IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF NOVEMBER, 2019 BEFORE THE HON’BLE MR. JUSTICE SACHIN SHANKAR MAGADUM REGULAR SECOND APPEAL NO. 1679 OF 2016 BETWEEN:
SMT. M.B. SHRUTHI W/O H T RAMESH AGED ABOUT 30 YEARS, R/AT PUMP-HOSAHALLI, (POST AND VILLAGE) BELAGOL HOBLI, SRIRANGAPATNA TALUK-571415 ...APPELLANT (BY SRI.RAGHUPATHY.T.N, ADVOCATE) AND:
1. M.B.YOGESH S/O LATE M BHASKER AGED ABOUT 27 YEARS, R/AT NO.442/C, CH-20/C, CHAMRAJA MOHALLA MYSURU-570007 2. P.R.MOHAN KUMAR S/O C.R.PANDURANGEGOWDA, AGED ABOUT 37 YEARS, R/AT D.NO.26/1, 2ND MAIN ROAD, 9TH CROSS, SARASWATHIPURAM CHAMARAJA MOHALLA, MYSURU-570007 …RESPONDENTS THIS RSA IS FILED UNDER SECTION 100 OF CPC AGAINST THE JUDGMENT AND DECREE DATED: 19.07.2016 PASSED IN R.A.NO.341/2013 ON THE FILE OF IV ADDL. DISTRICT JUDGE, MYSURU, DISMISSING THE APPEAL AND CONFIRMING THE JUDGMENT AND DECREE DATED 23.11.2012 PASSED IN O.S.NO.341/2010 ON THE FILE OF THE IV ADDL.SENIOR CIVIL JUDGE, MYSURU AND ETC., THIS RSA COMING ON FOR ADMISSION THIS DAY, THE COURT DELIVERED THE FOLLOWING:
JUDGMENT The appellant-plaintiff has filed the top noted second appeal questioning the judgment and decree dated 19.07.2016 passed in RA.No.341/2013 confirming the judgment and decree dated 23.11.2012 passed in O.S.No.341/2010 insofar as suit schedule items 2 and 3 properties are concerned.
2. The brief facts leading to the filing of the suit by the plaintiff are as under:
The plaintiff filed the suit in O.S.No.341/2010 for partition and separate possession. The plaintiff and first defendant are the children of M. Bhaskar and Savitha. The suit schedule properties are the joint family properties of the plaintiff and first defendant. The father of the plaintiff namely M. Bhaskar was addicted to vices and was leading a wayward life. Plaintiff’s father taking undue advantage of his name appearing in the katha alienated suit schedule items 2 and 3 properties in favour of defendant No.2. It is the case of the plaintiff that the said alienation came to her knowledge only in the first week of March 2010 and that the same would not bind her legitimate share in the suit schedule items 2 and 3 properties. Hence, she sought for partition in all the suit schedule properties.
On receipt of summons, the defendants tendered appearance and filed written statements. The second defendant took up a specific contention that the suit in the present form was not at all maintainable and that he is the bonafide purchaser and that suit schedule items 2 and 3 properties were originally owned by the mother of his vendor namely Bhaskar and after her death, the properties were inherited by his vendor and as such he was the absolute owner of the suit schedule items 2 and 3 properties and hence, he prayed to dismiss the suit.
Based on the rival contentions, the trial Court framed the following issues:
“1.Whether the plaintiff proves that suit schedule properties are the joint family properties?
2.Whether the plaintiff proves that the sale deed dated 14.11.2003, is not binding on her?
3.Whether the defendant No.2 proves that he is the bonafide purchaser of the suit schedule properties from late.Bhasker i.e. father of the plaintiff?
4.Whether the plaintiff is entitled for relief as sought for?
5.What order or decree?
ADDITIONAL ISSUES 1.Whether the defendant proves that the plaintiff has not include all the joint family properties as well as this suit is for partial partition is not maintainable in the eyes of law?
2.Whether the first defendant proves he is also having share in the suit schedule properties as well as the transaction made by the plaintiff’s father with 2nd defendant is not binding on him?”
The appellant-plaintiff in support of his contention examined herself as P.W.1 and to corroborate the oral evidence, produced documentary evidence as per Exs.P1 to P30. The defendants got themselves examined as D.Ws.1 and 2 and got marked Exs.D1 to D43.
The Trial Court having examined Ex.P27-partition deed which was effected between Gowramma and her sons has recorded a finding that the said partition deed clearly indicates that suit schedule items 2 and 3 properties are self acquired properties of Gowramma-the grand mother of plaintiff-appellant herein. On perusal of Ex.P27 it can be gathered that mother had effected partition among her sons and she had allotted specific shares to all her four male children and in the said partition ‘D’ schedule properties has fallen to the share of late Bhaskar. Pursuant to acquisition of right under the registered partition deed, the plaintiff’s father’s name came to be mutated in the concerned revenue records. Having examined these material documents, the Trial Court was of the view that suit schedule items 2 and 3 properties are self acquired properties of Gowramma and on account of partition effected by her, the plaintiff’s father succeeded to the suit schedule properties. Based on these reasoning, the Trial Court proceeded to answer issue No.1 partly in the affirmative holding that the properties sold by the father of the plaintiff in favour of defendant No.2 under registered sale deed dated 14.11.2003 were not at all the ancestral properties but were infact the self acquired properties of plaintiff’s father and as such the same were not available for partition. Based on the above said conclusion, the Trial Court proceeded to decree the suit in part by granting a share to the appellant-plaintiff only in respect of those properties which are ancestral properties i.e. items 1 and 4 of suit schedule properties and insofar as items 2 and 3 of suit schedule properties are concerned, the Trial Court dismissed the suit by holding that they are self acquired properties of Bhaskar, father of plaintiff and he has dealt with the said properties.
Being aggrieved by the same, the plaintiff- appellant herein preferred an appeal before the lower appellate Court in R.A.No.341/2013. The lower appellate Court on re-appreciation of the evidence has concurred with the finding of the Trial Court insofar as suit schedule items 2 and 3 properties are concerned. The lower appellate Court reiterating the reasons assigned by the Trial Court has proceeded to hold that acquisition of right and title by the father of the plaintiff under the partition deed has to be treated as self acquisition and as such the present appellant being the daughter of vendor of second defendant cannot enforce partition in respect of items 2 and 3 of suit schedule properties. Further, having appreciated the entire evidence on record and having meticulously examined the reasons assigned by the Trial Court while dealing with issue No.1 has proceeded to dismiss the appeal.
Being aggrieved by the aforesaid concurrent findings of the Courts below, the plaintiff-appellant is before this Court.
3. The counsel for the appellant would vehemently argue that the plaintiff was unmarried at the time of alienation and as such the appellant being the coparcener would be entitled for share even in respect of suit schedule items 2 and 3 properties and that both the Courts below have erred in dismissing the suit insofar as said properties are concerned and the same would give rise to substantial question of law in this appeal.
4. The above contention of the appellant- plaintiff is not tenable. The material on record clearly indicates that insofar as suit schedule items 2 and 3 properties are concerned, the same were owned by the grand-mother of the plaintiff-appellant herein i.e. Gowramma and the same can be gathered from the registered partition deed Ex.P27 wherein there is a recital that they were self acquired properties of Gowramma and she had chosen to effect partition among her children and accordingly the registered document came to be executed. The counsel for the appellant would argue that it was in fact the maternal grand father who purchased the properties in the name of his wife Gowramma and as such, the same would be available for partition. Even if the maternal grand father had purchased the properties in the name of his wife Gowramma i.e. grand-mother of the plaintiff, the same has to be treated as her absolute property, in view of Section 14 of the Hindu Succession Act, 1956,(for short “Act”) even otherwise the plaintiff would not be entitled to any share in suit items 2 and 3 properties are concerned.
5. The contention of the counsel for the appellant that the benefit of Section 6 of the Act, has to be given to the daughter who is the coparcener also cannot be accepted. To the present set of facts, Section 6 of the Act has no application since suit items 2 and 3 were admittedly owned by the maternal grand-mother of the plaintiff-appellant herein and in that view of the matter even in the absence of registered partition deed the succession has to be dealt as per Sections 15 and 16 of the Act and the plaintiff being the grand-daughter would not be entitled to any share in suit items 2 and 3 properties are concerned. Both the Courts below have meticulously examined these aspects. No substantial question of law is involved.
Consequently, the appeal is dismissed. No order as to costs.
Sd/- JUDGE *alb/-