Smt H Suma vs H Shankarappa
2022 Latest Caselaw 5341 Kant

                            1




     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

         DATED THIS THE 24TH DAY OF MARCH, 2022

                         BEFORE

            THE HON'BLE MR.JUSTICE R. NATARAJ

     REGULAR SECOND APPEAL NO.374 OF 2022(DEC/POS)


BETWEEN:

1.      SMT.H. SUMA
        W/O LATE MAHESHKUMAR,
        AGED ABOUT 41 YEARS,
        R/AT. HARANAHALLI VILLAGE,
        KASABA HOBLI,
        ARASIKERE TALUK,
        HASSAN DISTRICT-573 103.

2.     H.M SHRUTHI
       D/O LATE MAHESHKUMAR,
       AGED ABOUT 19 YEARS,
        R/AT HARANAHALLI VILLAGE,
       KASABA HOBLI,
       ARASIKERE TALUK,
       HASSAN DISTRICT 573 103.
                                        ...APPELLANTS

(BY SRI: RAVIKUMAR G.H., ADVOCATE)


AND :

1.    H.SHANKARAPPA,
      S/O S.C. HALAPPA,
      AGED ABOUT 61 YEARS,
      R/AT HARANAHALLI VILLAGE,
      KASABA HOBLI,
      ARASIKERE TALUK,
      HASSAN DISTRICT 573 103.
                              2




     H. MAHESH KUMAR
     S/O H.C. HALAPPA,
     SINCE DEAD BY HIS LRs

2.   SMT. INDRAMMA,
     W/O LATE MAHESHKUMAR,
     AGED ABOUT 61 YEARS
     R/AT HONNAVALLI VILLAGE,
     NEAR POLICE STATION,
     TIPTUR TALUK,
     TUMKUR DISTRICT 572 217.

3.   ANOOPA
     S/O LATE MAHESHKUMAR,
     AGED ABOUT 29 YEARS,
     R/AT HONNAVALLI VILLAGE,
     NEAR POLICE STATION,
     TIPTUR TALUK,
     TUMKUR DISTRICT 572 217.
                                    ... RESPONDENTS
                       --------

      THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC 1908., AGAINST THE JUDGMENT AND
DECREE DATED 08.11.2021 PASSED IN RA.NO.10/2019 ON
THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC,
ARASIKERE, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT AND DECREE DATED 02.01.2019 PASSED IN
OS.NO.187/2008 ON THE FILE OF THE I ADDITIONAL CIVIL
JUDGE AND JMFC, ARASIKERE.

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

                     JUDGMENT

This appeal is filed by defendant Nos.2 and 3 in

O.S.No.187/2008 challenging the concurrent finding of

fact recorded by both the Courts by which they held

that the plaintiff is the owner of the suit property and

directed the defendants to vacate and hand over

possession of the suit property to the plaintiff.

2. The parties shall henceforth be referred as they

were arrayed before the Trial Court. The appellants

herein are defendant Nos.2 and 3, while respondent

No.1 was the plaintiff and respondent Nos.2 and 3 were

arrayed as respondent Nos.1(a) and 1(b) before the

trial court.

3. The suit in O.S.No.187/2008 was filed for

declaration of title and recovery of possession of suit

schedule property which measured North to South

20 feet and East to West 25feet situated at Harnahalli

village, Arasikere Taluk. The plaintiff claimed that a

larger portion including the suit property was purchased

by Sanna Siddamma on 03.07.1974 and later Sanna

Siddamma executed a gift deed on 11.06.2004 in favour

of the plaintiff and handed over possession of the

property on the same day. Suit property is part and

parcel of the property which was gifted to the plaintiff

under the gift deed referred above. Plaintiff claimed

Sanna Siddamma died on 08.05.2008. It is relevant to

note that what was gifted to the plaintiff was East to

West 127 feet and North to South 78 feet. Plaintiff

claimed that the defendant was his brother who was in

possession of the suit property, but he refused to hand

over the same which compelled the plaintiff to convene

panchayaths of elders in the village which proved futile.

Hence, he filed a suit for declaration of title and

recovery of possession.

4. Defendant contested the suit and claimed

that the suit property and adjacent property which was

the subject matter of the gift deed dated 11.06.2004,

was ostensibly owned by late Sanna Siddamma as she

had purchased said property from out of the funds of

joint family. Defendant alleged that the plaintiff in order

to usurp the property, misused the old age of Sanna

Siddamma and was instrumental in bringing about a

unconscionable gift deed dated 11.06.2004. The

plaintiff contended that he was in possession of the suit

property alongwith Sanna Siddamma. He claimed that

he later came to know about a Will executed by Sanna

Siddamma in his favour by virtue of which he became

the owner of the said property. During the pendency of

the suit, defendant died and his legal representatives

were brought on record. The daughters of the defendant

were impleaded as defendant Nos.2 and 3 who filed

written statement contending that the suit property

belonged to the joint family as Sanna Siddamma had

purchased the same from out of the funds of joint

family. Based on these rival contentions, the Trial Court

framed the following issues:

«ªÁzÁA±ÀUÀ¼ÀÄ

1. zÁªÁ¹ÛAiÀÄÄ ªÉÆzÀ®Ä ¸ÀtÚ¹zÀݪÀÄä£ÀªÀjUÉ ªÀiÁvÀæ ¸ÉÃjzÀÝ D¹ÛAiÀiÁVvÀÄÛ JAzÀÄ ªÁ¢ gÀÄdĪÁvÀÄ¥Àr¹gÀÄvÁÛgÉAiÉÄÃ?

2. ¸ÀtÚ¹zÀݪÀÄä ¢: 11.6.2004 gÀAzÀÄ ªÀiÁrPÉÆlÖ zÁ£À¥ÀvÀæzÀ ªÀÄÆ®PÀ vÁ£Éà zÁªÁ¹ÛAiÀÄ ºÀPÀÄÌzÁjà ªÀiÁ°ÃPÀ¤gÀÄvÁÛ£É JAzÀÄ ªÁ¢ gÀÄdĪÁvÀÄ¥Àr¹gÀÄvÁÛgÉAiÉÄÃ?

3. 4 - 5 wAUÀ¼ÀÄ »AzÉ ¥ÀæwªÁ¢ vÀ¤ßAzÀ CPÀæªÀĪÁV zÁªÁ¹ÛAiÀÄ ¸Áé¢üãÀªÀ£ÀÄß ¥ÀqÉzÀÄPÉÆArzÁÝ£É JAzÀÄ ªÁ¢ gÀÄdĪÁvÀÄ¥Àr¹gÀÄvÁÛgÉAiÉÄÃ?

4. ªÁ¢AiÀÄ zÁªÉ gɸï dÄårPÉÃmÁ ¨sÁzsÀPÀ¢AzÀ PÀÆrzÉ JAzÀÄ ¥ÀæwªÁ¢ gÀÄdĪÁvÀÄ¥Àr¹gÀÄvÁÛgÉAiÉÄÃ?

5. J¸ÉÆÖÃ¥À¯ï vÀvÀézÀ£ÀéAiÀÄ ªÁ¢AiÀÄ zÁªÉ ¤®èvÀPÀÌzÝÀ ®èªÉAzÀÄ ¥ÀæwªÁ¢ gÀÄdĪÁvÀÄ¥Àr¹gÀÄvÁÛgÉAiÉÄÃ?

6. ªÁzÀ ¥ÀvÀæzÀ°è ¨ÉÃrzÀ ¥ÀjºÁgÀ ¥ÀqÉAiÀÄ®Ä ªÁ¢ CºÀð£É?

7. AiÀiÁªÀ DzÉñÀ CxÀªÁ rQæ?

5. The plaintiff was examined as P.W.1 and

marked documents as Exs.P1 and P3. He also

examined two other witnesses as PW-2 and PW-3. On

the other hand, defendant No.2 was examined as DW.1

who marked documents as Exs.D1 to D37 and examined

three other witnesses as DW-2 to DW-4.

6. Based on the oral and documentary

evidence, the Trial Court held that Sanna Siddamma

was the absolute owner of the suit property, she having

lawfully purchased it and thereafter the plaintiff became

the full and absolute owner of the property by virtue of

the gift deed dated 11.06.2004. Consequently, it held

that the plaintiff has proved his title to the suit property

and directed the defendants to vacate and hand over

the possession to the plaintiff.

7. Being aggrieved by the aforesaid judgment

and decree, defendant Nos.2 and 3 filed

R.A.No.10/2019. The First Appellate Court secured the

records of the Trial Court, heard learned counsel for the

parties and framed the following points for

consideration:-

1. Whether the Trial Court has properly appreciated the oral and documentary evidence on record?

2. Whether there is a miscarriage of justice as contended in the appeal memo and there is an illegality or perversity requiring the Judgment to be set aside as prayed for?

3. What order?

8. The First Appellate Court held that though the

evidence disclosed that the suit property was purchased

out of the income of the joint family, yet the evidence of

DW-1 disclosed that the suit property was owned

absolutely by Sanna Siddamma. The First Appellate

Court noticed the evidence of PW-1 who deposed that

there was a partition about 20 years prior to filing of the

suit where at the suit property fell to the share of Sanna

Siddamma. The First appellate Court therefore held that

the evidence of DW-1 coupled with the evidence of

PW-1 indicated that the suit property fell to the share of

Sanna Siddamma. Therefore, the First Appellate Court

applying section 14(1) of Hindu Succession Act, 1956

held that Sanna Siddamma was the owner of the suit

property. The First Appellate Court also noticed the

contention of defendants that Sanna Siddamma had

executed a Will dated 03.01.2002 in favour of the

defendants. It held that if Sanna Siddamma had

executed a Will in favour of defendants, they tacitly

conceded to the fact that Sanna Siddamma was the

owner of the suit schedule property. Hence, the First

Appellate Court dismissed the appeal and confirmed the

judgment and decree of the Trial Court. Being aggrieved

by the aforesaid judgment and decree, the present

second appeal is filed.

submitted that the First Appellate Court noticed the

evidence and held that the suit property was purchased

out of the income of the joint family and therefore, the

plaintiff cannot claim any independent right over the

suit property, as defendant No.1 was a co-sharer

alongwith the plaintiff.

10. A perusal of the judgment of the First

Appellate Court indicates that DW-1 categorically stated

that the suit property was owned and possessed by

Sanna Siddamma. Even otherwise, the defendants claim

that the property was bequeathed to the defendants in

terms of a Will dated 06.02.1991. If that be so, the

plaintiff and defendants, conceded to the fact that

Sanna Siddamma was the owner of the suit property

and that she was entitled to convey the same absolutely

in favour of any person. In the case on hand, there is a

registered title deed in the name of Sanna Siddamma by

which she purchased the suit property and later

conveyed it to the plaintiff in terms of a gift deed at

Ex-P1. The plaintiff has examined the attesting witness

of the gift deed and therefore, had established the

lawful execution of the gift deed. The First Appellate

Court had considered the effect of section 14(1) of the

Hindu Succession Act and it held that Sanna Siddamma

is the absolute owner of the suit property. In view of the

above, the gift deed executed in favour of the plaintiff

was lawful and therefore, the plaintiff was entitled to

recover the possession of the suit property. The Trial

court and the First Appellate Court have rightly

considered the same and have decreed the suit. There

is no merit in this appeal. Accordingly, the appeal is

dismissed.

Sd/-

JUDGE

*mn/-