Dismissed

R Shanthamma v. Dasegowda

Karnataka HC27 Mar 2023RSA/2307/2017

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed a Regular Second Appeal filed by a bonafide purchaser challenging the First Appellate Court's decision in a partition suit involving ancestral versus granted land sold for family necessities, holding no error requiring interference.

What did the court decide?

The appeal is dismissed. The impugned judgment and decree of the First Appellate Court stand affirmed.

R Shanthamma Vs Dasegowda — Partition | Karnataka HC (2023)

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RSA No. 2307 of 2017

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 27^TH DAY OF MARCH, 2023

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BEFORE

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THE HON'BLE MR JUSTICE H.P.SANDESH

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REGULAR SECOND APPEAL NO.2307 OF 2017 (PAR)

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BETWEEN:

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R SHANTHAMMA W/O CHIKKEGOWDA AGED ABOUT 53 YEARS R/AT RAGHAVENDRA BADAVANE MADHUGIRI TOWN-572 132 TUMIUR DISTRICT

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…APPELLANT

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(BY SRI M C BASAVARAJU, ADVOCATE)

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AND :

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Digitally signed by SHARANYA T Location: HIGH COURT OF KARNATAKA

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DASEGOWDA, S/O LATE THIMMAPPA AGED ABOUT 50 YEARS R/AT THONACHANAGONDANA HALLI DODDERI HOBLI, MADHUGIRI TALUK-572 112 TUMKUR DISTRICT

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NANJAMMA @ MANJAMMA D/O THIMMAPPA @ THIMMANNA W/O LATE SREEKANTHAPPA AGED ABOUT 48 YEARS R/AT ROLLA VILLAGE ROLLA MANDAL-515 291 MADAKASIRA TALUK ANANTAPURA DISTRICT

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…RESPONDENTS

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RSA No. 2307 of 2017

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THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 14.08.2017 PASSED IN R.A.NO.5060/2016 ON THE FILE OF THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE, MADHUGIRI AND ETC.

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THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:

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J U D G M E N T

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This matter is listed for admission. Heard the learned counsel appearing for the appellant.

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This appeal is filed challenging the judgment and decree dated 14.08.2017 passed in R.A.No.5060/2016 on the file of the IV Additional District and Sessions Judge, Madhugiri.

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The factual matrix of the case of the plaintiff before the Trial Court is that the plaintiff who is the daughter of Thimmappa has filed the suit seeking the relief of partition and separate possession and defendant No.2 contested the matter contending that she had purchased

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3 - RSA No. 2307 of 2017

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the property for valuable consideration of Rs.11,94,000/and same is also sold for the legal and family necessities and hence, she is the bonafide purchaser of the suit schedule property. The plaintiff in order to prove her case examined herself as PW1 and got marked the documents at Ex.P1 to P10. On the other hand, the defendants have

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examined one witness as DW1 and not produced any documents. The Trial Court having considered both oral and documentary evidence placed on record decreed the suit in part in coming to the conclusion that purchaser is the bonafide purchaser and hence, only granted the relief in respect of item No.2 i.e., the house property and rejected the relief in respect of item No.1 i.e., agricultural property and granted 1/9^th share in the suit schedule item No.2 property. Being aggrieved by the judgment an decree of the Trial Court, an appeal was preferred before the First Appellate Court. The First Appellate Court on reappreciation of both oral and documentary evidence placed on record allowed the appeal and granted 1/4^th share in respect of item No.2 property and ½ share in suit

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RSA No. 2307 of 2017

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item No.1 property. Hence, the present appeal is filed before this Court.

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The learned counsel for the appellant

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vehemently contend that Trial Court has rightly dismissed the suit in coming to the conclusion that the sale was for the family necessity and the appellant is a bonafide purchaser, however, First Appellate Court has committed an error in coming to the conclusion that Section 8 attracts and not Section 6 and hence, entitled for equal share in respect of item No.1 and 1/4^th share in house property and hence, the very approach of the First Appellate Court is erroneous. The counsel also vehemently contend that this Court has to frame the substantial question of law that whether First Appellate Court was right in allowing he appeal even though the appellant is a bonafide purchaser of the suit schedule item No.1 property and the said sale was made for the purpose of family necessities of respondent No.1 and to discharge huge loan incurred to construct the house and the First Appellate Court was right

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RSA No. 2307 of 2017

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in coming to the conclusion that respondent No.2 is entitled for half share in suit schedule item No.1 even though the sale deed was executed by the respondent No.1 along with his mother in favour of the appellant. Hence, this Court has to admit the appeal and to frame substantial question of law.

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Having heard the counsel for the appellant and

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also on perusal of the material available on record, it discloses that no doubt, the Trial Court comes to the conclusion that property was sold for legal necessity by the mother and brother of the plaintiff answering Issue Nos.2 and 3 as affirmative in coming to the conclusion that the appellant is the bonafide purchaser. However, First Appellate Court having taken note of the material available on record comes to the conclusion that item No.1 of the property is a granted land and the same is in favour of the father of the plaintiff and same is not an ancestral property of Thimappa. Admittedly, the sale was made by the mother and brother excluding the plaintiff and also

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RSA No. 2307 of 2017

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comes to the conclusion that the same is not a coparcenery property and the same is available for succession i.e., on the death of Thimmappa, the plaintiff gets a right. The suit is filed for the relief of partition after the death of said Thimmappa. Admittedly, the mother is also no more and no doubt, sale deed was executed by her mother and brother excluding the plaintiff and surviving legal heirs of Thimmappa is the plaintiff only but the brother and mother have sold the property in favour of the appellant herein and this appellant can plead only an equity before the FDP Court for having purchased the property from the mother and brother of the plaintiff in respect of the share of their vendor and excluding the plaintiff. Hence, the plaintiff is entitled for the share in the property left by her father and the father died intestate. Hence, I do not find any grounds in the second appeal to admit the same and to frame substantial question of law invoking Section 100 of CPC.

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RSA No. 2307 of 2017

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6. In view of the discussions made above, I pass

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the following:

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ORDER

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The appeal is dismissed.

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In view of dismissal of the main appeal,

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I.A. if any, does not survive for consideration and the same stands disposed of.

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Sd/JUDGE

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R Shanthamma v. Dasegowda

Case brief

What is this about?

What did the court decide?

R Shanthamma v. Dasegowda

Case brief

What is this about?

What did the court decide?

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