Smt R P Umadevi Vs Sri R P Shivashankar

SMT. R.P. UMADEVI W/O SURENDRA KUMAR D/O LATE R.B. PUTTABASAPPA AGED ABOUT 47 YEARS R/AT CHOLUR ROAD CHINTAMANI TOWN CHIKKBALLAPURA DISTRICT PIN CODE -563 123.

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…APPELLANT

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(BY SRI. SUBRAMANYA H V.,ADVOCATE)

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AND:

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Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

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SRI. R.P. SHIVASHANKAR S/O LATE R.B. PUTTABASAPPA AGED ABOUT 56 YEARS

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SRI. R.P. MANJUNATH S/O LATE R.B. PUTTABASAPPA AGED ABOUT 52 YEARS

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BOTH ARE RESIDING AT RAJANAKUNTE VILLAGE HESARAGHATTA ROAD BENGALURU NORTH TALUK PIN CODE -560 088.

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M/S. PRESTIGE CONSTRUCTIONS EARLIER HAVING ITS OFFICE AT NO.303, 3^RD FLOOR

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HC-KAR

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COPER ARCH INFANTRY ROAD BENGALURU -560 001.

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NOW CALLED AS PRESTIGE ESTATE PROJECTS LIMITED FALCON HOUSE, NO.1 MAIN GUARD CROSS ROAD BENGALURU -560 001

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REPRESENTED BY ITS MANAGING PARTNER SRI. REZWAN RAZACK.

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…RESPONDENTS

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 29.08.2022 PASSED IN R.A.NO.163/2018 ON THE FILE OF THE IX ADDITIONAL DISTRICT AND SESSIONS JUDGE, BENGALURU RURAL DISTRICT, BENGALURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 02.04.2016 PASSED IN O.S.NO.1646/2004 ON THE FILE OF THE I ADDITIONAL SENIOR CIVIL JUDGE, BENGALURU RURAL DISTRICT, BENGALURU.

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

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HC-KAR

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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 appellant.

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This second appeal is filed against the concurrent finding of the Trial Court and the First Appellate Court.

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The suit is filed against the brothers seeking the

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relief of partition, declaration and permanent injunction contending that suit schedule properties are the joint family properties of the plaintiff and defendants and sale deed dated 15.12.1993 executed by the father and brothers in favour of defendant No.3 is not binding on her share.

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The defendant No.3 appeared and contested the

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matter by filing written statement. The Trial Court having considered the evidence of P.W.1, answered all the issues

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HC-KAR

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as ‘negative’ and dismissed the suit. The Trial Court also taken note of the fact that property was sold in the year 1993 itself and the marriage of plaintiff was solemnized in the year 1994 and the same is also even prior to Karnataka Amendment and subsequent Central Amendment is made in the year 2004. The Trial Court also taken note of the fact that though property was sold in 1993, suit was filed in the year 2004 and at the time of selling the property, she had attained majority and not filed the suit within 3 years from the date of sale of the property.

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Being aggrieved by the order passed by the Trial Court, an appeal is filed before the First Appellate Court in R.A.No.163/2018. The First Appellate Court, considering the grounds urged in the appeal memo, framed the point for consideration whether the Trial Court is justified in holding that sale deed dated 15.12.1993 executed by defendant No.3 is binding on the plaintiff and whether it requires interference of this Court.

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HC-KAR

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The First Appellate Court also having

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reassessed both oral and documentary evidence placed on record, particularly taken note of Ex.P1-the marriage invitation card which discloses that her marriage was performed on 21.06.1994 and also taken note of Exs.P3 and P4 i.e., the RTC Extracts relating to suit item Nos.1 and 2 properties which disclose that name of Puttabasappa is shown as owner/occupier of these properties for the year 1993-1994. In the subsequent entries in these RTC Extract discloses that suit item Nos.1 and 2 properties have been converted into non-agricultural purpose. The Trial Court so also taken note of the fact that, if the father of the plaintiff has sold the ancestral joint family properties against the interest of the plaintiff, then she has to challenge the said sale deed within 3 years as per Article 59 of the Limitation Act. The plaintiff has filed this suit in the year 2004 by showing her age as 29 years which discloses that she was born in the year 1975 itself. Thereby, it is clear that she has attained the age of

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HC-KAR

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majority in the year 1993 during which her father has sold the properties to defendant No.3. If she has not attained the age of majority on the date of sale transaction, then she ought to have challenged the alienation made through Exs.P8 to P16 documents within 3 years from the date of attaining majority as per Article 60 (a) of the Limitation Act.

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The plaintiff has instituted the suit in the year 2004 showing her age as 29 years after lapse of 11 years from the date of sale transaction. Exs.D11 to D13 are the sale deeds executed by defendant No.3 in favour of subsequent purchasers effected in the year 2001 and 2003 and taken note of the fact that even subsequent to the sale made in favour of defendant No.3, the defendant No.3 in turn sold the property prior to filing of the suit and properties were also exchanged between different persons and the same also not remained as an agricultural land and converted the land for non-agricultural purpose. These are the aspects which are also taken note of and both the

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HC-KAR

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Courts also taken note of the fact that sale was made in the year 1993.

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The learned counsel appearing for the appellant

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would contend that amendment was brought in the year 1994 and in respect of an unmarried daughter is concerned, they would get the right. But, in the case on hand, she had married prior to the said amendment. When such being the case, both the Trial Court as well as the First Appellate Court taken note of the material available on record and both the Courts have assigned reasons. Hence, the very contention of the learned counsel appearing for the appellant that both the Courts have committed an error in not considering the material available on record and not justified in holding that appellant is not entitled for share and the contention that living daughter is entitled for a share in the suit schedule property cannot be accepted and when the transaction has taken place in the year 1993 itself and the question of daughter is also a co-parcener does not arise. Hence, I do

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HC-KAR

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not find any ground to admit the appeal and frame any substantial question of law considering the factual aspects of the case and there is no merit in the appeal.

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