M D Basappa vs Smt Thimmakka
2022 Latest Caselaw 5995 Kant

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                                                    RSA No. 713 of 2019


                 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                     DATED THIS THE 04TH DAY OF APRIL, 2022

                                      BEFORE
                       THE HON'BLE MR JUSTICE R. NATARAJ
                  REGULAR SECOND APPEAL NO. 713 OF 2019 (PAR)
            BETWEEN:

                 M D BASAPPA,
                 S/O LATE DURUGAPPA,
                 AGED ABOUT 73 YEARS,
                 R/AT YELAGODU VILLAGE,
                 BHARAMASAGARA HOBLI,
                 CHITRADURGA (TQ),
                 CHITRADURGA (DISTRICT) - 577 521

                                                         ...APPELLANT

            (BY SRI. MARUTHI G B, ADVOCATE)

            AND:

            1.   SMT THIMMAKKA,
                 D/O LATE SIDDAPPA,W/O HANUMAPPA,
                 AGED ABOUT 67 YEARS,
                 R/AT ANKAMNAL VILLAGE,
Digitally
signed by
KIRAN
                 SONDUR (TQ),
KUMAR R
Location:        BELLARY DISTRICT-583 128.
High
Court of
Karnataka
            2.   SMT GIRIJAMMA,
                 D/O LATE SIDDAPPA,
                 W/O VEERANNA,
                 AGED ABOUT 64 YEARS.
                 R/AT ANKAMNAL VILLAGE,
                 SONDUR (TQ)
                 BELLARY DISTRICT-583 128.
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                                       RSA No. 713 of 2019


3.   SMT KARIYAMMA KALE,
     D/O LATE SIDDAPPA,
     W/O LATE KALE SIDDAPPA,
     AGED ABOUT 73 YEARS,
     R/AT MUDDAPURA VILLAGE,
     TURUVANUR HOBLI,
     CHITRADURGA DISTRICT - 577 521.

4.   SMT NAGARATHNAMMA,
     D/O KALE SIDDAPPA,
     W/O GOWRANNA,
     AGED ABOUT 53 YEARS,
     R/AT MUDDAPURA VILLAGE,
     TURUVANUR HOBLI,
     CHITRADURGA DISTRICT - 577 521.

5.   S. THIPPESWAMY,
     S/O KALE SIDDAPPA,
     AGED ABOUT 47 YEARS,
     R/AT MUDDAPURA VILLAGE,
     TURUVANUR HOBLI,
     CHITRADURGA DISTRICT - 577 521.

6.   SMT HANUMAKKA,
     W/O. S. THIPPESWAMY,
     AGED ABOUT 46 YEARS,
     R/AT MUDDAPURA VILLAGE,
     TURUVANUR HOBLI,
     CHITRADURGA DISTRICT - 577 521.

7.   PALLAVI B.T.,
     D/O S. THIPPESWAMY,
     AGED ABOUT 25 YEARS,
     R/AT MUDDAPURA VILLAGE,
     TURUVANUR HOBLI,
     CHITRADURGA DISTRICT - 577 521.

8.   LOHITH BABU. B.T.,
     S/O S. THIPPESWAMY,
     AGED ABOUT 23 YEARS,
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                                                RSA No. 713 of 2019


     R/AT MUDDAPURA VILLAGE,
     TURUVANUR HOBLI,
     CHITRADURGA DISTRICT - 577 521.

9.   CHANDRU B.T.,
     S/O S. THIPPESWAMY,
     AGED ABOUT 21 YEARS,
     R/AT MUDDAPURA VILLAGE,
     TURUVANUR HOBLI,
     CHITRADURGA DISTRICT - 577 521.

10. H. CHANDRAPPA,
    S/O HALAPPA,
    AGED ABOUT 62 YEARS,
    R/AT HOOVINAMADU VILLAGE,
    MAYAKONDA HOBLI,
    DAVANAGERE TALUK,
    DAVANAGERE DISTRICT - 577 534.



                                                   ...RESPONDENTS

      THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST
THE JUDGMENT AND DECREE DATED 13.03.2019 PASSED IN
RA.No.59/2018 ON THE FILE OF THE 1ST ADDITIONAL DISTRICT
AND SESSIONS JUDGE, CHITRADURGA, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED
30.06.2018 PASSED IN OS.No.62/2016 ON THE FILE OF THE
PRINCIPAL SENIOR CIVIL JUDGE AND CJM, CHITRADURGA.
      THIS RSA COMING ON FOR ADMISSION, THIS DAY THE COURT
DELIVERED THE FOLLOWING:
                             JUDGMENT

This appeal is filed by defendant No.10 in O.S.No.62/2016

challenging the concurrent finding recorded by both the Courts that

the plaintiffs are entitled to 2/3rd share together in the suit schedule

property.

RSA No. 713 of 2019

2. The parties shall henceforth be referred as they were arrayed

before the Trial Court.

3. The plaintiffs and defendant No.1 are the daughters of

Siddappa, who owned the suit schedule property. After the death

of Siddappa, his wife and defendant No.1 got the revenue entries

transferred to their name and bifurcated the suit schedule property

as Sy.No.11/7. The plaintiffs claimed that since Siddappa died

intestate, they were entitled to succeed to an equal share in the suit

schedule property. Plaintiffs came to know from the office of the

Sub-Registrar that defendant No.1, her husband and children had

executed a Sale Deed on 30.06.2016 in favour of defendant No.9,

who in turn, sold it to defendant No.10 under a registered Sale

Deed dated 20.07.2016. The plaintiffs alleged that they opposed

the transfer of katha of the suit schedule property in favour of

defendant No.10 and thereafter, filed the present suit for partition

seeking 2/3rd share in the suit schedule property.

4. Defendant Nos.9 and 10 filed their written statement

contending that the khatha of the suit schedule property was

transferred in the name of defendant No.1 with the consent of the

plaintiffs and thereafter, defendants 1 to 8 sold it to defendant No.9

RSA No. 713 of 2019

for family necessities on 30.06.2016. Defendant No.10 claimed

that defendant No.9 conveyed the suit schedule property to meet

his family necessities on 20.07.2016.

5. Based on the rival contentions, the Trial Court framed the

following issues:

i) Whether the plaintiffs prove that, they along with defendants No.1 to 8 constituted Hindu Joint Family and suit schedule properties are their joint family properties?

ii) Whether the plaintiffs prove that, the sale deed dated 20.03.2014 executed by defendant No.1 in favour of defendant No.9 is not binding on their share?

iii) Whether the plaintiffs further prove that, sale deed dated 30.06.2016 executed by the defendant No.9 in favour of defendant No.10 is not binding on their shares?

iv) Whether the defendant No.9 and 10 prove that the suit schedule properties belongs to defendant No.1 and her sons and plaintiffs have no right in the suit schedule properties as they have already taken gold and cash from the defendant No.1 with their respective shares?

v) Whether the plaintiffs are entitled for 2/3rd share in the suit schedule properties?

RSA No. 713 of 2019

vi) What order and decree?

6. Plaintiff No.2 was examined as P.W.1 and she marked the

documents Exs.P1 to P10. Defendant No.10 got himself examined

as D.W.1 and he marked the documents Exs.D1 to 25.

7. Based on the oral and documentary evidence, the Trial Court

held that the plaintiffs have proved that they are entitled to 1/3 rd

share each in the suit schedule property, being the legal heirs of

Siddappa and therefore, decreed the suit and declared that the

plaintiffs are entitled to 1/3rd share each therein.

8. Being aggrieved by the aforesaid judgment and decree,

defendant No.10 alone filed R.A.No.59/2018 before the First

Appellate Court.

9. The First Appellate Court secured the records of the Trial

Court, heard the counsel for the parties and framed the following

points for consideration:

i) Whether the trial court is justified in holding that plaintiffs and defendants 1 to 8 constituted Hindu Joint Family and suit schedule properties are their joint family properties?

RSA No. 713 of 2019

ii) Whether the trial court is justified in holding that sale deed dated 20.03.2014 executed by defendant-1 in favour of defendant-9 is not binding on the share of plaintiffs?

iii) Whether the trial court is justified in holding that sale deed dated 30.06.2016 executed by the defendant-9 in favour of defendant-10 is not binding on the share of the plaintiffs?

10. The First Appellate Court held that the plaintiffs, being the

legal heirs along with defendant No.1, were entitled to an undivided

1/3rd share in the suit schedule property. It was also held that there

was nothing on record to show that the plaintiffs had relinquished

their right in favour of defendant No.1. Therefore, it held that the

Sale Deed executed by defendant No.1 in favour of defendant No.9

and the consequent Sale Deed in favour of defendant No.10 did

not bind the plaintiffs' share in the suit schedule property and

hence, dismissed the appeal.

11. Being aggrieved by the aforesaid judgments and decrees,

the present second appeal is filed.

12. Learned counsel for defendant No.10 submitted that the

revenue records for the year 1992-93 indicated that there was a

RSA No. 713 of 2019

partition between the family of the plaintiffs and defendant No.1

and that defendant Nos.9 and 10 had purchased the suit property

based on that revenue entry. Therefore, he contended that the

declaration of the share of the plaintiffs in the suit schedule

property was improper. He also contended that there were other

properties that belonged to plaintiffs and defendant No.1 which was

deliberately not included in the suit schedule and therefore, the suit

for partial partition is not maintainable. He further contended that

defendants 1, 3 to 8 having sold the suit schedule property to

defendant No.9 have colluded with the plaintiffs by not filing the

written statement and failed in protecting the interest of defendant

No.9.

13. It is seen from the judgment and decree of the Trial Court

that defendant No.10 did not raise any contention that there was a

prior partition in respect of the suit schedule property and that the

suit schedule property fell to the share of defendant No.1. On the

contrary, the contention urged by defendant No.10 before the Trial

Court was that the revenue entries were made out in the name of

defendant No.1 based on the consent of the plaintiffs. However,

this defence by defendant No.10 took a different turn before the

RSA No. 713 of 2019

First Appellate Court where it was contended that the plaintiffs

were given substantial consideration in kind and cash at the time of

their marriage and that the plaintiffs have given up their share in

the suit schedule property. In that view of the matter, the

contention urged before this Court that the plaintiffs and defendant

No.1 had partitioned the suit schedule property does not appeal to

reason. In that view of the matter, the Trial Court and the First

Appellate Court were justified in decreeing the suit for partition.

Hence, the appeal lacks merit and is dismissed.

14. While parting from the case, it is necessary to observe that if

defendant No.10 is able to prove that plaintiffs and defendant No.1

had any other properties, where they had an undivided share, then

defendant No.10 is at liberty to include the said properties in the

final decree proceedings. The Final Decree Court shall consider

the same and pass appropriate orders regarding allotment of suit

properties to the share of defendant No.1, if it is feasible.

Sd/-

JUDGE

PKS