Karnataka High Court
Smt Neelamma vs Srinivasappa on 12 February, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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RSA No. 45 of 2019
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 45 OF 2019 (PAR)
BETWEEN:
1. SMT. NEELAMMA,
W/O. RAMAPPA,
D/O. LATE NANJAPPA,
AGED ABOUT 42 YEARS,
AIRPORT, HUNASAMARANAHALLI
VILLAGE, YELAHANKA,
BENGALURU
NOW RESIDING AT BEERAMANAHALLI,
KASABA HOBLI,
KOLAR TALUK - 563 101.
2. SMT. BHAGYAMMA
W/O. MUNIVENKATAPPA,
D/O. LATE KUTERI NANJAPPA
AGED ABOUT 40 YEARS,
Digitally signed RALLABUDUGURU, KUPPAM
by SUMA B N NOW RESIDING AT BEERAMANAHALLI,
Location: High KASABA HOBLI,
Court of
Karnataka KOLAR TALUK - 563 101.
...APPELLANTS
(BY SRI. S. KRISHNASWAMY, ADVOCATE)
AND:
1. SRINIVASAPPA,
SINCE DEAD REP. BY LRS.,
1(a) SMT. SHAILASHREE,
W/O. ANAND
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RSA No. 45 of 2019
D/O. LATE SRINIVASAPPA
AGED ABOUT 40 YEARS,
1647, 1ST CROSS, VIJAYANAGARA,
BANGARAPET- 563101.
JYOTISREE
1(b)
D/O. LATE SRINIVASAPPA,
AGED ABOUT 38 YEARS,
SNR QUARTERS,
KOLAR - 563 101.
GANESH,
1(c)
S/O. LATE SRINIVASAPPA
AGED ABOUT 37 YEARS,
SNR QUARTERS
KOLAR- 563 101.
SMT. BHARATHI
1(d) SECOND WIFE OF LATE SRINIVASAPPA
AGED ABOUT 53 YEARS,
BEERAMANAHALLI,
THORADEVANAHALLI,
KOLAR- 563126.
SMT. AMRUTHA S.,
1(e)
W/O. NAGESH BABU,
D/O. LATE SRINIVASAPPA
AGED ABOUT 30 YEARS,
KANGANALLUR,
KOLAR- 563162
RAKSHITHA,
1(f)
D/O. SRINIVASAPPA
AGED ABOUT 28 YEARS,
BEERAMANAHALLI,
KOLAR- 563126.
2. B. N. VENAKTESH,
S/O LATE KUTERI NANJAPPA
AGED ABOUT 46 YEARS,
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RSA No. 45 of 2019
R/O BEERAMANAHALLI VILLAGE,
KASABA HOBLI, MALUR TALUK,
KOLAR DISTRICT - 563130.
3. SMT. VARALAKSHMAMMA,
W/O. SRINIVASAPPA,
AGED ABOUT 44 YEARS,
ATTENDER S. N. R. HOSPITAL
KOLAR - 563101.
4. SRI. B. S. PRASANNA KUMAR,
S/O LATE SUBBAIAH,
AGED ABOUT 68 YEARS,
R/AT DOOM LIGHT CIRCLE,
OLD EXTENSION KOLAR - 563 101.
...RESPONDENTS
(BY SRI. RAMAKRISHNA HEGDE, ADVOCATE FOR
R1 (A TO F) AND R2;
SRI. B.V. ANAND, ADVOCATE FOR R4;
R3 SERVED)
THIS RSA FILED UNDER SEC.100 OF CPC., AGAINST THE
JUDGMENT AND DECREE DATED 14.11.2016 PASSED IN
RA NO.1/2011 ON THE FILE OF THE I ADDITIONAL DISTRICT
JUDGE AT KOLAR. PARTLY ALLOWING THE APPEAL AND
SETTING ASIDE THE JUDGMENT AND DECREE DATED
20.11.2010 PASSED IN OS NO.328/2008 ON THE FILE OF THE
III ADDL.SENIOR CIVIL JUDGE AT KOLAR.
THIS APPEAL, COMING ON FOR FURTHER ORDERS, THIS
DAY, THE COURT DELIVERED THE FOLLOWING:
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RSA No. 45 of 2019
JUDGMENT
This appeal is by the plaintiffs being aggrieved by the
judgment and order dated 14.11.2016 passed in R.A.
No.1/2011 on the file of the I Additional District Judge,
Kolar (hereinafter referred to as 'First Appellate Court' for
short) to the extent declining to grant relief in respect of
item No.2 of the suit schedule properties.
2. The plaintiffs filed suit in O.S.No.328/2008
seeking partition and allotment of 2/5th share in the suit
schedule properties consisting of three items.
3. It is the case of the plaintiffs that one Sri.Kuteri
Nanjappa and Smt.Rathnamma, the defendant No.1 are
the parents of plaintiffs and defendant Nos.2 and 3. That
defendant No.4 is the wife of defendant No.2. Thus,
plaintiffs and defendants 1 to 4 constituted a joint family.
That the suit schedule properties are the joint family
properties. Plaintiffs sought for partition and separate
possession. Since their request was denied, they were
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constrained to file the suit. It is further contended that
defendant No.2 along with his wife defendant No.4/Smt.
Varalakshmamma had filed a suit against Kuteri Nanjappa
in O.S.No.117/1986 for declaration of title and for
permanent injunction to which the plaintiffs and
defendants were not made parties. In the said suit
defendant No.4-Varalakshmamma has been declared to be
the owner to an extent of 2 acres 9 guntas out of 4 acres
18 guntas of land in Sy.No.95. That the said defendant
No.4/Varalakshmamma had sold the said 2 acres 9 guntas
of land in favour of defendant No.5-B.S.Prasanna Kumar
and the remaining 2 acres 9 guntas of land has been sold
by Kuteri Nanjappa in favour of defendant No.3. It is
contended that defendant No.4 - Varalakshmamma had no
right to sell the schedule property in favour of defendant
No.5 and the said property is the joint family property.
Hence, the suit.
4. Except defendant No.5 no other defendants
have contested the suit. Defendant No.5 in his written
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statement denied the plaint averments and contended that
item No.2 of the suit schedule property bearing Sy.No.95
is totally measuring 4 acres 18 guntas excluding 3 guntas
of karab. Than an extent of 2 acres 9 guntas of said land
was purchased in the name of defendant No.4-
Varalakshmamma, in terms of deed of sale dated
05.01.1971, while she was minor, aged about 9 years
represented by her mother as natural guardian. Possession
of the said property was delivered in favour of the
defendant No.4-Varalakshmamma and her mother.
Defendant No.5 purchased the said extent of 2 acres 9
guntas of land from the said defendant No.4-
Varalakshmamma in terms of deed of sale dated
21.07.1994 for valuable sale consideration. Revenue
records have been mutated in the name of defendant No.5
vide M.R.No.2/95-96. That the plaintiffs and other
defendants had no share, right, title and interest in item
No.2 of the suit schedule property. He further contended
that defendant No.3-Sri.B.N.Venkatesh who is the owner
of property situated next to the item No.2 of the suit
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schedule property had filed a suit for permanent injunction
in respect of entire extent of 4 acres 18 guntas of land in
O.S.No.219/2007. When the said suit was posted for
arguments, an application under Order 23 Rule 3 of CPC
was filed seeking to withdraw with liberty to file a fresh
suit. Thus at the instigation of defendant No.3 the
plaintiffs have filed the present suit for partition. Hence,
sought for dismissal of the suit.
5. The trial Court based on the pleadings framed
the following issues for its consideration:
i) Whether the plaintiffs prove that
themselves and defendants are members
of Hindu Joint Family?
ii) Whether the plaintiffs further prove that
suit schedule properties are undivided joint
family properties of both themselves and
defendants?
iii) Whether the plaintiffs further prove they
are entitle for 2/5th share in the suit
schedule properties?
iv) Whether the defendant No.4 proves that
suit item No.2 property has been
purchased on 5-1-1971 in which 2 acre 9
guntas belonged to her?
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v) Whether the defendant No.5 further proves
that she is absolute owner of item No.2 of
suit schedule property by virtue of sale
deed dated 21-7-1994?
vi) Whether the plaintiffs further prove that
they are entitle for mesne profits?
vii) What order or decree?
6. On appreciation of the evidence, the trial Court
answered issue Nos.1, 2 and 3 in negative, issue No.5 in
the affirmative and issue Nos.4 and 6 have been treated
as did not arise for consideration. Consequently, dismissed
the suit of the plaintiffs.
7. Being aggrieved by the same, plaintiffs
preferred the appeal in R.A.No.1/2011 before the First
Appellate Court. The First Appellate Court considering the
grounds urged in the appeal memorandum framed the
following points for consideration:
i) Whether the Trial Court was justified in
holding that the suit item Nos.1 and 3 are
not the joint family properties of plaintiffs
and defendant Nos.1 to 3?
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ii) Whether the trial Court was justified in
holding that the suit item No.2 was the
absolute property of Varalakshmamma
under a sale deed dated 05.01.1971 and in
turn she had sold the suit item No.2 to
defendant No.5 under the registered sale
deed dated 21.07.1994?
iii) Whether the Judgment and Decree of the
Trial Court requires interference?
iv) To what order?
8. On re-appreciation of evidence held that the
item No.2 of the suit schedule property having been sold
in favour of defendant No.4 and the same had been
subsequently purchased by defendant No.5 could not be
considered as joint family property and hence, dismissed
the suit as regards item No.2 of the suit schedule
property. However, the First Appellate Court granted relief
of partition in respect of item Nos.1 and 3 of the suit
schedule properties holding plaintiffs being entitle for 2/5th
share therein. Aggrieved by the judgment and order of the
First Appellate Court to the extent declining the plea of the
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plaintiffs in respect of item No.2 of the suit properties, the
present appeal is filed.
9. It is the contention of the appellants that father
of the appellants namely Kuteri Nanjappa on 10.03.1960
had sold the property in Sy.No.129/1 measuring about 24
guntas and another property in Sy.No.128 measuring
about 14 guntas of land and from the said sale proceeds
he had purchased item No.2 of the suit schedule
properties which originally measured 4 acres 18 guntas in
Sy.No.95, in terms of deed of sale dated 05.01.1971. Thus
it is the contention of the appellants that the said item
No.2 of suit schedule property is the joint family property
having purchased from the nucleus of joint family
property. It is further contended that on the very next day
of purchase of said 4 acres 18 guntas of land in Sy No.95,
an extent measuring 2 acres 9 guntas was sold by said
Kuteri Nanjappa in favour of defendant No.4-
Varalakshmamma, since minor represented by her mother
and natural guardian. It is also contended that the said
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defendant No.4 -Varalakshmamma had filed a suit in
O.S.No.117/1986 against the said Kuteri Nanjappa and
Srinivasappa for relief of declaration which was decreed.
Thus based on the aforesaid submissions, learned counsel
for the appellants insists that item No.2 of the suit
schedule properties ought to have been considered as joint
family property by the First Appellate Court granting relief
to the plaintiffs in its entirety. Non-consideration of the
same according to the counsel gives rise to substantial
question of law.
10. On a query by this Court whether any evidence
in justification of contention of the Kuteri Nanjappa selling
property in Sy.Nos.129/1 and 128 on 10.03.1960 and
purchasing the item No.2 of suit schedule properties from
proceeds of such sale as contended in this appeal was
brought on record, learned counsel for the appellants
submits that the material evidence in that regard is
neither placed before the trial Court nor before the First
Appellate Court.
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11. Necessary at this juncture to note that
interestingly an application is filed by defendant No.3-
B.N.Venkatesh under Order 41 Rule 27 of CPC before this
Court seeking to produce certified copy of the deed of sale
dated 10.03.1960.
12. Sri.Ramakrishna Hegde, learned counsel
appearing for respondent No.2-defendant No.3 in support
of the said application submits that contents of the said
deed of sale reveal that the two items of property namely
Sy.No.129/1 and 128 measuring 24 guntas and 14 guntas
respectively were sold by Kuteri Nanjappa to meet the
family necessities. In that he had to defray the hand loan
which he had borrowed from the purchaser of the said
properties. Therefore, he submits that the sale deed was
executed for family necessity. He submits that said
documents could not be produced as the defendants was
not given opportunity to produce before the trial Court and
that no other parties to take any steps to bring the same
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to the notice of the Trial Court and the First Appellate
Court.
13. Sri.B.V.Anand, learned counsel appearing for
respondent No.4-defendant No.5 purchaser of the property
justifying the order passed by the First Appellate Court
submits that 2 acres 9 guntas of land in Sy.No.95 which is
purchased by defendant No.5 was sold by Kuteri Nanjappa
in terms of deed of sale dated 05.01.1971. Revenue
records were made in favour of defendant No.5. That apart
he submits that suit in O.S.No.117/1986 filed by
Varalakshmamma-defendant No.4 who is his vendor was
decreed in her favour confirming her right, title and
interest over the item No.2 of the suit schedule property.
He submits that she being the absolute owner of the
schedule property had every right to alienate the same
which has been purchased by the defendant No.4. Hence,
he submits that appeal be dismissed.
14. Heard. Perused the records.
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15. Though the application under Order 41 Rule 27
of CPC is filed by the defendant No.3 who is respondent
No.2 in this matter before adverting to the merits of the
case, the said application has to be considered. Provision
governing production of additional document is self
contained. Order 41 Rule 27 of CPC reads as under:
"27. Production of additional evidence in
Appellate Court.- (1) The parties to an appeal
shall not be entitled to produce additional
evidence, whether oral or documentary, in the
Appellate Court. But if-
(a) the Court from whose decree the appeal is
preferred has refused to admit evidence which
ought to have been admitted, or
(aa) the party seeking to produce additional
evidence, establishes that notwithstanding the
exercise of due diligence, such evidence was not
within his knowledge or could not, after the
exercise of due diligence, be produced by him at
the time when the decree appealed against was
passed, or
(b) the Appellate Court requires any document to
be produced or any witness to be examined to
enable it to pronounce judgment, or for any
other substantial cause,
the Appellate Court may allow such evidence or
document to be produced, or witness to be
examined.
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(2) Wherever additional evidence is allowed to
be produced by an Appellate Court, the Court
shall record the reason for its admission."
16. Perusal of the affidavit accompanying the said
application does not reveal any justifiable reasons
warranting consideration of the said application. Except
stating at paragraph 9 to the effect that the additional
documents sought to be produced were not in his custody
during the course of the proceedings before the trial Court
and First Appellate Court and that he had obtained the
said documents on 21.02.2023 and he had no knowledge
of the said deed of sale dated 10.03.1960 no other reason
is provided. The additional documents however could be
considered if they are required for just decision of the
matter. Even on this aspect of the matter, this Court is of
the considered view that the said additional document
would not require consideration for the reason that perusal
of the said deed of sale would reveal, even as submitted
by the learned counsel for respondent No.3, that the sale
of two items of the property therein was to repay the hand
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loan which were apparently availed by Kuteri Nanjappa.
Learned counsel for respondent No.3 fairly submits that
even by sale of said property no sale proceeds were
received in hand by the said Kuteri Nanjappa as the
property was sold against the loan amount which he had
apparently borrowed from the buyer. Thus the submission
of the appellants and the respondent No.3 that item No.2
of the suit schedule property was purchased on
05.01.1971 from and out of the proceeds received from
the sale of the said property on 10.03.1960 cannot be
accepted.
17. Be that as it may. The sale of 2 acres 9 guntas
of land in favour of Varalakshmamma/defendant No.4 was
effected on 05.01.1971. Further, she had obtained a
decree of declaration of her title over the item No.2 of the
suit schedule property as far that as on 08.09.1989. That
in exercise of her absolute right of ownership she has sold
item No.2 of the property in favour of defendant No.5
cannot be unsettled merely because the plaintiffs
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contended that the suit property to be the joint family
property without adducing any cogent evidence either
before the trial Court or before the First Appellate Court.
Even otherwise as noted above, the attempt made by the
appellants before this Court and defendant No.3 relying
upon the sale deed dated 10.03.1960 is also of no help.
Thus, as rightly taken note of by the First Appellate Court
item No.1 being the absolute property of the defendant
No.4 and the same having been conveyed in favour of
defendant No.5 was not available for partition.
18. In that view of the matter, no irregularity or
illegality can be found with the reasoning assigned by the
First Appellate Court in declining to grant relief of partition
in respect of item No.2 of the suit schedule property. No
substantial question of law would arise for consideration.
Consequently, I.A.No.2/2023 filed by respondent No.2 -
defendant No.3 under Order 41 Rule 27 of CPC is rejected.
Since no substantial question of law would arise for
consideration, the appeal is also dismissed.
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In view of disposal of the main matter, all pending
I.A's are dismissed.
Sd/-
JUDGE
NS
CT:TSM
