Dismissed

Yashodamma v. Gangadharaiah

Karnataka HC8 Apr 2024RSA/1496/2023

Case brief

AI extract

What is this about?

In RSA No. 1496 of 2023, the High Court of Karnataka dismissed the second appeal by a plaintiff regarding partition of ancestral/self-acquired family properties and a disputed sale. The court held no error existed as findings on property title and legal necessity were supported by evidence.

What did the court decide?

The appeal was dismissed with no interference in the judgment and decree confirming the lower courts' findings.

Yashodamma Vs Gangadharaiah — Partition | Karnataka HC (2024)

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NC: 2024:KHC:14397 RSA No. 1496 of 2023

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 8^TH DAY OF APRIL, 2024 BEFORE

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THE HON'BLE MR JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO. 1496 OF 2023 (PAR)

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BETWEEN:

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YASHODAMMA, AGED ABOUT 47 YEARS, D/O LATE K. SHIVANNA, ECHANURU VILLAGE, KASABA HOBLI, TIPTUR TALK, TUMAKURU DISTRICT - 572 101.

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…APPELLANT

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(BY SRI VINAYA KEERTHY M, ADVOCATE)

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AND:

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Digitally signed by SUMA B N Location: High Court of Karnataka

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GANGADHARAIAH,, AGED ABOUT 46 YEARS, S/O LATE K. SHIVANNA, ARALAGUPPE VILLAGE, KIBBANAHALLI HOBLI, TIPTUR TALUK, TUMAKURU DISTRICT - 572 101.

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DAYANANDA,

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(DIED ON 02.12.2018, APPELLANT AND RESPONDENTS 1, 3 AND 4 ARE HIS LRS)

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NETHRAVATHI, AGED ABOUT 44 YEARS, D/O LATE K. SHIVANNA, AKKALASANDRA,

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NC: 2024:KHC:14397 RSA No. 1496 of 2023

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DANDINASHIVARA H, TURUVEKERE TALUK, TUMAKURU DISTIRCT - 572 101.

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BHAGYAMMA,

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AGED ABOUT 43 YEARS, D/O LATE K. SHIVANNA, ANEKERE VILLAGE, KASABA HOBLI, TURUVEKERE TALUK, TUMAKURU DISTIRCT - 572 101.

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MAHADEVAPPA, AGED ABOUT 51 YEARS, S/O NINGAPPA, VENKATAPURA, KASABA HOBLI, TURUVEKERE TALUK,

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TUMAKURU DISTIRCT - 572 101.

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…RESPONDENTS

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 12.04.2023 PASSED IN RA No. 07/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, TIPTUR, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 21.10.2016 PASSED IN OS No. 332/2012 ON THE FILE OF THE ADDITIONAL CIVIL JUDGE AND JMFC, TIPTUR.

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

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JUDGMENT

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This appeal is by the plaintiff aggrieved by the judgment and decree dated 21.10.2016 passed in O.S.no.332/2012 on the file of Additional Civil Judge and J.M.F.C., Tiptur (hereinafter referred to as 'the trial

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3 - NC: 2024:KHC:14397 RSA No. 1496 of 2023

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Court"), which is confirmed by the judgment and decree dated 12.04.2023 passed in R.A.No.7/2017 on the file of Senior Civil Judge and J.M.F.C., Tiptur (hereinafter referred to as 'the first appellate Court').

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The appellant/plaintiff filed the above suit in OS.No.332/2012 against the respondents/defendants contending that plaintiff and defendant Nos.2 to 5 are the children of defendant No.1 and they constituted the joint family. That the suit properties are the joint family ancestral properties of plaintiff and defendant Nos.1 to 5. That defendant no.1, without any legal necessity had sold item Nos.1 and 2 of suit property to defendant no.6. That defendant No.1, who was the manager of the family had mismanaged the family income and interest of the plaintiff. The said alienation is not binding on the plaintiff. As such, the suit.

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Defendant Nos.1 to 5 did not appear despite service of summons and they were placed ex-parte. Defendant No.6 appeared before the trial Court and filed

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written statement denying the plaint averments. It is contended that defendant No.1 acquired suit item no.1 of property in terms of registered Deed of Gift dated 02.09.1963 executed by one Lakkamma W/o Guddaiah. As such, it is the self-acquired property of defendant no.1. That suit item No.2 of property was acquired by defendant No.1 in terms of Mutation Register No.87/87-88. That defendant No.1 and his sons, who were defendant Nos.2 and 3 sold suit item Nos.1 and 2 in favour of defendant No.6 for valuable consideration in terms of registered deed

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of sale dated 12.05.2004 to meet the legal necessities. That defendant no.6 has been in possession and enjoyment of suit item Nos.1 and 2 of property as a bonafide purchaser. That since alienation of item Nos.1 and 2 have taken place prior to 20.12.2004 hence plaintiff is not entitled for any share in said item Nos.1 and 2 of suit property.

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NC: 2024:KHC:14397 RSA No. 1496 of 2023

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Based on the pleadings, the trial Court framed the following issues:

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(1) Whether the plaintiff proves that she and defendant Nos.1 to 5 are constitute joint family and suit schedule properties are ancestral properties of plaintiff and defendant Nos.1 to 5?

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(2) Whether the plaintiff proves that the defendant No.1 sold the suit schedule Nos.1 and 2 property in favour of 6th defendant without consent of plaintiff and sale deed is not binding on her?

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(3) Whether the plaintiff is entitle for relief as claimed in the suit?

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(4) What order or decree?

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Plaintiff examined herself as PW.1 and exhibited

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10 documents marked as Exs.P1 to P10. Defendant No.6 examined himself as DW.1 and exhibited 15 documents marked as Exs.D1 to D15. On appreciation of evidence,

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the trial Court partly decreed the suit granting share to the plaintiff in respect of item No.3 of the suit property and

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dismissed the suit of the plaintiff as regards item Nos.1 and 2 of the suit property. Aggrieved by the same, appellant/plaintiff preferred regular appeal in RA.No.7/2017 before the first appellate Court. Considering the grounds urged in the appeal memo, the first appellate Court framed the following points for its consideration.

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(1) Whether the judgment and decree passed by the trial Court in O.S.No.332/2012 dated 21.10.2016 is erroneous, illegal and opposed to law and calls the interference of this court?

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(2) Whether the plaintiff/appellant is also entitled for equal share in the suit item Nos.1 and 2 properties?

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(3) Whether the defendant No.6/respondent No.5 is a bonafide purchaser?

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(4) What order?

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On re-appreciation of oral and documentary

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evidence, the first appellate court answered point Nos.1 and 2 in the negative and point No.3 in the affirmative, consequently dismissed the appeal of the

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appellant/plaintiff and confirmed the judgment and decree passed by the trial Court. Being aggrieved by the same, the appellant/plaintiff is before this Court in this regular second appeal.

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Sri Vinaya Keerthy M., learned counsel for the appellant/plaintiff reiterating the grounds urged in the memorandum of appeal submitted;

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a) That the trial Court and the first appellate

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Court erred in holding suit item Nos.1 and 2 are not joint family properties despite sufficient evidence having been produced in that regard.

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b) He submits that if notional partition had taken place, plaintiff would have got definite share in item Nos.1 and 2 of suit property as she was major. As such the finding and reasoning

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given by the trial Court and the first appellate Court that since alienation was made prior to December, 2004, same is saved in terms of proviso to sub Section (1) of Section 6 of the

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Hindu Succession Act (for short, 'the Act') is erroneous giving rise to substantial question of law for consideration. Hence, sought for allowing the appeal.

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Heard and perused the records.

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The trial Court and the first appellate Court after having examined the contents of Ex.D1, the deed of Gift dated 02.09.1963, which is executed by one Lakkamma W/o Guddaiah conveying item No.1 of suit property in favour of defendant No.6, have found that said Lakkamma W/o Guddaiah did not belong to the family of defendant No.1. That the said property was given in gift by her to defendant No.1 out of her love and affection towards him. As such, said item has become his selfacquired property and not the joint family property.

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The trial Court and the first appellate Court have

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also found that the plaintiff has not produced any documents to contrary. As such, they have held item No.1 of the suit property is the self-acquired property. No error

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can be found with this finding and reasoning given by the first appellate Court with regard to suit item No.1 of property.

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As regards suit item No.2 is concerned, the trial Court and the first appellate Court have referred deed of sale dated 12.05.2004, which is executed by defendant Nos.1 to 3 being father and brothers of the plaintiff in favour of defendant No.6 as the trial Court and the first appellate Court, on perusal of the recitals of the deed of sale have come to the conclusion sale was for legal necessity. Besides, said sale has taken place prior to December, 2004. As such the trial Court and the first appellate Court have held that said transaction is saved in view of proviso to sub Section (1) of Section 6 of the Act, and proceeded to dismiss the suit of the plaintiff with regard to item No.2 of suit property as well.

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However, the trial Court and the first appellate Court have found item No.3 of the property available for partition and have allotted share therein to the plaintiff.

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NC: 2024:KHC:14397 RSA No. 1496 of 2023

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10 -

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No error or illegality is found with the reasoning and finding given by the trial Court and the first appellate Court warranting any interference at the hands of this Court. For the aforesaid reasons and analysis, no substantial question of law is involved in this appeal requiring consideration. Appeal is accordingly dismissed.

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Sd/JUDGE

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MKM List No.: 2 Sl No.: 16 CT: BHK

Yashodamma v. Gangadharaiah

Case brief

What is this about?

What did the court decide?

Yashodamma v. Gangadharaiah

Case brief

What is this about?

What did the court decide?

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