Dismissed

Sri D B Shankarappa v. Sri D S Ravi Kumar

Karnataka HC13 Dec 2024RSA/1638/2015

Case brief

AI extract

What is this about?

Second appeal against order dismissing suit claiming 1/4th share in properties. High Court rejected challenge to lower courts' finding that item no.3 was Stridhana property. Court held appellant failed to prove item 3 was joint family property, sustaining dismissal of that claim.

What did the court decide?

Appeal dismissed; I.A. no.1/2016 for stay dismissed; Original decree confirmed including dismissal regarding item no.3.

Sri D B Shankarappa Vs Sri D S Ravi Kumar — Partition | Karnataka HC (2024)

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1 - NC: 2024:KHC:51506 RSA No. 1638 of 2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13^TH DAY OF DECEMBER, 2024

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BEFORE

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THE HON'BLE MR JUSTICE RAVI V HOSMANI REGULAR SECOND APPEAL NO.1638 OF 2015 (PAR)

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BETWEEN:

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SRI D.B. SHANKARAPPA, S/O LATE BASAPPA, AGED ABOUT 58 YEARS, R/A SARATHI HOSUR VILLAGE, CHANNAGIRI TALUK, DAVANAGERE DISTRICT - 577 213.

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…APPELLANT

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[BY SRI P.M. GOPI, ADVOCATE FOR SRI SIDDAMALLAPPA P.M., ADVOCATE (PH)]

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AND:

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SRI D.S. RAVI KUMAR, S/O D.B. SHANKARAPPA, AGED ABOUT 26 YEARS,

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SMT. NAGARATHNAMMA W/O SRI. D.B. SHANKARAPPA, AGED ABOUT 54 YEARS,

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Digitally signed by ANUSHA V Location: High Court Of Karnataka

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BOTH ARE R/AT SARATHI HOSUR VILLAGE, CHANNAGIRI TALUK, DAVANAGERE DISTRICT - 577 213.

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SMT. ROOPAVATHI, W/O SRI. KUMARAPPA K., D/O SRI. D.B. SHANKARAPPA, AGED ABOUT 24 YEARS, R/A MACHANAYAKANAHALLI VILLAGE, CHANNAGIRI TALUK, DAVANAGERE DISTRICT - 577 213.

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…RESPONDENTS

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[BY SRI N.K.SIDDESHWARA, ADVOCATE FOR R1 TO R3 (PH)]

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THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 25.07.2015 PASSED IN RA NO.30/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC.,

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NC: 2024:KHC:51506 RSA No. 1638 of 2015

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CHANNAGIRI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 23.04.2014 PASSED IN OS NO.30/2012 ON THE FILE OF THE PRL. CIVIL JUDGE AND JMFC., CHANNAGIRI.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR JUSTICE RAVI V HOSMANI

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ORAL JUDGMENT

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Challenging judgment and decree dated 25.07.2015 passed by learned Senior Civil Judge and JMFC., Channagiri, in R.A.no.30/2014 and judgment and decree dated 23.04.2014 passed by Principal Civil Judge and JMFC., Channagiri, in O.S.no.30/2012, this appeal is filed.

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Brief facts as stated are that appellant herein was plaintiff in suit for partition and separate possession of his 1/4^th share in suit schedule properties. It was submitted, land bearing Sy.no.37/15-P1 measuring 01 Acre, Sy.no.35/1P2 measuring 0.20 Acre of Mavinkatte village and Sy.no.15/P6 measuring 03 Acres situated at Sarathi village of Channagiri Taluk were items no.1 to 3 of suit schedule properties. In plaint, it was stated that items no.1 and 2 of suit schedule properties were ancestral joint family properties fallen to share

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NC: 2024:KHC:51506 RSA No. 1638 of 2015

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of plaintiff in partition between family members. Thereafter, plaintiff constituted joint family with defendant no.1 - son, defendant no.2 - wife and defendant no.3 - daughter. It was stated, item no.3 was purchased in name of defendant no.2 from income out of cultivation of joint family properties.

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Subsequently, relation between plaintiff and defendant no.2 soured and she began residing separately with children. He filed petition for restitution of conjugal rights, which allowed. But, defendant no.2 did not join him. Therefore, he filed M.C.no.5/2009 for dissolution of marriage. In mean while, defendants colluded with each other and filed O.S.no.75/2008 for partition and separate possession. In said suit, they had included only items no.1 and 2 of present suit schedule properties. Plaintiff filed an application and got included item no.3 also. However, when suit was at stage of cross-examination of defendant no.1, defendants did not pursue suit and it came to be dismissed for non-prosecution. It was stated, since defendants were attempting to alienate item no.3, to protect his interest in same and seeking for partition, plaintiff filed suit.

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NC: 2024:KHC:51506 RSA No. 1638 of 2015

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On service of summons, defendants no.2 and 3

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appeared and filed written statement. Defendant no.1 was placed ex-parte . In written statement, it was specifically stated that item no.3 of suit schedule properties was purchased by parents of defendant no.2 from its vendor under sale deed dated 03.11.1980. Hence, same was Streedhana property and impartible.

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Based on pleadings, trial Court framed following

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issues.

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1) Whether plaintiff proves that the suit schedule properties are joint family properties of plaintiff and defendants?

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2) Whether defendant no.2 proves that suit schedule item no.3 is Stridhana property of her?

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3) Whether plaintiff is entitle for the relief sought for?

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4) What order or decree?

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Thereafter, plaintiff examined himself and an

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independent witness as PWs.1 and 2 and got marked Exs.P1 to P8. Defendants did not lead evidence.

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On consideration, trial Court answered issues no.1

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and 3 partly in affirmative, issue no.2 in negative and issue no.4 by decreeing suit in respect of items no.1 and 2 of suit

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5 - NC: 2024:KHC:51506 RSA No. 1638 of 2015

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schedule properties and dismissing it in respect of item no.3. Suit was dismissed against defendant no.2.

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Aggrieved, plaintiff preferred appeal in R.A.no.30/2014 on various grounds. It was specifically contended, when issue no.2 was framed with regard to item no.3 of suit schedule being Streedhana property of defendant no.2, defendants had not led any evidence. Infact, finding recorded by trial Court on issue no.2 was in negative. Despite same, dismissal of suit against defendant no.2 and rejecting it in respect of item no.3 was not justified.

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Based on contentions, first appellate Court framed

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following points for its consideration.

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1) Whether the plaintiff proves that item no.3 of the suit schedule property is property purchased out of the income of the joint family properties?

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2) Whether the appellant proves that the judgment and decree of the trial Court is not in accordance with law and it is perverse?

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3) Whether the appellant proves that the interference of this Court is necessary to the judgment and decree of the trial Court?

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4) What order or decree?

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NC: 2024:KHC:51506 RSA No. 1638 of 2015

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On re-appreciation, it answered points no.1 to 3 in negative and point no.4 by dismissing appeal. Aggrieved, plaintiff preferred this second appeal.

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Sri P.M. Gopi, learned counsel appearing for Sri P.M. Siddamalla, advocate for appellant submitted that there was no dispute about relationship between parties and existence of joint family. Admittedly, defendants had earlier filed O.S.no.75/2008 against present plaintiff for partition in respect of items no.1 and 2 of suit schedule properties. It was submitted, after present plaintiff filed application and got item no.3 included in suit schedule properties, said suit was abandoned. It was submitted, though defendant no.2 had filed written statement in present suit stating that item no.3 was her Streedhana property purchased by her parents in her name and specific issue namely issue no.2 was framed, no evidence was led.

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On other hand, plaintiff deposed that defendant no.2 was only a house-wife without independent source of income. Such being case, when there was no effort on part of defendant no.2 to establish item no.3 of suit schedule properties as her individual property, both Courts were not

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NC: 2024:KHC:51506 RSA No. 1638 of 2015

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justified in dismissing plaintiff's claim insofar as item no.3. In view of above, following substantial question of law would arises for consideration and sought for allowing appeal.

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"Whether both Courts erred in dismissing suit in respect of item no.3 of suit schedule properties even when defendant no.2 failed to lead any evidence to substantiate it was her Streedhana property?"

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Heard learned counsel and perused impugned judgment and decree.

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From above, it is seen, this is plaintiff's appeal against concurrent findings in suit for partition. Before trial Court, it was stated, plaintiff along with defendants no.1 to 3 constituted joint family and items no.1 to 3 were joint family properties. To substantiate same, plaintiff deposed as PW-1 and got marked certified copy of partition deed as Ex.P1, whereunder items no.1 and 2 of suit schedule properties were received by plaintiff in partition. To substantiate that item no.3 was purchased from out of joint family properties, he produced certified copy of sale deed dated 03.11.1980 as Ex.P2, Exs.P3 to P5 - Record of Rights to indicate souring of relationship between plaintiff and defendants, he produced certified copy of judgment and decree in M.C.no.5/2009 as ExS.P6 and P7.

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8 - NC: 2024:KHC:51506 RSA No. 1638 of 2015

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Plaintiff also relied upon order-sheet in O.S.no.75/2008 as

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Ex.P8 apart from deposition of independent witness - PW.2.

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While passing impugned judgment and decree, trial Court after referring to pleadings and evidence while answering issue no.1, noted that burden to establish existence of joint family and joint family properties would be on plaintiff. Though, said burden was discharged insofar as items no.1 and 2 on basis of Ex.P1 - partition deed as well as Ex.P8 - order-sheet in O.S.no.75/2008. It observed insofar as item no.3, plaintiff had merely produced sale deed dated 03.11.1980 as Ex.P2, which did not contain any recital about source of consideration amount, either as paid by parents of defendant no.2 or by plaintiff. It observed, since burden was on plaintiff to establish item no.3 as joint family properties, mere production and oral assertion would not suffice. On said conclusion, it answered issue no.1 insofar as items no.1 and 2 of suit schedule properties in affirmative.

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Taking note of failure of defendant no.2 to step into witness-box, it answered issue no.2 in negative, but, decreed suit in part insofar as items no.1 and 2, granting 1/3^rd share to plaintiff in items no.1 and 2 and dismissed suit against

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NC: 2024:KHC:51506 RSA No. 1638 of 2015

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defendant no.2. Defendants did not question decree, only plaintiff filed appeal insofar as refusal to grant relief in respect of item no.3 of suit schedule properties.

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While passing impugned judgment and decree, first appellate Court on re-appreciation concurred with findings of trial Court. It observed that plaintiff had failed to produce any documents to show that he has purchased property in name of defendant no.2 out of income of joint family properties. It also referred to presumption available under Section 14 of Hindu Succession Act, 1956, about property standing in name of any female Hindu to be her property. In view of above, it held plaintiff had failed to discharge burden of establishing item no.3 as joint family property and purchased out of joint family funds. On said findings, it dismissed appeal.

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Though, learned counsel for appellant/plaintiff sought to strenuously contend that plaintiff having stated that defendant no.2 was only a house wife without any source of income, fact that plaintiff failure to plead about corpus of joint family funds as would be sufficient to purchase item no.3 of suit schedule properties, conclusions drawn by both Courts cannot be stated to be without any basis or contrary to material on

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NC: 2024:KHC:51506 RSA No. 1638 of 2015

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10 -

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record. Since there are concurrent findings insofar as nature of item no.3 of suit schedule properties, no substantial question of law arises for consideration. Appeal is without merit and is dismissed . Consequently, I.A.no.1/2016 for stay is also

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dismissed.

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Sd/(RAVI V HOSMANI) JUDGE

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GRD

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List No.: 1 Sl No.: 35

Sri D B Shankarappa v. Sri D S Ravi Kumar

Case brief

What is this about?

What did the court decide?

Sri D B Shankarappa v. Sri D S Ravi Kumar

Case brief

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