B.Shruthi Patel vs Kamalesh Sonia
2022 Latest Caselaw 521 Kant

                             1



 IN THE HIGH COURT OF KARNATAKA BENGALURU


       DATED THIS THE 12TH DAY OF JANUARY, 2022

                        BEFORE

         THE HON'BLE MR.JUSTICE M.G.S.KAMAL

             RSA No.1653 OF 2014 (PAR)
BETWEEN:


1.     B. SHRUTHI PATEL
       D/O C. BASAVARAJU
       AGED ABOUT 24 YEARS

2.     B. APOORVA PATEL
       D/O B. BASAVARAJU
       AGED ABOUT 21 YEARS

3.     SMT. LOKAMATHA
       AGED ABOUT 42 YEARS
       W/O C. BASAVARAJU

       ALL ARE R/O DOOR NO.2179/1, 4TH CROSS
       KUVEMPU NAGARA
       CHNNAPATANA TOWN
       BANGALORE RURAL DISTRICT
       BANGALORE - 571 501.
                                         ... APPELLANTS
(BY SRI. SHIVARAMU H.C., ADVOCATE)
 (THROUGH VIDEO CONFERENCE )

AND:

1.     KAMALESH SONIA
       S/O JAVAR LAL SONIA
       MAJOR,
       R/O HALGUR VILLAGE
       HALAGURU, HOBLI
       MALAVALLI TALUK
       MANDYA DISTRICT - 571 401.
                               2



2.    C. BASAVARAJU
      S/O LATE CHIKKAMADHAIAH
      AGED ABOUT 52 YEARS
      R/O DOOR NO.2179/1
      4TH CROSS , KUVEMPU NAGARA
      CHANNAPATTANA TOWN
      BANGALORE RURAL DISTRICT.
                                             ...RESPONDENTS

(BY SRI. S.V. HEGDE, ADVOCATE FOR R-1
    SRI. MAHESH R. UPPIN, ADVOCATE FOR R-2)

      THE REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC AGAINST THE JUDGEMENT AND DECREE
DATED 03.04.2014 PASSED IN R.A. NO. 156/2012 ON THE
FILE OF I ADDITIONAL DISTRICT AND SESSION JUDGE,
MANYA, DISMISSING THE APPEAL CONFIRMING THE
JUDGEMENT AND DECREE DATED 05.11.2012 PASSED IN O.S.
NO. 33/2006 ON THE FILE OF THE CIVIL JUDGE (JR.DN.) AND
J.M.F.C. MALAVALLI.

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


                        JUDGMENT

Present appeal is filed by the appellants/plaintiffs

aggrieved by the Judgment and Decree dated 03.04.2014

passed in R.A.No.156/2012 on the file of I Addl. District

and Sessions Judge, Mandya (hereinafter referred to as

'the First Appellate Court'), in and by which, the First

Appellate Court while dismissing the appeal, confirmed

the Judgment and Decree dated 05.11.2012 passed in

O.S.No.33/2006 on the file of Senior Civil Judge, Malavalli

(hereinafter referred to as 'the Trial Court').

2. Plaintiffs being daughter and son of one

C.Basavaraju-Defendant No.2 filed suit in

O.S.No.33/2006 for relief of partition, separate

possession and consequential relief of declaration to

declare that the deed of sale dated 24.01.2002 executed

by their father the defendant No.2 in favour of the

defendant No.1 as null and void and not binding on the

plaintiffs. The suit schedule property is land bearing

Survey No.517/594 measuring East to West 53 feet,

North to South 59.5 feet as described in the plaint. It is

the case of the plaintiff that the plaintiffs and the

defendant No.2 formed Hindu Undivided Family and the

suit schedule property is an ancestral property. It is

further contended by the plaintiffs that their grandfather

had purchased the suit schedule property from one

H.G.Abdul Munaf Sab, S/o.H.G.Abdul Gaffer Sab under a

registered Sale Deed dated 30.12.1978 and eversince

then, the subject property has remained a Hindu Joint

Family property. That the said property was allotted to

the share of the defendant No.2 in terms of a Palupatti

dated 10.12.1988 by the deceased grandfather and as

such, the plaintiffs being the legal representatives are

entitled for the share in the property. That the plaintiffs

and the defendant No.2 after construction of a house

thereon resided therein for some time and thereafter

they had shifted to Channapatna where the defendant

No.2 was working as a Demonstrator in the Government

service. That when they were living in Channapatna, the

defendant No.2 on the pretext of leasing out the

property, playing fraud on the plaintiffs had executed and

registered a deed of sale conveying the said property in

favour of the defendant No1. That the defendant No.2

had conveyed the property without consent or knowledge

of the plaintiffs. As such, the said deed of sale is not

binding on the plaintiffs. Hence, sought for relief of

partition and declaration as above.

3. Defendant No.1 filed written statement denying

the plaint averment and sought for dismissal of the suit

on the premise that the defendant No.2 is the absolute

owner of the property having inherited from his father

had every right to convey the same in favour of

defendant No.1. The claim of the plaintiff that property

being the ancestral property is also specifically denied.

The allegation of fraud and undue influence and

misrepresentation in executing deed of sale dated

24.01.2002 by the defendant No.2 in favour of the

defendant No.1 is also denied. Hence, sought for

dismissal of the suit.

4. The defendant No.2 who appeared and filed

written statement contended that the suit property had

been purchased by his father from its original owner

Abdul Manaf Sab of Halagur village under registered deed

of sale dated 30.12.1978 which subsequently fell to the

share of the defendant No.2 in a partition (Palupatti)

dated 10.12.1998. Eversince the date of purchase and

subsequent to Palupatti, the defendant No.2 has been in

peaceful possession and enjoyment of the suit property

along with his family members. The defendant No.2 has

in a way supported the case of the plaintiff. The Trial

Court based on the pleadings, framed following issues:

i) Whether the plaintiffs prove that suit property is the joint family property and in the partition had fallen to the share of defendant No.2?

ii) Whether the plaintiffs prove that sale deed dated:24.01.2002 is null and void and not binding on them?

iii) Whether the defendant No.1 proves that, he is bonafide purchaser?

iv) Whether plaintiffs are entitled for reliefs as prayed

iv) What order of Decree?

5. Six witnesses have been examined on behalf of

the plaintiff as P.Ws.1 to 6 and exhibited 21 documents

as Ex.P1 to Ex.P21. Five witnesses have been examined

on behalf of the defendants and exhibited 152 documents

marked as Ex.D1 to Ex.D152. On appreciation of

evidence, the trial court dismissed the suit by its

Judgment and Decree dated 05.11.2012. Being

aggrieved by the same, the plaintiffs filed regular appeal

in R.A.No.156/2012 before the First Appellate Court.

Based on the grounds urged, the First Appellate Court

framed the following points for consideration:

i) Whether the plaintiffs prove that the execution of sale deed by the second defendant in favour of the first defendant is out come of fraud, undue influence, misrepresentation and thereby it is null and void as alleged in the plaint?

ii) Whether the plaintiffs prove their legal right over the suit property?

iii) Whether the Judgment and Decree passed by the trial court in O.S. No.33/2006 dated:05.11.2012 is illegal erroneous and unsustainable under law and liable to be interfered with?

        iv)    What order?


        6.    On    re-appreciation     of   material      evidence,

dismissed the appeal confirming the Judgment and

Decree passed by the Trial Court. Being aggrieved by

the same, appellants/plaintiffs are before this Court.

7. Sri.H.C.Shivaramu, learned counsel for the

appellants/plaintiffs reiterating the grounds urged in the

memorandum of appeal submits that:

a) The Trial Court and the First Appellate Court

have misconceived the pleadings and evidence of the

parties. The property admittedly belonged to the

grandfather of the plaintiff who is the father of defendant

No.2. He having purchased the same under a deed of

sale dated 30.12.1978 and the said property having been

allotted to the share of the father of the plaintiffs, has

become the joint family property in which the plaintiffs

are entitled for share therein.

b) That the defendant No.2 without the consent or

knowledge of the plaintiffs and without there being any

legal necessity has sold the property depriving the share

of the plaintiffs. Hence, he submits that the Judgment

and Decree suffers from perversity giving rise to

substantial question of law for consideration in this

appeal.

8. On the other hand, Sri.V.S.Hegde, learned

counsel for the respondents/defendants justifying the

Judgment and Decree passed by the Trial Court and

Appellate Court submits that since the plaintiffs have

failed to establish the property being ancestral property,

cannot claim any pre-existing right over the same.

Referring to the admission by the Defendant No.2 with

regard to the property having been purchased by his

father under deed of sale dated 30.12.1978, he submits

that the same cannot in the facts and circumstances of

the case considered to be the ancestral property entitling

the plaintiff for a share therein. Hence, he submits that

no substantial question of law arises requiring

consideration.

9. Heard the learned counsel for the parties.

10. It is not in dispute that the suit schedule

property has been purchased by the father of the

defendant No.2 in terms of the deed of sale dated

30.12.1978 from one H.G. Abdul Manaf Sab. Thus, there

is no evidence of any nature whatsoever produced by the

plaintiffs to show that the said property was acquired

through any joint family nucleus. Since the said property

being the self-acquired property of the father of the

defendant No.2 upon his demise, the same would fall to

the share of the defendant No.2 being the class-I heir

having succeeded to the property. The same would be

his absolute property. As such, the same cannot be

considered to be the jointly ancestral property.

Defendant No.2 would therefore be entitled to dispose of

the property in exercise of his absolute ownership over

the same without any hindrance. This aspect of the

matter has been taken note of by the Trial Court as well

as the First Appellate Court. Factually and legally, the

said reasoning cannot be found fault with. The claim of

the plaintiff that the property is ancestral Hindu Joint

Family property, in the facts and circumstances of the

case, cannot be countenanced. On a holistic reading of

the pleadings of the parties and the reasoning given by

the First Appellate Court, this Court is of the considered

view that no substantial question of law arises in the

matter.

10. Hence, the following:

ORDER

i) RSA No.1653/2014 is dismissed.

ii) The Judgment and Decree dated 05.11.2012

passed in O.S.No.33/2006 on the file of Senior Civil

Judge, Malavalli dated 03.04.2014 and the Judgment and

Decree passed in R.A.No.156/2012 on the file of I Addl.

District and Sessions Judge, Mandya, are confirmed.

Sd/-

JUDGE bnv*