Sri T Srinivas vs Sri T Venkataram
2023 Latest Caselaw 5622 Kant

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                                                         NC: 2023:KHC:29072
                                                        RSA No. 255 of 2023




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 16TH DAY OF AUGUST, 2023

                                            BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                        REGULAR SECOND APPEAL NO. 255 OF 2023 (PAR)



                   BETWEEN:

                   1.    SRI T. SRINIVAS
                         S/O THIMMAIAH T.R.,
                         AGED ABOUT 56 YEARS
                         R/O NO.753, IDSMT LAYOUT
                         KALIDASANAGAR
                         TUMAKURU - 572106.
                                                                 ...APPELLANT
                                 (BY SRI GURURAJ R., ADVOCATE)

                   AND:

                   1.    SRI T. VENKATARAM
                         S/O LATE T.R. THIMMAIAH
Digitally signed
by SHARANYA T            AGED ABOUT 63 YEARS
Location: HIGH           R/AT SATHYAMANGALA
COURT OF                 NEAR G.H. PALYA GARDEN ROAD
KARNATAKA
                         KASABA HOBLI
                         TUMAKURU TALUK
                         TUMAKURU - 572104.

                   2.    SRI T. GOVINDARAJU
                         S/O LATE T.R. THIMMAIAH
                         AGED ABOUT 61 YEARS
                         R/AT SATHYAMANGALA
                         NEAR G.H. PALYA GARDEN ROAD
                         KASABA HOBLI
                         TUMAKURU TALUK
                         TUMAKURU - 572104
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                                       NC: 2023:KHC:29072
                                      RSA No. 255 of 2023




3.    SRI T. LAKSHMEESHA
      S/O LATE T R THIMMAIAH
      AGED ABOUT 60 YEARS
      R/AT SATHYAMANGALA
      NEAR G.H. PALYA GARDEN ROAD
      KASABA HOBLI,
      TUMAKURU TALUK
      TUMAKURU - 572104

4.    SRI T.D. KRISHNA
      S/O LATE T.R. THIMMAIAH
      AGED ABOUT 53 YEARS
      R/AT SATHYAMANGALA
      NEAR G.H. PALYA GARDEN ROAD
      KASABA HOBLI,
      TUMAKURU TALUK
      TUMAKURU - 572104

                                          ...RESPONDENTS

     (BY SRI G.S.BALAGANGADHAR, ADVOCATE FOR R1 TO R4)

       THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 09.11.2022
PASSED IN R.A.NO.198/2019 ON THE FILE OF THE PRINCIPAL
DISTRICT AND SESSIONS JUDGE, TUMAKURU, DISMISSING
THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 19.01.2019 PASSED IN O.S.NO.7/2012 ON THE FILE OF
THE PRINCIPAL SENIOR CIVIL JUDGE AND CJM, TUMAKURU.


       THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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                                              NC: 2023:KHC:29072
                                            RSA No. 255 of 2023




                           JUDGMENT

Heard the appellant's counsel and also the counsel

appearing for the respondents.

2. The factual matrix of the case of the plaintiff before the

Trial Court are, while seeking the relief of partition contend that

defendants No.1 and 2 are the father and mother and

defendants No.3 to 6 are his brothers and plaintiff and

defendants have constituted Hindu undivided joint family and

the suit schedule properties are the ancestral and joint family

properties of plaintiff and defendants. The landed properties are

allotted to the share of defendant No.1 under the partition and

defendant No.1 being the Kartha of the joint family, the

revenue documents were standing in his name. Defendant No.1

has converted item No.3 of suit schedule property bearing

survey number 68/1B of Beeranakallu Village, Swandenahalli

Gramapanchayath measuring 1 acre from agriculture to non-

agricultural purpose. Plaintiff approached defendant No.1 to

allot his share in the suit schedule property, but defendant No.1

has executed registered Will dated 10.12.2010 in favour of

family members by making the division of properties as

NC: 2023:KHC:29072 RSA No. 255 of 2023

A,B,C,D schedule and later defendant No.1 cancelled the

registered Will and defendant No.2 also executed registered gift

deed dated 12.04.2002 in favour of defendant No.1 in respect

of the land bearing Sy.No.15/2 measuring 4 acres 28 guntas

and defendant appeared and filed written statement contending

that properties are self acquired properties. The Trial Court

having considered the pleadings framed the issues, whether the

suit schedule properties are ancestral properties and whether

defendant No.1 proves the suit schedule 8 different properties

are the self acquired properties of 1st defendant. The Trial Court

having considered both oral and documentary evidence

answered issue No.1 as negative and issue No.2 as affirmative

and came to the conclusion that suit schedule properties are

the properties of 1st defendant and dismissed the suit.

3. Being aggrieved by the judgment and decree of the

Trial Court, R.A.No.198/2019 was filed and First Appellate

Court also considering the grounds urged in the appeal memo

formulated the points, whether the Trial Court committed an

error in holding that all the suit schedule properties are not the

ancestral properties and they are self acquired properties and

whether it requires interference?

NC: 2023:KHC:29072 RSA No. 255 of 2023

4. An application is also filed before the First Appellate

Court invoking Order 41 Rule 27 of CPC and the same is also

dismissed by the First Appellate Court and hence, the second

appeal is filed before this Court.

5. The main contention of the counsel appearing for the

appellant that, the Trial Court and First Appellate Court have

committed an error in coming to the conclusion that the suit

schedule properties are the self acquired properties of

defendant No.1 and committed an error in not considering the

material on record and both the Courts have failed to consider

that suit schedule properties are purchased out of the funds

received by father of the plaintiff by relinquishment of ancestral

properties and both the Courts failed to consider the

relinquishment made by father of the plaintiff in favour of his

uncle Chikkathimmaiah in respect of Sy.No.26/1 situated at

Honnenahalli Village and also First Appellate Court committed

an error in dismissing the application filed under Order 41 Rule

27 of CPC and hence, this Court has to frame the substantial

question of law.

NC: 2023:KHC:29072 RSA No. 255 of 2023

6. Per contra, the counsel appearing for the respondents

would vehemently contend that the very plaintiff himself

pleaded in the plaint with regard to execution of the Will and

cancellation of Will and settlement deed and nothing is placed

before the Trial Court to show that properties are ancestral

properties and rightly given the finding that properties belongs

to defendant No.1, since even mother also executed the gift

deed in favour of defendant No.1 and the same is appreciated

by the Trial Court as well as the First Appellate Court and not

ignored any material on record and hence, question of invoking

Section 100 of CPC does not arise.

7. Having heard the learned counsel appearing for the

respective parties and also on perusal of the material on record

it discloses that it is the case of the appellant before the Trial

Court that the suit schedule properties are joint and ancestral

properties but in order to prove the same, the appellant has not

placed any material before the Court. The Trial Court also

taking into note of the material on record in paragraph 12

discussed that no document is placed before the Court to show

that defendant No.1 has acquired the ancestral property and

there was sufficient income from the ancestral property through

NC: 2023:KHC:29072 RSA No. 255 of 2023

which defendant No.1 has acquired the other suit schedule

properties and there is no substantial evidence before the Court

so as to draw the presumption that joint family comprising of

plaintiff and defendants had joint family property. The First

Appellate Court also on re-appreciation of both oral and

documentary evidence placed on record, in paragraph 37,

taken note of the admission given by the plaintiff himself

regarding disposal of the properties by his father during his

lifetime and comes to the conclusion that the properties are

disposed of by executing testamentary document in favour of

other family members. In the absence of any material to show

that the properties are ancestral properties and family is having

ancestral properties, I do not find any error committed by both

the Courts in dismissing the suit and also the appeal. It is the

contention of the plaintiff before the Trial Court that his father

had received the funds by relinquishing his share in respect of

ancestral property executing relinquishment deed but no such

relinquishment deed also produced before the Trial Court.

Unless any substantive piece of evidence placed before the

Court to show that the properties are ancestral properties and

the same are purchased out of the funds received by the father

NC: 2023:KHC:29072 RSA No. 255 of 2023

of the plaintiff by relinquishment of ancestral properties, I do

not find any error committed by the Trial Court and the First

Appellate Court in considering both oral and documentary

evidence placed on record and ignored the material on record

and, no such circumstance is warranted in the case on hand.

Hence, I do not find any ground to invoke Section 100 of CPC

to admit and frame the substantial questions of law.

8. In view of the discussions made above, I pass the

following:

ORDER

The appeal is dismissed.

Sd/-

JUDGE

AP/SN