Amaranarayanswamy v. A K Nagaraja

JUDGMENT AND DECREE DATED

16.03.2012 PASSED IN O.S.NO.227/1989 ON THE FILE OF THE PRL.CIVIL JUDGE AND JMFC CHIKKABALLPUR.

THESE APPEALS, COMING ON FOR ORDERS, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA ORAL JUDGMENT These two appeals arise out of the judgment passed in O.S.No.227/1989 whereby suit came to be decreed in part and confirmed by the First Appellate Court in R.A.No.68/2012.

¶2Facts in the nutshell which are utmost necessary for disposal of the present second appeals are as under:

¶3A suit for partition, separate possession and declaration came to be filed by Sri. Venkatanarasappa against Smt.Lakshmikanthamma and Sri A.K.Nagaraj.

¶4During the pendency of the suit, Venkatanarasappa (original plaintiff) died and his legal representatives were brought on record. So also, Lakshmikanthamma (first defendant) died and in her place, A. Dayashankar was brought as a legal representative and when A. Dayashankar died in his

place, K.N.Vijayalakshmi, A.D. Suchithra and A.D. Krishna Kumar were brought in as parties to defendant No.1.

¶5In the plaint, it is contented that following movable and immovable properties (hereinafter referred to as 'suit properties') belonged to Akalasheshappa and he died issueless leaving behind defendant No.1 – Lakshmikanthamma as his wife: SCHEDULE

¶1House bearing Municipal No.144-2nd division, Chikkaballapura bounded on the East by Road, West by House of Palakshaiah, North by House of T.M.Gangojirao and South by house of Jayamma.

¶2Two shops bearing Municipal Nos.347 and 348 of 2nd Division, Chikkaballaprua, bounded on the East by Road, West by Vijaya Bank, North by Vijaya Bank and South by Road.

¶3One Godown bearing Municipal No.175 of Chikkaballapura town and bounded on the East by Road, West by Building Thimmachari, North by House of Appalappa and South by House of Narayanappa

¶4Site bearing Municipal No.982 of Division, Chikkaballapura and Bounded on the East by Railway's property, West by Road, North by vacant site of Besti Kondappa and South by Road.

¶5Two shops bearing Municipal Nos.33 and 34 of 4th Division of Chikkaballapura and bounded on the East by Shop of Gurubasappa, West by Road, North by Main road and South by Vacant site of Bachu Vasappa.

¶6House bearing Municipal No.110, of Kandavara, 6th Division, Chikkaballapura and bounded on the East by House of Kasappa, West by vacant site of Muthoori Bachappa, North by Municipal road and South by Vacant site of Muthorri Karagappa.

¶7Land bearing Sy.no.14, situated in Kandavara, Chikkaballapura Taluk measuring 25 guntas and bounded on the East by Rajakaluve, West by Bajanthri Ramaiah's land, North by Bachappa's land and South by Nama Ashwathaiah's-land

¶8Land bearing No.240/2, situated in Kandavara, Chikkaballapura taluk, measuring 3-03 Guntas and bounded on the East by Yenaganna's land. West by Chinna Annaiahappa's lands, North by Govindappa's lands and South by Devara Inamthi's lands.

¶9Amount deposited in Vijaya Bank, Chikkaballapura both in the name of the defendants and also in the name of Akala Sheshappa.

¶6P. Annayappa and Venkatanarasappa are the sons and Lakshmamma is the daughter of P. Narasimhaiah. Smt. Mangamma who is the wife of Annayappa had a brother who is none other than Akalasheshappa, who was married to

Anayappa's daughter namely Venkatanarasamma. For better understanding the relationship among the parties geneological tree is culled out hereunder:

P.NARASIMHAIAH(DEAD) ANNAYYAPPA =MANGAMMA P.VENKATANARASAPPA =SMT.LAKSHMAMMA SMT.LAKSHMAMMA =RAMAIAH P.VENKATANARASAPPA = GOVINDAMMA VENKATA NARASAMMA P.V.RAMAIAH =K.N.RATHNAMMA M.R.KRISHNAPPA =GOVINDAMMA VENUGOPAL DR.LAKSHMIDEVI AMARANARAYANA SWAMY NARAYANASWAMY GIRIJAMBA VIJAYALAKSHMI P.VENKATANARASAPPA = GOVINDAMMA P.V.NARASIMHALU P.V.RAMA PRASAD P.V.MANJULA AKALA SESHAPPA (1ST WIFE) VENKATANARASAMMA (2ND WIFE) LAKSHMIKANTHAMMA

¶7It is further found from the plaint averments suit property originally belonged to P Narasimhaiah. He had two sons and a daughter namely, Annayappa, Venkatanarasappa and Lakshmamma. Among the children of P. Narasimhaiah, Annayappa had a son by name Venkatanarasappa and a daughter Venkatanarasamma. Second son Venkatanarasappa had a son by name, P.V. Ramaiah who had six children. Daughter, Smt. Lakshmamma had a son by name M.R.Krishnappa. Venkatanarasappa being the first son of Annayappa had three children namely, Narasimhalu, P. V. Ramaprasad and P. V. Manjula. Son-in-law of Annayappa, namely, Akalasheshappa, had two wives, namely, Venkatanarasamma (daughter of Annayappa) and second wife by name Lakshmikanthamma – second defendant.

¶8As could be seen from the plaint averments, Akalasheshappa could not have been treated as the class-I heir of the common prepositous. Therefore, Akalasheshappa did not have any right, title or interest in respect of the suit properties so as to be succeeded by defendant No.1 - Smt.Lakshmikanthamma who had dealt with the suit property

in favour of defendant No.2. Therefore, suit was filed by P.Venkatanarsappa for partition, separate possession and declaration.

¶9Suit on contest came to be decreed in part. Operative portion of the judgment of the trial Court reads as under: "The suit of the plaintiff is hereby decreed in part. It is hereby declared that the properties held by defendant is devolve on the plaintiff and the L.Rs of the plaintiff are entitled to succeed all the suit schedule properties except properties sold by Akala Seshappa during his lifetime i.e., item No.4 and 5 of B schedule. The suit of the plaintiff in respect of partition and separate possession of their 1/3rd share is hereby dismissed. Under the circumstances of the case, no order as to costs. Draw decree accordingly."

¶10Being aggrieved by the said judgment and decree passed by the First Appellate Court, it is the second defendant Sri A.K. Nagaraj, K.N.Vijayalakshmi, who is wife of A.Dayashankar, claiming to be the legal representative and

assignee interest of Smt.Lakshmikanthamma and A.D.Suchitra filed the appeal in R.A.No.68/2012.

¶11Learned judge in the First Appellate Court after securing the records heard the arguments of the parties and noted that Akalasheshappa would not have got any right, title or interest in respect of the suit property being the son-in-law of Annayappa and dismissed the appeal.

¶12Against the dismissal of the regular appeal, these two second appeals came to be filed.

¶13Appeal filed by Sri Amaranarayanaswamy in RSA No.318/2019 is only to the extent of not passing any order on the application filed by the appellants in R.A.No.68/2012.

¶14Admittedly, the appellants in RSA No.318/2019 are the grandchildren of P.Venkatanarsappa, who is the second son of common prepositous P. Narasimhaiah.

¶15Insofar as the appellant Sri A.K. Nagaraj in RSA No.116/2019 is concerned, he was the second defendant in the suit – O.S.No.227/1989 who claimed interest by virtue of the transactions made by Lakshmikanthamma in his favour based on the title said to have been possessed by Akalasheshappa.

¶16Having heard the arguments of Sri H.S.Santhosh and Sri A.V.Gangadrappa, learned counsels for the appellants in RSA No.116/2019 and RSA No.318/2019 respectively and Sri C.R.Subramanya, learned counsel for the respondent Nos.1 to 3 in RSA No.116/2019 and respondent Nos.6 to 8 in RSA No.318/2019 and Sri K.H. Somashekhara, learned counsel for respondent No.9 in RSA No.318/2019, this Court noted that following substantial questions of law have been raised in respective appeal memorandum. In RSA NO.116/2019

¶1Whether the courts below are justified in holding that the legal representatives of the deceased plaintiff are entitled to succeed to the estate as per section 8 and 9 of the Hindu succession Act, 1956 ?

¶2Whether the courts below are justified in holding that Mangamma, the mother of the plaintiff, is the sister of Akala seshappa without there being any materials on record to the said effect?

¶3Whether the courts below are justified in allowing the application for amendment as to declaration filed by the plaintiff in contrary to the provision of section 58 of the Indian Limitation Act?

¶4Whether the lower appellate court is justified in dismissing the application filed under order 41 Rule 27 of

CPC, which was filed by the appellant, at the time of passing the final judgment without considering the application independently ?

¶5Whether the lower appellate court was justified in dismissing the application led by the appellant under order 6 Rule 17 CPC at the time of passing the final judgment without considering the application independently?"

In RSA No.318/2019 "(a) Whether the procedure adopted by the lower appellate court in not first disposing of the application filed by appellants for impleading as additional respondents and without assigning any reasons whatsoever dismissing the said application in the judgment on merits itself, is legal and valid and whether the lower appellate court is justified in passing the impugned judgment and decree?

(b) Whether the courts below are justified in law in granting the decree in favour of the legal representatives of the plaintiff only insofar as suit schedule items except item No.4 and 5 of "B" schedule properties?

(c) Whether the courts below are justified in law in passing the impugned judgment and decree without considering the evidence on record?"

¶17Since the matter is not yet admitted, this Court heard them on the question of whether at all the appeal needs to be admitted on the aforesaid substantial questions of law and considered the arguments addressed by them.

¶18Insofar as the appellants in RSA No.318/2019, they sail with the successful party in the original suit O.S.No.227/1989. Thus, they are not aggrieved party insofar as the judgment passed in O.S.No.227/1989, confirmed in R.A.No.68/2012 and therefore their appeal needs consideration on merits.

¶19However, if they have got any independent right In respect of the suit property being the grandchildren of P.Venkatanarsappa, who is the second son of common prepositous, namely P. Narasimhaiah, they may work out in a duly constituted suit in accordance with law as the suit is partly decreed in O.S.No.227/1989.

¶20With that observation, RSA No.318/2019 needs to be dismissed.

¶21Insofar as the appeal filed by Sri A. K. Nagaraj in RSA No.116/2019, who is the second defendant in O.S.No.227/1989, it is to be noted that Akalasheshappa being the son-in-law of Annayappa and Mangamma and also the brother of Mangamma, did not possess any independent right in respect of the suit property. Admittedly, he cannot be

termed as class – I legal heir, when P. Narasimhaiah had other heirs namely, Annayappa (who has got a son by name Venkatanarasappa), P. Venkatanarasappa (who has got a son P.V. Ramaiah and grandchildren) and Smt.Lakshmamma (who has also got a son by name M.R.Krishnappa).

¶22Thus, when Akalasheshappa himself did not get any right, title or interest in respect of the suit property being the son-in-law of Annayappa, his second wife Lakshmikanthamma only on the ground of death of Akalasheshappa did not get any right to deal with the suit property.

¶23Therefore, A.K. Nagaraja being the appellant who had got the right through Lakshmikanthamma did not have any right to oppose the suit. As such, the decreeing of the suit by the Trial Court, confirmed by the First Appellate Court, needs no interference in this appeal also. Hence, RSA No.116/2019 needs to be dismissed.

¶24Accordingly, the following: ORDER Appeals in RSA No.116/2019 and RSA No.318/2019 are hereby dismissed. No order as to costs. Sd/- (V SRISHANANDA) JUDGE

MR

((((((((((((HC-KAR, NC:(2026:KHC:40237( RSA(No.(116(of(2019( C/W(RSA(No.(318(of(2019( ,,,,,,,,,, , CNR:(KAHC010009592019( ( ( ( IN(THE(HIGH(COURT(OF(KARNATAKA(AT(BENGALURU( ST DATED(THIS(THE(31 (DAY(OF(JULY,(2026( BEFORE( THE(HON'BLE(MR.(JUSTICE(V(SRISHANANDA( REGULAR(SECOND(APPEAL(NO.116(OF(2019((PAR)( C/W(REGULAR(SECOND(APPEAL(NO.318(OF(2019(( ( (IN(RSA(No.(116/2019 BETWEEN:(( ( , A,K,NAGARAJ, S/O,A.B.KRISHNAPPA,, AGED,ABOUT,51,YEARS, RESIDING,AT,IN,CSI,HOSPITAL,ROAD,, CHIKBALLAPUR-562,101, …APPELLANT, (BY,SRI.,H,S,SANTHOSH,,ADVOCATE), AND:( ( 1., P,V,NARASIMHALU, S/O,P.VENKATANARASAPPA,, AGED,ABOUT,66,YEARS, Digitally KANDAVARA,, signedtiby CHIKKABALLAPUR-562,101,MALATESH ,K0C 2., P.V.RAMAPRASAD,Location: HIGH S/O,P.VENKATANARASAPPA,, COURT0OF AGED,ABOUT,56,YEARS, KARNATAKA KANDAVARA, CHIKKABALLAPUR-562,101, , 3., SMT.P.V.MANJULA, D/O,P.VENKATANARASAPPA,, AGED,ABOUT,51,YEARS, R/AT,IN,CHINTAMANI,, ((((((((((((HC-KAR, NC:(2026:KHC:40237( RSA(No.(116(of(2019( C/W(RSA(No.(318(of(2019( ,,,,,,,,,, , CNR:(KAHC010009592019( ( ( CHIKKABALAPURA-562,101, , 4., A.D.KRISHNA,KUMAR, S/O,A.DAYASHANKAR,, AGED,ABOUT,26,YEARS, R/AT,242,CSI, HOSPITAL,ROAD,, CHIKKABALLAPURA-562,101, , 5., SMT.A.D.SUCHITRA, W/O,DAYASHANKAR,, AGED,ABOUT,25,YEARS, , RESPONDENTS,6,AND,7,ARE,, RESIDING,AT, CSI,HOSPITAL,ROAD,, CHIKKABALLAPUR-562,101, , 6., GOVINDAMMA, W/O,P.V.VENKATANARASAPPA, SINCE,DEAD,BY,LRS., (THE,LEGAL,REPRESENTATIVES,OF,, DECEASED,GOVINDAMMA,ARE,, ALREADY,ON,RECORD, AS,RESPONDENTS,2,AND,3), …RESPONDENTS, , (BY,SRI.,C,R,SUBRAMANYA,,ADVOCATE,FOR,C/R1,TO,R3;, R4,AND,R5,ARE,SERVED;, R6,DEAD;,R2,AND,R3,ARE,LRS,OF,DECEASED,R6), THIS, RSA, IS, FILED, UNDER, SECTION, 100, OF, CIVIL, PROCEDURE, CODE, AGAINST, THE, JUDGMENT, AND, DECREE, DATED,22.10.2018,PASSED,IN,RA,NO.68/2012,ON,THE,FILE,OF, THE,II,ADDL.SENIOR,CIVIL,JUDGE,AND,JMFC,,CHICKBALLAPUR, DISMISSING, THE, APPEAL, AND, CONFIRMING, THE, JUDGMENT, AND,DECREE,DATED,16.03.2012,PASSED,IN,O.S.NO,227/1989, ON, THE, FILE, OF, THE, PRL.CIVIL, JUDGE, AND, JMFC,, CHIKKABALLAPUR., ((((((((((((HC-KAR, NC:(2026:KHC:40237( RSA(No.(116(of(2019( C/W(RSA(No.(318(of(2019( ,,,,,,,,,, , CNR:(KAHC010009592019( ( ( , IN(RSA(NO.(318/2019, BETWEEN:, 1., AMARANARAYANSWAMY, S/O,LATE,P,V,RAMAIAH, AGED,ABOUT,50,YEARS, ADVOCATE, , 2., NARAYANSWAMY, S/O,LATE,P,V,RAMAIAH, AGED,ABOUT,45,YEARS, , BOTH,ARE,RESIDING,AT,NO.302,, THVAIBHAV,ENCLAVE,,6 ,CROSS,, MATHIKERE,,BRUNDAVANA,NAGARA, BANGALORE,–,560,054, , 3., SMT,K,N,RATHNAMMA,, W/O,LATE,P,V,RAMAIAH, AGED,ABOUT,71,YEARS, , 4., SMT,P,R,LAKSHMIDEVI,, D/O,LATE,P,V,RAMAIAH, AGED,ABOUT,51,YEARS, , APPELLANTS,NO.3,AND,4,ARE, RESIDING,AT,NO.32/1,, ND ST2 ,FLOOR,,1 ,CROSS,, S,B,M,COLONY,,MATHIKERE, BENGALURU,–,560,054, , 5., SMT,P,R,GIRIJAMBA,, D/O,LATE,P,V,RAMAIAH, AGED,ABOUT,45,YEARS, RESIDING,AT,MIG,MFL,NO.12/12,, ND2 ,PATHWAY,,NANDINI,LAYOUT,, BENGALURU,–,560,058, , ((((((((((((HC-KAR, NC:(2026:KHC:40237( RSA(No.(116(of(2019( C/W(RSA(No.(318(of(2019( ,,,,,,,,,, , CNR:(KAHC010009592019( ( ( 6., SMT,P,R,VIJAYALAKSHMI, D/O,LATE,P,V,RAMAIAH, AGED,ABOUT,42,YEARS, RESIDING,AT,NO,21,, TH7 ,MAIN,ROAD,, RD3 ,FLOOR,, BRUNDAVANA,NAGARA, MATHIKERE,,BENGALURU,–,560054, ...APPELLANTS, (BY,SRI.,A.V.GANGADHARAPPA,,ADVOCATE), AND:, 1., A,K,NAGARAJA,, S/O,A,B,KRISHNAPPA,, AGED,ABOUT,52,YEARS, , 2., SMT,K,N,VIJAYALAKSHMI,, W/O,LATE,DAYASHANKAR, AGED,ABOUT,47,YEARS, , 3., SMT,A,D,SUCHITRA, D/O,LATE,DAYASHANKAR, AGED,ABOUT,30,YEARS, , ALL,ARE,RESIDING,AT,CSI,HOSPITAL,ROAD,, CHIKKABALLAPURA,CITY,–,562,101, , 4., A,D,KRISHNAKUMAR,, S/O,LATE,A,DAYASHANKAR, AGED,ABOUT,28,YEARS, RESIDING,AT,NO.242,, MISSION,HOSPITAL,ROAD,, CHIKKABALLAPURA,CITY,–,562,101, , 5., SMT,M,R,GOVINDAMMA, W/O,P,VENKATANARASAPPA, AGED,ABOUT,78,YEARS, DELETED,VIDE,ORDER,DT.05.01.2021, , ((((((((((((HC-KAR, NC:(2026:KHC:40237( RSA(No.(116(of(2019( C/W(RSA(No.(318(of(2019( ,,,,,,,,,, , CNR:(KAHC010009592019( ( ( ORDER,DTD.05.01.2021,R6,TO,R8,ARE,, LR'S,OF,DECEASED,R5., , 6., P,V,NARASIMHALU,, S/O,P,VENKATANARASAPPA, AGED,ABOUT,75,YEARS