Karnataka High Court
Sri Vijay Kumar G.S vs G H Sharanappa on 7 February, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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MFA No. 230 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 7TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
MISCELLANEOUS FIRST APPEAL NO. 230 OF 2022 (CPC)
BETWEEN:
1. SRI VIJAY KUMAR G.S.
S/O G H SHARANAPPA,
AGED ABOUT 35 YEARS,
R/A SAGANAKAL VILLAGE,
BELLARY TALUK AND DISTRICT
...APPELLANT
(BY SRI. D. PRABHAKAR, ADVOCATE)
AND:
1. G H SHARANAPPA
S/O GADDE HANUMANTHAPPA,
AGED ABOUT 65 YEARS,
2. G S YATHIRAJ
S/O G H SHARANAPPA,
Digitally signed
by SHARANYA T AGED ABOUT 28 YEARS,
Location: HIGH
COURT OF 3. G S NANDHA RAJ
KARNATAKA S/OG H SHARANAPPA,
AGED ABOUT 55 YEARS,
4. SMT. R. DHAKSHAYINI
S/O G H SHARANAPPA,
AGED ABOUT 55 YEARS,
NO.1 TO 4 ARE RESIDING AT PLOT NO.202,
CREATIVE SURAJ APARTMENT,
NEAR VENKATESHWARA TEMPLE,
C P V BLOCK, GANGA NAGAR EXTENSION,
BANGALORE.
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MFA No. 230 of 2022
PRESENTLY RESIDING AT NO.112,
PRESIDENT LEAON APRTMENT,
DUO MARVEL LAYOUT,
ANANTHAPURA GATE, YELAHANKA,
BENGALURU-560064
5. SRI B.SHANKAR GOUDA
S/O LATE BHEEMALINGANA GOUDA
MAJOR, RESIDING AT
BEVINAHAL VILLAGE
BELLARY TALUK & DISTRICT.
...RESPONDENTS
(BY SRI. B.G. VIJAYAKUMARA SWAMY, ADVOCATE
FOR R1, R2, R4;
SRI SUSHANTH SHARMA B.S., ADVOCATE FOR R5;
R3 - SERVED THROUGH COUNSEL BEFORE TRIAL COURT.)
THIS MFA IS FILED U/O 43 RULE 1(r) R/W SECTION 151
OF CPC, AGAINST THE ORDER DATED 15.03.2021 PASSED ON
I.A.NO.2 IN OS.NO.4590/2019 ON THE FILE OF THE XIX
ADDITIONAL CITY CIVIL AND SESSIONS JUDGE, BENGALURU,
CCH-18, PARTLY ALLOWING THE I.A.NO.2 FILED UNDER
ORDER 39 RULE 1 AND 2 R/W SECTION 94 AND 151 OF CPC.
THIS APPEAL, COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
JUDGMENT
Heard the learned counsel appearing for the
appellants as well as learned counsel appearing for the
respondents.
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2. This Miscellaneous First Appeal is filed
challenging the rejection of the prayer made by the
plaintiff in respect of the property viz., item Nos.1, 2, 5 to
15.
3. The main contention of the learned counsel
appearing for the appellant is that the appellant / plaintiff
has filed a suit for the relief of partition and inter alia
sought for the relief of temporary injunction not to alienate
and not to put up any construction. It is also the
contention of the learned counsel for the appellant /
plaintiff before the Trial Court is that all the suit schedule
properties are the joint family properties and the grand
father of the plaintiff viz., late Gadda Hanumanthappa had
acquired the plaint schedule properties and other
properties and the said properties are joint family
properties and among the joint family, the father of
defendant No.1 viz., Gadda Hanumanthappa and
defendant No.1 and his brothers partitioned the joint
family properties and the suit schedule properties are
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fallen to the share of defendant No.1 and accordingly,
mutation was also effected in respect of Sy.No.24 2/A
measuring 4 acres and in respect of Sy.No.22 measuring
19 acres situated at Thimmalapura Village Molakalmuru
Taluk.
4. The defendant No.1 has also purchased house
at Bellary in the name of defendant No.4 out of the income
derived from the agricultural lands. Hence, the house
property is also having status of joint family property. The
defendant No.1 has also purchased the properties in the
name of defendant Nos.2 and 3 at Bangalore and all the
properties are purchased out of the income derived from
the ancestral properties. Hence, the plaintiff has got a
legitimate share in the suit schedule properties. The
defendant No.1 has also executed a registered gift deed
dated 13.11.2018 in favour of defendant No.3 in respect of
said Sy.No.22/3, measuring 14 acres out of 19 acres
situated at Thimmalapura village.
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5. It is also contended that defendant No.1 has
executed a registered gift deed dated 13.11.2018 in
favour of defendant No.4 in respect of Sy.No.22/3
measuring 5 acres out of 19 acres. The defendant has
neglected the plaintiff and his mother that is his first wife
and started to live with the defendant No.4 and illegitimate
children. The plaintiff and his mother are suffering from
bread and butter and leading their life in great difficulty.
Since, the properties are joint family properties and
defendant No.1 has got the same by way of succession, as
such, plaintiff is also having a legitimate share in the
schedule properties and hence, sought for the relief of
partition and added other properties i.e., a total of 20
items in the suit schedule properties and sought for an
interim order.
6. The defendant appeared and filed the written
statement. The defendant No.7 who is the subsequent
purchaser claims item No.2 that property was purchased
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in the year 2018 and prior to that property was purchased
by the mother of defendant No.1 in the year 1994.
7. The counsel also brought to the notice of this
court that there was a divorce between the mother of the
plaintiff and the defendant No.1 in the year 1992 it-self.
The counsel also submitted that a gift was executed in the
year 2000 and also one more gift by the beneficiary in the
year 2015 i.e., in favour of second wife. The property is
purchased from the second wife i.e., defendant No.4 by
defendant No.7 for a valuable sale consideration and the
said property is not an ancestral property and the claim of
the plaintiff that the same is an ancestral property cannot
be accepted.
8. The learned counsel appearing for defendant
No.1, 2 and 4 would vehemently contend that categorically
there is an admission with regard to item Nos.3 and 4 are
the ancestral properties and the same was taken note of
by the trial court while granting the interim relief directing
not to alienate or put up any construction in respect of
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item Nos.3 and 4. The learned counsel would also submit
that the other properties are purchased by defendant No.1
and also other defendants i.e., defendant Nos.2 and 4 are
the self-acquired properties. The said properties are also
purchased in the name of defendant No.3. All these
properties are self-acquired properties of defendant Nos.1
to 4 and the trial court considered the same and passed
appropriate order. Hence, it does not require any
interference.
9. The learned counsel appearing for the appellant
in reply to the arguments of the respondents contend that
the trial court committed an error in considering the sale
deed and other documents and holding that those
properties are self-acquired properties. The very specific
case of the plaintiff is that defendant No.1 having
ancestral properties to the larger extent and out of that
Joint nucleus only other properties are purchased.
Admittedly, he was working as a RTO Inspector and
properties are purchased in the name of his second wife
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and also in the name of his children through his second
wife with an intention to defeat the right of the plaintiff.
The Trial Court also committed an error in coming to the
conclusion that those properties are self-acquired
properties. The counsel would contend that when the
pleading is made with regard to defendant No.1 was
having large extent of ancestral property and out of that
joint nucleus, he had purchased the property and while
considering the prima facie case, the Trial Court ought to
have taken note of large extent of property the defendant
No.1 has derived in the said partition. Instead of that,
only considering the documents, which have been
produced before the court comes to the conclusion that no
prima facie case is made out in respect of other items of
the property and the very approach of the Trial Court is
erroneous.
9. The counsel also brought to the notice of this
court that he has filed an application under Order 41 Rule
27 i.e., I.A.1/2024 and along with the application, certified
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copies of the documents are produced before the court
i.e., deposition of defendant No.1 who has been examined
as RW1 before the Munsiff and JMFC Court at Bellary and
so also the counter filed in M.C.No.221/1998 and so also
the deposition of RW1 in Crl.Misc.No.191/2014 so also the
deposition in the said case wherein he has been examined
as RW1 and brought to the notice of this court the
admissions given in the said deposition and also the
counter statement. The counsel also produced the order
passed by the Trial Court in Crl.Misc.No.191/2014. The
counsel also produced a copy of the Special Leave Petition
(Crl.) No.4984/2020 filed before the Hon'ble Apex Court.
10. The counsel appearing for the respondents also
contend that those documents are not produced before the
trial court and for the first time, those documents are
placed before this court and also the counsel appearing for
the respondent No.5 before this court contend that the
Trial Court discussed with regard to the said admission
also and those documents are not necessary to decide the
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relief as sought in the I.As and hence, prayed this court to
dismiss the appeal.
11. Having heard the learned counsel appearing for
the appellant as well as the learned counsel appearing for
the respondents and for having regard to the material
placed on record, the points that would arise for the
consideration of this court are:
(i) Whether the appellant made out a ground to
allow the application filed along with
documents before this court for
consideration?
(ii) Whether the Trial Court committed an error
in rejecting the plaint in respect of other
items excluding item Nos.3 and 4 and
whether it requires interference?
(iii) What order?
Re: Point No.1:
12. Having perused the application filed under
Order 41 Rule 27 read with Section 151 of Code of Civil
Procedure, 1908, the appellant has produced the
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documents, which have been referred supra i.e., the inter
se dispute been the defendant No.1 and his wife i.e., the
plaintiff's mother in all the proceedings before the Trial
Court in M.C.No.221/1998 and Crl.Misc.No.191/2014 and
the same is also the order and deposition of the defendant
No.1. The documents are certified copies of the
documents and earlier the defendant No.1 was also
subjected to cross-examination in the said proceedings
and brought to the notice of this court the admission given
by defendant No.1. Particularly these documents are not
placed before the Trial Court and in the absence of these
documents only, the Trial Court has decided the interim
applications filed before the court i.e., I.A.No.2 and 5.
Hence, the court also cannot find fault with the Trial Court
in not considering those documents since, those
documents are not brought on record. When the additional
documents are placed before this court contending that all
the properties are also purchased and there is an
admission on the part of defendant No.1 in the earlier
proceedings and the same has to be considered by the
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Trial Court and this court cannot sit and decide the same
in an appeal without any discussion with regard to the said
documents. Hence, the documents which have been
placed before this court are necessary documents to
consider the I.A.s with regard to other items also and
hence, appellant counsel has made out a ground to allow
the application filed Under Order 41 Rule 27 of CPC for the
limited purpose of consideration of I.As.
Re: Point No.2:
13. Having heard the appellant counsel it is clear
that there is no dispute with regard to the relationship
between the parties. The plaintiff claims that he is the son
of defendant No.1 through the first wife and also it is not
in dispute that already defendant No.1 contacted the
second marriage and having children through the second
wife also. It is also not in dispute that earlier proceedings
were taken place between the mother of the plaintiff and
also defendant No.1 and documents also clearly disclose
that earlier M.C. Petition filed and Crl.Misc.Petition are also
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filed and also order has been passed, which have been
referred as additional documents. It is also important to
note that no doubt there is a pleading in the plaint itself
that item Nos.3 and 4 are the ancestral properties, but a
specific averment is also made in the plaint and also
affidavit that out of the joint nucleus only, the properties
have been purchased in the name of the mother of
defendant No.1 and also in the name of wife and other
children who are born through second wife.
14. The learned counsel appearing for the
respondent No.5 contends that item No.2 is the property,
which has been purchased by him for a valuable
consideration and the fact that the property was
purchased in the year 1991 in the name of the mother is
also not in dispute. The counsel for respondent No.5 also
does not dispute that at the time of purchasing the
property in the name of the mother in the year 1994, she
was aged about 75 years is also not disputed. No doubt,
the divorce was granted in the year 1992 and thereafter,
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gifts have taken place between the parties in the year
2000 and 2015 and the second wife had sold the property
based on the gift deed in favour of respondent No.5 in the
year 2018. When the pleading is made that defendant
No.1 has derived the ancestral property and also item
Nos.3 and 4, which clearly disclose to the extent of 18
acres and also 4 acres of land, defendant No.1 was having
large extent of properties, which are ancestral properties
and the same is also brought to the notice of this court by
the counsel for the appellant that there is an admission to
that effect also. When such documents are produced
before the court and when the larger extent of the
properties were available with defendant No.1, no doubt,
the properties viz., 19 acres and 4 acres are acquired in
the partition and gifted some properties in favour of wife
also his children, this material clearly discloses that
defendant No.1 is having the large extent of property. The
court has to take note of the material available on record
and no doubt the documents of the subsequent purchase
are also produced before the court and the Trial Court
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cannot come to a conclusion that those properties are self-
acquired properties and the same is a matter of trial. On
perusal of the order impugned, no doubt the Trial Court
discussed with regard to the documents, which have been
placed before the court, but committed an error in coming
to the conclusion in para 17 without any other discussion
only considering the admission made by defendant No.4
that he acquired item Nos.3 and 4 schedule properties as
ancestral and joint family properties, but also taken note
that he had denied all other properties are the joint family
properties of the plaintiff, but conclusion is that the same
are self-acquired properties of defendant Nos.1 to 4. The
defendant No.4 in her written statement also contended
that she has acquired the properties under different sale
deeds. There is no dispute with regard to the fact that
defendant No.4 also acquired the properties after she got
married to defendant No.1 and also the documents, which
have been placed before the court also clearly discloses
that properties are purchased in the name of defendant
Nos.2 and 3 i.e., item Nos.7 and 8 on 25.07.2002 and also
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item Nos.10 & 11 on 26.10.2006. When the specific plea is
made by the plaintiff that all these properties are acquired
out of joint family nucleus, the same is a matter of trial
and the same has not been considered by the trial court
while considering the application and now the additional
documents are also placed before this court. Hence, with
regard to other items is concerned, the matter requires to
be considered afresh in view of additional documents
placed before this court and also in view of the observation
made by this court with regard to the pleading made in
the plaint and hence, the matter requires to be set aside
and remanded in respect of other items of the property
and no dispute with regard to item Nos.3 and 4 as already
relief is granted. For the limited purpose, the matter is
remitted back to the Trial Court to consider the same in
respect of other items, in which the relief has not been
granted by the Trial Court. The pleadings have already
been completed and hence, it is appropriate to direct the
Trial Court to consider the same within a time bound
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period within one month from 15.03.2024 i.e., next date
of hearing.
With this observation, the appeal is disposed of.
Registry is directed to send the additional documents
along with the application to the Trial Court to consider the
same while considering the I.As.
Sd/-
JUDGE
SS
