Smt Pavithra Vs Keshavagowda

THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 13.11.2024 PASSED IN R.A.NO.81/2024 ON THE FILE OF THE II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, HASSAN, DISMISSING THE APPEAL AND CONFIRMING THE ORDER DATED 08.01.2024 PASSED IN FDP NO.11/2012 ON THE FILE OF PRINCIPAL CIVIL JUDGE AND JMFC, HASSAN.

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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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ORAL JUDGMENT

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This matter is listed for admission and I have heard

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learned counsel for the appellants.

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The plaintiffs have filed the suit in O.S.No.274/1997

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seeking the relief of partition and separate possession in respect of the suit schedule properties which have been described in the plaint. The Trial Court having considered the material available on record i.e., the evidence of P.Ws.1 and 2 and also the evidence of witnesses D.Ws.1 to 5 and documents of Exs.P1 to P24 and Exs.D1 to D9, granted the relief of

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HC-KAR

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partition and separation possession in respect of suit schedule properties granting 1/6^th share each in suit item Nos.1, 2, 4, 6 and 7 and declined to grant any relief of partition of share in the property in item Nos.3 and 5. This judgment was passed on 17.04.2006 and the said judgment and preliminary decree granting the share was not challenged. The very appellants have filed F.D.P.No.11/2012 after six years, wherein petitioner No.4 prayed the Court that petitioner No.4 is entitled to retain petition schedule item Nos.8 and 9, in lieu of other petition schedule properties and respondent Nos.2 to 4 claim that they are also entitled to share in the petition schedule properties as coparceners and respondent No.5 also prayed the Court to drop suit schedule item No.1 from the final decree proceedings.

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Before the Trial Court, the evidence of the parties

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are also recorded and the FDP Court while considering the evidence of respective parties, having taken note of the earlier observation made by the Trial Court in O.S.No.274/1997 that item Nos.3 and 5 are not available for partition while granting the relief of preliminary decree, in detail discussed the claim of petitioner No.4 claiming retaining of item Nos.8 and 9 and

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retain the same and in paragraph No.37 of the order of the FDP Court, particularly taken note of evidence of P.Ws.1 and 2 and R.W.2 in respect of Sy.No.11/6A to the extent of 23 guntas and also in respect of Sy.No.72/6 to the extent of 12 guntas and also observed that suit schedule item Nos.8 and 9 of the properties are ancestral properties and that their father did not have any authority to give them to Shivanna and in detail discussed the admission. In paragraph No.39, an observation is made that if suit schedule item Nos.1, 3 and 5 are selfacquired properties, then there was no hurdle for him to say so even in respect of suit schedule item Nos.8 and 9 while executing the documents of Exs.P31 and P36. The FDP Court also taken note of the fact that those two items are not included in O.S.No.274/1997. Even in the final decree proceedings also, they had not include the said properties initially. It was at the instance of petitioner No.4, the said properties are impleaded in the final decree proceedings and in detail discussed the conduct of petitioner No.4 in impleading the said two items as petition schedule item Nos.8 and 9 during

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the pendency of the final decree proceedings also shows that they are also ancestral and joint family properties, otherwise,

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she would not have impleaded them in the final decree proceedings. But, claim was made to retain the same and taking into note of conduct of Rangegowda in describing suit item Nos.8 and 9 in Exs.P31 and 36 coupled with oral and documentary evidence on record and also in view of conduct of petitioner No.4, the FDP Court comes to the conclusion that petition schedule item Nos.8 and 9 are also ancestral and joint family properties. Hence, declined to grant the relief as sought by petitioner No.4 in the FDP proceedings.

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In the FDP proceedings also, the Trial Court having considered the claim made by the respondents, who are the daughters i.e., respondent Nos.2 to 4, comes to the conclusion that they are also entitled for a share as coparceners in view of the judgment of the Apex Court. Hence, modified the share as 1/8^th share each in respect of item Nos.1, 2, 4 and 6 to 9 and also an observation is made that as the defendant No.4Shivanna is no more, his legal representatives i.e., petitioner Nos.4 and 5 herein are entitled to succeed to his share.

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The said order has been challenged before the First Appellate Court by filing an appeal in R.A.No.81/2024

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questioning the finding on issue Nos.1 and 2 which were answered by the FDP Court as ‘negative’ and ‘affirmative’ respectively and the First Appellate Court also on reassessing the evidence available on record, formulated the points whether the Trial Court is right in passing order on modification of preliminary decree dated 08.01.2024 in F.D.P.No.11/2022. The First Appellate Court having reassessed the evidence available on record, extracted the same in paragraph No.20 and reference was made i.e., the observations made in paragraph No.37 of the judgment of the Trial Court in FDP proceedings and the First Appellate Court also in detail taken note of both oral and documentary evidence placed on record and also an observation is made that when the judgment and decree was passed in original suit i.e., preliminary decree, the same was not challenged and also taken note of in paragraph No.22 that in the final decree proceedings sought to include item Nos.8 and 9 of the properties to contend that those properties have been exclusively given to Shivanna, the husband of appellant No.1 and therefore, other children of Rangegowda are entitled

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to claim share in the said property.

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The First Appellate Court also having reassessed the material on record and also considering allotting of 1/6^th share to each of them and also taking note of the right of the daughters, who were born earlier with effect from 09.09.2005 with savings as provided under Section 6(1) of the Act and daughters have also not questioned the judgment and decree passed in respect of the suit item Nos.3 and 5 as per the decree of the Trial Court and only at the time of adjudication of final decree proceedings, they came before the Court and sought for allocation of their share and in detail discussed the same in paragraph No.22. The First Appellate Court also in paragraph No.23, having considered the material on record, when the petitioner No.4 husband himself has not challenged the said preliminary decree contending that he is also entitled to equal share in suit Nos.3 and 5 properties, now the petitioner Nos.4 and 5, legal heirs of defendant No.4-Shivana cannot now contend that suit item Nos.8 and 9 have been given to Shivanna to meet the family legal expenses. The First Appellate Court also having considered the material on record, observed that particularly from the settlement made in the settlement deed, it is clear that said item Nos.8 and 9

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properties are not absolute properties, but it were the ancestral and joint family properties and on careful perusal of the same, it discloses that defendant No.1-Rangegowda has clearly stated that he is giving his share in favour of Shivanna. Hence, comes to the conclusion that the said property is not exclusive property of said Rangegowda. The First Appellate Court also made an observation that it is only the partition effected by way of registered deed prior to 20.09.2004, which debars a daughter from taking an equal share with a son in a coparcenery property. Further, held that in the case on hand, admittedly, there is no registered partition deed between Sannamadaiah and Mahadevappa, evidencing alleged partition that took place in the year 2000. Even if there was a partition, oral or by way of an unregistered partition deed of the year 2000 as contended by the defendants, it cannot be treated as partition for the purpose of Section 6 and the rights of the daughters to claim an equal share as coparceners along with Sannamadaiah’s son and Mahadevappa remained unaffected.

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The First Appellate Court also having reassessed

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both oral and documentary evidence placed on record comes to

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the conclusion that Trial Court while passing the order in FDP modifying the preliminary decree, categorically comes to the conclusion that Ex.P36-palupatti dated 30.11.2006 which is said to have come into existence by and between Rangegowda and his sons does not refer to Ex.P31 which are given to Shivanna. If at all suit Nos.8 and 9 properties were given to Shivanna in a partition, nothing prevented them to disclose the said fact in the previous proceedings. It appears the said Exs.P31 and P36 shown to have come into existence after passing of judgment and decree in O.S.No.274/1997. Therefore, the findings recorded by the Trial Court with regard to petition item Nos.8 and 9 does not suffers from any infirmity. The Trial Court rightly appreciated the pleading and evidence adduced by both the parties and confirmed the judgment of the Trial Court passed in F.D.P.No.11/2012. Being aggrieved by the said concurrent finding of the Trial Court passed in F.D.P. as well as the First Alppellate Court, the present second appeal is filed before this Court.

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The main contention of learned counsel for the appellants in this second appeal is that Article 241(c) covers

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marriage expenses of both male and daughters of coparceners. Kartha sold item Nos.3 and 5 of the properties for marriage expenses of the daughters of coparceners only but not stated in the judgment otherwise daughters are not to be treated as coparceners sold items of sale deed is illegal one and those properties are sold for the daughters coparceners and both the Courts failed to take note of said fact into consideration. Hence this Court has to frame substantial question of law and admit the second appeal.

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Having heard learned counsel for the appellants and also having considered the material available on record and finding of the FDP Court as well as First Appellate Court, it is not in dispute that item Nos.8 and 9 which is sought to be included in the FDP proceedings are not included in O.S.No.274/1997. But, subsequently, in the FDP proceedings, the same are included. The Trial Court having considered both oral and documentary evidence placed on record as well as admission on the part of P.Ws.1 and 2 and R.W.2, comes to the conclusion that item Nos.8 and 9 are also ancestral properties and granted the relief and the First Appellate Court also having

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considered both oral and documentary evidence placed on record, in detail discussed the same i.e., the nature of properties and also claim made by petitioner No.4, that too afterthought, when the relief is sought in FDP, when the judgment and decree of Trial Court was not challenged i.e., in O.S.No.274/1997, the very grounds which have been urged before this Court in second appeal by the learned counsel for the appellants, invoking Article 241(c) with regard to the marriage expenses is concerned, when the judgment of the Trial Court in O.S.No.274/1997 has already attained its finality and judgment was passed in 2006 and FDP was filed in 2012 and only in FDP proceedings sought for insertion of item Nos.8 and 9 and finding of the Trial Court was not challenged in respect of item Nos.3 and 5 of the original suit. When such being the case, both the Trial Court as well as the First Appellate Court taken note of the material on record, there is no substantial question of law to frame in the case on hand by admitting the appeal, since both the Courts have considered the material available on record on the point of question of fact and question of law and there is no substantial question of law to admit this second appeal.

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