Sri. Nagaiah @ Nagaraju Vs Sri. K E Basavarajaiah

THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE DATED 20.03.2025 PASSED IN RA NO.35/2024 ON THE FILE OF PRINCIPAL JUDGE, FAMILY COURT, AT TUMAKURU., DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 2.09.2022 PASSED IN OS NO.78/1999 ON THE FILE OF II ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, TUMAKURU.

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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 the

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counsel appearing for the appellant and also the

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caveators/respondent Nos.1 and 2.

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This second appeal is filed against the concurrent finding. The plaintiffs are the children of Eranna through the first wife Gangamma and claim is made that they are entitled

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for a share in the suit schedule properties contending that suit schedule properties are ancestral properties. Defendants took the defence that plaintiff No.1 had executed a relinquishment deed by receiving the amount and also it is the contention that when the sale deed was executed during the pendency of the suit, an amount of Rs.1,05,000/- was given to the plaintiff No.1. The trial Court did not accept the said contention for having paid the amount in favour of the plaintiff No.1 to the tune of Rs.1,05,000/- and there is no receipt for having paid the amount and mere recital in the sale deed cannot be accepted that there was a payment. Defence of the defendants was not accepted and granted relief of 1/3^rd share in item Nos.1 to 4 of the suit schedule properties by metes and bounds.

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The same is challenged before the Appellate Court in RA.No.35/2024 and the Appellate Court having considered the grounds urged in the appeal memo, rejected I.A.No.2 filed under Order XLI Rule 27 of CPC coming to the conclusion that the additional documents which is placed on record clearly discloses that the property is allotted by the Government and the same is a self acquired property and the same cannot be

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made as a property belonging to the family. The First Appellate Court answered point Nos.2 to 4 in coming to the conclusion that plaintiffs have proved that suit schedule properties are the joint family properties of themselves and defendants and the very contention that defendants Nos.2 and 4 that suit schedule properties are the self acquired properties of the defendant No.1 was not proved and the very contention of the defendants Nos.2 and 4 that the plaintiffs have relinquished their shares in the suit schedule properties by executing unregistered relinquishment deed and the same is also answered as negative. Defendant Nos.3 and 4 took the contention that defendant No.1 bequeathed the suit schedule item Nos.2 and 3 properties under a registered Will dated 22.03.2001. The same is also answered as negative and hence, comes to the conclusion that it does not require any interference of the Court.

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Being aggrieved by the said judgment and decree, the present second appeal is filed before this Court.

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The main contention of the counsel appearing for the appellant before this Court is that when the document was

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produced before the Appellate Court by filing an application under Order XLI Rule 27 of CPC, the Appellate Court ought not to have rejected the same without recording any evidence and further, contend that by executing a release deed at Ex.D1, received an amount of Rs.1,05,000/- and the same is recital in a document of sale deed and both the Courts have committed an error in not relying upon the document of release deed which is marked as Ex.D1 and so also the recitals of the sale deed and the very approach of both the Courts is erroneous and hence, this Court has to frame substantive question of law.

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Per contra , learned counsel appearing for the respondent Nos.1 and 2 would contend that both the trial Court as well as the Appellate Court taken note of the unregistered document and the same is not admissible and also it will not create any right. The learned counsel contend that the trial

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Court and Appellate Court given the finding that even if any recitals in the sale deed, that will not substantiate that payment was made in favour of the plaintiff No.1. Apart from that, counsel also vehemently contend that plaintiff No.2 was minor at the time of the alleged sale deed and minor interest is not protected. When the same is not protected, a revision

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petition is filed before this Court and this Court, allowed the same and remitted the matter back to the trial Court to consider the matter afresh and hence, the trial Court and Appellate Court appreciated both oral and documentary evidence available on record. There is no any legal evidence to substantiate the claim of the appellant.

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Having heard the learned counsel for the appellant

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and also the learned counsel for the respondent Nos.1 and 2, an application was filed before the Appellate Court under Order XLI Rule 27 of CPC. The Appellate Court while considering the application under Order XLI Rule 27 of CPC, framing point No.1, comes to the conclusion that respondent Nos.1 and 2 in their objection statement contend that Sy.No.21/10 is the selfacquired property of the respondent No.1 and his wife. The property shown in the house assessment extract sought to produce by the appellant is granted by the Government in favour of the mother of the respondent No.1 and the said property is her absolute property. When an attempt is made before the Appellate Court to come to a conclusion that suit for the partial partition is not maintainable, the Appellate Court considering the material on record, reason was assigned while

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rejecting the same that property was allotted by the Government. When such reasons are given, I do not find any ground to frame substantive question of law on the said issue. Apart from that even the Appellate Court has also re-assessed both oral and documentary evidence and there is no dispute that property belongs to the joint family and also taken note of the alleged execution of release deed is not a registered document and in the eye of law, no value can be attached to the said document. Apart from that minor interest is also involved since the plaintiff No.2 was a minor.

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It is also important to note that when the contention was taken that in the sale deed there was a recital

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for having made the payment and the same is not substantiated by placing any receipt for having paid the amount in favour of the plaintiff No.1 and plaintiff No.1 though a signatory to the sale deed and not executed the sale deed as a vendor but only a signature was taken as a witness. When such being the case, when the concurrent finding is given that no consideration is passed in favour of the plaintiff No.1, I do not find any error on the part of trial Court and Appellate Court in appreciating both oral and documentary evidence placed on

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record. Both question of fact and question of law is considered by both the Courts. Hence, no grounds to admit the second appeal and frame any substantial question of law.

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