Smt. Rathnamma vs Smt. Mamatha. K
2023 Latest Caselaw 7202 Kant

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                                                          NC: 2023:KHC:37117
                                                        RSA No. 1539 of 2021




                        IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                           DATED THIS THE 11TH DAY OF OCTOBER, 2023

                                            BEFORE

                              THE HON'BLE MR JUSTICE H.P.SANDESH

                        REGULAR SECOND APPEAL NO. 1539 OF 2021 (PAR)

                   BETWEEN:

                   1.    SMT. RATHNAMMA
                         W/O LATE VIJAYAKUMAR,
                         AGED ABOUT 35 YERS,
                         HOUSE WIFE,
                         CHANNESHPURA VILLAGE,
                         MADAL POST,
                         CHANNAGIRI TALUK,
                         DAVANAGERE DISTRICT.
                                                                ...APPELLANT

                        (BY SRI HIREMATHAD MAHESHIAH RUDRAYYA, ADVOCATE)

                   AND:

                   1.    SMT. MAMATHA K.,
Digitally signed
by SHARANYA T            W/O RAJU D,
Location: HIGH           AGED ABOUT 40 YEARS,
COURT OF                 HOUSE WIFE,
KARNATAKA
                         RESIDNG AT BASAVANAHALLI VILLAGE,
                         HONNALI TALUK
                         DAVANGERE DISTRICT.

                   2.    SMT. CHANDRAMMA
                         W/O LATE NAGARAJAPPA,
                         AGED ABOUT 65 YEARS,
                         HOUSE WIFE,
                         CHANNESHPURA VILLAGE,
                         MADAL POST, CHANAGIRI TALUK,
                         DAVANAGERE DISTRICT.
                                                             ...RESPONDENTS
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                                            NC: 2023:KHC:37117
                                         RSA No. 1539 of 2021




     THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 30.01.2020
PASSED IN R.A.NO.55/2018 ON THE FILE OF THE SENIOR
CIVIL JUDGE AND JMFC, CHANNAGIRI,      DISMISSING THE
APPEAL AND CONFIRMING THE JUDGMENT AND DECREE
DATED 27.08.2018 PASSED IN O.S.NO.92/2015 ON THE FILE
OF THE ADDITIONAL CIVIL JUDGE AND JMFC, CHANNAGIRI.

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

                          JUDGMENT

This matter is listed for admission and I have heard the

learned counsel for the appellant.

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

the Trial Court is that the plaintiff is the only daughter of

defendant No.1 and late Nagarajappa. The second defendant is

the wife of late Vijayakumar, who was the brother of the

plaintiff. Vijayakumar died on 15.08.2008. Subsequent to his

death, his father late Nagarajappa was looking after the affairs

of joint family and he was the kartha, he also died on

22.03.2011 by leaving behind his wife, first defendant and

plaintiff. During the life time of Nagarajappa, Vijayakumar and

the plaintiff constituted Hindu Undivided joint family. The

plaintiff was married in the year 1993, despite of her marriage

she is coparcener of the joint family of Nagarajappa. After the

NC: 2023:KHC:37117 RSA No. 1539 of 2021

death of kartha of the family Nagarajappa, the plaintiff entitled

for 1/3rd share in the suit schedule properties along with

defendants. After the death of Nagarajappa and Vijayakumar,

the plaintiff demanded her share to the defendants, but they

were postponing the same for the one or the other reason and

without any other option, filed the suit by causing legal notice.

3. On service of notice, the defendants appeared

through their counsel and defendant No.2 filed her written

statement and defendant No.1 adopted the same. The

defendants admitted the relationship and the nature of

properties. It is contended that the plaintiff has married in the

year 1993. At the time of marriage of the plaintiff, her father

Nagarajappa had given Rs.3,00,000/- and 150 grams gold to

the plaintiff instead of property. Till then, she has been

residing with her husband. In fact, late Nagarajappa had

borrowed loan of Rs.4,72,000/- for her marriage from ICICI

Bank, Rs.3,00,000/- from Suresh Rao, S/o. Nagaraj Rao and

Rs.90,000/- from Tumkos Channagiri by pledging item No.2 of

the suit property. Even after death of Nagarajappa, the

defendants cannot repay the loan amount, because of the

financial difficulties. It is further contended that if the Court

NC: 2023:KHC:37117 RSA No. 1539 of 2021

comes to the conclusion to decree the suit, the plaintiff is also

liable to discharge the said loan amount.

4. The Trial Court having considered the material on

record, allowed the parties to lead evidence and the plaintiff

was examined as P.W.1 and got marked the documents as

Exs.P1 to P11. On the other hand, the defendant No.2 was

examined as D.W.1 and got marked the documents as Exs.D1

and D2 and not placed any material for having borrowed the

loan and to evidence the fact that loans are not paid and the

defendants are liable to pay the liability of the father and

relationship is admitted and nature of property is also admitted.

Hence, the Trial Court granted 1/3rd share to the plaintiff.

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

filed before the First Appellate Court in R.A.No.55/2018 and the

First Appellate Court reassessed the material on record and

formulated the point whether the Trial Court was incorrect in

coming to a conclusion that plaintiff was entitled to 1/3rd share

in the suit schedule properties and whether the judgment and

decree passed by the Trial Court is liable to be interfered with

or not. The First Appellate Court also reconsidered the material

NC: 2023:KHC:37117 RSA No. 1539 of 2021

on record and comes to the conclusion that plaintiff is entitled

for 1/3rd share and the judgment and decree of the Trial Court

not requires any interference. The Trial Court also comes to the

conclusion that though the defendants took the contention that

they are liable to pay the liability of the father, not placed any

material, in order to substantiate the contention and dismissed

the suit. Being aggrieved by the said judgment and decree of

the Trial Court, present appeal is filed.

6. Learned counsel for the appellant would vehemently

contend that both the Courts committed an error in considering

the material on record and not taken note of the fact that the

suit schedule properties were more than the pecuniary

jurisdiction limit of the Trial Court and the First Appellate Court

also not considered the same and hence, this Court has to

admit the appeal and frame substantial question of law. The

Trial Court and the First Appellate Court also failed to consider

the material on record and without considering the liabilities on

the suit schedule properties, granted the relief of partition.

Hence, it requires interference of this Court.

7. Having heard the learned counsel for the appellant

and also on perusal of the material available on record, though

NC: 2023:KHC:37117 RSA No. 1539 of 2021

the defendants took the contention that the loan is borrowed

from the bank as well as different persons, in order to

substantiate the same, no material is placed before the Court

and even though the documents of Exs.D1 and D2 are

produced, the same are Encumbrance Certificate and Valuation

Slip issued by the Sub-registrar and no document is produced

with regard to the liability is concerned and when no material is

placed before the Trial Court with regard to the liability, the

question of admitting the appeal and framing substantial

question of law does not arise. Hence, I do not find any ground

to admit the appeal and frame any substantial question of law.

Accordingly, the appeal is dismissed. In view of dismissal

of appeal, I.As., if any do not survive for consideration and the

same stand disposed of.

Sd/-

JUDGE

ST