Dismissed

R Veeresh v. Smt Rajeshwari

Karnataka HC5 Aug 2021RSA/798/2013

Case brief

AI extract

What is this about?

The High Court of Karnataka, in this regular second appeal under Section 100 CPC, dismissed the appeal filed by Defendant No.4 against a decree confirming a partition suit. Upholding co-parceners' rights to an equal share in ancestral joint family property as per Vineeth Sharma, the Court found no substantial question of law and held the appeal inadmissible at the admission stage.

What did the court decide?

The Regular Second Appeal (R.S.A.) was dismissed at the stage of admission itself, holding that no substantial question of law was made out under Section 100 CPC.

R Veeresh Vs Smt Rajeshwari — Partition | Karnataka HC (2021)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 5^TH DAY OF AUGUST 2021

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BEFORE

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THE HON’BLE MR. JUSTICE E.S.INDIRESH

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R.S.A. No.798/2013 (PAR)

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BETWEEN:

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R. VEERESH S/O. R.S. RAJASHEKAR AGED ABOUT 48 YEARS #4, K. LINGAYYA COLONY NAZARBAD MOHOLLA MYSORE-570011

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... APPELLANT

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(BY SRI K.R. KRISHNA MURTHY, ADVOCATE)

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AND:

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SMT. RAJESHWARI W/O SHIVAPPA @ SHIVANNA AGED ABOUT 45 YEARS K SHETTIHALLI

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SHREERANGAPATTANA TALUK MANDYA DISTRICT - 571438.

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SMT. NIJAGUNA W/O. K. MALLESH AGED ABOUT 43 YEARS NEAR GRAMA PANCHAYATH OFFICE ALANAHALLI, SIDDARTHANAGARA POST, MYSORE-570011.

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PUTTATHAYAMMA, W/O. LATE B.J. MAHADEVAPPA AGED ABOUT 65 YEARS R/O.157, BUGATHAGALLI VILLAGE VARUNA HOBLI VAJAMANGALA POST

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MYSORE TALUK MYSORE-570011.

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SMT. PADMA W/O. MAHADEVU AGED ABOUT 41 YEARS R/O. NO.76, 3^RD CROSS RAGHAVENDRANAGARA MYSORE-570011.

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MANJUNATHA S/O. LATE B.J. MAHADEVAPPA AGED ABOUT 39 YEARS R/O AT NO.157 BUGATHAGALLI VILLAGE VARUNA HOBLI VAJAMANGALA POST MYSORE TALUK MYSORE-570011.

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... RESPONDENTS

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(BY SRI.SOMASHEKAR KASHIMATH, ADVOCATE FOR R1 & R2. R3, R4, R5 - SERVED)

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THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED :16.04.2012 PASSED IN R.A.NO.625/2011 ON THE FILE OF THE I ADDL. DISTRICT JUDGE, MYSORE, DISMISSING THE APPEAL FILED AGAINST THE JUDGEMENT AND DECREE DTD 2.9.2011 PASSED IN OS.NO.630/2008 ON THE FILE OF THE I ADDL. SENIOR CIVIL JUDGE, MYSORE.

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THIS R.S.A. 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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This Regular Second Appeal is filed by the defendant No.4, challenging the judgment dated

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16.04.2012 passed in R.A.No.625/2011, (referred to in the decree as R.A.No.625/2012) confirming the judgment and decree dated 02.09.2011 passed in O.S.No.630/2008 on the file of the First Additional Senior Civil Judge at Mysuru, decreeing the suit of the plaintiffs.

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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.

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It is the case of plaintiffs that they are the children of late B.J.Mahadevappa and defendant No.1. It is further averred in the plaint that defendant No.2 is the sister of plaintiffs and defendant No.3 is the brother of plaintiffs. Defendant No.4 has entered into Joint Development Agreement with defendant Nos.1 to 3 on 28.09.2005 to develop the subject matter of the suit schedule properties. It is the case of the plaintiffs that the suit schedule properties are the ancestral properties of their father – B.J.Mahadevappa and he died on 10.05.1989 leaving behind the plaintiffs and defendant

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Nos.1 to 3 as his legal representatives to succeed to the estate of B.J.Mahadevappa. It is further contended by the plaintiffs that defendant Nos.1 to 3, with malafide intention, have entered into Joint Development Agreement with defendant No.4 and also executed Power of Attorney in favour of defendant No.4 in the year 2005 itself in respect of item No.1 of the suit schedule properties without consent of the plaintiffs and as such, the said Joint Development Agreement dated 28.09.2005 executed by defendant Nos.1 to 3 in favour of defendant No.4 is not binding on the plaintiffs and further stated that defendant Nos.1 to 3 have colluded with defendant No.4 and as such, entered into aforementioned agreement without effecting partition insofar as suit schedule properties which apparently belonged to their father – B.J.Mahadevappa and as such, the plaintiffs has filed O.S.No.630/2008 before the trial Court seeking 1/6^th share each in the suit schedule properties.

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In response to the notice issued by the Court, respondent Nos.1 to 3 served and unrepresented and as

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such, they have been placed exparte. The Agreement Holder – defendant No.4 entered appearance and filed a detailed written statement denying the averments made in the plaint and took up a defence that he has paid huge consideration amount of Rs.12,45,000/in pursuance to the Joint Development Agreement dated 28.09.2005 and as such, the plea put forth by the plaintiffs cannot be accepted. Accordingly, he sought for dismissal of the suit and he also contended that the relief of partition sought for by the plaintiffs is not maintainable and the same is inequitable to the interest of defendant No.4.

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The trial Court based on the pleadings on record formulated the following issues for its

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consideration.

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1. Whether the plaintiffs prove that, the suit schedule property is ancestral, joint family property, liable for partition?

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2. Whether the plaintiffs prove that defendants 1 to 3 have acted detrimental to the interest over the schedule property?

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3. Whether the 4^th defendant proves that defendants 1 to 3 have entered into a registered development agreement with him on 28.09.2005 in respect of item no.1 by receiving Rs.2,45,000-00 for the benefit of the family?

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

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5. What Order or Decree?

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Plaintiff No.1 was examined as P.W.1 and she

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has produced nine documents and the same were marked as Exs.P1 to P9. Defendant No.4 was examined as D.W1 and no documents were produced by the defendants.

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The trial Court, after considering the materials on record, by its judgment and decree dated 02.08.2011 decreed the suit and held that the Joint Development Agreement dated 28.09.2005 is not binding on the plaintiffs and as such, ordered that the plaintiffs are entitled for 1/5^th share each in the suit schedule properties. The trial Court also granted permanent injunction restraining the defendant No.4 and his

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assignees for making any alternation in the item No.1 of the suit schedule properties. Being aggrieved by the judgment and decree passed by the trial Court, defendant No.4 has filed R.A.No.625/2011 on the file of the First Appellate Court. Plaintiffs resisted the appeal. However, defendant Nos.1 to 3 placed exparte, as they were absent. The First Appellate Court, after reappreciating the materials on record, dismissed the appeal, however, modified the shares of the co-parceners of the members of the joint family of late Mahadevappa. Being aggrieved by the judgment and decree passed by the Courts below, defendant No.4 has presented this appeal.

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I have heard Sri.K.R.Krishna Murthy, learned counsel appearing for appellant and Sri.Somashekar Kashimath, learned counsel appearing for plaintiffsrespondent Nos.1 and 2.

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It is the submission of Sri.K.R.Krishna Murthy,

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learned counsel appearing for the appellant that both Courts below have not properly considered Ex.P5 and

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Ex.P6 executed by defendant Nos.1 to 3 in favour of defendant No.4. He further contended that the Courts below committed serious error in considering the fact that the suit schedule properties are ancestral and joint family properties of plaintiffs. He also contended that on equitable ground, defendant No.4 has paid considerable amount to defendant Nos.1 to 3 pursuant to the execution of the Joint Development Agreement dated 28.09.2005 and the same ought to have been considered by both Courts below.

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Per contra , learned counsel appearing for plaintiffs-respondents contended that judgment and decree passed by the both Courts below is just and proper taking into consideration the fact that the suit schedule properties are the ancestral properties of the plaintiffs and defendants.

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Having heard learned counsel appearing for the parties, I have carefully considered the findings recorded by the Courts below. It is not in dispute that plaintiffs are the daughters of late B.J.Mahadevappa and

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Smt.Puttathayamma(defendant No.1). B.J.Mahadevappa father of plaintiffs died on 10.05.1989 leaving behind the plaintiffs and his wife – defendant No.1 and daughter – defendant No.2 and son – defendant No.3. In view of the same, the property belonged to B.J.Mahadevappa, has become the joint family properties of the plaintiffs and defendant Nos.1 to 3. In this regard, I have carefully considered the findings recorded by the trial Court particularly with regard to issue No.3. It is the case of plaintiffs that the suit schedule properties are joint family properties of B.J.Mahadevappa. However, insofar as item No.1 of the suit schedule property is concerned, defendant Nos.1 to 3 have entered into registered Joint Development Agreement on 28.09.2005 and the same is not binding on the plaintiffs. Learned counsel appearing for respondents has made available the certified copy of the Joint Development Agreement. Clause-2, of the agreement read, as under;

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“2. Schedule property is the ancestral property of the owners. The RTC stands

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recorded in the names of owner Nos.1 and 3

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in the records of the Revenue Authorities.”

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Perusal of clause-2 of Joint Development Agreement (Ex.P.6), would clearly indicate that the schedule properties are the ancestral properties of owners i.e., defendant Nos.1 to 3 and the said document has been signed and executed by defendant No.4. In that view of the matter, I do not find any substance in the arguments advanced by the learned counsel appearing for the appellant disputing the relationship between the parties. In view of the same, the finding recorded by the trial Court that the plaintiffs were not signatories to Ex.P.6 being the coparceners in the family of late B.J.Mahadevappa does not require interference. Further, in view of the law declared by the Hon’ble Supreme Court in the case of VINEETH SHARMA VS. RAKESH SHARMA AND OTHERS reported in AIR 2020 SC 3717, the plaintiffs are also entitled for equal share as that of defendant Nos.1 to 3 and as such, the findings

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recorded by the trial Court is just and proper and the

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same does not require interference in this appeal.

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I have carefully examined the findings

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recorded by the First Appellate Court, wherein the First Appellate Court has rejected the appeal filed by defendant No.4 and affirmed the issue Nos.1 to 3 and modified the shares of the plaintiffs and defendant No.3. However, the appellant herein is the defendant No.4 and since both Courts below have rejected his claim insofar as the fact that he has entered into Joint Development Agreement dated 28.09.2005 with defendant Nos.1 to 3, the same is not binding on the plaintiffs in terms of the law declared by the Hon’ble Supreme Court in the case

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of VINEETH SHARMA VS. RAKESH SHARMA AND OTHERS (stated supra). The judgment and decree passed by the trial Court is just and proper and as such, both Courts below have held against defendant No.4 insofar as the subject matter of the suits are concerned. As such, I do not find any merit in the appeal.

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Accordingly, appeal dismissed .

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However, learned counsel appearing for the appellant contended that defendant Nos.1 to 3 have entered into Joint Development Agreement with defendant No.4 and the interest of defendant No.4 has to be safeguarded. If such being the case, it is open for the defendant No.4 to take appropriate steps against defendant Nos.1 to 3, if he is so advised in accordance with law.

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The appeal is dismissed at the stage of admission itself since, the appellant-defendant No.4 has not made out a case for framing substantial questions of law as required under Section 100 CPC.

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Sd/JUDGE

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NBM

R Veeresh v. Smt Rajeshwari

Case brief

What is this about?

What did the court decide?

R Veeresh v. Smt Rajeshwari

Case brief

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