Channe Gowda Vs Gowramma

THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 03.08.2024 PASSED IN R.A.NO.16/2018 ON THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC, HOLENARASIPURA AND ETC.

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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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HC-KAR

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ORAL JUDGMENT

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

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This matter is listed for admission. Heard the learned counsel appearing for the appellant.

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The factual matrix of the case of plaintiff while seeking the relief of partition and separate possession is that suit schedule properties are the joint family properties and plaintiff is also the member of the joint family and hence, she is entitled for the share in the suit schedule properties. Defendant No.1 appeared and filed the written statement contending that Item Nos.2 and 3 are his self-acquired properties and there cannot be any granting of share in the said items. He also took the contention that suit is bad for non-inclusion of other joint family properties as shown in paragraph 6 of the written statement and also it is his contention that he purchased the suit Item Nos.2 to 4 in the name of his mother out of his own earnings. As such, the plaintiff is not having rights on that properties.

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The Trial Court considering the pleadings of the parties, framed the issues and additional issues and allowed the parties to lead evidence. In order to prove the case of the plaintiff, she examined herself as PW1 and got marked the documents at Ex.P1 to P42. On the other hand, defendant No.1 got himself examined as DW1 and got marked the documents at Ex.D1 to D41 and also examined 4 witnesses as DW2 to DW5. The Trial Court having considered both oral and documentary evidence available on record comes to the conclusion that properties are the joint family properties and the contention of defendant No.1 that properties are purchased in the name of his mother out of his income is not supported by any material available on record except pleading. Hence, comes to the conclusion that Item No.2 was purchased by deceased Putteeramma and also even Item No.3 also purchased in the name of mother in the year 1995 from one Swamigauda for consideration of Rs.6,000/- and defendant No.1 has not produced any single document to show that he had income at the relevant time to purchase the said property in the name of his mother and also not substantiated the same placing any material before the Court to show that he had contributed the

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money for purchase of the property. Though, defendant No.1 relies upon the documents at Ex.D1 to D41, in his class examination, he admits that he was present at the time of preparing Ex.D41 partition deed and same was drafted by one Kumaraswami advocate and that his mother Putteeramma put her signature to the same in presence of nearly 20 villagers. He also admits that though he was present at the time of execution of the document, he did not put his signature to the same. Further, he deposes that he has not produced the document before the revenue officials at the time of getting the katha of some of the suit properties in his name. thus, it means that the said document did not see the light of the day until recently.

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The Trial Court having considered both oral and documentary evidence placed on record, comes to the conclusion that though defendant No.1 took the specific contention that document of Ex.D41 came into existence in the year 1997, the same is not produced before any of the authorities and also taken note of the contention of defendant No.1 that properties mentioned above standing in the name of

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plaintiff and her daughter are also joint family properties and they are entitled for a share in the said properties. Even though specific contention was taken that he had contributed to purchase the property, nothing is placed on record. Hence, the Trial Court granted the relief of 1/3^rd share in respect to the suit schedule properties. Being aggrieved by the said judgment and decree of the Trial Court, an appeal is filed in R.A.No.16/2018.

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The First Appellate Court also having considered the grounds which have been urged in the appeal memo, formulated the points that whether the Trial Court committed an error in coming to the conclusion that properties are joint family properties, particularly belongs to the mother who had purchased the property and whether the Trial Court failed to notice the fact that plaintiff is not the co-parcener of the family as the parents of the plaintiff were not alive on the date of coming into force of amendment of Hindu Succession Act, 2005. The First Appellate Court having considered both oral and documentary evidence placed on record, answered all the points as negative considering the recitals of Ex.D16 wherein it

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discloses that Smt. Putteeramma has purchased Item No.3 of the suit schedule properties from one Swamigowda and also taken note of Section 14 of Hindu Succession Act. The recitals of Ex.P7 shows that husband has sold Item No.2 of suit schedule property in favour of wife in the year 1949. In the cross-examination of DW1, he himself stated that he joined to the service in the year 1984. When such being the case, the question of contribution by defendant No.1 does not arise in respect of Item No.2 is concerned. The First Appellate Court also taken note of Ex.P7 as well as Ex.D16 and comes to the conclusion that the Trial Court has not committed any error in granting the relief and detailed discussion was made by the First Appellate Court and confirmed the judgment of the Trial Court. Being aggrieved by the concurrent finding of both the Courts, the present second appeal is filed before this Court.

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The main contention on the counsel appearing for the appellant is that both the Courts have committed an error in coming to the conclusion that plaintiff is entitled for the share over the property of Putteeramma and she has no independent right to gift the ancestral properties against the

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interest of other co-perceners as per the document Ex.P29. The counsel also contend that the Trial Court fails to notice that documents of Ex.P7 and P31 are contrary to each other, as both documents refer to the same properties and executed by the husband of Putteeramma stating that the said properties are ancestral properties and all other properties are acquired out of the income earned through said property as the said Putteeramma has no other independent income and wrongly come to the conclusion that said properties are self-acquired properties of said Putteeramma. Hence, this Court has to admit the appeal and to frame substantial question of law.

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Having heard the learned counsel for the appellant

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and also considering both oral and documentary evidence placed on record as well as pleadings of the parties, it is a specific case of the plaintiff before the Trial Court that properties are joint family properties and defendant No.1 specifically took the contention that the Item Nos.2 and 3 properties are the self-acquired properties and also would contend that he had purchased the same in the name of his mother and he had contributed the money for purchasing of the

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said properties. In order to substantiate the said contention before the Trial Court, he has not placed any material. Though, he admits that he had joined the service in 1984 and he contributed the money for purchase of the property in the name of the mother, nothing is placed on record except selfstatement made by defendant No.1. Both the said facts were taken note of by the Trial Court as well as the First Appellate Court and also considered the document of Ex.P7 and P31 and so also Ex.D16 and taken note of the recitals for having purchased Item No.3 of the scheduled property and also Item No.2 of the property and that was in the year 1949. Though, defendant No.1 relies upon the document of Ex.D41 which refers to the date of execution of Vibhaga Patra in the year 1997, the same was not placed before any of the revenue department and got entered his name as per Ex.D41 and the same is also considered by the First Appellate Court in paragraph 25. Hence, I do not find any perversity in the finding of Trial Court and First Appellate Court considering the material on record. When the question of fact and question of law are rightly considered by the Trial Court and First Appellate Court, I

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