Dismissed

T Puttaiah v. Smt Shilpa

Karnataka HC30 Sept 2021RSA/1436/2019

Case brief

AI extract

What is this about?

In this regular second appeal against a partition decree, the Karnataka High Court examined whether the appellants (defendants) contributed to the purchase of family properties. Finding no evidence of such contribution, the court held the findings of courts below just and proper, declined to find perversity under Section 100 CPC, and dismissed the appeal.

What did the court decide?

The Regular Second Appeal was dismissed at the admission stage as no material irregularity or perversity was found in the findings of courts below.

T Puttaiah Vs Smt Shilpa — Partition | Karnataka HC (2021)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 30^TH DAY OF SEPTEMBER 2021

¶4

BEFORE

¶5

THE HON’BLE MR. JUSTICE E.S.INDIRESH

¶6

R.S.A. No.1436/2019

¶7

BETWEEN:

¶8

T PUTTAIAH S/O.THAMANNA, AGED ABOUT 57 YEARS

¶9

PRABHAKARA S/O THAMANNA, AGED ABOUT 50 YEARS

¶10

APPELLANTS 1 AND 2 ARE R/O AMBEDKAR STREET, BILIKERE VILLAGE, BILIKERE HOBLI AND POST, HUNSUR TALUK, MYSURU DISTRICT- 571 103.

¶11

RAJAMMA W/O MANCHAIAH, AGED ABOUT 52 YEARS R/T BEERANAHALLI VILLAGE, HANAGODU HOBLI, HUNSUR TALUK- 571103.

¶12

... APPELLANTS

¶13

(BY SRI G BALAKRISHNA SHASTRY, ADVOCATE)

¶14

AND:

¶15

SMT SHILPA W/O VIJAYAKUMAR,

¶16

¶17

AGED ABOUT 30 YEARS,

¶18

KUM. DHANAYASHREE D/O.VIJAYAKUMAR, AGED ABOUT 10 ½ YEARS

¶19

THRISHA D/O.VIJAYAKUMAR, AGED ABOUT 8 YEARS

¶20

R2 AND 3 ARE MINORS AND HENCE REPRESENTED BY THEIR MOTHER AND NATURAL GUARDIAN R1.

¶21

R1 TO 3 ARE R/AT AMBEDKAR STREET, BILIKERE VILLAGE, BILIKERE HOBLI AND POST, HUNSUR TALUK, MYSORE DISTRICT-571103.

¶22

SOMAIAH S/O GENDAIAH, AGED ABOUT 55 YERAS, R/AT TENKALAKOPPALU VILLAGE, BILIKERE HOBLI, HUNSUR TALUK, MYSURU DISTRICT-571103.

¶23

... RESPONDENTS

¶24

(BY SMT. KUSUMA M, ADVOCATE FOR R1; R4 SERVED AND UNREPRESENTED R2 AND 3 ARE MINORS REPRESENTED BY R1)

¶25

THIS R.S.A. IS FILED U/S. 100 OF CPC AGAINST THE JUDGMENT & DECREE DATED 24.04.2019 PASSED IN R.A.NO.7/2018 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, HUNSUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 27.11.2017 PASSED IN OS.NO.57/2014 ON THE FILE OF THE CIVIL JUDGE AND JMFC, HUNSUR.

¶26

¶27

THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE COURT, DELIVERED THE FOLLOWING:

¶28

JUDGMENT

¶29

This appeal is filed by the defendants 1 to 3

¶30

challenging the judgment and decree dated 24.04.2019 passed in RA.No.7/2018 on the file of the Additional Senior Civil Judge, Hunsur, dismissing the appeal and confirming the judgment and decree dated 27.11.2017 passed in OS.No.57/2014 on the file of the Civil Judge and JMFC, Hunsur, decreeing the suit of the plaintiffs.

¶31

For the sake of convenience, the parties in this appeal shall be referred to in terms of their status and ranking before the trial Court.

¶32

The relevant facts for adjudication of the this appeal are that the plaintiff is the wife of one late Vijaykumar and plaintiffs 2 and 3 are the children of the plaintiff No.1 and late Vijayakumar. It is the case of the plaintiff No.1 that her father-in-law Thammanna had four children, namely, Puttaiah (defendant No.1), Prabahkar

¶33

¶34

(defendant No.2), Vijaykumar (husband of plaintiff No.1) and Rajamma (defendant No.3). It is further averred in the plaint that the items mentioned in the suit schedule property are the joint family property of the Thammanna and the said properties have been purchased by father-inlaw of the plaintiff No.1 out of the nucleus of the joint family and as such, these properties also have to be considered as joint family property which would devolve all the children late Thammanna. It is further stated that the plaintiff has demanded partition insofar as suit schedule property is concerned and same is refused by defendants, and therefore, plaintiffs have filed O.S.No.57/2014 on the file of the trial court seeking the relief of partition and separate possession.

¶35

After service of summons, defendants 1 to 3 entered appearance and filed written statement denying the plaint averments and contended that except item No.2 of the suit schedule property, item Nos.1 and 3 are purchased in the name of their father, however, the entire

¶36

¶37

sale consideration was given by defendant No.1. It also stated in the written statement that Item No.4 is the house property and defendants have no objection insofar as devolution of Item No.4 of the suit schedule property. It is also stated that Item Nos.1 and 3 of the suit schedule property have been gifted by Thammanna in favour of defendant No.1 by way of Gift Deed dated 02.06.2010. Therefore, plaintiffs are not entitled for any share in item Nos. 1 and 2 of the suit schedule property and accordingly, sought for dismissal of the suit.

¶38

On the basis of the rival pleadings, the trial

¶39

Court has formulated following issues for its consideration:

¶40

“1. Whether the plaintiffs prove that the suit schedule properties are joint family properties of them and defendant Nos.1 to 3 ?

¶41

2. Whether the plaintiffs further prove that the defendant No.1 and 2 have illegally alienated the suit schedule item No.3 in favour of the defendant No.4 without got any absolute right and their consent and acknowledge ?

¶42

¶43

3. Whether the suit of the plaintiff is bad for joinder of unnecessary parties ?

¶44

4. Whether the plaintiffs are entitled for the relief sought ?

¶45

5. What Order or Decree ?”

¶46

In order to establish their case, plaintiff No.1 examined herself as PW1 and got marked 5 documents as Exs.P1 to P5. On the other hand, defendants 1 to 3 examined themselves as DW1 to DW3 and produced 8 documents as Exs.D1 to D8.

¶47

The trial Court, after considering the material on

¶48

record, by its judgment and decree dated 27.11.2017 decreed the suit of the plaintiffs holding that plaintiffs together are entitled for 1/4^th share in the suit schedule properties and being aggrieved by the same, defendants 1 to 3 have preferred Regular Appeal in RA.No.7/2018 on the file of First Appellate Court. The said appeal was resisted

¶49

by the plaintiffs. The First Appellate Court, after reappreciating the facts on record, by its judgment and

¶50

¶51

decree dated 24.04.2019 dismissed the appeal and confirmed the judgment and decree passed by the trial Court in OS.No.57/2014. Being aggrieved by the judgment and decree passed by the Courts below, defendants 1 to 3 have preferred this Regular Second Appeal under Section 100 of CPC.

¶52

Sri.G.Balakrishna Shastry, learned counsel for the defendant/appellants submits that there is no dispute with regard to relationship between the parties, however, the finding recorded by both the Courts below with regard to devolution of Item Nos.1 and 3 of the properties, requires re-consideration in this appeal. He further contended that defendants 1 to 3 have pleaded in the written statement that item Nos.1 and 3 of properties are purchased in the name of their father, however, the entire sale consideration was paid by defendant No.1 alone and who was only earning member in their family and his contribution for purchase of Item Nos.1 and 3 was not considered by the trial Court. Therefore, he submits that

¶53

¶54

the finding recorded by courts below requires reconsideration in this appeal.

¶55

Per contra, Smt.Kusuma.M., learned counsel for

¶56

the respondents sought to justify the impugned judgment and decree passed by the courts below.

¶57

Heard the learned counsel appearing for the parties and perused the finding recorded by courts below. It is not in dispute that husband of plaintiff No.1Vijaykumar and defendants are the children of Thammanna, who died on 21.07.2012. In order to

¶58

understand the relationship between the parties, the Genealogical Tree is produced as under:

¶59

Thammanna
(died)
T.Puttaiah Prabhakara Vijaykumar Rajamma
(D1) (D2) (died)-Smt.Shilpa (D3)
(P1)
Dhanyashri Thrisha
(P2) (P3)

¶60

¶61

Taking into consideration the submission of the learned counsel appearing for the appellants that the finding recorded by both the Courts below with regard to not appreciating the evidence on the contribution made by defendant No.1 to purchase item Nos.1 and 3 of the suit schedule properties, I have carefully considered finding recorded by trial court. On careful consideration of the same, it is not in dispute that Item Nos.1 and 3 of the suit schedule properties are purchased in the name of Thammanna-father of the defendants. Learned counsel appearing for the appellants made available the Sale Deed dated 24.07.1995 (Ex.D7) and Sale Deed dated 21.12.1994 (Ex.D8). Perusal of aforementioned Sale Deeds would not reveal the fact that DW1 has contributed towards amount while purchasing the Item Nos.1 and 3 of the suit schedule properties. In this regard, I have carefully considered the finding recorded by trial court in paragraphs 14 to 16 of the judgment, wherein, defendant No.1, though urged before the trial Court that he has contributed the amount towards sale consideration to

¶62

¶63

purchase Item Nos.1 to 3 of properties in the name of his father, however, during his cross-examination he has admitted that he has not produced any documents to show that he has funded for the sale consideration amount, at the time of registration of the Sale Deed. In this regard, I have also carefully considered the testimony of DW2, who deposed that Item No.1 of the suit schedule property has been purchased by his father a sale consideration of Rs.58,000/- and has paid Rs.40,000/- to his vendor as advance and remaining Rs.18,000/- was paid after six months. Perusal of the evidence of DW1 and DW2 would make it clear that, no contribution has been made by defendant No.1 insofar as purchase of the properties are concerned, particularly, properties mentioned in Item Nos.1 and 3. In that view of the matter, taking into consideration that husband of plaintiff No.1- Vijaykumar, who was a practicing Advocate at Hunsur and who died in a road traffic accident on 31.10.2012, the contribution ought to have been made by husband of plaintiff No.1, cannot be ruled out while purchasing

¶64

¶65

the suit schedule property. In that view of the matter, I do not find any favorable grounds to interfere with the finding recorded by trial Court.

¶66

Finding recorded by First Appellate Court makes it clear that it has re-appreciated material on record and arrived at the conclusion that finding recorded by trial court in respect of Item Nos.1 and 3 is just and proper.

¶67

In view of aforesaid discussion, I do not find material irregularity or perversity in the judgment and decree passed by the Courts below and accordingly, the Regular Second Appeal is liable to be dismissed . Since, the defendants/appellants have not made out grounds for formulation of substantial question of law as required under Section 100 of Code of Civil Procedure, appeal is liable to be dismissed at the Admission stage itself, accordingly, dismissed .

¶68

Sd/JUDGE

¶69

SB

T Puttaiah v. Smt Shilpa

Case brief

What is this about?

What did the court decide?

T Puttaiah v. Smt Shilpa

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Thippeswamy Vs Jayamma

Sri. K.M. Basavarajaiah Vs Sri K C Shankarappa

Smt Jayalakshamma Vs Officer-in-Charge

Chinnamadamma Vs Jawara

Sri a Nagaraja Vs Sri Manjunath

Muddumadaiah, Vs D Gurusiddaiah