H D Nethravathi vs Guramma
2023 Latest Caselaw 6901 Kant

                                               -1-
                                                         NC: 2023:KHC:35639
                                                        RSA No. 928 of 2021




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 3RD DAY OF OCTOBER, 2023

                                             BEFORE

                             THE HON'BLE MR JUSTICE H.P.SANDESH

                         REGULAR SECOND APPEAL NO.928 OF 2021 (PAR)

                   BETWEEN:

                   1.    H.D. NETHRAVATHI
                         AGED ABOUT 28 YEARS
                         D/O H.N. DUGGAPPA

                   2.    H.D. NINGESH
                         AGED ABOUT 32 YEARS
                         S/O H.N. DUGGAPPA

                         BOTH ARE RESIDING
                         AT D.NO.209/239
                         YARAGUNTE VILLAGE
                         DAVANAGERE TQ AND
                         DISTRICT-577 001.
                                                              ...APPELLANTS
Digitally signed
by SHARANYA T                  (BY SRI S.P.SHRUTHI, ADVOCATE FOR
Location: HIGH                 SRI VINAYA KEERTHY M., ADVOCATE)
COURT OF           AND:
KARNATAKA

                         GURAMMA
                         AGED ABOUT 59 YEARS
                         W/O H.N.DUGGAPPA
                         SINCE DEAD BY LRS

                   1.    H.N. DUGGAPPA
                         AGED ABOUT 62 YEARS
                         S/O NINGAPPA
                            -2-
                                      NC: 2023:KHC:35639
                                     RSA No. 928 of 2021




2.   PRAKASH
     AGED ABOUT 44 YEARS
     S/O H.N. DUGGAPPA

     SL. NOS.1 AND 2 ARE
     RESIDING AT D.NO.209/239
     YARAGUNTE VILLAGE
     DAVANAGERE TQ AND
     DISTRICT-577 001.

3.   SHAH LALITH KUMAR
     AGED ABOUT 56 YEARS
     S/O KAPOORCHAND JODAJI

4.   SHAH ASHOK KUMAR
     AGED ABOUT 62 YEARS
     S/O KAPOORCHAND JODAJI

     SL. NOS.3 AND 4 ARE
     RESIDING AT NO.27/1
     VIJAYALAKSHMI ROAD
     DAVANAGERE-577 001.
                                         ...RESPONDENTS

      THIS RSA IS FILED UNDER SECTION 100 R/W ORDER 42
RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED
01.02.2019   PASSED IN RA.No.16/2018 ON THE FILE OF THE
III ADDITIONAL SENIOR CIVIL JUDGE AND JMFC, DAVANGERE,
DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT
AND DECREE DATED 06.10.2015 PASSED IN OS.No.8/2011 ON
THE FILE OF THE PRINCIPAL CIVIL JUDGE, DAVANGERE.


      THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
                                   -3-
                                              NC: 2023:KHC:35639
                                             RSA No. 928 of 2021




                          JUDGMENT

This matter is listed for admission.

I have heard the learned counsel for the appellants.

2. The case of the plaintiffs before the Trial Court that

the plaintiffs No.1 and 2 and defendants No.1 to 3 have

constituted the joint family and schedule property is joint family

property of defendants No.1 to 3 and hence they are entitled

for a share in the suit schedule property and also entitled for

relief of permanent injunction.

3. Defendants 4 and 5 are the purchasers of the suit

schedule property. They contend that they are the bonafide

purchasers for the value of the suit schedule property and the

same is purchased from defendant No.1. The Trial Court

allowed both the parties to lead their evidence and accordingly

plaintiff No.1 is examined before the Trial Court as PW1 and

also examined one witness as PW2. On the other hand,

defendant No.5 is examined as DW1 and produced documents

Exs.D1 to D8(a). Plaintiffs relied upon only Exs.P1 and P2 sale

deeds. The Trial Court having considered the material on record

answered issue No.1 as affirmative that they are the joint

NC: 2023:KHC:35639 RSA No. 928 of 2021

family members and answered issue Nos.2 and 3 as negative in

coming to the conclusion that schedule property is not a joint

family property as contended by the plaintiffs and also not

entitled for any share in the property since, property standing

in the name of defendant No.1 and defendant No.1 had sold the

same and also taken note of the fact that sale consideration

was fixed as Rs.4,20,000/- and all of them were residing in the

said house subsequently as tenants and also taken note of

availment of loan of Rs.2,44,999/- by defendant No.1 from

Divan Finance Corporation, Davanagere to purchase the

schedule property and the fact of exclusive ownership of

defendant No.1 over the suit schedule property.

4. PW1 further pleaded ignorance in respect of the fact

of admission of loan of Rs.2,56,369/- by defendant No.4 to the

said findings and also remaining balance of sale consideration

to defendant No.1 in cash and denied the fact of filing of

collusive suit and having considered the admission, dismissed

the suit. Being aggrieved by the said judgment, an appeal is

filed before the First Appellate Court, the same is numbered as

R.A.No.16/2018 and the First Appellate Court on

reconsideration of both oral and documentary evidence as well

NC: 2023:KHC:35639 RSA No. 928 of 2021

as the grounds urged in the appeal memo taken note of Section

14 of Hindu Succession Act, 1956 and taken note of the fact

that in order to purchase the property, loan was availed by

defendant No.1 and the same as cleared by defendant No.4 and

comes to conclusion that, suit schedule property is not the joint

family property and also taken note of the fact that defendants

No.4 and 5 are the bonafide purchasers and the suit schedule

property belongs to them and comes to the conclusion that it

does not requires any interference. Being aggrieved by the said

finding of the Trial Court as well as the First Appellate Court,

the present second appeal is filed by the appellants/plaintiffs.

5. The counsel appearing for the appellants would

vehemently contend that the plaintiffs were not aware of the

said transaction and the mother is also house wife and she is

not having any income of her own to purchase the property and

the same is not the absolute property of the mother and she

cannot sell the property to defendants No.4 and 5 and these

are the aspects have not been taken note of by the Trial Court

as well as the First Appellate Court and DW1 clearly admitted

that he did not possess any document to show that suit

schedule property was purchased out of the earnings of

NC: 2023:KHC:35639 RSA No. 928 of 2021

defendant No.1. When such admission was given by DW1 and

the same ought to have been appreciated in a proper

perspective. The counsel also vehemently contend that both the

Courts erred in not considering the oral and documentary

evidence particularly Exs.P1 and P2- sale deeds which clearly

demonstrate that suit schedule property is the joint family

property and committed an error in coming to the conclusion

that defendants No.4 and 5 are the bonafide purchasers and

hence, this Court has to frame substantial question of law that

defendant No.1 was not having any exclusive right to sell the

property.

6. Having heard the appellants' counsel and also on

perusal of material, it is the specific case of defendants No.4

and 5 that they are the bona fide purchasers of the property

belongs to defendant No.1 and the same was standing in her

name at the time of purchase of the property. Admittedly, the

suit schedule property is the house property, same is situated

at Yaragunte Village, Davanagere Taluk and the fact that they

are living together is also not in dispute and even after selling

the property also they continued in the said house by executing

NC: 2023:KHC:35639 RSA No. 928 of 2021

rent agreement at the rate of Rs.4,000/- per month i.e. also for

a period of three months and though plaintiffs contended that

the property was purchased out of the joint nucleus and when

the question was put to the witness PW1 that an amount of

Rs.2,56,369/- was paid by defendant No.4 to the said finance

and loan amount was also availed from finance by defendant

No.1 and the said suggestion was denied expressing her

ignorance and it is admitted in the evidence that, loan was

availed to the tune of Rs.2,44,999/- by defendant No.1 from

Divan Finance Corporation, Davanagere while purchasing the

property. When such being the case, nothing is placed on

record that the property is purchased out of the joint nucleus

and the very material is clear that the amount was paid by

defendant No.1 by clearing the loan when the property was

sold and both the Trial Court and the First Appellate Court

taken note of this aspect into consideration. When such being

the case, the very contention of the appellants counsel that the

plaintiffs were not having any knowledge about the sale and

the mother was not having any exclusive right, cannot be

accepted, when the transaction between defendant No.1 before

purchasing the property and subsequently the amount was also

NC: 2023:KHC:35639 RSA No. 928 of 2021

paid to defendant No.4 to clear the loan and these aspects

have been considered by the Trial Court as well as the First

Appellate Court and hence, I do not find any ground to admit

and frame any substantial question of law and the very

contention of the appellants' counsel that defendant No.1 was

not having any exclusive right to sell the property, cannot be

considered, considering both oral and documentary evidence

available on record and the same also properly appreciated by

Trial Court and the First Appellate Court and not found any

perversity in the reasoning of the Trial Court as well as the First

Appellate Court and hence, Section 100 of CPC cannot be

invoked.

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

following:

ORDER

Second appeal is dismissed.

Sd/-

JUDGE AP