Karnataka High Court
Sri H R Shivaramu vs Smt. Sarvamangala on 1 October, 2024
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IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 01ST DAY OF OCTOBER, 2024
BEFORE
THE HON'BLE MR. JUSTICE E.S.INDIRESH
REGULAR SECOND APPEAL NO.375 OF 2020 (PAR)
BETWEEN:
1. SRI. H.R. SHIVARAMU
SINCE DEAD REP. BY LRS.
1(a). SMT. JYOTHI S.K.
W/O LATE SHIVARAMU H.R.
AGED ABOUT 47 YEARS
1(b). GUNAVATHI S.
D/O LATE SHIVARAMU H.R.
AGED ABOUT 23 YEARS
BOTH ARE R/AT NO.405
SHUBHAM DEWANS APARTMENT
LAKSHMIPURAM
MYSURU - 570 004.
...APPELLANTS
(BY SRI. DEEPAK D.C., ADVOCATES FOR
APPELLANT NOS.1(a) & 1(b))
AND:
1. SMT. SARVAMANGALA
W/O Y.C. LINGARAJU
AGED ABOUT 35 YEARS
R/AT YANAGALLI VILLAGE
HARADANAHALLI HOBLI
CHAMARAJANAGAR TALUK-571 127.
2. SMT. ROOPA
2
W/O K.S. KUMARASWAMY
AGED ABOUT 26 YEARS
R/AT KATNAVADI VILLAGE
HARAVE HOBLI
CHAMARAJANAGAR TALUK-571 441.
P. NAGARAJU
SINCE DECEASED REP. BY LRS.
3. SMT. NAGARATHNA
W/O LATE P. NAGARAJU
AGED ABOUT 50 YEARS
4. S.N. SHIVAPRASAD
S/O LATE P. NAGARAJU
AGED ABOUT 35 YEARS
RESPONDENTS NO. 3 AND 4
ARE R/O SANTHEMARAHALLI VILLAGE
CHAMARAJANAGAR TALUK-571 115.
5. B. SHANMUGAM
S/O LATE K. BALU
AGED ABOUT 60 YEARS
R/AT SHIVASHAKTHI NILAYA
KANAKAPURA MAIN ROAD
JAYANAGAR
BENGALURU-560 041.
...RESPONDENTS
(SRI. SYED AKBAR PASHA, ADVOCATE FOR R1 AND R2;
R3 SERVED UNREPRESENTED;
V/O DATED 22.01.2024 NOTICE TO R4 IS DISPENSED WITH;
R5 SERVED UNREPRESENTED)
THIS REGULAR SECOND APPEAL IS FILED UNDER SECTION
100 OF CODE OF CIVIL PROCEDURE, AGAINST THE JUDGMENT
AND DECREE DATED 14.06.2019 PASSED IN R.A.NO.1 OF 2016
ON THE FILE OF SENIOR CIVIL JUDGE AND CJM.,
CHAMRAJANAGAR, ALLOWING THE APPEAL AND SET ASIDE THE
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JUDGMENT AND DECREE DATED 26.11.2015 PASSED IN
O.S.NO.142 OF 2012 ON THE FILE OF THE CIVIL JUDGE AND
JMFC YELANDURU.
THIS REGULAR SECOND APPEAL HAVING BEEN RESERVED
FOR ORDERS, COMING ON FOR PRONOUNCEMENT THIS DAY,
E.S. INDIRESH J., DELIVERED THE FOLLOWING:
CORAM: HON'BLE MR. JUSTICE E.S.INDIRESH
CAV JUDGMENT
(PER: HON'BLE MR. JUSTICE E.S.INDIRESH)
This Regular Second Appeal is filed by the defendant
No.3 challenging the judgment and decree dated
14.06.2019 passed in RA No.1 of 2016 on the file of the
Senior Civil Judge and CJM, Chamarajanagara, allowing the
appeal and setting aside the judgment and decree dated
26.11.2015 passed in OS No.142 of 2012 on the file of the
Civil Judge and JMFC, Yalanduru, dismissing the suit of the
plaintiffs.
2. For the sake of convenience, the parties in this
appeal shall be referred to in terms of their status and
ranking before the trial Court.
3. The plaint averments are that the plaintiffs are
children of defendant No.1 and defendant No.2 is the
brother of the plaintiffs and as such, it is contended that,
they constitute Hindu Joint Family. It is the case of the
plaintiffs that, the plaintiffs sought for share in the joint
family properties and same was denied by the defendant
Nos.1 and 2. Further, the plaintiffs contended that, the
defendant Nos.1 and 2 without the consent of the plaintiffs
sold Item Nos. 1 and 5 of the suit schedule properties in
favour of the defendant Nos.3 and 4 and as such, the
plaintiffs filed OS No.142 of 2012 against the defendants
seeking partition and separate possession in respect of the
suit schedule properties.
4. After service of summons, defendants entered
appearance, however, only defendant No.3 has filed the
written statement denying the averments made in the
plaint. Defendant No.3 took up a contention that the
defendant No.1 has borrowed loan to perform the marriage
of plaintiff No.2 and to repay the said loan, defendant Nos.1
and 2 have sold the property in question in favour of the
defendant No.3 as per registered Sale Deed dated
17.10.2005. It is the case of the defendants that the said
sale of the land has been made to clear the marriage
expenses of plaintiff No.2 and other family necessities.
Accordingly, sought for dismissal of the suit.
5. On the basis of the rival pleadings, the trial Court
has formulated the issues for its consideration.
6. In order to establish their case, plaintiff No.1
examined herself as PW1 and got marked 13 documents as
Exs.P1 to P13. On the other hand, defendant No.3 was
examined as DW1 and got marked 13 documents as Exs.D1
to D13.
7. The Trial Court, after considering the material on
record, by its judgment and decree dated 26.11.2014
dismissed the suit of the plaintiffs and being aggrieved by
the same, the plaintiffs have preferred Regular Appeal in RA
No.1 of 2016 on the file of First Appellate Court. The said
appeal was resisted by the respondents therein. The First
Appellate Court, after re-appreciating the facts on record, by
its judgment and decree dated 14.06.2019 allowed the
appeal and as such, set aside the judgment and decree
passed by the trial Court in OS No. 142 of 2012
8. Being aggrieved by the judgment and decree
passed by the First Appellate Court, the defendant
No.3/appellant has preferred this Regular Second Appeal
under Section 100 of CPC.
9. This court vide order dated 07.02.2024 formulated
the following substantial question of law.
"Whether the First Appellate Court is justified in
decreeing the suit in respect of the Item No.1 of
the suit schedule property which was sold by
defendant Nos.1 and 2 in favour of appellant on
17.10.2005 without adverting to the specific plea
and the evidence on record to the effect that the
sale was to meet the family necessity ?"
10. I have heard Sri. Deepak D.C., learned counsel
for the appellants and Sri. Syed Akbar Pasha, learned
counsel appearing for the respondent Nos.1 and 2.
11. Sri. Deepak D.C., learned counsel for the
appellants submits that the suit filed by the plaintiffs is
collusive suit. He further submitted that, though the
defendant Nos.1 and 2 have sold the Item No.1, in favour of
defendant No.3 as per registered Sale Deed dated
17.10.2005, the defendant Nos.1 and 2 remained absent
and have not contested the matter on merits and therefore,
he contended that the plaintiffs and defendant Nos.1 and 2
colluded with each other and as such, sought for
interference of this Court. He further contended that, the
Trial Court after considering the material on record, rightly
dismissed the suit, however, same has been interfered with
by the First Appellate Court without considering the factual
aspects on record and ignoring the evidence of DW1. He
further contended that, defendants had taken plea in the
written statement that, totally 09 properties are required to
be added in the suit schedule properties as joint family
properties of plaintiffs and defendant Nos.1 and 2 and
despite the same, the First Appellate Court decreed the suit
in respect of the partial partition and therefore, sought for
interference of this Court.
12. Sri. Syed Akbar Pasha, learned counsel
appearing for the respondents sought to justify the
impugned judgment and decree passed by the First
Appellate Court and further submits that, the First Appellate
Court, after considering the material on record that that, the
sale of the item No.1 by the defendant Nos.1 and 2 in
favour of defendant No.3 is not for legal necessity of the
family. He further submitted that, marriage of the plaintiff
No.2 was performed prior to the execution of the Sale Deed
and therefore, the said aspect of the matter was considered
by the First Appellate Court in the right perspective and
therefore, sought for dismissal of the appeal.
13. Having heard the learned counsel appearing for
both the parties, I have carefully examined the finding
recorded by both the courts below. Perusal of the records
would indicate that, the plaintiffs and defendant No.2 are
the children of defendant No.1. The undisputed Genealogical
Tree is extracted below.
P. Nagaraju (Dead) (Df No.1)
Smt.Nagarathna (Wife)
S.N.Shivaprasad Sarvamangala Smt. Roopa
(Df No.2) (Pf No.1) (Pf No.2)
14. It is the grievance of the plaintiffs that, suit
schedule properties are the joint family properties and
defendant Nos.1 and 2 have sold the item No.1 of the suit
schedule property in favour of defendant No.3 as per
registered Sale Deed dated 17.10.2005 (Ex.D7) without the
consent of the plaintiffs. It is also stated by the plaintiffs
that, there was no necessity for defendant Nos. 1 and 2 to
sell the suit schedule properties for the family / legal
necessity. It is to be noted that, the Sale Deed at Ex.D7 has
been executed on 17.10.2005 and suit is filed during 2012
after lapse of 7 years and there is no explanation in the
plaint with regard to delay in filing the suit despite the
plaintiffs had the knowledge about the sale of the suit
schedule property. It is also to be noted that, whether the
sale made by the defendant Nos.1 and 2 for family/legal
necessity is to be explained by the defendant Nos.1 and 2.
Though the defendant Nos.1 and 2 had entered appearance,
have not contested the matter, nor adduced evidence to
establish that, the sale made in favour of defendant No.3 is
not for family/legal necessity and therefore, an adverse
interference could be made in this regard. In that view of
the matter, I find force in the submission made by the
learned counsel appearing for the appellant that, it is a
collusive suit filed by the plaintiffs seeking declaration of the
Sale Deed 17.10.2005 is not binding on the plaintiffs,
leaving out the properties mentioned in the written
statement filed by the defendant No.3 as there are 9
properties which are joint family properties and same are
not included in the suit schedule properties. It is also
pertinent to mention here that, PW1 in the cross-
examination dated 07.11.2014 admits that, the defendant
No.1 had availed loan from the Bank and the society to
conduct marriage. There is no evidence by the defendant
Nos.1 and 2 that they have independent income other than
the agriculture properties. PW1 at paragraph 13 in the
cross-examination dated 07.11.2014 deposed that some of
the agricultural properties and sites have not been included
in the suit schedule properties, seeking partition in respect
of the suit schedule properties and said aspect would
emphasize the fact that, the sale made in favour of the
defendant No.3 as per Ex.P1-registered Sale Deed is for
family necessity and partial partition cannot be given effect
to in the absence of excluding the entire joint family
properties. In that view of the matter, I find force in the
submission made by the learned counsel appearing for the
appellant and the finding recorded by the First Appellate
Court is not justified in reversing the judgment and decree
passed by the Trial Court. Following the declaration of law
made by the Hon'ble Supreme Court in the case of
Santhosh Hazari vs. Purushottam Tiwari (Dead) by
LR's reported in AIR 2001 SC 965, the First Appellate
Court has not re-appreciated the evidence on record as per
Order XLI Rule 31 of CPC and therefore, substantial question
of law referred to above favours the defendant No.3 and the
finding recorded by the First Appellate Court is suffers from
legality and perversity and same requires to be set aside in
this judgment. Hence, I pass the following:
ORDER
i) The Regular Second appeal is allowed;
ii) Judgment and decree dated 14.06.2019 passed in
RA No.1 of 2016 on the file of Senior Civil Judge
and CJM at Chamarajanagar is set aside;
iii) Judgment and decree dated 26.11.2015 passed in
OS No.142 of 2012 on the file of Civil Judge and
JMFC, Yelanduru, is hereby confirmed.
iv) The suit is dismissed.
SD/-
(E.S.INDIRESH)
JUDGE
SB
