Karnataka High Court
Smt Muniveeramma vs Sri Munithippaiah on 4 July, 2024
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 788 of 2021
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 4TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO. 788 OF 2021 (PA/DE/IN)
BETWEEN:
1. SMT. MUNIVEERAMMA
D/O. MUNITHIPPAIAH,
W/O. MUNIYAPPA,
AGED ABOUT 62 YEARS
R/AT BIJJAVARA VILLAGE,
VIJAYAPURA HOBLI,
DEVANAHALLI TALUK,
BENGALURU RURAL DISTRICT-562110.
NOW R/AT CHALAKAYALAPARTHI
VILLAGE, KASABA HOBLI,
CHICKBALLAPURA TALUK-562101.
Digitally signed 2. SMT. MUNIYAMMA
by DEVIKA M D/O. MUNITHIPPAIAH,
Location: HIGH W/O NAREPPA
COURT OF AGED ABOUT 54 YEARS
KARNATAKA R/AT BIJJAVARA VILLAGE,
VIJAYAPURA HOBLI,
DEVANAHALLI TALUK,
BENGALURU RURAL DISTRICT-562110.
NOW R/AT SURADENAPURA VILLAGE,
HESARAGHATTA HOBLI,
BENGALURU NORTH TALUK,
BENGALURU-560088.
...APPELLANTS
(BY SRI. BALARAJ A.C., ADVOCATE)
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RSA No. 788 of 2021
AND:
1. SRI MUNITHIPPAIAH
S/O LATE CHIKKAVEERAPPA,
AGED ABOUT 92 YEARS,
NOW R/AT BIJJAVARA VILLAGE,
VIJAYAPURA HOBLI,
DEVANAHALLI TALUK,
BENGALURU RURAL DISTRICT-562110.
2. SMT. ANKAMMA
D/O. MUNITHIPPAIAH,
W/O. NARASAPPA,
AGED ABOUT 53 YEARS,
NOW R/AT CHEEGATENAHALLI
VILLAGE, NANDI HOBLI,
CHICKBALLAPURA TALUK-562101.
3. SMT. SARALAMMA
D/O. MUNITHIPPAIAH,
W/O. HANUMANTHAPPA,
AGED ABOUT 58 YEARS
NOW R/AT PILLAREDDY NAGAR,
BASAVANAGUDI,
BENGALURU-560004
4. SMT. SUSHEELAMMA
D/O. MUNITHIPPAIAH,
W/O HANUMANTHAPPA
AGED ABOUT 55 YEARS
NOW R/AT CHEEGATENAHALLI VILLAGE,
NANDI HOBLI,
CHICKBALLAPURA TALUK-562101
5. SMT. MUNILAKSHMAMMA
D/O. MUNITHIPPAIAH ,
W/O. NARAYANAPPA,
AGED ABOUT 52 YEARS
R/AT HUNASENAHALLI VILLAGE,
SHIDALAGHATTA TALUK,
CHICKBALLAPURA DISTRICT-562101
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RSA No. 788 of 2021
6. SMT. MUNIRATHNAMMA
D/O. MUNITHIPPAIAH,
W/O MUNIYAPPA
AGED ABOUT 58 YEARS
NOW R/AT HOSAHUDYA VILLAGE,
VIJAYAPURA HOBLI,
DEVANAHALLI TALUK,
BENGALURU RURAL DISTRICT-562110
7. SRI. R.M. MURTHY
S/O. R. MUNISHAMAPPA,
AGED ABOUT 60 YEARS
R/AT CHALAKYALAPARTHI VILLAGE,
KASABA HOBLI,
CHICKBALLAPUR TALUK-562101.
...RESPONDENTS
(BY SRI G. BALAKRISHNA SHASTRY, ADVOCATE FOR C/R7)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 25.08.2021
PASSED IN R.A.NO.38/2016 ON THE FILE OF THE I
ADDITIONAL SENIOR CIVIL JUDGE AND JMFC,
CHIKKABALLAPURA, DISMISSING THE APPEAL AND
CONFIRMING THE JUDGMENT AND DECREE DATED 05.11.2015
PASSED IN O.S.NO.962/2008 ON THE FILE OF THE I
ADDITIONAL CIVIL JUDGE AND JMFC, CHIKKABALLAPUR.
THIS APPEAL COMING ON FOR ADMISSION THIS DAY,
THE COURT DELIVERED THE FOLLOWING:
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RSA No. 788 of 2021
JUDGMENT
1. This matter is listed for admission. Heard
learned counsel for appellants and learned counsel for
respondents.
2. This second appeal is filed against the
concurrent finding and suit is filed for the relief of
declaration of plaintiff entitlement of their legitimate share
to an extent of 2/8th share with consequential relief of
permanent injunction. The plaintiffs in the suit contended
that plaintiffs and defendant Nos.1 to 6 are the members
of Hindu undivided joint family and the suit schedule
property is the joint family property and the sale made by
the defendant No.1 in favour of defendant No.7 is not
binding on their shares. The defendant No.2, 4 to 6 have
also claims the share in the suit schedule property and it is
the case of the defendant No.7 who is the purchaser
contended that Court has no pecuniary jurisdiction and
suit is also barred by time and suit is bad for partial
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partition and suit is also bad for non-joinder of necessary
parties.
3. The Trial Court taking into note of oral and
documentary evidence available on record, comes to the
conclusion that they are undivided joint family members
and comes to the conclusion that suit schedule property
which they have claimed already sold in favour of
defendant No.7 in favour of defendant No.1 and while
answering issue No.3 and additional issue No.1, given the
finding that the recital made in the document itself in
Ex.D1 and Ex.D3 and the same is for the purpose of
construction of the house. The Ex.D3 also discloses that
towards the legal necessity of defendant No.1 that too for
performing marriages of defendant Nos.2 to 6 as well as
plaintiff Nos.1 and 2 considering the material on record
and hence comes to the conclusion that plaintiffs are not
entitled for any relief.
4. Being aggrieved by the said judgment and
decree of the Trial Court, an appeal is filed by the plaintiff
in R.A.No.38/2016 before the First Appellate Court and
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considering the grounds which have been urged in the
appeal memo by appellant/plaintiff before the First
Appellate Court. The First Appellate Court also formulated
the point whether the judgment and decree of the Trial
Court is perverse and not supported by any evidence and
whether it requires interference of the First Appellate
Court. The First Appellate Court having re-consider the
material on record, both oral and documentary evidence
available on record answered the point as Negative in
coming to the conclusion that PW1 show the ignorance
that the property value is increased in the market and also
taken note of sale deed executed by defendant No.1 in
favour of defendant No.7 and when the allegation was
made that defendant No.7 has played fraud with the
defendant No.1 by creating false and concocted document,
no such material is placed before the Court and also taken
note of the recitals of Ex.D1 to Ex.D3 and the same was
made for family maintenance and for construction of house
and legal necessity. Hence, confirmed the judgment of the
Trial Court.
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5. Being aggrieved by the concurrent finding, the
present second appeal is filed. The counsel appearing for
the appellants would vehemently contend that both the
Courts have committed an error in coming to the
conclusion that sale deed executed by the defendant No.1
in favour of defendant No.7 is for the legal necessity and
both the Courts have not justified in holding that
properties are disposed of for maintain family and legal
necessity though evidence was lead down by the
respondents to prove any kind of necessities. Hence,
matter requires re-consideration.
6. Per Contra, the counsel appearing for
respondents would submits that both the Courts having
considered particularly the documentary evidence Ex.D1 to
Ex.D3 recitals of the documents were also taken note of
and sale was made for the construction of house and also
performing marriages of defendant Nos.2 to 6 as well as
plaintiff Nos.1 and 2. The said material was considered by
considering issue No.3 and additional issue No.1 and not
committed any error.
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7. Having heard the appellants' counsel and also
the counsel appearing for the respondents and also it is
important to note that properties were sold in the year
1987, 1988, 1991 and 1992. The suit is filed in the year
2008 that too by the two daughters and also while selling
the property particularly document Ex.D1, the said sale
deed is very clear that sale is made for construction of
house and also recitals of document Ex.D3 is also very
clear that sale is made for legal necessity. The suit is filed
almost after 21 years and while filing the suit, their age is
mentioned as 50 years of the 1st plaintiff and 42 years of
2nd plaintiff. Having considered the age of plaintiffs also,
not filed the suit within 3 years of the sale. Even at the
time of sale 1st plaintiff was major and apart from that the
documents are also very clear that the sale was made for
the benefit of the family that too for the construction of
the house and also performing the marriage and also for
legal necessity. When such material is available on record,
I do not find any error committed by both the Trial Court
as well as the First Appellate Court in decreeing the suit
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only in respect of one of the item of the suit property and
in respect of the other property which have already been
sold, rightly comes to the conclusion that those properties
are not amenable for partition. No grounds are made to
invoke Section 100 of CPC to admit and frame substantial
question of law.
8. In view of the discussions made above, I pass
the following:
ORDER
i) The Second Appeal is dismissed.
ii) In view of dismissal of the appeal, I.As., if any
do not survive for consideration, the same
stands disposed of.
Sd/-
JUDGE
RHS
