Sri Neelesh vs Sri Veerabhadregowda
2022 Latest Caselaw 671 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

            DATED THIS THE 14TH DAY OF JANUARY, 2022

                            BEFORE

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

                      R.S.A.NO.900/2013

BETWEEN:

SRI NEELESH
S/O. VEERABHADREGOWDA,
AGED ABOUT 40 YEARS,
R/O. THANNERUHALLA, EXTENSION,
HASSAN-573201
                                             ...APPELLANT
(BY SRI.GAURAV MANDAPPA, ADVOCATE FOR
SRI.P.K.SRIKARA, ADVOCATE)


,,   AND:

1. SRI VEERABHADREGOWDA
@ EREGOWDA
S/O ANNEGOWDA,
AGED ABOUT 72 YEARS.

2. SRI. SHIVARUDRAPPA
S/O. VEERABHADREGOWDA,
AGED ABOUT 35 YEARS

3. SRI. BHOJARAJU
S/O. VEERABHADREGOWDA,
AGED ABOUT 41 YEARS

THE RESPONDENTS 1 TO 3 ARE
R/AT. YADHUR VILLAGE,
KASABA HOBLI,
                          2


ALUR TALUK-573104

4. SRI AKBAR KHAN
SINCE DEAD,
REP. BY HIS LRS

4a. SRI. SALEEM AHMED KHAN
S/O. LATE AKBAR KHAN,
AGED ABOUT 41 YEARS

4b. SRI. ZABIER AHMED KHAN
S/O. LATE AKBAR KHAN,
AGED ABOUT 30 YEARS

4c. SHAHEER AHMED KHAN
S/O. LATE AKBAR KHAN,
AGED ABOUT 36 YEARS

THE RESPONDENTS 4(a) TO 4(c) ARE
C/O MEN'S STYLE, OPPOSITE BUS STAND
HASSAN 573201.
                                      ...RESPONDENTS
(BY SRI.B.R.VISHWANATH, ADVOCATE FOR R4(a-c);
R2 SERVED; R3 SERVED;
V/O DTD 17.08.2017 APPEAL AGAINST R1 STANDS
DISMISSED AS ABATED)

      THIS RSA IS FILED U/S. 100 R/W ORDER 42 RULE 1
OF CPC AGAINST THE JUDGEMENT & DECREE DTD
30.1.2013 PASSED IN R.A.NO.109/2006 ON THE FILE OF
ADDITIONAL DISTRCIT JUDGE AND PRESIDING OFFICER,
FAST TRACK COURT-I, HASSAN, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGEMENT AND DECREE DTD
29.10.2005 PASSED IN OS.NO.479/1999 ON THE FILE OF
CIVIL JUDGE (JR.DN.) AND JMFC,ALUR.


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

Present regular appeal is filed by the

appellant/plaintiff aggrieved by the judgment and

decree dated 30.01.2013 passed in R.A.No.109/2006

(old No.R.A.No.197/2005) on the file of the Additional

District Judge and The Presiding Officer, Fast Track

Court-1, Hassan (hereinafter referred to as the 'First

Appellate Court') in and by which, the first appellate

court while dismissing the appeal filed by the

appellant/plaintiff confirmed the judgment and decree

dated 29.10.2005 passed in O.S.No.479/1999.

2. The above suit in O.S.No.479/1999 is filed

by the appellant/plaintiff seeking relief of partition and

separate possession of his purported 1/4th share in

plaint 'A' schedule property and for cancellation of

deed of sale dated 24.04.1986 executed in favour of

defendant No.4 in respect of 'B' schedule property and

for consequential relief of mesne profits.

3. The suit was originally registered at Munsiff

and JMFC, Hassan with the O.S.No.102/1994. After

constitution of new court at Alur, the said case was

transferred and renumbered as O.S.No.479/1999.

4. The case of the appellant/plaintiff is;

That the plaintiff and defendant Nos.2 and 3 are

the children of defendant No.1. That the immovable

property in Sy.No.93 measuring 6 Acres 6 guntas of

Yaduru village, Kasaba Hobali, Alur Taluk, Hassan

District mentioned in plaint 'A' schedule property is

the joint family ancestral property consisting of

plaintiff, defendant Nos.1 to 3. That plaintiff and

defendant Nos.1 to 3 had inherited the suit schedule

property from the father of the defendant No.1. That

land in Sy.No.93 measuring 18 Acres 18 guntas

originally belonged to one Puttegowda, the paternal

uncle of defendant No.1. The said Puttegowda

bequeathed the said property in favour of his brother

Annegowda in terms of a Will dated 07.06.1921. The

said Annegowda died living behind him his three sons

namely, Veerabhadregowda- defendant No.1.,

Puttegowda and Nangegowda. That there was

partition amongst the said three sons of Annegowda in

terms of which 6 Acres of 6 Guntas of land each was

allotted to their respective shares. Thus, the

defendant No.1 became the absolute owner of 6 Acres

of 6 Guntas of land described in plaint 'A' schedule

property.

5. That one Mogannagowda, minor son

represented by his father filed suit in O.S.No.95/1949-

50 on the file of Munsiff, Hassan against the defendant

No.1 and his two brothers claiming that said

properties are ancestral properties. That the said suit

came to be dismissed holding the rights of Annegowda

and his children. That in view of the Will dated

07.06.1921 executed by Puttegowda in favour of

Annegowda, it is clear that said suit schedule

properties are ancestral properties of the plaintiff and

thus, the plaintiff is entitled for equal share in the suit

schedule property.

6. The defendant No.4 had purchased 3 acres

18 guntas of land referred to as 'B' schedule property

out of 6 acres 6 guntas referred to as plaint 'A'

schedule property from Defendant Nos.1 and 2 in

terms of registered deed of sale dated 24.04.1986.

The said sale deed was without any family necessity.

As such, the same was untrue and untenable. The sale

was detriment to the interest of the plaintiff and other

members of the family. As such, the plaintiff has

sought for relief of partition and declaration.

7. It is also contended that plaintiff and

defendant No.3 were the minors, aged about 12 years

and 16 years respectively at the time of execution of

the deed of sale and the plaintiff learnt about the said

illegal acts in September, 1993 and caused issuance of

a notice to defendant No.4 and since defendant No.4

had issue of untenable reply without complying with

the demand made by the plaintiff. Plaintiff is

constrained to file suit.

8. The defendant Nos.1 and 2 appeared and

filed written statements contending that the sale was

for the family necessity and that defendant No.1 had

requested the defendant No.4 to pay much higher

value and defendant No.4 had assured the defendant

No.1 of help in some other way. Defendant Nos.1 and

2 have no objections in any manner for giving share in

the property to the plaintiff.

9. Defendant No.4 filed written statement

denying the plaint averments and contended that the

defendant Nos.1 to 3 had sold the property for the

benefit of the family and its necessity in terms of deed

of sale dated 24.04.1986 as evident from the recital of

the deed of sale. Defendant No.4 is bonafide

purchaser of the value. That the claim of the plaintiff

of property being the ancestral property has also been

denied. However, the issue with regard to execution of

will dated 07.06.1921 has not been denied seriously.

10. Based on the pleadings, the trial court

framed the following issues and recorded the

evidence.

"(1). Whether the plaintiffs prove that suit 'A' schedule property are the ancestral property of himself and defendant No.1 to 3 as alleged in the plaint?

(2) Whether the plaintiff further proves that the sale deed dated 24.04.1986 executed in favour of the 4th defendant in respect of 'B' schedule property is not binding on him and it was not for the benefit of the joint family as alleged?

(3) Whether the plaintiff further proves that he has got 1/4th share in suit 'A' schedule property as alleged in the plaint?

(4) Whether the 4th defendant proves that the court has no pecuniary jurisdiction to try this suit?

(5) Whether the court fee paid is insufficient and incorrect?

(6) Whether the suit is bad for non- joinder of necessary parties?

(7) Whether the plaintiff further proves the mesne profits from the suit property?

(8) Whether the plaintiff is entitled for the cancellation of sale deed dated 24.04.1986?

(9) Whether the plaintiff is entitled for the mesne profits?

(10) What decree or order?

11. The plaintiff examined himself as P.W.1

and exhibited eight documents marked as Ex.P.1 to

Ex.P.8. Two witnesses have been examined on behalf

of defendants as D.W.1 and D.W.2 and exhibited six

documents marked as Ex.D.1 to Ex.D.6.

12. On appreciation of evidence, the trial Court

dismissed the suit. Being aggrieved by the same,

appellant/plaintiff filed R.A.No.109/2006 (old

No.197/2005). The first appellate Court framed the

following points for its consideration.

"1. Whether the appellant/plaintiff proves that finding given by the trial

court that the transaction done through sale deed dated.24.04.1986 was for legal necessity and was also for the benefit of the family, is erroneous an liable to be set aside?

2. Whether the appellant/plaintiff proves that there is a need for interference in the finding of the trial court?

3. If so, what is the order?

13. On re-appreciation of the evidence, the first

appellate court dismissed the appeal and confirmed

the judgment and decree dated 29.10.2005 passed by

the trial court in O.S.No.479/1999. Being aggrieved

by the same, appellant/plaintiff is before this court.

14. Sri. Gaurav Mandappa, learned counsel for

appellant/plaintiff reiterating the grounds urged in the

memorandum of appeal submitted that;

(a) the trial court and first appellate court

grossly erred in dismissing the suit on purported

ground of same having been barred by limitation.

(b) that trial court and first appellate court had

not taken note of the fact that as on the date of filing

of the suit, the plaintiff was aged about 21 years

which is mentioned in the recitals of deed of sale

dated 24.04.1986, wherein his age is mentioned as 12

years. Taking the same, if his age is calculated as on

the date of suit in 1993, plaintiff was about 21 years

of age. Thus, he submits that trial court and first

appellate court erred in concluding that suit of the

plaintiff barred by limitation as not having been filed

within the period of limitation of he attaining the age

of majority.

(c). that the issue with regard to legal necessity

has been erroneously dealt with by the trial court and

first appellate court. In the case of ancestral joint

family property it is the alienee, who is casted with

the burden under the law to establish that the sale

was for legal necessity. That trial court and first

appellate court have misconceived this concept of law

and have there by erroneously casted the burden on

the plaintiff. Thus, he submits that appeal involves

substantial question of law requiring consideration.

15. On the other hand, Sri.B.R.Vishwanath,

learned counsel for respondent/defendant

No.4/purchaser submits;

(a) that in the first instance, the suit of the

plaintiff for the relief as sought for was not

maintainable, as the fundamental requirement of

property being ancestral property has not been

established by the appellant/plaintiff.

(b) drawing attention of this court to

paragraph 15 of the judgment of the trial court, the

learned counsel submits, that the very finding of the

trial court with regard to execution of Will dated

07.06.1921 by Puttegowda in favour of Annegowda,

the grand father of the plaintiff would establish that

property was not an ancestral property. That being so,

the plaintiff claiming right by birth and agitating the

question of legal necessity would not arise. Thus, he

submits no substantial question of law involves in the

matter requiring consideration.

16. Heard the learned counsel appearing for

parties and perused the records.

17. The appellant/plaintiff has filed the above

suit seeking relief of partition and separate possession

and also declaration that the deed of sale dated

24.04.1986 executed by defendant Nos.1 to 3 in

favour of defendant No.4 was illegal, null and void as

suit 'A' schedule property is an ancestral joint family

property. It is settled law that there can be a

presumption of a Hindu family being a joint family.

However, there cannot be a presumption with regard

to Hindu Joint Family Property. A Hindu Joint Family

property is a factum to be established by leading

cogent evidence. It cannot be presumed merely

because members of a family reside together.

18. In the instant case, admittedly the

Puttegowda had bequeathed all his properties in terms

of Will dated 07.06.1921 in favour of his brother

Annegowda. The said Annegowda was the father of

defendant No.1 and grand father of plaintiff and

defendant No.3. Thus, the acquisition of larger extent

of property including the suit schedule property by

Annegowda was by means of a testamentary

document and not by inheritance or succession. That

being so, the claim of the plaintiff, that the property

being ancestral joint family property, cannot be

countenanced. Defendant No.1 being the son and

class -I heir of Annegowda along with his brother has

got equal shares in terms of Section 8 of Hindu

Succession Act, 1956, having absolute right to deal

with his share of the property without any hindrance

or obstacles.

19. Though, the trial Court at paragraph 15 of

its judgment has taken note of the acquisition of

property by Annegowda in terms of Will dated

07.06.1921 through his brother Puttegowda the

testator, the trial court has however concluded that

the said property is an ancestral property. This

reasoning and finding of the trial Court, as rightly

contended by the counsel for defendant

No.4/respondent appears to be inappropriate and does

not meet the requirement of law to consider the same

as ancestral joint family property. The said

Annegowda, admittedly having acquired the property

of his brother in terms of the aforesaid Will, was the

absolute owner and on upon his demise the property

has been succeeded by his three sons in equal

proportion including the defendant No.1 being class-I

heir under Section 8 of Hindu Succession Act, 1956.

20. The above being factual and legal aspect of

the matter, the plaintiff's suit for partition and

claiming the property to the ancestral joint family

property cannot be countenanced. Though, trial court

and first appellate court have dismissed the suit of the

plaintiff on the premise of same having been barred

by limitation and on the purported premise of legal

necessity, in view of the property, in the first place,

not being an ancestral property, the suit is otherwise

requires to be dismissed.

21. The defendant No.1 having had absolute

right to deal with his share of the property as class -I

heir had executed and registered the deed of sale in

favour of defendant No.4 conveying a portion of 'A'

schedule property which described schedule 'B'

property cannot be faulted with.

22. The plaintiff has failed to establish the fact

that suit schedule 'A' property is the ancestral joint

family property justifying his claim of partition and

declaration with regard to validity or otherwise of

deed of sale dated 24.04.1986 executed by defendant

Nos.1 to 3 in favour of defendant No.4.

23. In the light of the aforesaid analysis and

reasoning, the appeal filed by the plaintiff does not

give raise to any substantial question of law.

Therefore, same is liable to be dismissed. Hence, the

following order.

1). The appeal is dismissed.

Sd/-

JUDGE

RU