Haseeba Khanum vs Lokamani
2022 Latest Caselaw 5821 Kant

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 31ST DAY OF MARCH, 2022

                        BEFORE

           THE HON'BLE MR.JUSTICE R. NATARAJ

             R.S.A. NO. 587 OF 2019 (PAR)

BETWEEN:

HASEEBA KHANUM
D/O ISMAIL KHAN
AGED ABOUT 56 YEARS
NO.2339
ASHOKA WEST CROSS
21 LASHKAR MOHALLA
MYSURU CITY-570001.
                                            ...APPELLANT

(BY SRI. S.R. HEGDE HUDLAMANE, ADVOCATE)

AND:

1.     LOKAMANI
       W/O SIDDAPPA SHASTRI
       D/O NANJUNDAPPA
       AGED ABOUT 53 YEARS
       R/A KODIYALA VILLAGE
       KOTHATHI HOBLI
       SRIRANGAPATNA TALUK
       MANDYA DISTRICT-570002.

2.     RATHNAMMA
       W/O SOMASHEKARA
       D/O NANJUNDAPPA
       AGED ABOUT 51 YEARS
       R/A RAMAPURA VILLAGE
       KOPPA HOBLI
       MADDUR TALUK
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     MANDYA DISTRICT-570002.

3.   ANNAPOORNA
     W/O N. LINGAPPA
     D/O NANJUNDAPPA
     AGED ABOUT 43 YEARS
     R/A NO.100-C
     H COLONY, INDIRANAGARA
     I MAIN, I CROSS
     BENGALURU-560038

NANJUNDAPPA
SINCE DECEASED BY HIS LRS.

4.   NAGARAJU
     S/O NANJUNDAPPA
     AGED ABOUT 78 YEARS.

5.   DEVAMANI
     D/O NAGARAJU
     AGED ABOUT 44 YEARS

6.   MAHESHA
     S/O NAGARAJU
     AGED ABOUT 27 YEARS

7.   SIDDAPPA
     S/O LATE MAHASHETTY
     AGED ABOUT 58 YEARS.

RESPONDENTS NO.4 TO 7 ARE
R/A. VAJAMANGALA VILLAGE,
VARUNA HOBLI, MYSORE TALUK &
DISTRICT - 570 001.
                                        ...RESPONDENTS

     THIS R.S.A. IS FILED UNDER SECTION 100 OF CODE OF
CIVIL PROCEDURE, 1908 AGAINST THE JUDGMENT AND
DECREE DATED 19.01.2019 PASSED IN RA NO.103/2018 ON
THE FILE OF THE VII ADDITIONAL DISTRICT JUDGE, MYSURU
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 20.03.2018 PASSED IN OS NO.387/2011
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ON THE FILE OF THE III ADDL.SENIOR CIVIL JUDGE, AT
MYSURU.

     THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                         JUDGMENT

This appeal is filed by defendant No.5 in O.S.

No.387/2011 challenging the concurrent finding of fact

that the plaintiffs are entitled to an undivided share in the

suit schedule properties.

2. The parties shall henceforth be referred as

they were arrayed before the Trial Court.

3. The plaintiffs are the daughters of deceased

defendant No.1, while defendant No.2 is their brother and

defendants No.3 and 4 are wife and son of defendant No.2.

They contended that the suit schedule properties were

joint family ancestral properties and that the defendant

No.1 was the kartha of the family, who was managing the

suit properties. Plaintiffs allege that they demanded for

partition and separate possession of their share and the

same was refused by the defendants. They later

contended that they came to know that the suit Item No.2

was sold by defendants No.1 to 4 to defendant No.5 on

13.03.2007. They contended that the sale was without

their notice and knowledge and they had not consented to

the same. Thus, they sought partition of their share.

4. The suit was contested by defendant No.5,

while the other defendants remained ex parte. The

defendant No.5 filed his written statement contending that

the defendant No.1 was the 'Archak' of Ankanatheshwara

Temple of Vajamangala Grama and he was cultivating 32

guntas of land in Sy.No.191 of Vajamangala Grama,

Varuna Hobli, Mysuru Taluk. Later, he filed an application

for grant of occupancy rights, which was favourably

considered. This property is the suit schedule Item No.2.

The defendant No.5 contended that this property was

therefore the self-acquisition of defendant No.1 which was

not available for partition. He further submitted that out

of the sale proceeds of suit Item No.2, the defendant No.1

had utilised it for family necessities as mentioned in the

sale deed. Therefore, he contended that the plaintiffs can

proceed against the other properties as the sale deed

dated 13.03.2007 was binding upon them and there was

no need to obtain consent of the plaintiffs to sell the

properties.

5. Based on these rival contentions, the Trial

Court framed the following issues :

i. Whether plaintiffs prove that the plaintiffs and defendants No.1 to 4 constituted joint family? ii. Whether plaintiffs prove that all the suit schedule properties are joint family properties?

iii. Whether defendant No.5 proves that he is bonafide purchaser of Item No.2 of the suit schedule property?

iv. Whether plaintiffs prove that they are entitled for any share in the suit schedule properties? If yes, what is their share?

v. Whether plaintiffs are entitled for the reliefs claimed in the suit?

vi. What order or decree?

ADDITIONAL ISSUES :

i. Whether the plaintiffs prove that Item No.2 of suit schedule property is the Inam land belonging

to grandfather of plaintiffs, defendant No.2 and father of defendant No.1?

ii. Whether plaintiffs prove that they were in joint possession of the Item No.2 of suit schedule property and the Inam land was granted in favour of defendant No.1 for the benefit of whole family?

iii. Whether the defendant No.5 proves that the Item No.2 of the suit schedule property is the self- acquired property of defendant No.1? iv. Whether the plaintiffs prove that the sale deed executed by defendant No.1 to 4 in favour of defendant No.5 is not binding on the plaintiffs' share?

v. What order or decree?

6. The plaintiff No.2 was examined as P.W.1 and

she marked documents at Exs.P-1 to P-17. She examined

two other witnesses as P.Ws.2 and 3. The power of

attorney of defendant No.5 was examined as D.W.1 and he

marked documents as Exs.D-1 to D-25.

7. Based on the oral and documentary evidence,

the Trial Court held that the suit Item No.2 in which the

defendant No.5 was interested was an Inam land which

was cultivated by the forefathers of the plaintiffs, and

therefore, the grant of land in favour of defendant No.1

enured to the benefit of the family of the plaintiffs and

defendants No.1 to 4. Hence, the Trial Court held that this

property was available for partition amongst plaintiffs and

defendants No.1 to 4. It also noticed that the sale of suit

Item No.2 in favour of defendant No.5 was on 13.03.2007

i.e., long after Hindu Succession (Amendment) Act, 2005

came into force. In that view of the matter, the Trial

Court decreed the suit in part insofar as Items No.1 to 3 is

concerned and dismissed the suit insofar as Item No.1a is

concerned.

8. Being aggrieved by the decree of the suit, the

defendant No.5 filed R.A. No.103/2018 The First Appellate

Court secured the records of the Trial Court, heard the

counsel for the parties and framed the following points for

consideration :

i. Whether appellant had urged valid and proper grounds to substantiate that the Judgment and Decree passed by the lower Court is opposed to

law, facts and circumstances of the case and interference of this Court is necessary? ii. What order?

9. The First Appellate Court held that the recitals

in the sale deed at Ex.P-10 dated 13.03.2007 clearly

indicated that suit Item No.2 was ancestral in nature. It

also held that only the defendants No.1 to 4 had joined in

the execution of the sale deed in favour of defendant No.5.

It held that the grant of land in question was in favour of

defendant No.1 and his family members including the

plaintiffs. Therefore, the First Appellate Court held that

the Trial Court had rightly decreed the suit since the sale

in favour of defendant No.5 was on 13.03.2007.

10. Being aggrieved by the aforesaid, the

defendant No.5 has filed this Regular Second Appeal.

11. The learned counsel for defendant No.5

submitted that the Trial Court and the First Appellate Court

have not considered the question whether suit Item No2

was the self-acquisition of defendant No.1 or not. He

submitted that the plaintiffs could as well work out their

share in the other properties and the suit Item No.2 could

be allotted to share of defendants No.1 to 4.

12. A perusal of the impugned Judgment and

Decree passed by the Trial Court would indicate that when

defendant No.5 purchased suit Item No.2 in terms of the

sale deed dated 13.03.2007, the defendants No.1 and 2 as

well as defendant No.5 were consensus ad idem over the

fact that the suit Item No.2 was the ancestral property.

Even otherwise, the defendant No.5 has not made any

attempt to place on record any material fact to establish

that the land in question was granted independently to

defendant No.1 and that the plaintiffs were not entitled to

any share therein.

13. In that view of the matter, the Trial Court and

the First Appellate Court were justified in decreeing the

suit for partition. I do not see any merit in this appeal and

hence the appeal is dismissed.

14. It is open for the defendant No.5 to seek

allotment of the property produced by him to the share of

defendants No.1 and 2 in final decree proceedings. If the

Final Decree Court finds it feasible to allot the land sold by

defendants No.1 to 4 to defendant No.5 to the share of

defendants No.1 and 2, the Final Decree Court may do so

in accordance with law.

Pending I.A., if any, does not survive for

consideration.

Sd/-

JUDGE

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