Karnataka High Court
Smt. K.B. Premakumari vs Mahadevamma on 12 January, 2022
Bench: N S Gowda
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RSA.No.1026/2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF JANUARY, 2022
BEFORE
THE HON'BLE MR. JUSTICE N S SANJAY GOWDA
REGULAR SECOND APPEAL NO. 1026 OF 2019(PAR)
BETWEEN:
1. SMT. K.B. PREMAKUMARI
W/O P.N.UTHAPPA,
AGED ABOUT 56 YEARS,
RESIDING AT NO.330, 33TH MAIN ROAD,
17TH B CROSS ROAD,
6TH PHASE, J.P.NAGAR,
BENGALURU-78
2. SRI.P.N.UTHAPPA
S/O P.A. NANANIAH,
AGED ABOUT 57 YEARS,
RESIDING AT NO.330,
33TH MAIN ROAD,
17TH B CROSS ROAD,
6TH PHASE, J.P.NAGAR,
BENGALURU-78
...APPELLANTS
(BY SMT. NAGANANDINI ADV., FOR SRI. JAIRAJ G., ADV.,)
AND:
1. MAHADEVAMMA
D/O LATE SRIKANTAIAH,
AGED ABOUT 48 YEARS,
RESIDING AT NO.338/1
SIDDALINGAPURA VILLAGE,
KASABA HOBLI,
MYSURU TALUK-570 003.
Digitally
signed by
KIRAN
KUMAR R
2. HEMAVATHI,
Location:
High
D/O LATE SRIKANTAIAH,
Court of
Karnataka
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RSA.No.1026/2019
AGED ABOUT 46 YEARS,
RESIDING AT NO.338/1
SIDDALINGAPURA VILLAGE,
KASABA HOBLI,
MYSURU TALUK-570 003.
3. SHARADAMMA
W/O LATE SRIKANTAIAH,
AGED ABOUT 66 YEARS,
4. S SUKANYA
D/O LATE SRIKANTAIAH,
AGED ABOUT 43 YEARS,
5. MAHADEVA
S/O LATE SRIKANTAIAH,
AGED ABOUT 42 YEARS,
R-3 TO 5 WERE RESIDING AT H.No.338/1,
SIDDALINGAPURA VILLAGE,
KASABA HOBLI,
MYSURU TALUK-570 003
...RESPONDENTS
THIS RSA FILED UNDER SECTION100 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED:14.03.2019 PASSED IN
RA.NO.273/2018, ON THE FILE OF THE VII ADDITIONAL DISTRICT
JUDGE, MYSURU, ALLOWING THE APPEAL AND SETTING ASIDE
THE JUDGMENT AND DECREE DATED:26.10.2015 PASSED IN
OS.NO.716/2009 ON THE FILE OF THE ADDL.II CIVIL JUDGE,
MYSORE.
THIS RSA COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
Smt.Mahadevamma and Smt.Hemavathi, the two daughters
of late Srikantaiah, instituted a suit in O.S.No.716/2009 seeking for
partition in respect of a residential house situated in Siddalingapura
Village, Kasaba Hobli, Mysuru Taluk, bearing No.142/1 measuring
RSA.No.1026/2019
East to West 36' and North to South 40'. They stated that they
were the daughters of late Srikantaiah and Smt.Sukanya
(defendant No.2) and Sri S.Mahadeva (defendant No.3) was their
sister and brother respectively, while Smt.Sharadamma (defendant
No.1) was their mother. It was stated that the suit property had
been purchased by their father Srikantaiah as a vacant site on
24.02.1969 and thereafter, their father had constructed a house
and they were residing in the said house.
2. It was stated that Srikantaiah died intestate and thereafter, in
order to defeat their legitimate claim, their mother, sister and
brother (defendants 1 to 3) had executed a Sale Deed in favour of
defendants 4 and 5 on 01.07.2006. They stated that this Sale
Deed was not binding on them. It was also stated that under the
said Sale Deed, an extent of 9" X 9' belonging to the husband of
their sister Smt.Sukanya had also been sold.
3. On service of summons, the mother and siblings of the
plaintiffs entered appearance and supported the plaintiffs by stating
that they have no objection for decreeing the suit.
4. The purchasers i.e., defendants 4 and 5 also entered
appearance and contested the suit by denying all the allegations in
RSA.No.1026/2019
the plaint. They stated that they had purchased the suit property
for a sum of `1,52,000/- from the first defendant i.e., the mother of
the plaintiffs, who was the absolute owner of the suit property.
5. They stated that all the documents pertaining to the suit
schedule property stood in the name of the first defendant and the
sale had been made for a legal necessity of the family and all the
family members including the first plaintiff had decided to dispose
off the suit property. It was stated that the first plaintiff was aware
of the sale and the second plaintiff was actually not a member of
the family of the first plaintiff and defendants 1 to 3 as she was
given away in adoption.
6. The Trial Court, on appreciation of evidence, recorded a
finding that the suit property was not the joint family property of the
plaintiffs and defendants 1 to 3 and plaintiffs had not proved that
they were entitled for 2/5th share in the suit property. The Trial
Court held that the purchasers i.e., defendants 4 and 5 had proved
that the sale by defendants 1 to 3 was for a legal necessity of the
family of the plaintiffs and defendants 1 to 3 and therefore, the
plaintiffs were not entitled for partition.
RSA.No.1026/2019
7. In appeal, the Appellate Court, however, took the view that
admittedly, the suit property was the self acquired property of late
Srikantaiah and the fact that he had died intestate had also been
admitted by the purchasers i.e., defendants 4 and 5 and having
regard to these admitted facts, the Appellate Court held that
plaintiffs, undisputedly, being the daughters of late Srikantaiah,
were entitled to an equal share in the suit property as they were
Class I heirs. The Appellate Court recorded a finding that
incomprehensible reasons had been assigned by the Trial Court for
dismissal of the suit and since the plaintiffs were admittedly not
parties to the Sale Deed dated 01.07.2006, they could not be
bound by the said Sale Deed. The Appellate Court accordingly
decreed the suit and granted 2/5th share to the plaintiffs.
8. It is against this divergent finding, the present second appeal
has been preferred.
9. Having regard to the admitted fact that the plaintiffs
Smt.Mahadevamma and Smt.Hemavathi were the daughters of
Srikantaiah and that Srikantaiah had acquired the suit property on
his own, on his intestate death, the devolution of the property to his
wife and children in equal proportions cannot be in doubt at all.
RSA.No.1026/2019
10. The plaintiffs, by virtue of being daughters and thereby Class
I heirs under Hindu Succession Act, they would be entitled to an
equal share in the suit schedule property along with their mother
and siblings.
11. Since it is not in dispute that the Sale Deed had been
executed by defendants 1 to 3 alone and the plaintiffs were not
parties to the Sale Deed, the Sale Deed dated 01.07.2006
executed in favour of defendants 4 and 5 cannot bind the plaintiffs
at all. The conclusion of the Appellate Court that since the plaintiffs
were not bound by the Sale Deed dated 01.07.2006, they were
entitled to 2/5th share on the death of Srikantaiah cannot be found
fault with.
12. In my view, no question of law, muchless, a substantial
question of law arising for consideration in this second appeal and
therefore, the same is dismissed.
Sd/-
JUDGE
PKS.
