Karnataka High Court
Chikkananje Gowda Dead By Lrs vs Jayamma on 21 February, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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RSA No. 2085 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 21ST DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 2085 OF 2023 (PAR)
BETWEEN:
CHIKKANANJE GOWDA DEAD BY LR'S
1. LAKSHMAMMA,
W/O A.V. NANJEGOWDA,
AGED ABOUT 57 YEARS,
2. SHIVARAJ
S/O A V NANJEGOWDA,
AGED ABOUT 36 YEARS,
3. GANAVI
D/O A.V. NANJEGOWDA,
AGED ABOUT 32 YEARS,
APPELLANTS ARE RESIDING AT
Digitally
signed by ANAKUNURU VILLAGE,
SUMA B N KASABA HOBLI,
Location: High CHIKKABALLAPURA TALUK,
Court of
Karnataka CHIKKABALLAPURA DISTRICT 562101
...APPELLANTS
(BY SRI. Y.R. SADASHIVA REDDY, SENIOR COUNSEL FOR
SRI. RAHUL S REDDY.,ADVOCATE)
AND:
1. JAYAMMA
W/O HANUMANTHAPPA,
AGED ABOUT 62 YEARS,
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RSA No. 2085 of 2023
2. BHAVANA
W/O HARISH,
AGED ABOUT 31 YEARS,
RESPONDENT NOs.1 & 2 RESIDING AT
MALLAMACHANAHALLI VILLAGE,
SHIDDLAGHATTA TALUK,
CHIKKABALLAPURA DISTRICT - 562 105.
MUNICHENNAMMA
DEAD BY LR'S,
3. BYRAPPA,
S/O LATE VENKATASHAMAPPA,
AGED ABOUT 67 YEARS,
R/A NO 42, 7TH CROSS,
NARSIPURA LAYOUT,
BANGALORE - 560 097.
...RESPONDENTS
(BY SMT. RASHMI K., ADVOCATE A/W
SRI. M. SUBRAMANYA BHAT FOR R3
DR. B. MANJUNATH, ADVOCATE FOR R1)
THIS RSA IS FILED UNDER SEC.100 OF CPC., AGAINST
THE JUDGMENT AND DECREE DATED 21.03.2023 PASSED IN
OS NO.128/2016 ON THE FILE OF I ADDITIONAL SENIOR CIVIL
JUDGE AND JMFC, CHIKKABALLAPURA. AND THE JUDGMENT
AND DECREE DATED 04.11.2023 PASSED IN RA NO.39/2023
ON THE FILE OF III ADDITIONAL DISTRICT AND SESSIONS
JUDGE, CHIKKABALLAPURA, AND DISMISS THE SUIT FILED BY
THE RESPONDENT NO.1 AND 2.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RSA No. 2085 of 2023
JUDGMENT
This appeal is filed by the legal representative of the
defendant No.3 aggrieved by the judgment and decree
dated 21.03.2023 passed in O.S.No.128/2016 on the file of
the I Additional Senior Civil Judge and J.M.F.C,
Chikkaballapura (hereinafter 'the Trial Court') which is
confirmed by the judgment and order dated 04.11.2023
passed in R.A.No.39/2023 on the file of III Additional District
and Sessions Judge, Chikkaballapura (hereinafter 'the First
Appellate Court').
2. The above suit in O.S.No.128/2016 is filed by the
plaintiffs claiming that the defendant No.1 is their mother,
and that plaintiff No.1 and defendant Nos.2 and 3 are her
children. The defendant No.2 is the father of the plaintiff
No.2. Plaintiffs and defendants are the members of the
Hindu undivided joint family. That the plaintiff No.2 was
married about 9 years ago. The plaintiff No.1 was married
two decades ago. The plaintiffs are living separately in their
respective matrimonial homes. It is their contention that the
plaint schedule properties are the undivided joint family
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properties of the plaintiffs and defendants No.1 to 3 and
there is no partition of the same. That the plaint schedule
properties devolved upon defendant No.1 in the family
partition from her ancestors. The defendant No.3 by playing
fraud on the pretext of oral partition got the khatha of the
properties changed in his name. As the plaint schedule
properties are not the self acquired properties of defendant
No.3, demand made by the plaintiffs for partition was
declined, constraining them to file the suit.
3. During the pendency of the suit, defendant No.1
passed away leaving behind plaintiffs and defendants No.2
and 3 as her legal heirs. The defendant No.3 also passed
away leaving behind defendant No.3(a) to (c) as his legal
heirs who the appellants.
3.1 The defendant No.1 in her written statement
though admitted the relationship, denied the case of the
plaintiffs. It is contended that the plaint schedule properties
are not the joint family properties and the description of the
properties is not clear. It is contended that Item No.1 of the
plaint schedule property is the self acquired property of the
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defendant No.3, who out of his hard work and labour had
acquired the same, in terms of deed of sale bearing
No.2792/1995-96 from one Smt.Byamma w/o Channappa
and her children and there was no contribution from anyone
for the purpose of purchase of the Item No.1 of the plaint
schedule property.
3.2 As regard, plaint 'B' schedule property is
concerned, it is contended that the same originally belonged
to Avalappa and Munishamappa who were the sons of Dodda
Nanjappa. One Shanthamma and defendant No. 1 are the
daughters of Dodda Nanjappa. Brothers of defendant No.1
gifted 'B' schedule property in favour of defendant No.1 and
her sister Shanthamma in terms of registered deed of gift
dated 03.05.1975. That the said Shanthamma was a
spinster. She was residing with the defendant No.1. That
the said Shanthamma had taken shelter with the defendant
No.3. That the Shanthamma and defendant No.1 have orally
given up their rights over plaint 'B' schedule property in
favour of the defendant No.3 by way of oral partition. That
by consent, the revenue records were mutated in the name
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of defendant No.3. Shanthamma passed away unmarried.
Therefore, it is contended that 'A' and 'B' schedule properties
are the self acquired properties of the defendant No.3. As
such, the plaintiffs are not entitled for any share in respect of
the suit schedule property.
3.3 The defendant No.3(a) to (c) in their written
statement adopted the contention of the defendant No.1. In
addition they also set-up the defense that the suit is barred
by limitation. As such, sought for dismissal of the suit.
4. The Trial Court framed the following issues for its
consideration:
"1) Whether the plaintiffs prove that the suit
schedule properties are their ancestral and
joint family properties?
2) Whether the plaintiffs prove that they are
having the share in the suit schedule
properties? If so, to what extent?
3) Whether the plaintiffs prove that 3
defendant is the stranger to the family as well
as to the suit schedule properties?
4) Whether the plaintiffs prove that they are
entitled for the relief as sought?
5) What order or decree?"
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5. The plaintiff No.1 examined himself as PW1 and also
examined two additional witnesses as PW2 and PW3 and
exhibited 18 documents marked as Ex.P1 to Ex.P18. In
order to prove their defence, defendant No.3(b) examined
himself as DW1 and examined two additional witnesses as
DW2 and DW3 and exhibited 19 documents marked as Ex.D1
to Ex.D19. Further, defendant No.2 examined himself as
DW4 and exhibited 3 documents which is marked as Ex.D20
to Ex.D22.
6. After recording the evidence, the Trial Court held that
plaintiff No.1 is entitled for 1/3rd share in 'B' schedule
property and claim of the plaintiffs in respect of in 'A'
schedule property is dismissed.
7. Being aggrieved by the same the defendant No.3(a)
to 3(c) filed regular appeal in R.A.No.39/2023 before the
First Appellate Court, no appeal is filed by the plaintiffs
against the dismissal of their claim in respect of plaint 'A'
schedule property. Considering the grounds urged the First
Appellate Court framed following points for its consideration:
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1. Whether the plaintiffs prove that the suit
schedule properties are their ancestral and joint
family properties?
2. Whether the Appellant/Lrs of defendant
No.3(a) to 3(c) proves that the judgment and
decree of the trial court is not in accordance with
law and it is perverse?
3. Whether the appellants/Lrs defendants 3(a) to
3(c) proves that the interference of this court is
very much necessary to the judgment and decree
of the trial court?
4. Whether appellants/Lrs of defendant No.3(a)
to 3(c) proves that LA.No.1 filed by them under
order 41 Rule 27 and Section 151 of CPC
deserves to be allowed?
5. What order?"
8. On re-appreciation of the evidences the First
Appellate Court answered point Nos.1 to 4 in the negative
and consequently dismissed the appeal. Being aggrieved by
the same the present appeal is filed by the legal
representatives of the defendant No.3.
9. Sri. Y.R.Sadashiva Reddy, learned senior counsel for
the appellants reiterating the grounds urged in the
memorandum of the appeal submitted that the Trial Court
and the First Appellate Court erred in not accepting the
settlement that had taken place in the year 1995, during the
lifetime of defendant No.1, based on which the revenue
records were mutated. He further submits that the Trial
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Court and the First Appellate Court having held that the
defendant No.1 being an absolute owner of the 'B' schedule
property, ought not to have negated the claim of defendant
No.3, of defendant No.1 having settled the property in favour
of defendant No.3. He submits that defendant No.1 being
the absolute owner of the suit property, is entitled to convey
her rights in the manner she desires and there is no
impediment in conveying her rights the way she desires. He
submits that the conveyance of the property in favour of the
defendant No.3 by way of unregistered settlement ought to
have been accepted by the Trial Court and the First Appellate
Court. He relies upon the judgment of the Apex Court in the
case of Thulasidhara and another Vs. Narayanappa and
others passed in Civil Appeal No.784/2010 decided on
01.05.2019 and referring to the said judgment, learned
senior counsel insists that the Apex Court has recognized
unregistered palupatti as enforceable in law. Thus, his
submission is that the judgment and decree and Order
passed the Trial Court and the First Appellate Court suffers
from perversity in not appreciating the settlement deed and
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also runs contrary to the law laid by the Apex Court, giving
raise to substantial question of law.
10. Per contra, Smt.Rashmi.K, learned counsel for the
respondent justifying the judgment and decree passed by
the Trial Court and the First Appellate Court submitted that
the Trial Court and the First Appellate have concluded that
the schedule 'B' property belonged to defendant No.1, who is
none other than the mother of the plaintiffs and defendant
Nos.2 and 3. She submits that since defendant No.1 passed
away during the pendency of the suit, the Trial Court and the
First Appellate recognizing the devolution of the property
upon her surviving legal heirs namely the plaintiffs and
defendant Nos.2 and 3 has allotted 1/3rd share. She further
submits that the purported settlement being claimed by the
defendant No.3 is unregistered and cannot be given effect to.
Thus, she submits that no error or irregularities committed
by the Trial Court and the First Appellate Court in decreeing
the suit to the extent of schedule 'B' property.
11. Heard. Perused the records.
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12. The trial Court and the first appellate Court have
concurred that the schedule 'A' of the plaint schedule
property is the self acquired property of the defendant
No.3. Since no challenge is made to that effect, said
question does not arise for consideration.
13. As regards, schedule 'B' of the plaint schedule
property is concerned, it is a specific case of the deceased
defendant No.1 that she acquired the schedule 'B' property
in terms of registered deed of gift executed by her brothers,
in her favour and in favour of her sister Shanthamma. The
defendant No.3 also confirms the said stand. However,
defendant No.1 as well as defendant No.3 in their written
statement have contended that defendant No.1 and
Shanthamma had conveyed the said property orally in
favour of defendant No.3, which according to defendant
No.3 is evidenced by a copy of purported memorandum of
partition produced at Ex.D6. Before the Trial Court though
witnesses namely Dw.2 and Dw.3 have been examined to
prove Ex.D6, in the absence of production of original of
Ex.D6 and identification of signature, Trial Court has
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declined to accept the case of Defendant No.3. Relevant to
note that the defendant No.2 has disputed Ex.D6. He had
made an application seeking scientific investigation of the
said document which was allowed. However, defendant
No.3(a) to 3(c) did not produce the original of Ex.D6.
14. Admittedly, Ex.D6 is unregistered document.
When it is concluded that schedule 'B' property is the
absolute property of defendant No.1 and her sister
Shanthamma they having acquired the same in terms of a
deed of gift, divesting of their right, title and interest in
the said property or creation of any right, title and interest
in respect of the said property in favour of defendant No.3
ought to have been in compliance with and in the manner
known to law which is Section 17 of the Registration Act,
1908. The mode of conveyance relied upon by the
defendant No.3 being Ex.D6 an unregistered purported
settlement deed, not meeting the requirement of law
cannot be said to be valid conveyance in the eye of law.
As such, defendant No.3 cannot derive any right, title and
interest in respect of schedule 'B' property which was the
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absolute property of defendant No.1 and her sister
Shanthamma based on Ex.D6.
15. The First Appellate Court at para No.23 and 24 of
its judgment has also examined the position of law with
regard to the claim of the defendant No.3 of there being a
oral partition between defendant No.1 and Shanthamma
and defendant No.3 and has also taken note of modes of
conveyance recognized under law and has declined to
accept the same as on the facts circumstance of the
matter and in the absence of production of acceptable
material evidence. It has held that there cannot be any
such oral partition and even if there is one the same was
not valid under law and has concluded that defendant No.3
cannot claim the property to be his self acquired property.
16. Thus, The Trial Court and the First Appellate
Court having appreciated this aspect of the matter have
negated the claim of defendant No.3 of he being absolute
owner of the schedule 'B' property. No error or
irregularities can be found in the reasoning and conclusion
arrived at by the Trial Court and the First Appellate.
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17. Reliance placed by the learned senior counsel for
the appellant upon the judgment of the Apex Court in the
case of Thulasidhara(supra) has no application to the
instant case as the said case dealt with the facts involving
partition of the family properties in terms of palupatti which
contained the list of joint family properties. The facts of
instant case being completely different and distinct,
appellant cannot avail any benefits from the said judgment
of the Apex Court.
In that view of the matter, no substantial question of law
would arise for consideration in this appeal. Appeal is
dismissed confirming the judgment and decree passed by the
Trial Court and the First Appellate Court.
Sd/-
JUDGE
RL
