G S Nataraj Vs Suryaprabha

(R1, R2, R3, R6 ARE SERVED; R4 AND R5 - SERVICE OF NOTICE HELD SUFFICIENT AND PLACED EXPARTE V/O DATED 07.08.2019; R4 TO R6 ARE TREATED AS LRS OF R7 V/O DATED 14.02.2017)

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THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE, AGAINST THE JUDGMENT & DECREE DATED 27.08.2014 PASSED IN R.A.NO.54/2009 ON THE FILE OF THE PRINCIPAL DISTRICT JUDGE, CHICKBALLAPUR,PARTLY ALLOWING THE APPEAL AND UPHOLDING THE JUDGMENT AND DECREE DATED 16.10.2009 PASSED IN OS.NO.65/2001 ON THE FILE OF THE CIVIL JUDGE (SR.DN.) & CJM, CHICKBALLAPUR.

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NC: 2025:KHC:35354 RSA No. 40 of 2015

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HC-KAR

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THIS APPEAL, COMING ON FOR FINAL HEARING, 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 the defendant No.3 and the legal representatives of the defendant No.4, challenging the Judgment and Decree dated 27.08.2014 passed in Regular Appeal No.54/2009 on the file of the Principal District Judge, Chickballapur, allowing the appeal in part, modifying the shares of the parties made in the Judgment and Decree dated 16.10.2009 passed in O.S. No.65/2001 on the file of the Civil Judge (Sr. Dn.) and C.J.M., Chickballapur, decreeing the suit of the plaintiff.

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For the sake of convenience, parties are referred with reference to their rank before the Trial Court.

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Respondents have been served and remained absent.

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NC: 2025:KHC:35354 RSA No. 40 of 2015

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HC-KAR

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It is the case of the plaintiffs that, the suit schedule properties are belonging to the father of the plaintiffs, defendant Nos.1, 2 and 4 - Oleti Venkatachalapathi Setty. It is further stated that father of the plaintiffs died on 02.02.1997 and during his life time, father of the plaintiffs had executed registered release deed dated 16.03.1981 in favour of his son - O.V. Sridhara Murthy (defendant No.4). It is the case of the plaintiffs that, plaintiffs and defendant Nos.1 and 2 are full sisters and have to succeed to the estate of their father and therefore, plaintiffs filed suit seeking relief of partition and separate possession in respect of the suit properties in O.S.No.65/2001.

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After service of summons, defendants entered appearance and filed detailed written statement. Defendant Nos. 1 and 2 admit the relationship with the plaintiffs. It is the case of defendant Nos.1 and 2 that, their brother - defendant No.4, has performed the marriage of the plaintiffs and defendant Nos.1 and 2 and therefore, father of the plaintiffs

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and defendant Nos.1, 2 and 4, executed a registered release deed in favour of his son - defendant No.4 on 16.03.1981. It

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NC: 2025:KHC:35354 RSA No. 40 of 2015

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HC-KAR

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is also stated that the defendant No.3 was in possession of item No.2 of the schedule property as a tenant and as such, the defendant No.4 has filed HRC No.9/1996 against the defendant No.3 and same was ended in compromise and therefore, it is stated by defendant Nos.1 and 2 that, the defendant No.2 being unmarried and residing with defendant No.4 and accordingly, sought for share in the item No.1 of the suit schedule properties.

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Defendant No.3 has filed separate written statement stating that, the item No.2 property was mortgaged by the father of the plaintiffs and defendant No.4 and later the mortgage was redeemed on 05.05.1996. It is also stated that the defendant No.3 has purchased the item No.2 of the schedule properties for valuable of sale consideration of Rs.2,40,000/- and registered Sale Deed dated 18.04.2001 was executed in favour of defendant No.3 and therefore, sought for dismissal of the suit.

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Defendant No.4 was impleaded in the suit and has filed separate written statement admitting the relationship between the parties and the execution of the release deed by his father.

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NC: 2025:KHC:35354 RSA No. 40 of 2015

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HC-KAR

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It is the contention of defendant No.4 that the item No.2 of the schedule properties was sold for legal necessity of the family and accordingly, sought for dismissal of the suit.

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Based on the pleadings on record, the Trial Court framed issues and thereafter, re-casted the issues. In order to establish their case, plaintiff No.1 was examined as P.W.1 and produced three documents as Exs.P1 to P3 and on the other hand, defendants had examined one witness as D.W.1 and got marked 15 documents as Exs.D1 to D15. The Trial Court after considering the material on record, by its Judgment and Decree dated 16.10.2009, decreed the suit and being aggrieved by the same, the defendant No.2 and the legal representatives of defendant No.4 had preferred R.A.No.54/2009 before the First Appellate Court. The said appeal was resisted by the respondents therein. The First Appellate Court by the Judgment and Decree dated 27.08.2014, allowed the appeal in part and modified the shares of the parties. Being aggrieved by the same, the defendant No.3 and legal representatives of defendant No.4 have preferred this Regular Second Appeal.

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NC: 2025:KHC:35354 RSA No. 40 of 2015

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HC-KAR

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This Court, vide order dated 11.03.2020, formulated the following substantial question of law:

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" In view of the fact that Oleti Venkatachalapathy Setty (Propositus) died on 02.02.1997, whether the Appellate Court could have granted 1/5^th share to the plaintiffs as against their entitlement of 1/12^th share each?"

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I have heard Smt. Sruti Chaganti, learned counsel appearing for the appellants.

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Learned counsel appearing for the appellants argued with reference to the release deed dated 16.03.1981, that the finding recorded by the First Appellate Court requires interference as both the Courts below have ignored the proceedings before the House Rent Controller and therefore, sought for interference of this Court. It is also submitted by the learned counsel for the appellants that, the suit schedule item Nos.1 and 2 have been inherited by defendant Nos.2 and 4, and the defendant No.4, defendant No.2 and mother of the

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NC: 2025:KHC:35354 RSA No. 40 of 2015

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HC-KAR

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plaintiff - Venkatalakshmamma had sold the schedule property in favour of defendant No.3 for legal necessities and therefore, sought for interference of this Court.

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Having heard the learned counsel appearing for the parties, in order to understand the relationship between the parties, the genealogy of the parties is as under:

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N¯ÉÃn ªÉAPÀmÁZÀ®¥Àw ±ÉnÖ (¥sÀ)
ºÉA: ªÉAPÀl®PÀëöäªÀÄä (¥sÀ)
¸ÀégÁdå ®QëöäÃ ¸ÀÆAiÀÄð¥Àæ¨sÁ C¥ÀgÀAfzÉÃ« ²æÃzsÀgïªÀÄÆwð
¨sÁgÀvÀªÀÄä (¥sÀ)
(67) (63) GgÀÄ¥sï (¥sÀ)
UÀA:UÉdÓ® d£ÁzÀð£ï
±ÉnÖ (68 ) ªÀÄzÀÄªÉ E®è UÀA: ªÀÄ£ÉªÁ¸À ¨sÁUÀå®QëöäÃ ºÉA: M.J¸ï.
(61) ±À²PÀ¯Á (48)
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(²jµÀ) (20)
»ªÀÄ©AzÀÄ ªÀ¸ÀÄzsÀ (36)
²æÃzÉÃ«(42)
(40)

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Perusal of the above genealogy tree would indicate that,

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plaintiffs, defendant Nos.1, 2 and 4 are the children of Oleti Venkatachalapathi Setty and Venkatalakshmamma. Oleti

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NC: 2025:KHC:35354 RSA No. 40 of 2015

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HC-KAR

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Venkatachalapathi Setty died leaving behind two items of the schedule properties. It is forthcoming from the finding recorded by both the Courts below that the mother of the plaintiffs, defendant No.2 (unmarried daughter) and defendant No.4 have executed registered Sale Deed dated 18.04.2001 in respect of the item No.2 of the schedule property in favour of defendant No.3 for family necessities. It is also to be noted that, plaintiffs were married and for clearing the loan amount availed in respect of performing their marriage and for family necessities, item No.2 was sold in favour of defendant No.3. It is also forthcoming that, the defendant No.4 had executed the registered release deed dated 16.03.1981 in favour of his father. Perusal of the recitals in Ex.P3 makes it clear that, the item No.2 schedule property was sold for family necessities. In that view of the matter, no interference is called for in so far as item No.2 of the schedule property is concerned.

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In respect of the item No.1 of the schedule property is concerned, the schedule property stand in the name of the father of the plaintiffs, defendant Nos.1, 2 and 4. It is also not in dispute that the defendant No.4 had executed release deed

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NC: 2025:KHC:35354 RSA No. 40 of 2015

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HC-KAR

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dated 16.03.1981 (Ex.P1) in favour of his father - Oleti Venkatachalapathi Setty. It is not in dispute that the item No.1 of the schedule properties has to be equally devolved on plaintiffs and defendant Nos.1, 2 and 4.

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It is the case of the appellant that, the plaintiffs, defendants No.1, 2 and 4 are the children of Oleti Venkatachalapathi Setty. Upon perusal of the findings recorded by the Courts below would indicate that the schedule properties are the ancestral properties of the children of Oleti Venkatachalapathi Setty.

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On careful examination of the recitals in the sale deed dated 18.04.2001 said to have been executed by the defendant No.4 in favour of defendant No.3 would indicate that, the sale of item No.2 made in favour of defendant No.3 is for the benefit

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of joint family. It is also forthcoming from the evidence on record that, the said sale is for the well being of one of the daughters of the family i.e., Kum.Swarajyalakshmi (defendant No.2). In that view of the matter, the sale made in favour of the defendant No.3 as per sale deed dated 18.04.2001 requires to be confirmed.

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NC: 2025:KHC:35354 RSA No. 40 of 2015

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HC-KAR

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In so far as the item No.1 of the schedule property is concerned, perusal of the findings recorded by both the Courts below would indicate that the item No.1 is the joint family property of the parties, and belonged to Oleti Venkatachalapathi Setty. In that view of the matter, all the children of late Oleti Venkatachalapathi Setty viz., the plaintiffs, defendant No.1, 2 and 4 herein are entitled for 1/5^th share each in item No.1 of the schedule property.

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The claim made by the plaintiffs insofar as item No.2 of the schedule property has to be dismissed.

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In the result, I pass the following:

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ORDER

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i) The Regular Second Appeal is allowed.

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ii) The Judgment and Decree dated 27.08.2014 in R.A. No.54/2009 on the file of the learned Prl. District Judge, Chickaballapur, and the Judgment and Decree dated 16.10.2009 in O.S. No.65/2001 on the file of the Civil Judge (Sr.Dn.) & C.J.M., Chickaballapur, are hereby set aside.

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