Karnataka High Court
Gurushanthayya S/O Sidramayya ... vs Smt. Mallamma W/O Mallayya Swamy And Anr on 7 December, 2023
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RSA No. 7269 of 2012
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 7TH DAY OF DECEMBER, 2023
BEFORE
THE HON'BLE MRS JUSTICE M G UMA
REGULAR SECOND APPEAL NO.7269 OF 2012
(PAR/SEP.POS)
BETWEEN:
GURUSHANTHAYYA, S/O SIDRAMAYYA MATHAPATI
AGE: 60 YEARS, OCC: AGRICULTURE,
R/O GOUR (K), TQ. AFZALPUR-585301,
DIST. GULBARGA.
...APPELLANT
(BY SRI A. M. BIRADAR, ADVOCATE)
AND:
1. SMT. MALLAMMA W/O MALLAYYA SWAMY
AGE: 67 YEARS, OCC: HOUSEHOLD,
R/O: NAGANSUR, TQ. AKKALKOAT-413216,
DIST: SOUTH SOLAPUR.
2. SMT. KASTURIBAI W/O SUBHASHAYYA SWAMY
Digitally signed AGE: 62 YEARS, OCC: HOUSEHOLD,
by SHILPA R R/O: BHUSNOOR, TQ. ALAND-585302,
TENIHALLI
Location: HIGH DIST. GULBARGA.
COURT OF
KARNATAKA ...RESPONDENTS
(BY SRI S.S. MAMADAPUR, ADVOCATE)
THIS RSA IS FILED U/S. 100 OF CPC, PRAYING TO CALL FOR
THE RECORDS AND TO SET ASIDE THE JUDGMENT AND DECREE
DATED 30.06.2012 PASSED BY THE SENIOR CIVIL JUDGE AFZALPUR,
IN R.A. NO. 122/2010 BY CONFIRMING THE JUDGMENT AND DECREE
DATED 30.09.2010 PASSED BY THE CIVIL JUDGE (JR.DN) AFZALPUR,
IN O.S. NO. 16/2010, AND AWARD COSTS, IN THE INTEREST OF
JUSTICE AND EQUITY.
THIS APPEAL COMING ON FOR FINAL HEARING, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RSA No. 7269 of 2012
JUDGMENT
The defendant in O.S.No.16/2010 on the file of learned
Civil Judge (Sr.Dn), at Afzalpur (hereinafter referred to as 'the
Trial Court' for brevity) is impugning the judgment and decree
dated 30.09.2010 decreed the suit of the plaintiffs for partition
and separate possession and holding that the plaintiffs are
entitled for 1/3rd share each in the suit property, which was
confirmed in R.A.No.122/2010 on the file of learned Senior Civil
Judge, at Afzalpur Court (hereinafter referred to as the 'First
Appellate Court' for brevity) by dismissing the appeal.
2. For the sake of convenience, parties are referred to as
per their status and rank before the Trial Court.
3. Brief facts of the case are that, the plaintiffs filed the
suit against the defendant for partition and separate possession
of land bearing Sy.No.31/1 measuring 14.39 acres and
Sy.No.256/02 measuring 4.05 acres situated at Gour (K)
village, Afzalpur taluk with the boundaries mentioned therein
(hereinafter referred to as the "suit properties"). It is
contended that Sidramayya Swamy is the propositor, he had
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two wives i.e., Hampavva the first wife and Rudravva the
second wife.
4. Plaintiff Nos.1 and 2 are the daughters of
Hampavva. Whereas, defendant is the son through second wife.
Therefore, it is contended that the suit property, which is the
ancestral joint family property, in which the plaintiffs are
entitled for 1/3rd share each. Accordingly, they prayed for
decreeing the suit with costs.
5. The defendant field written statement admitting the
relationship between the parties. It is denied that Sy.No.31/1 is
the ancestral property. But on the other hand, it is contended
that the same is self acquired property of defendant, as the
same was purchased in his name by his maternal grandfather
Sidramayya Swamy. However, it is admitted that second item
in the suit properties i.e., Sy.No.256/1 is the ancestral property
and the plaintiffs are entitled for share. Accordingly, defendant
prayed for dismissal of the suit.
6. On the basis of these pleadings, the Trial Court
framed the following issues for consideration:
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1) Whether the plaintiffs prove that the suit property is
ancestral property of the plaintiffs and defendant?
2) Whether the plaintiffs further prove that they are
entitled to 1/3rd share in the suit property?
3) Whether the plaintiffs are entitled to the relief as
sought for?
4) What decree or order?
7. Plaintiff Nos.1 and 2 have examined themselves as
PWs.1 and 2 and got marked Exs.P.1 to 8. Defendant examined
himself as DW1 and got marked Ex.D1.
8. On the basis of these materials on record, the Trial
Court answered Issue Nos.1 to 3 in the Affirmative and decreed
the suit of the plaintiffs holding the plaintiffs are entitled for
1/3rd share each in the suit properties. Being aggrieved by the
same, defendant has preferred R.A.No.122/2010. The First
Appellate Court dismissed the appeal and confirmed the
impugned judgment and decree passed by the Trial Court.
Therefore, defendant is before this Court.
9. Heard Sri.A.M.Biradar, learned counsel for the
appellant and Sri. S.S.Mamadapar, learned counsel for the
respondents. Perused the material on record, including the Trial
Court records.
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10. Learned counsel for the appellant contended that
there is no dispute with regard to Item No.2 of the suit
properties. But regarding Item No.1, the same was purchased
in the name of defendant under Ex.D.1 dated 05.09.1964.
Therefore, it cannot be considered as joint family property and
plaintiffs cannot seek any share in the same. The Trial Court
and the First Appellate Court have committed an error in
decreeing the suit in respect of Item No.1. Hence, prays for
allowing the appeal in the interest of justice.
11. Per contra, leaned counsel for the respondents
opposing the appeal submitted that as per Ex.D1, propositor
Sidaramaiah Swamy purchased Item No.1 in the name of
defendant on 05.09.1964, when he was still a minor. It is also
admitted that item No.2 is the joint family property. Under such
circumstances, the defendant failed to establish his contention
that the same is his self acquired property. When it is proved
that Item No.1 was also purchased from out of the joint family,
the plaintiffs are entitled for 1/3rd share each. Therefore, the
Trial Court and the First Appellate Court recorded concurrent
findings on fact and there are no reasons to interfere in the
same. Hence, he prays for dismissal of the appeal.
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12. This Court vide order dated 21.04.2016 framed the
following substantial question of law for consideration:
Whether the Courts below have committed serious
legal error in holding that the plaintiffs (respondents
herein) are entitled to 1/3rd share each being the
daughters when their father died in the year 1980 itself?
My answer to the above point is in the Negative for the
following;
REASONS
13. It is the contention of the plaintiffs that Item Nos.1
and 2 are joint family properties and for having 1/3rd share
each in the same. Only defence taken by the defendant that
Item No.1 was purchased by him under Ex.D.1 and therefore, it
is his self acquired property and therefore, plaintiffs are not
entitled for share in the said item of properties. It is pertinent
to note that defendant admitted relationship between the
parties, he also admits that Item No.2 is ancestral property and
plaintiffs are having equal share in the same.
14. Ex.D1 is the registered sale deed dated 05.09.1964,
which was purchased in the name of defendant by his guardian,
as he was minor at that time. The defendant has not
substantiated his contention that property was purchased
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exclusively in his name and it was not from out of joint family.
Under such circumstance, plaintiffs' should succeed. When the
relationship between the parties is admitted, plaintiffs being
sisters, are entitled for 1/3rd share each. The Trial Court and
the First Appellate Court on proper appreciation of materials on
record, recorded concurrent findings on facts. I do not find any
reason to interfere with the same. Hence, I answer substantial
question of law in the Negative and proceed to pass the
following.
ORDER
(i) The appeal is dismissed with costs.
(ii) The judgment and decree dated 30.09.2010 passed
in O.S.No.16 of 2010 on the file of the learned Civil Judge
(Sr.Dn), Afzalpur is hereby confirmed.
Registry is directed to send back the Trial Court records
along with copy of this judgment.
Sd/-
JUDGE
BH
