Sri M C Gangadhara Vs Sri C.K. Somashekar

SMT. C.K.NALINA, D/O. SRI. B.KUMARASWAMY, W/O. NAGENDRAPPA, AGED ABOUT 41 YEARS, RESIDING AT NO.368/19, BESTHAR BLOCK, 3^RD CROSS, SUYAGE FARM ROAD, VIDYARANYAPURAM, MYSORE-570008.

¶27

…RESPONDENTS

¶28

(R1 TO R5 ARE SERVED AND UNREPRESENTED; V/O/D 25.06.2024, NOTICE TO R6 IS DISPENSED WITH)

¶29

THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE, 1908.

¶30

3 - NC: 2025:KHC:46578 RSA No. 1059 of 2020 C/W RSA No. 1024 of 2020

¶31

HC-KAR

¶32

IN RSA NO.1024/2020:

¶33

BETWEEN:

¶34

SRI. M.C.GANGADHARA, S/O. CHANNABASAPPA, AGED ABOUT 52 YEARS, IUPD LAYOUT, 5^TH BLOCK DAVANAGERE, KARNATAKA-577004

¶35

…APPELLANT

¶36

(BY SRI. GIRIDHAR S V., ADVOCATE)

¶37

AND:

¶38

SRI. C.K. SOMASHEKAR, S/O. B.KUMARASWAMY, AGED ABOUT 39 YEARS, AGRICULTURIST, RESIDING AT MATADA KURUBARA HATTI, CHITRADURGA, KARNATAKA-577501.

¶39

SRI. B.KUMARASWAMY, S/O. SRI. BORAPPA, AGED ABOUT 72 YEARS, RESIDING AT MATADA KURUBARA HATTI, CHITRADURGA, KARNATAKA-577501.

¶40

SMT. SUDHA MANI, W/O. SRI. B.KUMARASWAMY, AGED ABOUT 64 YEARS, RESIDING AT MATADA KURUBARA HATTI, CHITRADURGA, KARNATAKA-577501.

¶41

SRI. K.PRAHALAD, S/O. SRI. B.KUMARASWAMY, AGED ABOUT 45 YEARS, RESIDING AT MATADA KURUBARA HATTI,

¶42

4 - NC: 2025:KHC:46578 RSA No. 1059 of 2020 C/W RSA No. 1024 of 2020

¶43

HC-KAR

¶44

CHITRADURGA, KARNATAKA-577501.

¶45

SMT. K.UMA, D/O. SRI. B.KUMARASWAMY, W/O. BASAVARAJAPPA, AGED ABOUT 43 YEARS, RESIDING AT MATADA KURUBARA HATTI, CHITRADURGA, KARNATAKA-577501.

¶46

SMT. C.K.NALINA, D/O. SRI. B.KUMARASWAMY, W/O. NAGENDRAPPA, AGED ABOUT 41 YEARS, RESIDING AT NO.386/16, BESTHAR BLOCK, 3^RD CROSS, SUGAR FARM ROAD, VIDYARANYAPURAM, MYSORE-570008.

¶47

…RESPONDENTS

¶48

(R1 TO R5 ARE SERVED AND UNREPRESENTED; V/O/D 27.07.2021, NOTICE TO R6 IS DISPENSED WITH)

¶49

THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE, 1908.

¶50

THESE REGULAR SECOND APPEALS ARE LISTED FOR FINAL HEARING, THIS DAY, JUDGMENT IS DELIVERED AS UNDER:

¶51

ORAL JUDGMENT

¶52

In RSA No.1059/2020

¶53

Sri. Giridhar S.V., counsel for the appellant, has appeared

¶54

in person.

¶55

5 - NC: 2025:KHC:46578 RSA No. 1059 of 2020 C/W RSA No. 1024 of 2020

¶56

HC-KAR

¶57

Notice to the respondents was ordered on 07.04.2022. A perusal of the office note depicts that respondents 1 to 5 are served and unrepresented. They have neither engaged the services of an advocate nor conducted the case as a party in person.

¶58

A perusal of the daily order sheet depicts that notice to respondent No.6 is dispensed with vide order dated 25.06.2024.

¶59

In RSA No.1024/2020

¶60

Sri. Giridhar S.V., counsel for the appellant, has appeared in person.

¶61

Notice to the respondents was ordered on 05.11.2020. A perusal of the office note depicts that respondents 1 to 5 are served and unrepresented. They have neither engaged the services of an advocate nor conducted the case as a party in person.

¶62

A perusal of the daily order sheet depicts that notice to respondent No.6 is dispensed with vide order dated 27.07.2021.

¶63

6 - NC: 2025:KHC:46578 RSA No. 1059 of 2020 C/W RSA No. 1024 of 2020

¶64

HC-KAR

¶65

Both the appeals are from the Court of II Addl. District and Sessions Judge, Chitradurga.

¶66

For convenience's sake, the parties are referred to as per their rankings before the Trial Court.

¶67

The plaint averments are as follows:

¶68

The plaintiff and defendants 1 to 5 are members of a Hindu Undivided Joint family. It is stated that the suit schedule properties are their ancestral and joint family properties. The plaintiff, defendants 1, 3, 4 and 5 have equal rights and share in the suit schedule properties; none of them has got independent right to alienate the suit schedule properties. All of them are in joint possession and enjoyment of the suit schedule properties, and there is no partition.

¶69

It is stated that the plaintiff demanded partition, the defendants 1 to 5, in collusion with each other, dodged time on one or another pretext. Ultimately, they refused to affect the partition of the suit schedule properties. Defendants 1 to 5, in collusion with each other, canvassed that they would alienate the suit schedule Item No.1 property in favor of the sixth

¶70

7 - NC: 2025:KHC:46578 RSA No. 1059 of 2020 C/W RSA No. 1024 of 2020

¶71

HC-KAR

¶72

defendant to knock off the plaintiff's lawful share and right over the said property. Hence, he filed a suit seeking the relief of partition.

¶73

After service of summons, the first defendant appeared and filed a written statement denying the plaint averments. He contended that in 2007, he was facing hard days in running a drama company for want of collections due to the failure of the rains. Hence, he approached the sixth defendant and requested him to give a loan of Rs.3,60,000/- with an assurance that he would return the amount within a year. The sixth defendant agreed to advance the loan and demanded for execution of a mortgage deed. However, he got the document prepared as an Agreement of Sale. He also contended that the sixth defendant

¶74

had filed a suit in O.S.No.333/2009 for the relief of specific performance. Among other grounds, he prayed for dismissal of the suit.

¶75

The sixth defendant filed a separate written statement and denied the plaint averments. He has specifically contended that the first defendant is none other than the father of the plaintiff and had executed a sale agreement in his favor and he

¶76

8 - NC: 2025:KHC:46578 RSA No. 1059 of 2020 C/W RSA No. 1024 of 2020

¶77

HC-KAR

¶78

has filed suit for specific performance. Among other grounds, he prayed for dismissal of the suit.

¶79

Based on the above pleadings, the Trial Court framed issues. The parties led evidence and documents were exhibited. The Trial Court vide Judgment and Decree dated 23.02.2016 partly decreed the suit. Aggrieved by the judgment and decree of the Trial Court, the plaintiff filed an appeal in R.A.No.24/2016, and the sixth defendant filed an appeal in R.A.No.25/2016. On an appeal, the First Appellate Court vide common Judgment and Decree dated 19.02.2020 allowed the appeal filed by the plaintiff in R.A.No.24/2016 and dismissed the appeal filed by the sixth defendant in R.A.No.25/2016. Hence, the sixth defendant has filed the captioned appeal under Section 100 of CPC.

¶80

As could be seen from the daily order sheet, the appeals were listed on 27.08.2024. On that day, the appeals were admitted, and the following substantial question of law was framed:

¶81

Whether the finding recorded by both the

¶82

Courts below is justified in dismissing the suit of

¶83

9 - NC: 2025:KHC:46578 RSA No. 1059 of 2020 C/W RSA No. 1024 of 2020

¶84

HC-KAR

¶85

the plaintiff in O.S.No.30/2011 in a suit for

¶86

specific performance with that of the finding recorded by the Trial Court in O.S.No.16/2009, dismissing the suit of the plaintiff in respect of Item No.1 of the suit schedule property?

¶87

Counsel for the appellant has urged several

¶88

contentions. Heard the arguments and perused the appeal papers and the records with care.

¶89

The facts are sufficiently said and do not require reiteration. Contending that the suit-scheduled properties are ancestral and joint family properties, the plaintiff sued his father and siblings seeking partition. The properties which are the subject matter of the present suit were fully described in the Schedule of properties annexed to the plaint. The controversy revolves around Item Nos. 1 and 5.

¶90

Item No.1 is described as under:

¶91

Land bearing Sy. No.2/2 measuring 01 Acre 05 Guntas, situated at Matada Kurubarahatti Village, Chitradurga Taluk and bounded as follows: - On the East:- Land belongs to B.Kumaraswamy. On the West:- Land belongs to Mallikarjunappa.

¶92

10 - NC: 2025:KHC:46578 RSA No. 1059 of 2020 C/W RSA No. 1024 of 2020

¶93

HC-KAR

¶94

On the North: - Land belongs to Peer Sab. On the South:- NH-4.

¶95

"The above said land is alienated for non-agricultural purposes and there is a residential house, which is more fully described in Item No.5 of the plaint schedule and a basement to construct a house measuring 33 ft X 36 ft. situated thereon."

¶96

Item No.5 is described as under:

¶97

Asbestos sheet-roofed house bearing Katha No.591/P measuring 7.30 Mts. X 14.90 Mts., situated at the South-West corner in Item No.1 and bounded as follows: -

¶98

On the East: - Land belongs to B.Kumaraswamy. On the West: - Land belongs to Mallikarjunappa. On the North: - Land belongs to B.Kumarswamy. On the South: - NH-4.

¶99

The father, being the sole and absolute owner of the property (Item No.1), had executed an agreement for sale in favor of the sixth defendant; hence, he was made a party to the suit. The Trial Court extenso referred to the material on record and declined to grant a share in Item No.1: however, on appeal, the First Appellate Court misdirected itself on the evidence/ applicable legal principles about Item No.1. It is

¶100

11 - NC: 2025:KHC:46578 RSA No. 1059 of 2020 C/W RSA No. 1024 of 2020

¶101

HC-KAR

¶102

noted that Item No.5 of the schedule is an intrinsic and inseparable part of Item No.1, and the Court having conclusively held Item No.1 to be the self-acquired property of the owner, could not have legally granted a share in Item No.5. Moreover, the First Appellate Court failed to appreciate the material evidence on record, vis-à-vis the pleadings to ascertain as to whether it has been proved that Item No.1 was a joint family property or otherwise. The adjudication of the said question depends on the evidence of the plaintiff and not upon the findings in the suit for specific performance. Except for stating that Item No.1 is an ancestral and joint family property, the plaintiff has failed to substantiate the same. Furthermore, the Trial Court adjudicated the suit for specific performance effectively and held that Item No.1 (suit schedule property in the specific performance suit) was the absolute property of the father and not a joint family property.

¶103

As Item No.5 is merely a component of the larger Item No.1, and the Court has determined Item No.1 to be selfacquired property, it follows that no share in Item No.5 can be claimed as a matter of right. The finding that Item No.1

¶104

12 -

¶105

NC: 2025:KHC:46578 RSA No. 1059 of 2020 C/W RSA No. 1024 of 2020

¶106

HC-KAR

¶107

constitutes self-acquired property necessarily extends to Item No.5, which is part and parcel thereof. Thus, the grant of a share in Item No.5 is unsustainable in law.

¶108

As already noted above, the father, being the absolute owner of the self-acquired property (Item No.1), had already executed an agreement for sale. Consequently, the claim for a share and allotment of a share in item Nos.1 and 5 is untenable. I may venture to say that the partition suit instituted by the son is to deprive the benefits of the agreement for sale executed by his father.

¶109

For the reasons stated above, the appeals are liable to be allowed. The substantial question of law is answered accordingly.

¶110

The Judgment and Decree dated 23.02.2016, passed by the I Addl. Senior Civil Judge, Chitradurga, in O.S.No.16/2009, insofar as the rejection of share in Item No.1 is upheld. The grant of shares by the Appellate court in Items No1 and 5 is set aside. The Judgments and Decrees dated 19.02.2020, passed by the II Addl. District and Sessions Judge, Chitradurga, in R.A.No.24/2016 and R.A.No.25/2016 are set

¶111

13 - NC: 2025:KHC:46578 RSA No. 1059 of 2020 C/W RSA No. 1024 of 2020

¶112

HC-KAR

¶113

aside. R.A.No.24/2016 filed by the plaintiff is dismissed. R.A.No.25/2016 filed by the sixth defendant is allowed. The Registry concerned is directed to draw the decree accordingly.

¶114

Resultantly, the Regular Second Appeals are

¶115

allowed .

¶116

Because of the disposal of the appeal, pending interlocutory applications if any are disposed of and interim direction if any stands discharged.

¶117

SD/(JYOTI M) JUDGE

¶118

TKN List No.: 1 Sl No.: 30

Sri M C Gangadhara v. Sri C.K. Somashekar

Case brief

What is this about?

What did the court decide?

Sri M C Gangadhara v. Sri C.K. Somashekar

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Statutes considered

Procedural history

Parties & counsel

Coram

Case details

Similar cases

Vinpla Plating Private Limited Vs Rapsri Engineering Products Company Limited

M/S Menzies Aviation Bobba Bengaluru Pvt. Ltd. Vs the Official Liquidator

M/S Artek Enterprises Private Limited Vs Official Liquidator of M/S Ordyn Technologies Private Limited

Sri M C Gangadhara Vs Sri. B. Kumara Swamy

Ramachandrappa Vs Renukamma

Sri M Srinivasa Vs Smt Sarojamma