Smt Sarojamma vs Smt Lakshmamma
2023 Latest Caselaw 6934 Kant

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                                                       NC: 2023:KHC:35952
                                                    RSA No. 1006 of 2017




                     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                          DATED THIS THE 4TH DAY OF OCTOBER, 2023

                                          BEFORE

                            THE HON'BLE MR JUSTICE H.P.SANDESH

                     REGULAR SECOND APPEAL NO.1006 OF 2017 (PAR)

                   BETWEEN:

                   SMT. SAROJAMMA
                   W/O GOVINDAPPA
                   D/O LATE MUNIYAPPA
                   AGE:51 YEARS
                   R/O AT NERALEKERE VILLAGE
                   S G KOTE POST, BANGARPET TALUK
                   KOLAR DISTRICT - 563 114
                   REP. BY HER GPA HOLDER
                   GOVINDAPPA, AGE:69 YEARS
                                                            ...APPELLANT


Digitally signed
                   (BY SRI RAGHAVENDRA A KULKARNI, ADVOCATE)
by SHARANYA T
Location: HIGH
                   AND:
COURT OF
KARNATAKA
                   SMT. LAKSHMAMMA
                   W/O VENKATARAMANAPPA
                   D/O LATE MUNIYAPPA
                   AGE:52 YEARS
                   R/O AT HAROHALLI,
                   BANGARPET TALUK
                   KOALR DISTRICT-563114
                                                          ...RESPONDENT

(BY SRI M B CHANDRA CHOODA, ADVOCATE)

NC: 2023:KHC:35952 RSA No. 1006 of 2017

THIS RSA IS FILED U/S. 100 OF CPC., AGAINST THE JUDGEMENT AND DECREE DTD: 13.02.2017 PASSED IN R.A.NO.117/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND PRINCIPAL AND JMFC, KGF AND ETC.

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

JUDGMEN T

Heard the learned counsel appearing for the

respective parties.

2. This appeal is filed against the concurrent

finding of the Trial Court as well as the First Appellate

Court. The factual matrix of the case of the plaintiff before

the Trial Court that the plaintiff and the defendant are the

legal representatives of Muniyappa and they are the joint

owners and in joint possession of the suit schedule

properties and hence, they are entitled for half share in the

suit schedule properties. The defendant appeared and filed

the written statement contending that during the lifetime

of their mother Muniyamma, she had sold 22½ guntas of

land in favour of Muniyappa out 1 acre 5 guntas. It is also

the contention of the defendant that during the lifetime of

NC: 2023:KHC:35952 RSA No. 1006 of 2017

Muniyamma, she also bequeathed the property to the

extent of 22½ guntas in her favour and item No.2 of the

suit schedule properties is her self-acquired property and

also item No.3 of the suit schedule properties was

purchased by her husband Govindappa and it is his self-

acquired property.

3. The Trial Court having considered the pleadings

of the parties framed the Issues and allowed the parties to

lead their evidence. The Trial Court after considering both

oral and documentary evidence placed on record comes to

the conclusion that the plaintiff has proved that the

property is belongs to Muniyappa and the plaintiff and

defendant are the joint owners and answered Issue Nos.1

and 2 as affirmative contending that they are entitled for

half share in the suit schedule properties and disbelieved

the contention of the defendant with regard to the selling

of the property to the extent of 22½ guntas and claiming

that item Nos.2 and 3 are the self-acquired properties of

the defendant since, no documents are produced before

NC: 2023:KHC:35952 RSA No. 1006 of 2017

the Trial Court to prove the same. Trial Court also taken

note of the material on record and also considered

Sections 67 and 68 of the Evidence Act as well as Section

63 of the Indian Succession Act and comes to the

conclusion that Will has not been proved. The Trial Court

also taken note of the admission given by DW1 and

answered Issue Nos.3 to 6 as negative and granted the

relief of partition in favour of the plaintiff in coming to the

conclusion that the plaintiff is entitled for half share in the

suit schedule properties.

4. Being aggrieved by the judgment and decree of

the Trial Court, an appeal was preferred before the First

Appellate Court. The First Appellate Court having

considered the grounds urged in the appeal and also on re-

appreciation of material on record comes to the conclusion

that the Trial Court has properly considered the material

on record, particularly, Ex.D2 which is an admitted

document under which the suit schedule properties which

have been narrated are included and comes to the

NC: 2023:KHC:35952 RSA No. 1006 of 2017

conclusion that to prove that item Nos.2 and 3 are the

self-acquired properties, no document has been proved.

Apart from that the First Appellate Court also comes to the

conclusion that the very documentary evidence of the year

1940 i.e., gift deed clearly discloses that the property

belongs to the said Muniyappa and he has received the

said property by way of gift in his favour and he died

intestate and hence, the plaintiff is entitled for half share

in the suit schedule properties and hence, dismissed the

appeal. Being aggrieved by the judgment of the First

Appellate Court, the present appeal is filed before this

Court.

5. The counsel for the appellant would vehemently

contend that both the Courts have failed to see that as per

Ex.D2, the properties are belonged to Gangamma and she

had bequeathed the same to her daughter Devamma in

respect of item No.1 only and allotted two houses, but

item Nos.2 and 3 i.e., house number and vacant sites are

not find place in the gift deed. Hence, the very approach

NC: 2023:KHC:35952 RSA No. 1006 of 2017

of both the Courts is erroneous and fails to take note that

only one property was gifted in favour of Muniyappa and

both the Courts have failed to take note that the sale deed

dated 07.12.1989 is in favour of the husband of the

appellant in respect of suit schedule item No.3 and the

plaintiff had not challenged the said sale deed. When such

being the case, both the Courts ought not to have granted

the relief of half share in favour of the plaintiff in respect of

the suit schedule properties. The counsel would

vehemently contend that both the Courts fail to take note

of the fact that Govindappa and Gram Panchayat were not

impleaded has parties to the suit since item No.3 of the

property belongs to the Govindappa as per the sale deed

dated 07.12.1989 and in the absence of those two persons

in the suit, granting the decree is erroneous and hence, it

requires interference.

6. The counsel for the respondent would

vehemently contend that it is the case of the plaintiff that

the suit schedule properties are belonged to Muniyappa

NC: 2023:KHC:35952 RSA No. 1006 of 2017

and he died intestate and not executed any testamentary

document and the said fact has been discussed in

paragraph 16 of the judgment by the Trial Court and

further submits that it is not in dispute that the document

at Ex.D2 is the gift deed executed in the year 1940 and

also not disputed the fact in respect of item No.2 and 3.

The Trial Court in detail discussed the same and comes to

the conclusion that entire suit schedule properties are

belonged to the deceased Muniyappa and he has not

alienated any property and the Trial Court comes to the

conclusion that in order to show that the mother

Muniyamma also executed the sale deed, no document is

placed and the same is also considered by both the Courts

and hence, both the Courts have not committed any error

and there is no question of framing of substantial

questions of law.

7. Having heard the learned counsel appearing for

the parties and also on perusal of the material on record, it

discloses that it is the case of the plaintiff that all the suit

NC: 2023:KHC:35952 RSA No. 1006 of 2017

schedule properties are belonged to the deceased

Muniyappa and they are the joint owners and they are in

joint possession. It is also the case of the defendant that

Muniyamma that is the mother had sold the property to

the extent of 22½ guntas in favour of one Muniyappa. It is

also the claim of the defendant that the Will was executed

by Muniyamma to the extent of 22½ guntas in favour of

the defendant and also item Nos.2 and 3 are the self-

acquired properties. But, in order to substantiate the

same, the defendant has not produced any document

before the Court. On perusal of the document at Ex.D2

which is also placed before this Court by the appellant

counsel shows that only one item of item No.1 was

bequeathed in favour of Muniyappa and not item Nos.2

and 3. The counsel for the respondent brought to notice of

this Court that even item Nos.2 and 3 were included in

document of gift deed at Ex.D2. On perusal of Ex.D2, it

discloses that there is a narration that item No.1 along

with item Nos.2 and 3 of the properties were also included

in the gift deed. These factors also were also taken note

NC: 2023:KHC:35952 RSA No. 1006 of 2017

of by the Trial Court i.e., house property and also vacant

site and there is a reference in the document of Ex.D2 and

the same is not disputed. When such being the material on

record, both the Courts have considered the material on

record in a proper perspective. The oral evidence and the

documentary evidence also taken note of by both the

Courts and answered Issue Nos.1 and 2 separately with

regard to the claim of the plaintiff is concerned and also

with regard to the claim of the defendant is concerned,

Issue Nos.3 to 6 are also considered separately and an

observation is made that though the defendant took the

specific plea of sale of the property, no such sale deed is

produced before the Trial Court. When the

defendant/appellant has not substantiated the claim before

the Trial Court as well as the First Appellate Court, I do not

find any grounds to admit the appeal and to frame the

substantial questions of law. Unless any perversity is found

in the judgment of both the Courts, the question of

framing the substantial questions of law does not arise.

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NC: 2023:KHC:35952 RSA No. 1006 of 2017

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

the following:

ORDER

The appeal is dismissed.

Sd/-

JUDGE

SN