Second appeal by legal heirs of defendant No.3 against decrees granting plaintiff No.1 a one-third share in 'B' schedule property. The High Court held the unregistered settlement deed invalid under Section 17 of the Registration Act and dismissed the appeal.
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NC: 2024:KHC:7273 RSA No. 2085 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO. 2085 OF 2023 (PAR)
BETWEEN:
CHIKKANANJE GOWDA DEAD BY LR'S
W/O A.V. NANJEGOWDA,
AGED ABOUT 57 YEARS,
S/O A V NANJEGOWDA, AGED ABOUT 36 YEARS,
D/O A.V. NANJEGOWDA, AGED ABOUT 32 YEARS,
Digitally signed by SUMA B N Location: High Court of Karnataka
APPELLANTS ARE RESIDING AT ANAKUNURU VILLAGE, KASABA HOBLI,
CHIKKABALLAPURA TALUK, CHIKKABALLAPURA DISTRICT 562101
…APPELLANTS
(BY SRI. Y.R. SADASHIVA REDDY, SENIOR COUNSEL FOR SRI. RAHUL S REDDY.,ADVOCATE)
AND:
W/O HANUMANTHAPPA, AGED ABOUT 62 YEARS,
NC: 2024:KHC:7273 RSA No. 2085 of 2023
RESPONDENT NOs.1 & 2 RESIDING AT MALLAMACHANAHALLI VILLAGE, SHIDDLAGHATTA TALUK, CHIKKABALLAPURA DISTRICT - 562 105.
MUNICHENNAMMA
DEAD BY LR'S,
3. BYRAPPA,
S/O LATE VENKATASHAMAPPA, AGED ABOUT 67 YEARS, R/A NO 42, 7TH CROSS, NARSIPURA LAYOUT, BANGALORE - 560 097.
…RESPONDENTS
(BY SMT. RASHMI K., ADVOCATE A/W SRI. M. SUBRAMANYA BHAT FOR R3 DR. B. MANJUNATH, ADVOCATE FOR R1)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 21.03.2023 PASSED IN OS NO.128/2016 ON THE FILE OF I ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, CHIKKABALLAPURA. AND THE JUDGMENT AND DECREE DATED 04.11.2023 PASSED IN RA NO.39/2023 ON THE FILE OF III ADDITIONAL DISTRICT AND SESSIONS JUDGE, CHIKKABALLAPURA, AND DISMISS THE SUIT FILED BY THE RESPONDENT NO.1 AND 2.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
NC: 2024:KHC:7273 RSA No. 2085 of 2023
JUDGMENT
This appeal is filed by the legal representative of the defendant No.3 aggrieved by the judgment and decree dated 21.03.2023 passed in O.S.No.128/2016 on the file of the I Additional Senior Civil Judge and J.M.F.C, Chikkaballapura (hereinafter 'the Trial Court') which is confirmed by the judgment and order dated 04.11.2023 passed in R.A.No.39/2023 on the file of III Additional District and Sessions Judge, Chikkaballapura (hereinafter 'the First Appellate Court').
properties of the plaintiffs and defendants No.1 to 3 and there is no partition of the same. That the plaint schedule properties devolved upon defendant No.1 in the family partition from her ancestors. The defendant No.3 by playing fraud on the pretext of oral partition got the khatha of the properties changed in his name. As the plaint schedule properties are not the self acquired properties of defendant No.3, demand made by the plaintiffs for partition was declined, constraining them to file the suit.
3.1 The defendant No.1 in her written statement though admitted the relationship, denied the case of the plaintiffs. It is contended that the plaint schedule properties are not the joint family properties and the description of the properties is not clear. It is contended that Item No.1 of the plaint schedule property is the self acquired property of the
defendant No.3, who out of his hard work and labour had acquired the same, in terms of deed of sale bearing No.2792/1995-96 from one Smt.Byamma w/o Channappa and her children and there was no contribution from anyone for the purpose of purchase of the Item No.1 of the plaint schedule property.
3.2 As regard, plaint 'B' schedule property is concerned, it is contended that the same originally belonged to Avalappa and Munishamappa who were the sons of Dodda Nanjappa. One Shanthamma and defendant No. 1 are the daughters of Dodda Nanjappa. Brothers of defendant No.1 gifted 'B' schedule property in favour of defendant No.1 and her sister Shanthamma in terms of registered deed of gift dated 03.05.1975. That the said Shanthamma was a spinster. She was residing with the defendant No.1. That the said Shanthamma had taken shelter with the defendant No.3. That the Shanthamma and defendant No.1 have orally
given up their rights over plaint 'B' schedule property in favour of the defendant No.3 by way of oral partition. That by consent, the revenue records were mutated in the name
NC: 2024:KHC:7273 RSA No. 2085 of 2023
of defendant No.3. Shanthamma passed away unmarried. Therefore, it is contended that 'A' and 'B' schedule properties are the self acquired properties of the defendant No.3. As such, the plaintiffs are not entitled for any share in respect of the suit schedule property.
3.3 The defendant No.3(a) to (c) in their written statement adopted the contention of the defendant No.1. In addition they also set-up the defense that the suit is barred by limitation. As such, sought for dismissal of the suit.
" 1) Whether the plaintiffs prove that the suit schedule properties are their ancestral and joint family properties?
2) Whether the plaintiffs prove that they are having the share in the suit schedule properties? If so, to what extent?
3) Whether the plaintiffs prove that 3 defendant is the stranger to the family as well as to the suit schedule properties?
NC: 2024:KHC:7273 RSA No. 2085 of 2023
1. Whether the plaintiffs prove that the suit schedule properties are their ancestral and joint family properties?
2. Whether the Appellant/Lrs of defendant No.3(a) to 3(c) proves that the judgment and decree of the trial court is not in accordance with law and it is perverse?
3. Whether the appellants/Lrs defendants 3(a) to 3(c) proves that the interference of this court is very much necessary to the judgment and decree of the trial court?
4. Whether appellants/Lrs of defendant No.3(a) to 3(c) proves that LA.No.1 filed by them under order 41 Rule 27 and Section 151 of CPC deserves to be allowed?
5. What order?"
Appellate Court answered point Nos.1 to 4 in the negative and consequently dismissed the appeal. Being aggrieved by the same the present appeal is filed by the legal representatives of the defendant No.3.
the appellants reiterating the grounds urged in the memorandum of the appeal submitted that the Trial Court and the First Appellate Court erred in not accepting the settlement that had taken place in the year 1995, during the lifetime of defendant No.1, based on which the revenue records were mutated. He further submits that the Trial
NC: 2024:KHC:7273 RSA No. 2085 of 2023
Court and the First Appellate Court having held that the defendant No.1 being an absolute owner of the 'B' schedule property, ought not to have negated the claim of defendant No.3, of defendant No.1 having settled the property in favour of defendant No.3 . He submits that defendant No.1 being the absolute owner of the suit property, is entitled to convey her rights in the manner she desires and there is no impediment in conveying her rights the way she desires. He submits that the conveyance of the property in favour of the defendant No.3 by way of unregistered settlement ought to have been accepted by the Trial Court and the First Appellate Court. He relies upon the judgment of the Apex Court in the case of Thulasidhara and another Vs. Narayanappa and others passed in Civil Appeal No.784/2010 decided on 01.05.2019 and referring to the said judgment, learned senior counsel insists that the Apex Court has recognized unregistered palupatti as enforceable in law. Thus, his submission is that the judgment and decree and Order passed the Trial Court and the First Appellate Court suffers from perversity in not appreciating the settlement deed and
NC: 2024:KHC:7273 RSA No. 2085 of 2023
also runs contrary to the law laid by the Apex Court, giving raise to substantial question of law.
submits that the purported settlement being claimed by the defendant No.3 is unregistered and cannot be given effect to. Thus, she submits that no error or irregularities committed by the Trial Court and the First Appellate Court in decreeing the suit to the extent of schedule 'B' property.
NC: 2024:KHC:7273 RSA No. 2085 of 2023
partition produced at Ex.D6. Before the Trial Court though witnesses namely Dw.2 and Dw.3 have been examined to prove Ex.D6, in the absence of production of original of Ex.D6 and identification of signature, Trial Court has
NC: 2024:KHC:7273 RSA No. 2085 of 2023
declined to accept the case of Defendant No.3. Relevant to note that the defendant No.2 has disputed Ex.D6. He had made an application seeking scientific investigation of the said document which was allowed. However, defendant No.3(a) to 3(c) did not produce the original of Ex.D6.
NC: 2024:KHC:7273 RSA No. 2085 of 2023
absolute property of defendant No.1 and her sister Shanthamma based on Ex.D6 .
NC: 2024:KHC:7273 RSA No. 2085 of 2023
In that view of the matter, no substantial question of law would arise for consideration in this appeal. Appeal is dismissed confirming the judgment and decree passed by the Trial Court and the First Appellate Court.
Sd/JUDGE
RL
List No.: 2 Sl No.: 31
2 issues framed by the court
Whether an unregistered memorandum of settlement (Ex.D6) could convey the 'B' schedule property of defendant No.1 to defendant No.3.
Whether the concurrent findings of the courts below that the 'B' schedule property devolved on the legal heirs suffered from perversity so as to raise a substantial question of law.
Colour shows how this judgement treated each authority
Thulasidhara v. NarayanappaDistinguished¶17
Thulasidhara and another Vs. Narayanappa and others, Civil Appeal No.784/2010 decided on 01.05.2019
3 provisions across 2 enactments
Lakshmamma
Shivaraj
Ganavi
Jayamma
Bhavana
Byrappa
M.G.S. KAMAL
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
