Dismissed

Sri Neelesh v. Sri Veerabhadregowda

Karnataka HC14 Jan 2022RSA/901/2013

Case brief

AI extract

What is this about?

The High Court, acting as the Final Appellate Court, refused to exercise its powers under Section 100 of the CPC to grant special leave to appeal from the second appellate order, which had dismissed the plaintiff's partition suit. This was done because the matter involved no substantial question of law.

What did the court decide?

No relief; the appellant's request for special leave to appeal was dismissed.

Sri Neelesh Vs Sri Veerabhadregowda — Partition | 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.901/2013

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BETWEEN:

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SRI NEELESH S/O VEERABHADREGODA, 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 SHRIKARA, ADVOCATE)

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AND:

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SRI VEERABHADREGOWDA @ EREGODA S/O ANNEGOWDA, AGED ABOUT 71 YEARS, RESIDING AT YADIYUR VILLAGE, KASABA HOBLI, ALUR TALUK-573104

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SRI PUTTEGOWDA SINCE DEAD, REPRESENTED BY LRS

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2A. SRI. SHANTHAKUMAR

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S/O LATE PUTTEGOWDA,

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AGED 50 YEARS, R/O. SAKALESHPURA SUBHASH FILES BASAVANA CIRCLE, SAKALESHPURA-573134

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2B. SRI. KANTHARAJA C/O. SIDDARAJU, AGED ABOUT 37 YEARS, FIBRE FACTORY NITTUR, UDUPI DISTRICT-574117

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2C. SRI. TEJESHA S/O LATE PUTTEGOWDA AGED ABOUT 32 YEARS, R/O. YADUR, HUNASAVALLI POST, ALUR TALUK-573104

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2D. SOWBHAGYA W/O PUTTASWAMY, AGED ABOUT 42 YEARS, R/O. JAMUNAHALLI BELAGUDU HOBLI, SAKALESHPURA TALUK, HASSAN DISTRICT-573134

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2E. VANAJAKSHI W/O SOMAKSHI, AGED ABOUT 36 YEARS, R/O. BANAVASI, BALUPET POST, SAKELESHPURA TALUK, HASSAN DISTRICT-573134.

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NANJEGOWDA SINCE DEAD REPRESENTED BY LRS

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3A. SMT.NEELA, WIFE OF LATE MALLESH, AGED 49 YEARS, R/O KANNATURU POST, ALUR TALUK, HASSAN DISTRICT-573104

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3B. MANJUNATH

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S/O LATE NANJEGOWDA, AGED ABOUT 46 YEARS, R./O. YADUR, HUNASAVALLI POST, ALUR TALUK-573104

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3C.	SMT. VEDA
	WIFE OF PALAKSHA, AGED ABOUT 37 YEARS, R/O. AGNI, HANUBALU POST, SAKALESHPURA TALUK, HASSAN DISTRICT-573134
4.	SMT. GANGAMMA WIFE OF MARISIDDAPPA, AGED ABOUT 59 YEARS, R/O. 5431, SHANTHALA ENTERPRISES, RAVINDRANAGARA, HASSAN-573201
5.	SMT. BRAMARA VEERANNA W/O VEERANNA, AGED ABOUT 53 YEARS, R/O NO.518, SIDDARTHA EXTENSION, MYSORE-571124
6.	SMT. VIJAYALAKSHMI W/O KEMPEGOWDA, AGED ABOUT 50 YEARS, R/O PWD COLONY, HASSAN-573201
7.	SRI G.M. SRINIVASA W/O MALIGEGOWDA, AGED ABOUT 52 YEARS, W/O MALIGEGOWDA, R/O PWD COLONY, HASSAN-573201
8.	SMT. B.K. CHANDRIKA W/O MUDALARIGIGOWDA, AGED ABOUT 53 YEARS, BEHIND STADIUM, OPPOSITE PARK, VIDYANAGAR, HASSAN-573201

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A.MOHAMMED JAFFER SADIQ S/O MOHAMMED BUDEN SAB, AGED ABOUT 46 YEARS, K.R PURAM, HASSAN-573201

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MAQBOOL AHAMED S/O GULAM MUSTHAFA, AGED ABOUT 52 YEARS, SHRINGERI VILLAGE, SHIMOGA-577139

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MOHAMMED NAZAR S/O GULAM RASHID, AGED ABOUT 49 YEARS, BR LINE ROAD, HASSAN-573201.

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...RESPONDENTS

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(R2(B), C D & R3(B), C AND R5 & R7 SERVED; V/O DTD: 20.02.2019 NOTICE TO R10 IS H/S; R1 & R11 IS DISMISSED AS ABATED, V/O DTD 20.02.2019)

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THIS RSA IS FILED U/S. 100 OF CPC AGAINST THE JUDGEMENT & DECREE DTD 30.1.2013 PASSED IN R.A.NO.203/2006 ON THE FILE OF ADDITIONAL DISTRICT 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.460/1999 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.203/2006 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.460/1999.

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The above suit in O.S.No.460/1999 is filed by the appellant/plaintiff seeking relief of partition and separate possession of his purported 1/4th share in schedule property and for cancellation of deeds of sale dated 22.09.1977 and 27.09.1977 executed in favour of defendant Nos.4 to 8 and deed of sale dated 11.10.1989 executed in favour of defendant Nos.9 to

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11 in 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.332/1994. After constitution of new court at Alur, the said case was transferred and renumbered as O.S.No.460/1999.

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The case of the appellant/plaintiff is;

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That the defendant No.1 is the father of the plaintiff. Defendant Nos. 2 and 3 are the uncles of plaintiff (being brothers of defendant No.1). That the plaintiff and defendant Nos.1 to 3 inherited the suit schedule property from the father of defendant Nos. 1 to 3. That the suit schedule property bearing Sy.No.95 measuring 10 acres originally belonged to one Puttegowda, the paternal uncle of defendant Nos.1 to 3. The said Puttegowda bequeathed the said property in favour of his brother Annegowda in terms of a Will dated 07.06.1921. The said Annegowda died living behind him his three sons namely,

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Veerabhadregowda- defendant No.1., Puttegowdadefendant No.2 and Nanjegowda.

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5. That one Mogannagowda, minor son

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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 property 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 Sri.Puttegowda in favour of Annegowda, it is clear that said suit schedule properties are ancestral properties of the plaintiff and thus, the plaintiff is entitled for equal share in the suit schedule property.

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6. The defendant Nos.4 to 8 had purchased

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suit schedule properties from defendant Nos.1 to 3 through separate deeds of sale dated 22.9.1977 and 27.09.1977. The said deeds of sale were without any family necessity. As such, the same was untrue and

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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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The defendant Nos. 4 to 8 have executed a registered deed of sale dated 11.10.1989 in favour of defendant No.9 in respect of 2 acres 30 guntas of land. Defendant Nos. 4 to 8 have also executed deed of sale on 11.10.1989 in favour of defendant No.10 conveying 4 acres 20 guntas and another deed of sale dated 11.10.1989 in favour of defendant No.11 to

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the extent of 2 acres 20 guntas. That all the defendant Nos. 9 to 11 purchased the property and the aforesaid deeds of sale with complete knowledge about the right and interest of the plaintiff in the schedule property. The plaintiff learnt about the said illegal acts on 30.8.1994 and caused issuance of notice to defendants. Since, there was no compliance with demand made by the plaintiff, he is constrained to file suit.

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8. The defendant Nos.1 to 4 , 5 and 7 placed

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ex-parte. Defendant Nos.6 and 8, 9 to 11 appeared through their counsel. Defendant Nos.9 to 11 filed written statement denying the plaint averments and specifically contending that in view of Will dated 07.06.1921 executed by Puttegowda in favour of his brother Annegowda, the claim of the plaintiff that the suit schedule property is an ancestral property was incorrect. That the plaintiff had no right over the suit schedule property. That the alienation made under the deeds of sale dated 22.09.1977 and 27.9.1977 and 11.10.1989 are valid and subsisting. That the suit of the plaintiff are hopelessly barred by limitation. That the land have been converted from agricultural to non-agricultural purposes. As such, sought for dismissal of the suit.

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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 plaintiff proves that the suit property is the ancestral property of himself and defendant No.1 to 3, as such he has got his 1/4th share in the suit property as alleged in the plaint?

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(2) Whether the plaintiff further proves that the sale deed dated 22.09.1977, 27.09.1977 executed in favour of the defendant No.4 to 8 and the sale deed dated 11.10.1989 executed in favour of the defendant No.9 to 11 in respect of suit property are illegal and not binding on him as alleged?

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(3) Whether the 9th defendant proves that the suit is not valued properly for the purpose of court fee and jurisdiction?

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(4) Whether this Court has pecuniary jurisdiction to try this suit?

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

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(6) Whether the suit is barred by law of limitation?

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(7) Whether the suit for partial partition is not maintainable?

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(8) Whether the plaintiff proves mesne profits as alleged?

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(9) Whether the plaintiff is entitled for 1/4th share in the suit property?

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(10) Whether the plaintiff is entitled for the mesne profits as claimed? (11) What order or decree?

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Additional Issue:

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Whether the defendants No.9 to 11 prove that the sale deeds dated 22.02.1977 and 27.09.1977 executed by the defendants No.1 to 3 in favour of defendants No. 4 to 8 are for the family benefit and legal necessity?"

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The plaintiff examined himself as P.W.1

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and exhibited seven documents marked as Ex.P.1 to Ex.P.7. Three witnesses have been examined on behalf of defendants as D.W.1 and D.W.3 and exhibited seven documents marked as Ex.D.1 to Ex.D.7.

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On appreciation of evidence, the trial Court dismissed the suit. Being aggrieved by the same,

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appellant/plaintiff filed R.A.No.203/2006. 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 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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If so, what is the order?

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On re-appreciation of the evidence, the first

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appellate court dismissed the appeal and confirmed the judgment and decree dated 29.10.2005 passed by the trial court in O.S.No.460/1999. 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;

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(a) that 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 the trial court and first appellate court erred in holding that the plaintiff failed to prove the sale deeds dated 22.09.1977 and 27.09.1977 were not executed for the benefit of the family. That the trial court and first appellate court erroneously casted the burden of prove on plaintiff regarding the family necessity. That 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 and have there by erroneously casted burden on the plaintiff. Thus, he submits that appeal involves substantial question of law requiring consideration.

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Though, the notice has been served on the respondents they remain absent.

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Heard the learned counsel appearing for

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the appellant 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 deeds of sale dated 22.9.1977 and 27.9.1977 executed by defendant Nos.1 to 3 in favour of defendant Nos. 4 to 8 and deeds of sale dated 11.10.1989 executed by defendant Nos. 4 to 8 in favour 9 to 11 were illegal, null and void.

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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 Puttegowda had bequeathed all his properties in terms

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of Will dated 07.06.1921 in favour of his brother Annegowda. The said Annegowda was the father of defendant No.1 to 3 herein. 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 Nos.1 to 3 being the sons and class -I heirs of Annegowda have got equal shares in terms of Section 8 of Hindu Succession Act, 1956, having absolute right to deal with their shares of the property without any hindrance or obstacles.

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Though, the trial court at paragraph 16 of its judgment has taken note of the acquisition of 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

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reasoning and finding of the trial Court, appears to be inappropriate and does not meet the requirement of law to consider 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 Nos.1 to 3 being class-I heirs 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 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 Nos.1 to 3 having had absolute right to deal with their shares of the property as class -I heirs had executed and registered the deeds of sale in favour of defendant Nos.4 to 8 , who in turn executed deeds of sale dated 11.10.1989 in favour of defendant Nos.9 to 11 conveying suit schedule property as described thereunder cannot be found fault with.

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The plaintiff has failed to establish the fact that suit schedule property is the ancestral joint family property justifying his claim of partition and declaration with regard to validity or otherwise of deeds of sale dated 22.09.1977 and 27.09.1977 executed by defendant Nos.1 to 3 in favour of defendant Nos.4 to 8 and thereafter by defendant Nos. 4 to 8 in favour defendant Nos. 9 to 11 in terms of deed of sale dated 11.10.1989.

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In the light of the aforesaid analysis and reasoning, the appeal filed by the plaintiff does not

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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?

What the court decided

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Issues for consideration

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