Karnataka High Court
Smt Muniveeramma vs Sri Munithippaiah on 4 July, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 788 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 788 OF 2021 (PA/DE/IN)
BETWEEN:
1. SMT. MUNIVEERAMMA
D/O. MUNITHIPPAIAH,
W/O. MUNIYAPPA,
AGED ABOUT 62 YEARS
R/AT BIJJAVARA VILLAGE,
VIJAYAPURA HOBLI,
DEVANAHALLI TALUK,
BENGALURU RURAL DISTRICT-562110.
NOW R/AT CHALAKAYALAPARTHI
VILLAGE, KASABA HOBLI,
CHICKBALLAPURA TALUK-562101.
Digitally signed 2. SMT. MUNIYAMMA
by DEVIKA M D/O. MUNITHIPPAIAH,
Location: HIGH W/O NAREPPA
COURT OF AGED ABOUT 54 YEARS
KARNATAKA R/AT BIJJAVARA VILLAGE,
VIJAYAPURA HOBLI,
DEVANAHALLI TALUK,
BENGALURU RURAL DISTRICT-562110.
NOW R/AT SURADENAPURA VILLAGE,
HESARAGHATTA HOBLI,
BENGALURU NORTH TALUK,
BENGALURU-560088.
...APPELLANTS
(BY SRI. BALARAJ A.C., ADVOCATE)
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RSA No. 788 of 2021
AND:
1. SRI MUNITHIPPAIAH
S/O LATE CHIKKAVEERAPPA,
AGED ABOUT 92 YEARS,
NOW R/AT BIJJAVARA VILLAGE,
VIJAYAPURA HOBLI,
DEVANAHALLI TALUK,
BENGALURU RURAL DISTRICT-562110.
2. SMT. ANKAMMA
D/O. MUNITHIPPAIAH,
W/O. NARASAPPA,
AGED ABOUT 53 YEARS,
NOW R/AT CHEEGATENAHALLI
VILLAGE, NANDI HOBLI,
CHICKBALLAPURA TALUK-562101.
3. SMT. SARALAMMA
D/O. MUNITHIPPAIAH,
W/O. HANUMANTHAPPA,
AGED ABOUT 58 YEARS
NOW R/AT PILLAREDDY NAGAR,
BASAVANAGUDI,
BENGALURU-560004
4. SMT. SUSHEELAMMA
D/O. MUNITHIPPAIAH,
W/O HANUMANTHAPPA
AGED ABOUT 55 YEARS
NOW R/AT CHEEGATENAHALLI VILLAGE,
NANDI HOBLI,
CHICKBALLAPURA TALUK-562101
5. SMT. MUNILAKSHMAMMA
D/O. MUNITHIPPAIAH ,
W/O. NARAYANAPPA,
AGED ABOUT 52 YEARS
R/AT HUNASENAHALLI VILLAGE,
SHIDALAGHATTA TALUK,
CHICKBALLAPURA DISTRICT-562101
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RSA No. 788 of 2021
6. SMT. MUNIRATHNAMMA
D/O. MUNITHIPPAIAH,
W/O MUNIYAPPA
AGED ABOUT 58 YEARS
NOW R/AT HOSAHUDYA VILLAGE,
VIJAYAPURA HOBLI,
DEVANAHALLI TALUK,
BENGALURU RURAL DISTRICT-562110
7. SRI. R.M. MURTHY
S/O. R. MUNISHAMAPPA,
AGED ABOUT 60 YEARS
R/AT CHALAKYALAPARTHI VILLAGE,
KASABA HOBLI,
CHICKBALLAPUR TALUK-562101.
...RESPONDENTS
(BY SRI G. BALAKRISHNA SHASTRY, ADVOCATE FOR C/R7)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 25.08.2021
PASSED IN R.A.NO.38/2016 ON THE FILE OF THE I
ADDITIONAL SENIOR CIVIL JUDGE AND JMFC,
CHIKKABALLAPURA, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 05.11.2015
PASSED IN O.S.NO.962/2008 ON THE FILE OF THE I
ADDITIONAL CIVIL JUDGE AND JMFC, CHIKKABALLAPUR.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RSA No. 788 of 2021
JUDGMENT
1. This matter is listed for admission. Heard learned counsel for appellants and learned counsel for respondents.
2. This second appeal is filed against the concurrent finding and suit is filed for the relief of declaration of plaintiff entitlement of their legitimate share to an extent of 2/8th share with consequential relief of permanent injunction. The plaintiffs in the suit contended that plaintiffs and defendant Nos.1 to 6 are the members of Hindu undivided joint family and the suit schedule property is the joint family property and the sale made by the defendant No.1 in favour of defendant No.7 is not binding on their shares. The defendant No.2, 4 to 6 have also claims the share in the suit schedule property and it is the case of the defendant No.7 who is the purchaser contended that Court has no pecuniary jurisdiction and suit is also barred by time and suit is bad for partial -5- NC: 2024:KHC:25341 RSA No. 788 of 2021 partition and suit is also bad for non-joinder of necessary parties.
3. The Trial Court taking into note of oral and documentary evidence available on record, comes to the conclusion that they are undivided joint family members and comes to the conclusion that suit schedule property which they have claimed already sold in favour of defendant No.7 in favour of defendant No.1 and while answering issue No.3 and additional issue No.1, given the finding that the recital made in the document itself in Ex.D1 and Ex.D3 and the same is for the purpose of construction of the house. The Ex.D3 also discloses that towards the legal necessity of defendant No.1 that too for performing marriages of defendant Nos.2 to 6 as well as plaintiff Nos.1 and 2 considering the material on record and hence comes to the conclusion that plaintiffs are not entitled for any relief.
4. Being aggrieved by the said judgment and decree of the Trial Court, an appeal is filed by the plaintiff in R.A.No.38/2016 before the First Appellate Court and -6- NC: 2024:KHC:25341 RSA No. 788 of 2021 considering the grounds which have been urged in the appeal memo by appellant/plaintiff before the First Appellate Court. The First Appellate Court also formulated the point whether the judgment and decree of the Trial Court is perverse and not supported by any evidence and whether it requires interference of the First Appellate Court. The First Appellate Court having re-consider the material on record, both oral and documentary evidence available on record answered the point as Negative in coming to the conclusion that PW1 show the ignorance that the property value is increased in the market and also taken note of sale deed executed by defendant No.1 in favour of defendant No.7 and when the allegation was made that defendant No.7 has played fraud with the defendant No.1 by creating false and concocted document, no such material is placed before the Court and also taken note of the recitals of Ex.D1 to Ex.D3 and the same was made for family maintenance and for construction of house and legal necessity. Hence, confirmed the judgment of the Trial Court.
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5. Being aggrieved by the concurrent finding, the present second appeal is filed. The counsel appearing for the appellants would vehemently contend that both the Courts have committed an error in coming to the conclusion that sale deed executed by the defendant No.1 in favour of defendant No.7 is for the legal necessity and both the Courts have not justified in holding that properties are disposed of for maintain family and legal necessity though evidence was lead down by the respondents to prove any kind of necessities. Hence, matter requires re-consideration.
6. Per Contra, the counsel appearing for respondents would submits that both the Courts having considered particularly the documentary evidence Ex.D1 to Ex.D3 recitals of the documents were also taken note of and sale was made for the construction of house and also performing marriages of defendant Nos.2 to 6 as well as plaintiff Nos.1 and 2. The said material was considered by considering issue No.3 and additional issue No.1 and not committed any error.
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7. Having heard the appellants' counsel and also the counsel appearing for the respondents and also it is important to note that properties were sold in the year 1987, 1988, 1991 and 1992. The suit is filed in the year 2008 that too by the two daughters and also while selling the property particularly document Ex.D1, the said sale deed is very clear that sale is made for construction of house and also recitals of document Ex.D3 is also very clear that sale is made for legal necessity. The suit is filed almost after 21 years and while filing the suit, their age is mentioned as 50 years of the 1st plaintiff and 42 years of 2nd plaintiff. Having considered the age of plaintiffs also, not filed the suit within 3 years of the sale. Even at the time of sale 1st plaintiff was major and apart from that the documents are also very clear that the sale was made for the benefit of the family that too for the construction of the house and also performing the marriage and also for legal necessity. When such material is available on record, I do not find any error committed by both the Trial Court as well as the First Appellate Court in decreeing the suit -9- NC: 2024:KHC:25341 RSA No. 788 of 2021 only in respect of one of the item of the suit property and in respect of the other property which have already been sold, rightly comes to the conclusion that those properties are not amenable for partition. No grounds are made to invoke Section 100 of CPC to admit and frame substantial question of law.
8. In view of the discussions made above, I pass the following:
ORDER
i) The Second Appeal is dismissed.
ii) In view of dismissal of the appeal, I.As., if any do not survive for consideration, the same stands disposed of.
Sd/-
JUDGE RHS List No.: 1 Sl No.: 93