Smt Siddagangamma Vs Sri Bylappa

SMT. SIDDAGANGAMMA, D/O LATE BYLAPPA, W/O MANOHAR S.H., AGED ABOUT 58 YEARS, REISIDING AT HALENAHALLI VILLAGE, MADHURE HOBLI, DODABALLAPURA TALUK. AT PRESENT R/AT CHIKKABOMMASANDRA VILLAGE, YELAHANKA HOBLI, BENGALURU NORTH TALUK, PIN: 560 067.

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…APPELLANT (BY SRI. HANUMANTHAPPA HARAVI GOWDAR, ADVOCATE)

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AND:

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SRI. BYLAPPA, S/O MARIYAPPA, AGED ABOUT 44 YEARS, RESIDING AT HALENAHALLI VILLAGE, MADHURE HOBLI, DODDABALLAPURA TALUK, PIN: 560 106.

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SRI. HUCHANNA, S/O LATE GANGAIAH, AGED ABOUT 58 YEARS, RESIDING AT MALLOHALLI VILLAGE, MADHURE HOBLI, DODDABALLAPURA TALUK, PIN: 560 106.

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…RESPONDENTS

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(BY SRI. RAVISHANKAR K., ADVOCATE FOR C/R2)

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THIS RSA IS FILED UNDER SECTION 100 OF CPC, AGAINST THE JUDGMENT AND DECREE DATED 11.08.2023 PASSED IN R.A.NO.10/2020 ON THE FILE OF ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, DODDABALLAPURA, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 26.02.2020 PASSED IN O.S.NO.347/2011 ON THE FILE OF PRINCIPAL CIVIL JUDGE AND JMFC, DODDABALLAPURA.

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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. Heard the learned counsel for the appellant.

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This appeal is filed against the judgment and decree of the Trial Court passed in O.S.No.347/2011 and also against the judgment and decree passed in R.A.No.10/2020 confirming the judgment of the Trial Court.

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The main contention of the learned counsel for the

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appellant is that originally the property belongs to the father and the father had purchased the property in the year 1967 i.e., through sale deed dated 17.05.1967. It is contended that the plaintiff and defendant No.1 are the absolute owners and in possession of the suit schedule properties and khatha and pahani of the said properties stands in the name of ancestors of the plaintiff and defendant No.1. The suit schedule item No.1 property originally purchased by the plaintiff’s father Bylappa and till today there is no any partition in the suit schedule properties by metes and bounds. Therefore, the plaintiff is entitled for half share in the suit schedule properties. It is also the contention that the plaintiff’s father late Bylappa had wife by name Kempamma and had two children by name Mariyappa, who is no more and Siddagangamma i.e., the plaintiff. The defendant No.1 Bylappa is the only son of deceased Mariyappa. The defendant No.2 is a stranger to the joint family. On 20.07.2011 when the plaintiff was cultivating the suit schedule property, the defendants tried to interfere and tried to dispossess the plaintiff from the suit schedule property and on questioning the same, the defendants claims that sale deed

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was executed by Kempamma in favour of defendant No.2. The defendants refused to give share in favour of the plaintiff and hence the plaintiff filed the suit.

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The defendant No.1 filed the written statement contending that the plaintiff’s suit is not maintainable. The plaintiff neither has locus-standi nor have right of any kind to file the suit for partition. The defendant No.1 admitted that the plaintiff and defendant No.1 are the absolute owners and are in joint possession and enjoyment of the suit schedule item No.1 property. The defendant No.1 also admitted that the suit schedule item No.2 property was purchased by Bylappa S/o Hanumanthaiah under a registered sale deed dated 17.05.1967 from Eregowda and Puttamma. Ever since from the date of purchase, Bylappa and his family members are cultivating the said property. The defendant No.1 also admitted that pedigree of their family as stated by the plaintiff is true. However, contend that there is no cause of action for the suit. The alleged cause of action is created and the relief prayed by the plaintiff cannot be granted. The defendant No.1 contented that on 17.11.1997, Kempamma executed a registered sale deed in

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favour of defendant No.2 in respect of suit schedule item No.1 property. In the said sale deed, it is mentioned that the said property was granted by the Land Tribunal in favour of Kempamma and she was in exclusive possession of the same. But the said land was not granted in favour of Kempamma by the Land Tribunal. The defendant No.2 is not in possession of the suit schedule property and defendant No.2 never derived any right in pursuance of the alleged sale deed dated 17.11.1997. However, claims that both the plaintiff and defendant No.1 are in joint possession of the suit schedule property.

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The defendant No.2 filed the written statement contending that suit itself is not maintainable and the plaintiff has not approached the Court with clean hands. The plaintiff suppressed the true material facts and she is claiming half share. It is contended that the suit schedule property was purchased by defendant No.2 for valuable consideration after verifying all the necessary documents. It is contended that the land was granted in favour of Kempamma in LRF No.205/1975-

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76 and the said Kempamma executed the sale deed and hence

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the suit is liable to be dismissed.

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Based on the pleadings of the parties, the Trial Court framed the issue whether the plaintiff is entitled for half share in the suit schedule property and also additional issue is framed consequent upon the defence taken by defendant No.2 that whether defendant No.2 proves that Smt.Kempamma has sold the suit item No.1 for her family necessity? The plaintiff in order to prove her case, examined herself as P.W.1 and also examined four witnesses as P.W.2 to P.W.5. The defendant No.2 examined himself as D.W.1 and examined two witnesses as D.W.2 and D.W.3. The Trial Court having considered the documents of Exs.P.1 to 30 and Exs.D.1 to 39, answered issue No.1 partly in the affirmative and answered the additional issue in the affirmative and decreed the suit in part granting relief in respect of item No.2 of the property and not granted any relief in respect of item No.1 of the property.

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Being aggrieved by the said judgment and decree of

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the Trial Court, an appeal is filed in R.A.No.10/2020. The First Appellate Court having considered the grounds urged in the

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appeal memo, formulated the point whether the Trial Court committed an error in declining to grant the relief in respect of item No.1 of the property and whether it requires interference of this Court. The First Appellate Court having re-assessed the material available on record, particularly the admission on the part of P.W.1, who claims that the property belongs to the family and it is an ancestral property, which is extracted in the judgment itself in paragraph No.24, comes to the conclusion that the property was granted in favour of Kempamma and the same is admitted. The First Appellate Court, in paragraph No.32 taken note of Section 14 of the Hindu Succession Act and held that Kempamma becomes the absolute owner under Section 14(1) of the Hindu Succession Act and confirmed the judgment of the Trial Court. In paragraph No.38, made an observation that suit item No.1 was granted by the Tahsildar in favour of Kempamma. As per Section 14 of the Hindu Succession Act, even a property which is purchased or granted in the name of female becomes her absolute property and she has sold the property during her lifetime and confirmed the judgment of the Trial Court.

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Being aggrieved by the concurrent finding, the present second appeal is filed before this Court.

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The main contention of the learned counsel for the appellant before this Court is that both the Courts failed to take note of the sale deed dated 17.05.1967 executed by its erstwhile owner Eregowda and Puttamma, since it is the absolute property of the appellant’s late father Bylappa and the appellant is not getting her half equal share as that of son in the light of amendment to Section 6(1) of the Hindu Succession Act by the Central Government as it is not correct. Whether both the Courts are justified that the mother of the appellant would become absolute owner in LRF No.205/1975-76 on the file of the Land Tribunal, Doddaballapura for granting of occupancy right in favour of appellant’s mother late Kempamma and from her, respondent No.2 had purchased the property dated 17.11.1997. Whether both the Courts are justified that sale deed dated 17.05.1967 as it is not absolute registered sale deed executed by the erstwhile owner Eregowda and Puttamma and hence it requires interference of this Court

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and the matter may be admitted and frame substantial question of law.

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Having heard the learned counsel for the appellant and on perusal of the material available on record, no doubt, suit is filed by one of the daughter of Kempamma in O.S.No.347/2011 and claim is made based on the sale deed dated 17.05.1967. The Trial Court taken note of the fact that the sale was made in the year 1997 and the suit was filed in the year 2011 after 14 years of sale made by the mother. It is also important to note that the plaintiff is also having a brother and he is no more. However, the brother had left defendant No.1 as his son. No doubt, defendant No.1 also filed the written statement, but the material clearly discloses that it is the specific contention of defendant No.2 in the written statement that sale was made for the family necessity and also the fact that when the sale deed was executed in the year 1997, possession of the property was parted with in terms of the sale deed, which is marked as Ex.D.5 dated 17.11.1997. Both the Courts have taken note of the recitals made in the document of sale deed, wherein Kempamma has claimed that

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the land was granted in her favour in terms of the copy of the order passed in LRF No.205/1975-76 Ex.D.2 and also Ex.D.1 true copy of statement in LRF No.205/1975-76. When the plaintiff was cross-examined, she categorically admitted that the land was granted in favour of Kempamma and the same is extracted in paragraph No.24 of the judgment of the First Appellate Court. It is contended by defendant No.2 that property was granted in favour of Kempamma as per the grant certificate Ex.D.6 and Exs.D.7 and 8 are the mutation register extracts. On perusal of the same, it is noticed that as per the order of LRF No.205/1975-76, the suit item No.1 property was mutated in the name of the deceased Kempamma. On perusal of the sale deed dated 17.11.1997, which is marked as Ex.D.5, recitals disclose that Kempamma mentioned suit item No.1 property was allotted to her by way of a grant and the same is discussed in detail in paragraph No.24 of the First Appellate Court order.

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The Trial Court while considering the case of the plaintiff, in detail discussed in paragraph No.30 that the sale deed further reveals that one Mariyappa S/o Bylappa and Smt.

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Channamma W/o Mariyappa have signed the said sale deed as witnesses and comes to the conclusion that on perusal of the recitals of Ex.D.5 sale deed, it reveals that for family necessity, Kempamma alienated the suit item No.1 property. Mariyappa, son of Kempamma and his wife are also the attesting witnesses. In paragraph No.31, the Trial Court taken note of Ex.D.5 sale deed and extent of 3 acres 7 guntas are sold in favour of defendant No.2 and also taken note of Ex.D.6 LRF grant order. The Trial Court also made an observation that when the sale was made in the year 1997 itself, it has got its presumptive evidentiary value and even taken note of as per Article 110 of Limitation Act, plaintiff has got 12 years time to challenge the alienation made by Kempamma. But, the suit was filed after 14 years and limitation starts from the date and the exclusion become known to the plaintiff. Both the Courts have taken note of both the question of fact and question of law. When such being the case, the material clearly discloses that grant was made in favour of Kempamma by LRF. P.W.1 categorically admits that an application was filed before the Tribunal by Kempamma herself before granting the same and the statement was also made in terms of Ex.D.1 and all these

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factors were taken note of. When such being the case, I do not find any error committed by the Trial Court and the Appellate Court in considering the material available on record and the suit was filed after 14 years of sale made by the mother in the year 1997. Both question of law i.e., limitation as well as right, which the plaintiff is having is also taken note of by the Trial Court both in respect of sale made by the mother for legal necessity and also the son and daughter-in-law of Kempamma, who are also attesting witnesses to the document of Ex.D.5 sale deed and it appears that the plaintiff is set-up subsequent to the sale made, which was made 14 years ago to file a suit for the relief of partition. When such being the case, the very contention of the plaintiff that she is entitled for the relief of half share in the property does not arise, since the said property was already sold in favour of defendant No.2 in the year 1997. Hence, I do not find any material to admit the appeal and frame any substantial question of law.

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