Smt Pushpalatha vs Sri M V Veere Gowda
2023 Latest Caselaw 6939 Kant

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                                                        NC: 2023:KHC:35953
                                                      RSA No. 1943 of 2021




                        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.1943 OF 2021 (PAR)

                   BETWEEN:

                   1.    SMT. PUSHPALATHA
                         AGED 38 YEARS,
                         D/O VEERE GOWDA

                   2.    SMT. SHILPA
                         AGED 33 YEARS,
                         D/O VEERE GOWDA

                   3.    S V PRABHA
                         AGED 32 YEARS,
                         D/O VEERE GOWDA
Digitally signed
by SHARANYA T      4.    M N KALA
Location: HIGH           AGED 32 YEARS,
COURT OF
KARNATAKA                D/O M S NAGARAJA REDDY

                         ALL ARE R/AT MELUR VILLAGE
                         JANGAMAKOTE HOBLI
                         SIDLAGHATTA TALUK-562102


                                                            ...APPELLANTS
                   (BY SRI PRAVEEN KUMAR K N, ADVOCATE)
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                                     NC: 2023:KHC:35953
                                 RSA No. 1943 of 2021




AND:

     SRI M V VEERE GOWDA
     AGED ABOUT 64 YEARS,
     S/O S V VENKATARAMANAPPA

     [NOTE. THE ABOVE RESPONDENT IS DIED AFTER
     THE JUDGMENT OF RA.42/2016 i.e., ON
     23.06.2021 AND HIS LRS ARE ALREADY ON
     RECORD i.e., PETITIONER NO.1 TO 3 HEREIN.]
     SINCE DEAD REP BY APPELLANT NO.1, 2, 3 AND
     RESPONDENT NO.1

1.   SMT. LAKSHMAMMA
     AGED ABOUT 55 YEARS,
     W/O M V VEERE GOWDA

     M S NAGARAJA REDDY
     AGED ABOUT 58 YEARS,
     S/O S V VENKATARAMANAPPA

2.   ARUNAMMA
     AGED ABOUT 52 YEARS,
     W/O M S NAGARAJA REDDY

     GOVAPPA
     S/O MUNIYAPPA
     SINCE DECEASED BY HIS LRS
     RESPONDENT 3, 4, AND 5 HEREIN

3.   SMT. KALPANA
     AGED ABOUT 45 YEARS
     D/O LATE GOVAPPA

4.   SRI GOPI
     AGED ABOUT 39 YEARS,
     S/O LATE GOVAPPA
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                                          NC: 2023:KHC:35953
                                        RSA No. 1943 of 2021




5.   SRI GOUTHAM
     AGED ABOUT 34 YEARS,
     S/O LATE GOVAPPA

     ALL ARE RESIDING AT MELUR VILLAGE
     JANGAMAKOTE HOBLI
     SIDLAGHATTA TALUK-562102
     CHIKKABALLAPURA DISTRICT


                                            ...RESPONDENTS

    THIS RSA IS FILED UNDER SECTION 100 OF CPC
R/W ORDER 41 RULE 1 OF CPC AGAINST THE JUDGMENT
AND    DECREE    DATED    08.04.2021   PASSED    IN
RA.No.42/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE
AND JMFC, SIDLAGHATTA AND ETC.

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


                     JUDGMENT

This matter is listed for admission. Heard the learned

counsel appearing for the appellants.

2. The factual matrix of the case of the plaintiffs

before the trial court that the suit schedule property is an

ancestral and joint family property of the plaintiffs and

defendant Nos.1 to 4. The contention of the plaintiffs that

defendant Nos.1 and 3 have sold the said property without

NC: 2023:KHC:35953 RSA No. 1943 of 2021

any legal and family necessity and hence, the very sale

made by defendant Nos.1 and 3 is bad in law and they are

not having any absolute right to sell the property since the

said property is an ancestral and joint family property.

Defendant No.5 appeared and filed the written statement

contending that the sale is made for the legal necessity of

the family of the plaintiffs and when the property is sold

for legal necessity, the plaintiffs are not entitled for any

share.

3. The Trial Court having considered the pleading

of the parties framed the Issues and allowed the parties to

lead their evidence. Thereafter, the Trial Court considering

the material available on record comes to the conclusion

that the sale is made by the father of plaintiff Nos.1 to 3

that is defendant No.1 and the father of plaintiff No.4 i.e.,

defendant No.3 and defendant Nos.1 and 3 are the

brothers have legally alienated the suit schedule property

for family necessity and the sale was made in the year

1993 and the suit was filed in the year 2008 and the Trial

NC: 2023:KHC:35953 RSA No. 1943 of 2021

Court also taken note of the recital made in Ex.D1 - sale

deed which itself shows that the said transaction was

made for family necessity and hence, comes to the

conclusion when the property was sold by the respective

fathers of the plaintiffs in favour of the purchaser, the

plaintiffs are not entitled for the relief of partition and

thus, dismissed the suit.

4. Being aggrieved by the judgment and decree of

the Trial Court an appeal was preferred before the First

Appellate Court and the First Appellate Court considering

the grounds urged in the appeal and also on re-

appreciation of material available on record comes to the

conclusion that DW1 has not disputes the fact that the

property was originally belongs to defendant Nos.1 and 3

and they have acquired the same in the family registered

partition deed dated 15.03.1980 and since the date of

partition, defendant Nos.1 and 3 have become absolute

owners and in possession and enjoyment of the suit

schedule property. The First Appellate Court also taken

NC: 2023:KHC:35953 RSA No. 1943 of 2021

note of the fact that the property was sold in the year

1993 and thereafter revenue entries were changed in the

name of the purchaser and also taken note of the

contention of the appellants that the suit schedule

property was not at all sold for the family legal necessity.

Though the appellants took the contention that defendant

Nos.1 and 3 are addicted to the bad vices and sale deed

was created by one Anasuyamma by taking undue

advantage of the same, the appellants have not proved

the same and not examined any of the witnesses to prove

that defendant Nos.1 and 3 were addicted to the bad vices

and also taken note of the nature of the property and in

the document at Ex.D1 it is mentioned that for the family

necessity, the property is sold and the property was sold

in the year 1993 and immediately after attaining the

majority, the suit was filed by the children of defendant

Nos.1 and 3 and the said fact has been considered by the

Trial Court as well as the First Appellate Court. Apart from

that the suit was filed in the year 2008 and the sale was

made in the year 1993 i.e., prior to the Karnataka

NC: 2023:KHC:35953 RSA No. 1943 of 2021

Amendment and in the Karnataka Amendment, no doubt,

right was given to the daughters also but this sale was

taken place prior to the Karnataka Amendment which

came into force in the year 1994 and all of them married

prior to 1994 hence, I do not find any error committed by

both the Courts in dismissing the claim of the plaintiffs. In

the absence of any perversity in the findings of both the

Courts, the question of admitting the appeal and to frame

the substantial question of law does not arise. Hence, no

grounds are made out by the appellants in the appeal to

invoke Section 100 of CPC.

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

the following:

ORDER

The appeal is dismissed.

Sd/-

JUDGE

SN