Karnataka High CourtSomakka vs Katti Mariyappa on 13 June, 2014Author:A.V.ChandrashekaraBench:A.V.ChandrashekaraRSA No.236/2006
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             IN THE HIGH COURT OF KARNATAKA,
                      DHARWAD BENCH

           DATED THIS THE 13TH DAY OF JUNE 2014

                         BEFORE

       THE HON'BLE MR. JUSTICE A.V.CHANDRASHEKARA

                   RSA No.236/2006 (PAR)
BETWEEN:

SOMAKKA D/O KATTI MARIYAPPA,
AGE: 48 YEARS, AGRICULTURIST,
R/O RANJTPURA, SANDUR-583119,
BELLARY DISTRICT.

                                             ... APPELLANT
(BY SRI.ANAND R.KOLLI, ADV.)

AND:

1.     KATTI MARIYAPPA,
       S/O KATTI AYAPPA,
       AGE: MAJOR, AGRICULTURIST,
       R/O RANJTPURA, SANDUR-583119,
       BELLARY DISTRICT.

2.     CHANNA MALLAMMA ,
       W/O C.C.THIPPESWAMY,
       AGE: MAJOR,
       R/O RANJTPURA, SANDUR-583119,
       BELLARY DISTRICT.

                                           ... RESPONDENTS
(BY SRI.J.BASAVARAJ, ADV. C/R1 & R2)

    THIS APPEAL IS FILED UNDER SECTION 100 OFCPCR/W
ORDER 42 RU.E 10F OFCPCAGAINST THE JUDGMENT AND
DECREE DATED 27.10.2005 PASSED IN R.A.NO.5/2003 ON THE
                                                      RSA No.236/2006
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FILE OF THE DISTRICT AND SESSIONS JUDGE, FTC-3, HOSPET,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 27.11.2002 PASSED IN O.S.NO.58/2002
(O.S.No.117/09) ON THE FILE OF THE CIVIL JUDGE (SR.DN.)
KUDLGI.

     THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY,
THE COURT DELIVERED THE FOLLOWING:

                            JUDGMENTAppeal has been admitted by my learned predecessor on

17.11.2009 to consider the following substantial question of

law."Having   regard   toSection   6of   the   Hindu
       Succession Act, 1956 as amended by Act 39 of 2005,
       whether the Courts below erred in law in recording a
       finding that the plaintiff being the daughter of the 1st
       defendant, was not a member of the joint family and
       was not entitled for partition and separate possession of
       the joint family properties."2. Counsel for the appellant present. Counsel for the

respondents and respondents absent.RSA No.236/200633. The facts leading to the filing of this second appeal by

the plaintiff of an original suit bearing O.S.No.117/1999 are

as follows:Respondent No.1-Kattimariyappa is the father of the

plaintiff.    Respondent No.2-Channamallamma herein is the

sister of the plaintiff and daughter of Kattimariyappa. During

the life time of Kattimariyappa, plaintiff Somakka chose to file

a suit for the reliefs of partition and separate possession in

respect of 7 items of immovable properties before the Court of

Civil Judge (Jr.Dn.), Hospet in O.S.No.117/1999.       The said

suit was contested mainly on the ground of maintainability of

plaintiff to file a suit for partition and separate possession

without being a member of the joint family and without being

entitled to file a suit.   Defendants had taken up a specific

stand in the written statement stating that the properties

absolutely belong to Kattimariyappa, the defendant No.1. On

the basis of the above pleadings, following issues came to be

framed.RSA No.236/20064i)     Whether the plaintiff proves that the suit schedule

       property is the joint family property and the

       defendant No.1 is managing the joint family

       properties as alleged in the plaint?ii)    Whether the plaintiff proves that, defendants

       colluded each other and have made partition

       within themselves and without the knowledge and

       consent of the plaintiff as alleged in para No.4 of

       the plaint?iii)   Whether the defendants proves that plaintiff has

       to pay court fee on the market value of the

       property as alleged in para 11 of the written

       statement?iv)    Whether the defendants prove that suit schedule

       properties are the self-acquired property of the

       defendant No.1 as alleged in para 12 of the written

       statement?RSA No.236/20065v)    Whether the plaintiff is entitled to the reliefs

            sought for?vi)   What order or decree?4. After contest, issue Nos.1 to 3 and 5 have been

answered in the negative and issue No.4 has been answered

in the affirmative holding that the suit schedule properties

are   the   self-acquired   properties   of   defendant   No.1-

Kattimariyappa.    The said findings have been confirmed in

the appeal filed underSection 96of CPC in R.A.No.5/2003

filed before the District Court at Bellary and subsequently

withdrawn and transferred to FTC-III at Hospet.       The said

appeal has also been dismissed by upholding the judgment of

the trial Court.5. The learned counsel for the appellant Mr.Anand Kolli

has filed a memo reporting the death of defendant No.1-

Kattimariyappa and a copy of the death certificate of

Kattimariyappa is filed stating that he died on 20.07.2012

and the same is registered on 22.07.2012.         The learnedRSA No.236/20066counsel for the appellant requested the Court to modify the

judgment and decree in view of the subsequent event.6. Learned counsel for the respondent absent.7. Perused the records. In fact, the trial Court as well

as the first appellate Court have adopted right approach to

the real state of affairs holding that, plaintiff cannot file a suit

for partition and separate possession, more particularly,

when the properties are the self acquired properties of

Kattimariyappa. Even otherwise, plaintiff was not entitled to

file a suit for partition and separate possession, since her

marriage had been held prior to coming into force the Hindu

Succession (Karnataka Amendment) Act, 1990, which came

into effect from 31.07.1994. The suit so filed by the plaintiff

was prior to the coming into force of theHindu Succession

(Amendment) Act, 2005, which has came into force from

09.09.2005. In the light of there being no grounds to interfere

with the judgment of the trial Court which is affirmed by theRSA No.236/20067first appellate Court, the substantial question of law framed

does not arise.8. In the light of the death of Kattimariyappa-defendant

No.1, who was the absolute owner of the suit schedule

properties, the plaintiff and defendant No.2 being the only two

Class-I heir of Kattimariyappa are entitled for half share each

underSection 8of the Hindu Succession Act. In the light of

the Hindu male dying intestate, his properties will devolve

upon his only two Class-I heir, namely plaintiff and defendant

No.2 equally. Taking into consideration the subsequent

material event, i.e., the death of Kattimariyappa the absolute

owner of the suit schedule properties, the suit so filed for the

relief of partition and separate possession will have to be

decreed granting half share in favour of the plaintiff and half

share in favour of defendant No.2. Thus, the relief will have to

be amended as the suit still remains as a suit for partition

only.RSA No.236/200689. The said partition will have to be effected by metes

and bounds as contemplated underSection 54of CPC read

withOrder 20 Rule 18 of CPC. Accordingly, the appeal will

have to be allowed in view of the subsequent important event

i.e., the death of Kattimariyappa.ORDER


        Appeal filed underSection 100of CPC is allowed

holding that plaintiff is entitled for half share and defendant

No.2-Channamallamma is entitled for half share.        The suit

schedule properties will have to be partitioned by metes and

bounds as contemplated underSection 54of CPC read withOrder 20 Rule 18 of CPC.        The judgment of the trial Court

stands modified accordingly.There is no order as to costs.Sd/-JUDGE.MBS/-