Karnataka High Court
Kum. Bhanupriya vs Smt. Boramma (Dead) on 30 June, 2025
Author: H.P.Sandesh
Bench: H.P.Sandesh
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RSA No. 1453 of 2023
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 30TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR JUSTICE H.P.SANDESH
REGULAR SECOND APPEAL NO.1453 OF 2023 (PAR)
BETWEEN:
1. KUM. BHANUPRIYA,
D/O LATE MAHALINGAIAH,
AGED ABOUT 20 YEARS.
2. CHI PRATAP,
S/O LATE MAHALINGAIAH,
AGED ABOUT 16 YEARS,
SINCE MINOR REP BY HIS ELDER
SISTER AND NATURAL GUARDIAN
KUM. BHANUPRIYA.
BOTH ARE R/AT THIPPUR VILLAGE,
ATHAGUR HOBLI, MADDUR TALUK,
MANDYA DISTRICT - 571 401.
Digitally signed
by DEVIKA M ...APPELLANTS
Location: HIGH
COURT OF (BY SRI PAWADE GOWDA, ADVOCATE)
KARNATAKA
AND:
SMT. BORAMMA (DEAD),
LEGAL HEIRS ALREADY ON RECORD
1. SMT. T CHIKKATHAYAMMA,
AGED ABOUT 76 YEARS,
W/O LATE BYARAIAH,
[R2(A-C) TO R6 ARE THE LRS OF R1]
2. KECHAIAH DEAD BY HIS LRS.
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RSA No. 1453 of 2023
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2(a) SMT. PUSHPALATHA,
W/O LATE KENCHAIAH,
AGED ABUT 51 YEARS.
2(b) KUM TEJASWINI,
D/O LATE KENCHAIAH,
AGED ABOUT 28 YEARS.
2(c) CHIRANJIVI @ CHIRAN K,
S/O LATE KENCHAIAH,
AGED ABOUT 26 YEARS.
RESPONDENTS No.2(a) TO 2(c) ARE
R/AT THIPPUR VILLAGE,
ATHAGUR HOBLI, MADDUR TALUK,
MANDYA DISTRICT - 571 401.
PRESENTLY R/AT No.34, GOWRI MARGA,
1ST STAGE, 1ST CROSS,
MAHADESWARA TEMPLE, HALAHALLI,
MANDYA - 571401.
3. SMT. KAMALAMMA,
W/O KEMPAIAH,
D/O LATE BYRAIAH,
AGED ABOUT 54 YEARS.
4. SMT. PUSHPA,
W/O GOVINDAIAH,
D/O LATE BYRAIAH,
AGED ABOUT 52 YEARS.
MAHALINGAIAH DEAD BY LRS.
5. SMT. KEMPARAJAMMA,
W/O LATE MAHALINGAIAH,
AGED ABOUT 44 YEARS.
6. SMT. MANJULA,
W/O BORAIAH,
D/O LATE BYRAIAH,
AGED ABOUT 48 YEARS.
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RSA No. 1453 of 2023
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RESPONDENTS No.3 TO 6 ARE
R/AT THIPPUR VILLAGE,
ATHAGUR HOBLI,
MADDUR TALUK - 571428.
7. SMT. N M BHAVANI,
W/O S.T. VIJAYA KUMAR,
AGED ABOUT 52 YEARS,
SHIVAPURA,
MADDUR TOWN - 571 428.
8. SRI MAHESH B MASALA,
S/O MASALA BALAPPA,
AGED ABOUT 46 YEARS,
No.13, MAHESHWARI NILAYA,
3RD CROSS, VINAYAKANAGARA,
KELEGERI ROAD, DARWAD - 580008.
9. SRI T D KRISHNA,
S/O THIMMEGOWDA,
AGED ABOUT 56 YEARS,
DEVARAHALLY VILLAGE,
MALUR HOBLI,
CHANNAPATNA TALUK-562160.
...RESPONDENTS
(BY SRI M MAHESHA, ADVOCATE FOR R3, R4 & R6;
SIR PRAKASH M H, ADVOCATE FOR R7 & R9;
SRI M N UMASHANKAR, ADVOCATE FOR
SRI REVANNA M S, ADVOCATE FOR R2(A-C);
NOTICE TO R5 & R8 SERVED & UNREPRESENTED;
R1 DEAD AND R2 TO R6 ARE TREATED AS LRS OF R1)
THIS RSA IS FILED UNDER SECTION 100 OF CPC,
AGAINST THE JUDGMENT AND DECREE DATED 15.04.2023
PASSED IN R.A No.88/2019 ON THE FILE OF THE SENIOR
CIVIL JUDGE, MADDUR, PARTLY ALLOWING THE APPEAL AND
MODIFYING THE JUDGMENT AND DECREE DATED 28.09.2018
PASSED IN O.S.No.5/2012 ON THE FILE OF THE IV
ADDITIONAL CIVIL JDUGE AND JMFC, MADDUR.
THIS APPEAL, COMING ON FOR ADMISSION, THIS DAY,
JUDGMENT WAS DELIVERED THEREIN AS UNDER:
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RSA No. 1453 of 2023
HC-KAR
CORAM: HON'BLE MR JUSTICE H.P.SANDESH
ORAL JUDGMENT
This matter is listed for admission. Heard the learned
counsel appearing for the respective parties.
2. The factual matrix of the case of the plaintiffs
before the Trial Court while seeking the relief of partition and
declaration is that the suit schedule properties are the
ancestral and joint family properties of the plaintiffs and
defendant Nos.1 to 7. It is also contended that the sale deeds
dated 15.02.2003 and 03.01.2008 executed by defendant
Nos.1 to 7 are not binding on the plaintiffs. The Trial Court
having considered the pleadings of the parties, framed the
issues and allowed the parties to lead their evidence. In order
to prove the case of the plaintiffs, natural guardian of the
plaintiffs examined herself as PW1 and also examined one
witness as PW2 and got marked the documents at Exs.P1 to
P10 and Ex.P11 is marked by confronting the same to DW1.
On the other hand, defendant No.8 is examined as DW1 and
also examined one witness as DW2 and got marked the
documents at Exs.D1 and D2 and defendant No.3(a) and (b)
not led any evidence.
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3. The Trial Court having considered both oral and
documentary evidence placed on record answered Issue No.1
partly in the affirmative in coming to the conclusion that the
suit schedule properties are the ancestral and joint family
properties and answered Issue No.2 in the negative with
regard to the execution of the sale deeds dated 15.02.2003
and 03.01.2008 in coming to the conclusion that the plaintiffs'
father was also a party to the sale deeds and he also joined
along with the family members while executing the same.
The Trial Court also comes to the conclusion that the father of
Mahalingaiah has two wives namely, Chikkatayamma and
Boramma. Chikkatayamma is issue less and Boramma has
five children and she is still alive and defendant No.1 is the
kartha of the family and PW2 pleaded ignorance about the
survey numbers and extent of the suit schedule property. The
Trial Court taken note of the evidence available on record that
defendant No.4 has filed the suit in O.S.No.127/2008 and she
denied the suggestion that on 21.04.2007, she has
compromised the suit filed in O.S.No.127/2008 with the
plaintiffs and she admits that the plaintiffs in the present suit
were not parties in O.S.No.127/2008 and deposed that the
father of the plaintiffs was party to the said suit. Having
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considered both oral and documentary evidence placed on
record, the Trial Court answered Issue No.2 in the negative
and also extracted the admission in paragraph No.26 that sale
was made for the family necessity, that too in order to
purchase the site and the same is discussed in paragraph No.
27 and the Trial Court comes to the conclusion that when the
property was sold for family necessity, the contention of the
plaintiffs that sale deeds are not biding on the plaintiffs
cannot be accepted and hence, dismissed the suit.
4. Being aggrieved by the judgment of the Trial
Court, an appeal was filed in R.A.No.88/2019. The First
Appellate Court having considered the grounds urged in the
appeal memo, formulated the points and on re-appreciation of
both oral and documentary evidence placed on record,
particularly considered the evidence of the guardian of the
plaintiffs as she was examined herself as PW1 and referring
the documents comes to the conclusion that the suit schedule
properties are ancestral and joint family properties and also
considered the evidence of PW2 as well as the evidence of
DW1 and DW2. The First Appellate Court considering both
oral and documentary evidence placed on record, held that
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item No.1 of the suit schedule property is concerned, as per
Ex.D1 and D2, it is described as item Nos.1 to 4 in the said
previous suit in O.S.No.127/2008 before Principal Civil Judge
and JMFC, Maddur. In the said case, 3rd defendant of the
present case was the plaintiff in the said case, she had filed a
suit against defendant Nos.1, 2, 4 to 8 seeking partition and
separate possession. After the contest, the suit was decreed
in respect of item No.1 and 3 of the suit schedule properties
and dismissed with respect to item Nos.2 and 4 of the suit
schedule properties, since the plaintiffs' father was entitled for
1/6th share in item Nos.1 and 3 of the suit schedule
properties. Further, the sale deed executed in favour of
defendant No.8 on 15.10.2003 was confirmed and dismissed
the right of the plaintiffs to claim share in the said property.
5. In the present case, no documents are produced
by the parties to show that the said judgment and decree has
been challenged by the parties and the First Appellate Court
comes to the conclusion that in respect of item No.1 is
concerned, it has reached its finality and hence, the judgment
passed in O.S.No.127/2008 is binding on the plaintiffs, since
the father of the plaintiffs was party to the said suit and in
respect of item Nos.2 and 3 of the suit schedule properties
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are concerned, undisputedly, the said property was sold to
defendant No.9 on 03.01.2008 under registered sale deed.
The First Appellate Court taken note of the fact that all the
family members have joined while selling the properties. The
First Appellate Court held that when the plaintiffs' father was
party to the said sale deed, now the plaintiffs cannot reopen
the same contending that the property cannot be sold by their
father hence, comes to the conclusion that the plaintiffs are
not entitled for any share in view of judgment of earlier suit in
O.S.No.127/2008 as well as sale deed executed by the father.
However, there was no dispute with regard to item No.4 is
concerned and hence, 1/6th share was granted by the First
Appellate Court.
6. The learned counsel for the appellants in the
second appeal would vehemently contend that the judgment
and decree passed by the Trial Court is erroneous, since the
plaintiffs are also entitled for a share in the suit schedule
property, which have been sold and they were not parties to
the said sale deed. The learned counsel contend that in the
earlier suit also they were not parties. But the fact is that the
plaintiffs' father was a party in O.S.No.127/2008 and also at
the time of executing the sale deed in terms of Ex.P.10, the
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father was a party to the sale deed. The learned counsel for
the appellants would contend that this Court has to frame the
substantial question of law that both the Courts have
committed miscarriage of justice in not considering the
evidence of P.W.1, though her evidence has been
corroborated with documentary evidence of Exs.P.1 to 11 and
not justified in dismissing the suit in respect of other
properties are concerned.
7. Per contra, the learned counsel for the
respondents would contend that the sale was made in the
year 2003 and the father of the plaintiffs was also a party to
the said sale deed and in respect of the subsequent sale deed
of the year 2008 also the father was a party to the said sale
deed. The learned counsel contend that challenge was made
subsequently and when the father was a party to the sale
deed and that too the sale deed was executed in the year
2003 and the suit was filed in 2012 and all of them are aware
of the fact that the property was sold and possession was
delivered and they have been in possession of the property
and now they cannot contend that they are in joint possession
of the property. Both the Courts have taken note of the said
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fact into consideration. The learned counsel would contend
that the earlier suit where the father was a party, the said suit
was dismissed in respect of sale made in favour of the
respondents and the question of entertaining the second
appeal does not arise.
8. Having heard the learned counsel for the
appellants and the learned counsel for the respondents, who
are the subsequent purchasers of the properties and having
considered the factual aspects of the case, no doubt, the
property belongs to the family and defendant Nos.1 to 7 have
joined in selling the property in the year 2003 and 2008.
Having considered the factual aspects, the property was sold
and possession was delivered and subsequent purchasers are
in possession of the property cultivating the same. It is
important to note that the first sale was made in the year
2003 and the said sale deed was challenged by one of the
member of the family Smt. Kamalamma and the same was
decreed partly and an appeal was filed and the same was
dismissed for non-prosecution and not restored and has
attained its finality.
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9. The learned counsel for the appellants would
contend that when the sale deed was made in the year 2008,
there was no any legal necessity to sell the suit schedule
property. The said contention was taken in the suit also for
having sold the property in favour of defendant Nos.8 and 9.
The Trial Court and the First Appellate Court taken note of
Ex.P.10 and as per the recitals of it, the sale deed is executed
by defendant Nos.1 to 7 including the father of the plaintiffs',
who is defendant No.6 and he died during the pendency of the
suit and the executors of the sale deed defendant Nos.1 to 7
remained absent and not entered the witness box. However,
considering the recitals of Ex.P.10, it is categorically
mentioned that the sale was made for legal necessities and in
order to purchase the property. The Trial Court taken note of
the same in paragraph No.27 that the recitals of Ex.P.4 is
very clear that in order to purchase the site, sale deed is
executed for the benefit of the family and all the family
members have joined in executing the sale deed and also sale
consideration was passed. Having taken note of the said fact
into consideration, both the Courts comes to the conclusion
that the sale was made by all the family members and now
the children cannot question the same when the act of the
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father in selling the property was not questioned during his
lifetime and filed the suit in the year 2012, though the sale
was made in the year 2003 and 2008 and the same is also for
family necessities. When both the Courts have applied their
mind and given the judicial appreciation with regard to the
factual aspects as well as question of law when the sale was
made by the father along with other brothers, the question of
granting any relief in favour of the children, who filed the suit
subsequently when their father was a party to the sale deed
of the year 2003 and 2008, does not arise. Hence, I do not
find any ground to admit the appeal and frame any
substantial question of law.
10. In view of the discussions made above, I pass the
following:
ORDER
The appeal is dismissed.
Sd/-
(H.P.SANDESH)
JUDGE
SN/MD
