Karnataka High Court
Sri P Venkatesha vs P Pachappa on 27 February, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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RSA No. 1516 of 2018
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF FEBRUARY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
REGULAR SECOND APPEAL NO. 1516 OF 2018 (PAR)
BETWEEN:
SRI. P. VENKATESHA,
S/O. P. PACHAPPA,
AGED ABOUT 45 YEARS,
TAX CONSULTANT AND PRACTICING ADVOCATE,
KADIVANAKATTE VILLAGE,
KASABA HOBLI,
HOSADURGA TALUK,
CHITRADURGA DISTRICT - 577 527.
...APPELLANT
(BY SRI. C. GOPALAKRISHNA MURTHY., ADVOCATE)
AND:
1. P. PACHAPPA,
S/O. LATE. KANNAN,
Digitally signed by AGED ABOUT 71 YEARS,
SUMA B N
AGRICULTURIST.
Location: High
Court of Karnataka 2. P. JAGANATHA,
S/O. P. PACHAPPA,
AGED ABOUT 49 YEARS.
3. P. NANDAKUMAR,
S/O. P. PACHAPPA,
AGED ABOUT 47 YEARS.
4. P. RAJENDRA,
S/O. P. PACHAPPA,
AGED ABOUT 43 YEARS.
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RSA No. 1516 of 2018
5. P. RAMU,
S/O. P PACHAPPA,
AGED ABOUT 41 YEARS.
6. P. VIJAYA KUMAR,
S/O. P. PACHAPPA,
AGED ABOUT 39 YEARS.
7. MANJULA,
D/O. P. PACHAPPA,
AGED ABOUT 51 YEARS,
ALL ARE R/O. N.T.B. ROAD,
JANNAPURA,
BHADRAVATHI TOWN AND TALUK,
SHIVAMOGGA DISTRICT - 577 301.
...RESPONDENTS
(BY SRI. S.V. PRAKASH AND
SRI. UMESH MOOLIMANI,ADVOCATE)
THIS RSA FILED U/S. 100 OF CPC AGAINST THE
JUDGEMENT AND DECREE DTD 01.08.2017 PASSED IN R.A.NO.
146/2016 ON THE FILE OF THE SENIOR CIVIL JUDGE AND
JMFC., AT HOSADURGA, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGEMENT AND DECREE DTD 13.02.2014
PASSED IN OS.NO.152/2012 ON THE FILE OF THE ADDITIONAL
CIVIL JUDGE, HOSADURGA.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RSA No. 1516 of 2018
JUDGMENT
The above appeal is filed by the appellant aggrieved by
the judgment and decree dated 13.02.2014 passed in
O.S.No.152/2012 on the file of the Additional Civil Judge and
JMFC, Hosadurga, (Trial Court), which is confirmed by the
judgment and order dated 01.08.2017 passed in
RA.No.146/2016 on the file of the Senior Civil Judge and JMFC,
Hosadurga (First Appellate Court).
2. The above suit is filed by plaintiffs against the
defendant for relief of partition and separate possession of suit
schedule property, which is agricultural land of 3-00 acres in
survey No.6/7B and 0-20 guntas of land in survey No. 6/7A,
situated at Kadivanakatte Village, Kasaba Hobli, Hosadurga
Taluk and also for declaration that Deed of Gift dated
03.09.2011 executed by the defendant in favour of his wife is
not binding on the plaintiffs.
3. Plaintiff No.1 is the father of plaintiff Nos.2 to 7 and
defendant. Plaintiffs and defendant are members of the joint
family. Plaintiff No.1 was working in Vishweshwarya Iron and
Steel Ltd., and during his tenure he purchased suit schedule
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property in terms of a registered deed of sale in the name of
the defendant. That the entire suit schedule property belongs
to the joint family each one having 1/8th share in the suit
schedule property. When plaintiffs requested the defendant for
partition of the property, defendant threatened and made
attempts to transfer the property in favour of his wife
constraining the plaintiffs to file the suit.
4. Defendant filed written statement claiming that he
purchased the schedule property, out of the own income
derived by his profession as tax consultant. It is contended that
he completed his qualification of B.Com LLB and started
practicing and he purchased the property without any aid of the
plaintiffs out of his own income earned from the said
profession. It is contended plaintiff No.1 has house in
Bhadravathi and defendant also has a share in the said
property. Hence sought for dismissal of the suit.
5. Trial Court framed the following issues:-
1.Whether plaintiffs prove that, they have got 1/8th
share each in the suit schedule property?
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1(a). Whether plaintiffs prove that, the Gift deed dated
03.09.2011 is null and void and does not bind on the
plaintiffs?
2. Are plaintiffs entitled to the relief of partition? And if
so, what share is entitled to?
3.Does defendant prove that suit schedule property is
his self-acquired property?
4.Does defendant prove that suit is not competent for
non-inclusion of joint family properties standing in the
name of plaintiff?
5. Whether plaintiff entitled the relief as sought in the
plait?
6.What order or decree?"
6. Plaintiff No.1 examined himself as PW1 and got marked
document as exhibit 5 documents exhibit 5. Defendant
examined himself as DW1 and got marked as exhibit 1
document as exhibit D1. Trial Court answer issue Nos.1(A), 2
and 5 in the affirmative and issue Nos.3 and 4 in the negative
and consequently decreed the suit. Being aggrieved by the
same defendant preferred regular appeal before the First
Appellate Court. Considering the grounds urged therein, the
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First Appellate Court framed the following points for
consideration:
"1.Whether appellant has been able to prove that
suit schedule property is his self-acquired property?
2. Whether appellant has made out grounds to set
aside the judgment and decree of the trial Court?
3. What Order?"
and on re-appreciation the evidence answered the points Nos.1
and 2 in the negative and consequently dismissed the appeal.
Being aggrieved by the same appellant before this Court.
7. Sri. C. Gopalakrishna Murthy, learned counsel
appearing for appellant reiterating the grounds urged in the
memorandum of appeal submits that the sale deed under which
schedule property was purchased produced as exhibit D1
categorically evidences the fact that the schedule property was
purchased by the defendant/appellant out of his own income
and self earning which he earned through his profession as tax
consultant and as a lawyer. He submits that the Trial Court and
the First Appellate Court have negated the evidence adduced
by the defendant regarding his title over the properties. It is his
further submission that Gift Deed, which was executed by the
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defendant in favour of his wife, is valid and subsisting and
without making a Donee as the party, suit could not have been
maintained. It is further submits that other joint family
property namely residential house has not been included in the
suit schedule property. Thus submits that the suit could not
have been decreed, giving rise to substantial question of law
warranting consideration at the hands of this Court.
8. Per contra, learned counsel appearing for the
respondents/plaintiffs submits that the suit schedule property
was purchased on 07.01.2005. The defendant had had no
independent source of income to purchase the property. Suit
schedule property was purchased by the plaintiff No.1 who was
in service by availing loan and with the contribution firm all as
such the property had been considered as joint family property
both the Trial Court and the First Appellate Court. He further
submits that in the recital of the sale deed Exhibit P1 there is
mentioned about the contribution of sale consideration of all
the members of the family. Thus he submits that trial Court
and First Appellate Court have taken into consideration, these
aspects of the matter and in decreeing the suit, submits the
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substantial question of law would arise for consideration
warranting interference.
9. Heard, perused the records.
10. Relationship between the parties is not in dispute.
The fact that plaintiff No.1 is working in Vishweshwarya Iron
Steel Ltd is also not in dispute. The Trial Court and the First
Appellate Court have also taken into consideration the recital in
the deed of sale which reads that the total sale consideration
has been paid from the joint family funds belonging to the six
brother being members of the joint family. The Trial Court and
First Appellate Court have also taken consideration the fact that
the recital of the sale deed of registered document cannot be
substituted by oral evidence, as sought to be contended by the
defendant. The Trial Court and First Appellate Court have also
taken not of the fact the said deed of sale was admittedly
drafted by the appellant/defendant have thus came to the
conclusion in view of the recital contained in the sale deed,
regarding each member of the family having contributed
towards the sale consideration for the purpose of purchase of
the property, each member in for entitle for share in the
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property relevant at this juncture to refer to under Section 45
of the Transfer of Property Act, 1882.
11. It may be that only the name of
appellant/defendant is shown as a purchaser but in view of the
recital contained in registered document which in unambiguous
term recites payment of sale consideration by all the members
of the joint family and in the absence of appellant/defendant
proving to the contrary, each one of them are entitled to share
to the extent of contribution made by them. Since the
appellant/defendant has not brought on record any material to
substantiate his contention of residential property at
Bhadravathi being ancestral property of the plaintiffs and
defendants, the Trial Court and First Appellate Court declined
the case of appellant/defendant in that regard.
12. The Trial Court has further taken note of the fact
that the defendant could not have gifted the property more
than his entitlement in the property. As such held the gift to
the extent beyond the share of the defendant was not binding
on the plaintiffs.
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13. In that view of the matter no error or irregularity
can be found in the reasoning and conclusion of the Trial Court
and First Appellate Court warranting or interference giving raise
to substantial question of law. Appeal is accordingly dismissed.
Sd/-
JUDGE
CR
