Allowed a regular first appeal in a partition suit. The appellant, as sole legal heir, was entitled to the share of the ancestral property retained with the deceased respondents, while the sale of another portion to a third party stood upheld.
Appellant entitled to the property share held by the deceased respondents who are now his heirs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Dated this the 7th day of August, , 2012
Before
THE HON’BLE MR JUSTICE HULUVADI G RAMESH
Regular First Appeal 983 / 2003
Between:
Anjaneya Murthy, 52 yrs S/o Kenchappa R/a Old # 29, New # 1084/A 3rd Main, 4th Cross, Prakash Nagar Bangalore 560 021
Appellant
(By Sri Boja Raj, Adv.)
And:
Appeal is filed under S.96 of the Code of Civil Procedure praying to set aside the judgment and decree dated dated 31.5.1993inOS 4375/1993 by the XX Addl. City Civil Judge, Bangalore.
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The Appeal coming on for Hearing this day, Court delivered the following:
JUDGMENT
Plaintiff is in appeal challenging the judgment and decree passed by the XX Addl. City Civil Judge, Bangalore in OS 4375/1993 on 31.5.1993.
According to the plaintiff, defendants 1 and 2 are his parents and 3rd defendant is the purchaser of a portion of the suit property from the 1st and 2nd defendants. The 1st defendant had purchased the suit property in the year 1958 out of income from properties. It is the plaintiff's case, property sold by the 1st defendant is ancestral property as such, he has got every right to claim partition and separate possession. To deceive the plaintiff, 1st defendant has sold a portion of the suit property in favour of his wife / 2nd defendant without consent of the plaintiff. He has also sold the remaining portion of the property in favour of one Nagaraj under a registered sale deed dated 24.7.1969 who in turn sold the same to one Jayamma under a registered sale deed dated 24.9.1982. This Jayamma in turn, sold the same under a registered sale deed dated 24.10.1985 in favour of the 3rd defendant. Stating that the suit properties are the properties of joint family, the sale
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made in favour of the 2nd defendant by the 1st defendant and also the sale made in favour of the 3rd person is not binding on the plaintiff, he sought for half share in the suit filed. The suit was contested by the 3rd defendant as well. Based on the pleadings, the trial court framed the following issues for consideration::
Whether the plaintiff proves that the suit schedule propery was purchased by 1st defendant out of the joint family funds and it is the jointfamily property of defendants 1 and 2 and himself;
Whether the plaintiff proves that he is entitled for half share in the suit schedule property;
Whether 3rd defendant proves that he is a bonafide purchaser of a portion of the suit schedule property;
Whether the plaintiff proves that the sale deeds dated 24.7.1969 and 2.8.1969 are not binding on him;
Whether the suit is bad for non-joinder of necessary parties; To what reliefs are parties entitled to; To what order or decree.
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After inquiry and having heard the matter, trial court held that plaintiff has proved that the suit property was purchased by the 1st defendant out of joint family funds as such, the suit property is joint family property of defendants 1 and 2 and himself. So far as purchase of the property by the 3rd defendant is concerned, the trial court has held that he is a bonafide purchaser of the portion of the suit land. So far as issue whether the plaintiff proved that the sale deed dated 24.7.1969 and 2.8.1969 are not binding on him, in part it has held in favour of the plaintiff. Ultimately, it has decreed the suit in part only entitling the plaintiff to the property sold by 1st defendant in favour of 2nd defendant.
Heard the counsel for the appellant. None represents the respondent.
The points that arise for consideration are - whether plaintiff is entitled for decree as prayed for; whether the trial court is justified in decreeing the suit of the plaintiff in part and, what order.
It appears during pendency of the matter, defendants 1 and 2 /
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respondents 1 and 2 have died and notice to 3rd respondent is held sufficient.
It is the submission of the appellant's counsel, after the death of his father, the property remained with his mother on being alienated in her favour by his father/1st defendant. Even the appellant's mother is dead and the appellant is the sole legal heir and he is entitled for the property. It is also the submission that he does not want to precipitate the matter in respect of the property sold by the 1st defendant in favour of the 3rd defendant.
Since the appellant's counsel has submitted, although he has been given half share in the property held by defendants 1 and 2 but not in the property in the hands of 3rd defendant by virtue of the sale in favour of the vendor of 3rd defendant by the the 1st defendant and that he would not precipitate the issue and only restricts his claim to the share retained by defendants 1 and 2 be made available to him as he is the only legal heir, in modification of the decree of the trial court, it is ordered, apart from the share granted in favour of the plaintiff by a court decree i.e., by the trial
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court, property remaining with defendants 1 and 2 be made available to the plaintiff.
Appeal is allowed holding that plaintiff is entitled for the property
held by defendants 1 and 2 who are deceased, as plaintiff is their sole legal
heir. No costs.
Sd/Judge
An
3 issues framed by the court
whether the appellant, being the sole legal heir of deceased respondents, is entitled to the share of joint family property retained with respondents after a sale of a portion was found binding
whether the trial court was justified in decreeing the suit only in part
whether the appellant's claim to the share held by the first and second respondents would defeat the onward sale in favor of the third respondent
1 provisions across 1 enactments
Anjaneya Murthy
Kenchappa S/o Rangaiah
Smt Honnamma W/o Kenchappa
B Rajendran S/o Bhakthavatsala Naidu
HULUVADI G RAMESH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
