Karnataka High Court
Smt. Hanumakka vs Kum. R.Swetha on 9 March, 2022
Bench: R. Nataraj
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 9TH DAY OF MARCH, 2022
BEFORE
THE HON'BLE MR.JUSTICE R. NATARAJ
R.S.A. NO.756 OF 2017 (PAR)
BETWEEN:
SMT. HANUMAKKA
W/O LATE VENKATAPPA,
AGED ABOUT 55 YEARS,
R/AT SHANUBHOGANAHALLI VILLAGE,
KASABA HOBLI, MAGADI TALUK,
RAMANAGARA DISTRICT-562120.
...APPELLANT
(BY SRI. S.R.DODAWAD, ADVOCATE)
AND:
1. KUM. R.SWETHA
D/O MR. S.V.RAJANNA,
AGED ABOUT 22 YEARS,
2. KUM. R.SWATHI
D/O MR. S.V.RAJANNA,
AGED ABOUT 20 YEARS,
3. SMT. K.V. RAJALAKSHMI
W/O MR. S.V. RAJANNA
AGED ABOUT 50 YEARS ,
4. MR. S.V. RAJANNA
S/O LATE VENKATAPPA
AGED ABOUT 58 YEARS
R/AT SHANUBHOGANAHALLI VILLAGE,
KASABA HOBLI, MAGADI TALUK,
RAMANAGARA DISTRICT-562120
SL. NO.1 TO 3 ARE R/AT
KONAMUDDANAHALLI VILLAGE,
KOOTAGAL HOBLI,
RAMANAGARA TALUK & DISTRICT.
2
5. MR. K. MUNIRAJU
S/O LATE KRISHNAPPA
AGED ABOUT 56 YEARS
R/AT NO.97/10, 1ST CROSS,
NANJAPPA GARDEN,
KALYANA NAGARA POST,
B.S.PALYA,
BANGALORE-560043.
...RESPONDENTS
(BY SRI. S.R.HEGDE HUDLAMANE, ADVOCATE FOR
RESPONDENT NOs.1 TO 3 (THROUGH VC)
SRI. HARIPRASAD N., ADVOCATE FOR RESPONDENT NO.5;
NOTICE SERVED ON RESPONDENT NO.4 AND UNREPRESENTED)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CODE OF
CIVIL PROCEDURE, 1908 AGAINST THE JUDGMENT AND
DECREE DATED 13.02.2017 PASSED IN R.A.NO.61/2015 ON
THE FILE OF THE III ADDL. DISTRICT AND SESSIONS JUDGE.,
RAMANAGARA, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGEMENT AND DECREE DTD.17.07.2015 PASSED IN
O.S.NO.300/2014 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND JMFC., MAGADI.
THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
The defendant No.3 in O.S.No.300/2014 has filed
this appeal challenging the concurrent finding of fact
recorded by both the Courts that the plaintiffs No.1 and 2
are entitled to 2/3rd share in the suit properties except one
acre of land sold in favour of defendant No.2.
2. The parties shall henceforth be referred as
they were arrayed before the Trial Court.
3. The plaintiffs No.1 and 2 are the children of
defendant No.1 and plaintiff No.3. It is stated that the
defendant No.1 inherited suit Items No.1 and 3 from his
father along with other properties. Subsequently, there
was a division between defendant No.1 and his brothers
where the suit property No.1 and 3 were allotted to the
share of defendant No.1. The defendant No.1 is stated to
have developed a hostile attitude against plaintiff No.3 by
suspecting her fidelity. This and the events that followed
it, prompted the plaintiffs to claim their legitimate share in
the suit properties. However, the defendant No.1 refused
the claim of the plaintiffs which prompted the plaintiffs to
file a suit for partition.
4. The suit was contested by defendant No.1 who
claimed that Item No.2 was his self-acquisition and that he
had purchased it from the income from Dairy
business/trade in agricultural produce and cattle trading
etc. He claimed that after he purchased suit Item No.2 he
gifted it to defendant No.3 in terms of a gift deed dated
17.06.2010 as she had lost her husband and had no
source of income. The defendant No.1 denied the right of
the plaintiffs to seek partition in the suit properties.
5. The defendant No.2 being a purchaser of one
acre of land in Item No.1 claimed that the plaintiffs had
also joined in the execution of the sale deed, and
therefore, the plaintiffs cannot lay any claim insofar as one
acre of land purchased by the defendant No.2.
6. Based on the rival contentions, the Trial Court
framed the following issues :
i. Do the plaintiff proves that the suit schedule
properties are ancestral joint family properties
and plaintiffs 1 to 3 and defendant No.1 are joint
family members as stated in para 3 and 4 of the
plaint?
ii. Do the plaintiff proves that the sale deed
executed by defendant No.1 in favour of
defendant No.2 on 24.01.2009 and Gift deed dtd:
02.04.2009 by defendant No.1 in favour of
defendant No.3 are not binding on the share of
the plaintiffs?
iii. Do the plaintiff proves that they are entitle for
2/3rd share in the suit schedule properties?
iv. Whether the plaintiffs are entitle for reliefs claim?
v. What order or decree?
Addl. Issue:- (1) Whether the suit is valued
properly and the court fee paid is sufficient?
7. The plaintiff No.3 was examined as P.W.1,
while the plaintiff No.1 was examined as P.W.2 and they
marked documents as Exs.P-1 to P-30. The defendant
No.1 was examined as D.W.1 and defendant No.2 was
examined as D.W.2 and they marked documents Exs.D-1
to D-3.
8. Based on the oral and documentary evidence,
the Trial Court held that the suit properties 1 and 3 were
the ancestral properties in the hands of defendant No.1. It
also held that plaintiffs and defendant No.1 had conveyed
one acre of land to defendant No.2 in Item No.1, and
therefore, decreed the suit declaring that the plaintiffs are
entitled to 2/3rd share in the suit properties.
9. Being aggrieved by the aforesaid judgment and
decree, the defendant No.3 filed an appeal in R.A.
No.61/2015. The defendant No.3 contended that the suit
Item Nos.1 and 3 were the self-acquisition of her
grandfather and after the death of her grandfather, her
father took it as an absolute property and consequently
after the death of her father she was entitled to a share in
the said property. She stated that since her brothers had
not given any property towards her share, the defendant
No.1 recompensed the defendant No.3 by executing a gift
deed in respect of one acre of land on 17.06.2010. She,
therefore, submitted that the Trial Court could not have
granted a decree insofar as the land that was gifted to her.
10. The First Appellate Court noted that the
defendant No.3 had not contested the suit. She had not
entered the witness box to establish her claim before the
Trial Court. There was nothing on record to establish that
the suit Item No.1 was the self-acquisition in the hands of
the grandfather of defendants No.1 and 3. In that view of
the matter, the First Appellate Court dismissed the appeal
and confirmed the judgment and decree of the Trial Court.
11. Being aggrieved by the aforesaid judgment and
decree, the present second appeal is filed.
12. The learned counsel for defendant No.3
reiterated the submissions made and contended that the
defendant No.3 was also entitled for a share in the suit
properties and that she was denied any share as the suit
properties were the self-acquisition of her grandfather.
She contended that the gift deed executed by defendant
No.1 in her favour is just and valid and cannot be effaced.
13. Since the defendant No.3 had not contested
the suit before the Trial Court and had not entered the
witness box to establish her contention, the Trial Court and
the First Appellate Court were justified in decreeing the
suit filed by the plaintiffs. There is no merit in the appeal
and hence appeal is dismissed.
Pending I.A., if any, does not survive for
consideration.
Sd/-
JUDGE
hnm
