C.Venkatesulu S/O Late C. Venkataramanappa Vs Smt.Ammisetty Parvathi W/O Ammisetty

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NC: 2025:KHC-D:7477-DB RFA No.100146 of 2019

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 10^TH DAY OF JUNE 2025

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PRESENT THE HON'BLE MR. JUSTICE R.NATARAJ

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AND

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THE HON'BLE MR. JUSTICE RAJESH RAI K

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REGULAR FIRST APPEAL NO.100146 OF 2019 (PAR)

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BETWEEN:

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C.VENKATESULU, S/O. LATE C. VENKATARAMANAPPA @ APPAIAH, AGED ABOUT 57 YEARS, R/O. DOOR NO.120, WARD NO.17, ANANTHAPUR ROAD, BALLARI-583102.

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C.KRISHNAMURTHY, S/O. LATE C.VENKATARAMANAPPA @ APPAIAH, AGED ABOUT 59 YEARS, R/O. DOOR NO.120, WARD NO.17, ANANTHAPUR ROAD, BALLARI-583102.

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Digitally signed by MOHANKUMAR B SHELAR Location: HIGH COURT OF KARNATKA DHARWAD BENCH Date: 2025.06.13 16:38:15 +0530

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C.NIRMALADEVI, W/O. LATE C.GOVINDHARAJALU, AGED ABOUT. 59 YEARS, R/O. PLAT NO.328, RAGHAVENDRA COLONY, BALLARI-583102.

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C.SHASHANK, S/O. LATE C.GOVINDHARAJALU, AGED ABOUT 59 YEARS, R/O. PLAT NO.328, RAGHAVENDRA COLONY, BALLARI-583102.

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G. SARASWATHI. W/O. G.RAMAPRASAD, AGED ABOUT 51 YEARS, R/O. DOOR 3/582/A, SOMANATH NAGAR, ANANTAPUR, ANDHRA PRADESH, NOW COME OVER TO BALLARI,

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RAGHAVENDRA COLONY, BALLARI-583102.

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V.VIJAYALAKSHMI, W/O. V.SRINIVASULU, AGED ABOUT 47 YEARS, R/O. C/O. RAVI NILAYA, 3/21, 2^ND CROSS, NEAR VIJAYA BANK, MOODALPALYA, BENGALURU-560072, NOW COME OVER TO BALLARI, RAGHAVENDRA COLONY, BALLARI-583102.

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…APPELLANTS

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(BY SRI. B.CHIDANANDA, ADVOCATE)

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AND:

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SMT. AMMISETTY PARVATHI, W/O. AMMISETTY SHIVASHANKAR, AGED ABOUT 65 YEARS, R/O. VIEHOTFER PLATZ 10, 4517 ESSEN, IN GERMANY PRESENTLY CAMP AT DOOR NO.120, WARD NO:17, OPPOSTIRE TO BASAVARAJESWARI PUBLIC SCHOOL, ANANTHAPUR ROAD, BALLARI-583102.

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C. ROHITH RAJ, S/O. LATE C. GOVINDHARAJALU, AGED ABOUT 37 YEARS, R/O. PLAT NO.328, RAGHAVENDRA COLONY, BALLARI-583102.

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…RESPONDENTS

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(BY SRI. V.M.SHEELVANT, ADVOCATE FOR R1)

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(NOTICE TO R2 IS DISPENSED WITH)

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THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER 41 RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED 07.12.2014 PASSED IN O.S.NO.221/2014 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE BALLARI, DISMISSING THE SUIT FILED FOR PARTITION.

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

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CORAM:

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THE HON'BLE MR. JUSTICE R.NATARAJ AND THE HON'BLE MR. JUSTICE RAJESH RAI K

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JUDGMENT

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(PER: THE HON'BLE MR. JUSTICE R.NATARAJ)

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The unsuccessful plaintiffs No.1, 2 3(a), 3(b), 4 and 5 in O.S. No.221/2014 on the file of the I Additional Senior Civil Judge, Ballari, have filed this Regular First appeal challenging the judgment and decree dated 07.12.2018 passed therein by which the suit filed by them for partition and separate possession of their 5/6^th share in the suit schedule properties was dismissed.

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For the sake of convenience and easy

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understanding, the parties shall henceforth be referred to as they were arrayed before the Trial Court.

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The plaintiffs claimed that their father had suffered severe loss in business and, in order to safeguard the interest of the members of the family and to insulate the family against any claim by the creditors, he had purchased the suit schedule ‘A’ property in the name of the defendant on 10.12.1981. They claimed that the sale deed in favour of defendant No.1 was

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executed nominally and the consideration for purchase of the suit schedule ‘A’ property was paid by the father. They claimed that the defendant, who was married on 04.01.1976 to her maternal uncle, lived for a short period in India and shifted to Germany. They, therefore, claimed that suit schedule ‘A’ property was purchased out of the funds of the joint family and therefore, remained a joint family property. They claimed that the father had let out front portion of the property to Smt. Kalavathi for running a hotel and, after his death, the defendant visited the suit property to usurp it and alienate the same taking advantage that it stood in her name. The plaintiffs claimed that the defendant caused a notice which was suitably replied by them and thereafter, they demanded the defendant to handover their legitimate share. They claimed that the defendant initially agreed, but, at the instigation of her husband, she refused to give any share and issued a notice to Smt. Kalavathi on 30.06.2014 to vacate the portion of the suit schedule property. Plaintiffs No.1 and 3 were running a service station in the suit schedule ‘A’ property from the year 1988 after obtaining licence from the concerned authorities and were paying the municipal tax, electricity bill and water bill etc.

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Therefore, they contended the suit schedule ‘A’ property was the property of the joint family where they too had a share which the defendant failed to acknowledge. Thus, they filed the suit for partition and separate possession of the suit schedule ‘A’ property. In so far as suit schedule ‘B’ property is concerned, they contended that the said property belonged to the joint family and that they were entitled to a share in that property also.

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The defendant contested the suit and claimed that

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she had lawfully purchased the suit schedule ‘A’ property for valid consideration and that the sale deed was executed in her name, and she was represented by her father. She claimed that the consideration for purchase of suit schedule ‘A’ property was paid by her husband who was transferring the amounts to her father. She therefore, contended that the suit schedule ‘A’ property was her absolute property where neither her father nor the plaintiffs had any share. She claimed that one of the rooms in suit schedule ‘A’ property was permitted to be occupied by plaintiff No.1 as he was authorized to take care of the property in her absence. She claimed that her father and mother were

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also permitted to stay in the suit property. She claimed that the plaintiff No.2 was not in the suit property, but was residing in Shahapura, as he was working as a Depot Manager in KSRTC at Shahapura, Yadgiri District. Likewise, she claimed that plaintiff No.3 was residing at Raghavendra Colony as mentioned in the cause title of the plaint, while plaintiff No.4 was residing at Anantapuram in Andhra Pradesh along with her husband, and plaintiff No.5 was residing in Bengaluru. She, therefore, contended that except plaintiff No.1, none of the other plaintiffs were residing in the suit schedule property. She claimed that none of the plaintiffs have any share in the suit property as it was her absolute property. She claimed that she never permitted plaintiffs No.1 and 3 to run a service station in the suit property. She claimed that, after the death of her parents, she came to attend obsequies and informed plaintiffs No.1 and 3 that whatever permission that was granted to plaintiff No.1 to occupy one of the rooms was terminated and she requested all others to vacate and shift elsewhere. Plaintiff No.1, in order to undermine the right of the defendant, indefinitely squatted on the property by taking the assistance of other plaintiffs. She claimed that other four rooms were in her occupation and

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whenever she came down to India, she was using the four rooms and had kept the rooms under lock and key. Nonetheless, plaintiffs No.1 and 3 were trying to harass her and therefore, she filed O.S. No.557/2014 for perpetual injunction. In so far as the suit schedule ‘B’ property is concerned, she contended that it was sold long back to a third party. Hence, the plaintiffs were not entitled to any share in the suit schedule ‘B’ property.

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Based on the above contentions, the Trial Court

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framed the following issues:

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1. Whether the plaintiffs prove that the suit schedule properties are purchased by their father Sri. Venkataramanappa in the name of defendant out of the joint earnings and as such, they are joint family properties?

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2. Whether defendant proves that the suit schedule properties are her absolute properties?

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3. Whether plaintiffs are entitled for the relief of partition? If so, at what order?

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4. What Order or Decree?

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Plaintiff No.1 was examined as P.W.1 and marked Exs.P.1 to P.102, and a witness was examined as P.W.2. On the other hand, the defendant was examined as D.W.1 and she marked Exs.D.1 to D.30, and her husband was examined as D.W.2.

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Based on the oral and documentary evidence, the Trial Court answered the issues against the plaintiffs and held that the plaintiffs failed to prove that suit schedule ‘A’ property was purchased by their father in the name of the defendant out of the joint earnings and therefore, it was not a joint family property. It also held that defendant had proved that the suit schedule ‘A’ property was her absolute property and therefore, the plaintiffs were not entitled to any share in the suit schedule property. Consequently, the Trial Court dismissed the suit in terms of the judgment and decree dated 07.12.2018. Being aggrieved by the said judgment and decree, the plaintiffs are before this Court in this regular first appeal.

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Learned counsel for the plaintiffs contended that the suit schedule ‘A’ property was purchased by the father, nominally, in the name of the defendant. He claimed that the consideration for purchasing the suit schedule ‘A’ property

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under the sale deed dated 10.12.1981 executed in the name of the defendant was paid by the father of the plaintiffs namely Sri. C.Venkataramanappa. In order to justify this, learned counsel relied upon the sale deed dated 10.12.1981 to contend that the defendant was represented by Sri. C.Venkataramanappa as her Power of Attorney. He also referred to the endorsements made on the sale deed regarding the payment of sale consideration and submitted that the consideration was paid in cash by Sri. C.Venkataramanappa. He, therefore, contends that the fact that Sri. C.Venkataramanappa had paid consideration and that he represented the defendant, established that it was the father who took an active role in bringing about the sale in the name of the defendant. He contends that D.W.1 specifically admitted

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the fact that the father of the plaintiffs had suffered loss in business. He, therefore, contends that the claim of the plaintiffs that the father had purchased the suit schedule ‘A’ property in the name of the defendant to avoid creditors, is sufficiently established. He further contends that an issue was framed by the Trial Court as to whether defendant proves that the suit schedule properties were her absolute properties. He contends

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that, in the written statement filed by the defendant, she specifically claimed that she purchased the suit schedule ‘A’ property from out of her own source of income and that the same is not only recited in the sale deed but also can be gathered from subsequent acts such as transfer of municipal records to the name of the defendant, payment of taxes etc. He contends that in her examination-in-chief, the defendant specifically deposed that her husband had sent the funds from his bank at Germany by money transfer firstly to Syndicate Bank, Bangalore Road, Ballari, then to Canara Bank, Car Street, Ballari, Indian Over Seas Bank, Ballari and later to State Bank of India, Ballari. He contends that the defendant deposed that all these money transfers were made before the purchase of the property and during the lifetime of her father directly to his bank account. He, therefore, contends that the defendant was bound to produce some document to establish that either she or her husband had transferred the consideration paid under the sale deed dated 10.12.1981 through transfers to the account of the father. He contends that though the defendant contended that funds were transferred to the account of the father and she marked Exs.D.1 to D.28, in her cross-examination, when Ex.D.2

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was confronted, she admitted that the amount that was transferred was to her mother-in-law’s account. Likewise, the name of mother-in-law was found in Ex.D.5. He contended that surprisingly, the defendant made a U-Turn and claimed that her husband used to send money to her mother. She admitted in Ex.D.2 & Ex.D.5 that there was no mention that amount was transferred to the father of the plaintiffs. He, therefore, contended that while the defendant claimed that she had transferred money to her father to enable him to purchase the property in her name, during the course of cross-examination, she resiled from this and claimed that the money was transferred by her husband to his mother. He therefore, contends that the name of the plaintiffs that the suit ‘A’ property was purchased nominally in the name of the defendant is, therefore, substantiated and the Trial Court committed an error in not considering the case from this perspective.

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He further contends that if the defendant was the

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lawful owner of the suit schedule ‘A’ property, then she was bound to explain under what circumstances, she had allowed the plaintiff to use the room in the said property and commence

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a service station. He contends that the plaintiffs were living in the suit property until father died and the possession of the suit property was with the plaintiffs until they were unlawfully dispossessed by the defendant. Therefore, he contends that the plaintiffs have an undivided share in the suit schedule ‘A’ property and hence, entitled to 1/5^th share therein. In so far as the suit schedule ‘B’ property is concerned, learned counsel submitted that the defendant admitted in her cross-examination that suit schedule ‘B’ property was owned by the father of plaintiff which she unilaterally sold in the year 2013. He, therefore, contends that the plaintiffs have an undivided share in suit schedule ‘B’ property also. Thus, he contends that the Trial Court must have decreed the suit. However, it went at a tangent in holding that the defendant was in Germany from the year 1976 and that they had sent money to enable the father to purchase of suit schedule ‘A’ property in the name of the defendant. He, therefore, contends that the case of the plaintiffs is, by and large, admitted by the defendant and hence, the plaintiff were entitled to an undivided share in the suit schedule properties.

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The learned counsel for the defendant, on the other hand, contended that after the marriage of the defendant in the year 1976, she shifted to Germany where her husband was working. He contends that even while the defendant was in Ballari, she had entered into an agreement to purchase the suit schedule ‘A’ property and had paid a sum of Rs.1,000/- as part of agreed sale consideration. He contends that the defendant had allowed her parents to live in the suit schedule ‘A’ property and also permitted plaintiff No.1 to be in possession of one of the rooms in the said property so as to enable him to take care of the property in the absence of the defendant. He contends that, after she went to Germany, her husband had transferred money to his mother who was also residing in suit schedule ‘A’ property along with the parents of the plaintiffs/defendants. He contends that the mother of the defendant was not worldly wise and it was the father of the plaintiffs who utilized the money that was handed over to him to pay of balance sale consideration of Rs.34,000/-. He contends that the defendant desired to come to Ballari to conclude the sale transaction, however, since the defendant and her husband had come to India just before execution of the sale deed, they chose it

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appropriate to appoint her father as Power of Attorney. Accordingly, he contends that the sale deed dated 10.12.1981 was brought about in the name of the defendant. He, therefore, contends that the claim of the plaintiffs that the suit schedule ‘A’ property was purchased by their father, nominally, in the name of the defendant is without any basis. He contends that the plaintiffs have not disputed the fact that the mother-in-law of the defendant was also residing in the suit schedule ‘A’ property along with the parents of the defendant. He, therefore, contends that the suit property was purchased when everything was fine in the family and now, after the death of the parents of the defendant, the plaintiffs have shown their true colours by laying a claim to the suit schedule ‘A’ property. He contends that the transaction has happened in the year 1981 and after nearly 33 years, the plaintiffs have come out with this false and frivolous case contending that it was their father who purchased the suit schedule ‘A’ property, nominally, in the name of the defendant. He contends that the plaintiffs have not produced any document to show that their father had suffered any loss in the business and even after suffering loss, he had some source of income from which he could purchase the suit schedule ‘A’

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property in the name of the defendant. Therefore, he contends that the Trial Court was justified in holding that the defendant

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was the lawful purchaser of the suit property and the plaintiff had nothing to do with the same. Therefore, he contends that the impugned judgment and decree of the Trial Court is just and proper and no interference is warranted.

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Learned counsel for the defendant further contends that suit schedule ‘B’ property is disposed of long back, which is known to the plaintiffs. He contends that the plaintiffs have not produced any document to establish that the suit schedule ‘B’ property belonged to the father of the plaintiffs and that they had a share in the same. Therefore, he contends that the suit was rightly dismissed by the Trial Court.

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After hearing the learned counsel for the plaintiffs

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and the learned counsel for the defendant, the following points arise for consideration:

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i) Whether the plaintiffs proved that the suit schedule ‘A’ property was purchased by their father in the name of the defendant, nominally, and whether the plaintiffs had proved that they had any share in the suit property?

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ii) Whether the plaintiffs have proved that the suit schedule ‘B’ property was also the property of their father and that they had an undivided share therein?

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A perusal of the plaint shows that the plaintiffs claimed that their father had suffered loss in business and that, in order to protect the family from creditors, he purchased suit schedule ‘A’ property in the name of the defendant. The Trial Court, therefore, framed an issue: “Whether the plaintiffs proved that the suit schedule ‘A’ property was purchased out of the funds of the joint family”. Therefore, the burden of proving the aforesaid was on the plaintiffs. The plaintiffs were, therefore, bound to prove this fact by adducing proper and sufficient evidence. A perusal of the documentary evidence produced before the Trial Court shows that the plaintiffs did make no effort in this regard. They did not produce the returns of income of their father to show that he had suffered some loss in the business. No doubt, D.W.1 had admitted that her father had suffered some loss in the business. However, the plaintiffs have not produced any document to show that despite such

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losses, their father had any source of income to purchase suit schedule ‘A’ property in the name of the defendant. Contrarily, the defendant claimed that the suit schedule ‘A’ property was purchased out of her own funds and that since she was not able to come to Ballari to conclude the transaction, she and her husband had chosen to appoint her father as Power of Attorney. D.W.2 deposed that the amounts were transferred through bank transfers to the account of his mother who, at that point in time, was residing with the father of defendant. He deposed that the money that was transferred to his mother was used to pay sale consideration under the sale deed dated 10.12.1981. Thus, he deposed that the suit schedule ‘A’ property is the full and absolute property of the defendant in which the plaintiffs have no right, title or interest. The defendant had produced some documents to establish that some monies were transferred by her husband to his mother at Ballari. The plaintiffs do not dispute that the mother-in-law of the defendant was residing in the suit schedule properties along with their parents. Therefore, having regard to the nature of relationship between the plaintiff and the defendant, their parents and the mother-in-law, it is quite probable that the amount that was

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sent was utilized towards paying consideration for purchase of suit schedule ‘A’ property in the name of defendant No.1. This apart, the dates of transfer of the amounts are just before the execution of the sale deed in the name of the defendant. Under the circumstances, it appears more than probable that the consideration for purchase of the suit schedule ‘A’ property was not from the joint family funds, but was by the defendant and her husband. Therefore, the plaintiffs did not have any right, title or interest in the suit schedule ‘A’ property. The plaintiffs have produced voluminous documentary evidence which have no bearing on the crucial facts pleaded by them. The plaintiffs are hinging their case on two statements made by the defendant namely: i) that her father had suffered some loss in the business; and ii) that though she claimed in her examination-in-chief that the amounts were transferred by her husband to her father, in the cross-examination, she claimed that the amounts were transferred by her husband to his mother.

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We cannot lose sight of the fact that the sale deed was brought about in the year 1981, and at that point of time,

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the defendant was not residing in Ballari, but was residing in Germany along with her husband. The husband of the defendant was working and the same is evident from the fact that he was transferring money to his mother. The husband of the defendant, who was examined as D.W.2, has deposed that the defendant and he desired to come down to Ballari for the purpose of getting the sale deed executed. However, since they had come to Ballari few days ago, they felt it proper to appoint the father of the defendant as Power of Attorney. Therefore, it appears that, for the sake of convenience, the father of the plaintiffs acted as Power of Attorney and, for all practical purposes, it was the defendant who was the purchaser of the suit schedule ‘A’ property. Even if it is assumed that the father of the defendant had purchased the suit schedule ‘A’ property in

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the name of the defendant, by virtue of Section 14 of the Hindu Succession Act, 1956 she became the full and absolute owner of the suit schedule ‘A’ property. The plaintiffs were unable to establish that the suit schedule ‘A’ property was nominally purchased in the name of the defendant and that they too had an undivided share in the said property. Under the circumstances, the Trial Court was justified in holding that the

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plaintiffs have failed to prove that the suit schedule ‘A’ property was purchased out of the funds of the joint family. Accordingly, the point No.1 framed by this Court is answered and it is held that plaintiffs failed to prove that the ‘A’ schedule property was nominally purchased by their father in the name of defendant.

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In so far as suit schedule ‘B’ property is concerned

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though the plaintiff claimed that it was also the property of their father, not even a scrap of paper was produced in that regard before the Trial Court. There is not even any pleading or oral evidence to establish that the suit schedule ‘B’ property belongs to the family or to the father of the plaintiffs. The plaintiffs are trying to take advantage of certain statements made by D.W.1 in her cross-examination where, she claimed that suit schedule ‘B’ property was disposed of by her long back which was known to the plaintiffs. When the plaintiffs approached the Court seeking for substantive relief of partition of their share in the suit schedule properties, they were bound to establish that the suit schedule ‘B’ property was also owned by their father and belonged to the joint family. Sadly, no effort is made in this regard by the plaintiffs. They have also not disputed that the

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suit schedule ‘B’ property is disposed of long back. Therefore, the plaintiffs are not entitled to any relief even in so far as suit schedule ‘B’ property is concerned. A reading of the impugned judgment and decree of the Trial Court shows that the Trial Court has considered the evidence adduced before it in great detail and has referred to each and every document produced by the plaintiffs as well as the defendant to return a finding that the plaintiffs are not entitled to any share in the suit properties.

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In view of the above, we do not feel it necessary to interfere with the finding of fact recorded by the Trial Court. Consequently, this appeal lacks merit and is dismissed.

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Sd/(R.NATARAJ) JUDGE

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Sd/(RAJESH RAI K) JUDGE

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KMS Ct:vh

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List No.: 1 Sl No.: 37

C.Venkatesulu S/O Late C. Venkataramanappa v. Smt.Ammisetty Parvathi W/O Ammisetty

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C.Venkatesulu S/O Late C. Venkataramanappa v. Smt.Ammisetty Parvathi W/O Ammisetty

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