Kl.Thippe Swamy v. Smt.K.Durgamma

NC:(2024:KHC-D:14924-DB( RFA(No.(100224(of(2019( ( ( ( ( IN(THE(HIGH(COURT(OF(KARNATAKA,(DHARWAD(BENCH(

THDATED(THIS(THE(15 (DAY(OF(OCTOBER,(2024(

PRESENT(

THE(HON'BLE(MR.(JUSTICE(SREENIVAS(HARISH(KUMAR(

AND((

THE(HON'BLE(MR.(JUSTICE(T.(G.(SHIVASHANKARE(GOWDA(

REGULAR,FIRST,APPEAL,NO.100224,OF,2019,(DEC/PAR), BETWEEN:(( K.,THIPPE,SWAMY, S/O.,LATE,K.,MARENNA,,SINCE,DEAD,BY,LRS:,

,

1., SMT.,K.,SUJATHA,W/O,LATE,SRI.,K.,THIPPE,SWAMY,, AGED,ABOUT,46,YEARS,, ,

2., KUM.,K.,MANJU,CHARITHA,,

D/O.,LATE,SRI.,K.,THIPPE,SWAMY,, AGED,ABOUT,30,YEARS,, ,

3., K.,MANJU,SUMAN,S/O.,LATE,SRI.,K.,THIPPE,SWAMY,, AGED,ABOUT,29,YEARS,, , ALL,ARE,R/O,DOOR,NO.1/666,,KOVURU,NAGAR,, ANANTHAPURAM,,ANDRA,PRADESH,510001.,

-, APPELLANTS, (BY,SRIYUTHS,K.L.,PATIL,AND,S.A.,SONDUR,,ADVOCATES), , MANJANNA E AND:( Digital ytisignedtiby MANJANNA0E Location:0High0Courttiof , SMT.,K.,DURGAMMA,,W/O.,LATE,K.,MUSTHANNA, Karnataka,0Dharwad Bench Date:02024.10.23 14:33:460+0530 SINCE,DECEASED,BY,HER,LRS, ,

1., SMT.,K.,RAMA,LAKSHMI,D/O.,LATE,SRI.,K.,MUSTHANNA,, W/O.,DR.,SRI.,K.,THARASALAPPA,, AGE:,64,YEARS,,OCC:,HOUSEWIFE,, R/O.,DOOR,NO.C-18,,BEHIND,DATTA,SCHOOL,, NDRAGHAVENDRA,COLONY,,2 ,STAGE,,BALLARI-583101., ,

2., K.,GURU,PRASAD,S/O.,LATE,SRI.,K.,MUSTHANNA,, AGED,ABOUT,56,YEARS,,WORKING,AS,A,BUS, CONDUCTOR,IN,APSRTC,,R/O,DOOR,NO.6/1/585,, BESIDE,NAGALAKATTA,,LAKSHMI,NAGAR,, ANANTHAPURAM-510001,,ANDRA,PRADESH., NC:(2024:KHC-D:14924-DB( RFA(No.(100224(of(2019( ( ( ( (

3., K.,NAGENDRA,KUMAR,S/O.,LATE,SRI,K.,MUSTHANNA,, AGE:,53,YEARS,,OCC:,BUSINESSMAN,, R/O,DOOR,NO.6/1/585,,BESIDE,NAGALAKATTA,, LAKSHMI,NAGAR,,ANANTHAPURAM,510001,, ANDRA,PRADESH., ,

4., K.,RAJA,SHEKAR,S/O,LATE,SRI.,K.,MUSTHANNA,, AGE:,53,YEARS,,OCC:,BUSINESS,, R/O,DOOR,NO.6/1/585,, BESIDE,NAGALAKATTA,,LAKSHMI,NAGAR,, ANANTHAPURAM-510001,,ANDRA,PRADESH., ,

5., SMT.,K.,SAROJAMMA,D/O.,LATE,SRI.,K.,MARENNA,, W/O.,K.,KONDAIAH,,AGE:,60,YEARS,, R/O,SRI,NEELAM,SANJEEVA,REDDY,BUILDING,, BESIDES,CVR,MEMORIAL,NEW,SCHOOL,, KOVURU,NAGAR,,ANANTHAPURAM-510001, ANDRA,PRADESH., ,

6., THE,LAND,ACQUISITION,OFFICER, CUM,ASSISTANT,COMMISSIONER,, BALLARI,REVENUE,SUB-DIVISION,, D.C.,OFFICE,COMPLEX,,BALLARI,583101., ,

7., THE,COMMISSIONER,, BALLARI,URBAN,DEVELOPMENT,AUTHORITY,(BUDA),, BALLARI,583101., ,

8., K.,MARENNA,S/O.,LATE,K.,MUSTHANNA,, AGE:,68,YEARS,,OCC:,RETIRED,, R/O,DOOR,NO.6/1/584,, BESIDE,NAGALAKATTA,,LAKSHMI,NAGAR,, ANANTHAPURAM-510001,,ANDRA,PRADESH., -, RESPONDENTS, (BY,SMT.,V.,VIDYA,,ADVOCATE,FOR,R1-R4;, SRI.,JAIRAM,SIDDI,,HCGP,FOR,R6;, SRI.,GIRISH,S.,HULMANI,,ADVOCATE,FOR,R7;, SRI.,S.G.,NANDOOR,,ADVOCATE,FOR,R8,, NOTICE,TO,R5,IS,SERVED), , , THIS,REGULAR,FIRST,APPEAL,IS,FILED,UNDER,SECTION,96,OF, CPC,PRAYING,TO,SET,ASIDE,THE,JUDGMENT,AND,DECREE,DATED, ST25.09.2018,PASSED,BY,1 ,ADDL.,SENIOR,CIVIL,JUDGE,,BALLARI,IN, O.S.,NO.195/2013,BY,ALLOWING,THE,APPEAL,IN,THE,INTEREST,OF, JUSTICE,AND,EQUITY,&,ETC., ,,,

THIS REGULAR FIRST APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

CORAM: THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR AND THE HON'BLE MR. JUSTICE T. G. SHIVASHANKARE GOWDA

ORAL JUDGMENT (PER: THE HON'BLE MR. JUSTICE SREENIVAS HARISH KUMAR)

The legal representatives of the plaintiff in O.S. No. 195/2023 on the file of the I Addl. Senior Civil Judge, Ballari, has preferred this appeal questioning the correctness of the judgment dated 25.09.2018.

¶2Durgamma was the plaintiff. She brought the suit for partition and separate possession of her half share in 5.58 acres of land bearing Sy. No. 883/2 situated in Anantapur Road, Ballari, which is now called 'Raghavendra Colony Second Stage'. She also sought a direction to defendant nos.3 and 4 to pay 50% of the compensation amount to her in relation to acquisition of the said land.

¶3Plaint averments show that plaintiff's father Chintakunta Ramaiah purchased 8.58 acres of land in Sy. No. 883/2 under a sale deed dated 24.02.1997. Chintakunta Ramaiah died intestate about 40 years ago prior to institution of the suit

leaving behind the plaintiff and his son K. Marenna. Defendant no.2 is the first defendant's sister. In the course of time, the plaintiff and defendant nos.1 and 2 sold three acres of land out of 8.58 acres to one Mundalur Govardhan. Thereafter the remaining land measuring 5.58 acres was given a separate survey number as Sy. No. 883/2 and it was acquired by the Assistant Commissioner, Ballari Revenue Sub Division, for formation of a residential layout called Raghavendra Colony Second Stage. It appears that the first defendant's father K. Marenna received a sum of Rs.2,89,053/- towards compensation in relation to acquisition of land and he sought reference to the civil Court u/S 18 of the Land Acquisition Act seeking enhancement of the compensation. K. Marenna died on 27.02.2001. In L.A.C. No. 5/2011, the Prl. Sr. Civil Judge passed an award enhancing the compensation. It appears that the first defendant represented before the Reference Court stating that he was the only heir entitled to receive compensation on the basis of Will dated 08.11.2000 executed in his favour by K. Marenna, his father. The plaintiff stated that K. Marenna had no exclusive right to bequeath the entire suit property in favour of defendant no.1 as he was only entitled to

half share in the suit property and therefore the will dated

18.11.2000 did not take away her right to claim share in the compensation amount. Alleging that defendant no.1, taking undue advantage of the situation, made an attempt to withdraw the compensation amount, she brought the suit for the above reliefs.

¶4The first defendant, in his written statement admitted the plaintiff to be his aunt and contended that she could not lay claim on the compensation as it was awarded to his parental side. He stated that the right of the plaintiff was that of reversioner while she was a Class-2 heir and does not get any preference over him and his sister, i.e., defendant no.2, who are Class-1 heirs. He also stated that plaintiff cannot comment on the will executed by his father and she also failed to challenge the will during the lifetime of his father K. Marenna. He contended that the suit was time barred because of her failure to take action within time after gaining knowledge in the year 1998.

¶5Defendant no.2 stated in her written statement that she was the daughter of K. Marenna. In view of Sec. 6 of the Hindu Succession Act the plaintiff was not entitled to any share in the properties of her father, i.e., Chintakunta Ramaiah, or the properties belonging to K. Marenna. She also disputed the will set up by the first defendant by stating that first defendant alone was not at all entitled to entire estate left by her father. She stated that her father had no exclusive right to will away ancestral properties. She sought for dividing the properties by metes and bounds and to allot share in the compensation.

¶6Defendant no.5 is the son of the plaintiff and stated that since there was no division of properties between his mother Durgamma and the first defendant, he too is entitled to equal share in the share of his mother.

¶7The Trial Court framed five issues and three additional issues and then partly decreed the suit declaring that the legal representatives of the plaintiff were entitled to ½ share in the compensation amount awarded in L.A.C. No. 5/2011 in respect of the acquired land.

¶8We have heard arguments of Sri S.A. Sondur, learned counsel for the appellants and Smt. V. Vidya, learned counsel for respondent nos.1 to 4.

¶9It is the argument of Sri S.A. Sondur that the first defendant was entitled to claim entire compensation as his father had executed a will in his favour in respect of entire suit property. There is no dispute that the property was purchased by Chintakunta Ramaiah, the grandfather of the first defendant. It is submitted that the said Chintakunta Ramaiah had died 40 years ago as on the date of institution of the suit and since then plaintiff never claimed her share in the property and therefore she became disentitled to claim share in the compensation. First defendant being the son of K. Marenna is entitled to claim entire property on the basis of the will executed by Marenna who alone succeeded to entire property of his father. The Trial Court did not frame any issue on the will, without this issue if the Trial Court holds that the will in respect of entire property could not have been executed by Marenna, it only shows improper way of appreciation of evidence. Therefore the Trial Court could not have held that

the legal representatives of the plaintiff were entitled to half share in the compensation amount.

¶10Per contra, Smt. V. Vidya, learned counsel for respondent nos.1 to 4 submits that the plaintiff and K. Marenna were the two children of Chintakunta Ramaiah. Since the property was self acquisition of Chintakunta Ramaiah, the plaintiff and K. Marenna were entitled to equal shares. K. Marenna could not have executed the will in respect of entire property, at best he could have executed the will to the extent of his 50% share. The right of Durgamma did not vanish just because she did not claim partition soon after death of her father. She also submits that when three acres out of 8.58 acres was sold, she was a party to the sale deed along with defendant nos.1 and 2 and therefore this itself shows that she had a right to claim 50% share in the compensation amount. In this view, the Trial Court judgment is correct and hence the appeal deserves to be dismissed.

¶11In reply, Sri S.A. Sondur submits that property was self acquisition of Chintakunta Ramaiah having purchased it before 1956, the plaintiff could not claim any right over the property.

¶12In the light of the arguments submitted, the points that arise for discussion are as follows:

(1) Whether the plaintiff lost her right because of her birth before 1956?

(2) Whether K. Marenna could have executed a will in respect of the entire property in favour of the first defendant?

¶13These two points are discussed together for the sake of convenience. It is not in dispute that the entire land measuring

8.58 acres in Sy. No. 883 was the self-acquisition of Chintakunta Ramaiah and in fact defendant no.1 had admitted in the cross examination that the property was the self acquisition of his grandfather. If the property was self acquisition, irrespective of the date of birth of the plaintiff, she became entitled to succeed to the property of her father's self acquisition. It is not a coparcenary property to state that she was not entitled to a share. This being the position of law, the

argument of Sri S.A. Sondur that plaintiff did not have right to claim partition, cannot be accepted. Since it was the self acquisition of Chintakunta Ramaiah and he died intestate, his two children, i.e., the plaintiff and K. Marenna, succeeded to the property and they had equal share. Just because the plaintiff did not claim share it does not mean that she forwent her share in the property. Defendant no.1 did not take plea of ouster in the written statement. The second aspect of the matter is that when part of 8.58 acres was sold in favour of one Mundalur Govardhan under a sale deed dated 15.03.1989, Durgamma was a consenting witness to the sale deed. That means, the first defendant admitted that she had a right over the property. In this view of the matter, she never lost her right.

¶14After the suit property was acquired by the Government she too became entitled to claim 50% share in the compensation amount. Noticing this aspect of the matter, if the trial Court has decreed the suit holding that the plaintiff's legal representatives are entitled to 50% of the compensation amount, we do not find any infirmity in the judgment.

¶15In regard to will said to have been executed in favour of the first defendant by his father, as rightly argued by Smt. Vidya, the first defendant's father did not have right over entire property to execute a will, at best will may survive to the extent of his half share. Sri Sondur argued that Trial Court ought to have framed an issue with regard to validity of the will. This argument cannot be accepted, for the will does not take away the right of the plaintiff, and its execution is not in issue here.

¶16Advocate Sri S.G. Nandoor appearing for respondent no.8 / defendant no.5 submits that respondent no. 8 is entitled to 1/5th share out of 50% share allotted to the legal representatives. It is a fact that defendant no.5 is one of the sons of Durgamma, the plaintiff. Had Durgamma been alive, defendant no.5 could not have claimed any share. Now that she died during the pendency of the suit, he is entitled to claim a share in the compensation amount. Defendant no.5 has paid Court fee on his written statement as he has sought allotment of his share in the compensation. Since defendant no.5 is one

of the sons of the plaintiff, he can claim share in the compensation amount. The above discussion takes us to conclude that appeal is devoid of merits. Therefore appeal is dismissed. There is no order as to costs.

Sd/- (SREENIVAS HARISH KUMAR) JUDGE

Sd/- (T. G. SHIVASHANKARE GOWDA) JUDGE BVV/ LIST NO.: 1 SL NO.: 15