Smt Radha Vs Sri Sridhara

THIS RSA IS FILED UNDER SECTION 100 R/W ORDER 42 RULE 2 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 08.08.2022 PASSED IN R.A.NO.5005/2017 ON THE FILE OF THE III ADDITIONAL DISTRICT AND SESSIONS JUDGE, MANDYA (SITTING AT SRIRANGAPATNA), ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 05.12.2016 PASSED IN O.S.NO.49/2014 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, PANDAVAPURA 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 judgment of the First Appellate Court wherein the First Appellate Court set aside the finding of the Trial Court in respect of Item No.1 of the suit schedule property is concerned and confirmed the partition in respect of other items of the suit property is concerned.

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The very contention of the counsel appearing for the appellants before this Court that First Appellate Court committed an error in sitting aside the judgment of the Trial Court in respect of Item No.1 of the suit property is concerned when the appellants are not at all parties/executants to the sale deed dated 24.08.2006 and 19.05.2010 respectively. It is not at all necessary for the appellants to seek declaration or cancellation of the said sale deeds. On the said sole ground, the First Appellate Court reversed the judgment and decree of the Trial Court in respect of item No.1 is concerned and the same is against the principles of natural justice. Hence this Court has to admit the appeal and frame the substantial question of law.

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Per contra, the counsel appearing for respondent No.1 would vehemently contend that the First Appellate Court while reversing the judgment of the Trial Court taken note of the evidence of PW1 as well as the recitals of the document of the sale deed executed in favour of defendant No.3 which shows that on the very same day, the father, brother and mother who have sold the property in favour of defendant No.3 have purchased the property i.e., house property bearing number 203/2004 for a sum of Rs.2,23,000/- and sale was made only to the tune of Rs.60,000/- while executing the document in terms of Ex.D2 and house was purchased more than the sale consideration. The First Appellate Court in detail discussed the same in paragraphs 22 to 26 and held that intelligently, the plaintiff has not included the property which was purchased subsequent to the sale of the property that is Item No.1 in the suit for the reason is best known to the plaintiff and hence, no ground is made out to admit this appeal.

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Having heard the appellants’ counsel and also the counsel appearing for respondent No.1, the following

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substantial question of law arises for the consideration of this Court is:

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Whether the First Appellate Court committed an error in reversing the finding of the Trial Court in respect of Item No.1 of the suit schedule property and whether the said finding amounts to perversity?

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Having heard the learned counsel appearing for the respective parties and also considering the material and record, it discloses that there is no dispute with regard to the relationship between the parties is concerned and also not in dispute that suit is filed by the married daughters who are the plaintiffs in O.S.No.49/2014. The main contention is that all the joint family properties are of both plaintiffs and defendant No.1 and 2 and they have been in joint possession and enjoyment of the same. But defendant No.4 took the contention that suit is bad for non-inclusion of the entire joint family property and also contended that in view of the sale deed dated 24.08.2006 in favour of defendant No.3 and subsequent sale deed dated 19.05.2010 in favour of defendant No.2, the suit is barred by limitation. The defendant No.4 also took the contention that

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seeking the relief of declaration declaring the sale deeds dated 24.08.2006 and 19.05.2010 as null and void and not binding on them in the present form of suit for partition and separate possession is not maintainable. Also took the contention that defendant No.3 and defendant No.4 are the bona fide purchaser of Item No.1 of the suit schedule property and suit is also bad for non-joinder of necessary parties.

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The Trial Court having considered the material record, no doubt, comes to the conclusion that suit schedule properties are the joint family properties while answering the Issue No.1. But answered the Issue Nos.2 to 7 as negative and failed to consider the documentary evidence placed before the Court and erroneously comes to the conclusion that entitled for the share in respect of all the properties are concerned. But the fact is that property was sold by the defendants in favour of defendant No.3 on 24.08.2006. It has to be noted that when the document of Ex.D1 is produced i.e., copy of the sale deed dated 24.08.2006 as well as document of Ex.D2 sale deed dated 24.08.2006 and also Ex.D3 sale dated 19.05.2010 i.e., subsequent purchaser - defendant No.4, failed to consider the

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both oral and documentary evidence and particularly, answer elicited from the mouth of PW1 during the course of crossexamination.

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The First Appellate Court having reassessed both oral and documentary evidence available on record, taken note of in paragraph 22 that sale deed dated 24.08.2006 i.e., Ex.D2, it was specifically recited by the vendors that they have sold the suit property in order to purchase a residential house for their residence. Hence, taken note of that now it is the duty of the Court to see as to whether after receipt of sale consideration of Rs.60,000/-, defendant Nos.1, 2 and Puttamma have purchased any house property or not. Defendant No.4 has produced certified copy of sale deed dated 24.08.2006 as per Ex.D1. A reading of Ex.D1 would show that as on 24.08.2006 itself, Puttamma and the defendant No.2 have purchased the house property bearing No.203/2004 consisting a house and site from Defendant No.3 - Boregowda for a sum of Rs.2,23,000/-. Thus, it is clear that the sale consideration amount received as per the sale deed in Ex.D2

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has been utilised for the purchase of house property and site bearing No.203/2004.

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The First Appellate Court in paragraph 23 taken note of that the plaintiffs being the married daughters of defendant No.1 and sisters of defendant No.2, have not made any allegation against their parents and defendant No.2 that they have been indulged in immoral activities and they have used sale consideration amount for their immoral purpose. Even further observation is made in paragraph 24 that sale consideration is only Rs.60,000/- in terms of Ex.D2 that too a sale of Item No.1. But house property was purchased for a sum of Rs.2,23,000/-. Apart from that, First Appellate Court also taken note of recitals of Ex.D2 wherein mentioned that sale consideration was utilized by the mother and the brother and acquired property number 203/2004. But in an ingenious method, the plaintiffs have not included the property which was purchased under Ex.D1. The First Appellate Court made an observation that the plaintiffs have not chosen to include this property in the suit for the best reasons known to them.

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In paragraph 25 also made an observation that it is the duty of the Court to find out as to whether defendant No.1, 2 and Puttamma have discharged their duty and whether their act is detrimental to the interest of the plaintiffs or not. It is also the definite evidence of PW1 that the defendant No.1 has performed the marriage of plaintiffs. It is also her evidence that since beginning, her father Narasimhe Gowda was engaged in the development of the family. This unequivocal admission elicited from the mouth of PW1 makes it very clear that defendant No.1 - Narasimhe Gowda has taken care of the family and was aimed for the development of the family. Further evidence is that at no point of time, either her father, mother or younger brother have received them and no such pleadings also. The cumulative effect of the evidence of PW1 in cross-examination is that Narasimhe Gowda was acted as karta of the family and taken care of the family and interested in the development of the family. So, no fault can be attached to the act of the Narasimhe Gowda in alienating Item No.1 property in favour of defendant No.3.

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Even in paragraph 26 also taken note of that though plaintiffs have simply stated that defendant No.1 and 2 have concocted some documents in respect of the Item No.1 of property in favour of defendant No.3, they have not produced at least certified copy of the sale deed dated 24.08.2006 under which defendant No.1 and 2 and Puttamma have jointly sold Item No.1 of the suit property in favour of defendant No.3 and not only suppressed the said document even not included the property which was purchased on the very same day by the family members and intelligently not included the same while filing this suit. All these factors were taken note of by the First Appellate Court. Even the reasoned order has been passed by the First Appellate Court considering both oral and documentary evidence which has not been discussed by the Trial Court while granting the relief in respect of Item No.1 is concerned. Thus, I do not find any error on the part of First Appellate Court in reversing the finding of the Trial Court in respect of Item No.1 is concerned. Hence, there is no merit to reverse the finding of First Appellate Court. Having considered the material on record, it discloses that it is a vexatious suit by married daughters knowingfully well that the brother and

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parents, out of the sale consideration purchased the house property and not included the said property but questioned the sale made in favour of defendant and hence, liable to dismiss

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the same with exemplary cost for frivolous litigation.

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