Allowed

Sri Vasanth Kumar v. Smt Nanjamma

Karnataka HC25 Oct 2023RFA/684/2018

Case brief

AI extract

What is this about?

High Court allowed the appeal against a trial court judgment that dismissed a suit for partition. The High Court held the property was ancestral/joint family property, the trial court erred in deeming it self-acquired, and the sale in favor of respondent No.4 was not binding due to lack of proof of legal necessity.

What did the court decide?

Impugned judgment and decree set aside; suit for partition and separate possession decreed as prayed.

Sri Vasanth Kumar Vs Smt Nanjamma — Partition | Karnataka HC (2023)

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1 - NC: 2023:KHC:37892 RFA No. 684 of 2018

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 25^TH DAY OF OCTOBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE S.R.KRISHNA KUMAR REGULAR FIRST APPEAL NO.684 OF 2018 (PAR)

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BETWEEN:

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SRI VASANTH KUMAR S/O LATE M MUNIRAJU AGED ABOUT 26 YEARS

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KUMARI RADHIKA D/O LATE M MUNIRAJU AGED ABOUT 22 YEARS

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BOTH ARE RESIDING AT NO.134/134, KOPPA GATE, JIGANI HOBLI, ANEKAL TALUK, BANGALORE - 560 105.

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…APPELLANTS

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(BY SRI. N V MANJUNATH, ADVOCATE)

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AND:

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Digitally signed by VANDANA S Location: HIGH COURT OF KARNATAKA

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SMT NANJAMMA W/O LATE M MUNIRAJU AGED ABOUT 50 YEARS

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SRI MANJUNATH S/O LATE M MUNIRAJU AGED ABOUT 30 YEARS

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SRI ANIL KUMAR S/O LATE M MUNIRAJU AGED ABOUT 28 YEARS

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RESPONDENT NOS.1 TO 3 ARE RESIDING AT NANJAPURA VILLAGE JIGANI HOBLI, ANEKAL TALUK BANGALORE - 560 105.

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NC: 2023:KHC:37892 RFA No. 684 of 2018

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SANJEEV KUMAR GOYAL S/O LATE INDERSIAN GOYAL AGED ABOUT 46 YEARS RESIDING AT: G 8/2, VIRASANDRA 2^ND MAIN, 2^ND CROSS ELECTRONIC CITY BANGALORE - 560 100.

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…RESPONDENTS

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(R-1, R-2, R-3 & R-4 ARE SERVED AND UNREPRESENTED)

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THIS RFA IS FILED UNDER SEC.96 OF CPC R/W ORDER 41 RULE 3 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 06.10.2017 IN OS NO.101/2016 ON THE FILE OF THE SR.CIVIL JUDGE, ANEKAL, BANGALORE RURAL DISTRICT, DISMISSING THE SUIT FOR PARTITION AND SEPARATE POSSESSION.

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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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This appeal by the unsuccessful plaintiffs in O.S.No.101/2016 is directed against the impugned judgment and award dated 06.10.2017 passed by the Senior Civil Judge & JMFC at Anekal, Bengaluru Rural District, whereby the said suit filed by the appellants – plaintiffs for declaration, partition and other reliefs against respondents – defendants in relation to the suit schedule immovable property was dismissed by the Trial Court.

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3 - NC: 2023:KHC:37892 RFA No. 684 of 2018

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Heard learned counsel for the appellants and perused the material on record. Respondents having been served with notice of this appeal have chosen to remain unrepresented and have not contested the present appeal.

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A perusal of the material on record will indicate that the appellants and respondent Nos.2 and 3 are the children of respondent No.1 – Smt. Najamma and late M.Muniraju, who expired on 17.04.2015 leaving behind appellants and respondent Nos.1 to 3 to succeed to his estate including the suit schedule property as his heirs and legal representatives. Appellants – plaintiffs contended that the suit schedule property was the joint family property of the appellants and respondent Nos.1 to 3 along with their father, the aforesaid late M. Muniraju, who acquired the same under a registered Partition Deed dated 04.05.2002 entered into between Muniraju, his father and other family members. It was contended that the suit schedule property being a joint family property of the appellants, respondent Nos.1 to 3 and M. Muniraju, the

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NC: 2023:KHC:37892 RFA No. 684 of 2018

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appellants had an undivided share in the suit schedule property and respondent Nos.1 to 3 as well as the aforesaid M. Muniraju did not have any right to deal with the suit schedule property, much less execute any documents in favour of third parties.

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It was further contended that as on 06.02.2013, appellant No.1 was a minor aged about 17 years while appellant No.2 was also a minor aged about 15 years and despite there being no legal necessity to sell the suit schedule property including share of the appellants – minors, respondent Nos.1 to 3 along with late M. Muniraju executed a registered Sale Deed dated 06.02.2013 in favour of respondent No.4 – defendant No.4. It is further contended that before the expiry of prescribed period of three years after attaining the age of majority, the appellants instituted the aforesaid suit for declaration that the Sale Deed dated 06.02.2013 was not binding upon the appellants or their undivided share in the suit schedule property and for consequential decree for partition and

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5 - NC: 2023:KHC:37892 RFA No. 684 of 2018

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separate possession of their share in the suit schedule property.

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Respondent Nos.1 to 3 having entered

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appearance through their counsel did not file their written statement nor contested the suit. Defendant No.4 – respondent No.4 was placed ex-parte and also did not contest the suit.

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Plaintiff No.1 – Appellant No.1 examined himself as PW1 and documentary evidence at Ex.P1 to Ex.P18 were marked on behalf of the plaintiffs – appellants. As stated supra, respondents did not contest the suit and after hearing the plaintiffs – appellants, the Trial Court proceeded to pass the impugned judgment and decree dismissing the said suit filed by the plaintiffs – appellants, who are before this Court by way of the present appeal.

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The following points arise for consideration in the present appeal:

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NC: 2023:KHC:37892 RFA No. 684 of 2018

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(1) Whether the Trial Court was justified in

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coming to the conclusion that the appellants – plaintiffs did not have any right over the suit schedule property?

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(2) Whether the Trial Court was justified in dismissing the suit filed by the appellants?

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Point Nos.1 and 2:

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A perusal of the material on record including the impugned judgment and decree will indicate that the sole ground on which the Trial Court has dismissed the suit is by coming to the conclusion that the suit schedule property was acquired by late M. Muniraju vide registered Partition Deed dated 04.05.2002, as a result of which, the suit schedule property became his separate and self acquired property. In this context, the Trial Court failed to consider and appreciate the undisputed recitals in the said Partition Deed marked as Ex.P2 dated 04.05.2002 which clearly establishes that the suit schedule property was the property described as ‘B’ schedule property to the said

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Partition Deed entered into between M. Muniraju, his father and other family members whereby all the parties had agreed to divide joint family properties amongst themselves.

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It is well settled that a share allotted to the

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Hindu male at a partition of the joint family property partakes the nature of ancestral joint family property in his hands qua and insofar as it relates to his legal heirs including appellant No.2, the daughter of the deceased M.Muniraju. It follows there from that the suit schedule property which was originally a joint family property as is evident from the registered Partition Deed dated 04.05.2002 became joint family property in the hands of M. Muniraju, who acquired the same under the aforesaid registered Partition Deed dated 04.05.2002 insofar as the plaintiffs were concerned. Consequently, the appellant No.1 being the son of M.Muniraju and appellant No.2, being the daughter of M.Muniraju coupled with the fact that the said M. Muniraju expired on 17.04.2015 after

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NC: 2023:KHC:37892 RFA No. 684 of 2018

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coming into force of The Hindu Succession (Amendment) Act, 2005, both the appellants would be entitled to an undivided share in the suit schedule property.

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It is therefore clear that the Trial Court

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completely misdirected itself in coming to the conclusion that the suit schedule property was the separate and self acquired property of late M. Muniraju on the erroneous premise that the property had been allotted to him in the aforesaid Partition Deed dated 04.05.2002 without considering or appreciating the recitals contained in the said Partition Deed, which clearly establishes that the suit schedule property was one of the joint family properties allotted in favour of the said M. Muniraju towards his share in all the joint family properties including the suit schedule properties, as a consequence of which, the suit schedule properties would partake the nature of joint family properties in the hands of M. Muniraju in which the appellants would also be entitled to a share by birth. Under these circumstances, I am of the considered opinion

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that the Trial Court has committed an error in coming to the conclusion that the suit schedule property is the separate self acquired property of late M.Muniraju, which is contrary to law and also the material on record warranting interference by this Court in the present appeal.

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A perusal of the material on record will indicate that as on the date of execution of the Sale Deed dated 06.02.2013 by M. Muniraju and respondent Nos.1 to 3 - defendant Nos.1 to 3 in favour of respondent No.4 - defendant No.4, appellants were minors; it is well settled that the burden of proof that the alienation was legal necessity and benefit of estate would rest heavily upon respondent No.4 - defendant No.4, who was ex-parte not only before the Trial Court but also before this Court in the present appeal and neither contested the suit nor the present appeal and also did not file his written statement nor cross-examined PW1 or adduce evidence on his behalf. It is therefore clear that defendant No.4 has neither

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pleaded nor proved that the Sale Deed is in his favour in respect of the suit schedule property including the undivided share of the appellants was for legal necessity and benefit of estate. In the absence of pleadings and proof, I am of the considered opinion that the aforesaid Sale Deed dated 06.02.2013 would not be binding upon the appellants or their undivided share in the suit schedule property and failure to appreciate this by the Trial Court has resulted in erroneous conclusion.

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The material on record also indicates that even according to the Sale Deed dated 06.02.2013, the appellant No.1 was aged about 17 years and appellant No.2 was aged about 15 years and the present suit having been filed on 28.01.2016 is within the period of limitation of three years after they attained the age of majority as contemplated under Sections 6, 7 and 8 of the Limitation Act. Viewed from this angle also, I am of the view that the suit filed by the plaintiffs is within a period of three years after attaining the age of majority, which is well

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NC: 2023:KHC:37892 RFA No. 684 of 2018

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within prescribed period of limitation and failure to appreciate would also vitiate the impugned judgment and decree passed by the Trial Court.

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Upon reconsideration, re-appreciation and reevaluation of the entire material on record, I am of the considered opinion that the Trial Court has completely fell in error in failure to consider and appreciate the unimpeached, uncontroverted and unchallenged pleadings and evidence of the appellants coupled with there being absolutely no rebuttal pleadings or evidence on behalf of respondents - defendants, all of which is sufficient to come to the sole conclusion that the suit of the appellants - plaintiffs deserves to be decreed in their favour as against respondents - defendants and accordingly, points 1 and 2 are to be answered in favour of the appellants - plaintiffs.

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NC: 2023:KHC:37892 RFA No. 684 of 2018

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In the result, I pass the following:

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ORDER

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(i) Appeal is hereby allowed .

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(ii) The impugned judgment and decree dated 06.10.2017 passed in O.S.No.101/2016 by the Senior Civil Judge & JMFC at Anekal, Bengaluru Rural District, is hereby set aside.

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(iii) Suit of the appellants - plaintiffs is decreed as

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prayed for by them.

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Sd/JUDGE

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SV List No.: 1 Sl No.: 45

Sri Vasanth Kumar v. Smt Nanjamma

Case brief

What is this about?

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Sri Vasanth Kumar v. Smt Nanjamma

Case brief

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