Plaintiffs' second appeal against refusal to include suit item No.2 in partition as joint family property. Application under Order 41 Rule 27 CPC to produce a 1960 sale deed was rejected for lack of justification; no cogent evidence proved purchase from family nucleus. No substantial question of law arose and the appeal was dismissed.
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NC: 2024:KHC:5831 RSA No. 45 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL REGULAR SECOND APPEAL NO. 45 OF 2019 (PAR)
BETWEEN:
Digitally signed by SUMA B N Location: High Court of Karnataka
RALLABUDUGURU, KUPPAM NOW RESIDING AT BEERAMANAHALLI, KASABA HOBLI, KOLAR TALUK - 563 101.
…APPELLANTS
(BY SRI. S. KRISHNASWAMY, ADVOCATE)
AND:
NC: 2024:KHC:5831 RSA No. 45 of 2019
D/O. LATE SRINIVASAPPA AGED ABOUT 40 YEARS, 1647, 1ST CROSS, VIJAYANAGARA, BANGARAPET- 563101.
JYOTISREE 1(b) D/O. LATE SRINIVASAPPA, AGED ABOUT 38 YEARS, SNR QUARTERS, KOLAR - 563 101.
GANESH, 1(c) S/O. LATE SRINIVASAPPA AGED ABOUT 37 YEARS, SNR QUARTERS KOLAR- 563 101.
NC: 2024:KHC:5831 RSA No. 45 of 2019
R/O BEERAMANAHALLI VILLAGE, KASABA HOBLI, MALUR TALUK, KOLAR DISTRICT - 563130.
…RESPONDENTS
(BY SRI. RAMAKRISHNA HEGDE, ADVOCATE FOR R1 (A TO F) AND R2; SRI. B.V. ANAND, ADVOCATE FOR R4; R3 SERVED)
THIS RSA FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 14.11.2016 PASSED IN RA NO.1/2011 ON THE FILE OF THE I ADDITIONAL DISTRICT JUDGE AT KOLAR. PARTLY ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 20.11.2010 PASSED IN OS NO.328/2008 ON THE FILE OF THE III ADDL.SENIOR CIVIL JUDGE AT KOLAR.
THIS APPEAL, COMING ON FOR FURTHER ORDERS, THIS DAY, THE COURT DELIVERED THE FOLLOWING:
NC: 2024:KHC:5831 RSA No. 45 of 2019
JUDGMENT
This appeal is by the plaintiffs being aggrieved by the
judgment and order dated 14.11.2016 passed in R.A. No.1/2011 on the file of the I Additional District Judge, Kolar (hereinafter referred to as 'First Appellate Court' for short) to the extent declining to grant relief in respect of item No.2 of the suit schedule properties.
Nanjappa and Smt.Rathnamma, the defendant No.1 are the parents of plaintiffs and defendant Nos.2 and 3. That defendant No.4 is the wife of defendant No.2. Thus, plaintiffs and defendants 1 to 4 constituted a joint family. That the suit schedule properties are the joint family properties. Plaintiffs sought for partition and separate possession. Since their request was denied, they were
NC: 2024:KHC:5831 RSA No. 45 of 2019
constrained to file the suit. It is further contended that defendant No.2 along with his wife defendant No.4/Smt. Varalakshmamma had filed a suit against Kuteri Nanjappa in O.S.No.117/1986 for declaration of title and for permanent injunction to which the plaintiffs and defendants were not made parties. In the said suit defendant No.4-Varalakshmamma has been declared to be the owner to an extent of 2 acres 9 guntas out of 4 acres 18 guntas of land in Sy.No.95. That the said defendant No.4/Varalakshmamma had sold the said 2 acres 9 guntas of land in favour of defendant No.5-B.S.Prasanna Kumar and the remaining 2 acres 9 guntas of land has been sold by Kuteri Nanjappa in favour of defendant No.3. It is contended that defendant No.4 - Varalakshmamma had no right to sell the schedule property in favour of defendant No.5 and the said property is the joint family property. Hence, the suit.
NC: 2024:KHC:5831 RSA No. 45 of 2019
statement denied the plaint averments and contended that item No.2 of the suit schedule property bearing Sy.No.95 is totally measuring 4 acres 18 guntas excluding 3 guntas of karab. Than an extent of 2 acres 9 guntas of said land was purchased in the name of defendant No.4Varalakshmamma, in terms of deed of sale dated 05.01.1971, while she was minor, aged about 9 years represented by her mother as natural guardian. Possession of the said property was delivered in favour of the defendant No.4-Varalakshmamma and her mother.
Defendant No.5 purchased the said extent of 2 acres 9 guntas of land from the said defendant No.4Varalakshmamma in terms of deed of sale dated 21.07.1994 for valuable sale consideration. Revenue records have been mutated in the name of defendant No.5 vide M.R.No.2/95-96. That the plaintiffs and other defendants had no share, right, title and interest in item No.2 of the suit schedule property. He further contended that defendant No.3-Sri.B.N.Venkatesh who is the owner of property situated next to the item No.2 of the suit
NC: 2024:KHC:5831 RSA No. 45 of 2019
schedule property had filed a suit for permanent injunction in respect of entire extent of 4 acres 18 guntas of land in
O.S.No.219/2007. When the said suit was posted for arguments, an application under Order 23 Rule 3 of CPC was filed seeking to withdraw with liberty to file a fresh suit. Thus at the instigation of defendant No.3 the plaintiffs have filed the present suit for partition. Hence, sought for dismissal of the suit.
the following issues for its consideration:
NC: 2024:KHC:5831 RSA No. 45 of 2019
answered issue Nos.1, 2 and 3 in negative, issue No.5 in the affirmative and issue Nos.4 and 6 have been treated as did not arise for consideration. Consequently, dismissed
the suit of the plaintiffs.
preferred the appeal in R.A.No.1/2011 before the First Appellate Court. The First Appellate Court considering the grounds urged in the appeal memorandum framed the following points for consideration:
NC: 2024:KHC:5831 RSA No. 45 of 2019
item No.2 of the suit schedule property having been sold in favour of defendant No.4 and the same had been subsequently purchased by defendant No.5 could not be considered as joint family property and hence, dismissed the suit as regards item No.2 of the suit schedule property. However, the First Appellate Court granted relief of partition in respect of item Nos.1 and 3 of the suit schedule properties holding plaintiffs being entitle for 2/5th share therein. Aggrieved by the judgment and order of the First Appellate Court to the extent declining the plea of the
NC: 2024:KHC:5831 RSA No. 45 of 2019
plaintiffs in respect of item No.2 of the suit properties, the present appeal is filed.
Varalakshmamma, since minor represented by her mother and natural guardian. It is also contended that the said
NC: 2024:KHC:5831 RSA No. 45 of 2019
defendant No.4 -Varalakshmamma had filed a suit in O.S.No.117/1986 against the said Kuteri Nanjappa and Srinivasappa for relief of declaration which was decreed. Thus based on the aforesaid submissions, learned counsel for the appellants insists that item No.2 of the suit schedule properties ought to have been considered as joint family property by the First Appellate Court granting relief to the plaintiffs in its entirety. Non-consideration of the same according to the counsel gives rise to substantial question of law.
NC: 2024:KHC:5831 RSA No. 45 of 2019
interestingly an application is filed by defendant No.3B.N.Venkatesh under Order 41 Rule 27 of CPC before this Court seeking to produce certified copy of the deed of sale dated 10.03.1960.
not given opportunity to produce before the trial Court and that no other parties to take any steps to bring the same
NC: 2024:KHC:5831 RSA No. 45 of 2019
to the notice of the Trial Court and the First Appellate Court.
NC: 2024:KHC:5831 RSA No. 45 of 2019
of CPC is filed by the defendant No.3 who is respondent
No.2 in this matter before adverting to the merits of the
case, the said application has to be considered. Provision governing production of additional document is self contained. Order 41 Rule 27 of CPC reads as under:
"27. Production of additional evidence in Appellate Court.- (1) The parties to an appeal shall not be entitled to produce additional evidence, whether oral or documentary, in the Appellate Court. But if-
(a) the Court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted, or
(aa) the party seeking to produce additional evidence, establishes that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not, after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed, or
(b) the Appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause,
the Appellate Court may allow such evidence or document to be produced, or witness to be examined.
NC: 2024:KHC:5831 RSA No. 45 of 2019
(2) Wherever additional evidence is allowed to be produced by an Appellate Court, the Court shall record the reason for its admission."
by the learned counsel for respondent No.3, that the sale of two items of the property therein was to repay the hand
NC: 2024:KHC:5831 RSA No. 45 of 2019
loan which were apparently availed by Kuteri Nanjappa. Learned counsel for respondent No.3 fairly submits that even by sale of said property no sale proceeds were received in hand by the said Kuteri Nanjappa as the property was sold against the loan amount which he had apparently borrowed from the buyer. Thus the submission of the appellants and the respondent No.3 that item No.2 of the suit schedule property was purchased on 05.01.1971 from and out of the proceeds received from the sale of the said property on 10.03.1960 cannot be accepted.
NC: 2024:KHC:5831 RSA No. 45 of 2019
contended that the suit property to be the joint family property without adducing any cogent evidence either before the trial Court or before the First Appellate Court. Even otherwise as noted above, the attempt made by the appellants before this Court and defendant No.3 relying upon the sale deed dated 10.03.1960 is also of no help. Thus, as rightly taken note of by the First Appellate Court item No.1 being the absolute property of the defendant No.4 and the same having been conveyed in favour of defendant No.5 was not available for partition.
NC: 2024:KHC:5831 RSA No. 45 of 2019
In view of disposal of the main matter, all pending
I.A's are dismissed.
Sd/JUDGE
NS CT:TSM List No.: 2 Sl No.: 6
3 issues framed by the court
Whether item No.2 of the suit schedule property was joint family property purchased from sale proceeds of property sold in 1960.
Whether additional evidence (deed of sale dated 10.03.1960) could be admitted under Order 41 Rule 27 CPC.
Whether a substantial question of law arose regarding the First Appellate Court's refusal to partition item No.2.
2 provisions across 1 enactments
Smt. Neelamma
Smt. Bhagyamma
Srinivasappa (dead) rep. by LRs - Shailashree, Jyotisree, Ganesh, Smt. Bharathi, Smt. Amrutha S., Rakshitha
B. N. Venkatesh
Smt. Varalakshmamma
Sri. B. S. Prasanna Kumar
M.G.S. Kamal
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
