Karnataka High Court
Sri. Ramakrishnaiah vs Smt. Yashodamma on 1 December, 2023
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RSA No. 1464 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 1ST DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO. 1464 OF 2023 (PAR/DEC)
BETWEEN:
SRI. RAMAKRISHNAIAH,
SON OF LATE THIMMAIAH @ PUTTAIAH,
AGED ABOUT 58 YEARS,
RESIDING AT HANDALAGERE VILLAGE,
HALAGERE POST, AMRUTHUR HOBLI,
KUNIGAL TALUK, TUMKUR DISTRICT - 572 111.
...APPELLANT
(BY SRI. SIDDAMALLAPPA P.M, ADVOCATE)
AND:
1. SMT. YASHODAMMA,
DAUGHTER OF LATE THIMMAIAH @ PUTTAIAH,
WIFE OF KRISHNEGOWDA,
Digitally
signed by AGED 58 YEARS,
CHAITHRA P
Location: High
RESIDING AT HANDALAGERE VILLAGE,
Court of HALAGERE POST, AMRUTHUR HOBLI,
Karnataka
KUNIGAL TALUK, TUMKUR DISTRICT - 572 111.
2. SMT. SUSHEELA,
DAUGHTER OF LATE THIMMAIAH @ PUTTAIAH,
AGED 46 YEARS,
RESIDING AT HANDALAGERE VILLAGE,
HANDALAGERE POST, AMRUTHUR HOBLI,
KUNIGAL TALUK, TUMKUR DISTRICT - 572 111.
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RSA No. 1464 of 2023
3. SMT. VENKATALAKSHMI,
WIFE OF HONNEGOWDA,
DAUGHTER OF LATE THIMMAIAH @ PUTTAIAH,
AGED 56 YEARS,
RESIDING AT CHANNAPURA VILLAGE,
KASABA HOBLI, KUNIGAL TALUK,
TUMKUR DISTRICT - 572 130.
4. SMT. GANGAMMA,
WIFE OF MALLANAGOWDA,
DAUGHTER OF LATE THIMMAIAH @ PUTTAIAH,
AGED 59 YEARS,
RESIDING AT BEERAGANAHALLI VILLAGE,
YEDIYUR HOBLI, KUNIGAL TALUK,
TUMKUR DISTRICT - 572 130.
5. SMT. JAYAMMA,
WIFE OF NARAYANMURTHY,
DAUGHTER OF LATE THIMMAIAH @ PUTTAIAH,
AGED 60 YEARS,
RESIDING AT NO.75, 1ST MAIN ROAD,
KATRIGUPPE MAIN ROAD, BSK II STAGE,
VIVEKANAND NAGAR, BENGALURU - 560 085.
6. SRI. V. M. SRINIVASEGOWDA,
S/O V.M. MARIYAPPA,
AGED ABOUT 66 YEARS,
RESIDING AT AMRUTHUR VILLAGE,
AMRUTHUR HOBLI, KUNIGAL TALUK,
TUMKUR DISTRICT - 572 111.
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 24.07.2023
PASSED IN RA.NO. 5/2022 ON THE FILE OF THE SENIOR CIVIL
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RSA No. 1464 of 2023
JUDGE AND JMFC, KUNIGAL, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 26.11.2021
PASSED IN O.S.NO.433/2014 ON THE FILE OF THE PRINCIPAL
CIVIL JUDGE AND JMFC, KUNIGAL.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by defendant
No.4 assailing the concurrent judgment of the Courts
below, wherein suit for partition filed by plaintiff Nos.1 and
2 is decreed granting 1/6th share and further a declaration
is granted to the effect that the sale deed executed by
defendant No.4 on 12.08.2014 in favour of defendant No.5
is not binding on the shares of plaintiffs and defendant
Nos.1 to 3.
2. For the sake of brevity, the rank of the parties
are referred as they are ranked before the Trial Court.
3. The plaintiff Nos.1 and 2 are the sisters of
defendant Nos.1 to 4. Plaintiffs contended that suit
schedule properties are joint family ancestral properties
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and they along with defendant Nos.1 to 3, who are sisters
and defendant No.4, who is the brother, constitute an
undivided joint hindu family. The sisters have filed a suit
alleging that plaintiff No.2 is the unmarried sister of
defendant No.4 and after the demise of their parents,
defendant No.4 has thrown out plaintiff No.2 from the
house. It is also alleged that defendant No.4 after the
demise of their parents, taking undue advantage of the
fact that properties are standing in his name, has
alienated item No.1 in favour of defendant No.5 under
registered sale deed dated 12.08.2014. Plaintiffs claimed
that defendant No.4, while selling item No.1, admitted that
it was ancestral property. Therefore, the present suit is
filed alleging that defendant No.4 and 5 in collusion have
created a sale deed dated 12.08.2014 and prayed to allot
their legitimate share and also sought a declaration that
the sale executed by defendant No.4 in favour of
defendant No.5 is not binding on their legitimate share.
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4. Defendants, on receipt of summons, tendered
appearance and defendant No.4 filed written statement.
Defendant Nos.4 and 5, however, contended that item
No.1 is sold by defendant No.4, who is the brother of
plaintiffs, for legal necessity and to clear the debts.
5. Plaintiffs and defendants to substantiate their
respective claims have let in oral and documentary
evidence.
6. The Trial Court, while answering issue No.2 in
the negative and against defendant Nos.4 and 5, held that
both the defendants have failed to establish that item No.1
sold by defendant No.4 was not for legal necessity. The
Trial Court, referring to recitals in the sale deed dated
12.08.2014 marked as Ex.P.12, found that alienation was
to construct a house and to make agricultural
improvements. Having answered issue No.2 in the
negative and issue Nos.1 and 3 in the affirmative, the Trial
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Court decreed the suit, granting 1/6th share each to the
plaintiffs.
7. Defendant No.4 feeling aggrieved by the
judgment and decree of the Trial Court, preferred an
appeal before the appellate Court. The Appellate Court, on
reassessing the entire evidence on record independently,
also found that alienation of item No.1 by defendant No.4
was not for legal necessity. The Appellate Court concurred
with the findings recorded by the Trial Court on issue
Nos.1 and 2. Consequently, appeal is dismissed. These
concurrent findings are under challenge.
8. Heard learned counsel appearing for defendant
No.4. Perused the concurrent findings of the Courts below.
9. It is not in dispute that suit properties are joint
family ancestral properties of plaintiffs and defendant
Nos.1 to 4. Both the Courts, referring to rebuttal evidence
let in by defendant Nos.4 and 5, have come to the
conclusion that alienation by defendant No.4, who is the
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brother of plaintiffs insofar as item No.1 is concerned, was
not for legal necessity. It is in this background, both the
Courts concurrently held that the alienation of item No.1
made by defendant No.4 in favour of defendant No.5 does
not bind the plaintiffs. If defendant Nos.4 and 5 have
failed to discharge the burden that the sale of item No.1
was for legal necessity, I do not find any serious infirmities
in the findings recorded by both the Courts on issue No.2
relating to legal necessity. If both the Courts have
concurrently answered issue No.2 in the negative and
against defendant No.5, the alienation made by defendant
No.4 would obviously not bind the legitimate share of
plaintiffs. Therefore, both the Courts were justified in
granting equal share in all the properties. The sale deed
executed by defendant No.4 in favour of defendant No.5
will be valid only to the extent of the legitimate share of
defendant No.4 in all the properties. Therefore, it is for
defendant No.4 to workout his equitable remedies, if any,
in the final decree proceedings. The concurrent judgments
rendered by both the Courts in granting 1/6th share to the
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plaintiffs are based on legal evidence and in absence of
rebuttal evidence. 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
