IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 22ND DAY OF NOVEMBER, 2019 BEFORE The Hon’ble Mr.Justice B.M.Shyam Prasad Regular Second Appeal No.1425 OF 2011 Between:
1. Kumara S/o. Late Siddalingappa Aged about 47 years 2. Umesha S/o. Late Siddalingappa Aged about 45 years 3. Ramesha S/o. Late Siddalingappa Aged about 43 years 4. Kadaiah S/o. Late Siddalingappa Aged about 70 years All are r/o Hanumanthapura Village Tumkur Bypass, Tumkur Kasaba Tumkur Taluk & District-572133 ... Appellants (By Smt. Nalina K, Advocate for Sri. S.K.Venkata Reddy, Advocate) And:
1. Siddappa S/o. Late Thimmaiah Aged about 61 years R/o Ahobala Agrahara Kora Hobli, Tumkur Taluk Tumkur District-572128 2. Siddalingaiah S/o. Late Thimmaiah Aged about 51 years R/o Ahobala Agrahara Kora Hobli, Tumkur Taluk Tumkur District-572128 3. Revanna S/o. Late Chikkasiddaiah Aged about 81 years R/o. Hanumanthapura Village Tumkur Bypass, Tumkur Kasaba Tumkur District-572133 ... Respondents (By Sri. Patel D Karegowda, Advocate for R1, 2 and 3) This Regular Second Appeal is filed under Section 100 of CPC against the judgment and decree dated 12.04.2011 passed in R.A.No.83/2010 on the file of the II Additional District and Sessions Judge, Tumkur dismissing the appeal filed against the judgment and decree dated 30.01.2010 passed in O.S.No.152/2006 on the file of the Additional Civil Judge (Sr.Dn) and CJM, Tumkur.
This Regular Second Appeal coming on for Admission this day, the Court delivered the following:
Judgment This appeal is filed by the defendant Nos.2, 3, 4 and 5 in O.S.No.152/2006 on the file of the Additional Civil Judge (SD) and CJM, Tumkur. The respondent Nos.1 and 2 have filed the suit in O.S.No.152/2006 for partition of the suit schedule properties and grant of 1/4th share to them. The trial Court has decreed the suit by its judgment dated 30.01.2010. The appellants being aggrieved by this judgment dated 30.01.2010 have filed the first appeal in R.A.No.83/2010 on the file of the II Additional District and Sessions Judge, Tumkur. The appellate Court has dismissed the first appeal filed by the appellants by its judgment dated 12.04.2011.
2. Heard the learned counsel for the appellants and the learned counsel for the respondents. Perused the impugned judgments.
3. The respondent Nos.1 and 2 have filed the suit for partition asserting that Sri. Chikkasiddaiah is the original propositus. The respondent No.3 and appellant No.4 are his sons and Sri. Thimmaiah, their father is another son. The appellant Nos.1 to 3 are the sons of another son, late Sri. Siddalingappa. They have further asserted that the deceased Sri. Siddaiah and Sri. Yeraoppaiah, the other two sons of late Sri. Chikkasiddaiah, died bachelors. The suit schedule properties are joint family properties and they are entitled for 1/4th share in the suit schedule properties. Their father, late Sri. Thimmaiah, married his niece and started residing at his wife’s place on the instructions of the respondent No.3, the elder member of the family. Initially, the defendants were sharing crops with their father, but later they stopped. They listed seven immovable properties which comprise of six agricultural lands and residential properties in the plaint schedule.
4. The appellants and the respondent No.3 contested the suit but the written statement was signed only by the defendant No.2. The appellants and the respondent No.3 resisted the suit contending that late Sri. Thimmaiah had walked out of the family within fifteen days of his marriage and was residing at Ahobala Agrahara. The suit schedule properties were purchased respectively by the defendants and that these properties were their self acquired properties. However, they entered into a partition on 13.11.1960 dividing these properties. They were constrained to enter into another partition on 19.01.1968 because it was required for certain phodi proceedings. They elaborated contending that suit Item No.2 viz., land in Sy.No.233/1a, was purchased by Sri. Chikkasiddaiah under the sale deed dated 18.11.1963, but the consideration for purchase was provided by all the three parties. This land was acquired by the National Highways Authority, and the compensation was distributed amongst themselves. The appellants and the respondent No.3 also referred to sale of suit Item Nos.4, 5, 6 in favour of Sri. Siddalingaiah under the sale deed dated 27.02.2006.
5. The Courts below have examined the documentary evidence as well as ocular evidence. The Courts below, on appreciation of such evidence on record, have concluded that the appellants and the respondent No.3, who were asserting that the suit schedule properties are their self acquired properties, are not able to place evidence to substantiate the same, and from the undisputed circumstances on record, the respondent Nos.1 and 2 are able to establish the suit schedule properties are ancestral properties. The Courts below have concluded that the respondent Nos.1 and 2 are able to establish that the suit schedule properties are joint family properties from the following circumstances:
a) The undisputed relationship inter se, and more specifically that the respondent Nos.1 and 2 are the sons of late Sri. Thimmaiah S/o. Sri. Chikkasiddaiah, the original propositus.
b) The revenue records for suit Item Nos.1, 3, 4, 5 and 6 were in the name of the father, Sri. Chikkasiddaiah and later mutated in favour of three brothers viz., Sri. Siddalingappa, respondent No.3 and the appellant No.4. Subsequently, on the demise of Sri. Siddalingappa, the names of the appellant Nos.1 to 3 are mutated.
c) The suit Item No.2 was indeed purchased in the name of the deceased Sri. Siddalingappa and that it was contended that the sale consideration for the purchase was paid by the brothers, but no evidence is placed on record. The Courts have also considered the recitals in the sale deed to conclude that such recitals support the case of the respondent Nos.1 and 2 rather than the appellants and the respondent No.3 inasmuch as the sale deed referred to certain pre-existing rights in Sri. Chikkasiddaiah.
d) The appellants and the respondent No.3 are not able to explain how item Nos.1, 3, 4, 5 and 6 could be self acquired properties when Katha was made in the name of Sri. Chikkasiddaiah.
6. The Courts below, being the Courts to decide question of disputed facts, have concurrently concluded that the respondent Nos.1 and 2 are able to establish that the suit schedule properties are joint family properties. Further, the defence of the appellants and the respondent No.3 that the respondent Nos.1 and 2 would not be entitled for a share because, late Sri. Thimmaiah was living separately immediately after the marriage is not accepted by the Courts below on twin counts viz., mere separate residence would not eclipse the rights of a member of a joint family in the joint family properties and as such, separate residence would be of no consequence, and the exclusion of a member to the rights in the joint family properties could only be if ouster is established and the same is neither pleaded nor established.
7. It is settled law that this Court under Section 100 of CPC could interfere only if substantial question arise, and substantial questions arise only if the judgments of the Courts below are based on the evidence which could not have been considered, or if the Courts have overlooked material evidence, or if the findings are contrary to law. The learned counsel for the appellants is not able to establish any of the above. As such, no interference is called for in this appeal. However, in the light of the undisputed fact that the suit Item No.2 viz., land in Sy.No.233/1a (measuring 1 acre 25 guntas) of Tumkuru, Kasaba Hobli is acquired by the National Highways Authority and the same is not available for partition, and with the Courts below holding that the respondent Nos.1 and 2 would be entitled for 1/4th share even in this property, it will have to be observed that equities will have to be appropriately worked out in the final decree proceedings.
The appeal is accordingly disposed of.
Sd/- Judge RB