Sri Chikkanna vs Smt Kamalamma
2023 Latest Caselaw 528 Kant

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       IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 9TH DAY OF JANUARY, 2023

                           BEFORE

           THE HON'BLE MR. JUSTICE H.P. SANDESH

                   R.S.A.NO.924/2022 (PAR)

BETWEEN:

1.     SRI CHIKKANNA,
       S/O LATE HANUMAIAH,
       AGED ABOUT 58 YEARS,
       R/A APPAIAHNAPALYA,
       KORA HOBLI-572128,
       TUMAKURU TALUK AND DISTRICT.

2.     SMT. PUTTACHANNAMMA,
       W/O RAMAIAH,
       AGED ABOUT 68 YEARS,
       R/A DURGADANAGENAHALLI VILLAGE,
       URDIGERE HOBLI-572140.
       TUMAKURU TALUK AND DISTRICT.

3.     SMT. KAMAKKA,
       W/O SIDDAPPA,
       AGED ABOUT 66 YEARS,
       R/A GATLAHALLI VILLAGE,
       C.N. DURGA HOBLI-572129.
       KORATAGERE TALUK
       TUMKURU DISTRICT.
                                              ...APPELLANTS

            (BY SRI V.B. SIDDARAMAIAH, ADVOCATE)

AND:

1.     SMT. KAMALAMMA,
       W/O HANUMANTHARAYAPPA,
       D/O LATE HANUMAIAH,
       AGED ABOUT 48 YEARS,
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      R/A URDIGERE HOBLI,
      TUMAKURU TALUK AND DISTRICT.

2.    SRI CHIKKAMANI,
      W/O SHIVANNA,
      D/O LATE HANUMAIAH,
      AGED ABOUT 43 YEARS,
      R/A OBALAPURA,
      KORA HOBLI-572140.
      TUMAKURU TALUK AND DISTRICT.

3.    SMT. THIMMAKKA,
      W/O LATE HANUMAIAH,
      AGED ABOUT 73 YEARS,
      R/A APPAIAHNAPALYA,
      KORA HOBLI-572201.
      TUMAKURU TALUK AND DISTRICT.
                                                  ...RESPONDENTS

      THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC, AGAINST
THE JUDGMENT AND DECREE DATED 19.02.2022 PASSED IN
RA.NO.277/2019 ON THE FILE OF THE VII ADDITIONAL DISTRICT
JUDGE, TUMAKURU, DISMISSING THE APPEAL AND CONFIRMING
THE JUDGMENT DECREE DATED 20.11.2019 PASSED IN
O.S.NO.284/2016 ON THE FILE OF THE II ADDITIONAL SENIOR
CIVIL JUDGE AND JMFC, TUMAKURU.

    THIS R.S.A. COMING ON FOR ADMISSION THIS DAY, THE
COURT DELIVERED THE FOLLOWING:

                         JUDGMENT

This matter is listed for admission today. Heard the

learned counsel for the appellants.

2. This appeal is filed challenging the judgment and

decree dated 19.02.2022, passed in R.A.No.277/2019, on the

file of the VII Additional District Judge, Tumakuru.

3. The factual matrix of the case of the plaintiffs before

the Trial Court is that they are the daughters of one Hanumaiah

@ Hanumappa through the second wife Thimmakka who has

been arraigned as defendant No.1. Defendant No.2 is the son of

Hanumaiah @ Hanumappa through the first wife and defendant

Nos.3 and 4 are daughters of Hanumappa @ Hanumaiah through

first wife and claimed that the suit schedule properties are the

joint family properties and they sought for an order to grant a

decree for granting 1/6th share in each of the item Nos.1 to 5

properties. The defendants in the written statement contend

that the property at item Nos.1, 3 and 4 was sold to one

Mohammed Akbar Saheb on 12.01.1961 and item No.2 was sold

to one Narasimhaiah on the very same day and the said

properties are re-purchased by defendant No.2 on 03.06.1975

and 03.01.1977 and also claimed that item No.5 house property

was independently purchased by defendant No.2. The plaintiffs

in order to prove their case examined plaintiff No.1 as P.W.1 and

got marked the documents at Exs.P.1 to 6. On the other hand,

the wife of Hanumaiah examined herself as D.W.1 and examined

one witness as D.W.2 and got marked the documents at Exs.D.1

to 10. The Trial Court after considering both oral and

documentary evidence placed on record comes to the conclusion

that the suit properties are joint family properties and the

plaintiffs are entitled for 1/6th share each in item Nos.1 to 4 only.

The Trial Court also comes to the conclusion that though

defendant No.2 contend that he had purchased the property

independently, but source of income for having purchased the

property has not been proved. The said finding is challenged in

R.A.No.277/2019 by defendant No.2.

4. The main contention of defendant No.2 before the

Appellate Court is that the Trial Court committed an error in

granting share in coming to the collusion that the properties

belong to Hanumaiah and defendant No.2 had not placed any

documents for having purchased the property. The First

Appellate Court on re-appreciation of both oral and documentary

evidence placed on record, formulated the points that whether

the Trial Court committed an error in granting share in respect of

item Nos.1 to 4 properties and also considered the application

filed under Order 41 Rule 27 of CPC for additional evidence filed

by the appellant. Having considered the material on record i.e.,

documents which have been produced as additional evidence

and material on record, answered both the points in the negative

and dismissed appeal. Hence, the present appeal is filed by

defendants before this Court.

5. The main contention of the learned counsel for the

appellants is that the First Appellate Court has committed an

error in not considering I.A. filed under Order 41 Rule 27 of CPC

for producing the additional evidence and also committed an

error in confirming the judgment of the Trial Court and failed to

take note of item Nos.1 to 4 was sold by the father and

grandfather of the plaintiffs through sale deed dated 12.10.1961

and those properties were purchased by defendant No.2 in the

year 1975 and 1977. The very approach of the First Appellate

Court and the Trial Court that defendant No.2 has not produced

any documents before the Court for he was having source of

income to re-purchase the property is erroneous and failed to

appreciate that there is a joint family income to purchase the

property and it requires interference of this Court to frame

substantial question of law regarding rejection of the application

and finding of both the Courts which amounts to perversity.

6. Having heard the learned counsel for the appellants

and also on perusal of the material available on record, it is not

in dispute the originally the property belonged to Hanumaiah and

also it is not in dispute with regard to the relationship between

the parties. The said Hanumaiah had two wives and through

first wife and second wife, the parties are born to them.

However, it is the main contention that the properties were sold

by the father in the year 1961, both item Nos.1, 3 and 4 and 2

in favour of Mohammed Akbar Saheb as well as Narasimhaiah,

but the property was re-purchased by defendant No.2 on

03.06.1975 and 03.01.1977 in terms of two sale deeds. But the

very contention of the defendant in the written statement before

the Trial Court is that it is the independent property of defendant

No.2 and in order to substantiate that he was having source of

income to purchase the property, he has not placed any

material. When defendant No.2 contend that it was the self-

acquired property of him, he has to prove the very source of

income and the person who asserts that the property belongs to

him, he has to prove that those properties are purchased by him

out of his own income and nothing is placed on record before the

Court even though defence was taken to substantiate his

contention that it was the independent property of defendant

No.2. The Trial Court having taken note of the material on

record, when the defendant failed to prove his case that it was

the independent property, answered issue Nos.4 and 5 in the

negative. But comes to the conclusion that the plaintiffs are

entitled for the relief of 1/6th share each in the suit schedule

item Nos.1 to 4 properties.

7. The First Appellate Court on considering the material

on record, re-appreciated the evidence of the plaintiffs and the

defendants and though grounds are urged that it was the

independent property of defendant No.2, on re-appreciation of

evidence and considering the documents under Ex.D.1 suit item

Nos.1 and 3 which had been sold to Mohammed Akbar Saheb,

the said property was purchased by defendant No.2 in the sale

deed Ex.D.3 of 1975. On the other hand, Ex.D.2 suit item No.2

had been sold to Narasimhaiah and the same was re-purchased

under Ex.D.5 not by defendant No.2, but by his father himself.

Therefore, the First Appellate Court also comes to the conclusion

that it transpires that suit item No.4 has never been sold by joint

family and hence there is no question of re-purchase of the

same. Insofar as item No.2 is concerned, it was purchased by

the father of defendant No.2 and therefore the only question to

be considered is whether suit item Nos.1 and 3 was sold under

Ex.D.1 having re-purchased by defendant No.2 under sale deed

at Ex.D.3 in his individual capacity or on behalf of entire joint

family. The said question is also answered in paragraph No.22.

Considering the evidence of D.W.1 when he admits that he has

not done any other work except agriculture, it can only mean

that re-purchase of joint family properties under Ex.D.3 in the

name of defendant No.2 was from joint family income and joint

family nucleus and therefore re-purchase was not in his

individual capacity, but on behalf of the entire joint family and

the contention of the defendants was not accepted by the

Appellate Court in the appeal.

8. The Appellate Court in paragraph No.28 discussed

with regard to the allotment of share and also comes to the

conclusion that finding of the Trial Court has not been challenged

regarding share granted by the Trial Court and answered point

No.1 in the negative and also considered Order 41 Rule 27 of

CPC considering point for consideration as point No.2 and comes

to the conclusion that documents which have been produced

before the First Appellate Court will not tilt the result and the

documents also not necessary to decide the issue between the

parties with regard to germane issue involved in the matter and

given the reasons in dismissing the application. The property

originally belonged to Hanumaiah and though it was sold and re-

purchased by the father and subsequently by defendant No.2,

defendant No.2 was not having any independent source of

income to purchase the same and the same has been considered

by the Trial Court and the First Appellate Court. Hence, I do not

find any ground to invoke Section 100 of CPC to frame

substantial question of law and the findings given by both the

Courts are not perverse. Under the circumstances, there is no

merit in the second appeal to frame substantial question of law.

9. In view of the discussions made above, I pass the

following:

ORDER

The appeal is dismissed.

Sd/-

JUDGE

MD