit, summons were issued to the defendants. Defendant No.1 filed her written statement denying the status of joint family, but admitted that partition took place between the plaintiff and the defendants thirty years ago and since then, the plaintiff and the defendants are residing separately. Defendant No.1 has taken the contention that the suit schedule properties are the absolute properties of her husband, K.R. Srinivaschetti. The plaintiff, or her husband, does not have any right, title or possession over the suit schedule properties. Hence, she prayed to dismiss the suit. 5. Defendant Nos.2 and 3 filed their written statement and contended that the suit of the plaintiff is not maintainable against defendant Nos.2 and 3 for want of cause of action. 6. The trial Court, based on the pleadings of the parties, framed the following issues: 1. Whether the plaintiff proves that suit schedule properties are joint family properties of himself and defendant? 2. Whether the defendant proves the prior partition? - 5 - NC: 2025:KHC:11821-DB RFA No. 174 of 2024 3. Whether the plaintiff proves the existence of suit schedule properties as prescribed in the plaint schedule? 4. Whether the defendant proves that suit is bad for non-joinder of necessary parties? 5. Whether the plaintiff is entitled for the relief as partition and separate possession? 6. What order or decree? Further, on 15-2-2021, the trial Court framed the following additional issues: 1. Whether defendant No.2 and 3 prove the prior partition? 2. Whether defendant No.2 and 3 further prove that suit properties are absolute properties of their father Srinivas Chetty? 7. The plaintiff, in support of her case, examined on oath as PW1 and got marked Exs.P1 to P9. Defendants did not enter the witness box and have not produced any documents in support of their contention. - 6 - NC: 2025:KHC:11821-DB RFA No. 174 of 2024 8. The trial Court, after considering the oral and documentary evidence on record, answered issue Nos.1 and 3 in the affirmative, issue Nos.2 and 4, additional issue Nos.1 and 2 in the negative, issue No.5 partly in the affirmative and consequently, partly decreed the suit of the plaintiff and granted 1/5th share over the suit schedule properties. Further, the trial Court granted 1/5th share together in favour of defendant Nos.1 to 3. 9. Aggrieved by the judgment and decree passed by the trial Court, the defendants have preferred this appeal. 10. Heard Sri Dilip Kumar I.S., learned counsel for the appellants/defendants, as well as Sri K. Shivaji Rao, learned counsel for the respondent/plaintiff, and perused the material available on record. 11. Learned counsel for the appellants/defendants has contended that the trial Court gravely erred in decreeing the suit of the plaintiff without considering the available material on record. The decree of the trial Court is contrary to the facts and circumstances of the case and is liable to be set aside. The plaintiff is entitled for 1/2 share in the suit schedule properties, - 7 - NC: 2025:KHC:11821-DB RFA No. 174 of 2024 but the trial Court, without there being any evidence or pleadings, decreed the suit of the plaintiff declaring that, she is entitled for 1/5th share of the suit schedule properties when there are only two parties for equal sharing. The husband of the plaintiff, K.R. Chandrashekar, and the husband of defendant No.1, K.R. Srinivaschetti, were the legal heirs of Sri K.N. Ramaiah and Smt. R. Thimmakka. Genealogical Tree shows that Sri. K. N. Ramaiah and Smt. R. Thimmakka had three daughters, by name, Smt. Rathnamma, Smt. Vijayalakshmi and Smt. K.R. Geetha. The plaintiff has not made the daughters as parties to the suit. Hence, at the threshold, the suit of the plaintiff is liable to be rejected for non-joinder of the parties, but the trial Court decreed the suit in favour of the parties, who are not parties to the suit, which is illegal as no decree can be passed against the third parties. The suit schedule properties are framed out of Survey Nos.196/2, 196/3, 196/4 and 197/2 and the plaintiff herself has produced a partition deed dated 16-9-1994 as per Ex.P7 which is self- explanatory as to the partition among the legal heirs of Late K.N. Ramaiah. The said partition deed was executed among them, in which, Late Thimmakka was the first party, Late - 8 - NC: 2025:KHC:11821-DB RFA No. 174 of 2024 K.R. Srinivas Chetti i.e., (husband of defendant No.1) as second party, K.R. Chandrashekar (husband of the plaintiff) as third party and Smt. Rathnamma, Smt. Vijayalakshmi and Smt. K.R. Geetha as fourth party. Further, the ancestral and self-acquired properties of Late K. N. Ramaiah were divided among the legal heirs, in which, the suit schedule properties were jointly shared with Late Thimmakka, Late K.R. Srinivas Chetti and K.R. Chandrashekar and other properties were allotted to other members of the family. As such, the suit schedule properties became the absolute properties of Late Thimmakka, Late K.R. Srinivas Chetti and K.R. Chandrashekar and other daughters of Late K. N. Ramaiah have no role to play in the suit schedule properties, but the trial Court ought to have over looked Ex.P7 and came to the conclusion that the plaintiff and defendants have 1/5th share in the suit schedule properties. Thus, on these grounds, he prayed to allow the appeal. 12. Learned counsel for the respondent/plaintiff has fairly submitted that there are only two sharers, i.e. the plaintiff and defendant No.1. Defendant Nos.2 and 3 are the children of - 9 - NC: 2025:KHC:11821-DB RFA No. 174 of 2024 defendant No.1. Hence, the plaintiff and defendant No.1 alone are entitled for 1/2 shares each in the suit schedule properties. 13. Learned counsel for the appellants/defendants concedes to the submission made by the learned counsel for the respondent/plaintiff. 14. We have perused the material available on record, more particularly, the plaint, written statement, oral evidence of PW1 and contents of Exs.P1 to P9. It clearly establishes that the suit schedule properties are the joint family properties of the plaintiff and the defendants. Suit schedule properties were earlier agricultural lands and later, same was converted for non-agricultural purpose. The husband of the plaintiff and the husband of defendant No.1 formed sites in the suit schedule properties and the said aspect is not disputed. 15. Keeping in view the submission made by the learned counsel for the appellants/defendants and the learned counsel for the respondent/plaintiff, and the material available on record, it clearly establishes that the suit schedule properties are the joint family properties of the plaintiff and the defendants. Thus, the plaintiff is entitled for 1/2 share and - 10 - NC: 2025:KHC:11821-DB RFA No. 174 of 2024 defendant Nos.1 to 3 (defendant Nos.2 and 3 are the children of defendant No.1) together entitled for 1/2 share in the suit schedule properties, but the trial Court without considering the pleadings and issues between the parties, wrongly granted 1/5 share to the plaintiff and 1/5 share together to defendants Nos.1 to 3, which requires interference by this Court. 16. For the reasons stated above, we pass the following i. Appeal is partly allowed,
Decision
O R D E R ii. The judgment and decree dated 17-8-2022 passed by the II Additional Senior Civil Judge and Judicial Magistrate First Class, Chikkaballapura, in Original Suit No.204 of 2018, is hereby modified as under: The appellants/defendants are together entitled for 1/2 share and the respondent/plaintiff is entitled for 1/2 share in the suit schedule properties. - 11 - NC: 2025:KHC:11821-DB RFA No. 174 of 2024 iii. Registry is directed to draw decree accordingly. Sd/- (K.SOMASHEKAR) JUDGE Sd/- (VENKATESH NAIK T) JUDGE KVK List No.: 1 Sl No.: 20