Sri K S Rama Rao vs Smt Subbalakshmi
2022 Latest Caselaw 13101 Kant

                            1


       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 17TH DAY OF NOVEMBER, 2022

                         BEFORE

    THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

              R.S.A NO. 1092 OF 2018 (PAR)

BETWEEN:

SRI K.S.RAMA RAO
S/O LATE SHESHAPPA
AGED ABOUT 85 YEARS
R/AT KARLAMANGALA
MADABAR HOBLI
MAGADI TALUK
MAGADI - 562 120
RAMANAGARAM DISTRICT.
                                              ...APPELLANT

(BY SRI T.N.VISWANATHA, ADVOCATE)


AND:

SMT. SUBBALAKSHMI
W/O LATE JAYARAM
AGED ABOUT 66 YEARS
R/AT NO.9/116
CAVERY NAGAR
KATRIGUPPE, BENGALURU - 560 085.

                                             ...RESPONDENT

(BY SRI SOURABH R.K., ADVOCATE)
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     THIS RSA IS FILED U/SEC.100 OF CPC, AGAINST THE
JUDGMENT AND DECREE DATED 14.09.2017 PASSED IN
R.A.NO.78/2014 ON THE FILE OF THE I ADDITIONAL DISTRICT
AND SESSIONS JUDGE, RAMANAGARAM, DISMISSING THE APPEAL
AND CONFIRMING THE JUDGMENT AND DECREE DATED 27.09.2014
PASSED IN O.S.NO.102/2014 (OLD NO.613/2007) ON THE FILE OF
THE SENIOR CIVIL JUDGE AND JMFC, AT MAGADI AND ETC.,

    THIS APPEAL HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 27.09.2022, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, THE COURT DELIVERED THE FOLLOWING:


                            JUDGMENT

The captioned second appeal is filed by the unsuccessful

plaintiff feeling aggrieved by the concurrent judgments of the

Courts below wherein plaintiffs suit seeking relief of

declaration that he has half share in the properties and for

partition and separate possession is dismissed by both the

Courts below.

2. For the sake of brevity, the parties are referred to

as per their rank before the Trial Court.

3. The family tree of the parties is as under:

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4. The plaintiff herein claims that he is the younger

brother of one K.S.Narasimaiah. It is the specific case of the

plaintiff that he along with his elder brother Narasimaiah

migrated to Magadi and were working as a server and a

washer in hotels and later both the brothers started their own

hotel business. Plaintiff claims that out of the income

generated from the hotel business, plaintiff along with his

elder brother Narasimaiah got the suit property registered in

the name of his elder brother's wife namely Rangamma.

Plaintiff specifically contends that the property purchased in

the name of his sister-in-law Rangamma is in fact joint

property purchased by both the brothers. Plaintiff also

claimed that he is in joint possession over the suit schedule

property. In the alternate, the plaintiff also contended that his

brother acknowledging his contribution towards sale

consideration, has made a bequeath under Will dated

10.01.2003 and therefore, claimed that he is entitled to have

half share in the suit schedule property and therefore, prayed

to grant his legitimate half share in the suit schedule property

by effecting partition by metes and bounds.

5. On receipt of summons, the defendant herein who

is the daughter of K.S.Narasimaiah and Rangamma contested

the proceedings and stoutly denied the entire averments made

in the plaint. The defendant seriously disputed the averments

made in the plaint in regard to joint acquisition of suit

schedule property by plaintiff and her father K.S.Narasimaiah.

On the contrary, defendant claimed that her father along with

her mother shifted to Magadi and started his own hotel

business. Therefore, defendant claimed that plaintiff had no

connection with the hotel business which was started by her

father K.S.Narasimaiah. She also contended that her mother

pursuant to registered sale deed acquired absolute right over

the property and after her death, she being the sole legal heir,

is entitled to inherit the suit schedule property. Defendant

also contended that her mother has bequeathed the suit

schedule property in her favour and therefore, claimed

absolute title and sought for dismissal of the suit.

6. Plaintiff and defendant to substantiate their

respective claim let in oral and documentary evidence.

7. Trial Court after having assessed oral and

documentary evidence did not accept the contention that suit

property was jointly acquired by plaintiff and his elder brother

K.S.Narasimaiah. Trial Court while taking cognizance of title

documents vide Exs.D-1 to D-4 coupled with other supporting

documents, was of the view that the suit schedule property is

self acquired property of Rangamma. Referring to the recitals,

Trial Court found that there is no mention in regard to the

joint earning of plaintiff and his elder brother K.S.Narasimaiah

and there is no covenant indicating that the sale consideration

was jointly pooled by plaintiff and his elder brother

K.S.Narasimaiah.

8. While considering the Will set up by plaintiff, Trial

Court was of the view that K.S.Narasimaiah had no title over

the suit schedule property and he could not have bequeathed

and therefore, Trial Court has recorded a categorical finding

that he had no right to execute any Will and therefore, Trial

Court held that Ex.P-5, alleged Will executed by

K.S.Narasimaiah will not create any right in favour of plaintiff

over the suit schedule property. Trial Court held that

K.S.Narasimaiah had no semblance of right over the property

in question as it was absolutely owned by Rangamma and

therefore, proceeded to dismiss the suit. While examining the

Will set up by defendant vide Ex.D-7, Trial Court held that the

Will is proved by defendant and she would succeed to the

property under testamentary succession.

9. Feeling aggrieved by the judgment and decree of

the Trial Court, the plaintiff preferred an appeal before the

Appellate Court.

10. The Appellate Court has independently assessed

the entire evidence on record. Appellate Court has

meticulously dealt with the claim made by plaintiff in regard to

jointly pooling sale consideration to acquire the suit schedule

property along with his elder brother K.S.Narasimaiah. It is

his case that plaintiff has banked heavily on the endorsement

indicated in the sale deeds. Placing reliance on the

endorsement on the sale deeds, he would contend that it is

the plaintiff who handed over sale consideration. Therefore,

plaintiff's contention was that this relevant piece of evidence

which is part of registered sale deed would clearly indicate

that the plaintiff along with his elder brother have invested

money and therefore, he is entitled to claim a share in the suit

schedule property and defendant cannot assert absolute title

over the property in question.

11. Appellate Court to examine this controversy has

given its anxious consideration to the endorsement made in

the sale deed which is marked at Exs.D-1(a) and (b), 2(a)

and (b) and 3(a) and (b). On examination of these

endorsements, all that Appellate Court found was plaintiff has

paid the sale consideration on behalf of Rangamma. If the

endorsement reads as above, then it has to be inferred that

the sale consideration was in fact paid by Rangamma through

plaintiff who had only handed over the sale consideration.

Mere handing over of sale consideration by the plaintiff at the

time of execution of sale deed will not in itself create a right

and therefore, Appellate Court was also not inclined to

interfere with the judgment and decree of the Trial Court.

Appellate Court was of the view that the findings and

conclusions arrived at the by the Trial Court is based on

clinching rebuttal evidence let in by defendant and in absence

of legal evidence let in by the plaintiff. It is in this

background, Appellate Court was not inclined to interfere with

the judgment and decree of the Trial Court.

12. These concurrent findings of the Courts below are

under challenge.

13. Learned counsel appearing for plaintiff reiterating

the grounds would vehemently argue and contend that there

is sufficient evidence on record to indicate that plaintiff being

younger brother has also equally contributed to acquire the

suit schedule property and therefore, he would contend that

the concurrent findings of the courts below in dismissing the

suit suffers from perversity and would warrant interference at

the hands of this Court. Learned counsel would also emphasis

on the fact that sale consideration was paid by the plaintiff

herein and therefore, this aspect is not dealt by both the

Courts and therefore, a substantial question of law would arise

for consideration and the appeal deserves to be admitted on

the said aspect. He would further contend that the evidence

on record is sufficient enough to arrive at a conclusion that

both the brothers out of their joint exertion have purchased

the suit schedule property and therefore, he would contend

that both the Courts erred in not granting relief of partition in

favour of plaintiff and therefore, the same has resulted in

miscarriage of justice and a substantial question of law would

arise in that regard also.

14. Heard the learned counsel appearing for the

plaintiff. Perused the concurrent findings of the Courts below.

15. It is the specific case of the plaintiff that he along

with his elder brother K.S.Narasimaiah migrated to Magadi to

seek employment and there they started hotel business jointly

and out of the income generated from the hotel business, he

along with his elder brother purchased the suit schedule

property. To substantiate this fact, there is absolutely no

evidence let in by plaintiff. Except bald averments, plaintiff

has not been able to establish the said fact that he along with

his elder brother K.S.Narasimaiah was doing hotel business

and they were able to save money and out of the said savings,

they have purchased this property in the name of his elder

brother's wife i.e., Rangamma. If there is no nucleus and in

absence of some tangible evidence to indicate that he shifted

along with his elder brother and started a hotel business

jointly, this Court is of the view that both the Courts were

justified in not accepting the contention raised by the plaintiff

in the present suit. Plaintiff has in fact placed heavy reliance

on the endorsement found in all the registered sale deeds vide

Exs.D-1 to D-4. By placing reliance on the endorsements in

the sale deeds, plaintiff claims that he has equally contributed

to the sale consideration. But on reading the endorsements,

this Court would also find that the endorsement only indicates

that the money that was paid by Rangamma was handed over

by plaintiff to the vendor. The endorsement nowhere indicates

that sale consideration was equally contributed by plaintiff.

The properties are purchased at different point of time. The

sale deeds are dated 17.10.1961, 30.01.1963, 22.04.1963

and 28.05.1971.

16. During the lifetime of K.S.Narasimaiah, plaintiff

never asserted right over the property. Therefore, this Court

is of the view that after the death of his elder brother

K.S.Narasimaiah as well as after death of Rangamma, a feeble

attempt is made by plaintiff to lay a false claim over the suit

schedule property under the garb that he has equally

contributed while acquiring his properties.

17. If really all the suit schedule properties were

purchased through joint labour, then it was quite unnatural for

an elder brother to purchase the property in the name of his

wife. Obviously, if there was equal contribution, plaintiff

would have never agreed to purchase the property in the

name of his sister-in-law. Therefore, the theory that plaintiff

has equally contributed by parting sale consideration appears

to be unnatural and both the Courts have not accepted this

contention. Both the Courts have concurrently held that sale

consideration was paid by Rangamma and all the suit schedule

properties are self acquired properties of Rangamma. These

concurrent findings recorded by the Courts below is in absence

of legal evidence let in by plaintiff. The title documents which

are produced by defendant clearly indicates that it is

Rangamma who has paid sale consideration while acquiring

the suit schedule properties vide Exs.D-1 to D-4. Therefore, I

do not find any error in appreciation of evidence on record by

both the Courts below. The findings and the ultimate

conclusions arrived at by both the Courts does not suffer from

any infirmities or illegalities.

18. No substantial question of law arises for

consideration. Accordingly, the appeal is dismissed.

Sd/-

JUDGE

CA