Karnataka High Court
Smt Shylaja vs Smt Suvarna on 18 June, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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NC: 2025:KHC:21004
RSA No. 844 of 2024
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 18TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.844 OF 2024 (PAR)
BETWEEN:
1. SMT. SHYLAJA
W/O LATE SRIDHARA
AGED ABOUT 49 YEARS
2. PAWAN @ PAVAN SAGAR S
S/O LATE SRIDHARA
AGED ABOUT 26 YEARS
3. SMT. POOJA
D/O LATE SRIDHARA
AGED ABOUT 24 YEARS
Digitally signed
by DEVIKA M
ALL ARE R/AT BEHIND D C COMPOUND
Location: HIGH
COURT OF NEAR MANDRA SCHOOL
KARNATAKA BASAVANAGUDI
SHIVAMOGGA CITY - 77201
...APPELLANTS
(BY SRI GANGADHARAPPA A V, ADVOCATE)
AND:
1. SMT. SUVARNA
W/O MANJAPAP
AGED ABOUT 55 YEARS
HOUSE HOLD WORK
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RSA No. 844 of 2024
HC-KAR
RESIDENT OF BEDARA HOSAHALLI
BULLAPURA POST
SHIVAMOGGA TLAUK AND DISTRICT 577216
SMT. SUSHEELAMMA W/O LATE THIMMAPPA
REPRESENTED BY LEGAL REPRESENTATIVES
2. SMT. CHANDRAMATHI
W/O SREENIVASA
D/O THIMMAPAP AGED ABOUT 48 YEARS
3. SMT. VASUMATHI
W/O ASHOK
D/O LATE THIMMAPPA
AGED ABOUT 44 YEARS
4. SMT. RAMYA
W/O PRAVEEN
D./O LATE THIMMAPPA
AGED ABOUT 33 YEARS
5. MISS RASHMI
D/O LATE THIMMAPPA
AGED ABOUT 33 YEARS
6. SMT. RANJITHA
W/O CHIRANJEEVI
D/O LATE THIMMAPPA
AGED ABOUT 33 YEARS
7. MANJUNATHA
S/O LATE THIMMAPPA
AGED ABOUT 28 YEARS
RESPONDENTS No.2 TO 7 ARE
R/AT KASHIPURA
RANGANATHASWAMY TEMPLE ROAD,
KALLAHALLI
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RSA No. 844 of 2024
HC-KAR
NEAR TANK BUND
SHIVAMOGGA CITY - 577204
...RESPONDENTS
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 09.02.2024
PASSED IN R.A.NO.47/2022 ON THE FILE OF THE
PRINCIPAL DISTRICT AND SESSIONS JUDGE,
SHIVAMOGGA AND ETC.
THIS APPEAL, COMING ON FOR ADMISSION, THIS
DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER:
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
ORAL JUDGMENT
This matter is listed for admission. Heard the learned
counsel appearing for the appellant.
2. This second appeal is filed against the
concurrent finding of the Trial Court as well as the First
Appellate Court. The suit was filed for the relief of
partition and separate possession by one of the daughters
and another daughter remained exparte before both the
Courts. The claim made in the suit is that the suit
schedule property belongs to her father and mother by
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name Hulugappa and Durgamma and along with her
brother Sridhara, constituted a Hindu undivided joint
family consisting of joint family suit schedule property and
after the death of her parents, she is also entitled for a
share in the suit schedule property. The defendants
appeared and filed the written statement contending the
Hulugappa in order to perform the marriage of plaintiff and
defendant No.2, sold 3.18 acres of land in Sy.No.23 of
Hosakote village in favour of the purchaser in the year
1992 for meager sale consideration of Rs.12,000/- and
also borrowed hand loan for the marriage expenses and
after his death, his son Sridhara repaid the loan out of his
salary and hence, the plaintiff is not entitled for any share
in the suit schedule property. The plaintiff in order to
prove her case, examined herself as PW1 and got marked
the documents at Ex.P1 to P5. The defendants in order to
defend their claim, defendant No.1 examined herself as
DW1 and two witnesses as DW2 and DW3 and got marked
the documents at Ex.D1 to D10. The Trial Court having
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considered the case of the plaintiff and also the defendants
and also on perusal of the material on record comes to the
conclusion that the property belongs to their parents i.e.,
Hulugappa and Durgamma and also taken note of the
evidence of DW2 which was not believed since DW2 has
not at all stated that how much loan was borrowed by
Hulugappa and what was the sale consideration and
nothing has been discloses and also taken note of Section
91 and 92 of Indian Evidence Act it held that whenever a
document is reduced in the form of writing then that
document is alone is admissible in evidence and no other
evidence can be given with respect to the contents of
those documents and also discussed in detail that even if
the property is sold for clearing the debt, then also it
amounts to performance of an obligation and the same is
sold for legal necessity and comes to the conclusion that
the property belongs to the family and the very contention
of the defendants that he had cleared the loan is not been
proved and regarding claim is concerned with regard to
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1/3rd share in the suit schedule property, in detail
discussed and comes to the conclusion that they are
equally entitled for the share and decreed the suit granting
1/3rd share to the plaintiff.
3. Being aggrieved by the judgment and decree of
the Trial Court, an appeal was preferred in
R.A.No.47/2022. The First Appellate Court having
reconsidered the grounds urged in the appeal as well as
both oral and documentary evidence placed on record
formulated the point that whether the defendant No.1
proved that the other joint family properties were sold for
meeting the marriage expenses of the plaintiff and
defendant No.2, due to which, plaintiff and defendant No.2
have no right to claim share over the suit schedule
property and whether it requires interference of the court.
The First Appellate Court having reassessed the material
on record with regard to 1/3rd share is concerned, in
paragraph 17, it is held that there is no dispute regarding
relationship between the plaintiff and defendants and also
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taken note of the fact that the suit schedule properties
were acquired by Hulugappa from his father and they are
their joint family properties. Defendant No.1 do not
asserts that the suit schedule property as the self acquired
property. However, only contention taken up by defendant
No.1 is that since other joint family properties were sold
for meeting the marriage expenses of the plaintiff and
defendant No.2, they have no right to claim share over the
suit schedule property.
4. The First Appellate Court also discussed the
evidence of DW1 and DW2 as well as PW1 and comes to
the conclusion that the marriage of defendant No.2 was
during the year 1979, whereas, marriage of the plaintiff
was during the year 1985. The sale of property by
Durgamma and Sridhara was subsequent to 1992. When
there was huge gap between the date of marriage and sale
transaction, one has to doubt the sale of property for
meeting the marriage expenses and taken note of this
aspect into consideration in paragraphs 21 and 22 and
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made an observation that the marriage was taken place
long back and also discussed in detail that no registered
instrument has been obtained either from the plaintiff or
from defendant No.2 for relinquishing their right over the
suit schedule property while selling the other properties.
The First Appellate Court also considered the discussion
made by the Trial Court in paragraph 23 and comes to the
conclusion that when the property has been sold for family
necessities, it is binding on all the sharers. Hence, it
cannot be a ground to say that in respect of the other
properties, the co-parceners have no right to claim the
share. Having considered both oral and documentary
evidence placed on record, the First Appellate Court also
confirmed the judgment and decree of the Trial Court.
5. The learned counsel for the appellant would
vehemently contend that when the father died in the year
1992, if the property is divided between the father and son
and father had got half share, there would be a notional
partition and son as well as the daughters are equally
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entitled for share hence, this Court has to frame
substantive questions of law. The counsel also would
vehemently contend that allotting equal share to the
plaintiff without noticing the fact that some portions of the
family property was sold during lifetime of the father for
legal necessities such as meeting the marriage expenses
of daughters is erroneous finding and whether both the
Courts are justified in not noticing that the father died on
28.10.1992, the daughters were married long before and
the coparcenery property came to the hands of husband of
appellant No.1 as sole surviving coparcener ..
6. Having considered the grounds urged in the
appeal as well as the reasoning of the Trial Court and also
on perusal of the material on record, there is no dispute
with regard to the relationship between the parties and
both the Courts have taken note of the fact that property
was sold subsequent to the marriage i.e., marriage was
taken place in the year 1979 and 1985 for the plaintiff and
defendant No.2 and even though defence was taken that
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the property was sold for the marriage of both the
daughters, both the Courts not accepted the contention
and fact finding was given by both the Courts that the
same cannot be accepted. Even the First Appellate Court
also reassessed the material on record and considered the
reasoning of the Trial Court and in paragraph 23 taken
note of Mulla's Hindu Law wherein it is held that marriage
expenses of a male co-parceners and daughters of co-
parceners is for a family necessity. Even if the property
has been sold for meeting the marriage expenses of the
daughter, it has to be held that it is sold for family
necessity. When the property has been sold for family
necessities, it is binding on all the sharers. Hence, it
cannot be a ground to say that in respect of the other
properties, the co-parceners have no right to claim share.
In the case on hand, the property was sold subsequent to
the marriage of the daughters and hence, equal share has
been given in the remaining properties which are available
in the family. When such reasoning is given by both the
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Courts, the very contention is that awarding of 1/3rd share
is erroneous is cannot be accepted. But the fact that both
the father and mother died in the year 1992 and 1993
respectively and the same is not in dispute and the
property is belongs to the family is also not in dispute.
When such being the case, the daughters and also a son
are entitled for equal share. Hence, contention of the
appellants counsel cannot be accepted. Thus, I do not find
any grounds to frame substantive questions of law and
admit the appeal.
7. In view of the discussions made above, I pass
the following:
ORDER
The second appeal is dismissed.
In view of dismissal of the main appeal, I.A. if any,
does not survive for consideration and the same stands
dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
SN
