Sri M N Nagaraju Vs Smt Nagarathnamma

SMT. NAGARATHNAMMA W/O LATE SRINIVASA RAJU AGED ABOUT 76 YEARS R/AT NO. 2487 17^TH MAIN 5^TH ‘E’ CROSS SNAKE SHYAM ROAD VIJAYANAGAR II STAGE MYSURU – 570017

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SRI. SHANTHARAJU S/O LATE SRINIVASARAJU AGED ABOUT 56 YEARS R/AT NO.2487 17^TH MAIN 5^TH ‘E’ CROSS SNAKE SHYAM ROAD VIJAYANAGAR II STAGE MYSURU – 570017

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SMT. KANYAKUMARI, W/O LATE THYAGARAJU AGED ABOUT 53 YEARS

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NO.147, BOREWELL LAYOUT HAL 3^RD STAGE BENGALURU- 560075

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SMT. AMBUJAKSHI M.S. D/O LATE SRINIVASARAJU AGED ABOUT 54 YEARS NO.47, 2^ND CROSS ULLAL MAIN ROAD MANGANAHALLI CROSS BASAWESHWARANAGARA BENGALURU-560079

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…RESPONDENTS

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THIS RSA IS FILED U/S.100 OF CPC, AGAINST THE

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JUDGMENT AND DECREE DATED 25.03.2023 PASSED IN

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R.A.NO.335/2021 ON THE FILE OF THE IV ADDITIONAL DISTRICT AND SESSIONS JUDGE, MYSURU AND ETC.

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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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The second appeal is filed against the concurrent finding

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of the Trial Court as well as the First Appellate Court.

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This matter is listed for admission. Heard the learned counsel appearing for the appellants.

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The factual matrix of the case of the plaintiff before the Trial Court is that defendant No.1 and husband of plaintiff were brothers. Along with his father, the husband of the plaintiff was venturing the joint family business. Defendant No.2 and 3 are the sons of the defendant No.1. Defendant No.5 and 6 are the children of plaintiff. Late Srinivasaraju and defendant No.4 is daughter-in-law of the plaintiff. The husband of the plaintiff was running the joint family business at Santhepete in the name and style of M/s. M.R. Narasimharaju and sons at Door No.8, JMP Road, 2^nd Cross, Santhepete, Mysuru. At the time of transfer of business place from Santhepete to Bandipalya, an application for seeking a site at Bandipalya by virtue of doing business at Santhepete was filed during 1987-1988. At that time, an application was filed

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seeking site in favour of M/s M.R. Narasimgaraju and sons in the list of partners mentioned as M.R. Narasimharaju and Srinivasraju only. The APMC, Mysuru allotted the Site No.99 and granted possession certificate of Site No.99 in ‘B’ block in Bandipalya market yard, Mysuru to the extent of East-West 30 feet and North-South 75 feet on 25.06.1990 to Mr. N Srinivasaraju, the husband of the plaintiff. At that time, the terms and conditions attached to the allotment was also signed by the husband of the plaintiff only.

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It is further contended that husband of the plaintiff

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died on 28.08.1990 and her father-in-law died on 23.07.1991. Thus, after the death of both the partners, defendant No.1 concealing the reality, got license to do the business in his name in 1992 and changed the name of the business as M/s. MRN Traders without informing the same to the plaintiff. Thereafter, he gave an application for transfer of Site No.99 allotted to the husband of the plaintiff on 26.05.1992 and on 03.03.1993, defendant No.1 has submitted the surviving certificate issued by the Tahsildar on 24.02.1993 as required. Defendant No.1 has only disclosed the names of his sisters. The

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plaintiff submitted death certificate of both partners of M/s M.R. Narasimharaju and sons while obtaining the survival certificate and she had sought the same for the family of Narasimharaju and Lalithamma.

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It is also contended in the plaint that during 1991-

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1992 the license has been obtained in the name and style of M/s M.R. Narasimharaju and sons. However, as per the request of defendant No.1, the Site No.99 was transferred to his name vide orders dated 16.03.1993. At the time of transfer of business licence of the site at Bandipalya, defendant No.1 did not bother to get no objection certificate from the plaintiff or her children as he was concealing these facts from them while getting the same from his sisters. The plaintiff being not well educated and not knowing the worldly affairs, she was kept quiet all these years as being functionally supported often by defendant No.1 but defendant No.1 colluding with the children of plaintiff defrauded the plaintiff by now and then and defendant No.1 has purchased the properties out of joint family business. It is also contended that the plaintiff demanded the

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share on many occasions but defendant No.1 kept on dodging the same. Hence, the suit is filed.

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In pursuance of the suit summons, defendant Nos.1 to 3 and 5 appeared and filed the written statement denying the averments of the plaint and contend that item No.1 of the suit schedule property is exclusively belongs to defendant No.1 and plaintiff has no right to claim any share in the suit schedule property and also contend that there was already a partition in the year 1987 between the husband of the plaintiff and defendant No.1. Hence, prayed to dismiss the suit.

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The Trial Court having considered the pleadings of the parties, framed the Issues and allowed the parties to lead their evidence. The Trial Court having considered both oral and documentary evidence placed on record comes to the conclusion that the plaintiff has shown her properties in the plaint as 40 acres of land at Gudduge, Garden at Hiriyuru, site measuing 40 x 60 situated at Complex, Srirampura Main Road and Arjun Bulk carriers. The plaintiff has not shown survey number and site or property number nor shown the boundaries to the said properties. However, the Trial Court taken note of

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material and record with regard to the item No.1 is concerned i.e., Ex.P1, the copy of final notice issued by APMC dated 13.02.1992 to M R Narasimharaju and sons and Ex.P3 the copy of order passed by the Additional Director, APMC and Trial Court held that on perusal of the same, it shows that Site No.99 allotted to M R Narasimharaju has been transferred in the name of MRN Traders. The Trial Court also taken note of Ex.P4 which is the copy of the possession certificate dated 25.06.1990 and on perusal of the same, comes to the conclusion that it shows that the possession of Site No.99 in ‘B’ Block in Bandipalya Market Yard has been handed over to M/s M R Narasimharaju and sons and No.14, 2^nd Cross, Gokulam 3^rd Stage, V V Puram, Mysuru commission agents / traders through their authorized person / partner N Srinivasraj. Ex.P5 and P6 are copy of no objections submitted by M N Padmavathi and M.N. Hemavathi to the Secretary, APMC, Mysuru on 21.01.1984, Ex.P9 is the copy of surviving family member certificate issued by the Tahsildar. All these documents are taken into consideration by the Trial Court and comes to the conclusion that it shows that the possession of the item No.1 was handed over to the husband of the plaintiff. Ex.P4 itself

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shows that the possession certificate has been issued in the name of the husband of the plaintiff. If the husband of the plaintiff was not running the business, the possession certificate would have not been issued in the name of the husband of the plaintiff. Having taken note of all these materials, the Trial Court comes to the conclusion that plaintiff's husband was running the business and possession also given to him. Subsequently, defendant No.1 got changed the same. In order to establish the fact that earlier there was a partition in the year 1987, no document is placed on record. Hence, the Trial Court partly decreed the suit of the plaintiff granting half share in the suit schedule item No.1 of the property.

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Being aggrieved by the judgment of the Trial Court, an appeal was preferred before the First Appellate Court. The First Appellate Court having considered the grounds which have been urged, formulated the points that whether the judgment and decree of the Trial Court requires interference. The First Appellate Court having reconsidered both oral and documentary evidence placed on record comes to the conclusion that the documents clearly disclose the fact that the business is

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between the father of plaintiff’s husband and husband of the plaintiff and also it establishes the fact that the possession was delivered in favour of the husband of the plaintiff. The First Appellate Court also taken note of the answer elicited from the mouth of PW1 during the course of cross-examination and comes to the conclusion that the Trial Court rightly observed that the defendant got transferred the Site No.99 in his name as Proprietor of MRN Traders as per Certificate of Registration at Ex.P11 and detailed discussion was made in paragraphs 39 and 40 and comes to the conclusion that the Trial Court has not committed any error in respect of the item No.1 is concerned and particularly taken note of the admission on the part of DW1 wherein he specifically admitted with regard to the contents of Exs.P3, P9, P14 and P22 and the claim of respondent No.1 particularly with regard to the nature of acquisition of Item No.1 of the suit schedule property was taken note of as the same is a joint family property and having carried the business in the joint family status. Hence, confirmed the judgment of the Trial Court. Being aggrieved by the concurrent finding of both the Courts, the present second appeal is filed before this Court.

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The main contention of the counsel appearing for the appellants before this Court is that both the Courts failed to take note of the material on record particularly when the oral partition was taken place in the year 1987 and subsequent to the oral partition, the respondent along with their father has sold the property in Gokulam, Mysore for a sale consideration of Rs.58,00,000/- and another property measuring 100 x 100 feet which was also sold by late Srinivasaraju and his family members. The counsel would vehemently contend that even though there were some documents in the name of the husband of the plaintiff, that cannot be a ground to grant the relief. Hence, this Court has to admit and frame substantive question of law.

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Having heard the appellants’ counsel and also the reasoning of the Trial Court, particularly taken note of the material on record in paragraph Nos.16 and 17 that document stands in the name of the husband of the plaintiff and also an observation is made that if the husband of the plaintiff was not running the business, the possession certificate would not have been issued in the name of the husband of the plaintiff and

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Ex.P.4 itself shows that the possession certificate has been issued in the name of the husband of the plaintiff and also the fact that the business was a joint business was also considered by the Trial Court as well as the admissions on the part of P.W.1 and Trial Court in detail taken note of material on record in respect of Item No.1 is concerned in paragraph Nos.16 and 17.

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The First Appellate Court also on re-assessing both oral and documentary evidence taken note of the admission on the part of P.W.1 and also the reasoning given by the Trial court in paragraph Nos.39, 40 and 41 and particularly with regard to the nature of acquisition of Item No.1 of the scheduled property was the joint family property for having carried on business in the joint family status. When both the Courts have taken note of oral and documentary evidence available on record, this Court do not find any perversity in the said finding and also both question of fact and question of law was also considered with regard to the allotment of the property in favour of the joint family is concerned as well as the husband of the plaintiff was running the said business and

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possession certificate was also issued in favour of the husband of the plaintiff and hence, claim of the plaintiff is also restricted in respect of the Item No.1 of the property only. Hence, I do not find any ground to admit and frame substantive question of law.

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