Dismissed

Sri K Padmanabha S/O Late Keshavacharya v. Keshavacharya S/O Late Venkatarayappa

Karnataka HC5 Mar 2013RSA/995/2011

Case brief

AI extract

What is this about?

This second appeal by a plaintiff against a partition decree was dismissed. The High Court affirmed the lower appellate court's finding that the deceased father sold specific properties for legal necessity, deeming the earlier decree untenable. Consequently, the appeal was dismissed, and the linked injunction application was also dismissed.

What did the court decide?

The appeal was dismissed; the temporary injunction application was dismissed.

Sri K Padmanabha S/O Late Keshavacharya Vs Keshavacharya S/O… — Partition | Karnataka HC (2013)

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R.S.A.No.995/2011 A/w Misc.Cvl.9422/2011

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IN THE HIGH COURT OF KARNATAKA AT BANGALORE

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DATED THIS THE 5TH DAY OF MARCH 2013

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BEFORE

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THE HON'BLE MR. JUSTICE H.G.RAMESH

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REGULAR SECOND APPEAL No.995/2011 A/w MISCELLANEOUS CIVIL NO.9422/2011

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BETWEEN:

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SRI K PADMANABHA S/O LATE KESHAVACHARYA AGED ABOUT 45 YEARS C/O SAMPATH KUMAR OODI VILLAGE, MAHADEVAPURA POST BANGALORE – 560 048 ...COMMON APPELLANT

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(BY SRI.SSI QUADRI FOR SMT. S SUSHEELA, ADVOCATES )

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AND:

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1 KESHAVACHARYA S/O LATE VENKATARAYAPPA SINCE DEAD BY HIS LRS

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1(a) SMT SUMITRA

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W/O RANGACHAR R/O NO 2176, 8TH MAIN ROAD 'E' BLOCK, RAJAJINAGAR BANGALORE – 560 010

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1(b) SMT RAJAMMA @ RADHAMMA W/O VENUGOPAL R/O KARTHLARAM, DODDAKANELLI POST BANGALORE – 560 035

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1(c) SMT PRAMILA, W/O B R RAGHU NO 33, 4TH MAIN ROAD

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R.S.A.No.995/2011 A/w Misc.Cvl.9422/2011

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RAMAMURTHINAGAR BANGALORE – 560 016

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2 B M NARAYANASWAMY S/O DODDAMUNIREDDY AGED ABOUT 54 YEARS R/O BACHUVARAHALLI VILLAGE KASABA HOBLI

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CHINTAMANI TALUK – 563 125 ...COMMON RESPONDENTS

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RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 21.01.2011 PASSED IN R.A.NO.49/2006 ON THE FILE OF THE SENIOR CIVIL JUDGE & J.M.F.C., CHINTAMANI, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED: 15.03.2006 PASSED IN O.S.NO.87/1997 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE (JR.DN.) & J.M.F.C., CHINTAMANI.

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MISC.CVL.NO.9422/2011 IS FILED U/O XXXIX RULE 1 AND 2 READ WITH SECTION 151 OF CPC PRAYING TO PASS AN ADINTERIM INJUNCTION ORDER AGAINST THE RESPONDENTS, THEIR MEN, AGENTS AND THOSE WHO ARE REPRESENTING THEM TO NOT TO ALIENATE THE SUIT SCHEDULE PROPERTIES AND MAINTAIN STATUS QUO UNTIL THE DISPOSAL OF THE ABOVE APPEAL IN THE INTEREST OF JUSTICE.

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RSA A/w MISC.CVL COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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H.G.RAMESH, J. (Oral):

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This second appeal is by the plaintiff. This appeal

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arises out of the suit in O.S.No.87/1997 filed by the appellant/plaintiff for partition and separate possession of the plaint schedule properties. The trial court granted

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R.S.A.No.995/2011 A/w Misc.Cvl.9422/2011

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1/4^th share each to the plaintiff and to defendant nos.1(a)

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to 1(c). The matter was carried in appeal by the

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purchaser/defendant no.2 to the Lower Appellate Court. The Lower Appellate Court, on a reappreciation of the evidence on record, has held that the deceased defendant no.1, who was the father of the plaintiff and defendant no.1(a) to 1(c) and who was also the kartha of the family had sold item nos.1 & 3 of the plaint schedule properties

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for legal necessity . In my opinion, this finding is based on a proper consideration of the evidence on record, and accordingly,setting aside of the decree of the trial court in respect of item nos.1 & 3 of the plaint schedule properties is in accordance with law.

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It is relevant to refer to the following reasoning of the lower appellate court:

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“21. The evidence of Dw.1 who is the deceased 1^st defendant has deposed that the suit schedule properties fallen to his share in the

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R.S.A.No.995/2011 A/w Misc.Cvl.9422/2011

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partition. He sold Sy.No.27 measuring 2.16acres in favour of Rangachari. He admitted to the hospital at Saint Johns hospital and incurred Rs.35 to 40 thousand for medical expenses. He sold item No.1 of the suit schedule properties to the 2^nd defendant for Rs.47,500/- to meet his medical expenses and put in possession of the same. He sold item No.3 of the property to one Narayanaswamy residing at Immareddyhalli under the registered sale deed and put him in possession of the same. He sold item No.4 of the suit schedule property also in favour of Imareddyhalli village. Dw.2 who is the purchaser of the property has deposed that item No.1 sold by the 1^st defendant for legal necessity and for domestic purpose. The contention of the 1^st and 2^nd defendants with respect to the stained relationship between the father and son and ailment and financial condition of the 1^st defendant. The 1^st defendant has performed the marriage of his three daughters. The plaintiff does not know the ailment suffered by his father. Admittedly, there was a stained relationship between him and his father. He was looking after his father. Pw.2 has unequivocally admitted that

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R.S.A.No.995/2011 A/w Misc.Cvl.9422/2011

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Ranjamma, d/o 1^st defendant looking after her father. On reading of recitals of the sale deed at Ex.D1, dt.21.05.1997, wherein the 2^nd defendant purchased the item No.1 of the suit schedule properties from the deceased 1^st defendant, who sold to discharge the loan and for his livelihood. The recitals of the sale deed are substantiated by the evidence of Pw.1 and 2. It is not necessary to prove by the 2^nd defendant that the 1^st defendant was the kartha of the family has spend the sale consideration amount other than legal necessity. There is no allegation against the 1^st defendant that the transaction was tainted in immoral or illegal purposes. The plaintiff has not made any allegation against his father that he was addicted to any immoral conduct. The 1^st defendant got the suit schedule property under the registered partition deed. There was a stained relationship between the plaintiff and his father 1^st defendant since from 20-25 years. The 1^st defendant was suffering from disease. He admitted to the Saint Johns hospital. At that time nobody came forward to help him by financial assistance. He performed the marriage of his three daughters by availing loan. He sold

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R.S.A.No.995/2011 A/w Misc.Cvl.9422/2011

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item No.1 and 3 of the suit schedule properties to the 2^nd defendant and one Narayanaswamy residing at Imareddyhally village. The said fact has not been disputed by the plaintiffs in their oral evidence. So, the 1^st defendant sold item No.1 of the suit schedule properties in favour of 2^nd defendant for his legal necessity and for domestic purpose and not for other than legal necessity. The 2^nd defendant has taken up the contention that he was the bonafide purchaser of the suit property. He clearly deposed that after came to know the necessity of selling the property he purchased from the 1^st defendant and improved the land by investing funds. The trial court has not discussed the aforesaid admissions of Pw.1 and 2 and evidence of Dw.1 and 2 in its judgment. The decision relied by the trial court has not narrated and followed the dictum of the decision. The trial court has reiterated the oral evidence of Pw.1 and 2 and Dw.1 and 2 in its judgment without discussion. On reading of the decision reported in ILR 1997 Karnataka, page 1983 (in Kishore Vs.Ahamed and others), wherein their lordship has held that:

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“The purpose in regard to legal

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R.S.A.No.995/2011 A/w Misc.Cvl.9422/2011

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necessity and its proof are in the well settled, it is necessary for the alienee to show that every bit of the consideration which he advanced was actually applied for meeting family necessity. What is required to be proved is existence of legal necessities under that sale consideration was expended for that said legal necessity.”

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The principles of said decision is aptly applicable to the facts on hand. As already discussed the evidence on record which proves that the 1^st defendant sold item No.1 and 3 of the suit schedule properties for his legal necessity and domestic purpose and for livelihood and he was the kartha of the family. Therefore, the said alienation made by the 1^st defendant in respect of item No.1 and 3 of the suit schedule properties are binding upon the plaintiff and his sisters and other family members. The said fact has not been discussed by the trial court and granted 1/4^th share in the suit schedule properties without any basis. The defendant has not produced any document to prove that he sold item No.1 of the suit schedule properties. But the evidence on record proves that the 1^st defendant sold item

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R.S.A.No.995/2011 A/w Misc.Cvl.9422/2011

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No.1 of the suit schedule properties. The plaintiff and legal heirs of the deceased 1^st defendant are entitled the share in item No.2 and 4 of the suit schedule properties and not in item No1 and 3 as the alienation is binding upon them. The trial court has not given sound reasons and findings and not appreciated the oral and documentary evidence. Hence, the interference of this court becomes inevitable.....................”

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3. I find no legal infirmity in the above reasoning of the

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Lower Appellate Court. In my opinion, no substantial question of law arises for determination in this second appeal. No ground to admit the appeal. The appeal is accordingly dismissed. In view of dismissal of the appeal, Misc.Cvl.No.9422/2011 filed for grant of temporary injunction also stands dismissed.

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Appeal dismissed .

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Sd/JUDGE

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hkh/MN

Sri K Padmanabha S/O Late Keshavacharya v. Keshavacharya S/O Late Venkatarayappa

Case brief

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Sri K Padmanabha S/O Late Keshavacharya v. Keshavacharya S/O Late Venkatarayappa

Case brief

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