Dismissed

Smt Savithramma v. Thimmaiah

Karnataka HC6 Sept 2021RSA/244/2007

Case brief

AI extract

What is this about?

This Second Appeal challenged the dismissal of suits for specific possession and title. The High Court upheld the finding that the property was purchased by the plaintiffs using joint family nucleus funds, as they failed to prove independent income. The Court also dismissed the appeal on 'clean hands' grounds due to a prior relinquishment deed.

What did the court decide?

Appeals dismissed; confirmation of judgment and decree passed by courts below.

Smt Savithramma Vs Thimmaiah — Partition | Karnataka HC (2021)

¶1

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 06^TH DAY OF SEPTEMBER, 2021

¶3

BEFORE

¶4

THE HON’BLE MR. JUSTICE E.S.INDIRESH

¶5

R.S.A. No.244 OF 2007

¶6

c/w R.S.A. No.245 OF 2007

¶7

IN RSA No. 244 OF 2007

¶8

BETWEEN:

¶9

SMT. SAVITHRAMMA W/O SRI T.M.RAJANNA MAJOR R/OF TOVINAKERE-572 103. C N DURGA HOBLI KORATAGERE TQ TUMKUR DISTTICT.

¶10

... APPELLANT

¶11

(BY SRI G S VENKAT SUBBARAO, ADVOCATE)

¶12

AND

¶13

THIMMAIAH SINCE DECEASED BY LRS

¶14

1(a) SRI KANTHARAJU SINCE DEAD BY LRS.

¶15

1(a)(i). SMT. ANUSUYA W/O LATE KANTHARAJU MAJOR

¶16

1(a)(ii). SRI NAVEEN S/O LATE KANTHARAJU

¶17

MAJOR

¶18

¶19

1(b). SRI MANJUNATHA S/O LATE THIMMAIAH MAJOR

¶20

1(c). SRI CHANDRANNA S/O LATE THIMMAIAH MAJOR

¶21

1(d). SRI SHIVANNA S/O LATE THIMMAIAH MAJOR

¶22

1(e). SMT RAMAKKA W/O THIMME GOWDA D/O LATE THIMMAIAH MAJOR

¶23

1(f). SMT JAYAMMA W/O LATE THIMMAIAH MAJOR

¶24

1(g). SMT VIJAYAMMA W/O LATE THIMMAIAH AGE MAJOR

¶25

RESPONDENTS 1(a) TO 1(g) AND 1(a) (i) TO 1(a)(ii) ARE R/OF TOVINAKERE, C.N.DURGA HOBLI KORATAGERE TQ TUMKUR DISTRICT-572 105.

¶26

1(h) SMT SUVARANAMMA W/O MUTHAPPA MAJOR R/AT SATHYAMANGALA TUMKUR DISTRICT-572 101.

¶27

SRI GOVINDAPPA SINCE DECEASED REPRESENTED BY HIS LRS

¶28

2(a). SMT. BHAGYAMMA W/O LATE GOVINDAIAH

¶29

¶30

AGED ABOUT 81 YEARS

¶31

2(b). SRI RAVI S/O LATE GOVINDAIAH AGED ABOUT 41 YEARS

¶32

2(c). SRI SUJENDRA S/O LATE GOVINDAIAH AGED ABOUT 36 YEARS

¶33

2(d). SMT. NAGARATHNA D/O LATE GOVINDAIAH AGED ABOUT 46 YEARS

¶34

2(e). SMT. MANJULA D/O LATE GOVINDAIAH AGED ABOUT 39 YEARS

¶35

2(f). SMT. USHA D/O LATE GOVINDAIAH AGED ABOUT 33 YEARS

¶36

RESPONDENTS 2(a) TO 2(f) ARE R/OF SIDDEGOWDA’S PLOT AT VAKKIDI-BUGADANAHALLI POST BELLAVI HOBLI TUMKUR-572 101.

¶37

2(g). SMT. VIJAYAKUMARI D/O LATE GOVINDAIAH AGED ABOUT 53 YEARS R/AT TIPTUR TALUK TUMKUR DISTRICT-572 201.

¶38

2(h). SMT. UMA

¶39

D/O LATE GOVINDAIAH AGED ABOUT 35 YEARS R/AT SETTIKERE HOSAPALYA CHIKKANAYAKANAHALLI TALUK TUMKUR DISTRICT-572 214.

¶40

... RESPONDENTS

¶41

¶42

(By SRI M R SHASHIDHAR FOR R1(b) TO (h) & 1(a)(i) AND 1(a)(ii); R2(b) AND (h) SERVED; VIDE ORDER DATED 29.05.2017 NOTICE TO R2(a), (c),(d),(e),(f) IS HELD SUFFICIENT; VIDE ORDER DATED 16.08.2019 SERVICE OF NOTICE TO R2(g) IS HELD SUFFICIENT)

¶43

THIS R.S.A. IS FILED U/S. 100 OF CPC AGAINST THE JUDGMENT & DECREE DATED 10.10.2006 PASSED IN R.A.NO.114 OF 2004 ON THE FILE OF THE III ADDITIONAL DISTRICT JUDGE, TUMKUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 27.06.1991 PASSED IN OS.NO.294 OF 1989 ON THE FILE OF THE MUNSIFF AND JMFC, KORATAGERE.

¶44

IN RSA No. 245 OF 2007

¶45

BETWEEN:

¶46

SRI T M RAJANNA S/O KENGA MUDLAIAH MAJOR R/AT TOVINAKERE C N DURGA HOBLI KORATAGERE TALUK TUMKUR DISTRICT-572 129.

¶47

... APPELLANT

¶48

(BY SRI G S VENKAT SUBBARAO, ADVOCATE)

¶49

AND

¶50

THIMMAIAH SINCE DECEASED BY LRS

¶51

1(a) SRI KANTHARAJU SINCE DEAD BY LRS.

¶52

1(a)(i). SMT. ANUSUYA W/O LATE KANTHARAJU MAJOR

¶53

¶54

1(a)(ii). SRI NAVEEN S/O LATE KANTHARAJU MAJOR

¶55

1(b). SRI MANJUNATHA S/O LATE THIMMAIAH MAJOR

¶56

1(c). SRI CHANDRANNA S/O LATE THIMMAIAH MAJOR

¶57

1(d). SRI SHIVANNA S/O LATE THIMMAIAH MAJOR

¶58

1(e). SMT RAMAKKA W/O THIMMEGOWDA MAJOR

¶59

1(f). SMT JAYAMMA W/O LATE THIMMAIAH MAJOR

¶60

1(g). SMT VIJAYAMMA W/O LATE THIMMAIAH MAJOR

¶61

RESPONDENTS 1(a) TO 1(g) AND 1(a) (i) TO 1(a)(ii) ARE R/OF TOVINAKERE, C.N.DURGA HOBLI KORATAGERE TQ TUMKUR DISTRICT-572 105.

¶62

1(h) SMT SUVARANAMMA W/O MUTHAPPA MAJOR R/AT SATHYAMANGALA TUMKUR DIST-572 101.

¶63

SRI GOVINDAPPA

¶64

SINCE DECEASED REPRESENTED BY HIS LRS

¶65

¶66

2(a). SMT. BHAGYAMMA W/O LATE GOVINDAIAH AGED ABOUT 81 YEARS

¶67

2(b). SRI RAVI S/O LATE GOVINDAIAH AGED ABOUT 41 YEARS

¶68

2(c). SRI SUJENDRA S/O LATE GOVINDAIAH AGED ABOUT 36 YEARS

¶69

2(d). SMT. NAGARATHNA D/O LATE GOVINDAIAH AGED ABOUT 46 YEARS

¶70

2(e). SMT. MANJULA D/O LATE GOVINDAIAH AGED ABOUT 39 YEARS

¶71

2(f). SMT. USHA D/O LATE GOVINDAIAH AGED ABOUT 33 YEARS

¶72

RESPONDENTS 2(a) TO 2(f) ARE R/OF SIDDEGOWDA’S PLOT AT VAKKIDI-BUGADANAHALLI POST BELLAVI HOBLI TUMKUR-572 101.

¶73

2(g). SMT. VIJAYAKUMARI D/O LATE GOVINDAIAH AGED ABOUT 53 YEARS R/AT TIPTUR TALUK TUMKUR DISTRICT-572 201.

¶74

2(h). SMT. UMA D/O LATE GOVINDAIAH AGED ABOUT 35 YEARS R/AT SETTIKERE HOSAPALYA CHIKKANAYAKANAHALLI TALUK TUMKUR DISTRICT-572 214.

¶75

... RESPONDENTS

¶76

¶77

(By SRI M R SHASHIDHAR FOR R1(b) TO (h) & 1(a)(i) AND 1(a)(ii); R2(b) and (h) served; Vide order dated 29.05.2007 notice to R2(a)(c)(d) (e) and (f) is held sufficient;

¶78

Vide order dated 16.08.2019 service of notice to R2(g) is held sufficient)

¶79

THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT & DECREE DATED 10.10.2006 PASSED IN R.A.NO.135 OF 2004 ON THE FILE OF THE III ADDITIONAL DISTRICT JUDGE, TUMKUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 27.06.1991 PASSED IN OS.NO.295 OF 1989 ON THE FILE OF THE MUNSIFF AND JMFC, KORATAGERE.

¶80

THESE APPEALS COMING ON FOR ADMISSION, THIS DAY, THE COURT, DELIVERED THE FOLLOWING:

¶81

JUDGMENT

¶82

These appeals are filed by the plaintiffs challenging the common judgment and decree dated 10.10.2006 passed in Regular Appeals No.114 and 135 of 2004 on the file of the III Additional District Judge, Tumkur, dismissing the appeal and confirming the judgment and decree dated 27^th June, 1991 passed in OS.Nos.294 and 295 of 1989 respectively, on the file of Munsiff and JMFC, Koratagere, dismissing the suit of the plaintiffs.

¶83

For the sake of convenience, the parties in these appeals shall be referred to in terms of their status before the trial Court.

¶84

¶85

Plaintiff in OS No.294 of 1989 is Smt. Savitramma and plaintiff in OS No.295 of 1989 is T M Rajanna. T M Rajanna is the husband of the Savitramma (plaintiff in OS No.294 of 1989). Originally, suits filed by Savitramma and T.M. Rajanna and thereafter suits came to be re-numbered as OS No.294 and 295 of 1989, respectively.

¶86

4. Case of the appellants before the trial Court:

¶87

Averments of the plaintiff in the plaint are that the plaintiffs claim to be the owners in possession of the portion of the suit schedule property, contending that they had purchased the said property from T. Rajanna of Bangalore on 30^th March, 1980. It is further stated that the adjoining portion of the suit property was purchased by defendant No.2-Govindappa and he sold it to one Ramesh, who in-turn sold it to one Ravi. The remaining portion of the property has been sold to third parties, except the subject matter of the suit property. It is further averred in the plaint that they are in possession of the suit schedule property and put up a house on the eastern portion of the property and there is an open space on the west. It is further stated in the plaint that there was a mistake in mentioning the Survey number of the land as 22/3, however, the

¶88

¶89

same was rectified on 17^th October, 1980 as Survey No.20/3. It is further averred that, the defendants, without right, title or interest, are interfering with the suit schedule property.

¶90

5. Defence of the defendants before the trial Court:

¶91

The defendants filed written statement contending that the suit schedule property is an ancestral undivided property of plaintiff-Rajanna and the defendants. It is the case of the defendants that, defendants and the plaintiff Rajanna are the children of Kengamudalappa, and after his death, the defendant being a kartha of the family, managing the affairs of the property, however, for the purpose of common understanding between the parties, they were residing separately. It is the case of the defendant that sale deed 30^th March, 1980 is concocted one and the suit schedule properties have been purchased by plaintiffs-Savitramma and Rajanna out of the joint family funds of the plaintiffs and defendants. It is further averred that the defendants are illiterates and plaintiff-Rajanna is an educated person. It is further averred in the written statement that plaintiffs have mis-managed the funds of the Joint Hindu Family of plaintiffs and defendants and managed to purchase the suit schedule property. It is further averred that the plaintiffs

¶92

¶93

cannot claim exclusive possession of the suit schedule property and placed reliance on the suit filed by the defendants in OS No.2 of 1987 and accordingly, sought for dismissal of the suit.

¶94

On the basis of the rival pleadings, the trial Court has formulated following issues in both suits for its

¶95

consideration:

¶96

O.S. 294/89

¶97

Whether the plaintiff proves that she is the owner of the suit schedule property?

¶98

Whether the defendants prove that the suit schedule property is joint family property and purchased out of joint family fund?

¶99

whether the plaintiff proves that she is in lawful possession of the suit schedule property?

¶100

Whether the plaintiff proves that the interference by the defendants?

¶101

Whether the plaintiff is entitled to the relief as prayed for?

¶102

what order?

¶103

OS No.295/89

¶104

Whether the plaintiff proves that he is in the exclusive owner of the suit property?

¶105

Whether the plaintiff proves that he is in exclusive possession of suit property?

¶106

¶107

Whether the suit property is coparcenery property?

¶108

Whether the defendants prove that they are in joint possession of the suit property along with plaintiff?

¶109

Whether the alleged interference is true?

¶110

To what relief is the plaintiff entitled?

¶111

What order?

¶112

In order to establish their case, plaintiff in OS

¶113

No.294 of 1989 has examined himself as PW1 and examined two more witnesses as PW2 and PW3 and got marked 2 documents as Exhibits P1 to P2. On the other hand, defendant No.1 examined himself as DW1 and examined two more witnesses as DW1 and DW2 and produced 2 documents as per Exs.D1 to D2; the plaintiff in OS No. 295 of 1985 got himself examined as PW1 and examined 5 more witness as PW1 to PW6 and produced 9 documents as per Ex. P1 to P9. On behalf of defendants, defendant No.1 was examined as DW1 and no document was produced.

¶114

The trial Court, after considering the material on record, by its judgment and decree dated 27^th June, 1991 dismissed both the suit of the plaintiffs and being aggrieved by the same, the plaintiff in OS No.294 of 1989 has preferred

¶115

¶116

Regular Appeal in No.114 of 2004 and plaintiff in O.S.No.295 of 1989 has preferred Regular Appeal No.135 of 2004 on the file of First Appellate Court. The said appeals were resisted by the defendants. The First Appellate Court, clubbed both the appeals and after re-appreciating the facts on record, by its common judgment and decree dated 10^th October, 2006 dismissed the appeals and consequently, confirmed the judgment and decree passed by the trial Court in both the suits.

¶117

Being aggrieved by the judgments and decree passed by the Courts below the plaintiffs in both the suits have presented these Regular Second Appeals under Section 100 of CPC.

¶118

I have heard Sri G.S. Venkata Subba Rao, learned counsel appearing for the appellant and Sri M.R. Shashidar learned counsel appearing for the respondents.

¶119

Sri G.S.Venkata Subba Rao, learned counsel for the appellants submits that both the courts below have not noticed the fact that the property in question cannot be considered as joint family properties. He further submitted that originally the land belong to one Lingappa son of Nanjappa and four guntas of

¶120

¶121

land was purchased by T Rajanna son of Doddanna. On 31^st March, 1981, plaintiffs have purchased the suit schedule property from T Rajanna, thus, exercising their right of ownership in respect of the suit schedule property and same did not belong to the joint family property of Rajanna and the defendants in the suit. He further contended that the trial Court has not properly appreciated the evidence of PW1 and both the courts below have committed an error in holding that there is presumption that the properties belong to Joint Hindu Family and the property, which has been purchased in the name of the plaintiff, has nothing to do with the joint family properties. He further contended that the defendants have executed release deed dated 30^th April, 1984 in favour of the plaintiff and the said aspect of the matter was not appreciated by both the courts below. It is categorical argument of the learned counsel appearing for the appellant that the defendants have failed to prove that the properties which had been purchased by the plaintiffs are out of nucleus of the joint family and as such, the same requires to be interfered with in this appeal. In order to buttress his submission with regard to considering the issues

¶122

¶123

involved in the appeal, he places reliance on the following

¶124

judgments:

¶125

1. C.Venkata Swamy v/s H.V. Shivanna (Dead) by Legal Representative and Another (2018 (1) SCC 604.

¶126

2. Dandappan Rudrappa Hampi v/s Renukappa @ Revannappa (1992) SCC Online Kar 350.

¶127

3. Shrinivas Krishna Rao Kango v/s Narayan Devji Kango & Others (1954) SC 379

¶128

4. G.B. Malikarjunaiah v/s J.S. Kannaiah Setty and Others (1961) MYC 64.

¶129

5. MST Rukhmabai v/s Lala Laxminarayan and others AIR (1960) SC 335.

¶130

6. M.V. Shivji rao Kore and others v/s Rukuminiyamma and others AIR 1973 Mys 113.

¶131

Per contra, Sri Shashidar, learned counsel appearing for the respondents, contended that the both the courts below have considered the evidence on record and arrived at a conclusion that plaintiffs have failed to prove that they have sufficient income to purchase the suit schedule property. It is the submission of Sri Shashidhar that the suit schedule property originally belonged to their father-Kengamudalappa and said property was sold in favour of Rajanna, and in turn, the said Rajanna sold the said property in favour of plaintiffs herein and

¶132

¶133

the entire transaction is sham and plaintiffs have fraudulently got the property to deprive the legitimate share of the defendants in respect of the suit schedule property. He has placed reliance on the judgments of the Apex Court in the case of DODDANARAYANA REDDY (DEAD) BY LRS v. C. JAYARAMA REDDY (DEAD) BY LRS AND OTHERS reported in AIR 2020 SC 1912.

¶134

Having heard the learned counsel appearing for the parties and perused the finding recorded by both the Courts below and material available on record, the same would indicate that defendants and the appellant in OS No.295 of 1989 are the children of Kengamudalappa. It is the case of the plaintiffs that suit schedule property are acquired by the respective plaintiffs out of their own income and there is not out of the joint family funds. In this regard, both the courts below have arrived at the conclusion that the suit schedule properties have been purchased by the respective plaintiffs out of the nucleus of the joint family and the plaintiffs fail to prove that there was severance in status with regard to joint family of plaintiffs and defendants. I have carefully considered the issues framed by the trial Court. Perusal of the testimony of PW1-Savitramma

¶135

¶136

would makes it clear that she admits that she has purchased the suit schedule property for the sale consideration of Rs.2,000/-. However, perusal of Exhibit D1-registered sale deed, would indicate that the sale consideration amount is Rs.8,000/-. In order to discern the truth whether PW1-Savitramma had any independent income apart from the income of her husband, I have carefully considered the cross-examination of PW1, which reads as under:

¶137

“ £À£Àß vÀAzÉUÉ £À£Àßö£ÀÆß PÀÆr ªÀÄÆgÀÄ d£À ºÉtÄÚ ªÀÄPÀÌ¼ÀÄ ºÁUÀÆ £Á®ÆÌ d£À UÀAqÀÄ ªÀÄPÀÌ½zÁÝgÉ, ºÉtÄÚ ªÀÄPÀÌ¼À°è £Á£ÉÃ zÉÆqÀØªÀ¼ÀÄ, E§âgÀÄ vÀAVAiÀÄgÀ°è M§â½UÉ ªÀÄzÀÄªÉAiÀiÁVzÉ, E£ÉÆß§â vÀAVUÉ ªÀÄzÀÄªÉAiÀiÁV®è, £ÀªÀÄä vÀAzÉUÉ 25 JPÀgÉ ¤ÃgÁªÀjAiÀÄ d«ÄÃ£ÀÄ EzÉ, £ÀªÀÄä ºÀwÛgÀ £ÀªÀÄä vÀAzÉUÉ 25 JPÀgÉ d«ÄÃ£ÀÄ EzÉ JAzÀÄ vÉÆÃj¸ÀÄªÀÅzÀPÉÌ AiÀiÁªÀÅzÉÃ zÁR¯ÁwUÀ¼ÀÄ E®è, £À£Àß CtÚ vÀªÀÄäA¢gÀÄ ¨ÉÃgÉAiÀiÁVzÁÝgÉ, ¥ÀæwAiÉÆ§âjUÀÆ 25 JPÀgÉ d«ÄÃ£ÀÄ §A¢zÉ, CªÀgÀÄ «¨sÁUÀ ¥ÀvÀæªÀ£ÀÄß ªÀiÁrPÉÆArzÁÝgÉ, £ÀªÀÄä E£ÉÆß§â vÀAVUÉ £ÀªÀÄä vÀAzÉUÉ d«ÄÃ£ÀÄ PÉÆr¹®è, £ÀªÀÄä vÀAzÉ ªÀÄvÀÄÛ CtÚ vÀªÀÄäA¢jUÉ AiÀiÁªÀÅzÉÃ d«ÄÃ£ÀÄ E®èªÉAzÀÄ CªÀgÀÄ PÀÆ°¬ÄAzÀ fÃ«¸ÀÄvÁÛgÉ JAzÀÄ ¸ÀÆa¹ªÀÅzÀÄ ¸ÀjAiÀÄ®è, PÀæAiÀÄ¥ÀvÀæPÉÌ £ÀªÀÄä vÀAzÉAiÀÄÄ §A¢zÀÝgÀÄ, PÀæAiÀÄ¥ÀvÀæzÀ ºÀtªÀ£ÀÄß £ÀªÀÄä vÀAzÉAiÉÄÃ PÉÆnÖzÁÝgÉ, £ÀªÀÄä vÀAzÉ ºÀt PÉÆlÖ §UÉÎ ¤±Á£É ¦1gÀ°è §gÉAiÀÄ¯ÁVzÉ. £ÀªÀÄä ªÀÄ£ÉvÀ£ÀzÀ ªÀÄÄRå ¨É¼ÉAiÀÄÄ vÀgÀPÁj ¨É¼É, ¥ÀæwªÁ¢AiÀÄgÀÄ ¨ÉÃ¸ÁAiÀÄ ªÀiÁqÀÄwÛzÀÝgÀÄ JAzÀÄ §AzÀ vÀgÀPÁjAiÀÄ£ÀÄß £À£Àß UÀAqÀ ªÀÄArUÉ ºÉÆÃV ªÀiÁgÁl ªÀiÁqÀÄwÛzÀÝgÀÄ JAzÀÄ ºÉÃ¼ÀÄªÀÅzÀÄ £À£ÀUÉ UÉÆwÛ®è, £À£Àß ªÀÄzÀÄªÉAiÀÄÄ DV 15 ªÀµÀðUÀ¼ÁzÀªÀÅ. £Á£ÀÄ §AzÀ vÀPÀët ªÁ¸ÀPÉÌ ¥ÀæwªÁ¢AiÀÄgÀÄ ¨ÉÃgÉ ¨ÉÃgÉ ºÉÆÃzÀgÀÄ, D §UÉÎ ¥ÁjÃPÀvÀÄÛ EzÉ, ªÀÄÆgÀÄ JPÀgÉ 1 UÀÄAmÉ d«ÄÃ£ÀÄ £ÀªÀÄä ¸Áé¢üÃ£ÀzÀ°è EgÀÄvÀÛzÉ. £ÀªÀÄä Hj£À°è Mt ¨ÉÃ¸ÁAiÀÄzÀ d«ÄÃ£ÀÄ, JPÀgÉUÉ 25 jAzÀ 30 ¸Á«gÀ gÀÆ¥Á¬Ä ¨É¯É ¨Á¼ÀÄvÀÛzÉ.

¶138

¶139

ªÁådåzÀ ¸ÀévÀÄÛ 10 jAzÀ 15 ªÀµÀðUÀ¼À »AzÉAiÉÄÃ MAzÀÄ ®PÀë gÀÆ¥Á¬Ä ¨É¯É ¨Á¼ÀÄwÛvÀÄÛ JAzÀÄ ºÉÃ¼ÀÄªÀÅzÀÄ ¤d. ªÁådåzÀ ¸ÀévÀÄÛ MlÄÖ PÀÄlÄA§zÀ ¸ÀévÀÄÛ JAzÀÄ ºÉÃ¼ÀÄªÀÅzÀÄ, ªÀÄvÀÄÛ MlÄÖ PÀÄlÄA§zÀ GvÀÖ£Àß¢AzÀ PÀæAiÀÄPÉÌ »r¢zÀÄÝ JAzÀÄ ºÉÃ¼ÀÄªÀÅzÀÄ ¸ÀÄ¼ÀÄî, ¤±Á£É ¦1gÀ°è £ÀªÀÄÆ¢¹zÀ 8000.00 gÀÆ. ºÀtªÀ£ÀÄß ¥ÀæwªÁ¢AiÀÄgÀÄ ºÁUÀÆ £À£Àß UÀAqÀ PÀÆrAiÉÄÃ PÉÆnÖzÁÝgÉ JAzÀÄ ¸ÀÆa¸ÀÄªÀÅzÀÄ ¸ÀjAiÀÄ®è, £ÀªÀÄä vÀAzÉAiÀÄÄ ¤±Á£É¦1gÀ°è £ÀªÀÄÆ¢¹zÀ 8000.00 gÀÆ¥Á¬ÄUÀ¼À£ÀÄß PÉÆlÖ §UÉÎ £À£Àß ºÀwÛgÀ zÁR¯ÉUÀ¼ÀÄ EªÉ.”

¶140

The testimony of PW1 would clearly indicate that the schedule property was worth Rs.1,00,000/- and her father and brothers had contributed towards the purchase of the suit schedule property. However, she denied the fact that her father and brothers were coolie by occupation. She had further deposed that partition took place between her husband and the defendants four years back, i.e. during 1986 and she also admits that her husband Rajanna re-purchased the property after repaying the earlier loan, from the vendor. In this regard, I have also carefully considered Exhibit P1, which substantiate the fact that the plaintiff has purchased the property from one Lingappa. I have also noticed the Relinquish Deed Exhibit P2 executed by the defendants which is the subject matter of the suit, was executed on 30^th April, 1984. The said property was relinquished by the father (said Rajanna), for a sum of Rs.500/-. In this regard, the defendant took a up a contention that they

¶141

¶142

are illiterates and the plaintiff-Rajanna had obtained the signatures of defendants fraudulently. Perusal of the aforesaid evidence would clearly indicate that the schedule properties were relinquished by the defendants in favour of the plaintiffRajanna for Rs.500/- in the year 1984 and purchased the suit schedule property in the year 1980 for a sum of Rs.1,00,000/and Rs.30,000/- respectively, by both the plaintiffs viz. Savitramma and Rajanna. This would clearly establish the fact that plaintiff Rajanna has fraudulently obtained the signature of defendants for a meager amount. Perusal of evidence of PW1Rajanna in OS No.295 of 1989 indicate that he has deposed that the schedule property had earlier belonged to his parents and thereafter, there was a partition in the year 1984. He also admits that value the schedule properties was Rs.30,000/- and the perusal of evidence of PW1-Rajanna would not indicate as to how and on what basis he purchased the suit schedule property without having any substantial income to purchase the same. In this aspect, it is useful to extract the finding recorded by the both the courts below mentioning that the plaintiff-Rajanna had filed application under Order XXIII Rule 1 and 2 of Code of Civil

¶143

¶144

Procedure in Regular Appeal 135 of 2004. In the said affidavit he stated as follows:

¶145

“ I, T M Rajanna, the appellant in the above case do hereby solemnly affirm and state on oath as follows:-

¶146

The suit property originally belong to father of parties to this suit and he had sold it to Poojari Thimmaiah and delivered possession of it to him about 20 years back. Thereafter he had sold it one Bangalore Rajanna. In fact there was no joint or ancestral property to this family at the time the plaintiff purchased this property. After the family lost all properties, the 2^nd defendant went and settled at Vokkodi in Tumkur Taluk. The 1^st defendant went and lived in his wife’s parents house. I lived separately and lived for some time on cooli. Thereafter I kept a small bunk shop and did small business and acquired the suit property from his earning. There was no joint family neuclius at the time of acquisition of this property. But since the defendants created trouble to plaintiff, he has also obtained a release deed, paying some amount to them, to avoid trouble and litigation. Hence it is crystal clear that defendants have not pleaded any joint family neuclius or income form which this property is acquired. But the trial court perhaps, want of better pleadings, making it clear the position

¶147

¶148

clear, misdirected itself and came to a wrong conclusion, as a result of this technical want of pleadings, making it clear the position clear, misdirected itself and came to a wrong conclusion, as a result of this technical want of pleadings and came to wrong conclusion, as a result the suit is failed. In fact the defendants have filed suit in OS.2/87 on the file of the Civil Judge, Madhugiri of partition and separate possession of their share in the suit property and all these questions are to be gone into in Trial suit. Hence I pray for withdrawal of suit as prayed for in the ends of justice.”

¶149

Perusal of the averment made in the affidavit of Rajanna would indicate that the originally land belonged to his father and he had sold the same to one Poojari Thimmaiah, who in-turn sold it to one Bangalore Rajanna, who is the vendor of the plaintiff. He also deposed that there was no joint family nucleus at the time of acquisition of the property. Simultaneously, he deposed that he had a bunk shop and had small business. Perusal of the aforementioned affidavit along with evidence of PW1 and the contentions raised by the defendants, clearly establish the fact that the plaintiffs have no source to buy two properties without any independent income of their own and on the other hand, the plaintiffs have prove not

¶150

¶151

before the trial Court to substantiate their stand regarding mobilizing funds to purchase the schedule properties. Though the learned counsel appearing for the appellant, placed reliance on the aforementioned judgments to argue that onus lies on the defendants to prove that the schedule property was purchased by the plaintiffs utilizing the funds of the joint family, the same has not been proved by them. However, the said submission cannot be accepted in the peculiar circumstances of the case, as in the earlier suit, the plaintiff suffered a decree and thereafter, sought to withdraw the appeal and also induced the defendants to relinquish their rights insofar as suit schedule property for a sum of Rs.500/- as per release deed dated 30^th April, 1984 (Exhibit P2), would clearly establish the fact that the plaintiffs have not approached the court with clean hands and the perusal of the evidence of PW1-Savitramma, who admits that property worth more than Rs.1,30,000/- however, she has paid Rs.2,000/- while executing the registered sale deed and the overall appreciation of these facts on record would clearly substantiate the fact that the trial Court appreciated the material on record in the right perspective and accordingly, dismissed the suit.

¶152

¶153

I have also examined the reasons assigned by the First Appellate Court wherein the First Appellate Court, after appreciating the entire material on record, as well as the considering the earlier proceedings in OS No.2 of 1997, rightly come to the conclusion that the plaintiffs have not adduced any evidence to show that they have sufficient separate income to pay the sale consideration amount while acquiring the suit schedule properties, and the said finding recorded by the First Appellate Court is based on the oral and documentary evidence produced by the parties, which do not call for interference in this appeal.

¶154

In this regard, the law declared by the Apex Court, as referred to by the learned counsel appearing for the appellant in the case of THULASIDHARA AND ANOTHER v. nARAYANAPPA AND OTHERS reported in (2019) 6 SCC 469 is clearly applicable to the case on hand, as the First Appellate Court, has looked into the entire evidence on record, re-appreciated and arrived at its own independent conclusion and therefore, the ruling Doddanarayana Reddy supra, relied upon the learned counsel appearing for the appellant would support the contentions of the respondent. For the foregoing reasons, and also in view of the

¶155

¶156

fact that I have already held that the plaintiffs have not proved through evidentiary value with regard to proving their independent income to purchase the suit schedule property and also it is not in dispute that the plaintiff-Rajanna and defendants constitute the Joint Hindu Family and no severance of the joint family at the time of purchase of the suit schedule property and in that connection, judgment referred to by the appellant in DANDAPPA RUDRAPPA AMPALI (case) and SRINIVASA KRISHNA RAO (supra) are not applicable to the facts of the present case. On the other hand, as rightly argued by the learned counsel appearing for the defendants, both the courts below have concurrently held that the suit schedule property has been purchased by the plaintiffs by investing funds from the joint family nucleus and on the hand, both the plaintiffs have failed to prove that they have independent source of income to purchase the suit schedule property would clearly prove the fact that the suit schedule properties are the joint family properties at the time of purchase made by the plaintiffs. In addition to this, the execution of release deed dated 30^th April, 1984 (Exhibit P2) by the defendants in favour of the plaintiff-Rajanna, relinquishing their rights for monetary sum of Rs.500/- would establish the

¶157

¶158

fact that the plaintiffs have not approached the Court with true facts and same was unfair to the defendants and in that view of the matter, following the law declared by the Apex Court in the case of DODDANARAYANA REDDY (supra), I am of the considered view that the both appeals deserve to be dismissed. Confirming the Judgment and Decree passed by both the courts below.

¶159

Sd/JUDGE

¶160

SB/lnn

Smt Savithramma v. Thimmaiah

Case brief

What is this about?

What did the court decide?

Smt Savithramma v. Thimmaiah

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

K N Gangadharappa Vs Smt Vijayalaxmi Prasanna Bidari

Smt Sulochana Vs Smt Haalamma

Mr. T. R. Swamy Vs Smt. Javanamma (Since Dead by Lrs)

Smt Rama Shedthi Vs Smt Kalyani Shedthi

Sri S Fayaz Vs Smt Shamshad Unissa

Sri T M Rajanna Vs Thimmaiah