Dismissed

B.Shruthi Patel v. Kamalesh Sonia

Karnataka HC12 Jan 2022RSA/1653/2014

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a regular second appeal filed by plaintiffs disputing a sale of ancestral property. The bench held the suit property was self-acquired by the deceased father, making it the absolute property of the son sold. No substantial question of law arose.

What did the court decide?

The appeal was dismissed; the impugned judgment and decree in O.S.No.33/2006 and R.A.No.156/2012 were confirmed.

B.Shruthi Patel Vs Kamalesh Sonia — Partition | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA BENGALURU

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DATED THIS THE 12^TH DAY OF JANUARY, 2022

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BEFORE

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THE HON’BLE MR.JUSTICE M.G.S.KAMAL

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RSA No.1653 OF 2014 (PAR)

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BETWEEN:

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B. SHRUTHI PATEL D/O C. BASAVARAJU AGED ABOUT 24 YEARS

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B. APOORVA PATEL

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D/O B. BASAVARAJU AGED ABOUT 21 YEARS

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SMT. LOKAMATHA AGED ABOUT 42 YEARS W/O C. BASAVARAJU

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ALL ARE R/O DOOR NO.2179/1, 4TH CROSS KUVEMPU NAGARA CHNNAPATANA TOWN BANGALORE RURAL DISTRICT BANGALORE - 571 501.

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... APPELLANTS

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(BY SRI. SHIVARAMU H.C., ADVOCATE) (THROUGH VIDEO CONFERENCE )

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AND:

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KAMALESH SONIA S/O JAVAR LAL SONIA MAJOR, R/O HALGUR VILLAGE HALAGURU, HOBLI MALAVALLI TALUK MANDYA DISTRICT - 571 401.

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C. BASAVARAJU S/O LATE CHIKKAMADHAIAH AGED ABOUT 52 YEARS R/O DOOR NO.2179/1 4TH CROSS , KUVEMPU NAGARA CHANNAPATTANA TOWN BANGALORE RURAL DISTRICT.

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…RESPONDENTS

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(BY SRI. S.V. HEGDE, ADVOCATE FOR R-1 SRI. MAHESH R. UPPIN, ADVOCATE FOR R-2)

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THE REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED 03.04.2014 PASSED IN R.A. NO. 156/2012 ON THE FILE OF I ADDITIONAL DISTRICT AND SESSION JUDGE, MANYA, DISMISSING THE APPEAL CONFIRMING THE JUDGEMENT AND DECREE DATED 05.11.2012 PASSED IN O.S. NO. 33/2006 ON THE FILE OF THE CIVIL JUDGE (JR.DN.) AND J.M.F.C. MALAVALLI.

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

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JUDGMENT

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Present appeal is filed by the appellants/plaintiffs

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aggrieved by the Judgment and Decree dated 03.04.2014 passed in R.A.No.156/2012 on the file of I Addl. District and Sessions Judge, Mandya (hereinafter referred to as ‘the First Appellate Court'), in and by which, the First Appellate Court while dismissing the appeal, confirmed the Judgment and Decree dated 05.11.2012 passed in O.S.No.33/2006 on the file of Senior Civil Judge, Malavalli (hereinafter referred to as ‘the Trial Court’).

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Plaintiffs being daughter and son of one C.Basavaraju-Defendant No.2 filed suit in O.S.No.33/2006 for relief of partition, separate

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possession and consequential relief of declaration to declare that the deed of sale dated 24.01.2002 executed by their father the defendant No.2 in favour of the defendant No.1 as null and void and not binding on the plaintiffs. The suit schedule property is land bearing Survey No.517/594 measuring East to West 53 feet, North to South 59.5 feet as described in the plaint. It is the case of the plaintiff that the plaintiffs and the defendant No.2 formed Hindu Undivided Family and the suit schedule property is an ancestral property. It is further contended by the plaintiffs that their grandfather had purchased the suit schedule property from one H.G.Abdul Munaf Sab, S/o.H.G.Abdul Gaffer Sab under a registered Sale Deed dated 30.12.1978 and eversince then, the subject property has remained a Hindu Joint Family property. That the said property was allotted to the share of the defendant No.2 in terms of a Palupatti dated 10.12.1988 by the deceased grandfather and as

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such, the plaintiffs being the legal representatives are entitled for the share in the property. That the plaintiffs and the defendant No.2 after construction of a house thereon resided therein for some time and thereafter they had shifted to Channapatna where the defendant No.2 was working as a Demonstrator in the Government service. That when they were living in Channapatna, the defendant No.2 on the pretext of leasing out the property, playing fraud on the plaintiffs had executed and registered a deed of sale conveying the said property in favour of the defendant No1. That the defendant No.2 had conveyed the property without consent or knowledge of the plaintiffs. As such, the said deed of sale is not binding on the plaintiffs. Hence, sought for relief of partition and declaration as above.

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Defendant No.1 filed written statement denying the plaint averment and sought for dismissal of the suit on the premise that the defendant No.2 is the absolute owner of the property having inherited from his father had every right to convey the same in favour of defendant No.1. The claim of the plaintiff that property

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being the ancestral property is also specifically denied. The allegation of fraud and undue influence and misrepresentation in executing deed of sale dated 24.01.2002 by the defendant No.2 in favour of the defendant No.1 is also denied. Hence, sought for dismissal of the suit.

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The defendant No.2 who appeared and filed written statement contended that the suit property had been purchased by his father from its original owner Abdul Manaf Sab of Halagur village under registered deed of sale dated 30.12.1978 which subsequently fell to the share of the defendant No.2 in a partition (Palupatti) dated 10.12.1998. Eversince the date of purchase and subsequent to Palupatti, the defendant No.2 has been in peaceful possession and enjoyment of the suit property along with his family members. The defendant No.2 has in a way supported the case of the plaintiff. The Trial Court based on the pleadings, framed following issues:

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i) Whether the plaintiffs prove that suit property is the joint family property and in the partition had fallen to the share of defendant No.2?

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ii) Whether the plaintiffs prove that sale deed dated:24.01.2002 is null and void and not binding on them?

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iii) Whether the defendant No.1 proves that, he is bonafide purchaser?

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iv) Whether plaintiffs are entitled for reliefs as prayed

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iv) What order of Decree?

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Six witnesses have been examined on behalf of the plaintiff as P.Ws.1 to 6 and exhibited 21 documents as Ex.P1 to Ex.P21. Five witnesses have been examined on behalf of the defendants and exhibited 152 documents marked as Ex.D1 to Ex.D152. On appreciation of evidence, the trial court dismissed the suit by its Judgment and Decree dated 05.11.2012. Being aggrieved by the same, the plaintiffs filed regular appeal in R.A.No.156/2012 before the First Appellate Court. Based on the grounds urged, the First Appellate Court framed the following points for consideration:

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i) Whether the plaintiffs prove that the execution of sale deed by the second defendant in favour of the first defendant is out come of fraud, undue influence, misrepresentation and thereby it is null and void as alleged in the plaint?

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ii) Whether the plaintiffs prove their legal right over the suit property?

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iii) Whether the Judgment and Decree passed by the trial court in O.S. No.33/2006 dated:05.11.2012 is illegal erroneous and unsustainable under law and liable to be interfered with?

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iv) What order?

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On re-appreciation of material evidence,

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dismissed the appeal confirming the Judgment and Decree passed by the Trial Court. Being aggrieved by the same, appellants/plaintiffs are before this Court.

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Sri.H.C.Shivaramu, learned counsel for the appellants/plaintiffs reiterating the grounds urged in the memorandum of appeal submits that:

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a) The Trial Court and the First Appellate Court have misconceived the pleadings and evidence of the parties. The property admittedly belonged to the grandfather of the plaintiff who is the father of defendant No.2 . He having purchased the same under a deed of sale dated 30.12.1978 and the said property having been allotted to the share of the father of the plaintiffs, has

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become the joint family property in which the plaintiffs are entitled for share therein.

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b) That the defendant No.2 without the consent or

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knowledge of the plaintiffs and without there being any legal necessity has sold the property depriving the share of the plaintiffs. Hence, he submits that the Judgment and Decree suffers from perversity giving rise to substantial question of law for consideration in this appeal.

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On the other hand, Sri.V.S.Hegde, learned

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counsel for the respondents/defendants justifying the Judgment and Decree passed by the Trial Court and Appellate Court submits that since the plaintiffs have failed to establish the property being ancestral property, cannot claim any pre-existing right over the same. Referring to the admission by the Defendant No.2 with regard to the property having been purchased by his father under deed of sale dated 30.12.1978, he submits that the same cannot in the facts and circumstances of the case considered to be the ancestral property entitling the plaintiff for a share therein. Hence, he submits that

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no substantial question of law arises requiring

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consideration.

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Heard the learned counsel for the parties.

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It is not in dispute that the suit schedule property has been purchased by the father of the defendant No.2 in terms of the deed of sale dated 30.12.1978 from one H.G. Abdul Manaf Sab. Thus, there is no evidence of any nature whatsoever produced by the plaintiffs to show that the said property was acquired through any joint family nucleus. Since the said property being the self-acquired property of the father of the defendant No.2 upon his demise, the same would fall to the share of the defendant No.2 being the class-I heir having succeeded to the property. The same would be his absolute property. As such, the same cannot be considered to be the jointly ancestral property. Defendant No.2 would therefore be entitled to dispose of the property in exercise of his absolute ownership over the same without any hindrance. This aspect of the matter has been taken note of by the Trial Court as well

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as the First Appellate Court. Factually and legally, the said reasoning cannot be found fault with. The claim of the plaintiff that the property is ancestral Hindu Joint Family property, in the facts and circumstances of the case, cannot be countenanced. On a holistic reading of the pleadings of the parties and the reasoning given by the First Appellate Court, this Court is of the considered view that no substantial question of law arises in the matter.

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Hence, the following:

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ORDER

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i) RSA No.1653/2014 is dismissed.

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ii) The Judgment and Decree dated 05.11.2012 passed in O.S.No.33/2006 on the file of Senior Civil Judge, Malavalli dated 03.04.2014 and the Judgment and Decree passed in R.A.No.156/2012 on the file of I Addl. District and Sessions Judge, Mandya, are confirmed.

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Sd/JUDGE

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bnv*

B.Shruthi Patel v. Kamalesh Sonia

Case brief

What is this about?

What did the court decide?

B.Shruthi Patel v. Kamalesh Sonia

Case brief

What is this about?

What did the court decide?

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