K Gurubasvaraj S/O.K. ... vs Susheelamma W/O. Shivaputrappa ...
2022 Latest Caselaw 1626 Kant

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             IN THE HIGH COURT OF KARNATAKA
                     DHARWAD BENCH

         DATED THIS THE 3RD DAY OF FEBRUARY 2022

                           BEFORE

    THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

              R.S.A.NO.6135 OF 2012(PAR)

BETWEEN:

1. K.GURUBASAVARAJ
S/O K.SHANKARAGOUDA,
AGED ABOUT 13 YEARS,
MINOR REPRESENTED BY HIS FATHER
AND NATURAL GUARDIAN
K.SHANKARE GOUDA,
S/O K.CHANDRA GOUDA,
AGED ABOUT 34 YEARS,
R/O UTTANGI VILLAGE, HADAGALI TALUK,
DISTRICT: BELLARY-583219

2. K.TATANA GOUDA,
S/O K.CHIDANADA GOUDA,
AGED ABOUT 11 YEARS,
MINOR REPRESENTED BY HIS FATHER
AND NATURAL GUARDIAN
K.CHIDANADA GOUDA,
S/O K.CHANDRA GOUDA,
AGED ABOUT 37 YEARS,
R/O UTTANGI VILLAGE, HADAGALI TALUK,
DISTRICT: BELLARY-583219

3. SRI.K.SHANKARA GOUDA,
S/O K.CHANDRA GOUDA,
AGED ABOUT 34 YEARS,
R/O UTTANGI VILLAGE,
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HADAGALI TALUK, DISTRICT: BELLARY-583219

4. K.CHIDANANDA GOUDA,
S/O K.CHANDRA GOUDA,
AGED ABOUT 37 YEARS,
R/O UTTANGI VILLAGE,
HADAGALI TALUK, DISTRICT: BELLARY-583219
                                            ...APPELLANTS
(BY SRI.J.S.SHETTY, SRI.D.SHETTY, ADVS.)

AND:

1. SUSHEELAMMA,
W/O SHIVAPUTRAPPA TIMMALAPURAD,
AGED ABOUT 35 YEARS,
R/O UTTANGI VILLAGE,
HADAGALI TALUK, DISTRICT: BELLARY-583219

2. K.SHEKARA GOUDA,
S/O CHANDRA GOUDA,
AGED ABOUT 40 YEARS,
R/O UTTANGI VILLAGE, HADAGALI TALUK,
BELLARY DISTRICT-583219
                                           ...RESPONDENTS
(BY SRI.BASAVANAGOUD T. & SRI.M.B.JOGARISHETTAR, ADV. FOR
R2 )

     THIS RSA IS FILED UNDER SECTION 100 OF CODE OF CIVIL
PROCEDURE PRAYING TO SET ASIDE THE JUDGMENT AND DECREE
DATED 10.02.2012 PASSED BY THE PRINCIPAL SENIOR CIVIL
JUDGE & JMFC, HOSAPET IN REGULAR APPEAL NO.48/2011 AND
THE JUDGMENT AND DECREE DATED 02.04.2011 PASSED BY THE
CIVIL JUDGE AND JMFC, HUVINAHADAGALI IN O.S.NO.57/2010,
MAY KINDLY BE SET ASIDE BY ALLOWING THIS APPEAL WITH
COST THROUGHOUT IN THE ENDS OF JUSTICE AND EQUITY.

     THIS RSA COMING ON FOR ADMISSION THIS DAY, THE COURT
DELIVERED THE FOLLOWING:
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                          JUDGMENT

The captioned second appeal is filed by unsuccessful

defendants questioning the concurrent judgments and decrees

of the Courts below wherein the suit for partition filed by

respondent No.1-plaintiff is decreed granting share in the suit

schedule properties.

2. The facts leading to the case are as under:

The respondent No.1-plaintiff claims that she is the

daughter of Defendant No.1-Chandana Gowda and Defendants

2 to 4 are her brothers. Respondent No.1 -Plaintiff has

claimed that suit schedule properties are the joint family

ancestral properties and that their father defendant No.1 is the

Kartha of the family.Respondent No.1-plaintiff has claimed her

share in the suit schedule properties. The present suit for

partition is filed by the plaintiff specifically alleging that the

present appellants- defendants have denied her legitimate

share in the suit schedule properties.

3. On receipt of summons, the defendants tendered

appearance and filed written statement and stoutly denied the

entire averments made in the plaint. Defendant No.1 filed

written statement and specifically contended that while

solemnizing marriage of plaintiff, he has transferred

agricultural land bearing Survey No.1018-C totally measuring

2 acres 90 cents in favour of his son-in-law -Shivumurthappa.

It was also contended that defendant No.1 has given 15 tolas

of gold ornaments and a sum of Rs.One lakh was also paid.

Defendant No.1 also contended that he incurred hand loan of

Rs. One Lakh to perform the marriage of plaintiff. Therefore,

Defendant No.1 has contended that while performing marriage

of the plaintiff, land bearing No.1018-C which was ancestral

property was transferred in the name of her husband and

therefore, her legitimate share is already given and without

including the said land, the present suit for partition is not

maintainable.

4. The trial Court having assessed the oral and

documentary evidence has negatived the contention raised by

the defendants. On perusal of the material on record, the trial

Court found that the contention of defendant No.1 that he has

transferred the property in the name of Shivumurthappa, who

is the husband of the plaintiff is factually incorrect. Having

examined Ex.P7, the trial Court found that it was the father of

Defendant No.1 namely Kotragowda who had transferred this

land bearing Survey No.1018-C in favour of his daughters

namely Parvathamma and Kariamma. The husband of

plaintiff-Shivumurthappa is the son of Kariamma. Having

examined this evidence, the trial Court has come to the

conclusion that the land bearing Survey No.1018-C is not all

the ancestral property of the family of defendant No.1. On the

contrary, the trial Court found that the said land was already

transferred by Kotragowda-the father of defendant No.1 in

favour of his two daughters. Therefore, the said property is

not at all the ancestral property of plaintiff and defendants

pursuant to transfer made by Kotragowda in favour of his two

daughters namely, Parvathamma and Kariamma. On these

grounds, the contentions raised by defendant No.1 and the

present defendants stood negatived and the trial Court

proceeded to hold that there is no severance in the family.

The suit schedule properties are the joint family ancestral

properties and accordingly, proceeded to decree the suit.

5. The present appellants-defendants feeling

aggrieved preferred an appeal in R.A.48/2011. The appellate

Court on re-appreciation of oral and documentary evidence

has concurred with the findings recorded by the trial Court and

has proceeded to dismiss the appeal.

6. Being aggrieved by the concurrent judgments and

decrees of the Courts below, the present appeal is preferred

by the present appellants-defendants.

7. Heard the learned counsel for the appellants and

perused the judgments under challenge.

8. On perusal of the material on record, this Court

would find that grand-father of plaintiff-respondent No.1

herein and father of defendant No.1 to discharge his legal duty

during his life-time had transferred agricultural land bearing

Survey No.1018-1-C totally measuring 2 acres 90 cents in

favour of his daughters namely Parvathamma and Kariamma

who are the wives of late Nagappa. The said Nagappa is none

other than the father of Shivumurthappa who is the husband

of the plaintiff-respondent No.1 herein. Therefore, the

contention of defendant No.1 that Survey No.1018-1-C was

transferred in the name of plaintiff Susheelamma while

performing her marriage is factually incorrect and to

substantiate the said claim, the present appellants-defendants

have not produced any documentary evidence. Both the

courts have meticulously examined the clinching evidence

adduced by the plaintiff-respondent No.1 and have come to

the conclusion that no land was given to respondent No.1-

plaintiff during her marriage. Having negatived the contention

raised by defendant No.1 and having answered issue No.3 in

the negative, both the Courts have concurrently held that the

suit schedule properties are the joint family ancestral

properties and therefore, respondent No.1-plaintiff being

daughter of defendant No.1 is entitled for share and have

proceeded to decree the suit awarding 1/5th share to plaintiff

in all the suit schedule properties. The judgments and decrees

rendered by the Courts below and consequent quantification is

in accordance with law and does not suffer from any infirmities

and illegalities. The allotment of 1/5th share by the trial Court

as well as the appellate Court is strictly in consonance with the

principles laid down by the Apex Court in the case of Vineetha

Sharma. No substantial question of law arises.

Accordingly, the appeal is dismissed.

Sd/-

JUDGE *alb/-