Karnataka High Court
Sri Bhojaraj vs Smt. Sharada on 13 February, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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RSA No. 1338 of 2022
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 13TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 1338 OF 2022 (PAR)
BETWEEN:
SRI BHOJARAJ,
AGED ABOUT 45 YEARS,
S/O LATE VENKATRAMANA GANIGA
R/O VENKATRAMANA ARCADE,
KUNDAPURA TOWN, UDUPI DISTRICT - 576 204.
...APPELLANT
(BY SRI. K SHRIHARI.,ADVOCATE)
AND:
1. SMT. SHARADA,
AGED ABOUT 63 YEARS,
W/O LATE VENKATRAMANA GANIGA,
R/O MANEGAR HOUSE,
KUMBHASHI VILLAGE AND POST,
KUNDAPURA TALUK,
Digitally signed UDUPI DISTRICT - 576204
by SUMA B N
Location: High 2. SRI. NATARAJ.G.V.
Court of S/O LATE VENKATRAMANAGANIGA,
Karnataka
AGED ABOUT 43 YEAS,
R/O MANEGAR HOUSE,
KUMBHASHI VILLAGE AND POST,
KUNDAPURA TALUK,
UDUPI DISTRICT - 576204
...RESPONDENTS
(BY SRI. CHANDRANATH ARIGA K.,ADVOCATE)
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RSA No. 1338 of 2022
THIS RSA FILED UNDER SECTION 100 OF CPC AGAINST THE
JUDGMENT AND DECREE PASSED IN RA.No.39/2017 ON THE FILE OF
THE SENIOR CIVIL JUDGE KUNDAPURA DATED 26.07.2022 AND THE
JUDGMENT AND DECREE IN O.S. No.137/2008 DATED 22.09.2017
ON THE FILE OF THE II ADDITIONAL CIVIL JUDGE AND JMFC
KUNDAPURA AND PASS JUDGMENT BY DECREEING THE SUIT OF THE
PLAINTIFF AND ETC.,
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY, THE
COURT DELIVERED THE FOLLOWING:
JUDGMENT
This appeal is filed by the unsuccessful plaintiff aggrieved
by the judgment and decree dated 22.09.2017 passed in
O.S.No.137/2008 on the file of II Additional Civil Judge and
J.M.F.C, Kundapura (hereinafter 'the Trial Court') which is
confirmed by the judgment and order dated 26.07.2022 passed
in R.A.No.39/2017 on the file of Senior Civil Judge, Kundapura.
(hereinafter 'the First Appellate Court').
2. The above suit is O.S.No.137/2008 is filed by the
plaintiff/appellant herein seeking relief of partition in respect of
suit schedule property which is land bearing Sy.No.3-1B1.P2
measuring 0.19 cents on the premise that the said land was
granted by the Land Tribunal, Kundapura in the name of Late
Venkataramama Ganiga, who is the husband of the defendant
No.1 and the father of the defendant No. 2 and plaintiff in the
proceeding number TRI No. 4069/1977-78. It is case of the
plaintiff, ever since the date of grant made as above plaintiffs,
defendants and Late Venkataramana Ganiga were in the joint
possession and enjoyment of the schedule property in which
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there is a residential house constructed by the amount invested
by the plaintiff and Late Venkataramana Ganiga. It is further
contended that defendant No.2 who has been involved in
criminal activities was constantly creating mischief and
nuisance to the defendant No.1 and her husband. The father of
the defendant No.1 and the plaintiff unbearable torture of went
into illness from which he never recovered. He was admitted to
the hospital between 07.06.2008 to 17.06.2008. That he was
in unconscious stage when he was admitted to K.M.C. Hospital,
Manipal. That, upon the request of the defendant No.2 to
discharge his father, he was discharged against the medical
advise of the doctor and defendant No.2 had taken him while
he was in unconscious stage and readmitted him to S.D.M.
Ayurvedic Hospital, Udupi. Again on 17.06.2008 at about 3.00
p.m., defendant No.2 had came to S.D.M. Ayurveda and
insisted the doctors to discharge the him. Accordingly, doctors
had discharged him at 3.00 p.m. Defendant had taken him in a
vehicle and came home at 6.00 p.m. and found that her
husband was in deep coma stage. As such he was shifted to
N.R.Acharya Memorial Hospital, Koteshwara on 18.06.2008 and
was kept in Intensive Care Unit till he passed away on 20-06-
2008.
2.1 It is contended that plaintiff and defendant No.1
together completed all the final rites and rituals of
Venkataramana Ganiga. Soon thereafter defendant No.2 had
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given ultimatum to the defendant No.1 and the plaintiff to
vacate the house situated in the suit schedule property,
though the plaintiff and the defendant were entitled for 1/3rd
equal share over the suit schedule property. When the plaintiff
demanded partition of the suit schedule property seeking
allotment of 1/3rd of his share, same was refused. Hence, he
filed the suit.
2.2 The defendant No.1 filed the written statement
admitting the claim of the plaintiff. The defendant No.2 in his
written statement has denied the plaint averments. He however
admitted the grant of occupancy rights in respect of suit
schedule property in favour of his father. He contended that
the suit schedule property was the self acquired property of
deceased Venkataramana Ganiga and as such he was in
occupation and enjoyment of the said property. It is further
contended that said Venkataramana Ganiga during his lifetime
in exercise of his absolute ownership over the property had
executed a Registered Deed of Gift dated 17.06.2008 in favour
of defendant No.2. The allegation made in the plaint in regard
to health condition of the deceased Venkataramana Ganiga has
been denied. It is contended that right, title and interest in the
suit schedule property was duly conveyed by Venkataramana
Ganiga in favour of defendant No.2 by virtue of said Registered
Deed of Gift dated 17.06.2008 which is valid and subsisting.
Hence, sought for dismissal of the suit.
3. Based on the pleadings, the Trial Court framed the
following issues for its consideration:
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"1) Whether the plaintiff proves that 'A' schedule
property is a joint family property and in the joint
possession and enjoyment of plaintiff and
defendants?
2) Whether the plaintiff proves that suit 'A' schedule
property is liable to divided into 3 shares and plaintiff
is entitled for 1/3rd share?
3) Whether the 2nd defendant proves that suit 'A'
schedule property was granted by Land Tribunal in
favour of Venkataramana Ganiga, the father of 1st
and 2nd defendants on his individual capacity? and
4) Whether the 2nd defendant proves that the father
of the defendants in sound and good disposing state
of mind executed a registered deed for gift dated 17-
06-2008 document No. 710/1/08-09 in favour of 2nd
defendant and the same was acted upon and came
into force during the life time of his father?
5) Whether the Court fee paid is sufficient?
6) What order or decree?'
4. The plaintiff examined himself as PW1 and got
examined three other witnesses as PW2 to PW4 in his favour
and exhibited 9 documents marked as Ex.P1 to Ex.P9. In order
to prove their defence, defendant No.1 examined himself as
DW1 and other two witnesses marked as DW.2 and DW.3 and
exhibited 6 documents marked as Ex.D1 to Ex.D6. On
appreciation of the evidence the Trial Court answered issue
Nos.1 and 2 in the negative and issue Nos.3 to 5 in the
affirmative to and consequently dismissed the suit.
5. Being aggrieved by the aforesaid judgment and decree
plaintiff filed an appeal in R.A.No.39/2017 before the First
Appellate Court. Considering the grounds urged the First
Appellate Court framed the following points for its
consideration:
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"1. Whether the plaintiff established before the
Trial Court that the suit land is under joint
possession of himself and defendants?
2. Whether the plaintiff establishes that the
execution of the Gift Deed in the name of the
defendant No.2 was concocted by taking the
advantages of Venkatramana Ganiga when he
was in hospital between 27-05-2008 to 20-06-
2008.?
3. Whether the defendant No.2 established before
the Trial Court that the Ex.D.1 gift deed dated 17-
06-2008 was voluntarily executed by the
deceased Venkatramana Ganiga out of his love
and affection without any influence?
4. Whether the trial Court has grossly erred in
dismissal of the suit and it requires interference
by this Court?
5. If so, what order or decree?"
6. On re-appreciation of the evidences, the First Appellate
Court answered point Nos.1, 2 and 4 in the negative and point
No.4 in the affirmative and consequently dismissed the appeal
confirming the judgment and decree passed by the Trial Court.
Being aggrieved by the same plaintiff filed the present appeal.
7. Sri.K Shrihari, learned counsel for the appellant
reiterating the grounds urged in the memorandum of the
appeal submitted that the Trial Court and the First Appellate
Court grossly erred in concluding that the suit schedule
property was the self acquired property of deceased
Venkataramana Ganiga while the said property was the joint
family property. He submits the moment the said property was
granted, plaintiff having been born was entitled for the vested
right of his share in the suit schedule property. He submits
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that grant made in favour of the member of the joint family
would enure to the benefit of other members of the joint family
and the plaintiff being the member of the joint family was
entitled to the share of the property. Since the suit schedule
property is the joint family property in which the plaintiff had
his vested 1/3rd share, deceased Venkataramana Ganiga could
not have executed the deed of gift in favour of defendant No.2.
He submits that even otherwise facts pleaded by the plaintiff
with regard to frequent admission and discharge of the
deceased Venkataramana Ganiga few months prior to his death
would indicate that he was not in a sound mind of disposition
as such the deed of gift under which defendant No.2 is claiming
is void and unenforceable.
8. In support of his submission, learned counsel for the
appellant has relied upon the following judgments:
i. N.Padmamma Vs S.Ramakrishna Reddy
reported in (2008) 15 SCC 517.
ii. Thamma Venkata Subbamma Vs.
Thamma Rattamma and Others reported in
(1987) 3 SCC 294.
Thus, he submits that substantial question of law would
raise for consideration in this matter.
9. In response, Sri.Chandrakanth Ariga, learned counsel
for the respondents justifying the judgment and decree passed
by the Trial Court confirmed by the judgment and order of the
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First Appellate Court submits that, the Trial Court and the First
Appellate Court on appreciating the pleading and evidence has
come to the conclusion that the suit schedule property was
never a joint family property and it was absolute property of
the deceased Venkataramana Ganiga. He submits that being
the findings on facts, Venkataramana Ganiga had every right to
execute the deed of gift, which he did during his lifetime and
the same not having been challenged by the plaintiff cannot be
called in question. He submits that the reliance placed by
learned counsel for the appellant and the judgments are not
applicable to the facts situation of the matter. He submits that,
no substantial question of law would arise for consideration and
hence seeks for dismissal of the appeal.
11. Heard. Perused the records.
12. The suit is one for partition filed by the plaintiffs on
the premise that the suit schedule property is the joint family
property and that he has 1/3rd vested right, share, title and
interest in the same and that his father Venkataramana Ganiga
could not have executed deed of gift in favour of defendant
No.2 depriving the share, right, title and interest of the plaintiff
in the suit property. While answering Issue No.1 and No.2 the
Trial Court had taken note of the pleading and admission made
by plaintiff and in the plant. As seen at para 16 of the
judgment of the Trial Court the plaintiff himself had produced
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Form No.10 granted by Land Tribunal, Kundapura which is
marked as Ex.P2, which according to the findings of the Trial
Court indicate that the land was granted in favour
Venkataramana Ganiga in his individual capacity. The Trial
Court has also taken note of the deposition of the PW.1, who in
the cross-examination has stated that suit 'A' property was
acquired by his father from his mother (grand mother of the
plaintiff) and that they are governed by the Mithakshara Law.
He has further admitted that, while he was giving instruction to
his counsel he had stated that it was a self acquired property of
his father. He has also admitted that he had no document to
show that his father acquired the suit schedule property
through his mother (grand mother of the plaintiff). He has also
pleaded ignorance if his mother had executed any document in
favour of his father, though he has claimed that he has seen
such a document and that he has no difficulty in producing such
a document. He has admitted that on and from 01.03.1974
and just before the death of his father, said property was in
absolute possession of his father Venkataramana Ganiga. He
denied that the application for grant of land was made in his
individual capacity. However, he has admitted that the Land
Tribunal had declared Venkataramana Ganiga was entitled for
occupancy rights in his individual capacity. He has however
expressed his ignorance of he having seen any order of the
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Land Tribunal. The Trial Court taking note of the pleadings and
the depositions, more particularly the admission referred to
above has opined that there is inconsistency in the pleadings
and the depositions of the plaintiff. In that while plaintiff No.1
claims that his father acquired the property through his mother
(grand mother of the plaintiff) and having failed to produce any
document in support of his said contention, has also admitted
that land was granted to his father in his individual capacity. In
the absence of any material evidence produced by the plaintiff
in justification of the suit schedule property was acquired by his
father through his grand mother and in view of the order of the
Tribunal, more particularly Form No.10 produced at Ex.P2 by
the plaintiff himself indicating the schedule property was
granted to the deceased Venkataramana Ganiga in his
individual capacity, finding and the conclusion arrived at by the
Trial Court declining the contention of the plaintiff of suit
schedule property being the joint family property cannot be
found fault with. The First Appellate Court on re-appreciation
of the evidence has confirmed the same.
13. Adverting to the judgments referred to by the learned
counsel for the appellant, more particularly to the judgment of
Apex Court in the case of N.Padmamma Vs S.Ramakrishna
Reddy reported in (2008) 15 SCC 517, whereby learned
counsel for the appellant referring to para No.11 of the said
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judgment emphatically submitted that the law is well settled in
that grant of occupancy right made in favour of co-sharer is
held to enure to the benefit of entire family members. The
other judgments referred to by the appellant are on the same
principle. There is no dispute with regard to the said
proposition, however application of the same to the instant
case is of no avail.
14. Proposition that grant of land in favour co-sharer
would enure to the benefit of other co-sharer is only in the
cases where there is existence of a joint family and joint family
property and co-sharer having pre-existing right or privilege in
respect of the land granted and the said rule has no universal
application as in the case at hand, where the plaintiff has failed
to adduce any evidence of land being joint family property. As
such the reliance placed by the appellant to the aforesaid
judgment is of no avail.
15. On a query by this Court, if the plaintiff had
challenged the deed of gift executed by Venkataramana Ganiga
in favour of defendant No.2, counsel for the appellant
submitted that there is no need to challenge the deed of gift on
the premise that the father of the plaintiff was not in sound
mind of disposition. Learned counsel for the appellant refers to
series of dates and events right from 25.06.2008 to
17.07.2008, where deceased Venkataramana Ganiga was
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admitted and discharged to and from various hospital for the
purpose of treatment. He submits that these events are
sufficient enough to indicate that he was not in sound mind of
disposition. Which in other words have effect on validity or
otherwise of the deed of gift.
16. It is his submission that these facts indicate that since
he was not in sound mind of disposition the deed of gift
executed by him would render itself void. Further he relies
upon the judgment of Apex Court in the case of Thamma
Venkata Subbamma Vs. Thamma Rattamma and Others
reported in (1987) 3 SCC 294 to contend that even if there
was a deed of gift as law enunciated by the Apex Court in said
case Thamma Venkata Subbamma(Supra) alienation of the
coparcenary property by way of gift would amount to
renunciation of relinquishment of his share in favour of other
coparceners. Therefore, he submits that even if the deed of
gift is executed that would enure to the benefits of other co-
sharers. On these two premise, learned counsel for the
appellant submits that there was no mean to challenge the
deed of gift.
17. This Court is not inclined to accept the said submission
for two reasons. Firstly, plaintiff has failed to prove and
establish the property to be the joint family property or it was
inherited property. The Trial Court and the First Appellate
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Court on facts have arrived at the conclusion as noted above
that the land was granted in favour of Venkataramana Ganiga
in his individual capacity, execution of the deed of gift not
having been challenged cannot be presumed to be void merely
because Venkataramana Ganiga was admitted into and
discharged from the hospitals prior to his death. Secondly, the
reliance placed by the counsel for the appellant in the case of
Thamma Venkata Subbamma(Supra) is completely on a
different factual aspect of the matter, wherein, admittedly
subject matter of gift was coparcenary property.
18. In view of the aforesaid factual and legal aspect of the
matter, this Court do not find any error or irregularity in the
reasoning and conclusion arrived at by the Trial Court
confirming by the First Appellate Court. No substantial question
of law would arise for consideration in this appeal. Accordingly,
appeal is dismissed.
Sd/-
JUDGE
RL
