H a Lokesh Gowda Vs Smt N R Arathi

THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCECURE, AGAINST THE JUDGMENT AND DECREE DATED 22.09.2016 PASSED IN R.A. NO.27/2013 ON THE FILE OF THE II ADDITIONAL DISTRICT JUDGE, CHIKKAMAGALURU, ALLOWING THE APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE DATED 18.01.2013 PASSED IN OS NO.19/2010 ON THE FILE OF THE SENIOR CIVIL JUDGE, CHIKMAGALUR.

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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 E.S.INDIRESH

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ORAL JUDGMENT

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This appeal is preferred by defendant Nos.1 and 2 challenging the judgment and decree dated 22.09.2016 passed in R.A.No.27/2013 on the file of II Additional District Judge, Chikkamagaluru (hereinafter termed as 'First Appellate Court'), allowing the appeal in part and setting aside the judgment and decree dated 18.01.2013 in O.S.No.19/2010 on the file of Senior Civil Judge,

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NC: 2025:KHC:34100 RSA No. 2167 of 2016

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HC-KAR

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Chikkamagaluru (hereinafter termed as 'Trial Court') in

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respect of the allotment of share is concerned.

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For the sake of convenience, parties are referred to as per their ranking before the Trial Court.

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It is the case of the plaintiffs that, plaintiff No.1 is the wife of late Sri. H.A. Chandre Gowda and plaintiff No.2 is the daughter of plaintiff No.1 and late Sri. H.A. Chandre Gowda. It is stated that, late Sri. H.A. Chandre Gowda died on 22.08.2004 leaving behind the plaintiffs as his legal heirs. It is further stated that, the suit schedule properties are the ancestral properties of the husband of plaintiff No.1 - late Sri. H.A. Chandre Gowda and the defendants. It is also stated that, the father of late Sri. H.A. Chandre Gowda - Sri.Annegowda and his wife Smt.Manjamma died intestate and therefore, the plaintiff and defendants are entitled for 1/3^rd share each in the suit schedule properties.

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HC-KAR

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The plaintiffs have made a claim for partition in the suit schedule properties by issuing a notice dated 03.04.2009 calling upon defendant No.1 for partitioning the suit schedule properties. However, the defendants have not come forward to partition in respect of the suit schedule properties. Accordingly, the plaintiffs have filed O.S.No.19/2010 before the Trial Court seeking relief of partition and separate possession in respect of the suit schedule properties.

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On service of notice, the defendants entered appearance and defendant No.1 had filed a detailed written statement. The defendants have admitted the relationship between the parties and contended that, the suit schedule properties are the joint family properties of the parties, except item No.8. It is the specific case of defendant No.1 that, item No.8 of the suit schedule properties was acquired by defendant No.1 through his individual income and therefore, sought for dismissal of the suit in respect of item No.8 of the suit schedule properties.

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HC-KAR

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The Trial Court based on the pleadings on record

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has formulated the issues for its consideration. In order to establish their case, plaintiff No.1 was examined as P.W.1 and got marked 22 documents as Exs.P1 to P22. Defendant No.1 was examined as D.W.1 and no documents were produced by the defendants.

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The Trial Court after considering the material on record, by judgment and decree dated 18.01.2013 decreed the suit holding that, the plaintiffs are entitled for 1/3^rd share in the 'A' suit schedule property. Feeling aggrieved by the same, the defendants have preferred R.A.No.27/2013 before the First Appellate Court and the same was resisted by the plaintiffs. The First Appellate Court after reappreciating the material on record, allowed the appeal in part and modified the shares of the parties. Feeling aggrieved by the same, the defendants have preferred this Regular Second Appeal.

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NC: 2025:KHC:34100 RSA No. 2167 of 2016

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HC-KAR

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Heard Sri. Gururaj R., learned counsel appearing for the appellants and Sri. Ajith Anand Shetty, learned counsel appearing for respondents.

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Sri. Gururaj R., learned counsel appearing for

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the appellants submitted that, item No.8 of the suit schedule properties was acquired by defendant No.1 as per the registered Sale Deed dated 22.08.1984 and therefore, both the Courts below have committed an error in granting share to the plaintiffs in respect of item No.8 of the suit schedule properties. Accordingly, sought for interference of this Court.

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Per contra, Sri. Ajith Anand Shetty, learned counsel appearing for respondents sought to justify the impugned judgment and decree passed by the Trial Court.

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Having taken note of the submission made by the learned counsels appearing for the parties, I have carefully examined the finding recorded by both the Courts below. In order to understand the relationship between the

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NC: 2025:KHC:34100 RSA No. 2167 of 2016

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HC-KAR

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parties, it is relevant to extract the Genealogical Tree of the

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parties which is as under:

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Genealogy Tree Annegowda (dead) Manjamma (wife) H. A.Chandregowda Lokeshgowda Channegowda H.A.Jayamma (Dead) (Defendant-1) (died issueless) (Defendant-2) N.R.Arathi (wife) (Plaintiff-1)

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Kum. H.C.Sharadhi (daughter) (Plaintiff-2)

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It is not in dispute that, the suit schedule properties belong to the father-in-law of plaintiff No.1 - Late Sri. Annegowda who is the father of the defendants.

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It is the case of the plaintiffs that the suit

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schedule properties are joint family properties of Late

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HC-KAR

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Sri. Annegowda and on his demise, children of late Sri. Annegowda are entitled for equal share in the suit schedule properties.

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On the other hand, defendant No.1 contended

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that, item No.8 of the suit schedule property was purchased by him as per the registered Sale Deed dated 22.08.1984. In this regard, careful examination of the finding recorded by the Trial Court, would indicate that, item Nos.1 to 7 and 9 of the suit schedule properties are the joint family properties and therefore, there is no dispute with regard to the same. Insofar as item No.8 is concerned, I am of the opinion that, finding recorded by both the Courts below that, the item No.8 of the suit schedule property was purchased by defendant No.1 out of the joint family income as per the finding recorded by the Trial Court requires to be confirmed. It is also forthcoming from the evidence of D.W.1, that the entire family is based on the occupation of agriculture and he has no independent income. In that view of the matter, as the defendant No.1 himself admits the

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HC-KAR

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income is only from the family and no material has been produced by defendant No.1 to substantiate the fact that, item No.8 of the suit schedule properties was purchased by him through his independent income, I am of the view that, no interference is called for in the judgment and decree passed by the Trial Court. Insofar as the judgment and decree passed by the First Appellate Court is concerned, the First Appellate Court has rightly dismissed the suit in respect of item No.6 of the suit schedule properties as plaintiffs and defendants have jointly sold the said property for their legal necessities.

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In that view of the matter, taking into consideration the fact that, the entire suit schedule properties except item No.6 of the 'A' schedule property is the joint family properties and the same has to be divided equally i.e., 1/3^rd share each between the plaintiff together and the defendants.

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