Smt. Savithramma, Vs Smt. Chowdamma

SMT. SAVITHRAMMA, D/O LATE CHICKEERAPPA W/O SRI P ANJANAPPA AGED ABOUT 65 YEARS, R/AT AJJAVARA VILLAGE AND POST, NANDI HOBLI, CHIKKABALLAPUR TALUK CHIKKABALLAPUR-562 101.

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SRI D E RAMEGOWDA S/O LATE CHICKEERAPPA AGED ABOUT 63 YEARS R/AT DINNEHOSHALLI VILLAGE KASABA HOBLI, CHIKKABALLAPUR TALUK CHIKKABALLAPUR -562 101.

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Digitally signed by MADHURI S

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(BY SRI. MANJUNATH G KANDEKAR.,ADVOCATE)

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AND:

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…APPELLANTS

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Location: High Court of SMT. CHOWDAMMA Karnataka W/O CHIKEERAPPA (ORIGINAL DEFENDANT NO.1) SINCE DEAD BY HER LRS AND

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D E VENKATESH ORIGINAL 2ND DEFENDANT SINCE DECEASED BY HIS LRS

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SRI MANJUNATH S/O LATE D E VENKATESH

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AGED ABOUT 51 YEARS,

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SMT BHAGYAMMA D/O LATE D E VENKATESH W/O MANJUNATH AGED ABOUT 48 YEARS,

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R-1 AND 2 ARE R/AT: DINNEHOSAHALLI VILLAGE, KASABA HOBLI, CHIKKABALLAPUR TALUK AND DISTRICT CHIKKABALLAPUR -562 101.

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SRI D E NAGARAJ S/O LATE CHICKEERAPPA AGED ABOUT 67 YEARS, R/AT DINNEHOSAHALLI KASABA HOBLI, CHICKBALLAPUR TALUK AND DISTRICT PIN CODE-562 101.

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SRI D GANESH S/O LATE CHICKEERAPPA AGED ABOUT 60 YEARS, R/AT DINNEHOSAHALLI KASABA HOBLI, CHICKBALLAPUR TALUK AND DISTRICT PIN CODE-562 101.

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SRI P MUNIRAJU S/O PAPAIAH AGED ABOUT 68 YEARS, R/AT PRASHANTHANAGAR DINNENHOSAHALLI ROAD CHICKBALLAPUR PIN CODE-526 101.

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…RESPONDENTS

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(BY SRI. MILAN.B.K, ADVOCATE FOR R-2 SRI. S. NARENDRA, ADVOCATE FOR R-3 & R-4 SRI. B.S. VENKATANARAYANA, ADVOCATE FOR R-5 R-1 IS SERVED AND UNREPRESENTED)

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NC: 2025:KHC:38492 RSA No. 115 of 2024

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 28.08.2023 PASSED IN RA.NO.18/2017 ON THE FILE OF THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, CHIKKBALLAPURA, PARTLY ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 09.12.2016 PASSED IN O.S.NO.43/2010 ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, CHIKKABALLAPUR.

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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 V SRISHANANDA

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ORAL JUDGMENT

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Heard Sri. Manjunath G. Kandekar and Sri. V. S. Venkatanarayanan for Sri. Sudhakar Despande with respect to respondent No.5.

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Plaintiffs have preferred the present second appeal challenging the judgment of the Trial Court in O.S.No.43/2010, whereby their suit can be dismissed and

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in their appeal in R.A.No.18/2017 decreed in part and present appeal is only to the extent of denying the share of the plaintiffs in Item No. 6 of the suit property, which is

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more fully described hereunder and hereinafter referred to

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as 'Disputed Property':

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Property bearing Sy.No.3/1, measuring to an extent of 1-14 guntas including karab of 0-02 guntas, assessed at Rs.1.92, situated at Dinnehosahalli Village, Kasaba Hobli, Chickballapura Taluk bounded on:-

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East by : Channarayappa's land West by : Munirajappa's land North by : Chikkappaiah's land South by : Muniraju's land

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The facts in the nutshell which are utmost necessary for disposal of the present appeal are as under:

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A suit for partition came to be filed by the plaintiffs in O.S.No.43/2010, contending that the plaintiffs and defendants are members of undivided Hindu Joint Family and suit properties including disputed property are the Joint Family Properties. They have further contended that all the plaintiffs and defendant Nos.1 to 4 possess 1/6^th share in the suit properties and sought for decreeing the

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suit. Further, they contended that the sale of Item No.6 of the suit property (the disputed property) in favour of the defendant No.5 which is not for the family necessity and thus, they are entitled for the share in all the properties.

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Defendants entered appearance and filed

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written statement.

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Learned Judge in the Trial Court on due trial, dismissed the suit of the plaintiffs.

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Being aggrieved by the same, plaintiffs filed an appeal in R.A.No.18/2017, before the First Appellate Court.

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Learned Judge in the First Appellate Court, after securing the records, heard the arguments of the parties and on re-appreciation of the material evidence on the record, allowed the appeal in part decreeing the suit of the plaintiffs in respect of all the suit items except suit Item No.6 of the suit schedule properties.

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Being further aggrieved by the same, the

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plaintiffs have filed the present second appeal on the following grounds and the substantial questions of law:

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GROUNDS:

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It is submitted that the judgement and decree of dismissal of the suit in respect of item No.6 of the suit schedule property by the trial court and subsequently by the 1 appellate court is perverse, unjust, illegal, arbitrary and against the facts and evidence available on record.

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It is submitted that the trial court as well as 1 appellate court arrived to conclusion that the suit schedule properties are left behind by Chickeerappa and the plaintiff/defendants 2 to 4 are the joint family members. However, failure to grant relief in respect of item No.6 of the suit schedule property is not justifiable.

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It is submitted that the documents relied upon by the plaintiffs/appellants categorically substantiate that the item No.6 of suit schedule property is also the joint family and ancestral properties based on evidence placed by the plaintiffs/appellants. The 1st appellate court granted the decree for partition and

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separate possession with respect of item No.6 of the suit schedule property is also being one of the joint family and ancestral property. The Defendant No.2 did not have any individual right of the same. There was no any necessity for the purpose of family to sell the said property and passing of the judgement and decree by dismissing the claim of the plaintiffs in respect of item No.6 of the suit schedule property is improper.

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� It is submitted that as on the date of sale dated 26/11/1998 the plaintiffs as well as defendants 3 and 4 were major, such being the case, there was no necessity on the part of the defendant No.2 alone to sell the item No.6 of the suit schedule property. Moreover, khatas of the said properties were got by the second defendant through inheritance. That item No.6 of the suit schedule property was sold for family necessity, there is no any evidence produced on the part of the Defendant No.1 and moreover as on the date of sale, Chowdamma mother of the plaintiffs/appellants and the defendants 2 to 4 was alive. However, the trial court as well as 1 appellate court failed to examine the said fact and passed an illegal and unjust

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judgement and decree of the dismissal of the suit in respect of item No.6 of the suit schedule property.

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� It is submitted that the item No.6 of the suit schedule property is also joint family property, the Second Defendant in the Sale Deed made ar attempt to say that it was his property and whatever the attempt of him to say for family necessity was for his individual family and not for the joint family members or not for the sake appellants/defendants 2 to 4 herein and in view of the said aspect also the judgment and decree of dismissal of the suit in respect of item No.6 of the suit schedule property is not proper and justifiable one.

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It is submitted that, the reasons assigned by the lower appellate court to arrive to conclusion of the dismissal of the suit of the Plaintiff in respect of item No.6 of the suit schedule property is not appreciable.

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That viewed from any diagonal the judgment and decree of the lower court and 1 Appellate court is against facts and circumstances of the case, hence the Appellants seeks leave of this Hon'ble Court to raise any other additional grounds during arguments.

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SUBSTANTIAL QUESTION OF LAW:

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1. Whether dismissal of suit by the 14 appellate court and trial court in respect of item No.6 of the suit schedule property one on the observation of the sale made by the Defendant No.2 in favour of the Defendant No.5 for legal necessity is justifiable?.

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2. Whether the judgement and decree of the dismissal of the suit in respect of item no.6 of the suit schedule property is justifiable despite arriving to conclusion that the said property is joint family property.

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3. Whether the dismissal of the suit is proper is justifiable, despite the suit schedule properties were left behind by Chickeerappa and same are being joint family property/ies of the plaintiffs and the defendants 2 to 4.

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Sri. Majunath G. Kandekar, learned counsel for

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the appellants reiterating the grounds urged in the appeal memorandum vehemently contended that both the Courts

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did not appreciate that there was no legal necessity to alienate the disputed property in favour of the defendant,

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and wrongly dismissed the suit in respect of disputed property.

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It is further contented that the alienation of disputed property came to the knowledge of the plaintiffs only in the year 2010, when they demanded their legitimate share in all suit properties and therefore, the denial of the share in disputed property to the plaintiffs has resulted in grave miscarriage of justice and sought for admitting the appeal for further consideration.

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Per contra, B.S.Venkatanarayana, learned counsel for the purchaser of the disputed property from defendant No.2 supports the impugned judgment.

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Having heard the arguments of both sides, this Court perused the material on record meticulously.

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On such perusal of the material on record, it is crystal clear that except the vague allegation made in the

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plaint as to the alienation of disputed property by defendant No. 2 in favour of defendant No. 5 is not for the

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legal necessity, no other material particulars are

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forthcoming.

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So also in the evidence of the plaintiffs, there is no whisper as to why there was no legal necessity and what was the debt incurred by the joint family for the defendant No.2 who acted as Karta compelled him in alienating the disputed property in favour of defendant No.5.

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Further, there is no material documents placed on record to establish the contentions of the plaintiff with regard to the alienation of disputed property by defendant No. 2 in the status of Karta in favour of defendant No. 5. Moreover, cross examination of the defendants on behalf of the plaintiffs would not also advance the case of the plaintiffs to any extent.

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Learned Judge in the Trial Court dismissed the suit in toto. But the learned Judge in the First Appellate Court on re-appreciation of the very material evidence on

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record held that plaintiffs are also entitled for the share in

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the suit property in view of the fact that the common prepositus died intestate and the suit properties are ancestral properties.

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Therefore, alienation made by Karta in favour of defendant No.5 for the family necessity is saved by the judgment of the First Appellate Court as there was no proper pleading and proof thereof for establishing that defendant No.2 sold the disputed property in favour of defendant No.5 for his personal gain.

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Accordingly, this Court is of the considered opinion that the none of the grounds urged in the appeal memorandum would be helpful in advancing the case of the appellants in respect of substantial questions of law which needs to be adjudicated in this appeal after admitting the appeal.

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