This second appeal challenges findings that no prior partition of joint family properties existed and that certain properties remained ancestral. The Court held no substantial question of law arose regarding the lower courts' fact-finding on partition and property status.
The second appeal was dismissed as there is no substantial question of law.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF JANUARY, 2023
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.S.A.NO.1083/2021 (PAR/POS)
BETWEEN:
SRI VENKATESHAPPA S/O LATE SONNAPPA
DIED BY HIS LRS.,
BANGARPET TALUK-563 114.
R/AT CHIKKAHASALA VILLAGE KASABA HOBLI KOLAR TALUK-563 102.
4 . SMT. NEELAMMA W/O LATE RAMESH DAUGHTER-IN-LAW OF VENKATESHAPPA AGED ABOUT 46 YEARS
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5 . KESHAV
S/O LATE RAMESH GRANDSON OF LATE VENKATESHAPPA AGED ABOUT 21 YEARS
APPELLANT NOS.1, 4, 5, 6 AND 8 ARE RESIDING AT HALEPALYA VILLAGE TEKAL HOBLI, MALUR TALUK. … APPELLANTS
[BY SRI NARAYANASWAMY P.M., ADVOCATE]
AND:
1 . SRI MUNIYAPPA S/O LATE SONNAPPA AGED ABOUT 72 YEARS RESIDING AT HALEPALYA VILLAGE TEKAL HOBLI MALUR TALUK-563 130.
2 . SRI DODDAKEMPANNA S/O LATE SONNAPPA AGED ABOUT 78 YEARS RESIDING AT BEML NAGAR KGF-563 113.
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THIS R.S.A., IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGEMENT AND DECREE DATED 14.05.2020 PASSED IN RA.No.34/2016 ON THE FILE OF THE I ADDITIONAL DISTRICT JUDGE, KOLAR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 16.01.2016 PASSED IN OS No.85/2013 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC., MALUR.
THIS R.S.A., COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
J U D G M E N T
This matter is listed for admission today. Heard the learned counsel for the appellants.
the Trial Court is that the plaintiff and the defendants are the joint family members and the suit schedule properties are the ancestral joint family properties of plaintiff and defendants. Hence, the plaintiff and the defendants are entitled for partition
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and separate possession of 1/4th share each in the suit schedule properties.
parties to the suit. Hence, the suit itself is not maintainable. Further they have contended that, during the lifetime of Sonnappa, plaintiff and defendant Nos.1 to 3 have divided all the joint family properties in the year 1975; they got each 1/4th share in suit item No.2 to 7 equally and allotted in suit item No.8, ½ guntas each in favour of plaintiff and second defendant and they are enjoying their respective shares. So far as suit item No.9 is also the joint family property and it is in the name
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of second defendant. He is an employee in BEML., KGF and he is residing in that house. But there is no partition in respect of suit item No.9. On 25.07.1992 Sonnappa died; after his death as there were no documents for partition, the plaintiff and defendants by advise of elders entered into a written unregistered partition deed and as per the unregistered partition deed 1st schedule was allotted to 1st defendant, 2nd schedule was allotted to 2nd defendant, 3rd schedule was allotted to plaintiff and 4th schedule was allotted to 3rd defendant. It is the contention that after the partition, 1st defendant has purchased the suit item No.1 of the schedule properties on 24.03.1979 under a registered sale deed, the same is his self acquired property and in this item either plaintiff or other defendants have no manner of right, title, interest or possession over the same. So far as item No.9 is not yet divided and remaining item Nos.2 to 8 already divided and they are respectively enjoying the properties of their portions and hence prayed the Court to dismiss the suit.
statement. He also admitted the relationship between the parties
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and admitted that the suit schedule properties are joint family properties and they are in joint possession of plaintiff and defendants except suit item No.9. It is contended that Sonnappa having 5 children. The plaintiff and defendant Nos.1 to 3 and one sister by name Kempamma, who is the elder sister of plaintiff, 2nd and 3rd defendants and the said Kempamma was born in the year 1946 before commencement of Hindu Succession Act. Hence, she is not entitled for any share in the suit schedule properties. Item No.1 of the suit schedule property is also a joint family property purchased in the name of 1st defendant. The 2nd defendant was working in BEML, K.G.F. Out of his own earnings, he has purchased a vacant site at BEML Nagar, K.G.F., and it is his self acquired property. The plaintiff and defendant Nos.1 and 3, have no manner of right to claim any share in the said property. Hence, he prayed for granting of decree only in respect of item Nos.1 to 8 and dismiss the suit in respect of item No.9.
6. Having considered the pleadings, the Trial Court
framed the issues with regard to whether the suit item properties are the ancestral properties and also whether the
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plaintiff is entitled for partition and separate possession of 1/4th share and an additional issue was also framed with regard to whether the suit is maintainable in view of the defense taken in the written statement.
granting of share in respect of suit schedule properties is
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erroneous and already there was a partition. Apart from that, after the partition only item No.1 of the suit schedule property was purchased by the first defendant. The First Appellate Court formulated the point with regard to the ground, which has been urged in the appeal and considering the material on record and also on re-appreciation of both oral and documentary evidence placed on record came to the conclusion that the Trial Court has not committed any error in coming to the conclusion that there was no any earlier partition and also came to the conclusion that the Trial Court rightly comes to the conclusion that the claim made by defendant No.1 that item No.1 of the property is the self-acquired property, is not accepted and came to the conclusion that the finding of the Trial Court is not erroneous. Hence, the second appeal is filed before this Court.
appearing for the appellants is that both the Courts have committed an error in not considering the material available on record and fails to take note of the fact that there was a partition to that effect. The document – Ex.D24 came into existence, the same has not been denied. In spite of it, both the Courts have
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committed an error in not considering Ex.D24. The learned counsel also would vehemently contend that even though the first defendant has contended that item No.1 of the suit schedule property is purchased after the partition and erroneously came to the conclusion that the same is also the ancestral property and the very approach of the Trial Court as well as the First Appellate Court is erroneous. The Trial Court and the First Appellate Court committed an error in holding that Smt. Kempamma, who is the daughter of the deceased Sonnappa, is not a necessary and proper party. Both the Courts have committed an error with regard to item No.9 of the suit schedule property. Hence, it requires interference of this Court and this Court has to frame the substantial question of law.
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itself, but no documentary evidence discloses with regard to the change of revenue entries on account of the said partition. Admittedly, the said Sonnappa died in the year 1992 and even if there was a partition in the year 1975 itself, there must be a change of documents with regard to the partition and no documentary evidence with regard to all the parties have acted upon in terms of the alleged partition and also taking into note of the discussion made in paragraph No.13, the Trial Court also taken note of the admission given by D.W.1 that they have not filed any application for change of Khatha in pursuance of the unregistered partition deed and also taken note of the second defendant was residing at KGF., from 1974 and also he does not know anything about from whom item No.9 was purchased but only he claims that the property was got in favour of defendant No.2 by his father and having taken note of these are the admissions elicited from the mouth of D.W.1, came to the conclusion that there was no any partition among the family members and the very contention of the first defendant that there was a partition has not been accepted. With regard to item No.9 also declined to grant any relief as the same was purchased by defendant No.9 as contended. The First Appellate
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Court also on re-appreciation of the material available on record and also the grounds urged in the appeal came to the conclusion that there was no any error on the part of the Trial Court in coming to the conclusion that there was no partition and in detail discussed the evidence of P.W.1 and particularly D.W.1, who contend that item No.1 of the suit schedule property is an exclusive self-acquired property and also considered the evidence of DWs.1 to 5. In paragraph No.21 came to the conclusion that whether the plaintiff has proved the existence of joint family and held that it is well settled that mere existence of relationship does not indicate the existence of joint family properties. But there is a presumption under Hindu Law and also taken note of the fact that one Sonnappa was the propositus of the family and came to the conclusion that the plaintiff made out a case that there was no any partition but when the defendants took the specific defense that there was a partition, the same has to be proved. But it is his case that the partition was effected in the family and thereafter only he had purchased item No.1 of the suit schedule property in the year 1979 i.e., after the alleged partition of the year 1975 and taken note of no revenue records and other documents which have been produced before
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the Court indicating that there was a partition and also taken note of the fact that defendant No.2, who has been examined as D.W.6, claims that item No.9 of the suit schedule property was the property belongs to defendant No.2. In order to substantiate that the same is also purchased out of the money given by the father and the same has been contended, no material is placed. The First Appellate Court also while answering point Nos.1 to 4 considered the material on record and on re-appreciation of both oral and documentary evidence placed on record confirmed the judgment of the Trial Court.
the Trial Court as well as the First Appellate Court. In order to prove the factum that there was already a partition in the year 1975 itself, no material documents are placed before the Court, any change of revenue documents consequent upon the partition and there must be parties have acted upon in terms of the partition. No substantial material is placed before the Court and though the counsel has raised the substantial question of law that the Trial Court has committed an error in granting the share
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in terms of item Nos.1 to 8, and already there was a partition and the said partition was reduced into writing in the year 1997 as per Ex.D24. Both the Courts taken note of no such material to substantiate the contention that there was a partition in the year 1975 and also it is the contention of the learned counsel appearing for the appellants that the same was reduced into writing on 03.10.1997 and in between 1975 and 1997 also no documentary proof with regard to show that there was a partition. When both the Courts have given the finding with regard to the fact that there was no partition and only the said finding is perverse, then, the Court can exercise the power invoking under Section 100 of CPC., that perverse finding was given but considered both oral and documentary evidence placed on record and also considered the admission given by D.W.1 that they have not given any application for change of Khatha and also no material with regard to the parties have acted upon in terms of the said alleged partition of the year 1975 and the fact that the father died in the year 1992. In terms of the partition, other parties have also not enjoying the properties and no material is placed before the Court. When such being the case, I do not find any force in the contention of the learned counsel
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appearing for the appellants that there is a substantial question of law to admit and consider the second appeal.
following:
ORDER
The appeal is dismissed.
In view of dismissal of the appeal, I.A.No.1/2020 for stay
does not survive for consideration, the same stands disposed of.
Sd/JUDGE
cp*
3 issues framed by the court
Whether there is a substantial question of law regarding the lower courts' finding of fact that no prior partition of joint family properties occurred before the plaintiff's purchase of self-acquired
Whether the lower courts erred in declining relief on the basis of the alleged 1975 partition and the subsequent status of item No. 9.
Whether the finding of fact regarding the existence of a joint family and the absence of a prior partition was perverse.
1 provisions across 1 enactments
Smt. Lakshmamma (LRS of Sri Venkateshappa)
Smt. Chowdamma
Smt. Sunandamma
Smt. Neelamma
Keshav
Smt. Narayanamma
H.P. Sandesh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
