Sri Nyatharaju vs Sri Thirumalappa
2023 Latest Caselaw 33 Kant

                          1



     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

        DATED THIS THE 2ND DAY OF JANUARY, 2023

                        BEFORE

 THE HON'BLE MR. JUSTICE SACHIN SHANKAR MAGADUM

      REGULAR SECOND APPEAL NO.413 OF 2014 (PAR)

BETWEEN:

1.     SRI.NYATHARAJU
       S/O THIRUMALAPPA
       AGED ABOUT 35 YEARS

2.     SRI.VENKATESHA
       S/O THIRUMALAPPA
       AGED ABOUT 34 YEARS

3.     SRI.GANGARAJU
       S/O THIRUMALAPPA
       AGED ABOUT 25 YEARS

       ALL ARE R/AT
       SINGANAHALLI VILLAGE
       SOMENAHALLI HOBLI
       GUDIBANDA TALUK
       CHICKBALLAPURA DISTRICT
       PIN CODE - 561 213

                                       ... APPELLANTS

(BY SRI.SHANKAR REDDY C, ADVOCATE)

AND

1.     SRI.THIRUMALAPPA
       S/O LATE NYATHAPPA
       AGED ABOUT 63 YEARS
                             2



     R/AT MAVATHURU VILLAGE
     MAVATHUR POST
     KORTAGERE TALUK
     TUMKUR DISTRICT
     PIN CODE - 572129

2.   SRI.KADARI NARASIMHAIAH
     S/O LATE VENKATAPPA
     AGED ABOUT 48 YEARS
     R/AT SINGANAHALLI VILLAGE
     SOMANAHALLI HOBLI
     GUDIBANDA TALUK
     CHICKBALLAPURA DISTRICT
     PIN CODE - 561213

                                         .....RESPONDENTS

(BY SRI.G.A.SRIKANTE GOWDA, ADVOCATE FOR R.2;
R.1- SERVED)

      THIS REGULAR SECOND APPEAL IS FILED UNDER
SECTION 100 OF CPC., AGAINST THE JUDGMENT AND
DECREE DATED 19.12.2013 PASSED IN R.A.NO.193/2007
ON THE FILE OF ADDITIONAL DISTRICT AND SESSION'S
COURT, CHICKBALLAPUR, DISMISSING THE APPEAL AND
CONFIRMING     JUDGEMENT     AND    DECREE   DATED
20.09.2007 PASSED IN O.S.NO.48/2005 ON THE FILE OF
CIVIL JUDGE (JR. DN.) AND JMFC, GUDIBANDA AND ETC.

     THIS REGULAR SECOND APPEAL COMING ON FOR
ADMISSION THIS DAY, THE COURT DELIVERED THE
FOLLOWING:

                       JUDGMENT

The captioned second appeal is filed by the

unsuccessful plaintiffs assailing the concurrent judgments

and decrees of the Courts below, wherein the plaintiffs suit

seeking relief of partition is dismissed by both Courts.

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;

Nyathappa | Thirumalappa (defendant No.1) _______________________|______________________ | | | Nyatharaju Venkatesha Gangaraju (Plaintiff No.1) (Plaintiff No.2) (Plaintiff No.3)

4. The present plaintiffs are the children of one

Thirumalappa, who is defendant No.1. The present suit is

filed by three sons against their father, who is arrayed as

defendant No.1 and transferee, who is arrayed as defendant

No.2. The plaintiffs have sought relief of partition by seeking

declaration to declare that the sale deed executed by their

father - defendant No.1 on 23.01.1982 in favour of

defendant No.2 is not binding on their legitimate share. It is

alleged in the plaint that defendant No.1 is addicted to

vices. Therefore, the alienation made by defendant No.1 in

favour of defendant No.2 would not take away the legitimate

share of the plaintiffs in suit schedule properties. The

plaintiffs also specifically contended that the suit schedule

properties are joint family ancestral properties and that they

are in joint possession and enjoyment. On these set of

pleadings, the plaintiffs prayed for decreeing suit by

granting their legitimate share in the suit schedule

properties.

5. On receipt of summons, defendant No.1, who is

the father of plaintiffs and vendor of defendant No.2, filed

written statement and admitted the entire averments made

in the plaint and prayed to decree the suit.

6. Defendant No.2 - Transferee contested the

proceedings and stoutly denied the entire averments made

in the plaint. Defendant No.2 contended that the present

suit for partition is barred by limitation and specifically

contended that at the time of alienation, the plaintiffs were

not born and therefore, the alienation is much prior to the

birth of all three sons i.e., the plaintiffs herein. On these set

of defences, sought for dismissal of the suit.

7. Plaintiffs and defendant No.2 to substantiate their

respective claims have led in oral and documentary

evidence. The Trial Court having examined the oral and

documentary evidence and also pleadings of the parties,

answered issue No.1 partly in the Affirmative and issue No.2

in the Affirmative. The Trial Court for want of documentary

evidence relating to actual age of the plaintiffs, however,

proceeded to hold that plaintiffs were born post alienation

made by defendant No.1 in favour of defendant No.2.

Therefore, the Trial Court was of the view that if plaintiffs

were not born, then the sale deed executed by defendant

No.1 in favour of defendant No.2 is valid and therefore, the

plaintiffs cannot maintain the present suit for partition.

However, the issue relating to the legal necessity was

answered against defendant No.2. The plea of limitation

raised by defendant No.2 was answered in the negative. On

these set of reasonings, the Trial Court proceeded to dismiss

the suit by recording a finding that the alienation was much

prior to the birth of three sons and therefore, the plaintiffs

have no locus to question the alienation.

8. Feeling aggrieved by the judgment and decree of

the Trial Court, the plaintiffs preferred an appeal before the

Appellate Court. The Appellate Court having assessed the

entire evidence on record was not inclined to accept the

additional documents produced by the plaintiffs relating to

actual age of the plaintiffs. The Appellate Court having

assessed the oral and documentary evidence proceeded to

concur with the findings and conclusions recorded by the

Trial Court. Therefore, the Appellate Court was of the view

that plaintiffs have not produced any documentary evidence

indicating their exact age. Referring to the age of plaintiff

Nos.1 and 2, the Appellate Court has declined to accept the

claim made by the plaintiffs in regard to their age.

Referring to the evidence on record, Appellate Court found

that age of P.W.2 is 35 years as on 04.07.2007. The

Appellate Court expressed doubt in regard to actual age of

the plaintiffs. Referring to the age of the mother, the

Appellate Court doubted the documents produced by way of

additional evidence and declined to accept the claim made

by the plaintiffs. Therefore, the Appellate Court was of the

view that plaintiff Nos.1 and 2 were born post alienation and

therefore, they had no locus to question the alienation.

Consequently, the appeal is dismissed. These concurrent

findings are under challenge.

9. Heard learned counsel appearing for the plaintiffs

and learned counsel appearing for defendant No.2.

10. The plaintiffs are questioning the alienation made

by their father - defendant No.1 in favour of defendant

No.2. The sale deed is dated 23.01.1982 while the present

suit is filed on 21.02.2005. Though the plaintiffs right has

to be examined under Article 109 of the Limitation Act,

however, this Court is of the view that the pleadings at para

No.2 of the plaint would clinch the entire controversy

between the parties. Therefore, I am of the view that para

No.2 of the plaint needs to be looked into and therefore, the

same is culled out, which reads as under;

"2. The property detailed at the foot of the plaint is ancestral and joint undivided family property of the plaintiffs and 1st defendant. Originally, the suit schedule property is belongs grand father of the plaintiffs. The plaintiffs are brothers are all sons of 1st defendant. The 1st defendant is the Manager of the joint family of the plaintiffs. The plaintiffs and 1st defendant were jointly cultivated the suit schedule property and they raised various crops in every year, the plaintiffs and 1st defendant are constituted joint Hindu undivided family, they are continuously cultivating the suit schedule property till today. The suit schedule property is not divided between the plaintiffs and 1st defendant by metes and bounds."

11. On meticulous examination of the averments

made in para No.2 of the plaint, it becomes clearly evident

that plaintiffs have admitted in unequivocal terms that suit

property was the absolute property of their grandfather.

If suit property was absolutely owned by their grandfather,

then without going into other significant details, which are

not relevant for complete adjudication of controversy

between the parties, then this Court is of the view that the

plaintiffs had no locus to question the alienation made by

defendant No.1. If property was admittedly owned by

Nyathappa, then after his death, defendant No.1 receives

the properties under Section 8 of the Hindu Succession Act

and not under Section 6 of the Hindu Succession Act. If a

Hindu Male receives property from his ancestors under

Section 8 of the Hindu Succession Act, then it pre-supposes

that he acquires property in his individual capacity.

Therefore, it becomes his self acquired property as held by

the Hon'ble Apex Court in the case of COMMISSIONER OF

WEALTH TAX V. CHANDER SEN1 and in the case of

YUDISHTIR V. ASHOK KUMAR2.

1986(3) SCC 567

1987(1) SCC 204

12. The Hon'ble Apex Court has held that the

grandchildren cannot assert right in a property left behind

by their grand father during the life time of their father.

Therefore, in the present case on hand, if Nyathappa died

intestate, the property would absolutely devolve upon

defendant No.1 and therefore, he had every right to meddle

with the property in the manner he chooses to. Therefore,

the plaintiffs, who had admittedly, no birth rights and the

present case on hand does not fall within the domain of

Section 6 of the Hindu Succession Act, this Court is of the

view that the concurrent findings recorded by Courts below

in dismissing the suit does not suffer from any serious

infirmities and therefore, does not give rise to any

substantial question of law.

13. This Court is also compelled to take judicial note

of the fact that alienation is challenged after 23 years.

Admittedly the plaintiffs and the defendants are

agriculturists and the alienation is of the year 1982.

Defendant No.2, after verifying the records, has purchased

the suit property under registered sale deed dated

23.01.1982. The manner in which defendant No.1 has

contested the proceedings, in fact, clearly gives an

indication that the plaintiffs have made feeble attempt to lay

a false claim by filing the present suit for partition. Though

the findings recorded by both Courts on legal necessities

appears to be erroneous and contrary to the ratio laid down

by this Court in the case of SMT.CHANNABASAVVA AND

OTHERS VS. SMT.GOURAWWA AND OTHERS passed in

RSA No.822/2013, I am of the view that no substantial

question of law arises for consideration in this appeal.

If both Courts have concurrently held that the plaintiffs were

born post alienation made by defendant No.1, then these

concurrent findings cannot be re-assessed by revisiting the

evidence on record, which is not permissible under Section

100 of CPC., The order passed by the Appellate Court in

rejecting the application filed under Order 41 Rule 27 of CPC

does not warrant any interference at the hands of this

Court. In absence of specific pleadings, the plaintiffs in all

probabilities have gambled and have tried to change their

version only to suit their convenience and the said attempt

made by the plaintiffs is rightly rejected by the Appellate

Court.

In the light of the discussions made supra, this Court

is the view that no substantial question of law arises for

consideration. Accordingly, the appeal is dismissed.

In view of dismissal of the appeal, pending

interlocutory applications, if any, do not survive for

consideration and accordingly, they are dismissed.

Sd/-

JUDGE

NBM