Dismissed

Sri T Srinivas v. Sri T Venkataram

Karnataka HC16 Aug 2023RSA/255/2023

Case brief

AI extract

What is this about?

Appellant filed a regular second appeal challenging the dismissal of a partition suit regarding ancestral property. High Court rejected the argument that properties were purchased from ancestral funds, holding appellant failed to produce proof of ancestral status or relinquishment deeds. Appeal dismissed under Section 100 CPC as no substantial question of law arose.

What did the court decide?

The regular second appeal is dismissed upholding the judgment and decree of the First Appellate Court and the Trial Court.

Sri T Srinivas Vs Sri T Venkataram — Partition | Karnataka HC (2023)

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1 - NC: 2023:KHC:29072 RSA No. 255 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 16^TH DAY OF AUGUST, 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. 255 OF 2023 (PAR)

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BETWEEN:

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SRI T. SRINIVAS S/O THIMMAIAH T.R., AGED ABOUT 56 YEARS R/O NO.753, IDSMT LAYOUT KALIDASANAGAR TUMAKURU - 572106.

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…APPELLANT

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(BY SRI GURURAJ R., ADVOCATE)

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AND:

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Digitally signed by SHARANYA T Location: HIGH COURT OF KARNATAKA

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SRI T. VENKATARAM S/O LATE T.R. THIMMAIAH AGED ABOUT 63 YEARS R/AT SATHYAMANGALA

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NEAR G.H. PALYA GARDEN ROAD KASABA HOBLI TUMAKURU TALUK TUMAKURU - 572104.

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SRI T. GOVINDARAJU S/O LATE T.R. THIMMAIAH AGED ABOUT 61 YEARS R/AT SATHYAMANGALA NEAR G.H. PALYA GARDEN ROAD KASABA HOBLI TUMAKURU TALUK TUMAKURU - 572104

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2 - NC: 2023:KHC:29072 RSA No. 255 of 2023

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SRI T. LAKSHMEESHA S/O LATE T R THIMMAIAH AGED ABOUT 60 YEARS R/AT SATHYAMANGALA NEAR G.H. PALYA GARDEN ROAD KASABA HOBLI, TUMAKURU TALUK TUMAKURU - 572104

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SRI T.D. KRISHNA S/O LATE T.R. THIMMAIAH AGED ABOUT 53 YEARS R/AT SATHYAMANGALA NEAR G.H. PALYA GARDEN ROAD KASABA HOBLI, TUMAKURU TALUK TUMAKURU - 572104

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…RESPONDENTS

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(BY SRI G.S.BALAGANGADHAR, ADVOCATE FOR R1 TO R4)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 09.11.2022 PASSED IN R.A.NO.198/2019 ON THE FILE OF THE PRINCIPAL DISTRICT AND SESSIONS JUDGE, TUMAKURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 19.01.2019 PASSED IN O.S.NO.7/2012 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, TUMAKURU.

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

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NC: 2023:KHC:29072 RSA No. 255 of 2023

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JUDGMENT

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Heard the appellant’s counsel and also the counsel appearing for the respondents.

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The factual matrix of the case of the plaintiff before the Trial Court are, while seeking the relief of partition contend that defendants No.1 and 2 are the father and mother and defendants No.3 to 6 are his brothers and plaintiff and defendants have constituted Hindu undivided joint family and the suit schedule properties are the ancestral and joint family properties of plaintiff and defendants. The landed properties are allotted to the share of defendant No.1 under the partition and defendant No.1 being the Kartha of the joint family, the revenue documents were standing in his name. Defendant No.1 has converted item No.3 of suit schedule property bearing survey number 68/1B of Beeranakallu Village, Swandenahalli Gramapanchayath measuring 1 acre from agriculture to nonagricultural purpose. Plaintiff approached defendant No.1 to allot his share in the suit schedule property, but defendant No.1 has executed registered Will dated 10.12.2010 in favour of family members by making the division of properties as

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NC: 2023:KHC:29072 RSA No. 255 of 2023

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A,B,C,D schedule and later defendant No.1 cancelled the registered Will and defendant No.2 also executed registered gift deed dated 12.04.2002 in favour of defendant No.1 in respect of the land bearing Sy.No.15/2 measuring 4 acres 28 guntas and defendant appeared and filed written statement contending that properties are self acquired properties. The Trial Court having considered the pleadings framed the issues, whether the suit schedule properties are ancestral properties and whether defendant No.1 proves the suit schedule 8 different properties are the self acquired properties of 1^st defendant. The Trial Court having considered both oral and documentary evidence answered issue No.1 as negative and issue No.2 as affirmative and came to the conclusion that suit schedule properties are the properties of 1^st defendant and dismissed the suit.

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Being aggrieved by the judgment and decree of the Trial Court, R.A.No.198/2019 was filed and First Appellate Court also considering the grounds urged in the appeal memo formulated the points, whether the Trial Court committed an error in holding that all the suit schedule properties are not the ancestral properties and they are self acquired properties and whether it requires interference?

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NC: 2023:KHC:29072 RSA No. 255 of 2023

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An application is also filed before the First Appellate Court invoking Order 41 Rule 27 of CPC and the same is also dismissed by the First Appellate Court and hence, the second appeal is filed before this Court.

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The main contention of the counsel appearing for the appellant that, the Trial Court and First Appellate Court have committed an error in coming to the conclusion that the suit schedule properties are the self acquired properties of defendant No.1 and committed an error in not considering the material on record and both the Courts have failed to consider that suit schedule properties are purchased out of the funds received by father of the plaintiff by relinquishment of ancestral properties and both the Courts failed to consider the relinquishment made by father of the plaintiff in favour of his uncle Chikkathimmaiah in respect of Sy.No.26/1 situated at Honnenahalli Village and also First Appellate Court committed an error in dismissing the application filed under Order 41 Rule 27 of CPC and hence, this Court has to frame the substantial question of law.

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6 - NC: 2023:KHC:29072 RSA No. 255 of 2023

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Per contra, the counsel appearing for the respondents would vehemently contend that the very plaintiff himself pleaded in the plaint with regard to execution of the Will and cancellation of Will and settlement deed and nothing is placed before the Trial Court to show that properties are ancestral properties and rightly given the finding that properties belongs to defendant No.1, since even mother also executed the gift deed in favour of defendant No.1 and the same is appreciated by the Trial Court as well as the First Appellate Court and not ignored any material on record and hence, question of invoking Section 100 of CPC does not arise.

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Having heard the learned counsel appearing for the respective parties and also on perusal of the material on record it discloses that it is the case of the appellant before the Trial Court that the suit schedule properties are joint and ancestral properties but in order to prove the same, the appellant has not placed any material before the Court. The Trial Court also taking into note of the material on record in paragraph 12 discussed that no document is placed before the Court to show that defendant No.1 has acquired the ancestral property and there was sufficient income from the ancestral property through

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NC: 2023:KHC:29072 RSA No. 255 of 2023

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which defendant No.1 has acquired the other suit schedule properties and there is no substantial evidence before the Court so as to draw the presumption that joint family comprising of plaintiff and defendants had joint family property. The First Appellate Court also on re-appreciation of both oral and documentary evidence placed on record, in paragraph 37, taken note of the admission given by the plaintiff himself regarding disposal of the properties by his father during his lifetime and comes to the conclusion that the properties are disposed of by executing testamentary document in favour of other family members. In the absence of any material to show that the properties are ancestral properties and family is having ancestral properties, I do not find any error committed by both the Courts in dismissing the suit and also the appeal. It is the contention of the plaintiff before the Trial Court that his father had received the funds by relinquishing his share in respect of ancestral property executing relinquishment deed but no such relinquishment deed also produced before the Trial Court. Unless any substantive piece of evidence placed before the Court to show that the properties are ancestral properties and the same are purchased out of the funds received by the father

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NC: 2023:KHC:29072 RSA No. 255 of 2023

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of the plaintiff by relinquishment of ancestral properties, I do not find any error committed by the Trial Court and the First Appellate Court in considering both oral and documentary evidence placed on record and ignored the material on record and, no such circumstance is warranted in the case on hand. Hence, I do not find any ground to invoke Section 100 of CPC to admit and frame the substantial questions of law.

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In view of the discussions made above, I pass the

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following:

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ORDER

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The appeal is dismissed.

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Sd/JUDGE

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AP/SN List No.: 1 Sl No.: 48

Sri T Srinivas v. Sri T Venkataram

Case brief

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Sri T Srinivas v. Sri T Venkataram

Case brief

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