Sri. D .S Damarugendra Vs Smt. Susheelamma

SMT. GANGAMMA, W/O MARILINGAIAH, AGED ABOUT 69 YEARS, R/AT MMA KAVAL VILLAGE, DODDERIKATTE IN FRONT OF SUGUNA POULTRY FARM, ERAKASANDA POST, CHELUR HOBLI, GUBBI TALUK, TUMAKURU DISTRICT-572117.

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…RESPONDENTS

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(BY SRI. T. GOVINDA RAJA, ADVOCATE FOR R2 TO R4, R6 AND R7;

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SRI. PRABHUGOUD B. TUMBIGI, ADVOCATE FOR R5; SRI. SAPTHAGIRISHA, ADVOCATE FOR R8, R10 AND R12; R9 AND R11 – SERVED; VIDE ORDER DATED 10.07.2024, SERVICE OF NOTICE TO R13 IS HELD SUFFICIENT; VIDE ORDER DATED 24.09.2025, R2 AND R3 ARE TREATED AS LRS OF DECEASED R1)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 30.10.2022 PASSED IN R.A.NO.149/2022 ON THE FILE OF VI ADDITIONAL DISTRICT AND SESSIONS JUDGE, TUMAKURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 01.04.2022 PASSED IN O.S.NO.266/2014 ON THE FILE OF II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, TUMAKURU.

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IN RSA NO.438/2023:

BETWEEN:

D.S.RAMALINGAIAH,

DEAD BY HIS LRS.

SMT. SUSHEELAMMA, W/O LATE D.S.RAMALINGAIAH, AGED ABOUT 69 YEARS.

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HC-KAR

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SRI. YATHEESHA S/O LATE D.S.RAMALINGAIAH, AGED ABOUT 47 YEARS.

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SRI. RAJASHEKAR, S/O LATE D.S.RAMALINGAIAH, AGED ABOUT 63 YEARS.

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SRI. CHANDRASEHKARAIAH D.S., S/O LATE SIDDALINGAPPA, AGED ABOUT 63 YEARS.

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KUM. D.S. DEVAIRAMMA, D/O LATE SIDDALINGAPPA, AGED ABOUT 57 YEARS.

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SRI. NAGARAJU (NAMED AS NAGARAJU), S/O LATE SIDDALINGAPPA, AGED ABOUT 57 YEARS.

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ALL ARE R/AT DODDERI VILLAGE, BELLAVI HOBLI-572107, TUMAKURU TALUK, TUMAKURU DISTRICT.

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...APPELLANTS

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(BY SRI. T. GOVINDA RAJA, ADVOCATE; VIDE ORDER DATED 13.10.2025, APPELLANTS NO.2 AND 3 ARE THE LRS OF APPELLANT NO.1)

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AND:

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SRI. D.S.DAMARUGENDRA, S/O S SHANMUKAIAH, AGED ABOUT 30 YEARS.

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KUM. GANGAMBIKA, D/O S. SHANMUKAIAH, AGED ABOUT 36 YEARS, DEAD BY LRS RESPONDENTS NO.1 AND 2.

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SRI. S. SHANMUKHAIAH, S/O LATE SIDDALINGAPPA, AGED ABOUT 61 YEARS.

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D.S.VAJRAPPA, DEAD BY LRS.

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SMT. PARVATHAMMA, W/O LATE D.S.VAJRAPPA, AGED ABOUT 71 YEARS.

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SMT. NIRMALA, D/O LATE D.S.VAJRAPPA, AGED ABOUT 54 YEARS.

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SRI. RENUKAPRASAD, S/O LATE D.S.VAJRAPPA, AGED ABOUT 49 YEARS.

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SMT. SHASHIKALA, D/O LATE D.S.VAJRAPPA, AGED ABOUT 41 YEARS.

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SRI. LOKESH, S/O LATE D.S.VAJRAPPA, AGED ABOUT 39 YEARS.

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SMT. RUDRAMMA, W/O LATE SIDDALINGAPPA D.S., AGED ABOUT 86 YEARS, SINCE DEAD BY LRS THE APPELLANTS.

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THE RESPONDENTS NO.1 TO 7 ARE RESIDENTS OF DODDERI VILLAGE, BELLAVI HOBLI-572 107, TUMAKURU TALUK, TUMAKURU DISTRICT.

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SMT. GANGAMMA, W/O ALTE MARILINGAIAH, AGED ABOUT 69 YEARS,

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HC-KAR

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R/AT M.M.A. KAVAL VILLAGE, DODDERI KATTE, INFRONT OF SUGUNA POULTRY FORM, CHELURU HOBLI, GUBBI TALUK, TUMAKURU DISTRICT-572117.

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...RESPONDENTS

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(BY SRI. V.B.SIDDARAMAIAH, ADVOCATE FOR R1; SRI. B.SAPTHAGIRISHA, ADVOCATE FOR R3, R5 AND R7; SRI. PRABHUGOUD B. TUMBIGI, ADVOCATE FOR R2; R6 – SERVED; VIDE ORDER DATED 10.07.2024, SERVICE OF NOTICE TO R8 IS HELD SUFFICIENT; VIDE ORDER DATED 22.07.2024, SERVICE OF NOTICE TO R4 IS HELD SUFFICIENT)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 30.10.2022 PASSED IN R.A.NO.199/2022 ON THE FILE OF THE VI ADDITIONAL DISTRICT AND SESSIONS JUDGE, TUMAKURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 01.04.2022 PASSED IN O.S.NO.266/2014 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, TUMAKURU.

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THESE APPEALS COMING ON FOR FINAL HEARING THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:

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CORAM: HON'BLE MR. JUSTICE H.P.SANDESH

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ORAL JUDGMENT

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Heard the learned counsel for the appellants and the learned counsel for the respondents.

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These two appeals are filed by the plaintiffs as well

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as the legal representatives of defendant No.1, defendant No.2,

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and defendant Nos.4 and 5 challenging the judgment and decree of granting share in favour of the plaintiffs. The plaintiffs have challenged the judgment and decree of both the Courts in declining to grant the relief in respect of item Nos.3 and 4 of ‘B’ schedule property.

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Before considering these two appeals, this Court would like to make a reference to the earlier memo dated 14.08.2025, wherein the plaintiffs have not claimed the right in respect of item No.1 in ‘A’ schedule property and also item No.1 in ‘B’ schedule property. Now the issue which remains before this Court is only declining to grant the relief in respect of item Nos.3 and 4 as well as in view of the appeal filed by the defendants in granting share in respect of other properties.

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The main contention of the learned counsel for the appellants/plaintiffs is that defendant No.1 while entering into an agreement to sell the property in favour of defendant Nos.3 and 4, had executed the sale deed in favour of defendant No.7 and though obtained the signature to the sale agreement, which is marked as Ex.D.23, but at the time of executing the sale deed, excluded the father of the plaintiffs and executed the

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sale deed and the same is not binding on the plaintiffs. The learned counsel contend that the Trial Court ought not have declined to grant the relief in favour of the plaintiffs in respect of item Nos.3 and 4 even though sale deed was executed by deceased defendant No.1 excluding the right of defendant No.3 and his son i.e., the plaintiff.

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The learned counsel for respondent Nos.2 to 4, 6 and 7 would submit that the Trial Court ought not to have granted the relief of partition even in respect of other properties also, as there was a partition in the year 1995. The learned counsel also submits that defendant No.1 got item Nos.3 and 4 in the said partition and hence he exclusively executed the sale deed in favour of defendant No.7 and the said sale is also made for the legal necessity. Therefore, the counsel would submit that the judgment and decree of the Trial Court and First Appellate Court requires to be set aside.

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This Court, having heard learned counsel for the appellants and also learned counsel for the respondents, framed the following substantial questions of law for consideration of this Court:

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“1. Whether the Trial Court as well as the First Appellate Court have committed an error in declining to grant the relief in favour of the appellant in respect of item Nos.3 and 4 of the ‘B’ schedule property even though sale deed was executed by deceased defendant No.1 excluding the right of defendant No.3 and his son i.e., plaintiff which is morefully described in the plaint?

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2. Whether the Courts below have committed an error in granting the relief in favour of the plaintiff before the Trial Court and confirming the same by the Appellate Court as against the material on record amounts to perversity?”.

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Having considered the grounds urged in the appeal

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memo and also the arguments of learned counsel for the appellants and learned counsel for the respondents, it is not in dispute that item Nos.3 and 4 are ancestral properties and there is no dispute with regard to relationship between the parties. It is also not in dispute that in respect of item Nos.3 and 4, both defendant Nos.1 and 3 have signed the sale agreement i.e., the document Ex.D23 and received sale consideration of Rs.1,00,000/- as against Rs.5,00,000/-. But,

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subsequently, defendant No.1 executed the sale deed in favour of defendant No.7 by receiving total consideration of Rs.1,70,000/-.

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The main contention of learned counsel appearing for the appellants/plaintiffs is that by defeating the rights of the plaintiffs and their father-defendant No.3, sale deed was executed. Learned counsel appearing for the appellant brought to notice of this Court that a recital was made in the sale deed that father D.S.Siddalingappa had purchased the property which is a self-acquired property and the said property is allotted to defendant No.1 in the partition and he got the khatha and pahani in his name and for the family necessity and in order to improve other properties sold this property. Having considered this recital is concerned, he claims that property was allotted in his favour, but there is no document before the Court that there was partition between the sons of D.S. Siddalingappa and the Trial Court while considering the issue in respect of Item Nos.3 and 4 is concerned, in paragraph No.19 comes to the conclusion that plaintiffs have disputed the sale deed executed by defendant No.1 and also an observation is

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made that the defendants have also furnished some of the documents relating to the suit schedule properties, but no documents are furnished by them to show that partition took place between the joint family members.

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It is also important to note that on account of death

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of D.S. Siddalingappa, the property was transferred in the name of defendant No.1. The material also discloses that after having transferred the property in favour of defendant No.1, he had sold the same. It is also important to note that when the father of the plaintiffs i.e. defendant No.3 was also a signatory to the sale agreement, he was excluded while executing the sale deed in favour of defendant No.7 by defendant No.1. If defendant No.3 was not having any right over the property, what made him to sign in the sale agreement Ex.D23, there is no explanation.

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D.W.1, who is examined before the Court also categorically admitted that D.S.Siddalingappa was having 5 children i.e. defendant Nos.1 to 5. Though, he claims that he saw the partition between defendant Nos.1 to 5, but such partition deed is not furnished by both the parties and the same

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is observed in paragraph No.20. Hence, did not accept the contention of D.W.1 with regard to the partition is concerned. However, the Trial Court comes to the conclusion that defendant No.3 is father of the plaintiffs and he had started printing press by taking Rs.30,000/- from joint family funds, as narrated in paragraph No.9 of the written statement of defendant No.5 and he has suffered loss of Rs.1,25,000/-. Therefore, he had demanded his share in the year 1995 and taken 5½ guntas in item No.3 and 01-05 guntas in item No.4 of schedule ‘A’ properties and also one Mangalore tiled roofed house situated in Sy.No.12 of Dodderi Village. But, in order to substantiate this contention also, nothing is placed on record.

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It has to be noted that, if such partition has taken place in the year 1995, once again what made him to take signature of defendant No.3, there is no explanation. The Trial Court also committed an error in coming to the conclusion that defendant No.1 had right to sell the suit schedule properties for legal necessity. The plaintiffs had admitted alienation between the defendant No.1 and defendant No.6, but at the same time denied the alienation between the defendant No.1 and

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defendant No.7. No doubt, in respect of the sale in favour of defendant No.6 is concerned, the defendant No.3, who is the father of the plaintiffs was also party to the proceedings, the Trial Court committed an error in coming to the conclusion that when the defendant No.1 sold item No.1 in favour of defendant No.6 for legal necessity, why the plaintiffs dispute the sale transaction between the defendant No.1 and defendant No.7 and also refused the fact that the said property was sold for the legal necessity. The defendant No.1 being the ‘kartha’ has right to alienate any portion of the property and the plaintiffs are in joint possession of item Nos.2 to 7 in schedule ‘A’ and item Nos.1 and 2 in schedule ‘B’ property and the Trial Court answered the said issue partly, excluding item Nos.3 and 4 and no reasons are assigned for excluding item Nos.3 and 4, even though the plaintiff's father was not a party to the sale deed Ex.D24 which was executed in favour of defendant No.7.

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The First Appellate Court also while considering the material on record, though extracted the recitals of the document Ex.D24, wherein the defendant No.1 claims that the property was allotted in his favour in the partition, both the

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Courts have come to the conclusion that no material is placed evidencing the fact that earlier there was a partition. But, committed an error in declining to grant the relief in respect of item Nos.3 and 4. The First Appellate Court also made an observation that execution of Ex.D23 is not at all been denied, but the only objection is that defendant No.1 did not sell the same for the benefit of the joint family and that the consideration amount mentioned is less than what is mentioned in Ex.D23 which is Rs.5,00,000/- and therefore, defendant No.1 has executed for his own benefit. Further, an observation is also made that, but at the same time, it should not be lost sight of the fact that when all the defendants have subscribed to the said document, the contention of the plaintiffs, who are the children of defendant No.3 and who have subscribed to the said document for and on behalf of the minor children coupled with the recitals in Ex.D24 where the reason has been mentioned for development of the family property and to meet out the family expenditure, the very fact that Ex.D24 was executed for a lesser amount of Rs.1,70,000/- is not such a material aspect, so as to disbelieve the recitals of Ex.D24, the said observation is erroneous, since the plaintiffs have not

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subscribed their signatures to the document Ex.D24 and even their father is also not signatory to Ex.D24-sale deed executed in favour of defendant No.7 and the same is executed exclusively by defendant No.1. Hence, the First Appellate Court committed an error in appreciating the material available on record and the very approach of the First Appellate Court is erroneous in discussing the same in paragraph No.18 and erroneously comes to the conclusion that the Trial Court had rightly deduced, inferred and came to a right conclusion that execution of Ex.D24 was proper and just and for family necessity for and on behalf of joint family and this observation is also erroneous, when the defendant No.1 makes a wrong mention in the sale deed that property was allotted in his favour in the partition. But, the fact that there was no such partition between the members of the joint family i.e., children of D.S. Siddalingappa and the First Appellate Court committed an error in coming to such a conclusion.

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Hence, there is a force in the contention of learned counsel for the appellants that both the Courts have committed an error in declining to grant the relief in respect of item Nos.3

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and 4 of the ‘B’ schedule property. Admittedly, sale deed was executed by only one defendant i.e., defendant No.1. But, the interest of defendant No.7 could be safeguarded at the time of partitioning the property and the defendant No.7 can plead equity at the time of partitioning the property in the FDP proceedings in respect of the share of defendant No.1 is concerned, but not in respect of the share of defendant No.3 i.e., the father of plaintiffs, who also got a right in the ancestral property. Hence, substantial question of law No.1 is answered accordingly.

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The other substantial question of law in view of appeal filed by the defendants in R.S.A.No.1616/2023 is whether the Courts below have committed an error in granting the relief in favour of the plaintiffs before the Trial Court and confirming the same by the First Appellate Court as against the material on record amounts to perversity.

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Having considered the material of record, when both the Courts comes to the conclusion that there was no partition between the members of joint family and no document is placed before the Court and even though, defendant No.1

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claims that already there was a partition in the year 1995, the same is not substantiated by placing any documentary evidence before the Court. When such being the case, this Court do not find any error in appreciating both oral and documentary evidence and unless any cogent evidence is placed before the Court that there was already a partition in the year 1995, the same cannot be accepted. Even, it is admitted that the entire joint family property was standing in the name of defendant No.1 i.e. D.S.Ramalingaiah, who is the eldest son of Siddalingaiah. When such being the case, the very contention of learned counsel appearing for the respondents/defendants in the appeal cannot be accepted and in the absence of any earlier partition and the same being substantiated by placing any cogent evidence, the very contention that both the Courts committed an error in granting share in favour of the plaintiffs cannot be accepted. Hence, I do not find any force in the contention of learned counsel appearing for the appellants in connected appeal in R.S.A.No.438/2023. Therefore, substantial question of law No.2 is answered as ‘negative’.

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Having considered the factual aspects of the case, Siddalingaiah is the propositus of the family and he had 5 sons. Now, the dispute is only between the children of D.S.Siddalingappa, who is the second son of Siddalingaiah. D.S. Siddalingappa is the propositus of the family and between the children of Siddalingaiah already there was partition and the issue between the parties is in respect of share of D.S. Siddalingappa, who is the second son of Siddalingaiah and the suit schedule property belongs to D.S. Siddalingappa, who is the second son of Siddalingaiah. The said D.S. Siddalingappa had 5 sons and the first plaintiff is the third S. Shanmukaiah and he is entitled for half share in the property of S. Shanmukaiah, who has got 1/5^th share out of the property of D.S. Siddalingappa, D.S. Ramalingaiah, D.S. Chandrasekharaiah, D.S. Deviramma and Nagaraju and all of them get 1/5^th share each in the property of Siddalingappa.

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In view of the discussion made above, I pass the

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following:

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ORDER

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(i) The appeal filed by the plaintiffs in R.S.A.No.1616/2023 is allowed granting half share in favour of the plaintiffs in the share of his father i.e., defendant No.3S.Shanmukhaiah in item Nos.3 and 4 of the ‘B’ schedule property.

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(ii) The other defendants i.e., defendant Nos.1, 2, 4 and 5 are also entitled for 1/5^th share each in the property.

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(iii) The subsequent purchaser i.e., defendant No.7 can claim share/equity before the FDP Court in respect of the share of defendant No.1D.S.Ramalingaiah, in view of D.S.Ramalingaiah having already executed a sale deed in favour of defendant No.7.

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(iv) The suit in respect of item No.1 of ‘A’ schedule property and also item No.1 of ‘B’ schedule property is dismissed.

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(v) In view of modification of the share of the parties as 1/5^th each in favour of children of D.S. Siddalingappa, the judgment and decree passed by the Trial Court and the First

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