Karnataka High Court
C.Venkatesulu S/O Late C. ... vs Smt.Ammisetty Parvathi W/O Ammisetty on 10 June, 2025
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RFA No.100146 of 2019
HC-KAR
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 10TH DAY OF JUNE 2025
PRESENT
THE HON'BLE MR. JUSTICE R.NATARAJ
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
REGULAR FIRST APPEAL NO.100146 OF 2019 (PAR)
BETWEEN:
1. C.VENKATESULU,
S/O. LATE C. VENKATARAMANAPPA @ APPAIAH,
AGED ABOUT 57 YEARS,
R/O. DOOR NO.120, WARD NO.17,
ANANTHAPUR ROAD, BALLARI-583102.
2. C.KRISHNAMURTHY,
S/O. LATE C.VENKATARAMANAPPA @ APPAIAH,
AGED ABOUT 59 YEARS,
R/O. DOOR NO.120, WARD NO.17,
ANANTHAPUR ROAD, BALLARI-583102.
3. C.NIRMALADEVI,
W/O. LATE C.GOVINDHARAJALU,
AGED ABOUT. 59 YEARS,
R/O. PLAT NO.328,
Digitally signed by
MOHANKUMAR B RAGHAVENDRA COLONY,
SHELAR
Location: HIGH BALLARI-583102.
COURT OF
KARNATKA
DHARWAD
BENCH 4. C.SHASHANK,
Date: 2025.06.13
16:38:15 +0530 S/O. LATE C.GOVINDHARAJALU,
AGED ABOUT 59 YEARS,
R/O. PLAT NO.328,
RAGHAVENDRA COLONY,
BALLARI-583102.
5. G. SARASWATHI.
W/O. G.RAMAPRASAD,
AGED ABOUT 51 YEARS,
R/O. DOOR 3/582/A,
SOMANATH NAGAR, ANANTAPUR,
ANDHRA PRADESH,
NOW COME OVER TO BALLARI,
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RFA No.100146 of 2019
HC-KAR
RAGHAVENDRA COLONY,
BALLARI-583102.
6. V.VIJAYALAKSHMI, W/O. V.SRINIVASULU,
AGED ABOUT 47 YEARS,
R/O. C/O. RAVI NILAYA, 3/21, 2ND CROSS,
NEAR VIJAYA BANK, MOODALPALYA,
BENGALURU-560072, NOW COME OVER
TO BALLARI, RAGHAVENDRA COLONY,
BALLARI-583102.
...APPELLANTS
(BY SRI. B.CHIDANANDA, ADVOCATE)
AND:
1. SMT. AMMISETTY PARVATHI,
W/O. AMMISETTY SHIVASHANKAR,
AGED ABOUT 65 YEARS,
R/O. VIEHOTFER PLATZ 10, 4517
ESSEN, IN GERMANY PRESENTLY CAMP
AT DOOR NO.120, WARD NO:17,
OPPOSTIRE TO BASAVARAJESWARI
PUBLIC SCHOOL, ANANTHAPUR ROAD,
BALLARI-583102.
2. C. ROHITH RAJ,
S/O. LATE C. GOVINDHARAJALU,
AGED ABOUT 37 YEARS,
R/O. PLAT NO.328,
RAGHAVENDRA COLONY,
BALLARI-583102.
...RESPONDENTS
(BY SRI. V.M.SHEELVANT, ADVOCATE FOR R1)
(NOTICE TO R2 IS DISPENSED WITH)
THIS RFA IS FILED UNDER SECTION 96 READ WITH ORDER 41
RULE 1 OF CPC AGAINST THE JUDGMENT AND DECREE DATED
07.12.2014 PASSED IN O.S.NO.221/2014 ON THE FILE OF THE I
ADDITIONAL SENIOR CIVIL JUDGE BALLARI, DISMISSING THE SUIT
FILED FOR PARTITION.
THIS APPEAL COMING ON FOR FINAL HEARING THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RFA No.100146 of 2019
HC-KAR
CORAM: THE HON'BLE MR. JUSTICE R.NATARAJ
AND
THE HON'BLE MR. JUSTICE RAJESH RAI K
JUDGMENT
(PER: THE HON'BLE MR. JUSTICE R.NATARAJ)
The unsuccessful plaintiffs No.1, 2 3(a), 3(b), 4 and 5 in
O.S. No.221/2014 on the file of the I Additional Senior Civil
Judge, Ballari, have filed this Regular First appeal challenging
the judgment and decree dated 07.12.2018 passed therein by
which the suit filed by them for partition and separate
possession of their 5/6th share in the suit schedule properties
was dismissed.
2. For the sake of convenience and easy
understanding, the parties shall henceforth be referred to as
they were arrayed before the Trial Court.
3. The plaintiffs claimed that their father had suffered
severe loss in business and, in order to safeguard the interest of
the members of the family and to insulate the family against
any claim by the creditors, he had purchased the suit schedule
'A' property in the name of the defendant on 10.12.1981. They
claimed that the sale deed in favour of defendant No.1 was
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executed nominally and the consideration for purchase of the
suit schedule 'A' property was paid by the father. They claimed
that the defendant, who was married on 04.01.1976 to her
maternal uncle, lived for a short period in India and shifted to
Germany. They, therefore, claimed that suit schedule 'A'
property was purchased out of the funds of the joint family and
therefore, remained a joint family property. They claimed that
the father had let out front portion of the property to
Smt. Kalavathi for running a hotel and, after his death, the
defendant visited the suit property to usurp it and alienate the
same taking advantage that it stood in her name. The plaintiffs
claimed that the defendant caused a notice which was suitably
replied by them and thereafter, they demanded the defendant
to handover their legitimate share. They claimed that the
defendant initially agreed, but, at the instigation of her
husband, she refused to give any share and issued a notice to
Smt. Kalavathi on 30.06.2014 to vacate the portion of the suit
schedule property. Plaintiffs No.1 and 3 were running a service
station in the suit schedule 'A' property from the year 1988
after obtaining licence from the concerned authorities and were
paying the municipal tax, electricity bill and water bill etc.
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Therefore, they contended the suit schedule 'A' property was
the property of the joint family where they too had a share
which the defendant failed to acknowledge. Thus, they filed the
suit for partition and separate possession of the suit schedule 'A'
property. In so far as suit schedule 'B' property is concerned,
they contended that the said property belonged to the joint
family and that they were entitled to a share in that property
also.
4. The defendant contested the suit and claimed that
she had lawfully purchased the suit schedule 'A' property for
valid consideration and that the sale deed was executed in her
name, and she was represented by her father. She claimed that
the consideration for purchase of suit schedule 'A' property was
paid by her husband who was transferring the amounts to her
father. She therefore, contended that the suit schedule 'A'
property was her absolute property where neither her father nor
the plaintiffs had any share. She claimed that one of the rooms
in suit schedule 'A' property was permitted to be occupied by
plaintiff No.1 as he was authorized to take care of the property
in her absence. She claimed that her father and mother were
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also permitted to stay in the suit property. She claimed that the
plaintiff No.2 was not in the suit property, but was residing in
Shahapura, as he was working as a Depot Manager in KSRTC at
Shahapura, Yadgiri District. Likewise, she claimed that plaintiff
No.3 was residing at Raghavendra Colony as mentioned in the
cause title of the plaint, while plaintiff No.4 was residing at
Anantapuram in Andhra Pradesh along with her husband, and
plaintiff No.5 was residing in Bengaluru. She, therefore,
contended that except plaintiff No.1, none of the other plaintiffs
were residing in the suit schedule property. She claimed that
none of the plaintiffs have any share in the suit property as it
was her absolute property. She claimed that she never
permitted plaintiffs No.1 and 3 to run a service station in the
suit property. She claimed that, after the death of her parents,
she came to attend obsequies and informed plaintiffs No.1 and
3 that whatever permission that was granted to plaintiff No.1 to
occupy one of the rooms was terminated and she requested all
others to vacate and shift elsewhere. Plaintiff No.1, in order to
undermine the right of the defendant, indefinitely squatted on
the property by taking the assistance of other plaintiffs. She
claimed that other four rooms were in her occupation and
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whenever she came down to India, she was using the four
rooms and had kept the rooms under lock and key.
Nonetheless, plaintiffs No.1 and 3 were trying to harass her and
therefore, she filed O.S. No.557/2014 for perpetual injunction.
In so far as the suit schedule 'B' property is concerned, she
contended that it was sold long back to a third party. Hence, the
plaintiffs were not entitled to any share in the suit schedule 'B'
property.
5. Based on the above contentions, the Trial Court
framed the following issues:
1. Whether the plaintiffs prove that the suit schedule
properties are purchased by their father Sri.
Venkataramanappa in the name of defendant out of
the joint earnings and as such, they are joint family
properties?
2. Whether defendant proves that the suit schedule
properties are her absolute properties?
3. Whether plaintiffs are entitled for the relief of partition?
If so, at what order?
4. What Order or Decree?
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Plaintiff No.1 was examined as P.W.1 and marked Exs.P.1 to
P.102, and a witness was examined as P.W.2. On the other
hand, the defendant was examined as D.W.1 and she marked
Exs.D.1 to D.30, and her husband was examined as D.W.2.
6. Based on the oral and documentary evidence, the
Trial Court answered the issues against the plaintiffs and held
that the plaintiffs failed to prove that suit schedule 'A' property
was purchased by their father in the name of the defendant out
of the joint earnings and therefore, it was not a joint family
property. It also held that defendant had proved that the suit
schedule 'A' property was her absolute property and therefore,
the plaintiffs were not entitled to any share in the suit schedule
property. Consequently, the Trial Court dismissed the suit in
terms of the judgment and decree dated 07.12.2018. Being
aggrieved by the said judgment and decree, the plaintiffs are
before this Court in this regular first appeal.
7. Learned counsel for the plaintiffs contended that the
suit schedule 'A' property was purchased by the father,
nominally, in the name of the defendant. He claimed that the
consideration for purchasing the suit schedule 'A' property
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under the sale deed dated 10.12.1981 executed in the name of
the defendant was paid by the father of the plaintiffs namely
Sri. C.Venkataramanappa. In order to justify this, learned
counsel relied upon the sale deed dated 10.12.1981 to contend
that the defendant was represented by Sri.
C.Venkataramanappa as her Power of Attorney. He also referred
to the endorsements made on the sale deed regarding the
payment of sale consideration and submitted that the
consideration was paid in cash by Sri. C.Venkataramanappa.
He, therefore, contends that the fact that Sri.
C.Venkataramanappa had paid consideration and that he
represented the defendant, established that it was the father
who took an active role in bringing about the sale in the name
of the defendant. He contends that D.W.1 specifically admitted
the fact that the father of the plaintiffs had suffered loss in
business. He, therefore, contends that the claim of the plaintiffs
that the father had purchased the suit schedule 'A' property in
the name of the defendant to avoid creditors, is sufficiently
established. He further contends that an issue was framed by
the Trial Court as to whether defendant proves that the suit
schedule properties were her absolute properties. He contends
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that, in the written statement filed by the defendant, she
specifically claimed that she purchased the suit schedule 'A'
property from out of her own source of income and that the
same is not only recited in the sale deed but also can be
gathered from subsequent acts such as transfer of municipal
records to the name of the defendant, payment of taxes etc. He
contends that in her examination-in-chief, the defendant
specifically deposed that her husband had sent the funds from
his bank at Germany by money transfer firstly to Syndicate
Bank, Bangalore Road, Ballari, then to Canara Bank, Car Street,
Ballari, Indian Over Seas Bank, Ballari and later to State Bank
of India, Ballari. He contends that the defendant deposed that
all these money transfers were made before the purchase of the
property and during the lifetime of her father directly to his
bank account. He, therefore, contends that the defendant was
bound to produce some document to establish that either she or
her husband had transferred the consideration paid under the
sale deed dated 10.12.1981 through transfers to the account of
the father. He contends that though the defendant contended
that funds were transferred to the account of the father and she
marked Exs.D.1 to D.28, in her cross-examination, when Ex.D.2
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was confronted, she admitted that the amount that was
transferred was to her mother-in-law's account. Likewise, the
name of mother-in-law was found in Ex.D.5. He contended that
surprisingly, the defendant made a U-Turn and claimed that her
husband used to send money to her mother. She admitted in
Ex.D.2 & Ex.D.5 that there was no mention that amount was
transferred to the father of the plaintiffs. He, therefore,
contended that while the defendant claimed that she had
transferred money to her father to enable him to purchase the
property in her name, during the course of cross-examination,
she resiled from this and claimed that the money was
transferred by her husband to his mother. He therefore,
contends that the name of the plaintiffs that the suit 'A'
property was purchased nominally in the name of the defendant
is, therefore, substantiated and the Trial Court committed an
error in not considering the case from this perspective.
8. He further contends that if the defendant was the
lawful owner of the suit schedule 'A' property, then she was
bound to explain under what circumstances, she had allowed
the plaintiff to use the room in the said property and commence
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a service station. He contends that the plaintiffs were living in
the suit property until father died and the possession of the suit
property was with the plaintiffs until they were unlawfully
dispossessed by the defendant. Therefore, he contends that the
plaintiffs have an undivided share in the suit schedule 'A'
property and hence, entitled to 1/5th share therein. In so far as
the suit schedule 'B' property is concerned, learned counsel
submitted that the defendant admitted in her cross-examination
that suit schedule 'B' property was owned by the father of
plaintiff which she unilaterally sold in the year 2013. He,
therefore, contends that the plaintiffs have an undivided share
in suit schedule 'B' property also. Thus, he contends that the
Trial Court must have decreed the suit. However, it went at a
tangent in holding that the defendant was in Germany from the
year 1976 and that they had sent money to enable the father to
purchase of suit schedule 'A' property in the name of the
defendant. He, therefore, contends that the case of the plaintiffs
is, by and large, admitted by the defendant and hence, the
plaintiff were entitled to an undivided share in the suit schedule
properties.
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9. The learned counsel for the defendant, on the other
hand, contended that after the marriage of the defendant in the
year 1976, she shifted to Germany where her husband was
working. He contends that even while the defendant was in
Ballari, she had entered into an agreement to purchase the suit
schedule 'A' property and had paid a sum of Rs.1,000/- as part
of agreed sale consideration. He contends that the defendant
had allowed her parents to live in the suit schedule 'A' property
and also permitted plaintiff No.1 to be in possession of one of
the rooms in the said property so as to enable him to take care
of the property in the absence of the defendant. He contends
that, after she went to Germany, her husband had transferred
money to his mother who was also residing in suit schedule 'A'
property along with the parents of the plaintiffs/defendants. He
contends that the mother of the defendant was not worldly wise
and it was the father of the plaintiffs who utilized the money
that was handed over to him to pay of balance sale
consideration of Rs.34,000/-. He contends that the defendant
desired to come to Ballari to conclude the sale transaction,
however, since the defendant and her husband had come to
India just before execution of the sale deed, they chose it
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appropriate to appoint her father as Power of Attorney.
Accordingly, he contends that the sale deed dated 10.12.1981
was brought about in the name of the defendant. He, therefore,
contends that the claim of the plaintiffs that the suit schedule
'A' property was purchased by their father, nominally, in the
name of the defendant is without any basis. He contends that
the plaintiffs have not disputed the fact that the mother-in-law
of the defendant was also residing in the suit schedule 'A'
property along with the parents of the defendant. He, therefore,
contends that the suit property was purchased when everything
was fine in the family and now, after the death of the parents of
the defendant, the plaintiffs have shown their true colours by
laying a claim to the suit schedule 'A' property. He contends
that the transaction has happened in the year 1981 and after
nearly 33 years, the plaintiffs have come out with this false and
frivolous case contending that it was their father who purchased
the suit schedule 'A' property, nominally, in the name of the
defendant. He contends that the plaintiffs have not produced
any document to show that their father had suffered any loss in
the business and even after suffering loss, he had some source
of income from which he could purchase the suit schedule 'A'
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property in the name of the defendant. Therefore, he contends
that the Trial Court was justified in holding that the defendant
was the lawful purchaser of the suit property and the plaintiff
had nothing to do with the same. Therefore, he contends that
the impugned judgment and decree of the Trial Court is just and
proper and no interference is warranted.
10. Learned counsel for the defendant further contends
that suit schedule 'B' property is disposed of long back, which is
known to the plaintiffs. He contends that the plaintiffs have not
produced any document to establish that the suit schedule 'B'
property belonged to the father of the plaintiffs and that they
had a share in the same. Therefore, he contends that the suit
was rightly dismissed by the Trial Court.
11. After hearing the learned counsel for the plaintiffs
and the learned counsel for the defendant, the following points
arise for consideration:
i) Whether the plaintiffs proved that the suit schedule
'A' property was purchased by their father in the
name of the defendant, nominally, and whether the
plaintiffs had proved that they had any share in the
suit property?
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ii) Whether the plaintiffs have proved that the suit
schedule 'B' property was also the property of their
father and that they had an undivided share
therein?
12. A perusal of the plaint shows that the plaintiffs
claimed that their father had suffered loss in business and that,
in order to protect the family from creditors, he purchased suit
schedule 'A' property in the name of the defendant. The Trial
Court, therefore, framed an issue: "Whether the plaintiffs
proved that the suit schedule 'A' property was purchased out of
the funds of the joint family". Therefore, the burden of proving
the aforesaid was on the plaintiffs. The plaintiffs were,
therefore, bound to prove this fact by adducing proper and
sufficient evidence. A perusal of the documentary evidence
produced before the Trial Court shows that the plaintiffs did
make no effort in this regard. They did not produce the returns
of income of their father to show that he had suffered some loss
in the business. No doubt, D.W.1 had admitted that her father
had suffered some loss in the business. However, the plaintiffs
have not produced any document to show that despite such
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losses, their father had any source of income to purchase suit
schedule 'A' property in the name of the defendant. Contrarily,
the defendant claimed that the suit schedule 'A' property was
purchased out of her own funds and that since she was not able
to come to Ballari to conclude the transaction, she and her
husband had chosen to appoint her father as Power of Attorney.
D.W.2 deposed that the amounts were transferred through bank
transfers to the account of his mother who, at that point in
time, was residing with the father of defendant. He deposed
that the money that was transferred to his mother was used to
pay sale consideration under the sale deed dated 10.12.1981.
Thus, he deposed that the suit schedule 'A' property is the full
and absolute property of the defendant in which the plaintiffs
have no right, title or interest. The defendant had produced
some documents to establish that some monies were
transferred by her husband to his mother at Ballari. The
plaintiffs do not dispute that the mother-in-law of the defendant
was residing in the suit schedule properties along with their
parents. Therefore, having regard to the nature of relationship
between the plaintiff and the defendant, their parents and the
mother-in-law, it is quite probable that the amount that was
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sent was utilized towards paying consideration for purchase of
suit schedule 'A' property in the name of defendant No.1. This
apart, the dates of transfer of the amounts are just before the
execution of the sale deed in the name of the defendant. Under
the circumstances, it appears more than probable that the
consideration for purchase of the suit schedule 'A' property was
not from the joint family funds, but was by the defendant and
her husband. Therefore, the plaintiffs did not have any right,
title or interest in the suit schedule 'A' property. The plaintiffs
have produced voluminous documentary evidence which have
no bearing on the crucial facts pleaded by them. The plaintiffs
are hinging their case on two statements made by the
defendant namely: i) that her father had suffered some loss in
the business; and ii) that though she claimed in her
examination-in-chief that the amounts were transferred by her
husband to her father, in the cross-examination, she claimed
that the amounts were transferred by her husband to his
mother.
13. We cannot lose sight of the fact that the sale deed
was brought about in the year 1981, and at that point of time,
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the defendant was not residing in Ballari, but was residing in
Germany along with her husband. The husband of the
defendant was working and the same is evident from the fact
that he was transferring money to his mother. The husband of
the defendant, who was examined as D.W.2, has deposed that
the defendant and he desired to come down to Ballari for the
purpose of getting the sale deed executed. However, since they
had come to Ballari few days ago, they felt it proper to appoint
the father of the defendant as Power of Attorney. Therefore, it
appears that, for the sake of convenience, the father of the
plaintiffs acted as Power of Attorney and, for all practical
purposes, it was the defendant who was the purchaser of the
suit schedule 'A' property. Even if it is assumed that the father
of the defendant had purchased the suit schedule 'A' property in
the name of the defendant, by virtue of Section 14 of the Hindu
Succession Act, 1956 she became the full and absolute owner of
the suit schedule 'A' property. The plaintiffs were unable to
establish that the suit schedule 'A' property was nominally
purchased in the name of the defendant and that they too had
an undivided share in the said property. Under the
circumstances, the Trial Court was justified in holding that the
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plaintiffs have failed to prove that the suit schedule 'A' property
was purchased out of the funds of the joint family. Accordingly,
the point No.1 framed by this Court is answered and it is held
that plaintiffs failed to prove that the 'A' schedule property was
nominally purchased by their father in the name of defendant.
14. In so far as suit schedule 'B' property is concerned
though the plaintiff claimed that it was also the property of their
father, not even a scrap of paper was produced in that regard
before the Trial Court. There is not even any pleading or oral
evidence to establish that the suit schedule 'B' property belongs
to the family or to the father of the plaintiffs. The plaintiffs are
trying to take advantage of certain statements made by D.W.1
in her cross-examination where, she claimed that suit schedule
'B' property was disposed of by her long back which was known
to the plaintiffs. When the plaintiffs approached the Court
seeking for substantive relief of partition of their share in the
suit schedule properties, they were bound to establish that the
suit schedule 'B' property was also owned by their father and
belonged to the joint family. Sadly, no effort is made in this
regard by the plaintiffs. They have also not disputed that the
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suit schedule 'B' property is disposed of long back. Therefore,
the plaintiffs are not entitled to any relief even in so far as suit
schedule 'B' property is concerned. A reading of the impugned
judgment and decree of the Trial Court shows that the Trial
Court has considered the evidence adduced before it in great
detail and has referred to each and every document produced
by the plaintiffs as well as the defendant to return a finding that
the plaintiffs are not entitled to any share in the suit properties.
In view of the above, we do not feel it necessary to
interfere with the finding of fact recorded by the Trial Court.
Consequently, this appeal lacks merit and is dismissed.
Sd/-
(R.NATARAJ)
JUDGE
Sd/-
(RAJESH RAI K)
JUDGE
KMS
Ct:vh
