Karnataka High Court
Kum Sneha vs Shivamadaiah on 6 December, 2023
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RSA No. 2149 of 2016
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 6TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MR JUSTICE SACHIN SHANKAR MAGADUM
REGULAR SECOND APPEAL NO. 2149 OF 2016 (PAR)
BETWEEN:
1. KUM.SNEHA
D/O SHANKAR
AGED ABOUT 19 YEARS
2. KUM.SOUNDARYA
D/O SHANKAR
AGED ABOUT 17 YEARS
SINCE MINOR
REPRESENTED BY HER
NATURAL GUARDIAN AND
MOTHER SMT.PUSHPALATHA
W/O SHANKAR
Digitally AGED ABOUT 32 YEARS
signed by
CHAITHRA A
ALL ARE RESIDING AT
Location:
HIGH SHANUBHOGANAHALLI
COURT OF KOOTAGAL HOBLI
KARNATAKA RAMANAGARA TALUK
AND DISTRICT-562 159
...APPELLANTS
(BY SRI.NARAYAN MAYYAR, ADVOCATE FOR
SRI.S R HEGDE HUDLAMANE, ADVOCATE)
AND:
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RSA No. 2149 of 2016
1. SHIVAMADAIAH
S/O LATE SIDDAIAH
AGED ABOUT 53 YEARS
2. VEERABHADRAIAH
S/O LATE KENCHAIAH
AGED ABOUT 63 YEARS
3. SMT.POORNIMA
D/O VEERABHADRAIAH
AGED ABOUT 35 YEARS
4. SHANKAR
S/O VEERABHADRAIAH
AGED ABOUT 34 YEARS
DECEASED
APPELLANT NOS.1 AND 2
ARE TREATED AS LEGAL
REPRESENTATIVES
5. SMT.GOWRAMMA
D/O VEERABHADRAIAH
AGED ABOUT 31 YEARS
ALL ARE RESIDENT OF
KEMPEGOWDANA DODDI VILLAGE
KASABA HOBLI
RAMANAGARA TALUKA
AND DISTRICT - 562 159
...RESPONDENTS
(BY SRI.HARIPRASAD M.B., ADVOCATE FOR R.1;
R.2 TO 5 ARE SERVED AND UNREPRESENTED)
THIS RSA IS FILED U/SEC.100 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 01.12.2014 PASSED IN
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RSA No. 2149 of 2016
R.A. NO.149/2013 ON THE FILE OF THE PRINCIPAL SENIOR
CIVIL JUDGE AND CJM., RAMANAGARA, ALLOWING THE
APPEAL AND SETTING ASIDE THE JUDGMENT AND DECREE
DATED 29.08.2013 PASSED IN O.S. NO.419/2008 ON THE FILE
OF THE PRL. CIVIL JUDGE AND JMFC, RAMANAGARA AND
ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
The captioned second appeal is filed by the
plaintiffs feeling aggrieved by the judgment and decree
rendered by the Appellate Court, wherein the appeal filed
by defendant No.5 is partly allowed and suit for partition
insofar as item No.1 is concerned, which was alienated in
favour of defendant No.5, is dismissed by recording a
finding that alienation by Veerabhadraiah, father of
plaintiffs namely Shankar and two daughters of
Veerabhadraiah namely Poornima and Gowramma, who
are defendant Nos.1 to 4, was for legal necessity and
therefore, it would bind plaintiffs as well as father of
plaintiffs i.e., defendant No.3.
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2. For the sake of brevity, the parties are
referred as they are ranked before the Trial Court.
3. The genealogical tree of the family is as
under;
Veerabhadraiah (60 years) (D.1)
|
Devarajamma (wife) (52 Yrs)
_________________________________|________________________________
| | |
Poornima (43 Yrs) Shankar (32 Yrs) Gowramma (30 Yrs)
(D.2) (D.3) (D.4)
_______________|_________________
| |
Sneha (4 Yrs) Soundarya (2 Yrs)
(P.1) (P.2)
4. Brief facts leading to the case are as under;
Plaintiffs are the daughters of one Shankar, who
is arrayed as defendant No.3. Defendant No.1 is the
propositus and he has two daughters and one son. The
plaintiffs have filed present suit for partition by contending
that suit item Nos.1 to 3 are joint family ancestral
properties and they are entitled for their legitimate share
in the suit schedule properties. The present suit is filed
alleging that defendant Nos.1 to 4 have sold item No.1 in
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favour of defendant No.5 only to deny legitimate share of
plaintiffs in the ancestral properties. Therefore, the
present suit is filed by the mother on behalf of plaintiff
Nos.1 and 2 seeking relief of partition and separate
possession.
5. Defendant Nos.1, 2 and 4 failed to contest the
proceedings and were placed exparte. Defendant No.3,
who is the father of plaintiffs, contested the suit by
contending that item No.1 property was sold to defendant
No.5 for family and legal necessity and therefore,
contended that the suit for partition insofar as item No.1 is
concerned is not maintainable. Defendant No.3 also
contended that item No.3 is the self acquired property and
therefore, plaintiffs are entitled for share only in item
No.2. Defendant No.5 filed a written statement and
claimed to be bonafide purchaser for valuable sale
consideration and therefore, sought for dismissal of the
suit insofar as item No.1 is concerned.
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6. The plaintiffs and defendants to substantiate
their respective claims have let in oral and documentary
evidence.
7. Trial Court having examined the pleadings,
oral and documentary evidence dismissed the suit insofar
as item No.3 is concerned. Trial Court while answering
issue No.1 partly in the affirmative held that suit item
Nos.1 and 2 are the ancestral properties. Trial Court,
however, held that item No.3 is the self acquired property
of defendant No.3 and therefore, decreed the suit in part
granting share in item Nos.1 and 2.
8. Defendant No.5, feeling aggrieved by the
decree passed by the Trial Court insofar as item No.1 is
concerned, preferred an appeal questioning the decree
insofar as item No.1 is concerned. The Appellate Court
being a final fact finding authority has independently
re-assessed the entire materials on record. The Appellate
Court, on examining the oral and documentary evidence,
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however, was not inclined to concur with the reasons and
conclusions recorded by the Trial Court insofar as item
No.1 is concerned. Referring to the materials on record,
the Appellate Court found that item No.1 is sold by the
plaintiffs' grandfather, who is defendant No.1 along with
his daughters for legal necessity. While examining the
materials on record, the Appellate Court held that it is not
the case of the plaintiffs that defendant No.1 is addicted to
vices and therefore, the alienation would not bind on their
legitimate share. While examining the recitals in the sale
deed coupled with the several admissions elicited in the
cross-examination of the mother of the plaintiffs and also
evidence of D.W.1, the Appellate Court has come to the
conclusion that the family under compelling reasons sold
item No.1 property. Referring to the evidence on record,
the Appellate Court held that alienation made by kartha of
the family i.e., defendant No.1 along with his two
daughters was for family necessity and the nature of the
family necessity is indicated in the sale deed, which is
supported by defendant No.3. Defendant No.3, in his
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evidence, has admitted that his father under compelling
reasons sold item No.1 property as the family had incurred
several debts. The appeal is allowed and suit is dismissed
insofar as item No.1 is concerned.
9. Heard learned counsel appearing for the
plaintiffs and perused the reasons recorded by the
Appellate Court while dismissing the suit insofar as item
No.1 is concerned.
10. On examining the family tree, it is clearly
evident that item No.1 totally measures 1 acre. Defendant
Nos.1 to 4 are entitled 1/4th share each. Even if partition
is granted in item No.1, plaintiffs along with defendant
No.3 are entitled for 10 guntas. If all the co-parceners to
clear their family debts have alienated item No.1 in favour
of defendant No.5, this Court is not inclined to grant any
indulgence in the captioned appeal.
11. As rightly pointed out by the Appellate Court,
there is absolutely no evidence let in by the plaintiffs to
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substantiate that alienation was not for family necessity.
Defendant No.5 has placed reliance on the recitals in the
sale deed, which indicates that defendant Nos.1 to 4 were
compelled to sell item No.1 property to clear the family
debts. The amount is also reflected in the sale deed.
Defendant No.3, who is the father of the plaintiffs, has
supported defendant No.5 and has specifically deposed
that alienation of item No.1 property was for legal
necessity. Nothing worth is elicited in the cross-
examination of defendant No.3. It is also borne out from
the records that no serious allegations are made against
defendant No.1 by the plaintiffs. If grandfather of the
plaintiffs along with their father, who is arrayed as
defendant No.3 and two paternal aunts, under compelling
reasons, have alienated item No.1 property, the said
alienation being for family necessity obviously would bind
the plaintiffs. As stated supra, the extent is found to be
very negligible and therefore, it probabilizes the case of
defendant Nos.1 to 4 that the family possess very
negligible resources and therefore, under compelling
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reasons, the family had availed hand loan and item No.1
was sold to clear the family debts. Therefore, I am not
inclined to interfere with the findings and conclusions
recorded by the Appellate Court.
No substantial question of law arises for
consideration.
Accordingly, the appeal is dismissed.
Pending applications, if any, are also dismissed.
Sd/-
JUDGE
NBM
