Smt.Bhagya vs Lakkamma
2023 Latest Caselaw 6113 Kant

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                                                          NC: 2023:KHC:31064
                                                        RSA No. 703 of 2021




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 30TH DAY OF AUGUST, 2023

                                             BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                        REGULAR SECOND APPEAL NO. 703 OF 2021 (PAR)

                   BETWEEN:

                   1.    SMT. BHAGYA
                         W/O NARASIMHAMURTHY
                         D/O LATE THIMMEGOWDA,
                         AGED ABOUT 39 YEARS,
                         R/AT 13 'A' CROSS,
                         DOOR NO.35, DASARAHALLI,
                         BENGALURU-560029.

                   2.    SMT. MANJULA
                         W/O RAMESH,
                         D/O LATE THIMMEGOWDA,
                         AGED ABOUT 37 YEARS
                         R/AT NO.3323, 40 FT. ROAD
                         CHANDRANAGARA,
Digitally signed
by SHARANYA T            KUMARASWAMY LAYOUT,
Location: HIGH           BENGALURU-560078.
COURT OF
KARNATAKA
                   3.    SMT. SHOBHA
                         W/O CHANDRASHEKAR
                         D/O LATE THIMMEGOWDA
                         AGED ABOUT 35 YEARS
                         R/O. KENCHANAHALLI VILLAGE,
                         C.S. PURA HOBLI
                         GUBBI TALUK-572216.
                                                               ...APPELLANTS

                              (BY SRI V.B. SIDDARAMAIAH, ADVOCATE)
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                                          NC: 2023:KHC:31064
                                        RSA No. 703 of 2021




AND:

1.   LAKKAMMA
     W/O LATE THIMMEGOWDA
     AGED ABOUT 62 YEARS

2.   NARASIMHAIAH
     S/O LATE SANNAKEMPAIAH
     AGED ABOUT 68 YEARS

     BOTH ARE R/AT SETTIGONDANAHALLI
     VILLAGE, MAYASANDRA HOBLI
     TURUVEKERE TALUK-572227.

                                             ...RESPONDENTS

     THIS R.S.A IS FILED UNDER ORDER XLI RULE 1 R/W
SEC.100 OF CPC., AGAINST THE JUDGMENT AND DECREE
DATED 18.09.2020 PASSED IN R.A.NO.23/2017 ON THE FILE
OF THE SENIOR CIVIL JUDGE AND JMFC., TURUVEKERE,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMETN
AND DECREE DATED 28.02.2017 PASSED IN O.S.NO.02/2014
ON THE FILE OF THE CIVIL JUDGE AND JMFC., TURUVEKERE.

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

Heard the learned counsel for appellants. This matter

is listed for admission.

2. The factual matrix of the case of the plaintiff

who filed the suit against the mother as defendant No.1

and senior uncle as defendant No.2 and sought for the

relief of partition and separate possession and also

NC: 2023:KHC:31064 RSA No. 703 of 2021

contended that suit schedule properties are the joint

family properties of both plaintiffs and the defendants and

they are entitle for the share. The counsel also contended

that the sale deed dated 06.03.1991 is not binding on

them. The defendants have took the defense that the suit

is barred by law of limitation and also non joinder of other

family properties. The Trial Court having considered the

material on record has granted the relief of 1/4th share but

decline to grant any share in respect of the property which

was sold in the year 1981 by the mother in favour of the

defendant No.2 who is the senior uncle of the plaintiffs.

3. Being aggrieved by rejection of claim in respect

of property which was sold by the mother in favour of the

senior uncle in the year 1991, an appeal is filed in RA

No.23/2017. The First Appellate Court on re-appreciation

of both oral and documentary evidence and also the

grounds urged in the appeal has condone the delay of 60

days in preferring the appeal and with regard to the

binding of the Trial Court in respect of the item No.1 of the

NC: 2023:KHC:31064 RSA No. 703 of 2021

suit schedule property, comes to the conclusion that the

sale was made for legal necessity and the Trial Court

rightly comes to the conclusion that suit is filed in an

inordinate delay and same is barred by limitation and also

comes to the conclusion that it does not requires any

interference.

4. Being aggrieved by the finding of the Trial Court

as well as the First Appellate Court, the counsel appearing

for the appellants would vehemently contend that in the

evidence it is categorically deposed that they came to

know about the same only one and half years ago. Both

the Courts have fail to take note of the said evidence. The

main contention of the counsel that the defendant No.1

was not having absolute right to sell the property in favour

of the defendant No.2 and the said fact has not been

considered by the Trial Court as well as by the First

Appellate Court. The counsel also would vehemently

contend that the judgment of the Trial Court and the First

Appellate Court is not justified under Section 6 of the

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Indian Succession Act. Hence, this Court has to admit and

frame substantive question of law.

5. Having heard the appellants' counsel and also

on perusal of material on record, the Trial Court has not

granted any relief in respect of item No.1 which was sold

by the mother in favour of the senior uncle and he has

been arrayed as defendant No.2. The same was sold in the

year 1991. The suit was filed in the year 2014. The Trial

Court while answering the issue No.4 with regard to the

limitation has discussed in detail and taken note of the fact

that the property was sold in the year 1991 itself and got

transferred the property in the revenue entries in terms of

MR No.10/1991 and also taken note of Ex.D5 and Ex.D6

and immediately after sale also revenue records are also

changed in favour of defendant No.2 and comes to the

conclusion that the very claim in respect of item No.1 is

concerned, the same is barred by limitation. The First

Appellate Court also on re-appreciation of both oral and

documentary evidence, formulated the points for

NC: 2023:KHC:31064 RSA No. 703 of 2021

consideration particularly in respect of limitation is

concerned as point No.3. The First Appellate Court on

considering both oral and documentary evidence, while

answering point No.3 has taken note of the fact that as

per Article 58 of limitation Act within three years from the

date of attaining majority have to challenge the same, the

plaintiff has not at all questioned the sale deed i.e., Ex.D2

and comes to conclusion that the suit is barred by

limitation in respect of item No.1 of the suit schedule

property and the said finding is not erroneous and suit is

barred by limitation and also observed that the Trial Court

instead of mentioning Article 60, wrongly mentioned

Article 58 but, the material on record that immediately

after the sale of the property, the possession was parted

in favour of defendant No.2 and also discussed with regard

to the Article 110 of limitation Act, that there is a

limitation of twelve years to enforce a right to share where

he excluded from a joint family property. The limitation

starts from the date of handing over of the possession to

the purchaser or he excluded from the joint family

NC: 2023:KHC:31064 RSA No. 703 of 2021

property and in detail discussed while answering point

No.3.

6. Having considered the material on record also

the property was sold in the year 1991 and in the year

2014 the suit was filed, almost after 24 years and the

same is also filed by the children of the defendant No.1

and sale is also made by the mother in the year 1991.

Having taken note of the material on record particularly

oral and documentary evidence and document marked at

Ex.D2 and when the property is also parted with, when the

sale was made and also the suit is filed after long period of

almost 24 years, the very contention of the appellants'

counsel that answer elicited from the mouth of the

witnesses that they came to know about the knowledge

only one and half of years, cannot be accepted. In detail

both the Trial Court as well as the First Appellate Court

discussed the same considering the Article 60, 110 and

also the Article 109 and also I do not find any ground to

admit and frame any substantive question of law. Both the

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Courts have given finding on both question of fact and

question of law. No ground is made out to admit the

appeal and to invoke Section 100 of CPC.

7. In view of the above discussion, I pass the

following:

ORDER

The second appeal is dismissed.

Sd/-

JUDGE

RHS