Dismissed

Sri Neelesh v. Sri Veerabhadregowda

Karnataka HC14 Jan 2022RSA/900/2013

Case brief

AI extract

What is this about?

This appeal challenged the dismissal of a suit seeking partition and declaration that family property was ancestral. The High Court dismissed the appeal, holding that since the property was inherited via a will from an uncle, it was not ancestral, and the father had absolute right to sell his share.

What did the court decide?

The appeal was dismissed with no substantial question of law found.

Sri Neelesh Vs Sri Veerabhadregowda — Succession and Inheritance | Karnataka HC (2022)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 14TH 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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R.S.A.NO.900/2013

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BETWEEN:

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SRI NEELESH S/O. VEERABHADREGOWDA, AGED ABOUT 40 YEARS, R/O. THANNERUHALLA, EXTENSION, HASSAN-573201

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...APPELLANT

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(BY SRI.GAURAV MANDAPPA, ADVOCATE FOR SRI.P.K.SRIKARA, ADVOCATE)

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,, AND:

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SRI VEERABHADREGOWDA @ EREGOWDA S/O ANNEGOWDA, AGED ABOUT 72 YEARS.

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SRI. SHIVARUDRAPPA S/O. VEERABHADREGOWDA, AGED ABOUT 35 YEARS

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SRI. BHOJARAJU S/O. VEERABHADREGOWDA, AGED ABOUT 41 YEARS

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THE RESPONDENTS 1 TO 3 ARE R/AT. YADHUR VILLAGE, KASABA HOBLI,

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ALUR TALUK-573104

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SRI AKBAR KHAN SINCE DEAD, REP. BY HIS LRS

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4a. SRI. SALEEM AHMED KHAN S/O. LATE AKBAR KHAN, AGED ABOUT 41 YEARS

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4b. SRI. ZABIER AHMED KHAN S/O. LATE AKBAR KHAN, AGED ABOUT 30 YEARS

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4c. SHAHEER AHMED KHAN S/O. LATE AKBAR KHAN, AGED ABOUT 36 YEARS

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THE RESPONDENTS 4(a) TO 4(c) ARE C/O MEN'S STYLE, OPPOSITE BUS STAND HASSAN 573201.

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...RESPONDENTS

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(BY SRI.B.R.VISHWANATH, ADVOCATE FOR R4(a-c); R2 SERVED; R3 SERVED; V/O DTD 17.08.2017 APPEAL AGAINST R1 STANDS DISMISSED AS ABATED)

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THIS RSA IS FILED U/S. 100 R/W ORDER 42 RULE 1 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 30.1.2013 PASSED IN R.A.NO.109/2006 ON THE FILE OF ADDITIONAL DISTRCIT JUDGE AND PRESIDING OFFICER, FAST TRACK COURT-I, HASSAN, DISMISSING THE APPEAL AND CONFIRMING THE JUDGEMENT AND DECREE DTD 29.10.2005 PASSED IN OS.NO.479/1999 ON THE FILE OF CIVIL JUDGE (JR.DN.) AND JMFC,ALUR.

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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 regular appeal is filed by the appellant/plaintiff aggrieved by the judgment and decree dated 30.01.2013 passed in R.A.No.109/2006 (old No.R.A.No.197/2005) on the file of the Additional District Judge and The Presiding Officer, Fast Track Court-1, Hassan (hereinafter referred to as the 'First Appellate Court') in and by which, the first appellate court while dismissing the appeal filed by the appellant/plaintiff confirmed the judgment and decree dated 29.10.2005 passed in O.S.No.479/1999.

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The above suit in O.S.No.479/1999 is filed by the appellant/plaintiff seeking relief of partition and separate possession of his purported 1/4th share in plaint 'A' schedule property and for cancellation of deed of sale dated 24.04.1986 executed in favour of defendant No.4 in respect of 'B' schedule property and for consequential relief of mesne profits.

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The suit was originally registered at Munsiff and JMFC, Hassan with the O.S.No.102/1994. After constitution of new court at Alur, the said case was transferred and renumbered as O.S.No.479/1999.

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4. The case of the appellant/plaintiff is;

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That the plaintiff and defendant Nos.2 and 3 are the children of defendant No.1. That the immovable property in Sy.No.93 measuring 6 Acres 6 guntas of Yaduru village, Kasaba Hobali, Alur Taluk, Hassan District mentioned in plaint 'A' schedule property is the joint family ancestral property consisting of plaintiff, defendant Nos.1 to 3. That plaintiff and defendant Nos.1 to 3 had inherited the suit schedule property from the father of the defendant No.1. That land in Sy.No.93 measuring 18 Acres 18 guntas originally belonged to one Puttegowda, the paternal uncle of defendant No.1. The said Puttegowda bequeathed the said property in favour of his brother Annegowda in terms of a Will dated 07.06.1921. The

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said Annegowda died living behind him his three sons namely, Veerabhadregowdadefendant No.1., Puttegowda and Nangegowda. That there was partition amongst the said three sons of Annegowda in terms of which 6 Acres of 6 Guntas of land each was allotted to their respective shares. Thus, the defendant No.1 became the absolute owner of 6 Acres of 6 Guntas of land described in plaint 'A' schedule property.

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That one Mogannagowda, minor son represented by his father filed suit in O.S.No.95/194950 on the file of Munsiff, Hassan against the defendant No.1 and his two brothers claiming that said properties are ancestral properties. That the said suit came to be dismissed holding the rights of Annegowda and his children. That in view of the Will dated 07.06.1921 executed by Puttegowda in favour of Annegowda, it is clear that said suit schedule properties are ancestral properties of the plaintiff and

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thus, the plaintiff is entitled for equal share in the suit schedule property.

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The defendant No.4 had purchased 3 acres 18 guntas of land referred to as 'B' schedule property out of 6 acres 6 guntas referred to as plaint 'A' schedule property from Defendant Nos.1 and 2 in terms of registered deed of sale dated 24.04.1986. The said sale deed was without any family necessity. As such, the same was untrue and untenable. The sale was detriment to the interest of the plaintiff and other members of the family. As such, the plaintiff has sought for relief of partition and declaration.

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It is also contended that plaintiff and defendant No.3 were the minors, aged about 12 years and 16 years respectively at the time of execution of the deed of sale and the plaintiff learnt about the said illegal acts in September, 1993 and caused issuance of a notice to defendant No.4 and since defendant No.4 had issue of untenable reply without complying with

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the demand made by the plaintiff. Plaintiff is constrained to file suit.

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The defendant Nos.1 and 2 appeared and filed written statements contending that the sale was for the family necessity and that defendant No.1 had requested the defendant No.4 to pay much higher value and defendant No.4 had assured the defendant No.1 of help in some other way. Defendant Nos.1 and 2 have no objections in any manner for giving share in the property to the plaintiff.

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Defendant No.4 filed written statement

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denying the plaint averments and contended that the defendant Nos.1 to 3 had sold the property for the benefit of the family and its necessity in terms of deed of sale dated 24.04.1986 as evident from the recital of the deed of sale. Defendant No.4 is bonafide purchaser of the value. That the claim of the plaintiff of property being the ancestral property has also been

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denied. However, the issue with regard to execution of will dated 07.06.1921 has not been denied seriously.

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Based on the pleadings, the trial court framed the following issues and recorded the

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evidence.

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"(1). Whether the plaintiffs prove that suit 'A' schedule property are the ancestral property of himself and defendant No.1 to 3 as alleged in the plaint?

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(2) Whether the plaintiff further proves that the sale deed dated 24.04.1986 executed in favour of the 4th defendant in respect of 'B' schedule property is not binding on him and it was not for the benefit of the joint family as alleged?

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(3) Whether the plaintiff further proves that he has got 1/4th share in suit 'A' schedule property as alleged in the plaint?

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(4) Whether the 4th defendant proves that the court has no pecuniary jurisdiction to try this suit?

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(5) Whether the court fee paid is insufficient and incorrect?

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(6) Whether the suit is bad for nonjoinder of necessary parties?

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(7) Whether the plaintiff further proves the mesne profits from the suit property?

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(8) Whether the plaintiff is entitled for the cancellation of sale deed dated 24.04.1986?

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(9) Whether the plaintiff is entitled for the mesne profits?

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(10) What decree or order?

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The plaintiff examined himself as P.W.1

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and exhibited eight documents marked as Ex.P.1 to Ex.P.8. Two witnesses have been examined on behalf of defendants as D.W.1 and D.W.2 and exhibited six documents marked as Ex.D.1 to Ex.D.6.

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On appreciation of evidence, the trial Court dismissed the suit. Being aggrieved by the same, appellant/plaintiff filed R.A.No.109/2006 (old No.197/2005). The first appellate Court framed the following points for its consideration.

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"1. Whether the appellant/plaintiff proves that finding given by the trial

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court that the transaction done through sale deed dated.24.04.1986 was for legal necessity and was also for the benefit of the family, is erroneous an liable to be set aside?

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Whether the appellant/plaintiff proves that there is a need for interference in the finding of the trial court?

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3. If so, what is the order?

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On re-appreciation of the evidence, the first appellate court dismissed the appeal and confirmed the judgment and decree dated 29.10.2005 passed by the trial court in O.S.No.479/1999. Being aggrieved by the same, appellant/plaintiff is before this court.

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Sri. Gaurav Mandappa, learned counsel for appellant/plaintiff reiterating the grounds urged in the memorandum of appeal submitted that;

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(a) the trial court and first appellate court grossly erred in dismissing the suit on purported ground of same having been barred by limitation.

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(b) that trial court and first appellate court had not taken note of the fact that as on the date of filing of the suit, the plaintiff was aged about 21 years which is mentioned in the recitals of deed of sale dated 24.04.1986, wherein his age is mentioned as 12 years. Taking the same, if his age is calculated as on the date of suit in 1993, plaintiff was about 21 years of age. Thus, he submits that trial court and first appellate court erred in concluding that suit of the plaintiff barred by limitation as not having been filed within the period of limitation of he attaining the age of majority.

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(c). that the issue with regard to legal necessity

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has been erroneously dealt with by the trial court and first appellate court. In the case of ancestral joint family property it is the alienee, who is casted with the burden under the law to establish that the sale was for legal necessity. That trial court and first appellate court have misconceived this concept of law

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and have there by erroneously casted the burden on the plaintiff. Thus, he submits that appeal involves substantial question of law requiring consideration.

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On the other hand, Sri.B.R.Vishwanath, learned counsel for respondent/defendant

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No.4/purchaser submits;

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(a) that in the first instance, the suit of the

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plaintiff for the relief as sought for was not maintainable, as the fundamental requirement of property being ancestral property has not been established by the appellant/plaintiff.

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(b) drawing attention of this court to

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paragraph 15 of the judgment of the trial court, the learned counsel submits, that the very finding of the trial court with regard to execution of Will dated 07.06.1921 by Puttegowda in favour of Annegowda,

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the grand father of the plaintiff would establish that property was not an ancestral property. That being so,

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the plaintiff claiming right by birth and agitating the question of legal necessity would not arise. Thus, he submits no substantial question of law involves in the matter requiring consideration.

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Heard the learned counsel appearing for parties and perused the records.

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The appellant/plaintiff has filed the above

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suit seeking relief of partition and separate possession and also declaration that the deed of sale dated 24.04.1986 executed by defendant Nos.1 to 3 in favour of defendant No.4 was illegal, null and void as suit 'A' schedule property is an ancestral joint family property. It is settled law that there can be a presumption of a Hindu family being a joint family. However, there cannot be a presumption with regard to Hindu Joint Family Property. A Hindu Joint Family property is a factum to be established by leading cogent evidence. It cannot be presumed merely because members of a family reside together.

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In the instant case, admittedly the

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Puttegowda had bequeathed all his properties in terms of Will dated 07.06.1921 in favour of his brother Annegowda. The said Annegowda was the father of defendant No.1 and grand father of plaintiff and defendant No.3. Thus, the acquisition of larger extent of property including the suit schedule property by Annegowda was by means of a testamentary document and not by inheritance or succession. That being so, the claim of the plaintiff, that the property being ancestral joint family property, cannot be countenanced. Defendant No.1 being the son and class -I heir of Annegowda along with his brother has got equal shares in terms of Section 8 of Hindu Succession Act, 1956, having absolute right to deal with his share of the property without any hindrance or obstacles.

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Though, the trial Court at paragraph 15 of its judgment has taken note of the acquisition of

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property by Annegowda in terms of Will dated 07.06.1921 through his brother Puttegowda the testator, the trial court has however concluded that the said property is an ancestral property. This reasoning and finding of the trial Court, as rightly contended by the counsel for defendant No.4/respondent appears to be inappropriate and does not meet the requirement of law to consider the same as ancestral joint family property. The said Annegowda, admittedly having acquired the property of his brother in terms of the aforesaid Will, was the absolute owner and on upon his demise the property has been succeeded by his three sons in equal proportion including the defendant No.1 being class-I heir under Section 8 of Hindu Succession Act, 1956.

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The above being factual and legal aspect of the matter, the plaintiff's suit for partition and claiming the property to the ancestral joint family property cannot be countenanced. Though, trial court

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and first appellate court have dismissed the suit of the plaintiff on the premise of same having been barred by limitation and on the purported premise of legal necessity, in view of the property, in the first place, not being an ancestral property, the suit is otherwise requires to be dismissed.

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The defendant No.1 having had absolute right to deal with his share of the property as class -I heir had executed and registered the deed of sale in favour of defendant No.4 conveying a portion of 'A' schedule property which described schedule 'B' property cannot be faulted with.

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The plaintiff has failed to establish the fact that suit schedule 'A' property is the ancestral joint family property justifying his claim of partition and declaration with regard to validity or otherwise of deed of sale dated 24.04.1986 executed by defendant Nos.1 to 3 in favour of defendant No.4.

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In the light of the aforesaid analysis and

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reasoning, the appeal filed by the plaintiff does not give raise to any substantial question of law. Therefore, same is liable to be dismissed. Hence, the following order.

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1). The appeal is dismissed.

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Sd/JUDGE

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Sri Neelesh v. Sri Veerabhadregowda

Case brief

What is this about?

What did the court decide?

Sri Neelesh v. Sri Veerabhadregowda

Case brief

What is this about?

What did the court decide?

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