Sri. V.M. Srinivasgowda, Vs Smt. Yashodamma

SRI. V.M. SRINIVASGOWDA, S/O V.M. MARIYAPPA AGED ABOUT 66 YEARS, RESIDENT OF AMRUTHUR VILLAGE AMRUTHUR HOBLI, KUNIGAL TALUK TUMKUR DISTRICT - 572 111.

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…APPELLANT

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(BY SMT. T.P. VASUNDARA, ADVOCATE FOR SRI. SIDDAMALLAPPA P M.,ADVOCATE)

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AND:

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Digitally signed by SHARADAVANI B Location: High Court of Karnataka

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SMT. YASHODAMMA, D/O LATE THIMMAIAH @ PUTTAIAH W/O KRISHNEGOWDA AGED 58 YEARS RESIDING AT HANDALAGER VILLAGE HALAGERE POST, AMRUTHUR HOBLI, KUNIGAL TALUK, TUMKUR DISTRICT - 572 111.

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SMT SUSHEELA D/O LATE THIMMAIAH @ PUTTAIAH AGED 46 YEARS RESIDING AT HANDALAGERE VILLAGE HADALAGERE POST, AMRUTHUR HOBLI, KUNIGAL TALUK, TUMKUR DISTRICT - 572 111.

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HC-KAR

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SMT VENKATALAKSHMI W/O HONNEGOWDA D/O LATE THIMMAIAH @ PUTTAIAH AGED 56 YEARS

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RESIDING AT CHANNAPURA VILLAGE KASABA HOBLI, KUNIGAL TALUK TUMKUR DISTRICT - 572 130

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SMT GANGAMMA

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W/O MALLANAGOWDA D/O LATE THIMMAIAH @ PUTTAIAH AGED 59 YEARS, R/AT BEERAGANAHALLI VILLAGE, YEDIYUR HOBLI, KUNIGAL TALUK TUMKUR DISTRICT - 572 130

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SMT. JAYAMMA W/O NARAYANMURTHY D/O LATE THIMMAIAH @ PUTTAIAH AGED 60 YEARS, R/AT NO.75, 1ST MAIN ROAD, KATRIGUPPE MAIN ROAD, BSK II STAGE, VIVEKANAND NAGAR BENGALURU - 560 085

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SRI RAMAKRISHNAIAH S/O LATE THIMMAIAH @ PUTTAIAH AGED ABOUT 57 YEARS, R/AT HANDALAGERE VILLAGE, HANDALAGERE POST, AMRUTHUR HOBLI, KUNIGAL TALUK TUMKUR DISTRICT - 572 171.

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…RESPONDENTS

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HC-KAR

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THIS RSA IS FILED UNDER SECTION 100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 24.07.2023 PASSED IN RA NO.4/2022 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, KUNIGAL, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 26.11.2021 PASSED IN OS NO.433/2014 ON THE FILE OF THE PRINCIPAL CIVIL JUDGE AND JMFC, KUNIGAL.

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THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE V SRISHANANDA

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ORAL JUDGMENT

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Heard Smt.T.P.Vasundara, learned counsel appearing

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on behalf of Sri.P.M.Siddamallappa, learned counsel for the appellant.

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Defendant No.5 who has suffered an order of

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decree for partition and separate possession in O.S.No.433/2014 was confirmed in RA No.4/2022 is the appellant.

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Facts in brief which are utmost necessary for

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disposal of the appeal are as under:

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HC-KAR

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3.1. A suit came to be filed by the plaintiffs in respect of the following immovable properties(hereinafter referred to as suit properties):

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“1. Item No.1: Land bearing Sy. No.70/1 measuring 0-33 guntas including one guntas karab situated at Amruthur village, Amruthur hobli. Kunigal Taluk and bounded by: East: land of Chandregowda, West: land of Dr.Rudrappa, North: Land of Nanjundaiah, South: land of Heggadathihalli Hanumaiah.

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2. Item No.2: Land bearing Sy.No.293/16 measuring 0.11 guntas and bounded by: East: Land of Bangali Chikkathimmaiah, West: land of Ramanna, North: land of Kempaiah, South: land of Chikklkathimmaiah.

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3. Item No.3: Land bearing Sy.No.54/1 measuring 0.19 guntas bounded by: East: Land of Marigowda, West: land of Plaintiffs family, North: land of Puttegowda, South: land of Boregowda.

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4. Item No.4: Land bearing Sy.No.36 measuring 0.23½ guntas bounded by: East: Land of Ganganna, West: land of Rayagaluve, North: land of H.K.Narayana, South: land of Mariyappa.

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5. Item No.5: Land bearing Sy.No.295/5 measuring 0.06 guntas bounded by: East: Land of Geddethimmaiah, West: land of Channegowda, Karigowda, North: land of Javarppa, South: land of Ramanna.

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6. Item No.6: Land bearing Sy.No.16 measuring 0.10 guntas bounded by: East: Land of Plaintiffs family, West: land of Mariyappa, North: land of Plaintifs family, South: land of Gangamma.

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HC-KAR

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7. Item No.7: Land bearing Sy.No.60/1 measuring 0.07 guntas bounded by: couk East: Land of Marigowda, West: land of Plaintiffs family, North: land of

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Puttegowda, South: land of Boraiah.”

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3.2. Plaintiffs laid a claim for partition by contending

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that plaintiffs, defendant Nos.1 to 3 are the sisters and

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defendant No.4 is their brother and they are the children of Thimmaiah @ Puttaiah of Handalagere Village, Kunigal Taluk.

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3.3. Said Thimmaiah @ Puttaiah died leaving behind

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the plaintiffs and defendant Nos.1 to 4 as the legal representatives to their entire estate.

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3.4. It is further contended that suit properties are

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the ancestral properties and the legitimate share claimed by the plaintiffs is denied by the defendants and therefore, suit came to be filed.

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3.5. It is also contended that defendant No.1 in

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utter collusion with defendant No.5, sold one of the items

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HC-KAR

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of the suit properties by registered sale deed dated 12.08.2014 which does not bind the rights of the plaintiffs

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and thus, sought for grant of their share in all these suit properties.

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Suit on due contest, came to be decreed.

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Operative portion of the judgment of the Trial

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Court reads as under:

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“The suit of the plaintiff is hereby decreed with costs.

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The plaintiffs and defendant No.1 to 4 are entitled for 1/6th share each in the suit schedule properties.

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Further, the alleged sale deed dated 12.08.2014 executed by defendant No.4 in favour of defendant No.5 is not binding on the share of the plaintiffs and defendant No.1 to 3.

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Further the defendant No.5 is at liberty to claim his interest over the suit schedule item No.1 property through defendant No.4's share over suit schedule properties during final decree proceedings.”

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6. Being aggrieved by the same, defendant No.5 –

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V.M.Srinivasgowda filed an appeal before the First

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Appellate Court in RA No.4/2022.

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HC-KAR

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Learned Judge in the First Appellate Court after

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securing the records, heard the arguments of the parties in detail and by considered judgment dated 24.07.2023, dismissed the appeal of defendant No.5 inter alia holding in paragraph Nos.22 to 26 as under:

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“22. It is pertinent to note that the relationship between the parties is not disputed, as such the relationship between the parties is an admitted fact.

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23. It is the specific contention of the plaintiffs that the suit schedule properties are ancestral and undivided joint family properties of plaintiffs and defendant No.1 to 4, which was denied by defendant No.4 and 5. It is significant to note that it is not in dispute that the parents of the plaintiffs and defendant No.1 to 4 were died leaving behind plaintiffs and defendant No.1 to 4 as only legal heirs. Even though the defendant No.4 and 5 have denied that the suit schedule item No.1 as joint family property, but the plaintiffs produced Ex.P-12 the certified copy of Sale Deed dated 12/08/2014, which is also produced by the defendant No.5, which marked as Ex.D-5 which clearly recites that the defendant No.4 sold item No.1, which is ancestral property of defendant No.4. Further, DW-1 who is the defendant No.4 in the present case clearly admitted that there was no division between plaintiffs and defendant No.1 to 4 and further admitted in the cross-examination that except suit schedule properties there is no other joint family properties to the family and DW-1 further admitted that the suit schedule properties were

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HC-KAR

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acquired by his father through a family partition between the brothers of father of plaintiffs and defendant No.1 to 4. Similarly the plaintiffs have produced Ex.P-2 to 9 RTC Extracts, Ex.P-10 and 11, which are Demand Register Extracts and Tax Assessment Extract which were stands in the name of the deceased parents of plaintiffs and defendant No.1 to 4 with respect to item No.2 to 8 of the suit schedule properties, as such it is clear that the suit schedule properties are the ancestral and joint family properties of the plaintiffs and defendant No.1 to 4. This is another aspect.

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24. It is the contention of the defendant No.4 that During the life time of parents of plaintiffs and defendant No.1 to 4, the parents were suffering from ill-health, the defendant No.4 had received hand loan of Rs.2,00,000/- from the friends and relatives for the medical expenses of his parents. The defendant No.4 has incurred Rs.50,000/- for the death ceremonies of his parents. After the death of his father he had loan of Rs.3,00,000/-. The defendant No.4 performed the marriage of plaintiff No.2 and also given dowry of Rs.40,000/-. The defendant No.4 had obtained Rs.5,00,000/- in different banks, i.e., he had obtained loan of Rs.21,758/-, Rs.40,000/-, Rs.50,000/- from Canara Bank, Amruthuru and Rs.50,000/- from IDF Sangha loan to improve the suit schedule properties by digging two bore wells and also inserted motor pump and he has also leveled and fertilized the lands. The sugar cane corps were burnt without water, as such the defendant No.4 without alternative had sold the item No.1 of the suit schedule properties in favour of defendant No.5 to clear the loans, which was denied by the plaintiffs and defendant No.1 and 2.

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HC-KAR

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25. It is the contention of the defendant No.5 that the revenue documents of item No.1 of the suit schedule property was standing in the name of defendant No.4 and mutation was also mutated as per MR No.53/2001-02. The defendant No.4 being the kartha of the family has sold the item No.1 of the suit schedule property for legal necessity and benefit of the family under registered sale deed dated 12/08/2014.

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26. It is significant to note that when we meticulously gone through pleadings of defendant No.4, as per the contention of the defendant No.4 his parents were suffering from ill-health, as such he has obtained loans and in order to improve the suit schedule properties he has obtained loans from banks and also in order to clear the dowry given to husband of plaintiff No.2, he has sold item No.1 of the suit schedule property. But when we meticulously gone through Ex.P-12 i.e., Sale Deed dated 12/.08/2014 executed by defendant No.4 in favour of the defendant No.5, wherein specific recitals that in order to construct house and for agricultural improvements he sold the item No.1 of the suit schedule property to the defendant No.5. As such the pleadings of defendant No.4 is not in consonance with the recitals of Ex.P-12 Sale Deed dated 12/08/2014. Further, it is the contention of the defendant No.4 and 5 that the suit schedule properties were sold for the legal and family necessities and to discharge loans obtained by the defendant No.4, but when we meticulously gone through the sale deed marked at Ex.P-12 it was executed on 12/08/2014. At the same time, the defendant No.4 produced Ex.D-1 to 4 documents to show that the concerned banks where he had obtained loans have issued notices to the defendant No.4, which reveals that Ex.D-1 is

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HC-KAR

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dated 20/01/2015, Ex.D-2 is dated 01/06/2015, Ex.D3 is dated 03/06/2015 and Ex.D-4 is dated 25/05/2015, which clearly reveals that the said loans were still pending even after the sale deed dated 12/08/2014 as such it can be easily inferred that the item No.1 of the suit schedule property is not sold in favour of the defendant No.5 to clear the loans. As such the contentions of the defendant No.4 and 5 holds no water. As such the trial court rightly hold that the suit schedule properties are ancestral and joint family properties and the Sale Deed executed by defendant No.4 in favour of the defendant No.5 dated 12/08/2014 is not binding on the legitimate share of plaintiffs. Further, the trial Court rightly held that the defendant No.5 is at liberty to eak out his remedy of equitable partition during final decree proceedings. As such, it does not warrants the interference by this court in the judgment and decree passed in O.S.433/2014 dated 26/11/2021 by the Prl. Civil Judge, Kunigal. Accordingly I answer Point No.1 in the Negative.”

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8. Being further aggrieved by the same, defendant

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No.5 has preferred this appeal, on the following grounds

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and raising following substantial questions of law:

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GROUNDS

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That the impugned Judgment and Decree of the courts below are otherwise opposed to law, facts and probability of the case and the same is liable to be set aside.

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HC-KAR

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That the impugned Judgment and Decree of the courts below are very much arbitrary and suffers from want of proper and convincing reasoning and the reasons which one assigned are stands with full of arbitrariness. As such, the same deserves to be set aside.

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That the impugned Judgment and Decree of the courts below are very much against the pleadings and the evidence on record. As such the impugned judgment and decree is unsustainable in the eye of law and liable to be set aside.

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That the courts below are not justified in believing the uncorroborated oral testimony of PW1 and erred in passing the impugned judgment and decree. As such the impugned judgment and decree is liable to be set aside.

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That the courts below are not justified in holding the issue No.1 in affirmative though the pleadings and the oral and documentary evidence of Plaintiff is not sufficient in materializing in proof of the said issue though having burden of proof lies with the Plaintiff. As such, the impugned judgment and decree is liable to be set aside.

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That the courts below are not justified in holding issue No.2 in negative though the pleadings, oral and documentary evidence That In any view of the matter the impugned Judgment and Decree of the Trial Court is very much bad and liable to be set aside.

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That, the courts below are not justified in recording issue No.3 in affirmative through the pleadings, oral and documentary evidence placed on record by the Plaintiff is not sufficient or materialized in discharging the burden of proof. As such, the impugned Judgment and decree is liable to be setaside.

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HC-KAR

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That, the courts below are not justified in recording issue No.4 in affirmative through the pleadings, oral and documentary evidence placed on record by the Plaintiff is not sufficient or materialized in discharging the burden of proof. As such, the impugned judgment and decree is liable to be set aside.

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That, the courts below are not justified in passing the impugned judgment and decree without framing proper issues and offering sufficient opportunity to the parties to the suit to place proper and cogent evidence materialized in discharging the burden of proof. As such the impugned judgment and decree is liable to be set aside.

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That the courts below have misread the oral and documentary evidence adduced on behalf of the Plaintiff and thereby erred in passing the judgment and decree. Hence the impugned judgment and decree is liable to be set aside.

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That the courts below are failed to apprise the oral and documentary evidence adduced by the Defendants while concluding the case in hand that the Plaintiff is entitle for the relief of partition and separate possession with considering the registered document Ex.D-1 to 6 though the plaintiff failed in placing sufficient and acceptable cogent evidence to over come these documents. As such, the impugned judgment and decree is liable to be set aside.

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That, the courts below are erred in not properly appreciating the document Ex.D-5, though he pleadings, oral and documentary evidence on record are sufficient to hold hat the ale is for legal necessity of the family and also for the benefit of the family.

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HC-KAR

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That, the courts below are erred in not accepting the oral and documentary evidence placed on record by the defense side. The said latches is sufficient to hold that the impugned Judgment and decree is not sustainable in the eye of law and liable to be setaside.

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SUBSTANTIAL QUESTIONS OF LAW

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1] Whether the courts below have justified in decreeing the suit of the Plaintiffs without considering the defense of Defendant No.4 and 5 and that though the evidence of DW1 to 3 and Ex.D 5 stands with substantial proof that the Defendant No.5 is the bonafide purchaser of the first item of the suit schedule property?

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2] Whether the courts below have justified in decreeing the suit of the Plaintiffs by ignoring the evidence lead by the Defendants through DW-1 to 3 and Ex.D-5, the said evidence is corroborative and substantially proved that the sale deed executed is for the legal necessity and for the benefit of the family?

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3] Though the trial court is suppose to consider all the issues framed independently, but, court has failed to delt with issues independently and the said grove error failed to be noticed by the first appellate and concurred with the finding of the trial court?

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4] Whether the courts below are justified in accepting the uncorroborated sole testimony of PW-1 in passing the impugned judgement and decree?

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Learned counsel for the appellant reiterating the

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grounds urged in the appeal memorandum contended that

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HC-KAR

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both the Courts have not taken into consideration that the alienation is for the benefit of the joint family and therefore, holding that the alienation made by defendant No.4 to the present appellant did not bind the plaintiffs and defendant Nos.1 and 2 is incorrect and has resulted in miscarriage of justice and thus, sought for admitting the appeal.

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This Court did not deem it necessary to issue notice to the respondents.

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In the light of the arguments put forth on behalf of the appellant, this Court perused the material on record

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meticulously.

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On such perusal of the material on record, even though the learned Trial Judge has not properly assigned the reasons for decreeing the suit, same is taken care of by the First Appellate Court in the aforesaid paragraphs by supplementing cogent and logical reasons in holding that

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HC-KAR

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the alienation made by defendant No.4 in favour of the appellant would not bind the rights of the parties.

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Admittedly, defendant No.5 purchased the

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properties which is a joint family properties ignoring the rights of the plaintiffs and other two sisters.

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Further, by applying the principles of law enunciated in the case of Vineeta Sharma v. Rakesh Sharma reported in (2020) 9 SCC 1 , plaintiffs and other sisters have also got share in the suit properties and therefore, the alienation made by defendant No.4 in favour of the present appellant would not bind the shares of the female coparceners. The same is the decree that has been passed.

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Having held thus, it is always open for defendant No.5 to plead for equitable partition in the final decree proceedings in requesting the final decree Court to allot the properties purchased by defendant No.5 to be

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