Karnataka High Court
Sri B D Chandraiah vs Sri Durgaiah on 14 December, 2023
Author: V Srishananda
Bench: V Srishananda
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RFA No. 781 of 2007
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 14TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE V SRISHANANDA
REGULAR FIRST APPEAL NO.781 OF 2007 (DEC)
BETWEEN:
SRI. B.D. CHANDRAIAH,
AGED ABOUT 40 YEARS,
S/O SRI. DURGAIAH,
R/AT BANNIKUPPE VILLAGE,
KYLANCHA HOBLI, RAMANGARA TALUK,
BANGALORE RURAL DISTRICT - 571 511.
...APPELLANT
(BY SRI. H.T. NARAYAN, ADVOCATE)
AND:
1. SRI. DURGAIAH,
S/O SRI. CHANNEGOWDA,
SINCE DEAD BY LRS,
1(A). SMT. THIMMAMMA,
W/O LATE DURGAIAH,
Digitally AGED ABOUT 68 YEARS,
signed by R
MANJUNATHA R/AT BANNIKUPPE VILLAGE,
Location:
HIGH COURT KAILANCHA HOBLI,
OF RAMANAGARA TALUK AND DISTRICT.
KARNATAKA
2. SRI. B. SHIVAIAH,
MAJOR, S/O LATE CHANNEGOWDA,
R/AT BANNIKUPPE VILLAGE,
KYLANCHA HOBLI, RAMANAGARA TALUK,
BANGALORE RURAL DISTRICT - 571 511.
3. SMT. GOWRAMMA,
MAJOR, W/O SRI. NANJAPPA,
R/AT HUTLER HOSADODDI VILLAGE,
BIDAI HOBLI, RAMANAGARA TALUK,
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RFA No. 781 of 2007
BANGALORE RURAL DISTRICT - 571 511.
4. SRI. NAGARAJA,
MAJOR, SRI. DURGAIAH,
R/AT THYAGARAJA, MOHALLA,
BANNUR TOWN, T. NARASIPURA TALUK,
MYSORE DISTRICT - 571 124.
5. SRI. D. RAMESH,
MAJOR, S/O DURGAIAH,
R/AT AZADNAGAR, MYSORE ROAD,
BANGALORE - 560 026.
6. SMT. JAYAMMA,
MAJOR, W/O SRI. THIMMAIAH,
R/.AT ANKANAHALLI VILALGE,
KYLANDRA HOBLI, RAMANGARA TALUK,
BANGALORE RURAL DISTRICT - 571 511.
7. SMT. SUDHAMANI,
MAJOR, W/O SRI. NAGARAJA,
R/AT DHARAPURA VILLAGE,
KASABA HOBLI, RAMANGARA TALUK,
BANGALORE RURAL DISTIRCT - 571 511.
...RESPONDENTS
(BY SRI. J.S.PRADEEP, ADVOCATE FOR R2;
R1(A) - SERVED;
R3, R4, R5, R6 AND R7 - SERVED)
THIS RFA IS FILED U/S 96 OF CPC AGAINST THE
JUDGEMENT AND DECREE DATED 21.09.2006 PASSED IN
OS.NO. 124/99 ON THE FILE OF THE ADDL.CIVIL JUDGE
(SR.DN.) RAMANAGARAM, DISMISISNG THE SUIT FOR
DECLARATION, PARTITION AND SEPARATE POSSESSION.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RFA No. 781 of 2007
JUDGMENT
Heard Sri.H.T.Narayan, learned counsel for the appellant
and Sri.J.S.Pradeep, learned counsel for respondent No.2.
2. Present appeal is directed against the judgment and
decree passed in O.S.No.124/1999, dated 24.09.2005 on the
file of Additional Civil Judge (Senior Division) Ramanagaram,
whereby suit of the plaintiff came to be dismissed.
3. Parties are referred to as plaintiff and defendants for the
sake of convenience as per their original ranking in the Court
below.
4. The suit for declaration, partition and separate possession
came to be filed in respect of the following (hereinafter referred
to as "Suit Schedule Properties"):
SCHEDULE-A
All the part and parcel of the Properties
(Agricultural) properties mentioned below situated at
Bannikuppe Village Kyancha Hobli Ramanagaram
a. Sy.no 236/1 measuring 2 acres 4 guntas.
b. Sy.no 236/2 measuring 6 guntas.
c. Sy.no 236 3 measuring 6 guntas.
d. Sy.no 236/5 measuring 6 guntas.
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And bounded on the:
East by : Lands of Chamma, Muthasetty and
Government road.
West by: Lands of Munivenkatappa, Muniswamappa
Muniyappa.
North by: Land of Krishnappa and
South by : Land of Channamma and High School
SCHEDULE-B
All the part and parcel of the Properties
(Residential house property) mentioned below situated
at Bannikuppe Village Kylancha Hobli Ramanagaram
i) Kaneshimari No.94/81 measuring 40 X 25 with
R.C.C.building constructed thereon comprising of
ground and first floors bounded on the
East by: Property of (Residential house property)
house Belonging to Smt. Chandramma.
West by: Government Property (Street)
North by: Property belonging to Krishna Shetty.
South by: Government Property (Street)
ii) Kaneshimari No.94/85 measuring 40 X 30 with a
tiled house thereon bounded on the
East by: Property of belonging to Sri Dasappa.
West by: Property belonging to Sri Chickathayanuma.
North by: Site belonging to Sri Rudrappa.
South by: Government Property (Street).
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5. According to the plaintiff, though the properties were
purchased by defendant No.1-Sri.Durgaiah, the same was
thrown to common hotch-potch and all the members of the
family of Sri.Shivaiah were enjoying the same as joint family
properties. Therefore, plaintiff demanded his share in the suit
properties which was flatly refuted by defendant No.1, who is
the father and therefore, sought for decreeing the suit.
6. Upon receipt of suit summons, defendant Nos.1 and 2
appeared and filed detailed written statement. In the written
statement, the allegations made in the plaint were flatly
refuted. There is a specific denial as to the fact that suit
properties were thrown to common hotch-potch by defendant
No.1-Sri.Durgaiah.
7. It is further contended that Sri.Durgaiah being the owner
of properties, having purchased the same, continued to
exercise the ownership over the suit properties. Plaintiff and
other defendants did not take care of defendant No.1 and
therefore, defendant No.1 was dependent on defendant No.2
for all the agricultural operations and also for day to day life.
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8. Therefore, defendant No.1 decided to execute the sale
deed in respect of one of the suit properties in favour of
defendant No.2 and in respect of item No.1 of 'B' schedule
properties, he executed a Will in favour of defendant No.2 and
in respect of item No.2 in 'B' schedule properties, defendant
No.1 had alienated the same much prior to the filing of the suit.
Therefore, first defendant contended that no properties are
available for partition and sought for dismissal of the suit.
9. In view of the rival contentions of the parties, learned
Trial Judge framed following issues:
1. Whether the plaintiff proves that suit schedule
properties were put in hotch-pot 25 years ago and
that they are joint family properties?
2. Whether the plaintiff is entitled for the relief of
declaration that the sale deed is not binding upon
him?
3. Whether the plaintiff is entitled for the relief of
partition and separate possession in suit schedule
properties?
4. If so, to what extent?
5. Whether the valuation of suit made is improper and
that the court fee paid is in sufficient?
6. What order or Decree?
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10. In order to prove the case of plaintiff, plaintiff got
examined himself as P.W.1 and relied on 48 documents which
were exhibited and marked as Exs.P.1 to P.48. Among the
documents that have been placed on behalf of the plaintiff, it
contains Encumbrance certificate, C.C. of sale deed, RTC
extracts, C.C of Genealogical tree, Ration card, Tax paid
receipts, phone bell and receipts, electricity bill, telephone bills,
ESI card, letter from KEB, notice from KEB, copy of notice given
to Tahasildar, copy of application, postal acknowledgement,
application given to Tahasildar, application given to
Grampanchyath, copy of notice given to Grampanchayat, postal
acknowledgement, electrical contractors license, temporary
appointment order, letter of confirmation of service, H.P. Gas
registration letter, photos with negatives, voters list, copy of
caveat petition, applications given to Gramapanchayat.
11. As against the evidence placed on record by the plaintiff,
defendant No.1-Sri.Durgaiah got examined himself as D.W.1
and defendant No.2-Sri.Shivaiah, who is the beneficiary under
the Will executed by defendant No.1 and also purchased suit
item No.1 of properties from Sri.Durgaiah, who got examined
himself as D.W.2. As many as 56 documents were placed on
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record by the defendants on their behalf, which were marked
and exhibited as Exs.D.1 to D.56. Among the documents that
have been relied on behalf of the defendants, it contains C.C
sale deed, registered Will, loan repayment receipt, subsidy
letter from sericulture department, tax paid receipt, RTC
extracts, mutation register extract, C.C. sale deeds, tax paid
receipts, receipts of village development bank, demand register
extract, krishi pass book, patta book, mutation register
extracts, notice from PLD bank.
12. The learned Trial Judge on conclusion of recording of
evidence, heard the parties in detail and on cumulative
consideration of the oral and documentary evidence placed on
record, dismissed the suit of the plaintiff holding that the
plaintiff failed to prove that the suit properties were thrown to
common hotch-potch, by defendant No.1-Sri.Durgaiah and
thereby plaintiff and other defendants are enjoying the suit
properties as joint family members.
13. Being aggrieved by the same, the present appeal is filed
on the following grounds.
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The judgement and decree of Court below is
perverse, illegal, contrary to the facts, evidence on
record and documents produced therein resulting
in substantial failure of justice and hence the same
is liable to be set aside.
It is submitted that the Court below has failed to
appreciate the oral and documentary evidence in a
proper perspective and there is no application of
mind at all by the Court below with regard to the
existence of prevailing circumstances.
It is submitted that the Court below has not at all
discussed under what circumstances exhibit D1 the
sale deed dated 15-4-1999 and exhibit D2 the Will
which documents came into existence shrouded
with full of suspicious under the facts and
circumstances of the case that exhibit-D1 is
executed by the first defendant in favour of the
second defendant as the 2nd defendant being the
son in respect of 'A' schedule property and also the
exhibit D2 the Will in favour of 2nd defendant in
respect of 'B' Schedule property. Thus, it is very
clear on the face of these two documents the entire
properties have gone to the share of the second
defendant depriving the other shares, namely
plaintiff and defendants 3 to 7 which clearly
establishes beyond reasonable doubt that the
exhibit D1 and D2 are illegal and sham documents.
The court below, ought to have applied its mind to
this illegal documents and ought to have rejected
the documents as null and void by accepting the
version of the plaintiff as the properties are joint
family properties.
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It is submitted that the court below has not at all
properly appreciated the oral and voluminous
documents produced on behalf of the plaintiff and
there is no discussion with regard to the Evidence
adduced by the plaintiff and hence there is no
application of mind by the Court below on legal
basis.
It is submitted that the reasons assigned by the
Court below in rejecting the suit of the plaintiff is
contrary to the evidence on record and hence the
court below utterly failed to appreciate the
evidence on record on sound legal principles.
It is submitted that the court below ought to have
held that the properties 'A' and 'B' schedule are
joint family properties in view of the voluminous
documentary evidence in support of the case of the
plaintiff.
It is submitted that while discussing the case, the
court below no where have clearly stated that the
second defendant is none other than the son of the
Ist defendant, and what are the special
circumstances to give entire properties in favour of
the 2nd defendant at the Ist defendant depriving
the other sons and daughter, this circumstances
clearly establishes that exhibit D1 and D2 are out
come of fraud, misrepresentation and undue
influence and hence Exhibit D1 and D2 are on the
face of it are illegal and void documents and not
binding on the plaintiff.
The Court below has not applied its mind
judiciously and there is no proper application of
oral and documentary evidence.
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In any view of the matter the impugned judgement
and decree is contrary to law andevidence on
record, resulting in substantial failure of justice and
court below ought to have decreed the suit of the
plaintiff.
It is submitted that the court below acted illegally
and arbitrarily dismissing the suit with exemplory
cost of Rs.5000/- under the facts and
circumstances of the case.
14. Reiterating the grounds urged in the appeal
memorandum, learned counsel, Sri.H.T.Narayan for the
appellant vehemently contended that the material evidence
available on record, especially the voters list, telephone bills
and other related documents, would go to show that the
plaintiff also lived in the house along with Sri.Durgaiah, which
is the suit item No.1 in the 'B' schedule and for his avocation,
he was moving here and there in the neighbouring villages.
Therefore, plaintiff was living with the defendant No.1 and
material evidence on record is not properly appreciated by the
learned Trial Judge while dismissing the suit of the plaintiff and
thus, sought for admitting the appeal for further consideration.
15. He also pointed out that the material evidence on record
would go to show that suit item No.1 of the property has been
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sold in favour of defendant No.2 and suit item No.1 in the 'B'
schedule property is the house property, which has been
bequeathed in favour of defendant No.2 excluding other
sharers, has resulted in not only grave injustice but also
resulted in miscarriage of justice and therefore, sought for
permitting the appeal for further consideration.
16. Per contra Sri. J.S. Pradeep, learned counsel representing
respondent No.2 contended that, admittedly, suit properties are
self acquired properties of defendant No.1-Sri.Durgaiah, who
died during the pendency of the appeal.
17. Insofar as suit item No.1 in 'A' schedule properties, the
sale of said agricultural property has been sold during his
lifetime in the year 1999 and the suit came to be filed in the
year 1999 after the sale of the property has taken place in
favour of defendant No.1.
18. He further contended that since Sri.Durgaiah was the
absolute owner of the suit properties. In the absence of any
cogent evidence being placed on record to show that
Sri.Durgaiah had thrown his self acquired properties in common
hotch-potch and all the parties to the suit have been enjoying
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the same as joint family members, the sale in favour of
defendant No.2 by the defendant No.1 is valid, which has been
rightly appreciated by the learned Trial Judge while dismissing
of the suit.
19. He also contended that in respect of 'B' schedule of the
properties, which is house property, Sri.Durgaiah has executed
a registered Will in favour of defendant No.2 and thereby, he
has become the owner of the suit property.
20. In the absence of any material placed by the plaintiff to
show that the property was thrown to the common hotch-
potch, defendant No.1 had every right to bequeath the house
property in favour of defendant No.2. Therefore, the dismissal
of suit is just and proper.
21. He also pointed out that in respect of item No.2 in 'B'
schedule properties, the said property was sold by Sri.Durgaiah
much earlier prior to the filing of the suit and said action of
Sri.Durgaiah was not challenged by the plaintiff and therefore,
dismissal of the suit in toto by the learned Trial Judge is just
and proper and sought for dismissal of the appeal.
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22. In view of the rival contentions of the parties, this Court
perused the material on record including the Trial Court
records.
23. Appeal is of the year 2007 and it is yet to be admitted.
On perusal of the material on record, especially the oral
evidence of the plaintiff, there is no whisper as to when the suit
properties were thrown in to common hotch-potch.
24. Except the oral testimony of P.W.1, no other evidence is
placed on record. Revenue entries continued in the name of
Sri.Durgaiah till the sale has taken place in favour of defendant
No.2 in respect of item No.1 in 'A' schedule properties and item
No.1 in 'B' schedule properties.
25. Further, the plaintiff did not choose to examine any
relatives or bajudars of item No.1 of the property to show that
the suit properties were being enjoyed by the plaintiff and
defendants as a joint family property.
26. Mere production of electricity bills, telephone bills and
voter ID itself would not ipso-facto make out a case that the
suit properties were thrown to common hotch-potch by
Sri.Durgaiah.
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27. On the contrary, material evidence on record placed on
behalf of defendants, it is crystal clear that the properties were
owned by Sri.Durgaiah and fact remains that all other
defendants except defendant No.2 were living separately from
Sri.Durgaiah because of their avocation.
28. It is no doubt true that because of the avocation the
parties can live separately, still there may exist a joint family.
In the case on hand, the existence of a joint family might have
been there having regard to the documentary evidence on
record, but there is no property possessed by the joint family
as Sri.Durgaiah did not inherit any property from his ancestors.
29. The suit properties were admittedly the properties of
Sri.Durgaiah, which is self acquisition. When the properties are
self acquired properties, Sri.Durgaiah was entitled to dispose of
the property as per his will and wish. When the theory of the
throwing the suit properties to common hotch-potch has not
been proved by the plaintiff by placing cogent and convincing
evidence on record, the capacity of Sri.Durgaiah in selling the
suit schedule 'A' properties in favour of defendant No.2 and
bequeathing the item No.1 of 'B' schedule properties to
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defendant No.2, who has looked after Sri.Durgaiah all along
cannot be found fault with.
30. Thus, this Court is of the considered opinion that the
grounds urged in the appeal are hardly sufficient to admit the
appeal for further consideration.
Accordingly, the following:
ORDER
i. Admission is declined.
ii. Appeal is dismissed.
iii. Learned counsel for the respondent did not
insist for payment of cost imposed by the Trial
Court. His submission is placed on record and
cost through out is made easy.
Sd/-
JUDGE
AT
CT: BHK
