S. Kowshalya vs Mahadevaiah
2021 Latest Caselaw 5178 Kant

                               1

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 1st DAY OF DECEMBER, 2021

                         BEFORE

     THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY

                   R.S.A.No.1457/2019

BETWEEN:

1.      S. Kowshalya
        D/o M.B. Siddaraj,
        Aged about 21 years,

2.      S. Lavanya
        D/o M.B. Siddaraj,
        Aged about 19 years,

3.      S.Suchithra
        D/o M.B.Siddaraj,
        Aged about 17 years,

        Rep. by her next friend
        And mother Smt.Rajalakshmi
        W/o M.B.Siddaraju,
        Aged about 40 years,

        All are R/at No.106,
        4th Cross, Ashokapuram,
        Nanjanagud Town,
        Mysuru District-571301.         ... Appellants

(By Sri.Mahesh Kiran Shetty S for
 Sri.Rudrappa P, Adv. for appellants)
AND:
1.      Mahadevaiah
        S/o late Basavaiah,
        Aged about 58 years,

2.      Rachaiah
        S/o late Basavaiah,
        Aged about 56 years,
                             2

3.   Chikkabasamma
     D/o late Basavaiah,
     Aged about 54 years,

4.   M.S.Siddaraju
     S/o late Basavaiah,
     Aged about 52 years,

5.   Sharada
     W/o Mahadevaiah,
     Aged about 50 years,

     Respondents No. 1 to 5 are
     R/at Malavalli Village,
     Kasaba Hobli,
     Gundlupet Taluk,
     Chamarajanagar District-571111.

6.   B.S.Ramesha
     S/o Angadi Siddanna,
     Aged about 53 years,
     R/at Badanavalu Village,
     Nanjangud Taluk,
     Mysore District-571302.             ... Respondents

       This Regular Second Appeal is filed under Section
100 of CPC against the judgment and decree dated
18.07.2019 passed in RA.No.01/2019 on the file of the
Senior Civil Judge and JMFC, Gundlupet dismissing the
appeal and confirming the judgment and decree dated
10.12.2018 passed in O.S.No.41/2012 on the file of the
Prl. Civil Judge and JMFC, Gundlupet.

      This appeal coming on for admission, this day, the
Court delivered the following:

                      JUDGMENT

The plaintiffs have preferred this Regular Second

Appeal challenging the judgment and decree dated

10.12.2018 passed by the Court of Prl. Civil Judge and

JMFC, Gundlupet in O.S.No.41/2012 which has been

confirmed in R.A.No.1/2019 by the Court of Senior Civil

Judge and JMFC, Gundlupet by its judgment and decree

dated 18.07.2019..

2. For the sake of convenience, the parties are

referred to by the rank assigned to them in the court at

first instance.

3. Brief facts of the case that would be relevant for

the purpose of disposal of this appeal are, the plaintiffs

had filed O.S.No.41/2012 before the Court of Prl. Civil

Judge and JMFC, Gundlupet (hereinafter referred to as

'trial court') seeking partition and separate possession

of six items of the suit schedule properties, contending

that the said properties were ancestral and joint family

properties of plaintiffs and defendants. They also

contended that the sale deed dated 20.05.1998

executed by defendants No.1 to 5 in favour of defendant

No.7 is not binding them.

4. After service of suit summons, the defendants

No.1, 4 and 6 had entered appearance and filed their

written statement contending that the suit schedule

properties have been partitioned in the year 1992

between defendants No.1 to 6 and as per the said

partition, item No.1 property fell to the share of

defendants No.3 and 5 and thereafterwards, the said

defendants have sold item No.1 property to the 7th

defendant. They have also contended that remaining

items of the land have fallen to the share of respective

defendants. Hence, prays to dismiss the suit.

5. Defendant No.7 has filed his separate written

statement contending that he is a bonafide purchaser

of the suit schedule property and his vendors were

allotted the share in his partition and thereafter he has

purchased the said property through the registered sale

deed dated 20.05.1998 for valid sale consideration of

Rs.2,00,000/-

6. On the basis of the rival pleadings, the Trial

Court has initially framed three issues and later,

framed four additional issues which read as follows:

1. Whether the plaintiffs prove that suit schedule properties are ancestral and joint family properties?

2. Whether the plaintiffs further prove that they are entitle for separate possession of their 1/4th share in all the suit schedule properties?

3. What order or decree?

Additional issues:

1. Whether the plaintiffs prove that sale deed executed by defendant Nos. 1 to5 dated 20.05.1998 in favour of 7th defendant is not binding to them?

2. Whether the plaintiffs further prove that, they are entitled to get mesne profit?

3. Whether the defendants prove that suit is barred by limitation?

7. During the course of trial, the plaintiff got

examined himself as PW-1 and got marked fifteen

documents as Exs.P1 to P15. On the other hand,

defendant No.7 got examined as DW-1 and he got

marked seven documents at Exs.D1 to D7.

8. The Trial Court after hearing the arguments of

both the sides, by its judgment and decree dated

10.12.2018 decreed the suit in part. The suit was

dismissed insofar as it relates to item No.1 of the suit

schedule property and it was held that the plaintiff and

5th defendant were entitled for 5/16th share in the

remaining items of the suit schedule properties.

9. Being aggrieved by the said judgment and decree

insofar as it relates to rejection of the plaintiff's prayer

in respect of item No.1 of the suit schedule property,

regular appeal in R.A.No.1/2019 was filed by the

plaintiffs before the first appellate court and the same

was dismissed confirming the judgment and decree

passed by the trial Court. It is under these

circumstances, the plaintiffs are before this Court.

10. Learned counsel for the appellants submits that

both the courts below erred in coming to the conclusion

that item No.1 of the suit schedule property was sold by

the defendants No.1 to 5 for legal necessities of the

family. He submits that there is absolutely nothing on

record to show that the sale was for the requirement of

the family and he also submits that the appellants were

minors at the time of sale. Therefore, sale is not binding

on them and no guardian was appointed to safeguard

their interest.

11. I have carefully considered the rival arguments

addressed on behalf of the appellants and also perused

the material available on record.

12. It is not in dispute that the courts below decreed

the suit insofar as it relates to item Nos.2 to 6 of the

suit schedule properties. The courts below dismissed

the suit of the plaintiffs insofar as it relates to item No.1

of the suit schedule property on the ground that the

sale deed in respect of the said property was executed

in favour of 7th defendant on 20.05.1998 which is

produced at Ex.D1. The courts below having considered

that the sale of item No.1 of the suit schedule property

was made for necessity of the joint family of which, the

plaintiffs are also members, held that there is

absolutely no pleadings on behalf of the plaintiffs to the

effect that the sale was not made by the defendants

No.1 to 5 for the legal necessities of the family including

the plaintiffs. Further it is not in dispute that the

plaintiffs who were minors at the time of executing sale

were having only undivided interest in the item No.1 of

suit schedule property. Therefore, defendants No.1to 4

and also defendant No.5 who is the father of the

plaintiffs as a guardian of the plaintiffs had all the right

to alienate the suit schedule property for the benefit

and requirement of the joint family. It is settled position

of law that in cases where the undivided rights of

minors are sold by their natural guardian having regard

to Section 12 of the Hindu Minority and

Guardianship Act 1956, there is no requirement for

appointment of guardian and therefore, I find there is

no illegality and irregularity in the said sale deed

executed by the defendants No.1 to 5 in favour of

defendant No.7. The courts below having appreciated

the oral and documentary evidence available on record,

have recorded its concurrent findings that item No.1 of

the property was sold by the defendants No.1 to 5 for

the legal necessities of the joint family which includes

the plaintiffs.

13. This fact finding recorded by the courts below

cannot be interfered by this Court in exercise of its

powers under Section 100 CPC. It is settled principle of

law unless substantial question of law is made out, this

court in exercise of power under Section 100 of CPC

cannot re-appreciate the evidence and give a fresh

finding.

Under these circumstances, I am of the

considered opinion that the appeal does not warrant

admission. Therefore, I am not inclined to entertain this

appeal. Accordingly, the appeal is dismissed at the

stage of admission.

Sd/-

JUDGE

JS/-