Dismissed

Smt. Divya S.N v. Sri.Nanjegowda S

Karnataka HC6 Dec 2023RSA/845/2016

Case brief

AI extract

What is this about?

The Karnataka High Court dismissed a regular second appeal filed by an unmarried daughter challenging the dismissal of her suit for partition and separate possession of ancestral property. The court affirmed lower courts' findings that the property was not joint family ancestral but inherited by the father under Section 8 of the Hindu Succession Act, and that the sale to the purchaser was for lega

What did the court decide?

Allowance of applications, if any, disposed of as none survive.

Smt. Divya S.N Vs Sri.Nanjegowda S — Partition | Karnataka HC (2023)

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1 - NC: 2023:KHC:44143 RSA No. 845 of 2016

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 6^TH DAY OF DECEMBER, 2023

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BEFORE

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THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM REGULAR SECOND APPEAL NO. 845 OF 2016 (PAR)

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BETWEEN:

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SMT. DIVYA S.N, D/O NANJEGOWDA, W/O ASHOK H.M. AGED ABOUT 27 YEARS, R/AT NEAR D. SATENAHALLI GATE, KASABA HOBLI, CHANNARAYAPATNA TALUK - 560 054.

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PRESENTLY R/AT: NO.621, 14TH CROSS, GOGULA 1ST STATE, MATHIKERE, BANGALORE - 560 054.

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…APPELLANT

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Digitally signed by SUCHITRA M J Location: HIGH COURT OF KARNATAKA

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(BY SRI. SHANKARAPPA, ADVOCATE)

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AND:

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SRI. NANJEGOWDA S, S/O LATE SANNANIGEGOWDA, AGED ABOUT 54 YEARS,

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SMT. RANGALAKSHMAMMA, W/O NANJEGOWDA S, AGED ABOUT 50 YEARS,

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KUM. S.N. BHAVYA, D/O S. NANJEGOWDA, AGED ABOUT 24 YEARS,

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NC: 2023:KHC:44143 RSA No. 845 of 2016

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ABOVE 1 TO 3 ARE RESIDING AT FARM HOUSE, NEAR D. SATENAHALLI CROSS, CHANNARAYAPATNA TALUK, PRESENTELY R/AT: VIDYANAGAR CHANNARAYAPATNA TOWN AND TALUK - 560 054.

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SRI. K.K. MURTHY, S/O K.K. RAO, AGED ABOUT 62 YEARS, R/AT NO.9/1, 1ST FLOOR O.V.H.ROAD, BASAVANAGUDI, BANGALORE-SOUTH - 560 054.

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SMT. GEETHA, W/O UMESH, AGED ABOUT 37 YEARS, R/AT 7TH CROSS, BOMBAY DYING, YESHWANTHPURA, BANGALORE - 560 054.

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SMT. POOMIMA, W/O PRABHU, AGED ABOUT 34 YEARS, R/AT JSS COLLEGE ROAD, VIDYANAGAR, NANJANGUD, MYSORE DISTRICT - 560 054.

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…RESPONDENTS

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(BY SRI. M. MOHAN RAO, ADVOCATE FOR C/R4, SRI. SAMARTH PRAKASH, ADVOCATE FOR R1 TO R3, R5 AND R6;

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VIDE ORDER DATED 14.02.2020, APPEAL BATED AS AGAINST FOR R4)

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NC: 2023:KHC:44143 RSA No. 845 of 2016

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THIS RSA IS FILED UNDER SEC.100 OF CPC., R/W SEC.103(9)(b) ORDER XLII OF CPC., 1980 AGAINST THE JUDGMENT AND DECREE DATED 07.04.2016 PASSED IN RA.NO.87/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND J.M.F.C., CHANNARAYAPATNA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 27.10.2014 PASSED IN OS.NO.23/2008 ON THE FILE OF THE PRL. CIVIL JUDGE AND JMFC AT CHANNARAYAPATNA.

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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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The captioned second appeal is filed by the unsuccessful plaintiff, assailing the concurrent judgments of the Courts below, wherein plaintiff's suit seeking partition and separate possession is dismissed by both the Courts.

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For the sake of brevity, the rank of the parties are referred as they are ranked before the Trial Court.

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NC: 2023:KHC:44143 RSA No. 845 of 2016

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The family tree of the family is as under:

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¸ÀtÚ ¤AUÉÃUËqÀ - ¥Ëw FgÀªÀÄä 70 ªÀµÀð ªÀÄAeÉÃUËqÀ J¸ï.£ÀAeÉÃUËqÀ 55 ªÀµÀð ¨ÉÃgÉªÁ¸À 53 ªÀµÀð gÀAUÀ®PÀëöäªÀÄä 48 ªÀµÀð VÃvÁ ¥ÀÆtÂðªÀÄ ¢ªÀå ¨sÀªÀå 28 ªÀµÀð 25 ªÀµÀð 22 ªÀµÀð 20 ªÀµÀð ®UÀßªÁV ®UÀßªÁV ®UÀßªÁV ¨ÉÃgÉªÁ¸À ¨ÉÃgÉªÁ¸À ¨ÉÃgÉªÁ¸À

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The plaintiff, who claims to be the daughter of defendant No.1-Nanjegowda.S, has filed the suit by contending that suit property is joint family ancestral property and has also sought a declaration that the sale deed dated 25.06.2007, executed in favour of defendant No.4, is not binding on her legitimate share. Plaintiff has filed the present suit alleging that defendant No.1 is

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5 - NC: 2023:KHC:44143 RSA No. 845 of 2016

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addicted to vices and that defendant No.2 has no worldly knowledge and that defendant No.4 taking undue advantage, has secured a sale deed for a nominal price. Therefore, plaintiff contended that alienation in favour of defendant No.4 is not binding on her legitimate share.

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Defendants No.1 to 3 have not chosen to

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contest the proceedings. Defendant No.4, who is the purchaser, has filed a detailed written statement and contested the suit. Defendant No.4 contended that the present suit is bad for non-joinder as two daughters, namely, Geetha and Poornima, are not arrayed as parties, and therefore the suit is bad for non-joinder of necessary parties. Defendant No.4 has also contended that defendants No.1 and 2 have sold the suit property for legal necessity and therefore, the alienation made by defendants No.1 and 2 binds the plaintiff and hence sought for dismissal of the suit.

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6 - NC: 2023:KHC:44143 RSA No. 845 of 2016

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Plaintiff and defendant No.4/purchaser to

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substantiate their respective claims have let in oral and documentary evidence.

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The Trial Court, referring to the evidence on record, answered issue No.1 in the negative. While answering issue No.1 in the negative, the Trial Court, referring to the grant certificate, vide Ex.P.5, coupled with admissions elicited in cross-examination of plaintiff, who has admitted that the suit property was granted to her grandfather, namely, Sannaningegowda, proceeded to hold that the suit property is not a joint family ancestral property. The Trial Court, referring to the evidence on record, also found that alienation in favour of defendant No.4 was for legal necessity. On this set of grounds, the Trial Court has dismissed the suit.

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8. Plaintiff feeling aggrieved by the judgment and

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decree of the Trial Court, preferred an appeal before the appellate Court. The Appellate Court referring to the

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7 - NC: 2023:KHC:44143 RSA No. 845 of 2016

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admissions elicited in the cross-examination of plaintiff that the property was self-acquired property of defendant No.1's father, held that the present suit is not maintainable. Consequently, appeal is dismissed.

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Both the Courts, referring to the grant certificate, which is produced at Ex.P.5 as well as Ex.D.1, found that the suit property admittedly was granted to plaintiff's grandfather namely, Sannaningegowda. If the land in question was granted to the propositus Sannanningegowda, after his demise, defendant No.1 being the son inherited the property at the exclusion of his children under section 8 of the Hindu Succession Act. If defendant No.1 has received suit property under section 8 in his individual capacity, plaintiff cannot assert any right over the suit property. If defendant No.1 has received the property by way of inheritance under section 8, the property admittedly is not a joint family ancestral property. This aspect is dealt by both the Courts.

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NC: 2023:KHC:44143 RSA No. 845 of 2016

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Be that as it may. The material on record also reveals that alienation was a family necessity. Both the Courts even otherwise, have held that the alienation by defendants No.1 and 2 in favour of defendant No.4 was for legal necessity. Even on this count, suit is bound to fail. In the light of discussion made supra, no substantial question of law would arise for consideration. The regular second appeal is devoid of merits and accordingly stands dismissed .

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In view of dismissal of second appeal, all pending applications, if any, do not survive for consideration and stand disposed of.

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Sd/JUDGE

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HDK List No.: 1 Sl No.: 6 CT: BHK

Smt. Divya S.N v. Sri.Nanjegowda S

Case brief

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Smt. Divya S.N v. Sri.Nanjegowda S

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