Disposed

Smt H N Radha v. Sri Narasimhegowda

Karnataka HC12 Jun 2024RSA/1533/2013

Case brief

AI extract

What is this about?

The High Court of Karnataka dismissed an appeal against a partition decree. The court held that the lower courts correctly applied Order VII Rule 7 CPC and settled principles of legal necessity regarding alienated property. It found no infirmity in the distribution of shares and disposed of the appeal.

What did the court decide?

The appeal stands disposed of. The pending application (I.A.) stands disposed of. The Trial Court and First Appellate Court findings on partition and burden of proof are upheld.

Smt H N Radha Vs Sri Narasimhegowda — Partition | Karnataka HC (2024)

¶1

1 - NC: 2024:KHC:20946 RSA No. 1533 of 2013

¶2

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

¶3

DATED THIS THE 12^TH DAY OF JUNE, 2024 BEFORE

¶4

THE HON'BLE MR JUSTICE SURAJ GOVINDARAJ

¶5

REGULAR SECOND APPEAL NO. 1533 OF 2013 (PAR)

¶6

BETWEEN:

¶7

SMT H N RADHA W/O KRISHNEGOWDA AGED ABOUT 36 YEARS R/O KATTERI VILLAGE CHINAKURALI HOBLI PANDAVAPURA TALUK

¶8

…APPELLANT

¶9

(BY SRI. ANAGHA NARASIMHA C.N., ADV. FOR SRI. AJIT P B.,ADV.)

¶10

AND:

¶11

SRI NARASIMHEGOWDA S/O CHIKKADASEGOWDA AGED ABOUT 71 YEARS

¶12

Digitally signed by NARAYANAPPA LAKSHMAMMA Location: HIGH COURT OF KARNATAKA

¶13

SRI N RAJU S/O NARASIMHEGOWDA AGED ABOUT 34 YEARS

¶14

BOTH ARE R/O HULIKERE VILLAGE BELAGOLA HOBLI SRIRANGAPATNA TALUK MANDYA DISTRICT-571 401

¶15

J GEORGE S/O JOSEPH AGED ABOUT 61 YEARS R/AT DOOR NO.793 11^TH MAIN ROAD, 1^ST STAGE VIJAYANAGARA MYSORE-570 002

¶16

¶17

NC: 2024:KHC:20946 RSA No. 1533 of 2013

¶18

SMT BHAGYA W/O SOMASHEKAR AGED ABOUT 38 YEARS R/AT LAKSHMIPUR VILLAGE KASABA HOBLI MYSORE TALUK MYSORE DISTRICT-570 002

¶19

…RESPONDENTS

¶20

(BY SRI. K L SREENIVAS, ADV. FOR R3)

¶21

THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 22.07.2013 PASSED IN R.A.NO.176/2011 ON THE FILE OF THE III ADDL. DISTRICT & SESSIONS JUDGE, MANDYA (SITTING AT SRIRANGAPATNA), PARTLY ALLOWING THE APPEAL AND MODIFYING THE JUDGMENT AND DECREE DATED 24.08.2011 PASSED IN O.S.NO.32/2007 ON THE FILE OF THE ADDL. SENIOR CIVIL JUDGE, SRIRANGAPATNA. TRIAL COURT PARTLY DECREED THE SUIT, APPELLATE COURT PARTLY ALLOWED THE APPEAL. THE SUIT FOR PARTITION AND SEPARATE POSSESSION.

¶22

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

¶23

JUDGMENT

¶24

1. The appellant is before this Court seeking for the following reliefs:

¶25

"1. Modify the Judgment and decree passed in R.A. No.176/2011 dated 22/7/2013 Mandya on the file of III Additional District & Sessions Judge.

¶26

2. Modify the Judgment and decree passed in O.S. 32/2007 on the file of Civil Judge Senior Division at Srirangapattana dated 24/8/2011

¶27

3. Kindly order allowing the suit in O.S.32/2007 on the file of Civil Judge Senior Division at Srirangapattana as prayed for in the interest of Justice.

¶28

3 - NC: 2024:KHC:20946 RSA No. 1533 of 2013

¶29

4. Kindly pass any other order/s as the Hon'ble court deems fit in the circumstances of the case in the interest of Justice."

¶30

The appellant, along with her sister, had filed a suit in O.S.No.32/2007 seeking for partition and separate possession of four item schedule properties belonging to the joint family. The plaintiff No.1 is the appellant's sister, defendants No.1 and 2 were the father and brother, defendant No.3 was the purchaser of item No.1 of plaint schedule properties. Defendants No.1 and 2 chose not to be represented despite service and the suit was contested by defendant No.3.

¶31

Upon trial being completed, the suit came to be decreed-in-part. It was ordered that plaintiffs No.1 and 2 would be entitled for partition and separate possession of their ½ share each in items No.2 to 4 of plaint schedule properties and suit insofar as defendant No.3 was concerned, stood dismissed.

¶32

¶33

NC: 2024:KHC:20946 RSA No. 1533 of 2013

¶34

The Trial Court while passing the said judgment,

¶35

came to a conclusion that the suit was a collusive one between the plaintiffs and defendants No.1 and 2. Defendants No.1 and 2 have not appeared in order to support the case of the plaintiff to deprive defendant No.3 of his entitlement in the property. By applying the principles of Order VII Rule 7 of CPC, the Trial Court moulded the relief sought for and allotted item No.1 property to the share of defendants No.1 and 2 and held that the plaintiffs would be entitled to their ½ share each in items No.2 to 4 properties.

¶36

Challenging the same, regular appeal in RA No.176/2011 is filed. During the pendency of the said appeal, the sister of the appellant herein who was plaintiff No.1 in the suit and the purchaser had entered into a compromise, the sister giving up her right in the properties and in that background, the First Appellate Court vide its judgment dated 22.07.2013, decreed the suit of the plaintiff, declared

¶37

5 - NC: 2024:KHC:20946 RSA No. 1533 of 2013

¶38

that plaintiffs No.1 and 2 had got ¼^th share in suit schedule properties. At the time of final decree, item No.1 was directed to be allotted to the share of defendants No.1 and 2 and plaintiff No.1 in order to protect the interest of defendant No.3 on the principles of equity having come to a conclusion that defendant No.3 was a bonafide purchaser of item No.1 property. Challenging the same, the appellant is before this Court.

¶39

Though respondent-defendant No.3 has been served and the counsel has made appearance, none has appeared today to oppose the admission. Having heard learned counsel for the appellant and having gone through the papers, I am of the considered opinion that the above appeal does not raise any substantial question of law requiring admission.

¶40

Item No.1 of the suit schedule properties is a land measuring 1 acre 33 guntas, situated at Bastipura Village, Belagola Hobli, Srirangapatna Taluk. Item

¶41

6 - NC: 2024:KHC:20946 RSA No. 1533 of 2013

¶42

No.2 is a land measuring 20 guntas, situated at Hulikere Village, Belagola Hobli, Srirangapatna Taluk; item No.3 is land measuring 4 ½ guntas, situated in the same location, but different survey number. Item No.4 is a dwelling house comprising of Mangalore tiled eight pillard house measuring east to west 10 ft. and north to south 30 ft., situated in the very same village.

¶43

The fact that the properties are situated in the very same village, but in different survey numbers, indicate that the value of properties are more or less identical, since the valuation of properties has not been disputed by the appellant either before the Trial Court or First Appellate Court or this Court. Defendant No.1-father and defendant No.2-brother had sold item No.1 property measuring 1 acre 33 guntas in favour of defendant No.3 on 04.07.2005. In the said sale, there is a clear statement made that the property was sold due to family necessities.

¶44

¶45

NC: 2024:KHC:20946 RSA No. 1533 of 2013

¶46

The suit having been filed, the Trial Court formulated an issue, casting the burden on the plaintiff to prove that items No.1 and 2 were sold by defendants in favour of defendant No.3 without legal necessity and not binding on them. Thus, learned counsel for the appellant would submit, it is contrary to law that the burden of proving ought to have been on the alienee and not on the person who has challenged the same

¶47

and who was not a party to such alienation. In this regard, he relies upon the decisions of the Hon'ble Apex Court, which are reproduced hereunder:

¶48

10. Arshnoor Singh -Vs.- Harpal Kaur and Others¹ ,

¶49

more particularly para No.8.1:

¶50

"8.1. It is settled law that the power of a karta to sell coparcenary property is subject to certain restrictions viz. the sale should be for legal necessity or for the benefit of the estate. 10 The onus for establishing the existence of legal necessity is on the alienee. In Rani v. Santa Bala Debnath [(1970) 3 SCC 722], this Court held that: (SCC p. 725, para 10)

¶51

1 (2020) 14 SCC 436

¶52

8 - NC: 2024:KHC:20946 RSA No. 1533 of 2013

¶53

"10. Legal necessity to support the sale must however be established by the alienees. Sarala owned the land in dispute as a limited owner. She was competent to dispose of the whole estate in the property for legal necessity or benefit to the estate. In adjudging whether the sale conveys the whole estate, the actual pressure on the estate, the danger to be averted, and the benefit to be conferred upon the estate in the particular instance must be considered. Legal necessity does not mean actual compulsion: it means pressure upon the estate which in law may be regarded as serious and sufficient. The onus of proving legal necessity may be discharged by the alienee by proof of actual necessity or by proof that he made proper and bona fide enquiries about the existence of the necessity and that he did all that was reasonable to satisfy himself as to the existence of the necessity."

¶54

(emphasis supplied)

¶55

11. Rangammal -Vs.- Kuppuswami and Another² ,

¶56

more particularly para No.33 thereof,

¶57

"33. Since the High Court has misplaced the burden of proof, it clearly d vitiated its own judgments as also of the courts below since it is well-established dictum of the Evidence Act that misplacing burden of proof would vitiate the judgment. It is also equally and undoubtedly true that the burden of proof may not be of much consequence after both the parties lay evidence, but while appreciating the question of burden of

¶58

2 (2011) 12 SCC 220

¶59

9 - NC: 2024:KHC:20946 RSA No. 1533 of 2013

¶60

proof, misplacing of burden of proof on a particular party and recording findings in a particular way definitely vitiates the judgment as it has happened in the instant matter. This position stands reinforced by several authorities including the one delivered in Koppula Koteshwara Rao v. Koppula Hemantha Rao [2002 AIHC 4950 (AP)]."

¶61

(emphasis supplied)

¶62

There cannot be any dispute in the finding of the Hon'ble Apex Court with respect to the above issue. Except for the fact that in the present case, defendant No.1-father and defendant No.2-brother chose to be unrepresented before the Trial Court, the First Appellate Court as also before this Court, the contention of learned counsel for the appellant would not hold good for the simple reason that though the sale deed has not been set aside by the Trial Court, it has granted the share of the plaintiffs in items No.2 to 4 properties under Order VII Rule 7 of CPC, thus protecting interest of defendant No.3 in respect of

¶63

item No.1.

¶64

10 - NC: 2024:KHC:20946 RSA No. 1533 of 2013

¶65

The right title interest of the plaintiffs insofar as their ½ share (¼^th share each) is concerned, has not been watered down by the Trial Court. Their entire right has been upheld. On an appeal filed, plaintiff No.1 i.e., sister of the appellant herein compromised the matter with the purchaser and gave up her right on the joint family properties. It is in that background, the First Appellate Court directed that in the final decree proceedings, item No.1 may be allotted to the share of defendants No.1, 2 and plaintiff No.1 and further decreed that plaintiffs No.1 and 2 would have interest of ¼^th share each in the suit schedule properties.

¶66

Item No.1 of the suit schedule property measuring 1 acre 33 guntas, item No.2 measuring 20 guntas, item No.3 measuring 4 ½ guntas, the total extent of land is 2 acres 17 ½ guntas i.e., about 97 ½ guntas in total. There being 4 family members, each of them would be entitled to 24 ½ guntas. Item No.1

¶67

11 - NC: 2024:KHC:20946 RSA No. 1533 of 2013

¶68

property is measuring 1 acre 33 guntas, defendants No.1 and 2 and plaintiff No.1 each having 24 ½ guntas right title, total extent owned by them would be 73 ½ guntas i.e., 1 acre 33 ½ guntas, which is little more than the property which has been sold in favour of defendant No.3.

¶69

15. The appellant was plaintiff No.2 therein could be entitled to the properties in items No.2, 3 and 4 thereof. Items No.2 and 3 measuring 24 ½ guntas and the dwelling unit being apart from the said land. In that view of the matter, in terms of distribution of the properties whose valuation is not in question, in my considered opinion, there is no infirmity in such distribution of the Trial Court or First Appellate Court. Plaintiff No.2-appellant being entitled to 24 ½ guntas, which is her actual share in the properties, cannot have any grievance in respect of item No.1 property. As such, the appeal stands disposed of .

¶70

12 -

¶71

NC: 2024:KHC:20946 RSA No. 1533 of 2013

¶72

16. In view of disposal of the appeal, pending I.A. stands

¶73

disposed of .

¶74

Sd/JUDGE

¶75

PA List No.: 1 Sl No.: 29

Smt H N Radha v. Sri Narasimhegowda

Case brief

What is this about?

What did the court decide?

Smt H N Radha v. Sri Narasimhegowda

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Chikkannaiah Vs Muddanaika

Sri K Y Shanthi Swaroop Vs Sri C L Jayakumar

Sri Karibasanna Vs Sri Vasantha

Official Liquidator of Vs Indian Terrain Fashions Limited

Official Liquidator of M/S United Breweries (Holding) Ltd. (in Liqn) Vs M/S Mysore Fruit Products Pvt. Ltd.

Basavarajappa Vs Navilappa