Leelavathi vs Lakshmamma & Others

H.P. Sandesh, J

This matter is listed for admission. Heard the learned counsel for the appellant.

The suit is filed by the appellant/plaintiff before the Trial Court seeking 1/4th share with respect of suit schedule properties contending that suit schedule properties are Hindu undivided joint family properties of the plaintiff and defendants. Hence, entitled for 1/4th share and only the 2nd defendant who is the wife of deceased Ramesh contested the matter that her husband was managing the family affairs and he was acting as kartha of the family and admitted the relationship between the parties. It is contended that earlier house was dilapidated house and he constructed new house situated at present in the suit schedule property investing all the funds. He also converted the wet land ‘A’ schedule property into garden land with his hard-earned money as he was contractor and skilled man. He also borne expenses of marriage of his sisters i.e., plaintiff and defendant No.5 by borrowing loans from the firms. It is contended that her husband Ramesh is having ½ share in ‘A’ and ‘B’ schedule properties. Therefore, the khata was changed to joint names of Laxmamma and Ramesh. Subsequently the khata was changed to the names of defendant Nos.1 to 4. Hence, the plaintiff is not entitled for 1/4th share in the suit schedule properties. The Trial Court having considered both oral and documentary evidence, comes to the conclusion that the grant was granted in favour of Annaiah Poojari in the suit schedule properties and also comes to the conclusion that suit schedule properties are Hindu undivided joint family properties of the plaintiff and defendants and answered the issue No.1 as affirmative and however, answered issue No.2 as partly affirmative in coming to the conclusion that plaintiff is entitled to 1/4th share in the ½ share allotted to deceased Annaiah Poojari over the suit schedule properties.

Being aggrieved by the judgment and decree of the Trial Court, an appeal is filed by the plaintiff before the First Appellate Court in R.A.No.32/2016. The First Appellate Court also allowed the appeal in part in coming to the conclusion that grant made in favor of the father is in favour of the family and only daughter is entitled for the notional partition and entitled for 1 share in the suit schedule property and defendant No.2 who is the wife of Ramesh is entitled for 5/8th share in the suit schedule properties along with defendant Nos.3 and 4 by effective partition by metes and bounds and modified the same as 1/8th share.

Being aggrieved by the judgment of the Trial Court and also the First Appellate Court, the present second appeal is filed before this Court. This Court issued notice to respondents and served the same and none of them have represented before the Court.

Having heard the learned counsel for the appellant and also on perusal of material when the Trial Court comes to the conclusion that the suit schedule properties are Hindu undivided joint family properties and answered the issue No.1 as affirmative and committed an error in granting 1/4th share in ½ share of the suit schedule properties and the very approach of the Trial Court is erroneous. The First Appellate Court also committed an error in coming to the conclusion that grant made in respect of entire land for the purpose of cultivation and admittedly the grant is made in favour of the father and when there is no any testamentary document and when father left his wife and three children, ought to have invoked Section 8 of Hindu Succession Act. The Trial Court as well as the First Appellate Court committed an error, even assuming that if the property is granted in favour of the family also, there was no any partition among the members of the family. The records also discloses that after the death of the father, only khata has been changed in the name of the 2nd defendant and also the mother. There was no any partition in the family, when such being the aspect of the case, ought to have invoked Section 8 of Hindu Succession Act and granted the relief of 1/4th share and the First Appellate Court committed an error in granting 1/8th share and invoking of principles of notional partition is also erroneous on the part of First Appellate Court. Hence, the matter requires re-consideration.

In view of the discussions made above, I pass the following:

ORDER

i) The second appeal is allowed.

ii) The judgment and decree of the Trial Court as well as the First Appellate Court is modified granting 1/4th share in favour of the plaintiff/appellant in the suit schedule property.