Karnataka High Court
Smt Seethamma vs Smt Chinnamma on 22 April, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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RSA No. 134 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 22ND DAY OF APRIL, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 134 OF 2023 (PAR)
BETWEEN:
1. SMT. SEETHAMMA
W/O LATE MALLA REDDY
AGED ABOUT 66 YEARS
R/AT NALLUR VILLAGE
BETHAMANGALA POST AND HOBLI,
BANGARPET TALUK
NOW KGF TALUK
KOLAR DISTRICT - 563 116.
2. SMT. ANUSUYAMMA
D/O LATE MALLA REDDY
W/O HANUMANTHA REDDY
AGED ABOUT 47 YEARS
R/AT KRISHNAPURA VILLAGE
SUNDARAPALYA POST
Digitally
signed by BANGARPET TALUK
SUMA B N NOW KGF TALUK - 563 116.
Location:
High Court
of Karnataka 3. SMT. PREMA
D/O LATE MALLA REDDY
W/O SRIRAMAREDDY
AGED ABOUT 45 YEARS
R/AT MOTHAKAPALLI VILLAGE
KYASAMBALLI HOBLI
BANGARPET TALUK
NOW KGF TALUK - 563 121.
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RSA No. 134 of 2023
4. SMT. PADMA
D/O LATE MALLA REDDY
W/O GOVINDA REDDY
AGED ABOUT 44 YEARS
R/AT HAPALPALLI VILLAGE
PENDEPANCHNI MANDAL
PUNGANUR TALUK
CHITTOOR DISTRICT
ANDHRA PRADESH - 517 247
5.
SRI. RUDHAKRISHNA
S/O LATE MALLA REDDY
AGED ABOUT 42 YEARS
R/AT NALLUR VILLAGE
BETHAMANGALA POST AND HOBLI
BANGARPET TALUK, NOW KGF TALUK
KOLAR DISTRICT - 563 116.
...APPELLANTS
(BY SRI. RAJESH GOWDA, ADVOCATE)
AND:
SMT CHINNAMMA
W/O LATE VENKATAREDDY
SINCE DEAD
1. SRI DURGAPRASAD
AGED ABOUT 73 YEARS
R/AT HOSABADAVANE
(NEW EXTENSION), BETHAMANGALA
BETHAMANGALA POST AND HOBLI,
BANGARPET TALUK
AND NOW KGF TALUK - 563 116.
2. SRI. P. RAJU
S/O PITCHAMUTHU
AGED ABOUT 45 YEARS
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RSA No. 134 of 2023
R/AT 5TH CROSS ROAD,
ROBERTSONPET, KGF - 563 116.
SRI. VENKATARAMAPPA
SINCE DEAD BY LRS
3. SRI. SRIMAPPA
S/O LATE VENKATARAMAPPA
AGED ABOUT 63 YEARS
R/AT ISANDRAMITTUR VILLAGE
BETHAMANGALA POST AND HOBLI,
BANGARAPET TALUK
NOW KGF TALUK - 563 116.
4. SRI. VENKATESHAPPA
S/O LATE VENKATARAMAPPA
AGED ABOUT 58 YEARS
R/AT ISANDRAMITTUR VILLAGE
BETHAMANGALA POST AND HOBI,
BANGARAPET TALUK
NOW KGF TALUK - 563 116.
5. SMT. THIMMAKKA
D/O SRI. SIDDAPPA
AGED ABOUT 50 YEARS
R/AT ISANDRAMITTUR VILLAGE
BETHAMANGALA POST AND HOBLI
BANGARAPET TALUK
NOW KGF TALUK -563 116.
6. SRI. Y. SRINIVAS
S/O YALLAPPA
AGED ABOUT 53 YEARS
R/AT BEHIND CANARA BANK
BETHAMANGALA
BANGARPET TALUK - 563 116.
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RSA No. 134 of 2023
7. SRI. KISHORE
S/O RAMACHANDRAPPA
AGED ABOUT 40 YEARS
R/AT KOLARIPET
KOLAR - 563 101.
8. SMT. K. DILLI RANI
W/O SRI. R.K. SUNDARAM
AGED ABOUT 58 YEARS
R/AT KGF MAIN ROAD
S.G. KOTE VILLAGE AND POST
KASABA HOBLI
BANGARPET TALUK - 563 114.
...RESPONDENTS
(BY SRI. NOOR UL HUSSAIN, ADVOCATE FOR C/R7)
THIS RSA IS FILED UNDER SECTION 100 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 01.10.2022
PASSED IN RA.No.38/2020 ON THE FILE OF THE III
ADDITIONAL DISTRICT AND SESSIONS JUDGE, KOLAR
(SITTING AT KGF) PARTLY ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DATED
29.02.2020 PASSED IN O.S.No.10/2011 ON THE FILE OF THE
C/c ADDITIONAL CIVIL JUDGE AND JMFC, KGF.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RSA No. 134 of 2023
JUDGMENT
This appeal is by the plaintiffs aggrieved by the
Judgment and decree dated 29.02.2020 passed in
O.S.No.10/2011 on the file of C/c Additional Civil Judge,
and JMFC, KGF (trial Court) which is partly confirmed by
Judgment and order dated 01.10.2022 passed in
R.A.No.28/2020 on the file of III Additional Civil Judge,
Kolar, sitting at KGF (First Appellate Court).
2. The above suit is filed by the plaintiffs claiming to
be legal representatives of one Malla Reddy for the relief of
partition and separate possession.
3. It is the case of the plaintiffs that one
Venkatareddy was the kartha of undivided Hindu family
and that he had purchased land bearing Sy.No.191
measuring 1 acre 30 guntas in Isndra Village,
Bethamangala, Bangarpet Taluk in the name of his wife
Smt.Chinnamma, defendant No.1. The said property was
in possession and enjoyment of the joint family. Said
Sri.Venkatareddy and Smt.Chinnamma had a son by name
Malla Reddy who is the husband of plaintiff No.1 and father
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of plaintiffs 2 to 5. That the husband and father of
plaintiffs Nos.1, 2 to 5 respectively passed away on
19.12.1985. Subsequent to demise of said Malla Reddy,
defendant No.1 being eldest member of the family became
the kartha of the joint family. Subsequent to demise of
said Malla Reddy plaintiffs had requested defendant No.1
to effect partition which was denied. That the plaintiffs
learnt defendant No.2 had obtained deed of sale dated
21.02.2009 by playing fraud on defendant No.1 in respect
of `B' schedule property. Defendant No.2 had sold said
property in favour of defendant No.3 without the
knowledge and consent of the plaintiffs. Deed of sale
dated 30.12.2009 is not binding on the plaintiffs. That
defendant Nos.2 to 7 had played fraud and by
misrepresentation obtained thumb impression of defendant
No.1 on the pretext of applying for widow pension and that
when defendant No.1 learnt about the same, had filed a
suit in O.S.No.16/2011 seeking relief of declaration of her
title over the suit schedule properties and also sought for
setting aside of said deeds of sale. Hence, suit for
partition.
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4. Defendant No.7 has filed written statement.
Defendants 2, 3, 6 and 8 adopted the written statement
filed by defendant No.7. Defendant No.8 filed separate
written statement. Defendants 2, 3, 6 to 8 denying the
plaint averments contended that during the life time of
defendant No.1, defendant No.1 and her husband had
separated from joint family. Plaintiffs 1 to 5 are married
and living separately with their respective families.
Defendant No.1 had incurred heavy debts as such she had
decided to sell her self acquired property namely suit `B'
schedule property in favour of defendant No.2. Defendant
No.2 purchased suit schedule B property from defendant
No.1. Defendant No.2 sold the same to defendant No.3
who in turn sold the same to defendant No.6. Defendant
No.6 in turn sold the same to defendant No.7 under
registered sale deed dated 09.12.2013. Thus, defendant
No.7 is the absolute owner of property having purchased
the same for valuable consideration. It is also contended
that at the time of purchase suit `B' schedule property the
plaintiffs were present and even after the purchase of the
same by defendant No.7 there has been no interference by
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the plaintiffs. All records stands in the name of defendants
7 and defendant No.8 without having any right was
impleaded by the plaintiffs in the suit. Hence, sought for
dismissal of the suit.
5. Based on the pleadings, trial Court framed the
following issues and additional issue:
"1. Whether the Plaintiffs prove that the suit
schedule properties are the joint family properties
of plaintiffs and Defendant No.1 and they are in
joint possession and enjoyment over the same?
2. Whether the Plaintiffs prove that Defendant No.2
by playing fraud on Defendant No.1 obtained
registered sale deed dated 21.02.2009 in respect of
suit schedule 'B' property and in turn sold the same
in favour of Defendant No.3 under registered sale
deed dated 30.12.2009, hence the said sale deeds
are not binding on the interest of the plaintiffs?
3. Whether the Defendant No.7 proves that he has
become the absolute owner of suit schedule 'B'
property by virtue of registered sale deed dated
09.12.2013 executed by Defendant No.6 in his
favour?
4. Whether the Plaintiffs are entitled for the relief of
partition and separate possession as sought for?"
ADDITIONAL ISSUE
"Whether the Plaintiffs prove that the registered
sale deed dated 13.01.2003, 21.02.2009
30.12.2009, 13.01.2003, 24.09.2012 and
09.12.2013 in respect of the suit schedule 'B'
property are fraudulent, illegal, null and void and
not binding on the interest of the Plaintiffs?"
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6. Plaintiff No.5 examined himself as PW-1 and
exhibited 38 documents marked as Ex.P1 to P38. Also
examined three witnesses as PW-2 to PW-4. Defendant
No.7 examined himself as DW-1 and exhibited 11
documents marked as Ex.D1 to D11 and examined another
witness as DW-2. On appreciation of evidence trial Court
answered issue Nos.1, 2, 4 and additional issue No.1 in the
negative and issue No.3 in the affirmative and
consequently dismissed the suit. Aggrieved by the same,
plaintiffs preferred regular appeal in R.A.No.38/2020.
Considering the grounds urged, First Appellate Court
framed following points for its consideration:
"1. Whether judgment and decree passed by Trial
Court is arbitrary, capricious and opposed to law
and without sufficient and proper reasons and Trial
Court has failed to apply its mind to the facts and
point of law and on the basis of assumption and
presumption of facts, it has passed Judgment and
Decree which has resulted in miscarriage of justice?
2. Whether Trial Court has failed to answer Issue
No.1 in Affirmative in view of abundant evidence
placed by the plaintiffs on record to prove that, suit
properties are joint family properties and it has
failed to consider the admitted facts that,
Smt.Chinnamma was aged more than 70 years and
she was house wife and having no income and her
husband was only bread earner who was assisted
by their only son Malla Reddy who died leaving
behind the plaintiffs as his legal heirs?
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3. Whether Trial Court has failed to note of
necessary changes in Issue No.1 after the death of
Smt. Chinnamma?
4. Whether Trial Court ought to have held that, on
the death of Smt. Chinnamma, the suit properties
devolved on the plaintiffs, even though an
application on Section 14(1) of Hindu Succession
Act, the said properties are considered as her
absolute properties?
5. Whether Trial Court has failed to consider an
application that, there are two suit schedule
properties and there was no impediment to decree
the suit in respect of 'A' schedule property and it
has erred in considering the evidence led by
plaintiffs and there was no contest in respect of 'A'
schedule property?
6. Whether Trial Court has failed to observe that,
memo filed by plaintiffs in O.S. No.16/2011 seeking
dismissal of suit in view of parallel proceedings in
O.S.No.10/2011 which includes the relief sought in
O.S.No.16/2011 and memo filed only to withdraw
O.S. No.16/2011 with liberty to proceed in pending
suit, but Trial Court has wrongly observed that, the
liberty was not sought for filing fresh suit?
7. Whether Trial Court has failed to consider that,
defendant No.2 did not enter into the witness box
as contesting party to prove the contents of written
statement and he is examined as supported witness
to DW.1 and Trial Court has failed to consider the
difference in examining persons and examination of
witnesses at the instance of other party?
8. Whether Trial Court has wrongly answered Issue
No.2 by holding that, the plaintiffs cannot change
the Sale Deed dated: 30.12.2009 and it upheld the
Sale Deed by ignoring the evidence on record about
fraud played by defendant No.2 to get Sale Deed
from the aged lady Smt. Chinnamma and reasons
assigned by the Trial Court to uphold the validity of
Sale Deed are not correct?
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9. Whether Trial Court has failed to observe that,
even though burden to prove issue No.3 placed
upon defendant No.7, it has wrongly held that, the
plaintiffs did not prove the said issue?
10. Whether Trial Court ought to have answered
Additional Issue No.1 in Affirmative when defendant
No.2 has not proved the Sale Deed as required
under law and it has turned other way for
illegalities, immoralities and fraudulent acts of
defendant No.2 and 4 ignoring the principles of law
laid down in the decision of Hon'ble Madras High
Court?
11. Whether Trial Court has not whispered about
Sale Deed in favour of defendant No.8 who got
fraudulent Sale Deed executed by defendant No.5
in respect of land already sold to Smt. Chinnamma
and it has regularized all irregular and illegal sale
transactions?
12. Whether Trial Court has failed to apply the legal
principles relied upon by the plaintiffs?
13. Whether Trial Court has committed grave
illegality and perversity in dismissing the suit of the
plaintiffs which is liable to be interfered by this
Court?
14. Whether plaintiffs have made out proper and
sufficient grounds for amendment of plaint as
prayed in the I.A. No.1?
15. What order or decree?"
7. On reappreciation of evidence, the First Appellate
Court answered points 1 to 13 partly in the affirmative and
point No.14 in the negative and consequently partly
allowed the appeal in respect of `A' schedule property and
confirmed the Judgment and decree in respect of `B'
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schedule property. Being aggrieved by the Judgment and
decree passed by the First Appellate Court to the extent of
dismissing the suit in respect of B schedule property the
plaintiffs are before this Court.
8. Sri.Rajesh Gowda, learned counsel for
appellants/plaintiffs vehemently submits that the trial
Court and First Appellate Court failed to appreciate the fact
that suit `B' schedule property was not the absolute
property of defendant No.1. He submits the deed of sale
dated 21.06.1974 under which the B schedule property is
purchased does not indicate that the property is self
acquired property of defendant No.1. He further submits
plaintiff examined as many as four witnesses and all of
them have categorically deposed that defendant No.1 did
not have independent income of her own. As such the trial
Court and First Appellate Court erred in holding the suit
schedule `B' property was the self acquired property of
defendant No.1. He refers to the Judgment of the High
Court of Andhra Pradesh in the case of Kuppala Sivasankar
Vs Kuppala Venkatamma and others reported in AIR 2014
AP 22. Referring to paragraph 12 of the said Judgment
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learned counsel for appellants submit that a limited right
acquired under an instrument would not become absolute
right in view of sub-section (2) of Section 14 of the Hindu
Succession Act. Thus, he submits that suit `B' schedule
property cannot be held to be self acquired property of
defendant No.1 as she has limited right over the property.
He further submits defendant No.1 during her life time had
even lodged a complaint against defendant No.2 of
defendant No.2 having obtained signature fraudulently.
He also submits suit also having been filed by defendant
No.1 which was subsequently withdrawn. It is his
submission that since defendant No.1 did not have any
independent source of income, the schedule `B' property
cannot be considered as self acquired property. As such,
application of Section 14 of the Hindu Succession Act by
the trial Court and First Appellate Court was erroneous
giving raise to substantial question of law requiring
consideration at the hands of this Court.
9. Per contra, Sri.Noor Ul Hussain, learned counsel
for caveator/respondent No.7 submits that the plaintiffs
witness himself has admitted that the grandfather and his
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father did not have any independent source of income. He
submits that the suit schedule property was indeed
purchased by defendant No.1 and plaintiffs have not
produced any material on record to show that it was
purchased by Venkatareddy in her name creating limited
interest in her favour. Thus, he submits that no
substantial question of law would arise for consideration.
10. Heard and perused the records.
11. Suit filed by the plaintiffs is for partition in
respect of two items of the properties. The trial Court had
dismissed suit in respect of both items of suit properties.
Aggrieved by the same plaintiffs preferred regular appeal
in R.A.No.38/2020 which was modified by granting the
relief of partition in respect of suit `A' schedule property
and confirmed dismissal of suit in respect of schedule `B'
property.
12. Suit `B' schedule property has been purchased
by defendant No.1 in terms of deed of sale dated
21.06.1974 which is produced by plaintiffs and marked as
Ex.P-1. Perusal of Ex.P-1 do not even remotely suggest
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that the same was purchased by the husband of defendant
No.1 in her name. It also does not indicate that any
limited interest was created in favour of defendant No.1 as
contended by learned counsel for appellants.
13. It is also necessary to note that apparently
defendant No.1 during her life time had filed a suit in
O.S.No.16/2011 for relief of declaration of her title and
had also sought for setting aside of the deeds of sale. The
trial Court has taken note of the fact that in the said suit
defendant No.1 herself had claimed the suit property to be
her self acquired property. It appears defendant No.1
passed away during the pendency of the said suit.
Plaintiffs who got impleaded as legal representatives of
defendant No.1 withdrew the said suit and filed the
present suit for partition. The trial Court has taken note of
this aspect of the matter and has declined to accept the
contention of plaintiffs and their challenge to the deeds of
sale. When the challenge mounted by the defendant No.1
to the deeds of sale executed by her in favour of other
defendants has remained inconclusive to the knowledge of
the plaintiffs, the same cannot be re-agitated in a
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subsequent suit which was brought on the premise of suit
schedule property being the joint family property. Trial
Court also has taken note of the fact that witnesses
examined as PW-1 to PW-4 had no personal knowledge of
execution of the deed of sale dated 21.06.1974 under
which defendant No.1 had purchased the property. 3 out
of 4 witnesses were not even born as on the date on which
the said deed of sale was executed. PW-2 though shown
as 70 years old, is stated to have been not even a witness
to the said document. Their evidence hardly matters with
regard to whether the suit `B' schedule property was self
acquired property of defendant No.1 or not. Applying
provisions of Section 14 of the Hindu Succession Act, trial
Court held in the absence of any material evidence,
defendant No.1 was absolute owner of `B' schedule
property and accordingly dismissed the suit in its entirety.
14. First Appellate Court however modified the
decree to the extent of holding `A' schedule property to be
the joint family property and allotted share to the plaintiffs
therein, however dismissed the suit in respect of `B'
schedule property confirming the reasonings, findings and
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conclusion arrived at by the trial Court with regard to `B'
schedule property, which is questioned in this appeal. The
First Appellate Court re-appreciating the evidence came to
the conclusion that there is nothing on record to
countenance the submission made by the plaintiffs that
defendant No.1 had a limited estate in `B' schedule
property. Accordingly dismissed the suit to the extent of
`B' schedule property.
15. No error or irregularity can be found with the
reasoning and conclusion arrived at by trial Court and First
Appellate Court. Reliance placed on by the learned counsel
for appellants on the judgment of Division Bench of Andhra
Pradesh High Court in the case of Kuppala Sivasankar Vs
Kuppala Venkatamma and others (supra) is of no avail as
the facts in said suit are completely different and distinct
from the present suit. In the said reported case a limited
estate was created by way of Will in favour of respondent
therein which the Court found to be falling within the
exception of sub-section (2) of Section 14 of the Hindu
Succession Act which is not the case on hand here. As
already noted defendant No.1 had purchased `B' schedule
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property under deed of sale dated 21.06.1974 and in the
absence of any material evidence having been produced to
justify the contention of defendant No.1 having limited
estate, no substantial question of law would arise for
consideration in this appeal. Accordingly, appeal is
dismissed.
Sd/-
JUDGE
SBN
