Karnataka High Court
Smt. Savithramma vs Sri. Putta on 11 December, 2023
-1-
NC: 2023:KHC:44835
RSA No. 1472 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 11TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO. 1472 OF 2023 (PAR/POS)
BETWEEN:
SMT. SAVITHRAMMA,
W/O RAJEGOWDA,
AGED ABOUT 49 YEARS,
R/AT RAILWAY STATION ROAD,
K.R. SAGARA, BELAGOLA HOBLI,
SRIRANGAPATNA TALUK,
MANDYA DISTRICT - 571 607.
...APPELLANT
(BY SRI. VIVEK B.N, ADVOCATE FOR
SRI. ABHINAV R, ADVOCATE)
AND:
1. SRI. PUTTA,
Digitally signed AGED ABOUT 57 YEARS,
by SUCHITRA
MJ S/O LATE HONNAIAH,
Location: HIGH
COURT OF R/AT RAILWAY STATION ROAD,
KARNATAKA
K.R. SAGARA, BELAGOLA HOBLI,
SRIRANGAPATNA TALUK,
MANDYA DISTRICT - 571 607.
2. SRI. HALAGEGOWDA,
AGED ABOUT 60 YEARS,
S/O LATE HONNAIAH,
R/AT C/O SAKAMMA,
W/O CHANNEGOWDA,
ANKANATHESHWARA NILAYA,
-2-
NC: 2023:KHC:44835
RSA No. 1472 of 2023
NO.144, LOKANAYAKANAGARA,
HEBBALU, MYSURU - 570 016.
3. SMT. LAKSHMI,
AGED ABOUT 48 YEARS,
W/O LATE VEERABHADRA,
4. SMT. VINUTHA,
AGED ABOUT 22 YEARS,
D/O LATE VEERABHADRA,
5. SRI. VINOD,
AGED ABOUT 20 YEARS,
S/O LATE VEERABHADRA,
RESPONDENTS NO. 3 TO 5 ARE
R/AT NO.52, 11TH MAIN ROAD,
1ST CROSS, 1ST STAGE, HEBBAL,
MYSURU DISTRICT - 570 016.
6. SRI. CHETHAN. P THAYAL,
AGED ABOUT 50 YEARS,
S/O NANDAKISHOR THAYAL,
R/AT NO.50, 3RD FLOOR,
GOLD TOWER, RESIDENCY ROAD,,
BANGALORE - 560 025.
...RESPONDENTS
(BY SRI. ABHINAV. R, ADVOCATE)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 25.01.2023
PASSED IN RA No. 5017/2016 ON THE FILE OF THE III
ADDITIONAL DISTRICT AND SESSIONS JUDGE, MANDYA
(SITTING AT SRIRANGAPATNA), PARTLY ALLOWING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
-3-
NC: 2023:KHC:44835
RSA No. 1472 of 2023
DATED 16.02.2016 PASSED IN OS No. 50/2011 ON THE FILE
OF THE ADDITIONAL SENIOR CIVIL JUDGE, SRIRANGAPATNA.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by the
unsuccessful plaintiff, who has questioned the judgment
and decree of the Appellate Court insofar as item No.1
property is concerned, wherein the Appellate Court has
declined to grant share in item No.1 property and
plaintiff's suit is dismissed by recording a categorical
finding that item No.1 is a self acquired property of
defendant No.2.
2. For the sake of brevity, the rank of the parties
are referred as they are ranked before the Trial Court.
3. The family tree of the family is as under:
NC: 2023:KHC:44835
Late Honnaiah
W/o late Ningamma
Halage Gowda Putta Veerabhadra Savithramma (P)
(D-1) (D-2)
1. W/o late Lakshmi (D-3)
2. Vinutha (D-4)
3. Vinodha (D-5)
4. The plaintiff is the daughter of one late
Honnaiah. She has filed a suit against her two brothers
and the children of her predeceased brother, Veerabhadra,
contending that the suit schedule properties are joint
family ancestral properties. Plaintiff contended that item
Nos.1 and 2 are agricultural lands and item No.3 is a
vacant site. It is the specific contention of the plaintiff that
these properties are ancestral properties and that she has
a 1/4th legitimate share in the suit schedule properties.
The plaintiff also claims that she is in joint possession and
enjoyment of all the suit-scheduled properties. Plaintiff
claimed that there was no partition in the family as on the
NC: 2023:KHC:44835
date of filing of the suit. Alleging that defendant No.1 has
alienated item No.1 property, the present suit is filed.
5. Defendant No.2, on receipt of summons,
tendered appearance, filed written statement and stoutly
denied the entire averments insofar as the claim of the
plaintiff that item Nos.1 and 2 are joint family ancestral
properties. Defendant No.2 however, asserted that item
No.1 is self-acquired property and that he was working as
a driver in Cauvery Water Board, and out of his earnings
he has purchased item No.1. Therefore, he claimed that he
is the absolute owner and has alienated item No.1 in
favour of defendant No.6. Defendant No.2 also disputed
the plaintiff share in item Nos.2 and 3.
6. Defendant No.6, on receipt of summons,
tendered appearance, filed written statement and
contested the suit. He asserted that he has acquired a
valid right pursuant to a sale deed executed by defendant
No.2 for valuable sale consideration. Defendant No.6
NC: 2023:KHC:44835
claimed that item No.1 originally belonged to one
Siddaiah, who in turn sold it to defendant No.2 and
therefore, defendant No.6 contended that item No.1 is self
acquired property of defendant No.2 and hence prayed for
dismissal of the suit insofar as item No.1 property is
concerned.
7 Plaintiff and defendants to substantiate their
respective claims have let in oral and documentary
evidence.
8. The Trial Court having examined the oral and
documentary evidence, answered issue Nos.1 and 2 in the
affirmative. The Trial Court held that defendant No.2 has
failed to substantiate that item No.1 is self-acquired
property. While answering issue No.4 in the negative, the
Trial Court held that the sale deed executed by defendant
No.2 in respect of item No.1 in favour of defendant No.6 is
not binding on his legitimate share. The suit is decreed,
granting a 1/4th share in all the items.
NC: 2023:KHC:44835
9. Defendant No.6 feeling aggrieved by the
judgment and decree of the Trial Court, preferred an
appeal before the appellate Court in R.A.No.5021/2016.
Defendant No.2 also preferred an appeal in
R.A.No.5017/2016. The Appellate Court has clubbed both
the appeals. The Appellate Court, as a final fact-finding
authority, has independently assessed the entire evidence
on record. The Appellate Court, on meticulous examination
of the rebuttal evidence let in by defendant Nos.2 and 6,
however, was not inclined to concur with the reasons
recorded by the Trial Court on issue Nos.2 and 4. The
Appellate Court, referring to rebuttal evidence let in by
defendant No.2, was of the view that plaintiff has not
placed on record convincing evidence to substantiate that
item No.1 was purchased from the joint family corpus.
While taking cognizance of evidence of P.W.1, the
Appellate Court found that defendants have succeeded in
eliciting that expect 34 guntas of land, i.e., item No.2, the
family of plaintiff and defendants did not possess any
NC: 2023:KHC:44835
other property. The Appellate Court further found that
P.W.1 has admitted that item No.2 is dry land and was not
sufficient to maintain the family of plaintiff and
defendants. Therefore, in absence of surplus income, the
Appellate Court, referring to rebuttal evidence let in by
defendant No.2, held that item No.1 property is the self
acquired property of defendant No.2. It is in this
background, the Appellate Court has reversed the findings
and conclusions recorded by the Trial Court on issue Nos.2
and 4. The Appellate Court allowed the appeal filed by
defendant Nos.2 and 6 and the suit is dismissed insofar as
item No.1 property is concerned. The appeal filed by
defendant No.6 in R.A.No.5021/2016 was also allowed and
plaintiff's suit is dismissed. Plaintiff has not chosen to
question the decree passed in R.A.No.5021/2016.
10. Heard learned counsel appearing for the
plaintiff. Perused the divergent findings recorded by both
the Courts below.
NC: 2023:KHC:44835
11. On examining the divergent findings recorded
by both the Courts, this Court would find that item Nos.2
and 3 are ancestral properties. Item No.2 is dry land
measuring 34 guntas. P.W.1, who is the daughter of
plaintiff, has admitted in unequivocal terms that the family
consists of 15 members and item No.2 measuring 34
guntas, is dry land. It is a trite law that the initial burden
is on the plaintiff to establish that all the suit schedule
properties are joint family ancestral properties. Except
bald allegations in the plaint, plaintiff has not produced
any documents to indicate that the family possessed
sufficient lands that generated surplus income. Admittedly,
defendant No.2 is not the kartha of the family. On the
contrary, defendant No.2 has placed on record sufficient
rebuttal evidence to demonstrate that he was employed in
Cauvery Neeravari Nigama from 1974 to 1987. He has
produced a certificate issued by the Cauvery Neeravari
Nigama, marked as Ex.D.17. The rebuttal evidence
indicates that he was drawing a salary of Rs.346/- during
1974 to 1987. The Trial Court has virtually misread the
- 10 -
NC: 2023:KHC:44835
evidence on record. The Trial Court has proceeded on the
assumption that since plaintiff and defendants constitute
an undivided joint hindu family, it is presumed that all the
properties are joint family ancestral properties.
Admittedly, item No.1 was acquired by defendant No2
during the lifetime of Honnaiah. Therefore, it was for
plaintiff to discharge the initial burden by stepping into the
witness box. The plaintiff has not chosen to lead evidence.
On the contrary, she has led evidence through her
daughter. On examining the reasons and conclusions
recorded by both the Courts, what emerges is that plaintiff
has miserably failed to discharge her initial burden. The
existence of surplus income and the contribution by
Honnaiah to purchase item No.2 property is neither
pleaded by plaintiff nor supported by documentary
evidence. In absence of sufficient evidence to indicate that
the purchase of item No.1 made by defendant No.2 is also
ancestral property, the Trial Court erred in granting share
to the plaintiff.
- 11 -
NC: 2023:KHC:44835
12. In absence of cogent and clinching evidence,
the Appellate Court, having independently re-assessed the
entire evidence on record, has rightly dismissed the suit
filed by the plaintiff insofar as item No.1 is concerned.
Therefore, no substantial question of law would arise for
consideration. The regular second appeal is devoid of
merits and accordingly stands dismissed.
In view of dismissal of second appeal, all pending
applications, if any, do not survive for consideration and
stand disposed of.
Sd/-
JUDGE
HDK
CT: BHK
