Sri S Kumar Vs Smt Susheela Mary — Specific Performance | Karnataka HC (2025)

Sri S Kumar Vs Smt Susheela Mary — Specific Performance | Karnataka HC (2025)

1 - NC: 2025:KHC:19516 RSA No. 1588 of 2022

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

DATED THIS THE 9^TH DAY OF JUNE, 2025

BEFORE

THE HON'BLE MR JUSTICE H.P.SANDESH

REGULAR SECOND APPEAL NO.1588 OF 2022 (PAR/DEC)

BETWEEN:

SRI. S. KUMAR S/O SHIVANNA AGED ABOUT 51 YEARS R/AT BETHLUR VILLAGE SSMC POST TUMAKURU -572 107

…APPELLANT

(BY SRI. MANJUNATHA G., ADVOCATE)

AND:

Digitally signed by DEVIKA M Location: HIGH COURT OF KARNATAKA

SMT. SUSHEELA MARY W/O FREDRIC FRANCIS AGED ABOUT 67 YEARS R/AT DOOR NO.296, CHIKKAYANNA LAYOUT HENNUR CROSS KALYAN NAGAR POST BENGALURU–560 013.

SMT. NALINAKSHI W/O LATE SAMUEL AGED ABOUT 65 YEARS R/AT 63, CHRISTIAN COLONY M.HOSAKOPPALU HOLENARASIPURA ROAD HASSAN DISTRICT-573 201.

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SMT. SAGAI MARY W/O DINESH PRASAD MAJOR BY AGE R/AT HANUMANTHAPURA SSMC POST TUMAKURU - 572 107

SMT. ANITHA W/O SHANKAR B, AGED ABOUT 40 YEARS R/AT 2ND CROSS NEAR BASHA JAN HOME MULEKATTE, BHADRAVATHI SHIVAMOGGA - 577 301.

SRI. VINOD KUMAR S/O ANI DAS AGED ABOUT 37 YEARS R./AT 2^ND CROSS, MOLEKATTER NEAR BASHA JAN HOME MULEKATTE, BHADRAVATHI SHIVAMOGGA - 577 301

SMT. KAMALA SANTHOSHINI W/O DAYAKAR AGED ABOUT 66 YEARS R/AT C/O BABU JOHN 2^ND CROSS, AYURVEDIC HOSPITAL MULUKUNTE, BHADRAVATHI SHIVAMOGGA - 577 301.

SMT. ANUSUYA D/O LATE PAULRAJ AGED ABOUT 53 YEARS R/AT 3^RD CROSS DEVANOOR S.S.PURAM POST TUMAKURU - 572 107

SMT. SHUBHA VANI W/O LATE WILLIAM MARK AGED ABOUT 55 YEARS

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R/AT 3^RD CROSS, DEVANOOR S.S. PURAM POST TUMAKURU - 572 107.

SMT. ESTHER PRIYADARSHINI D/O LATE WILLIAM MARK AGED ABOUT 32 YEARS R/AT 3^RD CROSS, DEVANOOR S.S.PURAM POST TUMAKURU - 572 107.

SRI. DENIS MARK S/O LATE WILLIAM MARK AGED ABOUT 30 YEARS R/AT 3^RD CROSS DEVANOOR S.S.PURAM POST TUMAKURU - 572 107.

…RESPONDENTS

(BY SRI. HARISH G., ADVOCATE FOR C/R7;

R3, R4, R5, R8, R9, R10 ARE SERVED AND UNREPRESENTED; SRI. H. SIDDESH, ADVOCATE FOR R1, R2 AND R6)

THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 22.04.2022 PASSED IN R.A.NO.245/2019 ON THE FILE OF THE VI ADDITIONAL DISTRICT AND SESSIONS JUDGE, TUMAKURU. DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 27.09.2019 PASSED IN O.S.NO.270/2013 ON THE FILE OF THE ADDITIONAL SENIOR CIVIL JUDGE AND CJM, TUMAKURU.

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

ORAL JUDGMENT

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

The suit is filed for the relief of partition in O.S.No.270 of 2013 contending that plaintiff Nos.1 to 5

and one late William Mark are the children of late Paul Raj. Defendant No.1 is the wife and defendant Nos.2 and 3 are the children of plaintiff’s brother late William Mark. Plaintiff No.5 is unmarried daughter of Paul Raj. That the suit schedule property originally acquired by their father Paul Raj by the competent authority for the benefit of the family members during the lifetime. The plaintiff along with their father and brother being in possession and enjoyment of the property. That their father was died intestate by leaving behind the plaintiffs and their brother William Mark. Therefore, the plaintiff succeeded to the suit schedule property along with their brother by inheritance and continued in joint possession and enjoyment of the

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suit property. That their brother William Mark died on 29.03.2013 leaving behind defendant Nos.1 to 3. After the death of William Mark, the plaintiffs demanded partition and separate possession in the suit schedule property. But the defendant No.1 has not shown any interest. Therefore, plaintiffs approached concerned revenue official for change of katha. At that time, they came to know about the sale transaction made by William Mark. Thereafter, the plaintiffs immediately issued a legal notice to the defendants. The said notice duly served upon the defendants including defendant No.4, the purchaser of the suit property, but none of them replied to their notice. It is also the case of the plaintiffs that they came to know that William Mark along with defendant Nos.1 to 3 colluded with 4^th defendant and got created sale with respect to the suit property. But William Mark and these defendant Nos.1 to 3 have no absolute right and title to make any such sale in favour of this defendant No.4 or to anybody. The alleged sale deed made by William Mark is not binding on

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the plaintiffs and it will not take away their rights over the suit schedule property. Hence, they filed a suit for the relief of partition and contend that sale deed is not binding on them and claimed 1/6^th share. The defendant Nos.1 to 3 and also defendant No.4 have appeared through their counsel, but defendant Nos.1 to 3 have not filed any written statement and only defendant No.1 had filed the written statement, contending that suit is barred by limitation and also contend that suit is filed belatedly, defendant has not raised the plea of limitation and also contend that sale deed is not binding on their share. Section 54 of Transfer of Property Act, Section 31 of Specific Relief Act any relief claimed that is not binding, it is nothing but seeking for cancellation of sale deed for the reason execution of the sale deed cannot be set-aside unless and until, the sale deed is cancelled, transfer cannot be held as not binding.

The Trial Court having considered the pleading

that property belongs to the William mark and the same is

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a self acquired property and framed issue as whether the

property belongs to the family of the plaintiff and also whether the same is a self acquired property of William Mark as contended by husband of defendant No.1 and also taken note of issue of limitation and claim made by the plaintiff. The Trial Court having considered the grounds urged in paragraph No.14 discussed with regard to whether the property belongs to the plaintiffs and William Mark and also discussed with regard to the contents of document Ex.P.4 wherein recital is also mentioned that property is not belongs to the William Mark and the property belongs to the family and it was also mentioned as ancestral property and the same has been discussed in paragraph No.17 and answered the issue No.1 in the affirmative and issue No.2 in the negative and comes to the conclusion that it is not proved that property belongs to the William Mark as contended that the same is self

acquired property.

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Being aggrieved by the said judgment and

decree of Trial Court, an appeal is filed in R.A.No.245/2019 and the First Appellate Court having considered the grounds urged in the appeal memo, formulated the point whether the finding of the Trial Court

in awarding shares to the plaintiffs was correct and whether it requires interference and detailed discussion was made by the Trial Court also, particularly in paragraph No.17 wherein considered Ex.P.1, column No.10 pertaining

to William and there is a mention of partition under which William Mark got his share to the suit property and also taken note of Ex.P.4 which is under challenge, the Vendor has been mentioned as William Mark and also taken note of the Ex.P.1 wherein the name of William Mark is appearing and also in the light of the said William Mark getting the same 33 guntas of land after partition, how his name came to be entered into the RTC without the name of the plaintiff being shown coupled with thereafter in Ex.P.2 after lapse of 4 months, the said William Mark sold

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the property in favour of defendant No.4 and taken note of conduct of the Vendor of the plaintiff and also taken note of conduct of defendant Nos.1 to 3 about the silence and in paragraph No.8 also taken note that plaintiffs being the daughters of Paul Raj and only son being William Mark. It is also to be noted that plaintiffs are all residing as per the cause title in Bangalore, Hassan, Shimoga and others residing at Tumkur had not but being natural that son would be dealing with the affairs of the suit schedule property and in detail considered the evidence available on record particularly evidence of P.W.1 and P.W.2. The fact that property belongs to the Paul Raj is not in dispute and hence comes to the conclusion the Trial Court in detail taken note of material available on record and answered the point No.1 in the affirmative and point No.2 as negative having considered the material on record, dismissed the appeal. Being aggrieved by concurrent finding, the present second appeal is filed before this Court.

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The learned counsel for the appellant would

vehemently contend that both the Courts have committed an error in coming to the conclusion that property is not the self acquired property of the Vendor of the appellant and the finding is erroneous. In the absence of cogent documentary evidence which is contrary to law, the Trial Court ought not to have granted the relief. The grounds which have been urged in the appeal is in respect of the factual aspects and fact finding of the Trial Court and both the Courts taken note of the fact that plaintiffs are the daughters of Sri.Paul Raj and also the fact that husband of the 1^st defendant is also one of the son of the said Paul Raj. Having considered the material on record, particularly document evidence as well as the recitals of the Ex.P.4 wherein also categorically mentioned that property was belongs to the Paul Raj which is extracted in paragraph No.15 of the Trial Court judgment and both documentary evidence and oral evidence on record clearly discloses that property belongs to the Paul Raj and hence granted 1/6^th

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share. The very contention of the appellant’s counsel that

both the Courts have committed an error in appreciating material on record and unless perversity is pointed out by the appellant’s counsel while considering the material on record, question of framing any substantive question of law doesn't arise with regard to the factual aspects and also there is no any substantive question of laws to frame. Hence, I do not find any ground to admit and fame the substantive question of law.

In view of the discussions made above, I pass the following:

ORDER

The Second Appeal is dismissed . Consequently, I.A.No.1/2024 for amendment is also dismissed.

Sd/(H.P.SANDESH) JUDGE

RHS

List No.: 1 Sl No.: 49