Karnataka High Court
Sri Veerabhadraradya vs Sri Vishwaradhya on 28 January, 2022
Bench: N S Gowda
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 28TH DAY OF JANUARY 2022
BEFORE
THE HON'BLE MR.JUSTICE N.S.SANJAY GOWDA
R.S.A. No.882/2011 (INJ)
C/w.
R.S.A. No.2126/2010 (SP)
In R.S.A. No.882/2011:
BETWEEN:
SRI. VEERABHADRARADYA,
SON OF RENUKARADHAYA,
AGED ABOUT 46 YEARS,
RESIDING AT BELLIGANUDU VILLAGE,
CHANNAGIRI TALUK - 577 213.
... APPELLANT
(BY SRI. P.M.SIDDAMALLAPPA, ADVOCATE)
AND:
1. SRI. VISHWARADHYA,
SON OF LATE M.S.JAYADEVARADHYA,
AGED ABOUT 41 YEARS,
RESIDING AT DOOR No.608/5,
NITUVALLI EXTENSION,
DAVANAGERE - 577 001.
2. SRI. RENUKARADHYA,
SON OF SADASHIVARADHYA,
AGED ABOUT 75 YEARS,
BELLIGANADU VILLAGE,
CHANNAGIRI TALUK - 577 213.
2
3. SRI. SHANMUKARADYA,
SON OF SADASHIVARADHYA,
AGED ABOUT 72 YEARS,
RETIRED LECTURER,
RESIDING AT D.No.1280,
ARADHYA NILAYA,
TARALABALU EXTENSION,
VIDHYA NAGAR,
DAVANAGERE - 577 001.
... RESPONDENTS
(BY SRI. MANJUNATH PATTANA SHETTY, ADVOCATE, FOR R1;
NOTICE TO R-2 & R-3 IS HELD SUFFICIENT)
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATE 15.06.2010
PASSED IN R.A.No.92/2009 ON THE FILE OF THE IIND ADDL.
DISTRICT & SESSIONS JUDGE, DAVANGERE, DISMISSING
THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED:10.02.2005 PASSED IN O.S.No.154/99 ON THE FILE
OF THE ADDL. CIVIL JUDGE(JR.DN.) AND J.M.F.C.,
CHANNAGIRI.
In R.S.A. No.2126/2010:
BETWEEN:
SRI. VEERABHADRARADYA,
SON OF RENUKARADHAYA,
AGED ABOUT 46 YEARS,
RESIDING AT BELLIGANUDU VILLAGE,
CHANNAGIRI TALUK - 577 213.
... APPELLANT
(BY SRI. P.M.SIDDAMALLAPPA, ADVOCATE)
AND:
1. SRI. SHANMUKARADYA,
SON OF SADASHIVARADHYA,
AGED ABOUT 72 YEARS,
3
RESIDING AT D.No.1280,
ARADHYA NILAYA,
TARALABALU EXTENSION,
VIDYA NAGAR,
DAVANAGERE - 577 001.
2. SMT. SARVAMANGALA,
WIFE OF LATE JAYADEVARADYA,
AGED ABOUT 55 YEARS,
RESIDING AT DOOR No.608/5,
NITUVALLI EXTENSION,
DAVANAGERE - 577 001.
3. SRI. VISHWARADHYA,
SON OF LATE JAYADEVARADYA,
AGED ABOUT 39 YEARS,
D.No.608/5, NITTUVALLI EXTENSION,
DAVANAGERE - 577 001.
4. SRI. RAVEESHARADHYA,
SON OF LATE JAYADEVARADHYA,
AGED ABOUT 37 YEARS,
JUNIOR ENGINEER,PWD,
ZILLA PARISHAD,
CHANNAGIRI TOWN - 577 2013.
5. SMT. RATHNAMMA,
WIFE OF LATE RAJASHEKARADHYA,
AGED ABOUT 59 YEARS,
R/A SANTHEBENNUR TOWN,
CHANNAGIRI TALUK - 581 115.
6. SRI. SADASHIVARADHYA,
SON OF LATE RAJASHEKARADHYA,
AGED ABOUT 48 YEARS,
OFFICE OF THE AREA MANAGER,
SOUTH B.S.N.L.No.123,
PRASANNA COMPLEX,
D.V.GUNDAPPA ROAD,
BASAVANAGUDI, BANGALORE-4.
4
7. SRI. JAGADESHARADAHYA,
SON OF LATE RAJASHEKARADHYA,
AGED ABOUT 38 YEARS,
F.D.C., JUNIOR COLLEGE FOR GIRLS,
CHIKKAMAGALORE - 577 101.
8. SRI. SHASHIDARADHYA,
SON OF LATE RAJASHEKARADHYA,
AGED ABOUT 36 YEARS,
GROUND SUPERVISOR,
JAIN INTERATIONAL RESIDENTIAL SCHOOL,
JAKKASANDRA POST,
KANAKAPURA TALUK,
RAMANAGARA DUSTRUCT - 573 144.
9. SRI. PHANIBHUSHAN,
SON OF LATE RAJASHEKARADHYA,
AGED AOBUT 38 YEARS,
SANTEBENNUR TOWN,
CHANNAGIRI TALUK - 581 115.
10. SMT.RAJESWARI,
DAUGHTER OF LATE RAJASHEKARADHYA,
AGED ABOUT 28 YEARS,
SANTEBENNUR TOWN,
CHANNAGIRI TALUK - 581 115.
11. SRI. RENUKARADHYA,,
SON OF SADASHIVARADHYA,
AGED ABOUT 75 YEARS,
BELLIGANADU VILLAGE,
CHANNAGIRI TALUK- 577 213.
12. SRI. CHIDANANDARADHYA,
SON OF SADASHIVARADHYA,
SINCE DEAD BY LRs.,
12(a) SMT. LALITHAMMA,
WIFE OF LATE CHIDANANDARADHYA, MAJOR,
12(b) SRI.MANJUNATHA SWAMY,
5
SON OF LATE CHIDANANDARADHYA, MAJOR
12(c) SRI. RUDRASWAMY,
SON OF LATE CHIDANANDARADHYA, MAJOR
Nos.12(a) TO (c) ARE RESIDING AT
D.No.567/2, LENIN NAGAR,
NEAR RENUKA YELLAMMA TEMPLE,
NITUVALLI, DAVANAGERE - 577 001.
13. SMT MANJULA,
WIFE OF SHANKARAMURTHY,
AGED ABOUT 28 YEARS,
C/O SHANKARAMURTHY,
RAILWAY DEPARTMENT,
BUMMENAHALLI VILLAGE,
KODAGANUR POST,
DAVANAGERE TALUK,
SINCE DEAD BY LRs.,
13(a) SRI. SHANKARAMURTHY,
AGED ABOUT 40 YEARS,
R/A DOOR No.576/2, LENIN NAGAR,
SYED PEER EXTENSION,
NEAR RENUKA YELLAMMA TEMPLE,
DAVANAGERE - 577 001.
13(b) KUMARI CHAITRA,
DAUGHTER OF SHANKARAMURTHY,
AGED ABOUT 15 YEARS,
13(c) MASTER MANJUNATHA,
S/O SHANKARAMURTHY,
AGED ABOUT 12 YEARS,
R-13(b) AND R-13(c) ARE MINORS
REPRESENTED BY THEIR GUARDIAN AND
FATHER RESPONDENT No.13(a),
RESIDING AT No.576/2,
LENIN NAGAR, SYED PEER EXTENSION,
NEAR RANUKA YELLAMMA TEMPLE,
6
DAVANAGERE - 577 001.
... RESPONDENTS
(BY SRI. MANJUNATH PATTANASHETTY, ADV., FOR C/R-3;
NOTICE TO R-1, R-2, R-4 TO R-6 AND R-8 TO R-11 ARE
SERVED BUT UNREPRESENTED;
APPEAL IS DISMISSED AS AGAINST R-12(A-C);
APPEAL AGAINST R-7 & R-13(A) IS DISMISSED, R-13(b & c)
ARE MINORS REPRESENTED BY R-13(A))
THIS APPEAL IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMET AND DECREE DATED 15.06.2010
PASSED IN R.A.No.89/2009 ON THE FILE OF THE II ADDL.
DISTRICT AND SESSIONS JUDGE, DAVANAGERE,
DISMISSING THE APPEAL CONFIRMING THE JUDGMENT AND
DECREE DATED:10.02.2005 PASSED IN O.S.No.347/1995 ON
THE FILE OF THE ADDL. CIVIL JUDGE, (JR.DN.) AND JMFC,
CHANNAGIRI.
--*--
THESE APPEALS HAVING BEEN HEARD AND RESERVED
FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
1. Veerabhadraradhya/the plaintiff filed a suit in O.S.
No.347 of 1995 seeking partition of 1/5th share in 'A' schedule
property and for allotting 'B' schedule properties to the share
of defendant No.1. He also sought for specific performance of
contract on the basis of sale agreement dated 30.12.1986
executed in his favour by defendant No.1.
2. The genealogy, as stated by Veerabhadraradhya, was
as follows:
a] It was the case of Veerabhadraradhya that his
grandfather, late Sadashivaradhya, had five sons, namely (i)
Shanmukaradhya (defendant No.1); (ii) Jayadevaradhya
(husband and father of defendant Nos.2 to 4 respectively);
(iii) Renukaradhya (defendant No.11 and father of plaintiff);
(iv) Rajashekharadhya (husband and father of defendant
Nos.5 to 10); and (v) Chidanandaradhya (father of Defendant
Nos.12(a) to 12(d)).
b] It was stated that this family was joint till 25.06.1978 and
on 25.7.1978, these five sons partitioned the joint family
property under an unregistered deed of partition. It was
stated that under this partition, Sy.No.49 was divided into
five equal parts, measuring 4 acres 13 guntas each and the
parts were situate from north to south. It was stated that the
northern-most portion was allotted to Renukaradhya and
adjacent to this, an extent of 4 acres 13 guntas was allotted
to Jayadevaradhya (husband and father of defendant Nos.2 to
4). It was stated that to the south of Jayadevaradhya's
share, 4 acres 13 guntas was allotted to Chidanandaradhya
and adjacent to this, 4 acres 13 guntas of land was allotted to
Rajashekhararadhya. It was stated that the land at the last
i.e., the southern-most portion had fallen to the share of
Shanmukharadhya.
c] It was stated that in respect of 6 acres out of the total
extent in Sy.No.49, the Khata was in the name of
Jayadevaradhya and this had been allotted to the share of
Shanmukharadhya to the extent of 4 acres 13 guntas and the
remaining land was allotted to Rajashekharadhya and the
parties were in possession of their respective shares.
d] It was stated that Shanmukharadhya/defendant No.1 had
been allotted the suit schedule 'B' property i.e., the southern
most portion of Sy.No.49, and as he intended to sell the said
share, he had entered into an agreement of sale on
04.12.1985 with the plaintiff agreeing to sell his share for a
sum of Rs.17,001/- and had also received a sum of
Rs.6,501/- as an advance. It was stated that subsequently,
on 31.12.1986, Shanmukharadhya had received the
remaining consideration and had also agreed to execute the
regular sale deed. It was also stated that in part performance
of the contract of sale, the plaintiff had been put in
possession and all that required to be done by defendant
No.1 was to execute the sale deed.
e] It was alleged that defendant Nos.2 to 4 i.e., the legal
representatives of late Jayadevaradhya, were attempting to
get the Khata of the schedule 'B' property changed to their
names and the plaintiff had immediately caused issuance of a
legal notice to them. It was stated that defendant No.1
through a reply admitted the execution of the sale agreement
and he had stated that he was unable to execute the
registered sale deed and would be able to execute a sale
deed only after a regular partition deed was executed
amongst all the sharers.
f] It was stated that the legal heirs of Jayadevaradhya
denied the very partition deed dated 25.06.1978 and also the
execution of the agreement of sale in favour of the plaintiff by
defendant No.1 and consequently, the plaintiff was
constrained to file the suit.
3. Defendant No.1 entered appearance and conceded for a
decree to be passed in favour of the plaintiff.
4. Similarly, defendant No.12 i.e., Chidanandaradhya, also
supported the case of the plaintiff and prayed for the suit to
be decreed.
5. Defendant No.3 entered appearance and contested the
suit. It was stated that the joint family did own the property
bearing Sy.No.49 but only to an extent of 17 acres 20 guntas
and not 23 acres 20 guntas as alleged. It was also stated that
the Khatas in respect of 17 acres 20 guntas stood in the
name of Renukaradhya, and Renukaradhya, out of this
extent, had sold an extent of 6 acres of land in Sy.No.49 in
the year 1960 in favour of Ankalappa, son of DoddaBasappa.
It was stated that thereafter, the father of defendant No.3
i.e., Jayadevaradhya had purchased 6 acres from out of his
own earnings and this 6 acres of land in Sy.No.49 was the
separate property of Jayadevaradhya. It was stated that
pursuant to the purchase, revenue entries were also changed
in favour of Jayadevaradhya and this was his exclusive
property. It was also stated that Jayadevaradhya could
purchase the said 6 acres, since, he was deriving income
from his employment in the Irrigation Department as a First
Division Clerk since the year 1958. It was stated that 17
acres 20 guntas continued to be in joint possession of all the
sons of late Sadashivaradhya.
6. The allegation that an extent of 4 acres 13 guntas was
available to each of the brothers by virtue of the partition,
was specifically denied. It was stated that since 6 acres out of
the total extent of 23 acres 20 guntas belonged to
Jayadevaradhya by virtue of his purchase, the question of
each brothers being entitled to 4 acres 13 guntas would not
arise. Defendant No.3 denied the agreement of sale that had
been set up by the plaintiff and contended that he had no
right to claim the said 4 acres 13 guntas. It was ultimately
stated that defendant Nos.2 to 4 together were entitled to an
equal share out of 17 acres 20 guntas in Sy.No.49, which was
the joint family property.
7. Defendant Nos.2 and 4 adopted the written statement
of defendant No.3.
8. The Trial Court on consideration of the evidence
adduced came to the conclusion that the plaintiff had failed to
prove that the suit 'A' schedule property was the joint family
property of the defendants and the defendants had failed to
prove that defendant No.1 was entitled to 1/5th share in the
'A' schedule property. The Trial Court also held that, the
plaintiff had failed to prove that defendant No.1 had executed
the sale agreement dated 31.12.1986 agreeing to sell suit 'B'
schedule property. The Trial Court, accordingly, dismissed
the suit.
9. It is pertinent to state here that defendant No.3 in O.S.
No.347/1995 i.e., son of Jayadevaradhya instituted a suit for
injunction in O.S. No.154/1999 against defendant No.11 in
O.S. No.347/1995, his son Veerabhadraradhya/the plaintiff in
O.S. No.347/1995 and also Shanmukharadhya--defendant
No.1 in O.S. No.347/1995. This suit was clubbed along with
the suit filed by Veerabhadraradhya.
10. The Trial Court in its common judgment, while
dismissing the suit of Veerabhadraradhya, also recorded a
finding that Jayadevaradhya had purchased 6 acres and after
his death, his legal heirs were in possession and therefore,
the suit filed by them for injunction was required to be
decreed.
11. Being aggrieved, the plaintiff i.e., Veerabhadraradhya
preferred an appeal both against the refusal of the Trial Court
to grant a decree in his favour and also against the decree of
injunction granted in favour of defendant No.3.
12. Both these appeals were clubbed together and the
Appellate Court after re-appreciating the evidence on record
and after hearing the learned counsel, came to the conclusion
that the purchase of 6 acres by Jayadevaradhya from
Ankalappa under the sale deed dated 17.05.1961 could not
be considered as a joint family property and was out of joint
family funds. The Appellate Court also held that
Veerabhadraradhya had failed to prove that there was
already a partition on 25.06.1978 through an unregistered
partition deed amongst five sons of Sadashivaradhya. The
Appellate Court also held that the plaintiff had failed to prove
that the southern-most portion of 4 acres 13 guntas in
Sy.No.49 had fallen to the share of Shanmukharadhya /
Defendant No.1 and he had entered into an agreement of sale
with the plaintiff. The Appellate Court accordingly dismissed
the appeal and confirmed the decree of the Trial Court.
13. It is against this concurring judgement that the plaintiff
was not entitled for a decree of specific performance and
defendant No.3 in O.S. No.154/1999 was entitled to an
injunction, the present second appeal has been preferred.
14. Sri.P.M.Siddamallappa, learned counsel for the
appellant, contended that the Trial Court and the Appellate
Court could not have refused to grant a decree of specific
performance when defendant No.1 had admitted the
execution of the sale agreement. He submitted that the
partition of the suit schedule property into five portions on
25.06.1978, as per Ex.P-1, had been proved and both the
Courts were therefore not justified in refusing the decree
sought by the plaintiff. It was also argued that the signatures
on the unregistered partition deed had been admitted and the
Courts were therefore not justified in dismissing the suit.
15. The Appellate Court as well as the Trial Court have
recorded a clear finding that an extent of 6 acres in Sy.No.49
had been sold to one Ankalappa under the registered sale
deed on 25.11.1960, as per Ex.D-4. Both the Courts have
also recorded a finding that the said Ankalappa had sold the
very same extent of 6 acres in favour of Jayadevaradhya--the
father of defendant No.3 under Ex.D-3, a registered sale
deed.
16. It has also been recorded by both the Courts that on
the basis of the said purchase, the revenue records were
changed in the name of Jayadevaradhya and his name
continued in the records. Both the Courts have also recorded
a finding that Jayadevaradhya had also paid the Kandaya
(taxes) in respect of these properties.
17. Thus, both the Courts have concurrently recorded a
finding that Jayadevaradhya had purchased 6 acres. In fact,
both the Courts have also recorded a finding that
Jayadevaradhya had purchased 6 acres out of his own funds.
If, out of the total extent of 23 acres 20 guntas, an extent of
6 acres had been purchased by Jayadevaradhya, there would
only be an extent of 17 acres 20 guntas remaining.
18. The sale deed in favour of Jayadevaradhya was
admittedly dated 17.05.1961 and ever since 1961, his name
has been entered in the revenue records. In the light of the
fact that 6 acres belonged to Jayadevaradhya, the contention
of the plaintiff that 23 acres 20 guntas belonged to the joint
family has rightly not been accepted by both the Courts.
19. Both the Courts have recorded a finding that the joint
family funds were not utilised for acquisition of this 6 acres by
Jayadevaradhya. It has come out in the evidence that
Jayadevaradhya was employed in the Irrigation Department
and he was having his own income. If, it has been found that
Jayadevaradhya possessed independent means to acquire 6
acres, the question of acquisition of 6 acres by him in
Sy.No.49 from out of joint family property would not arise.
20. As a further consequence, since 6 acres out of 23 acres
was acquired by Jayadevaradhya, the said property being
subjected to partition on 25.06.1978 would not arise at all.
Both the Courts have found that the revenue entries, ever
since the date of purchase, stood in the name of
Jayadevaradhya and on his death, the names of defendant
Nos.2 to 4 had been mutated and this also evidenced their
exclusive possession.
21. In view of the concurrent findings that 6 acres had been
purchased by Jayadevaradhya out of his own funds, the
assertion of the plaintiff that 23 acres 20 guntas belonged to
the joint family has rightly not been accepted by both the
Courts. As a consequence, the claim that the entire 23 acres
20 guntas had been partitioned on 25.06.1978 cannot also be
accepted.
22. If the partition of 1978 was not established, it is
obvious that defendant No.1 did not own 4 acres 13 guntas in
Sy.No.49 which he could have agreed to convey to the
plaintiff and the plaintiff could not seek for enforcement of
the agreement of sale and for partition of the entire extent
and for allotment of 1st defendant's share to him.
23. The dismissal of the suit and its confirmation in appeal
does not suffer from any infirmity. No question of law, as
such arises for consideration and this second appeal is
dismissed.
24. It is however necessary to state that the dismissal of
the suit would not come in the way of the defendants i.e., the
legal heirs of Sadashivaradya to seek for partition of Sy.No.49
measuring 17 acres 20 guntas after excluding the 6 acres
purchased by Jayadevaradhya, since it is not in dispute that,
17 acres 20 guntas in Sy No 49 is an undivided joint family
property.
25. It is hereby made explicitly clear that the brothers of
Jayadevaradhya or their legal heirs would have no right to
claim a share over the 6 acres of land in Sy.No.49 that
Jayadevaradhya had purchased from Ankalappa under the
sale deed dated 17.05.1961 vide Ex.D-3 as both the Courts
have recorded a clear finding that the said 6 acres was the
separate property of Jayadevaradhya.
Sd/-
JUDGE
RK
CT: SN
