Allowed

Smt N Shubha v. Sri B G Narayana Reddy

Karnataka HC8 Nov 2023RFA/248/2022

Case brief

AI extract

What is this about?

In this First Appeal regarding a partition suit, the High Court held that suit schedule properties were joint family assets, not the father's separate property. The court found the trial erred in dismissing the suit and agreed the alienation lacked legal necessity, decreeing partition in favour of the appellant and her brothers.

What did the court decide?

The impugned judgment dismissed is set aside; the suit and counter claim for partition are decreed in favour of the appellant and her brothers.

Smt N Shubha Vs Sri B G Narayana Reddy — Partition | Karnataka HC (2023)

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NC: 2023:KHC:40167 RFA No. 248 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 8^TH DAY OF NOVEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR REGULAR FIRST APPEAL NO.248 OF 2022 (PAR/POS)

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BETWEEN:

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SMT N SHUBHA D/O G NARAYANA REDDY W/O ANIL K V AGED ABOUT 45 YEARS, R/AT NO.59, C TYPE, OFFICERS’ QUARTERS, BEML NAGAR, KGF KOLAR DISTRICT-563 115.

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…APPELLANT

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(BY SRI. PAVANA CHANDRA SHETTY H., ADVOCATE)

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AND:

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Digitally signed by VANDANA S Location: HIGH COURT OF KARNATAKA

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SRI B G NARAYANA REDDY S/O GURU MURTHY REDDY AGED ABOUT 70 YEARS, R/AT NO.59, 4^TH C BLOCK, 8^TH MAIN, KORAMANGALA BANGALORE-560 045.

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SRI B N RAKESH ROSHAN S/O B G NARAYANA REDDY AGED ABOUT 40 YEARS, R/AT NO.1355, 21^ST A MAIN, 11^TH CROSS, HSR LAYOUT, SECTOR-I BANGALORE-560 034.

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SMT VIDHYA D/O B G NARAYANA REDDY AGED ABOUT 43 YEARS, R/AT NO.59, 4^TH C BLOCK, 8^TH MAIN, KORAMANGALA BANGALORE-560 045. SRI C SREEDHARAN S/O P K PANIOKER SINCE DECEASED BY HIS

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LEGAL REPRESENTATIVES

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SMT K P KAMALAMMA W/O LATE C SREEDHARAN AGED ABOUT 72 YEARS,

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SMT K P SREEKALA W/O SETHUMADHAVAN D/O LATE C SREEDHARAN AGED ABOUT 42 YEARS.

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SMT K P SHALINI W/O SAJAN D/O LATE C SREEDHARAN AGED ABOUT 40 YEARS.

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SRI K P SREEJA W/O BABURAJ D/O LATE C SREEDHARAN AGED ABOUT 38 YEARS.

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RESPONDENT NOS. 4 TO 7 ARE R/AT CHERIYADTH HOUSE (POST) IRIMBALASSERI (VIA) NEELAYA DHALGHAT KERALA DISTRICT – 364135.

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…RESPONDENTS

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(BY SRI.VISHNUSHARMA B.V., ADVOCATE FOR SRI. B.S. SACHIN, ADVOCATE FOR R-2, R-1, 3 TO 7 ARE SERVED AND UNREPRESENTED)

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THIS RFA IS FILED UNDER ORDER XLI RULE 1 R/W SEC. 96 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 08.09.2015 PASSED IN OS.NO.6873/2015 ON THE FILE OF THE XXXVIII ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU CITY, DISMISSING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.

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

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NC: 2023:KHC:40167 RFA No. 248 of 2022

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JUDGMENT

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This appeal by the unsuccessful plaintiff in

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O.S.No.6873/2005 is directed against the impugned judgment and decree dated 08.09.2015 passed by the XXXVIII Addl.City Civil and Sessions Judge, Bangalore, whereby the said suit filed by the appellant – plaintiff against the respondents – defendants for partition and separate possession of her share in the suit schedule immovable properties and for other reliefs was dismissed by the trial court.

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Heard learned counsel for the appellant and learned counsel for the 2^nd respondent and perused the material on record. Though notices have seen served on the other respondents, they have chosen to remain unrepresented and have not contested the appeal.

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The material on record discloses that the appellant – plaintiff instituted the aforesaid suit against her father - 1^st defendant, her brother and sister who were arrayed as defendants 2 and 3 respectively. The suit schedule properties comprised of two items of immovable properties viz., Item No.1 is Sy.No.74 / 4-B measuring 1 acre 10 guntas situated at Bellandur village, Varthur

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NC: 2023:KHC:40167 RFA No. 248 of 2022

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Hobli, Bangalore East Taluk, Bangalore and Item No.2, which is a residential house property bearing No.46, 2^nd main, 2^nd cross, Maruthi Nagar, Madivala, Bangalore. The respondents 4 to 7 are the wife and children of late Sri.Sreedharan – 4^th defendant, who died during the pendency of the suit. The said 4^th defendant claimed to be a purchaser of Item No.1 of the suit schedule property vide sale deed dated 17.06.2002 said to have been executed in his favour by the 1^st defendant. In the said suit, defendants 1 to 3 entered appearance through their counsel but a common written statement was filed only by defendants 2 and 3, who accepted and admitted the plaint averments and sought for the suit to be decreed by declaring their share also in the suit schedule properties and put-forth a counter claim for partition of their share also in this regard. So also, a separate written statement was filed by 4^th defendant, who disputed and denied the claim of the plaintiff.

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Based on the above pleadings, the trial court framed the following issues:-

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“ 1. Whether the plaintiff proves that she and defendants No.1 to 3 constituted a Hindu Joint family?

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2. Whether the plaintiff proves that she is entitle for a share in the suit schedule property?

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3. Whether the plaintiff proves that suit schedule

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property was acquired out of joint family funds?

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4. Whether fourth defendant proves that he is the bonafide purchaser of the suit schedule property for valuable consideration?

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5. Whether defendant No.4 proves that the suit is not

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properly valued and court fee paid is insufficient?

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6. To what decree or order the parties are entitle to?

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The plaintiff examined herself as PW-1 and one witness as PW-2 and Exs.P1 to P29 were marked on her behalf. The respondents 3 to 7 examined their power of attorney holder as DW1 and Exs.D1 and D2 were marked. The 2^nd defendant who supported the claim of the plaintiff examined himself as DW-2.

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After hearing the parties, the trial court proceeded to answer all the issues against the plaintiff and defendants 2 and 3 and accordingly, dismissed the suit as well as the counter claim, aggrieved by which, the appellant – plaintiff is before this Court by way of the present appeal.

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As stated supra, in the present appeal, it is only the respondent No.2 – defendant No.2 who supported the claim of the plaintiff and put forth a counter claim for his share, has entered appearance and the contesting respondents 4 to 7, who are the

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NC: 2023:KHC:40167 RFA No. 248 of 2022

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legal representatives of the deceased 4^th defendant have not contested the appeal and have chosen to remain unrepresented.

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On perusal of the material on record including the impugned judgment and decree, the following points arise for consideration in the present appeal:-

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(i) Whether the appellant – plaintiff established that the suit schedule properties were joint family properties of plaintiff and defendants 1 to 3, in which all of them were entitled to 1/4^th share each?

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(ii) Whether item No.1 of the suit schedule properties was the separate and self acquired property of defendant No.1 who was entitled to sell the entire property in favour of defendant No.4?

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(iii) Whether the defendant No.4 / respondents 4 to 7 established that item No.1 of the suit schedule property was alienated in their favour by 1^st defendant due to legal necessity and benefit of the estate?

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(iv) Whether the impugned judgment and decree passed by the trial court warrants interference in the present appeal?

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Re-Point Nos. 1 and 2:-

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Both these points are interlinked and they are taken up together for consideration.

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The material on record discloses that the relationship between the plaintiff and defendants 1 to 3, in that the plaintiff and defendants 2 and 3 are children of defendant No.1 is an undisputed fact. So also, the 4^th defendant did not claim any right over Item No.2 of the suit schedule properties, while, defendants 2 and 3 supported the claim of the plaintiff and also put forth a counter claim seeking their share in Item No.2 along with the plaintiff and 1^st defendant, who did not contest the suit or file written statement. Further, the evidence of the plaintiff and defendant No.2 in relation to Item No.2 of the suit schedule properties has not been impeached or challenged by 4^th defendant in the crossexamination. Under these circumstances, I am of the considered opinion that the trial court committed an error in dismissing the suit and a counter claim in relation to Item No.2 of the suit schedule properties and as such, the said finding of the trial court deserves to be set aside and the suit and the counter claim of the plaintiff and defendants 2 and 3 in respect of Item No.2 deserve to be decreed in their favour by declaring that each of the plaintiff and

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defendants 1 to 3 are entitled to 1/4^th share each in Item No.2 of the suit schedule properties.

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9.1 The plaintiff has specifically contended that the joint

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family comprising of herself and defendants 1 to 3 owned and possessed two ancestral joint family properties viz., Sy.No.10/2-B measuring 1 acre 20 guntas situated at Ambalipura village, Varthur Hobli, Bangalore South Taluk and Sy.No.56 measuring 2 acres 20 guntas of Devarabisanahalli village, Varthur Hobli, Bangalore South Taluk, Bangalore. It is also contended that the said Sy.No.10/2-B was sold by the 1^st defendant’s father in favour of M/s. Golden Gate Properties and Finance Ltd., by a registered GPA dated 22.06.1998 which was executed by the 1^st defendant along with plaintiff and defendants 2 and 3, thereby indicating that the said property was a joint family property. It was further contended that except the income from the aforesaid lands bearing Sy.No.10/2-B and Sy.No.56, which were joint family properties, the 1^st defendant did not have any personal or independent source of income, since he was not employed anywhere else and the entire joint family comprising of plaintiff and defendants 1 to 3 were dependent upon the income from these two properties which constituted joint family nucleus, with the aid of which, the 1^st defendant purchased Item

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No.1 of the suit schedule properties vide registered sale deed dated 20.12.1985 and also item No.2 for the benefit of the joint family. It was contended that the alienation of Item No.1 of the suit schedule properties in favour of defendant No.4 was not for legal necessity or benefit of the estate and the same was not binding upon the plaintiff and defendants 2 and 3. It was therefore contended that the suit and counter claim of plaintiff and defendants 2 and 3 deserved to be decreed in their favour.

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9.2 As stated supra, while the plaintiff and 2^nd defendant examined themselves as PW-1 and DW-2 and one witness as PW2 along with documentary evidence at Exs.P1 to P29 to establish that the joint family owned and possessed Sy.No.10/2-B and Sy.No.56 which yielded sufficient income and formed joint family nucleus, the 1^st defendant did not file his written statement nor adduce any evidence to establish that he had separate or independent source of income to acquire the suit schedule properties. The respondents 4 to 7 who are the LRs of defendant No.4 also did not examine themselves but only their power of attorney holder as DW-1, who had no personal knowledge about the sale deed dated 17.06.2002 said to have been executed by the 1^st defendant in favour of 4^th defendant, much less any knowledge

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whatsoever about the plaintiff and defendants 1 to 3 or their properties, income, etc., Under these circumstances, it is clear that both the suit schedule properties were joint family properties and not the separate or self acquired properties of the 1^st defendant.

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9.3 A perusal of the impugned judgment and decree will indicate that the main ground on which the trial court came to the conclusion that Item No.1 of the suit schedule properties was the separate and self acquired property of the 1^st defendant was on the ground that the joint family property in Sy.No.10/2-B had been alienated in favour of M/s.Golden Gate Properties only on 22.06.1998, while Item No.1 had been purchased by 1^st defendant earlier on 20.12.1985, which indicates that the sale proceeds from the said sale transaction dated 22.06.1998 could not have been utilized by 1^st defendant to purchase Item No.1. In this context, the trial court misdirected itself in failing to consider and appreciate the pleadings and evidence on record which clearly established that the joint family owned and possessed Sy.No.10/2-B and Sy.No.56 which yielded sufficient income so as to constitute joint family nucleus for the purpose of acquiring Item No.1 of the suit schedule properties and merely because the said property in Sy.No.10/2-B

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NC: 2023:KHC:40167 RFA No. 248 of 2022

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which was undisputedly a joint family property had been sold later, in the absence of any evidence to establish that the 1^st defendant had independent and separate source of income, the said circumstance of subsequent alienation of Sy.No.10/2-B could not have been made the basis to come to the conclusion that Item No.1 had not been acquired with the aid of joint family nucleus and failure to appreciate this, has resulted in erroneous conclusion. Under these circumstances, I am of the considered opinion that both Items 1 and 2 of the suit schedule properties are the joint family properties of plaintiff and defendants 1 to 3 and not the separate and self acquired properties of 1^st defendant as contended by respondents 4 to 7 and the findings recorded by the trial court in this regard deserve to be set aside.

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Point Nos.1 and 2 are accordingly answered in favour of the appellant.

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Re-Point No.3:-

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The material on record discloses that the 1^st defendant executed a sale deed dated 17.06.2002 in respect of Item No.1 of the suit schedule properties in favour of 4^th defendant who has specifically contended that the said sale in his favour was for legal

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necessity and benefit of the estate by 1^st defendant who was the kartha / manager of the joint family comprising of himself, plaintiff and defendants 2 and 3. As stated supra, the 1^st defendant having not contested the suit, no material is placed to establish that the said sale in favour of 4^th defendant was for legal necessity and benefit of the estate, the burden of proving which rests heavily upon the 4^th defendant, who failed to discharge the same by adducing any legal or acceptable evidence especially when his legal representatives – respondents 4 to 7 did not chose to examine themselves or enter the witness box but examined their GPA holder, who had absolutely no personal knowledge about the sale transaction. Under these circumstances, I am of the considered opinion that the trial court fell in error in coming to the incorrect conclusion that the sale by 1^st defendant in favour of 4^th defendant was for legal necessity and benefit of estate and that he was a bonafide purchaser without there being any legal or acceptable evidence on record to arrive at the said conclusion and consequently, the said finding recorded by the trial court also deserves to be set aside by holding that the sale deed dated 17.06.2002 executed by the 1^st defendant in favour of 4^th defendant in relation to item No.1 of the suit schedule properties was not for

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legal necessity or benefit of the estate and that the said alienation was not binding upon the 1/4^th share each of plaintiff and defendants 2 and 3 over the said property.

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Accordingly, Point No.3 is also answered in favour of the appellant.

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Re-Point No.4:-

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Upon re-appreciation, reconsideration and re-evaluation of the entire material on record, I am of the considered opinion that the trial court committed a grave and serious error of law and fact in dismissing the suit and counter claim filed by plaintiff and defendants 2 and 3 by improper and erroneous appreciation of the material on record and the impugned judgment and decree being perverse and capricious and contrary to law and facts deserves to be set aside and the suit of the appellant – plaintiff and counter claim of respondents 2 and 3 – defendants 2 and 3 deserves to be decreed in their favour.

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Point No.4 is also answered accordingly in favour of the appellant.

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NC: 2023:KHC:40167 RFA No. 248 of 2022

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In the result, I pass the following:-

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ORDER

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(i) The appeal is hereby allowed .

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(ii) The impugned judgment and decree dated 08.09.2015 passed in O.S.No.6873/2005 by the trial court is hereby set aside.

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(iii) The suit of the appellant – plaintiff and counter claim of defendants 2 and 3 – respondents 2 and 3 are decreed as prayed for by them.

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Sd/JUDGE

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SV/SRL

Smt N Shubha v. Sri B G Narayana Reddy

Case brief

What is this about?

What did the court decide?

Smt N Shubha v. Sri B G Narayana Reddy

Case brief

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