N.K. Vijaykumar vs Prema N.K. and Others

K.L. Manjunath, J.—The appellant who was defendant in O.S. No. 254/04 on the file of the XVII Additional City Civil and Sessions Judge, Bangalore, is questioning the legality and correctness of the judgment and decree dated 30.3.2013 for having denied his share in the first floor of the plaint schedule property. Though the matter is listed for admission by consent the appeal is heard on merits.

The appellant and respondents are the children of one late Kalashettappa. The respondents are the daughters and the appellant is the only son of late Kalashettappa. The daughters of Kalashettappa instituted a suit for partition and separate possession claiming equal share with the appellant in respect of plaint schedule property. The suit schedule property is the residential house situated in Railway Parallel Road, Nehru Nagar, Sheshadripuram, Bangalore, consisting of ground and first floor and an out house. The appellant having admitted the relationship between him and the respondents contended that the suit filed by them is not maintainable in view of the earlier partition dated 7.7.1975 in respect of the property bearing NO. 292/25 of Gandhinagar, Bangalore and that the ground floor of the schedule property is hi self acquired property and that the plaintiffs were married long back and therefore, they are not entitled for the share.

The trial Court framed the following issues for its consideration:-

Whether the plaintiffs prove that their father purchased the ground floor of the schedule property in the name of the first defendant?

Whether the defendant proves that the ground floor of the schedule property is his self-acquired property?

Whether the suit is barred by limitation?

Whether the plaintiffs are entitled to 1/6th share in the schedule property?

To what decree or order?

In order to prove their respective contentions, on behalf of the plaintiffs, the first plaintiff got herself examined as P.W. 1 and they relied upon Exs. P1 to P3. The appellant got himself examined as D.W. 1 and relied upon Exs. D1 to D16. The trial Court held issue Nos. 1 and 3 in the negative, Issue No. 2 in the affirmative and held that the plaintiffs are not entitled to claim a share in the ground floor of the premises and that they are entitled to equal share excluding the defendant in respect of the first floor of the schedule property. Aggrieved by the non-grant of share in the first floor, the appellant-defendant has filed this appeal.

According to the appellant, the trial Court having held that the ground floor is the absolute property of the appellant could not have denied a share to him out of the property standing in the name of his father. No reasons are assigned by the trial Court to exclude the share of the defendant in respect of the first floor portion.

The learned counsel for the respondents contends that against the findings of the trial Court in regard to the ground floor portion, the respondents have filed a separate appeal claiming equal share therein also in RFA. No. 1111/13 and the share allotted to the respondents by the trial Court in respect of the first floor is just and proper. In the circumstances, he requests the Court to dismiss the appeal.

Having heard tire counsel for the parties, the following point arises for consideration:-

Whether the trial Court is justified in denying the share to the appellant in view of its finding that the first floor premises belongs to the father of the parties?

Admittedly, the father died intestate. If the father is held to be the absolute owner of the first floor, after his death the same has to be devolved equally on all the children. Therefore the exclusion of the defendant for allotment of share is held to be bad in law. So far as the claim of the respondents in regard to the ground floor, same has to be considered by this Court separately in RFA. No. 1111/13 and the contentions urged therein are entirely different from the contentions urged in this appeal. Granting liberty to the respondents to pursue the other appeal, this appeal has to be allowed holding that the appellant is also entitled to 1/6th share in respect of the first floor premises. In the result, the appeal is allowed. The judgment and decree passed by the XVII Additional City Civil and Sessions Judge, Bangalore in O.S. No. 254/04 dated 30.3.2013 is modified in respect of allotment of the share to the parties herein. Accordingly, the share granted by the trial Court in respect of the first floor is modified holding that the appellant and respondents are entitled to 1/6th share each in respect of the first floor. The findings of the trial Court in regard to the ground floor would be subject to the outcome of the decision of this Court in RFA. No. 1111/13. Parties to bear their costs.