Sri K v Babu Vs Narayanamma

THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 08.07.2024 PASSED IN R.A.NO.49/2017 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, CHINTAMANI, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 06.07.2017 PASSED IN O.S.NO.167/2011 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, CHINTAMANI.

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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 H.P.SANDESH

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ORAL JUDGMENT

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This matter is listed for admission and I have heard learned counsel for the appellants and learned counsel for caveator-respondent Nos.1 to 5.

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The suit in O.S.No.167/2011 is filed for the relief of partition and separate possession and for declaration that the sale deeds dated 17.11.2011 and 26.08.2016 are not binding on the rights of the plaintiffs over the suit schedule properties. The specific case of the plaintiffs before the Trial Court is that suit schedule item No.1 is acquired by their mother Smt. Muniyamma, Wife of late Venkatarayappa. The suit schedule properties are joint family properties of themselves and defendant No.1. The suit schedule item No.1 is acquired by

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their mother for a valuable consideration under a registered sale deed dated 03.09.2001 from one H.M. Rajanna. Katha and pahanies are also mutated by virtue of registered sale deed in the name of said Muniyamma and there was no partition. It is contended that their mother not at all executed any document in respect of the suit schedule properties nor alienated the same. Hence, they have got share over the suit schedule properties and inspite of demand, the defendant No.1 refused to allot any share. Hence, they filed the suit.

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In response to the suit summons, the defendants appeared through their counsel. The defendant No.1 filed the written statement contending that there is no dispute with regard to acquisition of schedule properties by their mother Muniyamma. According to him, said Muniyamma acquired the property by alienating other property out of his self-earnings. The plaintiffs are not in possession of the suit schedule properties and are not the joint family properties. Hence, prayed to dismiss the suit.

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The defendant No.2 also filed the written statement

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contending that the properties are purchased in the name of

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Muniyamma, which are her self-acquired properties. The defendant No.1 along with his wife and his minor children represented by their father defendant No.1 jointly sold item No.1 of the suit schedule property in his favour for a valuable consideration under a registered sale deed dated 17.11.2011 and possession is also delivered by virtue of registered sale deed in respect of the said property and improved the same by spending huge money. It is contended that item No.1 of the suit schedule property is self-acquired property of Muniyamma, which had fallen to the share of defendant No.1, who acquired the same under Mujubane partition on 14.02.2005 and all the documents stands in his name and the plaintiffs suppressing the truth and misrepresenting the facts, filed the suit.

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The Trial Court having considered the pleadings of the parties framed the issues and allowed the parties to lead evidence. The plaintiffs, in order to prove their case, examined plaintiff No.2 as P.W.1 and got marked the documents Exs.D1 to D20. On the other hand, defendant No.1 examined himself as D.W.1 and examined three witnesses as D.Ws.2 to 4 and got marked 9 documents as Exs.D1 to D9.

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The Trial Court having considered the material available on record answered issue Nos.1 and 2 as ‘negative’ and not accepted the contention of the defendants and comes to the conclusion that plaintiffs are entitled for the relief of 1/4^th share in the suit schedule properties by answering issue No.3 as ‘affirmative’. The Trial Court also comes to the conclusion that the property stands in the name of the mother and defendants were not having absolute right to execute the sale deed. Hence, the said sale deed is not binding on the plaintiffs.

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Being aggrieved by the said order, an appeal is filed before the First Appellate Court in R.A.No.49/2017 and in the appeal also, the First Appellate Court considering the grounds urged in the appeal, formulated the points and comes to the conclusion that the Trial Court has not committed any error on question of fact and question of law and dismissed the appeal. Hence the present second appeal is filed before this Court.

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Learned counsel appearing for the appellants would vehemently contend that both the Courts have committed an error in not appreciating the material available on record in a proper perspective. The counsel also would vehemently

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contend that the Trial Court and the First Appellate Court committed an error in throwing burden on the defendants under issue Nos.1 to 4 framed by Trial Court without casting any burden on the plaintiffs and also committed an error in granting the relief. It is also contended that the First Appellate Court committed an error in confirming the judgment of the Trial Court and this Court has to admit the second appeal and frame substantial question of law, since both the Courts failed to take note of admission on the part of P.W.2 that another suit schedule property is standing in the name of Mother, Muniyamma and suit is bad for partial partition.

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Per counter, learned counsel appearing for caveator-respondent Nos.1 to 5 would vehemently contend that there is a clear admission that properties belong to the mother of the plaintiffs and the Trial Court as well as the First Appellate Court taken note of the fact that plaintiffs are also entitled for 1/4^th share in the property of Muniyamma and also taken note of the fact that defendants were not having absolute right to sell the properties. Hence, the Trial Court rightly comes to the

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conclusion that the sale made by the defendants is not binding on the plaintiffs.

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Having heard learned counsel for the appellants, learned counsel appearing for caveator-respondent Nos.1 to 5 and also considering the material available on record, no dispute with regard to acquisition of property by mother, Muniyamma and defendants also admit the same. But, contention was taken that there was already a partition between mother and son and there was Mujubane partition and all the properties stand in the name of son and he sold the property. But the fact is that when the properties are acquired by the mother, no material on record to show that the properties are individual properties of the son and all the legal heirs of the mother succeed to the property left by mother since there is no any testamentary document in favour of son alone. Hence, the Trial Court as well as the First Appellate Court rightly appreciated both question of fact and question of law and comes to the conclusion that plaintiffs are entitled for 1/4^th share in the suit schedule properties. The Trial Court having considered both oral and documentary evidence

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declared that sale deeds dated 17.11.2011 and 26.08.2016 are

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not binding on the share of the plaintiffs and the said sale deeds are binding only on the share of defendant No.1, since defendant No.1 had sold the property in favour of defendant Nos.2 and 4. Hence, I do not find any ground to admit the

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appeal and frame any substantial question of law.

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