Karnataka High Court
Sri Mudiyanna vs Smt Shailamma @ Shailaza on 10 March, 2023
Bench: H.P.Sandesh
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RSA No. 1451 of 2017
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 10TH DAY OF MARCH, 2023
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.1451 OF 2017 (PAR)
BETWEEN:
1. SRI MUDIYANNA,
S/O PARVATHALALLI,
AGED ABOUT 56 YEARS.
2. SRI MAHESHA,
S/O MUDIYANNA,
AGED ABOUT 20 YEARS.
BOTH ARE R/AT MALLURAHALLY,
CHALLAKERE TALUK - 577522,
CHITRADURGA DISTRICT.
...APPELLANTS
(BY SRI B.M. SIDDAPPA, ADVOCATE)
Digitally signed
by SHARANYA T AND:
Location: HIGH
COURT OF 1. SMT. SHAILAMMA @ SHAILAZA,
KARNATAKA
W/O LATE SURESH,
AGED ABOUT 23 YEARS,
RESIDING AT MALLURAHALLY,
CHALLAKERE TALUK - 577522,
AT PRESENT RESIDING AT
VADDARASIDDAVVANAHALLY,
CHITRADURGA TALUK - 577501.
2. SRI PRAJWAL,
S/O LATE SURESH,
AGED ABOUT 1½ YEARS,
SINCE MINOR REPRESENTED BY
HIS MOTHER AS NEXT FRIEND
SMT SHAILAMMA (RESPONDENT NO.1).
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RSA No. 1451 of 2017
3. SMT. SUMITHRAMMA @ SUJATHA,
W/O PALANNA,
AGED ABOUT 28 YEARS,
RESIDING AT KUNABEVU VILLAGE,
TURUVANUR VILLAGE,
CHITRADURGA TALUK AND DIST-577501.
4. SMT. GEETHAMMA,
W/O SURESH
AGED ABOUT 26 YEARS,
RESIDING AT THALAK VILLAGE,
CHALLAKERE TALUK-577522,
CHITRADURGA DISTRICT.
5. LAKSHMI,
D/O MUDIYANNA,
AGED ABOUT 20 YEARS,
RESIDING AT MALLURHALLI,
CHALLAKERE TALUK-577522,
CHITRADURGA DISTRICT.
...RESPONDENTS
(BY SRI SPOORTY HEGDE N, ADVOCATE FOR R1,
R2 MINOR REPRESENTED BY R1,
R3 TO R5 ARE SERVED AND UNREPRESENTED)
THIS R.S.A. IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 02.08.2016
PASSED IN RA.NO.5/2016 ON THE FILE OF THE 1ST ADDL.
DISTRICT AND SESSIONS JUDGE, CHITRADURAGA, PARTLY
ALLOWING THE APPEAL FILED AGAINST THE JUDGMENT AND
DECREE DATED 17.12.2015 PASSED IN OS.NO.26/2013 ON
THE FILE OF THE SENIOR CIVIL JUDGE AND JMFC,
CHALLAKERE.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RSA No. 1451 of 2017
JUDGMENT
This matter is listed for admission today. Heard the
learned counsel for the appellants and the learned
counsel for respondent No.1.
2. This appeal is filed challenging the judgment
and decree dated 02.08.2016, passed in R.A.No.5/2016,
on the file of the I Additional District and Sessions Judge,
Chitradurga.
3. The factual matrix of the case of the plaintiffs
before the Trial Court is that defendant Nos.2 to 5 and
one Suresh are the children of defendant No.1. The said
Suresh is no more. Plaintiff No.1 is the wife and plaintiff
No.2 is the son of the deceased Suresh. It is the further
case of the plaintiffs that the suit properties are the
ancestral properties of themselves and the defendants,
wherein they have got 1/3rd share. Further, they
contended that the suit properties were fallen to the
share of defendant No.1 in a registered partition between
his brothers. After the death of Suresh, they demanded
the share of deceased Suresh in the suit properties, but
RSA No. 1451 of 2017
the defendants refused to give the share and hence the
suit is filed.
4. In pursuance of the suit summons, the
defendant Nos.1 and 2 appeared and filed the written
statement contending that the suit is bad for non-joinder
of necessary parties and also there was already a
partition in the family and except the suit schedule item
Nos.4 and 5, remaining suit schedule properties are the
self-acquired properties and hence the plaintiffs are not
entitled for any share.
5. The plaintiffs in support of their claim
examined plaintiff No.1 as P.W.1 and examined two
witnesses as P.W.2 and P.W.3 and got marked the
documents at Exs.P.1 to 8. On the other hand,
defendant No.1 examined himself as D.W.1 and got
marked the documents at Exs.D.1 to 7. The Trial Court
after considering both oral and documentary evidence
placed on record, granted 1/3rd share each in the suit
schedule 'A' and 'B' properties and ordered for separate
possession.
RSA No. 1451 of 2017
6. Being aggrieved by the judgment and decree
of the Trial Court, an appeal is filed by defendant Nos.1
and 2 in R.A.No.5/2016. The First Appellate Court on re-
appreciation of both oral and documentary evidence
placed on record, partly allowed the appeal and modified
the judgment and decree granting 1/6th share in plaint 'A'
and 'B' schedule properties. Being aggrieved by the
judgment and decree of the Trial Court and the First
Appellate Court, this appeal is filed before this Court.
7. The learned counsel for the appellants would
vehemently contend that admittedly the suit was filed in
the year 2013 and amendment to Hindu Succession Act
was brought into force in the year 2004. There was no
partition in the family of defendant No.1 i.e., between
defendant No.1 and his children and hence the finding of
the Trial Court is erroneous. Both the Courts have not
considered this aspect while passing the judgment and
decree. The defendant No.1 specifically raised the
contention that the suit schedule properties, except item
Nos.4 and 5 are the self-acquired properties of defendant
RSA No. 1451 of 2017
No.1. Inspite of it, no proper reasoning is given by the
Trial Court and the First Appellate Court. The learned
counsel would contend that the defendants specifically
pleaded with regard to loan borrowed for purchasing of
tractor as well as crop loan. Both the Courts have not
given any finding with regard to that effect. Hence, the
Court has to frame the substantial question of law
whether both the Courts are right in law decreeing the
suit of the plaintiffs in respect of all the suit schedule
properties in the absence of proof of income acquiring
the suit item Nos.1 to 3. The learned counsel would
contend that both the Courts have committed an error in
not dividing the debt incurred by defendant No.1
amongst the sharers and both the Courts committed an
error in holding that the plaintiffs are entitled for share
though the properties comes to the hands of defendant
No.1 as successor of his father. Hence, this Court has to
frame the substantial question of law.
8. Per contra, the learned counsel for respondent
No.1 would contend that both the Courts have taken note
RSA No. 1451 of 2017
of both oral and documentary evidence placed on record
and Suresh is also one of the son of defendant No.1 and
the said Suresh passed away and hence his wife and son
have filed a suit seeking the relief of partition. Though it
is contended that some of the properties are self-
acquired properties, both the Courts have given the
finding that out of the income of the family, the
properties are purchased. The learned counsel submits
that loan was borrowed in 2011-12 itself and the amount
of Rs.7 lakhs was taken and no amount was repaid,
except interest of Rs.68,797/- and so also agricultural
loan was also borrowed and the said amount was not
repaid. Hence, the question of sharing the liability also
does not arise. The learned counsel submits that with
regard to the liability is concerned, except producing the
document of notice issued by the Bank, no material is
placed before the Court and the statement of account is
in respect of Rameshwara Traders and unless the
account is furnished in detail with regard to the income
RSA No. 1451 of 2017
as well as the liability, the question of sharing the liability
does not arise.
9. Having heard the respective learned counsel
and also on perusal of the material available on record, it
is clear that the daughter-in-law of defendant No.1 has
filed a suit after the death of her husband and admittedly
no share was given in favour of the son of defendant
No.1. Both the Courts have given the finding with
regard to 'A' and 'B' schedule properties are the joint
family properties and though it is contended that some of
the properties are self-acquired properties, the Trial
Court comes to the conclusion that when other properties
are fetching income, the question of claiming that self-
acquired proerpty cannot be accepted and also no other
income except the agricultural income to purchase the
properties. It is contended in the written statement that
on 24.07.2012, before the panchayatdars Sy.No.162/P5
measuring 4 arces 38 guntas and cash of Rs.1 lakh was
given to plaintiff No.1 towards the share of the plaintiffs.
But the same has not been proved except taking the
RSA No. 1451 of 2017
defence and the same is also taken note of by the Trial
Court. The First Appellate Court while considering the
grounds urged in the appeal also taken note of the
material available on record and the evidence placed
before the Court. The defendants have also relied upon
some of the documents, particularly registered partition
deed under which defendant No.1 got the property and
also the registered partition deed dated 9.11.1990 and
registered sale deed Exs.D.3 and 4 dated 11.12.1996,
under which the properties are purchased and other
documents of the sale deed dated 30.01.1992.
10. The learned counsel for the appellants would
contend that notice issued by Pragathi Grameena Bank
clearly discloses that there were dues and admittedly
defendant No.1 was taking care of the joint family
properties and he only borrowed loan of Rs.7 lakhs, but
he did not repay the loan amount except paying the
paltry amount of interest of Rs.68,797/-. When
defendant No.1 was the kartha of the family and he had
borrowed the amount, he ought to have furnished the
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RSA No. 1451 of 2017
account with regard to the income as well as liability, but
no such material is produced except producing the notice
issued by the Pragathi Grameena Bank and statement of
account of Rameshwara Traders. The defendant No.1
has to furnish the account with regard to income as well
as liability. When such material is not placed before the
Court, merely based on the notice issued by the Bank,
the Court cannot share the liability of defendant No.1,
who has borrowed the loan and utilized the money. If he
had furnished the account, then there would have been
force in the contention of the learned counsel for the
appellants. Hence, I do not find any error committed by
both the Courts and both the Courts have given anxious
consideration to the material available on record and
appreciated the same. I do not find any perversity in the
finding of both the Courts and concurrent finding is given
by the First Appellate Court on re-appreciation of the
material and reasoning also given that defendant No.1
was the manager of the family and he was taking care of
the entire 'A' and 'B' schedule properties and the
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RSA No. 1451 of 2017
plaintiffs were not in joint possession when Suresh
contracted the marriage with plaintiff No.1. When such
material is available, I do not find any ground to admit
the appeal and frame the substantial question of law and
to invoke Section 100 of CPC.
11. In view of the discussions made above, I pass
the following:
ORDER
The appeal is dismissed.
Sd/-
JUDGE
MD
