Karnataka High Court

Kantharaju vs Nagarathanamma on 7 February, 2024

Author: M.G.S. Kamal

Bench: M.G.S. Kamal

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                                                           RSA No. 36 of 2022




                      IN THE HIGH COURT OF KARNATAKA AT BENGALURU

                        DATED THIS THE 7TH DAY OF FEBRUARY, 2024

                                            BEFORE
                           THE HON'BLE MR JUSTICE M.G.S. KAMAL
                       REGULAR SECOND APPEAL NO. 36 OF 2022 (DEC/PAR)
                 BETWEEN:
                       KANTHARAJU
                       ADOPTED S/O NAGARATHNAMMA
                       AGED ABOUT 42 YEARS
                       R/AT VITTARAVATHANAHALLI
                       URDIGERE HOBLI
                       TUMKUR TALUK - 572 140.
                                                                  ...APPELLANT
                 (BY SRI. SHASHANK S. GOWDA., ADVOCATE)

                 AND:
                       NAGARATHNAMMA
                       W/O LATE SHIVARAMAIAH
                       (SINCE DEAD BY SOLE L.R
                       APPELLANT HEREIN IS ALREADY
                       ON RECORD IN THIS APPEAL)

Digitally              BALACHANDRA NAIDU
signed by        1.
SUMA B N               S/O M. APPAIAH
Location: High         AGED ABOUT 54 YEARS
Court of
Karnataka              R/O AMBIKA BRICK INDUSTRY
                       KESARUMADU AT AND POST
                       URDIGERE HOBI
                       TUMKUR TALUK - 572 104.

                 2.    AMBIKA
                       W/O VIJAYAKUAMR B.R.,
                       AGED ABOUT 44 YEARS
                       RESIDENT OF AMBIKA BRICK INDUSTRY
                       KESASRUMADU AT AND PSOT
                       URDIGERE HOBLI,
                       TUMKUR TALUK - 572 104.
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                                            NC: 2024:KHC:5272
                                           RSA No. 36 of 2022




                                               ...RESPONDENTS
      THIS RSA IS FILED UNDER SECTION 100 OF CPC 1908.,
AGAINST THE JUDGMENT AND DECREE DATED:23.04.2021 PASSED
IN RA.NO.140/2020 ON THE FILE OF THE II ADDITIONAL DISTRICT
AND SESSIONS JUDGE, TUMAKURU DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 03.02.2017
PASSED IN OS.NO.252/2014 ON THE FILE OF THE V ADDITIONAL
CIVIL JUDGE AND JMFC, TUMAKURU.

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

This appeal is filed by the appellant/plaintiff aggrieved by the judgment and decree dated 03.02.2017 passed in O.S.No.252/2014 on the file of V Additional Civil Judge and J.M.F.C, Tumkuru which is confirmed by the judgment and Order dated 05.02.2021 passed in R.A.No.140/2020 on the file of II Additional District and Sessions Judge, Tumakuru.

2. The above suit is filed by the plaintiff seeking for partition and separate possession of his 1/2 share in the suit schedule property and to declare that the sale deed executed between the defendants with respect to his share is not binding upon him. It is the case of the that he is adopted son of defendant No.1 by virtue of Registered Deed of Adoption dated 14-11-1986, which was done, when he was 10 years old. The defendant No.1 had no issues and hence the was taken in adoption by the defendant No.1. That the natural mother of the is none other than the sister of husband of the defendant No.1. The said adoption has taken

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place in the Veerbhadraswamy Deity of Devarahosalli Village in the presence of the elders, as per customs.

2.1. It is contended that the suit schedule property belonged to the family of himself and defendant No.1 and the same is situated adjacent to Tumakuru town. The had shifted his residence to Vittaravathanahalli Village and he was taking care of defendant No.1 from his house by supplying all necessaries to the defendant No.1.

2.2. It is further contended that without the knowledge of the , defendant No.1 has sold the suit schedule property in favour of defendant No.2 in the year 2000 and plaintiff learnt about the sale just 3 months prior to filing of the suit. Thereafter the plaintiff found defendant No.2 has been cultivating the land as lessee under the defendant No.1. He also learnt that defendant No.2 inturn had sold the suit schedule property to the defendant No.3 on 10-07-2012. Thus he submits that sale of the property by the defendant No.1 in favour defendant No.2, defendant No.2 in favour of defendant No.3 is not binding on him.

3. Though summons were served defendants were remained absent and they were placed Ex-parte. Plaintiff examined himself as PW-1 and exhibited six documents marked as Ex.P-1 to Ex.P-6.

4. The Trial Court framed the following issues for its consideration:

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i. Whether the plaintiff proves he is the adopted son of the 1st defendant?

ii. Whether the plaintiff proves the himself and the 1st defendants are the members of the Hindu undivided joint family?

iii. Whether the plaintiff proved suit schedule property is the joint family property? iv. Whether the plaintiff is entitled for the reliefs as claimed in the plaint?

v. What order?

5. The Trial Court on appreciation of pleading and evidence answered points Nos.1 and 2 in the affirmative and 3 and 4 in the negative and consequently dismissed the suit. Aggrieved by the same, the plaintiff preferred a regular appeal in R.A.No.140/2020 before the First Appellate Court and the plaintiff had also filed an application under Order XLI Rule 27 seeking production of two documents.

6. The First Appellate Court by its judgment and order dated 22.04.2021 framed the following points for its consideration:

"1. Whether the applicant has made out grounds to allow application for additional evidence?

2. Whether the impugned judgment and decree calls for interference by this Court?

3. What order?"

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7. On re-appreciation of the matter answered point Nos.1 and 2 in the negative and consequently dismissed the appeal confirming the judgment and decree passed by the Trial Court.

8. Learned counsel for the appellant/plaintiff reiterating the grounds urged in the memorandum of the appeal submitted that the First Appellate Court has not considered the additional document produced by the plaintiff namely deed of sale dated 17.08.1971 clearly showing the existence of ancestral property forming part of joint family nucleus enabling the defendant No.1 to purchase the suit schedule property. That the First Appellate Court also failed to appreciated the compromise decree passed in O.S.No.238/1983 dated 14.11.1983 that was entered into between defendant No.1 and brother of husband of defendant No.1 evidencing partition of ancestral property indicating existence of joint family property from and out of which defendant No.1 purchased the suit schedule property. That non consideration of the above additional evidence by the First Appellate Court has resulted in perversity in passing the impugned order giving raise to substantial question of law.

9. Heard. Perused the records.

10. The case of the plaintiff is that he is the adopted son of defendant no.1 and that suit schedule property was a joint

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family property. That the defendant No.1 without his knowledge and consent has sold the same in favour of the defendant No.2 in the year 2000 and defendant no.2 has sold the preopty in favour of defendant no.3 on 10.07.2012 and the said deeds of sale are not binding on the plaintiff to the extent of his half share in the property.

11. The Trial Court considering the evidence produced by the plaintiff in the nature of Registered Deed of Adoption dated 14-11-1986 as per Ex.P1 and in view of provisions of Section 16 of the Hindu Adoption and Maintenance Act providing for presumption in favour of adoption and the same not having been controverted held that the plaintiff was adopted son of the defendant No.1.

12. As regard the claim of the plaintiff with regard to his entitlement in the suit schedule property claiming the same to be the joint family property, the Trial Court found that the suit schedule property was acquired by the defendant No.1 in terms of deed of sale dated 07.01.1980.

13. It has also noted that as per the deed of sale dated 04.11.2000 produced at Ex.P2, defendant No.1 has sold the suit schedule property in favour of defendant No.2, wherein she has claimed that the suit schedule property is her self acquired property purchased out of her own income after the demise of her husband. It has also noted The defendant No.2 after purchasing the suit schedule property from

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defendant No.1 on 04.11.2000 has further sold the same in favour of defendant No.3 in terms of deed of sale dated 31.03.2012. Considering these aspects of the matter the Trial Court has come to the conclusion that in the absence of plaintiff producing any evidence to the effect that the suit schedule property was purchased by the defendant No.1 from and out of any joint family funds or to show the suit schedule property came into the hands of defendant No.1 after the death of her husband through the joint family nucleus, came to the conclusion that the suit schedule property was the absolute property of the defendant No.1. Accordingly, declined to accept the claim of the plaintiff of he having share in the suit schedule property and consequently dismissed the suit.

14. Though the plaintiff has produced a sale deed dated 17.08.1971 and a compromise decree dated 14.11.1983 passed in O.S.No.238/1983 as additional document before the First Appellate Court, the First Appellate Court on appreciation has found that the said sale deed pertains to some other property and that same would not provide any basis for the claim of the plaintiff regarding schedule property is acquired from and out of the same. And that the compromise decree produced is of dated 14.11.1983 while the property purchased by the defendant No.1 was 07.01.1980 that is much prior to the compromise decree dated 14.11.1983. The First Appellate Court has on

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appreciation has come to the conclusion that there is no nexus between the documents sought to be produced by the plaintiff with the source of acquisition of the suit schedule property by defendant No.1 in terms of deed of sale dated 07.01.1980. the First Appellate Court while confirming the judgment and decree passed by the Trial Court has found that the suit schedule property is the self acquired property of the defendant No.1 and that the plaintiff has no share, right, title and interest over the same.

In view of the aforesaid finding and conclusion arrived at by the Trial Court and First Appellate Court, no substantial question of law would arise for consideration. Accordingly, appeal is dismissed.

Sd/-

JUDGE