H S Siddegowda vs Smt.Parvathamma
2022 Latest Caselaw 2149 Kant

                          1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU

     DATED THIS THE 10TH DAY OF FEBRUARY, 2022

                        BEFORE

     THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA

REGULAR SECOND APPEAL No.2261 OF 2017 (DEC & INJ)

BETWEEN:

H.S.SIDDEGOWDA,
S/O SIDDEGOWDA @
DOLLEGOWDA,
AGED ABOUT 62 YEARS,
R/O HANAGANAHALLI VILLAGE,
BASARALU HOBLI,
MANDYA TALUK - 571 423.
                                       ... APPELLANT

(BY SRI.M.B.CHANDRA CHOODA, ADV., - (PH))

AND:

1.     SMT.PARVATHAMMA,
       W/O LATE PUTTAPPA,
       AGED ABOUT 50 YEARS,
       R/O RAYASHETTIPURA VILLAGE,
       BASARALU HOBLI,
       MANDYA TALUK - 571 423.

2.     N.K.NANJUNDARAJU,
       S/O KALAPPA,
       AGED ABOUT 36 YEARS,

3.     SHIVANANJAIAH,
       S/O KALAPPA,
                              2
      AGED ABOUT 33 YEARS,

      BOTH ARE R'S/O
      NANJEGOWDANA
      KOPPALU VILLAGE,
      HANAGANAHALLI,
      BASARALU HOBLI,
      MANDYA TALUK - 571 423.
                                            ... RESPONDENTS

     THIS APPEAL IS FILED UNDER SEC.100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 07.07.2017
PASSED IN R.A.NO.30/2016 ON THE FILE OF THE V
ADDITIONAL DISTRICT JUDGE, MANDYA, DISMISSING
THE APPEAL AND CONFIRMING THE JUDGMENT AND
DECREE DATED 30.03.2016 PASSED IN O.S.NO.46/1997
ON THE FILE OF THE PRINCIPAL SENIOR CIVIL JUDGE AND
CJM, MANDYA.

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

                       JUDGMENT

1. This second appeal is by the plaintiff who has failed

to secure a decree of declaration from both the Courts.

2. The plaintiff contended that he had purchased the

suit property from defendant No.1 under registered sale

deed dated 17.8.1995 from one Smt. Parvathamma-

defendant No.1. According to him, Smt. Parvathamma

was the absolute owner of the suit property.

Smt.Parvathamma who was arrayed as defendant No.1

initially did not appear before the Court and was placed ex-

parte.

3. Defendant Nos.2 and 3 who were her husband's

brother's children entered appearance and resisted the

suit. They stated that Smt. Parvathamma had no title over

the suit property and could not have conveyed the suit

property to the plaintiff. They stated that the suit property

belonged to their grand father Sri Nanjundaiah @

Boodamadappa and he had bequeathed the suit property

by way of a registered Will dated 19.5.1993 in their

favour.

4. It was alleged that Smt. Parvathamma in collusion

with the revenue officials had managed to secure the

Khatha in her name in M.R. No.20/1993-94 and the same

was challenged before the Assistant Commissioner in

R.Mis.23/1994-95, which was allowed and the Khatha was

ordered to be changed in favour of defendant Nos.2 and 3.

It was stated that the plaintiff could not have acquired any

title under the sale deed and it was only a nominal sale

deed.

5. The Trial Court on consideration of the evidence

adduced, came to the conclusion that the plaintiff had

failed to prove that the vendor of defendant No.1 was the

absolute owner of the suit property and therefore, the

alienation made in his favour was of no consequence. The

Trial Court also found that he was not in possession of the

suit property and accordingly, dismissed the suit.

6. While dismissing the suit, the Trial Court held that

defendant Nos.2 and 3 had proved that registered Will

dated 19.5.1993 had been executed in their favour by

their grand father.

7. Being aggrieved, the plaintiff preferred an appeal.

The Appellate Court on re-appreciation of the entire

evidence, found no reason to disagree with the finding

recorded by the Trial Court and it accordingly affirmed the

finding that defendant No.1 - Smt. Parvathamma had no

title to convey the suit property in favour of the plaintiff.

It accordingly, dismissed the appeal.

8. The Appellate Court while dismissing the appeal was

affirmed the finding of Civil Court that Sri Nanjundaiah @

Boodamadappa had executed a registered Will bequeathing

the suit property in favour of defendant Nos.2 and 3. It is

against these concurrent findings, this second appeal is

preferred.

9. The case putforth before the Court was that the suit

property was the property belonging to one Sri

Nanjundaiah and the suit property was a joint family

property. The plaintiff who had purchased the property on

17.8.1995 sought to contend that there had been an oral

partition in the year 1990 between Sri Nanjundaiah and his

sons and in the said partition the suit property had been

allotted to the share of Sri Puttappa and since he was no

more, that share had been allotted to his wife Smt.

Parvathamma i.e. defendant No.1. It was sought to be

pleaded that though the property had been allotted to the

share of Sri Puttappa - the husband of defendant No.1, the

Khatha was however, retained in the name of Sri

Nanjundaiah and therefore, Smt. Parvathamma had valid

title and interest notwithstanding the fact that Khatha

stood in the name of Sri Nanjundaiah.

10. In order to establish this contention, reliance was

placed on Ex.P11 in which it had been stated that the that

the Khatha standing in the name of Puttappa's share was

been transferred in the name of Sri Nanjundaiah. The

arguments advanced was that this statement in the

mutation register extract indicates that the subject matter

of Ex.P11 -Mutation Extract was the property allotted to

late Sri Puttappa and this property was the subject mater

of conveyance and the suit.

11. It is to be noticed here that the best person to speak

about the partition and to establish the partition would be

the children of Sri.Nanjundaiah, since there was no

documents to evidence partition. Admittedly, none of the

sons of Sri Nanjundaiah were examined in respect of the

alleged oral partition. Smt. Parvathamma - defendant

No.1 who was the beneficiary of the partition and who

supported the plea of the partition was also not examined

before the Court to establish the oral partition in which the

suit property had been allotted to her husband and

consequently to her.

12. Both the Courts have noted that there was no

documentary evidence to establish the division of the

properties as alleged by the plaintiff. As stated above, the

plaintiff having come to the picture only in the year 1995,

cannot obviously have any knowledge about the oral

partition which occurred between the family members of

vendor.

13. The reliance placed on Ex.P11 cannot also lead to the

definite inference that there had been a partition in which

the suit property was allotted to the husband of defendant

No.1. The statement only indicates that the Khatha

standing in respect of Sri Puttappa's share was being

transferred in the name of Sri Nanjundaiah. This statement

would not therefore, establish that the suit property had

been allotted to Sri Puttappa. In this view of the matter,

on the basis of the statement in the mutation registration

extract, it cannot be conclusively established that there

had been an oral partition and in the said oral partition,

the suit property has come in to share of Sri.Puttappa.

14. It is also to be noticed both the Courts have taken

into consideration another statement in M.R. No.9/1993

i.e. Ex.P5 which indicated that suit property was been

allotted to Sri Nanjundaiah in a partition between

Nanjundaiah and his four sons. This also indicates that the

suit property was allotted to Sri Nanjundaiah and not to

Sri.Puttappa. In view of the fact that there was no definite

and conclusive evidence that there was an oral partition in

which the suit property had been allotted to husband of

defendant No.1, the findings recorded by both the Courts

below that the plaintiff had failed to establish that his

vendor - defendant No.1 had title, cannot be found fault

with. I find no substantial question of law arise for

consideration in this appeal. Appeal is accordingly

dismissed.

Sd/-

JUDGE

BS