Dismissed

Sri S.G.Ravikumar v. Pushpavathi

Karnataka HC2 Mar 2021RSA/22/2021

Case brief

AI extract

What is this about?

The High Court dismissed Settle Appeal filed by a purchaser challenging the First Appellate Court's interpretation of partition and sale of joint family property properties in a suit instance.

What did the court decide?

The appeal filed by the purchaser was dismissed after the court observed that the purchaser cannot contest the claim of the entitled family member and the issue should have been left for Final Decree

Sri S.G.Ravikumar Vs Pushpavathi — Partition | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 2^ND DAY OF MARCH, 2021

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BEFORE

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THE HON’BLE MR.JUSTICE NATARAJ RANGASWAMY

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R.S.A. NO.22 OF 2021 (PAR)

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BETWEEN:

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SRI. S.G.RAVIKUMAR S/O LATE GANGADHARIAH AGED 52 YEARS, R/O SASALU VILLAGE, SETTIKERE HOBLI, CHIKKANAYAKANAHALLI TALUK, TUMAKURU DISTRICT-572226.

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...APPELLANT

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(BY SRI. BHANUPRAKASH V.G., ADVOCATE)

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AND:

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PUSHPAVATHI D/O SHIVANNA W/O GANGADHARIAH AGED 52 YEARS R/O DODDAGHATTA BASAVANAPATNA HOBLI

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DAVANAGERE DISTRICT-573113.

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SHIVANNA S/O GIRIYAPPA AGED ABOUT 75 YEARS

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RAVISHANKAR S/O SHIVANNA AGED ABOUT 48 YEARS

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S.S. NAGARAJU S/O SHIVANNA AGED ABOUT 44 YEARS

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SUSHEELAMMA

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W/O S.S. NAGARAJU AGED ABOUT 39 YEARS

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VANDANA D/O S.S. NAGARAJU AGED ABOUT 19 YEARS

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HEMA D/O S.S. NAGARAJU AGED ABOUT 17 YEARS

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(DEFENDANT NO.7 BEING A MINOR IS REPRESENTED BY HER NATURAL GUARDIAN FATHER S.S. NAGARAJU – DEFENDANT NO.3)

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(RESPONDENTS 2 TO 7 ARE RESIDENTS OF SAASALU VILLAGE SHETTIKERE HOBLI, CHIKKANAYANKANAHALLI TALUK, TUMAKURU DISTRICT-572226.

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VEERABHADRAPPA S/O LATE SHIVANNA AGED ABOUT 60 YEARS R/O RAJAIAH PALYA SASALU MAJARE, SHETTIKERE HOBLI CHIKKANAYAKANAHALLI TALUK TUMAKURU DISTRICT-572226.

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…RESPONDENTS

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THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC, 1908 AGAINST THE JUDGMENT AND DECREE DATED 23.10.2020 PASSED IN R.A.NO.16/2018 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, AT CHIKKANAYAKANAHALLI PARTLY ALLOWING THE APPEAL AND FILED AGAINST THE JUDGMENT AND DECREE DATED 16.12.2017 PASSED IN O.S. NO.283/2011 ON THE FILE OF THE PRL. CIVIL JUDGE AND JMFC, COURT AT CHIKKANAYAKANAHALLI.

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

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JUDGMENT

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This appeal is filed by defendant No.7 in O.S.

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No.283/2011, who is a purchaser of suit items 2 and 3, challenging the concurrent finding of fact recorded by the Courts below in O.S. No.283/2011 and R.A. No.16/2018.

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The plaintiff, defendants No.2 and 3 are the children of defendant No.1, who was in possession of ancestral properties as the kartha. She claimed that the defendant no.2 relinquished his right, title and interest in the suit properties in terms of a deed dated 14-09-1994. She claimed that the defendant no.1 was aged and infirm and that the joint family was administered by the defendant No.3, who got his name entered in the revenue records. When the plaintiff demanded her share in the suit properties, the defendant No.3 turned it down. In the meanwhile, the defendant No.3 sold items No.2 and 3 to the defendant No.7 while suit item No.5 was sold by the defendant No.1 to defendant No.8 though there was no legal necessity that necessitated sale of the properties. The plaintiff contended that when the defendant No.3

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turned down her demand for a share in the joint family she was compelled to file a suit for partition.

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Defendant No.1 contended that there was no partition or division between defendants No.1 to 3 in respect of the suit schedule properties. He contended that defendant No.2 had relinquished his right in the joint family properties as per relinquishment deed dated 13.11.1992. He sought for a share in the suit properties.

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Defendant No.7 who is the purchaser of suit property contended that items No.2 and 3 properties fell to the share of defendant No.3 at a partition, consequent to which revenue entries were brought about in the name of the defendant No.7. He stated that the defendant No.3 had sold the suit items No.2 and 3 to meet the legal necessities of the defendant No.3. He also contended that he was a bona fide purchaser who had no knowledge about the plaintiff.

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Defendant No.8 contested the suit and claimed that item No.5 belonged to the Government which was granted in favour of defendant No.1 in terms of an order

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dated 01.09.1977. Thereafter defendant No.8 sought for no objection from the Government to purchase Item No.5, based upon which Tahsildar issued an endorsement dated 19.10.2007 permitting sale of item No.5. He, therefore, claimed that the plaintiff was not entitled for any share in item no.5.

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The trial Court framed the following issues and

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additional issues :-

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Whether the plaintiff proves that she and defendants are member of Joint Hindu family and the suit schedule property are joint family properties?

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Whether 7^th defendant proves that suit Item No.2 and 3 have fallen to the share of defendant No.3 during partition and defendant No.3 to 6 have sold the same in favour of defendant No.7 under registered sale deed dated 11.02.2010 and is in possession of the same?

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Whether the plaintiff is entitled for the 1/3^rd share?

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Whether the plaintiff proves that sale deed dated 11.02.2010 in favour of defendant No.7 is not binding on her?

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What order or decree?

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Additional Issue :

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Whether the plaintiff proves that defendant No.1 without having any family necessity sold Item No.5 property to defendant No.8 on 02.11.2017?

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Re-casted Additional Issue :

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Whether the defendant No.8 proves Item No.5 property is self-acquired property of defendant No.1?

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The plaintiff was examined as P.W.1 and she

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marked documents Exs.P-1 to P-8. Two other witnesses were examined as P.Ws.2 and 3 but their evidence was struck off as they did not subject themselves for crossexamination. Defendant No.7 was examined as D.W.1, and other witnesses as D.Ws.2 and 3. Defendant No.1 was examined as D.W.4. Defendant No.8 was examined as D.W.5. They marked documents as Exs.D-1 to D-32.

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Based on the oral and documentary evidence, the trial Court held that the plaintiff had proved that she was entitled to an undivided ¼th share in item nos. 1 to 4 of the suit schedule properties.

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Feeling aggrieved by the aforesaid judgment

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and decree, defendant No.7 filed R.A. No.16/2018. The

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First Appellate Court noticed that defendant No.2 had relinquished his right, title and interest in the suit properties, and therefore, modified the judgment and decree of the trial Court and declared that the plaintiff is entitled to 1/3^rd share in the suit items 1 and 4 along with defendants No.1 and 3. It declared that the plaintiff and defendant no.1 were entitled to half share in suit items 2 and 3 and held that the sale deed in favour of the defendant no.7 is saved only to the extent of the share of the defendant no.3.

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Being aggrieved by the aforesaid finding of the First Appellate Court, defendant No.7 has filed present appeal.

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Defendant No.7 being a purchaser of joint

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family property cannot contest the claim of the plaintiff that she is entitled to a share in the suit property. His contention that a family partition was effected in terms of which the suit items 2 and 3 fell to the share of the defendant no.3 and that the defendant no.7 purchased it from the defendant no.3, cannot be pressed into service to deny the claim of the plaintiff. Further, the defendant no.7

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did not dispute the fact that the plaintiff was not a signatory to the family settlement/ partition. Hence, the defendant no.3 has to ride piggyback the defendant no.3 and take what the defendant no.3 would derive as his share at the partition. The right of defendant No.7 is to seek allotment of the property purchased by him, as far as possible to the share of his vendor in Final Decree Proceedings.

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In that view of the matter, the judgment and decree of the First Appellate Court restricting the right of defendant No.7 in respect of the share of defendant No.3 was unwarranted and the First Appellate Court ought to have left the issue to be considered by the Final Decree Court.

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It is needless to state that in the event Final Decree Proceedings are initiated, defendant No.7 is at liberty to participate in the Final Decree Proceedings and seek allotment of the property purchased by him to the share of defendant No.3 as far as possible.

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Since no substantial question of law arises for consideration in this appeal the same is dismissed, subject

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however to the observations made above.

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In view of disposal of appeal, pending I.As. do

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not survive for consideration and are accordingly disposed off.

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Sd/JUDGE

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hnm

Sri S.G.Ravikumar v. Pushpavathi

Case brief

What is this about?

What did the court decide?

Sri S.G.Ravikumar v. Pushpavathi

Case brief

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